The Study of Law - Katherine A. Currier
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Brendan MaguireThe Study of Law - Katherine A. Currier
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Brendan MaguireThe Study of Law:
A Critical Thinking Approach
Copyright © 2020 Katherine A. Currier, Thomas E. Eimermann, and Marisa S. Campbell
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Library of Congress Cataloging-in-Publication Data
Names: Currier, Katherine A., 1949-author. | Eimermann, Thomas E., author. | Campbell,
Marisa Szabo, author.
Title: The study of law : a critical thinking approach /Katherine A. Currier, Professor Emeritus,
Elms College; Thomas E. Eimermann, Emeritus Professor, Illinois State University; Marisa
S. Campbell, Director, Paralegal Program, Meredith College.
Description: Fifth edition. | New York : Wolters Kluwer, [2020] | Series: Aspen College series |
Includes bibliographical references and index. | Summary: “Introduction to law text for
undergraduate students”— Provided by publisher.
Identifiers: LCCN 2019056774 (print) | LCCN 2019056775 (ebook) | ISBN 9781454896265
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p. vii
Katherine A. Currier, J.D., served as the Elms College Paralegal and
Legal Studies program director for many years. She developed and
taught many law-related courses, including Legal Reasoning,
Research, and Writing; Introduction to Legal Studies I and II; Law
Office Computer Literacy; Law Office Applications; Interviewing,
Counseling, and Negotiating; and Law and Literature. In addition to
the three texts she has coauthored with Professor Eimermann,
Professor Currier has publications in the areas of legal ethics as
applied to paralegals and law office computing.
Professor Currier has been actively involved in the development of
undergraduate legal education at both the regional and the national
levels, particularly through her work with the American Association
for Paralegal Education (AAfPE) and the American Bar Association
(ABA) Approval Commission on Paralegals. Professor Currier served
on the national board of AAfPE, first as its parliamentarian and then
later as the elected representative of four-year paralegal programs.
She served many years as the AAfPE publications chair, charged with
the final responsibility for overseeing Journal of Paralegal
the
Education and Practice and The Educator. Professor Currier
frequently speaks at both the AAfPE Northeast regional meetings and
the annual AAfPE conferences on topics as diverse as the use of
computer shareware, paralegals and the unauthorized practice of law,
creative teaching techniques, and conducting legal research on the
Internet. Professor Currier also chaired the American Bar Association
Approval Commission on Paralegals, the body charged with
conducting site visits of paralegal programs that are seeking their
initial ABA approval or reapproval. She also served on the Board of
Directors of the International Assembly for Collegiate Business
Education (IACBE), an organization dedicated to promoting
excellence in business education.
Prior to teaching at Elms College, Professor Currier taught at
Suffolk Law School and Western New England College School of Law.
She graduated magna cum laude with her B.A. in Political Science
from Carleton College, with her M.A. in Political Philosophy from the
University of California, Berkeley, and with her J.D. from Northeastern
University Law School.
Thomas E. Eimermann is Emeritus Professor of Political Science and
a former Director of the Legal Studies Program at Illinois State
University. Dr. Eimermann helped establish the paralegal program
there in 1976 and served as director until 2005. He has taught the
Introduction to Paralegal Studies, Legal Research and Writing, and
Constitutional Law courses.
Professor Eimermann was a member of the American Association
for Paralegal Education’s Board of Directors from 1986 to 1993 and
served as
p. vii
p. viii
president of that organization from 1991 to 1992. He has also served
in the Certification Board and Specialty Task Force of the National
Association of Legal Assistants; as a member of the Illinois State Bar
Association Committee on the Delivery of Legal Services; and as a
member of the Hearing Board, the Inquiry Board, and the Oversight
Committee of the Illinois Attorney Registration and Disciplinary
Commission. He was also a consultant for the Illinois Department of
Corrections, where he designed its Uniform Law Clerk Training
Program.
In addition to the three paralegal texts he has coauthored with
Professor Currier, Professor Eimermann’s publications include
Fundamentals of Criminal Law and Procedure for Paralegals (co-
authored with Thomas McClure), and journal articles on paralegals,
jury behavior, and free speech issues. He earned his B.A. in Political
Science at North Central College. He went on to receive an M.A. and a
Ph.D. in Political Science from the University of Illinois-
Urbana/Champaign campus.
Currier and Eimermann have Introduction to
also authored
Paralegal Studies: A Critical Thinking Approach, and Introduction to
Law for Paralegals: A Critical Thinking Approach (co-authored with
Marisa Campbell.)
Marisa S. Campbell, J.D., has served as the program director for the
Meredith College Paralegal Program since 2000 and has taught the
Legal Survey and Legal Research and Writing courses. In addition,
she has taught Constitutional Law in the Political Science department
and business law classes in both the undergraduate and MBA
programs. She taught international law students introduction to
American law and culture in the Summer Institute at the Fuqua
School of Business at Duke University. She has spoken on a number
of topics, nationally and regionally, including paralegal regulation,
ethics, professionalism, and assessment.
Ms. Campbell served as President of the American Association for
Paralegal Education (AAfPE) from 2007 to 2008 after serving as
South East Regional Representative. She served on the American Bar
Association Approval Commission on Paralegals from 2009 to 2010.
She has served on the North Carolina State Board of Continuing Legal
Education. From 2001 to 2004, she served on the Board of the
Alliance for Paralegal Professional Standards and on a joint
committee with the North Carolina State Bar to develop the North
Carolina paralegal certification standards. She served on the
inaugural North Carolina State Bar Board of Paralegal Certification
from 2004 to 2010. She served as a member of the North Carolina
Bar Association CLE Committee, as Chair of that Committee from
2014 to 2016; as a member of the Publication Committee; as a
member of the Law Office Management and Technology Section
Council; and as a member of the Membership Committee. In 2013,
she was awarded the Women of Justice Award for North Carolina
Lawyers Weekly in the Legal Scholars Award category.
In addition to this text, she coauthored the North Carolina State
Bar Paralegal Certification Exam Guide in 2013 as well as numerous
articles and manuscripts. She graduated with Honors in Political
Science and Honors in Studies in Religion from the University of
Michigan, Ann Arbor. She earned her Master in International Affairs
from Columbia University and her J.D. from the University of
Michigan Law School.
p. viii
p. ix
To our spouses and children
For their understanding and support
p. ix
p. xi
Contents
List of Illustrations
Preface
PART 1 The American Legal System
Chapter 1 Introduction to the Study of Law
Chapter 2 Functions and Sources of Law
Chapter 3 Classification of the Law
Chapter 4 The Court System and the Role of Judges
Chapter 5 Civil Litigation and Its Alternatives
PART 2 Substantive Law and Ethical Issues
Chapter 6 Constitutional Law: Civil Rights and Civil Liberties
Chapter 7 Torts
Chapter 8 Contract Law
Chapter 9 Property and Estate Law
Chapter 10 Laws Affecting Business
Chapter 11 Family Law
Chapter 12 Criminal Law
Chapter 13 Criminal Procedure
Chapter 14 Ethical Dilemmas Facing Attorneys
Appendix A The Constitution of the United States
Appendix B NetNotes
Glossary
Table of Cases
Index
p. xi
p. xiii
List of Illustrations
Preface
PART 1 The American Legal System
Chapter 1 Introduction to the Study of Law
Chapter Objectives
Introduction
Case 1: The Distressed Grandfather
Case 2: The Harassed Student
A. Why Study Law
B. Legal Analysis
1. Identifying the Relevant Facts
2. Reading and Understanding the Appropriate
Legal Rules
a. Understanding Enacted Law: Constitutions,
Statutes, Ordinances, and Regulations
b. Understanding Court Opinions
(1) How to read a court opinion
(2) Sample case: Dillon v. Legg
(3) Briefing court opinions
(a) Reasons for briefing cases
(b) Format of a case brief
(4) Sample brief for Dillon v. Legg
3. Applying the Legal Rules to the Facts
Discussion Questions 1-2
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 2 Functions and Sources of Law
Chapter Objectives
Introduction
Case 3: The Pregnant Waitress
A. Functions and Theories of Law
1. Definition of Law
2. Functions of Law
3. Theories of Jurisprudence
Discussion Questions 1-6
p. xiii
p. xiv
B. Sources of Law
1. Constitutional Law
a. Organization of Government
b. Protection of Individual Rights
c. Power of Judicial Review
Discussion Question 7
d. State Constitutions
York v. Wahkiakum School District No. 200
Case Discussion Questions
2. Statutory Law
3. Administrative Law
Bob Jones University v. United States
Case Discussion Questions
Discussion Question 8
4. Judicial Interpretation and the Common Law
Discussion Question 9
5. The Hierarchy of Laws
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 3 Classification of the Law
Chapter Objectives
Introduction
Case 4: The Boston Marathon Bombings
A. Federal versus State Law
1. Federal Law
Gonzales v. Raich
Case Discussion Questions
2. State Law
3. The Supremacy Clause and Preemption
Arizona v. United States
Case Discussion Questions
4. Summary
Discussion Questions 1-3
B. Criminal versus Civil Law
1. A Comparison of Criminal and Civil Law
a. Type of Harm
b. Names of the Parties and the ‘‘Prosecutor’’ of
the Claim
c. Standard of Proof
Discussion Questions 4-5
In re D.T.
Case Discussion Questions
d. Judgment
e. Sanctions/Remedies
f. Sources of Law
g. Summary
2. Criminal Law
p. xiv
p. xv
a. Types of Crimes
b. Establishing a Prima Facie Case
c. Defenses
3. Civil Law
a. Establishing a Prima Facie Case
b. Defenses
c. Damages
d. Areas of Civil Law
(1) Contract Law
(2) Property
(3) Torts
Case 5: Mr. Whipple
Discussion Question 6
C. Substantive versus Procedural Law
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 4 The Court System and the Role of Judges
Chapter Objectives
Introduction
Case 6: Alibi to a Murder
A. Trial versus Appellate Courts
1. Trial Courts
2. Appellate Courts
a. Questions of Law
b. Reversible Errors
c. The Structure of Appellate Decisions
3. Summary
Discussion Questions 1-2
B. Federal and State Court Systems
1. The Federal System
a. U.S. District Courts
b. U.S. Courts of Appeals (Circuit Courts)
c. U.S. Supreme Court
Discussion Questions 3-4
d. Other Federal Courts
2. State Court Systems
Discussion Questions 5-6
3. Choice of State or Federal Court
Ceglia v. Zuckerberg
Case Discussion Questions
Discussion Question 7
C. The Role of Judges in Interpreting and Applying the
Law
1. Doctrine of Stare Decisis
2. Legislative Dominance
3. Approaches to Statutory and Constitutional
Interpretation
4. Politics and Judicial Decision Making
p. xv
p. xvi
Discussion Questions 8-9
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 5 Civil Litigation and Its Alternatives
Chapter Objectives
Introduction
Case 1: The Distressed Grandfather (Continued)
Case 3: The Pregnant Waitress (Continued)
A. Alternative Dispute Resolution (ADR)
1. Mediation
2. Arbitration
3. Evaluation of ADR Techniques
Discussion Questions 1-2
B. Litigation
1. The Pretrial Stage
a. Preliminary Matters
(1) Legal grounds for the suit
Discussion Question 3
(2) Parties to the suit
(a) Standing
Finstuen v. Crutcher
Case Discussion Questions
(b) Legal competence
(c) Class action lawsuits
Discussion Questions 4-5
(d) Selecting the appropriate
defendants
(3) Selection of the court
(a) Subject matter jurisdiction
(b) Personal jurisdiction
Dailey v. Popma
Case Discussion Questions
(4) Statutes of limitations
(5) Exhaustion of administrative remedies
b. Pleadings
(1) The complaint
(2) The summons
(3) The answer
c. Pretrial Motions to End Part or All of the
Litigation
(1) Rule 12 motions to dismiss
(2) Rule 56 motions for summary judgment
(3) Appealing a summary judgment or
motion to dismiss
d. Discovery
(1) Interrogatories
(2) Depositions
p. xvi
p. xvii
(3) Requests for admissions
(4) Requests for documents and physical
examinations
(5) Electronic discovery
(6) Enforcing discovery rights
Discussion Question 6
e. Settlement or Pretrial Conference
2. The Trial
a. The Right to a Jury Trial
b. Jury Selection
Discussion Questions 7-8
c. Opening Statements
d. Presentation of Evidence
Discussion Questions 9-10
e. Closing Arguments
f. Jury Instructions
g. Jury Deliberations, Verdict, and Judgment
h. Post-Trial Motions
3. The Appeal
a. The Timing and Filing of the Appeal
b. The Scope of the Review
c. Oral Arguments
d. The Decision and Its Publication
e. Further Appeals
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
PART 2 Substantive Law and Ethical Issues
Chapter 6 Constitutional Law: Civil Rights and Civil Liberties
Chapter Objectives
Introduction
Case 7: The Constitutionally Challenged School
District
A. The Recognition of Individual Rights
Discussion Question 1
B. Freedom of Expression
1. Use of Balancing Tests
Snyder v. Phelps
Case Discussion Questions
Discussion Questions 2-3
2. Types of Expression
a. Pure Speech and Symbolic Speech
Texas v. Johnson
Case Discussion Questions
Discussion Question 4
b. Campaign Activities and Political
Contributions
Discussion Questions 5-6
p. xvii
p. xviii
c. Commercial Speech
d. Speech Not Protected by the First
Amendment
(1) Pornography, obscenity, and indecent
speech
(2) Fighting words, threats, and hate
speech
Discussion Questions 7-10
3. Time and Place Restrictions
4. Content Neutrality
5. The Chilling Effect of Overbreadth and
Vagueness
Packingham v. North Carolina
Case Discussion Questions
C. Freedom of Religion and the Establishment Clause
Discussion Question 11
1. The Free Exercise Clause
Wisconsin v. Yoder
Case Discussion Questions
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission
Case Discussion Questions
Discussion Questions 12-13
2. The Establishment Clause
American Legion v. American Humanist Association
Case Discussion Questions
3. Overlap and Potential Conflict between the
Religion Clauses
D. Due Process
1. Procedural Due Process
2. Substantive Due Process
E. Equal Protection
1. Standards/Tests Applied
a. Standard Scrutiny (or the Rational Basis
Test)
b. Strict Scrutiny (or the Compelling Interest
Test)
c. Intermediate (or Heightened Scrutiny)
Standard
2. Choosing the Proper Standard
San Antonio Independent School Dist. v. Rodriguez
Case Discussion Questions
3. Types of Discrimination
a. Race Discrimination
b. Sex Discrimination
United States v. Virginia
Case Discussion Questions
c. Sexual Orientation Discrimination
d. Age Discrimination
e. Economic Discrimination
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
p. xviii
p. xix
Chapter 7 Torts
Chapter Objectives
Introduction
Case 8: The Mishit Softball Game
A. Intentional Torts
Case 9: The Abused Spouse
1. Harm to a Person’s Body, Reputation, or
Emotional Well-Being
a. Assault and Battery
(1) The elements of assault and battery
Knight v. Jewett
Case Discussion Questions
(2) The defenses to assault and battery
Katko v. Briney
Case Discussion Questions
b. False Imprisonment
(1) The elements of false imprisonment
(2) Defenses to false imprisonment
Discussion Question 1
c. Defamation
(1) The elements of defamation
(2) Constitutional issues in defamation: The
special case of public officials and
public figures
(3) Defenses to defamation
Discussion Questions 2-4
d. Invasion of Privacy
e. Intentional Infliction of Emotional Distress
Cabaness v. Thomas
Case Discussion Questions
Discussion Questions 5-7
2. Harm to a Person’s Property
a. Trespass to Land
b. Trespass to Personal Property and
Conversion
c. Defenses to Torts against Property
3. Other Intentional Torts
B. Negligence
1. The Elements of Negligence
Ewans v. Wells Fargo Bank
Case Discussion Questions
a. Duty
Discussion Question 8
Woods v. Lancet
Case Discussion Questions
b. Breach
Discussion Questions 9-10
Sauer v. Hebrew Institute of Long Island, Inc.
Case Discussion Questions
c. Cause
p. xix
p. xx
(1) Palsgraf v. Long Island Railroad
Company
Palsgraf v. Long Island Railroad Company
Case Discussion Questions
(2) Intervening cause
Anglin v. State Department of Transportation
Case Discussion Questions
(3) Duty of care to third parties
d. Harm
Discussion Question 11
2. Defenses to Negligence
a. Contributory Negligence
b. Comparative Negligence
c. Assumption of the Risk
d. Immunities
Irwin v. Town of Ware
Case Discussion Questions
3. Reckless Behavior
Knight v. Jewett
Case Discussion Questions
C. Strict Liability
1. Ultrahazardous Activities
2. Products Liability
Patch v. Hillerich & Bradsby Co.
Case Discussion Questions
Doe v. Miles Lab. Inc.
Case Discussion Questions
3. Defenses to Strict Liability Torts
D. Trending Issues in Tort Law
1. Torts Related to the #MeToo Movement
a. Non-disclosure Agreements
b. Litigation
2. Cyberbullying
3. Cybertorts
Discussion Questions 12-15
E. Remedies
Aleo v. SLB Toys USA, Inc.
Case Discussion Questions
Estate of McCall v. United States
Case Discussion Questions
Discussion Questions 16-17
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 8 Contract Law
Chapter Objectives
Introduction
Case 10: Who Owns the Watch?
p. xx
p. xxi
A. The Uniform Commercial Code (UCC)
B. Types of Contracts
Discussion Question 1
C. The Elements of a Binding Contract
1. Offer and Acceptance
a. Offer
(1) Statements of intent and preliminary
negotiations
(2) Terms definite
Lefkowitz v. Great Minneapolis Surplus Store, Inc
Case Discussion Questions
(3) Termination of an offer
b. Acceptance
Ehlen v. Melvin
Case Discussion Questions
c. Quasi-Contract
AmeriPro Search, Inc. v. Fleming Steel Co.
Case Discussion Questions
Discussion Questions 2-3
2. Consideration
a. Detriment to Promisee or Benefit to Promisor
Hamer v. Sidway
Case Discussion Questions
b. Problems with Consideration
c. Promissory Estoppel
D. Contract Interpretation
E. Defenses to a Valid Contract
1. Lack of Contractual Capacity
a. Minors
Quality Motors, Inc. v. Hays
Case Discussion Questions
b. Intoxication
Lucy v. Zehmer
Case Discussion Questions
c. Mental Incompetence
2. Illegal Contracts and Those That Violate Public
Policy
3. Lack of Genuineness of Assent
a. Fraud
Vokes v. Arthur Murray, Inc.
Case Discussion Questions
b. Mistake
c. Undue Influence
d. Duress
4. Breach of Warranty
Discussion Question 4
Webster v. Blue Ship Tea Room, Inc.
Case Discussion Questions
5. Lack of Proper Format — Writing
p. xxi
p. xxii
F. Termination of Contractual Duties
1. By Performance
Jacob & Youngs, Inc. v. Kent
Case Discussion Questions
2. By Agreement
3. When Performance Is Impossible
4. Due to Commercial Impracticability
G. Third-Party Rights
1. Assignment
2. Delegation
3. Third-Party Beneficiaries
a. Intended Beneficiaries
b. Incidental Beneficiaries
H. Damages
Sargon Enterprises, Inc. v. Univ. of Southern California
Case Discussion Questions
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 9 Property and Estate Law
Chapter Objectives
Introduction
Case 11: Bill and Maria
A. Real Property
1. Rental of Real Property
a. Criteria for Renters
b. The Lease
c. Security Deposits
d. Living Conditions in Rental Units
e. Eviction
2. Buying and Selling Real Estate
a. Listing the Property
b. Negotiations
c. Preparation for the Closing
d. The Closing
e. Land Contracts
Discussion Question 1
3. Limitations on the Use of Real Property
a. Zoning Laws
b. Building Permits and Safety Requirements
c. Restrictive Covenants and Homeowner
Association Regulations
d. Easements
4. Involuntary Loss of Property
a. Seizure by a Creditor
b. Eminent Domain
c. Adverse Possession
p. xxii
p. xxiii
Steuck v. Easley
Case Discussion Questions
Discussion Questions 2-5
B. Personal Property
1. Transfer of Personal Property
2. Intellectual Property
a. Types of Intellectual Property
Matal v. Tam
Case Discussion Questions
b. Enforcing Intellectual Property Rights
Discussion Question 6
C. Estate Planning
1. Wills
2. Trusts
3. Living Wills and Medical Directives
Discussion Question 7
4. Probate
a. Challenges to a Will
In re Estate of Haviland
Case Discussion Questions
b. Intestate Succession
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 10 Laws Affecting Business
Chapter Objectives
Introduction
Case 12: The Four Friends
A. The Five Basic Business Forms
1. Sole Proprietorship
2. Partnership
Van Dyke v. Bixby
Case Discussion Questions
3. Corporation
Discussion Question 1
4. Limited Liability Company and Limited Liability
Partnership
Mbahaba v. Morgan
Case Discussion Questions
B. Financial Transactions
1. Commercial Paper
2. Secured Transactions
C. Agency Law and an Employer’s Responsibility for an
Employee’s Act
1. Agency Law
2. Employees versus Independent Contractors
3. Employees and Independent Contractors as
Agents
p. xxiii
p. xxiv
4. Employer’s Liability for Acts of Employees
O’Connor v. McDonald’s Restaurants of California, Inc.
Case Discussion Questions
D. Employment Law
1. Title VII: Discrimination Based on Race, Color,
Religion, Sex, or National Origin
a. Introduction to Title VII
Discussion Question 2
b. The Three Theories of Discrimination
(1) Overt intentional discrimination and the
BFOQ defense
Discussion Questions 3-4
(2) Intentional discrimination — disparate
treatment
(3) Unintentional discrimination —
disparate impact
Discussion Questions 5-6
c. Harassment
Discussion Questions 7-9
d. Affirmative Action
Discussion Questions 10-11
e. Damage Awards and Other Relief under Title
VII
f. Retaliation
2. ADEA: Age Discrimination
3. ADA: Disability Discrimination
4. Other Statutory Protections
a. Regulation of Hours and Wages
b. Family and Medical Leave Act
c. Workers’ Compensation Laws
d. Collective Bargaining and Unfair Labor
Practices
Discussion Questions 12-13
e. Occupational Health and Safety Act
f. Employee Retirement Income Security Act
5. Common-Law Approach: At-Will Employment
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 11 Family Law
Chapter Objectives
Introduction
Case 13: The Modern Family
A. Marriage
Obergefell v. Hodges
Case Discussion Questions
Discussion Questions 1-3
1. Consequences of Marriage
p. xxiv
p. xxv
2. Premarital Agreements
Discussion Question 4
3. Consequences of Broken Engagements
Aronow v. Silver
Case Discussion Questions
4. Termination of the Marital Relationship
a. Annulment
Discussion Question 5
b. Divorce/Dissolution
(1) Divorce procedures
(2) Property settlements
Terrell v. Torres
Case Discussion Questions
(3) Alimony/maintenance agreements
(4) Custody, visitation, and child support
(a) Custody
(b) Visitation
Carroll v. Carroll
Case Discussion Questions
(c) Custody and visitation rights of
others
(d) Child support
Discussion Questions 6-9
B. The Parent-Child Relationship
1. Establishing the Relationship
a. Paternity Actions
Discussion Questions 10-12
b. Adoption
Discussion Questions 13-14
In re Petition of John Doe and Jane Doe, Husband and
Wife, to Adopt Baby Boy Janikova
Case Discussion Questions
(1) Adoption records
(2) Tort of wrongful adoption
c. Assisted Reproduction
(1) Sperm and egg donation
Discussion Question 15
(2) Surrogacy contracts
Discussion Questions 16-19
2. Parental Rights, Responsibilities, and Liabilities
3. Child Neglect and Abuse
Discussion Questions 20-22
4. Legal Status of Minors
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 12 Criminal Law
Chapter Objectives
p. xxv
p. xxvi
Introduction
Case 14: The Cyberbully
A. Sources of Criminal Law
Discussion Question 1
B. Classification of Crimes
1. Offenses against the Person
2. Crimes against Habitations and Property
United States v. Barrington
Case Discussion Questions
3. Crimes Affecting Public Health, Safety, and
Decency
Discussion Questions 2-3
4. Crimes Affecting Governmental Functions
C. Elements of a Crime
1. Actus Reus
Commonwealth v. Robertson
Case Discussion Questions
2. Mens Rea
Commonwealth v. Carter
Case Discussion Questions
D. Parties to the Crime
E. Defenses
1. Alibi Defense
2. Ignorance or Mistake
3. Status of the Offender
a. Children
Discussion Questions 4-5
b. Mental Illness
People v. Wolff
Case Discussion Questions
Discussion Questions 6-9
c. Intoxication
4. Duress and Necessity
5. Entrapment
Discussion Question 10
6. Self-Defense
Discussion Questions 11-14
7. Constitutional Defenses
Discussion Questions 15-17
F. Punishments
1. Theories of Punishment
2. Capital Punishment
Discussion Questions 18-21
3. Mandatory Sentencing
a. Mandatory Life Sentence for Minors
b. Habitual Offender Statutes
Discussion Questions 22-23
p. xxvi
p. xxvii
Chapter Summary
Critical Thinking Exercises
Web Exercises
Review Questions
Chapter 13 Criminal Procedure
Chapter Objectives
Introduction
Case 15: People v. Grant
A. Participants in the Process
B. Investigation of a Crime
1. Constitutional Restrictions
a. Fourth Amendment
b. Fifth Amendment
c. Sixth Amendment
2. Discovery of the Crime and Initial Actions Taken
3. Searches and Seizures of Evidence
a. Procedures for Obtaining and Executing
Search Warrants
b. Exceptions to the Warrant Requirement
Mitchell v. Wisconsin
Case Discussion Questions
Carpenter v. U.S.
Case Discussion Questions
Discussion Question 1
4. Interrogations
5. Arrest and Booking
C. The Court System
1. Formal Charges, Bail, and Initial Appearances
2. Grand Juries and Preliminary Hearings
Discussion Question 2
3. Arraignments
4. Discovery, Pretrial Motions, and the Exclusionary
Rule
Mapp v. Ohio
Case Discussion Questions
Discussion Question 3
5. Plea Bargaining
Discussion Question 4
6. The Right to a Jury Trial
Discussion Questions 5-6
7. Trial Procedures
Discussion Questions 7-8
8. Sentencing
9. Appeal
10. Writ of Habeas Corpus
11. Petitions for Executive Clemency
Discussion Question 9
Chapter Summary
Critical Thinking Exercises
p. xxvii
p. xxviii
Web Exercises
Review Questions
Chapter 14 Ethical Dilemmas Facing Attorneys
Chapter Objectives
Introduction
Case 16: The Buried Bodies
A. The Adversarial System
Discussion Questions 1-2
B. Regulation of Attorneys
Discussion Questions 3-5
C. The Attorney-Client Relationship
1. Confidentiality
a. Attorney-Client Privilege
b. Exceptions to Confidentiality
Discussion Question 6
People v. Belge County Court of New York, Onondaga
County
Case Discussion Questions
Discussion Questions 7-8
Spaulding v. Zimmerman
Case Discussion Questions
c. The Effect of Breaching a Confidence on the
Attorney-Client Privilege
In re Original Grand Jury Investigation
Case Discussion Questions
d. Responding to Suspected Client Perjury
Nix v. Whiteside
Case Discussion Questions
Discussion Questions 9-10
e. Inadvertent Disclosure of Confidential
Information
Discussion Questions 11-13
2. Conflict of Interest
Discussion Question 14
Commonwealth v. Croken
Case Discussion Questions
Discussion Questions 15-16
D. Access to Justice
1. Providing Services to Unpopular Clients and
Causes
Discussion Question 17
2. Making Legal Services Available to Low-Income
Clients
Gagnon v. Shoblom
Case Discussion Questions
Chapter Summary
p. xxviii
p. xxix
Critical Thinking Exercises
Web Exercises
Review Questions
Appendix A The Constitution of the United States
Appendix B NetNotes
Alternative Dispute Resolution (ADR)
Blogs
Business and Employment-Related Information
Commercial Legal Research Providers
The Court System
Criminal Law
Family Law
Free Legal Research
Government Sites
Legal Ethics
Litigation
Primary Material
Uniform Laws
Glossary
Table of Cases
Index
p. xxix
p. xxxi
Figure 1-1: Mandatory Authority
Figure 1-2: Possible Holdings for a Case
Figure 1-3: Seven Hints for Better Brief Writing
Figure 2-1: Functions of the U.S. Constitution
Figure 2-2: Judicial Statutory Interpretation versus Determination of Constitutionality
Figure 2-3: Sources of Law
Figure 3-1: How Lawyers Classify the Law
Figure 3-2: A Comparison of State and Federal Law
Figure 3-3: A Comparison of Civil and Criminal Law
Figure 3-4: A Comparison of Substantive and Procedural Law
Figure 4-1: A Comparison of Trial and Appellate Courts
Figure 4-2: The Federal Court System
Figure 4-3: District and Circuit Court Boundaries
Figure 4-4: The U.S. Supreme Court
Figure 4-5: Organization of a Typical State Court System
Figure 4-6: Jurisdiction of Federal Courts
Figure 4-7: Two Separate Questions: State or Federal Law and State or Federal Court?
Figure 5-1: Civil Procedure
Figure 5-2: Personal Jurisdiction
Exhibit 5-1: Complaint
Exhibit 5-2: Summons
Exhibit 5-3: Answer
Exhibit 5-4: Interrogatories
Figure 6-1: Bill of Rights Provisions Applied to the States
Figure 6-2: Tests Applied to Equal Protection Claims
Figure 7-1: Degrees of Fault
Figure 7-2: Summary of Intentional Torts
Figure 7-3: Negligence Summarized
Figure 7-4: History of Products Liability Law
Figure 7-5: Summary of Strict Liability
Figure 8-1: The Uniform Commercial Code
Figure 8-2: Does Article 2 of the UCC Apply?
Figure 8-3: Contract Classifications
Figure 8-4: Termination of an Offer
Figure 8-5: The UCC and Additional Terms
Figure 8-6: Warranties Summarized
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p. xxxii
Figure 8-7: Assignment of a Contract
Figure 8-8: Delegation of Duties under a Contract
Figure 8-9: Third-Party Beneficiaries
Figure 9-1: Leasehold Estates
Figure 9-2: Definition of Estate
Figure 9-3: A Decedent’s Intestate Heirs
Figure 10- A Comparison of the Basic Types of Businesses
1:
Figure 10- A Note
2:
Figure 10- A Draft or Check (For a check, the drawee is a bank.)
3:
Figure 10- How to Determine Whether a Holder in Due Course Has Been Created
4:
Figure 10- A Comparison of Attachment and Perfection
5:
Figure 10- Employees versus Independent Contractors
6:
Figure 10- Relationship between Employees, Independent Contractors, and Agents
7:
Figure 10- Summary of the Order of Proofs in Overt Discrimination Cases
8:
Figure 10- Three-Part McDonnell Douglas Analysis
9:
Figure 10- Summary of the Order of Proof in Disparate Impact Cases
10:
Figure 10- Analysis of Affirmative-Action Plans under Title VII
11:
Exhibit 11- Joint Petition for Divorce
1:
Figure 12- Classifications of Crime Based on Harm
1:
Figure 12- Insanity Tests
2:
Figure 12- Theories of Punishment
3:
Figure 13- Stages in Criminal Procedure
1:
Figure 13- Exceptions to the Warrant Requirement
2:
Figure 13- Typical Pretrial Motions
3:
Figure 14- A Comparison of the Ethical Rule Regarding Confidentiality and the Attorney-
1: Client Privilege
Figure 14- Attorney-Client Privilege: A Subset of Confidentiality
2:
Figure 14- Personal Conflict
3:
Exhibit 14- Contingent Fee Agreement
1:
p. xxxii
p. xxxiii
NEW TO THIS EDITION
For this fifth edition, we have updated the law, the NetNotes, and the
Web Exercises and added new Discussion Questions and Critical
Thinking Exercises. The overall organizational structure of the book
remains the same.
The following significant changes were made in the specified
chapters:
■ Chapter 1, Introduction to the Study of Law: enhanced
explanation of how to brief a case.
■ Chapter 2, Functions and Sources of Law: enhanced discussion
of executive orders and memoranda.
■ Chapter 5, Civil Litigation and Its Alternatives: Summary jury
trial information removed.
■ Chapter 6, Constitutional Law: new cases added, including
Packingham v. North Carolina; Masterpiece Cakeshop Ltd. v.
Colorado Civil Rights Commission; American Legion v.
American Humanist Association (replacing Van Orden v.
Perry). In addition, material throughout the chapter enhances
the discussion of the internet and the U.S. Constitution.
■ Chapter 7, Torts: new material added covering contemporary
torts related to the #MeToo movement, cyberbullying, and
cybertorts.
■ Chapter 9, Property and Estate Law: new case, Matal v. Tam,
added, discussion of cases relating to the Lanham Act
expanded.
■ Chapter 10, Laws Affecting Business: information added about
public benefit corporations; a new section added covering the
Family Medical Leave Act; chapter coverage tightened by
summarizing Diaz, McDonnell Douglas, and Griggs and by
adding summaries of additional contemporary cases, including
EEOC v. Costco and Gross v. FBL Services.
■ Chapter 11, Family Law: expanded coverage of the implications
of Obergefell v. Hodges throughout the chapter, added Terrell
v. Torres (replacing Szafranski v. Dunston) and a discussion of
DNA testing and its impact on family law.
■ Chapter 12, Criminal Law: new case, Commonwealth v. Carter,
added.
■ Chapter 13, Criminal Procedure: new cases added, including
Mitchell v. Wisconsin, addressing blood testing without a
warrant, and Carpenter v. U.S., addressing use of cell-site
locations without a search warrant.
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p. xxxiv
APPROACH
As the title indicates, in this book we use a critical thinking approach
to introduce readers to the study of law. We designed this book for
use in introductory law courses for students in any major, but
particularly for those in business, criminal justice, paralegal, prelaw,
and political science.
Rather than taking an approach that emphasizes the
memorization of definitions and rules, The Study of Law: A Critical
Thinking Approach focuses on the basic foundations of the law and
on the legal reasoning process. In addition to presenting an overview
of the legal system, this book teaches the basic skills necessary to
read and understand statutes and court cases.
We use this critical thinking approach because we believe it is the
best way for students to learn the fundamental principles of law. By
learning how to read and interpret statutes, cases, regulations, and
court documents, students will be better able to learn how the
American legal system functions. Therefore this book emphasizes
careful reading for detail, analytical thinking, and presentation of
arguments. The hypothetical cases, Discussion Questions, and
Critical Thinking Exercises incorporated throughout the text all serve
to help develop students’ critical thinking skills.
ORGANIZATION OF THE BOOK
Part 1, The American Legal System, introduces students to the study
of law and the organization of the legal system. It covers such topics
as sources of the law, the different ways in which law is classified,
and various stages involved in litigation.
Part 2, Substantive Law and Ethical Issues, introduces students to
basic concepts and terminology used in the most prominent
substantive areas of law. This section leads off with a chapter on
constitutional law, because constitutional law stands at the top of the
hierarchy of law and establishes the framework within which the legal
system operates. We then go on to cover key fundamental concepts
in torts, contracts, property and estate law, business law, family law,
and criminal law. In each chapter we blend traditional case law with a
discussion of cutting-edge developments to give students a solid
foundation in traditional concepts and an appreciation of the dynamic
nature of law. The final chapter probes the ethical dilemmas
attorneys face in the context of our adversary system.
Instructors may wish to alter the sequence in which they cover the
chapters, or even skip parts when time is limited. However, it is best if
instructors plan on covering Part One before selecting from the
substantive law chapters contained in Part Two.
KEY FEATURES
Among the many features that set this book apart are
■ The nature of the included cases
■ Marginal definitions of key terms
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p. xxxv
■ NetNotes
■ Critical Thinking Exercises
■ Discussion Questions integrated into each chapter
■ Web Exercises
■ Review Questions
Because this book stresses the critical thinking approach, we
illustrate our points with hypothetical situations and with real case
decisions that students will understand and to which they can relate.
The cases cover such topics as AIDS-infected blood transfusions,
battered woman’s syndrome, same-sex marriage, flag burning, the
insanity defense, search and seizure of automobiles, sexual
harassment, surrogate motherhood, and spousal immunity. We have
McBoyle v. United States, Palsgraf v.
also included such ‘‘classics’’ as
Long Island Railroad, Brown v. Board of Education, and Mapp v.
Ohio. Our philosophy in editing these and other cases was to retain
enough of the court’s wording to give students a realistic feel for how
judges actually write and to allow students to develop their critical
thinking skills. We deleted nonessential information in order to keep
each case a reasonable length.
Furthermore, the cases are fully integrated into the text. Many
times, these cases are cross-referenced in other cases and used to
show how the courts build on precedent and modify it in response to
changing societal conditions. Discussion Questions and Critical
Thinking Exercises call on students to carefully analyze these cases
and apply them to hypothetical situations.
Also of special note are the appendixes. Appendix A includes a
complete copy of the U.S. Constitution and Appendix B contains a
convenient listing of websites for legal resources.
An instructor’s manual that includes suggested answers for all the
Discussion Questions, Review Questions, and Critical Thinking
Exercises, as well as teaching tips, is available to help teachers make
the most effective use of this book. Also available are PowerPoint
slides to assist with classroom lectures and a computerized test
bank.
RELATIONSHIP TO THE AUTHORS’ OTHER TEXTS
Those familiar Introduction to Law for Paralegals: A Critical
with
Thinking Approach and Introduction to Paralegal Studies: A Critical
Thinking Approach will recognize many similarities to this text. All
three books emphasize the “critical thinking approach” to
understanding the law. All three include excerpts from court cases,
discussion questions, NetNotes, and references to ethical questions.
Topics such as sources of law, classification of the law, structure of
the court system, overviews of civil and criminal litigation, overviews
of torts, contracts, property law, and criminal law, and analysis of
statutes and cases are also covered in all three books.
However, where the other two books focus on the role of
paralegals, this text is designed for use in general education courses
about the nature of law and the operation of the legal system. In
addition to dropping the appendices on legal research and writing,
and references to tasks performed by paralegals, we
p. xxxv
p. xxxvi
have increased our coverage of constitutional law and placed more
emphasis on general education objectives.
ACKNOWLEDGMENTS
Naturally, we owe a great deal of thanks to the many students,
educators, paralegals, and attorneys who contributed ideas for this
book. We would also like to recognize Victoria Joseph for her
contribution to the criminal law chapter.
We would also like to thank the staff at Wolters Kluwer Law &
Business for the excellent support we have received on the books we
have done with them. We especially want to thank Betsy Kenny for
the key role that she played in handling this fifth edition.
Finally, a special thanks goes to our spouses and children for their
continued support and understanding of our professional activities.
Katherine A. Currier
Thomas E. Eimermann
Marisa Campbell
September 2019
p. xxxvi
p. 1
p. 1
p. 3
Introduction to the Study of Law
The study of the law qualifies a [wo]man to be
useful to self, to neighbors, and to the public.
Unknown
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain why it is important to study law.
■ Define cause of action and explain why one does not always
exist.
■ Discuss why enacted law frequently contains ambiguities.
■ Contrast mandatory with persuasive authority.
■ Define stare decisis and explain why it is important.
■ Use case briefing to summarize court opinions.
INTRODUCTION
The purpose of this text is to provide you with a general introduction
to the nature of our legal system. Our main goals are to help you
understand how the American legal system operates and to introduce
you to the legal principles that
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p. 4
form the basis of our law in areas such as criminal law, torts,
contracts, property, business organizations, and family law. You will
also develop the critical thinking skills you will need to understand
statutes, court opinions, constitutional provisions, and administrative
regulations.
In an effort to make difficult legal concepts more understandable,
we illustrate those concepts with references to “famous cases” you
may have heard about and to short factual scenarios created to
illustrate how people and businesses are affected by the law. Let’s get
started by introducing the first two of these hypothetical cases. Then
keep them in mind as you read the rest of this chapter and the
chapters that follow.
Case 1: The Distressed Grandfather
Approximately one year ago, Donald Drake and his six-year-old
grandson, Philip, were walking down a residential road on their way
home from visiting one of Philip’s friends. Philip was walking on
the sidewalk approximately 30 feet in front of Mr. Drake. Suddenly,
a car sped past Mr. Drake, seemingly went out of control, jumped
the curb, and hit Philip. Mr. Drake ran to Philip’s side, but it was too
late. Philip had been killed instantly. The driver of the car, Mrs.
Wilma Small, was unhurt. Based on skid marks and testimony
from both Mrs. Small and Mr. Drake, the police investigation
following the accident determined that excessive speed was the
cause of the accident.
Mr. Drake said that at the time of the accident his only concern
was for the welfare of his grandson because he himself was clear
of the danger. Naturally, Mr. Drake suffered a great deal of mental
pain and shock because of seeing his grandson killed. While being
driven home from the accident, he suffered a heart attack that
necessitated a lengthy hospital stay.
One year later, he still does not feel completely recovered and
often suffers from nightmares reliving the accident and his
grandson’s death. He wonders if he can sue Mrs. Small to recover
for his hospital bills and for his pain and suffering.
Case 2: The Harassed Student
Wanda Smith, a twenty-two-year-old college student, was
walking past a construction site on campus when several of the
construction workers began to whistle and make cat calls. Wanda
did not appreciate being treated as a sex object and greatly
resented the way in which these construction workers were
behaving.
After talking it over with a few of her friends, Wanda decides to
talk to one of the attorneys at Darrow and Bryan to see if she can
take legal action. She does not want other women to have to
undergo similar treatment and wonders if she can collect damages
for mental suffering.
p. 4
p. 5
A. WHY STUDY LAW
Why study law? First, law plays an essential role in everyone’s life. It
provides guidelines on how people should interact with one another.
The criminal codes prohibit theft, assault, battery, rape, murder, and
many other offenses. The tax codes require that individuals and
businesses give part of their income to the government.
Environmental laws prohibit the dumping of raw sewage into lakes
and rivers. Civil rights laws protect against discrimination and
harassment.
In addition to defining what constitutes appropriate behavior, the
law provides a mechanism for resolving the conflicts and
disagreements that arise among us without resorting to personal
violence. When individuals violate a section of the criminal law, the
government takes responsibility for bringing them to trial and for
administering an appropriate punishment. If one person’s negligence
injures others, that person can be required to compensate the injured
parties for the damages caused by this negligent act. When persons
fail to carry out the terms of a contract, the state can either force
them to do so or force them to pay damages that resulted from their
failure to live up to their agreement.
Second, you have no doubt heard the saying “Ignorance of the law
is no excuse.” Every educated citizen should have a basic
understanding of our legal system and our laws.
Third, learning about the law and how the legal system works is a
lot of fun. Although most legal disputes never make it to trial, those
that do often involve high drama, with captivating rhetoric and
surprising testimony. When a select few of those cases reach the
appellate level, we see judges crafting new law that can have a
tremendous impact on our lives. One only needs to think of the United
States Supreme Court case Roe v. Wade and the continuing
controversy over a woman’s right to abortion.
Finally, the study of law is a challenging and rewarding intellectual
exercise. Interpretation of the law involves the application of logic and
other critical thinking skills. These critical thinking skills can be
usefully applied in many different fields of endeavor.
B. LEGAL ANALYSIS
The critical ability to understand the relevant law and apply it to a new
fact situation is known as legal analysis. Legal analysis will help you
develop the critical thinking skills needed to understand statutes,
court opinions, constitutional provisions, and administrative
regulations. These critical skills include analyzing the facts,
identifying the appropriate legal rules, and applying the legal rules to
the facts.
Keep the stories of the two hypothetical cases from the beginning
of the chapter in mind as we discuss the three basic steps in
analyzing a legal situation.
■ Reviewing the underlying situation that is creating the legal
problem and analyzing the “relevant” facts;
■ Reading and understanding the appropriate legal rules; and
■ Applying those legal rules to the relevant facts.
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p. 6
1. Identifying the Relevant Facts
The first step in legal analysis is to review and identify the relevant
facts. The answer to any legal question depends on the specific facts
of the individual case. Even a minor change in the facts can alter the
outcome of the case.
Just as a medical doctor cannot give a competent medical
diagnosis without a thorough examination of the patient, a lawyer
cannot render legal advice without a complete understanding of all
the relevant facts. Some areas of the law, such as those dealing with
negligence or landlords and tenants, are particularly fact bound. For
example, assume a stranger approaches an attorney at a party with a
question such as: “My landlord is trying to evict me. Can he do that?”
or “My husband is trying to get custody of my kids. Will he succeed?”
It would be impossible for the attorney to answer without gathering a
lot more information and personally reviewing key documents.
2. Reading and Understanding the Appropriate Legal Rules
After meeting with a potential client, the first thing that an attorney
needs to determine is whether the client has a valid cause of action
or, if the client is charged with a crime or is being sued, a valid
defense. A cause of action can be defined as a claim that, based on
the law and the facts, is sufficient to support a lawsuit. For example,
in Wanda Smith’s case, she was clearly upset and disturbed by what
had happened to her. However, that does not mean she has a legal
remedy. Her lawyers will have to prove not only that the construction
workers harassed and upset her but also that these actions violated
some law. It is important to understand that not every problem is a
problem for which the courts will supply a remedy.
Thus, the second stage of legal analysis involves the identification
of the specific provisions of the law that are applicable to the
situation. Because there are so many laws at the federal, state, and
local levels, and because the law covers such a wide variety of topics,
it is impossible for anyone to know everything there is to know about
the law. The law is far too complex for any individual to be able to
commit it all to memory. Furthermore, because the law is constantly
changing, one’s legal knowledge must be continually updated.
Therefore, even lawyers who specialize and strive to keep current by
reading legal newspapers, journals, and bar publications on a daily
basis may still need to do legal research. Law books and online
computer databases are the tools of the trade for the legal
professional.
When conducting legal research, attorneys focus on the two main
sources of law:
1. enacted law and
2. court-made law (common law).
Enacted law can be further subdivided into constitutional, statutory,
and administrative law.
What follows is a brief overview of enacted law and court-made
law. We will continue this discussion on the sources of law in Chapter
2.
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p. 7
a. Understanding Enacted Law: Constitutions, Statutes,
Ordinances, and Regulations
While some of the most important laws, such as freedom of
speech, can be found in the U.S. and state constitutions, most
everyday legal problems are governed by statutes, local ordinances,
or agency regulations. Statutes are enacted by the U.S. Congress or
state legislatures; ordinances are laws enacted by local governments;
and regulations are laws promulgated by state and federal
administrative agencies. All these different forms of law are general
rules that apply to future conduct.
The challenge faced by those drafting enacted law is to precisely
describe what they want to require or prohibit without being able to
fully anticipate all the circumstances in which the law may be applied
in the future. Trying to lay down rules today for situations that will
arise in the future is a difficult task.
Consider a situation in which a town council received citizen
complaints about a group of teenagers who had been riding their
motorcycles on the paths of the town’s parks. Not only are
motorcycles noisy, but the citizens were afraid that one day an
accident would occur and a child walking down one of the paths
could be injured. So to deal with this problem, the council passed the
following ordinance:
It shall be unlawful to operate any vehicle on town park paths. Violators will be subject to
a $100 fine for the first offense and up to a $500 fine for each additional offense.
Following the passage of this ordinance the following five events
took place in a town park:
1. For a “lark,” two teenagers drove a Jeep Cherokee down one of
the park paths.
2. The garbage collector backed his truck approximately six feet
down one of the park paths to pick up garbage from one of the
trash receptacles.
3. A child pushed a doll’s baby carriage along a park path.
4. An ambulance drove down one of the park paths to pick up a
man who had collapsed in the middle of the park.
5. An adult rode a bicycle along the park path.
Based on a literal reading of the town’s new ordinance, all five of
these situations are violations of the law. All five involve a “vehicle”
being on a park path. However, while the town council undoubtedly
wished to ban joyriding Jeep Cherokee drivers as much as it wanted
to ban joyriding motorcycle riders, it is highly unlikely that it actually
wished to prohibit situations two, three, four, and five. The problem is
that the language they chose was more inclusive than they had really
intended, and now all five parties are technically guilty of violating the
ordinance.
This example illustrates how difficult it is to draft a law that
encompasses only what you are trying to prohibit. It also illustrates
how ambiguities in a statute may not appear until new, unanticipated
events occur. Therefore, although on its face a statute may seem
straightforward, always remember that even the most seemingly
clear language can be ambiguous when applied to a new factual
situation.
In addition to statutory ambiguities resulting from sloppy
draftsmanship or applications to unanticipated circumstances, there
are also times when the
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p. 8
drafters purposely write the ambiguity into the statute in order to
provide a basis for compromise by glossing over conflicts among the
legislators. In situations where such ambiguities occur, it ultimately
falls to the courts to interpret the language in the context of specific
cases. Throughout this text, we will see examples of the courts
grappling with such problems of statutory interpretation.
b. Understanding Court Opinions
In this text, you will be reading many court opinions. In court
opinions, the judge drafting the opinion will give a summary of the
relevant facts — the law that is being applied to those facts and the
court’s decision as to the outcome of the case. The law being
discussed could be based upon enacted law, a constitutional
provision, statutory language, or a regulation, or it could be based on
something known as the common law. Common law is court-made
law created when there is no enacted law covering the situation.
(1) How to read a court opinion
The first thing you need to do, when reading a court opinion, is to
take note of the court — for example, whether it is a state or federal
court — and the date on which the case was decided. These are
critical factors because they relate to the very important differences
between mandatory authority and persuasive authority. Whereas
judges are expected to decide cases consistently with those of higher
courts in the same system, they can consider but do not have to
follow the decisions of other courts at their same level or from
another system.
Figure 1-1 shows the hierarchical nature of mandatory authority. A
decision handed down by a court is mandatory authority for those
courts below it connected by an arrow. For example, a federal district
court in the First Circuit is required to follow the decisions of the
federal court of appeals for the First Circuit. But the decisions of the
Second Circuit court of appeals are only persuasive authority for the
First Circuit district courts. Likewise, the decisions of state A’s highest
appellate court are mandatory authority for state A’s intermediate
appellate and trial courts, but they are only persuasive authority for
state B’s courts. This process of looking to precedent — prior cases —
for guidance is known as following the doctrine of stare decisis.
Stare decisis literally means the decision stands.
The first section of a court opinion usually starts with a
discussion of the facts of the case. These facts can be divided into
two groups: substantive facts and procedural facts.
The substantive facts deal with what happened to the parties
before the litigation began — that is, with why one party is suing the
other.
When reading a court opinion, look for answers to the following
questions:
■ Who were the parties in this legal dispute?
■ Who did what to whom that created the conflict being litigated?
■ Which party initiated the legal action (either civil suit or criminal
prosecution)? What did the various parties want the court to
do?
Procedural facts refer to what happened in the lower courts or
administrative agencies as well as the action taken by the appellate
court issuing the
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p. 9
opinion. For example, in the trial court did the plaintiff win after a jury
verdict, or did the plaintiff lose on a motion to dismiss? These
procedural facts are sometimes referred to as the judicial history of
the case.
Figure 1-1 Mandatory Authority
After reviewing the facts, the court will move on to discuss the
legal issues raised in the case. It is not unusual for a court opinion to
address multiple issues in a single opinion. These legal issues usually
relate to how the law should be interpreted or applied to the facts of
the case being decided. The discussion of the issue will often include
references to cases that the court wishes to rely on as precedent.
There may also be references to prior cases that the court rejects as
precedent either because they are not relevant to the precise issue
being decided or because the court disagrees with the prior court’s
reasoning.
The opinion will conclude with a section that announces the
official decision reached by the majority of the judges participating. In
addition to declaring how the law is to be interpreted, it will usually
include directions as to what is to happen next. These directions
constitute what is called the disposition of the case. If the court
agreed with the actions of a lower court, it will simply affirm the lower
court’s decision. If the court found that an error
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p. 10
was committed, it will reverse the actions of the lower court and
remand the case back for further actions consistent with the way the
court interpreted the law.
In cases where there is more than one judge, a decision can be
unanimous, but often not all of the judges agree on the result or the
reason for reaching that result. When this occurs, a majority opinion
represents the final opinion of the court and is binding. In addition,
those not fully agreeing with the majority may choose to file either a
concurring or a dissenting opinion. While these concurring and
dissenting opinions have no legal effect on the outcome of the case,
concurring opinions can affect the way the law is interpreted in the
future, and dissenting opinions can provide arguments that may sway
other judges in future cases.
The following is a court opinion dealing with facts similar to those
Mr. Drake experienced. As you read the case, pay careful attention to
the facts, the rule the court applied to those facts, how the court
resolved the case, and finally its reasoning for finding as it did. Keep
in mind that court decisions can be quite complex, and judges often
use a writing style that is different from the sorts of writing with
which you are likely accustomed. Therefore, always plan on reading
the case at least twice. The first time, focus on getting the “big
picture.” On the second reading you can pay more attention to the
details and take notes. We will be discussing one method of note
taking, called briefing a case, in the next section, after you have read
Dillon v. Legg.
(2) Sample case: Dillon v. Legg
Dillon v. Legg
68 Cal. 2d 728, 441 P.2d 912 (1968)
TOBRINER, Justice.
[O]n. . . September 27, 1964, defendant drove his automobile in
a southerly direction on Bluegrass Road near its intersection with
Clover Lane in the County of Sacramento, and at that time
plaintiff’s infant daughter, Erin Lee Dillon, lawfully crossed
Bluegrass Road. [D]efendant’s negligent operation of his vehicle
caused it to “collide with the deceased Erin Lee Dillon resulting in
injuries to decedent which proximately resulted in her death.”
Plaintiff’s [complaint] alleged that [the mother] “was in close
proximity to the . . . collision and personally witnessed said
collision.” She further alleged that “because of the negligence of
defendants [she] sustained great emotional disturbance and shock
and injury to her nervous system” which caused her great physical
and mental pain and suffering.
[D] efendant . . . moved for judgment on the pleadings,
contending that “No cause of action is stated in that allegation that
plaintiff sustained emotional distress, fright or shock induced by . .
. witnessing of negligently caused injury to a third person.” The
court granted a judgment on the pleadings against the mother
[and she] appealed from the judgment.
p. 10
p. 11
That the courts should allow recovery to a mother who suffers
emotional trauma and physical injury from witnessing the infliction
of death or injury to her child for which the tort-feasor is liable in
negligence would appear to be a compelling proposition.
Nevertheless, past American decisions have barred the
mother’s recovery. Refusing the mother the right to take her case
to the jury, these courts ground their position on an alleged
absence of a required “duty” of due care of the tortfeasor to the
mother. [They state] the imposition of duty here would work
disaster because it would invite fraudulent claims and it would
involve the courts in the hopeless task of defining the extent of the
tortfeasor’s liability. In substance, they say, definition of liability
being impossible, denial of liability is the only realistic alternative.
We have concluded that neither of the feared dangers excuses
the frustration of the natural justice upon which the mother’s claim
rests.
1. This court in the past has rejected the argument that we
must deny recovery upon a legitimate claim because other
fraudulent ones may be urged.
. . .
The possibility that some fraud will escape detection does not
justify an abdication of the judicial responsibility to award
damages for sound claims: if it is “to be conceded that our
procedural system for the ascertainment of truth is inadequate to
defeat fraudulent claims . . . , the result is a virtual
acknowledgment that the courts are unable to render justice in
respect to them.”
Indubitably juries and trial courts, constantly called upon to
distinguish the frivolous from the substantial and the fraudulent
from the meritorious, reach some erroneous results. But such
fallibility, inherent in the judicial process, offers no reason for
substituting for the case-by-case resolution of causes an artificial
and indefensible barrier. Courts not only compromise their basic
responsibility to decide the merits of each case individually but
destroy the public’s confidence in them by using the broad broom
of “administrative convenience” to sweep away a class of claims a
number of which are admittedly meritorious.
2. The alleged inability to fix definitions for recovery on the
different facts of future cases does not justify the denial of
recovery on the specific facts of the instant case; in any event,
proper guidelines can indicate the extent of liability for such
future cases.
In order to limit the otherwise potential infinite liability which
would follow every negligent act, the law of torts holds defendant
amenable only for injuries to others which to defendant at the time
were reasonably foreseeable.
. . .
Since the chief element in determining whether defendant
owes a duty or an obligation to plaintiff is the foreseeability of the
risk, that factor will be of prime concern in every case. Because it is
inherently intertwined with foreseeability such duty or obligation
must necessarily be adjudicated only upon a case-by-case basis.
We cannot now predetermine defendant’s obligation in every
situation by a fixed category; no immutable rule can establish the
extent of that obligation for every circumstance of the future. We
can, however, define guidelines which will aid in the resolution of
such an issue as the instant one.
In determining, in such a case, whether defendant should
reasonably foresee the injury to plaintiff, or, in other terminology,
whether defendant owes plaintiff a duty of due care, the courts will
take into account such factors as the following: (1) Whether
plaintiff was located near the scene of the accident as contrasted
with one who was a distance away from it. (2) Whether the shock
resulted from a direct emotional impact upon plaintiff from the
sensory and contemporaneous observance of the accident, as
contrasted with learning of the accident from others after its
occurrence. (3) Whether plaintiff and the victim were closely
related, as contrasted with an absence of any relationship or the
presence of only a distant relationship.
The evaluation of these factors will indicate the Degree of the
defendant’s foreseeability: obviously defendant is more likely to
foresee that a mother who observes an accident affecting her child
will suffer harm than to foretell that a stranger witness will do so.
Similarly, the degree
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of foreseeability of the third person’s injury is far greater in the
case of his contemporaneous observance of the accident than
that in which he subsequently learns of it. The defendant is more
likely to foresee that shock to the nearby, witnessing mother will
cause physical harm than to anticipate that someone distant from
the accident will suffer more than a temporary emotional reaction.
All these elements, of course, shade into each other; the fixing of
obligation, intimately tied into the facts, depends upon each case.
In light of these factors the court will determine whether the
accident and harm was reasonably foreseeable. Such reasonable
foreseeability does not turn on whether the particular defendant as
an individual would have in actuality foreseen the exact accident
and loss; it contemplates that courts, on a case-to-case basis,
analyzing all the circumstances, will decide what the ordinary man
under such circumstances should reasonably have foreseen. The
courts thus mark out the areas of liability, excluding the remote
and unexpected.
In the instant case, the presence of all the above factors
indicates that plaintiff has alleged a sufficient prima facie case.
Surely the negligent driver who causes the death of a young child
may reasonably expect that the mother will not be far distant and
will upon witnessing the accident suffer emotional trauma.
We are not now called upon to decide whether, in the absence
or reduced weight of some of the above factors, we would
conclude that the accident and injury were not reasonably
foreseeable and that therefore defendant owed no duty of due care
to plaintiff. In future cases the courts will draw lines of
demarcation upon facts more subtle than the compelling ones
alleged in the complaint before us.
. . .
To deny recovery would be to chain this state to an outmoded
rule of the 19th century which can claim no current credence. No
good reason compels our captivity to an indefensible orthodoxy.
The judgment is reversed.
BURKE, J., Dissenting
The majority, obviously recognizing that they are . . . embarking
upon a first excursion into the “fantastic realm of infinite liability,”
undertake to provide so-called “guidelines” for the future. But
notwithstanding the limitations which these “guidelines” purport to
impose, it is only reasonable to expect pressure upon our trial
courts to make their future rulings conform to the spirit of the new
elasticity proclaimed by the majority.
Upon analysis, [the majority’s guidelines] seeming certainty
evaporates into arbitrariness. . . . What if the plaintiff was honestly
mistaken in believing the third person to be in danger or to be
seriously injured? . . . How “close” must the relationship be between
the plaintiff and the third person? I.e., what if the third person was
the plaintiff’s beloved niece or nephew, grandparent, fiancé, or
lifelong friend, more dear to the plaintiff than her immediate
family? Next, how “near” must the plaintiff have been to the scene
of the accident, and how “soon” must shock have been felt? Indeed,
what is the magic in the plaintiff’s being actually present? Is the
shock any less real if the mother does not know of the accident
until her injured child is brought into her home? On the other hand,
is it any less real if the mother is physically present at the scene
but is nevertheless unaware of the danger or injury to her child
until after the accident has occurred? No answers to these
questions are to be found in today’s majority opinion.
It appears to me that in the light of today’s majority opinion the
matter at issue should be commended to the attention of the
Legislature of this state. . . . [I]f all alleged California tortfeasors,
including motorists, home and other property owners, and
governmental entities, are now to be faced with the concept of
potentially infinite liability beyond any rational relationship to their
culpability, then surely the point has been reached at which the
Legislature should reconsider the entire subject and allow all
interests affected to be heard.
I would affirm the judgment.
p. 12
p. 13
Now that you have read Dillon v. Legg, it is time to turn our
attention to stylized legal note taking, called case briefing.
(3) Briefing court opinions
The word brief has several meanings in the legal field. In this
chapter, we use the phrase briefing a case or case briefing to refer to
the process of summarizing the most important elements of a court
decision in a standardized format. This is to be contrasted with an
appellate brief, which is a formal written argument to an appellate
court, in which a lawyer argues why that court should affirm or
reverse a lower court’s decision.
(a) Reasons for briefing cases Briefing court opinions serves two
purposes. First, and most important, it makes you read the case
thoroughly. You have to go back and dig out the essentials, organize
them, and state them in your own words. This is necessary for an
adequate understanding of the court opinion. Second, it is a form of
note taking that provides a condensed record of the most important
information about the case you briefed. You can use these case briefs
to refresh your memory when preparing for class or studying for
exams.
(b) Format of a case brief While most case briefs share many
common features, there is no single format that is universally
accepted within the legal community. Indeed, there are almost as
many different briefing styles as there are attorneys writing briefs.
What we present here is an approach that we think will help you
organize your thoughts and understand the opinion.
The case briefing method we will be using in this chapter breaks
the case down into the following elements: (i) case citation, (ii) facts
— both procedural and substantive, (iii) rule, (iv) issue, (v) holding, (vi)
reasoning, and (vii) criticism. After you read the opinion once, put the
case citation on top of the paper, and list the next six items on the left
side of the paper, leaving enough room opposite each for the
appropriate information. Reread the opinion and fill in the various
items.
Although you list the items in a specific order, you may find
yourself filling them in out of order. That is fine. Case briefing is a
circuitous process. You will often rewrite one part of your brief as
your understanding of that part changes based on your work on other
parts. As with any type of writing, thinking and writing are intertwined.
A more detailed explanation of the content and purpose of each
section of a case brief is provided below. As you finish reading the
specific directions for each part of the brief, try your hand at briefing
Dillon v. Legg. Then look at how that section was worded in the
sample case brief on page 17.
(i) Case citation The case citation goes at the top. The citation
should contain enough information to let the reader know (1) the
name of the case, (2) the court that decided it, (3) where the reader
can locate it, and (4) the year of decision. It is important to include the
date of the opinion as precedents are sometimes overruled by more
recent decisions. You may also want to indicate the page number in
your textbook. For example, this case was between Margery M. Dillon
and David Luther Legg. It was decided by the Supreme Court of
California. The reader could locate it on page 68 of volume 728 of the
California Supreme Court Reports, Second Series. You could also find
it on page 441 of volume 912 of the Pacific Reporter, Second Series.
Therefore, you would cite our example case in the following manner:
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p. 14
Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968)
(ii) Facts Include a summary of both kinds of facts: substantive
and procedural. Recall that substantive facts deal with what
happened to the parties before the lawsuit begin, that is, why are they
suing each other? The most difficult part of this section is
determining how much detail to include. Be sure to state the relevant
facts in your own words rather than copying them directly from the
opinion. Omit any facts that you think did not form the basis of the
court’s decision, but be sure to include all facts that the court relied
on in reaching its decision.
When giving the facts, it is always best to be as precise as
possible. For example, if the case involves an eight-year-old girl, and
you think her age and sex matter, do not simply say the case involved
a child. However, if an accident occurred at 222 Main Street, but the
precise location is not important, there is no need to mention the
address.
For the procedural facts, be sure to include what happened in the
lower court or courts. For example, in the trial court, did the plaintiff
or the defendant win? Also, report the final disposition of the case —
for example, did the appellate court affirm or reverse, and if it
reversed, did it also remand? You will usually find the court's
disposition near the end of the opinion, stated in a few words such as
reversed or vacated and remanded.
Some legal writers prefer to put the court’s disposition in a
separate section rather than including it with the other procedural
facts. If you include the disposition with the procedural facts,
however, then the reader can see the “whole story” right at the
beginning of the brief.
Facts: A mother saw her daughter run over and killed by a negligent
driver. She sued for the emotional distress she suffered in
witnessing the accident. The trial court dismissed her claim;
reversed.
(iii) Rule The rule is a general legal principle in existence before
the case began that the court uses to reach the decision in this case.
These rules can come from a constitution, statute, regulation, or a
previous court decision. Our sample brief would contain the following
statement of the rule.
Rule: There can be no recovery for emotional distress from simply
observing the death of another.
(iv) Issue(s) A court opinion will include one or more issues. The
issue has two components: first, the rule of law that the court used to
resolve the current dispute and, second, the specific facts of the case
to which the rule of law is being applied. You have already given these
in the first two sections of the brief. Now you need to create one
sentence that tells your reader exactly why the parties are in court.
Include the rule and enough of the facts to make it clear why the
issue is an issue; that is, let the reader see what the fight is all about.
This is the hardest part of briefing a case, so do not get discouraged
if this takes some practice.
p. 14
p. 15
Issue: Whether a mother can recover for the emotional distress she
suffered upon seeing the negligently caused death of her daughter
despite the current rule that denies recovery for an injury caused by
observing the death of another.
Notice how the issue contains both the rule and the specific facts
involved in the case. Given the rule of law in existence prior to these
parties going to court and given the specific facts of the case, what
problem must the court resolve? That is the issue. Be sure to state
the issue in an unbiased manner. Do not slant the issue by giving
conclusions and make sure to include facts that show both sides of
the issue.
(v) Holding The holding is the court’s answer to the issue. The
holding is the new version of the rule, a rule that future courts will
look to for assistance in deciding similar cases.
If you have given a complete issue statement, technically the
holding could be a simple yes or no answer. However, it is always best
to give the holding as a complete declarative sentence using the
same elements as you did for the issue.
One of the most difficult aspects of developing the holding is
determining how narrow or broad it should be. A narrow holding
contains many of the case’s specific facts, thereby limiting its future
applicability to a narrow range of cases. A broad holding states the
facts in very general terms so that the holding will apply to a wider
range of cases. See Figure 1-2.
To be useful, a holding should be broad enough to help courts
resolve similar cases, but not so broad as to stand for no more than a
general legal principle. Learning how to state a holding either very
narrowly, by including very specific facts, or very broadly, by stating
the facts as generalizations only, is a skill you will acquire over time.
For now, state your holdings narrowly. As with the facts portion of the
brief, you will find it easier to amend a narrow holding to make it
broader than you will to amend a broad holding to make it narrower.
However, even with a narrow holding, include only those facts that
you think truly affected the court’s decision.
Holding: Yes, a mother who witnesses the negligently caused death
of her child can recover for emotional distress.
Also be sure to include any possible limitations to the holding. If
the court specifically states that its decision covers only a certain set
of circumstances, your brief should make that clear. For example, in a
case dealing with a social
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p. 16
host’s liability for serving alcohol to a minor, a court might relieve the
social host of any responsibility but limit its holding to situations
where alcohol is not being served for a profit.
Figure 1-2 Possible Holdings for a Case
Finally, note that the court’s procedural answer (reversed,
remanded, affirmed, and so on) can never be the holding. That is the
disposition. The holding is always a statement of the new rule that
results from the court’s decision.
(vi) Reasoning This is an explanation of why the court ruled as it
did, stated in your own words. The court’s reasoning gives you your
best clue as to how the court may act in the future in a different but
similar situation.
Pinpoint as far as is possible the explicit and implicit reasons that
the court gave to justify its holding. But do not quote the court’s exact
language unless the precise phrasing is critical. It will be easier for
the reader to understand your summary if it is primarily in your own
words.
In analyzing the reasoning, you need to distinguish between the
ratio decidendi and obiter dictum. The ratio decidendi is a decision
on the legal issues raised in that specific case, whereas obiter dictum
(sometimes just referred to as dicta) refers to a comment a judge
makes that is not necessary to the resolution of the case. For
example, it is dictum when a judge talks about what might have been
if the facts had been different from the ones presented. Even though
courts have power to decide only the precise case with which they
are faced, human nature being what it is, judges often cannot resist
discussing issues that were not really presented to them. While that
part of the opinion will have no effect on the litigants, it could give you
a very good clue as to how the court might decide a different case in
the future.
Reasoning: Traditionally, there have been two arguments advanced
for precluding such suits: 1) a fear of fraudulent claims; and 2) a
fear of indefinable claims. The court discounted both fears. As to
the fear of fraudulent claims, the court stated that even if some
fraud were to occur, that does not justify denying recovery for valid
cases. Besides, in every type of case, it is ultimately the
responsibility of the courts to distinguish the valid from the
fraudulent claim. As to the second concern, a fear of indefinable
claims, the court said that was no reason to deny recovery in this
specific case, where no one would deny that a mother seeing her
child killed would suffer great harm, and that guidelines could be
established to set the extent of liability in future cases. The
guidelines the court developed provide that the following factors
should be taken into account: 1) how close the plaintiff was to the
scene of the accident; 2) whether the plaintiff observed the
accident or heard about it later; and 3) how closely related the
plaintiff was to the victim.
(vii) Criticism Take a few minutes to think critically about the
case. Do you think it was appropriate and well justified? If not, why
not? If you agree with the result, do you think the court gave the best
or only reasons for reaching that result? If the court included a
limitation in the holding, what problems do you think that will cause
for future litigants?
If there were concurring or dissenting opinions, include a
discussion of their reasoning. Remember that a concurring decision
is one in which the judge agrees with the majority's result but not with
the reasoning. A dissenting opinion is one in which the judge
disagrees with both the majority's result and its reasoning. While only
the majority opinion represents the court’s view, what individual
concurring and dissenting judges have to say can influence later
courts.
p. 16
p. 17
Criticism: The dissenting judge thought the guidelines raised more
questions than they answered and that such an important change
in the law should come from the legislature, not the courts.
I agree that the guidelines are a bit vague and will be difficult to
apply in new situations. For example, will “closely related” be
determined by familial status or by an actual investigation into how
involved the plaintiff was in the victim’s life?
Do not be discouraged if you find the criticism section one of the
most difficult parts of the brief to write. It is the court’s job to
convince you that it has reached the right result for the right reasons.
Therefore, your first reaction may be to simply agree with everything
it says. Resist that inclination. Remember that the case would not
have been appealed unless someone thought there were two sides to
the issue. Take a look at Figure 1-3 for some additional helpful hints
for briefing a case.
(4) Sample brief for Dillon v. Legg
Dillon v. Legg
68 Cal. 2d 728, 441 P.2d 912 (1968)
Facts: A mother saw her daughter run over and killed by a
negligent driver. She sued for the emotional distress
she suffered in witnessing the accident. The trial
court dismissed her claim; reversed.
Rule: There can be no recovery for emotional distress
Issue: from simply observing the death of another.
Whether a mother can recover for the emotional
distress she suffered upon seeing the negligently
caused death of her daughter despite the current
rule that denies recovery for an injury caused by
observing the death of another.
Holding: Yes, a mother who witnesses the negligently caused
death of her child can recover for emotional
distress.
Reasoning: Traditionally, there have been two arguments
advanced for precluding such suits: 1) a fear of
fraudulent claims; and 2) a fear of indefinable
claims. The court discounted both fears. As to the
fear of fraudulent claims, the court stated that even
if some fraud were to occur, that does not justify
denying recovery for valid cases. Besides, in every
type of case, it is ultimately the responsibility of the
courts to distinguish the valid from the fraudulent
claim. As to the second concern, a fear of
indefinable claims, the court said that was no
reason to deny recovery in this specific case, where
no one would deny that a mother seeing her child
killed would suffer great harm, and that guidelines
could be established to set the extent of liability in
future cases. The guidelines the court developed
provide that the following factors should be taken
into account: 1) how close the plaintiff was to the
scene of the accident; 2) whether the plaintiff
observed the accident or heard about it later; and 3)
how closely related the plaintiff was to the victim.
Criticism: The dissenting judge thought the guidelines raised
more questions than they answered and that such
an important change in the law should come from
the legislature, not the courts.
I agree that the guidelines are a bit vague and will
be difficult to apply in new situations. For example,
will “closely related” be determined by familial
status or by an actual investigation into how
involved the plaintiff was in the victim’s life?
p. 17
p. 18
1. Read the Case First, Then Brief
Do not try to brief the case as you read it for the first time. Read it
through, underlining if you wish and making notes in the margin,
before you start your brief.
2. Develop a Workable Style
Develop a briefing style that works best for you. As mentioned
above, there is no right or wrong method. However, if your brief is to
serve its intended purpose, you must write it in such a way that you
can return to it later and easily find the information for which you
are looking.
3. Write Based on the Needs of Your Reader
If you will be using the brief just as a reference for yourself,
abbreviate commonly used terms. For example, use π or P. for
plaintiff and Δ or D. for defendant. You may also want to write in
phrases rather than complete sentences.
4. Cross-reference
Develop a cross-reference system that will allow you to find the
court’s full discussion of the points you summarized in your brief.
For example, you could place numbers in the margin of the case to
correspond to the points you discuss in your brief.
5. Paraphrase
Write the brief in your own words. A brief should not be a long
series of quotations, so do not copy large parts of the opinion. A
brief is your summary of the case, not merely a listing of quotations
from it.
6. Use a Dictionary
Make sure you understand every unfamiliar legal term. Initially, you
will find the courts using many unfamiliar terms, some of which will
be specialized legal terms. Others, however, will simply be “normal
English” you do not know. Do not hesitate to turn to a legal
dictionary or an English language dictionary for help.
7. Use but Do Not Be Misled by the Court's Choice of Terminology
While courts will rarely explicitly label the parts of their opinions
using the terms issue, holding, reasoning, and so on, they often use
language that provides helpful clues. For example, while not saying
“The rule is . . . ,” they might say something like “The law in this area
has long been . . . ” Do not be surprised if the court appears to be
“mislabeling” various parts of the case. For example, a court might
call something its holding when it is really reasoning.
Figure 1-3 Seven Hints for Better Brief Writing
3. Applying the Legal Rules to the Facts
The final stage of legal analysis involves applying the legal rules
found in enacted laws and court decisions to a specific set of facts,
such as those of Donald Drake or Wanda Smith. This process is
known as legal reasoning. If
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p. 19
the legal rules appear to be unambiguous and to apply to the client’s
situation, an attorney can confidently advise clients as to the legal
consequences of anticipated acts or recommend steps that they
should take to protect themselves.
Frequently, however, the law will be ambiguous, and there will be
no prior cases with the exact same set of facts. Then the attorney
should alert the client as to this uncertainty and assist the client in
deciding on an appropriate course of action. Should the matter end
up in court, the attorney will need to use legal reasoning to develop
the best available arguments to support the client’s position.
However, there will be no clear answer as to how an ambiguous rule
will be applied until an appellate court resolves the issue. Those are
the cases that are often the most interesting to read as the ambiguity
in the law’s language or its applicability to a new set of facts forces
the court to also consider the policy concerns behind the law.
In order to find out how similar situations have been handled in
the past, an attorney will examine prior court decisions — precedent
— and then apply them to the client's decision. If the facts of the
client’s situation and a prior court decision are similar, the two
situations are analogous. If they are analogous, it is likely that the
result in the client’s case will be similar to the result reached in the
prior case. If the facts are significantly different, the two situations
are distinguishable. Because they are distinguishable, it is likely that
the result in the client’s case will not be the same as the result
reached in the prior case. As you progress through this text, you will
learn a lot more about the importance of stare decisis to our legal
system. But for now, it is enough to understand that the doctrine of
stare decisis is what gives our system its stability and predictability.
As we will see, however, stare decisis also gives the courts enough
flexibility to allow for change as the needs of our society change.
For example, think about Mr. Drake’s situation and the Dillon v.
Legg court decision. If a court were asked to apply that decision to
Mr. Drake’s facts, how do you think he would fare? Factually, do you
think the court would view a mother and a grandfather as similar? On
policy grounds, do you think the court would tend to resolve the issue
of recovering for emotional distress the same way in situations
involving mothers as in those involving grandfathers?
If you discuss this with your classmates, you may find that you
differ as to the “right” answer. But in reality, there are no “right”
answers, only better or worse arguments. Any decision about what
the law should be is a choice between competing values.
Finally, sometimes there are no rules that govern the situation. For
example, while there are both federal and state statutes that protect
employees from sexual harassment, under current law Ms. Smith
does not appear to have a cause of action against the construction
workers.
Prior to the enactment of those state and federal statutes giving
protection to workers against sexual discrimination, Ms. Smith would
not even have had a cause of action if she had been harassed by her
employer. But as societal values change, the law usually changes as
well. In recent years, our society has become more sensitive to issues
of gender equality, and new laws have been developed to provide new
protections. Sometime in the future, someone in Ms. Smith’s position
may have a cause of action that does not exist today.
p. 19
p. 20
DISCUSSION QUESTIONS
1. Why do you suppose there are certain types of harm, such as
the humiliation Ms. Smith felt when the construction workers
whistled at her, that courts will not help individuals resolve?
2. Do you think it is right that employees can go to court and sue
their bosses for sexual harassment? Why? If the harasser were a co-
worker instead of a boss, how would you view the situation? What if
the harasser was a customer?
CHAPTER SUMMARY
Law is an important topic for study because it directly or indirectly
affects almost every aspect of your daily life. Besides defining what
constitutes appropriate behavior, the law also provides a mechanism
for resolving conflicts and disagreements without resorting to
personal violence. It is also good to study the law because it is a
challenging intellectual exercise that involves the application of logic
and other critical thinking skills that can be useful in many different
endeavors.
Legal analysis involves analyzing the “relevant” facts, reading and
understanding the appropriate legal rules, and applying those rules to
the relevant facts. In order to understand legal rules, you need to learn
how to read and interpret constitutions, statutes, and court decisions.
You also need to be able to understand all sides of an issue, including
the intended consequences of a law and its possible unintended
consequences.
A case brief provides a condensed record of the most important
information about the cases you read, and the process of briefing a
case helps you to understand what was actually decided and how the
court justified its decision.
Do not be dismayed if you are sometimes overwhelmed by the
complexity and the sheer volume of legal concepts and materials.
Learning law is a lot like learning a foreign language. Although many
of these terms may be new to you now, they will become increasingly
familiar as you progress through the text. In the end you will be
amazed at how these diverse pieces end up fitting into a logical and
effective system.
CRITICAL THINKING EXERCISES
1. Assume John shipped obscene music CDs from
Massachusetts to California. He has been charged with violating a
federal criminal statute that prohibits interstate shipment of any
obscene “book, pamphlet, picture, motion picture, film, paper, letter,
writing, print or other matter of indecent character.” Has he violated
the statute?
2. John Smith tried to buy cocaine from an undercover officer.
Instead of cash, he offered to sell his fully automatic MAC-10 firearm.
According to the court, the MAC-10 is “a favorite among criminals. It
is small and compact,
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p. 21
lightweight, and can be equipped with a silencer. Most important of
all, it can be devastating: A fully automatic MAC-10 can fire more than
1,000 rounds per minute.” After Mr. Smith was arrested, he was
charged with drug-trafficking crimes, including an attempt to possess
cocaine with intent to distribute. He was also charged with violating a
federal statute that mandates a 30-year sentence if a defendant
“during and in relation to any crime of drug trafficking uses a firearm.”
The defendant argued that within the context of the statute, “uses”
means to use the firearm as a weapon, which he did not do. One
method that courts frequently use for interpreting statutes is known
as the plain meaning approach. In this case, the prosecution argued
that the plain dictionary meaning of the term “uses” meant the
defendant “used” the firearm to try to purchase the cocaine. If you
were the judge, how would you resolve the case?
3. A Florida motorist was issued a citation for having flashed his
vehicle’s headlights, apparently to warn on-coming motorists of a
speed trap. The statute under which he was charged states: “Flashing
lights are prohibited on vehicles except as a means of indicating a
right or left turn, to change lanes, or to indicate that the vehicle is
lawfully stopped or disabled upon the highway.” What argument could
the motorist make to show that he did not violate this statute? How
would the prosecution argue he did violate the statute? Who do you
think has the better argument?
4. List all of the ways in which you think Mr. Drake’s case is
similar to that of Dillon v. Legg. Then list all of the ways in which you
think Mr. Drake’s case could be likened to that of a bystander. Do you
think a court would see Mr. Drake’s case as more similar to that of the
mother in Dillon v. Legg or to that of a bystander? Are there additional
facts that you think the court would want to know before reaching its
decision?
WEB EXERCISES
1. Go to lp.findlaw.com. Under “For Consumers,” scroll down and
click on the ‘‘Featured Articles’’ button. Scan the headlines and
select one.
a. What is the title of the article you read?
b. Give a brief summary of the article.
c. Why did you select that particular article?
2. In this chapter you were introduced to the case of Donald Drake,
the grandfather who suffered emotional distress when he saw his
grandchild hit and killed by a negligent driver. Most states now
allow a person to recover for the emotional distress they suffer
when they see someone else injured or killed so long as they have
a close relationship with the person injured. But do you think
someone who witnesses her pet dog being attacked and killed by
another dog should be able to recover for the emotional distress
this caused her? That was one of the issues raised in a case from
Indiana. Your task is to find that case and see how the court
answered the question of whether pet owners should be able to
recover for emotional distress.
a. Most states maintain a website on which they publish their
most recent appellate court decisions. To find this Indiana
case, first go to
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https://www.in.gov/judiciary/opinions/archapp2005.html.
Then find Sean T. Lachenman v. Mitchell & Josephine Stice,
11/30/05. Click on the link.
b. Read the first few pages of the case and especially the
description of the attack on Ms. Lachenman’s dog that
occurred on September 30, 2002.
c. Return to the beginning of the case and do a search for ‘‘pet
dog.’’ (You can simply type the words ‘‘pet dog’’ in the search
box and press enter.) Read what the court says on page 16
about the claim for negligent infliction of emotional distress.
Why didn’t the court allow the Lachenmans to recover?
d. Do you agree with the court’s decision?
REVIEW QUESTIONS
1. Why does the study of law involve more than simply memorizing
rules?
2. What is legal reasoning?
3. What is the doctrine of stare decisis, and why is it important?
4. Why is it important to know whether a set of facts is analogous to
or distinguishable from those in prior court decisions?
5. What is a cause of action? What does it mean to say that a
person does not have a valid cause of action?
6. Why does the law change? Should it?
7. Why is there no one “right” answer to a legal problem?
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Functions and Sources of Law
We hold these truths to be self-evident. . . .
Declaration of Independence
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Define “law” and explain its role in our modern society.
■ Describe the two main functions of the U.S. Constitution.
■ Explain what federalism is and how it affects our legal system.
■ Explain the rationale behind our system of checks and
balances.
■ Contrast statutory law with administrative law and executive
orders.
■ Compare enacted law to the common law.
■ Describe the “hierarchy of the law.”
INTRODUCTION
No modern society can exist without a strong legal system, and when
a person has a problem or is trying to avoid a problem, that person
frequently turns to lawyers and the legal system for help. In this
chapter we explore the role of law in American society and the
sources of that law.
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Most people recall something from high school civics class about
there being three branches of government and that the legislature
makes the law, the executive branch enforces the law, and the courts
interpret the law. The truth is that the legislative, executive, and
judicial branches are all involved in making the law. The legislature
makes laws by enacting statutes, executive agencies make law by
promulgating regulations, and the judicial branch makes law by virtue
of how it interprets and applies it in specific situations.
To help illustrate the application of constitutional, statutory,
administrative, and common law, we will be referring to the following
case involving a pregnant waitress, Diane Dobbs, who has brought
her problem to her attorney Pat Harper of the law firm Darrow and
Bryan. As you read the chapter, think about the nature of Ms. Dobbs’s
problem, and the extent to which the law may, or may not, provide a
remedy for her.
Case 3: The Pregnant Waitress
Ms. Diane Dobbs had been employed by the Western Rib Eye
Restaurant for the past three years. Throughout that time her work
record had been exemplary. Customers often spoke to the
manager to tell him how Diane’s service and personality
contributed to their especially enjoyable dining experience at the
restaurant.
Six months ago Diane, who is not married, found out that she
was pregnant. When she approached her manager, Ben, to discuss
arrangements for a maternity leave, instead of the favorable
reception she had expected, Ben reached over, patted her stomach,
and said, “Well, I guess we can’t have you working for us any
longer.” Ben then grabbed her by the arm and escorted her out of
the restaurant. Diane protested and asked to be allowed to collect
her personal belongings from her locker, but the manager just
laughed and said she was “history.” When Diane began to cry, he
softened his demeanor a little and said, “Look, we simply can’t
have a pregnant lady working here. It just wouldn’t be good for
business.”
Although she has been actively looking, Diane has not yet been
able to find suitable employment.
When a client presents a problem to an attorney, the attorney will
seek to identify which laws are relevant to solving the problem and
what steps need to be taken to utilize those laws on the client’s
behalf. However, as we indicated in Chapter 1, not every problem can
be resolved by the legal system. In order to better appreciate why this
is so, we need to study the function of law, the history of our
American legal system, and the sources of our laws.
As you read about the different sources of law, answer the
following questions relating to this case:
■ Does the waitress have a constitutional claim against her
employer?
■ Does the waitress have a statutory claim against her employer?
■ Does the waitress have an administrative claim against her
employer?
■ Is there a provision in common law that gives the waitress a
claim against her employer?
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A. FUNCTIONS AND THEORIES OF LAW
The development and enforcement of the law are essential
governmental functions in all developed societies. Although the laws
themselves sometimes differ, they serve the same essential functions
in all 50 states and at the federal level.
1. Definition of Law
It is our laws — rules of conduct promulgated and enforced by the
government — that define the types of conduct that are either
prohibited or required. For example, a criminal code usually prohibits
the unauthorized taking of property that belongs to someone else.
Tax laws require that certain types of individuals or corporations give
part of their income to the government. The laws can apply to the
behavior of individuals, businesses, and even governments
themselves. Thus, municipalities may be prohibited from dumping
raw sewage into lakes and rivers and the police prohibited from
conducting unreasonable searches and seizures.
To be considered laws, these rules of conduct must be
promulgated and enforced by the appropriate governmental bodies.
For example, only the U.S. Congress can make federal statutory law,
and only a state’s highest court can authoritatively interpret the
meaning of that state’s laws.
These rules of conduct also carry with them certain sanctions
that can be imposed on those who fail to follow the rules. When
individuals violate a section of the criminal law, they may be fined,
sent to prison, or in some cases even suffer loss of life. Persons who
are found liable under the civil law may be forced to pay various
penalties or damage awards or to perform some action, such as
carrying out the terms of a contract. Police who conduct illegal
searches and seizures may be denied the right to use in court any
evidence they find and may even be forced to pay damages to the
injured parties. Even presidents can be cited for contempt of court if
they fail to turn over subpoenaed materials.
2. Functions of Law
While there may be a great deal of debate over the wisdom and
appropriateness of a particular law (as there is, for example, over the
ownership of handguns), there is general agreement that laws
themselves are necessary. As the Task Force on Law and Law
Enforcement reported to the National Commission on the Causes
and Prevention of Violence:
Human welfare demands, at a minimum, sufficient order to insure that such basic needs
as food production, shelter and child rearing be satisfied, not in a state of constant
chaos and conflict, but on a peaceful, orderly basis with a reasonable level of day-to-day
security. . . . When a society becomes highly complex, mobile, and pluralistic; the
beneficiary, yet also the victim, of extremely rapid technological change; and when at the
same time, and partly as a result of these factors, the influence of traditional stabilizing
institutions such as family, church, and community wanes, then that society of
necessity becomes increasingly dependent on highly structured, formalistic systems of
law and government to maintain social order. . . . For better or worse, we are by
necessity increasingly committed to our formal legal institutions as the paramount
1
agency of social control.
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It has thus been increasingly left to the legal system to define and
enforce the rules of society. Some of these rules, such as restrictions
on abortions, pornography, and gambling, are heavily influenced by
the religious and moral beliefs of various groups in the society, while
others, such as traffic regulations, have no moral content at all. In
either case, laws help to provide the type of order and predictability
that are essential elements of our modern society.
3. Theories of Jurisprudence
Jurisprudence is a term used to refer to philosophical approaches to
legal questions. Natural law theory and legal positivism relate to the
standards used for judging what constitutes a “valid” law, whereas
legal formalism and legal realism involve alternative means used for
interpreting the meaning of the law.
Most of you have probably heard references to natural law before
— especially if you have had a philosophy course or studied Catholic
theology. Since the time of the ancient Greeks, natural law theorists
have asserted that man-made law should be based on timeless and
immutable principles that can be discovered through careful thought
and humanity’s innate sense of right and wrong. They believe the
purpose of having governments and laws is to protect the natural
rights that are inherent in these principles. Therefore, the laws that
governments enact are to be respected when they reflect these
natural laws but should be resisted when they do not conform to
these natural laws.
This natural law philosophy has had a great influence on the
development of the American legal system and is reflected in our
Declaration of Independence, which includes the following:
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life,
Liberty, and the Pursuit of Happiness.
In the 1960s, the Reverend Martin Luther King, Jr. used natural
law as a justification for civil disobedience in his fight against racial
segregation, stating that one has a moral responsibility to disobey
“unjust laws.” Today, you will often hear politicians, especially the
proponents of the “Tea Party” movement and the “Progressive”
movement, refer to natural law as a justification for working to repeal
laws with which they disagree. But, of course, people differ as to what
they view as just or unjust, and society’s views, as to what rights are
“unalienable,” change as the world changes.
An alternative to the natural law theory is known as legal
positivism. Supporters of this approach believe that the validity of a
law is determined by the process through which it was made rather
than by the degree to which it reflects natural law principles. To a
legal positivist, a law is valid as long as it was passed by the
appropriate lawmaking agency.
A second area of jurisprudence provides alternative means for
interpreting the law and the extent to which judges simply apply the
law versus create the law. Formalists believe that the proper role of
the judge is to do the former — that is, simply to apply the law. They
view the law as a complete and autonomous system of logically
consistent principles. Judges can find the “correct result” by simply
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making logical deductions. Judges serve as impartial technicians
who simply identify the proper, preexisting rule and then apply it to
the facts of the case. Social policy and the judge’s private views are
considered irrelevant.
Legal realists, on the other hand, reject the formalists’ assertion
that judges’ decisions are reached by a strict application of the
principles of logic. They point out that judges must frequently decide
between contradictory rules and that the laws being interpreted are
often vague and ambiguous. Realists argue that the elastic nature of
the English language makes it possible for judges to expand or
contract the meaning of any given rule. In these situations, judges
can interpret the wording of the statutes and prior cases to justify
different outcomes. The number of five-to-four and six-to-three split
votes in controversial U.S. Supreme Court cases is often cited as
proof that these decisions are not determined solely by logic.
But if, as the realists assert, logic alone is insufficient to explain
judicial decisions, what then does determine how judges decide
cases? Some realists suggest that judges simply seek interpretations
that will advance the public values and social goals to which they
subscribe. Others argue that realism involves going beyond the
confines of the law to determine the social consequences of the
alternative outcomes. To assist in this process, judges should look to
the expertise that can be provided by the social sciences, specifically
psychology, sociology, and economics. Some of the influential
schools of thought that come out of this multidisciplinary approach
include “law and economics” and “critical legal studies.”
An illustration of the realist approach can be found in the 1954
Supreme Court case of Brown v. Board of Education. 2
That case
raised the question of whether segregated public schools could
provide “separate but equal” education. In 1896, in Plessy v.
Ferguson, 3
the Court had found that segregated railway cars did not
violate the Fourteenth Amendment so long as they provided “equal”
accommodations. However, rather than relying on the legal precedent
established by Plessy, the Court in Brown looked beyond the law and
recognized studies done by social scientists that concluded that
segregation in the public schools had a detrimental effect upon black
children because it generated feelings of inferiority “that may affect
4
their hearts and minds in a way unlikely ever to be undone.” Based
upon this data, the Court concluded that “[s]eparate educational
5
facilities are inherently unequal.” Today, lawyers routinely present
policy arguments in support of their client’s position in an effort to
convince the court that finding for their side is not only “legally” but
also “socially” desirable.
Therefore, few scholars still argue that judicial decisions should
be determined solely by the rules of logic. However, there remains
considerable disagreement as to how far judges should be given
discretion, especially in the area of constitutional interpretation.
Prominent political conservatives, such as former Supreme Court
Justice Antonin Scalia, argue for a strict construction that narrowly
interprets the text of the Constitution in a manner that is consistent
with what most people understood those words to mean at the time
6
that they were written. This view
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is often referred to as originalism. Scalia argued that such an
approach will keep judges from substituting their own political views
for those of the original drafters.
In contrast to this strict construction approach, others argue that
judges should seek to determine the underlying goal or value that the
drafters had in mind at the time they wrote the law. Then they should
select the modern-day option that best advances that goal or value.
This view is sometimes labeled the evolutionary or “living law”
approach. We discuss both of these approaches in greater detail in
“Approaches to Statutory and Constitutional Interpretation” on pages
104–06 in Chapter 4.
Of course, many legal thinkers embrace more than one theory of
how law should be viewed. Consider the following remarks of Justice
Benjamin Cardozo:
My analysis of the judicial process comes then to this, and little more: logic, and history,
and custom, and utility and the accepted standards of right conduct, are the forces
7
which singly or in combination shape the progress of the law.
As you read the cases that are contained in this book, stop and
analyze them in terms of these different perspectives of the role of
law and how law is made. Did they include references to the natural
law? How much discretion did the precedents leave to the judge?
What values were aligned with each of the possible outcomes?
DISCUSSION QUESTIONS
1. Do you agree with the statement “Laws are necessary”? Many
believe we have too many laws today. Do you agree? If you do, which
laws should be eliminated? Do we need additional laws in some
areas?
2. Can you think of ways, other than those mentioned in the text,
that natural law theory has influenced the development of American
law?
3. One of the basic principles of the natural law theory is that
people should not have to obey an unjust law.
a. Do you agree? Why or why not?
b. Who should make the determination as to when a law is
unjust? A judge or the individual? What criteria should be
used to make this judgment?
c. What do you think the signers of the Declaration of
Independence meant when they stated, “[A] ll men are
created equal”?
d. What laws did Martin Luther King, Jr. consider to be contrary
to natural law?
4. To what extent should natural law or religious principles
influence the content of enacted law?
5. Which of the theories of jurisprudence discussed in this text do
you think best explains how law should work?
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6. There is an old joke about a lawyer who was asked, “What is
two plus two?” The lawyer responded, “What do you want it to be?”
Which legal theory does this best exemplify? Is it necessarily a bad
thing that we live in a world where two plus two does not always have
to be four?
B. SOURCES OF LAW
We will begin our discussion of the sources of law with a look at
constitutional law, our most fundamental source of law. Take a few
minutes now to turn to Appendix A at the back of this book to see
how the U.S. Constitution is organized.
1. Constitutional Law
To fully appreciate our federal constitution, it is important to
remember that before it was adopted, our country was governed for a
brief period as a confederation. During and immediately following the
American Revolution, the Continental Congress, consisting of
delegates from each of the colonies, was created in order to govern
the newly forming United States. One of its first acts was to pass the
Declaration of Independence and then, after the conclusion of the
war, to adopt the Articles of Confederation.
The type of government created by those Articles is known as a
confederation — that is, an alliance in which each of the members
retains their natural sovereign powers. The result was a very weak
national government consisting of a single legislative chamber. It had
no authority to levy taxes and, therefore, had to rely on voluntary
contributions from its member states. In addition, the confederation
found it impossible to pass and enforce laws whenever individual
states thought certain laws were in conflict with the best interests of
its citizens. These and other problems with the confederation led to
the holding of the Constitutional Convention and to the adoption of
the U.S. Constitution.
The United States was the first nation to adopt a written
constitution, and it is that Constitution that provides the framework
within which all our laws are made. The Constitution established an
organizational structure for allocating governmental powers and
through the amendment process added protections for individual
rights. The manner in which these two functions are handled in the
U.S. Constitution is summarized in Figure 2-1.
a. Organization of Government
As to the first major function, establishing an organizational
structure for the government on the national level, the Constitution
divides governmental powers among the legislative (Article I),
executive (Article II), and judicial (Article III) branches. This is
commonly referred to as the separation of powers, but it is more
accurate to describe this as a system of shared powers exercised by
separate branches of government. Because they share power, each
branch of government has the ability to limit the actions of the other
branches.
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Functions of the U.S. Constitution
1) Establish the Organization of Government
a. Federal Government: Three Branches (Separation of Powers; Checks and Balances)
i. Legislative (Article I)
ii. Executive (Article II)
iii. Judicial (Article III)
b. Division of Power between the Federal and State Governments: Federalism (Tenth
Amendment)
2) Protect Individual Rights from Governmental Overreaching (Bill of Rights)
Figure 2-1 Functions of the U.S. Constitution
In the Federalist Papers, James Madison explained that this
system of checks and balances is designed to guard against “a
gradual concentration of the several powers in the same department.”
For example, under the Constitution, Congress has the power to make
laws, but the President has the power to veto them. The executive
branch is responsible for administering the law, but it cannot spend
money to do so unless Congress provides for the appropriate funding
in the budget. And while the President appoints federal judges, those
appointments do not become final unless the Senate votes to
confirm.
The check and balance most relevant to the legal system is the
power of judicial review. The U.S. Constitution and its amendments
constitute the “supreme law of the land,” and based on the concept of
judicial review, it is left up to the courts to determine what the
Constitution means and whether laws passed by the legislative
branch are constitutional or whether the law is valid. We will return to
this very important concept of judicial review later in this section.
The U.S. Constitution also divides governmental power between
the national government and the states. This division of power
between the national government and the states is referred to as
federalism. Certain powers are explicitly granted to the federal
government, while all others are reserved to the states and to the
people.
b. Protection of Individual Rights
The second major function of the U.S. Constitution is to protect
individual rights from governmental overreaching. Because the first
Congress perceived a lack of such protection in the Constitution, as
soon as it was ratified, the members began work on the first ten
8
amendments, commonly known as the Bill of Rights. These ten
amendments include protections, such as freedom of speech and
press, freedom of religion, a privilege against self-incrimination, the
right to an attorney and a trial by jury, and safeguards against
unreasonable searches and seizures.
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p. 31
At the time the Bill of Rights was written, the major concern of the
drafters was overreaching by the federal government, not
overreaching by the state governments. Therefore, they wrote the
amendments specifically to address limits only to the federal
government’s power. For example, the First Amendment states:
“Congress shall make no law . . . abridging the freedom of speech.”
During the Civil War, however, it became clear that the states could
also be guilty of infringing on the rights of their citizens, and the
Thirteenth (banning slavery), Fourteenth (guaranteeing due process
and equal protection), and Fifteenth Amendments (right of all to vote)
were added with language that made it clear that they applied to the
states.
Gradually, in a series of cases, the U.S. Supreme Court interpreted
the Fourteenth Amendment’s prohibition against states depriving any
person of “life, liberty, or property, without due process of law” as
meaning that many of the rights contained within the Bill of Rights
also apply to the states. This is known as the doctrine of
incorporation. We discuss this doctrine more fully in Chapter 6,
Constitutional Law, but in the meantime, note that the first ten
amendments, along with the Fourteenth Amendment, serve to
prevent state — not just federal — government officials from
interfering with our civil rights and liberties.
Notice that the Constitution’s Bill of Rights limits the actions of
governments, but not those of ordinary individuals. In order to invoke
the personal rights covered in the Bill of Rights, it is necessary to
establish that a government agency, or one of its authorized agents,
is responsible for violating an individual’s freedom of speech, free
exercise of religion, right to privacy, etc. This is known as the state
action requirement.
Therefore, in our opening scenario involving the pregnant
waitress, the restaurant manager may have violated a federal or state
statute prohibiting sex discrimination, but because he acted as a
private citizen, rather than as an agent of the government, the
manager could not be charged with violating any of the waitress’s
constitutional rights.
c. Power of Judicial Review
It could be argued that because the U.S. Constitution established
three coequal branches, each branch should be free to interpret the
Constitution as it sees fit. However, the practical consequences of
that would create a legal disaster. Somebody must have the final say
when it comes to interpreting the meaning of a constitution, and in an
1803 Supreme Court decision, Chief Justice John Marshall claimed
what is now known as the power of judicial review.
In Marbury v. Madison, 9
the U.S. Supreme Court held it was
inherent in the nature of a court’s work to have to resolve conflicting
interpretations of the law before it can carry out its assigned task of
applying the law. If a court determines that a statute does not
conform to the Constitution, then the statute is invalid and the court
cannot enforce it.
It is emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound and interpret
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that rule. If two laws conflict with each other, the courts must decide on the operation of
each.
So if a law be in opposition to the constitution; if both the law and the constitution apply
to a particular case, so that the court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the constitution, disregarding the
law; the court must determine which of these conflicting rules governs the case. This is
of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any
ordinary act of the legislature; the constitution, and not such ordinary act, must govern
10
the case to which they both apply.
Over the years, the U.S. Supreme Court has used this power of
judicial review to invalidate a number of federal and state laws that it
found to be in conflict with the U.S. Constitution. Some of the most
controversial of the more recent applications of judicial review include
decisions invalidating state laws involving racial segregation,
abortion, and same-sex marriage.
Whenever the courts use their power of judicial review and find a
governmental action unconstitutional, the legislative and executive
branches are powerless to reverse that particular decision.
Legislatures do have some other options, however. First, they can
sometimes enact new laws to accomplish their intended goal if they
can do so without violating the constitutional provision in question.
Alternatively, they could start the extremely difficult process of
amending the Constitution to more explicitly allow them to do what
they wanted to do.
DISCUSSION QUESTION
7. Arguably, if Congress passes a statute, it means that the
majority of both the House and the Senate believed it was not in
conflict with the Constitution. Why should the decision of the people’s
elected representatives be overridden by unelected, appointed
judges?
In addition to determining the constitutionality of statutes, the
courts are often called upon to determine the meaning of the
Constitution itself. The Constitution was written more than 200 years
ago and uses broad, sweeping terminology such as “freedom of
speech,” “establishment of religion,” “unreasonable searches and
seizures,” and “cruel and unusual punishment.” It is often difficult to
determine the meaning of such ambiguous phrases, especially when
applied to a specific situation. Under the power of judicial review, the
U.S. Supreme Court has the final say regarding the interpretation of
those ambiguous constitutional provisions. Therefore, in order to
study constitutional law, one must look beyond the text of the
document and also review relevant court decisions. In Chapter 6 you
will have the opportunity to learn more about constitutional law and
to read some of the most important court decisions that have shaped
its interpretation.
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d. State Constitutions
Each of the 50 states also has a written constitution that defines
the organization and powers of its government. Most also include an
equivalent of the federal Bill of Rights. Each highest state court is the
final arbiter of what its state constitution means.
In the past many attorneys tended to ignore their own state’s
constitutional provisions. Recently, however, there has been an
increase in litigation based on state constitutional law. This is partly
because many state constitutions provide for more protection of
individual rights than does the federal constitution.
In the following case, a school board instituted random drug
testing of its student athletes in response to a survey that found
significant drug and alcohol problems in the student body: 40 percent
of sophomores reported having used illegal drugs. The U.S. Supreme
Court had ruled that a similar drug testing program in another state
did not violate the Fourth Amendment of the U.S. Constitution.
Therefore, the plaintiffs in this case, parents of student athletes,
brought this lawsuit in state court, alleging that the drug testing
violated their children’s rights under their state constitution.
York v. Wahkiakum School District No. 200
163 Wash. 2d 297, 178 P.3d 995 (2008)
SANDERS, J.
The question before us is whether random and suspicionless
drug testing of student athletes violates article I, section 7 of the
1
Washington State Constitution.
The school district claims random drug testing, without any
individualized suspicion, is constitutional.
. . .
As part of the policy, all student athletes must agree to be
randomly drug tested as a condition of playing extracurricular
sports. The drug testing is done by urinalysis, with the student in
an enclosed bathroom stall and a health department employee
outside. The sample is then mailed to Comprehensive Toxicology
Services in Tacoma, Washington.
. . .
We are aware there are strong arguments, policies, and
opinions marshaled on both sides of this debate, but we are
concerned only with the policy’s constitutionality. And while we are
loath to disturb the decisions of a local school board, we will not
hesitate to intervene when constitutional protections are
implicated.
. . . The United States Supreme Court has held such activity
does not violate the Fourth Amendment to the federal constitution.
Vernonia Sch. Dist., 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d
564. But we have never decided whether a suspicionless, random
drug search of student athletes violates article I, section 7 of our
state constitution.
. . .
The Wahkiakum School District modeled its policy after the one
used by the Vernonia School District. But simply passing muster
under the federal constitution does not ensure the survival of
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the school district’s policy under our state constitution. The Fourth
Amendment provides for “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. Therefore, a Fourth
Amendment analysis hinges on whether a warrantless search is
reasonable, and it is possible in some circumstances for a search
to be reasonable without a warrant.
Our state constitution provides, “No person shall be disturbed in
his private affairs, or his home invaded, without authority of law.”
Wash. Const. art. I, § 7. It is well established that in some areas,
article I, section 7 provides greater protection than its federal
counterpart — the Fourth Amendment. . . .
This requires a two-part analysis. First, we must determine
whether the state action constitutes a disturbance of one’s private
affairs. Here that means asking whether requiring a student athlete
to provide a urine sample intrudes upon the student’s private
affairs. Second, if a privacy interest has been disturbed, the second
step in our analysis asks whether authority of law justifies the
intrusion. The “authority of law” required by article I, section 7 is
satisfied by a valid warrant, limited to a few jealously guarded
exceptions. Because the Wahkiakum School District had no
warrant, if we reach the second prong of the analysis we must
decide whether the school district’s activity fits within an exception
to the warrant requirement.
[T]he school district claims student athletes have a lower
expectation of privacy. Certainly, students who choose to play
sports are subjected to more regulation. . . . And certainly there is
generally less privacy in locker rooms than in other parts of a
school. But the district does not link regulations and the communal
atmosphere of locker rooms with a student’s lowered expectation
of privacy in terms of being subjected to suspicionless, random
drug testing. We do not see how what happens in the locker room
or on the field affects a student’s privacy in the context of
compelling him or her to provide a urine sample.
. . .
Because we determine that interfering with a student athlete’s
bodily functions disturbs one’s private affairs, we must address the
second prong of the article I, section 7 analysis: does the school
district have the necessary authority of law to randomly drug test
student athletes?
We have long held a warrantless search is per se unreasonable,
unless it fits within one of the “jealously and carefully drawn
exceptions.”
. . .
The few times we have allowed suspicionless searches, we did
so either relying entirely on federal law or in the context of criminal
investigations or dealing with prisoners. . . . In Olivas, 122 Wash. 2d
at 83, 856 P.2d 1076, we upheld blood tests of convicted felons
without individualized suspicion. And recently in State v. Surge,
160 Wash. 2d 65, 156 P.3d 208 (2007), we held a DNA sampling of
convicted felons did not violate article I, section 7. That case
allowed for warrantless testing without individualized suspicion
because we asserted such testing did not disturb a reasonable
right to privacy. But these cases present far different factual
situations from drug testing student athletes. A felon has either
already pleaded guilty or been found guilty beyond a reasonable
doubt of a serious crime; a student athlete has merely attended
school and chosen to play extracurricular sports. Most troubling,
however, is that we can conceive of no way to draw a principled
line permitting drug testing only student athletes. If we were to
allow random drug testing here, what prevents school districts
from either later drug testing students participating in any
extracurricular activities, as federal courts now allow, or testing the
entire student population?
We cannot countenance random searches of public school
student athletes with our article I, section 7 jurisprudence. As
stated earlier, we require a warrant except for rare occasions,
which we jealously and narrowly guard. We decline to adopt a
doctrine similar to the federal special needs exception in the
context of randomly drug testing student athletes. In sum, no
argument has been presented that would bring the random drug
testing within any reasonable interpretation of the constitutionally
required “authority of law.”
Accordingly, we hold the school district’s policy 3515 is
unconstitutional and violates student athletes’ rights secured by
article I, section 7.
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CASE DISCUSSION QUESTIONS
1. In addressing the issue of whether student athletes have the
constitutional right to be free from suspicionless random drug
testing, the Washington Supreme Court engaged in a two-part
analysis. In the first part of that analysis, the court discussed whether
student athletes have a lower expectation of privacy. How did the
court resolve that question? Do you agree with its reasoning?
2. In the second part of its analysis, the court discussed whether
it should carve out an exception for schools to the normal
constitutional requirement of obtaining a warrant prior to a search. It
concluded it should not. How did the differing language in the Fourth
Amendment of the U.S. Constitution and section 7 of the Washington
Constitution help the court in reaching that conclusion?
3. After this decision, student athletes in Washington could no
longer be subjected to random drug testing. However, in the
neighboring state of Oregon students have no such protection. Under
our federal system, how is that possible? Do you think that is a fair
result?
NETNOTE
You can read the full text of the Declaration of Independence, the
Constitution, and the Bill of Rights at the National Archives website:
archives.gov/founding-docs.
You can also view the Constitution and the Bill of Rights at Find
Law:
constitution.findlaw.com/articles.html
constitution.findlaw.com/amendments.html
2. Statutory Law
As explained above, federal and state constitutions delineate the
general framework within which the government must operate.
Although these documents do list some major substantive and
procedural rights, they were not designed to contain the types of
detailed laws and regulations we need to operate in today’s complex
society. Rather, the federal and state constitutions specifically
delegate the power to make these laws to the legislative branches of
government. The laws that these legislative bodies make are usually
referred to as statutes or codes.
At the federal level, the legislative power rests with the U.S.
Congress. The process of creating a statute starts with the
introduction of a bill in either the House of Representatives or the
11
Senate. Bills are assigned to an appropriate committee. The
committee often conducts hearings on the bill’s merit and then
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votes on whether it should be brought to the full House for
consideration. For the bill to become law, the Constitution requires a
12
majority vote of both the House and the Senate, and the language
of the Senate and House bills must be identical. If it is not, then a
conference committee made up of members of both houses is
formed to try to work out language agreeable to a majority of both
chambers. If it can do so, and a majority of both the House and
Senate pass the bill, then it is sent to the President. If the President
signs the bill, a new statute will have been created. If the President
does not want to see the bill become law, the President can veto the
13
proposed law. Congress can override a presidential veto but only
with a vote of at least two-thirds of both chambers.
At the state level, legislatures also create statutory law. In
addition, a variety of local bodies such as city councils and village
boards enact ordinances.
These statutes and ordinances lay down general rules that
govern future conduct. They are general in the sense that they apply
to broad categories of people rather than to specific individuals.
Furthermore, the requirements they impose generally cannot be
applied to actions taken before the law went into effect.
The formulation of such future-oriented rules is a difficult task,
because legislatures cannot foresee all the possible circumstances
that might arise. Statutes therefore often contain general prohibitions
that are somewhat ambiguous and open to differing interpretations.
Ambiguity in statutes can also result from sloppy draftsmanship or
be inserted unintentionally in an effort to avoid creating conflicts
among the legislation’s supporters.
An example of the ambiguity contained in statutes can be found in
the following excerpt from Title VII of the 1964 Civil Rights Act. It
states:
It shall be an unlawful employment practice for an employer (1) to . . . discriminate
against any individual . . . because of such individual’s race, color, religion, sex, or
14
national origin.
Recall the situation of Diane Dobbs mentioned at the beginning of
the chapter. Was the restaurant manager discriminating against
Diane Dobbs because of her sex when he fired her for being
pregnant? While the statute clearly states that employers cannot
discriminate on the basis of sex, it is not clear what types of actions
should be considered sex discrimination.
After the enactment of Title VII some people argued that
pregnancy discrimination should be considered a form of sex
discrimination because only
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women can become pregnant. Others argued that it should not be
considered sex discrimination because the differential treatment is
based on the condition of being pregnant rather than on the
employee’s sex. Although only women can become pregnant, the
employer was legitimately differentiating between two different types
of women — those who were pregnant and those who were not —
rather than discriminating between women and men.
As with ambiguities in constitutional provisions, when
disagreements such as this arise over the meaning of a statute, a
court must resolve the ambiguity. Thus, in Gilbert v. General
Electric, 15
the U.S. Supreme Court was called upon to determine if
discrimination based on pregnancy was a form of sex discrimination
under Title VII. The Supreme Court ruled in Gilbert that Title VII
allowed employers to discriminate based on pregnancy.
The Supreme Court’s interpretation would have left Diane without
a remedy under the statute. However, luckily for her, if the legislative
branch disagrees with the interpretation a court gives to one of its
statutes, Congress can always introduce new legislation that amends
the original statute to make clear that a different result or
interpretation was intended. If this new legislation passes, the court’s
interpretation is superseded by the new statute. In this instance,
Congress reacted by amending the statute to include pregnancy
16
discrimination within the definition of sex discrimination. Thus,
under the amended statute, it was unlawful for Diane’s employer to
fire her based upon her pregnancy.
Notice the important difference between a court’s interpreting a
statute versus making a determination that it is unconstitutional.
When faced with a judicial interpretation it does not like, the
legislative branch can amend the statute. However, the legislature is
powerless when faced with a judicial interpretation finding that a
statute is unconstitutional. With their power of judicial review, the
courts retain the final authority with respect to deciding whether a
statute is constitutional.
3. Administrative Law
Administrative law can be found at both the state and the federal
level. At the federal level, it is created most often by agencies and at
times by presidential executive order or presidential memorandum. A
similar structure exists at the state level.
Administrative law is similar to statutory law in that it lays down
rules designed to regulate future conduct. However, these rules are
usually drawn more narrowly and directed to a more specialized
group. Often the legislative branch intentionally leaves it to the
executive branch and to independent regulatory agencies to “fill in the
details” of the law within a general structure set down by the
legislature. Through the process of filling in these details the
executive branch is actually making the law.
For example, assume a taxpayer wins $50 in the lottery. Must he
pay taxes on it? The Internal Revenue Code, a federal statute,
provides that he must pay
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p. 38
tax on income but only includes general categories of income. The
Internal Revenue Service (IRS), a federal agency, has developed
regulations that define in much more detail what the word income
means. Without the IRS, Congress would be forced to make constant
revisions in the federal tax laws and would be hard pressed to see
that they were enforced. Other examples of federal agencies include
the Occupational Safety and Health Administration (OSHA), which
oversees the federal statute requiring safe working conditions, and
the Environmental Protection Agency (EPA), which oversees the
federal statute governing the environment.
At both the federal and state levels, administrative agencies begin
the process of creating or amending regulations through what is
known as a “notice and comment” period. First, the administrative
agency gives notice of its intent by publishing the proposed changes
in the Federal Register (or its state equivalent). Second, interested
parties have a set time during which to inform the agency of their
support, opposition, or suggestions for change. At the close of this
“comment” period, the agency formally promulgates the regulation
through its publication in the Federal Register (or its state
equivalent).
Just as the courts are drawn into the lawmaking process when
they must interpret constitutions and statutes, so too are they called
on to be the final arbiters of the meaning of administrative
regulations. If someone disagrees with the administrative
interpretation of a statute, the dissatisfied party can go to court to
challenge the agency’s interpretation. The court must support the
agency’s interpretation unless the court determines that the
regulation is outside the authorization Congress gave to the
administrative agency or that the regulation is unconstitutional. To
determine whether the agency has stepped out of the bounds created
for it by Congress, the court will examine the enabling act, the statute
that created the agency. The court will also seek to determine the
underlying legislative intent of the statute that the agency is
attempting to interpret through its regulations.
Returning once again to the case of our pregnant waitress,
attorney Pat Harper may also wish to consider suing Diane Dobbs’s
employer for sexual harassment. A sexual harassment case would be
based on the same federal statute that we discussed above, Title VII.
The statute makes no specific reference to sexual harassment.
However, the Equal Employment Opportunity Commission (EEOC),
acting under authority given to it in the statute, has declared that acts
of sexual harassment are a form of sex discrimination. One of its
administrative regulations states:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature constitute sexual harassment when (1) submission to such
conduct is made either explicitly or implicitly a term or condition of an individual’s
employment, (2) submission to or rejection of such conduct by an individual is used as
the basis for employment decisions affecting such individual, or (3) such conduct has
the purpose or effect of unreasonably interfering with an individual’s work performance
17
or creating an intimidating, hostile, or offensive working environment.
Note how much more specific the wording of the regulation is in
comparison to the wording of the statute.
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Recall that Diane Dobbs alleged that the manager patted her on
the stomach as he was firing her for being pregnant. Do you think
that is sufficient to support a claim of sexual harassment? Is there
any language in the regulation that could support such a claim?
In addition to their power to promulgate regulations, and as part of
their enforcement powers, most agencies have investigatory and
adjudicative powers. For example, if Diane Dobbs wants to pursue her
claim of sexual harassment, Title VII mandates that she first take her
complaint to the EEOC or a comparable state agency. The agency will
investigate her case and, if it deems it appropriate, will hold a hearing
to determine the truth of her claims. If she or her employer is not
satisfied with the results obtained at the agency, then either of them
can take the case to court. Ultimately, the court would be the final
arbiter of whether Diane Dobbs’s situation fits within the agency
definition of sexual harassment.
Because administrative agencies combine legislative, executive,
and judicial functions, they are sometimes referred to as the fourth
branch of government.
The following case illustrates the interaction between the courts
and administrative agencies when the interpretation of a federal
statute is called into question. As you know, Congress has enacted a
federal statute, the Internal Revenue Code, to set out the
requirements that individuals and businesses must follow regarding
the payment of federal taxes. The Code also provides certain
exemptions for charitable organizations that operate for educational
purposes. In 1970 the IRS, an administrative agency, interpreted that
provision to mean that an organization could not be given tax-exempt
status if it engaged in racially discriminatory policies. Based on
fundamentalist religious beliefs, Bob Jones University followed a
policy that denied admission to applicants who advocated interracial
marriage or dating. Based on this racially discriminatory admissions
policy, the IRS denied Bob Jones University tax-exempt status. The
university sued in federal court seeking a refund of federal
unemployment tax payments. The following excerpt is from the
decision of the U.S. Supreme Court in which the Court determined
that nonprofit private schools such as Bob Jones University that
follow racially discriminatory admission practices, even if based on
religious beliefs, do not qualify as tax-exempt organizations under the
Internal Revenue Code.
Bob Jones University v. United States
461 U.S. 574 (1983)
Chief Justice BURGER delivered the opinion of the Court.
. . . Charitable exemptions are justified on the basis that the
exempt entity confers a public benefit — a benefit which the
society or the community may not itself choose or be able to
provide, or which supplements and advances the work of public
institutions already supported by tax revenues. . . . [However, the]
institution’s purpose must not be so at odds with the common
community conscience as to undermine any public benefit that
might otherwise be conferred.
[A] declaration that a given institution is not “charitable” should
be made only where there can be no doubt that the activity
involved is contrary to a fundamental public policy. But there can
no
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longer be any doubt that racial discrimination in education violates
deeply and widely accepted views of elementary justice. . . . Over
the past quarter of a century, every pronouncement of this Court
and myriad Acts of Congress and Executive Orders attest a firm
national policy to prohibit racial segregation and discrimination in
public education.
An unbroken line of cases following Brown v. Board of
Education establishes beyond doubt this Court’s view that racial
discrimination in education violates a most fundamental national
public policy, as well as rights of individuals. . . .
Petitioners contend that, regardless of whether the IRS properly
concluded that racially discriminatory private schools violate
public policy, only Congress can alter the scope of [a federal
statute]. Petitioners accordingly argue that the IRS overstepped its
lawful bounds in issuing its 1970 and 1971 rulings.
Yet ever since the inception of the Tax Code, Congress has
seen fit to vest in those administering the tax laws very broad
authority to interpret those laws. In an area as complex as the tax
system, the agency Congress vests with administrative
responsibility must be able to exercise its authority to meet
changing conditions and new problems. Indeed as early as 1918,
Congress expressly authorized the Commissioner “to make all
needful rules and regulations for the enforcement” of the tax laws.
The same provision, so essential to efficient and fair
administration of the tax laws, has appeared in Tax Codes ever
since; and this Court has long recognized the primary authority of
the IRS and its predecessors in construing the Internal Revenue
Code.
Congress, the source of IRS authority, can modify IRS rulings it
considers improper; and courts exercise review over IRS actions. In
the first instance, however, the responsibility for construing the
Code falls to the IRS. Since Congress cannot be expected to
anticipate every conceivable problem that can arise or to carry out
day-to-day oversight, it relies on the administrators and on the
courts to implement the legislative will. Administrators, like judges,
are under oath to do so.
. . .
The actions of Congress since 1970 leave no doubt that the
IRS reached the correct conclusion in exercising its authority. It is,
of course, not unknown for independent agencies or the Executive
Branch to misconstrue the intent of a statute; Congress can and
often does correct such misconceptions, if the courts have not
done so. Yet for a dozen years Congress has been made aware —
acutely aware — of the IRS rulings of 1970 and 1971. As we noted
earlier, few issues have been the subject of more vigorous and
widespread debate and discussion in and out of Congress than
those related to racial segregation in education. Sincere adherents
advocating contrary views have ventilated the subject for well over
three decades. Failure of Congress to modify the IRS rulings of
1970 and 1971, of which Congress was, by its own studies and by
public discourse, constantly reminded, and Congress’ awareness
of the denial of tax-exempt status for racially discriminatory
schools when enacting other and related legislation make out an
unusually strong case of legislative acquiescence in and
ratification by implication of the 1970 and 1971 rulings.
. . .
Petitioners contend that, even if the Commissioner’s policy is
valid as to nonreligious private schools, that policy cannot
constitutionally be applied to schools that engage in racial
discrimination on the basis of sincerely held religious beliefs. As to
such schools, it is argued that the IRS construction of § 170 and §
501(c) (3) violates their free exercise rights under the Religion
Clauses of the First Amendment.
. . .
The governmental interest at stake here is compelling. . . . [T]he
Government has a fundamental, overriding interest in eradicating
racial discrimination in education — discrimination that prevailed,
with official approval, for the first 165 years of this Nation’s
constitutional history. That governmental interest substantially
outweighs whatever burden denial of tax benefits places on
petitioners’ exercise of their religious beliefs.
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p. 41
CASE DISCUSSION QUESTIONS
1. What type of law (constitutional, statutory, or administrative) is
being challenged in this case?
2. How is statutory law relevant to this case?
3. Why do you think the Court gives so much deference to the
IRS’s determination as to the meaning of the Internal Revenue Code?
4. Why is constitutional law relevant to this case?
Executive orders and executive memoranda are also forms of
administrative law. They are policy directives issued by the President
(or at the state level, by governors) that direct government employees
as to how they should implement statutes passed by the legislature,
rules and regulations enacted by administrative agencies, or
executive powers listed in the Constitution (or at the state level, state
18
constitutions). The terms executive order and executive
memorandum are often used interchangeably, the primary difference
being that executive orders are published in the Federal Register and
executive memoranda are not. Perhaps the most famous example of
such executive action was President Abraham Lincoln’s
Emancipation Proclamation. Other notable historical examples
include President Franklin Roosevelt’s detention of Japanese citizens
in internment camps during World War II; President John Kennedy’s
prohibition of discrimination in federally funded housing; President
Richard Nixon’s freezing of all prices, rents, wages, and salaries to
stop inflation; President George W. Bush’s creation of the Homeland
Security Department; President Obama’s deferral of deportation
proceedings for a set number of years for illegal immigrants who met
several criteria; and President Donald Trump’s phasing out of the
deferral of that deportation policy. As with the rules and regulations
issued by administrative agencies, executive orders and memoranda
clarifying how executive agencies enforce their regulations can be
found unconstitutional or outside the authorization given by
Congress.
DISCUSSION QUESTION
8. If Congress and state legislatures have given administrative
agencies the ability to create rules and regulations, why do presidents
create executive orders and memoranda? Some executive orders and
memoranda can be controversial. Should the President, or a governor,
have the power to issue unpopular executive orders and memoranda?
Are the current mechanisms for challenging these sufficient to
maintain the checks and balance between the branches of
government?
4. Judicial Interpretation and the Common Law
As we have noted above, courts play a vital role in interpreting
constitutions and the laws created by the legislatures and agencies.
The courts also apply and
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interpret the common law when there is no statute, administrative
regulation, or constitutional provision governing the case they are
adjudicating.
The common law consists of various legal principles that have
evolved through the years from the analysis of specific court
decisions. Ultimately, these principles can be traced back to early
medieval England, though they have been modified through the years
by various state courts. When a legal dispute involves a subject that
is not adequately covered by the other types of law, the judge applies
the principles of the common law. In other words, in the absence of
pronouncements from the Constitution or a legislative or
administrative body, the judge looks to the earlier decisions of other
judges in similar circumstances.
The roots of the court’s power to create law go back to the
eleventh century and the Norman Conquest. Although reading about
medieval history may seem irrelevant to your study of the modern
American legal system, the principles followed by our American legal
system originated in England in 1066. Until 1066, Anglo-Saxon kings
ruled England. There was no central legislature or centralized court
system. Disputes were decided locally based on local custom.
In 1066, the king of England, Edward the Confessor, died without
children. This left the succession to the throne to either his brother in-
law, Harold, a powerful English baron, or his French cousin, William,
Duke of Normandy. Harold was elected king. Immediately, William
19
assembled an army of soldiers, knights, and horses.
In the fall of 1066, William landed on the south coast of England
with his soldiers and knights, mounted on horseback. The mounted
Norman knights overwhelmed the English foot soldiers, defeating the
English army. On Christmas Day 1066, William, Duke of Normandy,
had himself crowned king of England.
England became a country where everyone who spoke English
owned no land and was impoverished. The king and the upper
classes spoke French and used French in the courts. As a result, one
enduring reminder of the Norman Conquest is the infusion of French
words, such as “acquit” and “voir dire,” into our legal vocabulary. In
addition, Norman kings used Latin in their written documents, so
many Latin words, such as “certiorari” and “actus reus,” were
incorporated into our legal language.
The Norman Conquest left a much greater legacy, however, than
the infusion of French and Latin legal terminology. It created an
entirely new method for resolving disputes. Before the Conquest,
most disputes were decided locally, and laws would vary from town
to town. As part of unifying England, the English kings wanted to
create a common law throughout the land.
How was this uniformity created? Remember that there was no
central legislature. The solution was for the king to appoint judges
and establish a court system so that disputes could be settled in a
uniform manner. Initially, the “courts” were simply individual judges
appointed by the king to “ride a circuit” around the countryside,
settling disputes in the name of the king. Over time the judges
realized that rather than deciding each case as though it were the
first of its kind, it would be more efficient to share the results of their
prior decisions with each other so that similar cases could be decided
similarly. The resulting court-made law became known as the
common law.
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Unless a good reason dictated otherwise, it became the policy to
follow the rules laid down in prior decisions. This was how the
doctrine of stare decisis developed. Once courts had determined the
law in an area, other courts followed that rule unless a court thought
there was a good reason to change it.
By about 1200, the main structure of the common law system
was in place. A body of centrally appointed judges applied a common
law throughout the country, and a tradition of following precedent had
been established.
Meanwhile, the common law had come to America and had
formed the basis for our legal system. There are areas of the law that
are still totally governed by the common law, such as most matters
dealing with torts. However, over the years more and more areas of
the common law have been enacted into statutes; that process is
known as the codification of the common law. When the common
law has been changed through legislation, the statute is said to be in
derogation of the common law.
Before abandoning our history lesson, we need to briefly mention
one more development in the English court system that has had a
great impact on our system, and that was the development of equity
courts. The courts we have discussed up to now had the power to
settle disputes by requiring one party to compensate the other with
money damages. But there are times when money is not what the
litigants want. Rather they would like the court to order the other
party to do something, such as living up to contractual obligations, or
to cease doing something, such as having loud parties in the wee
hours of the morning. In response to this need, the English created
the equity courts.
Judges in the equity courts used their powers to “do justice.” For
example, equity powers allow judges to take preventive action when
the law would otherwise limit their decisions to monetary awards
after the damage has been done. Equity powers include a judge’s
ability to issue an injunction or to order specific performance. An
injunction is a court order requiring someone to act or to refrain from
acting. Specific performance requires that a party fulfill his or her
contractual obligations. In the 1800s, most states merged their law
and equity courts; therefore, today judges have the power to give
either monetary awards, equitable relief, or both, as they deem
appropriate.
DISCUSSION QUESTION
9. For each of the following, which source of law — a constitution,
a statute, an administrative regulation, or a court opinion — would be
best able to handle the problem and why? Before answering, keep in
mind that constitutional provisions generally cover the most general,
basic rights, such as freedom of speech. Statutes are more detailed,
and administrative regulations are even more specific, often going
into great detail as to what is to be regulated. Statutes and
regulations are forward looking: that is, legislatures enact statutes
and administrative agencies issue regulations with an eye toward
what they expect will happen in the future. On the other hand, court
decisions are designed to address something that has already
happened; by their nature, they are very fact specific.
a. A requirement that all motorcycle riders wear helmets.
b. A rule making a bar owner liable for any injuries caused by a
patron to whom the bar sold drinks.
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c. A rule that all semi-trailers traveling on interstate highways use
concave mud flaps.
d. A requirement that employers not discriminate on the basis of
religion or sexual orientation.
e. A requirement that no more than a certain percentage of a
known pollutant be released by factory smokestacks.
f. A question as to whether a person not wearing a seat belt
should be able to recover for injuries the person sustained in
an automobile accident that was not his fault.
g. A law prohibiting government from interfering with an
individual’s right to pray before a soccer game.
5. The Hierarchy of Laws
In this chapter, you have seen that our laws come in different formats:
constitutions, statutes, administrative regulations, and court
decisions. Some apply only to a specific state or even to a particular
county or city. In analyzing the pregnant waitress’s situation, we
found that statutory and administrative laws as well as court
decisions would impact her legal situation.
Constitutional law is at the top of the established “hierarchy of
law.” In fact, the U.S. Constitution provides that it and the laws made
pursuant to it are the “Supreme Law of the Land.” With their power of
judicial review, the courts are the final arbiters of what the
Constitution means.
Most legal problems, however, do not involve constitutional issues
unless there is an argument regarding the underlying constitutional
validity of a statute or administrative regulation. Instead, most legal
situations involve the application and interpretation of state and
federal statutes along with any relevant administrative regulations. If
there are ambiguities in a statute, attorneys look to relevant court
decisions for assistance in interpreting the statutory language.
Therefore, the courts have a great deal of power in their role as
interpreters of enacted law.
As we noted earlier, always keep in mind the crucial difference
between court decisions that interpret the meaning of statutory
language and those that strike down a statute because it conflicts
with provisions of the constitution. Whereas the legislative branch
can amend one of its statutes to clarify its intent and thus override a
judicial interpretation, the courts retain the final authority with respect
to deciding whether a statute is constitutional. When the courts
declare a statute unconstitutional, the legislature’s only recourse is to
seek to amend the constitution or to wait for a change in court
membership. This important difference is outlined in Figure 2-2.
It is only when there is no applicable constitutional or statutory
provision governing the situation that the courts will apply court-
made common law. While today most areas of the law are governed
by statutes, the common law still has a role to play, most notably in
the areas of property, tort, and contract law.
p. 44
p. 45
Judicial Statutory Interpretation Versus Judicial Constitutional Determination
Congress enacts a statute; the Congress enacts a statute; the terms are clear,
terms are unclear. but its constitutionality is questionable.
Example: Example:
Statute: It shall be an unlawful
Statute: No citizen is allowed to own a private
employment
handgun.
practice for an employer to
Court determination: The statute is not
discriminate because of such
constitutional as it violates the Second
individual’s sex.
Amendment right to bear arms.
Court interpretation:
Pregnancy discrimination is
not a form of sex
discrimination.
If the legislature disagrees with Even if the legislature disagrees with the court’s
the court’s interpretation, it can decision regarding the constitutionality of the
amend the statute. statute, it is bound by that decision.
Example: Example:
Congress amends the statute to Congress can do nothing short of working
add a definition of sex toward a constitutional amendment or
discrimination that includes consenting to the appointment of new justices
pregnancy discrimination.
who may act in the future to overrule the
decision.
Figure 2-2 Judicial Statutory Interpretation versus Determination of Constitutionality
CHAPTER SUMMARY
While our laws come from different sources, they all establish rules of
conduct that can be enforced by the governments that enacted them.
They play an important role in managing conflict and ensuring the
rule of law in modern democratic societies. In this chapter we have
looked at four sources of law: constitutions, statutes, administrative
regulations, and the common law.
Our country was the first to adopt a written constitution, and it is
our federal constitution that provides the framework within which all
our laws are made. Similarly, states’ constitutions provide the legal
basis for their governments to act.
Even though traditionally we say that the legislature makes the
law, the executive branch enforces the law, and the courts interpret
the law, the truth is that the legislative, executive, and judicial
branches, as well as administrative agencies, are all involved in
making the law. Legislatures create law by enacting statutes,
p. 45
p. 46
agencies create law by promulgating regulations, and appellate
courts create law through their written opinions known as court
decisions. In addition, the executive branch occasionally creates law
through executive orders and memoranda.
The example with which we began this chapter provides a good
illustration of how statutory, regulatory, and court-made law work
together. Congress enacted a statute that prohibited “sex
discrimination.” Because this phrase is so broad, the EEOC, an
administrative agency, has issued regulations that more clearly define
some types of sex discrimination, such as sexual harassment. Finally,
even the most detailed regulation cannot cover every individual case.
Therefore, the courts are constantly called on to interpret the
meaning of both statutes and regulations.
Where no constitution, statute, or administrative regulation
applies, the courts rely on the common law to resolve the problem.
But it is through the power of judicial review and in their role as
interpreters of constitutional, statutory, and administrative provisions
that courts have the greatest power: By interpreting the law, the
courts end up creating the law. Figure 2-3 summarizes the major
sources of law.
Figure 2-3 Sources of Law
p. 46
p. 47
CRITICAL THINKING EXERCISES
1. Would you expect to hear a follower of natural law, legal
positivism, or legal realism making the following statements?
a. The killing of another human is wrong.
b. The penalty for first degree murder is life imprisonment or
death.
c. Studies have shown that a disproportionate number of
minority men are sentenced to the death penalty.
2. Assume Congress enacted a statute making it a federal crime
for “anyone” to kidnap children and take them across state lines.
Assume further that the U.S. Supreme Court decided that the word
anyone did not include a parent. If it wanted to do so, could Congress
amend the statute to say that the word anyone does include parents?
Why?
3. Assume Congress enacted a statute making it a federal crime
to have an abortion. Assume further that the U.S. Supreme Court
declared the statute to be unconstitutional because it interfered with
a woman’s constitutional right to privacy. If it wanted to do so, could
the executive branch prosecute women for violating the statute? In
other words, does Congress or the Supreme Court have the final word
on what is constitutional? Why?
WEB EXERCISES
1. In these exercises, you will have the opportunity to delve further
into each of the four main sources of law.
a. The Constitution: Use Google or another search engine to find
your state’s constitution. The Fourteenth Amendment to the
U.S. Constitution states that no state can “deny to any person
within its jurisdiction the equal protection of the laws.” Does
your state constitution have a similar provision? Do you think it
provides less or more protection than that given by the U.S.
Constitution?
b. Statutory Law and the Legislative Branch: Go to
votesmart.org/. Enter your zip code near the top of the page
and then click on the link to “Current Officials” to obtain a list of
your state’s two U.S. Senators and your local U.S.
congressional representative, as well as the elected
representatives to your state legislature. Click on any of their
names to read more information about them and to view their
record on key votes.
c. Administrative Law: Go to the Web site for the Equal
Employment Opportunity Commission, www.eeoc.gov/. On
the home page under “Employees and Applicants” take some
time to browse through the information on the different types
of discrimination, such as age, race, religion, and sex. Then
return to the home page and under “Contact Us” click on
“Frequently Asked Questions.” Select one of
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p. 48
the questions that interests you and read the answer.
Summarize the question and answer. Were you satisfied with
the answer provided? Why or why not?
d. Courts and the Common Law: First, read about the common
law at definitions.uslegal.com/c/common-law/, and then
specifically about statutes enacted in derogation of the
common law at definitions.uslegal.com/d/derogation/. Then
read a provision from the Montana statutes at
leg.mt.gov/bills/mca/title_0010/chapter_0020/part_0010/sec
tion_0030/0010-0020-0010-0030.html. Why do you think the
Montana legislature thought it necessary to enact that
provision?
2. Read a short article on the purpose of our system of checks and
balances at
www.auburn.edu/~johnspm/gloss/checks_and_balances.
a. According to the author of this article, what are the advantages
and disadvantages of this system?
b. How would the system of checks and balances handle a
situation in which Congress passed a law stating that college
students who say anything negative about a professor will be
incarcerated in federal prison for a minimum of one year?
REVIEW QUESTIONS
Pages 23 through 35
1. What is the generally accepted definition of “law”?
2. What are the two primary functions of the U.S. Constitution?
3. Read the U.S. Constitution and the Bill of Rights located in
Appendix A. Then answer the following questions:
a. Which article deals specifically with the legislature? With the
executive? With the judiciary? (This may seem like trivia
necessary only for Jeopardy contestants, but lawyers often
refer to Article I, Article II, or Article III powers.)
b. Which amendment states that the powers not specifically
delegated to the federal government are reserved to the
states?
c. Make a list of the rights protected by the first ten
amendments.
4. What is the doctrine of incorporation, and why is it important for
understanding our rights under the U.S. Constitution?
5. John is upset with his neighbor because on weekends the
neighbor plays loud music, disturbing John’s sleep. John is so
angry that he wants to sue his neighbor for violating his U.S.
constitutional right to privacy. Why will John not be able to win
his lawsuit?
6. What is the power of judicial review, and why is it so important to
our legal system?
7. Are the protections provided by state constitutions the same as
those given by the U.S. Constitution? Why might that matter?
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p. 49
Pages 35 through 41
8. Why do constitutions and statutes frequently include ambiguous
language?
9. How do courts become involved in the legislative process?
10. How are statutes and administrative regulations similar? How do
they differ?
11. Why are administrative agencies referred to as the fourth branch
of government?
Pages 41 through 44
12. What impact did the Norman Conquest have on the American
legal system?
13. What is the common law?
14. What does it mean to say the common law has been codified?
That a statute is in derogation of the common law?
15. Why were equity courts created, and what special powers were
they given?
Pages 44 through 45
16. Who has the final say as to what a statute means, the legislature
or the courts?
17. Who has the final say as to the constitutionality of a statute, the
legislature or the courts?
1
J. Campbell, J. Sahid, & D. Strang, Law and Order Reconsidered: Report of the Task Force on
Law and Law Enforcement to the National Commission on the Causes and Preventions of
Violence 3, 5 (1970).
2
347 U.S. 483 (1954).
3
163 U.S. 537 (1896).
4
347 U.S. at 494.
5
Id. at 495.
6
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997).
7
Benjamin Cardozo, The Nature of the Judicial Process 112 (1949).
8
Article V of the U.S. Constitution requires that amendments be proposed by two-thirds of
both Houses or by a special convention called at the request of the legislatures of two-thirds
of the states. The proposed amendment must then be ratified by the legislatures of three-
fourths of the states or by conventions in three-fourths of the states.
9
5 U.S. (1 Cranch) 137 (1803).
10
Id. at 177-78.
1
Article I, section 7 of the Washington Constitution provides: No person shall be disturbed in
his private affairs, or his home invaded, without authority of law.
11
Except for bills raising revenues, which must originate in the House.
12
However, both chambers of Congress have adopted internal rules that have created
various “roadblocks,” which can slow or even kill a bill. For example, in the Senate, through
the use of a filibuster, one or more Senators can carry on debate, thereby preventing a vote,
until three-fifths of the Senators vote to end the debate.
13
In rare instances, the President can exercise a “pocket veto.” The Constitution grants the
President ten days to review a measure passed by Congress. If Congress has not adjourned
within that ten-day period, the measure becomes law without his signature. However, if
Congress adjourns during the ten-day period, and the President does not sign it within those
ten days, the bill does not become law. This latter situation is referred to as a “pocket veto”
because the President can veto it by leaving the bill “in his pocket” rather than signing it.
14
42 U.S.C. § 2000e-2(a) (2019).
15
429 U.S. 125 (1976).
16
Bennett Amendment, 42 U.S.C. § 2000e(k) (2019).
17
29 C.F.R. § 1604.11 (2018).
18
The U.S. Constitution, Article II, Section 1, states, “The executive Power shall be vested in a
President of the United States of America.”
19
This is a good illustration of what occurs when there is no established governmental
structure for settling disagreements. The disputants resort to violence.
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p. 51
Classification of the Law
Logically, everything ought to come first.
Jean Jacques Rousseau
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain what it means to say that Congress has limited powers.
■ Identify areas of the law that could be federal only, state only, or
both.
■ Describe the basic differences between civil and criminal law.
■ Distinguish substantive from procedural law.
INTRODUCTION
In the previous chapter, we explained how law is made not only by
legislatures, but also by administrative agencies and courts. Based on
its source, we classified law in terms of constitutional, statutory,
administrative, or common law. You can also classify law based on
whether it involves the following:
1. State or federal law: Every state as well as the federal
government has its own laws.
2. Civil or criminal law: Civil law deals with harm against an
individual — for example, a broken contract — whereas criminal
law deals with harm against society as a whole — as when
violence leads to someone’s death.
p. 51
p. 52
3. Substantive or procedural law: Substantive law defines our
legal rights and duties, for example, the duty to obey speed
limits and the right of freedom of speech, whereas procedural
law is comprised of the rules that govern how the legal system
operates.
These categories are not mutually exclusive. A particular situation
may involve both federal and state laws, both civil and criminal
issues, and procedural as well as substantive questions. For example,
the victim of a battery could sue the attacker for civil damages at the
same time the state is prosecuting the attacker on a criminal charge.
The driver of an automobile involved in a traffic accident may receive
a traffic ticket from the police and at the same time be sued by
someone else involved in the accident. In certain types of antitrust
cases, the government can choose between seeking criminal charges
and seeking civil damages. Figure 3-1 illustrates how these different
categories relate to each other. At this point, do not be concerned
about understanding all of the terms listed in the figure. As the
chapter proceeds, we will discuss each term in more detail.
To illustrate the material in this chapter, we will be making
frequent references to events surrounding the aftermath of the
Boston Marathon bombings in 2013.
Case 4: The Boston Marathon Bombings
April 15, 2013 is a day Bostonians will never forget. On that day
two bombs were detonated near the finish line of the annual
Boston Marathon, killing three and injuring more than two hundred
runners and spectators. The government alleged that the attack
was carried out by 26-year-old Tamerlan Tsarnaev and his 19-year-
old brother, Dzhokhar. In the ensuring manhunt, Tamerlan was
killed, but Dzhokhar was captured and charged with committing a
host of crimes.
Figure 3-1 How Lawyers Classify the Law
p. 52
p. 53
As you read about the different ways the law can be classified, think
about how you might answer the following questions:
■ Should Dzhokhar have been charged with state or federal
crimes, or with both? What are the implications of bringing
federal versus state charges?
■ How could the victims go about trying to receive compensation
for the injuries they suffered?
■ What procedural issues might the Tsarnaev case raise?
A. FEDERAL VERSUS STATE LAW
In the previous chapter, we noted how the U.S. Constitution created a
system of government known as federalism, in which the power to
make various types of laws is divided between the federal
government and the 50 state governments. Each of the 50 states,
along with the federal government, has its own legal system. Each
state determines how its court system will be organized and what
laws it will enforce. Although the laws of one state are often similar to
the laws of another, each state ultimately decides for itself what
those laws will be. A legal problem may involve state law or federal
law or both state and federal law.
1. Federal Law
Federal law is involved if the situation concerns any of the following:
1. a U.S. constitutional issue (such as whether a branch of the
federal government has exceeded its delegated powers or
whether an individual’s freedoms guaranteed by the Bill of
Rights have been violated);
2. a federal statute (such as the Internal Revenue Code or the
Patriot Act); or
3. regulations of a federal agency (such as the IRS or the EPA).
When a legal problem involves one of these three areas, the
problem is said to raise a federal issue or a federal question. As we
will see later in the chapter on civil litigation, categorizing the raising
of a federal question is one basis for establishing jurisdiction in the
federal courts.
While states have inherent power to take actions designed to
advance the health, welfare, safety, and morals of their people, the
federal government is limited to the powers delegated to it in the U.S.
Constitution (Appendix A). The U.S. government can lay and collect
taxes, regulate currency, fix weights and measures, establish post
offices, raise armies, and declare war, just to name a few powers. In
addition, several constitutional amendments, such as the Fourteenth
Amendment, have provisions enabling Congress to pass legislation
necessary for enforcement.
Congress also has the ability to enact laws that are “necessary
and proper” to carrying out its delegated powers. This is commonly
called the doctrine of implied powers. For example, even though the
Constitution does not explicitly delegate to Congress the power to
create banks, in the 1910 case of McCulloch
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p. 54
v. Maryland, 1
the Court ruled that Congress could create and operate
a national bank as part of the exercise of its expressly delegated
powers to collect taxes and to borrow money.
Finally, one of Congress’s most expansive powers involves the
application of the commerce clause. Article I, Section 8 provides:
“Congress shall have power to regulate commerce . . . among the
several states.” On its face, this seems quite straightforward; that is,
whenever something crosses state lines the federal government,
rather than the individual states, should be the appropriate source of
authority to create a uniform system. For example, if a river flows
through several states, the federal government should be able to
impose uniform limits on what can be dumped into the river, since
what is dumped in the river in one state will inevitably flow into and
affect the next state. It is not always clear, however, when something
will impact interstate commerce, especially when an activity is carried
out entirely within just one state.
In the landmark case Gibbons v. Ogden, 2
the U.S. Supreme Court
interpreted the commerce clause as giving the federal government
the power to regulate not only the movement of things that cross
state lines but also any action that has an “effect upon” interstate
commerce. Since setting this standard, the Supreme Court has
grappled many times with whether a particular action has a great
enough effect upon interstate commerce to justify federal regulation.
The period between this 1924 decision and the mid-1930s is often
cited as a time in which the commerce clause was “dormant.” During
this time, the commerce clause was mainly used by Congress to limit
states from creating statutes that sought to limit interstate
commerce.
From the mid-1930s until the 1990s, however, Congress used the
interstate commerce clause to justify expanding the activities that
were subject to federal legislation. This included much of its “New
3
Deal” economic legislation in the 1930s. When the New Deal
economic legislation was challenged in the courts, the Supreme
Court upheld the legislation through an expansive view of the
commerce clause.
In the 1960s, Congress again relied upon those powers when it
enacted the 1964 Civil Rights Act, making it unlawful to discriminate
on the basis of race, color, religion, sex, or national origin. As the
provisions of the Civil Rights Act were challenged, the Supreme Court
continued to uphold the right of Congress to legislate through a broad
reading of the commerce clause. In Heart of Atlanta Motel, Inc. v.
United States, 4
a hotel in Georgia refused to rent rooms to black
patrons, in direct violation of the Civil Rights Act of 1964, which
banned racial discrimination in public accommodations. The U.S.
Supreme Court held that the statute was within the scope of the
commerce clause because the existence of racially discriminatory
practices made it more difficult for minorities to travel
p. 54
p. 55
from one state to another, and this had a negative impact on the free
flow of interstate commerce.
Beginning in the 1990s, the U.S. Supreme Court began to interpret
the commerce clause less expansively. In United States v. Lopez, 5
the
Court ruled that the Gun-Free School Zones Act of 1990 was
unconstitutional because it “exceeded Congress power to legislate
6
under the Commerce Clause.” The Court rejected the argument that
guns in school had an economic impact on interstate commerce and
reasoned that the creation of a Gun-Free School Zone was the sort of
intrastate activity that can be regulated by the state but not by the
federal government.
We will return to this discussion of the limits of Congress’s
commerce clause power in Chapter 6, Constitutional Law. For now,
consider the 2005 decision in which the U.S. Supreme Court
addressed the question of whether the commerce clause gave the
federal government the power to prohibit the cultivation and use of
marijuana. The marijuana was grown and used within a single state
for medical purposes, pursuant to a physician’s orders, and was
authorized by state law.
Gonzales v. Raich
545 U.S. 1 (2005)
STEVENS, J., delivered the opinion of the Court.
In 1996, California voters passed Proposition 215, now codified
as the Compassionate Use Act of 1996 (CSA). The proposition was
designed to ensure that “seriously ill” residents of the State have
access to marijuana for medical purposes. . . . The Act creates an
exemption from criminal prosecution for physicians, as well as for
patients and primary caregivers who possess or cultivate
marijuana for medicinal purposes with the recommendation or
approval of a physician.
Respondents Angel Raich and Diane Monson are California
residents who suffer from a variety of serious medical conditions
and have sought to avail themselves of medical marijuana
pursuant to the terms of the Compassionate Use Act. They are
being treated by licensed, board-certified family practitioners, who
have concluded, after prescribing a host of conventional medicines
to treat respondents’ conditions and to alleviate their associated
symptoms, that marijuana is the only drug available that provides
effective treatment. Both women have been using marijuana as a
medication for several years pursuant to their doctors’
recommendation, and both rely heavily on cannabis to function on
a daily basis. Indeed, Raich’s physician believes that forgoing
cannabis treatments would certainly cause Raich excruciating
pain and could very well prove fatal.
Respondent Monson cultivates her own marijuana, and ingests
the drug in a variety of ways including smoking and using a
vaporizer. . . .
On August 15, 2002, county deputy sheriffs and agents from
the federal Drug Enforcement Administration (DEA) came to
Monson’s home. After a thorough investigation, the county officials
concluded that her use of marijuana was entirely lawful as a
matter of California law. Nevertheless, after a 3-hour standoff, the
federal agents seized and destroyed all six of her cannabis plants.
p. 55
p. 56
Respondents thereafter brought this action against the Attorney
General of the United States and the head of the DEA seeking
injunctive and declaratory relief prohibiting the enforcement of the
federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. §
801 et seq., to the extent it prevents them from possessing, obtaining,
or manufacturing cannabis for their personal medical use. . . .
The case is made difficult by respondents’ strong arguments that
they will suffer irreparable harm because, despite a congressional
finding to the contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not whether it is wise
to enforce the statute in these circumstances; rather, it is whether
Congress’ power to regulate interstate markets for medicinal
substances encompasses the portions of those markets that are
supplied with drugs produced and consumed locally. Well-settled law
controls our answer. The CSA is a valid exercise of federal power,
even as applied to the troubling facts of this case.
[Respondents] argue that the CSA’s categorical prohibition of the
manufacture and possession of marijuana as applied to the intrastate
manufacture and possession of marijuana for medical purposes
pursuant to California law exceeds Congress’ authority under the
Commerce Clause.
The Commerce Clause emerged as the Framers’ response to the
central problem giving rise to the Constitution itself: the absence of
any federal commerce power under the Articles of Confederation.
[There are] three general categories of regulation in which
Congress is authorized to engage under its commerce power. First,
Congress can regulate the channels of interstate commerce. Second,
Congress has authority to regulate and protect the instrumentalities
of interstate commerce, and persons or things in interstate
commerce. Third, Congress has the power to regulate activities that
substantially affect interstate commerce. Only the third category is
implicated in the case at hand.
Our case law firmly establishes Congress’ power to regulate
purely local activities that are part of an economic “class of activities”
that have a substantial effect on interstate commerce. See, e.g.,
Wickard v. Filburn 317 U.S. 111 (1942). As we stated in Wickard,
“even if appellee’s activity be local and though it may not be regarded
as commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce.” Id., at 125.
. . . In Wickard, we upheld the application of regulations
promulgated under the Agricultural Adjustment Act of 1938, which
were designed to control the volume of wheat moving in interstate
and foreign commerce in order to avoid surpluses and consequent
abnormally low prices. The regulations established an allotment of
11.1 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres,
intending to use the excess by consuming it on his own farm. Filburn
argued that even though we had sustained Congress’ power to
regulate the production of goods for commerce, that power did not
authorize “federal regulation [of] production not intended in any part
for commerce but wholly for consumption on the farm.” Wickard, 317
U.S., at 118, 63 S. Ct. 82. Justice Jackson’s opinion for a unanimous
Court rejected this submission. He wrote:
. . . That appellee’s own contribution to the demand for wheat may be trivial by itself is
not enough to remove him from the scope of federal regulation where, as here, his
contribution, taken together with that of many others similarly situated, is far from trivial.
Id., at 127-128, 63 S. Ct. 82.
Wickard thus establishes that Congress can regulate purely
intrastate activity that is not itself “commercial,” in that it is not
produced for sale, if it concludes that failure to regulate that class of
activity would undercut the regulation of the interstate market in that
commodity.
The similarities between this case and Wickard are striking. Like
the farmer in Wickard, respondents are cultivating, for home
consumption, a fungible commodity for which there is
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p. 57
an established, albeit illegal, interstate market. Just as the
Agricultural Adjustment Act was designed “to control the volume [of
wheat] moving in interstate and foreign commerce in order to avoid
surpluses . . .” and consequently control the market price, a primary
purpose of the CSA is to control the supply and demand of controlled
substances in both lawful and unlawful drug markets. In Wickard, we
had no difficulty concluding that Congress had a rational basis for
believing that, when viewed in the aggregate, leaving home-
consumed wheat outside the regulatory scheme would have a
substantial influence on price and market conditions. Here too,
Congress had a rational basis for concluding that leaving home-
consumed marijuana outside federal control would similarly affect
price and market conditions.
. . . In both cases, the regulation is squarely within Congress’
commerce power because production of the commodity meant for
home consumption, be it wheat or marijuana, has a substantial effect
on supply and demand in the national market for that commodity.
[Authors’ Note: The Court concluded that the application of the
federal statute criminalizing the manufacture, distribution, or
possession of marijuana to intrastate growers and users of
marijuana for medical purposes did not violate the commerce
clause.]
CASE DISCUSSION QUESTIONS
1. The Court reasoned that the marijuana used for local,
medicinal purposes could find its way into the interstate market and
therefore have an economic effect on interstate commerce. Do you
agree? Do you think that possibility is enough to validate Congress’s
power to regulate in this case?
2. After noting that “forgoing cannabis treatments would certainly
cause Raich excruciating pain and could very well prove fatal,” the
Court emphasized it was ruling only on the constitutionality of
Congress’s actions, not on the wisdom of those actions. Does this
seem like a valid approach to you?
3. Although judges are supposed to be immune from political
pressure and are to decide cases solely based on the law and facts
before them, some have argued that the nationwide emphasis on the
“war on drugs” influenced the outcome of this case. What do you
think? Do you think that the national reaction to the opioid crisis could
change how judges view these types of cases now?
In 2012, the Supreme Court again wrestled with the power of
Congress to legislate on matters that some argued should be left to
the states. In 2010 Congress had enacted the Patient Protection and
7
Affordable Care Act (ACA), better known as ObamaCare, with the
goal of increasing the number of Americans covered by health
insurance and decreasing the cost of health care. The most
8
controversial provision, referred to as the individual mandate,
required most
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p. 58
Americans to maintain “minimum essential” health insurance
coverage or pay a “penalty” for not doing so.
Arguing before the Supreme Court, the federal government
maintained that the individual mandate came within Congress’s
commerce clause powers because the provision for mandatory
coverage was a reasonable part of a comprehensive program to
address an activity (the delivery of health services) that has a major
effect on interstate commerce. However, by a five to four vote, the
U.S. Supreme Court rejected this argument in National Federation of
Independent Business v. Sebelius. 9
Although the Supreme Court
ruled that the Affordable Care Act could not be justified under the
commerce clause, a majority of the justices did uphold most parts of
10
the act on the basis of the federal government’s taxing power.
In the end, while the Court resolved the issue of the
constitutionality of ObamaCare, it did nothing to further our
understanding of the limits of Congress’s powers under the
commerce clause. Therefore, in the future, whenever Congress
enacts legislation regarding something that arguably should be left to
the state legislatures, the Court will continue to struggle with this
fundamental question: When is it proper for the federal government to
act?
In analyzing the Boston bombing case, criminal charges for
murder are the first thing that comes to most people’s minds, and
murder is traditionally an area covered by state criminal law.
Dzhokhar Tsarnaev was charged with violating a number of
Massachusetts state laws, including the law against murder.
However, federal authorities also charged him with a number of
criminal offenses, including the use of a weapon of mass destruction.
11
Under federal law, the type of bomb Tsarnaev used would qualify as
a “weapon of mass destruction” so long as its use also affected
interstate commerce. This latter requirement was easily satisfied as
the annual Boston Marathon attracts runners and fans from all over
the United States and even the world. Their travel across state lines,
as well as their spending millions of dollars at local hotels,
restaurants, and stores, has a direct impact on interstate commerce.
One consequence of Tsarnaev being charged with federal crimes is
that the federal charges also carried the possibility of the death
penalty, something not available to Massachusetts state prosecutors,
as Massachusetts itself does not have the death penalty.
2. State Law
Whereas the federal government must trace all of its powers back to
specific constitutional authorization, the states are allowed to make
any laws they deem appropriate for the health, welfare, safety, and
morals of their citizens as long as those laws are not prohibited by
12
the U.S. Constitution. Typical examples of
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areas covered by state law are criminal behavior, contracts, torts,
property, marriage, and family matters. Figure 3-2 compares federal
and state law.
Figure 3-2 A Comparison of State and Federal Law
While much of the law from one state to the next is quite similar,
the states are free to create their own unique laws. Where one state
may choose to legalize gambling, another may not; where one state
may choose to allow no-fault divorces, another may not.
Some see this diversity as one of the great strengths of our
political system. They argue that it encourages experimentation and
innovation by allowing the residents of Georgia, for example, to
establish rules of conduct that differ from those established by the
residents of Nevada. Critics, on the other hand, point to the problems
it creates for interstate business and travel — for example, forcing
large corporations and other out-of-state parties to hire local
attorneys and making it difficult for an attorney to move a practice
from one state to another. They also point out that states are
sometimes reluctant to impose needed regulations (in areas such as
environmental protection and worker safety) for fear that the affected
businesses will move to another state with fewer restrictions.
As we become an ever more interdependent nation, however, state
laws are tending to become more and more uniform, especially in the
area of commercial law. Businesses with dealings in more than one
state do not like having to worry about a multiplicity of state laws.
Therefore, most states have voluntarily moved to adopt uniform laws
in areas such as commercial sales.
While state legislatures enact statutes that can impact everyone
in the state, local governmental units can enact laws (usually referred
to as ordinances) with
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more localized effect. Local governments are considered part of the
state government and can only make laws when they have been
specifically authorized to do so by state legislation.
3. The Supremacy Clause and Preemption
The federal and state governments often pass laws that overlap. So
long as the state laws do not interfere with the enforcement of federal
laws, states are usually free to pass additional regulations or
protections for their citizens.
For example, the Civil Rights Act of 1964 is a federal statute
prohibiting employers from discriminating on the basis of race, sex,
color, religion, or national origin. State or local governments may also
pass laws prohibiting such discrimination. Michigan, for example, has
a statute that also prohibits discrimination based on height or weight
because the statute does not interfere with the enforcement of
federal law. Michigan could not pass a statute allowing discrimination
based on religion, however, because that would be in direct conflict
with federal law.
Because of the Supremacy Clause, however, at times the federal
government can prohibit states from passing any laws on a particular
subject. This is known as preemption. For example, the Federal
13
Railroad Safety Act created uniform standards related to railroad
safety, such as maximum train speed and train length, preempting
any type of state or local government regulation of trains. Another
example of the supremacy clause and preemption is the U.S.
Supreme Court’s decision in Obergefell v. Hodges. 14
In that case, the
U.S. Supreme Court found that same-sex marriage is a fundamental
right under the Fourteenth Amendment and the Equal Protection
clause. Prior to Obergefell, some states had passed laws allowing
same-sex marriage and other states had passed laws prohibiting it.
Once the U.S. Supreme Court determined that same-sex marriage is a
fundamental right under the U.S. Constitution, the state laws
prohibiting same-sex marriage became invalid because they
conflicted with the U.S. Constitution. States may, however, still
legislate regarding marriage where their laws do not conflict with
federal law, such as the requirement to obtain a marriage license.
Another example of the federal government’s power of preemption
occurred in the Gonzales v. Raich case discussed above. In addition
to validating Congress’s use of its commerce clause power to
regulate the intrastate noncommercial use of marijuana, the Court
held that the California laws providing for the medicinal use of
marijuana could not be used to protect California residents from
federal prosecution. The Constitution’s supremacy clause
“unambiguously provides that if there is any conflict between federal
15
and state law, federal law prevails.”
While the preemption doctrine prohibits state or local regulations
that conflict with federal constitutional or legislative law, generally
state and local governments can pass additional regulations or
protections for their citizens as long
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as they do not conflict with federal laws. You already saw one
example of this in the last chapter in the case involving the right of
students to be free from random drug testing. The Washington
Supreme Court found that the Washington constitution provided
more protections for its citizens than did the U.S. Constitution.
One area over which the federal government has traditionally had
exclusive control is immigration. However, as the number of illegal
immigrants entering the country has increased, several border states
have stated that they believe the federal government is not doing
enough to help them. One such state is Arizona. In an effort to stem
the tide of illegal immigrants, Arizona passed a statute entitled
“Support Our Law Enforcement and Safe Neighborhoods Act.” As you
read the following case, think about whether the Arizona statute was
created to support federal law, and hence arguably should not be
preempted, or to supplant federal law, and hence open to a challenge
of preemption.
Arizona v. United States
567 U.S. 387 (2012)
Justice KENNEDY delivered the opinion of the Court.
To address pressing issues related to the large number of
aliens within its borders who do not have a lawful right to be in this
country, the State of Arizona in 2010 enacted a statute called the
Support Our Law Enforcement and Safe Neighborhoods Act. Its
stated purpose is to “discourage and deter the unlawful entry and
presence of aliens and economic activity by persons unlawfully
present in the United States.” . . . The law’s provisions establish an
official state policy of “attrition through enforcement.” The question
before the Court is whether federal law preempts and renders
invalid four separate provisions of the state law.
. . .
The Government of the United States has broad, undoubted
power over the subject of immigration and the status of aliens.
This authority rests, in part, on the National Government’s
constitutional power to “establish a uniform Rule of Naturalization,”
U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign to
control and conduct relations with foreign nations.
. . .
Congress has specified which aliens may be removed from the
United States and the procedures for doing so. Aliens may be
removed if they were inadmissible at the time of entry, have been
convicted of certain crimes, or meet other criteria set by federal
law. Removal is a civil, not criminal, matter. A principal feature of
the removal system is the broad discretion exercised by
immigration officials.
. . .
Discretion in the enforcement of immigration law embraces
immediate human concerns. Unauthorized workers trying to
support their families, for example, likely pose less danger than
alien smugglers or aliens who commit a serious crime. The
equities of an individual case may turn on many factors, including
whether the alien has children born in the United States, long ties
to the community, or a record of distinguished military service.
Some discretionary decisions involve policy choices that bear on
this Nation’s international relations. Returning an alien to his own
country may be deemed inappropriate even where he has
committed a removable offense or fails to meet the criteria for
admission.
. . .
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The pervasiveness of federal regulation does not diminish the
importance of immigration policy to the States. Arizona bears
many of the consequences of unlawful immigration. Hundreds of
thousands of deportable aliens are apprehended in Arizona each
year. Unauthorized aliens who remain in the State comprise, by
one estimate, almost six percent of the population. And in the
State’s most populous county, these aliens are reported to be
responsible for a disproportionate share of serious crime. See, e.g.,
Camarota & Vaughan, Center for Immigration Studies, Immigration
and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3)
(estimating that unauthorized aliens comprise 8.9% of the
population and are responsible for 21.8% of the felonies in
Maricopa County, which includes Phoenix).
Statistics alone do not capture the full extent of Arizona’s
concerns. . . . Phoenix is a major city of the United States, yet signs
along an interstate highway 30 miles to the south warn the public
to stay away. One reads, “DANGER — PUBLIC WARNING — TRAVEL
NOT RECOMMENDED/Active Drug and Human Smuggling
Area/Visitors May Encounter Armed Criminals and Smuggling
Vehicles Traveling at High Rates of Speed.” The problems posed to
the State by illegal immigration must not be underestimated.
These concerns are the background for the formal legal
analysis that follows. The issue is whether, under preemption
principles, federal law permits Arizona to implement the state-law
provisions in dispute.
. . .
Federalism, central to the constitutional design, adopts the
principle that both the National and State Governments have
elements of sovereignty the other is bound to respect. From the
existence of two sovereigns follows the possibility that laws can
be in conflict or at cross-purposes. The Supremacy Clause
provides a clear rule that federal law “shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has
the power to preempt state law. . . . Congress may withdraw
specified powers from the States by enacting a statute containing
an express preemption provision.
State law must also give way to federal law in at least two other
circumstances. First, the States are precluded from regulating
conduct in a field that Congress, acting within its proper authority,
has determined must be regulated by its exclusive governance.
Second, state laws are preempted when they conflict with
federal law. . . . This includes cases where “compliance with both
federal and state regulations is a physical impossibility,” and those
instances where the challenged state law “stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.”
[Authors’ Note: The Court then applied these principles and
found that three of the statute’s provisions were preempted by
federal law: the section that made it a crime to be in Arizona
without legal documentation, the section that made it a crime to
apply for or get a job in the state, and the section that allowed
police to arrest individuals if the police officer had probable cause
to believe the individual had committed a crime that could lead to
deportation. The Court then considered the last challenged
provision.]
Section 2(B) requires state officers to make a “reasonable
attempt . . . to determine the immigration status” of any person
they stop, detain, or arrest on some other legitimate basis if
“reasonable suspicion exists that the person is an alien and is
unlawfully present in the United States.” The law also provides that
“[a]ny person who is arrested shall have the person’s immigration
status determined before the person is released.” The accepted
way to perform these status checks is to contact ICE, which
maintains a database of immigration records.
. . .
The United States and its amici contend that, even with these
limits, the State’s verification requirements pose an obstacle to the
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framework Congress put in place. The first concern is the
mandatory nature of the status checks. The second is the
possibility of prolonged detention while the checks are being
performed.
Congress has done nothing to suggest it is inappropriate to
communicate with ICE in these situations. Indeed, it has
encouraged the sharing of information about possible immigration
violations. . . .
Some who support the challenge to § 2(B) argue that, in
practice, state officers will be required to delay the release of some
detainees for no reason other than to verify their immigration
status. Detaining individuals solely to verify their immigration
status would raise constitutional concerns. . . .
But § 2(B) could be read to avoid these concerns. [Section 2(B)]
does not require the verification be completed during the stop or
detention if that is not reasonable or practicable.
. . .
However the law is interpreted, if § 2(B) only requires state
officers to conduct a status check during the course of an
authorized, lawful detention or after a detainee has been released,
the provision likely would survive preemption.
. . .
The nature and timing of this case counsel caution in
evaluating the validity of § 2(B). The Federal Government has
brought suit against a sovereign State to challenge the provision
even before the law has gone into effect. There is a basic
uncertainty about what the law means and how it will be enforced.
At this stage, without the benefit of a definitive interpretation from
the state courts, it would be inappropriate to assume § 2(B) will be
construed in a way that creates a conflict with federal law. . . . This
opinion does not foreclose other preemption and constitutional
challenges to the law as interpreted and applied after it goes into
effect.
. . .
The National Government has significant power to regulate
immigration. With power comes responsibility, and the sound
exercise of national power over immigration depends on the
Nation’s meeting its responsibility to base its laws on a political will
informed by searching, thoughtful, rational civic discourse. Arizona
may have understandable frustrations with the problems caused
by illegal immigration while that process continues, but the State
may not pursue policies that undermine federal law.
CASE DISCUSSION QUESTIONS
1. What is your reaction to the title of the Arizona statute involved
in this case? Why do you think the sponsors of the act chose this
title?
2. Do you think Arizona designed its statute to support or
supplant the federal laws on immigration? Why does this distinction
matter?
3. What are the three circumstances under which the Court
believes federal law preempts state law?
4. Why did the justices decline to issue a ruling with respect to
Section 2(B)?
5. Do you think “sanctuary city” statutes violate the Fourth
Amendment?
The Supremacy Clause and preemption do have their limits,
however. In Murphy v. National Collegiate Athletic Assn., 16
the United
States Supreme Court found that Congress infringed on the states’
Tenth Amendment rights when it
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enacted the Professional and Amateur Sports Protection Act of 1992
17
(PASPA). The statute prohibited state legislatures from passing
laws allowing individuals to operate, sponsor, or promote sports
gambling schemes. The state of New Jersey challenged that statute’s
constitutionality because the New Jersey legislature wanted to
legalize sports gambling. In finding the PASPA was an
unconstitutional assertion of congressional authority, the Court held
that preemption can only occur if, first, there is a valid federal law, and
second, that valid federal law conflicts with state law, expressly
preempts state law, or so dominates the field covered by the federal
law as to leave no room for state action. Here, the Court ruled that
there was no valid federal law because under the Tenth Amendment
all legislative power not conferred on Congress by the Constitution is
reserved for the states. Absent from the list of conferred powers is
the power to issue direct orders to state legislatures.
4. Summary
As we have seen, a legal problem could be governed by federal law, or
state law, or both. Keep the following three possibilities in mind:
■ First, there are some areas in which only the states can
legislate — areas reserved to the states — such as divorce.
■ Second, there are some areas in which both the states and
Congress can legislate — such as criminal behavior that
crosses state lines.
■ Third, there are a few areas in which only Congress can
legislate — areas of total preemption — such as certain safety
issues involving trains traveling across state lines.
DISCUSSION QUESTIONS
1. Can you think of any areas of the law that are not now
regulated on a federal level but should be? Conversely, can you think
of any areas of the law that should be left solely to state and local
governments? If so, what are they, and why do you think the federal
government should not be involved?
2. In 1970, the U.S. Congress passed the Controlled Substance
18
Act (CSA), making it unlawful to manufacture, distribute, dispense,
or possess any Schedule I substance. From 1970 onward marijuana,
or cannabis, has been a Schedule I substance, considered to have no
acceptable medical use and a high potential for abuse. By 2019, 33
states and the District of Columbia had legalized marijuana for
medical use, and ten states and the District of Columbia had legalized
marijuana for recreational purposes. How should our federal legal
system resolve this conflict between federal and state laws? In 2018,
the FDA approved the first cannabis-based medication. How might
this change the federal laws regarding marijuana in the future?
3. In 2015, prior to the U.S. Supreme Court’s ruling on the
constitutionality of state bans on same-sex marriage, a U.S. District
Court judge ruled that
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Alabama’s prohibition of same-sex marriages was unconstitutional. In
response, Chief Justice Moore of the Alabama Supreme Court
ordered all state employees (including probate judges) to ignore the
federal judge’s ruling and instead follow existing state law by not
issuing marriage licenses to same-sex couples. In a 27-page
memorandum to the probate judges, the chief justice wrote that
because marriage licenses for same-sex couples are illegal under
Alabama law, they had the responsibility of ensuring that state law is
“faithfully executed.” Moore publicly stated that he felt the federal
court’s action was an “attempt by the federal court to control the
state” and represented a “federal intrusion into state sovereignty.”
a. In a situation such as this, when there is a conflict between a
federal trial court and the chief justice of a state supreme
court, which judge’s decision should be enforced? Why?
b. Would your answer be the same if it was a conflict between
the U.S. Supreme Court and a state supreme court? Why?
c. Who should be responsible for enforcing the actions of these
two judges and how should they go about doing so?
B. CRIMINAL VERSUS CIVIL LAW
Another major classification within the law is the division between
criminal law and civil law. Both provide mechanisms for addressing
violations of the law, but they differ regarding the procedures that
must be used and the types of sanctions or remedies that are
available. In this section we will first compare criminal and civil law.
Next, we will take a quick look at the major substantive areas of
criminal and civil law. We cover substantive civil law in more depth in
Chapters 6 through 11 and criminal law in Chapters 12 and 13.
1. A Comparison of Criminal and Civil Law
Some of the major differences between criminal and civil law are
listed in Figure 3-3. However, keep in mind that a single event can
become the basis for actions in both the criminal and the civil courts.
For example, the victim of a battery could sue the attacker for civil
damages at the same time the state is prosecuting the attacker on a
criminal charge. The driver of an automobile involved in a traffic
accident may receive a traffic ticket from the police and at the same
time be sued by someone else involved in the accident. In certain
types of antitrust cases the government can choose between seeking
criminal charges and seeking civil damages.
While the Boston bombing case that started this chapter dealt
mostly with criminal activities, civil lawsuits by the victims and their
families were also a possibility. Very few civil lawsuits were actually
filed, in large part because there was no reasonable expectation that
Tsarnaev had the funds to pay for the harm he caused. Also, there
was no evidence to suggest that anyone else was to blame based on
theories such as a failure to maintain adequate security.
In relation to the Boston bombing case, we also discussed how
being charged with both a state and a federal crime does not
constitute double jeopardy.
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Furthermore, charging a person with a criminal violation and suing
that person civilly does not constitute double jeopardy either. Double
jeopardy is defined as being prosecuted twice for the same criminal
offense.
Civil Criminal
Type of harm Private injury Harm to society
Names of the parties Plaintiff/defendant State*/defendant
“Prosecutor” of the Usually an individual; sometimes the Government
claim government
Standard of proof Proponderance of the evidence Beyond a reasonable
doubt
Judgment Liable/not liable Guilty/not guilty
Sanctions/remedies Damages/injunction Imprisonment/fines/death
Source of law Common law/statutes Statutes
*The State may also be referred to as the Commonwealth or the People. Although the state
is the named party, it is actually a government employee, the prosecutor (also known as the
district attorney, state’s attorney, or attorney general), who brings the lawsuit as the
state’s representative.
Figure 3-3 A Comparison of Civil and Criminal Law
Civil law has a principle similar to double jeopardy called res
judicata. Once a civil case has a final judgment, none of the litigants
in the case can file a lawsuit for that same case again.
a. Type of Harm
Civil law is invoked when one individual harms another. When an
individual violates a part of the criminal law, society considers itself
the offended party and takes an active role in the sanctioning
process. If Peter Jones burglarizes Sam Smith’s home, the criminal
law views that act as an offense against society itself rather than
simply as a matter between Smith and Jones.
But what determines when an act such as burglarizing someone’s
home is a wrong against society as a whole? It is up to the legislative
branch of government to decide when the consequences of certain
acts are viewed as grave enough to be classified as crimes against
the state. When the legislature perceives that a particular act, such as
drunk driving, has that broader impact, it can criminalize such
behavior.
b. Names of the Parties and the “Prosecutor” of the Claim
The person who brings a civil suit (also known as a civil action or
a civil lawsuit) is known as the plaintiff, and the person sued is called
the defendant. For example, recall the situation involving the
pregnant waitress presented at the
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beginning of Chapter 2. If Diane Dobbs were to sue the restaurant,
she would be the plaintiff. Both the corporation that owns the
Western Rib Eye Restaurant and the restaurant manager would
probably be named as defendants. Although civil suits are usually
between individuals, a governmental unit (federal, state, or local) can
also become a plaintiff in a civil suit.
In a criminal case, the case is listed as the governmental unit
versus the defendant’s last name. For example, in the Boston
bombing case, the federal case would be cited as United States v.
Tsarnaev and the Massachusetts state case as Commonwealth v.
Tsarnaev. Governmental attorneys prosecute the accused party (the
defendant), and the victim is merely a witness.
c. Standard of Proof
Because of the serious consequences of violating criminal laws,
the standard of proof is different from that used in civil cases. On the
criminal side, the prosecution is required to prove its case beyond a
reasonable doubt. Judges usually explain the beyond a reasonable
doubt standard to jurors as the degree of doubt that causes a
reasonable person to refrain from acting. The proof must be so
conclusive and complete that all reasonable doubts regarding the
facts are removed from the jurors’ minds.
In most civil actions the plaintiff need only meet the
preponderance of the evidence standard. A preponderance of the
evidence is usually understood to mean that the facts asserted are
more likely to be true than not true. One study showed that judges
equate “beyond a reasonable doubt” with a median probability of
approximately 8.8 out of 10. Jurors averaged approximately 8.6 out of
10. The judges interpreted preponderance of the evidence as a
median probability of 5.4 out of 10. For jurors the median was 7.1 out
19
of 10. These results indicate that although judges and jurors may
disagree as to the precise meaning of the standards, they agree that
the criminal law requires a greater degree of proof before its
sanctions can be applied.
There are a few occasions in which a higher clear and convincing
evidence standard is used in civil actions. Examples include
situations in which someone is being denied an important
government benefit or is facing involuntary commitment to a mental
institution. This standard is also used when a court has to determine
whether to terminate a parent’s rights. Generally, the state must prove
the parent is “unfit” by clear and convincing evidence.
DISCUSSION QUESTIONS
4. What do you think of the differences between judges’ and
jurors’ definitions of “beyond a reasonable doubt” and a
“preponderance of the evidence”? Do you think this causes any
problems for our legal system?
5. On June 12, 1994, Nicole Brown Simpson and Ron Goldman
were murdered in Los Angeles. The state of California charged Nicole
Brown Simpson’s ex-husband, O.J. Simpson, with the murders. After a
lengthy trial, the jury found O.J. Simpson not guilty. After the criminal
trial, the families of Nicole Brown
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Simpson and Ron Goldman sued O.J. Simpson for damages in civil
court, and O.J. Simpson was found responsible. Why did the two
cases, on the same facts, have different results? Does this undermine
our justice system? Why or why not?
In the following case, In re D.T., the court was faced with deciding
which standard should be applied when the state wishes to terminate
a parent’s rights. The termination process involves two stages. At the
first stage the state must prove the parent is “unfit” by clear and
convincing evidence. If the state is able to do so, then the state must
prove that it is in the best interests of the child for parental rights to
be terminated. At this second stage, rather than using either the clear
and convincing or preponderance of the evidence standard, the trial
court simply relied on its “sound discretion.” After finding that “sound
discretion” is not a recognized standard of proof, the Illinois Supreme
Court addressed the issue of which recognized standard — clear and
convincing evidence or preponderance of the evidence — should have
been used during this second stage.
In re D.T.
Supreme Court of Illinois
212 Ill. 2d 347, 818 N.E.2d 1214 (2004)
Background
On February 1, 1998, respondent, Brenda T., took her four-year-
old son, D.T., to the emergency room of Ravenswood Hospital. D.T.
was in severe pain from an injury to his scrotum inflicted by
respondent’s boyfriend at least 48 hours earlier. The injury was
caused by repetitive blunt blows to the scrotum. D.T. was
transferred to Children’s Memorial Hospital, where he underwent
surgery to determine whether castration would be necessary. In
addition to this injury, multiple bruises to D.T.’s face, arm, back,
buttock and thigh were apparent. A linear bruise on his cheek had
the characteristic appearance of a mark left by an open-hand slap.
D.T. tolerated the surgery well, and although castration was
unnecessary, the injury left D.T. with an increased risk of infertility
later in life.
D.T. was discharged from the hospital on February 4, 1998, and
taken into protective custody.
[O]n April 6, 2001, after hearing testimony from respondent, the
trial court determined that the State had demonstrated, by clear
and convincing evidence, that respondent was unfit in that she
failed to protect D.T. from an environment injurious to his welfare.
Hearing on the best-interests portion of the State’s petition
commenced the following month, and the trial court found, within
its “sound discretion,” that it was in D.T.’s best interest to terminate
respondent’s parental rights. . . .
The appellate court affirmed the finding of unfitness [but] held
that a preponderance of the evidence standard, which the State
had failed to satisfy, applies at a best-interests hearing.
. . .
Analysis
Generally, under the Juvenile Court Act, where a child is
adjudicated abused, neglected or dependent, and the State seeks
to free the child for adoption, unless the parent consents, the State
must first establish that the parent is “unfit” under one or more of
the grounds set forth in the Adoption Act. If the trial court finds the
parent to be unfit, the court then determines whether it
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is in the best interests of the minor that parental rights be
terminated.
In any given proceeding, the minimum standard of proof the
due process clause permits reflects the weight of the private and
public interests affected, as well as a societal judgment about how
the risk of error should be allocated between the parties. . . . “The
more stringent the burden of proof a party must bear, the more
that party bears the risk of an erroneous decision.” . . . For example,
in a criminal case the private interests of the defendant are of such
magnitude that society imposes the risk of error almost entirely on
itself by requiring the State to prove the defendant’s guilt “beyond a
reasonable doubt.” . . . This high standard of proof reduces the risk
of finding an innocent person guilty, but increases the risk of
acquitting a guilty person.
In contrast, civil cases generally require the lesser
“preponderance” standard of proof. This standard allocates the risk
of error roughly equally between the litigants, reflecting the view
that the interests at stake are of relatively equal societal
importance. In some civil cases, however, the interests at stake are
deemed to be more substantial, requiring a higher standard than a
preponderance. In these cases, a clear and convincing standard is
imposed. The clear and convincing standard requires proof greater
than a preponderance, but not quite approaching the criminal
standard of beyond a reasonable doubt. A party burdened with a
clear and convincing standard shoulders a greater share of the risk
of an erroneous determination.
In determining whether, as argued by respondent, a clear and
convincing standard is the minimum burden of proof at a best-
interests hearing that the due process clause will allow, we apply
the test developed in Mathews v. Eldridge, 424 U.S. 319 (1976). . . .
Under Mathews, the dictates of due process require consideration
of three factors: “first, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”
Two private interests are at stake in a proceeding to terminate
parental rights: the parent’s fundamental liberty interest in the care,
custody and management of his or her child and the child’s
interest in a . . . “loving, stable and safe home environment.” . . . At
the unfitness stage, the interests of the parent and the child
coincide to the extent that they both “share a vital interest in
preventing erroneous termination of their natural relationship.” The
alignment of these interests at the unfitness hearing favors the
use of error-reducing procedures, i.e., use of a more stringent
burden of proof than a preponderance. The same, however, is not
true at a best-interests hearing. Once the State proves parental
unfitness, the interests of the parent and the child diverge. Thus, at
a best-interests hearing, the parent and the child may become
adversaries, as the child’s interest in a loving, stable and safe home
environment become more aligned with the State’s interest in
terminating parental rights and freeing the child for adoption.
Although the parent still possesses an interest in maintaining the
parent-child relationship, the force of that interest is lessened by
the court’s finding that the parent is unfit to raise his or her child.
The second Mathews factor requires us to consider the risk of
an erroneous deprivation of the parent’s and child’s interests
resulting from the use of a preponderance standard and the
likelihood that a higher evidentiary standard — clear and
convincing — would reduce the risk of error.
At the unfitness hearing, [a] clear and convincing standard
underscores the importance of the parent’s interest and the fact
that such interest will not be extinguished lightly. A clear and
convincing standard reduces the risk that a fit parent will be found
unfit.
Following a finding of unfitness, however, the . . . issue is no
longer whether parental rights can be terminated; the issue is
whether, in light of the child’s needs, parental rights should
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be terminated. Accordingly, at a best-interests hearing, the parent’s
interest in maintaining the parent-child relationship must yield to
the child’s interest in a stable, loving home life. The stricter clear
and convincing burden of proof would place a greater share of the
risk of an erroneous determination on the State [depriving] the
child of the opportunity for permanency, one of the stated goals of
the Juvenile Court Act, and subject the child to the frequently
uncertain and fluctuating world of foster care. Thus, application of
a clear and convincing burden of proof at the best-interests
hearing does not adequately safeguard the interest of the child in a
“normal family home.” . . .
Turning to the final Mathews factor, [u]se of a clear and
convincing standard at the best-interests hearing would, however,
frustrate the state’s parens patriae interest in protecting the
welfare of its children. . . . As this court has recognized, “once a
court has found by clear and convincing evidence that a parent is
unfit, the state’s interest in protecting the child is sufficiently
compelling to allow the termination of parental rights.” . . . The
increased burden on the State resulting from imposition of a clear
and convincing standard of proof will hinder this substantial public
interest.
Based on the foregoing analysis of the Mathews factors, we
conclude, as did the appellate court, that due process does not
require imposition of a clear and convincing standard of proof at a
best-interests hearing, and that the preponderance standard of
proof adequately ensures the level of certainty about the court’s
factual conclusions necessary to satisfy due process.
[W]e remand this matter to the trial court for a new best-
interests hearing to be conducted under the constitutionally proper
standard — a preponderance of the evidence.
CASE DISCUSSION QUESTIONS
1. What is the difference between each of the following standards
of proof?
a. beyond a reasonable doubt
b. preponderance of the evidence
c. clear and convincing evidence
2. What factors are to be considered in determining which
standard should be applied, and why in this particular case did the
court choose preponderance of the evidence?
3. Do you agree that preponderance of the evidence is the
appropriate standard when determining whether to terminate the
parental rights of an “unfit” parent? Why?
d. Judgment
The result of the court’s actions in a civil suit is a finding of liability
or no liability. Do not use the term guilty when referring to a civil
defendant. In a criminal case we say that the defendant was found
guilty or not guilty.
e. Sanctions/Remedies
The typical remedy in a civil case is either damages, where the
defendant pays the plaintiff for the harm he or she has done, or an
injunction, where the court orders the defendant to take some
specific action or to cease acting in a
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specific way. For example, a restaurant libeled by a newspaper might
ask for damages to pay for lost business and an injunction ordering
the paper to print a retraction. In the case of the waitress, Diane
Dobbs, she might ask to be paid for the time she has been out of
work (damages) and request a court order requiring the restaurant to
rehire her (an injunction).
While the focus of civil law is on redressing the losses of the
plaintiff, in the criminal law the sanctions are designed to punish the
offender and deter future offenders. If a court of law determines that
a provision of the criminal law has been violated, it may impose two
broad types of sanctions — loss of liberty and financial penalty. The
loss of liberty can range from receiving unsupervised probation to
spending a few days in the county jail to serving several years in a
state penitentiary to receiving the death penalty. The fines assessed
as part of the criminal process become the property of the state
rather than the victim. Only occasionally will a negotiated settlement
with a criminal defendant contain some provisions for restitution for
the victim. Usually, if the victim wishes to receive money from the
criminal defendant to compensate for the harm done to him or her, he
or she must hire a lawyer and initiate a civil suit.
f. Sources of Law
A final difference relates to the sources of criminal and civil law.
Criminal law is almost entirely statutory, while civil law is rooted in the
common law (court-made law). Gradually, however, this distinction is
being eroded as more and more areas of the civil law are becoming
controlled by statutory law.
g. Summary
Common ways of differentiating criminal from civil law include the
following: In a civil case the harm is to an individual, while in a
criminal case the action is said to harm society itself; in a civil case
the parties are labeled the plaintiff and the defendant, whereas in a
criminal case they are the state and the defendant; the government
prosecutes criminal cases, while individual plaintiffs initiate civil
cases; in a criminal case the government must prove its case beyond
a reasonable doubt, whereas in a civil case the plaintiff must prove
his or her case by a preponderance of the evidence; a finding of guilt
in a criminal case results in a fine or imprisonment, while a finding of
liability in a civil case results in a monetary award or an injunction;
and the source of law for civil cases is both court-made law and
statutes, whereas almost all criminal law is based in statutes. (Refer
again to Figure 3-3 on page 66.)
Finally, even though we sometimes talk about civil versus criminal
law, keep in mind that the same facts may give rise to both civil and
criminal lawsuits. If a potential defendant in a civil case has been
convicted at a criminal trial, it will be easier for the plaintiff to win a
civil case. However, even if the defendant was acquitted at the
criminal trial, because of the different standards of proof and
evidentiary requirements the plaintiff may still win in a civil case.
2. Criminal Law
Murder, robbery, and arson are examples of criminal behavior.
However, it is much easier to list types of criminal behavior than it is
to define the difference
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between criminal and civil law. As mentioned earlier, usually it is said
that a criminal act harms not just the victim but also society as a
whole. That definition does not get us very far. What is a wrong
against society as a whole? One way of viewing this is to say that the
act hurts not only the individual victim, but also society as a whole
because the act’s consequences are so grave as to cause concern to
the rest of the population. When the legislature perceives that a
particular act, such as arson, has that broader impact, it enacts a
statute outlining the elements of the crime and its punishment.
a. Types of Crimes
Serious crimes, such as murder, rape, armed robbery, and
aggravated assault, are classified as felonies, and they generally
involve a punishment that may result in a sentence of a year or more
in a state prison. Misdemeanors include such lesser charges as
disorderly conduct and criminal damage to property. When
incarceration is called for in these cases, it usually is for less than one
year and is served in a county jail. Today the criminal law in most
jurisdictions is entirely statutory in nature, and the legislature
determines whether a given act is to be considered a felony or a
misdemeanor.
b. Establishing a Prima Facie Case
In order for a person to be convicted in a criminal trial, the
prosecution must establish that the defendant committed an act
defined as being illegal in the criminal code. This involves proving that
the accused both had the requisite bad intent (called mens rea) and
committed the requisite bad behavior (called actus reus). Different
acts — killing someone, burning down a building, robbing a store —
can give rise to different crimes. It is also true that the same act
accompanied by different types of intent can give rise to different
crimes. For example, the act of killing could be categorized as murder
or manslaughter depending on the defendant’s state of mind when he
or she committed the act.
At trial, the prosecution must first present a prima facie case, one
that establishes the elements of the crime, including the requisite bad
intent and bad behavior. A prima facie case contains enough
evidence to support a finding of guilty if the defense presents no
contrary evidence. If the prosecution fails to present a prima facie
case, the judge must issue a not guilty verdict without the defense
even presenting its case.
c. Defenses
If the prosecution does present a prima facie case, the defense
then has the opportunity to present evidence that either contradicts
that presented by the prosecutor or establishes a legally recognized
justification. This evidence could involve witnesses who contradict
the testimony of prosecution witnesses or evidence that establishes
an alibi, self-defense, or insanity.
There are essentially two types of criminal defenses. The first
type justifies the act. The second type negates the requisite mens
rea. An example of the first type of defense, which justifies the act, is
self-defense. The defendant admits killing the victim but argues that
he or she had no choice. Examples of the second
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type of defense, which negates the requisite intent, are insanity,
infancy, and intoxication. Each of these defenses has as its premise
the fact that the defendant was incapable of forming the requisite
intent to commit the crime.
After the defense has presented its evidence, the prosecution has
a chance to respond with rebuttal witnesses to attack these defenses
and reestablish the credibility of its own witnesses.
3. Civil Law
Civil law involves private actions brought by individuals to address
perceived wrongs. In this section we will discuss what is necessary to
prove a civil prima facie case, the defenses to a civil suit, the
damages that a plaintiff can recover, and the main areas of civil law.
a. Establishing a Prima Facie Case
Just as the prosecution has the burden of establishing a prima
facie case in a criminal case, so, too, the plaintiff shares a similar
burden in a civil case. The plaintiff has the burden of proving the
various elements listed in his or her complaint that show the plaintiff
has a valid cause of action. A cause of action is a claim that, based
on the law and the facts, is sufficient to demand judicial action. The
plaintiff must prove these elements by a preponderance of the
evidence, which means it is more likely than not that the defendant
committed the wrong.
For example, assume a car and a truck collided at an intersection.
The driver of the car is injured and wants to sue the truck driver,
alleging the truck driver ran a red light. The car driver will be the
plaintiff, and his cause of action will be based on the law of
negligence (acting unreasonably under the circumstances) and the
facts of what happened at the intersection. To succeed in a lawsuit,
the plaintiff will have to present evidence that it is more likely than not
that the truck driver was negligent. If the plaintiff/driver is able to do
so, then he has satisfied his prima facie case. Every area of civil law
has its own required elements that constitute the plaintiff’s prima
facie case. Later in this chapter as you read about torts, contracts,
and property law, note the requirements of each for the plaintiff to
prove a prima facie case.
b. Defenses
The defendant/truck driver can respond first by trying to negate
the plaintiff’s case. Perhaps she has a witness who will testify that
the light was green for the truck driver and red for the plaintiff. In
addition to attempting to negate the plaintiff’s case, the defendant
can raise defenses of her own, known as affirmative defenses. In
effect, the defendant is saying this: Even if you are right and I did
something wrong, I have a good excuse or a reason why my liability
should be reduced.
For example, in the accident mentioned above, the truck driver
might ask the car driver’s passenger to testify that the car driver was
not being as attentive to his driving as he should have been. This
behavior could have contributed to the accident, thereby decreasing
the defendant’s share of the liability.
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p. 74
It is very important to keep these two approaches separate: First,
the defendant tries to negate the plaintiff’s case. Second, the
defendant raises defenses that could limit their liability even if the
plaintiff’s version of the law and facts is true.
Depending on the area of law, different defenses will be available.
For example, it might be a valid defense to a contract claim that the
defendant was only 15 years old when he signed the contract.
However, being 15 years old may not be a defense to an intentional
tort, such as battery.
In some cases, statutes or constitutions protect certain classes of
people or institutions from being sued by granting them either full or
partial immunity. One of the oldest and most important forms of
immunity is sovereign immunity. Historically, the doctrine of
sovereign immunity prohibited injured parties from suing the
government, unless the government gave its consent. This protection
can be traced back to the concept of the divine right of kings and the
idea that “the king can do no wrong.” In Chapter 7 we discuss how the
doctrine of sovereign immunity has been modified over the years.
Later in this book we also discuss the related concepts of spousal
and parental immunity.
c. Damages
If a court determines that the plaintiff should recover, the issue of
damages (monetary compensation) arises. There are three types of
damages: compensatory, punitive, and nominal. Compensatory
damages are intended to compensate the plaintiff for the harm done
to her or him. In a tort action involving harm to a person, that might
mean the cost of medical bills, lost time from work, and pain and
suffering. Punitive damages are designed to punish the defendant
and typically are awarded only for intentional torts when the court
deems that the tortfeasor (the person who committed the tort)
deserves an additional punishment beyond just compensating the
plaintiff for the harm done to him or her. Finally, nominal damages are
awarded when the law has been violated but the plaintiff cannot
prove any monetary harm. As mentioned earlier, in addition to or
instead of damages, the court might issue an injunction, an order to
the defendant telling the defendant to do a specific act or to cease
doing a specific act.
d. Areas of Civil Law
Civil law covers a very broad range of subjects, including adoption,
admiralty, collections, corporate, divorce, employment, environmental,
intellectual property, personal injury, probate, and real estate law.
However, we believe it is helpful to think of civil law as falling into
three main categories: making deals, owning property, and protecting
people and property from harm. The most basic principles of each are
covered in the standard law school courses of contracts, property,
and torts, respectively. The various specialty fields listed above all
involve applications of the principles taught in those three courses.
(1) Contract Law
Contract law involves identifying elements of a valid contract and
the procedures used to enforce those agreements. A contract is a
written or verbal agreement that is legally enforceable, supported by
consideration. Therefore, contract
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law deals with agreements or bargains between at least two parties. I
agree to sell you my diamond ring, and you agree to give me $500 in
return. We have struck a bargain, entered into a contract. If
something should go wrong — if I refuse to hand over the ring or you
refuse to give me the money — we would find our actions governed
by contract law.
For a contract to be valid, there must be an offer, an acceptance of
the offer, and consideration — that is, something of value must be
exchanged. It is the consideration that differentiates a contract from
a gift. Common defenses to a contract action include breach by the
other side and incapacity to contract, as when one party is underage.
(2) Property
Property law is an area of the law that deals with ownership and
use of property. It covers topics such as the difference between real
property (land and objects permanently attached to land) and
personal property (all other property) and the acquisition and
disposition of property.
The first issue raised in a property law case may be how to
classify the property. For example, is a room air conditioner real or
personal property? If it is simply sitting in a window opening and can
be easily removed without damage to the window, it is personal
property. But what if the window has been taken out and the air
conditioner screwed into the window frame? Is it now “permanently
attached”? How you classify property is important because different
rules may apply to real versus personal property.
Another common dispute that arises under property law relates to
gift law. Above we noted that the difference between a contract and a
gift is that a contract is two-sided (each party gives something to the
other), while a gift is one-sided. The necessary elements for a valid
gift include an offer, an acceptance of the offer, and delivery. Usually,
the first two elements are not at issue, but the last element, delivery,
can become a problem, especially when the gift is delivered
symbolically, as by handing over the keys to a car. The question is:
has the car been delivered? The deciding factor is usually whether the
owner has relinquished all control over the object. In the case of a car,
that probably involves more than simply handing over a set of keys.
This type of delivery is known as constructive delivery. (Note: A
constructive delivery is one example of a legal fiction. Courts create a
legal fiction when they need to make an assumption that is not based
in fact in order to resolve a dispute. For example, courts frequently
speak of corporations as though they were persons.) No actual
delivery of the car is made, but the owner takes the necessary actions
to allow the new owner to gain control over the gift.
(3) Torts
Issues of tort law arise when one person harms another person or
that person’s property. A tort is defined as a private wrong (other than
a breach of contract) in which a person is harmed because of
another’s failure to carry out a legal duty. Through the common law,
the courts have defined legal duties as occasionally including the
affirmative obligation to take action to protect others.
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More commonly, courts require that everyone refrain from taking
actions that inflict harm on others. Torts are traditionally categorized
as intentional, negligent, or the result of strict liability.
As the name indicates, an intentional tort occurs when someone
intentionally harms a person or that person’s property. If one of your
classmates deliberately hits you, your classmate has committed the
intentional tort known as battery. Battery is intentional harmful or
offensive physical contact by one person to another person. Libel,
slander, invasion of privacy, and false imprisonment are other
examples of intentional torts.
The most common category of tort law is that of negligence.
Negligence is the failure to act as a reasonably prudent and careful
person is expected to act under the circumstances. This used to be
known as the reasonable man standard but has more recently
become known as the reasonable person standard.
Case 5: Mr. Whipple
Mr. Whipple owns a grocery store. A customer breaks a jar of
apple juice and promptly reports it to Mr. Whipple. Nonetheless, Mr.
Whipple fails to have the broken jar and spilled juice cleaned up.
Twenty minutes later another customer slips on the wet floor,
breaking her leg.
Mr. Whipple would probably be found liable for negligence. Clearly
he did not intend for the customer to slip and break her leg. Therefore,
there was no intentional tort. But a jury might find that a reasonable
store owner would have ordered the spill cleaned up within 20
minutes after learning of it.
In order for a plaintiff to prove negligence, he or she must show
that
1. the defendant owed the plaintiff a duty of care,
2. the defendant breached that duty,
3. and the breach caused
4. the plaintiff harm.
These four basic prerequisites (elements) in a negligence case are
known as duty, breach, causation, and harm. In the case just
mentioned, Mr. Whipple had a duty to act as a reasonable store owner
would under the circumstances. The circumstances were a broken jar
of apple juice about which Mr. Whipple was informed and a 20-
minute time period in which he did nothing. If the jurors believe Mr.
Whipple breached his duty to act as a reasonable store owner, then
they will find liability if they also think that breach caused the
customer harm.
As the store owner, Mr. Whipple would, of course, try to defend
himself through rebutting the plaintiff’s evidence. Perhaps it had only
been two and not 20 minutes since he learned of the spill. In addition,
he might try to raise an affirmative defense. As mentioned previously,
an affirmative defense is a defense whereby the defendant offers new
evidence to avoid or limit the judgment. The
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two main affirmative defenses to negligence are contributory
negligence and assumption of the risk. Contributory negligence
means that the plaintiff was also negligent and through that
negligence contributed to his or her own injury. In Mr. Whipple’s case,
perhaps the customer was in a hurry and was not looking where she
was going. Assumption of the risk means that the plaintiff voluntarily
and knowingly subjected himself or herself to a known danger.
Perhaps the customer saw the spilled juice but chose to walk through
it anyway. In many states assumption of the risk is no longer a
separate defense to negligence, as it has been subsumed under the
more general category of contributory negligence.
Historically, any showing of contributory negligence or
assumption of the risk meant that the plaintiff could recover nothing
from the defendant even if the defendant’s actions were much more
culpable than those of the plaintiff. Legislatures and courts in many
states have tried to rectify that situation by replacing contributory
negligence with a new defense known as comparative negligence.
Under comparative negligence, instead of the plaintiff’s own
negligence relieving the defendant of liability, the jury compares the
negligence of the plaintiff to that of the defendant and apportions the
responsibility. The plaintiff’s recovery is reduced by his or her degree
of negligence.
The third category of tort law is called strict liability. In some
cases, persons or corporations can be held liable for injuries that
resulted from their actions, even when their actions were reasonable
under the circumstances and they did not intend to harm anyone. The
doctrine of strict liability holds that persons who engage in activities
that are inherently dangerous are responsible for injury that results,
even though they carried out the activities in the safest and most
prudent way possible. For example, someone who uses explosives or
who keeps wild animals is liable for all resulting injuries, even if that
person used the utmost care. In recent years many courts have held
manufacturers and sellers to be strictly liable when a defective
product the defendant manufactured or sold caused harm to the user
or consumer, even when the user or consumer could not show that
the manufacturer’s negligence caused the defect.
DISCUSSION QUESTION
6. You are walking along the beach and see a young child
drowning. No one else is in sight. Should the law require you to try to
save the child? Should it matter if you are an off-duty lifeguard?
C. SUBSTANTIVE VERSUS PROCEDURAL LAW
Finally, law can also be classified as either substantive or procedural.
Substantive law refers to the part of the law that defines our rights
and duties. It defines what actions will violate the criminal law and
what our obligations are to each other. For example, substantive law
includes the statutes that govern the legal speed limits, the
circumstances under which someone can be convicted of robbery,
and when a contract is enforceable. Procedural law, on the other
hand, deals with how the legal system operates. For example, it
specifies such things as which types of cases have to be filed in
which courts and what has to be included in
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those court documents. It defines the steps that someone must go
through to file a lawsuit and the procedures the police must follow in
conducting a search or interrogating a suspect. Further examples are
included in Figure 3-4.
Figure 3-4 A Comparison of Substantive and Procedural Law
Every case is founded in substantive law, and attorneys must
determine what their client’s obligations and liabilities are. However,
they must be equally aware of the procedural aspects of the case. For
example, even if the substantive law is on the client’s side, the case
may be lost if a claim is not filed within the time prescribed in the
statute of limitations. The legal system imposes a limitation on how
long a plaintiff has before he or she can no longer bring suit. Those
limitations vary given the type of case involved. A plaintiff could also
lose if the complaint, the initial document that starts a lawsuit, fails to
include all the required information.
We have all heard of the criminal who was set free due to a
“technicality.” The rules of criminal procedure have their roots in the
Constitution and are intended to protect the innocent from
overreaching by possibly overzealous law enforcement officials.
These rules govern everything from the way in which the arresting
police officer must inform a suspect of his or her rights to how
evidence is introduced at trial. For example, in the Boston bombing
case, one of the first procedural issues that arose was the question of
whether it was proper for federal agents to question Dzhokhar
20
Tsarnaev for 16 hours before reading him his Miranda rights.
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Civil law is also controlled by very specific rules of procedure.
Those rules of civil procedure will be the focus of Chapter 5. Criminal
procedure will be discussed in Chapter 13. You will be studying the
various areas of substantive law throughout this book and
throughout your career.
CHAPTER SUMMARY
We have seen how law can be categorized as either state or federal,
civil or criminal, and substantive or procedural. The first category,
state or federal, arises because the United States operates under a
system of federalism. Under our federal system, governmental
authority is split between the national government and the 50 state
governments. Some areas of the law, such as divorce, are reserved
exclusively to the states; some are reserved to the federal
government; and some are shared by the states and the federal
government. Federal law will be involved only if the federal
constitution, a federal statute, or a federal regulation is involved.
Civil law involves harm to an individual, while criminal law deals
with harms to society as a whole. In both criminal and civil cases, the
party with the burden of proof must first establish a prima facie case.
Once that is established, the other side is given the opportunity to
negate the prima facie case or to raise affirmative defenses. While the
law has become increasingly specialized, the main areas of civil law
are contracts, property, and torts. Tort law can be further subdivided
into those involving intentional acts, those based on negligent
behavior, and those that result from an imposition of strict liability.
Finally, substantive law defines our rights and duties. Procedural law
deals with how the legal system operates.
CRITICAL THINKING EXERCISES
1. In response to the opioid crisis, states filed lawsuits against
Purdue Pharma, the maker of Oxycontin. As of May 2019, 44 states
had filed lawsuits. The lawsuits all claim that Purdue used deceptive
marketing to sell highly addictive drugs. The company claims that
doctors were responsible for prescribing the opioids and that
addiction was one of the warnings listed on the medication
packaging. What policy arguments would you advance for arguing
that state governments should sue Purdue Pharma as well as other
corporations that manufactured opioids? What policy arguments
would you advance for arguing that Purdue Pharma and other opioid
manufacturers should not be held liable for the opioid crisis?
2. For each question determine whether you think the law
involved is federal, state, or both.
a. A person is liable for slander if that person intentionally says
that someone is a thief when she knows it is not true.
b. To be valid, a contract for the sale of real estate must be in
writing.
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c. Trucks traveling on interstate highways must be equipped
with concave mud flaps.
d. No employer with ten or more employees may discriminate
on the basis of race, color, religion, sex, or national origin.
e. A manufacturer of inherently dangerous products will be
liable for any defective product that causes injury.
3. Take a moment to read the following Massachusetts statute
regarding larceny: “Whoever steals . . . and with intent to steal . . . the
21
property of another . . . shall be guilty of larceny. . . .”
a. Assume Alan got into a car, knowing that it was not his, “hot
wired” it, and then drove off in it. Is he guilty of violating the
statute? Why?
b. Assume Bill approached a car that he intended to steal but
was scared away by a passerby. Is he guilty of violating the
statute? Why?
c. Assume Charles got into a car, thinking he was getting into
his friend’s car, and “hot wired” it but only meant to borrow it.
Is he guilty of violating the statute? Why?
4. For each question, decide whether the facts raise an issue of
tort, contract, or property law or more than one area of law.
a. You buy a new car. Two days later as you are driving, the
brakes fail, and you go off the road, hitting a telephone pole.
Luckily you are unhurt, but the car is badly damaged.
b. You rent an apartment. One night as you are leaving the
building through the central stairway, the railing gives way,
and you fall down, breaking your leg.
c. You agree to purchase a bicycle from your neighbor for $50.
The next day, your neighbor decides not to sell you the bike.
d. You put in an offer for a house. A week later you have a pest
inspection and you discover that the house is infested with
active termites.
e. You are riding a bicycle in the middle of the afternoon on a
dedicated bike path. While you are riding, someone runs over
to you and pushes you and your bike, causing you to crash.
5. For each of the following situations decide if you think liability
should be found based on an intentional tort, negligence, or strict
liability or whether no liability should be found.
a. Sally was angry with Martha. One night after leaving class,
she deliberately drove her car into the side of Martha’s car.
b. One night after leaving class, Sally was in a hurry. When she
arrived at the stop sign at the student parking lot entrance to
Main Street, she did a “rolling stop.” Martha was driving by
on Main Street. Sally’s auto hit the side of Martha’s car.
c. One night after leaving class, Sally got into her brand-new
Dodge van. When she arrived at the stop sign at the student
parking lot entrance to Main Street, she pressed on the
brakes, but nothing happened. Martha was driving by on
Main Street. Sally’s auto hit the side of Martha’s car.
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p. 81
d. One night after leaving class, Sally got into her car. When
she arrived at the stop sign at the student parking lot
entrance to Main Street, she suddenly got a tremendous
cramp in her side and momentarily lost control of her car.
Martha was driving by on Main Street. Sally’s auto hit the
side of Martha’s car.
6. Review the hypothetical case that began Chapter 2. How would
you categorize Diane’s legal problems?
WEB EXERCISES
1. In May 2009, soon after Barack Obama took office, several
newspapers, including the Washington Post, reported that he had
issued a memorandum to federal agency heads regarding the
prior administration’s approach to federal regulations preempting
state laws. Use www.google.com, or another search engine of
your choice, to locate one of those news articles. According to the
article you found, what are President Obama’s views regarding
federal preemption versus states’ rights? Do you agree with that
policy, or do you think that the U.S. Chamber of Commerce’s
position that this policy could “wreak havoc on businesses” is
more accurate?
2. View a video showing examples of violence in professional
hockey at www.youtube.com/watch?
v=VjSEflGUKNk&feature=related. Based on what you have read in
this chapter about the differences between civil and criminal law,
if one of the hockey players was seriously hurt, do you think the
video showed an example of a violation of civil law, of criminal
law, or neither? Why? Would your answer be different if, instead of
a player, one of the referees or a fan had been hurt? Assuming
there is the basis for a civil lawsuit, what area of civil law would
be involved? What types of damages do you think would be
appropriate?
REVIEW QUESTIONS
Pages 51 through 65
1. What are the three major ways in which attorneys categorize the
law?
2. What is federalism?
3. True or false: Every state must have the same laws regarding
gambling. Why?
4. What does it mean to say that the federal government is a
government of limited powers?
5. Do you think Congress could (not should) enact a national divorce
statute? Why?
6. Why are some areas of the law preempted by the federal
government?
p. 81
p. 82
Pages 65 through 71
7. Name at least four ways in which civil law differs from criminal
law.
8. When is the burden of proof “beyond a reasonable doubt” and
when is it a “preponderance of the evidence”? What is the
difference between them?
9. In a civil case, if a jury is evenly split, leaning equally toward the
plaintiff’s and the defendant’s views of the facts, who will win, the
plaintiff or the defendant? Why?
Pages 71 through 73
10. What two basic elements must be established for the
government to prove the prima facie case in a criminal case?
11. Why can the same act constitute several different crimes?
12. What are the two basic defenses to a criminal action?
13. In a criminal case, does the government or the defendant present
its case first? Why?
14. What is the general definition of a civil cause of action?
15. In a civil case, does the plaintiff or the defendant present its case
first? Why?
16. What are the three types of damages available in a civil case?
17. In addition to damages, what might a plaintiff seek in a civil case?
Pages 73 through 77
18. What must be present for a contract to be valid?
19. What is the basic difference between a contract and a gift?
20. What are the three main areas of tort law?
21. Give the general definition of negligence and list the elements
necessary to prove a prima facie case.
22. What are the main defenses to negligence?
Pages 77 through 81
23. What is the difference between substantive and procedural law?
24. What is the function of a statute of limitations?
1
17 U.S. 316 (1819).
2
22 U.S. 1 (1824).
3
Such as the Unfair Labor Standards Act (controlling the hours and wages of employees
who manufactured goods destined for interstate commerce) and the National Labor
Relations Act (creating the National Labor Relations Board and authorizing it to enjoin unfair
labor practices).
4
379 U.S. 241 (1964).
5
514 U.S. 549 (1995).
6
Id. at 552.
7
Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119
(codified in scattered sections of the U.S.C.).
8
26 U.S.C. § 5000A West (2019). Please note that under the 2017 tax revision, P.L. 11-97,
which was enacted on December 22, 2017, the penalty associated with the individual
mandate was eliminated beginning in 2019 (Annie L. Mach, Cong. Research Serv., R44438,
The Individual Mandate for Health Insurance Coverage: In Brief (2018)).
9
597 US 519 (2012).
10
Article I, Section 8, gives Congress the power to “lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defense and general Welfare of the
United States.”
11
8 U.S.C. § 2332a (2019).
12
The Tenth Amendment to the U.S. Constitution declares that “powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
13
49 U.S.C.A. § 20106 (2019).
14
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
15
545 U.S. at 29.
16
Murphy v. National Collegiate Athletic Assn., 138 S. Ct. 1461 (2018).
17
28 U.S.C.A. § 3702 (West 2019).
18
21 U.S.C.A. § 801ff (West 2019).
19
Simon & Mahan, Quantifying Burdens of Proofs, 5 Law & Soc’y Rev. 39 (1971).
20
The government argued that it was appropriate and not a violation of his rights under a
“public safety” exception.
21
Mass. Gen. Laws ch. 266, §30 (2019).
p. 82
p. 83
The Court System and the Role of
Judges
Trial courts search for truth and appellate
courts search for error.
Unknown
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain the concept of jurisdiction.
■ Distinguish between questions of law and questions of fact.
■ Categorize courts as either trial or appellate.
■ List the major courts in the federal system.
■ Describe a typical state court system.
■ Explain how judges, when interpreting the law, are sometimes
actually “making law.”
INTRODUCTION
Now that we have identified the functions, sources, and
classifications of law, we turn our attention to the manner in which
the judicial system enforces the law. Although the law provides rules
about how people should behave in different
p. 83
p. 84
A court is a unit of the judicial branch of government that has
authority to decide legal disputes. However, depending on the nature
of the dispute, only certain courts will have jurisdiction to hear the
case. Jurisdiction refers to the power of a court to hear a particular
type of case.
We will begin by describing how courts are classified as either trial
or appellate and either federal or state, but before we do so, please
read over Case 6: Alibi to a Murder.
Case 6: Alibi to a Murder
Frederick Jones could not believe it when he was arrested for
murder because he thought he had an ironclad alibi.
At his trial, an elderly gentleman testified that he saw Mr. Jones
near the scene of the murder shortly after it took place. At one
point in the trial, over the objection of the defendant’s attorney, the
prosecutor showed the jury bloody and gruesome pictures of the
deceased victim.
Mr. Jones testified that not only did he not commit the murder,
but he was also attending an out-of-town wedding at the time the
murder was supposed to have taken place. Ten witnesses then
took the stand in succession and testified that they had been at
the wedding and seen the defendant there.
At the end of the trial, the jury convicted Mr. Jones. As he had
so many witnesses testifying as to his whereabouts on the night of
the murder, Mr. Jones could not understand how the jury could
possibly have found him guilty and wants his attorney to appeal
his case.
As you read this chapter, think about:
■ the differing roles of trial and appellate courts, and
■ grounds on which Jones might appeal his conviction.
A. TRIAL VERSUS APPELLATE COURTS
One major way of classifying courts is in terms of whether they are
1
trial or appellate courts. Most court cases begin in a trial court.
Sometimes the losing party is able to appeal what it sees as an error
of law (but not of fact) to the appropriate appellate court. In this
section, we will discuss the differences between trial and appellate
courts and between questions of fact and questions of law.
p. 84
p. 85
1. Trial Courts
Trial courts are said to be courts of original jurisdiction because trial
courts are where actions are initiated and heard for the first time. In
addition to conducting trials, much of a trial court’s time is spent in
far less dramatic proceedings, such as receiving plea agreements
and ratifying out-of-court settlements. When a trial is held, attorneys
present witness testimony and other evidence. After considering the
evidence and the attorneys’ arguments, trial courts have two
functions. First, they must determine whose version of the facts is
most credible. Second, they must apply the law to those facts to
reach a decision. Therefore, trial courts must determine both
questions of fact and questions of law.
Questions of fact relate to the determination of what took place:
who, what, when, where, and how? Questions of law relate to how the
judge interprets and applies the law and include such issues as how a
statute is to be interpreted and whether a specific piece of evidence is
admissible.
In most cases that go to trial, the meaning of the law is clear, but
the facts themselves are very much in dispute. For example, under
the criminal codes of most states it is a violation of the law for a
person to forcibly take someone else’s property without the owner’s
permission. When someone is tried for robbery, the trial usually
focuses on such factual questions as the identification of the alleged
robber and the ownership of the property taken.
Although the primary focus of most trials is on factual issues,
legal issues are involved as well. In the example cited above, the
judge may have to interpret what the word “forcibly” means. The
judge will also have to decide if certain testimony or evidence is
admissible. These are questions of law. If the judge decides that the
testimony or evidence is not admissible, then the trial proceeds
without it. Also, if the judge rules that a search was illegal or that
disputed pictures are too prejudicial, then the objects discovered in
that search or the pictures will not be admitted as evidence. Based on
the evidence that has been allowed, the jury then resolves the
questions of fact.
Consider the following example. In most states it is a crime for
someone other than a physician, pharmacist, or other authorized
medical person to sell or distribute narcotic drugs. When someone is
on trial for selling narcotics, the prosecution must present evidence
that shows the accused did in fact sell a substance that fits the legal
definition of a prohibited narcotic drug. These are issues of fact. The
evidence usually consists of an undercover police agent testifying
that the accused did sell the agent a substance that laboratory
reports identify as a narcotic.
It is possible, however, that the defendant might admit to selling
the drug but then claim entrapment. The entrapment doctrine
prohibits law enforcement officers from instigating criminal acts to
lure otherwise innocent persons into committing a crime. One
question of fact relating to the entrapment defense is whether the
defendant ever committed such a criminal act or thought of
committing such an act before. However, in addition to the factual
questions and depending on the circumstances of a given case, the
legal issue of what constitutes entrapment could arise. For example,
assume government agents supplied the defendant with a drug and
then later arrested him for selling that very same drug to another
government agent. Here no one would be disputing what
p. 85
p. 86
happened, the facts. But an appellate court could be asked to decide
whether such actions legally qualify as entrapment. In Hampton v.
United States, 2
the U.S. Supreme Court held that as long as the
defendant is predisposed to commit the crime, it is not entrapment
when government agents supply the defendant with a drug and then
later arrest him for selling the very same drug to another government
agent.
It is not always easy to determine if something is a question of
fact or a question of law. Because appellate courts will only rule on
issues involving questions of law, appellate judges determine what
they will treat as a question of law. To illustrate the nature of the
problem, let us consider the situation presented in Case 6: Alibi to a
Murder, set out at the beginning of the chapter.
Do you think there is any basis for launching an appeal in Mr.
Jones’s case? Remember that a losing party can only appeal
questions of law.
It is a question of fact whether on the night of the murder Mr.
Jones was present at the scene of the murder (as testified to by one
elderly witness) or out of town attending a wedding (as testified to by
ten other witnesses). Therefore, his whereabouts on the night of the
murder cannot form the basis for an appeal.
On the other hand, it is a question of law as to whether the judge
should allow the jury to see pictures of the victim’s bloody corpse. It
can be argued that the viewing of those pictures was so
inflammatory as to prejudice the jury. Therefore, the showing of the
pictures could form the basis of an appeal. Keep in mind that this
does not mean that Mr. Jones would win at the appellate level. It
simply means that he will be given the opportunity to argue his case
to the appellate court.
In a jury trial questions of fact are determined by the jury, while
questions of law are determined by the judge. If it is a bench trial
rather than a jury trial, the judge will decide the factual questions as
well as the legal ones.
2. Appellate Courts
Appellate courts review alleged trial courts’ errors (and in some
cases the actions of administrative agencies) to determine whether
the law was correctly interpreted and applied. When the person who
loses in a trial court is able to appeal the decision to an appellate
court, that party (the one filing the appeal) is called the appellant or
the petitioner. The party who won in the trial court is called the
appellee or the respondent. It is important to note that most states
and the federal government provide for only one appeal as a matter of
right. Additional appeals are usually at the discretion of the higher
court.
a. Questions of Law
Unlike trial courts, appellate courts do not hear testimony. They
rely on the written record of what occurred in the trial court to
determine whether the trial court made an error regarding the law.
They do so because when conducting a review, appellate courts limit
themselves to “legal” as opposed to “factual” issues that are
specifically raised by the party who is bringing the appeal. Therefore,
p. 86
p. 87
you can appeal a lower court decision only when you raise a valid
legal issue. Appellate courts will not reconsider the facts; they will
consider only whether the trial court made an error of law.
Legal issues can arise in three ways:
■ They can involve interpretation of the meaning of the laws that
underlie the cause of action, for example, whether entrapment
had occurred.
■ They can involve the manner in which the trial was conducted.
Examples include whether a particular piece of evidence
should be excluded because it is the product of an illegal
search and seizure, whether the plaintiff’s attorney should be
allowed to pursue a certain line of questioning, whether the
judge should present a particular set of instructions to the jury,
or whether prejudicial publicity has tainted the defendant’s
trial.
■ They can involve challenges to the constitutionality of the law
that is being applied. For example, a doctor charged with
performing an illegal abortion could argue that the law he or
she is charged with violating is itself unconstitutional.
b. Reversible Errors
There is one limited exception to the rule that appellate courts
review only questions of law. Occasionally they will review a case
when it is alleged that no “reasonable” jury could have reached the
verdict they did. This type of second-guessing is extremely rare, as
normally appellate courts will accept a jury’s determination as to
which witnesses and evidence were most credible.
If the appellate court determines that no legal error occurred, the
court will affirm the lower court’s decision. In addition, if a legal error
occurred but the court determines that it was minor and did not
affect the result, the court labels it a harmless error and allows the
decision to stand. However, if the court finds that a significant legal
error was made in the way the trial was conducted, it will usually
cancel the original outcome by reversing the trial court’s decision. It
may also direct that the case be retried by remanding the case to the
trial court for further consideration.
In criminal cases, when a court reverses a conviction and
remands the case, it does not necessarily mean that the defendant
will go free, as the government then has the option of retrying the
case. However, if the basis for the reversal was the appellate court
ruling that a key piece of evidence was inadmissible, the government
may choose not to retry the defendant because it may feel that its
case is too weak without the excluded evidence.
If the government chooses to proceed with a new trial, this does
not violate the constitutional provision regarding double jeopardy.
Double jeopardy occurs when a person is tried more than once for the
same criminal offense. The Fifth and Fourteenth Amendments to the
U.S. Constitution prohibit various forms of double jeopardy. However,
when a defendant voluntarily appeals a conviction, he or she waives
the right not to be retried for the same crime.
p. 87
p. 88
c. The Structure of Appellate Decisions
Appellate court judges reach their decisions by majority vote.
Someone from the majority writes the majority opinion explaining the
court’s decision and how that decision was reached. In cases where
the decision is not unanimous, judges may also write concurring or
dissenting opinions to explain the nature of their disagreement. In a
concurring opinion, the judge agrees with the result reached by the
majority but not with its reasoning. In a dissenting opinion, the judge
disagrees with the result and with the reasoning.
3. Summary
There are several major differences between trial and appellate
courts. At the trial-court level, the parties are called the plaintiff and
the defendant in a civil case and the state and the defendant in a
criminal case. At the appellate-court level, the party who lost in the
trial court is called either the appellant or the petitioner, while the
party who won is called either the appellee or the respondent. In the
trial court, the jury decides the facts, and the judge determines the
law. In a bench trial, the judge serves as both the finder of fact and
the determiner of the law. In the appellate court, a panel of three or
more judges decides questions of law based on the attorneys’ briefs
(written arguments) and oral arguments. No witnesses give
testimony in the appellate courts and there are no juries. The judges
merely review the trial transcript and the written briefs from the
lawyers. Sometimes oral arguments from the opposing attorneys are
heard, during which the judges have an opportunity to pose
questions. Lower-level appellate judges usually work in rotating
panels of three, while in the upper-level appellate courts all the judges
jointly decide each case.
Most of these differences are directly related to the most
important distinction between trial and appellate courts: Trial courts
determine the facts and apply the law to those facts; appellate courts
deal only with questions of law. Three basic types of legal questions
can arise at the appellate level. First are those that relate to the
meaning of the underlying legal cause of action or defense, such as
what qualifies as entrapment. Second, legal issues can arise that
have nothing to do with the underlying legal claim but rather relate to
how the trial was conducted. Finally, one of the parties can argue that
the law being applied is unconstitutional, as when the doctor
challenged an abortion law. Figure 4-1 summarizes the differences
between trial and appellate courts.
DISCUSSION QUESTIONS
1. Do you think it is a good or a bad idea that only questions of
law can be appealed?
2. Can you think of a situation when an appellate judge might
reverse and remand a case? When a judge might reverse but not
remand a case?
B. FEDERAL AND STATE COURT SYSTEMS
Trial and appellate courts exist in both the federal and the state court
systems. At first glance the federal and state judicial systems of this
country present a confusing mixture of titles and functions. In large
part this is because there are actually
p. 88
p. 89
Trial Court Appellate Court
Parties’ names Plaintiff/defendant Appellant/appellee or
State/defendant petitioner/respondent
Decision maker Judge and sometimes a jury Majority vote of three or more judges
Attorney arguments Yes Yes
Witness testimony Yes No
Evidence introduced Yes No
Questions of fact Yes No
decided
Questions of law Yes Yes
decided
Figure 4-1 Comparison of Trial and Appellate Courts
51 different court systems (the federal system plus one for each
state). To complicate matters, the same types of courts often have
different names. For example, the basic trial court is called the court
of common pleas in Pennsylvania, the district court in Minnesota, the
circuit court in Illinois, the superior court in California, and the
supreme court in New York. Although New York uses the “supreme
court” designation for its trial courts, most states reserve that title for
their highest appellate court.
It is in the state courts where most legal business is conducted.
However, we begin our discussion with an examination of the federal
court system because it is uniform throughout the country. Although
the diversity among state court systems prevents us from covering
them in any detail, we will point out some of the common patterns.
For example, most state courts follow the federal pattern of being
organized on three levels: the trial courts, the intermediate appellate
courts, and one appellate court of last resort.
1. The Federal System
The structure for the federal court system is set forth in the federal
Constitution. Article III, Section 1, provides that “[t]he judicial Power of
the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and
establish.” Those “inferior courts” are the district courts and courts of
appeals. Congress established the first inferior courts through the
Judiciary Act of 1789. That act provided for 13 districts and three
circuits. Over the years, Congress has increased the number of both
district and federal circuits. Figure 4-2 shows how cases flow through
these three types of federal constitutional courts.
■ U.S. District Courts: These trial courts are organized into 94
different “districts” located throughout the 50 states, the
District of Columbia, and U.S. territories. (See Figure 4-3, which
shows district court boundaries.)
p. 89
p. 90
Figure 4-2 The Federal Court System
■ U.S. Courts of Appeals: These first level appellate courts are
organized into 12 regional circuits and hear appeals from the
district courts located within the circuit. They also hear
appeals from decisions of federal administrative agencies.
(Figure 4-3 also shows circuit court boundaries.)
■ U.S. Supreme Court: This is the highest court in the federal
system. At its discretion, and within certain guidelines
established by Congress, it hears a limited number of the
cases involving the most important constitutional issues and
conflicts among the circuits. In addition to reviewing decisions
of the U.S. Courts of Appeals, it can also review decisions of
state courts if they involve important questions about the
Constitution or federal law.
Article II of the Constitution gives the President the power to
appoint the judges who serve on these federal courts. But before an
appointment can become final, the Senate must confirm it. Article III,
Section 1, provides that “[t]he Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.” This
means that “constitutional” judges are guaranteed lifetime tenure
unless they resign or are impeached and are protected from any
salary reductions.
a. U.S. District Courts
The U.S. District Courts are the trial courts in the federal system.
Within limits set by Congress and the Constitution, the district courts
have jurisdiction
p. 90
p. 91
p. 91
p. 92
to hear nearly all categories of federal cases, including both civil and
criminal matters.
The number of judges assigned to each district varies from one to
27 depending on the caseload of the district. Usually, cases are heard
by a single judge or a judge and a jury. In criminal cases the default is
a jury trial, unless the defendant requests a bench trial. In civil cases,
a bench trial is the default. One of the parties must request a jury in
the pleadings or the right to a jury is waived.
The district court judges are assisted by magistrate judges. The
magistrate judges supervise court calendars, hear procedural
motions, issue subpoenas, hear minor criminal offenses, and conduct
civil pretrial hearings. In some district courts the magistrate judges,
with the consent of the parties involved, conduct trials and enter
judgments in civil cases. They are selected by a majority of the active
judges in each district for full-time terms of eight years or part-time
terms of four years. They can be removed for cause.
b. U.S. Courts of Appeals (Circuit Courts)
If a litigant wants to appeal a district court decision, the appeal
must be filed with the U.S. Court of Appeals for the circuit within
which the district court operates. For example, cases from California
district courts are appealed to the Court of Appeals for the Ninth
Circuit.
Each of the twelve regular circuits has from four to 23 judges. In
the federal courts of appeals, cases are usually heard by a panel of
three judges randomly selected from the Court of Appeals. Decisions
in the cases are based on a majority vote of the judges on the panel.
Occasionally all the judges sit together and decide a case en banc.
This happens most frequently when the losing party in a case already
decided by a panel of the court requests a rehearing before the full
membership of the court.
c. U.S. Supreme Court
Sitting at the top of the federal judicial system is the U.S. Supreme
Court. The Court is composed of nine justices, who hear all appeals
as a group. It is interesting to note that the Judiciary Act of 1789,
mentioned above, provided for a Supreme Court with one chief justice
and five associate justices. As with the number of courts, the number
of Supreme Court justices has also grown over the years as the
volume of the Court’s work has increased.
Figure 4-4 shows a photograph of the 2019 U.S. Supreme Court.
Take a few minutes to match the names with the faces and note the
year each joined the Court.
A case seldom goes any further than a court of appeals, as the
U.S. Supreme Court has the power to choose which cases it wants to
hear from among the thousands of cases brought to it every year.
Most of the cases come to the Court as petitions for a writ of
3
certiorari. In this petition, the losing party does not argue
p. 92
p. 93
the merits of the case but rather asks the Supreme Court to review
the case. At least four of the nine justices must agree to grant cert
before the case will be placed on the Court’s docket. If there are not at
least four votes to review, it is simply announced that cert was
denied, without any further explanation. The denial of cert does not
mean that the Court agrees with the lower court’s decision. It simply
means that the Court does not want to hear that case. The Supreme
Court usually hears no more than 80 of the approximately 7,000 to
8,000 requests it receives each year. An additional 100 or more cases
are decided without oral arguments.
Figure 4-4 The U.S. Supreme Court, 2019. Seated from left are Justices Stephen G. Breyer
(appointed 1994) and Clarence Thomas (1991), Chief Justice John G. Roberts, Jr.
(2005), and Justices Ruth Bader Ginsburg (1993) and Samuel A. Alito (2006).
Standing from left are Justices Neil M. Gorsuch (2017), Sonia Sotomayor (2009),
Elena Kagan (2010), and Brett M. Kavanaugh (2018).
Unlike the U.S. Courts of Appeals, where cases are typically heard
by a panel of three judges, the U.S. Supreme Court always considers
cases en banc. Unless there is a vacancy on the Court or a justice has
4
chosen not to participate in the decision in a case, all nine justices
vote on every case the Court hears. With the exception of the decision
to review or not review a case, the outcome is decided by a majority
of the justices participating. In situations where there is a tie vote, the
lower court’s decision is left unchanged.
p. 93
p. 94
NETNOTE
The official website of the federal judiciary is www.uscourts.gov. It
contains links to the U.S. Supreme Court, the U.S. Courts of
Appeals, the U.S. District Courts, and the U.S. bankruptcy courts.
The U.S. Supreme Court’s site at www.supremecourt.gov contains
helpful information on the Court’s procedures, its caseload, and
biographies and pictures of the justices.
DISCUSSION QUESTIONS
3. Do you think it is appropriate that the Supreme Court hears no
more than 80 of the approximately 7,000 to 8,000 requests it receives
each year? What criteria should the Court use in deciding which
cases it will hear?
4. The Supreme Court has sometimes been criticized for being
too political. When then-President Barak Obama nominated Merrick
Garland, in March 2016, the Senate refused to hold a hearing or vote
on his nomination, and it expired on January 3, 2017, leaving the
newly elected President, Donald Trump, to nominate a new candidate.
Does this have an effect on how people view the legitimacy of the
decisions of the Justices? Can you think of alternative criteria for
selecting Justices other than nomination by the President with the
advice and consent of the Senate? What are the pros and cons of
each alternative?
d. Other Federal Courts
In addition to the Article III constitutional courts, there are also
several highly specialized legislative courts that Congress has
created using its Article I powers. These legislative courts include,
among others, the Bankruptcy Courts, U.S. Court of Military Appeals,
the U.S. Tax Court, and the U.S. Court of Federal Claims.
For example, Congress was able to establish the bankruptcy
courts because Article I, Section 8 grants Congress the power to
“establish . . . uniform Laws on the subject of Bankruptcies
throughout the United States,” and to do what is “necessary and
proper” to accomplish that goal. Because the Bankruptcy Court is an
Article I and not an Article III court, its judges do not enjoy lifetime
tenure and instead are appointed for 14-year terms. Also, Article I
court jurisdiction is more limited than that of Article III courts. In the
case of the Bankruptcy Court that limitation is to hearing all “core”
proceedings arising under the federal Bankruptcy Code. However,
what is “core” is not always clear. For example, if litigants in a
bankruptcy case raise related state law claims, such as fraud,
questions as to the scope of the court’s jurisdiction occur. The U.S.
Supreme Court has determined that with regard state law claims,
such as common law fraud, a bankruptcy court can make
5
recommendations but not enter a final judgment.
p. 94
p. 95
2. State Court Systems
While many important cases and significant constitutional issues are
decided in the federal courts, it is in state courts where over 90
percent of all legal business occurs. Although lawyers may have
some opportunities to work with federal courts, most will spend their
time operating within state court systems.
Rather than attempting to describe each of these 51 court
systems, we will review some general patterns and leave it to you to
search out the details for your specific state. Organizational charts of
state court systems can generally be found on each state’s official
government website. (See Web Exercise 2.)
NETNOTE
You can find great visual representations of all of the state court
systems at www.courtstatistics.org/Other-
Pages/State_Court_Structure_Charts.aspx.
Most states have court systems that are very similar to the
federal system, with three basic types of courts: trial, first-level
appellate, and one appellate court of last resort. Figure 4-5 shows the
organization of a typical state court system. Note how closely it
parallels Figure 4-2, showing the core of the federal court system. The
path for appeals in most state court systems is from the trial court to
an intermediate appellate court (if one exists) and then, usually only
at the court’s discretion, to the state’s highest appellate court (usually
called the Supreme Court).
Starting at the bottom of Figure 4-5, you can see that states can
6
have either general jurisdiction or limited jurisdiction trial courts.
The former can hear any type of case not specifically reserved for the
federal courts. General jurisdiction courts typically carry a name such
as circuit court, district court, county court, or superior court. Many
states also have a confusing variety of specialized courts with limited
jurisdiction. These courts hear a narrow range of cases on a specific
subject (such as probate, domestic relations, or traffic) and
sometimes even overlap regarding the types of cases they can hear.
For example, in Massachusetts both the probate court and the
superior court can hear divorce cases.
States maintain either one or two levels of appellate courts. The
larger states have generally gone to a two-tiered system like that in
operation at the federal level. The intermediate-level appellate courts
usually sit in panels, while the courts of last resort sit en banc. On
some matters appeals to the highest court
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p. 96
are discretionary, while on others they are a matter of right. A few
states have established separate courts to handle criminal versus
civil appeals at the intermediate or highest level. Finally, as noted
earlier in this chapter, even the name of the highest-level appellate
court varies from state to state. Although most states identify their
highest court as the state supreme court, in New York and Maryland
it is called the court of appeals.
Figure 4-5 Organization of a Typical State Court System
In most cases a state’s top appellate court is the end of the road
because cases can be appealed to the U.S. Supreme Court only if
they raise a federal issue. For example, in criminal cases state courts
must accord the due process rights guaranteed by the U.S.
Constitution. This can involve resolving issues regarding the right to
counsel, the admissibility of evidence resulting from an allegedly
illegal search, jury selection procedures, and so on. If the defendant
thinks these constitutional rights have been violated, she or he may
be able to appeal the case to the federal courts on the basis that a
federal issue is involved. Whenever a federal law or a provision of the
U.S. Constitution is involved, the federal courts have the right to make
the final determination as to what that law or constitutional provision
means. But remember that a criminal defendant has no right to
appeal his or her conviction in a state court to a federal court unless
such federal
p. 96
p. 97
issues are raised. Under the principles of federalism, the state courts
are the final arbiters as to the meaning of state statutes and state
constitutional provisions.
Unlike federal judges, state court judges are selected in a variety
of ways. They are appointed by the state’s chief executive or the state
legislature in only a few states. In others, they are selected in either
partisan or nonpartisan elections. While some see the appointment of
judges as undermining the democratic process, others fear that
elected judges may be influenced by those who make large
contributions to their election campaigns.
Partially in response to this disagreement about whether it is best
to appoint or elect judges, some states have developed a modified
system that has become known as merit selection, or the Missouri
plan. Under that type of plan, a special panel of lawyers and lay
persons is convened, and they nominate a few candidates for a
vacancy. The governor then appoints from among this select group. A
year or two later the person who was appointed goes before the
general electorate in a special retention election. In such an election,
the candidate runs unopposed and the voters are asked simply
whether that judge should be retained.
Some states also use justices of the peace, court
commissioners, and magistrates in their court systems. Individuals
holding these titles are lower-level court personnel who perform
limited judicial duties but are not considered full-fledged judges. In
some states they do not have to be lawyers to perform these duties.
DISCUSSION QUESTIONS
5. Why do you think the framers of the Constitution chose to give
federal judges lifetime tenure and to protect them from salary
reduction? Explain whether you think that was a wise decision.
6. Do you think judges should be elected or appointed? Why? If
appointed, who do you think should make those appointments, and
what do you think the criteria should be?
3. Choice of State or Federal Court
As you have seen, there are 50 state court systems in operation in the
United States in addition to the federal court system. Choosing the
right court requires knowing which court has jurisdiction over the
case. That is, an attorney must select a court that has the power to
hear the case. The first decision is whether to select a state or federal
court.
State courts generally have the power to hear any type of case,
state or federal. The only time state courts are prohibited from
hearing cases involving federal law is when Congress has expressly
included that limitation in a federal statute.
As to whether the federal courts have jurisdiction, you will recall
from Chapter 3 that the federal government is a government of
limited powers. Just as Congress can legislate only if the Constitution
has given it the power to do so, federal courts can hear cases only if
the Constitution has given them the power to do so. Article III, Section
2 of the Constitution spells out the jurisdiction of the federal courts in
terms of (1) the nature of the subject matter of the case,
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p. 98
and (2) the parties involved. Figure 4-6 lists the requirements for
federal court jurisdiction.
Based on the subject matter (federal question):
Any case involving the interpretation or application of
1. the U.S. Constitution,
2. a federal law or regulation,
3. a treaty, or
4. admiralty and maritime laws.
Based on the parties involved:
Any case or controversy in law and equity in which
1. the case affects ambassadors or other public ministers and counsels,
2. the United States is a party to the suit,
3. the controversy is between two or more states,
4. the controversy is between a state and citizens of another state,*
5. the parties are citizens of different states (known as diversity jurisdiction),
6. the controversy is between citizens of the same state claiming lands under grants of
different states, or
7. the controversy is between (a) a state or the citizens thereof and (b) foreign states,
citizens, or subjects.*
Based on the amount of money involved:
In addition to the constitutional requirements stated above, Congress has the power to
add a minimum dollar value to suits between citizens of different states. The current
federal statute states that the amount in controversy in diversity actions must exceed
$75,000 to qualify for original federal jurisdiction.
*The Eleventh Amendment modified this to exclude situations where the suit was
commenced or prosecuted against a state by an individual.
Figure 4-6 Jurisdiction of Federal Courts
Two of the grounds for federal court jurisdiction require particular
emphasis, as they account for the bulk of federal cases. The federal
courts have jurisdiction when the case involves
■ a federal question, or
■ diversity of citizenship.
Federal question jurisdiction comes into play when there is an
issue dealing with a federal statute, a federal regulation, or the U.S.
Constitution. Diversity of citizenship occurs when the plaintiff and
the defendant are residents of different states. Congress has limited
jurisdiction in diversity cases to those where the amount of money
involved in the case exceeds $75,000.
That federal courts have jurisdiction over cases involving federal
law seems obvious. But why should federal courts have jurisdiction
over matters relating to state law simply because the litigants are
from differing states and the amount in controversy exceeds
$75,000? Traditionally, it has been argued that diversity jurisdiction is
necessary to protect out-of-state litigants from the biases they would
suffer in state court. Today, however, many disagree as to whether
there is a continuing need for diversity jurisdiction.
p. 98
p. 99
While it might seem as though it should be relatively easy to
decide whether there are valid grounds for finding federal jurisdiction
based on the case involving either a federal question or citizens of
differing states, this is not always so. In fact, before the parties can
resolve the underlying legal issues, they often have to litigate whether
a state or federal court is the proper forum.
Questions of diversity jurisdiction can be particularly troubling. For
the litigants to be able to proceed in federal court, there must be
complete diversity of citizenship. This means that no plaintiff can be
from the same state as any of the defendants. If they are, then they
must proceed in state court.
In the following case, the court had to resolve whether Mark
Zuckerberg, the founder of Facebook, was a New York or California
citizen. You may recall that in New York “Supreme Court” refers not to
their highest court, but rather to their trial courts.
Ceglia v. Zuckerberg
772 F. Supp. 2d 453 (W.D.N.Y. 2011)
Introduction
Plaintiff Paul Ceglia commenced this action in New York State
Supreme Court asserting a breach of contract claim against
defendants Mark Elliot Zuckerberg and Facebook, Inc.
(“Facebook”). Defendants removed to federal court based upon
diversity jurisdiction. Plaintiff moves to remand claiming that
diversity is lacking because he and defendant Zuckerberg are both
domiciled in New York. Zuckerberg opposes the motion and claims
that his domicile is California. For the reasons stated, the court
finds that diversity jurisdiction exists because Zuckerberg is
domiciled in California. Accordingly, the motion to remand is
denied.
Background
In this action, plaintiff claims that, pursuant to the terms of a
2003 contract between Zuckerberg and himself, he (plaintiff) owns
an eighty-four percent interest in defendant Facebook. Facebook is
a social media company that was founded by Zuckerberg in 2004.
It has since grown into a highly successful company employing
over 1,600 employees with more than 500 million active users.
Zuckerberg is the founder, Chairman, and CEO of Facebook, a
Delaware corporation with its principal place of business in Palo
Alto, California.
At issue in this motion is defendant Zuckerberg’s domicile.
Zuckerberg’s domicile was also the subject of a prior unrelated
7
federal proceeding. In that case, Zuckerberg asserted New York
domicile. . . . At the time, Zuckerberg had just completed his
sophomore year at Harvard University, had spent the summer of
2004 in California, and had decided to take a temporary leave of
absence from Harvard. Zuckerberg represented to the court that,
despite his temporary residency in California, he intended to return
to
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p. 100
New York after graduating from Harvard. Based upon those
representations, the court determined that Zuckerberg’s domicile
as of September 2, 2004, was New York.
As it turns out, Zuckerberg never did return to Harvard or to
New York. Instead, he remained in California where he continues to
live today. . . . Zuckerberg has provided a sworn affidavit stating
that he intends to live in California indefinitely.
According to plaintiff, Zuckerberg’s actual domicile remains
New York where his parents still reside.
Discussion
Diversity jurisdiction exists where the parties are citizens of
different states and the amount in controversy exceeds $75,000.
. . .
A person’s citizenship for purposes of diversity is based upon
his domicile. Domicile is “the place where a person has ‘his true
fixed home and principal establishment, and to which, whenever he
is absent, he has the intention of returning.’ ” A person can have
multiple residences, but only one domicile.
A person’s domicile, once established, is presumed to continue
absent evidence that it has been changed. To effect a change in
domicile, two elements are required: (1) residence in a new
domicile; and (2) the intention to remain there indefinitely. A person
asserting a change in domicile bears the burden of proving it by
clear and convincing evidence.
As of September 2004, Zuckerberg’s domicile was New York.
The issue, then, is whether Zuckerberg changed his domicile to
California before June 30, 2010 — the date that this action was
filed. Zuckerberg bears the burden of proving his change in
domicile by clear and convincing evidence. Courts consider the
following objective indicators to ascertain domiciliary intent:
current residence; voting registration and voting practices; location of personal and real
property; location of brokerage and bank accounts; membership in unions, fraternal
organizations, churches, clubs, and other associations; place of employment or
business; driver’s license and automobile registration [and] payment of taxes.
No single factor is conclusive and the determination is made
based upon the totality of the circumstances.
Those objective indicators support Zuckerberg’s claim of
California domicile. He currently resides in California and has done
so continuously since the summer of 2004. He has no other
residences. He does not own real property in New York, California
or elsewhere. In 2007, he purchased and registered a vehicle in
California. He does not own or lease any other vehicles.
Zuckerberg has paid California resident income taxes since 2004.
He lists his California residence on his federal income tax returns.
He has not filed taxes in any state other than California since 2004.
Since at least 2007, he has been registered to vote in California
and has voted in California. He possesses a valid California driver’s
license issued in 2006. His bank and brokerage accounts list his
California residence and his investment advisors are located in
California. Zuckerberg receives his mail at a California post office
box and at his Facebook office. Most significantly, however, he is
the owner, founder, and CEO of a multi-billion dollar corporation
with over 1,600 employees and a principal place of business within
walking distance to his current residence in Palo Alto, California.
Together, these facts overwhelmingly show that as of June 2010,
Zuckerberg had changed his domicile to California and intends to
remain there indefinitely.
. . .
Plaintiff . . . claims that Zuckerberg’s assertion of California
domicile is not credible in light of his prior claim of New York
domicile. The fact that Zuckerberg was domiciled in New York in
September 2004 does not preclude a finding of California domicile
as of June 2010. In 2004, Zuckerberg was a 20-year-old college
student from New York who had decided to spend the summer of
his sophomore year in California. Although he had originally
intended to return to Harvard at the
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p. 101
end of that summer, events occurred causing him to alter that
plan. . . . As of 2010, when this lawsuit was filed, Facebook had
over 500 million active users and employed over 1,600 people. It is
simply incomprehensible to believe that Zuckerberg intends to
abandon his life, friends and daily management of his multibillion
dollar company to return to New York and live near his parents.
Although the law presumes that a prior domicile will continue
until a change has occurred, there is ample evidence of
Zuckerberg’s change in domicile.
Conclusion
For the reasons stated, plaintiff’s motion to remand is denied.
SO ORDERED.
CASE DISCUSSION QUESTIONS
1. How does a court determine a person’s citizenship for
purposes of federal court diversity jurisdiction?
2. What two elements must be satisfied to prove a change in
domicile?
3. On what basis did the plaintiff argue that Zuckerberg was a
New York resident? Why did the court instead determine that
Zuckerberg had changed his place of domicile to California?
Sometimes only one court is authorized to hear the type of case in
question. That is known as exclusive jurisdiction. When more than
one court is authorized to hear the same type of case, they each have
concurrent jurisdiction. For example, if a case involves state law and
is between citizens of different states, then the state and federal
courts would have concurrent jurisdiction. In those situations where
both the state and the federal courts have jurisdiction, the plaintiff
makes the initial decision as to which court to use. However, as
illustrated by the Zuckerberg case, when the plaintiff selects a state
court and the federal courts also have jurisdiction, the defendant may
be able to remove the case to federal court.
It is very important to understand that deciding whether to go to
state or federal court is not the same as deciding whether the court
will apply state or federal law to the case. See Figure 4-7. For
example, in a negligence case, a federal court might have jurisdiction
based on the diversity of citizenship of the parties. However, the
federal court must follow state negligence law in deciding the case. If
the case involves an area of unsettled state law, the federal court
must base its decision on its best guess as to what the state’s
highest court would do if faced with the same situation. Because the
federal court is only guessing at what the state court would do, the
federal court’s decision is binding on the current litigants but is not
binding on the state courts. Therefore, no matter how the federal
court decides the case, it will still be open to the state courts to
change the law in that area the next time a litigant brings a case on
the same issue to the state courts. Likewise, when a state court
hears a case involving a federal matter, it must follow the guidance of
the federal courts.
p. 101
p. 102
Does a State or Federal Court Have Does State or Federal Law Apply?
Jurisdiction?
Federal Court — federal question jurisdiction Federal Law — (1) issues arising from the
U.S. Constitution, (2) federal statutes, or
(3) federal agency regulations.
Federal Court — diversity jurisdiction State Law
State Courts — generally have jurisdiction over State Law or Federal Law
any type of case unless Congress has provided
for exclusive federal jurisdiction.
Figure 4-7 Two Separate Questions: State or Federal Court and State or Federal Law?
DISCUSSION QUESTION
7. As the federal courts face an increasingly heavy workload,
many have argued that it is time to either raise the required amount in
controversy or eliminate diversity jurisdiction entirely. The
requirement that the amount in controversy exceed $75,000 is to help
ensure that federal courts are not inundated with cases of minimal
importance. In 1789 Congress set the figure at $500, but over the
years it has increased the amount to the present-day figure. Would
you be in favor of such changes?
C. THE ROLE OF JUDGES IN INTERPRETING AND APPLYING
THE LAW
As we have seen, in order to perform their judicial role, both trial court
and appellate court judges must apply the law to the facts in the case
before them. Because the law, in the form of statutes, regulations, or
constitutional provisions, often contains ambiguous language, before
the judge can apply the law, the judge must interpret it. Frequently,
however, that language can be interpreted in more than one way.
Naturally, these competing interpretations lead to differing outcomes.
Sometimes the losing party may argue that in choosing a particular
interpretation, the judge was actually “making the law” and not simply
applying it, thereby usurping the role of the legislature. There are,
however, a variety of structural and philosophical restraints that limit
this exercise of judicial discretion.
1. Doctrine of Stare Decisis
One significant limitation is that supplied by the doctrine of stare
decisis. In situations where another judge has already applied the
same law to a similar situation, the judge is expected, under the
doctrine of stare decisis, to follow precedent.
Stare decisis serves a number of very important functions in our
legal system. First, it is designed to create predictability and stability
in the system.
p. 102
p. 103
Prudent individuals and businesses want to know ahead of time if a
potential business decision creates a possibility they will commit a
crime or risk a civil lawsuit. In situations where the law may be
somewhat ambiguous, attorneys can research how courts have
interpreted and applied it in previous cases, and then, based on stare
decisis, better advise their clients as to their potential legal liabilities.
Two related benefits of following precedent are that it supports
the values of equality and efficiency. Through the application of stare
decisis the courts mete out the same judgment for similarly situated
people. It also takes courts less time to determine which cases are
appropriate precedents than it would to decide a case of first
impression.
There are two primary criticisms of a strict application of stare
decisis. First, a blind adherence to prior decisions can sometimes
perpetuate a bad legal outcome. It can also make it more difficult for
the law to adapt to changing circumstances.
Although the doctrine of stare decisis limits judicial discretion, it
does not eliminate it. Judges are free to determine which of several
potentially contradictory precedents they will follow. First, courts only
have to follow mandatory, not persuasive, authority. As you will recall
from Chapter 1, precedent is mandatory authority when it comes
from
■ a higher court
■ in the same jurisdiction.
For state cases, that means higher courts within that state’s own
court system. Federal courts deciding a case involving state law
must follow the interpretations given by that state’s courts. Within the
federal court system, it means cases from within that circuit and the
U.S. Supreme Court. Persuasive authority consists of the decisions
of courts that do not constitute mandatory authority and the writings
of legal scholars. It may therefore include primary authority, such as
decisions of other state courts, and secondary authority, such as
legal treatises or law review articles.
While a court technically must follow all mandatory authority,
judges have a great deal of discretion in determining whether a
particular case is mandatory. For a case to be mandatory, it must be
analogous; that is, it must involve similar facts and either the same or
similar rules of law as the case being decided. If the court decides
that the prior cases and the present case are dissimilar, on either the
facts or the law, the court will distinguish the prior cases and will not
be bound by them. Judges, therefore, exercise a great deal of
discretion in deciding which cases are “on point,” and therefore serve
as precedent, and which are distinguishable, and hence can be
ignored.
Finally, the U.S. Supreme Court and the highest-level appellate
state courts have the authority to overturn precedent when in their
judgment changing circumstances dictate a change in the law. This is
a power that is seldom used. It is far more common for judges to
distinguish unfavorable precedents than to directly overrule them.
p. 103
p. 104
2. Legislative Dominance
A second significant check on the power of courts to make law
occurs when the law they are interpreting involves a statute or
regulation. In those situations, if the legislature thinks the court has
not correctly interpreted the law, it can simply amend the statute or
enact new legislation to change the court’s result.
When judges interpret the constitution, theoretically any mistakes
they make can also be rectified through the amendment process.
However, in reality, that is a long and difficult process, which on the
federal level rarely occurs. Therefore, the area where the courts have
the greatest ability to “make law” is when they are called upon to
interpret a constitutional provision. However, when interpreting a
statutory or constitutional provision, there are some additional
constraints placed on judicial discretion that we discuss in the next
section.
3. Approaches to Statutory and Constitutional Interpretation
There are a number of established practices that judges generally
follow in interpreting the law. When faced with an ambiguous
statutory or constitutional word or phrase, generally judges are
expected to start with what is commonly referred to as the plain
meaning approach. This literal interpretation can be based on
definitions contained in the document itself or on an understanding of
how the terms have been commonly defined in standard dictionaries
and used in ordinary conversations.
While this seems to be a very logical and practical way of
interpreting the law, this approach runs into problems when there are
multiple and often conflicting definitions and uses for the terms in
question. Take, for example, the challenge to a District of Columbia
law that required residents to keep their lawfully owned firearms
“unloaded and disassembled or bound by a trigger lock or similar
device” when kept in the home. The petitioners argued this essentially
made their guns unusable. They argued that this restriction interfered
with their Second Amendment right to “bear arms.” The Second
Amendment to the U.S. Constitution states:
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
But what does “to keep and bear arms” actually mean? In the U.S.
Supreme Court case of District of Columbia v. Heller, 8
the majority
and the dissent came to differing conclusions, but both supported
their interpretation with dictionary definitions.
Writing for the majority, Justice Scalia concluded that “keep”
means to possess and “bear” means to carry. He defined “arms” as
9
both offensive and defensive weapons and then concluded that
individuals have a right to possess
p. 104
p. 105
10
and use firearms for purposes of self-defense and other “lawful
11
purposes,” in addition to service in the militia.
On the other hand, in his dissenting opinion, Justice Stevens cited
the Oxford English Dictionary’s definition that “bear arms” means “to
12
serve as a soldier, do military service, fight.” Based in part on this
definition he concluded that the Second Amendment only protects
the possession and use of weapons in the context of formal
regulated militias. Thus, even though both justices relied on
dictionary definitions, they came to opposite conclusions about what
the Second Amendment means.
Besides the problem of conflicting dictionary definitions,
sometimes the same word can have different meanings in different
contexts. For example, a “hit” in the context of a baseball game has a
very different meaning than a “hit” on Broadway or a “hit” in a game of
Blackjack. Therefore, judges will often pursue what is commonly
known as the contextual approach. They will look to other parts of
the same statute, or to other related statutes, to see how the same
term is used in similar contexts.
The U.S. Supreme Court justices also used this contextual
approach in their quest to determine the meaning of the Second
Amendment. Their analysis focused on the relationship between the
two clauses. The first clause, “[a] well regulated Militia, being
necessary to the security of a free state,” is a preamble or
introduction, while the second identifies the specific right, the right of
the people to “keep and bear Arms.” Justice Stevens concluded that
[t]he preamble to the Second Amendment makes three important points. It identifies the
preservation of the militia as the Amendment’s purpose; it explains that the militia is
necessary to the security of a free State; and it recognizes that the militia must be “well
13
regulated.”
In light of these references to the role of the militia, Justice
Stevens argued that the restriction contained in the second clause
should be limited to prohibitions that interfere with the militia, and as
the District of Columbia law did not interfere with the militia, it was
constitutional.
In contrast, Justice Scalia’s opinion declared that the operative
restrictions on keeping and bearing arms are not limited by the
introductory clause. In support of his position, he cited the following
quote in a 1982 text on statutory construction: “The settled principle
of law is that the preamble cannot control the enacting part of the
statute in cases where the enacting part is expressed in clear,
14
unambiguous terms.”
Because the “operative clause” of the amendment refers to the
“right of the people,” rather than to a right of people in the Militia,
Justice Scalia interpreted the “operative clause” of the amendment as
creating a general right to possess handguns that is not limited to
participation in the militia.
p. 105
p. 106
Contextual analysis can also involve examination of other
sections of a statute or constitutional provisions. For example,
Justice Scalia argued that the right to keep and bear arms is an
“individual right,” rather than one reserved for members of the militia.
Scalia pointed out that “[n]owhere else in the Constitution does a
‘right’ attributed to ‘the people’ refer to anything other than an
15
individual right.”
A third commonly used approach to interpreting the law is the
legislative history approach. When using this approach, judges
examine the circumstances under which the law was adopted as a
means of determining what it was designed to accomplish. For
regulations, it usually involves looking at the authorizing statute that
empowered the agency to promulgate the regulation and the nature
of the public comments the agency received. For statutes, it typically
involves looking at committee reports and speeches given during
floor debates on passage of the bill. When an interpretation of a
constitutional provision is involved, judges review notes from the
constitutional convention, or in the case of amendments, the
committee hearings and debates related to its passage.
A major problem with this approach is that different legislators
who voted for the bill may have had different reasons for supporting
it. In fact, the intentions of the majority may even differ from those of
the sponsors or those who talked in committee or during floor
debates.
Originalism is a variation of the legislative intent approach in
which, instead of looking for the intent of the framers of a
constitutional provision, the judges focus on what the “average
person” living at the time a constitutional provision was adopted
would have thought it was intended to accomplish.
16
In Heller the
Court’s majority employed an originalist approach when it asserted
that the common understanding of keeping and bearing arms was
that ordinary citizens had a right to possess and carry firearms so
they could be ready at all times to defend their homes and country.
On the other hand, the Court’s dissent disputed this assertion by
citing a study that found that, of 115 references to “bear arms” found
in books disseminated in the period between the Declaration of
Independence and the adoption of the Second Amendment, 110 of
17
them clearly used it in a military context.
4. Politics and Judicial Decision Making
As we have seen, our legal system requires that judges at all levels
use their discretion to interpret and administer the law. Throughout
our history, judges, especially those on the U.S. Supreme Court, have
played a major role in determining what the government can, and
cannot, do on controversial issues of public policy.
For example, in 1896 the Court interpreted the Fourteenth
Amendment as allowing “separate but equal” treatment to justify
racial segregation. It was not until 1954 that the Warren Court
reinterpreted the Fourteenth Amendment and rejected the doctrine of
“separate but equal,” thus starting the nation on a
p. 106
p. 107
civil rights revolution with its decision of Brown v. Board of
Education. 18
The Warren Court also began a new era in criminal law
with cases like Mapp v. Ohio 19
(requiring the states to abide by the
Fourth Amendment’s search and seizure protections) and Miranda v.
Arizona 20
(granting the right to an attorney). However, the Burger and
Rehnquist Courts again changed the law by carving out an endless
number of exceptions as to when those protections apply. The same
power to reshape the law has continued with the Rehnquist and
Roberts Courts, notably in their interpretation of Roe v. Wade 21
(the
right to an abortion) and affirmative action cases.
The recognition of this role that the Court has played in shaping
the law helps to explain why so much attention is paid to the
nomination and approval process for U.S. Supreme Court justices.
However, keep in mind that while politicians may campaign on the
promise that they will appoint judges who will follow the law rather
than make the law, the truth is that all judges, regardless of party
affiliation, both follow and make law. They differ in terms of the type
of law they make, but not in the fact that they are indeed making it.
DISCUSSION QUESTIONS
8. In District of Columbia v. Heller, Scalia and Stevens both used
the same general approaches to interpreting the Second Amendment,
yet arrived at opposite conclusions.
a. Which justice do you think got it right? Why?
b. If the different approaches lead to different outcomes, do
you think these approaches actually constrain judicial
discretion? Why?
c. Do you think the Supreme Court “made law” in the Heller
case? Why or why not?
9. In 1937, after the U.S. Supreme Court issued a number of
unfavorable rulings regarding his New Deal Legislation, President
Franklin Roosevelt proposed legislation in Congress to add Justices
to the Supreme Court. This has come to be known as “court packing.”
While President Roosevelt stated that his purpose in proposing this
legislation was to ease the workload of the Justices and reasoned
that the U.S. Constitution does not define the size of the Court, the
real purpose was for the President to add Justices that agreed with
his legislation. Members of the President’s own party held up the bill
in subcommittee and it was defeated. In response to the failed
Merrick Garland nomination and President Trump’s subsequent
successful nominations of Supreme Court Justices, in 2019, some
Democrats advocated “court packing” if a Democrat were to be
elected President. Looking at the history of the Court, and keeping in
mind its role in our system of checks and balances, do you think there
are any circumstances that would justify “packing” the Court?
p. 107
p. 108
CHAPTER SUMMARY
In this chapter we have seen that although the American legal system
may seem to involve a confusing mix of names and functions, all
courts can be classified in two ways:
1. They are either trial or appellate courts. Some trial courts have
only limited jurisdiction; for example, they only hear cases in
which less than a certain amount of money is in dispute.
2. They are part of either the federal or a state system.
The federal court system and most state court systems are based on
a three-tier model. At the bottom are the trial courts, which decide
both factual and legal issues. Above the trial courts you will generally
find an intermediate appellate court. At the top of every system is the
highest appellate court. Appellate courts decide questions of law
only. In the federal system the trial courts are called district courts,
the intermediate appellate courts are called courts of appeals, and
the highest court is the U.S. Supreme Court.
The power of a particular court to hear certain types of cases is
known as its jurisdiction. The federal constitution limits all federal
courts’ jurisdiction by allowing them to hear only the types of cases
listed under Article III, Section 2. The two most common grounds for
federal court jurisdiction are federal question and diversity of
citizenship.
The judges that sit on these various courts are selected through a
variety of different methods. While federal constitutional judges are
appointed by the President with the advice and consent of the Senate,
some state court judges are appointed, some are chosen by the
electorate in elections, and others are chosen through a modified
appointment process followed by an election.
Although judges are bound to follow the principles of stare decisis,
the ambiguity inherent in many regulations, statutes, and court
decisions gives individual judges opportunities to provide their own
interpretations of the law and to distinguish precedent cases they do
not wish to follow.
CRITICAL THINKING EXERCISES
1. As discussed above, it is not always easy to know whether
something is a question of fact or a question of law. In fact, there
have been cases when the issue on appeal was whether something
was a question of fact or a question of law. That question is itself a
question of law. To see how that can happen, assume there was a
negligence trial in which a grocer was sued when a customer slipped
and fell. The customer testified that she slipped on a banana peel in
the produce
p. 108
p. 109
section. The grocery store owner testified that when she came to the
assistance of the customer, there was no peel on the floor. One of the
store employees also testified that he had mopped the floor in that
area just five minutes before the accident and that there were no
banana peels on the floor. Nonetheless, the jury found the store liable.
Can the store appeal on the grounds that it was telling the truth and
the customer was lying? No. Why? Because that is a question of fact,
and factual determinations generally cannot be appealed. But can the
store appeal on the grounds that the jury should not have found that
it acted negligently because even if there was a banana peel, such
hazards are to be expected in the produce section and the store had
done all it could to make the area safe? Is that issue — that is,
whether the store acted as a reasonable store should — a question of
fact or a question of law?
2. For each of these situations determine whether you think the
matter should be heard in state or federal court. Also decide whether
you think a court would apply state or federal law.
a. A wife wants to divorce her husband.
b. Martha, a Massachusetts resident, wants to sue Susan, a
Massachusetts resident, for $80,000 based on breach of
contract.
c. Sam, a Massachusetts resident, wants to sue Jill, a Vermont
resident, for $80,000 based on breach of contract.
d. A teacher in a public school wants to challenge a state law
requiring all teachers to start each day of class with a minute
of silent prayer.
WEB EXERCISES
1. At www.oyez.org/ you can hear U.S. Supreme Court arguments,
take a virtual tour of the Supreme Court building, or learn more
about the Supreme Court justices.
a. Watch this eight-minute Supreme www.c-
Court Video,
span.org/video/?c4756134/supreme-court-oral-arguments.
How did the speakers describe oral argument?
b. Watch this eight-minute Supreme www.c-
Court Video,
span.org/video/?c4552963/opinion-writing-announcement.
You may have heard the saying that there is no good writing,
only good rewriting. According to the speakers, how many
times might one of the justices redraft an opinion?
2. Go to the National Center for State Courts at www.ncsc.org/ and
then under “What We Do,” click on “Browse by State” and then on
“Court Web Sites.” Find your state and then answer the following
questions:
a. Does your state publish the opinions from its highest appellate
court? If so, how far back is the coverage?
b. What are the names of your state’s trial courts? Are there
courts for specialized jurisdiction as well as general
jurisdiction?
p. 109
p. 110
REVIEW QUESTIONS
Pages 83 through 88
1. What are the two basic functions of trial courts?
2. What is the difference between questions of law and questions of
fact? Why is it important to know the difference?
3. Give an example of a question of fact that might arise during a
murder trial and an example of a question of law that might arise
in that same trial.
4. What is the difference between a bench and a jury trial?
5. What will an appellate court usually do if it finds that the trial
court made a harmless error?
6. What is the difference between reversing and remanding a case?
7. How do majority, dissenting, and concurring opinions differ from
each other?
8. List the major differences between trial and appellate courts.
Pages 88 through 94
9. In the federal court system, what are the names given to
a. the highest appellate court,
b. the intermediate appellate courts, and
c. the trial courts?
10. Look at the map in Figure 4-3. How many district courts are there
in your state? In which circuit is your state located?
11. If you hear that “cert” has been denied in a case, what does that
mean?
12. In the federal system, what are the “inferior Courts”?
Pages 95 through 102
13. Describe a typical state court system. How is your state court
system similar to or different from the “typical” state system?
14. True or false: In every state the highest appellate court is called
the supreme court.
15. How are federal judges selected? How does this differ from the
way state judges are selected?
16. Jurisdiction refers to the power a court has to hear a case. Define
each of the following types of jurisdiction:
a. general jurisdiction,
b. limited jurisdiction,
c. original jurisdiction,
d. appellate jurisdiction,
e. exclusive jurisdiction, and
f. concurrent jurisdiction.
17. What are the two major grounds for gaining federal court
jurisdiction?
Pages 102 through 108
18. What does it mean to say that judges sometimes “make law”?
19. What restraints limit judicial discretion in interpreting the law?
20. What is the difference between mandatory and persuasive
authority? Why does it matter?
1
The primary exception to this pattern occurs when a dispute is adjudicated in an
administrative agency and then appealed to the courts. In very rare circumstances a case
can be filed directly with the U.S. Supreme Court under its original jurisdiction.
2
425 U.S. 484 (1976).
3
In this process, the party seeking review of a lower court decision petitions (asks) the court
to issue a writ of certiorari. This writ is an order to the lower court to send a certified record
of the case to the Supreme Court so that the Court can “be informed about” the previous
proceedings.
4
A justice might be disqualified because of a potential conflict of interest or for medical or
personal reasons.
5
See Stern v. Marshall, 564 U.S. 462 (2011).
6
In some states, below the trial courts shown in Figure 4-5 is a system of inferior courts with
names such as justice of the peace, city, and magistrate courts. Those courts are not courts
of record. This means that no permanent record is kept of the testimony, lawyers’ remarks,
or judges’ rulings. The absence of a record eliminates the possibility of an appeal and
requires the losing party to initiate a completely new trial in a higher-level trial court if that
party wishes to have the matter reconsidered.
7
Author’s Note: This was the lawsuit that formed the basis for the movie The Social
Network. Two brothers, who attended Harvard at the same time as Zuckerberg, alleged that
they first thought of the idea for Facebook and that Zuckerberg stole it from them. The case
was settled for $65 million. In 2012, Ceglia was indicted for fabricating evidence in this
lawsuit and was ordered to wear a GPS device. He cut off his GPS tracker in 2015 and fled.
He was arrested in Ecuador in 2018.
8
554 U.S. 570 (2008).
9
Id. at 584.
10
Id. at 624.
11
Id. at 620.
12
Id. at 646 (Stevens, J., dissenting).
13
Id. at 640 (Stevens, J., dissenting).
14
Id. at 578, n. 3.
15
Id. at 580.
16
This approach is most commonly associated with U.S. Supreme Court Justice Antonin
Scalia.
17
554 U.S. at 648, n. 9 (Stevens, J., dissenting).
18
347 U.S. 483 (1954).
19
367 U.S. 643 (1961).
20
384 U.S. 436 (1966).
21
410 U.S. 113 (1973).
p. 110
p. 111
Civil Litigation and Its Alternatives
Discourage litigation. Persuade your neighbors
to compromise whenever you can. As a
peacemaker the lawyer has superior
opportunity of being a good man. There will still
be business enough.
Abraham Lincoln
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain the advantages and disadvantages of litigation,
mediation, and arbitration.
■ Describe the three basic stages of litigation.
■ Explain the importance of subject matter and personal
jurisdiction.
■ Discuss the functions of the complaint, answer, and summons.
■ Compare and contrast a motion to dismiss with a summary
judgment motion.
■ List the main methods used in discovery, including electronic
discovery.
■ List the steps in a typical trial.
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p. 112
INTRODUCTION
Litigation is the process of using the courts to settle disputes. In this
chapter, we provide an overview of the litigation process, including
the procedural steps involved in initiating, trying, and appealing civil
cases. Litigation can be a very expensive, stressful, and lengthy
process. The party that loses a lawsuit rarely pays the attorney fees
of the prevailing party. Because of this, most civil litigation cases
settle. Settlement can occur prior to the filing of the lawsuit, any time
prior to trial, during trial, or even after trial. Because of the time,
expense, and uncertainty of the litigation process, various alternatives
to litigation, such as arbitration and mediation, are commonly used.
The alternative approaches are known collectively as alternative
dispute resolution (ADR).
To help illustrate the procedures used to settle civil disputes, we
will again refer to the hypothetical situations involving Donald Drake
(first discussed in Chapter 1) and Diane Dobbs (introduced in Chapter
2) to illustrate litigation and its alternatives. You will recall that Mr.
Drake witnessed the death of his grandson, Philip, who was struck by
the car driven by Wilma Small.
Case 1: The Distressed Grandfather (Continued)
Approximately one year ago Mr. Drake and his six-year-old
grandson, Philip, were walking down a residential road on their way
home from visiting one of Philip’s friends. Philip was walking on
the sidewalk approximately 30 feet in front of Mr. Drake. Suddenly,
a car sped past Mr. Drake, seemingly went out of control, jumped
the curb, and hit Philip. Mr. Drake ran to Philip’s side, but it was too
late. Philip had been killed instantly. The driver of the car, Mrs.
Wilma Small, was unhurt.
At the time of the accident Mr. Drake’s only concern was for the
welfare of his grandson, because he himself was clear of the
danger. Naturally, Mr. Drake suffered a great deal of emotional pain
and shock because of seeing his grandson killed. While being
driven home from the accident, he suffered a heart attack that
necessitated a lengthy hospital stay.
One year later, he still does not feel completely recovered and
often suffers from nightmares reliving the accident and his
grandson’s death. Mr. Drake would like to sue Mrs. Small to recover
for his hospital bills, for his pain and suffering, and for the
emotional distress he felt on seeing his grandson killed. After
researching the law and gathering additional facts, attorney Harper
met with Mr. Drake a second time to discuss their various options,
including proceeding with the lawsuit or first trying an alternative
method to resolve his case.
Case 3: The Pregnant Waitress (Continued)
Diane Dobbs was the waitress who was fired when she
announced to her boss that she was pregnant.
In a second meeting with Ms. Dobbs, attorney Harper asked her
whether she had belonged to a union and, if so, the terms of any
collective agreement with her employer. Ms. Dobbs recalled that
some money had been taken out of her paycheck every pay period,
but did not know if it was just for taxes or also covered union dues.
She said she would find out and report back to attorney Harper.
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p. 113
A. ALTERNATIVE DISPUTE RESOLUTION (ADR)
We begin with a discussion of alternative dispute resolution
techniques because they are designed to be used either prior to, or
instead of, litigation. You should keep in mind, however, that in real life
actions may not proceed in such a straightforward manner. Although
informal negotiations may begin the moment a dispute arises, there
is no set order in which the parties are required to proceed. They may
decide to file a complaint immediately, initiating the litigation process,
but then suspend their litigation efforts while trying to resolve the
dispute through arbitration or mediation. Should those efforts fail, the
parties may then pick up where they left off in the litigation process.
At other times, however, the parties may turn first to an alternative
dispute resolution process and only then proceed with initiating a
lawsuit if that process fails. Finally, parties may have signed a
contract agreeing to the sole remedy of arbitration long before a
dispute arises. Therefore, as you read this chapter, keep in mind that
the various forms of alternative dispute resolution, including informal
negotiations, mediation, and arbitration, can arise at any time from
before formal litigation has begun to well after a lawsuit has been
filed and the litigation process is under way.
In comparison to litigation, ADR is designed to resolve conflicts
more rapidly and at a lower cost. It can take many forms, ranging
from very informal negotiations, which usually begin as soon as a
dispute arises and may not end until the final appeal has been filed, to
the more formal approaches of mediation and arbitration, which
require the involvement of a neutral third party as either mediator or
arbitrator.
The main difference between mediation and arbitration is that in
mediation, the third party acts as a facilitator who tries to help the
parties reach their own resolution. In arbitration, the third party is a
decision maker who acts much like a judge would at a trial.
To encourage greater use of ADR, Congress enacted legislation in
1998 requiring each U.S. district court to establish and implement
programs to offer alternative dispute resolution to litigants. Nearly all
of the U.S. courts of appeals have also established mediation
programs to assist parties in resolving their appeals. Similarly, many
state and local court systems have also incorporated ADR, especially
in the area of family law, where the parties are often required to
participate in formal mediation regarding issues of child custody and
visitation.
NETNOTE
If you are interested in learning more about various forms of ADR,
there are several websites you can visit, including the American
Arbitration Association at www.adr.org/, the Mediation Information
and Resource Center at www.mediate.com/, the ABA Section on
Dispute Resolution at
www.americanbar.org/groups/dispute_resolution/ , and the
College of Commercial Arbitrators at www.ccaarbitration.org/. The
ABA Journal has a list of ADR blogs at
www.abajournal.com/blawgs/topic/alternative+dispute+resolutio
n.
p. 113
p. 114
1. Mediation
In mediation a neutral third party attempts to guide the disputants
toward a compromise that is voluntarily accepted by both sides.
Mediation is based on the premise that the best solution is the
solution that the parties themselves devise, rather than one imposed
on them. The role of the mediator is to help the disputants identify the
issues that divide them and explore possible solutions. The mediation
process is designed to help the opposing parties view themselves as
collaborators working toward a compromise solution, rather than as
combatants out to “win” at any cost.
The mediator helps the disputants identify the issues that divide
them and to explore potential solutions acceptable to both parties. If
the mediation is successful, the mediator will draft a written
agreement for the parties to sign. If they do not reach an agreement,
they can simply walk away from the mediation and seek other
approaches to resolving their differences.
While mediation is normally seen as a process involving voluntary
cooperation between the parties, many states are now imposing
“mandatory mediation” in selected types of disputes. It is mandatory
in the sense that both parties are required to engage in a formal
mediation process before a court can hear the case. However, if the
mediation does not result in the parties reaching a mutually
acceptable resolution, the parties can still end the mediation process
and continue with the court proceedings.
Generally, some types of cases are better suited for mediation
than others. Mediation is particularly appropriate in those situations
where the parties will be required to deal with each other in the future;
examples include child visitation after a divorce or a dispute between
neighbors. In these situations, it is hoped that the mediation process
will not only resolve the current situation but will also improve the
participants’ interpersonal and conflict management skills as they
continue to deal with each other in the future.
Some situations do not lend themselves to mediation, such as in
situations involving domestic violence. Not only may the contact
between the abuser and the victim during mediation result in further
violence following the mediation session, but the victim may perceive
the mediation session itself as another form of abuse. Further, as
mediation works best when the parties are of fairly equal bargaining
power, it is not as effective in situations of abuse, where the victims
often perceives themselves as powerless against the abuser.
2. Arbitration
In 1924, Congress passed the Federal Arbitration Act to encourage
arbitration in civil matters. Unlike mediation, in arbitration, the neutral
third party has the authority to render binding decisions, even if the
parties do not agree with the result. Whereas a mediator is a
facilitator, an arbitrator takes a role more similar to that of a judge.
Arbitrators follow a much simpler set of procedures than do judges,
however, and arbitration does not require as much time or expense as
litigation. Generally speaking, both parties must agree in advance to
accept the arbitrator’s decision, and the dissatisfied party may not
challenge it in court except on very limited grounds, such as arguing
the award was obtained by fraud.
p. 114
p. 115
The business community has long been a strong supporter of
ADR because it is viewed as a faster and less expensive means of
settling disputes that arise in the course of doing business. It is
common practice for businesses to include arbitration clauses in
their contracts. Under these clauses the parties are legally bound to
refer disputes over the interpretation of a contract to arbitration
rather than take them to court. In addition to saving time and money,
ADR often allows a company to settle a dispute without attracting the
public attention that may accompany a lawsuit because the result of
arbitration can frequently be kept confidential.
In the field of labor law, arbitration is often used as a way of
avoiding strikes. Sports fans are familiar with the role arbitration has
played in determining the salaries of baseball players. Public
employees are often required to use arbitration when state law
prohibits them from striking.
As mentioned above, arbitrators are not required to apply the
same procedures and rules of evidence that judges must use. Adrian
Peters, a professional football player, challenged an arbitration ruling
that upheld the National Football League’s (NFL) decision to suspend
and fine him. The NFL had acted after Peterson was charged with
“reckless or negligent injury to a child” in connection with his allegedly
having beaten his four-year-old son with a switch. After the arbitrator
upheld the league’s decision, Peterson sued in federal court, alleging
that the charge against him and the arbitrator’s ruling violated the due
process clause of the U.S. Constitution. He based his argument on
the fact that the NFL had applied a new disciplinary rule to him that
had not been in effect at the time of the incident with his son. In
rejecting these claims, the Court of Appeals emphasized that the NFL
Players’ Association had agreed to the arbitration procedures, and
that the statute governing labor arbitration did not allow rulings to be
1
vacated on grounds of lack of “fundamental fairness.”
As it turns out, the pregnant waitress, Ms. Dobbs was not a
member of a union. If she had been, then there would have been a
collective bargaining agreement with her employer, and it is likely she
could have filed a formal grievance. The union representative would
then have attempted to negotiate a resolution of her dispute with
management. If those negotiations were not successful, most likely
the collective bargaining agreement would have included a
mandatory arbitration clause requiring Ms. Dobbs to submit her
grievance to arbitration.
In addition, some employers require that their employees sign an
agreement that provides that all employment disputes will be
resolved through arbitration. Although Diane Dobbs did not sign such
an agreement, in Epic Systems Corp. v. Lewis, 2
the U.S. Supreme
Court upheld the validity of such compulsory arbitration clauses. In
this case, a junior accountant, Stephen Morris, filed a class action
lawsuit against his employer, Ernst & Young, for misclassifying its
junior accountants as professional employees in violation of the
Federal Fair Labor Standards Act (FLSA). Ernst & Young replied with a
motion to compel arbitration pursuant to an arbitration clause in Mr.
Morris’ employment contract.
p. 115
p. 116
Mr. Morris countered that while the Federal Arbitration Act generally
requires courts to enforce arbitration agreements, a “savings clause”
removes this obligation if the arbitration violates some other law and
so the class action suit should be allowed to go forward.
The Supreme Court found that the arbitration clause was valid.
Justice Gorsuch wrote for the majority:
The policy may be debatable but the law is clear: Congress has instructed that
arbitration agreements like those before us must be enforced as written. While Congress
is of course always free to amend this judgment, we see nothing suggesting it did so in
the NLRA — much less that it manifested a clear intention to displace the Arbitration
3
Act.
In her dissent, Justice Ginsberg wrote that while the text of the
FLSA does not specifically address the Arbitration Act, the legislative
history shows that the FLSA was created to allow employees to “to
engage in . . . concerted activities” for their “mutual aid or protection.”
She argued that by finding the arbitration clause enforceable, the
Court failed to follow the will of Congress in creating the NLRA.
The #MeToo Movement has had an impact on companies
requiring employees, as a condition of employment, to sign
confidential arbitration agreements for any future sexual harassment
claims. Concerns that confidential arbitration of sexual harassment
claims fail to adequately protect employees from sexual predators
has changed company policy and the laws of several states. A
number of employers, including Google and Facebook, voluntarily
ended private arbitration clauses in their employment contracts. In
February 2018, the attorney generals of all 50 states signed a letter to
the U.S. Congress asking that legislation be enacted to end
4
mandatory arbitration of sexual harassment claims. In 2018–2019,
Congress proposed, but did not enact, a number of bills to end forced
5
arbitration in employment contracts.
3. Evaluation of ADR Techniques
Proponents of ADR argue that its use saves time and avoids at least
some of the expenses associated with going to court. It is also
generally thought that the parties will feel better about a solution they
worked out through mediation than they will about a decision
imposed on them by the courts. This is especially true in child
custody cases, where the parents should feel as though they “own”
the decision, as they will often need to continue to have regular
contact with each other and to consult with each other about the
welfare of their children.
Not everyone agrees with this positive assessment of ADR,
especially in regards to arbitration. Many complain that arbitration is
acquiring too many of the disadvantages of litigation in regards to
cost and time spent, without
p. 116
p. 117
retaining the benefits of litigation, that is, the ability to use discovery
to uncover facts known only to the other party and the possibility of
appealing an unfavorable decision.
DISCUSSION QUESTIONS
1. If you were involved in a dispute, which ADR method would you
prefer?
2.Do you think either mediation or arbitration would be
appropriate in Mr. Drake’s case? Why or why not?
When ADR methods fail, the parties may decide to proceed to
litigation. That process of litigation is the subject of the next section.
Case 1: The Distressed Grandfather (Continued)
Generally, attorney Harper prefers to use a form of ADR
whenever possible as it may save her clients time, stress, and
expense. Also, if there is a chance for an ongoing relationship
between the parties, mediation, because it is less adversarial than
litigation or arbitration, may help to preserve that relationship. Mrs.
Small’s attorney, however, has refused to engage in informal
negotiations or in more formal ADR methods, such as mediation or
arbitration. He informed attorney Harper that it is his position that,
as Mr. Drake was not Philip’s parent, there is no legal basis for
making Mrs. Small responsible for Mr. Drake’s injuries. Attorney
Harper informed Mr. Drake that they have no choice, if they want to
proceed, except to turn to the court system and litigation.
B. LITIGATION
Specific rules govern the litigation process. Both the federal and state
courts have published their particular rules under names such as the
Federal Rules of Civil Procedure, Massachusetts Rules of Civil
Procedure, and Illinois Criminal Law and Criminal Procedure. Most
state rules are quite similar to those used in the federal courts.
In both federal and state courts, litigation has three basic stages:
pretrial, trial, and appeal. Take a few moments to study Figure 5-1,
which provides an overview of the litigation process. Refer to it as you
proceed with the remainder of this chapter to help you keep track of
the various stages.
1. The Pretrial Stage
A lawsuit officially begins when the plaintiff files a complaint with the
clerk of the court. However, before this can occur, the attorney must
establish some preliminary matters:
■ whether a legal basis for the suit exists,
■ who should be sued,
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p. 118
Figure 5-1 Civil Procedure
p. 118
p. 119
■ in which court the case should be brought,
■ whether the statute of limitations has expired, and
■ whether any administrative agency must be consulted before
filing suit.
Once those issues have been resolved and a determination to sue
has been made, the lawsuit enters the pleadings stage. The
pleadings are the documents each side files with the court and
serves on the other side to commence the lawsuit. In order to narrow
the issues, either party may file pretrial motions. Finally, the parties
will engage in discovery, an attempt by both sides to gather as much
information as possible. The end result of this process may be a
negotiated settlement, a court determination to dismiss the suit, or a
decision to proceed to the trial stage.
a. Preliminary Matters
The decisions as to these preliminary matters are not always easy
to make and may involve extensive factual and legal research in order
to determine the best course of action.
(1) Legal grounds for the suit
As you will recall from Chapter 1, not every problem is a legal
problem for which the courts can provide a remedy. Therefore, before
an attorney can initiate a lawsuit, the attorney must be convinced that
the client has a valid cause of action — that is, based on the law and
the facts the client’s claim is sufficient to support a lawsuit. This
determination involves answering two questions affirmatively. First,
does the attorney believe that there are sufficient credible facts to
support the plaintiff’s position? Second, does the attorney believe that
there is a valid legal theory to support the claim?
NETNOTE
On the Internet you can find all sorts of useful information about
the courts — everything from their fax numbers to the location of a
specific courthouse. To find the address of any state court, a good
place to start is at the home page for the National Center for State
Courts, www.ncsc.org/. The center maintains a complete listing for
all 50 states. For information on federal courts, you can visit either
the federal judiciary home page at www.uscourts.gov/ or the
Federal Judicial Center home page at www.fjc.gov/. Finally, the
U.S. Supreme Court has its own website at
www.supremecourt.gov/.
In determining whether a client’s position is supported by credible
facts, attorneys must review relevant documents and interview
witnesses. If attorneys file lawsuits without first conducting
reasonable investigation regarding the facts
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p. 120
of the case, they may be subject to court-imposed sanctions. For
example, under Rule 11 of the Federal Rules of Civil Procedure, if a
judge determines that an attorney has not conducted a reasonable
inquiry into the facts and law or has filed suit for an improper
purpose, then the judge may impose monetary sanctions on the
attorney and on the parties. If a party is represented by an attorney,
Rule 11 also requires that the attorney sign the pleadings, written
motions, and other papers.
DISCUSSION QUESTION
3. In Mr. Drake’s case, assume that Massachusetts courts have
allowed mothers and fathers to recover in situations similar to that
experienced by Mr. Drake but have never spoken about whether they
would extend the rule to allow recovery by grandparents. Several
other states, however, that have directly confronted this issue have
ruled against grandparents. The most common reason for not
allowing recovery is the fear that to do so would encourage people to
bring too many potentially frivolous lawsuits. With that as the legal
precedent, do you think Mr. Drake’s attorney should feel any concern
in signing her name to the complaint? Why or why not?
(2) Parties to the suit
Lawsuits can involve just one plaintiff and one defendant or
multiple plaintiffs and defendants. Determining the appropriate
parties is one of the first issues that must be resolved before the
lawsuit can proceed.
(a) Standing You cannot sue someone simply because you do not
like something they did or said. In order to sue, you must be able to
establish you were personally affected by something the defendant
did. This requirement is referred to as standing. It is designed to keep
6
courts from deciding abstract issues or rendering advisory opinions.
By requiring the parties to have a vested interest in the outcome,
courts benefit from hearing litigants who will vigorously argue their
positions.
Why limit lawsuits to people who have been hurt? One reason is that they’re likely to
marshal the strongest arguments. It brings to mind the old line about the role of the
chicken and the pig in furnishing your breakfast: The chicken is involved, but the pig is
committed. Let chickens file lawsuits against bacon-and-egg combos, and they may
7
lack the motivation to do a good job.
Because of this requirement of standing, persons and
organizations cannot file lawsuits simply because they do not
approve of a certain governmental policy or some corporation’s
building project. For example, when the Patriot Act was passed after
9/11, some argued that parts of the legislation were unconstitutional.
However, before a court could hear such criticism, some person or
p. 120
p. 121
corporation would have to show they were actually impacted by
those provisions. In the following case, the court had to determine
whether three same-sex couples had standing. The couples wanted
the court to declare that an Oklahoma statute, which limited adoption
to heterosexual couples, was unconstitutional.
Finstuen v. Crutcher
496 F.3d 1139 (10th Cir. 2007)
EBEL, Circuit Judge.
I.
Three same-sex couples and their adopted children have
challenged the following amendment to Oklahoma’s statute
governing the recognition of parent-child relationships that are
created by out-of-state adoptions.
§ 7502-1.4. Foreign adoptions
A. The courts of this state shall recognize a decree, judgment, or final order creating
the relationship of parent and child by adoption, issued by a court or other
governmental authority . . . in another state. . . . Except that, this state . . . shall not
recognize an adoption by more than one individual of the same sex from any other
state.
Okla. Stat. tit. 10, § 7502-1.4(A) (the “adoption amendment”).
Each of the three families has a different set of circumstances.
Mr. Greg Hampel and Mr. Ed Swaya are residents of Washington,
where they jointly adopted child V in 2002. V was born in
Oklahoma, and . . . the men agreed to bring V to Oklahoma to visit
her mother “from time to time.” . . . After V’s adoption, Mr. Hampel
and Mr. Swaya requested that OSDH issue a new birth certificate
for V. OSDH did so on July 7, 2003, but named only Mr. Hampel as
V’s parent. Mr. Hampel and Mr. Swaya contested that action.
. . . OSDH subsequently issued V a new birth certificate naming
both men as parents. The state legislature responded one month
later by enacting the adoption amendment.
Lucy Doel and Jennifer Doel live with their adopted child E in
Oklahoma. E was born in Oklahoma. Lucy Doel adopted E in
California in January 2002. Jennifer Doel adopted E in California
six months later in a second parent adoption, a process used by
step-parents to adopt the biological child of a spouse without
terminating the parental rights of that spouse. OSDH issued E a
supplemental birth certificate naming only Lucy Doel as her
mother. The Doels have requested a revised birth certificate from
OSDH that would acknowledge Jennifer Doel as E’s parent, but
OSDH denied the request.
Anne Magro and Heather Finstuen reside in Oklahoma with
their two children. Ms. Magro gave birth to S and K in New Jersey
in 1998. In 2000, Ms. Finstuen adopted S and K in New Jersey as a
second parent, and New Jersey subsequently issued new birth
certificates for S and K naming both women as their parents.
These three families brought suit against the state of
Oklahoma seeking to enjoin enforcement of the adoption
amendment. . . . The Doels also requested a revised birth
certificate naming both Lucy Doel and Jennifer Doel as E’s parents.
. . .
II.
A. Jurisdiction
[P]rior to reaching the merits, we must . . . establish whether the
plaintiffs possess Article III standing, which requires that a plaintiff
establish injury-in-fact, causation and redressability.
. . . The injury-in-fact must be “concrete in both a qualitative and
temporal sense. The
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complainant must allege an injury to himself that is ‘distinct and
palpable,’ as opposed to merely ‘abstract,’ and the alleged harm
must be actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ”
Whitmore v. Arkansas, 495 U.S. 149 (1990) (citations, alteration
omitted).
. . .
[T]he Hampel-Swaya family lacks an injury sufficiently
immediate to establish standing. Mr. Hampel and Mr. Swaya argue
that they are obligated under the open adoption agreement with
V’s mother to bring V to Oklahoma, and have refrained from this
travel because of a fear that something will happen during their
visit that could require Oklahoma agencies to consider the legality
of their parent-child relationship. They contend that the potential
harm from a failure to recognize Mr. Hampel and Mr. Swaya as V’s
parents infringes on their constitutional right to travel.
However, . . . ordinary travel generally does not require a state
to examine the legitimacy of an asserted parent-child relationship.
Although a medical emergency might create a scenario in which
parental consent is required, such a situation is merely
hypothetical. . . . Such guesswork invokes [the Supreme Court’s]
admonition that “[i] t is the reality of the threat of repeated injury
that is relevant to the standing inquiry, not the plaintiff’s subjective
apprehensions.” 461 U.S. at 107 n. 8. The Hampel-Swaya family’s
alleged injuries are simply too speculative to support Article III’s
injury-in-fact requirement for standing.
The Finstuen-Magro family, though residing in Oklahoma,
similarly fails to satisfy the injury-in-fact requirement for standing.
Ms. Magro is the biological mother of children S and K. Therefore,
her parental rights cannot be jeopardized by the Oklahoma
amendment, and S’s and K’s rights that flow from that relationship
are not threatened. Ms. Finstuen states that she fears having her
parent-child relationship invalidated, and this fear causes her to
avoid signing forms and papers — such as school permission slips
or medical releases — that could trigger a question about her
legitimacy as a parent. She also states that S and K are fearful due
to her uncertain parental status, and that they have become more
“clingy” and are “increasingly concerned about when and whether
she will come home.”
But Ms. Finstuen recites no encounter with any public or
private official in which her authority as a parent was questioned. .
. . The Finstuen-Magro plaintiffs, therefore, also fail to state a
sufficient injury to confer standing under Article III for this suit.
In contrast, . . . the Doels have standing under Article III. OSDH
has refused to revise E’s birth certificate to add Jennifer Doel’s
name as a parent, and thus both Jennifer and E state an injury-in-
fact. In addition, Jennifer and Lucy Doel recount an encounter with
medical emergency staff in which they were told by both an
ambulance crew and emergency room personnel that only “the
mother” could accompany E and thus initially faced a barrier to
being with their child in a medical emergency. This incident too
constitutes a concrete, particularized injury.
. . .
It is clear that the adoption amendment is the codification of a
general policy not to recognize the parent-child relationship of
same-sex parents, and the Doels have stated that this policy
caused their injury. Thus, the Doels have standing under Article III
to claim that the Oklahoma adoption amendment is
unconstitutional and to request a revised birth certificate for E
naming Jennifer Doel as a parent.
[Authors’ Note: Once it had resolved that the Doel couple did
have standing, the court proceeded to hold that “final adoption
orders by a state court of competent jurisdiction are judgments
that must be given full faith and credit under the Constitution by
every other state in the nation. Because the Oklahoma statute at
issue categorically rejects a class of out-of-state adoption
decrees, it violates the Full Faith and Credit Clause.”] 8
p. 122
p. 123
CASE DISCUSSION QUESTIONS
1. Why did the court determine that neither the Hampel-Swaya
couple nor the Finstuen-Magro couple had standing? Do you agree
with the court’s rationale?
2. How is the Doel couple’s situation sufficiently different from
that of the other two couples for the court to find that they had
standing to challenge the statute?
(b) Legal competence Parties to a lawsuit are legally capable of
suing and being sued. For example, in many states a minor must sue
or be sued through a named guardian or “next friend.” A guardian is
someone who has the legal right and duty to take care of another
person’s property when that person is a child or is otherwise
incompetent. A next friend is not the legal guardian but is a
responsible party that the court recognizes as a legitimate
representative. Allowing suit by such representatives is an exception
to the requirement of standing mentioned above. The guardian or
next friend is not suing in his or her own right but rather as a
representative for the child or incompetent person.
(c) Class action lawsuits Class action lawsuits allow multiple
individuals to come together in a single lawsuit to sue the same
defendants for the same type of injury. Class actions promote
efficiency by allowing testimony to be heard and issues to be
resolved in one large trial rather than repeatedly in a series of
individual trials. Also, the use of class actions may allow plaintiffs
with individually small claims a chance to recover. Usually it is not
economically feasible for a single plaintiff to pay the legal fees
necessary to recover a small amount of damages, but it becomes
worthwhile for an attorney to take the case on a contingency basis
when the damages of hundreds or even thousands of plaintiffs are
consolidated.
Before a class action can proceed, the court must certify that it
meets two basic requirements:
1. there must be questions of law or fact common to the class,
and
2. the claims of the named class members must be typical of the
claims of the class as a whole.
Defendants can object to the validity of proceeding with a class
action lawsuit by arguing that either or both of those two
requirements are missing. For example, Wal-Mart challenged the
validity of a class action brought on behalf of 1.5 million of its
employees and former employees. The U.S. Supreme Court agreed
with Wal-Mart that the class was too diverse to qualify for class
9
action status. Although they all claimed Wal-Mart had discriminated
against them on the basis of their sex, the Court noted that the class
members “held a multitude of different jobs, at different levels of Wal-
Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled
across 50 states, with a kaleidoscope of supervisors (male and
10
female), subject to a variety of regional policies that all differed.”
p. 123
p. 124
Five years later a group of 3,000 Tyson Foods Inc. employees
sued, seeking overtime wages for time they had to spend donning
and doffing protective gear, required as part of their job. The Court
allowed them to proceed with their class action suit. The Court
distinguished Wal-Mart on the basis that in Wal-Mart the employees
were not similarly situated whereas the employees at Tyson Foods
were — they worked in the same facility, did similar work, and were
11
paid under the same policy.
DISCUSSION QUESTIONS
4. A classic example of how the requirement of standing affects
who can sue occurred in conjunction with the litigation that led up to
the famous case of Brown v. Board of Education. 12
Although the
National Association for the Advancement of Colored People
(NAACP) was opposed to the Kansas policy of segregating its public
school system, it had no standing on its own to challenge the
constitutionality of that policy. Before it could proceed, the
organization had to recruit an African American child who was
actually turned away when she attempted to enter an all-white school
13
located in her neighborhood. Eventually, the NAACP was able to find
13 parents and their children who were willing to serve as plaintiffs in
the case. Do you think this was ethical? Did the NAACP in effect
subvert the purpose of the standing requirement?
5. Do you agree with the Supreme Court’s decision in Wal-Mart? Is
it fair that Wal-Mart will not have to answer to the thousands of
women whose individual claims are too small to justify the costs of
litigation? If the individual women had been able to proceed with a
lawsuit, does it promote the best use of judicial resources for Wal-
Mart to have to defend 1.5 million lawsuits instead of just one large
class action suit?
(d) Selecting the appropriate defendants After having determined
who are the appropriate plaintiff or plaintiffs, the attorney must
decide who should be named as defendants. Naturally the attorney
will choose to sue the person who caused his or her client harm.
However, the most logical person to sue may not be worth suing
because he or she may not have money to pay the damages that a
court might award. This is referred to as being judgment proof. If
there is more than one possible defendant, the plaintiff will want to
make sure to include the one with the deepest pockets (i.e., the most
assets).
For example, under a theory known as respondeat superior an
employer can sometimes be held responsible for the acts of its
employees. Because employers usually have more money than
employees, persons injured by an employee will frequently also sue
the employer. Similarly, in an automobile accident case the plaintiff
may sue the manufacturer of the auto or the governmental unit
responsible for maintaining the roadway.
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p. 125
There are times when a plaintiff cannot sue one potential
defendant without including the others as well. This is known as
compulsory joinder. For example, in a dispute involving a piece of
property with three owners, all three would have to be made part of
the lawsuit. Where such rules do not apply, the plaintiff may be
selective in deciding who should be included in the suit. The
defendant, however, may later file a motion to add a defendant that
the plaintiff left out.
(3) Selection of the court
The last preliminary issue requires the attorney to decide which
court should hear the case. From your readings in Chapter 4 you
know that lawsuits begin in a trial court and not an appellate court,
but which trial court? That will depend on which trial courts have
jurisdiction over the type of case that the attorney will be filing. Recall
that jurisdiction relates to the power of a particular court to hear a
case brought before it. In some cases the attorney may have the
option of selecting among several different courts and must evaluate
the advantages and disadvantages of using one versus the other.
Once it is determined which court has jurisdiction to hear the
case, a related issue is the question of venue, which determines the
specific geographical location of the court that will hear the case.
Jurisdiction and venue are related in that they both deal with which
court will hear the case, but they are very different. Jurisdiction
concerns the power of a court to hear a case. Once jurisdiction is
determined, venue simply relates to which of several courts that have
jurisdiction geographically is the most appropriate court. For
example, assume that two people signed a contract in Ann Arbor,
Michigan. Jurisdiction would be determined by the type of case, the
law underpinning the case, and the parties to the contract. Once
jurisdiction was established, then the appropriate geographical area,
the venue, would be selected. In this example, that would likely be the
county in which the contract was signed.
In determining whether jurisdiction exists, you must consider both
subject matter jurisdiction and personal jurisdiction. If a court does
not have both subject matter jurisdiction and personal jurisdiction, it
cannot hear the case.
(a) Subject matter jurisdiction As the term implies, subject matter
jurisdiction is determined by the subject matter of the case — that is,
the type of law that is involved. Generally, federal courts can hear only
cases relating to federal law (such as federal constitutional or
statutory issues) or cases in which the plaintiff and defendant are
from different states and the amount in dispute exceeds $75,000.
Rule 8 of the Federal Rules of Civil Procedure requires that the
attorney filing a complaint include “a statement indicating why the
federal court has jurisdiction to hear the case.”
Unless barred by a specific federal statute, generally state courts
can hear any type of case. Therefore, cases involving diversity of
citizenship and more than $75,000 can usually be started in either
federal or state court. In deciding which court to choose, an attorney
will consider matters such as filing requirements, deadline dates, the
current backlog of cases, discovery procedures, the rules of evidence,
and the personalities of the judges. The convenience of the physical
location of the court may also be a factor.
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p. 126
Case 1: The Distressed Grandfather (Continued)
Mr. Drake’s case involves negligence: a matter of state law.
Therefore, as the accident happened in Massachusetts, attorney
Harper could bring her lawsuit in a Massachusetts state trial court.
However, even though his case does not involve federal law, if the
amount in dispute exceeds $75,000, she would also have the
option of bringing it in federal court. She could do this under
diversity jurisdiction based on Mr. Drake being a resident of
Massachusetts and Mrs. Small, the defendant, being a resident of
New Hampshire. Therefore, in Mr. Drake’s case, the federal and
state courts have concurrent jurisdiction. Attorney Harper is free to
choose the best available forum.
If she elects to sue using a Massachusetts state court,
naturally the court will apply Massachusetts law. However, even if
she brings the case in federal court, because jurisdiction is based
on diversity of citizenship and the accident happened in
Massachusetts, the federal court will also apply Massachusetts
state law, not federal law.
(b) Personal jurisdiction Personal jurisdiction relates to the
court’s power to force a person to appear before it — hence the name
personal jurisdiction. Generally, for a state court to have personal
jurisdiction over a defendant, the defendant must be a resident of that
state, be served with process within the state, consent to the lawsuit,
or have some minimum contacts with it. For example, a state court
would have jurisdiction over a nonresident defendant who caused an
automobile accident within that state’s borders.
States exercise this jurisdiction over nonresidents through “long-
arm statutes.” Typically, such statutes allow the states to exercise
jurisdiction if the subject matter of the lawsuit is a tort the defendant
committed within the state, a contract the defendant entered into
within the state, or a harm the defendant caused as a result of
business conducted within the state. Each of these activities would
satisfy the minimum contacts requirement so long as exercising
jurisdiction does not offend “traditional notions of fair play and
substantial justice.”
Because Mr. Drake’s accident happened in Massachusetts, the
accident supplies the minimum contacts that Massachusetts courts
need to hear the lawsuit. Mr. Drake may sue Mrs. Small in
Massachusetts.
To better understand this concept of personal jurisdiction, just for
a moment assume the situation had been different, as illustrated in
Figure 5-2. Assume that Mr. Drake, a Massachusetts resident, had
been vacationing in Maine when the accident happened, and assume
that Mrs. Small, a New Hampshire resident, was also vacationing in
Maine. Then the issue of personal jurisdiction would be much more
complicated. As he lives in Massachusetts, Mr. Drake would like to
commence his lawsuit there. Under these revised facts, however, Mrs.
Small has had no contact with Massachusetts, and since at least
minimum contacts are required, Mr. Drake would not be allowed to
sue her in Massachusetts. He could sue her in New Hampshire
because, as a resident of that state, the New Hampshire courts would
have jurisdiction over Mrs. Small. He could also sue
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p. 127
her in Maine, since the accident in that state provides the minimum
contacts necessary to satisfy personal jurisdiction.
Figure 5-2 Personal Jurisdiction
The widespread use of the Internet to conduct business has
raised interesting new issues regarding personal jurisdiction. In the
following case a North Carolina resident sued a Georgia resident in
North Carolina for allegedly libelous statements the defendant had
posted on the Internet in Georgia, but which the North Carolina
resident had read in North Carolina.
Dailey v. Popma
662 S.E.2d 12 (N.C. App. 2008)
GEER, Judge.
Plaintiff Jack Dailey appeals from an order dismissing his
claims against defendant Donald Popma on the ground that
defendant has insufficient contacts with the State of North
Carolina for personal jurisdiction to exist in this State. Plaintiff, a
resident of North Carolina, claims that defendant, a resident of
Georgia, posted defamatory statements about plaintiff on the
internet. According to plaintiff, because the effect of the
defamation occurred in North Carolina, sufficient minimum
contacts exist.
The internet presents unique considerations when it comes to
issues of personal jurisdiction.
. . .
On 1 September 2006, plaintiff filed a complaint that asserted
claims for libel . . . arising out of internet postings. According to the
complaint:
During July and August, 2006, defendant posted numerous false and defamatory
statements about plaintiff on the internet, these statements including that the
plaintiff, (a) committed embezzlement; (b) committed theft; (c) is a cheat and a liar;
(d) is
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going to be wearing an orange jumpsuit; (e) is a crook; (f) committed felonies; (g) is
an asshole; (h) acted clandestinely and illegally; (i) is dishonest; (j) is a devious con
man; (k) is a scumbag; (l) is the equivalent of a molester of boys; (m) will be
convicted on multiple counts; (n) is extremely underhanded; (o) is a lying fraud.
. . .
With respect to the July and August 2006 internet postings that
were the subject of the complaint, defendant stated that all
internet postings made by him during that period were done while
in Georgia.
. . .
Substantively, in deciding whether a North Carolina court has
personal jurisdiction over a nonresident defendant, we must apply
a two-step analysis: “First, the transaction must fall within the
language of the State’s ‘long-arm’ statute. Second, the exercise of
jurisdiction must not violate the due process clause of the
fourteenth amendment to the United States Constitution.” Since
neither plaintiff nor defendant disputes the applicability of the long-
arm statute, the sole issue before this Court is whether the trial
court properly concluded that asserting jurisdiction over defendant
would violate due process.
To satisfy the due process prong of the personal jurisdiction
analysis, there must be sufficient “minimum contacts” between the
nonresident defendant and our state “such that the maintenance
of the suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310
(1945). Our Supreme Court has noted that “[t]he concept of
‘minimum contacts’ furthers two goals. First, it safeguards the
defendant from being required to defend an action in a distant or
inconvenient forum. Second, it prevents a state from escaping the
restraints imposed upon it by its status as a coequal sovereign in a
federal system.” Miller v. Kite, 313 N.C. 474, 477, 329 S.E.2d 663,
665 (1985).
. . .
What constitutes “minimum contacts” depends on the quality
and nature of the defendant’s contacts on a case-by-case basis,
but, regardless of the circumstances, there must be “ ‘some act by
which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State.’ ” The defendant’s
contact with the forum state must be “ ‘such that he should
reasonably anticipate being haled into court there.’ ”
. . . The question presented in this appeal becomes, therefore:
Did defendant, through his internet postings, manifest an intent to
target and focus on North Carolina readers?
. . . Defendant’s affidavit indicates that he participated in a
number of internet bulletin board discussions related to shooting
“camps” conducted by plaintiff in at least North Carolina and
Alabama, which camps were attended “by enthusiasts from a
number of locations across the southeastern United States. . . .”
Defendant further stated that he understood that some of the
participants in the bulletin board discussions were not located in
North Carolina. These assertions are evidence of a lack of focus on
North Carolina residents.
. . .
Plaintiff’s primary argument is that the effect the postings had
on him in North Carolina is sufficient to establish personal
jurisdiction over defendant. [H]owever . . . for internet activity the
effect on a plaintiff is not enough. A holding otherwise would
confer jurisdiction in each state in which a plaintiff was affected by
internet postings. The defense of lack of personal jurisdiction
would, in effect, be eliminated from all cases involving defamation
on the internet because:
[T]he Internet is omnipresent — when a person places information on the Internet, he
can communicate with persons in virtually every jurisdiction. If we were to conclude
as a general principle that a person’s act of placing information on the Internet
subjects that person to personal jurisdiction in each State in which the information
is accessed, then the defense of personal jurisdiction, in the sense that a State has
geographically limited judicial power, would no longer exist. The person
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p. 129
placing information on the Internet would be subject to personal jurisdiction in every
State.
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712
(4th Cir. 2002).
. . .
In sum, whether internet postings confer jurisdiction in a
particular forum hinges on the manifested intent and focus of the
defendant. Because plaintiff has failed to establish that defendant
posted the material in the bulletin board discussions with the
intent to direct his content to a North Carolina audience, personal
jurisdiction does not exist over defendant in North Carolina courts.
Accordingly, we affirm the trial court’s dismissal of plaintiff’s
complaint for lack of personal jurisdiction.
CASE DISCUSSION QUESTIONS
1. How did the court resolve the case? Did the North Carolina
courts have jurisdiction over the Georgia resident based on his
Internet postings?
2. What was the rationale the court gave for its decision?
3. What do you think the plaintiff would have had to prove to
establish North Carolina jurisdiction over the defendant?
4. Do you agree with the court’s holding? Why?
(4) Statutes of limitations
Statutes of limitations set the amount of time that a person has
before he or she is forever barred from bringing a lawsuit. Such
statutes vary depending on the type of situation involved. Some
statutes of limitations set very short deadlines. A person complaining
of discrimination at work has only 180 days in which to bring a
complaint. Other statutes of limitations, such as that for murder, are
essentially without limit. Typically, persons have two years from the
date of a negligent act to file a lawsuit. Mr. Drake is fortunate in that
he sought legal advice well within the time frame allowed by the
statute of limitations.
(5) Exhaustion of administrative remedies
If his claim involved matters coming under the jurisdiction of an
administrative agency, Mr. Drake might have had to consult that
agency before being allowed to sue in a court of law. Such a
requirement is known as the exhaustion of administrative remedies.
The purpose behind this rule is to give the administrative agency a
chance to resolve the problem before the parties resort to a lawsuit.
Once a person has filed a complaint with an administrative
agency, that agency usually tries to resolve the issue by getting the
parties to reach a mutually agreeable resolution. If those efforts are
not successful, the process may proceed to a formal hearing. Such a
hearing is similar to a trial but the rules are more relaxed. Instead of a
trial court judge, an administrative law judge oversees the
proceeding. Usually there is no requirement that the rules of evidence
be strictly followed. Some administrative agencies also allow for
paralegals and others who are not licensed attorneys to represent
parties in these administrative hearings.
p. 129
p. 130
Often, the hearing officer’s decision resolves the dispute. However, if
one of the parties is dissatisfied with the decision, depending on the
agency, that party may have the option either to appeal the decision
to a higher body within the agency itself, to appeal the decision to a
court, or to start the whole process anew with a lawsuit.
Case 3: The Pregnant Waitress (Continued)
In employment discrimination cases, there is a requirement
that an employee who has experienced discrimination at work first
complain to the state or federal agency that handles such claims
before being allowed to proceed with a lawsuit. Therefore, Ms.
Dobbs’s attorney instructed her to file a complaint with the local
agency handling employment discrimination claims.
After Ms. Dobbs filed her complaint, the state agency
conducted an investigation that led them to conclude that there
was probable cause to believe she had been fired because of
unlawful sex discrimination. After an unsuccessful attempt to
resolve the dispute through informal negotiations with the
restaurant owner, the agency issued a right-to-sue letter that
authorized Ms. Dobbs to proceed with a lawsuit.
Case 1: The Distressed Grandfather (Continued)
Mr. Drake’s case against Mrs. Small does not raise any
administrative law issues. Therefore, Mr. Drake’s attorney did not
need to involve an administrative agency prior to proceeding to
litigation. However, separate from Mr. Drake’s claims against her,
Mrs. Small may find herself before an administrative agency if the
police determine the accident was her fault. For example, she
might have to argue before a state licensing agency that her
driver’s license should not be revoked.
After reviewing the facts and the jurisdictional questions
involved, attorney Harper has determined that the best court in
which to proceed with Mr. Drake’s case is federal district court. Her
first step in initiating the lawsuit will be to draft a complaint.
b. Pleadings
The pleadings are the documents that each side files with the
court and serves on the other side in order to commence the lawsuit.
Their purpose is to narrow and focus the issues involved.
The initial document the plaintiff files is logically called a
complaint because the plaintiff is the person starting the lawsuit and
hence complaining of some behavior. A complaint states the
allegations that form the basis of the plaintiff’s case.
The document the defendant files in response to the complaint is
called an answer because it contains the defendant’s answers to the
charges laid out in the complaint. There are various other pleadings,
including a counterclaim
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p. 131
(a countersuit by the defendant against the plaintiff), a cross-claim (a
suit by one defendant against another defendant), and a third-party
claim (a suit by a defendant against someone not originally part of
the lawsuit), but in most litigation the pleadings are simply the
complaint and the answer.
(1) The complaint
The requirements for the format and the contents of the
complaint for a federal complaint are spelled out in the Federal Rules
of Civil Procedure. If the complaint is to be filed with a state court, the
rules are in the Rules of Civil Procedure for that state. A complaint
must contain the grounds that form the basis of the plaintiff’s case,
and the relief desired.
The body of the complaint consists of the allegations of facts that
constitute the cause of action. The federal rules allow for notice
pleading — that is, the complaint must simply identify the transaction
from which the plaintiff’s claim arises. In many states, however, the
facts being pleaded must be “ultimate” facts as opposed to
conclusions of law.
Case 1: The Distressed Grandfather (Continued)
In Mr. Drake’s case, at a minimum, the complaint must include
a statement indicating why he believes the federal district court
has jurisdiction, a statement showing why Mr. Drake has a valid
claim against Mrs. Small, and finally what relief he would like the
court to grant him. After considering all of these issues, paralegal
Kendall drafted the complaint that appears in Exhibit 5-1. Locate
each of these items in the complaint.
This sample complaint has only one count or basis for the
lawsuit: the negligence of Mrs. Small. If the facts were different,
however, the plaintiff could have alleged more than one basis for his
lawsuit. For example, in Mr. Drake’s case, if he did not know whether
Mrs. Small was simply being careless or had actually intended to hit
Philip expressly to cause Mr. Drake’s suffering, the complaint could
include a count for the intentional infliction of emotional distress as
well as one for negligence. This is known as pleading in the
alternative.
Note that the complaint contains all of the following:
■ a caption listing the names of the parties, the name of the
court, the title of the action, and space for the docket file
number to be provided by the court all under the title
“Complaint”;
■ all claims and defenses in numbered paragraphs that can be
admitted or denied by the defendant(s);
■ the basis for jurisdiction;
■ the legal grounds for the case;
■ the type of relief sought; and
■ a request for a jury trial unless the plaintiff wants to waive the
right to a jury trial.
p. 131
p. 132
Exhibit 5-1 Complaint
p. 132
p. 133
In some states there is a final requirement that the client verify the
complaint. A verification consists of an affidavit signed by the client
indicating that he or she has read the complaint and that its contents
are correct.
Finally, the attorney will file the complaint with the court, which
officially begins the lawsuit. Traditionally, filing pleadings and other
legal documents involved delivering a hard copy of the complaint to
the court clerk’s office during regular business hours. However,
through e-filing, the federal courts and many state courts now allow
pleadings and other documents to be submitted using electronic
filing.
(2) The summons
The plaintiff must arrange to have the defendant notified that the
suit has been filed. The plaintiff’s attorney does this by preparing a
summons and then having that summons and a copy of the
complaint served on (given to) the defendant. Proper service usually
requires that the local sheriff (or a U.S. marshal in federal cases)
personally deliver the notice in the form of a summons to the
defendant. There are occasions where proper notice can be satisfied
by mailing the summons to the defendant’s last known address,
publishing copies of it in newspapers of general circulation, or
delivering it to an authorized agent.
Case 1: The Distressed Grandfather (Continued)
You can see the summons prepared for the Drake case in Exhibit
5-2. This would be served along with a copy of the complaint in
order to notify defendant Small of the nature of the claim.
Courts require such service for reasons of basic fairness. Before a
court will hear a lawsuit, it must be convinced that the defendant has
received proper notice that the suit has been filed against him or her.
(3) The answer
Upon receiving the summons, the defendant has a designated
time within which to file a formal answer to the complaint. In an
answer, a defendant can choose a combination of responses from
among the following alternatives:
■ deny the facts that the plaintiff says took place;
■ admit the facts but assert that those facts do not provide the
plaintiff with a legal remedy;
■ claim that additional facts give rise to an affirmative defense;
■ assert that there are procedural defects in the complaint; and
■ bring a claim of one’s own against either the plaintiff or another
defendant.
These options are not mutually exclusive.
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p. 134
Exhibit 5-2 Summons
An alternative to submitting an answer is simply not to respond at
all — that is, not to file any documents with the court. However, the
failure to take any action is viewed as an admission of the allegations
contained in the complaint and creates a situation in which the
plaintiff can seek a default judgment. In a default judgment the judge
awards the judgment against the party who fails to appear in court to
contest the matter. While the plaintiff must still convince the judge
that the claim is legitimate, the defendant has no right either to
challenge the evidence presented or to present contrary evidence.
Although it is possible to have a default judgment set aside, it is a
very difficult task.
Mrs. Small’s answer might look like Exhibit 5-3. When reviewing
the complaint, notice that each paragraph is numbered and only
alleges one pertinent fact or concept in each. In the answer, the
defendant will respond to each of the numbered paragraphs.
c. Pretrial Motions to End Part or All of the Litigation
Sometimes the parties feel they have grounds for having the
lawsuit dismissed without a trial. Therefore, in addition to or instead
of filing an answer,
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p. 135
Exhibit 5-3 Answer
p. 135
p. 136
the defendant may file a motion asking that the court immediately
dismiss the case. A motion is a written request directed to the court.
Under the federal rules, there are two basic motions that can end part
or all of a lawsuit: Rule 12 motions, known as motions to dismiss; and
Rule 56 motions, known as motions for summary judgment.
(1) Rule 12 motions to dismiss
Rule 12 outlines the basic types of pretrial motions, as well as
how they are presented to the court. Rule 12 offers seven options
such as arguing that the court lacks jurisdiction over the subject
matter or over the defendant. But probably the most important of the
Rule 12 motions is the sixth, commonly referred to as a 12(b)(6)
motion. This motion states that the plaintiff has failed “to state a
claim upon which relief can be granted.” If the defendant can
convince the court that she has a solid foundation for such a motion,
then the court will dismiss the complaint. This means that there will
be no trial.
In Mr. Drake’s case, that would mean that no judge or jury will ever
hear about the accident or about Mr. Drake’s injuries. Mrs. Small’s
attorney might very well file such a motion, arguing that, in
Massachusetts, trial courts have no right to grant relief to a
grandfather who suffers injury upon seeing a grandchild negligently
killed.
(2) Rule 56 motions for summary judgment
Another method that attorneys may use to try to end a case
before trial is through filing a Rule 56 motion, known as a motion for
summary judgment. An attorney’s objective in filing a summary
judgment motion is generally the same as that in filing a 12(b)(6)
motion — to resolve the case without the need for a trial.
One major difference between the two motions is that when faced
with a 12(b)(6) motion, the court must make a determination based
only on the facts as alleged in the complaint, and it must assume
those facts are true for purposes of deciding the motion. (If the court
denies the motion, all parties treat the facts as once again being in
dispute.)
In a summary judgment motion, however, the court will consider
additional evidence as presented in documents other than the
pleadings, such as depositions, answers to interrogatories,
admissions on file, and affidavits. Rule 56 provides that if those
documents show that
■ there is no genuine issue as to any material fact, and
■ the moving party is entitled to a judgment as a matter of law,
then the court will grant the motion and enter judgment for the
moving party.
Plaintiffs as well as defendants can bring summary judgment
motions. The purpose of a trial is to determine the facts. If the facts
are already known, there is no need for a trial and either side can ask
the court to determine that there is no need for a trial and to declare it
the winner.
Summary judgment motions can also relate to just part of the
case. If a judge grants a partial summary judgment, a trial will be
held, but only on the
p. 136
p. 137
issues still in dispute. For example, assume that during her
deposition, Mrs. Small broke down and admitted that her speeding
caused the accident. The court might grant a partial summary
judgment in favor of Mr. Drake on the issue of liability but still hold a
trial on the issue of what caused his heart attack — a combination of
old age and poor eating habits or seeing his grandson die in the
accident.
To summarize, the most fundamental difference between Rule
12(b)(6) motions and summary judgment motions is that Rule 12(b)
(6) motions are based on just the complaint and the law. Summary
judgment motions are based on the complaint, the law, and
something else. To illustrate, assume in Mr. Drake’s case that there
was case law holding that grandparents cannot sue in a situation
such as his. If his complaint stated that he was Philip’s grandfather,
Mrs. Small’s attorney could bring a 12(b)(6) motion arguing that the
case should be dismissed. If, however, the complaint had not included
his relationship to Philip, Mrs. Small’s attorney could send him a
request for admissions. If Mr. Drake admitted that he was Philip’s
grandfather, Mrs. Small’s attorney could file a summary judgment
motion based on the complaint, the law, and a copy of his response in
the request for admissions.
(3) Appealing a summary judgment or motion to dismiss
A court’s decision to grant a motion to dismiss or for summary
judgment is considered a final decision and as such is appealable. If
the losing party convinces the appellate court to reverse the trial
court’s decision, the case will then be returned to the trial court so
that the parties can proceed with the litigation. Having an appellate
court reverse the decision to grant a motion to dismiss or a summary
judgment motion does not mean that the prevailing party will have
won on the merits. All the prevailing party will have won is the right to
proceed with the litigation.
Case 1: The Distressed Grandfather (Continued)
Mrs. Small’s attorney filed a summary judgment motion on the
grounds that Mrs. Small owed Mr. Drake, a grandfather, no duty of
care. The trial court granted this motion. Attorney Harper appealed
this decision and convinced the court to reverse the trial court’s
decision.
By getting the appellate court to reverse the summary
judgment motion, Mr. Drake has not yet won his case. But he has
won the right to continue with the lawsuit from the point at which
the motion for summary judgment was granted.
d. Discovery
Once the defendant files an answer, each side frequently begins
using various discovery devices to find out more about the strengths
and weaknesses of the other side’s case. The purpose of discovery is
to help each side find out as much information as possible so that
each can fairly evaluate the case and prepare for
p. 137
p. 138
trial or settlement. The parties seek to discover information about the
witnesses, the nature of the testimony that such witnesses can be
expected to provide, and the contents of relevant contracts, medical
reports, and so forth. Such information is acquired through various
discovery tools, including interrogatories, depositions, requests for
admissions, motions to produce documents, and motions for
physical and mental exams. In addition to making trials run more
efficiently, discovery often makes it more likely that the parties can
reach an out-of-court settlement.
(1) Interrogatories
Interrogatories are written questions sent by one party in a
lawsuit to another party to obtain written answers in return.
Interrogatories are used to help locate potential witnesses, establish
dates, determine a person’s medical or financial condition, and inquire
about the existence of documentary evidence. A sample of the types
of questions that might be drafted in Mr. Drake’s case can be found in
Exhibit 5-4.
Note that interrogatories may not be served on nonparties. Also,
courts usually limit the number of interrogatories that can be sent.
When a law office receives interrogatories directed to its client, the
client usually is instructed to write out the answers as fully as
possible. An attorney may then edit these answers and prepare the
formal responses, which will be returned to the other party’s attorney.
A major advantage of interrogatories is that they are relatively
inexpensive to prepare. A major disadvantage is that the answers can
be closely reviewed by that person’s attorney or paralegal before they
are returned to the party submitting the questions. Other
disadvantages include limits on the numbers of interrogatories and
restrictions on being able to ask timely follow-up questions.
(2) Depositions
If an attorney would like to ask questions of a nonparty, such as
the doctor who treated Mr. Drake, or would like to ask questions of
either a party or a nonparty in person, that attorney will consider
taking a deposition. A deposition is sworn testimony that is taken
outside the courtroom without a judge being present. Although a
judge is not present, there is a court reporter who administers the
oath and records the testimony. The format of a deposition is similar
to that of a trial in that one attorney questions the witness and the
opposing attorney has an opportunity to make objections and to
cross-examine the witness.
Depositions can be used to preserve the testimony of a witness
when that witness may not be available for the trial (as in the case of
a physician) or when the attorney wants to ensure that the story of
the individual being deposed cannot be changed. Because a person
can be subpoenaed to be deposed, a statement may be obtained
from a witness otherwise unwilling to talk to the attorney or to an
investigator. An attorney is responsible for asking the questions
during a deposition.
The advantages of a deposition over interrogatories are that the
deposing attorney is not limited in the number of questions he or she
can ask, the
p. 138
p. 139
Exhibit 5-4 Interrogatories
deponent’s answers are usually more spontaneous, the deposing
attorney can view the demeanor of the person answering the
questions, and the answers may be used later in a court trial.
Because the answers can be used to contradict the deponent’s
testimony at trial or to show inconsistencies, attorneys often advise
their clients to give honest, but not lengthy, answers and to treat the
deposition question as they would if they were being questioned
while in front of a jury. The major disadvantages are the time and cost
involved. At a minimum a deposition
p. 139
p. 140
requires the time and presence of both attorneys, a court reporter,
and the deponent. Without a special court order, federal rules limit the
number of depositions to ten.
Case 1: The Distressed Grandfather (Continued)
The attorney representing Ms. Smith arranged for a deposition
of Dr. Gary Booth, one of the doctors who treated Mr. Drake after
his heart attack.
(3) Requests for admissions
A request for admissions is a written document that lists
statements regarding specific facts for the other party to admit or
deny. Once admitted, a matter cannot be contested. The purpose of
the request for admissions is to clarify what is not in dispute and
what therefore will not need to be resolved through a trial.
(4) Requests for documents and physical examinations
The motion to produce documents is used to obtain documents in
the possession of one of the parties. Documents in the possession of
third parties can be obtained through a subpoena duces tecum. The
motion for a physical examination is usually used in personal injury
cases or other situations where the health of one of the parties is at
issue.
(5) Electronic discovery
Traditionally, discovery requests resulted in the production of one
or more boxes of printed documents. However, as law firms and
businesses have become more and more computerized, reports,
memos, letters, e-mails, voicemail messages, text messages, and
other types of electronic communications are frequently created and
then stored in electronic form (for example, using programs such as
Microsoft Word, Microsoft Excel, or Adobe Acrobat PDF files).
Although these files take far less room to store and are typically
easier to send to interested parties, the trend toward using electronic
documents also creates new challenges. For example, some law
firms and other businesses employ proprietary software that creates
data that cannot easily be read by others.
The greatest challenge facing those engaged in e-discovery is
presented by the sheer volume of the electronically stored data,
which can be overwhelming. Consider how a single e-mail can be
duplicated many times when the receiver sends a reply to the sender
or forwards the e-mail to others. In this way, a single e-mail can turn
into hundreds of “documents.” In response to the growing issues
associated with e-discovery, in 2006 the Federal Rules of Civil
Procedure were amended to clarify how discovery of electronically
stored information (ESI) should be handled. A further revision was
made in 2015 to reflect changing standards when handling electronic
data such as producing copies of documents
p. 140
p. 141
or electronically stored information rather than simply permitting
inspection. Many states have made similar revisions (or are in the
process of considering revisions) that focus on electronic data.
(6) Enforcing discovery rights
The parties to a lawsuit are legally obligated to respond to
discovery requests. If a party refuses to respond, the opposing
attorney can file a motion seeking a court order requiring the other
side to comply with a valid discovery request. A plaintiff’s failure to
follow such a court order can result in one of the following sanctions:
a prohibition against using certain evidence, a dismissal of some
counts, and on rare occasions a dismissal with prejudice of the
entire case. A dismissal with prejudice means that the case cannot
be refiled.
On the other hand, there are limits to the materials that each side
must supply. If the judge is convinced that discovery attempts have
gone beyond the bounds of reasonableness and amount to an undue
burden or harassment, the judge can issue a protective order to allow
the party to refuse to comply with certain types of discovery actions.
DISCUSSION QUESTION
6. If you were doing the discovery plan for Mr. Drake, what
methods of discovery would you prefer? Why? Would your answer
change if you were representing Mrs. Small? Why or why not?
e. Settlement or Pretrial Conference
Due in part to the information gained through discovery, most
cases settle rather than go to trial. Settlement is a possibility at any
time, even before the commencement of a lawsuit, but human nature
being what it is, it often seems to happen on the very eve of trial. One
method for trying to encourage settlement is the pretrial conference.
Pretrial conferences are informal sessions in which the opposing
attorneys meet (usually in the presence of the judge) to discuss the
case before it goes to trial. Such conferences focus on the issues to
be presented at the trial and encourage the parties to agree to
matters that they are not contesting. They also make the trial more
efficient and encourage out-of-court settlements. The hope is that as
both sides learn more about the strengths and weaknesses of the
case, they will be more likely to agree on the probable outcome of a
trial and therefore reach a mutually agreeable accommodation. Such
accommodations are encouraged because they serve the public
interest by easing the pressure on an overburdened court system.
If the efforts to settle fail, a trial date is set and various matters
related to how the trial will be conducted may be discussed. For
example, in a case involving sensitive material an attorney may make
a motion in limine. A motion in limine is made to prevent reference to
specific information in the presence of the jury. An attorney might
also file a motion requesting that the judge allow inquiry into certain
areas during voir dire. Voir dire is the portion of the trial during which
potential jurors are questioned to determine whether they are fit to
serve on a jury.
p. 141
p. 142
2. The Trial
If the case is not settled, then it proceeds to trial. Even if you have
never seen a trial in person, no doubt you have watched enough
movies and television shows to have a general feeling for how a trial
is conducted. You know that there are opening statements by
attorneys, testimony by witnesses, closing statements, and verdicts.
While judges, and sometimes juries, play an indispensable role,
attorneys play the most visible, and many would argue, the most
important role during a trial. Under our adversarial system, the
attorneys are responsible for presenting all of the relevant facts and
arguments needed for a neutral judge or jury to reach a proper
decision. Unlike the inquisitorial system used in many other
countries, the adversarial system places greater emphasis on the
lawyer’s responsibility to serve the client’s interests and limits the
judge’s role to that of a neutral arbitrator of the rules. It is the attorney,
rather than the judge, who determines who will be called as
witnesses and, within certain limitations, what questions will be
asked of those witnesses.
Although the majority of lawsuits filed never reach the trial stage,
the results of those that are tried influence the results of future
settlements. For example, some companies compile and publish
reports of recently decided personal injury cases in different areas of
the country. When parties learn of the amount of damages being
awarded in similar cases, they may see the necessity for settling their
case out of court.
a. The Right to a Jury Trial
Under the Seventh Amendment to the U.S. Constitution, the right
to a jury trial extends to most types of federal civil cases. In contrast,
each state has defined for itself the extent to which juries are to be
available in state courts. Generally, you will find juries provided for,
either by statute or by constitution, in criminal cases and in
contractual and tort matters exceeding a specific dollar limit. In all of
these cases the right to a jury trial is an affirmative right. It must be
asked for in the pleadings or it will be waived. In most states you will
not find juries in divorce and probate cases.
The basic function of the jury is to resolve the factual, as opposed
to the legal, questions raised in the case. Generally, this comes down
to deciding how much credibility to give to the often conflicting
testimony of various witnesses. When damage awards are called for,
the jury must decide how to measure pain and suffering in terms of
dollars and cents. In cases where a jury is not used, the judge takes
over the jury’s function besides the normal duties of presiding over
the trial and resolving the legal questions raised.
Under the common law a jury consisted of 12 people. However,
the courts have ruled that there is nothing that is constitutionally
significant about that number, and six-person juries have been used
in civil cases at both the federal and the state levels. Furthermore, it is
not unusual to select one or two extra jurors as alternates, especially
where the trial is expected to last for more than a few days. These
alternates sit in the jury box with their fellow jurors throughout the
trial and are used as substitutes if regular jurors are unable to
continue. An
p. 142
p. 143
alternate does not participate in the deliberations, however, unless he
or she has replaced one of the original jurors.
b. Jury Selection
The first formal step in a jury trial is the selection of individual
jurors from a pool. The modern trend is to require almost everyone to
serve as a juror. This process of selecting individual jurors is known
as voir dire. The voir dire itself consists of questioning potential jurors
to determine whether they are fit to serve on the jury for that specific
case. For example, a potential juror would be disqualified for having a
personal relationship with a party in the case or with one of the
attorneys involved. Potential jurors may also be disqualified if they
have been exposed to a high level of prejudicial pretrial publicity or if
they have been involved in similar lawsuits themselves.
Attorneys use two types of challenges when seeking to prevent
specific individuals from serving on the jury in their case. The first line
of attack is usually a challenge for cause, when an attorney wants to
convince the judge that something about the person’s background or
answers demonstrates some type of bias. If the judge agrees, the
person will not be seated. There is no limit on the number of such
challenges that can be raised or granted. In some well-publicized and
highly controversial cases, attorneys have gone through hundreds of
potential jurors before arriving at the final 12.
The second is a peremptory challenge which allows an attorney
to have a potential juror removed without giving a reason. Peremptory
challenges are limited in number. In deciding whether to use one,
attorneys must weigh the risk of having to accept an even less
desirable juror later because they will have exhausted their limited
supply of challenges.
While attorneys need not give a reason for why they used a
peremptory challenge to remove a potential juror, attorneys cannot
dismiss jurors based on race. In Batson v. Kentucky, the U.S.
Supreme Court held that to purposefully exclude members of the
14
defendant’s race is to deny defendants their equal protection rights.
Most recently, in Flowers v. Mississippi, the United States Supreme
Court applied this principle to a case involving a black defendant who
had been criminally prosecuted for murder in six separate trials. At
his sixth trial, he was found guilty and sentenced to death. He
appealed, arguing the state had engaged in racial discrimination
when using its peremptory challenges.
Four critical facts, taken together, require reversal. First, in the six trials combined, the
State employed its peremptory challenges to strike 41 of the 42 black prospective jurors
that it could have struck — a statistic that the State acknowledged at oral argument in
this Court. Second, in the most recent trial, the sixth trial, the State exercised peremptory
strikes against five of the six black prospective jurors. Third, at the sixth trial, in an
apparent effort to find pretextual reasons to strike black prospective jurors, the State
15
engaged in dramatically disparate questioning of black and white prospective jurors.
p. 143
p. 144
Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who
was similarly situated to white prospective jurors who were not struck by the State. We
need not and do not decide that any one of those four facts alone would require reversal.
All that we need to decide, and all that we do decide, is that all of the relevant facts and
circumstances taken together establish that the trial court committed clear error in
concluding that the State’s peremptory strike of black prospective juror Carolyn Wright
was not “motivated in substantial part by discriminatory intent.” In reaching that
conclusion, we break no new legal ground. We simply enforce and reinforce Batson by
16
applying it to the extraordinary facts of this case.
DISCUSSION QUESTIONS
7. Many people argue that life and lawsuits have become too
complex for the average juror. Do you think there are certain types of
lawsuits where the jury should be composed only of experts in that
field? Should jury trials be eliminated entirely in some areas of the
law?
8. Jury experts work under the theory that certain types of people
will be likely to favor one side over the other. For example, in a
medical malpractice case a person may lean toward the doctor, while
others will favor the patient. Can you think of any groups that you
could characterize in this way? Do you think this is a valid approach
to choosing a jury? Even if valid, should it be used?
c. Opening Statements
Once the jury is selected, the attorneys make opening statements
in which they outline the evidence they hope to present. The plaintiff’s
and defendant’s attorneys state their theories of the case and
describe, from their respective points of view, what allegedly took
place and to what they expect the witnesses to testify. The jury is
thus presented with a framework for viewing the upcoming
testimony.
Because the plaintiff has the burden of proving his or her case, the
plaintiff’s attorney presents the first opening argument. In most cases
the defendant’s attorney makes an opening statement immediately
following that of the plaintiff’s attorney. At other times the defense
waits until the plaintiff’s attorney has finished presenting the
plaintiff’s witnesses and exhibits and the defense is about to present
its case.
d. Presentation of Evidence
After the opening statements the plaintiff’s attorney presents
evidence in the form of witness testimony and exhibits. The exhibits
consist of such things as medical records, accident reports, and
photographs of the accident scene. Exhibits can only be introduced
through witnesses. For example, accident reports are generally
admitted through the officer who wrote the report. Specific
p. 144
p. 145
rules of evidence dictate what types of evidence can be admitted and
the manner in which witnesses can be questioned.
In considering evidence it is essential to be aware of the difference
between facts and opinions. When a witness testifies that he saw the
defendant’s automobile strike the plaintiff’s car broadside, he is
testifying about a fact he observed. But when that same witness says
the defendant was driving too fast for the icy condition of the road, he
is stating an opinion. Generally, only expert witnesses, such as
doctors and police officers, can testify as to their opinions, based on
their expert knowledge.
In conducting the direct examination of a witness, an attorney
usually cannot ask leading questions. A leading question is one that
suggests the answer. For example, “Wouldn’t you say the defendant
appeared to be very angry at that point in time?” is a leading question.
Once the plaintiff’s attorney has completed questioning a witness,
the defendant’s attorney may cross-examine that same witness. The
cross-examination clarifies any potentially misleading statements or
half-truths and attacks the credibility of the witness. For example, the
defense attorney may attempt to bring out possible biases or the
inability of witnesses to have seen clearly what they claim to have
seen. On cross-examination a lawyer may ask leading questions.
The defendant’s cross-examination is then followed by redirect
examination, where the plaintiff’s attorney has the opportunity to ask
additional questions of the witness to rehabilitate the witness after
the defense’s attack on the witness’s credibility. These questions
cannot be used to raise new subjects or to explore topics that were
not covered as part of the cross-examination. The redirect is then
followed by an opportunity for recross-examination by the
defendant’s attorney, but that must, in turn, be limited to topics raised
during the redirect. At that point the witness is finally excused, and
the plaintiff’s attorney then proceeds to call the next witness.
Throughout the process of questioning witnesses and presenting
evidence the attorneys must keep in mind that appellate courts
usually require them to raise appropriate objections at the proper
times during the trial. Practically, an attorney will often simply state
“objection” at the point at which the opposing attorney or a witness
makes a remark without stating the basis for the objection. If it is
common objection and the basis for it are obvious, the judge will rule
immediately. If the nature of the objection is not immediately clear,
the judge will ask the attorney to explain the reasons for the objection
before either sustaining or overruling it. In some situations, the judge
may have the jury removed from the courtroom while the attorneys
make their arguments about the objection. After the judge has made
a ruling on the objection, the jury will be returned to the courtroom
and the examination of the witness will continue. An attorney cannot
complain later to an appellate court about something that he or she
did not complain about at the proper time to the trial judge.
This requirement places additional pressures on the trial attorney.
A careless or incompetent attorney can simultaneously destroy the
client’s chances to win at the trial level and to appeal an adverse
decision successfully. Attorneys will make objections for the record
even when they do not expect the trial judge
p. 145
p. 146
to accept them. This is sometimes called protecting the record or
making a record for appeal.
After the plaintiff’s attorney has finished calling witnesses and
presenting evidence, the defense has its opportunity. Before this
occurs, it is not unusual for the defense attorney to move for a
directed verdict. This motion requests that the judge end the trial at
that point and find in favor of the defendant on the basis that the
plaintiff’s side failed to meet its obligation of presenting a prima facie
case supporting its position. The judge will enter a directed verdict if
the judge concludes that the plaintiff’s evidence is so weak that even
considered in its most favorable light (without considering any
rebuttal evidence from the defendant) it is not sufficient as a matter
of law to merit a verdict in the plaintiff’s favor.
Case 1: The Distressed Grandfather (Continued)
Mr. Drake’s attorney made sure that she presented evidence on
each element of negligence. Those four elements are duty, breach,
cause, and harm.
It is the plaintiff’s responsibility to present a prima facie case. If
attorney Harper had inadvertently omitted one of the elements, the
court could not find a basis for the negligence claim, and a directed
verdict in the defendant’s favor would be appropriate.
If the court grants the motion for a directed verdict, the trial is
over. However, it is very unusual for a judge to accept a motion for a
directed verdict at this point in the trial.
Typically, the judge denies the motion, and the defense attorney
goes on to present his or her witnesses. The same process of direct,
cross, redirect, and recross is used. The defense strategy involves
presenting evidence that contradicts evidence presented by the
plaintiff and possibly attempting to raise a legally accepted defense
for that particular type of case.
Once the defendant’s case is complete, the plaintiff can ask for a
directed verdict on the basis that even if the defendant’s evidence is
taken in its most favorable light, it would be insufficient to rebut the
plaintiff’s case. If the judge also denies this motion, as is usually the
case, the plaintiff can present witnesses who will attempt to rebut
testimony and evidence presented by the defense. After that, either
side can again renew its motion for a directed verdict. If these
motions are again denied, both sides then give their closing
arguments.
DISCUSSION QUESTIONS
9. Do you agree with the rule that only experts should be allowed
to state their opinions? Why should it matter if a witness who saw
Mrs. Small stumble just before she entered her car testifies that “Mrs.
Small was drunker than a skunk”?
p. 146
p. 147
10. One of the all-time famous leading questions is “So, when did
you stop beating your wife?” What is the problem with asking a
witness this type of question during direct examination?
e. Closing Arguments
Perhaps the most dramatic part of any trial is the closing
arguments. Here the attorneys review and interpret the evidence in its
most favorable light and develop emotional appeals. Closing
arguments are their final chance to persuade the jury. Although both
the plaintiff and the defendant receive equal time, in some states the
plaintiff has the advantage of splitting the time and speaking both
first and last. The plaintiff is given this advantage because the
plaintiff also has the burden of proof to overcome.
f. Jury Instructions
Before sending the jury members out to deliberate, it is the judge’s
responsibility to properly instruct them about the nature of their
duties and the requirements of the law. The jury’s duty is to determine
the facts and then apply the requirements of the law to those facts.
However, the jury is composed of a group of lay persons who do not
know what the law requires. Therefore, it is the duty of the judge to
explain the law in terms the jury can understand.
Rather than starting from scratch and risking reversal for failing to
include some key element or for explaining some concept in a
misleading way, judges frequently rely on pattern jury instructions.
These are collections of instructions that have already been tested on
appeal in other cases. The attorneys in the case also have the
opportunity to submit instructions they would like to see included.
The judge then reviews their submissions and often discusses the
issues with the attorneys in chambers before deciding which
instructions to give at the trial.
g. Jury Deliberations, Verdict, and Judgment
Once they have been properly instructed, the jurors retire to a
special room where they deliberate in private until they reach their
verdict or they report they cannot reach a consensus and the judge
declares a mistrial. In most cases the jurors must come to a
unanimous agreement regarding the verdict, although some states
have provisions for less-than-unanimous verdicts in certain types of
cases.
Usually, evidence is presented at the trial regarding the question of
liability and the amount of damages. If the jurors find that the
defendant is liable, they next consider the amount of damages. In
some cases, however, a bifurcated trial is held. During the first phase
of the trial the jury hears testimony regarding liability and then
deliberates on that issue alone. If the jury finds the defendant liable,
the trial enters a second stage, in which the jury hears evidence about
the nature of the damages. The jury then deliberates regarding the
amount of damages to award.
Once a verdict is reached, the court enters its official judgment
regarding the rights and obligations of the parties involved in the
case, and the clerk enters it into the record. Usually, if the losing party
does not appeal within a specified
p. 147
p. 148
time period, the judgment automatically becomes effective. If the
losing party does appeal, the court stays the judgment until the
appellate court reaches its decision.
h. Post-Trial Motions
After the verdict has been announced, the losing party has a
certain time period within which to file post-trial motions. The most
common motions are a motion for judgment notwithstanding the
verdict and a motion for a new trial.
The motion for a judgment notwithstanding the verdict, also
known as a judgment N.O.V. (judgment non obstante veredicto), is a
request to the judge to reverse the jury’s decision on the basis that
the evidence was legally insufficient to support its verdict. If the judge
grants the motion, the case is over, and the moving party has won.
An attorney usually bases the motion for a new trial on the
assertion that some procedural error has tainted the outcome. The
losing party might argue, for example, that some piece of evidence
was admitted that should not have been admitted or that someone
made improper contacts with a juror on the case. If the court grants
the motion, the case has to be retried.
Both motions are frequently made but are seldom granted.
Nevertheless, they are important because they may be necessary to
preserve the client’s right to appeal to a higher court. The doctrine of
exhaustion requires that the trial court be given every possible
opportunity to correct its own errors before the appellate courts
intervene.
3. The Appeal
“I’ll take my case all the way to the Supreme Court” is a battle cry that
has been echoed by many concerned litigants. No one likes to lose,
and there are few attorneys who have not dreamed of arguing a case
before the U.S. Supreme Court.
On the other hand, appeals consume time and money. The client’s
initial desire for appeal often pales because of costs. Cases often
settle after the verdict. In fact, they may settle for far less than the
verdict because of the time and cost of the appellate process. In
addition, the option to appeal may be very limited or even
nonexistent. If the attorney did not make the correct objections
during the trial or if the client’s case did not involve any questions of
law, there will be no basis for an appeal.
a. The Timing and Filing of the Appeal
A case cannot be appealed until a final judgment has been
entered. A court can grant a final judgement after a jury verdict but
also after a motion to dismiss, a summary judgment motion, a
motion for a directed verdict, or one of the post-trial motions. The
party wishing to appeal must file a notice of appeal within a specified
time period after the final judgment is entered.
The side bringing the appeal, the appellant, files an appellate brief.
The brief explains the facts of the case, lists the relevant statutes and
court cases, and then presents legal arguments for overturning the
lower court’s decisions. Then
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p. 149
the other side, the appellee, files its brief. Finally, the appellant has the
opportunity to file a reply brief in response to the appellee’s argument
and to any new authorities cited in the appellee’s brief.
b. The Scope of the Review
When an appellate court considers a case, it does not conduct a
new trial. It simply reviews the official record of the proceedings at
the trial court. Moreover, it limits its review to specific appealable
issues, for which the party appealing the case must have laid a proper
foundation at the trial level.
As you know, typically appellate courts only consider legal issues.
Recall that legal issues involve the interpretation and application of
the law; factual issues involve the determination of whether a given
event took place as alleged.
Sometimes, however, appellate courts are asked to review a trial
court’s findings of fact. When they do so, it is on a very limited basis.
Generally, appellate courts will resolve conflicts in the testimony and
questions of the credibility of the witnesses in favor of the trial judge’s
position. They cannot disregard a trial court’s findings of fact unless
they determine that the findings were clearly erroneous. This means
not simply that the appellate court would have found otherwise but
that the appellate court is convinced that the trial court made a
mistake, as, for example, when the trial court did not base its findings
on sufficient evidence.
However, when an appellate court reviews legal issues, it gives no
deference to the trial court’s findings but rather makes its own
independent review. A legal issue might involve reviewing a trial
judge’s interpretation of a statute or legal document, such as a will or
a lease. Similarly, questions about the nature of the jury instructions
and the trial court’s decision on the admissibility of evidence present
legal issues.
If the appellate court decides that the trial judge made a legal
error, it must determine whether that error was prejudicial or merely
harmless. Errors are defined as prejudicial when they probably
affected the results. Harmless errors are errors so minor and
peripheral that they had no significant effect on the outcome. Only
prejudicial errors are considered to be reversible errors.
Examples of harmless errors include (1) a mistake in the
pleadings if the facts can be determined at trial; (2) errors in jury
instructions unless there is reason to believe that they actually misled
the jury; and (3) the failure to strictly follow the rules of evidence in a
bench trial, as it is assumed a judge is unlikely to be affected by
incompetent evidence.
Finally, sometimes an appeal is based upon a challenge to a trial
judge’s decision as to court procedure or how the case should be
managed. Examples include permission to amend a complaint, denial
of a request for a continuance, imposition of sanctions for filing an
improper pleading, and the awarding of prejudgment interest.
Because these types of decisions are generally left to the discretion
of the trial judge, appellate courts review them using an abuse of
discretion standard. They will reverse a trial court only if the appellant
can prove the judge committed a clear error of judgment, lacked the
authority to act, or acted with prejudice or malice.
p. 149
p. 150
c. Oral Arguments
Depending on the rules of the particular appellate court, the court
may hear oral arguments on appeal. During oral argument the
attorneys present their clients’ positions. The court gives the
attorneys a limited time to speak (often no more than 20 minutes),
and the judges frequently interrupt the attorneys with questions. The
purpose of the questioning is to probe weak points in the argument
and to explore the implications of the attorney’s line of reasoning.
NETNOTE
The U.S. Supreme Court oral arguments are all available in audio
and transcript form at
www.supremecourt.gov/oral_arguments/oral_arguments.aspx.
d. The Decision and Its Publication
With or without the benefit of oral argument the judges study the
matter until they reach a decision by majority vote. Usually, the case
is assigned to one of the judges in the majority to prepare the official
opinion of the court. The other judges on the court have the right to
prepare either concurring or dissenting opinions. You will recall that in
a concurring opinion the judge agrees with the outcome but
disagrees with the reasoning in the court’s opinion. In a dissenting
opinion the writer disagrees with both the outcome and the
reasoning. The court’s decision is then published in the appropriate
reporters, law books that contain all of an appellate court’s opinions.
Usually, the appellate decision is either to affirm the lower court’s
action or to reverse and remand (return) the case to the lower court
for reconsideration. Sometimes, based on the nature of the case, a
new trial is not needed to supplement the factual record. Then the
judges may simply enter a final judgment based on the existing
record.
e. Further Appeals
Depending on the court structure and the nature of the case, the
party that loses at the appellate level may have the option of
appealing to yet a higher-level appellate court. The general rule,
however, is that there is only one right of appeal. A second appeal to a
higher court is usually discretionary rather than a matter of right. The
judges on the higher appellate court choose to hear only the cases
that they believe have the greatest judicial significance. For example,
to have a case heard by the U.S. Supreme Court, the losing party
must first petition the Court and request that it grant a writ of
certiorari. In support of this request the applicant will file a written
brief. The purpose of the brief is not to argue the merits of the case
but to convince the Court to agree to hear the case. Common
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p. 151
reasons are the importance of the case for others beyond the
immediate litigants and the need to resolve conflicts among the
circuits.
For example, for many years the federal courts of appeals were
reaching different results in sexual harassment cases. Some courts
of appeals thought such situations were covered by Title VII, while
others disagreed. In a federal system, leaving such a conflict
unresolved is obviously undesirable, as the outcome of a case will
vary based on where it is brought. Eventually the Supreme Court
agreed to hear a case involving sexual harassment and resolved the
17
issue by deciding that such situations are covered by Title VII.
If the Court grants the petition for a writ of certiorari, the litigants
will then file briefs arguing the merits of the case. However, the Court
denies most petitions for certiorari.
18
Most state courts follow a similar procedure. If the higher
appellate court accepts the appeal, the parties file new briefs, and the
process described above begins all over again.
CHAPTER SUMMARY
When people have a dispute they cannot settle themselves, they
typically turn to the courts to have a judge or jury settle it for them.
This process of using the courts is referred to as litigation. Because it
is such a complex, time-consuming, and expensive way of settling
disputes, people are increasingly turning to various forms of
alternative dispute resolution (ADR).
The most common types of ADR are mediation and arbitration.
Increasing numbers of courts are requiring litigants to try different
types of mediation before they allow a case to come to trial. Many
business contracts include provisions for mandatory arbitration.
In some circumstances it may be necessary to exhaust
administrative remedies prior to filing a lawsuit. Adjudicatory hearings
in administrative agencies follow the general outline of a civil trial, but
they are less formal and do not involve as many due process
protections. A hearing officer presides over the hearing, acting much
like a judge would. Although it is relatively easy to get evidence
admitted into the record, the hearing officer has a great deal of
discretion over the weight given to that evidence. Once all avenues of
appeal within an agency have been exhausted, a party can often seek
review within the judicial system.
The three main stages of litigation are pretrial, trial, and post-trial.
In the pretrial stage the parties use pleadings, discovery, and pretrial
conferences to identify the facts and the legal issues involved in the
dispute. The majority of cases are settled “out of court” during this
stage.
p. 151
p. 152
At the trial stage the parties present their evidence to either a
judge or a jury. The rules of evidence dictate the form in which the
evidence must be presented and what types of questions witnesses
can be required to answer. Following the trial verdict, the losing party
may challenge the trial court’s decision in an appellate court.
CRITICAL THINKING EXERCISES
1. Assume Mary was injured in an automobile accident while
vacationing in California. Joe was driving the car that hit her. Mary is
a resident of Michigan. Joe is a resident of Florida. In which state(s)
may Mary bring suit? Why?
2. Four Seasons Campground rents campground spaces in New
Jersey, the state in which it is also incorporated. John Haas, a
resident of Pennsylvania, learned about the campsite on its website,
www.fourseasonscamping.com, and decided he wanted to lease
campground space for the next summer. Because the Web site did
not allow for such seasonal purchases to be made online, Mr. Haas
drove to New Jersey, where he signed a contract. Later that year
while at his leased campsite, a branch fell from a tree, striking him on
his head and causing him to fall into a brick fireplace and then to the
ground. When he sued the campground in Pennsylvania for the
injuries he suffered, the defendant campground filed a motion to have
the case dismissed for lack of personal jurisdiction. How do you think
the court ruled and why?
3. You are a trial court judge. In each case, would you allow a
motion to dismiss, grant summary judgment, or order the case to
proceed to trial?
a. The law in your state is that a pet owner cannot recover for the
emotional distress she suffers from seeing her pet injured or
killed. Sam, a German Shepard, bit Suzy, a toy poodle, killing
her. Suzy’s owner, Sarah, sued Sam’s owner for the emotional
distress she suffered in seeing her dog killed. In the complaint,
it stated that Suzy was a dog.
b. Assume the same facts as in a., but also assume that in the
complaint Sarah’s attorney did not indicate that Suzy was a
dog, merely stating that Sarah suffered emotional distress
when she saw Suzy killed. In an answer to a Request for
Admissions, however, Sarah admitted that Suzy was a dog.
c. The law in your state is that landowners owe a duty of
reasonable care to those invited onto their land but no duty
towards trespassers. Tom went onto John’s land. Tom tripped
over some garden tools that John had left lying outside on his
lawn. Tom sued John for the injuries he suffered. In the
complaint, Tom admitted that when he was injured, he was
trespassing on John’s land.
d. Assume the same facts as in c., but also assume that in
Tom’s complaint, there was no mention of his being a
trespasser. When deposed, Tom admitted that he was injured
while trespassing on John’s land.
e. Assume the same facts as in c., but also assume that in Tom’s
complaint, there was no mention of his being a trespasser.
When deposed, Tom denied that he was trespassing, and in
fact, claimed
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p. 153
that he had been invited to John’s house to enjoy an evening of
playing cards. At his deposition, John denied that he had
invited Tom to his house.
f. The law in your state is that an owner of a wild animal is
strictly liable for any injuries caused by that animal. Sam kept
a pet monkey. One day when his best friend, Jim, came over to
his house for lunch, the pet monkey unexpectedly and
suddenly attacked Jim, severely injuring him. Everyone agrees
to the facts. The only issue is the appropriate amount of
money to award Jim to compensate him for his injuries.
WEB EXERCISES
1. Use Google ( www.google.com/) or a search engine of your
choice to locate sample civil complaint forms. Two law firms that
maintain sample complaints include the Kinsey Law Offices at
www.kinseylaw.com (click on “Free Stuff”) and Miller & Zois, LLC
at www.millerandzois.com/sample-personal-injury-
complaints.html. Take a look at a few of the sample complaints.
In each, can you spot the information necessary to establish the
court’s jurisdiction, the facts that gave rise to the lawsuit, and a
demand for relief?
2. Visit the College of Commercial Arbitrators’ website at
www.ccaarbitration.org/. Click on the link labeled “Resources”
and then on “Why Arbitrate?” Read through some of the questions
and answers. According to this website, when can the decision of
an arbitrator be appealed? What is the average hourly rate
charged by experienced arbitrators?
REVIEW QUESTIONS
Pages 111 through 133
1. What are the most common forms of ADR, and how do they differ
from each other?
2. What types of disputes are best suited to resolution through
ADR? Which are least appropriate?
3. What do the proponents of ADR see as the advantages of ADR
over traditional litigation?
4. What are the three basic stages of civil litigation?
5. What rules govern civil litigation in federal courts?
6. What issues have to be considered in deciding who should be
sued?
7. How does a class action lawsuit differ from one brought by and
on behalf of one individual?
8. If someone says that a particular court does not have jurisdiction
over a lawsuit, what is meant by that?
p. 153
p. 154
9. What is the difference between subject matter jurisdiction and
personal jurisdiction?
10. What is the purpose of requiring litigants to first exhaust their
administrative remedies?
11. How does an administrative hearing differ from a civil trial?
Pages 133 through 135
12. What is the purpose of each of the following pleadings:
a. the complaint
b. the answer
13. Under the federal rules what three items must be included in a
complaint?
14. What is the purpose of a summons?
15. What is the danger to the defendant in failing to answer a
complaint?
16. What are the five basic ways that a defendant can respond to a
complaint, and what is the purpose of each?
Pages 135 through 137
17. What are the grounds for a 12(b)(6) motion, and what is its
purpose?
18. What is the difference between a 12(b)(6) motion and a summary
judgment motion?
Pages 137 through 142
19. What is the main goal of discovery?
20. What are interrogatories and depositions, and how do they differ?
21. Besides interrogatories and depositions, what are the main
discovery tools available to the parties?
22. What is e-discovery, and what basic steps are followed in cases
involving e-discovery?
23. What special challenges does e-discovery present?
24. What is the purpose of a pretrial conference?
Pages 142 through 148
25. What is the function of the jury?
26. What is a voir dire, and what is its purpose?
27. What are the differences between challenges for cause and
peremptory challenges, and what is the function of each?
28. What do attorneys hope to accomplish in their opening
statements?
29. Who presents evidence first, the plaintiff or the defendant, and
why?
30. When can either side move for a directed verdict? What is the
purpose of that motion?
31. What is the difference between a verdict and a judgment?
32. What is the difference between the motion for a judgment
notwithstanding the verdict (a judgment N.O.V.) and a motion for
a new trial? Give an example of when each could be used.
Pages 148 through 152
33. Describe the limitations on a litigant’s right to appeal.
34. What is the difference between a harmless error and a reversible
error?
1
NFLPA v. NFL, N. 15-1438 (August 4, 2016).
2
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).
3
Id. at 1632.
4
The letter can be found on the website of the National Association of Attorneys General
(NAAG) at www.naag.org/naag/media/naag-news/ags-to-congress-help-employees-with-
sexual-harassment-claims-in-the-workplace-access-the-courts.php.
5
These bills include the Forced Arbitration Injustice Repeal (FAIR) Act, the Ending Forced
Arbitration of Sexual Harassment Act, the Restoring Justice for Workers Act, and the Justice
for Service Members Act.
6
The one exception occurs in some states where courts are authorized to respond to
requests for advice from other governmental bodies.
7
Steve Chapman, No Decision Sometimes Best Decision, The Republican, June 22, 2004, at
A9.
8
Finstuen v. Crutcher, 496 F.3d 1139, 1141 (10th Cir. 2007).
9
564 U.S. 338 (2011).
10
Id. at 338.
11
Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016).
12
347 U.S. 483 (1954).
13
Paul E. Wilson, A Retrospective of Brown v. Board of Education: The Genesis of Brown v.
Board of Education, 6 Kan. J.L. & Pub. Pol’y 7 (1996).
14
Batson v. Kentucky, 476 U.S. 79 (1986).
15
145 questions were asked of the 5 black prospective jurors and 12 questions were asked
of the 11 white seated jurors.
16
Flowers v. Mississippi, 139 S. Ct. 2228 (2019).
17
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
18
For example, in Massachusetts there is one right of appeal to the intermediate appellate
court. If a party wishes to be heard by the state’s highest court, the Massachusetts Supreme
Judicial Court, that person must file an application for leave to obtain further appellate
review.
p. 154
p. 155
p. 155
p. 157
Constitutional Law: Civil Rights
and Civil Liberties
If there is any principle of the Constitution that
more imperatively calls for attachment than any
other it is the principle of free thought — not free
thought for those who agree with us but
freedom for the thought that we hate.
Justice Oliver Wendell Holmes
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Describe the role of judges in interpreting the meaning of
arguably ambiguous language contained in the U.S.
Constitution.
■ Explain why few of the rights guaranteed by the Constitution
are absolute.
■ Discuss the rights contained in the First Amendment.
■ Explain what is meant by “due process” and how the courts
determine how much process is due.
■ Identify commonly used “tests” or “standards” the courts apply
when deciding cases involving equal protection.
■ Apply the appropriate constitutional protection to a specific
situation.
p. 157
p. 158
INTRODUCTION
The federal Constitution is truly an amazing document. Only eight
pages long (and when you add in the 27 amendments, still less than
16 pages total) and yet it has served as an essential guide to how our
government has operated for over 200 years. In addition, it has
protected us from government intrusion in areas such as freedom of
speech and religion. But because there has never been absolute
consensus on the meaning of many of its key provisions, discussions
regarding the meaning of the Constitution have led to a national
debate on such issues as abortion, school prayer, and the right to
bear arms.
In Chapter 2, Functions and Sources of Law, we discussed how
the Constitution and its amendments serve two main functions. First,
the Constitution established the governmental framework. On the
national level, that meant creating the three branches: the executive,
legislative, and judiciary. It also meant dividing power between the
federal government and the states, creating our system of federalism.
The second major function is to protect our individual liberties from
governmental overreaching. This was principally accomplished
through the first ten amendments, known collectively as the Bill of
Rights, and then later by the Fourteenth Amendment. Some of those
rights relate to protections given to criminal defendants, and we will
discuss those rights in Chapter 13, Criminal Procedure. In this
chapter, we will look at some of the key issues regarding individual
freedoms and liberties: freedom of speech, freedom of religion, due
process, and equal protection.
Before we turn to a discussion of specific rights, we need to
remind you of three important concepts that we discussed earlier in
this text. First, parts of the U.S. Constitution provide quite specific
guidance about things, such as the number of senators and
representatives and their minimum ages. However, many clauses
have extremely broad language, leaving them open to a variety of
interpretations. A few examples include the following:
■ Amendment I: “Congress shall make no law respecting an
establishment of religion.”
■ Amendment I: “Congress shall make no law . . . abridging
freedom of speech.”
■ Amendment V: “No person shall . . . be deprived of life, liberty, or
property, without due process of law.”
When questions arise about the meaning of these, and other
vaguely worded constitutional clauses, it is the courts, based on their
power of judicial review, that interpret their meaning in the context of
specific cases they are asked to decide. Because any lower court
decisions interpreting the U.S. Constitution are reviewable by the U.S.
Supreme Court, it is those nine justices who, absent the passage of a
constitutional amendment, ultimately determine how our constitution
is interpreted.
Second, in this chapter, when we discuss civil rights and liberties,
our focus will be on the rights that are contained in the U.S.
Constitution. However, state and federal statutes can also create
legally enforceable rights and liberties that
p. 158
p. 159
provide additional protections. See, for example, the coverage of
employment law in Chapter 10.
Third, unlike statutory protections, constitutional rights apply to
governmental actions only. This “state action” requirement means
that persons seeking to enforce the constitutional right to free speech
or to be treated equally must first establish that the right in question
was violated by actions of government officials. Thus, the First
Amendment does not apply if your neighbor or a private employer
attempts to prevent you from speaking freely. While the equal
protection clause may prevent a governmental agency from treating
you unfairly, it has no impact on how a private employer or a local
coffee shop might treat you.
Take a few minutes to consider the following hypothetical case
and see if you can identify the parts of the U.S. constitutional
amendments that might apply.
Case 7: The Constitutionally Challenged School District
In an effort to create a safe environment for its students and to
support diverse points of view, the Middletown Public School
District adopted the following policies:
■ Students and staff are prohibited from wearing any clothing
that might be offensive to other students or staff.
■ Students may not wear any sort of head covering while
indoors.
■ Biology teachers must include the “Intelligent Design Theory”
as an alternative to the “theory” of evolution in their classes.
■ The school follows a no-tolerance drug policy.
Based on these policies, the Middletown High School principal took
the following actions:
■ Expelled John, a high school senior, for wearing a t-shirt with
the words “Take the High Road: Legalize Pot,” written above
the image of three marijuana leaves.
■ Suspended Tahira, a high school junior, for wearing a Muslim
headscarf. On the same day Tahira was suspended, several
male students wore Jewish yarmulkes. None of them were
suspended.
■ Fired two biology teachers for refusing to teach the
“Intelligent Design Theory.”
A. THE RECOGNITION OF INDIVIDUAL RIGHTS
The federal constitution as originally approved did not contain
specific protections for individual rights. That deficiency was quickly
remedied through the adoption of the first ten amendments, known
as the Bill of Rights. These ten amendments include freedom of
speech and press, freedom of religion, the privilege against self-
incrimination, the right to an attorney and a trial by jury, protections
against unreasonable searches and seizures, and the prohibition
against cruel and unusual punishment.
p. 159
p. 160
Following the Civil War, additional constitutional rights were added
through the adoption of the Thirteenth, Fourteenth, and Fifteenth
Amendments. Whereas the Thirteenth Amendment abolished slavery
and the Fifteenth Amendment states that the right to vote cannot be
based on race, the Fourteenth Amendment guarantees “privileges
and immunities of citizens,” “due process,” and “equal protection” of
1
the law without any reference to slavery or race.
While it is quite clear that the drafters of the Bill of Rights intended
that the first ten amendments protect individuals from actions of the
new federal government, it is less clear as to the extent to which they
were also intended to limit actions of the state governments. For
example, the First Amendment begins with the words “Congress shall
make no law respecting an establishment of religion . . . .” A literal
interpretation would lead one to conclude that this is a restriction only
on laws passed by Congress (the legislative branch of the new federal
government).
However, through a series of cases, the Supreme Court has
determined that the passage of the Fourteenth Amendment, with its
mandate that states cannot “deprive any person of life, liberty, or
property, without due process of law; nor deny to any person . . . the
equal protection of the laws,” had the effect of making various rights
found in the Bill of Rights applicable to the states. Although the
Fourteenth Amendment was clearly intended to force the states to
grant legal rights to former slaves, the amendment did not limit these
newly created rights to any one race or to those who had been slaves.
Figure 6-1 presents a listing of those rights found in the Bill of
Rights that the U.S. Supreme Court has determined also apply to the
states through the Fourteenth Amendment.
The only major provisions that have not been applied to the states
are the following:
■ Third Amendment (right not to have to quarter soldiers in your
home);
■ Fifth Amendment (right to indictment by a grand jury);
■ Seventh Amendment (right to a jury trial in civil cases); and
■ Eighth Amendment (right against excessive bail and excessive
fines).
DISCUSSION QUESTION
1. Some argue that the ambiguities found in many of the
constitutional provisions are actually a source of strength as they
allow for flexibility in interpretation; others argue that they weaken the
Constitution because they leave us without a fixed content. What do
you think? Do you think the often vague and ambiguous
constitutional provisions are a source of strength or weakness?
p. 160
p. 161
Provision Case
Freedom of speech (1st Amend.) Gitlow v. New York (1925)
Freedom of the press (1st Amend.) Near v. Minnesota (1931)
Freedom to petition and assembly (1st Amend.) DeJonge v. Oregon (1937)
Free exercise of religion (1st Amend.) Cantwell v. Connecticut
(1940)
Establishment of religion (1st Amend.) Everson v. Bd. of Ed. (1947)
Freedom of association (1st Amend.) NAACP v. Alabama (1958)
Right to bear arms (2nd Amend.) McDonald v. Chicago (2010)
Protection against unreasonable search and seizure and Wolf v. Colorado (1949)
application of the exclusionary rule (4th Amend.) Mapp v. Ohio (1961)
Privilege against self-incrimination (5th Amend.) Malloy v. Hogan (1964);
Miranda v. Arizona (1966)
Right to privacy (5th Amend.) Griswold v. Connecticut
(1965)
Right against double jeopardy (5th Amend.) Benton v. Maryland (1968)
Right to counsel in capital cases (6th Amend.) Powell v. Alabama (1932)
Right to public trial (6th Amend.) In re Oliver (1948)
Right to counsel in all felony cases (6th Amend.) Gideon v. Wainwright (1963)
Right to confront and cross-examine (6th Amend.) Pointer v. Texas (1965)
Right to an impartial jury (6th Amend.) Parker v. Gladden (1966)
Right to a speedy trial (6th Amend.) Klopfer v. North Carolina
(1967)
Right to a jury trial for serious offenses (6th Amend.) Duncan v. Louisiana (1968)
Right against cruel and unusual punishment (8th Amend.) Robinson v. California
(1962)
Figure 6-1 Bill of Rights Provisions Applied to the States
B. FREEDOM OF EXPRESSION
The term freedom of expression is often used to refer collectively to
the following rights contained in the First Amendment: freedom of
speech, freedom of the press, freedom of association, the right to
peacefully assemble, and the right to petition the government for
redress of grievances. Taken together, these rights are designed to
protect people’s ability to inform and influence others by being able to
express their thoughts and desires through the spoken or written
word, by associating with like-minded individuals, and by signing
petitions and participating in peaceful assemblies.
These freedoms are considered essential to what John Stewart
Mill, a nineteenth century British philosopher and political economist,
called the “free marketplace of ideas.” Mill asserted that no one
individual has a monopoly on the truth and that competing versions
of the truth need to be tested in this public marketplace of ideas. Note
that this marketplace of ideas refers to a broad exchange of
information and points of view rather than to a specific physical
location. In Mill’s
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time, the exchange took place in the form of public speeches,
newspapers, books, and leaflets, while in the twenty-first century, it
most often takes place in newspapers, television stations, and in
social media on the Internet. In addition to being essential to the
operation of the free marketplace of ideas, freedom of expression is
also essential for the operation of a successful, stable, democracy,
because people are more willing to accept decisions, even those with
which they disagree, when they believe they have had a chance to
influence the decision making process.
Most of us recognize that if political candidates and their
supporters are not free to express their point of view, then our right to
vote is meaningless. Therefore, freedom of speech, freedom of the
press, and freedom of assembly are critical elements of a democratic
form of government.
1. Use of Balancing Tests
Although our society places a high value on maintaining freedom of
expression, the U.S. Supreme Court has consistently ruled that our
freedom to express our views is not absolute and that different types
of expression can be limited in different ways. For example,
newspapers should not be free to knowingly publish false information
that could ruin someone’s reputation nor do we want children to be
exposed to obscene materials. So, while the language of the First
Amendment clearly states: “Congress shall make no law . . . abridging
the freedom of speech or press,” a majority of the justices on the
Supreme Court has never been willing to interpret these words
literally to mean that no law can be enforced if it affects a First
Amendment freedom.
Having decided that the First Amendment’s right to freedom of
expression is not absolute, the U.S. Supreme Court has developed a
number of balancing tests to determine under which circumstances
the government can limit free expression.
For example, one of the most fundamental interests used in these
balancing tests is the government’s need to maintain order and
preserve the existence of the nation. From the passage of the Alien
and Sedition Acts in 1798 to the Patriot Act in 2001, our nation’s
history is replete with legislation that has limited free expression in
situations where it is deemed to pose a threat to our national security.
In 1919 in Schenck v. United States, a case involving anti-war
protests, Justice Oliver Wendell Holmes wrote:
When the nation is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight and
2
that no Court could regard them as protected by any constitutional right.
And in creating what is now known as the clear and present
danger test, he wrote the following to justify limiting free speech.
[T]he character of every act depends upon the circumstances in which it is done. The
most stringent protection of free speech would not protect a man in falsely shouting fire
in a theatre and causing a panic. . . . The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right
3
to prevent.
p. 162
p. 163
The limits to which a state run university can limit the speech of
antiwar protesters was raised in Brooks v. Auburn, 4
a 1969 case
involving Auburn University. The Chairman of the Human Rights
Forum had invited the Rev. William Sloane Coffin, a prominent anti-
war protester and Chaplain of Yale University, to speak on campus.
Rev. Coffin had been jailed several times because of his support of
desegregation and for preaching civil disobedience. The President of
Auburn University demanded that the offer be withdrawn, giving as
his reasoning that the speaker was a convicted felon who might
advocate breaking the law. The request to invite Rev. Sloan had
complied with Auburn’s usual process for inviting speakers to come
to the campus. However, the President of Auburn stated that three
additional qualifications needed to be met.
Student organizations could not invite (a) a speaker that could reasonably be expected
to advocate breaking a law, (b) a speaker who had been previously convicted of a felony,
and (c) a speaker of the type as the Reverend Mr. Coffin because it would be tantamount
5
to Auburn University’s sanctioning what the Reverend Mr. Coffin advocated.
The court found that these additional qualifications were
unconstitutional.
Colleges are not required to allow outside speakers to come onto
their campuses, but if they do so, then they must create a neutral
process and provide for a reasonable regulation of the time, place, or
manner for the speech. The college cannot make the substance of
6
the speech the deciding factor.
This Court is aware of the many forces which tend to foster the fear that the First
Amendment is “folly.” The paranoia of living under a nuclear balance of terror, the
divisiveness of an unpopular war, the racial tensions existing throughout the country, the
economic and social deterioration of our inner cities, and the insecurity of
unprecedented technological change are but a few of the forces which continue to
threaten our constitutional form of government. If our First Amendment’s freedom to
speak and freedom to listen are unduly infringed, our plan of self-government is
seriously weakened. . . .
Conflicting points of view on sensitive current topics must be — where people want to
hear them — afforded a forum. The denial of the right to hear these conflicting views —
even though those in authority believe them to be unwise or un-American — violates the
very ideas of our government. As Alexander Meikeljohn wrote:
“When men govern themselves, it is they — and no one else — who must pass
judgment upon unwisdom and unfairness and danger. And that means that unwise
ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as
well as safe, un-American as well as American. * *”
The denial of that right to hear:
“* * * is that mutilation of the thinking process of the community against which
7
the First Amendment to the Constitution is directed.”
In other situations, it is not the government’s interest in preserving
order that must be balanced, but rather a particular right of an
individual or group. In
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p. 164
the following case, the Court had to balance the right of mourners at
a funeral to be left alone with that of a group of demonstrators who
wanted to use the backdrop of the funeral to stage their protest.
Snyder v. Phelps
562 U.S. 443 (2011)
Chief Justice ROBERTS delivered the opinion of the Court.
A jury held members of the Westboro Baptist Church liable for
millions of dollars in damages for picketing near a soldier’s funeral
service. The picket signs reflected the church’s view that the
United States is overly tolerant of sin and that God kills American
soldiers as punishment. The question presented is whether the
First Amendment shields the church members from tort liability for
their speech in this case.
Fred Phelps founded the Westboro Baptist Church in Topeka,
Kansas, in 1955. The church’s congregation believes that God
hates and punishes the United States for its tolerance of
homosexuality, particularly in America’s military. The church
frequently communicates its views by picketing, often at military
funerals. In the more than 20 years that the members of Westboro
Baptist have publicized their message, they have picketed nearly
600 funerals.
Marine Lance Corporal Matthew Snyder was killed in Iraq in the
line of duty. Lance Corporal Snyder’s father selected the Catholic
church in the Snyders’ hometown of Westminster, Maryland, as the
site for his son’s funeral. Local newspapers provided notice of the
time and location of the service.
Phelps became aware of Matthew Snyder’s funeral and decided
to travel to Maryland with six other Westboro Baptist parishioners
(two of his daughters and four of his grandchildren) to picket. On
the day of the memorial service, the Westboro congregation
members picketed on public land adjacent to public streets near . .
. Matthew Snyder’s funeral. . . .
The church had notified the authorities in advance of its intent
to picket at the time of the funeral, and the picketers complied with
police instructions in staging their demonstration. The picketing
took place within a 10 by 25-foot plot of public land adjacent to a
public street, behind a temporary fence. That plot was
approximately 1,000 feet from the church where the funeral was
held. Several buildings separated the picket site from the church.
The Westboro picketers displayed their signs for about 30 minutes
before the funeral began and sang hymns and recited Bible verses.
None of the picketers entered church property or went to the
cemetery. They did not yell or use profanity, and there was no
violence associated with the picketing.
. . .
Snyder filed suit against Phelps, Phelps’s daughters, and the
Westboro Baptist Church. . . . Snyder alleged five state tort law
claims: [including] intentional infliction of emotional distress.
. . .
A jury found for Snyder on the intentional infliction of emotional
distress, . . . and held Westboro liable for $2.9 million in
compensatory damages and $8 million in punitive damages. . . .
The District Court remitted the punitive damages award to $2.1
million, but left the jury verdict otherwise intact.
The [Court of Appeals] reviewed the picket signs and concluded
that Westboro’s statements were entitled to First Amendment
protection because those statements were on matters of public
concern, were not provably false, and were expressed solely
through hyperbolic rhetoric.
p. 164
p. 165
. . .
Whether the First Amendment prohibits holding Westboro
liable for its speech in this case turns largely on whether that
speech is of public or private concern, as determined by all the
circumstances of the case.
“ ‘[N]ot all speech is of equal First Amendment importance,’ ”
however, and where matters of purely private significance are at
issue, First Amendment protections are often less rigorous. That is
because restricting speech on purely private matters does not
implicate the same constitutional concerns as limiting speech on
matters of public interest.
. . .
The “content” of Westboro’s signs plainly relates to broad
issues of interest to society at large, rather than matters of “purely
private concern.” The placards read “God Hates the USA/Thank
God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,”
“Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates
Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just
Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape
Boys,” “You’re Going to Hell,” and “God Hates You.” While these
messages may fall short of refined social or political commentary,
the issues they highlight — the political and moral conduct of the
United States and its citizens, the fate of our Nation,
homosexuality in the military, and scandals involving the Catholic
clergy — are matters of public import. . . . And even if a few of the
signs such as “You’re Going to Hell” and “God Hates You” — were
viewed as containing messages related to Matthew Snyder or the
Snyders specifically, that would not change the fact that the overall
thrust and dominant theme of Westboro’s demonstration spoke to
broader public issues.
. . .
Westboro’s choice to convey its views in conjunction with
Matthew Snyder’s funeral made the expression of those views
particularly hurtful to many, especially to Matthew’s father. The
record makes clear that the applicable legal term — “emotional
distress” — fails to capture fully the anguish Westboro’s choice
added to Mr. Snyder’s already incalculable grief. But Westboro
conducted its picketing peacefully on matters of public concern at
a public place adjacent to a public street. Such space occupies a
“special position in terms of First Amendment protection.” United
States v. Grace, 461 U.S. 171, 180 (1983). “[W]e have repeatedly
referred to public streets as the archetype of a traditional public
forum,” noting that “ ‘[t]ime out of mind’ public streets and
sidewalks have been used for public assembly and debate.” Frisby
v. Schultz, 487 U.S. 474 (1988).
That said, “[e]ven protected speech is not equally permissible in
all places and at all times.” Westboro’s choice of where and when
to conduct its picketing is not beyond the Government’s regulatory
reach — it is “subject to reasonable time, place, or manner
restrictions” that are consistent with the standards announced in
this Court’s precedents.
Simply put, the church members had the right to be where they
were.
. . .
The record confirms that any distress occasioned by
Westboro’s picketing turned on the content and viewpoint of the
message conveyed, rather than any interference with the funeral
itself. A group of parishioners standing at the very spot where
Westboro stood, holding signs that said “God Bless America” and
“God Loves You,” would not have been subjected to liability. It was
what Westboro said that exposed it to tort damages.
Given that Westboro’s speech was at a public place on a matter
of public concern, that speech is entitled to “special protection”
under the First Amendment. Such speech cannot be restricted
simply because it is upsetting or arouses contempt. “If there is a
bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”
Texas v. Johnson, 491 U.S. 397 (1989).
. . .
p. 165
p. 166
For all these reasons, the jury verdict imposing tort liability on
Westboro for intentional infliction of emotional distress must be
set aside.
. . .
Speech is powerful. It can stir people to action, move them to
tears of both joy and sorrow, and — as it did here — inflict great
pain. On the facts before us, we cannot react to that pain by
punishing the speaker. As a Nation we have chosen a different
course — to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires that we
shield Westboro from tort liability for its picketing in this case.
Justice ALITO, dissenting. Our profound national commitment to
free and open debate is not a license for the vicious verbal assault
that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a
parent whose son, Marine Lance Corporal Matthew Snyder, was
killed in Iraq.
. . .
Respondents and other members of their church have strong
opinions on certain moral, religious, and political issues, and the
First Amendment ensures that they have almost limitless
opportunities to express their views.
. . .
It does not follow, however, that they may intentionally inflict
severe emotional injury on private persons at a time of intense
emotional sensitivity by launching vicious verbal attacks that make
no contribution to public debate.
. . .
In this case, respondents brutally attacked Matthew Snyder,
and this attack, which was almost certain to inflict injury, was
central to respondents’ well-practiced strategy for attracting public
attention.
. . .
At funerals, the emotional well-being of bereaved relatives is
particularly vulnerable. . . .
I would therefore hold that, in this setting, the First Amendment
permits a private figure to recover for the intentional infliction of
emotional distress caused by speech on a matter of private
concern.
CASE DISCUSSION QUESTIONS
1. Did the Court find that the Westboro protestors’ speech was of
public or private concern? Why does that matter?
2. The Court acknowledged that Mr. Snyder must have felt
extreme emotional distress at his son’s funeral when he learned there
had been signs that said, among other things, “You’re Going to Hell.”
How did the Court justify overturning his emotional distress award?
Do you agree with the Court’s reasoning or that of the dissent? Why?
DISCUSSION QUESTION
2. In attempting to justify the use of a balancing approach,
Justice Oliver Wendell Holmes declared: “[T]he character of every act
depends upon the circumstances in which it is done,” and then gave
his famous example of falsely shouting fire in a crowded theater.
However, because most people cannot think of any value for ever
falsely shouting fire in a crowded theater, his example does not seem
very useful for deciding difficult free speech issues. What do you
think?
3. In the fall semester of 2017, University of California at Berkeley
spent $2,000,000 on security for conservative speakers to speak on
campus. Under
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p. 167
what circumstances, if any, should university administrators be able
to prevent controversial speakers from making formal presentations
8
on campus?
2.Types of Expression
Because the courts apply the same constitutional principles to
freedom of speech, freedom of the press, and the right to petition the
government, you do not need to worry about whether a court would
classify a political message written on a sign at an anti-war
demonstration as freedom of speech, freedom of the press, or the
freedom to petition the government. And a person being interviewed
on television could be seen as either an example of free speech or
freedom of the press. However, it can make a significant difference if
the courts classify a particular form of expression as pure speech
(including symbolic speech), commercial speech, obscenity, true
threats, or hate speech. As you will see, pure speech is given the most
protection, commercial speech is given somewhat less protection,
and obscenity, threats, and hate speech are given no protection. This
section will also address the development of the Internet as a
common marketplace of ideas that has fundamentally changed how
we communicate.
a. Pure Speech and Symbolic Speech
Courts give the most protection to speech that relates to matters
of public concern. That speech can take the form of pure speech, that
is, spoken or written words, or symbolic speech, nonverbal actions
taken for the purpose of expressing a point of view. Examples of
symbolic speech include wearing a black armband or destroying a
draft card. So long as the person’s conduct is meant to express an
idea, symbolic speech is given the same protections as pure speech.
In the following case, after a war protestor burned the American
flag, he was arrested for violating the Texas flag desecration statute.
Note how the Court evaluates and then dismisses the various
arguments Texas put forth to justify this application of its flag
desecration law to this case of symbolic speech and political protest.
Texas v. Johnson
491 U.S. 397 (1989)
Justice BRENNAN delivered the opinion of the Court.
After publicly burning an American flag as a means of political
protest, Gregory Lee Johnson was convicted of desecrating a flag
in violation of Texas law. This case presents the question whether
his conviction is consistent with the First Amendment. We hold
that it is not.
While the Republican National Convention was taking place in
Dallas in 1984, respondent Johnson participated in a political
demonstration dubbed the “Republican War Chest Tour.” . . . [T]he
purpose of this event was to protest the policies of the Reagan
administration and of certain Dallas-based corporations. . . .
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p. 168
The demonstration ended in front of Dallas City Hall, where
Johnson unfurled the American flag, doused it with kerosene, and
set it on fire. While the flag burned, the protestors chanted:
“America, the red, white, and blue, we spit on you.” . . .
Of the approximately 100 demonstrators, Johnson alone was
charged with a crime. The only criminal offense with which he was
charged was the desecration of a venerated object in violation of
Tex. Penal Code Ann. § 42.09(a) (3) (1989). After a trial, he was
convicted, sentenced to one year in prison, and fined $2,000. The
Court of Appeals for the Fifth District of Texas at Dallas affirmed
Johnson’s conviction, 706 S.W.2d 120 (1986), but the Texas Court
of Criminal Appeals reversed, 755 S.W.2d 92 (1988), holding that
the State could not, consistent with the First Amendment, punish
Johnson for burning the flag in these circumstances.
. . .
We granted certiorari, 488 U.S. 907 (1988), and now affirm.
II
The First Amendment literally forbids the abridgment only of
“speech,” but we have long recognized that its protection does not
end at the spoken or written word. While we have rejected “the
view that an apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea,” United States v. O’Brien, supra, at 376,
we have acknowledged that conduct may be “sufficiently imbued
with elements of communication to fall within the scope of the
First and Fourteenth Amendments,” [ Spence v. Washington, 418
U.S. 405, 409 (1974) (reversing the conviction of a college student
who displayed the flag with a peace symbol affixed to it by
removable black tape)].
. . .
The State of Texas conceded for purposes of its oral argument
in this case that Johnson’s conduct was expressive conduct, . . .
and this concession seems to us as prudent. . . . Johnson burned
an American flag as part — indeed, as the culmination — of a
political demonstration that coincided with the convening of the
Republican Party and its re-nomination of Ronald Reagan for
President. The expressive, overtly political nature of this conduct
was both intentional and overwhelmingly apparent. . . .
III
. . . The State offers two separate interests to justify this
conviction: preventing breaches of the peace and preserving the
flag as a symbol of nationhood and national unity. We hold that the
first interest is not implicated on this record and that the second is
related to the suppression of expression.
Texas claims that its interest in preventing breaches of the
peace justifies Johnson’s conviction for flag desecration. However,
no disturbance of the peace actually occurred or threatened to
occur because of Johnson’s burning of the flag. . . .
The State’s position, therefore, amounts to a claim that an
audience that takes serious offense at particular expression is
necessarily likely to disturb the peace and that the expression may
be prohibited on this basis. Our precedents do not countenance
such a presumption. On the contrary, they recognize that a
principal “function of free speech under our system of government
is to invite dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.”
. . .
Nor does Johnson’s expressive conduct fall within that small
class of “fighting words” that are “likely to provoke the average
person to retaliation, and thereby cause a breach of the peace.”
Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No
reasonable onlooker would have regarded Johnson’s generalized
expression of dissatisfaction with the policies of the Federal
Government as a direct personal insult or an invitation to exchange
fisticuffs.
p. 168
p. 169
We thus conclude that the State’s interest in maintaining order
is not implicated on these facts. The State need not worry that our
holding will disable it from preserving the peace.
[T]he State’s claim is that it has an interest in preserving the
flag as a symbol of nationhood and national unity, a symbol with a
determinate range of meanings. According to Texas, if one
physically treats the flag in a way that would tend to cast doubt on
either the idea that nationhood and national unity are the flag’s
referents or that national unity actually exists, the message
conveyed thereby is a harmful one and therefore may be
prohibited.
If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable.
. . .
To conclude that the government may permit designated
symbols to be used to communicate only a limited set of
messages would be to enter territory having no discernible or
defensible boundaries. Could the government, on this theory,
prohibit the burning of state flags? Of copies of the Presidential
seal? Of the Constitution? In evaluating these choices under the
First Amendment, how would we decide which symbols were
sufficiently special to warrant this unique status? To do so, we
would be forced to consult our own political preferences, and
impose them on the citizenry, in the very way that the First
Amendment forbids us to do.
. . .
The way to preserve the flag’s special role is not to punish
those who feel differently about these matters. It is to persuade
them that they are wrong. . . . And, precisely because it is our flag
that is involved, one’s response to the flag burner may exploit the
uniquely persuasive power of the flag itself. We can imagine no
more appropriate response to burning a flag than waving one’s
own, no better way to counter a flag burner’s message than by
saluting the flag that burns, no surer means of preserving the
dignity even of the flag that burned than by — as one witness here
did — according its remains a respectful burial. We do not
consecrate the flag by punishing its desecration, for in doing so we
dilute the freedom that this cherished emblem represents.
Johnson was convicted for engaging in expressive conduct.
The State’s interest in preventing breaches of the peace does not
support his conviction because Johnson’s conduct did not
threaten to disturb the peace. Nor does the State’s interest in
preserving the flag as a symbol of nationhood and national unity
justify his criminal conviction for engaging in political expression.
The judgment of the Texas Court of Criminal Appeals is therefore
affirmed.
Justice KENNEDY, concurring.
. . . The hard fact is that sometimes we must make decisions
we do not like. We make them because they are right, right in the
sense that the law and the Constitution, as we see them, compel
the result. And so great is our commitment to the process that,
except in the rare case, we do not pause to express distaste for the
result, perhaps for fear of undermining a valued principle that
dictates the decision. This is one of those rare cases.
. . .
Though symbols often are what we ourselves make of them,
the flag is constant in expressing beliefs Americans share, beliefs
in law and peace and that freedom which sustains the human
spirit. The case here today forces recognition of the costs to which
those beliefs commit us. It is poignant but fundamental that the
flag protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher
and perhaps did not even possess the ability to comprehend how
repellent his statements must be to the Republic itself. But
whether or not he could appreciate the enormity of the offense he
gave, the fact remains that his acts were speech, in both the
technical and the fundamental meaning of the Constitution. So I
agree with the Court that he must go free.
p. 169
p. 170
Chief Justice REHNQUIST, with whom Justice White and Justice
O’CONNOR join, dissenting.
. . . For more than 200 years, the American flag has occupied a
unique position as the symbol of our Nation, a uniqueness that
justifies a governmental prohibition against flag burning in the way
respondent Johnson did here.
. . .
. . . In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), a
unanimous Court said: “Allowing the broadest scope to the
language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times
and under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or ‘fighting’ words — those which by their
very utterance inflict injury or tend to incite an immediate breach
of the peace. It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality.” The Court upheld Chaplinsky’s conviction under a state
statute that made it unlawful to “address any offensive, derisive or
annoying word to any person who is lawfully in any street or other
public place.”
Here it may equally well be said that the public burning of the
American flag by Johnson was no essential part of any exposition
of ideas, and at the same time it had a tendency to incite a breach
of the peace. Johnson was free to make any verbal denunciation of
the flag that he wished; indeed, he was free to burn the flag in
private. He could publicly burn other symbols of the Government or
effigies of political leaders. He did lead a march through the streets
of Dallas, and conducted a rally in front of the Dallas City Hall. He
engaged in a “die-in” to protest nuclear weapons. He shouted out
various slogans during the march, including: “Reagan, Mondale
which will it be? Either one means World War III”; “Ronald Reagan,
killer of the hour, Perfect example of U.S. power”; and “red, white
and blue, we spit on you, you stand for plunder, you will go under.”
. . .
The result of the Texas statute is obviously to deny one in
Johnson’s frame of mind one of many means of “symbolic
speech.” Far from being a case of “one picture being worth a
thousand words,” flag burning is the equivalent of an inarticulate
grunt or roar that, it seems fair to say, is most likely to be indulged
in not to express any particular idea, but to antagonize others. . . . It
was Johnson’s use of this particular symbol, and not the idea that
he sought to convey by it or by his many other expressions, for
which he was punished.
. . .
I would uphold the Texas statute as applied in this case.
CASE DISCUSSION QUESTIONS
1. What justifications did the state of Texas give for limiting free
expression rights with regard to criminalizing flag burning?
2. What reasons did Justice Brennan give for rejecting each of the
state’s justifications?
3. Under what circumstances, if any, should the government be
able to prohibit the expression of an idea simply because society
finds the idea offensive or disagreeable?
4. If the special significance of the flag justifies special
protections, what other types of symbols — for example, a Bible,
sacred writings of other religions, or a copy of the Constitution —
should receive similar protection?
p. 170
p. 171
5. In a dissenting opinion that was not included here, Justice
Stevens argued that the government should be able to protect the
flag in the same way it can prohibit people from writing graffiti on the
Washington Monument or the Lincoln Memorial. How would you
respond to that argument?
DISCUSSION QUESTION
4. Early in the 2016–2017 season, NFL quarterback Colin
Kaepernick refused to stand during the national anthem played prior
to the start of games. Instead, Mr. Kaepernick took a knee. Because
the NFL is a private entity, the NFL can allow, prohibit, or restrict such
symbolic speech. If the President of the University of Michigan, a
public institution, prohibited football players from the same symbolic
speech, would it be a violation of the players’ First Amendment
rights? What if the coach restricted such behavior based on how it
9
could impact team performance?
b. Campaign Activities and Political Contributions
Campaign activities such as writing letters to the editor of
newspapers, calling in to radio talk shows, and going door-to-door
handing out campaign literature are traditional First Amendment
activities. However, like other First Amendment activities, they are not
absolute. Thus, the people engaging in these activities are subject to
limitations, such as libel laws, trespass laws, and noise restrictions.
Over the past several decades, paid political advertisements have
become increasingly important in political campaigns for major
public offices, and the high cost of these advertisements has created
increased concern about the political influence of corporate interests
and wealthy individuals. In an attempt to limit the influence of big
business and extremely wealthy individuals, Congress passed various
campaign finance laws that imposed limitations on political
contributions and campaign expenditures.
However, in their 1976 decision in Buckley v. Valeo, 10
the U.S.
Supreme Court ruled that campaign expenditures are a form of
constitutionally protected political speech and found unconstitutional
a law that placed limitations on campaign expenditures. Then in
2010, in the controversial case of Citizens United v. Federal Election
Commission, the Supreme Court invalidated limitations on corporate
political activities on the basis that corporations have the same First
11
Amendment rights as individuals.
Campaign activities have also changed because of the Internet.
Since 2002, television and print media have been required to include a
statement by the candidate that identifies the candidate and states
12
that the candidate has approved the communication. Internet
providers are not required to submit the same
p. 171
p. 172
disclosures, and they are able to sell ads to very targeted audiences.
Both before and after the 2016 elections, Internet Research Agency, a
Kremlin backed troll farm, purchased more than 3,500 ads on
13
Facebook with no disclosures. In the 2018 election, much more
money was spent on television ads, but Internet ads grew from 2014
by 260% as opposed to 75% for local cable TV and 29% for local
broadcast television.
DISCUSSION QUESTIONS
5. The Center for Responsive Politics uses a website to collect
14
data on the money contributed by individual corporate donors,
comparing the amount of money brought in by outside spending
groups since Citizens United was decided.
a. Do you think it is good for the American political system for
wealthy individuals and corporations to be able to contribute
so heavily in elections for President or other elected pubic
officials? Does this make candidates beholden to large
campaign donors?
b. In light of the Supreme Court’s decision in the Citizens
United case, what options are available to limit the influence
of “big money interests”?
6. Congress requires newspapers and television ads to provide
disclosures in political ads providing the name of the individual or
group that funded each ad. In 2018, Facebook voluntarily required
“paid for” labels above election and issue advertising.
a. What is the difference between an ad on Facebook and a
posting that gets reposted to a lot of Facebook groups?
b. What is the difference between an ad on the Internet and a
newspaper or television ad?
c. Should the content of tweets created to support particular
political candidates or causes be considered
advertisements?
c. Commercial Speech
As we have seen, the First Amendment protects the right to
debate political issues, but it is less clear whether it was also
intended to protect a business’s right to sell a product. This type of
speech, referred to as commercial speech, includes various forms of
advertising that communicate information about the nature,
availability, and pricing of commercial products and services.
In a series of cases beginning in the 1970s, the U.S. Supreme
Court decided that First Amendment free expression rights apply to
several types of nonpolitical advertising. One case involved a
newspaper advertisement containing information about a medical
15
clinic that provided abortions, a second advertised the price of
16
prescription medications at a pharmacy, and a third involved a law
firm’s newspaper advertisement listing the prices it charged for
several types of
p. 172
p. 173
17
routine legal services. In each case, the Court held that the First
Amendment was applicable and protected the advertisements in
question.
The protection of commercial speech, however, is not unlimited.
For example, in the case involving advertising for legal services, the
justices noted that the First Amendment did not prevent the bar
association from prohibiting advertisements that were either
fraudulent or that made claims about the quality, as opposed to the
price, of the services being offered.
d. Speech Not Protected by the First Amendment
Whereas political speech receives the most First Amendment
protection and commercial speech receives limited protection, some
forms of speech receive no constitutional protection. Examples
include obscenity, “fighting words,” threats, hate speech, and
defamation. You can find a discussion of defamation and the laws
relating to libel and slander in Chapter 7. In this section, we discuss
the other categories of speech not protected by the First
Amendment.
(1) Pornography, obscenity, and indecent speech
Over the years, we have seen an increase in the number of visual and
verbal references to sex in our movies, television programs, music
videos, books, and magazines. Most, but not all, of these sexual
references are protected by the First Amendment. Those that are not
protected fall into what the courts consider to be obscene materials.
While the United States has a long history of censoring sexually
explicit materials, the U.S. Supreme Court did not address the First
Amendment issues this censorship raised until its 1957 decision in
Roth v. United States. 18
The Court ruled that the First Amendment did
not apply because obscene materials have no “socially redeeming
value.” During the 1960s and 70s, there were a number of widely
publicized obscenity prosecutions that required the Supreme Court to
struggle with the challenge of developing a way to differentiate
between legitimate artistic works with social value that should be
protected by the First Amendment and sexually explicit material so
offensive it should not receive First Amendment protection. In 1964,
Supreme Court Justice Stewart wrote his often quoted statement — “I
know it when I see it” — to express his frustration at the difficulty of
developing a clear definition.
19
Finally, in its 1973 decision of Miller v.
California, the Court agreed on a three-part test. To be found obscene
the materials must meet all of the following criteria:
1) ‘the average person, applying contemporary community standards’ would find that the
work, taken as a whole, appeals to the prurient interest;
2) the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
20
3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
p. 173
p. 174
Note that this definition still contains a great deal of ambiguity.
For example, who is an “average” person? Is the “community” a local
neighborhood, the town, the county, or the entire state? And perhaps
most obviously, the Court seems to have defined obscenity by using
yet another undefined term: prurient.
A different set of rules apply when children are involved. States
have a compelling interest in protecting the physical and
psychological well-being of children. Therefore, in New York v.
Ferber, 21
the U.S. Supreme Court held that it did not violate rights of
free expression for a state to prohibit the production, sale, and
distribution of materials showing sexual performances involving
children. The Pornography Prevention Act of 1996 attempted to
extend this prohibition to virtual child pornography. The U.S. Supreme
Court held, however, that virtual child pornography, creating images
that appeared to show sexual explicit images of children without
22
using any real children, was overbroad and unconstitutional. Indeed,
the Court found that the language was so broad that Romeo and
Juliet could be banned by the language used in the Act.
In other pornography related cases, the Supreme Court has made
it clear that the government can take a variety of steps to limit access
of minors to sexually explicit materials.
23
For example, in FCC v.
Pacifica, the Supreme Court upheld the constitutionality of policies
promulgated by the Federal Communications Commission that
prohibited use of “indecent materials” on radio or TV during times
24
that children were likely to be listening.
(2) Fighting words, threats, and hate speech
It is often said that one person’s rights end where the next
person’s begin. For example, your right to say whatever you want is
tempered by the rights of others to not be put in fear by what you say.
Although speech cannot be limited simply because it might offend
some listeners, it can be restricted, and even form the basis for a
criminal prosecution, if the speaker threatens to harm someone or
seeks to provoke a violent reaction. This raises the related concepts
of “fighting words,” true threats, and hate speech.
Certain words, commonly called “fighting words,” have no
constitutional protection when used for the express purpose of
getting a violent reaction from another person. The classic case in
this area of law was from 1941, when Chaplinsky, a Jehovah’s
Witness, addressed a police officer as a “damned racketeer” and
“damned Fascist.” The Court held that such personal epithets are not
protected free speech as they are likely to provoke the hearer to
25
respond violently, and thereby cause a breach of the peace.
The Supreme Court further developed the fighting words concept
in 1971 in Cohen v. California, when Cohen was arrested for wearing
a jacket bearing
p. 174
p. 175
the words “Fuck the Draft” inside a Los Angeles courthouse. The
Court held that while the message was offensive, it was not directed
26
at a specific person, and hence was protected speech.
Closely related to the concept of “fighting words” is that of a “true
threat.” In contrast to fighting words that might cause an average
person to retaliate with violence, a true threat would cause the
average person to be afraid of imminent serious bodily harm. Here
the difficulty is in distinguishing “true” threats from statements, that
while inappropriate, are simply expressions of frustration or rage, but
that would not make the average listener believe that the speaker was
about to carry out any particular action based on those words. For
example, in Watts v. U.S., the defendant, a draft resister, was
prosecuted for threatening the life of President Lyndon B. Johnson.
His “threat” consisted of the following words: “if they ever make me
carry a rifle the first man I want in my sights is L.B.J.” The Court found
that this did not amount to a threat against the life of the President
and agreed with Watts that his statement was simply “ ‘a kind of very
crude offensive method of stating a political opposition to the
President.’ Taken in context, and regarding the expressly conditional
nature of the statement and the reaction of the listeners, we do not
27
see how it could be interpreted otherwise.”
Hate speech is another category that does not have constitutional
protection. It is usually defined as verbal or written expressions of
hatred for, or violence against, a specific class of people such as
racial or religious minorities, homosexuals, or members of other
commonly persecuted groups.
Proponents of laws against hate speech employ many of the
same arguments used to justify prohibiting obscenity — it is offensive
to many people and sometimes causes individuals to engage in
criminal, anti-social, or immoral behavior. Opponents of such
regulations argue that “political correctness” should not be enforced
by law, and there is no objective criteria by which to judge what
language should, or should not, be allowed in public discourse. In a
2003 case, the U.S. Supreme Court ruled that while the burning of a
cross could be protected symbolic speech, that activity could be
criminalized when done on either public property or on someone
else’s private property with the intent to intimidate any person or
28
group of persons.
The Court has also upheld the constitutionality of penalty
enhancement statutes. Such statutes provide for stiffer penalties in
situations where the defendant has been found guilty of another
crime, such as robbery, and it is proven that the defendant selected
the specific victim because of that person’s race, religion, or other
specified factors. For example, in the U.S. Supreme Court case of
Wisconsin v. Mitchell, several young black men attacked a white
youth, after yelling, “There goes a white boy. Go get him.” The Court
found the statute constitutional on the basis that a physical assault is
not protected expressive conduct under the First Amendment and
such statutes do not pose any realistic threat to chilling free
29
speech.
p. 175
p. 176
DISCUSSION QUESTIONS
7. In the past, one rationale for not extending First Amendment
protections to obscene materials was that such materials are
“without any socially redeeming value.” Do you agree with this
assertion? What, if any, societal value might there be for sexually
explicit materials? If they have no value, why have they been around
for such a long time in so many different cultures?
8. Although the number of obscenity prosecutions has dropped
drastically in the past few years, the biggest problem with obscenity
law continues to be the difficulty of applying the Supreme Court’s
Miller definition. Consider how a jury of 12 people from your
community would go about deciding if a specific movie or magazine
fit the definition for obscenity and then compare your expectation
with those of your classmates.
a. Describe who you think is an “average” person in your
community. In doing so, did you define your “community” as
a local neighborhood, the town, the county, or the entire
state?
b. If prurient was not defined for you by the judge, what would
you interpret it to mean?
c. What makes a description of sexual conduct “patently
offensive”?
d. What type of evidence would you want the attorneys to
present in order to determine if the work in question “lacked
serious literary, artistic, political or scientific value”?
9. In Cohen v. California Justice John Harlan wrote: “[T]he State
has no right to cleanse public debate to the point where it is
grammatically palatable to the most squeamish among us. . . . It is
often true that one man’s vulgarity is another’s lyric. Indeed, we think
it is largely because governmental officials cannot make principled
distinctions in this area that the Constitution leaves matters of taste
30
and style so largely to the individual.” Do you agree with this
statement? Why or why not?
10. To what extent do you think the First Amendment should
protect speech that is known to be offensive to specific racial, ethnic,
or religious groups?
a. Should demonstrators be allowed to wear clothing
associated with the Ku Klux Klan or burn crosses?
b. Should people be able to burn copies of books that are
considered sacred by other religious groups (for example, a
Bible or the Koran)?
c. Should publications be allowed to include cartoons of the
Muslim prophet Muhammad?
3. Time and Place Restrictions
One of the most important principles of First Amendment
jurisprudence is the distinction between regulations based on the
content of the message and regulations governing the way in which
the message is delivered. Time and place restrictions relate to when
and where free speech activities can take place. For example, while
political speeches are generally allowed in public parks and on public
streets and sidewalks, they can be prohibited in certain areas.
p. 176
p. 177
Among the locations that raise special First Amendment issues
are courthouses, jails, military bases, and public schools.
Demonstrations and uncontrolled speech can interfere with the
security needs of military bases or correctional facilities or with the
proper functioning of courthouses and schools. So, for example, the
right of students to speak freely must be balanced against the
school’s right to maintain an appropriate educational environment.
In Tinker v. Des Moines Independent Community School District,
students wore black armbands to protest the United States
involvement in the Vietnam war. The U.S. Supreme Court famously
declared that students do not “shed their constitutional rights when
31
they enter the schoolhouse door.” Schools can prohibit student
speech only if school officials can show that the speech would
“materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” In other words,
school officials cannot prohibit conduct simply because they do not
like it. Instead, they must be able to produce evidence that the
conduct would substantially disrupt the school environment.
Twenty-nine years later, the Supreme Court relaxed this
requirement, holding that school officials could censor the content of
an official school newspaper when doing so was merely “reasonably
32
related to legitimate pedagogical concerns.” At issue was an article
dealing with pregnancy, teen sexual activity, and birth control. The
school was able to prohibit its publication on the grounds that its
content was inappropriate for its younger readers.
Applying these principles to the hypothetical case with which we
began the chapter, in order to continue wearing his t-shirt and
attending school, John would have to convince a court that his action
constituted a political statement, that it did not interfere with any of
the school’s legitimate pedagogical concerns, and it was not
disruptive of the educational process. If, however, John’s shirt could
be characterized not as espousing the need to vote for legalizing
marijuana but rather as advocating its use, then the school might
argue that John’s message conflicts with the school’s anti-drug
policy. In that case, he might lose even if there was no disruption of
33
school activities.
4. Content Neutrality
Although the courts have approved a variety of time and place
restrictions on free expression, they have been very clear in holding
that such regulations must be content neutral. That is to say, they
must not discriminate on the basis of the point of view being
presented. A government cannot give a permit to hold a Republican
or Democratic Party rally and then refuse to grant the same permit to
the Green or Libertarian Party. It cannot block anti-war protests while
allowing demonstrations to support the troops. It cannot prohibit use
of the American flag in rallies or advertisements that oppose
governmental policies while at the same time allowing it to be used in
rallies or advertisements that support governmental policies.
p. 177
p. 178
Because of the state action requirement, it matters whether or not
a content provider is a private or a public entity. For example, when
the Manhattan Neighborhood Network (MNN), a non-profit
corporation that operated a public access television channel, refused
to air a television show because of its content, the show’s producers
claimed that their First Amendment rights were violated. The U.S.
Supreme Court disagreed. The Court found that despite the state’s
extensive regulation of the public access cable, MNN was not subject
34
to First Amendment constraints because it was a private actor. In
her dissent, Justice Sotomayer agreed that private actors are not
constrained by the First Amendment, but that MNN is a public actor.
She reasoned that by New York City having asked MNN to run a
public forum and MNN having agreed to do so, MNN became as
subject to the First Amendment as if the city had run the forum itself.
5. The Chilling Effect of Overbreadth and Vagueness
In addition to requiring content neutrality in regulations affecting First
Amendment activities, the courts have required the laws imposing
these restrictions be narrowly written so as not to limit these rights
any more than is clearly justified by the government’s legitimate
needs. If a statute is written in such a way as to limit more expression
than is constitutionally allowed, it will be struck down because it is
overbroad. Alternatively, if the statute is worded in such a way that its
meaning is ambiguous, it is considered to be void for vagueness.
In 2015, North Carolina made it a felony for a registered sex
offender to “access a commercial social networking Web site where
the sex offender knows that the site permits minor children to
35
become members or to create or maintain personal Web pages.” In
the following case, the U.S. Supreme Court addressed First
Amendment rights as they relate to the Internet.
Packingham v. North Carolina
137 S. Ct. 1730 (2017)
Justice KENNEDY delivered the opinion of the Court.
IB
In 2002, petitioner Lester Gerard Packingham — then a 21-year-
old college student — had sex with a 13-year-old girl. He pleaded
guilty to taking indecent liberties with a child. Because this crime
qualifies as “an offense against a minor,” petitioner was required to
register as a sex offender — a status that can endure for 30 years
or more. As a registered sex offender, petitioner was barred from
gaining access to commercial social networking sites.
p. 178
p. 179
In 2010, a state court dismissed a traffic ticket against
petitioner. In response, he logged on to Facebook.com and posted
the following statement on his personal profile:
“Man God is Good! How about I got so much favor they
dismissed the ticket before court even started? No fine, no
court cost, no nothing spent...... Praise be to GOD, WOW!
Thanks JESUS!”
. . . Petitioner was indicted by a grand jury for violating § 14–
202.5. The trial court denied his motion to dismiss the indictment
on the grounds that the charge against him violated the First
Amendment. Petitioner was ultimately convicted and given a
suspended prison sentence. At no point during trial or sentencing
did the State allege that petitioner contacted a minor — or
committed any other illicit act — on the Internet.
Petitioner appealed to the Court of Appeals of North Carolina.
That court struck down § 14–202.5 on First Amendment grounds,
explaining that the law is not narrowly tailored to serve the State’s
legitimate interest in protecting minors from sexual abuse. Rather,
the law “arbitrarily burdens all registered sex offenders by
preventing a wide range of communication and expressive activity
unrelated to achieving its purported goal.” The North Carolina
Supreme Court reversed, concluding that the law is “constitutional
in all respects.” Among other things, the court explained that the
law is “carefully tailored . . . to prohibit registered sex offenders
from accessing only those Web sites that allow them the
opportunity to gather information about minors.” The court also
held that the law leaves open adequate alternative means of
communication because it permits petitioner to gain access to
websites that the court believed perform the “same or similar”
functions as social media, such as the Paula Deen Network and
the website for the local NBC affiliate. . . .
II.
A fundamental principle of the First Amendment is that all
persons have access to places where they can speak and listen,
and then, after reflection, speak and listen once more. The Court
has sought to protect the right to speak in this spatial context. A
basic rule, for example, is that a street or a park is a quintessential
forum for the exercise of First Amendment rights. Even in the
modern era, these places are still essential venues for public
gatherings to celebrate some views, to protest others, or simply to
learn and inquire.
While in the past there may have been difficulty in identifying
the most important places (in a spatial sense) for the exchange of
views, today the answer is clear. It is cyberspace — the “vast
democratic forums of the Internet”. . . .
Social media offers “relatively unlimited, low-cost capacity for
communication of all kinds.” On Facebook, for example, users can
debate religion and politics with their friends and neighbors or
share vacation photos. On LinkedIn, users can look for work,
advertise for employees, or review tips on entrepreneurship. And
on Twitter, users can petition their elected representatives and
otherwise engage with them in a direct manner. Indeed, Governors
in all 50 States and almost every Member of Congress have set up
accounts for this purpose. In short, social media users employ
these websites to engage in a wide array of protected First
Amendment activity on topics “as diverse as human thought.”
The nature of a revolution in thought can be that, in its early
stages, even its participants may be unaware of it. And when
awareness comes, they still may be unable to know or foresee
where its changes lead. . . So too here. While we now may be
coming to the realization that the Cyber Age is a revolution of
historic proportions, we cannot appreciate yet its full dimensions
and vast potential to alter how we think, express ourselves, and
define who we want to be. The forces and directions of the Internet
are so new, so protean, and so far reaching that courts must be
conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the
relationship between the First Amendment and the modern
Internet. As a result, the Court must exercise extreme caution
before suggesting that the First Amendment provides scant
protection for access to vast networks in that medium.
p. 179
p. 180
III.
. . . . By prohibiting sex offenders from using [social media]
websites, North Carolina with one broad stroke bars access to
what for many are the principal sources for knowing current
events, checking ads for employment, speaking and listening in the
modern public square, and otherwise exploring the vast realms of
human thought and knowledge. These websites can provide
perhaps the most powerful mechanisms available to a private
citizen to make his or her voice heard. They allow a person with an
Internet connection to “become a town crier with a voice that
resonates farther than it could from any soapbox.”
In sum, to foreclose access to social media altogether is to
prevent the user from engaging in the legitimate exercise of First
Amendment rights. It is unsettling to suggest that only a limited
set of websites can be used even by persons who have completed
their sentences. Even convicted criminals — and in some instances
especially convicted criminals — might receive legitimate benefits
from these means for access to the world of ideas, in particular if
they seek to reform and to pursue lawful and rewarding lives.
IV.
The primary response from the State is that the law must be
this broad to serve its preventative purpose of keeping convicted
sex offenders away from vulnerable victims. The State has not,
however, met its burden to show that this sweeping law is
necessary or legitimate to serve that purpose. . . .
It is well established that, as a general rule, the Government
“may not suppress lawful speech as the means to suppress
unlawful speech.”
That is what North Carolina has done here. Its law must be held
invalid.
The judgment of the North Carolina Supreme Court is reversed,
and the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
(J. Alito, Concurring)
. . . While I thus agree with the Court that the particular law at
issue in this case violates the First Amendment, I am troubled by
the Court’s loose rhetoric. After noting that “a street or a park is a
quintessential forum for the exercise of First Amendment rights,”
the Court states that “cyberspace” and “social media in particular”
are now “the most important places (in a spatial sense) for the
exchange of views.” The Court declines to explain what this means
with respect to free speech law, and the Court holds no more than
that the North Carolina law fails the test for content-neutral “time,
place, and manner” restrictions. But if the entirety of the internet or
even just “social media” sites are the 21st century equivalent of
public streets and parks, then States may have little ability to
restrict the sites that may be visited by even the most dangerous
sex offenders. May a State preclude an adult previously convicted
of molesting children from visiting a dating site for teenagers? Or a
site where minors communicate with each other about personal
problems? The Court should be more attentive to the implications
of its rhetoric for, contrary to the Court’s suggestion, there are
important differences between cyberspace and the physical world.
I will mention a few that are relevant to internet use by sex
offenders. First, it is easier for parents to monitor the physical
locations that their children visit and the individuals with whom
they speak in person than it is to monitor their internet use.
Second, if a sex offender is seen approaching children or loitering
in a place frequented by children, this conduct may be observed by
parents, teachers, or others. Third, the internet offers an
unprecedented degree of anonymity and easily permits a would-be
molester to assume a false identity.
The Court is correct that we should be cautious in applying our
free speech precedents to the internet. Cyberspace is different
from the physical world, and if it is true, as the Court believes, that
“we cannot appreciate yet” the “full dimensions and vast potential”
of “the Cyber Age,” we should proceed circumspectly, taking one
step at a time. It is regrettable that the Court has not heeded its
own admonition of caution.
p. 180
p. 181
CASE DISCUSSION QUESTIONS
1. In his concurring opinion, Judge Alito states that it is “easier for
parents to monitor the physical locations that their children visit and
the individuals with whom they speak in person than it is to monitor
their internet use.” Could the North Carolina legislature pass a law to
protect children from registered sex offenders on the Internet? How
could it be drafted so as not to be overbroad?
2. Do you believe that “cyberspace” and “social media in
particular” are now “the most important places (in a spatial sense) for
the exchange of views”? If these social sites are considered to be the
“new street corners,” at what point should they be treated not as
private companies, but as a public space and so be required to
adhere to the First Amendment?
3. In 2009, Donald Trump created a private account on Twitter
@real-Donald Trump. When he became President, the page was
registered to Donald Trump “45th President of the United States of
America, Washington, D.C.” and in June 2017 the White House Press
Secretary stated at a press conference that the President’s tweets on
that account should be considered “official statements by the
President of the United States.” In May and June 2017, President
Trump blocked users after they posted replies that were critical of the
President. Does the First Amendment permit a public official who
utilizes a social media account for official purposes to exclude
persons because they expressed views with which the official
disagrees? Would it have been Constitutional for Donald Trump to
have blocked users prior to becoming President? What about the
twitter account after President Trump leaves public service and is a
36
private citizen?
Laws that are either vague or overbroad are said to have a chilling
effect on the exercise of First Amendment rights because they might
lead to self-censorship by people who are unwilling to risk being fined
or incarcerated because they could not determine the legality of their
actions before they took them. A good example of the application of
this doctrine can be found in the Supreme Court’s decision in New
York Times v. Sullivan. 37
38
In that case, the Court struck down an Alabama libel law. The
trial court had awarded damages against a newspaper for inaccurate
statements in a political advertisement that it had run. The Court
concluded that the law was overbroad and had a chilling effect on
freedom of the press. This chilling effect could discourage the press
from reporting relevant information about government officials and
how they were performing their official duties. To quote Justice
Brennan:
A rule compelling the critic of official conduct to guarantee the truth of all his factual
assertions — and to do so on pain of libel judgments virtually unlimited in amount —
leads to a comparable “self-censorship.” Allowance of the defense of truth, with the
burden of proving it on the defendant, does not mean that only false speech will be
39
deterred.
p. 181
p. 182
Therefore, when publishing information about a public official, a
newspaper could be found liable only if it knew or should have known
40
the information was false.
C. FREEDOM OF RELIGION AND THE ESTABLISHMENT
CLAUSE
One of the most controversial and most misunderstood topics in
constitutional law is the relationship between church and state. It is
controversial because there is strong disagreement as to what the
founding fathers intended, as well as what in a religiously diverse
country they thought the relationship should be between church and
state. Confusion also arises in this area because many people react
on a very emotional level to cases involving religion and yet know little
about the rationale for the Court’s decisions. For example, many
people believe that our country was founded as a Christian nation.
But despite the popularity of this misconception, there is no mention
of such a commitment in the Preamble to the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America.
Nor is such a belief in Christian fundamentals found anywhere else in
the Constitution. In fact, rather than making one’s acceptance of
Christianity a prerequisite for holding public office, Article VI actually
contains a prohibition against using any such type of religious test.
The only direct discussion of the nature of the relationship
between religion and government is found at the beginning of the
First Amendment where it states, “Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise
thereof . . . .” Note that this language consists of two distinct clauses.
The declaration that Congress shall make no law respecting an
establishment of religion is commonly referred to as the
establishment clause. It deals with the extent to which the
government can recognize and support religious groups. The second
clause, commonly referred to as the free exercise clause, prohibits
the government from interfering with people’s religious activities.
Before we discuss the differences between establishing a religion
and interfering with the free exercise of religion, we need to consider
the question of how the courts define “religion.” In determining what
constitutes a religious activity, the courts have generally been quite
inclusive. In Davis v. Beason, the Court wrote:
The term “religion” has references to one’s views of his relations to his Creator, and to
the obligations they impose of reverence for his being and character, and of obedience
41
to his will. . . .
p. 182
p. 183
Even more expansively, in United States v. Seeger, the Court ruled
that a conscientious objector, who was an agnostic, could be viewed
as holding religiously based views even when those views were not
based on a belief in a higher being. The Court held that the proper test
of what constitutes religious belief is “whether a given belief that is
sincere and meaningful occupies a place in the life of its possessor
42
parallel to that filled by the orthodox beliefs in God.”
DISCUSSION QUESTION
11. Based on the definition used in Davis v. Beason and Seeger,
which of the following situations would be seen as actions taken
based on a religious belief?
a. A follower of Christian Science believes he can rely on God
to cure any health problems he might have and so refuses to
allow his children to be vaccinated.
b. A vegan was fired from her position in the administrative
office of a public hospital because she refused to receive
vaccinations required of all hospital employees. She refuses
to be vaccinated because animals are abused and
sometimes killed in the process of developing the vaccines,
and she has deeply held beliefs that it is immoral to use
animals in this way.
c. A Native American uses peyote (a hallucinogenic drug) as
part of a traditional ceremony and is arrested for violating
federal drug laws.
d. An atheist wants to erect a “monument” with famous quotes
on public property next to one erected by a local church that
contains quotes from the Bible.
1. The Free Exercise Clause
Most Americans accept the idea that people should be allowed to
practice the religion of their own choosing, in the manner of their
choosing. However, even though an activity may be religiously
motivated, it is not necessarily immune from governmental
regulation. While the government cannot dictate what people believe,
it can place some limitations on how they act. For example, should
Christians under the age of 21 be allowed to drink wine as part of
their communion rituals? If the answer is yes, then should Native
Americans be able to use hallucinogenic drugs in their religious
ceremonies? Should Mormons be allowed to practice polygamy?
Should Christian Scientists be allowed to withhold needed medical
treatment from their children on the basis of their religious beliefs, or
Satanic cult members be able to incorporate human sacrifice into
their religious rituals?
To analyze whether such activities are protected under the free
exercise clause, the courts look to two key issues. First, the courts
must determine whether the activity is based on a religious belief.
Second, if the answer is yes, then the courts must decide what, if any,
limitations should be placed on the exercise of that activity. To make
that determination, the courts balance the person’s religious rights
against the government’s interest in preserving the general welfare of
society and protecting third parties who might be injured. Therefore,
sincerely
p. 183
p. 184
held religious beliefs do not immunize adherents from criminal laws,
such as murder, assault, or theft. And while the government may not
be able to force a Christian Scientist to accept medical treatment, it
may be able to keep parents from preventing their minor child from
receiving a lifesaving medical intervention. Furthermore, the U.S.
Supreme Court has held that compulsory vaccination laws are
constitutional and the government may require those that fail to
43
comply to pay fines or face imprisonment. During a measles
outbreak in 1991, compulsory vaccinations were ordered in
Philadelphia and New York City. But whether such forcible
vaccinations are legal is unclear.
A good example of the type of balancing of a person’s religious
rights against the government’s interests is found in Wisconsin v.
Yoder, in which Amish and Mennonite parents were convicted of
violating the state’s compulsory public school attendance law
because they refused to send their children to school beyond the
eighth grade. The parents argued that it was a violation of their free
exercise of religion for the state to require them to send their children
to public schools after the eighth grade because it exposed the
children to ideas that threatened their unique, religiously based
lifestyle. On appeal, the state supreme court agreed with the parents
that applying the compulsory school attendance law to them violated
their rights under the free exercise clause of the First Amendment,
made applicable to the states by the Fourteenth Amendment. After
granting a writ of certiorari, the U.S. Supreme Court delivered the
following opinion.
Wisconsin v. Yoder
406 U.S. 205 (1972)
Mr. Chief Justice BURGER delivered the opinion of the Court.
. . . In support of their position, respondents presented as
expert witnesses scholars on religion and education whose
testimony is uncontradicted. They expressed their opinions on the
relationship of the Amish belief concerning school attendance to
the more general tenets of their religion, and described the impact
that compulsory high school attendance could have on the
continued survival of Amish communities as they exist in the
United States today. The history of the Amish sect was given in
some detail, beginning with the Swiss Anabaptists of the 16th
century who rejected institutionalized churches and sought to
return to the early, simple, Christian life de-emphasizing material
success, rejecting the competitive spirit, and seeking to insulate
themselves from the modern world. As a result of their common
heritage, Old Order Amish communities today are characterized by
a fundamental belief that salvation requires life in a church
community separate and apart from the world and worldly
influence. This concept of life aloof from the world and its values is
central to their faith.
A related feature of Old Order Amish communities is their
devotion to a life in harmony with nature and the soil, as
exemplified by the simple life of the early Christian era that
continued in America during much of our early national life. Amish
beliefs require members of
p. 184
p. 185
the community to make their living by farming or closely related
activities.
. . .
Formal high school education beyond the eighth grade is
contrary to Amish beliefs, not only because it places Amish
children in an environment hostile to Amish beliefs with increasing
emphasis on competition in class work and sports and with
pressure to conform to the styles, manners, and ways of the peer
group, but also because it takes them away from their community,
physically and emotionally, during the crucial and formative
adolescent period of life. . . .
The Amish do not object to elementary education through the
first eight grades as a general proposition because they agree that
their children must have basic skills in the “three R’s” in order to
read the Bible, to be good farmers and citizens, and to be able to
deal with non-Amish people when necessary in the course of daily
affairs. They view such a basic education as acceptable because it
does not significantly expose their children to worldly values or
interfere with their development in the Amish community during
the crucial adolescent period.
. . .
There is no doubt as to the power of a State, having a high
responsibility for education of its citizens, to impose reasonable
regulations for the control and duration of basic education. See,
e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).
Providing public schools ranks at the very apex of the function of a
State. Yet even this paramount responsibility was, in Pierce, made
to yield to the right of parents to provide an equivalent education in
a privately operated system. . . .
It follows that in order for Wisconsin to compel school
attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest
claiming protection under the Free Exercise Clause.
. . .
[T]he unchallenged testimony of acknowledged experts in
education and religious history, almost 300 years of consistent
practice, and strong evidence of a sustained faith pervading and
regulating respondents’ entire mode of life support the claim that
enforcement of the State’s requirement of compulsory formal
education after the eighth grade would gravely endanger if not
destroy the free exercise of respondents’ religious beliefs.
. . .
We turn, then, to the State’s broader contention that its interest
in its system of compulsory education is so compelling that even
the established religious practices of the Amish must give way. . . .
The State advances two primary arguments in support of its
system of compulsory education. It notes, as Thomas Jefferson
pointed out early in our history, that some degree of education is
necessary to prepare citizens to participate effectively and
intelligently in our open political system if we are to preserve
freedom and independence. Further, education prepares
individuals to be self-reliant and self-sufficient participants in
society. We accept these propositions.
However, the evidence adduced by the Amish in this case is
persuasively to the effect that an additional one or two years of
formal high school for Amish children in place of their long-
established program of informal vocational education would do
little to serve those interests. Respondents’ experts testified at
trial, without challenge, that the value of all education must be
assessed in terms of its capacity to prepare the child for life. It is
one thing to say that compulsory education for a year or two
beyond the eighth grade may be necessary when its goal is the
preparation of the child for life in modern society as the majority
live, but it is quite another if the goal of education be viewed as the
preparation of the child for life in the separated agrarian
community that is the keystone of the Amish faith.
The State attacks respondents’ position as one fostering
“ignorance” from which the child must be protected by the State.
No one can
p. 185
p. 186
question the State’s duty to protect children from ignorance but
this argument does not square with the facts disclosed in the
record. Whatever their idiosyncrasies as seen by the majority, this
record strongly shows that the Amish community has been a
highly successful social unit within our society, even if apart from
the conventional “mainstream.”
. . .
Affirmed.
CASE DISCUSSION QUESTIONS
1. On what basis did the Court conclude that Wisconsin’s
compulsory school attendance laws could not be applied to the
Amish parents?
2. The Court’s opinion went to great lengths to document the
history of the Amish and how their beliefs were endangered by the
state’s mandatory attendance law. How do you think a judge would
respond to a situation in which parents who live in an urban area and
are not part of a long-established religious group choose not to send
their children to school beyond the eighth grade on the basis that
they did not want them exposed to students with values that differed
from their own?
3. In light of our increasingly technologically advanced society,
should states alter their compulsory school attendance laws from
age 16 to age 18? What are the pros and cons of such a change?
4. Note the opinion’s reference to Pierce v. Society of Sisters. In
that case, the Supreme Court struck down an Oregon compulsory
attendance law that did not allow students to attend private schools
as an alternative to public schools. Under what circumstances do you
think states should allow parents to “home school” their children?
What kinds of checks should the government institute to ensure the
quality and content of the children’s education?
5. In a dissenting opinion in Yoder, Justice Douglas argued that it
was in the Amish children’s best interest to receive a high school
education so they would know what their alternatives were and be
prepared if they sought a different type of lifestyle. He therefore
argued that the state’s compulsory attendance law should be applied
to the Amish children, even though the parents wanted to shelter
them from outside interests. What do you think of Justice Douglas’s
position? To what extent should parents be able to shelter their
children from ideas or religious beliefs to which they do not want
them exposed?
As we have seen in the Yoder case, free exercise of religion cases
require judges to balance the general public interest against the right
of individuals to follow their religious beliefs. But how are judges
supposed to determine what the appropriate balance should be? In
1963, the U.S. Supreme Court ruled that the government had to
establish that any restrictions on the free exercise of religion were
necessary to achieve a compelling state interest and that the means
had to be narrowly tailored to achieve that interest.
44
This is the test
the Court applied in Yoder.
In 1990, however, the Supreme Court announced a new standard
that made it easier for the government to justify restrictions on the
free exercise of religion. In Employment Division v. Smith, 45
the Court
upheld the application
p. 186
p. 187
of a comprehensive ban on controlled substances to situations where
hallucinogenic drugs were used in Native American religious
ceremonies. In doing so, it stated that as long as the law in question
was neutral on its face and of general applicability, it was not a
violation of the free exercise clause, even if it had the incidental effect
of burdening a particular religious practice.
Even though the Smith test makes it more difficult to win a free
exercise challenge, plaintiffs can still prevail when the prohibition is
not truly neutral. In Church of Lukumi Babalu v. Hialeah, 46
the Court
struck down an ordinance passed by Hialeah, Florida that prohibited
the killing of animals as part of a religious ceremony. The legislative
history indicated that it had been passed to try to prevent a religious
group that practiced animal sacrifice from building a church in their
community. The Court ruled that it was clearly directed at a specific
religious group and could not be justified as a secular public health
regulation because it did not apply to slaughterhouses and other
situations where animals were killed.
In response to the Supreme Court’s decision in S mith, Congress
47
passed the Religious Freedom Restoration Act (RFRA) of 1993. The
legislative history of this act indicates that it was designed to restore
the requirement that government have a “compelling interest” before
it can take an action that interferes with a person’s free exercise of
religion.
The following case highlights this difficult balancing act between
giving states the right to legislate for the general public good and
guaranteeing individuals the right to freely express their religious
beliefs.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission
138 S. Ct. 1719 (2018)
Justice KENNEDY delivered the opinion of the Court.
In 2012 a same-sex couple visited Masterpiece Cakeshop, a
bakery in Colorado, to make inquiries about ordering a cake for
their wedding reception. The shop’s owner told the couple that he
would not create a cake for their wedding because of his religious
opposition to same-sex marriages — marriages the State of
Colorado itself did not recognize at that time. The couple filed a
charge with the Colorado Civil Rights Commission alleging
discrimination on the basis of sexual orientation in violation of the
Colorado Anti-Discrimination Act.
The Commission determined that the shop’s actions violated
the Act and ruled in the couple’s favor. The Colorado state courts
affirmed the ruling and its enforcement order, and this Court now
must decide whether the Commission’s order violated the
Constitution.
The case presents difficult questions as to the proper
reconciliation of at least two principles. The first is the authority of
a State and its governmental entities to protect the rights and
dignity of gay persons who are, or wish to be, married but who face
discrimination when they seek goods or services. The second is
the right of all persons to exercise fundamental freedoms
p. 187
p. 188
under the First Amendment, as applied to the States through the
Fourteenth Amendment.
The freedoms asserted here are both the freedom of speech
and the free exercise of religion. The free speech aspect of this
case is difficult, for few persons who have seen a beautiful
wedding cake might have thought of its creation as an exercise of
protected speech. This is an instructive example, however, of the
proposition that the application of constitutional freedoms in new
contexts can deepen our understanding of their meaning.
One of the difficulties in this case is that the parties disagree as
to the extent of the baker’s refusal to provide service. If a baker
refused to design a special cake with words or images celebrating
the marriage — for instance, a cake showing words with religious
meaning — that might be different from a refusal to sell any cake
at all. In defining whether a baker’s creation can be protected,
these details might make a difference.
The same difficulties arise in determining whether a baker has
a valid free exercise claim. A baker’s refusal to attend the wedding
to ensure that the cake is cut the right way, or a refusal to put
certain religious words or decorations on the cake, or even a
refusal to sell a cake that has been baked for the public generally
but includes certain religious words or symbols on it are just three
examples of possibilities that seem all but endless.
Whatever the confluence of speech and free exercise principles
might be in some cases, the Colorado Civil Rights Commission’s
consideration of this case was inconsistent with the State’s
obligation of religious neutrality. The reason and motive for the
baker’s refusal were based on his sincere religious beliefs and
convictions. The Court’s precedents make clear that the baker, in
his capacity as the owner of a business serving the public, might
have his right to the free exercise of religion limited by generally
applicable laws. Still, the delicate question of when the free
exercise of his religion must yield to an otherwise valid exercise of
state power needed to be determined in an adjudication in which
religious hostility on the part of the State itself would not be a
factor in the balance the State sought to reach. That requirement,
however, was not met here. When the Colorado Civil Rights
Commission considered this case, it did not do so with the
religious neutrality that the Constitution requires.
Given all these considerations, it is proper to hold that whatever
the outcome of some future controversy involving facts similar to
these, the Commission’s actions here violated the Free Exercise
Clause; and its order must be set aside.
. . .
Our society has come to the recognition that gay persons and
gay couples cannot be treated as social outcasts or as inferior in
dignity and worth. For that reason the laws and the Constitution
can, and in some instances must, protect them in the exercise of
their civil rights. The exercise of their freedom on terms equal to
others must be given great weight and respect by the courts. At
the same time, the religious and philosophical objections to gay
marriage are protected views and in some instances protected
forms of expression. The First Amendment ensures that religious
organizations and persons are given proper protection as they
seek to teach the principles that are so fulfilling and so central to
their lives and faiths. Nevertheless, while those religious and
philosophical objections are protected, it is a general rule that such
objections do not allow business owners and other actors in the
economy and in society to deny protected persons equal access to
goods and services under a neutral and generally applicable public
accommodations law.
. . .
Phillips claims, however, . . . that he had to use his artistic skills
to make an expressive statement, a wedding endorsement in his
own voice and of his own creation. As Phillips would see the case,
this contention has a significant First
p. 188
p. 189
Amendment speech component and implicates his deep and
sincere religious beliefs. . . .
. . .
Phillips was entitled to the neutral and respectful consideration
of his claims in all the circumstances of the case. . . .The neutral
and respectful consideration to which Phillips was entitled was
compromised here, however. The Civil Rights Commission’s
treatment of his case has some elements of a clear and
impermissible hostility toward the sincere religious beliefs that
motivated his objection.
That hostility surfaced at the Commission’s formal, public
hearings, as shown by the record. . . . One commissioner
suggested that Phillips can believe “what he wants to believe,” but
cannot act on his religious beliefs “if he decides to do business in
the state.” . . .
[At a second meeting] another commissioner . . . said far more
to disparage Phillips’ beliefs. The commissioner stated:
“I would also like to reiterate what we said in the hearing or the
last meeting. Freedom of religion and religion has been used
to justify all kinds of discrimination throughout history,
whether it be slavery, whether it be the holocaust, whether it
be — I mean, we — we can list hundreds of situations where
freedom of religion has been used to justify discrimination.
And to me it is one of the most despicable pieces of rhetoric
that people can use to — to use their religion to hurt others.”
To describe a man’s faith as “one of the most despicable pieces
of rhetoric that people can use” is to disparage his religion in at
least two distinct ways: by describing it as despicable, and also by
characterizing it as merely rhetorical — something insubstantial
and even insincere. The commissioner even went so far as to
compare Phillips’ invocation of his sincerely held religious beliefs
to defenses of slavery and the Holocaust. This sentiment is
inappropriate for a Commission charged with the solemn
responsibility of fair and neutral enforcement of Colorado’s
antidiscrimination law — a law that protects discrimination on the
basis of religion as well as sexual orientation.
[T]he Court cannot avoid the conclusion that these statements
cast doubt on the fairness and impartiality of the Commission’s
adjudication of Phillips’ case. . . . [T]he Commission’s treatment of
Phillips’ case violated the State’s duty under the First Amendment
not to base laws or regulations on hostility to a religion or religious
viewpoint. . . .
[T]he Court must draw the inference that Phillips’ religious
objection was not considered with the neutrality that the Free
Exercise Clause requires.
. . .
The outcome of cases like this in other circumstances must
await further elaboration in the courts, all in the context of
recognizing that these disputes must be resolved with tolerance,
without undue disrespect to sincere religious beliefs, and without
subjecting gay persons to indignities when they seek goods and
services in an open market.
The judgment of the Colorado Court of Appeals is reversed.
Justice Ginsburg, with whom Justice Sotomayor joins,
dissenting.
There is much in the Court’s opinion with which I agree. “[I] t is a
general rule that [religious and philosophical] objections do not
allow business owners and other actors in the economy and in
society to deny protected persons equal access to goods and
services under a neutral and generally applicable public
accommodations law.” . . . I strongly disagree, however, with the
Court’s conclusion that Craig and Mullins should lose this case.
. . .
Statements made at the Commission’s public hearings on
Phillips’ case provide no . . . support for the Court’s holding today.
Whatever one may think of the statements in historical context, I
see no reason why the comments of one or two Commissioners
p. 189
p. 190
should be taken to overcome Phillips’ refusal to sell a wedding
cake to Craig and Mullins. The proceedings involved several layers
of independent decision making, of which the Commission was
but one.
[S]ensible application of [Colorado’s antidiscrimination statute]
to a refusal to sell any wedding cake to a gay couple should
occasion affirmance of the Colorado Court of Appeals’ judgment. I
would so rule.
CASE DISCUSSION QUESTIONS
1. What was the basis for the Court’s finding that the Colorado
Commission decision had to be set aside?
2. The Court did not address directly whether or not Phillips could
refuse to sell wedding cakes to same-sex couples. Do you think that
wedding cakes are a form of speech? Would it matter if the cake in
question was one of many prepared on a daily basis or one that was
individually designed and hand-crafted?
3. The Court raised but did not answer the question of when a
state’s antidiscrimination statute must give way to a person’s firmly
held religious beliefs. Do you think a business owner should be
allowed to discriminate if providing services to a same-sex couple
would violate the owner’s firmly held religious views? Would your
answer be different if it was a question of a member of the clergy
being asked to perform the wedding ceremony against that clergy
member’s religious beliefs? What if a rental company refused to
supply tables for a same-sex wedding reception?
4. Another provision of Colorado law prohibits employers from
discriminating in employment based on sexual orientation. Is
providing a service against one’s religious beliefs different from
refusing to hire an otherwise qualified job applicant? Could Phillips
legally refuse to hire someone because of that person’s sexual
orientation?
Returning to the hypothetical with which we started the chapter, if
Tahira can establish that she is a legitimate follower of Islam, the
principal’s actions in suspending her for wearing a Muslim headscarf
on school property clearly raises a constitutional challenge based on
the freedom of exercise of religion clause. Because the principal did
not suspend the male students who were wearing Jewish yarmulkes,
Tahira would also have an additional constitutional claim for violation
of the equal protection clause, which we will discuss later in this
chapter.
DISCUSSION QUESTIONS
12. If the Court were asked today to apply the test developed in
Employment Division v. Smith to the facts of Yoder, do you think it
would change the result? Which test do you think best balances the
needs of society and of individuals to practice their religion as they
wish?
13. The simple Amish lifestyle discussed in connection with the
Yoder case also involves using horse-drawn plows, wagons, and
carriages rather than tractors, trucks, and automobiles. In the small,
very conservative Amish community of Swartzentruber, some
residents have refused to comply with a Kentucky state law that
requires the placement of “slow-moving vehicle” signs on their
p. 190
p. 191
horse-drawn buggies, because they consider it to be blasphemy to
adorn their black buggies with the “garish,” bright orange, reflective
plates, and they believe they should rely on God, rather than symbols,
to protect them on the highways. Do you think the free exercise
clause protects them from being penalized for failure to comply with
these state safety regulations? Why or why not? Does it make any
difference in resolving this issue to know that collisions of motor
vehicles with Amish buggies are frequently fatal? Does it matter that
not all Amish groups are as “conservative” as the Swartzentruber
group and do not object to placing the signs on their buggies?
2. The Establishment Clause
As we have seen, the free exercise clause serves to protect a person’s
right to practice religion without undue governmental interference.
The establishment clause focuses on the extent to which the state
can recognize and support religious groups.
Both liberal and conservative scholars agree that, at a minimum,
the establishment clause prohibits the establishment of an official
national religion. However, there is disagreement as to whether it
should be interpreted as requiring a “strict separation of church and
state” or merely a requirement that the state treat all religions
evenhandedly.
Supporters of the latter approach believe the country would be a
better place in which to live if more people followed religious
teachings, and that publicly supported religious activities, such as
prayer in schools, would help hold families together and reduce crime.
On the other hand, supporters of the strict separation of church
and state position fear that government support of religion inevitably
ends up fostering and legitimizing the religious beliefs of the majority
at the expense of religious minorities. They also argue that
government support of religious activities leads to greater religious
conflict in society because it invites religious groups to compete
against each other for governmental rewards.
One of the things that makes this a particularly challenging area
of constitutional law is that the Supreme Court has had difficulty
agreeing on the specific standards that should be used in judging the
constitutionality of challenged activities. Going back to 1947, when
the Supreme Court approved a school busing program that included
48
students going to religiously affiliated schools, the Court has
focused on the idea that government activities affecting religion must
have a valid government purpose that is not related to fostering
religion. In 1971, the Supreme Court formally announced a three-part
test, commonly known as the Lemon test, 49
which incorporated this
secular purpose component, along with consideration of the impact
50
the program had on religion, and the extent to which it involved
51
“excessive government entanglements.”
p. 191
p. 192
Over the years, the Court has failed to consistently apply the
Lemon test, and at times it has completely ignored it.
52
It has also
developed several variations of the test. These variations continue to
stress secular purpose, primary effect, and avoidance of government
entanglements, but they also place emphasis on concepts such as
53 54 55
perceived endorsement of religion, coercion, and social conflict.
The following excerpts from American Legion v. American
Humanist Association provide an example of how the Supreme Court
uses these tests. While the case was decided 7-2, and every Justice
in the majority agreed with the result, they each agreed for different
reasons.
American Legion v. American Humanist Association
139 S. Ct. 2067 (2019)
Justice ALITO announced the judgment of the Court.
Since 1925, the Bladensburg Peace Cross (Cross) has stood as
a tribute to 49 area soldiers who gave their lives in the First World
War. Eighty-nine years after the dedication of the Cross,
respondents filed this lawsuit, claiming that they are offended by
the sight of the memorial on public land and that its presence
there and the expenditure of public funds to maintain it violate the
Establishment Clause of the First Amendment. To remedy this
violation, they asked a federal court to order the relocation or
demolition of the Cross or at least the removal of its arms. The
Court of Appeals for the Fourth Circuit agreed that the memorial is
unconstitutional and remanded for a determination of the proper
remedy. We now reverse.
IB
In late 1918, residents of Prince George’s County, Maryland,
formed a committee for the purpose of erecting a memorial for the
county’s fallen soldiers. . . .
The completed monument is a 32-foot tall Latin cross that sits
on a large pedestal. The American Legion’s emblem is displayed at
its center, and the words “Valor,” “Endurance,” “Courage,” and
“Devotion” are inscribed at its base, one on each of the four faces.
The pedestal also features a 9-by 2.5-foot bronze plaque explaining
that the monument is “Dedicated to the heroes of Prince George’s
County, Maryland who lost their lives in the Great War for the
liberty of the world.” The plaque lists the names of 49 local men,
both Black and White, who died in the war. It identifies the dates of
American involvement, and quotes President Woodrow Wilson’s
request for a declaration of war: “The right is more precious than
peace. We shall fight for the things we have always carried nearest
our hearts. To such a task we dedicate our lives.”. . . .
As the area around the Cross developed, the monument came
to be at the center of a busy intersection. In 1961, the Maryland-
National Capital Park and Planning Commission (Commission)
acquired the Cross and the land on which it sits in order to
preserve the monument and address
p. 192
p. 193
traffic-safety concerns. The American Legion reserved the right to
continue using the memorial to host a variety of ceremonies,
including events in memory of departed veterans. Over the next
five decades, the Commission spent approximately $117,000 to
maintain and preserve the monument. In 2008, it budgeted an
additional $100,000 for renovations and repairs to the Cross.
IC
The District Court granted summary judgment for the
Commission and the American Legion. The Cross, the District
Court held, satisfies both the three-pronged test announced in
Lemon v. Kurtzman, 403 U. S. 602, 91 S. Ct. 2105, 29 L.Ed.2d 745
(1971), and the analysis applied by Justice BREYER in upholding
the Ten Commandments monument at issue in Van Orden v.
Perry, 545 U.S. 677, 125 S. Ct. 2854, 162 L.Ed.2d 607. Under the
Lemon test, a court must ask whether a challenged government
action (1) has a secular purpose; (2) has a “principal or primary
effect” that “neither advances nor inhibits religion”; and (3) does not
foster “an excessive government entanglement with religion.”
Applying that test, the District Court determined that the
Commission had secular purposes for acquiring and maintaining
the Cross — namely, to commemorate World War I and to ensure
traffic safety. The court also found that a reasonable observer
aware of the Cross’s history, setting, and secular elements “would
not view the Monument as having the effect of impermissibly
endorsing religion.” Nor, according to the court, did the
Commission’s maintenance of the memorial create the kind of
“continued and repeated government involvement with religion”
that would constitute an excessive entanglement. Finally, in light of
the factors that informed its analysis of Lemon’s “effects” prong,
the court concluded that the Cross is constitutional under Justice
Breyer’s approach in Van Orden.
A divided panel of the Court of Appeals for the Fourth Circuit
reversed. While recognizing that the Commission acted for a
secular purpose, the court held that the Bladensburg Cross failed
Lemon’s “effects” prong because a reasonable observer would
view the Commission’s ownership and maintenance of the
monument as an endorsement of Christianity. The court
emphasized the cross’s “inherent religious meaning” as the “
‘preeminent symbol of Christianity.’ ” Although conceding that the
monument had several “secular elements,” the court asserted that
they were “overshadow[ed]” by the Cross’s size and Christian
connection — especially because the Cross’s location and
condition would make it difficult for “passers-by” to “read” or
otherwise “examine” the plaque and American Legion emblem. The
court rejected as “too simplistic” an argument defending the
Cross’s constitutionality on the basis of its 90-year history,
suggesting that “[p]erhaps the longer a violation persists, the
greater the affront to those offended.” In the alternative, the court
concluded, the Commission had become excessively entangled
with religion by keeping a display that “aggrandizes the Latin cross”
and by spending more than de minimis public funds to maintain it.
IIC
. . . [T]here are instances in which a war memorial in the form of
a cross is unobjectionable [for example, if it] rest[s] on public
grounds in Arlington National Cemetery. The difference, according
to the AHA, is that their location in a cemetery gives them a closer
association with individual gravestones and interred soldiers.
But a memorial’s placement in a cemetery is not necessary to
create such a connection. The parents and other relatives of many
of the war dead lacked the means to travel to Europe to visit their
graves, and the bodies of approximately 4,400 American soldiers
were either never found or never identified. Thus, for many grieving
relatives and friends, memorials took the place of gravestones.
Recall that the mother of one of the young men memorialized by
the Bladensburg Cross thought of the memorial as, “in a way, his
grave stone.” Whether in a cemetery or a city park, a World War I
cross remains a memorial to the fallen.
p. 193
p. 194
IV
The cross is undoubtedly a Christian symbol, but that fact
should not blind us to everything else that the Bladensburg Cross
has come to represent. For some, that monument is a symbolic
resting place for ancestors who never returned home. For others, it
is a place for the community to gather and honor all veterans and
their sacrifices for our Nation. For others still, it is a historical
landmark. For many of these people, destroying or defacing the
Cross that has stood undisturbed for nearly a century would not be
neutral and would not further the ideals of respect and tolerance
embodied in the First Amendment. For all these reasons, the Cross
does not offend the Constitution.
* * *
We reverse the judgment of the Court of Appeals for the Fourth
Circuit and remand the cases for further proceedings.
It is so ordered.
Justice GINSBURG, with whom Justice SOTOMAYOR joins,
dissenting.
Decades ago, this Court recognized that the Establishment
Clause of the First Amendment to the Constitution demands
governmental neutrality among religious faiths, and between
religion and nonreligion. Numerous times since, the Court has
reaffirmed the Constitution’s commitment to neutrality. Today the
Court erodes that neutrality commitment, diminishing precedent
designed to preserve individual liberty and civic harmony in favor
of a “presumption of constitutionality for longstanding
monuments, symbols, and practices.”
IB
As I see it, when a cross is displayed on public property, the
government may be presumed to endorse its religious content.
The venue is surely associated with the State; the symbol and its
meaning are just as surely associated exclusively with Christianity.
“It certainly is not common for property owners to open up their
property [to] monuments that convey a message with which they
do not wish to be associated.”
IID
Recognizing that a Latin cross does not belong on a public
highway or building does not mean the monument must be “torn
down.” “[L]ike the determination of the violation itself,” the “proper
remedy . . . is necessarily context specific.” In some instances, the
violation may be cured by relocating the monument to private land
or by transferring ownership of the land and monument to a
private party.
***
“If the aim of the Establishment Clause is genuinely to
uncouple government from church,” the Clause does “not permit . .
. a display of th[e] character” of Bladensburg’s Peace Cross.
I respectfully dissent.
CASE DISCUSSION QUESTIONS
1. What is the Lemon Test and how was it applied in this case?
2. Why did the Court rule that the Blandensburg Peace Cross
does not run afoul of the establishment clause?
3. A monument on the grounds of the Texas State Capitol
displayed one version of the Ten Commandments:
■ I am the Lord thy God. Thou shalt have no other gods before
me.
■ Thou shalt not make to thyself any graven images.
■ Thou shalt not take the Name of the Lord thy God in vain.
■ Remember the Sabbath day, to keep it holy.
■ Honor thy father and thy mother, that thy days may be long
upon the land which the Lord thy God giveth thee.
■ Thou shalt not kill.
p. 194
p. 195
■ Thou shalt not commit adultery.
■ Thou shalt not steal.
■ Thou shalt not bear false witness against thy neighbor.
■ Thou shalt not covet thy neighbor’s house. “Thou shalt not
covet thy neighbor’s wife, nor his manservant, nor his
maidservant, nor his cattle, nor anything that is thy
neighbor’s.”
a. Which of these commandments would you characterize
as having a religious message and what is the nature of
those messages?
b. What, if any, bias is shown to any particular religion?
c. Which commandments relate to our civil or criminal laws?
d. What overall message do you think this display sends to
the average person viewing it? Do you think the main
message is one of endorsing a particular religion or is it
more historical and tied to the state’s secular moral
message about appropriate social conduct?
e. The Texas display was donated to the state by the Eagles,
a national, fraternal civic group, for the expressed purpose
of combating juvenile delinquency. Do you think it is an
effective means of achieving that goal?
In a case involving “legislative prayer,” in 2014, the Court again
demonstrated its penchant for resolving establishment clause issues
on a fact specific case-by-case basis. In Town of Greece v. Galloway,
it determined that a town could open its monthly board meetings with
a prayer without violating the establishment clause. The prayers were
led by local volunteers, and while open to all creeds, because almost
all of the local congregations were Christian, nearly all of the prayers
included concepts unique to Christianity. Nonetheless, the Court
found that there was no evidence that “the prayer opportunity [had]
been exploited to proselytize or advance any one, or to disparage any
56
other, faith or belief.” Therefore, there was no violation of the
establishment clause.
Other controversial applications of the establishment clause have
involved school prayer and the teaching of evolution. The Supreme
Court has consistently ruled against having public school-sponsored
prayers at the beginning of the school day and at school-sponsored
events, but it has also held that the free exercise clause gives
students the right to pray on their own before school or at lunch.
States cannot prohibit the teaching of evolution, nor can they require
that “creation science” or “intelligent design” be taught in schools.
Thus, in our hypothetical case at the beginning of the chapter, it was
a clear violation of the establishment of religion clause for the school
district to require its biology teachers to include the “Intelligent Design
Theory” in their curriculum.
Finally, the establishment clause prohibits various types of direct
government aid to religious schools. However, the courts have
allowed various forms of indirect aid and some voucher systems that
can be used to pay tuition at religiously affiliated schools.
3. Overlap and Potential Conflict between the Religion
Clauses
Although each clause has a very different focus, there are times when
they overlap and times when they appear to be contradictory. An
example of where
p. 195
p. 196
they led to the same result is provided by Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC. 57
A teacher in a church-run
school filed a disability discrimination suit against the church-
operated school after they terminated her employment. The Court
declared that allowing the teacher to sue would violate the free
exercise clause because it protects a religious group’s right to shape
“its own faith and mission through its appointments.” The
establishment clause was also implicated because that clause
prohibits government involvement in “ecclesiastical decisions.”
An example of where the clauses appeared to conflict occurred in
Sherbert v. Verner. 58
In that case, a member of the Seventh-Day
Adventist Church, which treats Saturday as its “Sabbath,” was fired
because she would not work on Saturdays. She filed for
unemployment benefits, but because she would not accept other jobs
that required her to work on Saturdays, her application was denied.
The Seventh-Day Adventist plaintiff argued that she was being
punished for following her religious beliefs. The state argued that it
would violate the establishment clause to apply different standards
for followers of different religions.
The U.S. Supreme Court ruled that it was indeed a violation of the
free exercise clause for a state to disqualify an applicant for
unemployment compensation benefits solely because of that
person’s refusal to accept employment that would require her to work
on a religiously significant day. However, it rejected the argument that
the extension of unemployment benefits to Sabbatarians would be
fostering the “establishment” of the Seventh-Day Adventist religion.
Because the state did not require people to accept jobs that involved
working on Sundays, it would reflect nothing more than the
governmental obligation of neutrality in the face of religious
differences.
D. DUE PROCESS
The right to due process of law is protected by both the Fifth and
Fourteenth Amendments. The Fifth states:
No person shall . . . be deprived of life, liberty, or property, without due process of law.
The Fourteenth states:
. . . nor shall any State deprive any person of life, liberty, or property, without due process
of law. . . .
Earlier in this chapter we discussed the way in which the Court
used the Fourteenth Amendment due process clause to apply most
of the Bill of Rights to the states. In this section we discuss the
difference between procedural and substantive due process.
p. 196
p. 197
1. Procedural Due Process
Procedural due process involves the legal procedures used in
processing criminal prosecutions and various civil claims. The
purpose of due process protections is to ensure that before the
government takes away someone’s life, liberty, or property, the person
is put on notice and given a chance to present a defense. In addition,
due process can include such things as providing for a neutral fact-
finder and requiring that witnesses be available for cross-
examination.
Generally, the seriousness of the proposed deprivation will
determine the amount of due process that someone receives. For
example, a student facing expulsion from a state university might
only have the right to notice and a hearing before a neutral fact-finder,
whereas someone charged with murder would have a number of
other procedural rights, such as the right to an attorney, the right to a
jury trial, and the right to confront witnesses.
Returning for a moment to the hypothetical case with which we
began the chapter, if John had only been suspended for wearing his
“Take the High Road: Legalize Pot” t-shirt, the school may have owed
him no more due process than the notice he received. However, as he
was expelled, a much more serious deprivation, he could argue that at
a minimum he had the right to be heard by a neutral fact-finder before
losing his right to attend school. And certainly the teachers who lost
their jobs for refusing to teach the intelligent design theory were
owed more process than simply receiving a termination notice.
The most important of the criminal procedural safeguards are
found in the following amendments: Fourth (search and seizure), Fifth
(grand juries, double jeopardy, and self-incrimination), Sixth (speedy
trial, public trial, jury trial with right to confront accusers, compulsory
process for obtaining witnesses, and assistance of counsel), and
Eighth (right to bail) Amendments. We discuss these rights in detail in
Chapter 13, Criminal Procedure.
2. Substantive Due Process
Whereas procedural due process relates to how the government
must go about depriving a person of life, liberty, or property,
substantive due process relates to the substance of the law that was
violated. Substantive due process prohibits the government from
depriving anyone of life, liberty, or property in an arbitrary or
unreasonable manner. Whereas criminal statutes, such as those
dealing with theft, assault, or murder, are not considered to be
arbitrary or unreasonable, the courts have found some laws
regulating various business practices, abortion, and homosexuality
violate substantive due process rights.
One liberty interest, not explicitly stated in the Constitution but
which has been recognized by the U.S. Supreme Court, is the right to
privacy. This recognition of personal privacy as a liberty interest
began in 1942 with Skinner v. Oklahoma, when the Supreme Court
invalidated a state statute that authorized the sexual sterilization of
persons convicted two or more times of a felony involving moral
turpitude.
59
It was the Court’s 1965 decision in Griswold
p. 197
p. 198
v. Connecticut, 60
however, that brought the concept of a
constitutional right to privacy to public attention. In that case, the
Court ruled that a Connecticut statute prohibiting the use of any drug,
medical article, or instrument for the purpose of preventing
conception violated the due process clause of the Fourteenth
Amendment when applied to married couples.
Writing for the Court, Justice Douglas deduced the existence of a
liberty interest in privacy from a “penumbra” formed by “emanations
from” various sections of the Bill of Rights, including the following:
■ First Amendment freedom of association,
■ Third Amendment prohibition against quartering of soldiers,
■ Fourth Amendment search and seizure protection,
■ Fifth Amendment protection against self-incrimination, and
■ Ninth Amendment rights reserved to the people.
In his concurring opinion, Justice Goldberg took a slightly different
approach and concluded that “liberty” is not confined to rights
specifically mentioned in the first eight amendments, but under the
Ninth Amendment, includes other rights “rooted in the traditions and
conscience of our people.”
Eight years later, in the landmark decision of Roe v. Wade, 61
the
Court concluded that a Texas anti-abortion statute violated the right
of privacy that the Court had recognized in Griswold. The Court also
found that the state’s asserted interest in protecting the health of
pregnant women was not advanced by the anti-abortion law because
modern medical techniques had made early abortions safer for
women than going through normal childbirth. The state also asserted
an interest in the protection of prenatal life. However, an extensive
review of the law showed that the unborn had never been recognized
in the law as legal persons.
When those trained in the respective disciplines of medicine, philosophy, and theology
are unable to arrive at any consensus [about when life begins], the judiciary, at this point
in the development of man’s knowledge, is not in a position to speculate as to the
62
answer.
Therefore, the Court chose not to recognize a governmental
63
interest in protecting potential life prior to the point of “viability.”
However, the state could proscribe abortion after the point of viability
except when medically necessary to preserve the life or health of the
mother.
Almost 50 years after the Supreme Court’s ruling in Roe v. Wade,
abortion remains a “hot button” topic in American politics. In the past
few decades, some state legislatures imposed regulations making it
more difficult for women to get abortions. In 2018–2019, some
states went even further; some even passed
p. 198
p. 199
legislation banning all abortions. The authors of these laws,
acknowledging that they are currently unconstitutional, have stated
that they hope their actions will force the Supreme Court to revisit
Roe v. Wade.
The right to privacy also served as the constitutional basis for
invalidating a Texas law criminalizing homosexual sodomy. In 2003,
the Court ruled that state laws prohibiting sexual activities between
consenting adults of the same sex violated right to privacy interests
64
protected by the due process clause of the Fourteenth Amendment.
E. EQUAL PROTECTION
The equal protection clause is found at the end of Section 1 of the
Fourteenth Amendment. The key language is
Nor shall any State . . . deny to any person within its jurisdiction the equal protection of
the laws.
As we noted above, while the legislative history indicates that the
Fourteenth Amendment was designed to protect the newly freed
slaves, nothing in the wording of the clause limits it to situations
involving former slaves or distinctions based on race. The Supreme
Court has applied the clause to a wide variety of discriminatory
criteria including sex, age, ethnicity, religion, and region of the country.
Note further that this clause protects “any person within its [the
state’s] jurisdiction” — not just citizens of the state. In 1886, the
Supreme Court ruled that it was a violation of the equal protection
clause for a state to prohibit a noncitizen from China from starting a
65
laundry business. One hundred years later the Supreme Court held
that children of undocumented aliens could not be discriminated
66
against with respect to receiving a public education. However, in
2018, the Court found that detained aliens do not have a statutory
right to periodic bond hearings when detained in the course of
67
immigration proceedings.
As has been the case with most of the other rights discussed in
this chapter, these rights are not absolute. The Supreme Court has
never stated that the government has to treat all people the same at
all times, regardless of their particular circumstances. Rather, it has
interpreted the Fourteenth Amendment as prohibiting some, but not
all, forms of differential treatment. In determining if a specific type of
differential treatment violates the equal protection clause, judges
examine the appropriateness of the criteria being used and the way in
which those criteria are being applied.
p. 199
p. 200
1. Standards/Tests Applied
The Supreme Court has developed a set of legal “tests” or “standards”
to be applied when judging equal protection claims. In reading equal
protection cases, it is important to note which of three basic
standards a court is using, because, as we shall see, the choice of
standard often dictates the result. See Figure 6-2 for a summary of
the three main standards of review.
a. Standard Scrutiny (or the Rational Basis Test)
In cases in which the rational basis test is used, the plaintiff has
the burden of convincing the Court that the policy or action being
challenged reasonably related to achieving a legitimate
is not
government purpose. To be a legitimate purpose, the government
must be able to relate it to some grant of constitutional power. This is
the most commonly used standard in equal protection analysis, and
usually the result is that the government prevails.
b. Strict Scrutiny (or the Compelling Interest Test)
The strict scrutiny standard lies at the opposite end of the
spectrum. Whereas it is relatively easy for the government to prevail
under standard scrutiny, it is much more difficult for the government
to prevail when strict scrutiny is applied.
In these types of cases the burden of proof rests with the
government rather than with the alleged victim of the unequal
treatment. To win the case, the government must be able to establish
that (1) its action was necessary to achieve a compelling government
interest, and (2) it is the least restrictive means available. Notice that,
under this standard, the government’s interest must be compelling as
p. 200
p. 201
opposed to simply being legitimate. Notice also that whereas
standard scrutiny only requires that the policy being challenged be
reasonably related to the government’s interest, strict scrutiny
requires the government establish that it could not have achieved its
goal through a less restrictive alternative. This standard is most often
applied in cases involving race discrimination or fundamental rights.
Test Burden of Proof Type of Applied to Usual
Government/State Result
Interest
Standard/Rational Policy or action Legitimate Most cases of Government
Basis must be reasonably discrimination wins
related including
economic
Intermediate Policy or action is Important Sex Plaintiff
substantially related discrimination often wins
Strict Scrutiny Policy or action is Compelling Race Plaintiff
necessary and is discrimination; wins
least restrictive national origin
means to achieve (also
fundamental
rights)
Figure 6-2 Tests Applied to Equal Protection Claims
c. Intermediate (or Heightened Scrutiny) Standard
The third standard used in equal protection analysis lies
somewhere between the other two. It is more demanding than the
rational basis standard but not as demanding as strict scrutiny.
Under this standard the government’s objective has to be important,
and the challenged policy must be substantially related. While these
terms are difficult to quantify, important is more demanding than
legitimate but less than compelling, and being substantially related
falls between being reasonably related and being the least restrictive
means available. This standard was first applied to cases of sex
discrimination.
2. Choosing the Proper Standard
As suggested above, often the outcome of an equal protection case
will depend on which of these three standards a court chooses to
apply. Practices that might be acceptable under one test may not be
acceptable under one of the other tests.
The rational basis test (standard scrutiny) is the “default” standard
in equal protection cases. It is the standard that is used when the
facts of the case do not invoke a more specialized and more
demanding standard.
The compelling interest test (strict scrutiny standard) is used
when the party claiming to be discriminated against is a member of
what is called a “suspect class” or is being denied a “fundamental
right.” In determining if someone is a member of a suspect class, the
Supreme Court considers
■ the extent to which its members are easily identifiable,
■ how difficult it is to change one’s identity, and
■ if there is a long history of discrimination against members of
that group.
Race has always been considered a suspect class for purposes of
equal protection analysis, but the courts have vacillated in their
categorization of some other groups.
As to the second basis for using the strict scrutiny test, in order to
be considered a fundamental right, it must not only be an important
right but one that is explicitly stated in the Constitution. Examples of
fundamental rights are freedom of speech and freedom of the press.
In the hypothetical case with which we began the chapter, in
addition to arguing her right to freely express her religion, Tahira could
also argue that she had been discriminated against when she was
told she could not wear her Islamic headscarf. Several Jewish
students had not been similarly treated when they wore Jewish
yarmulke. As freedom of religion is a fundamental right protected by
the First Amendment, in evaluating her claim, a court would most
likely use the strict scrutiny standard and agree with her.
p. 201
p. 202
The intermediate standard was first announced in a sex
68
discrimination case in 1976. Its creation followed an ongoing
disagreement between justices as to whether the rational basis or the
strict scrutiny standard should be applied in sex discrimination
claims. Justices Brennan, Douglas, White, and Marshall had argued
that strict scrutiny should be applied because sex, like race, alienage,
and national origin, was an inherently suspect classification. Unable
to get a decisive fifth vote for this approach, they eventually
developed intermediate scrutiny as a compromise solution. Used
primarily in sex discrimination cases, it has also been applied in some
cases involving discrimination against aliens.
As you read the following excerpt from San Antonio Independent
School Dist. v. Rodriguez, think about how the Supreme Court
decides which test to apply and how this can make such a significant
difference in the outcome of the case. This class action on behalf of
certain Texas school children was instituted against state school
authorities in the United States District Court for the Western District
of Texas. The plaintiffs argued that the state’s statutory system for
financing public education based on property taxes violated the equal
protection clause because it resulted in substantial interdistrict
disparities in per-pupil expenditures.
San Antonio Independent School District v. Rodriguez
411 U.S. 1 (1973)
Mr. Justice POWELL delivered the opinion of the Court.
The precedents of this Court provide the proper starting point.
The individuals, or groups of individuals, who constituted the class
discriminated against in our prior cases shared two distinguishing
characteristics: because of their impecunity they were completely
unable to pay for some desired benefit, and as a consequence,
they sustained an absolute deprivation of a meaningful
opportunity to enjoy that benefit.
. . .
[I] n support of their charge that the system discriminates
against the “poor,” appellees have made no effort to demonstrate
that it operates to the peculiar disadvantage of any class fairly
definable as indigent, or as composed of persons whose incomes
are beneath any designated poverty level. Indeed, there is reason
to believe that the poorest families are not necessarily clustered in
the poorest property districts. . . . [T]here is no basis on the record
in this case for assuming that the poorest people — defined by
reference to any level of absolute impecunity — are concentrated in
the poorest districts.
Second, neither appellees nor the District Court addressed the
fact that . . . lack of personal resources has not occasioned an
absolute deprivation of the desired benefit. The argument here is
not that the children in districts having relatively low assessable
property values are receiving no public education; rather, it is that
they are receiving a poorer quality education than that available to
children in districts having more assessable wealth. Apart from the
unsettled and disputed question whether the quality of education
may be determined by the amount of money expended for it, a
sufficient answer to appellees’ argument is that, at least where
wealth is involved, the Equal Protection Clause does
p. 202
p. 203
not require absolute equality or precisely equal advantages. . . .
For these two reasons — the absence of any evidence that the
financing system discriminates against any definable category of
“poor” people or that it results in the absolute deprivation of
education — the disadvantaged class is not susceptible of
identification in traditional terms.
. . .
We thus conclude that the Texas system does not operate to
the peculiar disadvantage of any suspect class. . . . They also
assert that the State’s system impermissibly interferes with the
exercise of a “fundamental” right and that accordingly the prior
decisions of this Court require the application of the strict standard
of judicial review. . . . It is this question — whether education is a
fundamental right, in the sense that it is among the rights and
liberties protected by the Constitution — which has so consumed
the attention of courts and commentators in recent years.
. . .
Education, of course, is not among the rights afforded explicit
protection under our Federal Constitution. Nor do we find any
basis for saying it is implicitly so protected. [T]he undisputed
importance of education will not alone cause this Court to depart
from the usual standard for reviewing a State’s social and
economic legislation. It is appellees’ contention, however, that
education is distinguishable from other services and benefits
provided by the State because it bears a peculiarly close
relationship to other rights and liberties accorded protection under
the Constitution. Specifically, they insist that education is itself a
fundamental personal right because it is essential to the effective
exercise of First Amendment freedoms and to intelligent utilization
of the right to vote. In asserting a nexus between speech and
education, appellees urge that the right to speak is meaningless
unless the speaker is capable of articulating his thoughts
intelligently and persuasively. The “marketplace of ideas” is an
empty forum for those lacking basic communicative tools.
Likewise, they argue that the corollary right to receive information
becomes little more than a hollow privilege when the recipient has
not been taught to read, assimilate, and utilize available
knowledge.
A similar line of reasoning is pursued with respect to the right
to vote. Exercise of the franchise, it is contended, cannot be
divorced from the educational foundation of the voter. The
electoral process, if reality is to conform to the democratic ideal,
depends on an informed electorate: a voter cannot cast his ballot
intelligently unless his reading skills and thought processes have
been adequately developed.
. . .
Even if it were conceded that some identifiable quantum of
education is a constitutionally protected prerequisite to the
meaningful exercise of either right, we have no indication that the
present levels of educational expenditure in Texas provide an
education that falls short. Whatever merit appellees’ argument
might have if a State’s financing system occasioned an absolute
denial of educational opportunities to any of its children, that
argument provides no basis for finding an interference with
fundamental rights where only relative differences in spending
levels are involved and where — as is true in the present case — no
charge fairly could be made that the system fails to provide each
child with an opportunity to acquire the basic minimal skills
necessary for the enjoyment of the rights of speech and of full
participation in the political process.
. . .
It should be clear, for the reasons stated above and in accord
with the prior decisions of this Court, that this is not a case in
which the challenged state action must be subjected to the
searching judicial scrutiny reserved for laws that create suspect
classifications or impinge upon constitutionally protected rights.
. . .
In sum, to the extent that the Texas system of school financing
results in unequal expenditures between children who happen to
reside in different districts, we cannot say that such disparities are
the product of a system that is so irrational as to be invidiously
discriminatory. Texas has acknowledged its shortcomings and has
persistently endeavored — not without some
p. 203
p. 204
success — to ameliorate the differences in levels of expenditures
without sacrificing the benefits of local participation. . . . In its
essential characteristics, the Texas plan for financing public
education reflects what many educators for a half century have
thought was an enlightened approach to a problem for which there
is no perfect solution. We are unwilling to assume for ourselves a
level of wisdom superior to that of legislators, scholars, and
educational authorities in 50 States, especially where the
alternatives proposed are only recently conceived and nowhere yet
tested. The constitutional standard under the Equal Protection
Clause is whether the challenged state action rationally furthers a
legitimate state purpose or interest. We hold that the Texas plan
abundantly satisfies this standard.
CASE DISCUSSION QUESTIONS
1. Why is it relevant to decide if “poor people” constitute a special
class of people? What conclusion does Justice Powell reach?
2. Justice Powell distinguished between an absolute deprivation
and a partial deprivation of a benefit. Why is this important to the
outcome of the case?
3. What is a “fundamental right,” and why is it important in this
case?
4. In what ways did the plaintiffs argue that education is related
to the First Amendment? Why did they attempt to make this link?
What was the basis upon which the majority rejected the plaintiff’s
argument on this point?
5. Which standard of review did Justice Powell apply, and why did
he use it?
6. Why did the Texas system meet that standard?
7. In Rodriguez the Court was forced to choose between the
standard and strict scrutiny tests as it had not yet developed the
intermediate standard. If the Rodriguez case had been argued in
1983 instead of 1973, after the creation of the intermediate standard,
do you think the final result would have been different? Why or why
not?
3. Types of Discrimination
As discussed above, the Court applies three different standards to
discrimination cases: rational basis, strict scrutiny, and an
intermediate standard. In this section, we will examine how these
standards are applied to different forms of discrimination.
a. Race Discrimination
The drafters of the Fourteenth Amendment clearly intended for it
to protect against racial discrimination. However, in Plessy v.
Ferguson, 69
the Supreme Court used a “separate but equal”
interpretation of the equal protection clause to subvert its original
intent. Indeed, it was not until the Court’s 1954 decision in Brown v.
Bd. of Education 70
that the equal protection clause began to be
enforced in a way that truly protected African Americans. In addition
to
p. 204
p. 205
using the equal protection clause to desegregate public schools and
to stop racial discrimination in public services and public
employment, the Court in Shelley v. Kraemer 71
prevented judicial
enforcement of racially restrictive covenants in real estate and in
Loving v. Virginia 72
struck down state laws prohibiting interracial
marriages.
b. Sex Discrimination
The first major women’s rights case was decided by the Supreme
Court in 1873 when it ruled in Bradwell v. Illinois 73
that it was not a
violation of the Fourteenth Amendment for a state to limit the
practice of law to males. While the Nineteenth Amendment gave
women the right to vote in 1920, it was not until 1971 that the
Supreme Court used the equal protection clause to strike down a
74
statute discriminating against women.
Since then, the Court has decided a number of significant sex
discrimination cases including ones that established different ages
for consuming alcoholic beverages; that limited selected college
programs to members of a single sex; that held a male, below a
certain age, criminally responsible for having voluntary sex with a
female of that same age while not imposing any comparable criminal
liability on the female; and that required males to register for the draft
without requiring females to do the same. In some cases, the Court
has upheld the sex-based discrimination, and in others it has been
75
struck down.
United States v. Virginia provides a good example of the type of
reasoning used in sex discrimination cases. The Virginia Military
Institute was the only single-sex public institution of higher learning in
Virginia. Its stated mission was to produce “ ‘citizen-soldiers,’ men
prepared for leadership in civilian life and in military service.”
United States v. Virginia
518 U.S. 515 (1996)
Justice GINSBURG delivered the opinion of the Court.
Virginia’s public institutions of higher learning include an
incomparable military college, Virginia Military Institute (VMI). The
United States maintains that the Constitution’s equal protection
guarantee precludes Virginia from reserving exclusively to men the
unique educational opportunities VMI affords. We agree.
. . .
p. 205
p. 206
Inherent differences between men and women, we have come
to appreciate, remain cause for celebration, but not for denigration
of the members of either sex or for artificial constraints on an
individual’s opportunity. Sex classifications may be used to
compensate women “for particular economic disabilities [they
Califano v. Webster, 430 U.S. 313, 320, 51 L. Ed. 2d
have] suffered,”
360, 97 S. Ct. 1192 (1977) (per curiam), to “promote equal
employment opportunity,” see California Fed. Sav. & Loan Assn. v.
Guerra, 479 U.S. 272, 289, 93 L. Ed. 2d 613, 107 S. Ct. 683 (1987),
to advance full development of the talent and capacities of our
Nation’s people. But such classifications may not be used, as they
once were, to create or perpetuate the legal, social, and economic
inferiority of women.
[W]e conclude that Virginia has shown no “exceedingly
persuasive justification” for excluding all women from the citizen-
soldier training afforded by VMI.
. . .
Single-sex education affords pedagogical benefits to at least
some students, Virginia emphasizes, and that reality is
uncontested in this litigation. Similarly, it is not disputed that
diversity among public educational institutions can serve the
public good. But Virginia has not shown that VMI was established,
or has been maintained, with a view to diversifying, by its
categorical exclusion of women, educational opportunities within
the Commonwealth. In cases of this genre, our precedent instructs
that “benign” justifications proffered in defense of categorical
exclusions will not be accepted automatically; a tenable
justification must describe actual state purposes, not
rationalizations for actions in fact differently grounded.
. . .
Virginia next argues that VMI’s adversative method of training
provides educational benefits that cannot be made available,
unmodified, to women. Alterations to accommodate women would
necessarily be “radical,” so “drastic,” Virginia asserts, as to
transform, indeed “destroy,” VMI’s program. Neither sex would be
favored by the transformation, Virginia maintains: Men would be
deprived of the unique opportunity currently available to them;
women would not gain that opportunity because their participation
would “eliminate the very aspects of [the] program that distinguish
[VMI] from . . . other institutions of higher education in Virginia.”
. . .
It may be assumed, for purposes of this decision, that most
women would not choose VMI’s adversative method. As Fourth
Circuit Judge Motz observed, however, in her dissent from the
Court of Appeals’ denial of rehearing en banc, it is also probable
that “many men would not want to be educated in such an
environment.” (On that point, even our dissenting colleague might
agree.) Education, to be sure, is not a “one size fits all” business.
The issue, however, is not whether “women — or men — should be
forced to attend VMI”; rather, the question is whether the
Commonwealth can constitutionally deny to women who have the
will and capacity, the training and attendant opportunities that VMI
uniquely affords.
The notion that admission of women would downgrade VMI’s
stature, destroy the adversative system and, with it, even the
school, is a judgment hardly proved, a prediction hardly different
from other “self-fulfilling prophec[ies].” . . . When women first
sought admission to the bar and access to legal education,
concerns of the same order were expressed.
. . .
Women’s successful entry into the federal military academies,
and their participation in the Nation’s military forces, indicate that
Virginia’s fears for the future of VMI may not be solidly grounded.
The Commonwealth’s justification for excluding all women from
“citizen-soldier” training for which some are qualified, in any event,
cannot rank as “exceedingly persuasive,” as we have explained and
applied that standard.
. . .
There is no reason to believe that the admission of women
capable of all the activities required of VMI cadets would destroy
the Institute rather than enhance its capacity to serve the “more
perfect Union.”
p. 206
p. 207
CASE DISCUSSION QUESTIONS
1. Justice Ginsburg notes that there are “inherent differences”
between men and women. Do you agree, and if so, list some that you
think are the most important.
2. Are any of these differences relevant to this case, and if so,
what kinds of accommodations would VMI need to make to
accommodate those differences?
3. At one point in this litigation, Virginia started a separate,
women’s only, program at a different location in the state. Do you
think a separate program for women is an acceptable solution? Why
or why not?
4. Some people believe that girls develop more self-confidence
and leadership skills when they attend single-sex schools. Do you
agree? Does this belief hold true for elementary, secondary, and
college levels? If this is true, does it justify having single-sex schools?
Are there situations in which boys would do better in single-sex
schools?
c. Sexual Orientation Discrimination
In the twenty-first century there has been a “sea change” in public
opinion and legislation regarding the treatment of gay, lesbian,
bisexual, and transgender individuals. The first major case to reach
the U.S. Supreme Court was Romer v. Evans, in which gay rights
supporters sued to block the passage of an amendment to the
76
Colorado constitution. The amendment would have prevented the
enactment of any state or local laws prohibiting discrimination on the
basis of “homosexual, lesbian or bisexual orientation, conduct,
practices or relationships.” Plaintiffs argued that the amendment
violated the equal protection clause because it was state action that
discriminated against them on the basis of their sexual orientation.
The Court found that the amendment was unconstitutional even
though it only applied the rational basis standard rather than either of
the more demanding mid-level or strict scrutiny standards. In finding
that the state had failed to show that the amendment was reasonably
related to a legitimate government purpose, Justice Kennedy wrote:
The amendment’s sheer breadth is so discontinuous with the reasons offered for its
passage that it seems inexplicable by anything but animus toward the class that it
affects. . . . The breadth of the Amendment is so far removed from these particular
77
justifications that we find it impossible to credit them.
In Obergefell v. Hodges, 78
the U.S. Supreme Court ruled that
same-sex couples may exercise the fundamental right to marry,
striking down statutes and state constitutional provisions that had
defined marriage as only between a man and a woman. Since that
ruling, the U.S. Supreme Court has been facing numerous cases
dealing with sexual orientation discrimination and the limits of
Obergefell v. Hodges.
p. 207
p. 208
d. Age Discrimination
Courts apply the least demanding rational basis standard to cases
involving age discrimination. If people live long enough, eventually
everyone becomes a member of the group that may be discriminated
against on the basis of age. Therefore, age does not fit the
requirement for being treated as a suspect class, and courts typically
apply the rational basis test.
Lower courts around the country have upheld challenges to laws
establishing minimum age for drivers’ licenses, right to drink alcoholic
beverages, and curfew laws. In Massachusetts Board of Retirement
v. Murgia, 79
the Supreme Court held that it was not a violation of the
Fourteenth Amendment’s equal protection clause for a state to
establish a mandatory retirement age of 50 for uniformed state police
officers. However, a mandatory retirement age for members of other
professions, such as college professors, would not necessarily be
reasonably related to a legitimate government purpose.
e. Economic Discrimination
As anyone who has paid taxes knows, the federal government
uses a graduated income tax that charges a higher rate on those who
make more money. On the face of it, this discriminates against the
rich. Because the courts only apply the rational basis standard to
cases of economic discrimination, the only question relevant to
constitutional law is whether a graduated system is reasonably
related to the legitimate government objective of raising money to
pay for the services it provides.
There are several interesting cases in which plaintiffs have argued
that they are being discriminated against because of their lack of
wealth. The San Antonio Independent School District v. Rodriguez
case reprinted earlier in this chapter is an example of this type of
litigation. Because the status of being poor is not sufficient to create
a suspect class, and because not everyone in the school district was
poor, the Court applied the rational basis test. While the Court noted
that there were clearly better, more equitable ways of financing
schools, the current system was not irrational. Therefore, it did not
violate the equal protection clause.
You can find further discussions relating to discrimination in
Chapter 10, Laws Affecting Business and Chapter 11, Family Law.
CHAPTER SUMMARY
Constitutional law involves some of the most fundamental concepts
in our legal system and many of the most controversial issues of our
day. Constitutions define the organization and powers of the
government and grant basic civil rights and civil liberties.
Because some sections of our Constitution include very general
and somewhat ambiguous terminology, one often has to turn to court
decisions in order
p. 208
p. 209
to gain a better understanding of their meaning. With its power of
judicial review, the U.S. Supreme Court is the final arbiter of the
meaning of the U.S. Constitution.
Over the years, the Constitution has had 27 amendments. Some
made structural changes, such as altering the way we choose the
Vice President or limiting the number of years that a President can
serve. But others established and then expanded civil rights and civil
liberties. Arguably, the most important of these rights are included in
the first ten amendments, known collectively as the Bill of Rights. In
addition to the rights given to criminal defendants, those rights
include freedom of expression, freedom of religion, and due process.
In addition, the Fourteenth Amendment extended most of those
rights to the states and established the equal protection of the laws
to all. In the context of equal protection litigation, the Court has
adopted three alternative tests: strict scrutiny, intermediate scrutiny,
and rational basis.
CRITICAL THINKING EXERCISES
1. Review the clauses of the U.S. Constitution quoted on page
158 and then for each one
a. state what you think are the two most logical alternative
meanings and
b. give arguments for how a judge should go about deciding
which meaning is the most appropriate interpretation.
2. In his book The Myth of Judicial Activism, Kermit Roosevelt III
states that when using its powers of judicial review, the Court can
make two kinds of mistakes. “It can uphold laws that are in fact
unconstitutional, and it can strike down laws that are constitutionally
80
sound.” Which type of decision, if wrong, is harder to correct? Which
type of decision do you think carries the greatest possibility of harm?
3. Anthony Elonis was a very unhappy and angry man. After his
wife left him, taking their two children with her, he lost his job. Trying
to deal with his frustrations, he began posting rap lyrics on Facebook.
One post about his wife asserted: “There’s one way to love you but a
thousand ways to kill you. I’m not going to rest until your body is a
mess, soaked in blood and dying from all the little cuts.” Frightened,
his wife filed for and was granted a restraining order. Elonis’s
response was the following post: Do you think that piece of paper “is
thick enough to stop a bullet”? The FBI then sent a female agent to
his home to interview him. His next posting? “Little agent lady stood
so close, took all of the strength I had not to turn the bitch ghost. Pull
my knife, flick my wrist and slit her throat.” Elonis was arrested and
charged with violating a federal statute making it a crime to issue
threats. At his trial, his attorneys argued that he had only been kidding
and that, unless the jury found that he specifically intended for his
words to be viewed as a threat, finding him guilty would violate his
First Amendment right to free speech. The government argued that a
“true threat”
p. 209
p. 210
deserves no First Amendment protection and that whether someone
is just letting off steam or is making a true threat depends on how an
objective person would view the message.
a. Do you agree with the prosecution or the defense? Why?
b. Do you think it should matter that Elonis made his
statements on Facebook rather than face-to-face with his
ex-wife? Why?
4. Several years ago, a suit was filed challenging the
constitutionality of displaying a 43-foot Christian cross on city-owned
property on top of an 800-foot-high hill. The 24-ton cross was
donated by a private association committed to advancing religious
interests and then maintained with public funds. It was easily visible
for miles. There were no other religious symbols that were similarly
visible in the area. For 50 years, the cross was the site of numerous
religious events, such as weddings, baptisms, and Easter sunrise
services. During the first 38 years of its existence, there was no
placard or marker indicating a reason for the cross being there.
However, after objections to its presence were raised in the 1990s, a
marker with a “Veterans” memorial inscription was placed at its foot.
a. What types of legal arguments would you make if you were
an attorney representing the plaintiffs in this case?
Representing the defendants?
b. Following a favorable ruling for the plaintiffs, the city
attempted to sell a small parcel of land beneath the cross to
a private association seeking to preserve the cross. What
would be its reason for doing so, and how do you think a
reviewing judge would respond?
5. Assume Congress passed a law forbidding all postal workers
from speaking publicly in favor of any political candidate. If a worker
was found to be violating this law, that worker would be immediately
fired with no right to a hearing. How would you evaluate the validity of
this statute under the Fifth Amendment’s due process guarantees?
6. A state enacted administrative regulations limiting Medicaid
benefits for abortions to those that were “medically necessary.”
Welfare recipients who wanted to have nontherapeutic abortions
brought a suit challenging these regulations as being a violation of
the Fourteenth Amendment’s equal protection clause.
a. If you were an attorney for the plaintiffs, which of the various
equal protection standards would you want the court to
apply? Why? What arguments would you use to support
your position?
b. If you were an attorney for the state, which of the various
equal protection standards would you want the court to
apply? Why? What arguments would you use to support
your position?
c. How is Roe v. Wade relevant to resolving the issues involved
in this case? To what extent are the facts of the cases
similar? In what ways do they differ?
d. Do you think the Court would ultimately uphold or strike
down the state’s regulations? Why?
p. 210
p. 211
WEB EXERCISES
1. ConstutitonFacts.com ( www.constitutionfacts.com) is a great
resource. There you can find the text of the U.S. Constitution as
well as the Declaration of Independence, the Articles of
Confederation, and information on the founding fathers and the
U.S. Supreme Court. You can also see a partial list of proposed
constitutional amendments dating back to the 1800s and test
your knowledge through interactive quizzes. Take the
“Constitutional I.Q. Quiz.” How did your score compare to the
average score of others from your state?
2. You can listen to the oral arguments for the cases excerpted in
this chapter by going to www.oyez.org. You might be particularly
interested in the argument for Snyder v. Phelps as the justices
engage in very aggressive questioning of the advocates. To hear
the argument, once at the Oyez website, click on “Cases,” select
the 2010 term, and then locate the case name. After reading the
short case description, click on the link to the oral argument.
Advocates only have 30 minutes to present their argument. How
long was the first advocate able to speak before being interrupted
by a question? In general, what did you think of the justices’
questions? Who do you think was the better oral advocate, the
attorney representing the protestors or the attorney representing
the Snyders? Why?
REVIEW QUESTIONS
Pages 157 through 196
1. Where can you locate the Bill of Rights, and what protections
does it contain?
2. What is the “state action” requirement?
3. To what extent is the Bill of Rights applicable to the states?
4. Define symbolic speech. Under what circumstances is it
protected?
5. Describe some of the limitations that the courts have placed on
our freedom of expression.
6. When is a “time and place restriction” valid?
7. What is meant by “content neutrality”?
8. The First Amendment contains two clauses dealing with religion.
What are they, and how do they differ from each other?
9. How do the courts decide whether a particular activity should be
protected under the First Amendment’s free exercise clause?
10. What is the Lemon test, and how has the Court used it to
determine whether a particular state action is in violation of the
First Amendment freedom of religion clause?
p. 211
p. 212
Pages 196 through 210
11. The Fifth Amendment provides both procedural and substantive
due process. How do they differ from each other?
12. What and whom does the equal protection clause protect?
13. What standards are applied in equal protection ceases, and what
determines which one will be used in a specific case? How does
the selection of the standard to be used affect the outcome of the
case?
14. When faced with a claim of discrimination based on sexual
orientation, how has the Supreme Court’s approach differed from
the way it has handled cases of discrimination based on sex?
15. Why is discrimination based on age treated differently than
discrimination based on sex or race?
16. Has the Supreme Court found that poverty is a suspect
classification? Why does this matter?
1
Since the Constitution went into effect in 1789, 27 amendments have been added. In
addition to those dealing with individual rights, others are structural in the sense that they
cover things such as who is eligible to vote, the manner in which senators and presidents are
to be chosen, limitations on congressional pay increases, how many terms a President can
serve, and what happens if the President can no longer carry out his or her duties. The
Eighteenth Amendment (Prohibition) was later repealed by the Twenty-first Amendment. See
Appendix A for a complete listing of these amendments. Proposed amendments that failed
to be ratified include the Equal Rights Amendment and the D.C. Voting Amendment.
2
249 U.S. 47, 52 (1919).
3
Id.
4
(M.D. Ala. 1969).
5
Id. at 191.
6
Id. at 194.
7
Id. at 198-99.
8
For a pro/con debate on free speech on college campuses, look at the following two
articles: Erwin Chemerinsky, Hate speech is protected free speech even on college
campuses, at www.vox.com/the-big-idea/2017/10/25/16524832/campus-free-speech-first-
amendment-protest and Robert C. Post, There is no 1st Amendment right to speak on a
college campus, at www.vox.com/the-big-idea/2017/10/25/16526442/first-amendment-
college-campuses-milo-spencer-protests (both sites last visited on August 4, 2019).
9
Carmen Maye, Public-College Student-Athletes and Game-Time Anthem Protests: Is There a
Need for a Constitutional-Analytical Audible?, 24 COMMLPOLY 55 (2019).
10
424 U.S. 1 (1976).
11
558 U.S. 310 (2010).
12
47 USC § 315(b)(2), also known as the McCain-Feingold Act or the Bipartisan Campaign
Reform Act (BCRA).
13
You can find all of the ads from Internet Research Agency at
https://intelligence.house.gov/social-media-content/social-media-advertisements.htm.
14
The Center for Responsive Politics created OpenSecrets.org to report on top spending by
individuals in elections. The data can be found at
www.opensecrets.org/overview/topindivs.php.
15
Bigelow v. Va., 421 U.S. 809 (1975).
16
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
17
Bates v. State Bar of Ariz., 433 U.S. 350 (1977).
18
354 U.S. 476 (1957).
19
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
20
413 U.S. 15, 24 (1973).
21
458 U.S. 747 (1982).
22
Ashcroft v. Free Speech Coalition, 535 US 234 (2002).
23
See Ginsberg v. N.Y., 390 U.S. 629 (1968).
24
438 U.S. 726 (1978). The case involved a citizen complaint to the FCC regarding a radio
station broadcasting comedian George Carlin’s monologue about “The Seven Words You Can
Never Say on Television.”
25
Chaplinsky v. N.H., 315 U.S. 568 (1941).
26
403 U.S. 15 (1971).
27
Watts v. U.S., 394 U.S. 705, 708 (1969).
28
Va. v. Black, 538 U.S. 343 (2003).
29
Wis. v. Mitchell, 508 U.S. 476 (1993).
30
403 U.S. 15, 25 (1971).
31
Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969).
32
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
33
See Frederick v. Morse, 551 U.S. 393 (2007) (student suspension upheld for unfurling a
banner that said “BONG HITS 4 JESUS,” at a school-sanctioned event).
34
Manhattan Community Access Corporation v. Halleck, 139 S. Ct. 1921 (2019).
35
N.C Gen. Stat. §§14-202.5(a), (e)(2015).
36
Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2019).
37
376 U.S. 254 (1964).
38
Libel laws provide for civil damage awards in some situations in which a person’s
reputation has been harmed by false statements. See Chapter 7.
39
N.Y. Times, 376 U.S. at 278.
40
Id. at 279-80.
41
133 U.S. 333, 342 (1890).
42
380 U.S. 163, 166 (1965).
43
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
44
Sherbert v. Verner, 374 U.S. 398 (1963).
45
464 U.S. 872 (1990).
46
508 U.S. 520 (1993).
47
42 U.S.C. § 2000bb (2012).
48
Everson v. Bd. of Educ., 330 U.S. 1 (1947).
49
Lemon v. Kurtzman, 468 U.S. 602 (1971) (challenge to a Pennsylvania law providing
various types of financial aid for religiously affiliated schools).
50
The primary effect of the program had to be neutral. It could neither advance nor retard
religion. However, an indirect, secondary effect on religion was permissible.
51
Part of the program in question failed this part of the test because it would require
government inspectors to be in the classroom, and that would create excessive government
entanglements.
52
See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983). The Court never directly explained why
it did not apply the Lemon test. However, whereas Lemon dealt with activities in public
schools, this case involved prayers by a chaplain in a state legislature.
53
Advocated by O’Connor in Lynch v. Donnelly, 465 U.S. 668 (1984).
54
Advocated by Kennedy in Allegheney v. ACLU, 492 U.S. 573 (1989).
55
Advocated by Breyer in Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
56
134 S. Ct. 1811, 1814 (2014).
57
132 S. Ct. 694 (2012).
58
374 U.S. 398 (1963).
59
316 U.S. 535 (1942).
60
381 U.S. 479 (1965).
61
410 U.S. 113 (1973).
62
Id. at 159.
63
The point at which the fetus is presumably capable of meaningful life outside the mother’s
womb.
64
Lawrence v. Tex., 539 U.S. 558 (2003).
65
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
66
Plyler v. Doe, 457 U.S. 202 (1982).
67
Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
68
Craig v. Boren, 429 U.S. 190 (1976).
69
163 U.S. 537 (1896).
70
349 U.S. 294 (1954).
71
334 U.S. 1 (1948).
72
388 U.S. 1 (1967).
73
83 U.S. 130 (1873).
74
Reed v. Reed, 404 U.S. 71 (1971). The statute in question made a presumption that a man
would be a better executor of an estate than a woman.
75
Discrimination favoring men over women was struck down in U.S. v. Virginia, 518 U.S. 515
(1996) (male only military academy). Discrimination favoring women over men was struck
down in Craig v. Boren, 429 U.S. 190 (1976) (drinking ages), and Miss. Univ. for Women v.
Hogan, 458 U.S. 718 (1982) (female only nursing program), but was upheld in Michael M. v.
Superior Court, 450 U.S. 464 (1981) (statutory rape laws), and Rostker v. Goldberg, 453 U.S.
57 (1981) (male only draft registration requirement).
76
517 U.S. 620 (1996).
77
Id. at 632-35.
78
135 S. Ct. 2584 (2015).
79
427 U.S. 307 (1976).
80
Kermit Roosevelt III, The Myth of Judicial Activism 29 (Yale University Press 2006).
p. 212
p. 213
Torts
The risk reasonably to be perceived defines the
duty to be obeyed.
Justice Benjamin Cardozo
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain how intentional torts differ from negligence and strict
liability torts.
■ List the elements of the prima facie case and common
defenses for the torts of battery, false imprisonment, and
defamation.
■ Apply the elements of negligence to a fact scenario.
■ Describe the history and development of product liability law.
■ Explain the function of compensatory, punitive, and nominal
damages.
INTRODUCTION
A tort can occur when someone injures you, slanders your reputation,
or damages your property. A tort is defined as a private wrong (other
than a breach of contract) in which a person or property is harmed
because of another’s failure to carry out a legal duty. In most
instances this legal duty is an obligation to refrain from taking actions
that harm others. Occasionally, a duty will consist of an affirmative
obligation to act in order to protect others.
p. 213
p. 214
A tort is considered to be a “private wrong,” as opposed to criminal
acts, which are seen as “public wrongs.” Therefore, while the state
prosecutes crimes, the individual harmed must pursue a tort action.
The end results of a criminal action and a civil tort suit also differ: A
finding of guilt in a criminal action can result in a fine paid to the state
or imprisonment, while a finding of liability in a tort action usually
leads to a damage award to the harmed party. However, as we
discussed in Chapter 4, because both criminal acts and torts can
result in harm to a person or property, sometimes the same set of
facts will give rise to both a tort action and a criminal action.
Tort actions must also be distinguished from contract actions. In
a tort action the legal duties are established by the courts through the
common law and, more recently, also by statutory modifications of
the common law. In contrast, contract actions are based on the legal
duties the parties established in their contract. A further difference
between a contract action and a tort action lies in the remedy sought.
In a contract action the purpose of the lawsuit is to give the injured
party the benefit of the bargain. In a tort action the purpose is to
compensate the plaintiff for any losses suffered. For example,
assume you purchase an automobile with defective brakes. Because
of the defect you are unable to stop at a red light and are in a minor
accident. The purpose of a breach of contract action would be to “get
the benefit of your bargain” — that is, a car without defective brakes.
The purpose of a tort action would be to fully compensate you for any
harm to yourself or the car, including your medical bills, lost time from
work, and pain and suffering. As this example suggests, at times one
set of facts can give rise to both a breach of contract action and a
tort action. For example, if a manufacturer intentionally lies about a
product she is selling and the buyer relies on that lie to her detriment,
the buyer might be able to sue for both breach of contract (thereby
invalidating the sale) and fraud (thereby recovering for damages
caused by the product).
Tort law has ancient roots, and tort rules have been created by the
courts on a case-by-case basis. Therefore, looking to precedent for
analogous situations plays a large role in any analysis of a tort
problem. In addition, the courts frequently look to an authoritative
secondary source, the Restatement of the Law of Torts, Second.
This Restatement was drafted by a group of legal scholars in order to
summarize the existing common-law rules in a set of black letter
principles. At times, instead of simply “restating” the law, the drafters
also included their vision of what tort law should become. This is
most notable in the area of products liability. Although the
Restatement is a secondary source and is therefore only persuasive
authority, you will frequently see courts citing to it and even formally
adopting some of its provisions.
In spite of its ancient common-law roots, tort law has never been
static. One area of tort law that is undergoing rapid change is that
involving injuries to participants and bystanders at sporting events.
Consider the following and how what started out as an afternoon of
fun ended up being a day of tragedy.
p. 214
p. 215
Case 8: The Mishit Softball Game
Dennis Carrai hosted a gathering of family and friends at his
home. Among the guests was Maria Judge. Several guests,
including Maria, were seated on the unenclosed rear porch of the
house. At some point, Dennis shouted “who wants to play softball,”
while handing out gloves, a ball, and a metal bat that he had
retrieved from his garage. The area available for the field was quite
small; the “third base line” was approximately 15 feet from the
house, running parallel to the side of the porch. Maria was sitting in
a chair on the porch, with her back to the game.
Dennis admonished the batters to “bunt” or swing down on the
ball, and not to take full swings, to reduce the distance a batted ball
might travel. Nonetheless, a batted ball flew in the direction of the
house, landing on the porch roof. One of the guests laughed,
commenting to Dennis that he hoped his homeowner’s insurance
policy premium was paid, because the ball narrowly missed hitting
a skylight on the porch roof. The game continued and a short time
later, one of the players hit a foul line drive toward the porch, where
it struck Maria on the back of her head, causing her serious injury.
As you read this chapter, think about:
■ whether Dennis had a duty to stop the game once he should
have realized the danger of balls flying towards the house;
■ what role Maria played in her own injury; and
■ the consequences for backyard sports if a court were to find
Dennis liable for Maria’s injury.
While tort law is still predominately court-created law, legislatures
are playing an increasingly active role. For example, both Congress
and state legislatures have enacted “tort reform” statutes, with the
purpose of modifying some of the perceived abuses of the tort
system. One example is legislation to place limits on the amount of
damages that can be awarded in certain types of tort cases. Such
tort reform measures have even been included in the national
platforms of the major political parties.
Torts have traditionally been classified into three major
categories: intentional acts, negligence, and strict liability. See Figure
7-1. In any one of these three areas, the person who commits the tort
is known as the tortfeasor.
When people intentionally seek to violate a duty toward others,
their purposeful conduct is classified as an intentional tort. Those
who commit intentional torts are subject to punitive in addition to
compensatory damages. If John intentionally drives his car into Jill’s
car, damaging her car and injuring Jill, John has committed an
intentional tort. As we will see later in this chapter, John’s motive
(reason) for hitting Jill’s car is irrelevant. All that matters is that he
intended to do so.
When the harm occurs as a result of a careless act done with no
conscious intent to injure anyone, the act is classified as negligence.
Negligent
p. 215
p. 216
actors are subject to compensatory but not to punitive damages. If
the reason John’s car struck Jill’s was not because he had intended
to do so but because he had taken his eyes off the road to adjust his
radio, John’s behavior may be classified as negligent.
Figure 7-1 Degrees of Fault
There are times when for policy reasons the defendant is held
responsible even though the defendant did not act negligently nor
intentionally to harm the plaintiff. These are classified as strict
liability torts. Strict liability is usually limited to situations involving an
ultrahazardous activity, such as dynamiting, or the manufacture or
sale of a potentially dangerous product. For example, if the reason
John ran into Jill’s car was because his brakes failed, the car
manufacturer may be held strictly liable.
Finally, it is important to realize that the law does not provide for
compensation for all injuries. There are true accidents, when either no
one is at fault or the fault rests solely with the person injured. In those
situations, the injured party cannot recover damages.
A. INTENTIONAL TORTS
An intentional tort occurs whenever someone intends an action that
results in harm to a person’s body, reputation, emotional well-being, or
property. Almost any harm that you can imagine, if caused
intentionally, can be classified as an intentional tort. In this section of
the chapter we will discuss just a few of the most common
intentional torts. First, there are the torts that cause harm to a
person’s body, reputation, or emotional well-being: assault and
battery, false imprisonment, defamation, invasion of privacy, and
intentional infliction of emotional distress. Second, there are the torts
that cause harm to a person’s property: trespass, trespass to
personal property, and conversion. Third, we will briefly discuss a
variety of other torts, including false arrest, malicious prosecution,
abuse of process, fraud, and business torts.
In order to prove that an intentional tort occurred, the plaintiff
must prove each of that tort’s elements. The defendant then has the
opportunity to raise any defenses. The primary defenses available in
intentional tort cases are consent, self-defense, defense of third
parties, and various types of privilege.
As we will see, one set of facts can give rise to more than one type
of intentional tort. In addition, many intentional torts are also crimes.
Consider the following fact scenario.
Case 9: The Abused Spouse
One day attorney John Bloom asked his paralegal Sally Green to
sit in on an initial client interview. Mr. Bloom introduced Ms. Green
to the client, June Day, and explained to Mrs. Day that Ms. Green is
a paralegal. Mrs. Day told them the following story.
Mrs. June Day has been living with Mr. David Day for the past
five years. While their marriage has never been a happy one, Mrs.
Day never thought of divorce until last night. Mr. Day came home
very late from an adult co-ed softball game. Mrs. Day said it was
obvious that he had
p. 216
p. 217
been drinking. They soon got into a verbal fight. Among other
things, Mr. Day yelled at Mrs. Day that he had told her boss she had
been skimming money from the company’s petty cash drawer. Mrs.
Day had never done any such thing. He also told her that he had
received a call earlier in the day from the local hospital, telling him
that Mrs. Day’s mother had been admitted following a massive
heart attack. (Later Mrs. Day found out that this was not true, but at
the time she believed Mr. Day and became very upset.) The fight
escalated, and Mr. Day began waving his baseball bat in front of
Mrs. Day. Mrs. Day said that she was not frightened, as Mr. Day had
never hit her, and she did not believe he would do so then. In fact,
she turned her back on him and started to leave the room. He then
yelled at her and, before she could turn around, hit her on the back
of her arm with the bat, breaking her arm. Mrs. Day then fled to the
bathroom, locking the door behind her. Mrs. Day remained in the
bathroom for over two hours until she felt it was safe to leave. She
found Mr. Day asleep on the living room couch. She fled to a
neighbor’s, who drove her to the hospital. The next morning Mrs.
Day returned home to find Mr. Day as well as her purse gone. There
was a message on the answering machine from her boss saying
that she was fired.
While Mrs. Day is contemplating divorce proceedings, her more
immediate concern is to learn what actions she can take to
compensate her for her broken arm, emotional distress, missing
purse, and lost job.
1. Harm to a Person’s Body, Reputation, or Emotional Well-
Being
The following torts will be discussed in this section: assault and
battery (harm or threatened harm to a person’s body), false
imprisonment (a wrongful detention), defamation (harm to a person’s
reputation), and invasion of privacy and the intentional infliction of
emotional distress (harm to a person’s emotional well-being).
a. Assault and Battery
An assault occurs when someone reasonably fears that he or she
is about to suffer a harmful or offensive physical contact. A battery is
the intentional harmful or offensive physical contact. While we
usually think of assault and battery as one tort, in reality they are two
torts. They can be present together, as, for example, when Tom first
waves a fist in front of Sam’s face and then proceeds to punch Sam
in the nose. However, there can also be an assault with no battery
whenever there is the threat of a battery but no ensuing physical
contact. And there can also be a battery with no assault, as, for
example, when the person being attacked does not see the threat of
physical contact before it actually occurs.
(1) The elements of assault and battery
To prove an assault, the plaintiff must show that each of the
following elements occurred:
1. an intentional act
2. that creates a reasonable apprehension of
3. an immediate harmful or offensive physical contact.
p. 217
p. 218
Notice the requirement in element 3 that the apprehension be of an
immediate physical contact. A threat to go and get a gun is not an
assault because there is no threat of an immediate contact.
To prove a battery, the plaintiff must show that each of the
following elements occurred:
1. an intentional act
2. that creates a harmful or offensive physical contact.
Notice that for both assault and battery the contact does not have to
actually be physically painful. It simply must be harmful or offensive.
An unwanted kiss from a stranger could qualify as an offensive
contact.
Contact also includes contact with anything attached to the
person, such as clothing. In the classic case of Fisher v. Carrousel
Motor Hotel, Inc., 1
the court found that a battery had been committed
when a hotel employee grabbed a plate from a customer. Also, the
defendant need not actually do the touching if the defendant set the
action in motion, such as by throwing a rock or ordering a dog to
attack.
In discussing battery there are three important concepts to keep
in mind. First, the intent involved must be the intent to perform the
act, not necessarily to cause the plaintiff harm. Assume a boy, as a
practical joke, pulls out a chair just as his friend is about to sit on it.
The friend falls to the ground, breaking his arm. Even though the boy
did not mean to hurt his friend, he is liable for battery. He intentionally
did an act that caused physical injury. This example also illustrates
the difference between intent, the desire to do an act, and motive, the
reason for the act. The court is concerned with the intent (the boy’s
desire to pull out the chair) and not with his motive (his wish to play a
practical joke).
Second, usually defendants will be liable for any consequences of
their actions, even if the consequences were unforeseeable. Often
this is phrased as follows: “The defendant must take the plaintiff as
the defendant finds her.” For example, if the plaintiff has an “eggshell
skull” and the defendant merely taps the plaintiff’s head lightly, the tap
may seriously injure the plaintiff. The defendant is liable, even if such
a tap would not have harmed most people.
Third, assume John swung his fist, meaning to hit Bill. However,
Bill moved aside and John hit Sara instead. John is liable to Sara for
battery under the theory of transferred intent.
The following case involves a friendly backyard touch football
game that unfortunately ends in injury. While reading the case, decide
for yourself whether you think the plaintiff should have been allowed
to succeed on her claim of battery.
p. 218
p. 219
Knight v. Jewett
3 Cal. App. 4th 1022, 275 Cal. Rptr. 292 (1990)
TODD, Acting P.J.
Kendra Knight appeals a summary judgment granted in favor
of Michael Jewett in her lawsuit against Jewett for . . . assault and
battery stemming from a touch football game in which she was
injured. . . .
Facts
On January 25, 1987, Knight and several other individuals,
including Jewett, gathered at the Vista home of Ed McDaniels to
observe the Super Bowl football game. Knight and Jewett were
among those who decided to play a game of coed touch football
during half-time using a “peewee” football often used by children.
Apparently, no explicit rules were written down or discussed before
the game, other than the requirement that to stop advancement of
the player with the ball it was necessary to touch that player above
the waist with two hands. Knight and Jewett were on different
teams.
Previously, Knight had played touch football and frequently
watched football on television. Knight voluntarily participated in
the Super Bowl half-time game. It was her understanding that this
game would not involve forceful pushing, hard hitting or hard
shoving during the game. She had never observed anyone being
injured in a touch football game before this incident.
About five to ten minutes after the game started, Jewett ran
into Knight during a play and afterward Knight asked Jewett not to
play so rough. Otherwise, she told him, she would stop playing.
On the next play, Knight suffered her injuries, when she was
knocked down by Jewett and he stepped on the little finger of her
right hand. Kendra had three surgeries on the finger, but they
proved unsuccessful. The finger was amputated during a fourth
surgery.
According to Jewett, he had jumped up to intercept a pass and
as he came down he knocked Knight over. When he landed, he
stepped back and onto Knight’s hand.
According to Knight’s version, her teammate, Andrea Starr, had
caught the ball and was proceeding up the field. Knight was
headed in the same direction, when Jewett, in pursuit of Starr,
came from behind Knight and knocked her down. Knight put her
arms out to break the fall and Jewett ran over her, stepping on her
hand. Jewett continued to pursue Starr for another 10 to 15 feet
before catching up with her and tagging her. Starr said the tag was
rough enough to cause her to lose her balance and fall and twist
her ankle.
. . .
Discussion
Inasmuch as this case reaches us on appeal from a summary
judgment in favor of Jewett, it is only necessary for us to
determine whether there is any possibility Knight may be able to
establish her case.
A requisite element of assault and battery is intent. Here,
however, there is no evidence that Jewett intended to injure Knight
or commit a battery on her. Moreover, the record affirmatively
shows Knight does not believe Jewett had the intent to step on her
7
hand or injure her. Without the requisite intent, Knight cannot
state a cause of action for assault and battery.
Affirmed.
p. 219
p. 220
CASE DISCUSSION QUESTIONS
1. Did the court think that a battery had occurred? Why?
2. What role do you think Ms. Knight’s deposition played in the
court’s reasoning?
3. Do you think the result would have been different if Ms. Knight
had never watched football or played touch football prior to her
accident?
A few states recognize the tort of battered spouse syndrome. This
is an extension of assault and battery. Battered spouse syndrome is
the result of a continuing pattern of abuse and violence. Typically, the
cycle consists of three stages. The first stage involves minor physical
or verbal abuse that escalates while the victim tries to mollify his or
her abuser by remaining passive. Stage two is when the actual
battering occurs. During the third stage, the abuser asks for
forgiveness and promises never to abuse again. This period of
relative calm then leads into the cycle beginning again. Victims often
remain trapped in this cycle because they are ashamed or because
they have the very realistic fear that reporting the behavior will only
cause it to escalate.
When an abuse victim finally gains control of the situation and
wishes to sue the abuser for the injuries suffered, bringing a claim
under traditional battery or emotional distress theories may result in a
dismissal under a statute of limitations defense. This is because it
may have taken the victim longer than the statute of limitations
allows, typically two years, to leave the relationship and develop the
self-confidence needed to bring a claim. By instead bringing the claim
under the theory of battered spouse syndrome, the victim may avoid
the usual statute of limitations problems by arguing that the tort of
battered spouse syndrome is a “continuing tort.”
(2) The defenses to assault and battery
The first step in winning a tort claim is for the plaintiff to prove
each of the elements of that tort. Then only if the plaintiff is able to do
so, the defendant raises any defenses. The defenses that can be
raised to an assault or battery claim are consent, self-defense,
defense of others, and sometimes defense of property.
Consent to a tortious act can sometimes be implied from the
nature of the plaintiff’s conduct. When one goes to a barber or hair
stylist, there is an implied consent for that person to touch and cut
the customer’s hair. When paying to enter a haunted house at
Halloween, there is implied consent for being frightened or touched in
a scary way. Other types of consent may be implied by law, such as
when a doctor administers medical treatment in an emergency.
Because the court in Knight v. Jewett did not think that Ms. Knight
had established a prima facie case for battery, it did not consider
whether the defendant had any valid defenses. If the court in Knight
had thought Mr. Jewett intentionally stepped on Ms. Knight, it next
would have discussed the issue of whether she had consented to the
battery. How do you think the court would have resolved that issue?
For self-defense and defense of others to be valid, the plaintiff
must reasonably believe that a threat exists and then must use only
as much force as is necessary to stop the battery. Self-defense, for
example, could be used as a valid
p. 220
p. 221
defense against a battery charge if the plaintiff had threatened the
defendant with a knife and the defendant had defended himself with
his fists. However, if the plaintiff was unarmed and struck the
defendant with his fists, it might not be a valid self-defense for the
defendant to stab the plaintiff with a knife.
Perhaps one of the most controversial defenses is that of defense
of property. The following case from Iowa illustrates a rejection of its
use.
Katko v. Briney
183 N.W.2d 657 (Iowa 1971)
MOORE, C.J.
The primary issue presented here is whether an owner may
protect personal property in an unoccupied boarded-up farm
house against trespassers and thieves by a spring gun capable of
inflicting death or serious injury.
We are not here concerned with a man’s right to protect his
home and members of his family. Defendants’ home was several
miles from the scene of the incident to which we refer infra.
Plaintiff’s action is for damages resulting from serious injury
caused by a shot from a 20-gauge spring shotgun set by
defendants in a bedroom of an old farm house which had been
uninhabited for several years. Plaintiff and his companion, Marvin
McDonough, had broken and entered the house to find and steal
old bottles and dated fruit jars which they considered antiques.
At defendants’ request plaintiff’s action was tried to a jury
consisting of residents of the community where defendants’
property was located. The jury returned a verdict for plaintiff and
against defendants for $20,000 actual and $10,000 punitive
damages.
After careful consideration of defendants’ motions for
judgment notwithstanding the verdict and for new trial, the
experienced and capable trial judge overruled them and entered
judgment on the verdict. Thus we have this appeal by defendants.
II
Most of the facts are not disputed. In 1957 defendant Bertha L.
Briney inherited her parents’ farm land in Mahaska and Monroe
Counties. Included was an 80-acre tract in southwest Mahaska
County where her grandparents and parents had lived. No one
occupied the house thereafter. . . .
For about 10 years, 1957 to 1967, there occurred a series of
trespassing and housebreaking events with loss of some
household items, the breaking of windows and “messing up of the
property in general.” The latest occurred June 8, 1967, prior to the
event on July 16, 1967 herein involved.
Defendants through the years boarded up the windows and
doors in an attempt to stop the intrusions. They had posted “no
trespass” signs on the land several years before 1967. The nearest
one was 35 feet from the house. On June 11, 1967 defendants set
“a shotgun trap” in the north bedroom. After Mr. Briney cleaned and
oiled his 20-gauge shotgun, the power of which he was well aware,
defendants took it to the old house where they secured it to an iron
bed with the barrel pointed at the bedroom door. It was rigged with
wire from the doorknob to the gun’s trigger so it would fire when
the door was opened. Briney first pointed the gun so an intruder
would be hit in the stomach but at Mrs. Briney’s suggestion it was
lowered to hit the legs. He admitted he did so “because I was mad
and tired of being tormented” but “he did not intend to injure
anyone.” He gave no explanation of why he used a loaded shell and
set it to hit a person already in the house. Tin was nailed over the
bedroom window. The spring gun could not be seen from the
outside. No warning of its presence was posted.
p. 221
p. 222
Plaintiff lived with his wife and worked regularly as a gasoline
station attendant in Eddyville, seven miles from the old house. He
had observed it for several years while hunting in the area and
considered it as being abandoned. He knew it had long been
uninhabited. In 1967 the area around the house was covered with
high weeds. Prior to July 16, 1967 plaintiff and McDonough had
been to the premises and found several old bottles and fruit jars
which they took and added to their collection of antiques. On the
latter date about 9:30 P.M. they made a second trip to the Briney
property. They entered the old house by removing a board from a
porch window which was without glass. While McDonough was
looking around the kitchen area plaintiff went to another part of the
house. As he started to open the north bedroom door the shotgun
went off striking him in the right leg above the ankle bone. Much of
his leg, including part of the tibia, was blown away. Only by
McDonough’s assistance was plaintiff able to get out of the house
and after crawling some distance was put in his vehicle and
rushed to a doctor and then to a hospital. He remained in the
hospital 40 days.
III
Plaintiff testified he knew he had no right to break and enter the
house with intent to steal bottles and fruit jars therefrom. He
further testified he had entered a plea of guilty to larceny in the
nighttime of property of less than $20 value from a private
building. . . .
Prosser on Torts, Third Edition, pages 116-118, states:
“. . . the law has always placed a higher value upon human safety than upon mere
rights in property, it is the accepted rule that there is no privilege to use any force
calculated to cause death or serious bodily injury to repel the threat to land or
chattels, unless there is also such a threat to the defendant’s personal safety as to
justify self-defense . . . spring guns and other man-killing devices are not justifiable
against a mere trespasser, or even a petty thief. They are privileged only against
those upon whom the landowner, if he were present in person would be free to inflict
injury of the same kind.”
Restatement of Torts, section 85, page 180, states: . . . A
possessor of land cannot do indirectly and by a mechanical device
that which, were he present, he could not do immediately and in
person. . . . Study and careful consideration of defendants’
contentions on appeal reveal no reversible error.
Affirmed.
All Justices concur except LARSON J., who dissents.
CASE DISCUSSION QUESTIONS
1. Why did the court uphold the jury’s verdict in favor of the
plaintiff trespasser?
2. The dissent stated: “When such a windfall comes to a criminal
as a result of his indulgence in serious criminal conduct, the result is
intolerable and indeed shocks the conscience. If we find the law
upholds such a result, the criminal would be permitted by operation
of law to profit from his own crime.” What do you think?
3. Because the defendants did not raise the issue, this court did
not deal directly with whether punitive damages were appropriate.
What facts would support such a finding; what facts would argue
against such a finding? Do you think punitive damages were
appropriate in this case? Why?
4. Should a landowner who sets a trap such as in this case also
be found criminally liable if an intruder is seriously injured? Why?
p. 222
p. 223
5. Do you think the result in this case would have been different if
the house had been occupied? Why?
6. At trial Mr. Briney testified that “[p]rior to this time . . . he had
locked the doors, posted seven no trespassing signs on the premises,
and complained to the sheriffs of two counties on numerous
occasions. . . . [A]ll these efforts were futile and the vandalism
continued.” What else could the defendants have done to protect their
property?
b. False Imprisonment
False imprisonment occurs whenever one person, through force
or the threat of force, unlawfully detains another person against his or
her will. Issues of false imprisonment most frequently arise in
situations in which store employees seek to detain suspected
shoplifters or employers wish to detain and interview employees they
suspect of unlawful activities.
(1) The elements of false imprisonment
In order to prove false imprisonment, the plaintiff must show the
following:
1. an intentional act
2. that caused confinement or restraint
3. through force or the threat of force.
The plaintiff must actually be confined with no means of escape. For
example, leaving someone alone in an unlocked office does not
constitute false imprisonment.
(2) Defenses to false imprisonment
The most common defense to false imprisonment is that the
defendant was justified in restraining the plaintiff. For example, many
states have enacted statutes to protect merchants who want to
question a suspected shoplifter. Usually, these statutes provide that a
shopkeeper may detain a suspected shoplifter only if the shopkeeper
can show probable cause to justify the delay and that even then the
shopkeeper may detain the suspected shoplifter only for a reasonable
time and in a reasonable manner. As you can imagine, because of the
way these three statutory requirements are worded, each has given
rise to a great deal of litigation.
DISCUSSION QUESTION
1.Many argue that shoplifting is a major cause of increased costs.
Do you think shopkeepers should be given more or less leeway in
deciding when to detain suspected shoplifters?
c. Defamation
Whereas the torts of assault and battery involve physical contact,
the tort of defamation involves harm to a person’s reputation caused
by either oral or
p. 223
p. 224
written remarks. Oral defamation is known as slander (remember “s”
for spoken), and written defamation is known as libel (remember “l”
for literary). To be considered defamatory, the material must tend to
injure a person’s reputation, to hold a person up to ridicule, or to
excite adverse, derogatory, or unpleasant feelings or opinions about
that person. Furthermore, the statement must present the
defamatory information as being factual rather than merely the
opinion of the speaker. For example, a movie review or editorial is
generally viewed as a statement of opinion rather than fact.
(1) The elements of defamation
Whether it is oral or written, defamation consists of the following
elements:
1. publication
2. of false statements
3. that cause harm to reputation.
The first element, publication, means that someone other than the
plaintiff and the defendant must read or hear the defamatory
comments. The offending material cannot harm someone’s
reputation if it is never seen or heard by a third party. Second, and
perhaps most important, the defamatory material must be false. No
matter how damaging the information, a tort of defamation has not
been committed if the statement was true. Note, however, that the
plaintiff may still be able to recover damages by suing under the
theory of invasion of privacy or intentional infliction of emotional
distress.
As to the third element, the plaintiff must show that the
publication of this false information damaged his or her reputation.
This is usually established by showing that the plaintiff lost a job, a
contract, or something else of value as a result of people having read
or heard the defamatory material. However, historically some remarks
are considered to be so bad that they are automatically viewed as
damaging and thus constitute defamation per se. Examples of such
remarks include the following:
1. that someone has a loathsome communicable disease;
2. that someone committed business improprieties;
3. that someone has been imprisoned for a serious crime; and
4. that an unmarried woman is unchaste.
When dealing with comments that are defamatory per se, the plaintiff
does not need to prove the statements caused him or her harm, as it
is presumed they did so.
(2) Constitutional issues in defamation: The special case of
public officials and public figures
As a result of the First Amendment’s protection of freedom of
speech and freedom of the press, the right to sue for defamation
requires a balancing of the right to preserve one’s reputation with the
public’s interest in maintaining a “free marketplace” of ideas.
p. 224
p. 225
In 1964, the U.S. Supreme Court addressed this dilemma in New
York Times Co. v. Sullivan. 2
An Alabama court had awarded libel
damages to a local law enforcement official who had been criticized
in an advertisement in the New York Times. The Court stated: “The
constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’ — that is, with knowledge
that it was false or with reckless disregard of whether it was false or
3
not.” In 1974, the Court extended this protection to criticism of
4
“public figures” as well as government officials.
What this means in practical terms is that when the plaintiff is a
public official or public figure, the plaintiff must prove a fourth
element, actual malice, in addition to the three elements that
everyone else has to also prove — that is, (1) publication (2) of false
statements (3) that cause harm to reputation. While it is clear that
this fourth requirement comes into play only if the plaintiff is a public
official or a public figure, it is less clear whether the defendant must
also be a member of the media. The advent of blogs, twitter, and
other social media is forcing courts to look more broadly at who may
be a member of the media or a public figure.
First, to qualify as a public figure, a person must either have
achieved widespread fame or notoriety or be someone who became
well known through involvement in a public controversy. Second, as
noted above, to prove actual malice, the plaintiff must show that the
defendant either knew the material was false but went ahead and
published it anyway or acted with a “reckless disregard” for whether
or not it was true. This can involve an examination of the editors as to
what they knew and when they knew it in reaching their decision to
publish the material. The courts take into consideration such factors
as the nature of the news being reported, the historical
trustworthiness of the source of the information, and the time
constraints publishers are under to meet a deadline.
A prominent California case involving television personality Carol
Burnett illustrates how these principles have been applied. In Burnett
v. National Enquirer, Inc., 5
Burnett sued the National Enquirer for
publishing a four-sentence item that read:
In a Washington restaurant, a boisterous Carol Burnett had a loud argument with
another diner, Henry Kissinger. Then she traipsed around the place offering everyone a
bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a
glass of wine over one diner and started giggling instead of apologizing. The guy wasn’t
6
amused and “accidentally” spilled a glass of water over Carol’s dress.
As a preliminary matter the court determined that the National
Enquirer should be viewed as a magazine rather than a newspaper. In
defamation cases,
p. 225
p. 226
courts show more leniency toward newspapers because their short
deadlines prevent them from having enough time to fully investigate
their stories. The Enquirer’s normal lead time, however, was one to
three weeks, during which time staff could verify the accuracy of its
stories.
Next the court determined that the story was patently false and
that the Enquirer knew that to be so: “There was no ‘row’ with Mr.
Kissinger, nor any argument between the two, and what conversation
they had was not loud or boisterous.” Respondent never “traipsed
around the place offering everyone a bite of her dessert, nor was she
7
otherwise boisterous, nor did she spill wine on anyone.” Further, the
court held that the statement was libelous on its face, “a message
which reasonably carried the implication respondent’s actions were
8
the result of some objectionable state of inebriation.”
The jury awarded Ms. Burnett $300,000 in compensatory
damages and $1.3 million in punitive damages. The trial court
reduced this to $50,000 compensatory damages and $750,000
punitive damages. On appeal the court sustained the compensatory
award but remanded the case for a retrial on the issue of punitive
damages, stating that the amount of the punitive damages was
disproportionate when compared to the compensatory award. The
dissent disagreed, stating:
The fact is that this is a publication read nationally by 16 million people. The potential for
harm through a repetition of a libel by such an institution is tremendous. There are
others to be protected from the harm. If the risk to an intentional wrongdoer that he will
be adequately punished is slight, the defendant may well chance it again. It can in effect
“write it off” as an expense or cost of doing business. Thus punitive damages need to be
more than “an expense” item or “cost of doing business” which the defendant can
9
calculate and absorb. . . .
(3) Defenses to defamation
Because one of the elements of defamation is that the statement
is false, truth is an absolute defense. There are also some
circumstances when even the publication of a false statement can be
privileged. For example, judges, attorneys, jurors, and other court
personnel are protected against being held liable for comments that
are made as part of their official duties, even if the statements turn
out to be false. In 1979, in Hutchinson v. Proxmire, 10
the U.S.
Supreme Court held that Wisconsin’s Senator William Proxmire could
not be sued for derogatory comments he made on the Senate floor
when giving out one of his “Golden Fleece Awards.” However, he could
be sued for making those same remarks at a press conference and in
a press release.
Note that in the cases discussed above, typically the lawsuit was
filed against the newspaper, magazine, or television station/network
that either published or broadcast the defamatory statements. But
what about a situation
p. 226
p. 227
where the defamatory information is posted on Facebook or as part
of somebody’s tweet? The party claiming to have been defamed can
file a tort suit against the individual who posted or tweeted the
allegedly defamatory statements. However, in most cases the person
claiming defamation cannot get a judgment against the owner of the
Web site on which it was posted. This is due to Section 230 of the
Communications Decency Act of 1996 that protects website
publishers from defamation claims for comments made by others on
11
their sites.
DISCUSSION QUESTIONS
2. In the case against the National Enquirer, Carol Burnett
testified that the statements were particularly offensive to her
because of her nationally known work against alcoholism.
a. Do you think that should affect the amount of the damage
award?
b. During the trial Johnny Carson on his program The Tonight
Show denounced the National Enquirer. How do you think
the trial judge should have handled that situation?
c. Do you agree with the dissent that a large punitive award
was justified in this case? Why?
3. When using social media sites, many people are quite casual
about what they say, often posting material that could be viewed as
unpleasant, offensive, or critical of others. Under what circumstances
do you think someone could be sued for defamation based on
comments made on Twitter or Facebook? For example, consider the
case of a Massachusetts woman who sued her friend for posting a
message on Twitter stating that she was “crazy,” or the health club
owner who sued posters who gave his club a one (out of a possible
five) star review. Should such postings be actionable as defamation?
4. An interesting issue is whether presidential candidates can be
sued for lying during elections. Read the discussion found at
www.quora.com/Can-presidential-candidates-get-sued-for-lying-
to-the-general-public-during-elections. Do you think that
candidates should be able to be sued for lying? Who should be able to
bring the lawsuit? What damages could a court award as the result of
such a lawsuit?
p. 227
p. 228
d. Invasion of Privacy
The tort of invasion of privacy covers a variety of different
situations. They include
1. disclosure
2. intrusion
3. appropriation
4. false light
Disclosure and intrusion best fit our common conception of what
would be an invasion of privacy. Disclosure is the publicizing of
embarrassing private affairs, and intrusion is the unjustified intrusion
in another’s private activities. Examples of intrusion include a
neighbor eavesdropping and a photographer hounding a movie star
by following that person everywhere he or she goes. Appropriation is
defined as the unauthorized exploitive use of one’s personality, name,
or picture for the defendant’s benefit. For example, Johnny Carson
sued a Michigan corporation for renting and selling “Here’s Johnny”
portable toilets. The corporation acknowledged that “Here’s Johnny”
was the introductory slogan for The Tonight Show and in fact
coupled the phrase with a second one, “The World’s Foremost
Commodian.” The court determined that the defendant unfairly
appropriated Carson’s identity and used it for the sale of its
12
products.
Finally, false light involves the use of a picture or some other
means to infer a connection between the person and an idea or a
statement for which the individual is not responsible.
In cases involving invasion of privacy, truth is not considered to be
a valid defense. For example, it is not considered acceptable to
publicize that someone is having an affair with his or her neighbor,
even if it is true. However, “newsworthiness” is a valid defense. If the
material is of legitimate public interest — for example, the mayor
having an affair with a member of the city council — then its
publication is considered to be privileged unless it was done with
malice. That is why it is so difficult for movie stars to prove this tort
against tabloids and gossip columnists. Finally, as with other
intentional torts, consent is a defense.
Interesting issues regarding an employee’s right to privacy in
personal e-mails arise when those e-mails are created on an
employer’s computer system. Consider the case of Gina Tiberino. Ms.
Tiberino was a secretary in the Prosecuting Attorney’s Office, and the
county fired her for poor work performance related to her using e-mail
for personal matters. As most courts have done, the Washington
Court of Appeals held that employers have the right to monitor such
e-mails and could fire her for her misuse of the employer’s computer
system. However, the court stated that the county could not release
the content of those e-mails to the media as “it is the amount of time
spent on personal matters, not the content of personal e-mails . . .
13
that is of public interest.
p. 228
p. 229
e. Intentional Infliction of Emotional Distress
Traditionally, plaintiffs could recover for their emotional distress
that was caused by another tort, such as battery or false
imprisonment. More recently the courts have created a new tort that
allows plaintiffs to recover for emotional distress even absent
another type of injury. This tort of intentional infliction of emotional
distress is sometimes referred to as the tort of outrage. In order to
ensure that such claims are valid, most courts have placed severe
restrictions on what the plaintiff must prove, such as requiring that
the intentional act that causes the emotional distress be extreme and
outrageous and the emotional distress suffered be severe.
Therefore, to prove the intentional infliction of emotional distress,
a plaintiff must show
1. an intentional act
2. that is extreme and outrageous
3. and causes
4. severe emotional distress.
As to the fourth requirement, some courts add that the emotional
distress must be so severe that it results in physical injury. In the
following case, see if you agree that the supervisor’s actions were
sufficiently extreme and outrageous to support a claim of intentional
infliction of emotional distress.
Cabaness v. Thomas
232 P.3d 486 (Utah 2010)
BACKGROUND
From 1984 to 2004, Cabaness was a line working foreman at
Bountiful Power under the immediate supervision of Brent
Thomas, the superintendent of operations. The director of
Bountiful Power and Thomas’s direct supervisor was Clifford
Michaelis. While Michaelis had authority to hire and fire employees,
Thomas did not.
Numerous employees at Bountiful Power testified that Thomas
frequently used gross profanity and consistently verbally harassed,
intimidated, and ridiculed the employees he supervised. To his
subordinates, Thomas was known as “Little Hitler” or “Dr. Jekyl and
Mr. Hyde,” and the walkway to his office was known as the “green
mile,” a name from a movie depicting the pathway to the electric
chair in a prison.
Thomas frequently made the work of his subordinates harder
without providing any justification for doing so other than to assert
his authority over them. . . . When Cabaness . . . questioned why,
Thomas responded that he was the boss, and if they did not do
what he said, he would write them up for insubordination, and they
might be fired. . . .
Thomas’s conduct also evinced a disregard for safety
procedures in an occupation that relies on such procedures to
protect its employees. Around 1983 or 1984, Thomas refused
p. 229
p. 230
to let Cabaness put a ground on a pole with a primary line of 7200
volts before working on it in order to save time. On another
occasion, Thomas ignored for several months Cabaness’s
concerns regarding blown fuses on a power line near an
elementary school that Cabaness felt were potentially hazardous
for children.
. . .
Throughout Cabaness’s career with Bountiful Power, Thomas
would insult and demean him by, among other things, calling him
“dumbass,” “jackass,” and “asshole,” and using cutting sarcasm.
Thomas would occasionally tell Cabaness that he had a “piss poor
attitude.” On one occasion, Thomas told Cabaness, “You know
what your problem is? It’s your wife. You need to get rid of your
wife.” Thomas pursued this subject until Cabaness finally
responded “my wife is none of your business and my relationship
with my wife is none of your business, so drop it.” On another
occasion, Cabaness witnessed Thomas knee an employee in the
groin with enough force to cause the employee to fall to the floor in
pain, after which Thomas stated, “I guess I showed you who is
boss.”
. . . Cabaness was off work from July 23 to September 8, 2003,
due to medically-diagnosed depression attributable in significant
part to “a hostile work environment and an abusive boss.” [W] hen
Cabaness returned to work, Thomas singled him out in an
employee meeting, threatened to fire him, and criticized him about
personal issues in front of other employees.
. . .
Based on the above facts, Cabaness brought intentional
infliction of emotional distress claims against Thomas. . . .
The district court entered summary judgment in favor of . . .
Thomas, holding that as a matter of law Cabaness failed to
demonstrate that Thomas’s conduct was extreme, intolerable, and
outrageous and therefore Cabaness could not prove intentional
infliction of emotional distress.
Cabaness appealed the district court’s grant of Defendant’s
motion for summary judgment.
ANALYSIS
. . .
A claim of intentional infliction of emotional distress usually
accrues when a plaintiff suffers extreme emotional distress.
However, there are occasions when “emotional distress does not
so much occur as unfold — for example, where a defendant
subjects a plaintiff, not to a single outrageous act, but to a pattern
or practice of acts tolerable by themselves though clearly
intolerable in the aggregate.”
. . .
[R]easonable minds could differ regarding whether Thomas’s
conduct was outrageous and intolerable, and therefore the district
court erred by failing to allow Cabaness’s claim against Thomas to
proceed to a jury.
To succeed on a claim of intentional infliction of emotional
distress, a plaintiff must demonstrate that the defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of
inflicting emotional distress, or, (b) where any reasonable person would have known
that such would result; and his actions are of such a nature as to be considered
outrageous and intolerable in that they offend against the generally accepted
standards of decency and morality.
Further, “[i] t is for the court to determine, in the first instance,
whether the defendant’s conduct may reasonably be regarded as
so extreme and outrageous as to permit recovery.” However,
“[w]here reasonable men may differ, it is for the jury, subject to the
control of the court, to determine whether, in the particular case,
the conduct has been sufficiently extreme and outrageous to result
in liability.”
. . .
“To be considered outrageous, the conduct must evoke outrage
or revulsion; it must
p. 230
p. 231
be more than unreasonable, unkind, or unfair.” Additionally, we have
stated that “liability [for intentional infliction of emotional distress]
clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” However, we
recognized that while a single insult, indignity, or threat may not
give rise to liability for intentional infliction of emotional distress, a
continuous and ongoing pattern of the same may constitute
extreme, intolerable, and outrageous conduct and thus result in
liability.
. . .
Here, Cabaness has alleged an ongoing and continuous pattern
of abusive, intimidating, and harassing behavior from his
supervisor, Thomas. Throughout Cabaness’s career, Thomas
insulted and demeaned him. . . . Indeed, many employees testified
that Thomas frequently used gross profanity and consistently
verbally harassed the employees, including Cabaness. . . . Various
employees testified that Cabaness was often the focus of Thomas’
abusive behavior, especially towards the end of his employment
with Bountiful Power. . . .
Cabaness also provided evidence demonstrating that Thomas
intentionally made Cabaness’s job more difficult and stressful. . . .
In an occupation that relies on safety procedures to secure the
safety of its employees, Cabaness offered evidence demonstrating
Thomas’s disregard for the safety of Cabaness. . . . Cabaness
testified that Thomas frequently required him, and other
employees, to perform electrical work in the rain even though the
work could have been postponed and completed more safely.
In late 2003, Michaelis finally formed a committee to
investigate the complaints regarding Thomas’s harassment and
intimidation. After interviewing fifteen employees, Michaelis sent a
letter to Thomas warning him that his “intimidation needs to stop.”
When the situation failed to improve, Cabaness resigned in
January 2004. Significantly, between summer 2003 and spring
2004, all but two of the Bountiful Power employees assigned to
Thomas’s crew quit primarily due to his harassing, abusive, and
intimidating conduct.
While any of these alleged insults or indignities on their own
may not rise to the level of outrageous and intolerable conduct,
taken together, and viewed in a light most favorable to Cabaness,
we conclude that reasonable minds could differ regarding whether
Thomas’s conduct was outrageous and intolerable. Accordingly,
we hold that the district court erred when it found as a matter of
law that Thomas’s conduct was not outrageous, intolerable and
offensive to generally accepted standards of decency and morality.
Rather, because the facts, as alleged, raise genuine and material
issues regarding the level of outrageous and intolerable conduct,
summary judgment was inappropriate.
CASE DISCUSSION QUESTIONS
1. What must a plaintiff prove in order to win a case of intentional
infliction of emotional distress?
2. Do you think that the sort of “bad behavior” described in this
case is something that can be cured by the legal system or is this the
type of situation where an employee should simply either tolerate the
behavior or quit?
3. Procedurally, what had to happen next in this case for the
plaintiff to recover?
p. 231
p. 232
DISCUSSION QUESTIONS
5. What constitutes “extreme and outrageous” conduct is
obviously a troubling issue, as is how debilitating the emotional
distress must be to be seen as “severe.” Consider the facts of Harris
v. Jones, 380 A.2d 611 (1977). The plaintiff sued his employer
(General Motors) and one of his supervisors, H. Robert Jones. Jones
knew that the plaintiff suffered from a speech impediment that
caused him to stutter. Jones also knew that the plaintiff was very
sensitive about his disability. “Jones approached Harris over 30 times
at work and verbally and physically mimicked his stuttering disability.
. . . As a result of Jones’s conduct Harris was ‘shaken up’ and felt ‘like
going into a hole and hide.’ ” However, the court concluded that
Harris’s humiliation was not so intense as to meet the requirement of
being severe. Do you agree?
6. The March 1984 issue of Hustler magazine ran a parody of an
advertisement for Campari Liqueur that featured various celebrities
describing the first time they tasted Campari. Hustler’s version
presented a supposed interview with the Reverend Jerry Falwell, a
nationally prominent Protestant minister, conservative political figure,
and head of the now defunct “Moral Majority.” The “advertisement”
claimed that Falwell’s first experience with Campari was part of an
incestuous sexual encounter with his mother in an outhouse. Shortly
after the issue hit the newsstands, Falwell sued the magazine for
libel, invasion of privacy, and intentional infliction of emotional
distress. If you were the judge, how would you rule on each of these
issues?
7. Deborah Roach was a frequent guest on the Howard Stern
radio show. When she died, her sister gave a portion of her cremated
remains to a friend, who in turn brought them to a taping of Stern’s
show, because of her belief that the only happiness Roach had was
when she was on his show. During the show, Stern and others
handled various bone fragments while making vulgar remarks. The
radio show was videotaped and later broadcast on a national cable
television station. Roach’s sister sued for intentional infliction of
emotional distress. The court found a basis for the lawsuit. Do you
agree?
2. Harm to a Person’s Property
Property can be classified as either real property (land and anything
permanently attached to land) or personal property. The tort of
trespass is when someone invades your rights to real property. An
invasion of your rights to personal property can be classified as either
trespass to personal property or conversion.
a. Trespass to Land
A trespass occurs whenever
1. someone enters or causes something to enter or remain
2. on the land of another
3. without permission.
p. 232
p. 233
Examples of trespass include entering land that is posted with “No
Trespassing” signs, standing alongside someone else’s property and
throwing rocks onto the property, and tying your boat to someone
else’s dock during a storm. The last situation raises the most
common defense to trespass — that is, that the trespass was
warranted to save the defendant’s property or life.
b. Trespass to Personal Property and Conversion
Trespass to personal property occurs when someone harms or
interferes with the owner’s exclusive possession of the property but
has no intention of keeping the property. For example, if your
neighbor intentionally lets your dog loose, hoping it will never return,
your neighbor has committed the tort of trespass to personal
property. Conversion is considered the “big brother” of trespass in
that it involves the more serious taking of someone else’s property
with the intent of permanently depriving the owner. It is the civil side
of theft.
c. Defenses to Torts against Property
As mentioned above, private necessity, such as the need to tie up
a boat to someone else’s dock during a storm, may serve as a
defense to trespass. Also, generally there is the right to invade
another’s land as a public necessity (such as to put out a fire or to
catch a fleeing felon). Another defense to trespass to personal
property and conversion is rightfully retaining someone’s property.
For example, a car mechanic may rightfully retain an auto on which
he has worked until he is paid for his labor. This is known as an
artisan’s lien.
3. Other Intentional Torts
False arrest, malicious prosecution, and abuse of process are all
intentional torts that are designed to provide some protection against
misuse of the legal system. False arrest occurs when a person is
arrested (by either a law officer or a citizen) without probable cause
and when not covered by special privilege. Malicious prosecution
and abuse of process both involve malicious and improper use of the
courts or other forms of legal proceedings. Note that the plaintiff
must prove that the behavior was malicious (that is, that the person
proceeded even though the charges were known to be invalid) and
not just a mistake.
Finally, there are intentional torts related to business dealings.
Fraud, or intentional misrepresentation, involves (1) the intent to
induce reliance on the misrepresentation, (2) knowledge that the
misrepresentation is false or a reckless disregard for the truth, (3)
justifiable reliance, and (4) harm. Fraud can form the basis for either a
tort or a contract claim. We will discuss it more fully in the next
chapter on contracts.
p. 233
p. 234
The tort of interference with a contractual relationship prohibits
one from inducing a party to breach a contract or interfering with the
performance of a contract. Intentionally interfering with a contractual
relationship can prove to be very expensive, as is illustrated by the
case of Pennzoil v. Texaco. Pennzoil had contracted with the Getty Oil
Company to purchase Getty Oil at $122.05 per share. Before they
could do so, however, Texaco offered Getty a higher price per share,
which Getty accepted. Pennzoil took Texaco to court and won a
$10.53 billion judgment on its claim of tortious interference. Although
that amount was later reduced to a $3 billion settlement, the case still
stands as a powerful warning against intentionally derailing
14
contractual arrangements.
Figure 7-2 summarizes the elements and defenses of the most
common intentional torts.
B. NEGLIGENCE
The most common tort actions involve negligence. Negligence is a
failure to act as a reasonably prudent and careful person is expected
to act in similar circumstances. It is a careless inflicting of an injury
as opposed to an intentional one. Negligence actions can arise from
such diverse circumstances as a slip on a wet spot on a supermarket
floor to alleged medical malpractice. The four basic elements in a
negligence case are duty, breach of duty, causation, and harm.
1. The Elements of Negligence
In Chapter 1 you learned that not every problem is a problem for
which the courts will supply a remedy. For example, to be found
negligent, a person must have acted unreasonably under the
circumstances. More specifically, the courts look to the following four
elements to establish negligence:
1. The defendant must owe a duty to the plaintiff to act
reasonably, and
2. the defendant must have breached that duty
3. thereby causing
4. the plaintiff harm.
In the following case, the plaintiffs learned that a feeling of
outrage is not enough to support a cause of action.
p. 234
p. 235
Figure 7-2 Summary of Intentional Torts
p. 235
p. 236
Ewans v. Wells Fargo Bank
389 Fed. Appx. 383 (5th Cir. 2010)
Yvonne Ewans, Camille Lewis, Lewis’s minor daughter,
Saravanan Rathinasabapathy, and Nithya Saravanan sued Wells
Fargo Bank in state court under Texas tort law. Wells Fargo
removed to the Northern District of Texas and won summary
judgment on all claims. The plaintiffs appealed. . . . After reviewing
the parties’ submissions and the summary judgment record, we
cannot but agree that the district court came to the right
conclusion.
Cindy Pirrello worked as a teller at a Wells Fargo branch in
Frisco, Texas, and at 1:30 in the afternoon . . . she had a half-hour
left before closing time. That is when she watched two men walk
in whom she had never seen before. As they sat down together at
loan officer Matt Palmer’s desk, Pirrello for a second noticed what
looked like a gun handle on one man’s right hip, but — before she
could get a better look — he had pulled his shirt down over his
waistband.
Pirrello told her shift supervisor, Sonia Alonzo, that one of the
men might have a gun. Alonzo told Pirrello not to be crazy and
went back to her work. Pirrello could not brush it off so easily,
remembering that bank employees had been asked to keep an eye
out for suspicious activity; an unknown assailant recently had
gotten away after robbing a nearby Wells Fargo. Plus, a technician
named John Rooney was performing maintenance on the vault,
leaving the bank’s security compromised.
Pirrello relayed her concern to another banker, Chris Maiwald,
whose desk sat adjacent to Palmer’s. Maiwald verified the holster
on the man’s hip, but — because of the pulled-down shirt — could
not tell if it housed a gun. Maiwald also noticed the men acting
strangely, particularly the man with the bulge under his shirt. He
kept getting up, talking on his cell phone, pacing around, and
looking out the windows. Then Maiwald saw an SUV parked out
front. It had tinted windows and the ignition running. One door was
wide open. Maiwald walked back into the vault to ask Rooney, the
technician, if he owned the SUV; he did not.
. . .
Maiwald, a former sheriff’s deputy in Randall County, Texas,
agreed they had to play it safe, that they should call for backup to
investigate. After making a group decision, . . . Pirrello tripped the
silent alarm. Wells Fargo’s private security center called the branch
to see what was going on — to make sure it was not a false alarm.
Pirrello answered and explained right off the bat “we’re not robbed.”
She went on to say there were “two males sitting at one of our
personal desks” and “we have a possibility that he has a gun on his
hip, and his car is parked right outside the door and they’ve been
on the phone since they got here.” Pirrello added “our vault [is] wide
open because we had a problem last night.”
The private security operator told Pirrello to call 911. . . .
Maiwald then took over the call:
Mr. Maiwald: If we could, could we have a police officer, not in
uniform preferably?
911 Operator: They’re coming now on a robbery.
Mr. Maiwald: Anyways. (Laughter) You might want to — you
might want to stop that. It’s not a robbery in progress.
911 Operator: Okay, sir. We have one officer that’s there right
now. What is actually going on there, then?
Mr. Maiwald: Nothing. . . . Very suspicious. So — you know, and
I apologize for this, but that said, probably what we need is maybe
just the officer to either, you know, walk in and say hi to everybody
or just stay in his car out front. I don’t know what your procedure is
on that.
The police did not just send one officer to investigate. They
sent in no fewer than ten officers. They set up a perimeter, and the
SUV — the getaway car — started to drive off. The police
p. 236
p. 237
stopped it and ordered the driver to call the man inside the bank,
the one with the bulge. Once the police had the man on the phone,
they ordered him out of the bank — had him crawl out the front
door on his hands and knees. After subduing him, the police
stormed the bank and captured the other man.
Nobody had a gun. Neither man had any nefarious intentions.
To the contrary, both are hard-working and law-abiding. The man
with the hip holster was Ewans, and the holster was for his phone.
He had just sold his car to the other man, Saravanan. Ewans’s
girlfriend, Lewis, had given them a ride to Wells Fargo to secure a
car loan. Lewis, who drove the tinted SUV, had her young daughter
in the car — which is why she left it running and kept a door open
while waiting in front of the bank.
. . .
Ewans’s negligence claims must fail under an objective
standard. Nobody can argue that the plaintiffs — and particularly
Ewans — suffered great embarrassment. But just because
somebody has been hurt does not mean that the law will find fault.
Indeed, harm is but a fraction of the test. For the plaintiffs to
recover, they must show that Wells Fargo (1) owed them a duty of
care, (2) which it breached, (3) which in turn caused their damages.
The focus here is on prong two, whether Wells Fargo lived up to its
duty of care — whether its employees acted like the reasonable
person would.
After Wells Fargo moved for summary judgment, the plaintiffs
failed to point to evidence establishing a genuine issue of material
fact that the bank employees acted unreasonably under the
circumstances. . . .
Pirrello, Maiwald, and Zlotnik knew that a different Wells Fargo
had recently been robbed. Their vault was exposed. Two men, not
regular customers of the bank, walked in near closing time and
would not sit still. They kept talking on their phones, pacing,
looking around the bank, and searching out the windows. One
employee saw what might have been a gun, and the other
employees acknowledged a bulge of some kind hidden under one
man’s shirt. Worse, an unknown SUV was parked — running, with a
door open — immediately in front of the bank. The employees did
not know if the men were casing the joint. They did not know if the
car was a getaway car. Under these circumstances, it was
reasonable to want to call for an investigatory backup. When they
did, the employees told the 911 operator that there was no robbery
and specifically asked for just one police officer either to stay
outside in his car or to do a walk-through.
. . .
Everybody involved likely wishes [none of this ever] happened,
or, at least, that it had not happened as it did. In a perfect world,
Saravanan gets his loan and Ewans sells his car; Pirrello routinely
closes the bank and the police patrol without incident; everyone
goes home to enjoy a North Texas Saturday night. But tort law
does not require the optimal outcome, just reasonable behavior —
and will not here compensate Ewans, even though he innocently
suffered. Doing so would punish ordinarily prudent bankers,
bankers who might then be deterred from sounding the alarm in
dangerous situations. When it comes to security, the law requires
us to accept reasonable false positives in order to avoid the more
catastrophic false negatives.
AFFIRMED.
CASE DISCUSSION QUESTIONS
1. Which element of negligence were the plaintiffs unable to
prove?
2. Do you agree with the court’s last statement that in the case of
security, it is better to have false positives than to risk false
negatives?
p. 237
p. 238
In the following sections, we will discuss in more detail the four
elements of negligence: duty, breach, cause, and harm.
a. Duty
The law imposes a duty to act with “due care.” This due care
standard is defined in terms of how a “reasonably prudent person”
would act in the same situation. If the person has some specialized
type of training, such as a medical degree, then that individual is
expected to act not just as a reasonable person would act but also as
a reasonable person with medical training would act. Furthermore,
the greater the inherent danger is in a particular situation, the more
cautious the individual is expected to be. The duty is owed by all
persons within the society to a degree that is consistent with their
ages and physical and mental conditions. Jurisdictions differ,
however, as to whom it is owed. Most states take the position that
this duty to act with due care is owed to anyone who suffers injuries
as a proximate or direct result of the person’s actions. Other states
say the duty applies only to those persons for whom there was a
foreseeable risk.
What legal duty you owe to others also varies depending on your
relationship to that other person. The closer and more direct the
relationship, the greater the likelihood that a court will find a duty. For
example, a doctor clearly has a duty to use due care in treating her
patients. However, does the doctor also owe a duty to the patient’s
family? For instance, if the doctor failed to diagnose a contagious
disease and the patient transmitted that disease to his wife, should
the wife be able to sue the doctor?
Another example of how the relationship between the parties can
determine the degree of duty owed is seen in the varying levels of
duty a landowner owes to different types of people on his or her land.
Many states, using a standard based solely on the status of the
person injured, hold that a higher duty is owed to someone lawfully
invited and present than to a trespasser. Further, they may view the
duty owed to an adult trespasser as less than that owed to a child
trespasser. Other states simply say that landowners owe a duty of
care to everyone on their land. However, the level of duty varies with
the circumstances, including whether the person harmed was a
trespasser. While the result may be the same, the approaches are
fundamentally different. A court in the latter type of jurisdiction would
not base its analysis solely on the status of the person injured but
would take into account everything that contributed to the injury.
One of the circumstances that might influence a finding of
negligence is whether the defendant was acting under an emergency
situation. For example, in a very colorful opinion, Cordas v. Peerless
Transportation Co., 15
New York’s highest court was faced with the
following situation: A thief was running down a Manhattan street
being chased by his victim and a group of concerned citizens. The
thief, armed with a pistol, jumped into a parked taxicab and ordered
the driver to drive. The driver proceeded about 15 feet and then:
quickly threw his car out of first speed in which he was proceeding, pulled on the
emergency, jammed on his brakes, and, although he [thought] the motor was still
running,
p. 238
p. 239
swung open the door to his left and jumped out of his car. He confesses that the only
act that smacked of intelligence was that by which he jammed the brakes in order to
throw off balance the hold-up man who was half-standing and half-sitting with his pistol
16
menacingly poised.
Mrs. Cordas and her two children were standing on an adjacent
sidewalk and were injured by the driverless taxi. They sued the
taxicab company, claiming that the driver acted negligently in
jumping to safety and leaving the moving vehicle uncontrolled.
The court stated that “the test of actionable negligence is what
reasonably prudent men would have done under the same
17
circumstances.” The court then held that when faced with an
emergency a person is not required to exercise the same mature
judgment that is expected under circumstances where there is an
opportunity for deliberation. In this case the driver “ — the ordinary
man in this case — acted in a split second in a most harrowing
experience. . . . The court is loathe to see the plaintiffs go without
recovery even though their damages were slight, but cannot hold the
18
defendant liable upon the facts adduced at the trial.” Therefore,
19
plaintiffs were not entitled to recover from the cab driver.
Finally, the courts sometimes couch their discussion of duty in
terms of misfeasance versus nonfeasance. Generally, you only owe a
duty to refrain from harming someone. If you do actually harm
someone, that is misfeasance. Further, there is no duty to prevent
harm to those with whom you have no direct contact. Therefore,
generally nonfeasance, the absence of action, cannot lead to liability.
However, in order to find liability, a court might label an activity as
misfeasance even though on the surface it appeared as though the
defendant had not directly caused the injury. This was the case in
Weirum v. RKO General Inc. 20
In order to increase its listening
audience, a rock station held a contest wherein a traveling disk jockey
gave out clues to his location. The first to arrive on the scene would
receive a prize. Two teenagers, in an attempt to beat each other to the
prize, drove in excess of 80 miles an hour and forced the plaintiff’s car
off the road. The court stated:
The primary question for our determination is whether defendant owed a duty to
decedent arising out of its broadcast of the giveaway contest. The determination of duty
is primarily a question of law. It is the court’s “expression of the sum total of those
considerations of policy which lead the law to say that the particular plaintiff is entitled
to protection” (Prosser, Law of Torts (4th ed. 1971) pp. 325-326). Any number of
considerations may justify the imposition of duty in particular circumstances, including
the guidance of history, our continually refined concepts of morals and justice, the
convenience of the rule, and social judgment as to where the loss should fall. While the
question whether one owes a duty to another must be decided on a case-by-case basis,
every case is governed by the rule of general application that all persons are required to
use ordinary care to prevent others from being injured as the result of their conduct.
p. 239
p. 240
However, foreseeability of the risk is a primary consideration in establishing the element
21
of duty.
The court found that the risk to the plaintiff was foreseeable. While
acknowledging that normally, absent a special relationship, no one
owes a duty to control the conduct of third parties, the court stated
that the rule does not apply in a case such as this one where the
radio station’s conduct is what created the undue risk of harm.
Misfeasance exists when the defendant is responsible for making the plaintiff’s position
worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the
defendant has failed to aid plaintiff through beneficial intervention. As section 315 [of
the Restatement of the Law of Torts, Second] illustrates, liability for nonfeasance is
largely limited to those circumstances in which some special relationship can be
established. If, on the other hand, the act complained of is one of misfeasance, the
question of duty is governed by the standards of ordinary care discussed above. Here,
there can be little doubt that we review an act of misfeasance to which section 315 is
inapplicable. Liability is not predicated upon defendant’s failure to intervene for the
benefit of decedent but rather upon its creation of an unreasonable risk of harm to
22
him.
DISCUSSION QUESTION
8.In the Weirum case the defendants argued that finding them
liable would lead to situations in which “entrepreneurs will henceforth
be burdened with an avalanche of obligations: an athletic department
will owe a duty to an ardent sports fan injured while hastening to
purchase one of a limited number of tickets; a department store will
23
be liable for injuries incurred in response to a ‘while-they-last’ sale.”
How do you think the court responded?
As the Weirum court noted, issues of duty usually revolve around
whether the plaintiff was someone whom the defendant could
foresee would be harmed by his actions. Courts frequently say that
duty is a question of law to be determined by the judge, while
foreseeability is a question of fact to be determined by the jury.
It is always to the defendant’s benefit to end a lawsuit as early as
possible to save litigation expenses and to put the matter to rest. On
the other hand, it is often to the benefit of the plaintiff to go to trial,
especially when the facts may arouse the jury’s sympathy. Therefore,
in a negligence action the defendant will try to argue whenever
possible that the defendant owed no duty to the plaintiff. As duty is a
question of law, the judge can resolve the matter on a motion to
dismiss. If the judge determines that there was no duty, then the
plaintiff loses and the case is dismissed. However, the plaintiff will try
to characterize the issue as a question of foreseeability, thereby
necessitating a trial. Then the jury, after
p. 240
p. 241
hearing all of the evidence and seeing the extent of the plaintiff’s
injuries, can resolve the issue of foreseeability as a question of fact.
At times, even though the person injured was a “foreseeable
plaintiff,” for policy reasons the courts will state that no duty is owed
to the plaintiff. For example, in New York, until the courts were
confronted with the following case, an infant harmed while a fetus
had no right to sue for his or her negligently caused injuries. While
reading the case, pay particular attention to the reasons the court
gives for its decision to expand the range of those to whom a duty is
owed to include a viable fetus.
Woods v. Lancet
303 N.Y. 349, 102 N.E.2d 691 (1951)
DESMOND, J.
The complaint served on behalf of this infant plaintiff alleges
that, while the infant was in his mother’s womb during the ninth
month of her pregnancy, he sustained, through the negligence of
defendant, such serious injuries that he came into this world
permanently maimed and disabled. Defendant moved to dismiss
the complaint as not stating a cause of action, thus taking the
position that its allegations, though true, gave the infant no right to
recover damages in the courts of New York. The Special Term
granted the motion and dismissed the suit, citing Drobner v. Peters
(232 N.Y. 220). In the Appellate Division one Justice voted for
reversal with an opinion in which he described the obvious
injustice of the rule, noted a decisional trend (in other States and
Canada) toward giving relief in such cases, and suggested that
since Drobner v. Peters (supra) was decided thirty years ago by a
divided vote, our court might well re-examine it.
The four Appellate Division Justices who voted to affirm the
dismissal below, wrote no opinion except that one of them stated
that, were the question an open one and were he not bound by
Drobner v. Peters (supra), he would hold that “when a pregnant
woman is injured through negligence and the child subsequently
born suffers deformity or other injury as a result, recovery
therefore may be allowed to the child, provided the causal relation
between the negligence and the damage to the child be
established by competent medical evidence.” (278 App. Div. 913.) It
will hardly be disputed that justice (not emotionalism or
sentimentality) dictates the enforcement of such a cause of
action. The trend in decisions of other courts, and the writings of
learned commentators, in the period since Drobner v. Peters was
handed down in 1921, is strongly toward making such a recovery
possible. The precise question for us on this appeal is: shall we
follow Drobner v. Peters, or shall we bring the common law of this
State, on this question, into accord with justice? I think, as New
York State’s court of last resort, we should make the law conform
to right.
Drobner v. Peters (supra), like the present case, dealt with the
sufficiency of a complaint alleging prenatal injuries, tortiously
inflicted on a nine-month foetus, viable at the time and actually
born later. There is, therefore, no material distinction between that
case and the one we are passing on now. However, Drobner v.
Peters must be examined against a background of history and of
the legal thought of its time and of the thirty years that have
passed since it was handed down. . . . The movement toward a
more just treatment of such claims seems to have
p. 241
p. 242
commenced with the able dissent in the Allaire case, which urged
that a child viable but in utero, if injured by tort, should, when born,
be allowed to sue. . . .
Drobner v. Peters (supra), this court, finding no precedent for
In
maintaining the suit, adopted the general theory of Dietrich v.
Northampton (supra), taking into account, besides the lack of
authority to support the suit, the practical difficulties of proof in
such cases, and the theoretical lack of separate human existence
of an infant in utero. It is not unfair to say that the basic reason for
Drobner v. Peters was absence of precedent. However, since 1921,
numerous and impressive affirmative precedents have been
developed. . . . Of law review articles on the precise question there
is an ample supply. They justify the statement in Prosser on Torts,
at page 190, that: “All writers who have discussed the problem
have joined in condemning the existing rule, in maintaining that the
unborn child in the path of an automobile is as much a person in
the street as the mother, and urging that recovery should be
allowed upon proper proof.”
What, then, stands in the way of a reversal here? Surely, as an
original proposition, we would, today, be hard put to it to find a
sound reason for the old rule. Following Drobner v. Peters (supra)
would call for an affirmance but the chief basis for that holding
(lack of precedent) no longer exists. And it is not a very strong
reason, anyhow, in a case like this. Of course, rules of law on which
men rely in their business dealings should not be changed in the
middle of the game, but what has that to do with bringing to justice
a tortfeasor who surely has no moral or other right to rely on a
decision of the New York Court of Appeals? Negligence law is
common law, and the common law has been molded and changed
and brought up-to-date in many another case. Our court said, long
ago, that it had not only the right, but the duty to re-examine a
question where justice demands it. That opinion notes that
Chancellor Kent, more than a century ago, had stated that upwards
of a thousand cases could then be pointed out in the English and
American reports “which had been overruled, doubted or limited in
their application,” and that the great Chancellor had declared that
decisions which seem contrary to reason “ought to be examined
without fear, and revised without reluctance, rather than to have
the character of our law impaired, and the beauty and harmony of
the system destroyed by the perpetuity of error.” And Justice
Sutherland, writing for the Supreme Court in Funk v. United States
(290 U.S. 371, 382), said that while legislative bodies have the
power to change old rules of law, nevertheless, when they fail to
act, it is the duty of the court to bring the law into accordance with
present day standards of wisdom and justice rather than “with
some outworn and antiquated rule of the past.” No reason appears
why there should not be the same approach when traditional
common-law rules of negligence result in injustice.
The sum of the argument against plaintiff here is that there is
no New York decision in which such a claim has been enforced.
Winfield’s answer to that (see U. of Toronto L.J. article, supra, p.
29) will serve: “if that were a valid objection, the common law
would now be what it was in the Plantagenet period.” And we can
borrow from our British friends another mot: “When these ghosts
of the past stand in the path of justice clanking their mediaeval
chains the proper course for the judge is to pass through them
undeterred” (Lord Atkin in United Australia, Ltd., v. Barclay’s Bank,
Ltd., [1941] A.C. 1, 29). We act in the finest common-law tradition
when we adapt and alter decisional law to produce common-sense
justice.
The same answer goes to the argument that the change we
here propose should come from the Legislature, not the courts.
Legislative action there could, of course, be, but we abdicate our
own function, in a field peculiarly nonstatutory, when we refuse to
reconsider an old and unsatisfactory court-made rule. . . .
Two other reasons for dismissal (besides lack of precedent) are
given in Drobner v. Peters (supra). The first of those, discussed in
many of the other writings on the subject herein cited, has to do
with the supposed difficulty of proving or disproving that certain
injuries befell the unborn
p. 242
p. 243
child, or that they produced the defects discovered at birth, or later.
Such difficulties there are, of course, and, indeed, it seems to be
commonly accepted that only a blow of tremendous force will
ordinarily injure a foetus, so carefully does nature insulate it. But
such difficulty of proof or finding is not special to this particular
kind of lawsuit (and it is beside the point, anyhow, in determining
sufficiency of a pleading). Every day in all our trial courts (and
before administrative tribunals, particularly the Workmen’s
Compensation Board), such issues are disposed of, and it is an
inadmissible concept that uncertainty of proof can ever destroy a
legal right. The questions of causation, reasonable certainty, etc.,
which will arise in these cases are no different, in kind, from the
ones which have arisen in thousands of other negligence cases
decided in this State, in the past.
The other objection to recovery here is the purely theoretical
one that a foetus in utero has no existence of its own separate
from that of its mother, that is, that it is not “a being in esse.” We
need not deal here with so large a subject. It is to be remembered
that we are passing on the sufficiency of a complaint which
alleges that this injury occurred during the ninth month of the
mother’s pregnancy, in other words, to a viable foetus, later born.
Therefore, we confine our holding in this case to prepartum injuries
to such viable children. Of course such a child, still in the womb is,
in one sense, a part of its mother, but no one seems to claim that
the mother, in her own name and for herself, could get damages
for the injuries to her infant. To hold, as matter of law, that no
viable foetus has any separate existence which the law will
recognize is for the law to deny a simple and easily demonstrable
fact. This child, when injured, was in fact, alive and capable of
being delivered and of remaining alive, separate from its mother.
We agree with the dissenting Justice below that “To deny the
infant relief in this case is not only a harsh result, but its effect is to
do reverence to an outmoded, timeworn fiction not founded on fact
and within common knowledge untrue and unjustified.”
The judgments should be reversed, and the motion denied, with
costs in all courts.
LEWIS, J. (dissenting). I agree with the view of a majority of the
court that prenatal injury to a child should not go unrequited by the
one at fault.
If, however, an unborn child is to be endowed with the right to
enforce such requital by an action at law, I think that right should
not be created by a judicial decision on the facts in a single case.
Better, I believe, that the right should be the product of legislative
action taken after hearings at which the Legislature can be
advised, by the aid of medical science and research, not only as to
the stage of gestation at which a foetus is considered viable, but
also as to appropriate means — by time limitation for suit and
otherwise — for avoiding abuses which might result from the
difficulty of tracing causation from prenatal injury to postnatal
deformity. . . .
Accordingly, I dissent and vote for affirmance.
CASE DISCUSSION QUESTIONS
1. Reading this case we learned almost nothing about the facts
that gave rise to this lawsuit. What procedural reason explains why
we do not know very many of the facts?
2. Why did the court decide to overrule Drobner v. Peters?
3. What limitations did the court put on its holding? What
difficulties can you foresee this creating for future litigants?
4. Do you agree with the court that this issue was a matter for
judicial as opposed to legislative change? Why?
p. 243
p. 244
5. The Massachusetts Supreme Judicial Court was faced with the
following fact scenario. A daughter wished to sue her mother for
negligence that stemmed from a car accident while the child was a
fetus. The mother allegedly drove her car through an intersection,
causing a collision with another vehicle. The daughter was born
prematurely four days later. Her premature birth caused her a number
of respiratory problems that plagued her with severe breathing
difficulties. Assuming the court were to follow the reasoning of the
Woods v. Lancet decision, how do you think the Massachusetts court
decided? Why?
6.Assume a baby is born already addicted to cocaine because of
his mother’s substance abuse while she was pregnant. Who can the
baby sue?
Two other types of negligence cases raise fundamental issues
about the duty of care towards expectant parents and their children
while those children are still in utero: wrongful life and wrongful birth.
Wrongful life involves a child suing on the basis that but for
someone’s negligence the child never would have been born.
Wrongful birth, on the other hand, involves parents suing over the
birth of a child. In either case, these types of lawsuits raise the very
fundamental question of whether a defendant should be liable for
negligently causing the birth of a child. The courts have arrived at
inconsistent answers to this question. These situations typically arise
when a physician negligently fails to diagnose a pregnancy or
negligently performs a sterilization procedure. One difficulty for the
courts has been the problem of trying to weigh the costs of raising a
child against the value of the life and the joy of parenthood. Another
problem relates to the difficulty in assessing damages.
Courts frequently have simply allowed recovery for the costs of
the failed medical procedure. On the other hand, when the child is
born with significant special needs, the courts are more willing to
allow recovery for the costs associated with raising the child minus
the costs associated with raising a healthy child
b. Breach
In order to determine if someone has breached the duty of due
care, the court considers all the circumstances. In evaluating those
circumstances, the actions of the defendant are measured by an
objective standard. That is, the jury is asked to consider what a
reasonable person would have done.
In order to prove how a reasonable professional would have acted,
the plaintiff will be required to call an expert witness to testify as to
the professional standard of care and how in the expert’s opinion the
defendant breached that standard. For example, in a case involving
alleged medical malpractice by a pediatric oncologist, the plaintiff
would call as an expert witness a doctor specializing in that field.
Sometimes the defendant’s actions violate a statute. If that
statute’s purpose is to protect the public, the plaintiff belongs to the
group of persons the statute was meant to protect, and violation of
the statute was a direct cause of the plaintiff’s injury, then some
states will hold that violation of the statute is negligence per se. In
other states violation of such a statute is only evidence of negligence
and can be rebutted. For example, assume there is a state statute
prohibiting the sale of firearms to minors. A store owner sells a gun to
a minor, and the minor, while playing a game of “chicken,” discharges
the gun, injuring another minor. If the injured minor sued the store
owner, he would argue that the purpose of the statute was public
p. 244
p. 245
protection, that he belonged to that group the statute was designed
to protect, and finally that the seller’s violation of the statute directly
caused his injury. In those states that hold that violation of such a
statute is negligence per se, the store owner would be found liable
based on his violation of the statute. In those states where the
presumption of negligence can be rebutted, the store owner would try
to introduce evidence showing that his act of selling the gun and its
accidental discharge were too removed from each other to make it
fair to hold him responsible.
DISCUSSION QUESTIONS
9. Most states have statutes prohibiting the sale of alcohol to a
minor. If a store sold alcohol to a minor and the minor while
intoxicated drove an automobile that collided with and killed a cyclist,
would the liquor store owner be held liable as to the deceased cyclist?
10.On an icy, snow-covered road the plaintiff lost control of her
car, skidded across the center line, and collided with a road grader,
driven by the defendant. The defendant did not have the statutorily
required class B driver’s license. The plaintiff, who was severely
injured in the accident, sued the defendant under the theory of
negligence per se. How do you think the court ruled and why?
Another concept that can sometimes be used by the plaintiff to
show negligence is the doctrine of res ipsa loquitur — the thing
speaks for itself. Res ipsa loquitur applies in those situations where
the event ordinarily would not have happened unless someone was
negligent, the cause of the injury was under the defendant’s exclusive
control, and the injury was not due to the plaintiff’s actions. For
example, elevators usually do not drop, panes of glass usually do not
fall out of windows, and planes do not crash absent someone’s
negligence. In those types of situations the court will assume that the
defendant was negligent without the plaintiff having to prove the
precise nature of that negligence.
Because in each case involving breach the court must evaluate
the behavior given all the circumstances, the specific facts become
very important. In reading the following case pay attention to the
particular facts that you think influenced the court’s determination
that there was no breach of duty. Even though the plaintiff in this
case was 13, notice how the court uses the archaic term “infant”
when referring to him.
Sauer v. Hebrew Institute of Long Island, Inc.
17 A.D.2d 245, 233 N.Y.S.2d 1008 (1962)
BERGAN, J.
The infant plaintiff, a camper at defendant’s Summer camp,
was injured while playing a game supervised by defendant’s
personnel. The infant was 13 years old and the game was a “water
fight” between groups of campers of similar age, played on a
grass-covered area in which opposing groups of boys doused each
other with water from cups or water pistols.
In running away from an opponent, the infant plaintiff slipped
on the grass and struck his head on a concrete walk at the side of
the grass
p. 245
p. 246
area. After a trial before the court without a jury, an award of
$15,000 has been made to infant plaintiff and nominal damages to
his father.
In our view of the record, this result is not warranted. The
defendant, as the operator of a camp for boys, could not
reasonably be made responsible in damages for the consequences
of every possible hazard of play activity. It was required, rather, to
guard against dangers which ought to have been foreseen in the
exercise of reasonable care.
It has not been demonstrated that the water fight game was
more hazardous than any ordinary camp activity involving running.
It was inevitable in the game that the grass would become wet;
and, indeed, in any such game among 13-year-old boys, that there
would be tumbles and falls whether it was wet or dry.
To impose liability in this situation is to interdict the game itself,
which in turn would so sterilize camping activity for boys as to
render it sedentary. It would take a keen sense of the prescient to
envisage that in running in the game the infant plaintiff would slip
at the very point in the area where there was a concrete walk. Nor
is it, indeed, clearly demonstrated that, in view of the infant’s
plaintiff’s bare feet, the wetness of the grass played any effective
part in his falling.
The Trial Judge felt that the game itself “[had] every aspect of
innocent play”; that the supervision was adequate and there was
no “defect in the grounds on which the contest took place.” (33
Misc. 2d 785, 786.) He felt, however, that the game should have
been played on sand and not on grass. This retrospective view of
how the camp should have managed the game, upon which there
can be reasonable difference of opinion, is insufficient to impose a
liability on defendant, either as an evaluation of the facts of the
case, or as a matter of law.
The judgment for plaintiffs should be reversed on the law and
the facts and judgment entered for defendant, without costs.
CASE DISCUSSION QUESTIONS
1. Why did the court find that the camp was not liable for the
boy’s injury? Do you agree with that decision? Why?
2. What facts do you think were most important in helping the
court reach its decision?
c. Cause
In a tort action the defendant’s actions must be the cause of the
plaintiff’s injuries. Under one commonly used test, referred to as the
“but for” standard, it is necessary to establish that if the defendant
had not acted in that manner, the plaintiff would not have been
injured. This is also known as the actual cause or cause in fact.
Sometimes there is more than one “cause” of an injury. When there
are concurrent causes, the court asks if any one of them was a
substantial factor in causing the injury. Under the “substantial factor”
test, liability is imposed if the defendant’s action is shown to be a
substantial factor in causing the plaintiff’s injuries.
Sometimes it is impossible for the plaintiff to know who of several
defendants was responsible for the injury. Such was the situation in
the classic case of Summers v. Tice 24
The two defendants and the
plaintiff had gone hunting. Both defendants shot at the same time,
and the plaintiff was injured. The plaintiff was
p. 246
p. 247
unable to show whose gun had caused the injury. The court held that
the burden was on the defendants to show who was liable, and
absent such a showing, both were liable. A more modern variant of
this theory was adopted by the California Supreme Court in Sindell v.
Abbott Laboratories. 25
In that case the plaintiff had developed
cancer, allegedly because her mother took the product
diethylstilbestrol (DES) while pregnant. The plaintiff’s major roadblock
in proving her case was that approximately 200 manufacturers had
produced DES, and she had no way of knowing which specific
company had produced the DES her mother had taken. Under a
market share theory, the court held that each of the manufacturers
would be held responsible based on its market share at the time the
mother took DES. Not all states have accepted either Summers v.
Tice or the market
26
share theory of liability under Sindell v. Abbot
Laboratories. 27
The second prong of the requirement that the defendant’s actions
“cause” the injury is known as proximate cause. For a defendant’s
actions to be considered the proximate cause, a natural and
continuous causal sequence must be shown between action and
harm that is unbroken by any efficient intervening cause. In deciding
cases in which determining the proximate cause is a key issue, the
courts frequently wrestle with unforeseeable consequences and
intervening forces. For example, the courts are sometimes faced with
chain-reaction situations in which a person’s actions lead to an event
that in turn leads to several other events that eventually impact other
people. Is everyone along the chain to be held responsible under the
theory that but for their actions, no injury would have happened, or is
it more just to say that only those actors most immediately involved
in the injury should be held responsible?
As you will see, this notion of proximate cause is not really about
cause at all but rather represents a policy decision that at some point
a defendant will not be held responsible for every consequence of
every action. Just as a pebble thrown into a pond sends out ripples of
ever-decreasing strength, every action sends out repercussions of
ever-decreasing importance. At some point we say that the
consequences are too remote from the original action to hold the
actor responsible. There is an old nursery rhyme that references this
concept, “for want of a nail the shoe was lost, for want of the shoe the
horse was lost, for want of the horse the rider was lost, for want of
the rider the message was lost, for want of the message the battle
was lost, for want of the battle the war was lost, for want of the war
the kingdom was lost, all for the want of the horseshoe nail.”
Assume Ms. Farmer takes a lantern with her to her barn in order
to milk her cow and thoughtlessly places the lantern next to the cow,
who kicks it over. The barn catches on fire. The fire spreads to the
neighbor’s field, which also catches on fire. No major harm is done
except that the ensuing group of gawkers, as well as the multiple fire-
fighting and police vehicles, blocks traffic for over
p. 247
p. 248
an hour. As a result, Mr. Smith, who is on his way to an important
appointment, misses the appointment and consequently is fired.
Should the neighbor be able to sue Ms. Farmer for the damage to his
field? Most certainly. Should Mr. Smith be able to sue Ms. Farmer for
his lost job? Most likely no. Why? In both cases Ms. Farmer was the
“but for” cause of the injury. But most courts would probably say that
the foreseeability of the harm to Mr. Smith was too remote to hold
Ms. Farmer accountable. They might phrase this either as a lack of
duty to Mr. Smith (an unforeseeable plaintiff) or as a lack of
proximate cause (an unforeseeable injury). In either case the issue
boils down to one of policy; that is, is this the type of injury for which
we want to hold Ms. Farmer accountable?
As you read negligence cases, you will notice that the courts often
confuse the issues of duty of care and proximate cause. This is
because both are based on the concept of foreseeability. In order for
a duty to be present, harm to that person must be foreseeable.
However, even if the defendant’s actions caused the harm, if that
particular harm was not foreseeable, the concept of proximate cause
says that, for policy reasons, we will no longer hold the defendant
liable.
(1) Palsgraf v. Long Island Railroad Company
The following classic case is probably the most famous tort
decision ever written. However, as you will see from reading the case,
even the most gifted legal jurists have difficulty differentiating
between duty and proximate cause, as both are based on the concept
of foreseeability. As you read the case, ask yourself, was the railroad
not liable because it owed no duty to Mrs. Palsgraf or because its
employee’s actions were not the proximate cause of her harm?
Palsgraf v. Long Island Railroad Company
248 N.Y. 339, 162 N.E. 99 (1928)
CARDOZO, Ch. J.
Plaintiff was standing on a platform of defendant’s railroad
after buying a ticket to go to Rockaway Beach. A train stopped at
the station, bound for another place. Two men ran forward to
catch it. One of the men reached the platform of the car without
mishap, though the train was already moving. The other man,
carrying a package, jumped aboard the car, but seemed unsteady
as if about to fall. A guard on the car, who had held the door open,
reached forward to help him in, and another guard on the platform
pushed him from behind. In this act, the package was dislodged,
and fell upon the rails. It was a package of small size, about fifteen
inches long, and was covered by a newspaper. In fact it contained
fireworks, but there was nothing in its appearance to give notice of
its contents. The fireworks when they fell exploded. The shock of
the explosion threw down some scales at the other end of the
platform, many feet away. The scales struck the plaintiff, causing
injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation
to the holder of the package, was not a wrong in its relation to the
plaintiff, standing far away. Relatively to her it was not negligence
at all. Nothing in the situation gave notice that the falling package
had in it the potency of peril to persons thus removed. Negligence
is not actionable unless it involves the
p. 248
p. 249
invasion of a legally protected interest, the violation of a right.
“Proof of negligence in the air, so to speak, will not do” (Pollock,
Torts [11th ed.], p. 455). . . . If no hazard was apparent to the eye of
ordinary vigilance, an act innocent and harmless, at least to
outward seeming, with reference to her, did not take to itself the
quality of a tort because it happened to be a wrong, though
apparently not one involving the risk of bodily insecurity, with
reference to someone else. “In every instance, before negligence
can be predicated of a given act, back of the act must be sought
and found a duty to the individual complaining, the observance of
which would have averted or avoided the injury” (McSherry, C.J., in
W. Va. Central R. Co. v. State, 96 Md. 652, 666). The plaintiff sues
in her own right for a wrong personal to her, and not as the
vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze
of contradictions. . . . One who jostles one’s neighbor in a crowd
does not invade the rights of others standing at the outer fringe
when the unintended contact casts a bomb upon the ground. The
wrongdoer as to them is the man who carries the bomb, not the
one who explodes it without suspicion of the danger. Life will have
to be made over, and human nature transformed, before prevision
so extravagant can be accepted as the norm of conduct, the
customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting
meanings of such words as “wrong” and “wrongful,” and shares
their instability. What the plaintiff must show is “a wrong” to
herself, i.e., a violation of her own right, and not merely a wrong to
someone else, nor conduct “wrongful” because unsocial, but not “a
wrong” to anyone. . . . The risk reasonably to be perceived defines
the duty to be obeyed. . . . Here, by concession, there was nothing
in the situation to suggest to the most cautious mind that the
parcel wrapped in newspaper would spread wreckage through the
station.
. . .
The judgment of the Appellate Division and that of the Trial
Term should be reversed, and the complaint dismissed, with costs
in all courts.
ANDREWS, J. (dissenting).
What is a cause in a legal sense, still more what is a proximate
cause, depend in each case upon many considerations, as does
the existence of negligence itself. Any philosophical doctrine of
causation does not help us. A boy throws a stone into a pond. The
ripples spread. The water level rises. The history of that pond is
altered to all eternity. It will be altered by other causes also. Yet it
will be forever the resultant of all causes combined. Each one will
have an influence. How great only omniscience can say. You may
speak of a chain, or if you please, a net. An analogy is of little aid.
Each cause brings about future events. Without each the future
would not be the same. Each is proximate in the sense it is
essential. But that is not what we mean by the word. Nor on the
other hand do we mean sole cause. There is no such thing.
. . .
As we have said, we cannot trace the effect of an act to the
end, if end there is. Again, however, we may trace it part of the way.
A murder at Serajevo may be the necessary antecedent to an
assassination in London twenty years hence. An overturned
lantern may burn all Chicago. We may follow the fire from the shed
to the last building. We rightly say the fire started by the lantern
caused its destruction.
A cause, but not the proximate cause. What we do mean by the
word “proximate” is, that because of convenience, of public policy,
of a rough sense of justice, the law arbitrarily declines to trace a
series of events beyond a certain point. This is not logic. It is
practical politics. Take our rule as to fires. Sparks from my burning
haystack set on fire my house and my neighbor’s. I may recover
from a negligent railroad. He may not. Yet the wrongful act as
directly harmed the one as the other. We may regret that the line
was drawn just where it was, but drawn somewhere it had to be.
We said the act of the railroad was not the proximate cause of our
neighbor’s fire.
p. 249
p. 250
Cause it surely was. The words we used were simply indicative of
our notions of public policy.
. . .
The act upon which defendant’s liability rests is knocking an
apparently harmless package onto the platform. The act was
negligent. For its proximate consequences the defendant is liable.
If its contents were broken, to the owner; if it fell upon and crushed
a passenger’s foot, then to him. If it exploded and injured one in the
immediate vicinity, to him also. . . . Mrs. Palsgraf was standing
some distance away. How far cannot be told from the record —
apparently twenty-five or thirty feet. Perhaps less. Except for the
explosion, she would not have been injured. . . .
Under these circumstances I cannot say as a matter of law that
the plaintiff’s injuries were not the proximate result of the
negligence. That is all we have before us. The court refused to so
charge. No request was made to submit the matter to the jury as a
question of fact, even would that have been proper upon the record
before us.
The judgment appealed from should be affirmed, with costs.
CASE DISCUSSION QUESTIONS
1. Why did the majority hold that there was no negligence as to
Mrs. Palsgraf? Do you agree?
2. The dissent stated: “What we do mean by the word ‘proximate’
is, that because of convenience, of public policy, of a rough sense of
justice, the law arbitrarily declines to trace a series of events beyond a
certain point. This is not logic. It is practical politics.” Compare that to
the quote at the beginning of this chapter.
3. We omitted part of the dissent that included the following
illustration: “A chauffeur negligently collides with another car which is
filled with dynamite, although he could not know it. An explosion
follows. A, walking on the sidewalk nearby, is killed. B, sitting in a
window of a building opposite, is cut by flying glass. C, likewise sitting
in a window a block away, is similarly injured. And a further
illustration. A nursemaid, ten blocks away, startled by the noise,
involuntarily drops a baby from her arms to the walk.” Who out of A, B,
C, and the baby should recover from the chauffeur? Why?
(2) Intervening cause
Sometimes after the defendant has acted negligently, another
factor intervenes that contributes to the plaintiff’s injury. If the
intervening cause is great enough, the court may find that the
defendant’s negligence is no longer the proximate cause. In those
situations the intervening cause is deemed to be a superseding
cause, and the defendant’s negligence no longer makes him or her
liable. If, however, the intervening cause was foreseeable, the court
may still find the defendant liable. Perhaps surprisingly, the classic
case of a foreseeable intervening cause is malpractice. For example,
assume a man is injured through a motorcyclist’s negligent driving. If
the injured man is taken to the hospital and his injuries are made
worse through a doctor’s malpractice, the motorcyclist will be
responsible for all the injuries, not just those caused by the initial
accident. Also, tavern owners are liable for injuries
p. 250
p. 251
caused by their intoxicated patrons. An interesting variant of that will
be discussed in the next section of this chapter when we look at two
different approaches to the issue of social host liability. The following
case graphically illustrates the problem of deciding where liability
should end.
Anglin v. State Department of Transportation
472 So. 2d 784, 10 Fla. Law W. 1622 (Dist. Ct. App. 1985)
ZEHMER, J.
In these consolidated personal injury cases, plaintiffs below
appeal a final summary judgment, contending the trial court erred
in ruling as a matter of law that appellees were insulated from
liability by unforeseeable independent intervening causes. We
reverse.
On the night of September 3, 1979, Cleopatra Anglin, her
husband, and her brother were traveling through drizzling rain in a
1965 Chevrolet pickup truck. Upon crossing a Seaboard Coastline
Railroad track on Alternate U.S. 27 in rural Polk County, they
unexpectedly hit an accumulation of water that covered both lanes
of travel and was approximately six inches deep. The truck motor
was doused with water, sputtered for some distance after hitting
the pool of water, and then died. The Anglins attempted to start the
motor by pushing the truck down the road and then “popping” the
clutch once the truck reached a moderate speed. Approximately
fifteen minutes after their truck hit the water, during which time
they attempted in vain to push-start the truck several times, a car
driven by Edward DuBose passed the Anglin truck heading in the
opposite direction. A short distance after passing the truck, which
was still on the road and, according to some witnesses, still being
pushed, Mr. DuBose turned his car around and headed back
toward the truck to render assistance. Unfortunately, Mr. DuBose
failed to timely see the truck, hit his brakes, slid into the rear of the
truck, and pinned Mrs. Anglin between the two vehicles, causing
injury resulting in amputation of both legs. The distance between
the pool of water and the accident scene was estimated by some
witnesses as approximately 200 yards, by others up to three-
tenths of a mile.
On February 16, 1981, Mrs. Anglin and her husband filed a
complaint against the state Department of Transportation and
Seaboard Coastline Railroad Company, alleging negligence in the
design and maintenance of the road and railroad tracks by
allowing the accumulation of water on the roadway immediately
adjacent to the railroad tracks. Defendants filed a motion for
summary judgment and, in addition to numerous depositions
already taken, plaintiffs filed affidavits in opposition to the motion.
A final summary judgment in favor of the defendants was entered
on June 9, 1983, upon the trial judge’s ruling as a matter of law
that the actions of the plaintiffs in attempting to push-start their
disabled pickup truck and the actions of Mr. DuBose in negligently
losing control of his car and colliding with the plaintiffs’ truck were
independent, efficient intervening causes of the accident that were
unforeseeable by the defendants, thereby breaking the chain of
causation between the purported negligence of the defendants
and the injury.
As a general rule, a tortfeasor is liable for all damages
proximately caused by his negligence. The term “proximate cause”
(or “legal cause,” in the language of the standard jury instructions)
consists of two essential elements: (1) causation in fact, and (2)
foreseeability. See generally, 38 Fla. Jur. 2d, Negligence, §§ 29–48.
Causation in fact is often characterized in terms of a “but for” test,
i.e., but for the defendant’s negligence, the resulting damage would
not have occurred. In the
p. 251
p. 252
present case, there is no question as to causation in fact because
“but for” the defendants’ alleged negligence in causing the pooling
of water on the highway, there would have been no accidental
stopping of plaintiff’s truck and resulting injury.
The second element of proximate cause, foreseeability, is,
unlike causation in fact, a concept established through
considerations of public policy and fairness whereby a defendant
whose conduct factually “caused” damages may nevertheless be
relieved of liability for those damages. Thus, proximate cause may
be found lacking where the type of damage or injury that occurred
is not within the scope of danger or risk created by the defendant’s
negligence and, thus, not a reasonably foreseeable result thereof. .
. . It is not necessary, however, that the defendants “be able to
foresee the exact nature and extent of the injuries or the precise
manner in which the injuries occur;” all that is necessary to liability
is that “the tortfeasor be able to foresee that some injury will likely
result in some manner as a consequence of his negligent acts.” . . .
In the instant case, it cannot be said as a matter of law that an
injury to plaintiff was not within the scope of danger or risk arising
out of the alleged negligence. In the field of human experience, one
should expect that negligently permitting a pool of water on an
open highway would likely pose a substantial hazard to motorists
because a vehicle crashing unexpectedly into the water is likely to
experience a stalled motor or other difficulty causing the vehicle to
stop on the highway, thereby subjecting its occupants to the risk of
injury from collision by other cars.
Proximate cause may be found lacking, however, where an
unforeseeable force or action occurring independently of the
original negligence causes the injury or damage. This force or
action is commonly referred to as an “independent, efficient
intervening cause.” For the original negligent actor to be relieved of
liability under this doctrine, however, the intervening cause must be
“efficient,” i.e., truly independent of and not “set in motion” by the
original negligence. The trial court’s ruling that the conduct of the
plaintiffs in pushing their truck down the road was an independent,
efficient intervening cause of the accident was error because the
existence of the pool of water set into motion the plaintiffs’
subsequent actions in attempting to restart the motor that was
stalled by driving through the water. These actions, having been
“set in motion” by defendants’ negligence, did not constitute an
independent, efficient intervening cause. Whether the plaintiffs’
conduct was negligent and caused the injury should be submitted
to the jury under appropriate instructions on comparative
negligence.
The trial court correctly characterized Mr. DuBose’s negligent
operation of his car as an independent intervening cause. The
negligent pooling of water did not cause Mr. DuBose to negligently
2
operate his vehicle into collision with the plaintiffs. The trial court
erred, however, in ruling as a matter of law that such intervening
cause warranted entry of summary judgment for defendants. If an
intervening cause is reasonably foreseeable, the negligent
defendants may be held liable. Whether an intervening cause is
foreseeable is ordinarily for the trier of fact to decide. Only if
reasonable persons could not differ as to the total absence of
evidence to support any inference that the intervening cause was
foreseeable may the court determine the issue as a matter of law.
In the circumstances of this case (the night was dark, it was
raining, and the collision occurred in a rural area where traffic
customarily moves rapidly), had DuBose come on the scene and
collided with plaintiffs’ stalled truck immediately after plaintiffs hit
the pooled water, the question of foreseeability of that occurrence
would most assuredly present a jury issue. The fact that plaintiffs
attempted to push-start their stalled truck for approximately fifteen
minutes and that Mr. DuBose collided with it while attempting to
stop and provide assistance does not change this jury issue to a
question of law.
p. 252
p. 253
The plaintiffs’ exposure to danger was created by defendants’
negligence, and the fact that a collision might occur while plaintiffs
were extricating themselves from such danger up to fifteen
minutes later presents a jury issue on foreseeability. That is so
because the defendants need not have notice of the particular
manner in which an injury would occur; it is enough that the
possibility of some accidental injury was foreseeable to the
ordinarily prudent person.
Reversed and Remanded.
BOOTH, J., dissenting.
We should affirm the summary judgment entered below based
on lack of proximate cause. The chain of events here between
alleged negligent act and injury is too attenuated and is broken, in
fact, by the independent, intervening actions of others.
For the purpose of this appeal, we assume that defendants
were negligent in maintaining a depression on a rural roadway, a
depression which, in the aftermath of Hurricane David, was filled
with six inches of water. It would be foreseeable that a driver who
unexpectedly traversed such a depression in the road could lose
control of his vehicle, causing an accidental injury to himself or
others. Stalling and the immediate consequences thereof are also
not unforeseeable. Other results of the puddle could be termed as
“foreseeable” in a philosophical, but not a legal, sense. For
example, the disabled vehicle could have been struck by lightning,
or the occupants could have been robbed or become ill but unable
to seek medical care. In each instance, it could be said that, but for
the stalling of their car caused by the defendant these subsequent
events would not have occurred. Although there would be cause
and effect relationship, such consequences would generally not be
within the scope of the risk created by the negligent party who
caused the vehicle to become immobile. The law does not impose
liability because of the concept of “proximate cause,” as stated in
Prosser and Keeton:
In a philosophical sense, the consequences of an act go forward to eternity, and the
causes of an event go back to the dawn of human events, and beyond. But any
attempt to impose responsibility upon such a basis would result in infinite liability for
all wrongful acts, and would “set society on edge and fill the courts with endless
litigation.” As a practical matter, legal responsibility must be limited to those causes
which are so closely connected with the result and of such significance that the law
is justified in imposing liability. Some boundary must be set to liability for the
consequences of any act, upon the basis of some social idea of justice or policy.
Therefore, I would agree with the majority that there could be a
jury question as to causation in fact. But, as to proximate cause, in
this case at least, the principle is one of law. . . .
The issue, then, is the scope of the legal duty to protect the
plaintiff against intervening causes which are possible but not
probable. . . . Plaintiff’s injury occurred more than a quarter of an
hour after, and three-tenths of a mile down the road from, the
puddle. The accident occurred after, and as the result of,
negligence of others, each acting independently of defendants.
The law does not impose unlimited liability for all
consequences that may result from a puddle of water on the road.
CASE DISCUSSION QUESTIONS
1. Do you agree with the majority or the dissent? Why?
2. Two years later, in 1987, this decision was reversed by the
Supreme Court of Florida in Department of Transp. v. Anglin, 502 So.
2d 896, 900 (Fla. 1987) (as they so quaintly put it in Florida, “[W]e
quash the decision below and remand for proceedings consistent
with this opinion”). On what basis do you think the court reached its
decision?
p. 253
p. 254
(3) Duty of care to third parties
As we have seen, sometimes the court will hold a person
responsible for the actions of someone else. For example,
traditionally a bar owner can be held responsible if an intoxicated
patron negligently injures a third party. Liability is based on what are
known as dramshop laws. In a sense the bar owner is held
responsible for the patron’s negligence.
A related and emerging area of the law is the degree of
responsibility a social host has for the actions of an intoxicated
guest. In some states the courts have refused to find liability, stating
that such a change in the law is better left to the legislature. For
example, in Charles v. Seigfried, 28
Alan Seigfried held a party at which
he provided drinks for everyone, including 16-year-old Lynn Sue. Alan
knew of Lynn Sue’s “advanced state of drunkenness,” knew that she
had driven her own car to the party, and allowed her to leave the party
while still extremely intoxicated. While driving, Lynn Sue died in a fatal
collision. In refusing to find the host liable for Lynn Sue’s death, the
court noted that “the drinking of the intoxicant, not the furnishing it, is
the proximate cause of the intoxication and the resulting injury. As a
matter of public policy, the furnishing of alcoholic beverages is
considered as too remote to serve as the proximate cause of the
29
injury.” The court also based its decision on the belief that such a
30
change in the law should come from the legislature.
NETNOTE
The Internet contains many sources for medical information. For
example, you can find current medical news at
www.medscape.com, and there are several sites that have free on-
line medical dictionaries. Note that the Internet does not post
results in the order of credibility, but rather based on algorithms
that include payments to appear higher on the list. Therefore, the
first items listed may not be the most reliable. Medical information
can be particularly fraught with false information.
Other courts have disagreed. For example, the Massachusetts
Supreme Judicial Court thought it was appropriate for the court, and
not the legislature, to tackle the problem of social host liability. In
McGuiggan v. New England Telephone & Telegraph Co. 31
the court
concluded that “in certain circumstances liability properly could be
32
imposed on such a social host.” Those circumstances
p. 254
p. 255
arise when the social host knew or should have known the guest was
drunk, knowingly gave the guest an alcoholic drink anyway, and knew
33
or should have known that the guest would operate a motor vehicle.
The court noted that every case
in which social host liability was acknowledged as a possibility or as a fact has been
decided in the past decade. This trend toward imposing liability is no doubt a response
to the greater concern of society in recent years regarding the problems of drunken
driving. It is understandable that the law of torts, which in many aspects measures one’s
duty by what is reasonable conduct in the circumstances, should begin to respond to
34
society’s increasing concern.
d. Harm
As we have seen, the purpose of negligence law is to compensate
the plaintiff for any harm suffered. Traditionally, however, that harm
could include emotional distress only if the plaintiff also suffered
physical harm and only if the plaintiff was in the “zone of danger”
created by the defendant’s actions. Therefore, a parent standing at
her kitchen window, seeing her child negligently harmed by a
speeding motorist, could not recover for her emotional distress. Then
in a landmark decision, Dillon v. Legg, 35
the California Supreme Court
held that a mother could recover for her emotional distress caused by
seeing her daughter negligently injured. This was the result even
though the mother was not “in the zone of danger,” as she never
feared for her own safety. Since Dillon many state courts have
followed the lead of the California courts by adopting the tort of
negligent infliction of emotional distress. Others have expanded on
the Dillon holding, both as to how contemporaneous the injury and
the plaintiff’s emotional distress must be and as to who beyond
parents and children is covered. For example, in Leong v. Takasaki 36
a ten-year-old boy was allowed to recover for nervous shock and
psychic injuries after he witnessed his step-grandmother’s death,
when she was struck by the defendant’s vehicle. In 1979, the New
Hampshire Supreme Court held that the trial court erred in dismissing
a case where the father did not hear the accident that harmed his
daughter but was near enough to immediately become aware of the
37
accident and go to her aid.
DISCUSSION QUESTION
11. A woman sees her live-in boyfriend run over by a car and
killed. Should she be allowed to sue for emotional distress? Why?
p. 255
p. 256
2. Defenses to Negligence
In representing the defendant in a negligence case the attorney
usually attempts to rebut the plaintiff’s evidence on as many of the
above four elements as possible. In other words, the defense tries to
show that no duty was owed to the plaintiff, that no breach occurred,
and that the defendant’s action was not the cause of the plaintiff’s
injuries. Another approach to defending such cases involves raising
an affirmative defense, in which it is admitted that negligence was
established, but it is argued that the defendant should not be held
liable because of actions taken by the plaintiff. Traditionally, the two
major affirmative defenses were contributory negligence and
assumption of the risk. Today most states have adopted a form of
comparative negligence whereby the plaintiff’s own negligence is
compared to that of the defendant.
a. Contributory Negligence
Historically, the common law doctrine of contributory negligence
applied whenever the plaintiff contributed to his or her own injuries or
otherwise failed to protect him-or herself from risks that were
foreseeable. In other words, it was the plaintiff’s breach of a duty to
protect him-or herself that was the proximate cause of the injuries.
The defendant therefore was relieved of any liability connected with
the defendant’s negligence, no matter how great the defendant’s
negligence and how slight the plaintiff’s contributory negligence.
Because of the harshness of this result, most states have adopted a
form of comparative negligence.
b. Comparative Negligence
The doctrine of contributory negligence prevented a plaintiff from
being compensated for very serious injuries, even when the injuries
resulted from rather minor breaches when compared to the extreme
negligence of the defendant. As indicated above, in response to the
perceived unfairness of this situation, all but a handful of states,
through statutes and court decisions, have moved to adopt
comparative negligence. Under comparative negligence, negligence
is measured in terms of percentages, and damages are distributed
proportionately. There are three alternative theories of comparative
negligence:
1. A plaintiff can recover when the plaintiff’s negligence is slight
but may not recover when the plaintiff’s negligence is gross.
This is difficult to measure and currently only one state follows
this approach.
2. Under a “pure” comparative negligence statute a plaintiff can
recover actual damages less a percentage, calculated as the
amount of negligence attributable to the plaintiff. In the 12
states that follow this approach, a plaintiff can recover
something even if 99 percent responsible for the injuries.
3. Under modified comparative negligence, a plaintiff’s recovery is
reduced by the percentage of the plaintiff’s own negligence if
the defendant’s negligence is greater than or equal to that of
the plaintiff. In the 11
p. 256
p. 257
states that require the defendant’s negligence to be greater
than that of the plaintiff, the plaintiff can recover a percentage
of the damages so long as the plaintiff is responsible for no
more than 49 percent of the harm done. In the remaining 22
states, to recover a percentage of the damages, the plaintiff
must be no more than 50 percent responsible.
c. Assumption of the Risk
Another traditional affirmative defense involves the concept of
assumption of the risk. According to this doctrine a plaintiff may not
recover for an injury received as a result of voluntarily subjecting
himself or herself to a known danger. Successful use of this defense
requires proof that the plaintiff knew about the dangerous nature of
the situation before voluntarily exposing himself or herself to that
danger. It is argued, for example, that when people choose to attend a
baseball game, they assume the risk of being hit by a foul ball. Take
another example: If you know that a parking lot is covered with ice
and yet you proceed to walk across it, the court will probably say that
you assumed the risk of any injury from falling on the ice.
Notice that assumption of the risk involves a subjective standard.
The plaintiff must voluntarily and knowingly assume the danger; that
is, he or she must actually understand the risk. This can be
contrasted with contributory or comparative negligence, which are
measured not by what the plaintiff was thinking but by what a
reasonable person would have done.
Under the traditional view, assumption of the risk, like contributory
negligence, was a complete bar to recovery. Today many states have
eliminated assumption of the risk as a separate defense, having
subsumed it under the defense of comparative negligence. This
eliminates many of the proof problems (i.e., having to prove what the
plaintiff was actually thinking) and the problems of categorizing
specific behavior as either negligence or assumption of the risk. For
example, if you get into a car being driven by someone you know is
intoxicated, is that an unreasonable act on your part (contributory
negligence) or assumption of the risk (knowingly subjecting yourself
to a dangerous situation)? In those states that have subsumed
assumption of the risk under comparative negligence, the plaintiff’s
recovery can be reduced either if it can be shown that a reasonable
person would have acted differently or if the plaintiff actually knew
and voluntarily assumed the risk.
An example of an express assumption of the risk is the signing of
a waiver of liability. Such waivers are frequently called exculpatory
clauses because their purpose is to relieve tortfeasors of liability. In
certain circumstances the courts have upheld such waivers,
particularly when the parties are of fairly equal bargaining power and
the event involves inherent danger, such as skydiving or mountain
climbing. Increasingly, however, courts are refusing to enforce such
waivers. Sometimes the refusal is based on the public policy
argument that the parties were of very unequal bargaining power.
Other times the courts have invalidated such waivers by requiring
specific language or by finding an ambiguity and construing the
language against the drafter. In addition, the courts usually disallow
exculpatory clauses in cases of gross negligence.
p. 257
p. 258
An example of the trend disfavoring releases is the Virginia
Supreme Court case of Heitt v. Lake Barcroft Community Ass’n. 38
The plaintiff was injured while participating in an athletic event
sponsored by a homeowners’ association. During the swimming
portion of the event he dove into the water, struck his head, and
sustained severe injuries, leaving him a quadriplegic. Prior to entering
the event, he had signed an entry form that provided in part:
In consideration of this entry being accepted to participate in the Lake Barcroft Teflon
Man Triathlon I hereby . . . waive, release and forever discharge any and all rights and
39
claims for damages . . . for any and all injuries suffered by me in said event.
The Virginia Supreme Court held that “an agreement entered into prior
to injury, releasing a tortfeasor from liability for negligence resulting in
40
personal injury, is void because it violates public policy.” The court
distinguished prior decisions upholding waivers as having been
limited to situations involving only property damage.
d. Immunities
For policy reasons certain defendants, even though negligent, are
immune from suit. Traditionally, immunity meant a complete bar to
recovery. Recently, however, the courts have been reexamining many
immunities and in some instances limiting their effect or even
eliminating them entirely. For example, many states have completely
removed the bar that prevented spouses from being able to sue each
other or have eliminated spousal immunity in specific situations,
such as motor vehicle accidents. Similarly, some states have
eliminated parental immunity, thereby allowing children to sue their
parents in tort actions. The doctrine of charitable immunity has also
been abolished or limited in most states.
The doctrine of sovereign immunity prohibits suits against the
government without the government’s consent. It can be traced back
to the concept of the divine right of kings and the idea that the king
could do no wrong. In modern times federal and state governments
have passed legislation that modifies this concept. For example, at
the federal level Congress has enacted the Federal Tort Claims Act
41
(FTCA). Under that statute someone can sue the government for
harm caused by a government employee’s negligence but not for an
intentional tort or for something that resulted from a discretionary
function. These limitations are a cause for much litigation, as it is
often difficult to determine whether a particular action is the result of
negligence or an intentional act and whether the action falls within a
“discretionary function.” Similarly, on the state and local level,
governmental acts are often protected from suit if the public
employee’s action involved basic policy choices.
In circumstances where one is prohibited from suing the
government for the employee’s actions, he or she may sometimes be
able to sue the government
p. 258
p. 259
official directly. Limitations apply here as well. For example, judicial
and legislative officials have an absolute privilege against being held
liable for any actions performed as part of their official duties. The
reasoning behind this absolute bar is that such officials must be able
to perform their daily work without constant fear of being sued. Other
administrative personnel receive only a qualified immunity. In order to
recover damages under the terms of this qualified immunity, the
plaintiff must prove that the defendant acted in bad faith.
In the following case the police stopped an intoxicated driver. An
eyewitness stated that the driver “Fuller was swaying, unsteady on
his feet, holding his hands up to his head, moving back and forth and
holding onto the top of the door to steady himself.” The police officer
talked to Fuller for about one minute, did not conduct a field sobriety
test, and did not detain him. Ten minutes later, driving at
approximately 75 miles per hour, Fuller’s car collided head-on with a
car being driven by Mark Irwin. The collision killed Fuller, Mark Irwin,
and a passenger in Irwin’s car and seriously injured Debbie Irwin and
her son. When Mrs. Irwin brought suit against the town, the court had
to determine whether the town should be held liable for the police
officer’s actions. Massachusetts has a tort claims act that is similar
to the federal statute in that it prohibits lawsuits based on a
“discretionary function.”
Irwin v. Town of Ware
392 Mass. 745, 467 N.E.2d 1292 (1984)
The plaintiffs commenced this action against the defendant
town of Ware (town). They charge that police officers of the town
negligently failed to take into protective custody a motor vehicle
operator who was under the influence of intoxicating liquor and
who subsequently caused an accident resulting in harm to the
plaintiffs. The jury returned special verdicts for the plaintiffs in the
amount of $873,697.
. . .
2. Applicability of G.L. c. 258, § 2.
Whether the town is liable to the plaintiffs for the negligence of
its police officers depends initially upon the scope of G.L. c. 258,
the so-called Massachusetts Tort Claims Act (Act). As to scope,
the Act provides in relevant part that “[p]ublic employers shall be
liable for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any public
employee while acting within the scope of his office or
employment, in the same manner and to the same extent as a
private individual under like circumstances.” G.L. c. 258, § 2, as
appearing in St. 1978, c. 512, § 15. The Act exempts from such
liability, however, “any claim based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of a public employer or public
employee, acting within the scope of his office or employment,
whether or not the discretion involved is abused.” G.L. c. 258, §
10(b). As a threshold matter, therefore, we must determine
whether the challenged actions of the police officers were outside
the Act as “discretionary functions” within the meaning of G.L. c.
258, § 10(b).
The town contends that the statutes setting forth an officer’s
authority with respect to intoxicated motor vehicle operators
“indicate
p. 259
p. 260
that the arrest of Fuller, assuming, arguendo, that he was
intoxicated, was discretionary and not mandatory.” Whether an act
is itself discretionary, of course, does not turn on whether that act
was negligently or nonnegligently performed. Therefore, we need
not consider how the act was performed in this case to determine
whether it is discretionary. Rather, we must address only a more
general question: Is the decision of a police officer to remove from
the roadways a driver who he knows or has reason to know is
intoxicated a discretionary act within the meaning of G.L. c. 258, §
10(b). We conclude it is not.
. . . In Whitney v. Worcester, 373 Mass. 208, 219 (1977), we
noted that immunity for discretionary functions did not extend to
all acts requiring judgment because “the performance of all
functions involves the exercise of discretion and judgment to some
degree.” We described discretionary acts as those “characterized
by the high degree of discretion and judgment involved in weighing
alternatives and making choices with respect to public policy and
planning.” In contrast, we explained that not counted among such
acts are those which involve “the carrying out of previously
established policies or plans.” Id. at 218.
No reasonable basis exists for arguing that a police officer is
making a policy or planning judgment in deciding whether to
remove from the roadways a driver who he knows is intoxicated.
Rather, the policy and planning decision to remove such drivers
has already been made by the Legislature. [“Any officer authorized
to make arrests . . . may arrest without warrant any person . . . who
the officer has probable cause to believe has operated or is
operating a motor vehicle while under the influence of intoxicating
liquor,” G.L. c. 90, § 21.] This is not to say every harm resulting from
the conscious failure of a police officer to remove an intoxicated
driver from the roadway will give rise to liability for the public
employer. There may be situations in which an officer’s failure to
remove an intoxicated driver from the roadway will not lead to
such liability. Where liability does not result, however, it will be
because some element of the tort alleged will not have been
established. It will not be because the act of the officer is
discretionary within the meaning of G.L. c. 258, § 10(b).
. . .
7. Conclusion.
In sum, we conclude that, under G.L. c. 258, a town or city may
be held liable in damages for the negligent failure of its police
officers to remove from the highway a motor vehicle operator who
is under the influence of intoxicating liquor and who subsequently
causes injuries or death to other travelers.
Authors’ Note: The case was remanded for a new trial
[
because of erroneously admitted evidence regarding Fuller’s
blood alcohol content.]
CASE DISCUSSION QUESTIONS
1. Why didn’t the court think the police officer’s actions fell under
the “discretionary functions” exception?
2. This case established that the defense of sovereign immunity
was not available in these circumstances. However, to recover, the
plaintiff still had to establish that the police officer was negligent.
What elements of the negligence claim do you think might give the
plaintiff problems?
3. Many charitable and sovereign immunity statutes cap the
allowable recovery. In the Irwin case the statute provided that the
public employer would not be liable “for any amount in excess of one
hundred thousand dollars.” There were four plaintiffs in this case.
How do you think the parties argued this language should be
interpreted?
p. 260
p. 261
3. Reckless Behavior
In between the two main categories of torts that we have discussed
thus far, intentional torts and negligence, is an area of liability
variously described as gross negligence, or willful or wanton behavior,
or recklessness. The courts disagree as to whether these are forms
of “super negligence” or are more akin to intentional behavior. They
also disagree as to whether they represent different mental states or
42
are simply different ways of describing the same thing.
While there is a great deal of confusion as to the exact meaning of
these terms, all three imply a conscious or knowing disregard of an
unreasonable and substantial risk of serious bodily harm to another.
While the person may not wish to cause harm, he or she is aware of
the potential for harm and proceeds anyway, indifferent to the
consequences. Unlike negligence, which requires merely
unreasonable behavior, recklessness requires a “ conscious choice of
a course of action, with knowledge or reason to know that it will
43
create a serious danger to others.” As the conduct involves some
level of conscious intent, punitive damages may be available. Also,
most courts have held that a plaintiff’s contributory negligence may
not be used as a defense when the defendant has acted in a willful,
44
wanton, or reckless manner. Therefore, a plaintiff who has
negligently contributed to his or her own injury may try to prove that
the defendant’s actions were willful, wanton, or reckless.
Because the courts have not been able to clearly define
recklessness, it is decidedly difficult to know where negligence ends
and recklessness begins, and in turn, where reckless behavior ends
and intentional behavior begins. For example, if a golfer carelessly
forgot to check to see if anyone was in the vicinity before taking a
shot, that might be negligence. However, if that golfer had looked,
seen a person in the line of sight, yelled a warning, and then taken the
shot anyway before the person had a chance to move, some courts
would find the behavior to have been reckless but others would still
see it as merely negligent. Finally, if the golfer was angry with another
golfer and deliberately aimed his shot at the other player intending for
the ball to hit her, then the golfer’s actions would amount to either an
intentional tort or recklessness. To establish an intentional tort, the
plaintiff would have to prove the defendant intended for the ball to hit
her. Otherwise, if it was proven that the defendant was merely trying
to frighten her, but was indifferent as to whether the ball would hit her,
the court will find the defendant was reckless.
Earlier in this chapter in discussing defamation, we saw one
example of when courts apply a recklessness standard. When a
public figure sues for defamation, there must be proof that the
publisher of the statement acted in reckless disregard as to whether
the statement was false or not. You will also see recklessness, and
the other terms listed above, used in statutes that limit the liability of
drivers who through their carelessness injure nonpaying passengers.
The
p. 261
p. 262
purpose behind these “guest statutes” is to protect drivers who
voluntarily give transportation to nonpaying guests, unless the
driver’s conduct can be classified as at least reckless. Also, in some
states, trespassers cannot sue for injuries unless the landowner
acted in a willful, wanton, or reckless manner. One of the most
interesting areas requiring the finding of at least reckless behavior is
in the area of sport law.
As anyone who has ever seen or played in a sporting event knows,
physical contact is an expected part of the game and physical injury
is always a possibility. Sometimes individual players engaged in
vigorous competition go beyond what is expected and violate the
rules of the game. Hence, we have yellow cards in soccer, the penalty
45
box in hockey, and fouls in basketball. But when a player exceeds
the normal rules of play and injures another player, should the
offending player suffer more than the sanction imposed by the rules
of the game? Should the offending player also be held accountable in
a court of law and be required to pay damages? If the answer is yes,
the question becomes: On what basis should liability be found? Most
courts have answered that question by finding that to be held
accountable a player must act either intentionally or recklessly. A
finding of mere negligence will not be enough to require the offending
player to pay the injured player damages.
The majority of courts that limit liability to intentional or reckless
behavior do so for two basic policy reasons. First, because some
degree of physical contact is inherent in most sporting competitions,
courts are concerned about the potential flood of litigation if
participants could sue co-participants for every injury received.
Courts envision a world wherein “every punter with whom contact is
made, every midfielder high sticked, every basketball player fouled,
46
every batter struck by a pitch, and every hockey player tripped” files
a lawsuit. Second, the courts want to encourage vigorous
participation by the athletes. They believe that the fear of litigation
would dampen the athletes’ competitive spirit, resulting in less
vigorous play.
However, these policy reasons are also balanced by a concern for
the safety of the players, so there must be some restraints on what
can occur during an athletic competition. As one court has noted:
The problem of imposing a duty of care on participants in a sports competition is a
difficult one. Players, when they engage in sport, agree to undergo some physical
contacts which could amount to assault and battery absent the players’ consent.
Restatement (Second) of Torts § 50 comment b (1965). The courts are wary of
imposing wide tort liability on sports participants, lest the law chill the vigor of athletic
competition. Nevertheless, some of the restraints of civilization must accompany every
athlete on to the playing field. [R]easonable controls should exist to protect the players
47
and the game.
These competing policy concerns have resulted in most courts
stating that coparticipants can be found responsible for injuries they
cause, but only if they
p. 262
p. 263
were acting with the intent to harm or at least recklessly with a
conscious decision to proceed despite the potential for causing harm.
Earlier in this chapter in the case of Knight v. Jewett, you saw how
difficult it can be to prove that a participant intentionally harmed
another participant. As you will recall, Ms. Knight was not able to
maintain her claim for assault and battery because she was not able
to prove that Mr. Jewett intended to step on her finger. However, in
her complaint, she had also alleged that his behavior toward her was
negligent, that is, that his “rough play” amounted to unreasonable
behavior. On further appeal, the California Supreme Court affirmed
the dismissal of her battery claim and addressed her negligence
claim. Note the standard of conduct the court thought should be
applied to her case and the reasons the court advanced for denying
her negligence claim.
Knight v. Jewett
3 Cal. 4th 296, 834 P.2d 696, 11 Cal. Rptr. 2d 2 (1992)
. . . As a general rule, persons have a duty to use due care to
avoid injury to others, and may be held liable if their careless
conduct injures another person. Thus, for example, a property
owner ordinarily is required to use due care to eliminate dangerous
conditions on his or her property. In the sports setting, however,
conditions or conduct that otherwise might be viewed as
dangerous often are an integral part of the sport itself. Thus,
although moguls on a ski run pose a risk of harm to skiers that
might not exist were these configurations removed, the challenge
and risks posed by the moguls are part of the sport of skiing, and a
ski resort has no duty to eliminate them. In this respect, the nature
of a sport is highly relevant in defining the duty of care owed by the
particular defendant.
Although defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself, it is
well established that defendants generally do have a duty to use
due care not to increase the risks to a participant over and above
those inherent in the sport. Thus, although a ski resort has no duty
to remove moguls from a ski run, it clearly does have a duty to use
due care to maintain its towropes in a safe, working condition so
as not to expose skiers to an increased risk of harm. The cases
establish that the latter type of risk, posed by a ski resort’s
negligence, clearly is not a risk (inherent in the sport) that is
assumed by a participant.
In some situations, however, the careless conduct of others is
treated as an “inherent risk” of a sport, thus barring recovery by the
plaintiff. For example, numerous cases recognize that in a game of
baseball, a player generally cannot recover if he or she is hit and
injured by a carelessly thrown ball, and that in a game of
basketball, recovery is not permitted for an injury caused by a
carelessly extended elbow. The divergent results of the foregoing
cases lead naturally to the question how courts are to determine
when careless conduct of another properly should be considered
an “inherent risk” of the sport that (as a matter of law) is assumed
by the injured participant.
. . .
In the present case, defendant was a participant in the touch
football game in which plaintiff was engaged at the time of her
injury, and thus the question before us involves the circumstances
under which a participant in such a sport may
p. 263
p. 264
be held liable for an injury sustained by another participant.
The overwhelming majority of the cases, both within and
outside California, that have addressed the issue of coparticipant
liability in such a sport, have concluded that it is improper to hold a
sports participant liable to a coparticipant for ordinary careless
conduct committed during the sport — for example, for an injury
resulting from a carelessly thrown ball or bat during a baseball
game — and that liability properly may be imposed on a participant
only when he or she intentionally injures another player or engages
in reckless conduct that is totally outside the range of the ordinary
activity involved in the sport.
. . .
Accordingly, we conclude that a participant in an active sport
breaches a legal duty of care to other participants — i.e., engages
in conduct that properly may subject him or her to financial liability
— only if the participant intentionally injures another player or
engages in conduct that is so reckless as to be totally outside the
7
range of the ordinary activity involved in the sport.
As applied to the present case, the foregoing legal principle
clearly supports the trial court’s entry of summary judgment in
favor of defendant. The declarations filed in support of and in
opposition to the summary judgment motion establish that
defendant was, at most, careless or negligent in knocking over
plaintiff, stepping on her hand, and injuring her finger. Although
plaintiff maintains that defendant’s rough play as described in her
declaration and the declaration of Andrea Starr properly can be
characterized as “reckless,” the conduct alleged in those
declarations is not even closely comparable to the kind of conduct
— conduct so reckless as to be totally outside the range of the
ordinary activity involved in the sport — that is a prerequisite to the
imposition of legal liability upon a participant in such a sport. . . .
The judgment of the Court of Appeal, upholding the summary
judgment entered by the trial court, is affirmed.
CASE DISCUSSION QUESTIONS
1. Do you agree with the court that it is more appropriate to apply
a recklessness rather than a negligence standard to injuries that
occur as part of an athletic competition?
2. In footnote 7, the court notes that a different rule should be
applied to some sports, such as archery. Why?
3. Do you agree with the court that Mr. Jewett’s actions were not
so “totally outside the range of the ordinary activity involved in the
sport” as to be considered reckless?
4. Do you think it would have mattered if Mr. Jewett and Ms.
Knight had agreed to a set of rules prior to the start of the game and
then Mr. Jewett had broken one of rules when he knocked down the
plaintiff?
5. Do you think the same level of responsibility should apply no
matter what the level of play? That is, do you think the courts should
apply a different
p. 264
p. 265
standard to recreational play, high school sports, college teams, and
professional athletes?
6. Tom was golfing with a friend when he was hit in the eye by an
unannounced mulligan (second shot). Do you think he should have to
prove that the other golfer acted recklessly or only negligently? In
other words, do you think that situation is analogous to or
distinguishable from the Knight case?
7.On the same day the California Supreme Court decided Knight v.
Jewett, it was faced with the following set of facts: While waterskiing
backwards and barefoot on a river, the plaintiff was injured when his
friend drove the boat too close to shore and the plaintiff hit a tree
limb. How do you think the court decided? Why?
In summary, by their very nature athletic competitions involve
physical contact between opposing players and even between players
on the same team. Also, courts acknowledge that some degree of
aggressiveness is essential to vigorous competition. Therefore, most
courts have held that they will not impose liability based on mere
negligence on the part of a player when that player causes injury to
another player during an athletic competition. Instead the player must
have acted in an intentional or reckless manner. This promotes the
dual policy concerns of limiting litigation and encouraging vigorous
competition.
Remember that even in those situations where the plaintiff need
only prove that the defendant was negligent, the plaintiff may still
wish to introduce evidence that the defendant’s actions went so far
beyond negligence as to constitute reckless behavior. This is because
at least some courts have found that while punitive damages should
not be applied to the results of negligent behavior, they can be
awarded in cases involving recklessness. Also, several courts have
held that if the plaintiff can show that the defendant acted recklessly,
the plaintiff’s contributory negligence cannot be used as a defense.
In Figure 7-3 we have summarized our discussion of negligence
law. In the next section we discuss the third main area of tort law,
strict liability.
C. STRICT LIABILITY
Both negligence and intentional torts impose liability for improper
behavior. In the former the injury is caused by carelessness, and in
the latter it is intentional. In both cases the tortfeasor acts in an
unreasonable manner and violates an established standard of care.
When the concept of strict liability is applied, however, a person is
held responsible for injuries that resulted from actions that were not
necessarily unreasonable and that did not violate a standard of due
care. In other words, it imposes liability even though the defendant is
not at fault. Rather the courts impose liability for the policy reason
that, as between the defendant and the injured plaintiff, the defendant
is in a better position to absorb the costs of the injury. The courts
have applied the doctrine of strict liability in two situations: those
involving ultrahazardous activities and those involving products
liability.
p. 265
p. 266
Plaintiff’s Prima Facie Case Defenses
1. The defendant must owe a duty to the 1. Contributory negligence
plaintiff to act reasonably, and The plaintiff fails to use due care;
2. the defendant must have breached that traditionally, this has been a complete bar
duty to the plaintiff’s suit. Most states have
3. causing (i.e., being both the cause in fact abandoned contributory negligence and
and the proximate cause) have adopted comparative negligence.
4. the plaintiff harm. 2. Comparative negligence
The plaintiff fails to use due care; the
plaintiff’s negligence is compared to the
defendant’s negligence, and damages are
reduced accordingly.
3. Assumption of the risk
The plaintiff knowingly and voluntarily
subjects himself or herself to danger;
traditionally, this has been a complete bar
to the plaintiff’s suit. Today assumption of
the risk has been eliminated in many
states that have adopted comparative
negligence.
4. Immunity
This complete bar to a lawsuit is based on
policy considerations, such as preventing
suits between family members and
protecting charitable organizations.
Figure 7-3 Negligence Summarized
When persons engage in activities that are inherently dangerous,
they should be responsible for any injuries that result, even though
the activities may be carried out in the safest and most prudent way
possible. Examples of areas in which strict liability has been imposed
through the common law include the use of explosives, the building
of dams, and the keeping of wild animals. In recent years the doctrine
of strict liability has also been widely applied in product liability cases,
in which the manufacturer is held liable for defects that occur in the
product. A product is considered to be defective if it is unreasonably
dangerous for use in the ordinary manner.
1. Ultrahazardous Activities
The Restatement of the Law of Torts, Second lists the six factors that
courts review in determining whether a defendant should be held
strictly liable when engaging in dangerous activities. Not all six
factors have to be present. However, enough of the factors must be
present for a court to feel justified in imposing strict liability — that is,
liability even though the defendant did not intentionally or negligently
cause the harm. The six factors listed in Section 520 are
(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable
care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is
carried on; and
p. 266
p. 267
(f) extent to which its value to the community is outweighed by
its dangerous attributes. (Emphasis added.)
The classic case for finding strict liability is the use of dynamite in
blasting. The rationale for finding strict liability in such cases is that
blasting as a business carries with it extreme risks that cannot be
guarded against. Therefore, as between a for-profit company that
chooses to engage in blasting and an innocent person harmed by the
results of the blasting, the company should be held accountable, with
the damages to be absorbed as part of the costs of doing business.
Of course, any company engaging in such dangerous activities would
be wise to purchase liability insurance.
NETNOTE
The Consumer Product Safety Commission has a website where
you can find information on recalls and unsafe products. Start at
www.cpsc.gov.
In addition to such dangerous business activities as using or
storing explosives, courts have frequently found the owners of wild
animals strictly liable for injuries the animals cause. Applying the
factors listed in the Restatement you can see why keeping a lion, for
example, in a backyard cage would lead to a finding of strict liability.
Some states have enacted strict liability for dog bites because of the
difficulty of proving that a dog had a propensity to bite and hence that
its owner was negligent. Some jurisdictions have adopted strict
liability breed-specific laws addressing the perceived danger of pit
bulls and a few other breeds.
2. Products Liability
When a product proves to be defective, an injured party can sue under
any one of three theories: negligence, breach of warranty, or strict
liability. Which theory to use depends on the facts of the case and
how the plaintiff’s state has chosen to categorize products liability
cases. Breach of warranty will be covered in the next chapter on
contract remedies. Here we will discuss the tort theories of
negligence and strict liability.
There are three basic theories a plaintiff can use when bringing a
products liability claim based on negligence: (1) a defect in the
product caused by failing to use reasonable care in the
manufacturing process; (2) a defect in the product caused by
negligent design; and (3) negligent failure to warn. A classic case of
bringing a negligence case based on proof of a manufacturing defect
is MacPherson v. Buick Motor Co. 48
The plaintiff’s car had wooden
wheel spokes, and
p. 267
p. 268
one of the wheels was made of defective wood, causing the car to
collapse, injuring the plaintiff. As noted above, the second basis for
bringing a negligence claim would be proof of a design defect. For
example, a hockey helmet with cutouts around the ears that allows
penetration of a hockey puck is arguably defectively designed. Finally,
a failure to warn of a danger known to the manufacturer but probably
unknown to the user would form the basis for a negligence suit. In the
following case, the court had to determine whether the manufacturer
of an aluminum baseball bat was liable for the death of an 18-year-old
pitcher.
Patch v. Hillerich & Bradsby Co.
257 P.3d 383 (Mont. 2011)
Justice WHEAT delivered the opinion of the Court.
BACKGROUND
While pitching in an American Legion baseball game, eighteen-
year-old Brandon was struck in the head by a batted ball that was
hit using H&B’s model CB-13 aluminum bat. Tragically, Brandon
died from his injuries.
Brandon’s parents . . . sued H&B in strict products liability . . .
asserting design defect and failure to warn claims. Patches
claimed H&B’s model CB-13 aluminum bat was in a defective
condition because of the enhanced risks associated with its use: It
increased the velocity speed of a batted ball when it left the bat,
2
thus decreasing infielders’ reaction times, and resulted in a
greater number of high energy batted balls in the infield.
. . . The matter was tried . . . and Patches’ design defect and
failure to warn claims were submitted to the jury. The jury
concluded the model CB-13 aluminum bat was not designed
defectively, but determined the bat was in a defective condition
due to H&B’s failure to warn of the enhanced risks associated with
its use and awarded Patches an $850,000 verdict on their failure to
warn claim.
. . .
DISCUSSION
. . . H&B asserts that only the individual batting (actual user)
and the individual who purchased the bat (actual consumer) can
assert a failure to warn claim. H&B’s narrow interpretation of the
terms user and consumer is contrary to the definition of the terms
as contained in the Restatement (Second) of Torts § 402A and is
incongruent with this Court’s products liability jurisprudence.
[T] his Court [has] adopted the theory of strict products liability
contained in Restatement (Second) of Torts § 402A, which
provides that “[o]ne who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused to
the ultimate user or consumer . . . .” Although the drafters did not
determine whether § 402A applied to bystanders, they broadly
defined the terms consumer and user. . . . They reasoned that a
consumer does not necessarily have to purchase the product. “He
may be a member of the family of the final purchaser, or his
employee, or a guest at his table, or a mere donee from the
purchaser.” They also stated that the term user “includes those
who are passively enjoying the benefit of the product, as in the
case of
p. 268
p. 269
passengers in automobiles or airplanes, as well as those who are
utilizing it for the purpose of doing work upon it, as in the case of
an employee . . . .”
. . .
The realities of the game of baseball support the District
Court’s decision to submit Patches’ failure to warn claim to the
jury. The bat is an indispensable part of the game. The risk of harm
accompanying the bat’s use extends beyond the player who holds
the bat in his or her hands. A warning of the bat’s risks to only the
batter standing at the plate inadequately communicates the
potential risk of harm posed by the bat’s increased exit speed. In
this context, all of the players, including Brandon, were users or
consumers placed at risk by the increased exit speed caused by
H&B’s bat. H&B is subject to liability to all players in the game,
including Brandon, for the physical harm caused by its bat’s
increased exit speed. We conclude the District Court did not err in
denying H&B summary judgment and submitting Patches’ failure
to warn claim to the jury.
. . .
Assumption of the risk was not applicable here because there
is no evidence that Brandon actually knew he would be seriously
injured or killed when pitching to a batter using one of H&B’s model
CB-13 aluminum bats. In other words, H&B failed to show that
Brandon was aware of the enhanced risks associated with the
model CB-13 aluminum bat, and, knowing that, he voluntarily
proceeded to pitch to a batter using that bat.
. . .
We affirm.
JUSTICE RICE, concurring.
While I concur that Patches have stated a legally valid claim, I
remain troubled. . . . Patches did not articulate specifically what a
warning should have contained. . . . Neither did Patches articulate
specifically how a warning would have changed the result here, in
other words, how the failure to warn caused this accident. . . .
The closing argument Patches made to the jury seemed to
reflect the stretch which they asked the jury to make:
They don’t have warnings on these bats. There’s nothing said on these bats about
what these bats can do. And that your child, whether he’s 15, 16, 17, 18, 19 — if your
child is playing and he’s a pitcher, he could be killed, as what happened here.
. . .
Now I ask you this — I ask you-all this: If you had a child 17 or 18 years old and he
wanted to be a pitcher and the bat that the kid was bringing up to the plate warned —
warned — that this bat could kill — Mr. [a]nd Mrs. Patch didn’t have the benefit of any
warning.
Patches’ apparent theory . . . was that H&B should have advertised
that its bat “could kill.” [T]he inference which Patches asked the jury
to draw . . . was that, following the publishing of a warning “that
this bat could kill,” they as parents would have . . . prohibited
Brandon from playing baseball that day.
. . . There is no doubt that the jury in this case was given a
difficult task. . . . I defer to the jury’s judgment and likewise affirm
their verdict.
CASE DISCUSSION QUESTIONS
1. The court noted that after Brandon’s death the team quit using
aluminum bats, switching to wood bats. Do you think the jury should
have been given this information?
2. Do you agree that strict product liability should be extended to
bystanders like Brandon?
p. 269
p. 270
3. What do you think of the approach the plaintiff’s attorney took
in his closing argument to the jury?
There are times when a plaintiff cannot point to any one act of
negligence. Nonetheless, the product was defective, and that defect
caused an injury. In those cases the plaintiff might rely either on a
warranty theory — the product failed to meet the buyer’s expectations
for a safe product — or on a tort strict liability theory. In the following
case, the court discusses the history of the development of products
liability and why it thinks a tort as opposed to a contracts approach
best meets the needs of consumers. The plaintiff was a young
woman who had recently given birth. In order to stop vaginal
bleeding, her doctor prescribed a drug manufactured by Miles Lab.
While the drug was successful in stopping the bleeding, unfortunately
it was contaminated, and the plaintiff became infected with the HTLV-
III virus. She developed Acquired Immuno-Deficiency Syndrome
Related Complex, a predecessor of AIDS.
Doe v. Miles Lab., Inc.
675 F. Supp. 1466 (D. Md. 1987)
Defective products cause accidents that result in both
economic losses and injuries either to persons or property.
Allowing victims to recover for such losses was long a
controversial issue. Indeed, the common law has followed a
confusing and tortuous path in perceiving and remedying the
situation.
Originally caveat emptor prevailed. Both English and early
American courts found no liability on a seller’s part — either in
contract or in tort — toward anyone, either purchaser or bystander,
for injuries caused by products. . . .
It is not surprising the rule faded away. As societies shifted
from agriculture to industry, more manufactured products entered
the stream of commerce.
Arising as it did in the context of commerce, early products
liability law adopted the concepts and parameters of contract law.
Historically, contracts law never provided a credible basis for
recovery for more than a few of the total numbers of persons
injured in accidents. . . . First, [a] manufacturer could contract out
of liability by making disclaimers an express term of the contract.
Second, the concept of privity severely restricted the class of
persons who could Authors’ Note: A requirement of
recover. [
privity means that the person harmed by the product must have
purchased it directly from the manufacturer.] Consumers, for
example, seldom buy directly from manufacturers. Instead people
usually buy products from intervening distributers or retailers, and
courts seized upon this intervention as a reason for cutting off
manufacturers’ liability.
. . .
Where contract law slammed the door, tort law served to pry it
open a crack. . . .
This law evolved dramatically when Judge Cardozo articulated
negligence in products
p. 270
p. 271
liability as we know it today. In MacPherson v. Buick Motor Co.,
217 N.Y. 382, 111 N.E. 1050 (1916), he [stated:]
If the nature of a thing is such that it is reasonably certain to place life and limb in
peril when negligently made, it is then a thing of danger. Its nature gives warning of
the consequences to be expected. If to the elements of danger there is added
knowledge that the thing will be used by persons other than the purchaser, and used
without new tests, then irrespective of contract, the manufacturer of this thing of
danger is under a duty to make it carefully. . . . We have put aside the notion that the
duty to safeguard life and limb, when the consequences of negligence may be
foreseen, grew out of contract and nothing else. We have put the source of the
obligation where it ought to be. We have put its source in the law.
Id. at 389-90, 111 N.E. at 1053. By 1966 the rule from MacPherson
v. Buick Motor Co. had been universally recognized as the law in
the United States. . . .
Once liability in negligence became established, the concept of
strict products liability gained favor as an alternative theory of
recovery for injuries from defective products. It is commonly
stated that there are three reasons for holding manufacturers and
dealers strictly liable for personal or property injury caused by
defective products. First, innocent victims should not be forced to
bear the costs of accidents, which still occurs far too often, for
even a negligence action may impose an evidentiary burden
impossible to meet. Second, that strict liability promotes accident
prevention, for the manufacturers are in a better position to
ascertain and control the risks associated with their products.
Third, that manufacturers are in a better position than victims to
bear the costs, for they can distribute the losses across the many
who purchase the product, whereas an individual victim, unless he
or she is exceptionally well-to-do or heavily insured, will be driven
into bankruptcy or into social welfare programs.
. . .
[I]n Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27
Cal. Rptr. 697, 377 P.2d 897 (1963), [the court] inaugurated strict
products liability in tort as an alternative theory of recovery. . . .
The Greenman court predicated liability on the idea a
manufacturer “is strictly liable in tort when an article he places on
the market, knowing that it is to be used without inspection for
defects, proves to have a defect that causes injury to a human
being.” Id., 377 P.2d at 900. . . . The court reasoned that “liability is
not assumed by agreement but imposed by law.” Id. at 901.
Shortly thereafter, the American Law Institute in 1965 in the
Restatement (Second) of Torts included section 402A, which
provides:
(1) One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if (a) The seller is
engaged in the business of selling such a product, and (b) It is expected to and does
reach the user or consumer without substantial change in the condition in which it is
sold. (2) The rule stated in subsection (1) applies although (a) The seller has
exercised all possible care in the preparation and sale of his product, and (b) The
user or consumer has not bought the product from or entered into any contractual
relation with the seller.
. . . In 1976 the Maryland court explicitly adopted Section
402A’s strict products liability in tort in Phipps v. General Motors
Corp., 278 Md. 337, 363 A.2d 955 (1976).
. . .
Whatever the theory of recovery, whether negligence or strict
liability, it is now clear that the test in products liability is the same.
A plaintiff must show 1) the existence of a defect; 2) the attribution
of the defect to the seller; and 3) a causal relation between the
defect and the injury.
Analysis
Defendant’s motion for summary judgment leads the Court into
ambiguous territory. Many
p. 271
p. 272
of the issues raised are new. The Court is in a position common to
Erie cases, namely being a federal court required to determine
state law when the state courts have not directly addressed the
issues. In such a case the federal court is obliged to view the
matter as a state court would find the law, not necessarily as it
Authors’ Note: The court then went
would find the law to be. . . . [
on to discuss whether policy considerations warranted
exempting blood and blood products from strict liability in tort
and decided they did not.]
Entrepreneurs by their nature are risk taking individuals. To the
extent they need an incentive to engage in socially beneficial
activities, the law already provides it in the form of a corporate
shield on personal liability. To do as defendant argues, and exempt
blood from strict liability would be to subsidize the product by
forcing either victims or government through its social welfare
programs to bear accident costs. . . .
Accordingly, the Court will deny defendant’s motion for
summary judgment on plaintiffs’ claim for strict products liability.
CASE DISCUSSION QUESTIONS
1. The court discusses a doctrine known as privity of contract.
Why did the court see it as limiting the ability of plaintiffs to sue for
defective products?
2. Why did the court think a tort-based approach to products
liability was preferable to one based on contract and warranty law?
3. The court stated: “The argument is often made that strict
products liability has the potential to bankrupt manufacturers. Such
an argument misses the salutory economic role strict products
liability plays. Understood properly, it can be seen that strict liability
promotes a rational market place.” How so?
As the court in Doe v. Miles Laboratories, Inc., pointed out, a very
influential development in the history of products liability law was the
1965 passage of Section 402A of the Restatement of the Law of
Torts, Second. Under Section 402A a manufacturer or seller is liable if
it sells a defective product that harms a consumer and that defect
made the product unreasonably dangerous. Unlike other provisions of
the Restatement, Section 402A was not really a restatement of
existing law. Rather it was the American Law Institute’s vision of what
the law should be. When it was passed, it had little support. Over the
years that has changed, and today most states have adopted Section
402A. Figure 7-4 summarizes the history of products liability law.
3. Defenses to Strict Liability Torts
A plaintiff’s contributory negligence is usually not considered a
defense to strict liability; however, assumption of the risk and product
misuse may be. For a manufacturer to assert the affirmative defense
of product misuse, the manufacturer must prove that the product
was not being used for its intended purpose or was being used in a
dangerous manner that could not reasonably have been foreseen
p. 272
p. 273
by the manufacturer. However, even if a plaintiff misuses a product, if
that use is foreseeable, the manufacturer may be liable for a design
defect. For example, assume a young child opened a stove door in
order to step on it in an attempt to reach a shelf located above the
stove. Although clearly a stove is not meant to be used as a stepping
stool, a court might hold that this misuse was foreseeable and could
have been avoided by a different design.
Figure 7-4 History of Products Liability Law
In Figure 7-5 on page 274 we have summarized the elements and
defenses to strict liability. This figure covers strict liability both as it
applies to ultrahazardous activities and to product liability.
D. TRENDING ISSUES IN TORT LAW
As you have seen, tort law is aspirational, striving to protect our
interests in being free from unlawful intrusion into our privacy,
reputation, and bodily integrity. As such, tort law is not a rigid doctrine
but rather is ever changing to meet society’s needs. In this section we
will look at three developing areas of tort law.
1. Torts Related to the #MeToo Movement
The #MeToo movement has put a spotlight on the prevalence of
sexual assault and harassment occurring in the workplace. However,
when victims of such abuse have attempted to sue, they have often
been hindered by a number of factors, including non-disclosure
agreements and the legal standards for sexual harassment in the
courts. These factors are receiving closer scrutiny as the #MeToo
movement has focused attention on the pervasiveness of sexual
harassment in the workplace.
a. Non-disclosure Agreements
When victims of such abuse have attempted to sue, they have
often been hindered by the existence of mandatory and confidential
arbitration or nondisclosure agreements in their employment
contracts, severance packages, or litigation settlements. In response,
several states have passed legislation limiting the effect of such
clauses and agreements in suits based on allegations of sexual
abuse.
This legislation does not invalidate existing employment
contracts. Rather it bars mandatory arbitration and confidentiality
clauses in future employment contracts, narrowly tailoring such
prohibitions to issues of sexual harassment in employment
contracts.
p. 273
p. 274
Prima Facie Case Defenses
Ultrahazardous Activities (All six factors need not
be present.)
1. Existence of a high degree of risk of some 1. Assumption of
harm to the person, land, or chattels of the risk
others;
2. likelihood that the harm that results from it
will be great;
3. inability to eliminate the risk by the exercise
of reasonable care;
4. extent to which the activity is not a matter of
common usage;
5. inappropriateness of the activity to the place
where it is carried on; and
6. extent to which its value to the community is
outweighed by its dangerous attributes.
Product Liability (All of the following must be
present.)
1. The product was in a defective condition at 1. Assumption of
thetime that it left the possession or control 2. the risk
of the seller, Unforseeable
product
misuse
2. that it was unreasonably dangerous to the 3. Contributory
user or consumer, negligence (in
some states)
3. that the defect was a cause of the injuries,
and
4. that the product was expected to and did
reach the consumer without substantial
change in its condition.
Figure 7-5 Summary of Strict Liability
In addition to legislation, a number of companies have also
voluntarily elected to exclude sexual harassment and sexual assault
from the mandatory arbitration and non-disclosure agreements in
49
their employment contracts.
b. Litigation
Most litigation from the #MeToo movement stems from the Civil
Rights Act of 1964, state civil rights laws, and subsequent court
cases. Critics of those cases focus on several issues related to how
sexual harassment cases are litigated. Legislation and court opinions
are being written to take into account these critiques.
One of the issues is the level of harm that must be shown in order
to successfully litigate a sexual harassment suit. The early cases
ruled that for sexual harassment to be actionable, “it must be
sufficiently severe or pervasive ‘to alter the conditions of [the victim’s]
employment and create an abusive working
p. 274
p. 275
50
environment.’ ” Later cases stated that the harm could be that the
plaintiff suffered damages regarding hiring and promotion or that the
harassment “unreasonabl[y] interfere[d] with an employee’s work
51
performance.” Since the #MeToo movement, one state has passed
a statute and others are looking at changing the standard to one
whereby the plaintiff would only have to “prove that a reasonable
person subjected to the discriminatory conduct would find, as the
plaintiff did, that the harassment so altered working conditions as to
52
make it more difficult to do the job.”
In many cases, stare decisis may perpetuate old standards of
sexual harassment that are not consistent with modern views. In
Brooks v. City of San Mateo, the court found: “While Selvaggio did
touch Brooks inappropriately on her stomach and breast, this
happened within the course of a few minutes and was part of a single
episode. . . . No reasonable woman in Brooks’s position would believe
that Selvaggio’s misconduct had permanently altered the terms or
53
conditions of her employment.” This led to later District Court
decisions holding that if the plaintiff could only claim one episode of
sexual harassment, no matter how egregious, that one claim was
insufficient for a successful sexual harassment claim.
Another issue is whether or not an employer can be shielded from
liability by simply creating a sexual harassment policy, instituting
training, and following the steps required by the policy if there is a
complaint, no matter how ineffective the policy. Courts are beginning
to look beyond this simple three-step approach to the actual
effectiveness of a program. In addition to changes occurring within
the legal framework, because of the harm that comes from the bad
publicity accompanying a sexual harassment lawsuit, some
employers are also beginning to make substantive policy changes.
2. Cyberbullying
The increased use of social media, particularly among school-aged
children and teens, has led to issues of cyberbullying, that is, bullying
that takes place online through social media, texts, and cell phones.
Cyberbullying statutes have been introduced in most states. Many of
these statutes create criminal and civil penalties for cyberbullying.
Cyberbullying statutes have often been found to be
unconstitutionally vague or overbroad because of First Amendment
free speech protections. In addition, even when cyberbullying statutes
are found to be constitutional, the Communications Decency Act of
1996 typically provides immunity for internet service providers (ISPs),
stating, “No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided by
54
another information content provider.”
p. 275
p. 276
Defamation, stalking, and harassment laws are traditional areas of
tort law that are being used to address this new form of bullying.
Because secondary school students often engage in bullying against
their classmates, the question of school administration liability is also
an area of growing concern.
3. Cybertorts
Cybertort is the name given to a host of civil wrongs that can occur
on the Internet, including financial injury, reputational damage, theft
of trade secrets, and invasion of privacy. Challenges to successfully
suing for cybertorts include identifying the parties responsible,
resolving jurisdictional issues, and dealing with Section 230 of the
Communications Decency Act, which states: “No provider of an
interactive computer service shall be treated as the publisher or
speaker of any of the information provided by another information
55
content provider.”
One focus within cybertorts is on companies, such as Facebook,
Twitter, and eBay, whose platforms may be used to perpetuate
various scams, as well as on corporations that regularly collect
sensitive data that may be lost should a security breach occur.
As more and more individuals are affected by wrongdoing via the
Internet, pressure is increasing on Congress and state legislatures to
find ways to protect or compensate those who are injured. While
most legislation is based on criminal law rather than on modifying
tort law, courts are also seeing attorneys using traditional torts, such
as defamation, conversion, and fraud, as a way to combat cybertorts.
DISCUSSION QUESTIONS
12. In most states, people can sue for loss of companionship of a
spouse or a child who dies as a result of an intentional tort. Most
states, however, treat the loss of a pet as the loss of personal
property and will only award the value of the pet and not the pain and
56
suffering caused by the death of the animal. Advocates for a
change in the law argue that dogs, cats, and other family pets should
not be lumped with inanimate personal property, such as purses,
furniture, or articles of clothing. Do you think more states should
recognize a new tort to fully compensate owners for the loss of their
pets?
13. Should tort law be an ever-expanding concept, or should there
be some limits put on liability? Why? If the latter, what should those
limits be?
14. Some argue that there is a litigation explosion; that instead of
taking responsibility for their own actions, people are resorting in
increasing numbers to the legal system for relief. Do you agree? Why?
If you do agree, what should be done about it?
15. If the school administrators know of on-line, off-campus,
cyberbullying by one student against another, what are the
obligations of the administrators?
p. 276
p. 277
How does this differ from cyberbullying occurring on-campus using
school-provided iPads? What about the case of “bring your own
devices”?
E. REMEDIES
As you have seen from reading the cases in this chapter, the most
common form of remedy that a plaintiff seeks in a tort action is the
awarding of some form of damages. In some cases these awards
57
can be quite large, even in the billions of dollars.
Of course, these highly publicized, initial verdicts are not
representative of what the average litigant ends up actually receiving.
Initial verdicts are often reduced on appeal or the plaintiffs settle for a
lesser award to avoid the delay and uncertainty involved in the
appellate process.
From Chapter 3 you will recall that there are basically three types
of damage awards: compensatory, punitive, and nominal. In addition
to or instead of damages, the court might issue an injunction. An
injunction is an order to the defendant ordering the defendant to do a
specific act or to cease doing a specific act. Compensatory damages
(sometimes referred to as actual damages) are awarded to
compensate the plaintiff for the harm done to him or her. In a tort
action involving harm to a person, that might mean the cost of
medical bills, lost time from work, and pain and suffering.
Compensatory damages can be further divided into general
damages and special damages. Special damages represent the
economic loss that someone suffers due to a tort injury. They include
the cost of repairing or replacing the damaged property, paying any
medical bills, and replacing plaintiff’s income lost while unable to
work. General damages, which are sometimes labeled noneconomic
damages, include such intangibles as pain and suffering, emotional
distress, disfigurement, loss of reputation, and loss of enjoyment of
life.
Unlike compensatory damages, which are designed to pay
plaintiffs for harm done to them, punitive damages serve the dual
functions of punishing and deterring tortfeasors. Because their
purpose is to punish and deter, typically punitive damages are
awarded only for intentional torts and only when the court determines
that the defendant deserves an additional punishment beyond just
compensating the plaintiff for the harm done to him or her. While a
popular perception is that juries often award punitive damages, “in
2005, the most recent year studied by the U.S. Department of Justice
(DOJ), punitive damages were sought in only . . . 10 percent of tort
58
trials . . . and were awarded in only 3 percent of tort cases.”
If the decision is made to award punitive damages, an issue arises
as to the appropriate ratio between those damages and the
compensatory damages. For example, if a plaintiff were awarded
$10,000 in compensatory damages, would
p. 277
p. 278
adequate punishment be meted out with punitive damages that were
twice, ten times, or even a hundred times the compensatory amount?
The courts have never set an exact formula. However, the United
States Supreme Court has held that under the Constitution’s due
process protections, a defendant must “receive fair notice not only of
the conduct that will subject him to punishment, but also of the
59
severity of the penalty that a state may impose.” In the following
case, the court considers the constitutionality of an award of $18
million in punitive damages in a case where the jury had awarded
$2.64 million in compensatory damages. Robin Aleo, a 29-year-old
wife and mother, died when she tried to use an inflatable swimming
pool slide. As she went down the slide head first, it collapsed and
deflated causing her head to hit the concrete pool ledge, breaking her
neck. She died the next day. Prior to offering it for sale, Toys “R” Us
had not ordered the proper compliance testing to ensure that the
slide was safe for use by adults. Based on this evidence, the jury
found that Toys “R” Us had been grossly negligent.
Aleo v. SLB Toys USA, Inc.
995 N.E.2d 740 (Mass. 2013)
Compensatory damages and punitive damages, although
generally awarded at the same time and by the same fact finder,
serve different purposes. Compensatory damages “are intended to
redress the concrete loss that the plaintiff has suffered by reason
of the defendant’s wrongful conduct. By contrast, punitive
damages serve a broader function; they are aimed at deterrence
and retribution.”
. . . The Massachusetts wrongful death statute permits an
award of punitive damages where the decedent’s death was
caused by the “malicious, willful, wanton or reckless conduct of the
19
defendant or by the gross negligence of the defendant.” We have
stated that the purposes of punitive damages include
“condemnation and deterrence,” and that a “proper punitive
damage award” is one that is “sufficient . . . to send a clear
message to the [defendant] of condemnation for its reprehensible
behavior. . . .”
. . .
The due process clause of the Fourteenth Amendment to the
United States Constitution, however, prohibits the imposition of a “
‘grossly excessive’ punishment” on a tortfeasor. BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 562 (1996).
In BMW, the United States Supreme Court set forth three
factors to consider in determining whether a punitive damages
award is excessive: (1) “the degree of reprehensibility of the
defendant’s conduct,” (2) the ratio of the punitive award to the
“actual harm inflicted,” and (3) a comparison of “the punitive
damages award and the civil or criminal penalties that could be
imposed for comparable misconduct.”
i. Degree of reprehensibility.
The United States Supreme Court has “instructed courts to
determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic
[and whether] the tortious conduct evinced
p. 278
p. 279
an indifference to or a reckless disregard of the health or safety of
others. . . .
In this case, the harm caused was physical, and was so severe
as to result in Robin’s death. . . . Toys R Us neglected to ensure that
the slide conformed with applicable safety regulations before it
sold the slide to customers, even when it knew or should have
known . . . that head-first use could result in serious if not
catastrophic injury or death. Such conduct evinces an indifference
to the safety of persons using products sold by Toys R Us. . . .
In assessing these factors, we conclude that the
circumstances of this case exhibit a substantial degree of
reprehensibility. Although only grossly negligent, rather than
malicious or willful, Toys R Us’s conduct nonetheless caused
grievous physical harm, evinced an indifference to the safety of
others, and involved repeated actions.
ii. Ratio of punitive award to actual harm inflicted.
Notwithstanding its reliance on this factor, the United States
Supreme Court has declined repeatedly to impose a
constitutionally permissible ratio that punitive damages awards
may not exceed. . . . However, the Court has provided some
guidance, stating that “few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant
degree, will satisfy due process. . . . Single-digit multipliers are
more likely to comport with due process, while still achieving the
State’s goals of deterrence and retribution, than awards with ratios
in range of 500 to 1 or . . . 145 to 1.” State Farm Automobile Ins.
Co. v. Campbell, 538 U.S. 408, 426 (2003).
. . .
Here, the jury awarded $18 million in punitive damages and
$2,640,000 in compensatory damages, a ratio of slightly less than
seven to one. Because the award is within the single digit range,
and the harm is primarily noneconomic, the award does not, on its
face, appear grossly excessive in light of the accompanying
compensatory damages.
. . .
iii. Comparison of punitive award to civil penalties.
Toys R Us potentially could have been subject to $1,250,000 in
civil fines for the importation of the slide. In that event, the ratio of
punitive damages to possible civil penalties would be $18 million
to $1,250,000, or approximately fourteen to one.
This ratio may appear high. However, the United States
Supreme Court has indicated that strict equivalence between
punitive awards and possible civil penalties is not necessary in
order for an award to meet constitutional requirements.
. . .
In sum, Toys R Us’s conduct, as found by the jury, evinced a
substantial degree of reprehensibility. The ratio of punitive
damages awarded to actual harm is within the single-digit range
that generally accords with due process, and a comparison of
punitive damages to possible civil penalties suggests that the
amount of the punitive damage award is not so excessive as to
exceed constitutional bounds. The jury’s award of punitive
damages in this case, while perhaps higher than many such
awards, cannot “fairly be categorized as ‘grossly excessive’ ” in
relation to the Commonwealth’s legitimate interests in
condemnation and deterrence.
Judgment affirmed.
CASE DISCUSSION QUESTIONS
1. What does this court say is the function of punitive damages?
2. What three guideposts has the U.S. Supreme Court developed
to analyze the appropriateness of the size of a punitive award?
p. 279
p. 280
3. How did this court apply each of those guideposts to the facts
of this case? Do you agree with the court’s reasoning?
Finally, nominal damages are awarded when a right has been
violated but the plaintiff cannot prove any monetary harm. For
example, a trespasser may have caused no harm to the land, but the
landowner would still be entitled to a nominal award.
In recent years the topic of tort reform has often been in the news.
Particularly in the area of medical malpractice, higher insurance costs
and a perceived increase in the amount and number of damage
awards have caused concern. As a consequence, some states have
passed legislation to limit the amount of damages that can be
awarded. In some instances that limit applies to the total award, but
in others only to punitive damages or to non-economic damages, that
is, those damages that deal with harm, such as pain and suffering, as
opposed to economic damages, such as lost wages and medical
costs.
In some states these so-called caps have been challenged and
found to be unconstitutional. However, in other states these caps
have withstood constitutional challenge or the state has amended its
constitution to provide for the legitimacy of such caps. Opponents of
caps suggest that they cause the most harm to those most injured
(and hence logically those with the most damages that would be
above the cap) and that a better approach is through insurance
reform.
In a recent case from Florida, the state’s supreme court found a
statutory damages cap as applied to medical malpractice cases
unconstitutional. In its opinion, the court lambasted the legislature for
creating a fictitious medical malpractice crisis to justify the creation
of the cap. The case had been brought by the family of a 20-year-old
woman who died following a caesarian section because the hospital
staff left her unattended for over an hour, during which time she bled
to death. The trial court found noneconomic damages of $2 million,
but reduced the amount to $1 million based on Florida’s statutory cap
on wrongful death noneconomic damages for medical malpractice
claims.
Estate of McCall v. United States
134 So. 3d 894 (Fla. 2014)
Having carefully considered the arguments of both parties and
the amici, we conclude [t]he statutory cap on wrongful death
noneconomic damages fails because it imposes unfair and
illogical burdens on injured parties [and] does not bear a rational
relationship to the stated purpose that the cap is purported to
address, the alleged medical malpractice insurance crisis in
Florida.
[The statutory cap] has the effect of saving a modest amount
for many by imposing devastating costs on a few — those who are
most grievously injured, those who sustain the greatest damage
and loss. [W]e hold that to reduce damages in this fashion is not
only arbitrary, but irrational, and we conclude that it “offends the
fundamental notion of equal justice under the law.”
p. 280
p. 281
The Alleged Medical Malpractice Crisis
. . .
The Florida Legislature attempted to justify the cap on
noneconomic damages by claiming that “Florida is in the midst of
a medical malpractice insurance crisis of unprecedented
magnitude.” The Legislature asserted that the increase in medical
malpractice liability insurance premiums has resulted in
physicians leaving Florida, retiring early from the practice of
medicine, or refusing to perform high-risk procedures, thereby
limiting the availability of health care.
. . .
Our consideration of the factors and circumstances involved
demonstrates that the conclusions reached by the Florida
Legislature as to the existence of a medical malpractice crisis are
not fully supported by available data. Instead, the alleged interest
of health care being unavailable is completely undermined by
authoritative government reports. Those government reports have
indicated that the numbers of physicians in both metropolitan and
non-metropolitan areas have increased. . . . Thus, during this
purported crisis, the numbers of physicians in Florida were actually
increasing, not decreasing.
. . .
Finally, testimony before the Senate Judiciary Committee and
debate within the Florida Senate raised questions concerning the
magnitude of any purported health care crisis. With regard to the
former, the deputy director of the Florida Office of Insurance
Regulation testified he had found no evidence to suggest that
there had been a large increase in the number of frivolous lawsuits
filed in Florida, nor was there any evidence of excessive jury
verdicts in the prior three years.
. . .
The Impact of Damage Caps on the Alleged Crisis
Reports have failed to establish a direct correlation between
damages caps and reduced malpractice premiums. Weiss Ratings,
which evaluates the performance of the malpractice insurance
industry, has detailed two particularly salient findings. First, based
upon data acquired from 1991 until 2002, the median medical
malpractice premiums paid by physicians in three high-risk
specialties — internal medicine, general surgery, and
obstetrics/gynecology — rose by 48.2 percent in states that have
damages caps, but in states without caps, the median annual
premium increased at a slower rate — by 35.9 percent. Second, the
study noted that among states with caps on damages, only 10.5
percent (two of nineteen states with caps) experienced static or
declining medical malpractice premium rates following the
imposition of caps. In contrast, among states without damages
caps, 18.7 percent (six of thirty-two states without caps)
experienced static or declining medical malpractice premiums.
. . .
While the cap on noneconomic damages limits the amount of
money that insurance companies must pay injured victims of
medical malpractice, [the cap] does not require insurance
companies to use the acquired savings to lower malpractice
insurance premiums for physicians.
. . .
We conclude that the record and available data fail to establish
a legitimate relationship between the cap on wrongful death
noneconomic damages and the lowering of medical malpractice
insurance premiums. Accordingly, we hold that [statutory cap] fails
the rational basis test and violates the Equal Protection Clause of
the Florida Constitution.
p. 281
p. 282
CASE DISCUSSION QUESTIONS
1. What do you think the court meant when it said the statutory
cap “has the effect of saving a modest amount for many by imposing
devastating costs on a few — those who are most grievously injured”?
2. Do you think it is appropriate to try to limit the amount of
economic, noneconomic, or punitive damages through a cap?
DISCUSSION QUESTIONS
16. To determine the amount of punitive damages, do you think it
is fairer to defendants to apply “guideposts” such as the Supreme
Court has been using or a simple ratio, such as mandating that in
non-personal injury cases punitive damage awards cannot exceed
nine times the compensatory award? Would such a rule satisfy
society’s need to deter future bad conduct?
17. Typically, punitive damages are awarded to the plaintiff
because it was the plaintiff who brought the lawsuit. However,
punitive damages are designed to punish the defendant rather than
compensate the victim. Some have argued, therefore, that punitive
damages should be paid to the state (society as a whole) rather than
to the individual plaintiff. Indeed, a few states have passed laws that
split punitive damage awards between the plaintiff and the state.
Which arrangement do you think would best meet the goal of punitive
damages to deter and punish?
CHAPTER SUMMARY
A tort is a private wrong that causes harm to a person or property.
Torts are generally classified as involving intentional acts, negligence,
or strict liability. Intentional torts occur whenever someone intends an
action that results in harm. Examples include assault and battery,
false imprisonment, defamation, invasion of privacy, intentional
infliction of emotional distress, and trespass. Negligence involves a
breach of duty that causes harm. Cause includes both actual cause
and proximate cause. Strict liability includes both ultrahazardous
activities and products liability, where an unreasonably dangerous
defective product is sold. Finally, in a limited number of situations,
such as those involving contact sports, the courts will apply a
reckless standard. Recklessness involves a conscious decision to
proceed despite a substantial and unjustifiable risk that harm will
result.
Tort law is constantly evolving. The courts are still developing new
torts to cover changing societal views as to what should be
protected. Examples include torts growing out of the #MeToo
movement involving sexual harassment in the workplace,
cyberbullying, and cybertorts.
Finally, in bringing a tort action, a plaintiff is generally seeking
either an injunction or damages. Damages can take the form of a
compensatory, punitive, or nominal award.
p. 282
p. 283
CRITICAL THINKING EXERCISES
1. Martha Smith went to a K-Mart store at about 7:30 pm on
September 8 to purchase some diapers and several cans of motor oil.
She took her small child along to enable her to purchase the correct
size diapers, carrying the child in an infant seat that she had
purchased at K-Mart two or three weeks previously. A large K-Mart
price tag was still attached to the infant seat.
Martha purchased the diapers and oil, and some children’s
clothes. She was in a hurry to leave because it was then 8:00 pm, her
child’s feeding time, and she rushed through the checkout lane. She
paid for the diapers, oil, and clothing. Just after leaving the store she
heard someone ask her to stop. She turned around and saw a K-Mart
security guard, who asked, “Would you please come back into the
store?” Martha replied, “What for?” The security guard pulled out a
store badge, showed it to her, and said that if she would just come
back into the store, he would like to talk to her about it.
When Martha hesitated, the security guard grabbed her by the
arm and led her back into the store, stopping just inside the doors.
The guard then told Martha that one of the K-Mart employees had
informed him that she saw Martha steal the car seat. Martha denied
that she had stolen the seat and explained that she had purchased
the seat previously. She demanded to see the person who accused
her of stealing the seat. The security guard said that it would take a
while to find the employee. Martha asked if they could wait in a more
private place, but the guard said that they could not.
After approximately 20 minutes, the employee was found. The
employee stated that she saw Martha steal the infant seat by taking
it off a table and putting her baby in it. Martha pointed out to the
security guard that the seat had cat hairs, food crumbs, and milk
stains on it. The guard then said, “I’m really sorry; there’s been a
terrible mistake. You can go.” Martha looked at the clock as she left.
The time was 8:30 pm.
The following statute, ch. 203, § 99, applies to the situation.
A merchant or merchant’s adult employee who has probable cause for believing that a
person has stolen store merchandise may detain such person in a reasonable manner
for a reasonable length of time.
If Martha sues K-Mart for false imprisonment, do you think she
would win her case, or do you think K-Mart has a valid defense? Why?
2. Review the situation of Mrs. Day presented at the beginning of
the chapter. What torts do you think Mr. Day committed?
3. Prosenjit Podar killed Tatiana Tarasoff. Two months earlier
Prosenjit had told Dr. Lawrence Moore, a psychologist, that he
intended to kill Tatiana. Dr. Moore did not warn Tatiana or her parents
of Prosenjit’s intention. What policy considerations would argue
against finding the psychologist liable? How do you think an attorney
representing Tatiana’s parents would reply to those arguments?
p. 283
p. 284
4. The defendant company entered a float in a parade. As the
float traveled down the street, employees threw candy to the crowd.
Children running to collect the candy injured a spectator. Develop an
argument for why the spectator should be allowed to sue the
company.
5. A grocery store customer was mugged on a sidewalk adjacent
to a shopping center. The mugging occurred immediately after the
customer left the store. The sidewalk was owned not by the grocery
store but by the shopping center. The grocery store knew of
numerous similar muggings on the sidewalk. The store employees
used the sidewalk to carry bags to customers’ cars, and its lease
provided that the store could hold sidewalk sales there. Analyze
whether the grocery store should be held liable for the customer’s
injuries.
6. A young woman, Melissa, returned from a solo bicycling trip on
Cape Cod to find that her car would not start. A young man, Michael
Gentile, lent her his cell phone so that she could call her parents. Her
father, who was a member of AAA, called AAA and asked that a tow
truck go to the location of his daughter’s disabled car. Two hours later
the tow truck appeared. The driver asked Melissa where she wanted
her car towed but did not offer to give her a ride. Michael offered to
give her a lift to her mother’s house. She accepted. Somewhere along
the way Michael raped and killed her. The parents have sued AAA for
negligence. AAA has filed a motion to dismiss. How do you think the
court ruled? Why?
7. Every year Camp Good Times holds a hike to the top of Mount
Snow or to the top of Barton Hill. Of the two hikes the one up Mount
Snow is a bit more arduous, but either can be accomplished in under
an hour. This past year the campers, who ranged in age from seven to
twelve, voted to hike up Mount Snow. The 50 campers and two camp
counselors made it to the top of the hill in about half an hour with no
problems. On the way back down, however, eight-year-old Timmy
tripped over a large moss-covered log lying across the path. As a
result of his fall he suffered a broken leg. His parents now want to
know whether they can successfully sue the camp for Timmy’s injury.
Please evaluate their claim based on Sauer v. Hebrew Institute of
Long Island, Inc. (pages 245-246).
8. Two crime victims were killed, having been shot. The families
wanted to sue the handgun manufacturer under the theory that
manufacturers of handguns negligently marketed them in such a way
as to create an underground market, making it easy to obtain the
guns. However, the plaintiffs were not able to identify which specific
manufacturer made the handguns used in the shootings. Should they
be allowed to pursue their lawsuit and, if so, against whom?
9. An alarm company delayed calling the fire department. By the
time the firefighters arrived, the fire had advanced to such a stage
that one of the firefighters was killed. The firefighter’s widow sued the
alarm company, alleging its negligent delay in calling in the fire
resulted in her husband’s death. How do you think the court decided?
Why?
10. Assume you are a legislator and want to draft a statute
dealing with social host liability. How would you fashion such a rule?
For example, would you limit liability to those cases
a. where minors are involved?
b. where the host knows the guest is intoxicated?
p. 284
p. 285
c. where the host actually serves the alcohol? How would you
avoid the concern that finding liability in some cases would
potentially lead to unlimited liability for social hosts?
11. Do you think a social host should be liable for accidents
caused by drivers who obtained alcohol from the social host? Why?
For example, consider the following facts. Margaret Davis gave her
daughter, a high school student, permission to hold a party. Davis did
not keep alcoholic beverages in her home, and there were none on the
night of the party. Before the party began, Davis left. During the
unchaperoned party a 17-year-old guest obtained beer brought to the
party by another guest. While driving home intoxicated, the guest lost
control of his car and injured Ruth Langemann. Should Langemann
be allowed to sue Davis for her injuries?
12. In McGuiggan v. New England Telephone & Telegraph Co., the
Massachusetts Supreme Judicial Court established a test for when
social hosts will be held responsible for harm that comes to one of
their guests. Please review the standard set by that court as given on
page 254. Then think about the following hypothetical:
Seventeen-year-old Sally held a party. She had some friends buy two kegs of beer and
bring them to the party. She paid for the kegs and was then partially reimbursed by the
other guests. At some point, four men whom she had not invited appeared at the party.
They were visibly intoxicated and while at the party helped themselves to Sally’s beer.
Shortly after the uninvited guests arrived, Tom, one of Sally’s friends, told her he was
leaving. She asked him to stay because she was apprehensive about the four uninvited
men. Tom stayed and later was “sucker punched” by one of those uninvited guests. Tom
has sued Sally for his injuries. Sally’s attorney filed a motion to dismiss.
How do you think the court ruled? Why?
13. Mr. Alack joined a local health club. He signed a two-page,
singlespaced contract that included the following language:
Member assumes full responsibility for any injuries, damages or losses and does hereby
fully and forever release and discharge [the health club] from any and all claims,
demands, damages, rights of action, or causes of action, present or future . . . resulting
from or arising out of the Member’s . . . use or intended use of said gymnasium or the
facilities and equipment thereof.
One day while he was exercising, the handle of a rowing machine
disengaged from the weight cable and smashed into Mr. Alack’s
mouth. It was discovered that the machine’s handle was not
connected with the necessary clevis pin and that the health club did
not require periodic inspections of its equipment. How would you
argue that the release would not bar Mr. Alack from suing the health
club for its negligent failure to maintain the rowing machine?
14. Before taking part in a horseback riding tour at the Loon
Mountain Equestrian Center, Ms. Wright signed the following release:
I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY.
. . . I therefore release Loon Mountain Recreation Corporation . . . FROM ANY AND ALL
LIABILITY FOR DAMAGES AND PERSONAL INJURY TO
p. 285
p. 286
MYSELF . . . RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION
CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY
MAINTENANCE OF ANY HORSE.
While on the tour, the guide’s horse kicked Ms. Wright in the leg.
Ms. Wright sued for negligence, arguing that the tour guide had failed
to control the horse after it had given signs it was about to “act out.”
How would you argue that the release should not bar Ms. Wright from
suing the tour company? What if Ms. Wright, a relatively
inexperienced rider, had been injured after having been put on a horse
named “Killer,” a horse known to be difficult. Do you think that this
waiver would bar her from suing the tour company?
15. One of the events at a local fair involved paying to ride a
mechanical bull. John Lilya watched as a rider was thrown from the
mechanical bull. John then paid his $5 and signed a release that read:
I acknowledge that riding a mechanical bull entails known and unanticipated risks which
could result in physical injury. I expressly agree to accept all the risks in this activity. My
participation is purely voluntary, and I elect to participate in spite of the risks.
John mounted the bull and was immediately thrown. He stood up and
got back on the bull. He was thrown again. This time when he fell, he
fractured his neck. How do you think an attorney representing the fair
sponsors would have argued that John assumed the risk of his
injury?
16. First review the Irwin case beginning on page 259. Then think
about this hypothetical.
Jason was a tenth grader at Dartmouth High School, a Massachusetts public school.
One day last April three “youths” who did not attend the school had a violent altercation
at the school with two of Jason’s classmates. Later that day the three youths returned
to the school, proceeded to a second-floor classroom, and stabbed Jason to death.
Jason’s mother has sued the school for negligence, alleging that it failed to maintain
adequate security and failed to protect her son in the presence of a known threat. The
school has filed a motion to dismiss on two grounds: first, that they are protected by the
discretionary function exception to the Massachusetts Tort Claims Act and second, that
the attack was unforeseeable.
How do you think the court ruled? Why?
17. An amateur soccer game was played between high school–
aged players. Julian Nabozny was a goalie. David Barnhill was a
forward for the opposing team. David was known for being a very
rough player, having acquired more penalties than any other player on
the team. Rather than cautioning David to play a clean game, David’s
coach urged all his players to play as hard as they could and to “go for
the kill.”
During the game David kicked Julian in the head while Julian was
in possession of the ball. Contact with a goaltender while he is in
possession of the ball is a violation of FIFA (International Association
Football Federation — soccer’s international governing body) rules,
which governed the contest.
p. 286
p. 287
When Julian’s dad saw David kick his son in the head, he jumped
out of his chair, rushed onto the field, and hit David in the chin with his
fist, breaking David’s jaw.
Another parent, Mike Bishop, also rushed onto the field. Afraid that
Julian might be hurt further, he scooped him up and carried him off
the field. Unfortunately, when David had kicked Julian, he had broken
his neck. When Mike picked him up, the movement caused
compression in Julian’s spinal cord, leaving him permanently
paralyzed from the waist down.
a. Julian wants to sue David, the other player. In his complaint,
which tort theory is Julian’s attorney most likely to allege
and what will he have to prove for Julian to be successful?
b. Julian also wants to sue the coach. In his complaint, which
tort theory is Julian’s attorney most likely to allege and what
will he have to prove for Julian to be successful?
c. Finally, Julian wants to sue the parent who “helped” him. In
his complaint, which tort theory is Julian’s attorney most
likely to allege and what will he have to prove for Julian to be
successful?
d. For the court to allow David to recover against Julian’s dad,
on what tort theory will David’s attorney rely?
18. Return to the fact situation with which we opened this
chapter. Have your thoughts changed about whether Maria should be
able to sue Dennis for the injuries she suffered? What arguments do
you think Maria’s attorney would you make? What counterarguments
would you expect Dennis’ attorney to raise?
19. A 15-year-old threw a 2.5 pound piece of concrete from an
overhead pass. It went through the windshield of the truck Barbara
Collins was driving. As a result, she suffered severe brain injuries. She
sued the manufacturer of the truck, under a theory of strict product
liability, claiming that the windshield was defective because its
penetration resistance was inadequate. In turn, the truck
manufacturer argued that the juvenile’s criminal conduct was a
superseding cause that relieved it of liability. Who do you think has
the better argument and why?
20. Alison, a 14-year-old girl, attempted to spray her hair using an
aerosol can of AquaNet. When nothing came out, she cut open the
can, planning to pour the contents into an empty aerosol bottle.
Unhappily, while attempting this operation, she was standing next to
a gas stove. The stove was not on, but its pilot light ignited the
escaping hair spray, which in turn ignited Alison. She sued the
manufacturer of AquaNet for failing to adequately warn about the
product’s flammability. Do you think she was successful? Why or why
not?
WEB EXERCISES
1. Use Google, www.google.com, or go to socialhostliability.org to
research the social host law in your state. Do you agree that
adults providing alcohol to minors (even their own children)
should be held liable if the minor hurts himself or another? Also,
should social hosts be subject to criminal prosecution?
p. 287
p. 288
2. Now for the lighter side of the law. Go to
www.dumbwarnings.com. Do you agree that all of the warnings
listed are “dumb” or do you think they serve a purpose?
REVIEW QUESTIONS
Pages 213 through 223
1. How can the same set of facts result in both a tort and a crime?
Will every tort also create criminal liability?
2. How can a tort be distinguished from a contract action?
3. What are the elements of assault? Of battery?
4. How can there be an assault and no battery? A battery without an
assault?
5. Review the situation of Mrs. Day presented at the beginning of
the chapter. Do you think she has a valid claim for either assault
or battery? Why?
Page 223
6. What are the elements of false imprisonment?
7. When does a shopkeeper have a valid defense to a detained
person’s allegation of false imprisonment?
Pages 223 through 226
8. What are the elements of libel? The defenses?
9. In New York Times v. Sullivan, what limitations did the Supreme
Court put on the ability of public figures to sue the press?
10. Assume Robin Barker dictates a letter to her secretary. The letter
is addressed to Ms. Wanda Jones. In the letter Ms. Barker tells
Ms. Jones that she thinks Ms. Jones is a thief. The secretary
types and mails the letters to Ms. Jones. Can Ms. Jones sue for
defamation? What element is arguably missing?
11. A grocery store employee followed a customer to the parking lot
and accused her of having meat in her purse. The customer
opened her purse and showed that she did not have any meat,
and the employee left. Several passersby heard the remarks, but
the plaintiff could not identify any of them. Should the customer
be barred from proceeding with a defamation suit? Why?
Pages 226 through 234
12. How do the torts of defamation and invasion of privacy differ?
13. What must a plaintiff prove to win a case of intentional infliction
of emotional distress?
Pages 234 through 244
14. What are the four basic elements of a negligence claim?
15. Do you think the result in the Cordas case would have been
different if Mrs. Cordas and her two children had been in the
taxicab rather than standing on the sidewalk? Why?
p. 288
p. 289
Pages 244 through 255
16. Explain the doctrine of res ipsa loquitur.
17. When might the court find that a defendant was negligent per se?
18. What is the difference between “but for” causation and proximate
cause?
Pages 256 through 260
19. Describe the three basic affirmative defenses to negligence. How
do they differ from each other?
20. A state court judge approved a mother’s petition to have her
“somewhat retarded” daughter sterilized. The daughter was told
that she was to have her appendix removed. Later the daughter
married and found out that she had been sterilized. She sued the
judge. How do you think the court resolved the case?
21. A public high school required parents to sign a release-of-liability
form before allowing their children to participate in
interscholastic athletics. The parents objected to having to sign
the form and went to court, requesting that the school district be
enjoined from requiring the release. How do you think the court
decided the issue?
22. State building codes set forth requirements for safe buildings. If a
building inspector fails in his duty to carefully inspect a building,
do you think a purchaser of such premises would have a cause of
action for buying a building that was developed in violation of the
governmental requirements? Why?
Pages 261 through 266
23. How is recklessness defined? How does it differ both from
intentional conduct and negligence?
24. In what areas of tort law are you most likely to see the courts
applying a recklessness standard? Why?
Pages 266 through 277
25. Describe the three theories that a plaintiff can use to sue a
manufacturer when harmed by that manufacturer’s product.
26. A woman keeps a dog as a pet. One day the neighbor children
accidentally throw a Frisbee into her yard. In attempting to
retrieve the Frisbee one of the children is severely bitten by the
dog. Should the dog’s owner be held strictly liable? Why?
27. Manuel Sanchez began smoking at the age of ten. Over his
lifetime he smoked several different brands of cigarettes. At the
age of 53 he was diagnosed with throat cancer and died within
six months. His widow sued nine different cigarette
manufacturers on the theory of strict liability. To win her case,
what would Mrs. Sanchez have to prove? Do you think she was
successful?
28.Five-year-old Daphne took a disposable lighter from her mother’s
purse that was stored on the top shelf of a closet in a bedroom in
her grandparents’ home. While playing with the lighter, she
started a fire that severely burned her two-year-old brother,
Ruben. While the lighter manufacturer produced lighters both
with and without child safety mechanisms, this lighter did not
have one. The children’s mother sued the manufacturer
p. 289
p. 290
of the lighter. If you represented the mother, how would you argue
the manufacturer should be held liable for the boy’s injury? How
do you think the lawyers for the manufacturer would respond?
Pages 277 through 282
29. What are the three basic types of damages that a plaintiff can
recover in a tort action, and what is the purpose of each?
30. What is the difference between general and special damages?
31. What limits has the United States Supreme Court placed on the
ability of a plaintiff to recover for punitive damages?
1
424 S.W.2d 627 (Tex. 1967).
7
The deposition of Kendra Knight was taken on October 19, 1988, and offered in support of
the motion for summary judgment. Ms. Knight testified as follows
“Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any
reason to believe he had any intention to hurt you?”
“A. No.”
2
376 U.S. 254 (1964).
3
Id. at 279-280.
4
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
5
144 Cal. App. 3d 991 (1983).
6
Id. at 997.
7
Id. at 999.
8
Id. at 1013.
9
Id. at 1020 (dissenting opinion).
10
443 U.S. 111 (1979).
11
47 U.S.C. § 230 (2019) provides:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of —
(A) any action voluntarily taken in good faith to restrict access to or availability of material
that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable, whether or not such material is
constitutionally protected; or (B) any action taken to enable or make available to
information content providers or others the technical means to restrict access to material
described in paragraph (1).
12
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).
13
Tiberino v. Spokane County., 13 P.3d 1104, 1110 (Wash. App. 2000).
14
Stephen Labaton, Texaco Reported to Reach Accord on Pennzoil Suit, N.Y. Times, Dec. 19,
1987.
15
27 N.Y.S.2d 198 (1941).
16
Id. at 199-200.
17
Id. at 200.
18
Id. at 202.
19
Id.
20
539 P.2d 36 (Cal. 1975).
21
Id. at 39.
22
Id. at 41.
23
Id.
24
199 P.2d 1 (Cal. 1948).
25
607 P.2d 924 (Cal. 1980).
26
See, e.g., Leuer v. Johnson, 450 N.W.2d 363, 366 (Minn. 1990) (We conclude that the
burden of proving each respondent’s liability remains with appellant.).
27
See, e.g., Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991) ([W]e are of the
opinion that the establishment of liability requires the identification of the specific defendant
responsible for the injury.).
2
The result would be otherwise if, for example, Mr. DuBose had driven through the pool of
water and failed to stop because his brakes became wet and ineffective.
28
651 N.E.2d 154 (Ill. 1995).
29
Id. at 157.
30
Id. at 160.
31
496 N.E.2d 141 (Mass. 1986).
32
Id. at 141.
33
Id. at 146.
34
Id.
35
441 P.2d 912 (Cal. 1968).
36
520 P.2d 758 (Haw. 1974).
37
Corso v. Merrill, 406 A.2d 300 (N.H. 1979).
38
418 S.E.2d 894 (Va. 1992).
39
Id. at 895.
40
Id.
41
28 U.S.C. § 1346(B) (2019).
42
Sawyer v. Food Lion, Inc., 549 S.E.2d 867, 870 (N.C. 2001) (“gross negligence requires a
finding that the conduct is willful, wanton, or done with reckless indifference”).
43
Schick v. Ferolito, 767 A.2d 962, 969 (N.J. 2001) (emphasis added).
44
Restatement (Second) of Torts § 482(1) (1965) (“[A] plaintiff’s contributory negligence
does not bar recovery for harm caused by the defendant’s reckless disregard for the
plaintiff’s safety.”).
45
Jaworski v. Keirnan, 696 A.2d 332, 337 (Conn. 1997).
46
Id. at 338.
47
Gauvin v. Clark, 537 N.E.2d 94, 96 (Mass. 1989).
7
[T]he limited duty of care applicable to coparticipants has been applied in situations
involving a wide variety of active sports, ranging from baseball to ice hockey and skating.
Because the touch football game at issue in this case clearly falls within the rationale of this
rule, we have no occasion to decide whether a comparable limited duty of care appropriately
should be applied to other less active sports, such as archery or golf. We note that because
of the special danger to others posed by the sport of hunting, past cases generally have
found the ordinary duty of care to be applicable to hunting accidents.
48
111 N.E. 1050 (N.Y. 1916).
2
Some studies note that the average time needed for a pitcher to react to a batted ball is .4
seconds. Analysis of the sound recording from the game confirmed that the reaction time
available to Brandon to turn away or defend himself was only .376 of a second.
49
Separate from any tort claim, those alleging sexual harassment in the workplace can also
file a complaint with the Equal Employment Opportunity Commission (EEOC). See the
discussion in Chapter 14 on Employment Law.
50
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
51
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
52
Quoting Ruth Bader Ginsburg’s concurrent opinion in Harris v. Forklift Systems, Inc., 510
U.S. 17, 25 (1993).
53
Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000).
54
47 U.S.C. §230(c)(1) (2019).
55
Id.
56
Tresa Baldas, Bid to Create New Tort Over Pets Fails, For Now, Nat’l L.J., May 29, 2006, at
6.
57
According to an annual survey conducted by a major verdict search firm, in 2010 there
was a $2.5 billion verdict in an intellectual property case and an over 1.5 billion dollar verdict
in a products liability case; Top Verdict Categories, Nat’l L.J. Mar. 7, 2011, at 11.
58
Center for Justice & Democracy, “What You Need to Know about Punitive Damages,”
September 2011, accessible at centerjd.org.
59
BMW v. Gore, 517 U.S. 559, 574 (1996).
p. 290
p. 291
Contract Law
A contract has, strictly speaking, nothing to do
with the personal, or individual, intent of the
parties . . . . If . . . it were proved by twenty
bishops that either party, when he used the
words, intended something else than the usual
meaning which the law imposes upon them, he
would still be held.
Judge Learned Hand
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain the objective theory of contract law.
■ Describe the purpose of the Uniform Commercial Code.
■ Apply the basic requirements of a contract to a factual
situation.
■ List the most common defenses to a contract formation.
■ Discuss possible remedies available in a breach of contract
case.
INTRODUCTION
Contracts are involved in almost every aspect of our lives, from day-
to-day commercial transactions to corporate mergers — from
purchasing and financing a home to insuring that home, automobile,
life, or health. A contract is nothing more than an agreement, oral or
written, that can be enforced in court.
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p. 292
Contract law sets out the basic elements that must be present for an
agreement to be considered legally enforceable. It also spells out
when the court will excuse one of the parties for not living up to that
side of the agreement. In sum, contract law reflects society’s values
regarding what promises we think should be kept and what excuses
we will allow.
You will discover that contract law is very rule bound. That is, to
become an expert in contract law, you must master a vast array of
technical rules. However, do not let yourself feel overwhelmed by the
seemingly endless rules and exceptions to those rules. What is most
important is that you come to understand the basic concepts that lie
behind contract law.
Take a moment to consider the following dispute that arose
among some friends.
Case 10: Who Owns the Watch?
Sally, a paralegal student, had often told her friend Jill how
much she admired Jill’s Mickey Mouse watch. Last Monday, as the
two were walking to class, Sally noticed that Jill was wearing a
different watch and asked Jill about it. Jill replied that at her
birthday party yesterday her boyfriend gave her this new watch. “In
that case,” Sally inquired, “would you be interested in selling your
Mickey Mouse watch to me?” Jill replied, “I paid $200 for it, but
because we are friends, I will sell it to you for $100 and will bring
the watch with me tomorrow.” Sally said, “Great, it’s a deal.”
Unnoticed by Sally and Jill, Mike had overheard the conversation.
“Wait,” Mike said. “I have always wanted a Mickey Mouse watch. I
will give you $150 for the watch.” Jill thought about it for a moment
and then turned to Sally and said, “Gosh, I’m sorry, Sally, but I’m
afraid that unless you can match Mike’s offer, I will have to sell the
watch to him.” Sally replied that she could not raise her offer. Mike,
feeling a bit guilty, told Sally that on Tuesday when he got the
Mickey Mouse watch, he would no longer need his current watch
and would give it to Sally. The next day Jill sold her watch to Mike.
Mike, however, had a change of heart and refused to give his old
watch to Sally.
Sally is understandably upset by the turn of events and wants to
know if she has any legal rights against either Jill or Mike. Keep
Sally’s situation in mind as you read through this chapter.
A. THE UNIFORM COMMERCIAL CODE (UCC)
Contract law has strong common-law roots, and in areas that do not
deal with the business world, the common-law rules still govern.
However, if a contract involves a business setting, then you may also
have to consult legislation, in the form of the Uniform Commercial
Code (UCC). The UCC is a series of model statutory provisions
drafted by prominent legal scholars. It was developed with the intent
that states would voluntarily incorporate these provisions into their
own statutes, thus providing a uniform set of legal
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p. 293
principles that would facilitate commercial transactions among
persons in different states.
All states, as well as the District of Columbia, have adopted the
UCC entirely or in part; however, it is not a federal law. That would
require its enactment by Congress. Although the UCC was created by
a group of learned scholars in the hopes of establishing uniformity for
businesses that deal across state lines, the terms of the UCC are valid
only if they have been adopted by the state. In addition, while most
states have adopted the UCC as it was originally written, each state
has the option of changing the terms. Therefore, when dealing with
the UCC in a specific state be sure to check that state’s precise
wording.
The UCC is divided into ten articles (Figure 8-1). The four articles
that are most relevant to contract law are Articles 1, 2, 2A, and 9.
Article 1 sets forth general provisions, such as definitions that apply
to the entire UCC. Article 2 deals with the sale of goods, and Article 9
deals with secured transactions, a method whereby a creditor can be
assured that if the debtor fails to repay the debt, the creditor can
obtain specific property as an alternative form of payment. Therefore,
while the UCC applies to some contract situations, it does not apply
to all. For example, the UCC does not apply to real estate or service
contracts. The discussion in this chapter is based on the law of
contracts as developed by the common law. However, wherever
Article 2 of the UCC has made a significant change to the common
law, we will also discuss that change. Article 2A on leases is a new
provision. To see whether it has been adopted in your state, you need
to check your state statutes. We will discuss Article 9 in Chapter 10,
Laws Affecting Business.
Article 1 sets forth the basic principles that underlie the entire
UCC.
■ Article 1 states that the UCC is to be liberally construed in order
to best fulfill its underlying purposes to “simplify, clarify and
modernize the law governing commercial transactions,” to
“permit the continued expansion of commercial practices
through custom, usage and agreement of the parties,” and “to
make uniform the law among the various jurisdictions.” UCC §
1-102(2).
■ The parties are almost always free to set their own terms, even
if they are at variance with the UCC’s requirements. UCC § 1-
102(3).
■ Unless displaced by a particular part of the UCC, the common-
law rules of contract still apply. UCC § 1-103. Therefore, unless
there is a conflict between the common law and the UCC, both
apply, for example, to contracts for the sale of goods.
■ Under the UCC everyone is under an obligation to act in good
faith, defined as honesty in fact. UCC § 1-203.
Article 2 applies to sales of goods. A sale is defined as “the
passing of title from the seller to the buyer for a price.” UCC § 2-
106(1). Goods are “all things (including specially manufactured
goods) which are movable . . . other than the money in which the
price is to be paid, investment securities (Article 8) and things in
action. ‘Goods’ also includes the unborn young of animals and
growing
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p. 294
crops and other identified things attached to realty as described in
the section on goods to be severed from realty (Section 2-107).” UCC
1
§ 2-105(1).
Article 1 General Provisions
Article 2 Sales
Article 2A Leases [New]
Article 3 Commercial
Article 4 Paper Bank Deposits and Collections
Article 5 Letters of Credit
Article 6 Bulk Transfers
Article 7 Warehouse Receipts, Bills of Lading, & Other Documents of Title
Article 8 Investment Securities
Article 9 Secured Transactions
Article 10 Effective Date and Repealer
Figure 8-1 The Uniform Commercial Code
If the situation does not involve a contract for the sale of goods,
Article 2 of the UCC does not apply at all. Therefore, it does not apply,
for example, to employment or service contracts. One area of
confusion is the mixed services/goods situation. For example,
assume you go to a beauty parlor to have your hair dyed. Are you
there to purchase the services of the beautician or to purchase the
dye? In those situations the court will try to determine which element
predominates — the service or the sale of the goods. Only if the court
perceives the transaction as being principally for the sale of goods
will it apply the UCC.
As the UCC was specially developed to make the commercial
world more uniform and efficient, there are special rules that apply
only to merchants. For example, a merchant’s obligation of good faith
includes “honesty in fact and the observance of reasonable
commercial standards of fair dealing in the trade.” UCC § 2-103(b).
Therefore, merchants are expected not only to deal honestly but also
to be aware of the normal business practices for their trade.
A merchant is someone who
1. deals in the goods that are the subject of the contract, or
2. “holds himself out as having knowledge or skill peculiar to the
practices or goods involved” in the contract, or
3. employs someone who has such knowledge and skill. Under
this last standard the employee’s knowledge and skill are then
attributed to the employer. UCC § 2-104(1).
Notice how broad this definition is. Normally we would all think of
the person referred to in the first definition as a merchant. However,
under the second definition even someone with a great deal of
knowledge in an area, such as a law professor who as a hobby also
happens to be a knowledgeable collector of antiques, could be
declared a merchant when dealing in the sale or purchase of
antiques. Finally, notice under the third definition that a person will
also be considered a merchant if that person employs someone who
meets the second definition.
Therefore, in summary, whenever you are faced with a contract
situation, first ask yourself, Does this contract deal with the sale of
goods? If the answer is yes, then ask whether either or both of the
parties can be classified as a merchant. If yes, then be sure to check
the special provisions that apply only to merchants. Finally, keep in
mind the UCC’s overall commitment to ensuring that all parties act in
good faith and in such a way as to promote the expansion of
commerce. See Figure 8-2.
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p. 295
Figure 8-2 Does Article 2 of the UCC Apply?
NETNOTE
The Uniform Commercial Code as revised through 2012 can be
found on the Internet at: www.law.cornell.edu/ucc.
B. TYPES OF CONTRACTS
As you may recall from Chapter 3, for a contract to be valid there
must be an offer, an acceptance of the offer, and consideration; that
is, something of value must be exchanged. However, before
proceeding with our discussion of the elements of a binding contract,
we need to mention the various ways in which courts classify
contracts. Contracts can be either bilateral or unilateral, express or
implied in fact, formal or informal, executed or executory, and valid,
void,
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p. 296
voidable, or unenforceable. These are mutually exclusive terms. A
contract is always either bilateral or unilateral, and either express or
implied in fact, and either formal or informal, and either executed or
executory, and valid, void, voidable, or unenforceable.
A bilateral contract is one where a promise is exchanged for a
promise. In a unilateral contract a promise is exchanged for an act.
For example, I say to you, “I promise to pay you $5 if you will promise
to mow my lawn.” If you reply, “O.K., for $5 I promise to mow your
lawn,” we have formed a bilateral contract. However, if I say, “I
promise to pay you $5 if you will mow my lawn,” I have made an offer
for a unilateral contract. I promise to pay in return for your act of
mowing the lawn. This may seem like a lot of quibbling over a
difference that should not matter, but it can matter if both parties do
not fully perform. In the first case we have a completed contract: an
offer, an acceptance, and something of value to be exchanged. Both
parties are bound to perform. In the second situation, however, we
only have an offer. Acceptance cannot come except by doing the act
of mowing. The question is, does simply starting the act of mowing
create an acceptance, or must the entire job be completed before the
acceptance is finalized? For example, if you begin mowing my lawn,
am I free to take back my offer, or do we at that point have a binding
contract? The traditional view is that we do not. I am free to withdraw
my offer at any time up until the act is completed. Because of the
obvious unfairness of that approach, the more modern view states
that once substantial performance has begun, the contract is binding.
The obvious question is, what constitutes substantial performance?
That must be determined on a case-by-case basis.
Contracts can also be express or implied in fact. Express
contracts are formed through words, either oral or written. Implied-
in-fact contracts are formed through conduct. For example, if you
say to Susan, “I would like to sell you my watch for $10,” and Susan
says, “I accept,” through your words you have formed an express
contract. On the other hand, consider what would happen in the
following scenario. A teenager in your neighborhood has been
mowing your lawn for a year. Every time she has mown your lawn you
have paid her $20. One Saturday, she mows your lawn and you watch
from your front porch as you drink a lemonade. Even though no
words were spoken, you have formed an implied-in-fact contract.
Third, contracts can be either formal or informal. For most
contracts today there are no special formalities that must be
followed. Therefore, most contracts are classified as informal. There
are a few exceptions, however. Certain contracts, such as those that
transfer real estate, still require certain formalities. Other formal
contracts include those under seal; a recognizance, which is an
acknowledgment in court that a person will pay or act; negotiable
instruments, such as a check; and letters of credit. All other contracts
are classified as informal.
Once the parties have exchanged binding promises, a contract
has been formed. Until it is fully performed, it is considered to be
executory. Once both sides have fully performed, it is said that the
contract has been executed. Be careful here. Executed also has
another meaning in contract law: that a contract has been signed.
Finally, most contracts are classified as valid, having all the
essential elements needed for a binding agreement. If a court finds,
however, that the contract is for an illegal purpose, it will be declared
void. In certain circumstances,
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if one of the parties was under a disability, such as being a minor,
when he or she signed it, the court will say that the contract is
voidable at the option of that party. Finally, there are times when two
parties have entered into a perfectly valid contract, but because of a
procedural error, such as the passage of the statute of limitations or
the failure to put the contract in writing, the court will say the contract
is unenforceable. Each of these possible contract classifications is
summarized in Figure 8-3.
Bilateral or Unilateral and
Express or Implied in fact and
Formal or Informal and
Executory or Executed and
Valid or Void or Voidable or Unenforceable
Figure 8-3 Contract Classifications
DISCUSSION QUESTION
1. We all enter into contracts every day. Think back over the past
week, and list all the contracts that you have entered into.
C. THE ELEMENTS OF A BINDING CONTRACT
A contract can be either oral or written, but in order to be considered
valid, each of its three key elements must be present:
1. An offer must be made,
2. an acceptance must be given, and
3. something of value must be exchanged (consideration).
Some writers list only two elements: an agreement and consideration.
In such formulations an agreement is defined as both an offer and an
acceptance, and consideration is defined as the exchange of
something of value.
It is important to clearly distinguish a contract from a gift. A gift
may also involve an offer (someone offers to give you something), an
acceptance (you respond that you would like the gift), and the
passage of something of value (the gift itself). The difference is that
in a gift situation the consideration is one-sided. Only one of the
parties receives something of value. On the other hand, in a contract
situation each party gives up something of value. Because of this
difference, a contract is completed and binding on both parties once
the parties have reached their agreement. However, a gift is not
completed until the thing of value is actually delivered. This difference
becomes important if one of the parties tries to take back a promise.
In a contract situation the taking back of the
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p. 298
promise creates a right in the other party to sue for breach of
contract. In a gift situation, prior to delivery of the gift, the giver is free
to take back the promise with no legal consequences. Consider the
situation we described at the beginning of the chapter.
Sometimes in analyzing contract situations it is helpful to diagram
them. The arrow indicates something of value passing from one party
to the other.
Looking at the first situation between Sally and Jill we see there
was an agreement to exchange something of value. Recall that to
form a binding contract, there must be an agreement to sell. Jill said
she would sell the watch for $100 (an offer) and Sally said, “I agree”
(an acceptance); also, something of value must be exchanged: Sally
was going to give $100 in return for the Mickey Mouse watch.
Therefore, Sally and Jill had a binding contract. By selling the watch
to someone else Jill is in breach of contract. Sally is entitled to the
benefit of her bargain. However, it is unlikely that the court would
order Jill to sell the watch to Sally. Such an order for specific
performance occurs only when the item is unique. Instead Sally
would be entitled to money damages. In this case she can purchase a
similar watch, and if it costs more than the $100 she had agreed to
spend, she can recover that difference.
The second situation illustrates a fully executed contract. Mike
made an offer, Jill accepted, and they agreed to exchange something
of value. A binding contract was formed. Then when they fulfilled
their promises, the contract was fully executed.
In the third situation, involving Sally and Mike, there was no
contract. Sally did not agree to exchange anything with Mike. Mike
simply offered to give Sally his old watch. For a gift to be complete,
however, delivery must occur. Because Mike never handed Sally the
watch, there was no completed gift, and Sally has no rights to Mike’s
watch.
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p. 299
The courts treat these situations so differently because in a
contract negotiation both parties give up something of value. In the
second situation, however, the transaction is one-sided. Because gift
givers receive nothing in return, they should be allowed time to
reconsider up until actual delivery. The delivery then provides proof
that there was intent for a gift to occur.
1. Offer and Acceptance
In order for a valid contract to be formed, there must be mutual
agreement to create a legally binding relationship. Whether there is a
valid offer and acceptance is determined by the objective theory of
contract. An objective theory means that the parties’ intent is
determined by whether an outside observer could discern a serious
intent to be bound. A subjective theory would ask what the parties
actually intended. Therefore, the objective theory calls for a review of
what was said, how the offeror acted, and the circumstances rather
than of what the parties claim they were thinking at the time.
a. Offer
An offer is a promise to do something — for example, to sell a
product or provide a service — that is conditioned on the other party’s
promising to do something in return — for example, to pay money or
provide some other type of goods or services. The offer sets the
parameters of the agreement and gives the other party the power to
bind them to a contract.
Sometimes it may be difficult, however, to determine whether a
statement really was an offer. For example, it could merely have been
an expression of an intention to enter into further negotiations. In
other circumstances a person making the statement might argue
that the alleged offer was intended as a joke rather than as a serious
offer. In all situations, for an offer to be valid, it must be obvious to an
outside observer that the offeror meant to be bound.
In addition, the terms of the offer must be sufficiently definite so
that a court can fashion a remedy. To be definite, the offer must
contain at least the following four items:
1. the parties,
2. the subject matter of the contract,
3. the price, and
4. the time for performance.
When the time for performance is very important to the parties, as
in the case of the sale of perishable fruit, then the time for
performance may be stated along with the phrase “time is of the
essence.”
Finally, and perhaps obviously, the offer must be communicated
to the offeree. Usually, this last requirement does not present any
problems except in the case of rewards. Some courts have held that
if a person fulfills the terms of a reward — for example, returning a
lost dog to its owner — without knowing beforehand of the reward,
that person cannot claim the reward, as it was never communicated
to him or her.
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p. 300
(1) Statements of intent and preliminary negotiations
Problems can arise if the offeror uses words that indicate an
intention to begin negotiations but no intention to be bound. For
example, assume Sam says, “I am thinking of selling my car. What
would you give me for it?” If John replies, “I will give you $750 for it,”
Sam has made only a statement of intent, not an offer. John’s reply is
the offer, and it is up to Sam whether he wants to accept or not. When
an offeror asks, “Will you buy?” or says, “I plan to sell,” this also gives
rise to the inference that the offeror was only beginning the process
of negotiation but was not yet ready to be bound by the statements.
(2) Terms definite
The courts require that the basic contract terms be definite not
only as a basis on which they can fashion a remedy but also as
evidence that a bargain was truly struck. For example, assume Sam
says, “I want to sell my car,” and John replies, “Done!” There is no
contract. How can either Sam or John be bound if neither knows the
price? Similarly, ads are usually not viewed as offers because their
terms are too indefinite to constitute an offer. The following case,
however, presents an interesting exception to that rule. As you read
the case, look for what differentiated this ad from the usual ad.
Lefkowitz v. Great Minneapolis Surplus Store, Inc.
251 Minn. 188, 86 N.W.2d 689 (1957)
This case grows out of the alleged refusal of the defendant to
sell to the plaintiff a certain fur piece which it had offered for sale
in a newspaper advertisement. It appears from the record that on
April 6, 1956, the defendant published the following advertisement
in a Minneapolis newspaper:
“Saturday 9 A.M. sharp
3 Brand New
Fur Coats
Worth to $100.00
First Come
First Served
$1 Each”
On April 13, the defendant again published an advertisement in
the same newspaper as follows:
“Saturday 9 A.M.
2 Brand New Pastel
Mink 3-Skin Scarfs
Selling for $89.50
Out they go
Saturday. Each $1.00
1 Black Lapin Stole
Beautiful,
worth $139.50 $1.00
First Come
First Served”
The record supports the findings of the court that on each of
the Saturdays following the publication of the above-described ads
the plaintiff was the first to present himself at the appropriate
counter in the defendant’s store and on each occasion demanded
the coat and the stole so advertised and indicated his readiness to
pay the sale price of $1. On both occasions, the defendant refused
to sell the merchandise to the plaintiff, stating on the first occasion
that by a “house rule” the offer was intended for women
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p. 301
only and sales would not be made to men, and on the second visit
that plaintiff knew defendant’s house rules.
The trial court properly disallowed plaintiff’s claim for the value
of the fur coats since the value of these articles was speculative
and uncertain. The only evidence of value was the advertisement
itself to the effect that the coats were “Worth to $100.00,” how
much less being speculative especially in view of the price for
which they were offered for sale. With reference to the offer of the
defendant on April 13, 1956, to sell the “1 Black Lapin Stole . . .
worth $139.50 . . .” the trial court held that the value of this article
was established and granted judgment in favor of the plaintiff for
that amount less the $1 quoted purchase price.
1. The defendant contends that a newspaper advertisement
offering items of merchandise for sale at a named price is a
“unilateral offer” which may be withdrawn without notice. He relies
upon authorities which hold that . . . such advertisements are not
offers which become contracts as soon as any person to whose
notice they may come signifies his acceptance. . . . Such
advertisements have been construed as an invitation for an offer
of sale on the terms stated, which offer, when received, may be
accepted or rejected and which therefore does not become a
contract of sale until accepted by the seller; and until a contract
has been so made, the seller may modify or revoke such prices or
terms.
. . .
The test of whether a binding obligation may originate in
advertisements addressed to the general public is “whether the
facts show that some performance was promised in positive
terms in return for something requested.” 1 Williston, Contracts
(Rev. ed.) § 27.
The authorities above cited emphasize that, where the offer is
clear, definite, and explicit, and leaves nothing open for negotiation,
it constitutes an offer, acceptance of which will complete the
contract. . . .
Whether in any individual instance a newspaper advertisement
is an offer rather than an invitation to make an offer depends on
the legal intention of the parties and the surrounding
circumstances. We are of the view on the facts before us that the
offer by the defendant of the sale of the Lapin fur was clear,
definite, and explicit, and left nothing open for negotiation. The
plaintiff having successfully managed to be the first one to appear
at the seller’s place of business to be served, as requested by the
advertisement, and having offered the stated purchase price of the
article, he was entitled to performance on the part of the
defendant. We think the trial court was correct in holding that there
was in the conduct of the parties a sufficient mutuality of
obligation to constitute a contract of sale.
2. The defendant contends that the offer was modified by a
“house rule” to the effect that only women were qualified to receive
the bargains advertised. The advertisement contained no such
restriction. This objection may be disposed of briefly by stating
that, while an advertiser has the right at any time before
acceptance to modify his offer, he does not have the right, after
acceptance, to impose new or arbitrary conditions not contained in
the published offer.
Affirmed.
CASE DISCUSSION QUESTIONS
1. Why did the court hold that in this case there was a binding
contract for the black lapin stole?
2. Why was there no binding contract for the fur coats?
3. On the plaintiff’s first visit the store informed him of its “house
rule” limiting the offer to women. Why didn’t the court find that term
to be part of the second offer?
p. 301
p. 302
■ By offeror’s revocation Unless option contract or merchant’s firm offer
■ By offeree’s rejection or counter offer
■ By operation of law
Figure 8-4 Termination of an Offer
The Lefkowitz case is an example of an ad that fulfilled all the
requirements for a valid contract by including the four basic terms: (1)
the parties; (2) the subject matter of the contract, especially quantity;
(3) the price; and (4) the time for performance. Traditionally, when any
of these terms is missing, the courts have refused to find a binding
contract. For example, assume Sara states to Judy, “I would like to
purchase some TVs from you,” and Judy says, “Agreed.” If Judy then
sells Sara only two TVs, a court would have no basis for deciding if
Judy has breached their agreement. “Some TVs” is simply too
indefinite.
The UCC has made some major changes in this area of the law.
Under the UCC a contract can be formed even if there are missing
terms. The missing terms are supplied by the UCC itself. For example,
a missing price term becomes a reasonable price. UCC § 2-305(1). If
time and place of payment are left out, payment is due at the time
and place where the buyer is to receive the goods. UCC § 2-310(a). If
the delivery term is left open, it is to be the seller’s place of business.
UCC § 2-308(a). However, if too many terms are missing, this may
show that the parties were still only in the preliminary negotiation
stage. In that situation the court will not force a contract on the
parties. In addition, quantity must always be included in the contract.
Therefore, in the example given above even the UCC could not help
Sara. With the quantity term missing there is no way of knowing
whether Judy was in breach.
There is one exception when a missing quantity term is not fatal:
requirements and output contracts. When a buyer agrees to buy all of
a commodity that he requires from a specific seller or a seller agrees
to sell all of her output to a particular buyer, a requirements or an
output contract has been created. UCC § 2-306(1). Even though the
quantity is not stated in the contract, it can be determined by the
court. A requirements contract means the buyer’s actual
requirements, not just what it ordered, and an output contract means
the seller’s actual output. Therefore, the quantity is based on an
objective standard, enforceable by the court.
(3) Termination of an offer
An offer can be terminated in one of three ways: by the offeror’s
actions, by the offeree’s actions, or by operation of law. See Figure 8-
4. First, normally the offeror can revoke the offer by words or acts if
done before acceptance. In some cases this notice of revocation can
be indirect, such as by selling the item to a third party. A revocation
terminates the offer as soon as the offeree learns of it.
An exception is the option contract. In an option contract the
potential buyer gives the seller consideration, usually money, to keep
the offer open for a stated time period. This creates a separate
contract between the potential buyer and seller. The buyer gives the
seller consideration for keeping the offer open. If during that time
period the seller sells the product to someone else, the seller is in
breach of contract.
In addition to the option contract, the UCC provides for a
merchant’s firm offer. A merchant can make an offer that is
irrevocable for a reasonable time, even without the requirement of
additional consideration. For such a firm offer to occur, the following
requirements have to be met:
p. 302
p. 303
1. The offer has to be made by a merchant
2. in a signed writing
3. that assures the buyer that the offer will remain open for a
specific period of time or, if no time is stated, for a reasonable
time.
If these requirements are met, then the merchant must keep the offer
open even though the buyer has not paid any consideration for the
arrangement. UCC § 2-205.
Second, the offeree can terminate the offer by rejecting it or by
changing the terms of the bargain by attempting to add new or
different terms. Instead of an acceptance, such an attempt to vary
the terms is seen as a rejection of the offer and a counteroffer. This
allows the original offeror the chance to accept or reject it. This
requirement that the acceptance completely agree with the terms of
the offer is known as the mirror image rule. That rule and its
exceptions under the UCC are discussed more fully in the next
section on acceptance.
Third, offers can be terminated by operation of law. By operation
of law we simply mean that certain events will make it impossible for
the offeree to accept the offer. These include lapse of time,
destruction of the subject matter, death of one of the parties, and
supervening illegality. As to lapse of time, frequently the offer includes
a specific time frame within which the other party must reach a
decision about accepting or rejecting the offer. If the other party has
not accepted it by that date, it is automatically withdrawn. If no
specific time limit is established, it is assumed to be valid for a
reasonable period of time. As you would expect, that phrase is open
to interpretation and will vary depending on the circumstances. For
example, if Sam offers to sell John his car in a face-to-face meeting, a
reasonable time might last only until the end of that meeting.
However, if Sam and John live in different states and Sam makes his
offer by mailing John a letter, a reasonable time might be at least as
long as it would take John to receive the letter and mail his reply.
b. Acceptance
Once an offer is made, it is up to the other party to accept, reject,
or propose a counteroffer. Earlier we saw that in a bilateral contract
situation the offer invites acceptance by the offeree giving a return
promise and that in a unilateral contract the offer invites acceptance
only by the offeree doing the act itself. In commercial dealings,
however, if the offeror indicates that either a promise to act or the
action itself will suffice, then when either the promise is made or a
substantial start is made on the act, the contract is formed. The UCC
explicitly states that an offer can be accepted either by sending
notification of such acceptance or by performing the act requested. If
Alice offers to pay Bruce $10 for Bruce’s bicycle, Bruce’s acceptance
can take the form of making a telephone call stating that he will sell
her the bicycle or by delivering the bicycle to her. UCC § 2-206(b).
If the offeree decides to accept, then the mirror image rule
requires that the acceptance exactly mirror the offer. The offeree
cannot add new terms or vary the original terms. If he or she
attempts to do so, the acceptance becomes a counteroffer. A
counteroffer takes away the power of the offeree to then accept the
original offer. For example, if Johns states, “I accept; please send a
written contract,” then there is an acceptance. However, if John says,
“I accept if you send a written contract,” then there is no acceptance
because John has added an additional term to the contract.
p. 303
p. 304
A mere inquiry as to the possibility of changing the terms usually will
not be seen as a counteroffer. Here again the exact language used
can be determinative of whether there was a counteroffer. If Sam
offers to sell John his guitar for $200 and John replies, “I will give you
$150 for the guitar,” that is a counteroffer. If, however, John replies,
“Would you consider $150?” that will probably not be seen as a
counteroffer, and if Sam says no, John still has the power to accept
the original offer.
The UCC has made some major changes to this mirror image rule.
Basically, the UCC states that if the parties intend to make a contract,
then the use of additional or different terms in the acceptance will not
prevent the contract from being formed. This provision recognizes
that often the parties will assume they have made a contract and will
act on that assumption even if the offer and acceptance do not
match in every detail. It was also included in response to what is
known as the “battle of the forms.”
In commercial dealings it is usual for both buyers and sellers to
use their own preprinted forms, with blanks left to fill in the essential
terms, such as quantity and price. These forms also often include a
great deal of boilerplate language regarding other terms, such as
whether in the case of a dispute the matter is to be sent to arbitration.
Generally, the court will find that a contract exists even though the
parties disagree as to some of the terms. Initially, the new terms are
viewed as suggestions for addition to the contract. Between
merchants they become a part of a contract unless the original offer
limited acceptance to its terms, the new terms “materially alter” the
contract, or the offeror objects to the terms. However, there will be no
contract if the acceptance states that the offeror must agree to the
new terms. Figure 8-5 presents a flow chart showing how to analyze
the effect of new or different terms.
Figure 8-5 The UCC and Additional Terms
p. 304
p. 305
In the following case, the defendant learned the hard way that
under the common law changes in the terms of the offer revoke the
original offer.
Ehlen v. Melvin
823 N.W.2d 780 (N.D. 2012)
The Melvins own real property in McIntosh County . . . .
On February 16, 2011, Ehlen sent the Melvins a document
entitled “Purchase Agreement,” offering the Melvins $850,000 for
the property. The agreement provided the closing of the sale of the
property would occur on or before March 1, 2011, and the total
amount for the purchase would be paid on or before the closing
date. Ehlen also attached a one-page document entitled
“Amendment to Purchase Agreement,” which itemized a list of
additional terms. Ehlen had signed the documents.
On February 18, 2011, the Melvins reviewed Ehlen’s offer with
their attorney. The Melvins modified some of the terms on the
agreement, including the correct spelling of LynnDee Melvin’s
name and the legal description of the property. The Melvins also
added multiple terms to the purchase agreement and the
amendment, including that the property was being sold “as is,” that
the mineral rights conveyed by them were limited to only those
rights they owned, and that the land was subject to a federal
wetland easement and an agricultural lease. The parties had not
previously negotiated the added terms. The Melvins hand-wrote all
of the changes on the documents they received from Ehlen and
they initialed each change. The Melvins signed the documents and
sent them back to Ehlen.
Ehlen did not contact the Melvins after they sent the
documents back to him. . . . The Melvins contacted the title
company on March 1, 2011, and learned Ehlen had not paid the
money for the property or initialed the amendments the Melvins
made. The Melvins’ attorney sent Ehlen a letter dated March 2,
2011, to confirm that the “transaction started and contemplated
between [Ehlen] and [the Melvins] is hereby terminated.”
Ehlen sued the Melvins to enforce the “Purchase Agreement,”
alleging it was a binding and enforceable contract.
. . .
A party suing for breach of contract has the burden of proving
the existence of a contract, breach of the contract, and damages. .
. .
The acceptance of a contract must comply with the terms of
the offer. The acceptance of a contract must be absolute and
unqualified, and a qualified acceptance is a counter proposal. This
Court has said:
It is also equally well established that any counter proposition or any deviation from
the terms of the offer contained in the acceptance is deemed to be in effect a
rejection, and not binding as an acceptance on the person making the offer, and no
contract is made by such qualified acceptance alone. In other words the minds of
the parties must meet as to all the terms of the offer and of the acceptance before a
valid contract is entered into. It is not enough that there is a concurrence of minds of
the price of the real estate offered to be sold.
Greenberg v. Stewart, 236 N.W.2d 862, 868 (N.D. 1975).
Here, the “Purchase Agreement” and “Amendment to the
Purchase Agreement” the Melvins received was an offer from
Ehlen to purchase the property. Although the Melvins signed the
agreement . . . the Melvins made substantive changes and
additions to the agreement and the parties did not agree upon the
essential terms. . . . To form a contract, the offer and acceptance
must express assent to the same thing. . . . We conclude the
evidence supports the . . . finding that the parties did not agree to
the essential terms of the agreement and the Melvins’
modifications to the agreement constituted a counteroffer.
p. 305
p. 306
Ehlen contends the Melvins accepted the agreement and it is a
binding contract because the agreement stated, “THIS IS A
LEGALLY BINDING CONTRACT BETWEEN BUYERS AND SELLERS.”
However, the Melvins made material changes and added new
terms to the agreement and the parties did not sign the same
agreement. [T]he use of the words that a document is “a legally
binding contract” does not mean that a contract exists.
Ehlen also argues he accepted any counteroffer the Melvins
made. . . . “It is a general rule of law that silence and inaction, or
mere silence or failure to reject an offer when it is made, do not
constitute an acceptance of the offer.” Ehlen did not sign the
modified agreement or initial the changes. There was no evidence
he complied with the terms of the agreement. . . . The evidence
supports the . . . finding that Ehlen did not accept the Melvins’
counteroffer.
We conclude the evidence supports the . . . finding that a
contract between Ehlen and the Melvins to purchase the Melvins’
real property did not exist.
CASE DISCUSSION QUESTIONS
1. What were Ehlen’s arguments for why he thought a contract
had been formed?
2. Why did the court reject those arguments?
3. Do you think if this case had been governed by the UCC instead
of common law that the result would have been different?
c. Quasi-Contract
Quasi means “as if.” Therefore, a quasi-contract is not a real
contract, but the situation is treated “as if” there was one. Usually, a
quasi-contract situation arises when there is no agreement, but in
order to avoid unjust enrichment, the court orders the party that
benefited to pay. For example, in an emergency an injured party might
not be able to ask for assistance. Therefore, there could be no
agreement between the injured person and the doctor. However, once
the doctor gives medical aid, it would be unjust to let the patient
benefit without compensating the doctor. This is an example of a
court using its equitable powers to do what it views as fair in order to
avoid allowing one side to be unjustly enriched.
AmeriPro Search, Inc. v. Fleming Steel Co.
787 A.2d 988 (Pa. Super. 2001)
Opinion of DEL SOLE, P.J.
Fleming Steel Company (“Fleming”) appeals from the judgment
entered against it, and in favor of AmeriPro Search, Inc.
(“AmeriPro”). Upon review, we reverse.
This lawsuit involves a commission sought by AmeriPro from
Fleming. AmeriPro is an employment referral firm that places
professional employees with interested employers. Fleming is a
steel fabricator. In May of 1993, Elaine
p. 306
p. 307
Brauninger, an agent of AmeriPro, contacted Fleming and inquired
about Fleming’s need for professional employees. . . . Fleming was
seeking an employee with an engineering background. . . .
Ms. Brauninger then contacted Mr. Kohn [President of Fleming].
. . . Mr. Kohn told Ms. Brauninger that the fee would be as
determined by him and AmeriPro only after an agreement to hire a
candidate was made. Ms. Brauninger agreed and told Mr. Kohn
that she would work with him on the amount of the fee. Ms.
Brauninger thereafter sent Mr. Kohn resumes of potential
candidates and a copy of AmeriPro’s Fee Agreement.
One of the candidates referred to Fleming was Dominic
Barracchini. . . . Mr. Kohn interviewed Mr. Barracchini on April 8,
1994. Fleming did not hire Mr. Barracchini because Mr.
Barracchini’s salary request was too high.
In February of 1995, Mr. Barracchini was laid off and was again
in the market for a job. Mr. Barracchini called Ms. Brauninger to
inquire whether Fleming was still trying to fill the position for which
he had previously interviewed. Ms. Brauninger never got back to
Mr. Barracchini regarding his inquiry. Mr. Barracchini then
contacted Fleming on his own. Mr. Kohn interviewed Mr.
Barracchini in June of 1995. Fleming hired Mr. Barracchini as an
engineer on June 19, 1995.
On September 6, 1995, AmeriPro sent an invoice to Fleming
claiming entitlement to $14,400.00 for placement of Mr.
Barracchini with Fleming. Fleming refused to pay the demanded
fee. AmeriPro then filed the instant action, claiming entitlement to
the commission fee.
. . .
The trial court determined that there was no express contract. .
. . The trial court did, however, find that there was a contract
implied in law, or a quasi-contract, in this case. It was on this basis
that the trial court ordered Fleming to pay AmeriPro the fee for
placement of Barracchini.
. . . We agree with the trial court that there was no express
contract in this case because the parties never agreed to the terms
of the fee. . . . We disagree, however, with the trial court’s
determination that there was a contract implied in law, or a quasi-
contract.
A quasi-contract imposes a duty, not as a result of any
agreement, whether express or implied, but in spite of the absence
of an agreement, when one party receives unjust enrichment at the
expense of another. In determining if the doctrine applies, we focus
not on the intention of the parties, but rather on whether the
defendant has been unjustly enriched. The elements of unjust
enrichment are “benefits conferred on defendant by plaintiff,
appreciation of such benefits by defendant, and acceptance and
retention of such benefits under such circumstances that it would
be inequitable for defendant to retain the benefit without payment
of value.” The most significant element of the doctrine is whether
the enrichment of the defendant is unjust. . . . Where unjust
enrichment is found, the law implies a quasi-contract which
requires the defendant to pay to plaintiff the value of the benefit
conferred. . . .
We cannot find that Fleming was unjustly enriched in this case.
. . . While it is true that AmeriPro and Brauninger first introduced
Barracchini to Fleming and the available position, that connection
was broken when Fleming refused to hire Barracchini after the
interview in April of 1994. . . .
Regardless of any benefit Fleming received by AmeriPro’s
action of first introducing Mr. Barracchini to Fleming, the
enrichment of Fleming was not unjust. Mr. Barracchini approached
Fleming the second time on his own and the two parties came to
an agreement regarding Mr. Barracchini’s employment without any
involvement by AmeriPro. . . . Because Fleming was not unjustly
enriched, we find that there was no quasi-contract, or contract
implied in law. Thus, Fleming owes AmeriPro nothing in restitution.
Judgment reversed.
Dissent by TAMILIA, J.
I would find that a quasi-contract to locate a suitable employee
for Fleming existed and that despite the elapsed time and
breakdown of negotiations in the intervening period, the contract
was breached when the parties, introduced by AmeriPro, entered
into an employment contract.
Because Barracchini and Fleming did not meet by
happenstance but as a result of the efforts of AmeriPro, I would
affirm the judgment of the trial court.
p. 307
p. 308
CASE DISCUSSION QUESTIONS
1. Why do you think the court found that there was no express
contract between AmeriPro and Fleming?
2. What was the basis for the majority also finding that no quasi-
contract existed?
3. Why did the dissent disagree?
DISCUSSION QUESTIONS
2. A homeowner hired a roofing company to put a new roof on his
house. The roofing crew mistakenly switched two of the numbers in
the address and put the new roof on the wrong house. Would the
courts treat the scenario in which the replaced roof was old and
obviously in need of repair differently from the scenario in which the
replaced roof was obviously new?
3. Much of contract law is based on the theory of freedom of
contract; that is, the parties are free to create their own contract
terms as they, and not the court, choose. How can you reconcile the
courts’ equitable power to find a quasi-contract when no contract
exists with the notion of freedom of contract?
2. Consideration
Consideration must be present for a valid contract to exist. Each
party must give something of value as part of the bargain. It can be
money, services, goods, or anything else that is a benefit to one party
or a detriment to the other. The key is that something of real value
has to be exchanged by both parties. In other words, a contract must
be distinguished from a gift. When a person promises to give
something without expecting to receive anything in return, that
promise does not constitute an enforceable contract.
At times it may appear as though something of value has been
exchanged when in actuality it has not. For example, if someone
promises to hire you and pay you “what you are worth,” the phrase is
so vague as to make the promise illusory. In addition, if someone
makes a promise because he or she feels morally obligated to do so
but receives nothing else in return, there is no consideration. For
example, assume Julie is friends with Martha. Martha feels ill but
does not have a doctor. Julie takes Martha to her doctor. Once
Martha is cured, she refuses to pay the doctor bill. Julie may feel
morally obligated to pay the bill because she took Martha to the
doctor, but she is under no contractual obligation to do so.
Also, past consideration will not support a contract. Assume I
volunteer to take care of your cat while you are away on vacation.
When you return, if you are very pleased with the job I have done and
offer to pay me for my services, no contract has been formed. I have
already done my job, and there is no new consideration for me to give
in return for your promise. Finally, if someone is under a preexisting
duty to act, performing that duty cannot serve as the consideration
for a new contract. If your house is on fire and you offer a fire fighter
$2,000 to put out the fire, you will be under no obligation to pay the
money. The firefighter is already under a preexisting duty to put out
the fire.
p. 308
p. 309
a. Detriment to Promisee or Benefit to Promisor
Both parties must exchange something of value to ensure that the
promise is not illusory and that it was bargained for. Whatever is
exchanged has to be detrimental to the party giving it up or beneficial
to the party receiving it. It need not be both. In the following classic
case ask yourself whether the uncle meant to give his nephew a gift
or to be bound to a contractual arrangement.
Hamer v. Sidway
124 N.Y. 538, 27 N.E. 256 (1891)
SYLLABUS:
The plaintiff presented a claim to the executor of William E.
Story, Sr., for $5,000 and interest from the 6th day of February,
1875. . . . The claim being rejected by the executor, this action was
brought. It appears that William E. Story, Sr., was the uncle of
William E. Story, 2d; that at the celebration of the golden wedding
of Samuel Story and wife, father and mother of William E. Story, Sr.,
on the 20th day of March, 1869, in the presence of the family and
invited guests he promised his nephew that if he would refrain
from drinking, using tobacco, swearing and playing cards or
billiards for money until he became twenty-one years of age he
would pay him a sum of $5,000. The nephew assented thereto and
fully performed the conditions inducing the promise. When the
nephew arrived at the age of twenty-one years and on the 31st day
of January, 1875, he wrote to his uncle informing him that he had
performed his part of the agreement and had thereby become
entitled to the sum of $5,000. The uncle received the letter and a
few days later and on the sixth of February, he wrote and mailed to
his nephew the following letter:
“Buffalo, Feb. 6, 1875.” W.E. Story, Jr.:
“Dear Nephew — Your letter of the 31st ult. came to hand all right, saying that you
had lived up to the promise made to me several years ago. I have no doubt but you
have, for which you shall have five thousand dollars as I promised you. I had the
money in the bank the day you was 21 years old that I intend for you, and you shall
have the money certain. Now, Willie I do not intend to interfere with this money in any
way till I think you are capable of taking care of it and the sooner that time comes
the better it will please me. I would hate very much to have you start out in some
adventure that you thought all right and lose this money in one year. The first five
thousand dollars that I got together cost me a heap of hard work. . . . This money
you have earned much easier than I did besides acquiring good habits at the same
time and you are quite welcome to the money; hope you will make good use of it. . . .
Today is the seventeenth day that I have not been out of my room, and have had the
doctor as many days. Am a little better today; think I will get out next week. You need
not mention to father, as he always worries about small matters.
Truly Yours,
“W.E. STORY.
“P.S. — You can consider this money on interest.”
The nephew received the letter and thereafter consented that
the money should remain with his uncle in accordance with the
terms and conditions of the letters. The uncle died on the 29th day
of January, 1887, without having paid over to his nephew any
portion of the said $5,000 and interest.
OPINION:
The question which provoked the most discussion by counsel
on this appeal, and which lies at the foundation of plaintiff’s
asserted right of recovery, is whether by virtue of a contract
defendant’s testator William E. Story became indebted to his
nephew William E. Story, 2d, on
p. 309
p. 310
his twenty-first birthday in the sum of five thousand dollars. . . .
The defendant contends that the contract was without
consideration to support it, and, therefore, invalid. He asserts that
the promise by refraining from the use of liquor and tobacco was
not harmed but benefited; that that which he did was best for him
to do independently of his uncle’s promise, and insists that it
follows that unless the promisor was benefited, the contract was
without consideration. A contention, which if well founded, would
seem to leave open for controversy in many cases whether that
which the promisee did or omitted to do was, in fact, of such
benefit to him as to leave no consideration to support the
enforcement of the promisor’s agreement. Such a rule could not be
tolerated, and is without foundation in the law. The Exchequer
Chamber, in 1875, defined consideration as follows: “A valuable
consideration in the sense of the law may consist either in some
right, interest, profit or benefit accruing to the one party, or some
forbearance, detriment, loss or responsibility given, suffered or
undertaken by the other.” Courts “will not ask whether the thing
which forms the consideration does in fact benefit the promisee or
a third party, or is of any substantial value to anyone. It is enough
that something is promised, done, forborne or suffered by the party
to whom the promise is made as consideration for the promise
made to him.” (Anon’s Prin. of Con. 63.) . . .
Pollock, in his work on contracts, page 166, after citing the
definition given by the Exchequer Chamber already quoted, says:
“The second branch of this judicial description is really the most
important one. Consideration means not so much that one party is
profiting as that the other abandons some legal right in the present
or limits his legal freedom of action in the future as an inducement
for the promise of the first.”
Now, applying this rule to the facts before us, the promisee
used tobacco, occasionally drank liquor, and he had a legal right to
do so. That right he abandoned for a period of years upon the
strength of the promise of the testator that for such forbearance
he would give him $5,000. We need not speculate on the effort
which may have been required to give up the use of those
stimulants. It is sufficient that he restricted his lawful freedom of
action within certain prescribed limits upon the faith of his uncle’s
agreement, and now having fully performed the conditions
imposed, it is of no moment whether such performance actually
proved a benefit to the promisor, and the court will not inquire into
it, but were it a proper subject of inquiry, we see nothing in this
record that would permit a determination that the uncle was not
benefited in a legal sense.
. . .
The order appealed from should be reversed and the judgment
of the Special Term affirmed, with costs payable out of the estate.
CASE DISCUSSION QUESTIONS
1. Why didn’t the court simply view the uncle’s offer to pay his
nephew $5,000 as a gift?
2. If the court had decided it was a gift instead of a contract
situation, how would that have changed the result?
b. Problems with Consideration
Generally, the court will not look into the adequacy of the
consideration. Simply put, the court does not care if you made a poor
bargain. The philosophy behind freedom of contract is that you are
free to make any bargain you like, even a bad one. In addition, if
people could sue to get out of their contractual obligations every time
it turned out they had made a poor bargain, the courts
p. 310
p. 311
would be flooded with lawsuits. Finally, the security of being able to
rely on contractual performance would be gone.
Traditionally, courts would look at the adequacy of the
consideration only if it was so inadequate as to raise a question, first,
as to whether some factor such as undue influence or duress was
affecting one of the parties or, second, as to whether the situation
was actually one of a gift masquerading as a contract. In recent years
the courts have also questioned the adequacy of the consideration in
those situations where the parties are of very uneven bargaining
power, and the bargain is so unfair as to “shock the conscience.” For
example, if a poor, illiterate person were to purchase a $300 freezer,
agreeing to pay 24 monthly installments of $50 each, the seller would
net a $900 profit (24 × $50 = $1,200 –$300 = $900). The court might
declare this an unconscionable contract and refuse to enforce it.
The normal rule, however, is that a court will not invalidate a
contract because one party turns out to have made a bad bargain.
Nor will the court allow the parties to renegotiate the terms of the
contract, unless there is new consideration given on both sides,
because of the preexisting duty rule mentioned earlier. Parties
typically want to renegotiate the terms of their contract when
unforeseen difficulties arise before the contract is completed. The
first hurdle is to convince the court that the unforeseen difficulties
were truly unforeseen rather than the normal types of risks that
should have been part of the original contract negotiations. Even if
the other party agrees to a change in the terms of the contract, it is
often unclear why that party agreed. It is possible that that party also
thought the changes in circumstances were unforeseeable and
justified the change. However, it is also possible that that party had
no choice and was effectively being “held up” by the party wanting the
change. For example, assume Harry hired William to build his house.
Halfway through shingling the roof William refused to continue work
unless Harry agreed to increase the price by $5,000. A major storm
was approaching, and if the roof was not finished that day, the house
would be severely damaged. Assume Harry agreed to the increase
but then later refused to pay it. The court would have to determine
whether the storm was an unforeseen circumstance necessitating
extra work on William’s part and thereby justifying the increase or
whether it was just the sort of circumstance that William should have
foreseen. If the latter is true, then he was already under a duty to
finish the house at the agreed-on price, and the homeowner would
not be required to pay the additional $5,000. In the following case, the
court took the very firm position that there can be no change in a
contract without new consideration.
The classic case illustrating this point is Alaska Packers’
Association v. Dominico. 2
A group of fishermen signed a written
contract agreeing to work for the season for $60. Once out to sea,
they demanded that their wages be increased to $100 or they would
stop working. At that point in the season, it was impossible for the
fishing company to find other fishermen and so it agreed to the new
terms. Once they returned to shore, the company refused to pay the
increased amount and the court for the Ninth Circuit agreed that they
did not
p. 311
p. 312
owe the additional money. The fishermen were already under contract
and could not force increased payment through such an act of
coercion.
Note: Once again the UCC has changed one of the common-law
rules. Under the UCC, merchants can modify a contract with no new
consideration being given. UCC § 2-209(1).
c. Promissory Estoppel
Sometimes people rely on promises to their detriment, but they
cannot sue for breach of contract because while promises were
made, they were not definite enough to amount to consideration.
Nonetheless, some courts think it would be unfair not to compensate
the person who relied on the promise. In that situation the promisor is
estopped, or prevented, from revoking his promise. This is known as
promissory estoppel or detrimental reliance. For the courts to find a
case of promissory estoppel:
1. a promise must be made with the intent to induce action,
2. it must do so, and
3. the court must believe that it would be unjust not to enforce the
promise.
Assume an elderly relative induces you to give up your job in order
to care for her with the promise of being remembered in her will. Her
promise would not fulfill the requirements of valid consideration, as
her promise of remembering you in her will is too indefinite to be
enforceable. If, however, you give up your job and care for your
relative for a number of years, the court might view your detrimental
reliance on her promise as a substitute for consideration and enforce
her promise to pay.
The Wisconsin Supreme Court was one of the first to adopt the
theory of promissory estoppel as an alternative to a breach of
contract action. In the case of Hoffman v. Red Owl Stores, Inc., 3
Mr.
Hoffman and his wife engaged in extensive negotiations with agents
of the Red Owl grocery store chain in an attempt to obtain a Red Owl
franchise, only to “have the rug pulled out from under them.” The
agents had originally promised the Hoffmans that for $18,000 they
could establish a store. The figure was then changed to $24,100.
Relying on further promises that the deal was about to go through
and at the urging of the Red Owl representatives, Mr. Hoffman sold
his own grocery store to raise the necessary money. While waiting to
be placed in his new store, he began working the night shift at a local
bakery. Finally, the Red Owl representatives said it would take
$34,000 to close the deal. At that point Mr. Hoffman informed them
that he could not afford to go through with the proposal. Mr. Hoffman
then sued Red Owl for the damages he had incurred in relying on the
promises of its representatives.
Because the negotiations had never gotten far enough for the
parties to establish the precise terms of the contract, such as the
size, layout, and design of the store, Mr. Hoffman was not able to sue
on a breach of contract theory.
p. 312
p. 313
He also could not sue for fraud. There was no evidence that the Red
Owl representatives intended to misrepresent the facts. Relying
instead on the doctrine of promissory estoppel, the court stated that
each of the following questions must be answered in the affirmative:
(1) Was the promise one which the promisor should reasonably expect to induce action
or forbearance of a definite and substantial character on the part of the promisee?
(2) Did the promise induce such action or forbearance?
4
(3) Can injustice be avoided only by enforcement of the promise?
The court noted that the first two questions are issues of fact for
the jury to decide. The third question, however, involves a policy
decision that must be made by the court. In the Hoffmans’ case the
court concluded that “injustice would result here if plaintiffs were not
granted some relief because of the failure of defendants to keep their
5
promises which induced plaintiffs to act to their detriment.”
D. CONTRACT INTERPRETATION
Sometimes, even though it is clear that there is an offer, acceptance,
and consideration, thus creating a valid contract, the parties disagree
about the legal effect of the contract’s terms. This is often due to the
innate ambiguity of the English language. When such differences in
interpretation arise, the parties may turn to the courts for assistance.
When asked to interpret ambiguous language, the courts generally
follow many of the same guidelines that they use to interpret
statutory language. A court usually begins by trying to give the words
their plain or common-sense meaning. When that is not possible, the
court will try to see if the meaning of the words can be deciphered
from the parties’ intent as expressed in the contract. The court may
also apply commonly accepted definitions from the relevant industry
or business. Finally, the court may interpret the language so as to
favor the party who did not draft the contract.
E. DEFENSES TO A VALID CONTRACT
In addition to offer, acceptance, and consideration, you will
sometimes hear that contractual capacity, legality, and genuineness
of assent are necessary elements for a valid contract to be formed.
While this is true, in this text we will treat these last three elements as
defenses. Generally, it is assumed that those elements are present so
the plaintiff has no obligation to allege their existence in the
complaint. Rather it is incumbent on the defendant to raise their
absence in the answer. First, the defendant can argue that one or
both of the parties lacked contractual capacity. Second, the
defendant can contend that the contract should
p. 313
p. 314
not be enforced because it is illegal or because it violates public
policy. Third, the defendant can assert that there was no true
genuineness of assent because of fraud, mistake, or undue influence.
Fourth, the defendant may argue that he or she owes nothing on a
contract for sale because the product was defective in violation of the
seller’s warranties. Finally, at times the defendant may be able to
show that the proper format was not followed, as, for example, with
some contracts that must be in writing.
1. Lack of Contractual Capacity
The parties to a contract can be either people or corporations.
However, an individual may be considered incapable of contracting if
that person is a child, is developmentally disabled or mentally ill, or is
under the influence of drugs or alcohol.
a. Minors
If one of the parties is a minor, the contract may be voidable.
Therefore, the terms of the contract are enforceable against the adult
party to the contract but not against the minor party. Under the
common law one had to be at least 21 years old in order to enter into
binding contracts, but today many states have established a lower
age limit.
Minors can disaffirm a contract and thereby avoid any
contractual liability at any time during their minority or for a
reasonable time thereafter. If the contract involves the sale of goods,
in a majority of states the minor must return the goods, but the minor
does not have to fulfill the terms of the contract, even if the goods are
damaged. In a minority of states the minor must act so as to return
the other party to his or her position prior to the contract. States are
increasingly adopting this minority position. Even if a minor
misrepresents his or her age, in a majority of states the minor can still
disaffirm the contract. The one exception is that minors are liable for
necessaries. Although they can disaffirm the contract, they must pay
the reasonable value of the goods or services they received. Housing,
food, and clothing are commonly classified as necessaries. However,
what is “necessary” can vary with the circumstances. For example, in
one case a court held that a lease for an apartment was not
necessary because the minor tenants were able to return home to
6
their parents at any time.
Once minors reach the age of majority, they can ratify the
contract, thereby binding themselves to the terms of the contract.
This can occur by the minor expressly stating that he or she wishes
to be bound, by the minor’s conduct, or by operation of law after a
reasonable time has passed once the minor is of age.
This next case graphically illustrates how dangerous it can be for
an adult to deal with minors.
p. 314
p. 315
Quality Motors, Inc. v. Hays
216 Ark. 264, 225 S.W.2d 326 (1949)
DUNAWAY, J.
Johnny M. Hays, by his next friend, Dr. D. J. Hays, brought this
suit to disaffirm his purchase of a Pontiac automobile and recover
the purchase price of $1,750 from defendant Quality Motors, Inc.
On January 21, 1949, Johnny Hays, a minor sixteen years old,
went to the Quality Motors, Inc., to inspect and test a Pontiac car.
When E. C. Buttry, salesman for Quality Motors, raised the question
of Johnny’s age, he was told that Johnny’s father in New York had
sent him the money to buy the car. The salesman then refused to
sell unless the purchase was made by an adult. Johnny left the
salesman and returned shortly with Harry R. Williams, a young
man twenty-three years of age, whom he met that day for the first
time. Johnny then gave to Quality Motors, Inc., a cashier’s check
on the Citizens Bank of Jonesboro, in the sum of $1,800 which
was made payable to him, in payment for the car. A bill of sale was
made to Harry Williams. The salesman then recommended a
Notary Public who could prepare the necessary papers for
transferring title to the car to Johnny, and drove the two boys to
town for this purpose. Williams did transfer title, and the Pontiac
was delivered by the salesman to Johnny at Arkansas State
College, where Dr. Hays, Johnny’s father, was a teacher.
When Dr. Hays learned of his son’s purchase he called E. C.
Perkins, one of the owners of Quality Motors, Inc., on the night of
January 25, 1949. Perkins knew nothing of the transaction and
suggested that Dr. Hays call the motor company the next morning.
On the morning of January 26, Dr. Hays talked to the salesman
who had handled the transaction, and asked that defendant
company take the car back. This the defendant refused to do. No
physical tender of the car was made; Johnny had it out of town.
The car was returned to Jonesboro on January 26, when Dr. Hays
had his son arrested; it was then stored in a hangar at Arkansas
State College. On January 27 Dr. Hays again called Quality Motors,
Inc., and was informed the car would not be taken back. He then
went to the office of his attorney where he once more called
Quality Motors, Inc., and was told by W. E. Ebbert, one of the
owners, that they would not accept the car and return the
consideration for its purchase, but would try to sell it for him if they
could.
. . .
On February 12, 1949, while Dr. Hays was out of town, Johnny
found the car keys and bill of sale and took the car to Kentucky
where his grandmother lived. On March 21, he returned to
Jonesboro and asked Quality Motors for an estimate on repairs to
the car which had been in a wreck. On this occasion he had an
extended conversation with Buttry and Ebbert, who tried to
persuade him to leave the car there and not go back to Kentucky
as he told them he planned to do at once. At this time Quality
Motors was still refusing to accept the car and return the purchase
price. The suggestion was that the car be left with them for repairs
“until this thing is settled.” Johnny made a telephone call to his
mother and immediately departed for Kentucky where the car was
in a second and more serious wreck. At the time of trial the car
was in Kentucky, subject to a repair bill for $557, and an
attachment for $125, and not in running condition.
The special chancellor ordered the plaintiff to return the car
within seven days and withheld final decree until this was done.
When the wrecked car was returned, recovery of $1,750 from
defendant was decreed.
. . .
The law is well settled in Arkansas that an infant may disaffirm
his contracts, except those
p. 315
p. 316
made for necessaries, without being required to return the
consideration received, except such part as may remain in specie
in his hands.
We do not find any merit in appellant’s contention that no
proper tender of the car was made when appellee sought to
disaffirm his purchase. The undisputed testimony shows that Dr.
Hays and his attorney offered to return the car on several
occasions, but were informed that appellant would not accept it.
That it was not actually delivered to Quality Motors when the suit
was filed is appellant’s own fault. The law does not require that a
tender be made under circumstances where it would be vain and
useless.
Appellant’s most serious contention is that the plaintiff is liable
for damages to the car which occurred while he was driving over
the country, after he had slipped the car from its storage place and
while the suit to disaffirm was pending. In order to obtain any relief
on this score, it must be shown that plaintiff was guilty of
conversion in taking the automobile. Conversion is the exercise of
dominion over property in violation of the rights of the owner or
person entitled to possession. In advancing this argument
appellant is in an inconsistent position. Until the court decreed
return of the car and recovery of the consideration paid, plaintiff
still had title to the car. One cannot be liable for conversion in
taking his own property.
. . .
Appellant knowingly and through a planned subterfuge sold an
automobile to a minor. It then refused to take the car back. Even
after the car was wrecked once, it was in appellant’s place of
business, and appellant was still resisting disaffirmance of the
contract. The loss which appellant has suffered is the direct result
of its own acts.
The decree is affirmed.
CASE DISCUSSION QUESTIONS
1. What does the court say is the general rule about the right of
minors to disaffirm contracts?
2. What should this dealer have done differently in this case?
3. In general, how can merchants protect themselves in dealings
with minors?
4. Some states simply require the return of the goods, no matter
their condition. Others require that the adult be placed in the same
position that he or she was in prior to the contract. Which approach
do you think is better?
b. Intoxication
Intoxication is rarely used successfully to void a contract. The
courts look with disfavor on this defense because the condition is
self-inflicted. However, if the defendant can show the intoxication
prevented him from understanding the import of his actions, a court
might find that there was no meeting of the minds. In the next case
notice how the defendant tried to raise two defenses: that he was
intoxicated and that he was only playing a joke on his friend.
p. 316
p. 317
Lucy v. Zehmer
196 Va. 493, 84 S.E.2d 516 (1954)
BUCHANAN, J., delivered the opinion of the court.
This suit was instituted by W.O. Lucy and J.C. Lucy,
complainants, against A.H. Zehmer and Ida S. Zehmer, his wife,
defendants, to have specific performance of a contract by which it
was alleged the Zehmers had sold to W.O. Lucy a tract of land
owned by A.H. Zehmer in Dinwiddie county containing 471.6 acres,
more or less, known as the Ferguson farm, for $50,000. J.C. Lucy,
the other complainant, is a brother of W.O. Lucy, to whom W.O.
Lucy transferred a half interest in his alleged purchase.
. . .
W.O. Lucy, a lumberman and farmer, thus testified in substance:
He had known Zehmer for fifteen or twenty years and had been
familiar with the Ferguson farm for ten years. Seven or eight years
ago he had offered Zehmer $20,000 for the farm which Zehmer
had accepted, but the agreement was verbal and Zehmer backed
out. On the night of December 20, 1952, around eight o’clock, he
took an employee to McKenney, where Zehmer lived and operated
a restaurant, filling station and motor court. While there he decided
to see Zehmer and again try to buy the Ferguson farm. He entered
the restaurant and talked to Mrs. Zehmer until Zehmer came in. He
asked Zehmer if he had sold the Ferguson farm. Zehmer replied
that he had not. Lucy said, “I bet you wouldn’t take $50,000.00 for
that place.” Zehmer replied, “Yes, I would too; you wouldn’t give
fifty.” Lucy said he would and told Zehmer to write up an
agreement to that effect. Zehmer took a restaurant check and
wrote on the back of it, “I do hereby agree to sell to W.O. Lucy the
Ferguson Farm for $50,000 complete.” Lucy told him he had better
change it to “We” because Mrs. Zehmer would have to sign it too.
Zehmer then tore up what he had written, wrote the agreement
quoted above and asked Mrs. Zehmer, who was at the other end of
the counter ten or twelve feet away, to sign it. Mrs. Zehmer said
she would for $50,000 and signed it. Zehmer brought it back and
gave it to Lucy, who offered him $5 which Zehmer refused, saying,
“You don’t need to give me any money, you got the agreement
there signed by both of us.”
The discussion leading to the signing of the agreement, said
Lucy, lasted thirty or forty minutes, during which Zehmer seemed
to doubt that Lucy could raise $50,000. Lucy suggested the
provision for having the title examined and Zehmer made the
suggestion that he would sell it “complete, everything there,” and
stated that all he had on the farm was three heifers.
Lucy took a partly filled bottle of whiskey into the restaurant
with him for the purpose of giving Zehmer a drink if he wanted it.
Zehmer did, and he and Lucy had one or two drinks together. Lucy
said that while he felt the drinks he took he was not intoxicated,
and from the way Zehmer handled the transaction he did not think
he was either.
. . .
Mr. and Mrs. Zehmer were called by the complainants as
adverse witnesses. Zehmer testified in substance as follows: . . .
On this Saturday night before Christmas it looked like
everybody and his brother came by there to have a drink. He took a
good many drinks during the afternoon and had a pint of his own.
When he entered the restaurant around eight-thirty Lucy was there
and he could see that he was “pretty high.” He said to Lucy, “Boy,
you got some good liquor, drinking, ain’t you?” Lucy then offered
him a drink. “I was already high as a Georgia pine, and didn’t have
any more better sense than to pour another great big slug out and
gulp it down, and he took one too.”
After they had talked a while Lucy asked whether he still had
the Ferguson farm. He replied
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p. 318
that he had not sold it and Lucy said, “I bet you wouldn’t take
$50,000.00 for it.” Zehmer asked him if he would give $50,000 and
Lucy said yes. Zehmer replied, “You haven’t got $50,000 in cash.”
Lucy said he did and Zehmer replied that he did not believe it. They
argued “pro and con for a long time,” mainly about “whether he had
$50,000 in cash that he could put up right then and buy that farm.”
Finally, said Zehmer, Lucy told him if he didn’t believe he had
$50,000, “you sign that piece of paper here and say you will take
$50,000.00 for the farm.” He, Zehmer, “just grabbed the back off of
a guest check there” and wrote on the back of it. At that point in his
testimony Zehmer asked to see what he had written to “see if I
recognize my own handwriting.” He examined the paper and
exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have
got satisfactory spelled wrong. I don’t recognize that writing if I
would see it, wouldn’t know it was mine.”
After Zehmer had, as he described it, “scribbled this thing off,”
Lucy said, “Get your wife to sign it.” Zehmer walked over to where
she was and she at first refused to sign but did so after he told her
that he “was just needling him [Lucy], and didn’t mean a thing in
the world, that I was not selling the farm.” Zehmer then “took it
back over there . . . and I was still looking at the dern thing. I had
the drink right there by my hand, and I reached over to get a drink,
and he said, ‘Let me see it.’ He reached and picked it up, and when I
looked back again he had it in his pocket and he dropped a five
dollar bill over there, and he said, ‘Here is five dollars payment on it.’
. . . I said, ‘Hell no, that is beer and liquor talking. I am not going to
sell you the farm. I have told you that too many times before.’ ”
. . .
The defendants insist that the evidence was ample to support
their contention that the writing sought to be enforced was
prepared as a bluff or dare to force Lucy to admit that he did not
have $50,000; that the whole matter was a joke; that the writing
was not delivered to Lucy and no binding contract was ever made
between the parties.
It is an unusual, if not bizarre, defense. When made to the
writing admittedly prepared by one of the defendants and signed
by both, clear evidence is required to sustain it.
In his testimony Zehmer claimed that he “was high as a
Georgia pine,” and that the transaction “was just a bunch of two
doggoned drunks bluffing to see who could talk the biggest and
say the most.” That claim is inconsistent with his attempt to testify
in great detail as to what was said and what was done. It is
contradicted by other evidence as to the condition of both parties,
and rendered of no weight by the testimony of his wife that when
Lucy left the restaurant she suggested that Zehmer drive him
home. The record is convincing that Zehmer was not intoxicated to
the extent of being unable to comprehend the nature and
consequences of the instrument he executed, and hence that
instrument is not to be invalidated on that ground. It was in fact
conceded by defendants’ counsel in oral argument that under the
evidence Zehmer was not too drunk to make a valid contract.
. . .
The appearance of the contract, the fact that it was under
discussion for forty minutes or more before it was signed; Lucy’s
objection to the first draft because it was written in the singular,
and he wanted Mrs. Zehmer to sign it also; the rewriting to meet
that objection and the signing by Mrs. Zehmer; the discussion of
what was to be included in the sale, the provision for the
examination of the title, the completeness of the instrument that
was executed, the taking possession of it by Lucy with no request
or suggestion by either of the defendants that he give it back, are
facts which furnish persuasive evidence that the execution of the
contract was a serious business transaction rather than a casual,
jesting matter as defendants now contend.
. . .
If it be assumed, contrary to what we think the evidence shows,
that Zehmer was jesting
p. 318
p. 319
about selling his farm to Lucy and that the transaction was
intended by him to be a joke, nevertheless the evidence shows that
Lucy did not so understand it but considered it to be a serious
business transaction and the contract to be binding on the
Zehmers as well as on himself. The very next day he arranged with
his brother to put up half the money and take a half interest in the
land. The day after that he employed an attorney to examine the
title. The next night, Tuesday, he was back at Zehmer’s place and
there Zehmer told him for the first time, Lucy said, that he wasn’t
going to sell and he told Zehmer, “You know you sold that place fair
and square.” After receiving the report from his attorney that the
title was good he wrote to Zehmer that he was ready to close the
deal.
Not only did Lucy actually believe, but also the evidence shows
he was warranted in believing, that the contract represented a
serious business transaction and a good faith sale and purchase
of the farm.
In the field of contracts, as generally elsewhere, “We must look
to the outward expression of a person as manifesting his intention
rather than to his secret and unexpressed intention. ‘The law
imputes to a person an intention corresponding to the reasonable
meaning of his words and acts.’ ”
. . .
An agreement or mutual assent is of course essential to a valid
contract but the law imputes to a person an intention
corresponding to the reasonable meaning of his words and acts. If
his words and acts, judged by a reasonable standard, manifest an
intention to agree, it is immaterial what may be the real but
unexpressed state of his mind.
So a person cannot set up that he was merely jesting when his
conduct and words would warrant a reasonable person in believing
that he intended a real agreement.
Whether the writing signed by the defendants and now sought
to be enforced by the complainants was the result of a serious
offer by Lucy and a serious acceptance by the defendants, or was
a serious offer by Lucy and an acceptance in secret jest by the
defendants, in either event it constituted a binding contract of sale
between the parties.
. . .
Reversed and remanded.
CASE DISCUSSION QUESTIONS
1. What did the court think was the appropriate test for
determining whether there was a serious intent to be bound?
2. Specific performance is not an absolute right but rather a
question of equity. Do you think it was “fair” to enforce this contract?
3. The court stated: “Seven or eight years ago [Lucy] had offered
Zehmer $20,000 for the farm which Zehmer had accepted, but the
agreement was verbal and Zehmer backed out.” Why was Zehmer
able to back out of that agreement but not this one?
c. Mental Incompetence
Mental incompetence can cause a contract to be voidable, a
situation analogous to that of minors. Also as is true with minors, the
incompetent person nonetheless remains responsible for the
reasonable value of necessaries. However, if someone has been
adjudged mentally incompetent and the court has appointed a
guardian to handle the incompetent’s affairs, then that individual is
without the
p. 319
p. 320
capacity to make contracts. Instead of being merely voidable, any
contract the incompetent individual tries to make is void. Only the
guardian can enter into valid contracts.
2. Illegal Contracts and Those That Violate Public Policy
Contracts can be declared unenforceable if they are found to be either
illegal or against public policy. A contract involves illegality if it calls
for behavior that violates the criminal law, such as robbery, gambling,
or prostitution. In addition, a contract will be seen as involving
illegality if it violates a licensing statute that explicitly states that it is
for the protection of the public, antitrust laws, or state usury laws.
Contracts for an illegal purpose are void and cannot be enforced by
either party. For example, usury laws regulate interest rates. A loan
that imposes an interest charge that exceeds the legal limit is said to
be usurious and therefore illegal.
In addition, some contracts are unenforceable because they are
contrary to public policy. Public policy can change over time. For
example, some recently enacted statutes prohibit confidentiality
clauses in mandatory arbitration agreements if the case involves
sexual harassment. The public policy rationale given is the chilling
effect confidentiality clauses can have on addressing workplace
sexual harassers and the inability to identify repeat offenders.
Another example relates to covenants not to compete, which by
their very nature, are against public policy in that they restrict the
right of an individual to earn a living or they tend to decrease
competition. However, they can also be a form of necessary business
protection. For example, if a pharmaceutical company expends a
great deal of time and money training a chemist, the company will
want the chemist to sign a noncompetition clause, promising not to
work for another pharmaceutical plant for a certain amount of time
after leaving employment with the first company. The courts are
generally willing to enforce that type of covenant so long as
1. it is tied to employment or to the sale of a business and
2. its terms call for a reasonable time and
3. a reasonable geographic area.
A third type of contract that the courts may refuse to enforce as
being against public policy is an adhesion contract. Such a contract
occurs when it is formed between two parties of very unequal
bargaining power, drafted by the party with the greater power, and
then presented to the other party, who has no opportunity to
negotiate the terms.
The majority of contracts are adhesion contracts in that the
parties are of unequal bargaining power, the contract terms are
drafted by the party with the greater power, and there is no
opportunity to negotiate. Two examples are a contract to purchase a
cell phone app by clicking through the terms or a contract to
purchase a new flat screen TV by signing a standard form contract.
As you will recall from our earlier discussion of inadequate
consideration, normally courts will adhere to the theory of freedom of
contract and will not inquire into the fairness of the bargain.
Therefore, if you agree to the terms of
p. 320
p. 321
such a one-sided contract, you will be bound by its terms. However,
when a contract is formed between two parties of very unequal
bargaining power, and the result is so one-sided as to be oppressive
and grossly unfair, the court may view this as an unconscionable,
unlawful contract of adhesion. This determination is very fact specific
and depends on a review of general commercial practices and the
particular circumstances in which the contract was made. An
example would be a sale of a refrigerator to a low-income family
whose members speak little English where the contract is drawn up
by the seller and includes a clause that disclaims all warranties that
traditionally go with such a transaction while including payment
terms that many times exceed the value of the refrigerator.
While the UCC holds that the terms of a contract that are
unconscionable cannot be enforced, it does not attempt to define
unconscionability. UCC § 2302. One must rely on court cases for
specific application of the doctrine. The courts are more responsive
to low-income consumers who raise this defense than they are to
merchants who deal with other merchants.
Third, some contracts contain provisions that purport to release
parties from all liability for their own negligence. These are known as
exculpatory clauses. These clauses were discussed in Chapter 7, as
they are frequently raised as a defense in negligence actions. As we
discussed there, the courts generally disfavor such clauses and
frequently refuse to enforce them. Exculpatory clauses never apply to
grossly negligent or reckless conduct.
Finally, society’s changing mores, as well as advances in medical
science, have presented some interesting dilemmas to the courts. For
example, courts have recently been confronted with the issue of
whether to enforce a surrogacy contract. They have also been asked
to decide whether a contract regarding the “ownership” of frozen
embryos should be enforced. The argument against enforcement is
that such contracts are against public policy. We will discuss these
and similar problems more fully in Chapter 11, which covers laws
affecting the family.
3. Lack of Genuineness of Assent
As we have seen, normally the courts apply an objective reasonable
person standard in interpreting whether an agreement was reached
between the parties. However, a court will not enforce a contract if
one of the parties can convince the court that there was no true
“meeting of the minds” because of fraud, mistake, undue influence, or
duress.
a. Fraud
In order to prove fraud, it must be demonstrated that the other
party made intentional misrepresentations or intentional
nondisclosures of material facts during the course of the
negotiations. Therefore, the four requirements for a defense based on
fraud are as follows:
1. an intent to deceive
2. regarding material facts and
3. justifiable reliance on the deception
4. that causes harm.
p. 321
p. 322
A successful defendant can recover damages or ask that the
contract be rescinded. In addition, fraud can be brought under a tort
theory, thereby creating the possibility of also receiving a punitive
damage award.
For the reliance to be justified, it must be shown that the
defendant did not know of the fraud and had no way to find out. Note
that the misrepresentations must be material and that they must be
made regarding a factual statement, not merely opinion or sales
puffery. It is expected that the reasonable person engaged in contract
negotiations will realize that she or he should not rely on opinions or
on overblown sales statements that are obviously made simply as
part of the sales pitch. However, in certain circumstances the opinion
of an expert can be viewed as a fact when it is reasonable to rely on
the opinion of an expert and the other party has no independent
means of testing the statement’s validity. If one of the hosts of the
television program Antique Roadshow states that an antique is worth
$200, offers to purchase the item for $200, and then sells the item for
$20,000 shortly thereafter, this could be considered fraud. The issue
of whether a dance student was justified in relying on the statements
of a dance instructor is presented in the following case.
Vokes v. Arthur Murray, Inc.
212 So. 2d 906 (Fla. Dist. Ct. App. 1968)
PIERCE, Judge. LILES, C.J., and MANN, J., concur.
Defendant Arthur Murray, Inc., a corporation, authorizes the
operation throughout the nation of dancing schools under the
name of “Arthur Murray School of Dancing” through local
franchised operators, one of whom was defendant J.P. Davenport
whose dancing establishment was in Clearwater.
Plaintiff Mrs. Audrey E. Vokes, a widow of 51 years and without
family, had a yen to be “an accomplished dancer” with the hopes of
finding “new interest in life.” So, on February 10, 1961, a dubious
fate, with the assist of a motivated acquaintance, procured her to
attend a “dance party” at Davenport’s “School of Dancing” where
she whiled away the pleasant hours, sometimes in a private room,
absorbing his accomplished sales technique, during which her
grace and poise were elaborated upon and her rosy future as “an
excellent dancer” was painted for her in vivid and glowing colors.
As an incident to thisinterlude, he sold her eight hour dance
lessons to be utilized within one calendar month therefrom, for the
sum of $14.50 cash in hand paid, obviously a baited “come-on.”
Thus she embarked upon an almost endless pursuit of the
terpsichorean art during which, over a period of less than sixteen
months, she was sold fourteen “dance courses” totalling in the
aggregate 2302 hours of dancing lessons for a total cash outlay of
$31,090.45, all at Davenport’s dance emporium. . . .
These dance lesson contracts and the monetary consideration
therefore of over $31,000 were procured from her by means and
methods of Davenport and his associates which went beyond the
unsavory, yet legally permissible, perimeter of “sales puffing” and
intruded well into the forbidden area of undue influence, the
suggestion of falsehood, the suppression
p. 322
p. 323
of truth, and the free exercise of rational judgment, if what plaintiff
alleged in her complaint was true.
. . .
All the . . . sales promotions, illustrative of the entire fourteen
separate contracts, were procured by defendant Davenport and
Arthur Murray, Inc., by false representations to her that she was
improving in her dancing ability, that she had excellent potential,
that she was responding to instructions in dancing grace, and that
they were developing her into a beautiful dancer, whereas in truth
and in fact she did not develop in her dancing ability, she had no
“dance aptitude,” and in fact had difficulty in “hearing the musical
beat.” The complaint alleged that such representations to her “were
in fact false and known by the defendant to be false and contrary
to the plaintiff’s true ability, the truth of plaintiff’s ability being fully
known to the defendants, but withheld from the plaintiff for the
sole and specific intent to deceive and defraud the plaintiff and to
induce her in the purchasing of additional hours of dance lessons.”
It was averred that the lessons were sold to her “in total disregard
to the true physical, rhythm, and mental ability of the plaintiff.” In
other words, while she first exulted that she was entering the
“spring of her life,” she finally was awakened to the fact there was
“spring” neither in her life nor in her feet.
The complaint prayed that the Court decree the dance
contracts to be null and void and to be cancelled, that an
accounting be had. . . . The Court held the complaint not to state a
cause of action and dismissed it with prejudice. We disagree and
reverse.
The material allegations of the complaint must, of course, be
accepted as true for the purpose of testing its legal sufficiency.
Defendants contend that contracts can only be rescinded for fraud
or misrepresentation when the alleged misrepresentation is as to a
material fact, rather than an opinion, prediction or expectation, and
that the statements and representations set forth at length in the
complaint were in the category of “trade puffing,” within its legal
orbit.
It is true that “generally a misrepresentation, to be actionable,
must be one of fact rather than of opinion.” But this rule has
significant qualifications, applicable here. It does not apply where
there is a fiduciary relationship between the parties, or where there
has been some artifice or trick employed by the representor, or
where the parties do not in general deal at “arm’s length” as we
understand the phrase, or where the representee does not have
equal opportunity to become apprised of the truth or falsity of the
fact represented. “A statement of a party having . . . superior
knowledge may be regarded as a statement of fact although it
would be considered as opinion if the parties were dealing on equal
terms.”
. . .
Even in contractual situations where a party to a transaction
owes no duty to disclose facts within his knowledge or to answer
inquiries respecting such facts, the law is if he undertakes to do so
he must disclose the whole truth. . . .
We repeat that where parties are dealing on a contractual basis
at arm’s length with no inequities or inherently unfair practices
employed, the Courts will in general “leave the parties where they
find themselves.” But in the case sub judice, from the allegations of
the unanswered complaint, we cannot say that enough of the
accompanying ingredients, as mentioned in the foregoing
authorities, were not present which otherwise would have barred
the equitable arm of the Court to her. In our view, from the showing
made in her complaint, plaintiff is entitled to her day in Court.
It accordingly follows that the order dismissing plaintiff’s last
amended complaint with prejudice should be and is reversed.
Reversed.
p. 323
p. 324
CASE DISCUSSION QUESTIONS
1. Why did the court categorize the dance studio’s statements as
“fact” rather than “opinion”?
2. Which facts do you think the court found particularly relevant in
reaching that decision?
3. What do you think would have kept the statements of the
dance studio in the realm of mere “sales puffing”?
b. Mistake
Mistakes about facts can sometimes form the basis for
rescinding a contract. If the mistake is bilateral, then both parties had
a different concept of what was to be included in the contract.
Therefore, there never was a meeting of the minds, and the failed
contract can be rescinded by either. The classic case that illustrates
this principle took place in England in 1864. A buyer purchased a
shipment of cotton from a seller, the cotton to be shipped on the
Peerless. Unknown to either party there were two ships named the
Peerless, one to depart in October and one in December. The buyer
was thinking of the ship destined to leave in October and the seller
the other in December. Consequently, the seller did not ship the
cotton until December. By that time the buyer no longer needed the
cotton. The court held that because there never was a “meeting of the
minds” as to which ship was intended, no contract had been formed
7
and the buyer was not obligated to pay for the cotton.
Usually, however, if the mistake is unilateral and only one party is
mistaken, both parties are bound. The only exceptions are if the other
party knew or should have known of the mistake and if the mistake
was the result of a mathematical error.
Keep in mind that we are talking only about factual mistakes.
Mistakes as to the value of the subject matter can never be the basis
for rescission. For example, assume Joan contracts to sell her
diamond ring to Bertha. Both think the ring is worth about $500, and
they set $500 as the contract price. Later Bertha has the ring
appraised and is delighted to learn that it is actually worth $5,000.
Joan cannot ask to have the contract rescinded on the ground that
she was mistaken as to the value of the diamond. On the other hand,
if Joan had contracted to sell what she thought was a zirconium ring
to Bertha and upon appraisal it turned out to be a diamond ring, some
courts could see that as a mutual mistake as to a fact and allow the
contract to be rescinded.
c. Undue Influence
Sometimes a party will try to avoid contractual obligations by
arguing that undue influence was exerted by the other party.
Generally, for a court to find undue influence there must first be a
showing that a special relationship existed between the parties. Then,
because of the special relationship, one party is in a position of trust
and misuses that trust to influence the actions of another.
p. 324
p. 325
Situations alleging undue influence are frequently brought by family
members against caretakers of the elderly or ill.
d. Duress
A contract is also not valid if it was agreed to under duress rather
than as a result of a truly voluntary action. The actions of the second
party must be sufficient for the court to find that the first party was
forced into the agreement. Duress is difficult to prove because the
defendant must show that the pressure exerted was so great as to
overwhelm his or her ability to make a free choice.
4. Breach of Warranty
Among the most frequently contested issues is the nature of the
warranties involved in commercial transactions. In this context a
warranty is a statement or representation, made by the seller as part
of the contract of sale or implied in law, regarding the character,
quality, or title of the goods being sold. If such warranted facts later
prove to be untrue, the seller has an obligation to compensate the
buyer for any losses incurred as a result of the misrepresentation.
Under the terms of the UCC any contract of sale automatically
includes a warranty of title, an implied promise that the seller owns
the goods being offered for sale and that they will be delivered free
from any security interest, lien, or encumbrance. UCC § 2-312. If the
seller is a merchant, there is also an implied warranty of
merchantability, an implied promise that the goods being sold will be
usable for the purpose for which they were sold.
(1) Unless excluded or modified by section 2-316, a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind. Under this section the serving for value of food or drink to
be consumed either on the premises or elsewhere is a sale. (2) Goods to be
merchantable must at least be such as . . . (c) are fit for the ordinary purposes for which
such goods are used.
UCC § 2-314. This is a warranty regarding the fitness of the goods for
the ordinary purpose for which these types of goods are used.
When a more specialized use of the goods is communicated to
the seller during the course of negotiations, an implied warranty of
fitness is also created. UCC § 2-315. This is a warranty regarding the
fitness of the goods for that special purpose. For example, if you go
to a hardware store and ask the clerk for electrical wiring and say
nothing more, the wire will be warranted for its usual purpose of
carrying household current. If instead you want the wire for outside
use, you tell the clerk your special purpose, and you rely on the clerk’s
expertise in picking out the wire, then there will be an implied
warranty of fitness for that particular purpose.
In addition to these implied warranties, a contract can create
express warranties. UCC § 2-313. The term warranty or guarantee
does not have to be used in order for a warranty to be created.
However, the seller’s conduct or statements must have been
communicated to the buyer so that the warranty becomes part of the
“basis of the bargain.” UCC § 2-313(1). Express warranties can be
created
p. 325
p. 326
by an affirmation of fact or a promise made by the seller; a
description of the goods being sold, including technical specifications
and blueprints; or a sample or a model provided. A mere expression
of opinion as to the value of an item is considered “puffing” and does
not constitute a warranty.
As you can imagine, two of the most common issues that arise in
trying to resolve whether an express warranty exists are (1) whether
the statement or actions were part of the “basis of the bargain” and
(2) whether a statement is an affirmation of fact or merely the seller’s
opinion. There is no clear definition of either. The UCC does not define
“basis of the bargain,” and the courts have reached differing
conclusions. Some have held that it means the warranty terms must
have been bargained for; others hold that the buyer must have relied
on the warranties in deciding to make the purchase; still others state
that the buyer need not show any reliance but must have been aware
of the warranty at the time the sale was made.
DISCUSSION QUESTION
4. In a highly publicized case in the District of Columbia, a patron
of a dry-cleaning establishment sued the mom-and-pop owners for
$54 million for having allegedly lost his pair of pants. The owners
claimed they had performed alterations to expand the waist of the
pants to the customer’s specifications, but the customer claimed the
pants they altered were not the ones that he had
p. 326
p. 327
brought in. While the amount of damages being claimed was clearly
outrageous, the case does raise an interesting legal question. What
are the legal implications of posting a sign that reads “Satisfaction
Guaranteed”? Does the posting of this type of sign create some sort
of express warranty as to the service being offered? What standards
should be used in determining what “satisfaction” means in this
context?
Type of Warranty Created by Excluded by
Implied warranty the sale of goods by a language that includes the word
of merchant. The goods merchantability or a disclaimer that includes
merchantability must be fit for their the word merchantability or phrases such as
ordinary purpose. “as is” or “with all faults.” If in writing, it must
be conspicuous.
Implied warranty a seller a writing that is conspicuous.
of fitness
■ knowing the
particular purpose
the buyer has in mind
and
■ being aware that the
buyer is relying on
the seller’s expertise.
Express warranty ■ an affirmation of fact words or conduct tending to limit or negate the
or a promise made by warranty so long as such interpretation is
the seller, reasonable.
or
a description of the
goods being sold,
including technical
specifications and
blueprints,
or
■ a sample or model
and
that becomes a basis
of the bargain.
Figure 8-6 Warranties Summarized
Warranties may be excluded or modified by disclaimers. UCC § 2-
316. In many states, however, merchants are limited in their ability to
exclude or modify the implied warranty of merchantability when the
sale is to a consumer. For each type of warranty, Figure 8-6
summarizes how it is created and what actions a seller must take to
exclude the warranty.
An interesting example of when implied warranties can be applied
to food occurred in the following classic case.
Webster v. Blue Ship Tea Room, Inc.
347 Mass. 421, 198 N.E.2d 309 (1964)
REARDON, JJ.
This is a case which by its nature evokes earnest study not only
of the law but also of the culinary traditions of the Commonwealth
which bear so heavily upon its outcome. It is an action to recover
damages for personal injuries sustained by reason of a breach of
implied warranty of food served by the defendant in its restaurant.
. . .
On Saturday, April 15, 1959, about 1 P.M., the plaintiff,
accompanied by her sister and her aunt, entered the Blue Ship Tea
Room operated by the defendant. The group was seated at a table
and supplied with menus.
This restaurant, which the plaintiff characterized as “quaint,”
was located in Boston “on the third floor of an old building on T
Wharf which overlooks the ocean.”
The plaintiff, who had been born and brought up in New
England (a fact of some consequence), ordered clam chowder and
crabmeat salad. Within a few minutes she received tidings to the
effect that “there was no more clam chowder,” whereupon she
ordered a cup of fish chowder. Presently, there was set before her
“a small bowl of fish chowder. . . . The chowder was milky in color
and not clear. The haddock and potatoes were in chunks” (also a
fact of consequence). . . . She ate about 3 or 4 spoonfuls then
stopped. She looked at the spoonfuls as she was eating. She saw
equal parts of liquid, potato and fish as she spooned it into her
mouth. She did not see anything unusual about it. After 3 or 4
spoonfuls she was aware that something had lodged in her throat
because she couldn’t swallow and couldn’t clear her throat by
gulping and she could feel it. This misadventure led to two
esophagoscopies at the Massachusetts General Hospital, in the
second of which, on April 27, 1959, a fish bone was found and
removed. The sequence of events produced injury to the plaintiff
which was not insubstantial.
We must decide whether a fish bone lurking in a fish chowder,
about the ingredients of which there is no other complaint,
constitutes a breach of implied warranty under applicable
provisions of the Uniform Commercial Code, the annotations to
which are not helpful on this point. As the judge put it in his charge,
“Was the fish chowder fit to be eaten and wholesome? . . . [N]obody
is claiming that the fish itself wasn’t wholesome. . . . But the bone
of contention here — I don’t mean that for a pun — but was this
fish bone a foreign substance that made the fish chowder
unwholesome or not fit to be eaten?”
. . .
p. 327
p. 328
The defendant asserts . . . “[f]ish chowder, as it is served and
enjoyed by New Englanders, is a hearty dish, originally designed to
satisfy the appetites of our seamen and fishermen”; that “[t]his
court knows well that we are not talking of some insipid broth as is
customarily served to convalescents.” We are asked to rule in such
fashion that no chef is forced “to reduce the pieces of fish in the
chowder to miniscule size in an effort to ascertain if they
contained any pieces of bone.”
. . .
It is not too much to say that a person sitting down in New
England to consume a good New England fish chowder embarks
on a gustatory adventure which may entail the removal of some
fish bones from his bowl as he proceeds. We are not inclined to
tamper with age old recipes by any amendment reflecting the
plaintiff’s view of the effect of the Uniform Commercial Code upon
them. We are aware of the heavy body of case law involving
foreign substances in food, but we sense a strong distinction
between them and those relative to unwholesomeness of the food
itself. . . . In any event, we consider that the joys of life in New
England include the ready availability of fresh fish chowder. We
should be prepared to cope with the hazards of fish bones, the
occasional presence of which in chowders is, it seems to us, to be
anticipated, and which, in the light of a hallowed tradition, do not
impair their fitness or merchantability. While we are buoyed up in
this conclusion by Shapiro v. Hotel Statler Corp., 132 F. Supp. 891
(S.D. Cal.), in which the bone which afflicted the plaintiff appeared
in “Hot Barquette of Seafood Mornay,” we know that the United
States District Court of Southern California, situated as are we
upon a coast, might be expected to share our views. We are most
impressed, however, by Allen v. Grafton, 170 Ohio St. 249, where in
Ohio, the Midwest, in a case where the plaintiff was injured by a
piece of oyster shell in an order of fried oysters, Mr. Justice Taft
(now Chief Justice) in a majority opinion held that “the possible
presence of a piece of oyster shell in or attached to an oyster is so
well known to anyone who eats oysters that we can say as a
matter of law that one who eats oysters can reasonably anticipate
and guard against eating such a piece of shell. . . .” (P. 259.)
Thus, while we sympathize with the plaintiff who has suffered a
peculiarly New England injury, the order must be. . . . Exceptions
sustained. Judgment for the defendant.
CASE DISCUSSION QUESTIONS
1. Why did the court think Ms. Webster failed in her claim for
breach of an implied warranty?
2. Why did it matter that the plaintiff was brought up in New
England? Would the result have been different if she lived in the
Midwest and this was her first trip to the East Coast?
3. Do you agree with the court that this is a different case from
one in which the food is contaminated? Why?
5. Lack of Proper Format — Writing
A commonly held misunderstanding is that all contracts must be in
writing to be enforceable. That is not so. In many situations an oral
contract is perfectly valid. However, contractual disputes arise not
just about whether a valid contract exists but also about what the
terms of the contract actually require. Deciding these disputes is
particularly difficult when the agreement was oral rather than set
down in writing. When the dispute is reduced to one person’s word
against
p. 328
p. 329
the other’s, the courts find it difficult to determine who is telling the
truth. Even though many oral contracts are legally enforceable, it is
always wiser to put them in writing.
In addition to the fact that it simply makes sense to reduce any
important contract to writing, all states have a statute known as the
statute of frauds, which lists those contracts that must be in writing
in order to be enforceable. The purpose of such statutes is to ensure
that there will be reliable evidence of important or complex matters.
The required writing does not have to be a formal contract, however.
It can take the form of any writing — for example, a check or a memo
— so long as it fully expresses the terms of the agreement. The
writing can also be in multiple pieces, so long as it is clear the pieces
were intended to constitute one agreement. A common example is a
written offer and a separate written acceptance. Finally, the signature
can be any authentication, even initials. Generally, the types of
contracts that must be in writing fall into one of the following
categories:
1. contracts involving land, including fixtures, and documents
dealing with land, such as mortgages and leases;
2. contracts that cannot be performed in one year;
3. collateral contracts, those that involve a secondary as opposed
to a primary obligation, unless the main purpose is to secure a
personal benefit;
4. promises made in consideration of marriage, such as
prenuptial agreements; and
5. contracts for the sale of goods valued at $500 or more.
Note the exact wording regarding the second type of contract —
those that cannot be performed in one year. If it is possible, even
though unlikely, that it can be performed in one year, then a writing is
not necessary. For example, a contract for life could be performed in
one year and so need not be in writing.
Article 2 of the UCC contains its own statute of frauds that applies
to the sale of goods. UCC § 2-201. It requires something in writing if
the price of the goods is $500 or more. (Note: A proposed revision to
the UCC would increase the amount to $5,000, but to date, no state
has made this change.) The writing needs to be signed only by “the
party to be charged.” For example, Tom calls Jim, offering to buy his
television for $600, and Jim mails back his signed reply agreeing to
the arrangement. If Jim fails to perform his end of the bargain, Tom
can sue Jim, the party to be charged, because Jim signed the letter
agreeing to the arrangement. However, Jim would not be allowed to
sue Tom, as there is no writing containing Tom’s signature.
The statute of frauds does allow for some exceptions. The first is
part performance. For example, if John made a partial payment for
some land, took possession of the land, and made improvements,
then the court might see this as enough evidence of an intended
contract to enforce it. Also, under the UCC a contract will be enforced
to the extent payment or delivery was accepted. Admissions in
pleadings or testimony will also bind the party as to the quantity
admitted. Finally, the court may invoke the doctrine of promissory
estoppel when there is justifiable reliance.
p. 329
p. 330
A written agreement usually contains an integration clause that
merges all previous oral agreements into the new written document.
Under the parol evidence rule, a written contract cannot be modified
or changed by prior oral agreements.
F. TERMINATION OF CONTRACTUAL DUTIES
A contract is typically discharged by performance. However, there are
times when the parties may agree to end their agreement prior to
complete performance. Also, at times a court may declare a party’s
obligations over when performance is impossible or commercially
impracticable.
1. By Performance
Complete performance ends both parties’ obligations. At times,
however, a party will perform most but not all of the required duties. If
the party substantially performs, that party is in breach of contract
and is liable for damages caused by the breach. However, the other
party is not relieved of his or her obligations. If, however, the failure to
perform is seen as a material breach, it is a breach of contract that
excuses the other party from any obligations. Whether the
performance is so complete as to amount to only a minor breach or
so insufficient as to constitute a material breach is often a difficult
question. In the next case the court grapples with what to do when a
construction contract is not fully performed.
Jacob & Youngs, Inc. v. Kent
230 N.Y. 239, 129 N.E. 889 (1921)
CARDOZO, J.
The plaintiff built a country residence for the defendant at a
cost of upwards of $77,000, and now sues to recover a balance of
$3,483.46, remaining unpaid. The work of construction ceased in
June, 1914, and the defendant then began to occupy the dwelling.
There was no complaint of defective performance until March,
1915. One of the specifications for the plumbing work provides
that “all wrought iron pipe must be well galvanized, lap welded pipe
of the grade known as ‘standard pipe’ of Reading manufacture.”
The defendant learned in March, 1915, that some of the pipe,
instead of being made in Reading, was the product of other
factories. The plaintiff was accordingly directed by the architect to
do the work anew. The plumbing was then encased within the
walls except in a few places where it had to be exposed. Obedience
to the order meant more than the substitution of other pipe. It
meant the demolition at great expense of substantial parts of the
completed structure. The plaintiff left the work untouched, and
asked for a certificate that the final payment was due. Refusal of
the certificate was followed by this suit.
The evidence sustains a finding that the omission of the
prescribed brand of pipe was neither fraudulent nor willful. It was
the result of the oversight and inattention of the plaintiff’s
subcontractor. Reading pipe is distinguished
p. 330
p. 331
from Cohoes pipe and other brands only by the name of the
manufacturer stamped upon it at intervals of between six and
seven feet. Even the defendant’s architect, though he inspected the
pipe upon arrival, failed to notice the discrepancy. The plaintiff tried
to show that the brands installed, though made by other
manufacturers, were the same in quality, in appearance, in market
value and in cost as the brand stated in the contract — that they
were, indeed, the same thing, though manufactured in another
place. The evidence was excluded, and a verdict directed for the
defendant. The Appellate Division reversed, and granted a new
trial.
We think the evidence, if admitted, would have supplied some
basis for the inference that the defect was insignificant in its
relation to the project. The courts never say that one who makes a
contract fills the measure of his duty by less than full performance.
They do say, however, that an omission, both trivial and innocent,
will sometimes be atoned for by allowance of the resulting
damage, and will not always be the breach of a condition to be
followed by a forfeiture. . . .
Those who think more of symmetry and logic in the
development of legal rules than of practical adaptation to the
attainment of a just result will be troubled by a classification where
the lines of division are so wavering and blurred. Something,
doubtless, may be said on the score of consistency and certainty
in favor of a stricter standard. The courts have balanced such
considerations against those of equity and fairness, and found the
latter to be the weightier. The decisions in this state commit us to
the liberal view, which is making its way, nowadays, in jurisdictions
slow to welcome it. Where the line is to be drawn between the
important and the trivial cannot be settled by a formula. “In the
nature of the case precise boundaries are impossible” (2 Williston
on Contracts, sec. 841). The same omission may take on one
aspect or another according to its setting. Substitution of
equivalents may not have the same significance in fields of art on
the one side and in those of mere utility on the other. Nowhere will
change be tolerated, however, if it is so dominant or pervasive as in
any real or substantial measure to frustrate the purpose of the
contract. There is no general license to install whatever, in the
builder’s judgment, may be regarded as “just as good.” The
question is one of degree, to be answered, if there is doubt, by the
triers of the facts, and, if the inferences are certain, by the judges
of the law. We must weigh the purpose to be served, the desire to
be gratified, the excuse for deviation from the letter, the cruelty of
enforced adherence. Then only can we tell whether literal
fulfillment is to be implied by law as a condition. This is not to say
that the parties are not free by apt and certain words to effectuate
a purpose that performance of every term shall be a condition of
recovery. That question is not here. This is merely to say that the
law will be slow to impute the purpose, in the silence of the parties,
where the significance of the default is grievously out of proportion
to the oppression of the forfeiture. The willful transgressor must
accept the penalty of his transgression. For him there is no
occasion to mitigate the rigor of implied conditions. The
transgressor whose default is unintentional and trivial may hope
for mercy if he will offer atonement for his wrong.
In the circumstances of this case, we think the measure of the
allowance is not the cost of replacement, which would be great,
but the difference in value, which would be either nominal or
nothing. . . . It is true that in most cases the cost of replacement is
the measure. The owner is entitled to the money which will permit
him to complete, unless the cost of completion is grossly and
unfairly out of proportion to the good to be attained. When that is
true, the measure is the difference in value. . . . The rule that gives a
remedy in cases of substantial performance with compensation
for defects of trivial or inappreciable importance, has been
developed by the courts as an instrument of justice. The measure
of the allowance must be shaped to the same end.
The order should be affirmed, and judgment absolute directed
in favor of the plaintiff upon the stipulation, with costs in all courts.
MCLAUGHLIN, J. (dissenting). I dissent. The plaintiff did not
perform its contract.
. . .
p. 331
p. 332
The defendant had a right to contract for what he wanted. He
had a right before making payment to get what the contract called
for. It is no answer to this suggestion to say that the pipe put in
was just as good as that made by the Reading Manufacturing
Company, or that the difference in value between such pipe and
the pipe made by the Reading Manufacturing Company would be
either “nominal or nothing.” Defendant contracted for pipe made by
the Reading Manufacturing Company. What his reason was for
requiring this kind of pipe is of no importance. He wanted that and
was entitled to it. It may have been a mere whim on his part, but
even so, he had a right to this kind of pipe, regardless of whether
some other kind, according to the opinion of the contractor or
experts, would have been “just as good, better, or done just as well.”
He agreed to pay only upon condition that the pipe installed were
made by that company and he ought not to be compelled to pay
unless that condition be performed.
CASE DISCUSSION QUESTIONS
1. Why did the court find for the plaintiff contractor?
2. The dissent essentially states that people have a right to get
what they contract for. The majority does not see things in such
black-and-white terms, saying, “We must weigh the purpose to be
served, the desire to be gratified, the excuse for deviation from the
letter, the cruelty of enforced adherence.” Which view do you think
best serves the needs of the contracting parties?
3. What could the owner have done to ensure that there would be
no deviations from his specifications?
4. Would this case have had a different outcome if the contractor
had deliberately substituted the pipe in order to save money? Why?
The issue of not performing to the letter of the contract is one
area where the UCC, instead of liberalizing the rules, has tightened
them. Under Section 2-601, the UCC states that failure in any respect
to supply conforming goods means that the buyer is free to accept
the goods, reject them, or accept part and reject part. This is known
as the perfect tender rule. The only relief from this rule involves the
following exceptions: (1) if the parties agree to overlook the lack of
conformity; (2) if “cure” is possible — that is, if the time for
performance has not yet expired, the seller notifies the buyer of his
intent to rectify the matter, and he then does so; and (3) in some
cases of commercial impracticability.
If the goods cannot be returned without their perishing, they must
be sold in order to minimize the seller’s losses. UCC § 2-603. If
substandard goods are accepted and retained, the buyer can seek
damages that amount to the difference between the value of the
goods promised and the value of the goods received. UCC § 2-714.
2. By Agreement
Contractual obligations can be ended by agreement through
rescission, novation, or accord and satisfaction. Rescission involves
an agreement by both parties to cancel the contract. Rescission is
generally viewed as appropriate if the contract is still completely
executory. If one side has performed, a rescission will not be enforced
unless the other side gives consideration for the rescission.
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p. 333
In a novation, a third party is substituted for one of the original
parties. This creates a new contract and as such differs from
assignments or delegations. Because it is a new contract, it must be
supported by new consideration.
Finally, the parties may enter into an accord and satisfaction. An
accord is an agreement to do something different than originally
promised. The satisfaction is the performance of the accord. For
example, if John owes Sally $4,000 and they agree that Sally will
accept John’s Rolex watch in payment instead, their agreement is the
accord. If John gives Sally his watch, there is a satisfaction. If he
does not, then Sally can still sue John for the $4,000.
In some states an accord and satisfaction is only effective in
cases of an unliquidated debt. A debt is liquidated if the amount
owed is undisputed. It is unliquidated if there is a good-faith dispute
as to the amount owed. For example, if Sam agreed to paint Jill’s
living room a brilliant yellow “to her satisfaction” and Jill thought the
living room ended up a dull yellow, Jill might argue she did not owe
Sam anything as the final paint color did not match her expectations.
Sam, of course, would argue he should be paid the full contract price.
Therefore, the amount owed would be in dispute. If they were able to
reach a compromise somewhere between the full contract price and
nothing, then that would be an accord, and the lesser payment made
would be the satisfaction.
3. When Performance Is Impossible
A party can assert the defense of impossibility of contractual
performance. This occurs when one party either dies or becomes too
sick to carry through with the contractual responsibilities. It also
could occur when the object to be sold is destroyed or stolen before
the agreed-on transfer takes place or when there is a change in the
law that makes the contract illegal. A party that hopes to win under
the defense of impossibility must show that the contract cannot be
performed, not simply that the party cannot perform it. For example,
assume Mariann, who lives in Hampshire County, Massachusetts,
agrees to sell 200 bushels of the apples she grows that year to
William for $10 a bushel. But a week before the harvest, a tornado
destroys her entire crop. It is now impossible for her to complete the
contract and she is discharged from her contractual obligations and
William is simply out of luck (and apples). However, assume instead
that Mariann had agreed to sell 200 bushels of apples harvested that
year from Hampshire County, Massachusetts, to William for $10 a
bushel. Mariann had been planning on buying the apples from local
farms for $8 a bushel, thereby ensuring a profit for herself of $2 a
bushel. However, that same tornado destroys all of her apples and the
majority of the apples grown that year in Hampshire County, forcing
up the price of apples to $40 a bushel. If she has to buy 200 bushels
of apples at $40 a bushel and then resell them to William for $10, not
only will she not make a profit, she will incur a huge loss. Mariann
may want to claim that it is now impossible for her to perform the
contract, but she will not succeed. It has become difficult, and
expensive, but not impossible.
4. Due to Commercial Impracticability
As we saw from our discussion of consideration, freedom of contract
allows parties to make and be held to a bad bargain. When
circumstances change, leaving
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p. 334
one party at a disadvantage, that party may ask to be excused from
the contract under the doctrine of commercial impracticability. The
argument is not that the contract is impossible to perform but rather
that it has become too costly for one of the parties. If the change of
circumstances should have been foreseen, then generally the courts
will not supply any relief. For example, in one case a farm agreed to
sell to a school district all the milk it required. During the course of the
contract the price of raw milk increased by 23 percent. If the farm
was required to abide by the terms of the contract, it would lose a
substantial amount of money. The court held the farm to its contract,
refusing to allow it to pass the increase on to the school district,
8
because the rise in price was a foreseeable occurrence.
G. THIRD-PARTY RIGHTS
There are three ways in which a person or corporation not a party to
the contract can have a legal interest in enforcing part of the terms of
that agreement. The most common of these is through the process
of assignment. Third-party rights also arise through delegation and
the creation of third-party beneficiaries.
1. Assignment
An assignment occurs when one of the original parties to a contract
transfers part or all of his or her interest to a third party. See Figure 8-
7. For example, assume a consumer signs a sales contract with a
furniture store. In the contract the consumer agrees to make certain
monthly payments. The furniture store then assigns the right to
receive those payments to a finance company, and in return the
finance company gives the furniture store ready cash. The finance
company now has a legal interest in receiving the monthly payments
that the consumer agreed to pay to the store.
Figure 8-7 Assignment of a Contract
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p. 335
Figure 8-8 Delegation of Duties under a Contract
An assignment involves an assignor, an assignee, and an obligor.
The assignee gets the same rights that the assignor had, but no
more. The assignee is also subject to the same defenses as could
have been raised against the assignor. Assignment is usually possible
unless
1. the contract itself prohibits it,
2. the contract involves personal services, or
3. the assignment will materially alter the duties of the obligor.
2. Delegation
Most duties can be delegated unless the contract prohibits it or the
duty requires personal skill or special trust. The primary duty is not
extinguished if the delegatee fails to perform. The original party
remains obligated to fulfill the terms of the contract. See Figure 8-8.
3. Third-Party Beneficiaries
Assignment and delegation happen after the contract is formed.
However, if at the time the contract is formed one or both of the
parties want to benefit a third party, a third-party beneficiary
relationship is created. There are two types of beneficiaries: intended
(creditor or donee) and incidental. See Figure 8-9.
Figure 8-9 Third-Party Beneficiaries
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p. 336
a. Intended Beneficiaries
Contracts often contain provisions in which one of the parties
agrees to provide some direct benefit to a third party, or beneficiary.
For example, in purchasing a house the buyer might agree to assume
the seller’s current mortgage. In that case the mortgage lender is a
third party that has been given a specific benefit under the terms of
the contract; it is considered to be a creditor beneficiary. In a situation
in which a father contracts with a bank to administer a trust fund for
his children, those children would be considered donee beneficiaries.
If it is clear from the contract that the parties intended a third
party to benefit, that party is an intended beneficiary. Consider two
further examples: If in return for Sam’s watch John promises Sam to
pay the $500 debt Sam owes to Jill, Jill becomes a creditor
beneficiary. If in return for Sam’s car John promises Sam to give a
$4,000 gift to Joan, then Joan is a donee beneficiary. In both cases
the third party has a right to see that the contract terms are fulfilled,
including the right to sue.
b. Incidental Beneficiaries
An incidental beneficiary is someone whom the original parties did
not explicitly intend to benefit from the contract. An incidental
beneficiary cannot enforce rights under the contract. For example, in
the last example assume Bill is Joan’s husband. If Joan plans on
taking the two of them on a vacation with the $4,000, Bill will benefit,
but if John fails to deliver the money, Bill has no right to enforce the
contract.
H. DAMAGES
When one party fails to live up to the terms of a contract, a variety of
remedies may be available to the other party. We have already
discussed several actions that the parties can take on their own
without court intervention: rescission, novation, and accord and
satisfaction.
Alternatively, the nonbreaching party can go to court to seek
monetary damages or specific performance. Specific performance is
used in situations where there is no alternative comparable product
available, such as a particular parcel of land or a rare piece of art.
Under this remedy the injured party obtains a court order requiring
the breaching party to fulfill the terms of the agreement. Specific
performance is a wonderful remedy because the contracting party
gets exactly what was contracted for. Also, there is no need to worry
about collecting a judgment, the nonbreaching party need not expend
time and effort to find another deal, and the actual performance may
be more valuable than dollars. However, keep in mind that specific
performance is possible only if dollars are inadequate. In addition,
specific performance cannot be used to enforce personal service
contracts. Not only would that constitute involuntary servitude, but it
would impose an impossible task for the court due to the difficulty of
monitoring the party’s performance.
The purpose of monetary damages is to give the injured party the
benefit of the bargain. Monetary damages can be classified as
compensatory, consequential,
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incidental, nominal, or punitive. In addition, the injured party may be
required to take steps to lessen his or her loss. This is known as
mitigation of damages.
For example, if Mary signs a 12-month lease for an apartment and
in month six she notifies her landlord that she does not intend to rent
the apartment for the remainder of the term because she has
accepted a job out of state, the landlord can sue Mary for the amount
remaining on the lease. The landlord will be required to mitigate the
damages. Generally, this means that the landlord will try to rent out
Mary’s apartment for the six months remaining on the lease. If the
apartment is rented, the amount of that rent would reduce the
amount that Mary owes. The landlord can add the cost of trying to
rent the apartment. However, if the landlord has several units
available for rent, Mary’s apartment does not have to be the first
apartment to be rented.
Compensatory damages are awarded to compensate for the loss
of the bargain. Their purpose is to place the injured party in the same
position that party would have been in had the contract been
performed. The classic case describing this form of damages is a
1929 New Hampshire case, known by law students everywhere as
9
the “hairy hand” case. In that case a father took his son to a doctor.
The boy had burned his hand, leaving it scarred. The doctor promised
to give the boy a “hundred percent perfect hand” by grafting a piece of
skin taken from the boy’s chest. Everything went well until a few years
passed, and the boy entered puberty. When he did so, his hand began
sprouting hair, leaving him with a hand uglier than when he had
started. The court calculated the damages as the difference between
a “perfect hand” and what the boy received, a hairy hand. Not included
in the damage award was any pain the boy suffered from the
operation or the cost of the operation. The boy would have had to
undergo the pain and cost of the operation even if the operation had
been successful. Therefore, to compensate the plaintiff for the pain
and the cost of the operation, in addition to the difference in the hand,
would give the plaintiff more than what was necessary to put him in
the position he would have been in had the operation been
successful.
In calculating compensatory damages, courts frequently use the
following formula:
Promised performance – actual performance – mitigation +
expenses (incidental damages)
For example, if John agrees with Bill to sell Bill his watch for $500, but
Bill only pays $300, John can sue Bill for $200. If Bill had paid nothing
and simply reneged on the deal, John could have sold the watch to
someone else and could have recovered the difference between that
price and the contract price, along with any expenses incurred in
finding the new buyer (incidental damages).
On the other hand, if John refuses to sell the watch, then Bill has
two options. First, he can try to find another watch. The UCC calls this
finding of substitute goods cover. Then his damages are the cost of
the substitute watch minus the contract price. For example, if Bill
finds a similar watch but has to pay $700, his damages are $200.
Alternatively, he can decide to forgo a new watch. In
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that case his damages would be the difference between the market
price and the contract price.
Consequential damages arise out of special circumstances that
must be foreseeable to the other party. Typically this is handled by
notifying the other party of any such circumstances. The classic case
10
setting forth this rule is an English case from 1854. The Hadley
family ran a flour mill. Their crankshaft broke, and they gave it to
Baxendale to deliver to a foundry for repair. Baxendale promised to
deliver the shaft the next day. However, it was not delivered for
several days. As a result, the mill was closed for those days. Despite
the common practice, the Hadleys did not have an extra crankshaft.
Because the Hadleys had not notified Baxendale of that special
circumstance, he could not be held liable for their lost profits.
Sometimes, however, lost profits can be recovered, especially if an
established business suffers a loss and the breaching party could
have anticipated that loss. In the following case Sargon, a small
dental implant company, with net annual profits of $101,000, sued a
university for breach of contract and sought lost profits of over $1
billion, claiming that but for the breach of contract, the company
would have become a world leader in the dental implant industry.
Sargon had contracted with the university to conduct a five-year
study, which it failed to complete.
Sargon Enterprises, Inc. v. Univ. of Southern California
288 P.3d 1237 (Cal. 2012)
Opinion
Lost profits may be recoverable as damages for breach of a
contract. “[T]he general principle [is] that damages for the loss of
prospective profits are recoverable where the evidence makes
reasonably certain their occurrence and extent.” Such damages
must “be proven to be certain both as to their occurrence and their
extent, albeit not with ‘mathematical precision.’ ” . . .
Regarding lost business profits, the cases have generally
distinguished between established and unestablished businesses.
“[W] here the operation of an established business is prevented or
interrupted, as by a . . . breach of contract . . . , damages for the
loss of prospective profits that otherwise might have been made
from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable
certainty from the past volume of business and other provable
data relevant to the probable future sales.” . . . In some instances
[involving unestablished businesses], lost profits may be recovered
where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions.
. . .
We now apply these principles to this case.
. . .
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p. 339
An expert might be able to make reasonably certain lost profit
estimates based on a company’s share of the overall market. But
Skorheim [plaintiff’s expert] did not base his lost profit estimates
on a market share Sargon had ever actually achieved. Instead, he
opined that Sargon’s market share would have increased
spectacularly over time to levels far above anything it had ever
reached. He based his lost profit estimates on that hypothetical
increased share.
Skorheim considered Sargon to be comparable to the “Big Six”
dental implant companies rather than the smaller ones that appear
to have far more closely resembled it. He admitted that by no
objective business metric, such as sales or number of employees,
was Sargon in fact comparable to the “Big Six.” Instead, he based
his comparison solely on his belief that Sargon, like the “Big Six,”
and unlike the rest, was innovative, and that innovation was the
prime market driver. . . . But, as the trial court noted, Skorheim’s
reasoning was circular. He concluded that the “Big Six” were
innovative because they were successful, and that the smaller
companies (excluding Sargon) were not innovative because they
were less successful. In essence, he said that the smaller
companies were smaller because they were not innovative. The
trial court properly considered this circularity in the reasoning as a
basis to exclude the testimony.
. . .
Sargon argues that the cases concerning an unestablished
company do not apply here because it was an established
company with a track record of having made a profit. It had, for
example, a net profit of $101,000 in 1998. But Sargon had no track
record of being a global leader, one of the “Big Six.” An established
company may base its claim to future profits on evidence of its
past profits, but Skorheim did not do so. He tried to compare
Sargon to the “Big Six,” but the companies were not comparable. . .
As the trial court noted, “Sargon is not similar to the industry
leaders by any relevant, objective business measure.” Skorheim did
not base his lost profits estimates on any objective evidence of
“past volume of business” or any “other provable data relevant to
the probable future sales.” Instead, as the trial court further noted,
Skorheim’s lost profit projections were “wildly beyond, by degrees
of magnitude, anything Sargon had ever experienced in the past.”
. . . If lost profits can be estimated with reasonable certainty, a
court may not deny recovery merely because one cannot
determine precisely what they would have been. But exactitude is
not the problem here. Whether the actual profits could logically be
estimated in the manner Skorheim claimed is the problem. As the
trial court noted, a lost profit award of up to $1 billion may not be
based on pure speculation.
. . .
World history is replete with fascinating “what ifs.” What if
Alexander the Great had been killed early in his career at the Battle
of the Granicus River, as he nearly was? What if the Saxon King
Harold had prevailed at Hastings, and William, later called the
Conqueror, had died in that battle rather than Harold? . . . Many
serious, and not-so-serious, historians have enjoyed speculating
about these what ifs. But few, if any, claim they are considering
what would have happened rather than what might have
happened. Because it is inherently difficult to accurately predict the
future or to accurately reconstruct a counterfactual past, it is
appropriate that trial courts vigilantly exercise their gatekeeping
function when deciding whether to admit testimony that purports
to prove such claims.
. . .
The trial court properly acted as a gatekeeper to exclude
speculative expert testimony.
p. 339
p. 340
CASE DISCUSSION QUESTIONS
1. On what basis did the expert witness argue that Sargon would
have made up to a billion dollars but for the university breaching the
contract?
2. Why did the court not accept that argument?
3.When are damages for lost profits likely to be awarded?
Punitive damages are not allowed in contract actions. However, if
the plaintiff can also bring a tort action — for example, for fraud —
then punitives are possible. Finally, nominal damages are possible
when there has been a breach but no provable damages.
In order to avoid having to litigate damages issues, some
contracting parties put liquidated damages clauses in their
contracts. Such clauses specify what will happen in case of breach.
Such clauses are valid if two requirements are met. First, the amount
of damages must be difficult or impossible to calculate. Second, the
amount must bear a reasonable relationship to the true loss and not
be seen as a penalty clause. Liquidated damages clauses are
frequently found in university and major league coaching contracts.
Should a coach leave before the end of the contract term, the
damage to the school or team could go far beyond the costs of
finding a replacement coach. For example, incalculable damages
could include harm to alumni relations, loss of players who came to
play for a particular coach, and a reduction in ticket sales.
Liquidated clauses may also be used in building contracts. For
example, a university that contracts to build a new science building
and anticipates that the science building will be completed by the first
day of the fall semester will incur damages if the building fails to be
completed on time. But how would the damages be calculated? There
would be serious inconveniences for faculty and students as well as
potentially increased costs associated with moving. Classes might
need to be re-scheduled to accommodate a move mid-semester. Both
parties could agree that there would be a cost associated with a late
completion date, but neither side can anticipate exactly what those
exact costs would be. A liquidated damages clause acknowledges
those increased costs by allowing the parties to agree on an estimate
of the costs when the contract is signed.
Finally, when the parties imperfectly express themselves,
sometimes the court will reform the contract. For example, assume a
covenant not to compete is included in a sale of a business. While it is
limited geographically to one county, its duration is for ten years. The
court might reform the contract so that the duration is for a shorter
period of time.
CHAPTER SUMMARY
A contract is an agreement that can be enforced in court. The basic
elements of a contract are offer, acceptance, and consideration.
Contracts can be classified as bilateral or unilateral; express or
implied in fact; formal or informal; executory or executed; and valid,
void, voidable, or unenforceable. The most common defenses are lack
of contractual capacity, illegality, violation of public policy,
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p. 341
lack of genuineness of assent, breach of warranty, and the statute of
frauds. Third parties can attain contractual rights either through
assignment or delegation or through being an intended beneficiary. A
plaintiff bringing a contract action may be under a duty to mitigate
damages and is usually seeking specific performance or
compensatory or consequential damages.
While many contracts are still controlled by the common law,
contracts for the sale of goods are generally governed by Article 2 of
the Uniform Commercial Code (UCC). The UCC was drafted by a
group of legal scholars with the hope of making commercial law
more unified among the states. Most of the UCC’s provisions apply to
everyone, but some sections contain specific rules that apply to
merchants only. Under the UCC everyone is under the obligation to
act in good faith.
CRITICAL THINKING EXERCISES
1. DotTV posted the Internet domain name golf.tv on its website
to be sold to the highest bidder. Je Ho Lim submitted the highest bid:
$1,010. DotTV sent an e-mail to Mr. Lim congratulating him on
winning the bid and concluded with the statement: “See ya on the
new frontier of the Internet!” Shortly thereafter, DotTV sent a second
e-mail stating that they were releasing Lim from his bid and that the
prior e-mail had been sent in error. DotTV then publicly offered the
domain name with an opening bid of $1 million. Was Lim’s bid an
invitation or an offer? Why does it matter? Do you think Lim or DotTV
won the lawsuit?
2. Pepsi ran a national television promotion for its Pepsi Points
program. Consumers could purchase Pepsi products and then
redeem points for items shown in a catalog. The TV ads featured
such items as t-shirts and sunglasses, along with their point values.
One ad ended by showing a teenager arriving at school in a fighter jet,
with the subtitle: “Harrier Jet 7,000,000 Pepsi points.” Not surprisingly,
the catalog did not include a listing for the jet. Nonetheless, Leonard
filled out an order form, wrote in the jet as the item to be purchased,
and sent a check for $700,000. (The catalog noted that if a consumer
lacked enough Pepsi Points, additional points could be purchased for
10 cents each.) Pepsi refused to sell the $23 million jet to Leonard.
Leonard sued for breach of contract. If you were the judge, how
would you decide and why?
3. Jeffrey and Kathryn Dow owned a 125-acre plot of land. They
had two children, and when they were teenagers, Kathryn frequently
told them that someday they would be given parcels of land as their
own. As an adult, their daughter, Teresa, lived in a house trailer on the
land. When she decided that she would like to build a house, she
talked it over with her parents. They agreed to the construction, and
Teresa acquired a $200,000 mortgage. Her father did a substantial
part of the building work himself, but did not give her title to the land
on which the house was built. Several years later, Teresa and her
parents had a falling out. She sued, asking the court to force the
Dows to transfer title to the land on which her house was built or, in
the alternative, to reimburse her for the $200,000 she expended in
building the house. On what theory do you think Teresa’s attorney
relied? How do you think the court ruled?
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p. 342
4. The 2005 hurricane season spawned a number of high-profile
lawsuits over the interpretation of standard homeowners’ insurance
policies. Such policies are contracts between the insured homeowner
and the insurance company to cover damage to the insured’s house,
home furnishings, and other types of listed property. These policies
typically cover damage from high winds but exclude water damage.
However, when hurricanes hit shore they usually combine high winds,
heavy rain, and sometimes even tidal waves. Which of the following
types of damage do you think should be considered wind damage?
a. During the hurricane, a limb breaks off a tree and damages
the roof of an insured’s house.
b. During the hurricane, water came into an insured’s house
through windows that had been blown out by the hurricane’s
winds.
c. Rain from the hurricane caused a nearby river to overflow
its banks, and flood waters covered the first-floor carpet.
d. Rain from the hurricane overwhelmed the local sewer
system and caused water to back up into the insured’s
basement.
e. A beach house was knocked off its foundation by the tidal
wave that accompanied the hurricane.
Now assume that a homeowner’s policy explicitly excluded “water
damage” and defined that term as “(1) flood, surface water, tsunami,
seiche, overflow of a body of water, or spray from any of these,
whether driven by wind or not; (2) water or sewage from outside the
residence premises’ plumbing system that enters through sewers or
drains, or water which enters into and overflows from within a sump
pump, sump pump well, or any other system designed to remove
subsurface water which is drained from the foundation.” Which, if any,
of the types of damage listed above would be excluded from
coverage under the terms of the policy?
5.Rogers Communications, a cable company, and Aliant Inc., a
telecommunications company, signed a contract whereby Aliant
agreed to let Rogers Communications string its cables on Aliant’s
poles for $9.60 a pole. The contract contained the following provision:
This agreement shall be effective from the date it is made and shall continue in force for
a period of five (5) years from the date it is made, and thereafter for successive five (5)
year terms, unless and until terminated by one year prior notice by either party.
Rogers thought it had a solid deal for at least five years unless
Aliant gave notice at least one year before the end of the five-year
term that it wanted to terminate the contract. However, Aliant sent a
termination notice just one year into the contract, offering to lease its
poles for $28 a pole. The difference between the original $9.60 a pole
and the $28 a pole came to $2.13 million over the course of the five
years. Rogers sued. Who do you think won and why?
6. When the Panera Bread Co. bakery-café chain moved into the
White City Shopping Center, it signed a lease containing a clause that
prevents the center from renting to another “sandwich” shop. When
the shopping center management later rented space to Jack in the
Box, Inc. to open a Qdoba’s Mexican Grill, Panera took the matter to
court claiming that Qdoba’s burritos, tacos, and quesadillas were
sandwiches.
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a. The key issue in this case involved interpretation of the term
“sandwich,” but that term was not defined in the lease. How
do you think the judge should go about determining whether
burritos, tacos, and quesadillas were sandwiches?
b. Based on your own common understanding of the term,
how would you define a “sandwich”?
c. In what ways are burritos, tacos, and quesadillas like
sandwiches? In what ways are they different?
d. How would you rule if you were the judge?
7. Janice Jones, along with her family, visited a Big Bill’s Family
Restaurant, a national chain. She was eating a piece of fried chicken
when she bit into something that she thought was a worm. Naturally
she became quite upset and has been unable to eat chicken since.
Expert witnesses are likely to state that, instead of a worm, the object
was actually either the chicken’s aorta or its trachea, both of which
would appear wormlike. Ms. Jones wants to know whether she can
successfully sue the restaurant for breach of warranty. Please
evaluate her claim based on Webster v. Blue Ship Tea Room, Inc.
(pages 327-28).
8. United Airlines posted on its website a fare of $49 round trip
from New York City to Hong Kong. On the strength of that quote, 143
people purchased tickets. They were quite surprised when their credit
cards were charged for the “real” fare, about 20 times what they had
thought they had paid. It seems that for about an hour there was a
bug in one of United’s reservation computers that caused the low
prices to be quoted on some flights to Asia. The customers want to
know if they can force United to honor the quoted fare. Do you think a
binding contract was formed, and if so, on what terms? Second, do
you think United has any defense that it could raise? Finally, think
about the ethical implications. Now that the customers know the
posting was a mistake, should they voluntarily agree to pay the higher
price?
9. Jonathan Shattuck thought he had a deal to buy a house for
$1.825 million. Using e-mail, Shattuck and the seller had settled on
the price. The last e-mail from the seller stated:
Once we sign the P&S (purchase and sale agreement) we’d like to close ASAP. You may
have your attorney send the P&S and deposit check for 10% of purchase price
($182,500) to my attorney. I’m looking forward to closing and seeing you as the owner of
5 Main Street, the prettiest spot in Marion village.
Before the buyer’s attorney had a chance to draw up the purchase
and sale agreement, the seller informed Shattuck that he was not
going to follow through on the deal as he had another buyer who was
willing to pay $1.96 million. His argument was that there was no
signed writing binding him to the deal. How do you think the court
decided? Why?
10. Two businessmen sat down in a Chinese restaurant in
Altoona, Arkansas, and wrote out terms for the sale of a restaurant on
a napkin. When one of the men attempted to enforce the agreement,
the other refused, claiming that the jottings on the napkin failed to
constitute a valid written contract for the sale of land. The case went
to court and an Arkansas Common Pleas Judge dismissed the
lawsuit because she found it lacked the terms of seller, item being
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p. 344
sold, and sales price. Because there was no written contract, and
contracts for the sale of land must be in writing, the contract was
considered void.
11
What makes this case different from Lucy v.
Zehmer?
11. Sara Smith is a struggling young artist. Recently, however, she
was “discovered” when an art dealer saw one of her paintings
hanging in a local art gallery. The art dealer contracted with Sara to
hold a major showing of her work in six months, on November 1.
Under the contract Sara was to show no less than ten original
paintings. In preparation for the show Sara contracted with Paint
Masters, Inc., for four cases of her favorite oil paints to be shipped no
later than July 1. Sara heard nothing more from Paint Masters, Inc.,
until September 1 when one case arrived. Sara attempted to find the
same paint from other sources but was able to procure only one
more case at $200 more than she had contracted to pay Paint
Masters. Because of the delay in shipment, Sara was able to
complete only six paintings and the show was canceled. Sara would
like to sue Paint Masters, Inc., for the lost profits she would have
received from her heightened recognition had the show gone as
planned, for the money she had to spend on alternate paints, and for
punitive damages to teach Paint Masters a lesson. Please evaluate
Sara’s situation.
12. Kate contracts with Bennett to buy 100 guitars at $300 each.
Kate hopes to resell the guitars for $400 each. When the time for
delivery arrives, Bennett refuses to deliver the guitars. Kate then
spends $100 in phone calls trying to obtain an alternate supplier.
Finally, she finds substitute guitars, but has to pay $350 each for
them. She saved $50, however, because in her contract with Bennett
she was going to have to pay the shipping. In her new contract, the
seller paid the shipping. How much is Kate owed in compensatory
damages?
WEB EXERCISES
1. Team up with a classmate and decide on the terms for a basic
contractual arrangement. For example, assume your classmate
wants to go into the used textbook business. Agree to sell your
used law textbooks at the end of the semester. Be sure to decide
on all of the basic terms, such as price, condition of the books,
time of delivery, etc. Then go to www.lawinsider.com/ and use
“Browse Clauses” or “Browse Contracts” to complete the contract
using the terms of your agreement.
2. Take advantage of the wealth of material on the Internet placed
there by those who want to make learning about contracts fun.
One professor has even created songs to help you remember
basic contract principles. Go to www.youtube.com/ and search
for songs by “Profblaw,” such as the “Statute of Limitations Song.”
On YouTube you will also find video and cartoon clips
demonstrating various contract principles. Find the clip where
Lucy convinces Charlie Brown to try to kick the football she is
holding by giving him a “signed document.” When she fails to live
up
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p. 345
to the terms of the “signed document,” is she in breach of
contract? Why or why not?
REVIEW QUESTIONS
Pages 291 through 297
1. How do the courts determine if the UCC governs a contract
situation?
2. Why does it matter under the UCC whether one or both of the
parties are merchants? Give at least two examples.
3. Describe each of the following contracts according to the
categories listed in Figure 8-3.
a. Carlos says to Mary, “Will you paint my house for $2,000?”
Mary replies, “Yes, I would be happy to.”
b. Carlos says to Mary, “I will pay you $2,000 if you paint my
house next week.” The next week Mary begins to paint the
house and gets about half-way done when severe weather
forces her to wait until the next week to finish the job.
c. Carlos says to Mary, “Will you paint my house for $2,000?”
Mary replies, “Yes, I would be happy to.” Mary never paints the
house. Carlos waits ten years to sue Mary for breach of
contract.
d. Janet says to Jim, “I will sell you my car for $600.” Later that
day Jim sends Janet an e-mail saying, “I accept.”
e. Joan says to Bill, “I will give you $5,000 if you kill Robert.” Bill
kills Robert, but Joan refuses to give him the $5,000.
f. Every Saturday Jimmy came to the Booths’ home and mowed
their lawn for $15. One Saturday Jimmy arrived while Mr.
Booth was on the phone. Mr. Booth simply waved at Jimmy,
who then mowed the lawn.
Pages 297 through 308
4. What are the three basic elements of a valid contract claim?
5. What is the objective view of contract law?
6. What are the four basic elements that every offer should contain?
7. Juan says to Jim, “I would like to sell my watch to you.” Jim
replies, “Great. I will be happy to give you a fair price for it.” Has a
contract been formed? Why?
8. Sally offers Tom a job as a paralegal, saying she will pay him
“what he is worth.” Tom accepts. Has a contract been formed?
Why?
9. Janet says to Joan, “I am eager to sell my antique vase to you.”
Joan says, “Would you consider $400 for it?” Has a contract been
formed? Why?
10. We Growum, a garden center, places the following advertisement
in the Sunday paper:
Spring Planting Sale
Lilac bushes $20
Tuesday John goes to the garden center. All the lilac bushes have
been sold. He sues for breach of contract. Will he succeed? Why?
p. 345
p. 346
11. Acme Lawn Care receives a call asking them to mow a lawn at
423 Main Street. Unfortunately the mowers misread the address
as 432 Main Street. They arrive at that address, unload their
mowers, and begin their work. Mr. Adams, the owner, is home and
sees what they are doing. He says nothing and lets them
complete the job. When they finish and ask to be paid, he refuses.
Would a court require Mr. Adams to pay and, if so, under what
theory?
12. What are the three ways an offer can be terminated?
13. When may an offeror not revoke an offer?
14. What is the difference between an option contract and a
merchant’s firm offer?
15. What is the name of the rule that states that the acceptance
must completely agree with the terms of the offer?
16. How has the UCC changed the mirror image rule?
Pages 308 through 313
17. An uncle offers his nephew $5,000 if the nephew promises not to
smoke marijuana or use other illegal drugs during the next four
years while he is away at college. Has a binding contract been
formed? Why?
18. John volunteers to take care of Sam’s pet rabbit while he is away
on vacation. When Sam returns, he is very pleased with the good
care John gave his rabbit and tells him that he is going to pay him
$50. When John arrives the next day to receive his money, Sam
said that he has changed his mind. Is Sam under a contractual
obligation to pay John for the care of his rabbit? Why?
19. Anna Sacks was an employee of the Ajax Company for 37 years.
The president of the company told her that (in consideration for
her outstanding service) when she retired, the company would
pay her $200 per month for life. Two years later she retired and
began receiving the payments. Shortly thereafter, the company
was sold, and the new president refused to continue the
payments, arguing that there had never been a valid contract
between Ms. Sacks and the company. How do you think the court
resolved the case?
20. Millie requested bids from three different contractors for a price
to repair the roof on her house. The bids ranged from $5,000 to
$20,000. Naturally, Millie accepted the $5,000 bid from
We’gottcha Roofing. On a Monday We’gottcha began work by first
removing all of the old shingles. The weather prediction was for
rain by the end of the week. We’gottcha told Millie she had a
choice. Either she could pay them a “bonus” of $15,000 and they
would continue work on her roof, or they would have to take the
rest of the week to finish other jobs they had started. Millie, afraid
all of her household contents would be ruined if rain hit her
“deshingled” roof, agreed to the extra money. Will Millie be
required to pay the $15,000 bonus? Why?
21. Marvin began negotiations with the Big-W food chain to open a
franchise store. The Big-W representative said that first Marvin
would have to sell his bakery to raise the necessary money.
Marvin was hesitant to do so, but based upon Big-W’s
representations that his selling the bakery was the only thing
preventing them from finalizing the contract, Marvin did so.
However, once he had sold the bakery, Big-W said they had found
someone else and refused to sign a franchise contract with
Marvin. If Marvin were to sue Big-W, would he win under a
contract action? Why? Is there any alternative?
p. 346
p. 347
Pages 313 through 330
22. Name the six major defenses to a contract action.
23. Jim, who is 16 years old, buys a stereo from Circuit Playground.
Jim takes the stereo to the beach and ruins it when it becomes
filled with sand. Jim takes it back to the store and demands the
return of the money he paid for the stereo. Will the store have to
refund his payment?
24. Mark and Bill are sitting at a bar drinking. They discuss the
possibility of Mark selling Bill his watch for $50. Bill leaves, but
Mark remains and continues to drink. Two hours later Bill calls
Mark and offers him $5 for the watch. Now very intoxicated, Mark
mutters, “Whatever.” The next day Mark has no memory of the
phone call. Will the court enforce this arrangement? Why?
25. Sara offers to sell her car to Janet for $800. Janet thinks Sara
means her classic 2002 VW Beetle and agrees. Sara was thinking
of her ancient 1980 VW van. Has a contract been formed? Why?
26. A law firm requires all new attorneys to sign an agreement that
states that if they leave the firm for any reason, they will not work
for another law firm or open their own practice within a 50-mile
radius for two years. How do you think the court would treat such
an agreement? Why?
27. What is the difference between a warranty of merchantability and
an implied warranty of fitness? How do both of those differ from
an express warranty?
28. Joan offers to buy Bill’s sailboat for $2,000. Bill agrees and asks
Joan to put it in writing. Joan leaves an e-mail message for her
secretary, stating that she wants him to draft a contract stating
that she agrees to buy Bill’s sailboat for $2,000. The next day
Joan changes her mind. If Bill sues for breach of contract, will he
succeed? Why?
Pages 330 through 336
29. What are the four ways in which the parties’ contractual
obligations can be discharged?
30. How does each of the following differ from the others — complete
performance, substantial performance, and material failure to
perform?
31. Jones contracted with Smith to log all the timber from his land
between the months of September and December. Jones found
he was not able to complete the work in the agreed time because
his operations were slowed (a) by a local ordinance prohibiting
logging during the hunting season, which occurred in September,
and (2) by unusually heavy rains in the remaining months. Should
Jones’s lack of performance be excused? Why?
32. The city of Portage contracts with Get Going Builders to demolish
a vacant building and replace it with a park. John Jakes is
delighted, as his property is right across the street from the
intended park. He envisions a significant increase in his property
value. At the last minute the city decides to forgo the park in favor
of increased pay for its firefighters. John is dismayed and wants
to sue the city. Will he succeed in his suit? Why?
33. Martha contracts with Sam, a noted concert pianist, to take a
series of ten music lessons. After the second lesson Sam is
offered the opportunity to go on a world tour. He contacts
William, a lesser known pianist, to take over his lessons. Martha is
upset. Does she have any grounds to complain?
p. 347
p. 348
34. What is the difference between an assignment and a delegation?
35. What is the difference between assignments and delegations, on
the one hand, and third-party-beneficiary contracts, on the other?
Pages 336 through 340
36. When is specific performance an appropriate remedy?
37. What is cover?
38. What are consequential damages?
39. The city of Kalamazoo hired Good Builders, Inc., to build a new
courthouse for $560,000. Good Builders had barely broken
ground when the city notified them that it would not be able to
pay for the building after all and asked Good Builders to stop all
work. Good Builders refused, saying, “Hey, you guys signed a
contract. We know our rights.” At the time the city asked them to
stop, Good Builders had expended $5,000 on materials,
approximately $3,000 of which could have been returned at no
loss to themselves. By completing the project, however, Good
Builders expended an additional $400,000. In a breach of
contract action by Good Builders against the city, how much
money do you think the court should award Good Builders? Why?
1
When you run across terms such as “things in action,” first consult the definitions section
to see whether the UCC has defined the term. If not, refer to a standard legal dictionary. In
this case a thing in action, also known as a chose in action, means a right to sue.
2
117 F. 99 (9th Cir. 1902).
3
133 N.W.2d 267 (Wis. 1965).
4
Id. at 275.
5
Id.
6
Webster Street Partnership, Ltd. v. Sheridan, 368 N.W.2d 439 (Neb. 1985).
7
Raffles v. Wichelhaus, 159 Eng. Rep. 375 (1864).
8
Maple Farms, Inc. v. City Sch. Dist. of Elmira, 352 N.Y.S.2d 784 (Sup. Ct. 1974).
9
Hawkins v. McGee, 146 A. 641 (N.H. 1929).
10
Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 14 (1854).
11
old.post-gazette.com/regionstate/20001102napkin5.asp.
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p. 349
Property and Estate Law
In no country in the world is the love of property
more active and more anxious than in the
United States.
Alexis de Tocqueville
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Define real and personal property.
■ Discuss the rights of landlords and tenants.
■ Distinguish the different forms of joint property ownership.
■ Discuss limitations on property rights.
■ Discuss how property can be transferred either on a temporary
or permanent basis.
■ Discuss intestate versus testate succession.
■ Explain the requirements for a valid will and the probate
process.
INTRODUCTION
The concept of property is at the heart of the American legal system.
Our economic system is built on the ideas of capitalism and free
enterprise, and the concept of private property rights is central to our
economic success.
Property is usually thought of as being a tangible object, such as a
house or an automobile. In law, however, the term applies to the set of
rights related to
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ownership. Examples include deeds, leases, easements, contractual
rights, promissory notes, and even admission tickets to concerts or
sporting events. There are also circumstances under which a person
can have a “property interest” in a job, an idea, or a reputation.
Therefore, in its broadest sense the legal concept of property refers to
any valuable right or interest that belongs to a person.
Keep in mind that real property and personal property have no
intrinsic worth. Property is worth what a buyer is willing to offer to
purchase that property. The true value of property fluctuates with the
economy and with popular taste. Housing prices can fluctuate
depending on factors such as school assignments and population
growth. The price of furniture can fluctuate depending on rarity and
the popularity of the style. Stocks fluctuate in price depending on a
wide variety of market factors.
Different sets of rules apply to what is classified as real property
(that is, buildings and land) and personal property (for example, cars
and jewelry). In this chapter we will also discuss the laws covering
estate planning, the importance of writing a will, and the probate
process.
At various points throughout the chapter, we will be illustrating the
nature of property law through the lives of Bill Smith and Maria
Rosalles.
Case 11: Bill and Maria
Bill Smith and Maria Rosalles were high school sweethearts.
After graduation Maria enrolled in a nursing program at a local
community college and worked part-time in a nursing home. Bill
got a job working as an auto mechanic for a large Ford dealership.
They continued to date each other and after about six months
decided their relationship had advanced to the point that they
wanted to live together.
A. REAL PROPERTY
Real property, also referred to as real estate, consists of land and
whatever is growing on or built on that land. It includes not only the
houses, garages, sheds, and other types of buildings that are on the
land but also everything that is permanently attached to those
buildings — such as light fixtures, plumbing fixtures, and built-in
shelves.
At times it can be difficult to determine whether something is
“permanently” attached. For example, normally a room air conditioner
is seen as personal property. However, if the window frame has been
removed and the air conditioner bolted to the wall, it might be seen as
“permanently” attached, and hence a fixture. When determining
whether something should be considered a fixture, the courts look to
the amount of damage that would be caused either to the item or to
the underlying property if the item was removed from the premises.
The courts will also take into account the intention of the parties.
In addition, real estate includes the trees and plants growing on
the land, as well as the rights to gas and minerals under the land and
to the air space above
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it. In recent years the common-law right to air space has been
modified so as to not interfere with modern aviation.
1. Rental of Real Property
a. Criteria for Renters
Case 11: Bill and Maria (Continued)
Bill and Maria found that searching for an apartment they
could afford was a lot more difficult than they had thought it would
be. Several times, they saw an advertisement for an apartment
they thought they would like and set up an appointment to view it.
Sometimes it turned out to be more expensive than they thought
or not in a good location. But then they found the ideal place.
However, when they were about to sign the lease, the owner noted
that they had different last names and asked if they were married.
When they responded that they were not, he told them that he was
sorry, but his religious views prohibited him from renting to
unmarried couples. They shared their frustration with their friends,
who advised them to see the attorneys at Darrow and Bryan.
Bill and Maria’s failed attempt to rent an apartment illustrates an
issue in landlord/tenant law: what criteria owners can use, besides
the ability to pay the rent, for deciding to whom they will rent.
As long as the decision not to rent is made by private individuals
or corporations — as opposed to governmental entities like public
housing authorities — potential renters are not protected under the
U.S. Constitution’s equal protection clause. However, the federal
government, as well as most states, has “open housing” laws that
prohibit private landlords from discriminating on the basis of race,
religion, sex, family status, disability, and national origin. Therefore, it
is with such a statute that attorneys at Darrow and Bryan would
begin their research. They found that the relevant state statute
covered the categories listed above as well as marital status. The
courts are split on whether a landlord can refuse to rent to an
unmarried couple when the fair housing statute prohibits
discrimination on the basis of marital status. Some courts have
prohibited such discrimination while others have allowed it under the
theory that the denial was based on the couple’s engaging in criminal
conduct, “cohabiting,” and not on their marital status. Unfortunately,
for Bill and Maria their state fell into the latter category.
Case 11: Bill and Maria (Continued)
Bill and Maria continued with their search for an apartment that
would fit their needs with a landlord willing to rent to them. Happily,
they soon found such an apartment. The next step was to sign a
lease and make a security deposit.
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p. 352
Leasehold Estates
Tenancy for a term (estate for years)
Periodic tenancy
Tenancy at will
Tenancy at sufferance
Figure 9-1 Leasehold Estates
b. The Lease
A lease is an agreement in which the property owner, called either
the lessor or the landlord, gives someone else, the lessee or the
tenant, the right to use that property for a designated period of time.
A leasehold is a parcel of real estate held under a lease. Look at
Figure 9-1. As you can see, leasehold estates can be classified as a
tenancy for a term, a periodic tenancy, a tenancy at will, or a tenancy
at sufferance.
With a tenancy for a term, also sometimes called an estate for
years, the lease establishes a set period of time during which the
lessee will have control and after which all rights revert to the lessor.
With a periodic tenancy the rental periods are established at a set
interval — for example, week to week, month to month, or year to year.
At the end of each rental period the lease can be terminated with
proper notice. However, if neither party gives such notice, the lease
automatically continues. When no time period is specified, it is called
a tenancy at will, and either the lessee can leave or the lessor can
reclaim the land at any time. The law in many states requires that the
owner give 30 days’ notice before reclaiming possession. This has
the effect of converting a tenancy at will into a month-to-month
periodic tenancy. A tenancy at sufferance denotes a situation in
which the person in possession of the land has no legal right to be
there. An example of this would be homeless people occupying an
abandoned building.
Some states and cities have rent control statutes and ordinances
that regulate the amount of rent that can be charged for existing
apartments.
c. Security Deposits
Most leases contain a provision for a security deposit. A security
deposit is an amount of money, usually equal to one month’s rent,
that is collected at the time the lease is signed and then held by the
landlord to cover the cost of repairs that may be needed when the
tenant moves out.
State laws frequently regulate the handling of security deposits.
Tenants are held responsible for any damage done to the property
beyond what is considered to be “normal wear and tear.” Conversely,
state laws often place limits on the amount of money that landlords
can hold as a security deposit, require the return of the security
deposit within a set amount of time after the tenant vacates, require
documentation of the cost of repairs that are deducted from the
deposit, and sometimes require the payment of interest on the
amount of money held.
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p. 353
d. Living Conditions in Rental Units
The common law favored landlords. The tenant had to take the
property in the condition it was in at the time that the lease was
entered into, even if the tenant was not aware of defects at the time
the lease was signed. The tenant also had to repair any damage
resulting from natural disasters or the acts of other people, the
tenant, or the tenant’s family. The landlord’s only obligation to the
tenant was that of not interfering with the tenant’s “quiet enjoyment”
of the premises. Quiet enjoyment meant that the landlord could not
interfere with the tenant’s use of the property with respect to such
things as what crops were planted or who was invited onto the
property. The tenant’s primary obligation was to pay the rent.
Over the years many state legislatures enacted statutes that
provide for a more equitable relationship between landlords and
tenants. Such laws often require the owner to repair and maintain the
premises at certain minimum levels. The plumbing and heating must
work, the windows and the doors have to close, and so on. If an
apartment is being rented as a residential unit, then it must come
complete with running water, a working furnace, and other minimum
living essentials. This requirement is present even if not written into
the lease and is known as the implied warranty of habitability. It
requires that the property be fit for the purpose for which it is being
rented. These minimum standards are often equated with whatever is
required in the local housing code.
e. Eviction
State laws also determine the procedures landlords must use to
retake possession of their property. Under the common law a landlord
could forcibly evict a tenant who was in default of any term in the
lease. The landlord or the landlord’s agent could go in and literally
throw the tenant and a tenant’s personal possessions out on the
street. As a result of the hardship and the frequent violence such
procedures brought about, most states now require that a landlord
first give an appropriate eviction notice and then go to court to get
local law enforcement agents, such as police or sheriff’s deputies, to
supervise the physical removal of the tenant and any possessions.
In an eviction proceeding most state courts have held that an
implied warranty of habitability defense can be used. When a landlord
fails to provide minimal living conditions, such as shutting off the
water or electricity, it is considered to be a construction eviction.
When this occurs, the landlord cannot evict a tenant for failure to pay
rent because the landlord has failed to maintain the premises at
minimum standards.
Case 11: Bill and Maria (Continued)
After several years of happily living together, Bill and Maria
decide to marry and invest in a home. Purchasing a home involves
many legal issues.
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p. 354
2. Buying and Selling Real Estate
When real property is leased, the owner grants legal rights to use the
property in question for a designated purpose for a set amount of
time, but the lessor/landlord retains actual ownership. At the end of
the lease, the lessee/tenant walks away with nothing more than “a
box of rent receipts.” On the other hand, after the same time period,
home or condominium owners have enjoyed more control over the
use of their property, and, in many situations, when they decide to sell,
they receive a return on their investment in the form of increased
1
equity in the property.
a. Listing the Property
In the typical residential real estate transaction, the seller either
advertises the availability of the property or lists it for sale with a real
estate agent. If a real estate agent is involved, the seller will sign a
listing agreement, which spells out the nature of the services the
agent will perform and how the agent will be compensated for those
services. The services usually include advertising the property in a
local “multiple listing service,” newspaper and Internet
advertisements, and arranging open houses.
b. Negotiations
The legal aspects of a real estate sale start when the potential
buyer makes an offer to purchase the property. Real estate agents
usually carry standardized fill-in-the-blank offer forms, and the buyer’s
agent fills in the information regarding the description of the property,
the amount of money being offered, a listing of the fixtures and
appliances that are to be included, and the date of possession. The
offer sheet also usually contains a number of clauses that make the
offer contingent on the buyer’s being able to obtain financing, often at
a specified interest rate; the building passing a termite inspection;
and so forth. The buyer then turns over a specified sum of money to
the real estate agent as earnest money. This money is applied to the
purchase price at the time the sale is completed and may be forfeited
if the buyer defaults prior to the completion of the sale. The seller, in
turn, accepts the offer, rejects it, or proposes a counteroffer. To
accept the offer, the seller simply signs the appropriate line on the
offer sheet. A counteroffer usually consists of a lower asking price,
somewhere between the buyer’s offer and the original asking price.
c. Preparation for the Closing
A real estate closing is a meeting at which the buyer and the
seller or their representatives sign and deliver a variety of legal
documents associated with the sale and transfer of the property.
Prior to the closing, the buyer arranges for financing, and the seller
arranges for a title search and sometimes title insurance. A title
search is an examination of documents recording title to the property
to
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p. 355
ensure the owner has a clear title to the property. A clear title, also
known as marketable title, is an ownership right that is free from
encumbrances or other defects. An encumbrance is a lien or other
type of security interest that signifies that some other party has a
legitimate claim to the property as a means of satisfying debts of the
current owner. Examples of encumbrances include mortgages, liens
for unpaid taxes, and mechanic’s liens. A mechanic’s lien is a claim
by a contractor or repair person who had done work on the house for
which he or she has not been fully paid.
The buyer guarantees the title by either obtaining an up-to-date
abstract or purchasing title insurance. An abstract is a condensed
history of the title, which includes the chain of ownership and a
record of all liens, taxes, or other encumbrances that may impair the
title. The parties may also acquire title insurance to indemnify the
purchaser or mortgage holder against any loss due to a defective
title. If defects in the title are found and the seller is unwilling or
unable to correct these defects, the buyer can refuse to complete the
transaction.
The most important part of the closing is the delivery of the deed.
The deed is the legal document that formally conveys title to the
property to the new owner. In most sales a warranty deed is used.
With this type of deed the seller, also known as the grantor, promises
“clear title” to the property, one that has no encumbrances or other
defects.
Ownership of real property can be sole or shared. If shared, then
the form of shared ownership needs to be included in the deed.
Ownership can be shared either through either a joint tenancy or a
tenancy in common. A joint tenancy occurs when a single estate of
land is acquired by two or more persons who have equal rights in the
use of that property during their respective lives. A tenancy in
common is very similar in that it also involves two or more people
who share use of the property. The ownership shares do not have to
be equal, however, nor do they have to have been acquired at the
same time. In addition, on death the ownership interest of a tenant in
common passes to his or her heirs, while with a joint tenancy it
passes to the co-owner(s).
A tenancy by the entirety is a special type of joint tenancy
applicable only to married couples. It is essentially a joint tenancy
modified by the common-law theory that the husband and wife are
one person. During their lifetimes neither the wife nor the husband
can transfer the property without the other’s consent. As with any
joint tenancy, on the death of one of the spouses the other takes
whole title to the exclusion of any other heirs. In some condominium
arrangements the individual living units are individually owned or
owned in joint tenancy, and the common halls, walks, parking lots,
and garden areas are a form of tenancy in common.
The distinction between joint tenancy and tenancy in common is
very important. While both represent ways to jointly own property, the
part owner of property held as a tenancy in common can bequeath
that share to whomever the owner pleases. However, the owner of
property held in joint tenancy cannot choose to whom the property
will pass on the owner’s death. Even if the owner provides in a will
that the property will pass to a named individual, it will nonetheless
pass to the other joint tenant. In fact, you will often hear the term joint
tenancy referred to as joint tenancy with a right of survivorship.
p. 355
p. 356
d. The Closing
At the closing the buyer signs the mortgage documents, and the
seller receives the proceeds of the sale. A closing statement is
prepared to itemize and allocate all costs and moneys exchanged
among the various parties, including financial institutions and real
estate brokers. In many states, property taxes assessed for one year
are not collected until the next year, and the new owner is responsible
for paying taxes that were incurred by the previous owner. If this is
the case, the seller will give the buyer a credit that corresponds to the
amount of taxes still owed for the period preceding the sale. If the
actual possession of the property does not correspond to the closing
date, credits are given to reflect the rent being paid by the seller to the
buyer or by the buyer to the seller.
e. Land Contracts
As an alternative to the standard sale process described above,
real estate is sometimes sold through a land contract. In essence it is
an installment sales contract. The buyer takes physical possession of
the property and begins making monthly payments to the seller,
which will be applied to the agreed-on sale price of the property.
However, the seller retains legal title to the property until all the
agreed-on installment payments have been made. If the buyer for
some reason defaults in making the payments, the contract is broken,
and the seller gets to keep title to the property, as well as any
payments that were made during the course of the contract.
DISCUSSION QUESTION
1. Which of the joint tenancy options listed above do you think Bill
and Maria should choose to have on the deed? Why?
3. Limitations on the Use of Real Property
In addition to the opportunity to take advantage of inflation in the
housing market, many people prefer home ownership because it
gives them more freedom to treat their property as they please.
However, as Bill and Maria learned, there are a variety of restrictions
that may limit what a property owner can do.
Case 11: Bill and Maria (Continued)
Bill and Maria were on cloud nine when they were able to
purchase what they thought was their dream home in an up-scale
suburban development called Happy Valley. However, they soon
discovered that the Happy Valley Home-Owners Association and
various governmental agencies had a lot to say about how they
could use their property.
First, the homeowner association ordered Bill to remove the 25-
foot flagpole he had erected in his front yard because the
association’s rules limited the size of flagpoles to ten feet.
Second, Bill quit his job at the Ford dealership, and he began
using his garage to repair automobiles. After some neighbors
complained, the town zoning board sent him a letter informing
p. 356
p. 357
him that he could not conduct a commercial business from his
home because the area was zoned for residential use only.
Finally, the state highway department notified them that they
would be taking a ten-foot wide strip of land in order to widen a
road that ran along the back of their lot line.
Bill and Maria have returned to Darrow and Bryan to seek the
law firm’s assistance in dealing with these problems.
a. Zoning Laws
Zoning regulations, such as the one against operating a business
in an area that is zoned for residential use only, restrict the power of
landowners to use their land as they like. These laws are specifically
designed to regulate the way in which property can be used. Zoning
laws that prohibit the construction of a factory on land that is zoned
residential and mandating a minimum distance between a house and
the street are designed to protect the property values of the other
people living in that area. Developers are sometimes required to turn
over a portion of the land as a condition of being granted a variance
or special use permit.
Typically, disagreements arise among the various interests
affected as to what types of zoning laws are needed and whether the
specific requirements are reasonable. For example, while there may
be general agreement that “set-backs” are beneficial, there is often
disagreement as to how many feet they should be. These types of
disagreements are typically resolved through the political process of
lobbying and elections. On the other hand, it is not unusual for a party
that loses in the political arena to use the courts to challenge the
application of a zoning law on the basis that it violates the
constitutional prohibition against taking private property “for public
2
use without just compensation.” We discuss this concept further in
the section below on eminent domain.
b. Building Permits and Safety Requirements
Municipalities often require various types of permits before
someone can begin building or remodeling on their property. They
also require inspections be done to ensure that the various safety
requirements are being met. Health departments, fire departments,
and the federal Occupational Safety and Health Administration
provide other examples of health and safety regulations affecting
property owners.
c. Restrictive Covenants and Homeowner Association
Regulations
A restrictive covenant is a provision in a deed that prohibits
specified uses of the property and commonly is added at the time a
developer subdivides and improves the property before it is marketed
for housing. Common provisions include requirements relating to
minimum square footage, set-back, and
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p. 358
architectural styles. Others may prohibit the installation of satellite
dishes in yards or the overnight parking of boats or recreational
vehicles in driveways. These covenants are recorded in the county
land records and become part of the title for all subsequent owners.
Historically, restrictive covenants were also used to exclude some
racial and ethnic groups from living in certain areas. In Shelly v.
Kraemer, 3
however, the U.S. Supreme Court ruled that such racially
restrictive covenants could not be judicially enforced, and in Jones v.
Alfred H. Mayer Co. 4
the Court interpreted the federal Civil Rights Act
of 1866 as prohibiting racial discrimination in the purchasing and
leasing of property. In addition, the federal Civil Rights Act of 1968
and many state and local open housing ordinances now prohibit such
5
discrimination.
Closely related to restrictive covenants are homeowner
association regulations that can cover everything from the height of
flagpoles to the exterior color of houses. When buyers purchase their
property, they are agreeing to be covered by the homeowner
association regulations. Potential buyers who want greater freedom
have to seek alternative properties with fewer restrictions.
d. Easements
An easement is the right to use property owned by another for a
limited purpose. Utility companies acquire easements that allow
them to install and maintain electrical cables and gas pipes on
property owned by others. If the electric company has to bring a
bucket truck onto your property in order to trim trees around their
electric lines, they have a legal right to do so.
Another common type of easement allows a neighbor to drive
over a small section of someone else’s property in order to gain
access to his or her own land. For example, assume that Doug owned
Lot A and Lot B. The country road fronted the south and west side of
Lot A, but stopped just before Lot B. The only way to access Lot B
was by taking the country road and then driving for a short distance
over the northwest corner of Lot A. When Doug sells Lots A and B to
different buyers, he places an easement in the deed for Lot A stating
that the owner of Lot B has the limited right to travel across Lot A to
reach Lot B.
Note that an easement should be distinguished from a license. A
license gives someone only a temporary right to enter the property of
another and can be revoked at any time. Examples of a license
include a ticket to a football game or the right to pick strawberries on
a pick-your-own farm.
4. Involuntary Loss of Property
There are several ways in which a real estate owner can lose all or
part of the land’s value. These include seizure by a creditor, a taking
through the government’s power of eminent domain, and adverse
possession.
p. 358
p. 359
a. Seizure by a Creditor
When a creditor holds a mortgage or some other form of lien on
real property, and the homeowner stops payment, the creditor can
force the sale of the property in order to satisfy the balance owed on
the mortgagee or lien. This process is known as foreclosure. The
creditor is usually required to initiate a foreclosure action in the
courts, but some mortgages include power of sale clauses,
authorizing private sales that do not require court action.
Many states protect homeowners from creditors through what is
known as a homestead exemption. As the name “homestead”
suggests, usually the exemption only applies to a primary residence.
The purpose of such laws is to protect not only the homeowner but
also the homeowner’s family so that creditors may not force a sale of
their home in order to acquire assets to pay for the homeowner’s
debts. In some states, a homestead exemption is automatic as soon
as the property is occupied and used as a home. In others, however,
in order to gain the benefits of a homestead exemption, the
homeowner must file a formal declaration, stating that the home is
the declarant’s principal dwelling. To find the requirements and
benefits of a homestead exemption in any given state, research that
state’s statutes.
b. Eminent Domain
Eminent domain is the power of government to take private
property for a public use. Although the government does not need the
owner’s consent, it must provide the owner with just compensation
for the property. If the government and the owner cannot agree on a
“fair” price, the courts determine what constitutes fair market value
for the property. These limitations — that the property must be taken
for a public use and that the government must pay just
compensation — are found in the U.S. Constitution. The Fifth
Amendment states: “nor shall private property be taken for public use
without just compensation.” The Supreme Court has determined that
this “taking clause” of the Fifth Amendment is also applicable to the
6
states through the Fourteenth Amendment’s due process clause.
The most controversial aspect of the application of eminent
domain relates to the determination of what constitutes “public use.”
Historically, “public use” meant a taking for a clearly governmental
purpose, such as for a new public school, a new road, or a public park.
However, over time the definition of “public use” took on a broader
meaning to also include a “public benefit” such as the elimination of
urban blight.
This definition was challenged in the U.S. Supreme Court case of
Kelo v. New London. 7
Ms. Kelo had spent years remodeling a
dilapidated home in New London, until it became a showpiece
Victorian home. She then received a condemnation notice from her
town of New London, stating that the town planned to take away and
demolish her house so that it could lease her land and that of her
neighbors to a private developer who was planning on building a
luxury hotel, condominiums, offices, and shops. The city saw this as a
way to
p. 359
p. 360
revitalize an area of its waterfront district by creating more than
3,000 jobs and adding over $1 million annually in property tax
revenue.
Ms. Kelo rejected the city’s offer to demolish her home in return
for “just compensation.” As many homeowners would, she felt that no
amount of money could pay her for the time and labor she had
invested in creating her dream home. However, the legal argument
she advanced was that the city was not taking her property for a
public purpose, but rather was doing it for the benefit of a private
developer. At the U.S. Supreme Court, her attorney argued that:
This case is about whether there are any limits on government’s eminent domain power
under the public use requirement of the Fifth Amendment. Every home, church or corner
store would produce more tax revenue and jobs if it were a Costco, a shopping mall or a
private office building. But if that’s the justification for the use of eminent domain, then
any city can take property anywhere within its borders for any private use that might
8
make more money than what is there now.
This was met by Justice Ginsburg’s rejoinder:
You are leaving out that New London was in a depressed economic condition, so this is
distinguished from the case where the state has no particular reason for wanting this,
but the critical fact on the city side, at least, is that this was a depressed community and
they wanted to build it up, get more jobs. . . . [M] ore than tax revenue was at stake. The
9
community had gone down and down and the town wanted to build it up.
In one of the most controversial decisions of the 2004–2005
term, by a five-to-four vote, the Supreme Court upheld the town’s
seizure of Kelo’s property on the basis that a taking for economic
development met the Constitution’s requirement of a “public use,”
10
even when the land is transferred to a private developer.
The decision created immediate outrage across the country. In
the majority opinion of Kelo, the Court had noted that “[w]e emphasize
that nothing in our opinion precludes any state from placing further
restrictions on its exercise of the takings power. Indeed, many states
already impose ‘public use’ requirements that are stricter than the
11
federal baseline.” Within a year, more than half of the states
responded to this opening and enacted legislation prohibiting the use
of eminent domain for economic development purposes.
Unlike eminent domain cases, when the government regulates
through zoning, it does not have to pay the landowner compensation
for the lost use of the property unless the zoning restriction amounts
to a “taking.” For example, consider the case of Mr. Lucas. He
purchased two beach-front lots with the intention of building single-
family houses, but before he could start construction on the lots, the
legislature enacted the Beachfront Management Act. This act
prohibited Mr. Lucas from building any permanent structure on his
land. The U.S. Supreme Court agreed with his contention that the
state government owed him
p. 360
p. 361
just compensation because the challenged action constituted a
12
“taking” under the Fifth and Fourteenth Amendments.
Florence Dolan, the owner of a plumbing and electric store, tried to
make a similar argument. Her city had agreed to give her a permit to
redevelop her site so long as she dedicated 15 feet as a public
greenway and an additional 15-foot strip as a pedestrian/bicycle
pathway. She argued this was a taking for which the city owed her
just compensation. When the controversy made it to the Supreme
Court, the justices cited an earlier case for the proposition that
“[g] overnment hardly could go on if to some extent values incident to property could not
be diminished without paying for every such change in the general law.” A land use
regulation does not effect a taking if it “substantially advances legitimate state interests”
13
and does not “deny an owner economically viable use of his land.”
To summarize, in zoning cases, when the government places a
zoning restriction on how a landowner may use a portion of his or her
land, the government will not have to pay just compensation if the
restriction advances legitimate state interests and does not deny the
owner the economically viable use of the land. However, if the
restriction denies the owner an economically viable use of the land
and there is no clear relationship between a legitimate state interest
and the restriction, the government will have to pay just
compensation. The restriction then qualifies as a taking for which the
government must pay.
c. Adverse Possession
A third way in which landowners can involuntarily lose the use of
their land is by someone establishing “actual, open, adverse, and
exclusive use” of the property for a statutorily determined number of
years. This process is known as adverse possession. It is involuntary
in the sense that the owner does not intend to give up ownership, but
unknowingly forfeits ownership by not having paid proper attention to
protecting these rights.
Thus, if a neighbor erects a backyard storage shed that partially
crosses the property line, and the owner takes no steps to have the
shed removed, that part of the property could eventually be claimed
by the neighbor.
Typically, for someone to qualify for ownership in this manner, that
person’s use of property must be:
1. actual: the land in question must actually be used for some
purpose (e.g., for a fence, shed, or garden);
2. open: visible to the public;
3. adverse: contrary to the interests of the owner;
4. exclusive: not open to others; and
5. continuous for a required period of time (usually between five
and 20 years).
p. 361
p. 362
The requirement that the adverse possession be continuous can
be satisfied by one or a number of successive owners. This is known
as tacking. In the following case, the Steucks argued that they had
acquired title to a portion of their neighbor Easley’s land through their
actions as well as those of the two previous owners. Over the past 20
years they had hunted in the area, gone four-wheeling, hiked, and put
up several tree stands.
Steuck v. Easley
785 N.W.2d 631 (Wis. Ct. App. 2010)
Easley owns at least 360 acres of undeveloped land. . . . He
uses his land primarily for hunting and also for activities such as
gathering firewood, picking apples, and hiking on the hiking trails.
He has set aside some of his land as a sanctuary for the purpose
of managing, growing and protecting a deer herd.
. . .
Easley testified that he and one or more of his family and
friends are on his land approximately 180 days per year. They do
not hunt in the sanctuary, which includes the disputed area. He
goes into the disputed area once or twice a year and tries to
observe it from a distance because walking through it defeats the
purpose of a sanctuary. He never noticed persons trespassing in
the disputed area nor saw anything that caused him to believe
someone was doing something of a permanent nature. No one in
his family or his hunting group gave him any indication there was
hunting or other activities going on in the disputed area. He did see
two tree stands in the area, but they were very old, and he was sure
they had been there for many years prior to his purchase of the
property.
. . .
[W]e conclude the regular use of the disputed area for hunting,
the deer stands, and the dirt road and trail do not constitute open,
notorious, visible, exclusive and hostile use. Because of this
conclusion, we do not discuss the requirement of continuous use.
There was no finding that Easley ever met Daniels, Daggett or
their friends hunting in the disputed area. The circuit court found
that Easley could have and should have heard the gun shots during
spring and fall gun seasons. We do not agree that the sound of
gunshots gives a reasonably diligent titleholder notice of adverse
possession. Even assuming that the shots come from the
titleholder’s property and not from someone else’s property
beyond, the gunshots would have been consistent with
trespassers. As for the deer stands, the testimony was that they
were portable deer stands, some kept in place all year. Even if
visible, the deer stands, too, are consistent with trespassers.
. . . Notably, neither Daggett nor Daniels posted the disputed
area, which would have been notice to Easley that someone else
claimed it.
. . .
We conclude the plaintiffs have not established adverse
possession of the disputed area.
CASE DISCUSSION QUESTIONS
1. Do you agree with the Wisconsin court’s decision rejecting
Steucks’s adverse possession claim? Why or why not?
p. 362
p. 363
2. Do you think Easley should have been required to do more to
monitor the use of the land he has been using as a sanctuary for
managing, growing, and protecting a deer herd? If so, what and at
what cost?
DISCUSSION QUESTIONS
2. What do you think the attorneys at Darrow and Bryan will
advise Bill and Maria to do in response to the:
a. notifications they received from their homeowner association
regarding the flagpole?
b. letter from the municipal zoning board regarding his business?
c. letter from the state highway department regarding taking a
strip of land?
3. Should a condominium association that wishes to appeal to
seniors be allowed to prohibit children from living in its units? What
are the policy arguments for and against? How would you distinguish
between children living in the unit versus those just visiting?
Specifically, if you cannot discriminate on the basis of race, why
should you be able to discriminate on the basis of age?
4. Why should the government be able to take somebody’s
property without his or her consent? Give some examples of what
you would view as legitimate uses of eminent domain.
5. Each night as Greg drove up his driveway, he paused to
appreciate the lovely flowers he had planted alongside his fence,
bordering his land. One night, however, he drove home to find the
flowers dug up and the fence gone. After a few frantic calls he
discovered that when he erected the fence, he had inadvertently
placed it two feet over the property line and onto his neighbor’s land.
Does Greg have any legal recourse? The answer will depend on who
owns the land — Greg or his neighbor. Even if the neighbor holds the
deed to the property, is it possible for Greg to obtain real property
rights?
B. PERSONAL PROPERTY
All property other than real property is classified as personal
property. Personal property is often further categorized as being
either tangible or intangible. Tangible property (also referred to as
chattel) consists of goods that can be touched and moved, such as
automobiles, jewelry, clothing, and television sets. Intangible property
is personal property that cannot be touched, such as a stock
certificate or a patent. While you can certainly touch the piece of
paper that documents the stock ownership or the awarding of the
patent, it is not the paper itself that has value.
Property can change its nature from real to personal or from
personal to real. For example, while oil is still in the ground, it is
considered to be real property, but once it has been extracted from
the ground and loaded on a tanker or sent down a pipeline, it
becomes personal property. When trees are still in the forest, they are
real property. When they are cut, they become personal property. It is
not always easy to determine when this change occurs. For example,
a mobile home on the sales lot is personal property. If it is moved to a
mobile
p. 363
p. 364
home park, has its tires removed, and is affixed to a foundation, it
becomes real property. However, what if its tires are not removed and
it is simply placed on the lot? Is it still personal property?
Determining whether property is real or personal can have
important consequences, as the courts apply different rules to the
different types of property. For example, the selling and leasing of
personal property are covered by the general principles of contract
law and the Uniform Commercial Code, discussed in Chapter 8. The
selling and leasing of real estate was covered earlier in this chapter.
1. Transfer of Personal Property
Personal property changes hands in much the same way real
property does. It can be sold, it can be given away, it can be seized for
nonpayment of a debt, and it can become part of a person’s estate.
Keep in mind that the elements for a valid gift differ from those for
a contract. While both require an offer and acceptance, only a
contract requires consideration. And, for a valid gift to occur, there
must be a completed delivery. The gifting process is not complete
until the recipient has accepted the giver’s offer and actually received
the item being given. Therefore, the elements for a valid gift are an
offer, an acceptance, and delivery.
Ownership of personal property may also be transferred when it is
lost, abandoned, and mislaid property. Property is classified as lost if
the owner has involuntarily parted with it and does not know where to
find it. On the other hand, if the owner deliberately placed it
somewhere and then forgot where it had been placed, it is classified
as mislaid rather than lost. It is considered abandoned property when
the owner left it with no intention of coming back to reclaim it. If you
find lost property, you acquire title that is good against everyone
except the true owner. However, you may have to turn the property
over to the police for a certain amount of time to ensure that the
rightful owner does not return to claim it. On the other hand, if you
find mislaid property, property that was inadvertently left behind, such
as a ring next to a sink, then you acquire no ownership rights in it.
Finally, if you find abandoned property, you become the owner.
When personal property is intentionally transferred on a
temporary basis for a specified purpose, a bailment occurs. For
example, a bailment occurs when you take your clothes to be dry
cleaned or your car to be repaired. A bailment also occurs when you
contract with a moving company to move your furniture from one
location to another. The owner is called the bailor, and the party
taking temporary control of the property is called the bailee. The law
imposes a duty on the bailee to exercise reasonable care toward the
property while it is under the bailee’s control.
2. Intellectual Property
The term intellectual property is used to cover intangible assets that
are the product of someone’s intellectual creation, such as inventions
or the authorship of a book. Traditionally, land was the greatest
measure of a person’s wealth, but today intellectual property has
become extremely important. With this new source of wealth have
come new legal problems. For example, while it is usually quite clear
if someone is illegally trespassing on your land, it is not always easy
to know when someone is infringing on your rights to your intellectual
property.
p. 364
p. 365
a. Types of Intellectual Property
The legal protections for intellectual property consist of
trademarks, service marks, copyrights, patents, and trade secrets.
The law gives the registered holders of trademarks, service marks,
copyrights, and patents the right to control how they can be used.
Trademarks are unique terms, names, combinations of letters or
numbers, and logos that identify particular products or services.
Familiar examples include “Dodge,” “IBM,” and “V-8.” To be a
trademark, it must not be similar to another mark and it cannot be a
generic name. Some words, such as zipper and escalator, were once
trademarks but lost that status as their use became generic. This is
why you may have seen ads from the Xerox Corporation in which they
correct someone who is about to say, “I’ll Xerox that,” with the
reminder it should be “I’ll copy that.” Service marks are symbols used
in connection with service-oriented businesses. Some examples of
service marks include United Airlines and their phrase “fly the friendly
skies” or Holiday Inn.
Many companies will hold both trademarks and service marks,
such as McDonald’s. McDonald’s has a trademark for the goods that
they sell such as hamburgers and French fries. They also hold service
marks as a restaurant serving customers.
Trademark law is controlled by the federal Lanham Trademark
14
Act. The disparagement clause of that act barred registration of
trademarks that disparaged a group or brought it into contempt or
disrepute. For several years, the trademark office has denied marks
such as “Stop the Islamization of America” and “Slants” on the basis
that the former would be viewed by many as disparaging Muslims
15
and the latter as disparaging Asian-Americans. In the following
case, the band “Slants” brought suit against the trademark office
claiming that the disparagement prohibition was unconstitutional.
Matal v. Tam
137 S. Ct. 1744 (2017)
ALITO, Justice.
This case concerns a dance-rock band’s application for federal
trademark registration of the band’s name, “The Slants.” “Slants” is
a derogatory term for persons of Asian descent, and members of
the band are Asian-Americans. But the band members believe that
by taking that slur as the name of their group, they will help to
“reclaim” the term and drain its denigrating force.
The Patent and Trademark Office (PTO) denied the application
based on a provision of federal law prohibiting the registration of
trademarks that may “disparage . . . or bring . . . into contemp[t] or
disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We
now hold that this provision violates the Free Speech Clause of the
First Amendment. It offends a bedrock First Amendment principle:
Speech may not be banned on the ground that it expresses ideas
that offend.
p. 365
p. 366
“The principle underlying trademark protection is that
distinctive marks — words, names, symbols, and the like — can
help distinguish a particular artisan’s goods from those of others.”
. . .
Without federal registration, a valid trademark may still be used
in commerce. And an unregistered trademark can be enforced
against would-be infringers in several ways. Most important, even
if a trademark is not federally registered, it may still be enforceable
under §43(a) of the Lanham Act, which creates a federal cause of
action for trademark infringement.
. . .
The Lanham Act contains provisions that bar certain
trademarks from the principal register. For example, a trademark
cannot be registered if it is “merely descriptive or deceptively
misdescriptive” of goods, §1052(e)(1), or if it is so similar to an
already registered trademark or trade name that it is “likely . . . to
cause confusion, or to cause mistake, or to deceive,” §1052(d).
At issue in this case is one such provision, which we will call
“the disparagement clause.” This provision prohibits the
registration of a trademark “which may disparage . . . persons,
living or dead, institutions, beliefs, or national symbols, or bring
them into contempt, or disrepute.” §1052(a). This clause appeared
in the original Lanham Act and has remained the same to this day.
. . .
It is claimed that the disparagement clause serves two
interests. The first is phrased in a variety of ways in the briefs.
Echoing language in one of the opinions below, the Government
asserts an interest in preventing “ ‘underrepresented groups’ ” from
being “ ‘bombarded with demeaning messages in commercial
advertising.’ ” . . . An amicus supporting the Government refers to
“encouraging racial tolerance and protecting the privacy and
welfare of individuals.” . . . But no matter how the point is phrased,
its unmistakable thrust is this: The Government has an interest in
preventing speech expressing ideas that offend. [T] hat idea strikes
at the heart of the First Amendment. Speech that demeans on the
basis of race, ethnicity, gender, religion, age, disability, or any other
similar ground is hateful; but the proudest boast of our free speech
jurisprudence is that we protect the freedom to express “the
thought that we hate.”
The second interest asserted is protecting the orderly flow of
commerce. Commerce, we are told, is disrupted by trademarks
that “involv[e] disparagement of race, gender, ethnicity, national
origin, religion, sexual orientation, and similar demographic
classification.” Such trademarks are analogized to discriminatory
conduct, which has been recognized to have an adverse effect on
commerce.
A simple answer to this argument is that the disparagement
clause is not “narrowly drawn” to drive out trademarks that support
invidious discrimination. The clause reaches any trademark that
disparages any person, group, or institution. It applies to
trademarks like the following: “Down with racists,” “Down with
sexists,” “Down with homophobes.” It is not an antidiscrimination
clause; it is a happy-talk clause. In this way, it goes much further
than is necessary to serve the interest asserted.
The clause is far too broad in other ways as well. The clause
protects every person living or dead as well as every institution. Is
it conceivable that commerce would be disrupted by a trademark
saying: “James Buchanan was a disastrous president” or “Slavery
is an evil institution”?
There is also a deeper problem with the argument that
commercial speech may be cleansed of any expression likely to
cause offense. The commercial market is well stocked with
merchandise that disparages prominent figures and groups, and
the line between commercial and noncommercial speech is not
always clear, as this case illustrates. If affixing the commercial
label permits the suppression of any speech that may lead to
political or social “volatility,” free speech would be endangered.
. . .
For these reasons, we hold that the disparagement clause
violates the Free Speech Clause of the First Amendment.
p. 366
p. 367
CASE DISCUSSION QUESTIONS
1. Prior to Matal v. Tam, Native American groups finding the term
“Redskins” disparaging had successfully prevailed upon the U.S.
Patent and Trademark Office (USPTO) to deny the Washington
Redskins their trademark for “Washington Redskins.” Following Matal
v. Tan, the USPTO no longer has any grounds to deny the trademark
for “Washington Redskins.” Do you think that this was the right result?
Why or why not?
2. In 2019, the Trademark and Appeal Board denied an application
to register the mark “FUCT” citing a provision in the Lanham Act’s
prohibition against the registration of “immoral . . . or scandalous”
trademarks.
16
In Iancu v. Brunetti, the Court found “the ‘immoral or
scandalous’ bar is substantially overbroad. There are a great many
immoral and scandalous ideas in the world (even more than there are
swearwords), and the Lanham Act covers them all. It therefore
violates the First Amendment.”
17
Given the Court’s decisions in Matal
v. Tam and Iancu v. Brunetti, are there any limitations that can be put
on mark or trademark registrations?
3. In 2015, the U.S. Supreme Court held that Texas specialty
license plates are government speech and so could be regulated. On
what basis do you think the Court distinguished license plates from
trademarks?
Another form of intellectual property, copyrights give authors,
composers, and artists the right to control, with certain limitations
related to “fair use,” the use of their writings, musical performances,
and artistic creations. The Copyright Act of 1976 protects “original
works of authorship fixed in any tangible medium of expression”
18
including “pictorial, graphic, and sculptural works,” but it does not
extend to “useful articles” (defined as objects with “an intrinsic
utilitarian function that is not merely to portray the appearance of the
19
article or to convey information”).
The most debated portion of copyright law involves the concept of
“fair use.” The doctrine of fair use was developed through court
decisions and then codified in Section 107 of the copyright law. There
you will find a list of the various purposes for which the reproduction
of a particular work may be considered fair use. Examples include
criticism, comment, news reporting, teaching, scholarship, and
research.
The distinction between what is fair use and what is infringement
will not always be clear or easily defined. There is no specific number
of words, lines, or notes that may safely be taken without permission.
However, Section 107 sets out the following four factors to be
considered in determining whether or not a particular use is fair:
■ the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
■ the nature of the copyrighted work;
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p. 368
■ the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
■ the effect of the use upon the potential market for, or value of,
the copyrighted work.
Acknowledging the source of the copyrighted material does not
substitute for obtaining permission.
A patent gives its owner the right to exclude others from making,
using, or selling his or her invention. Patents are issued by the
government and must be for a tangible product, not just an idea. The
product must also be novel, nonobvious, and useful. The newest
developments in patent law involve the rapidly growing science of
genetic engineering. In Association for Molecular Pathology v.
Myriad Genetics, Inc., 20
a unanimous U.S. Supreme Court invalidated
a patent that had been issued to Myriad Genetics which they claimed
gave them an exclusive right to isolate certain genes. A coalition of
doctors, geneticists, researchers, women’s groups, and cancer
patients challenged the patent because it raised patient cost and
limited access to tests that identify an increased risk of breast
cancer.
Justice Thomas’s opinion noted that Myriad had indeed found and
identified a useful gene, but that naturally occurring genes (as
opposed to gene variations created in a laboratory) were not eligible
to be patented because they were not invented.
Another very controversial area of patent law involves the criteria
for patenting computer software programs. More than 400,000
patents have been granted by the U.S. Patent Office for software
21
programs.
A trade secret is a formula or process that is known only by a
limited number of individuals working for the company that uses it.
An example would be the formula for making Coca-Cola. A trade
secret might also qualify for a patent, but then it would no longer be a
secret, as patents are public. Patents are also valid only for a limited
number of years.
b. Enforcing Intellectual Property Rights
Once a trademark, service mark, copyright, or patent has been
obtained, it becomes a form of personal property that can be sold or
given to someone else. For example, holders of copyrights and
patents collect licensing fees for allowing someone else to sing their
song in a public performance or to use their book as the basis for a
movie script.
If the holder of an intellectual property right thinks that it is being
infringed, the first step in the process of enforcing that right is to
identify those who may be doing the infringing. When dealing with
trademarks, an Internet search for key words (such as “Coke” or “Jell-
O”) or phrases (such as “Like a Good Neighbor”) can often identify
illegal use of a trademark.
The second step usually involves sending “cease and desist
letters.” They may offer to negotiate a fee for continued use or
threaten to sue in federal court if the infringers do not cease their
illegal activities.
p. 368
p. 369
The third step is to sue. If the plaintiff succeeds, the penalties can
include monetary damages and injunctions against further violations.
The penalties in major copyright infringement cases can run into
millions of dollars. In Sony BMG Music Entertainment v.
Tenenbaum, 22
the court upheld the validity of a $675,000 damage
award against a college student who had illegally downloaded 30
songs from the Internet. That comes to $22,500 per song.
DISCUSSION QUESTION
6. As college and professional athletic programs seek to market
their teams and control use of their identity, their team logos,
mascots, and uniform colors have taken on greater significance.
a. Who should be given the right to control the production and
sale of team t-shirts, sweat-shirts, coffee mugs, etc. with the
team logo on them? Does your answer change depending on
whether the items belong to a small college soccer team, a
large university basketball team, or a professional football
team? Why or why not?
b. Do you think professional sports organizations should be able
to trademark or copyright their team colors or uniform
designs? Why or why not?
c. Given the hundreds of professional teams, and hundreds of
colleges and universities, do you think it is possible for high
schools to develop a logo or uniform color scheme that does
not duplicate one already used by colleges or pro sports?
C. ESTATE PLANNING
Estate planning is the analysis of a person’s future financial needs
and the development of strategies to meet those needs while the
individual is alive, to expedite the probate process that follows death
(see Section 4 below), and to avoid inheritance and estate taxes. In
this context an estate is the total property of whatever kind, both real
and personal, that a person owns at the time of his or her death. (See
Figure 9-2.) At the time of a person’s death this property is distributed
on the basis of the person’s will or the state’s intestacy laws and the
terms of other state laws regarding such matters as joint ownership
rights and life insurance contracts. Examples of property passing
independently of the terms of a will or intestacy laws include
investment funds and death benefits from insurance policies. These
will be distributed to the named beneficiaries of those funds and
policies.
1. Wills
A will is a legal expression of a person’s wishes as to how his or her
property should be distributed upon death. When someone dies
without a valid will, that
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p. 370
person is said to have died intestate. When this occurs, the person’s
property is distributed on the basis of guidelines laid down by the
legislature of the state in which the deceased was domiciled (that is,
had his or her legal residence) at the time of death. Although these
laws usually favor the spouse and the children, they may not
correspond to how the deceased wanted to dispose of the estate. For
example, many states split the deceased estate among a surviving
spouse and the children, whereas the deceased may have wanted the
entire amount to go to the surviving spouse. For this reason, as well
as to take advantage of potential tax savings, it is highly desirable to
have an up-to-date will.
Alternative Meanings for “Estate”
In real estate law: An interest in or a title to real property. In probate law: The total of all
property (including assets and liabilities) owned by a person at the time of that person’s
death that is distributed through a will or in accordance with state intestate laws.
Figure 9-2 Definition of Estate
Wills are classified as formal, informal, and nuncupative. A formal
will is one that has been prepared on a word processor or typewriter
and has been properly signed by the testator (the person making the
will) and the required witnesses. (Note: In some states, a female
testator is known as a testatrix.)
A holographic will, or informal will, is one that was handwritten by
the testator, without the witness signatures necessary for a formal
will. Only about half the states recognize such wills as valid. A
nuncupative will is an oral will. Few states recognize such wills, and
those that recognize them do so only when the testator was in fear of
imminent death and usually require at least two witnesses.
The standard will consists of a clause that identifies the testator,
clauses making specific legacies or bequests, and signature clauses
for the testator and witnesses. A gift of real estate in a will is called a
devise, while a gift of personal property in a will is called a bequest or
a legacy. The person named to receive the gift is called a beneficiary.
The typical will also includes provisions for the payment of taxes and
expenses, funeral arrangements, and appointment of executors and
guardians and a simultaneous death clause. An executor (or
executrix) is a person appointed by the testator to carry out the
directions and requests in the will. A guardian is one who is given the
responsibility of managing the affairs or property of a person who is
incapable of administering his or her own affairs. For example, a
guardian might be appointed to care for the decedent’s minor
children. A simultaneous death clause states that if a person named
as a beneficiary in the will dies within a short period of time after the
decedent dies, it will be assumed for purposes of the will that the
person in question failed to survive the decedent. Such clauses are
normally inserted for tax purposes. Without such a clause, the estate
of each decedent might be taxed as though each survived the other
and hence inherited the property from the other. Therefore, estate
taxes would have to be paid twice.
p. 370
p. 371
In some jurisdictions the courts will dispense with the need to call
in witnesses to attest to the validity of a will if it contains a self-
proving clause. Such a clause is actually a notarized affidavit, signed
by the attesting witnesses. The clause simply states that the
witnesses swear to the information that a probate court would need
in order to admit the will to probate — that is, that the testator was at
least 18 years old, appeared to be of sound mind, and was not acting
under any outside influence.
A testator can change a will with a codicil. The codicil has to be
signed and witnessed like a will. Alternatively, the testator can destroy
the old will and draft a new one.
2. Trusts
In order to avoid some aspects of probate and to minimize tax
liabilities, modern estate planning often includes the creation of
specialized trusts. A trust is a legal relationship in which one party
holds property for the benefit of another. In this context the property
is transferred to a trust fund, where it is to be used for the benefit of a
designated person or persons rather than passing directly to them as
part of the probate process. The person who creates the trust is
called the donor, grantor, or settlor. The person appointed to
administer the trust is the trustee, and the person who receives the
benefits of the trust is the beneficiary.
The two types of trusts most commonly used in estate planning
are inter vivos trusts and testamentary trusts. An inter vivos trust is
one that is created before a person’s death. Inter vivos is Latin for
“among the living.” A living trust is a commonly used type of inter
vivos trust specifically designed to avoid probate. This type of trust
allows a person, while still living, to benefit another. For example,
parents might set up a trust that provides annual stipends to their
children. Such inter vivos trusts can be either revocable or
irrevocable. With a revocable trust the donor can change the
beneficiaries and the terms, and even terminate the trust completely
at any time and take back full ownership and control of the property.
On the other hand, with an irrevocable trust the terms cannot be
changed, and the donor cannot regain ownership or control of the
property. A testamentary trust is created by a will and does not
become effective until after the testator’s death.
3. Living Wills and Medical Directives
A “living will” is not a will in the sense we have been using the term. It
does not express a person’s wishes as to how property should be
distributed at death. Nonetheless, a living will is an essential part of
the estate planning process. It is a type of advanced medical directive
that expresses a person’s wishes as to the types of medical
treatment he or she would want should there come a time when he or
she can no longer express those desires. It comes into play, for
example, if the person is in a coma or enters an advanced stage of
dementia. Its purpose is to help family, friends, and medical personnel
make treatment decisions consistent with the signer’s wishes.
Another document that is often part of the estate planning
process and that works in conjunction with a living will is a durable
power of attorney for health
p. 371
p. 372
care. A durable power of attorney for health care designates a
specific named individual to make legally binding health care
decisions for someone if that person becomes unable to speak for
him-or herself.
Finally, there are two other medical directives that, while not
created during the original estate planning process, come into play
near the end of life. They are a DNR and a POLST. DNR is an
abbreviation for do-not-resuscitate, and typically, it is prominently
posted in residents’ rooms in senior care facilities to inform
emergency responders that the individuals do not wish to be
resuscitated if they stop breathing or their heart stops beating.
POLST is an abbreviation for Physicians Orders for Life Sustaining
Treatment and is specifically designed for persons who are in an
advanced stage of a fatal illness or who have a diminished capacity
to make their own health care decisions. Health care professionals
and institutional providers are legally required to either give or
withhold the treatments specified on the form.
DISCUSSION QUESTION
7. Under what circumstances do you think people should be able
to withdraw life-support equipment from someone who is in an
irreversible coma? Should doctors be allowed to “help” a patient die by
giving the patient a lethal dose of morphine or some other drug when
the patient has an incurable disease, is in great pain, and wishes to
end the misery? What should be done if that person is in a coma and
did not have a formal living will but did tell a close relative that he or
she did not wish to be kept alive in such a situation?
4. Probate
Probate is the process of the court overseeing the distribution of
property left by someone with a will or by someone who dies without
a will. Jointly owned property does not have to go through probate, as
it automatically passes to the joint owner. Also, unless the estate is
named as the beneficiary, life insurance proceeds go directly to the
named beneficiary.
23
Formal probate proceedings typically start with the filing of a
petition in the local courts. This petition is usually accompanied by a
certified copy of the death certificate and a will, where one exists.
After payment of required fees, letters of testamentary are issued to
give the executor, or a court-appointed administrator (or
administratrix) if no executor is named in the will, the power to take
control of the deceased’s assets, pay the bills, and distribute the
proceeds of the estate. Various inventories and other reports have to
be filed with the court at several stages of this process. The probate
process provides an opportunity for unsecured creditors of the
decedent to submit claims for payment from the estate.
Where there is a will, the executor is responsible for paying any
outstanding debts and distributing the remaining property according
to the terms of the
p. 372
p. 373
will. Common problems include difficulty in identifying existing bank
accounts, insurance policies, and the current location of people
named in the will. Less common but far more challenging are
situations where there are multiple wills or challenges to what
appears to be the most recent will.
a. Challenges to a Will
Will contests often revolve around arguments that the testator
either was not competent or was unduly influenced. Should there be a
will contest, the witnesses will be asked to testify as to whether the
testator knew the extent of the testator’s property and knew who the
natural beneficiaries were. In addition, they will be asked to testify
regarding whether the testator signed voluntarily, understood what
was signed, knew it was a will, and asked the witnesses to sign.
When called upon to judge the validity of a will, the courts focus
on three factors: whether the testator was an adult, usually 18 or
older; his or her testamentary capacity; and whether the testator
voluntarily executed the will. As to the second requirement of
testamentary capacity, all that is required is that the testator know
what he or she owns and what he or she wants to do with it, as well
as knowing the “natural objects of the testator’s bounty” — that is, the
testator’s spouse and other close relatives. The third requirement is
intended to invalidate a will that the testator signed due to fraud or
undue influence.
The following provides the classic case of an older, wealthy man
with adult children who marries his young female caregiver. The
children challenge the validity of his newest will, arguing the young
wife unduly influenced their father, causing him to change the terms
of his will in her favor.
In re Estate of Haviland
255 P.3d 854 (Wash. Ct. App. 2011)
Mary Haviland appeals a trial court’s decision invalidating her
deceased husband’s will as the product of her undue influence. . . .
[W]e find no error and affirm.
James Haviland was born on July 18, 1911. He enjoyed a long
and distinguished medical career. . . . Haviland and his first wife,
Marion, had four children together. . . . In 1996, while recuperating
at Providence Hospital from a leg injury, then 85-year-old Haviland
met then 35-year-old Mary, a hospital nurse assistant. . . .
Haviland and Mary married in August 1997.
. . .
Over the course of their marriage, millions of dollars of
Haviland’s separate assets were transferred . . . into the couple’s
joint checking account, Mary’s separate checking account, or
Mary’s separate line of credit. In turn, bank statements document
the withdrawal of millions of dollars from the joint checking
account. . . . Haviland also conveyed two parcels of his separate
real property to Mary as her separate property. In addition,
Haviland’s retirement accounts were cashed in, and substantial
sums of money were gifted to Mary’s children from a previous
marriage and to other designees. Haviland did not make
comparable gifts to his own children.
p. 373
p. 374
Meanwhile, Haviland’s physical health substantially
deteriorated. In 2002, Haviland changed primary care physicians
and indicated on the new patient registration form that he was
having memory problems. . . .
In 2005, Mary quit her job to care full time for Haviland. . . .
Before his marriage to Mary, Haviland . . . made generous gifts
to education, the arts, and charitable organizations. During his
marriage to Mary, he made four revisions to his estate plan. Each
change resulted in a greater portion of his estate going to Mary
and less going to his children and designated charities.
The last major revision occurred in 2006, when Mary phoned
Alan Kane, an attorney at K&L Gates LLP, to advise him that
Haviland wished to change his will. After the phone call, Mary
typed a letter to Kane and enclosed a copy of Haviland’s 2002 will
with requested revisions.
. . .
On the day of the will signing, Mary brought Haviland to Kane’s
office. Kane testified that he met with Haviland for five minutes
before the will signing but that he did not discuss with him his
family or the objects of his bounty, or ask Haviland questions
about the nature and extent of his estate.
. . .
By 2007, Haviland’s mental condition deteriorated to the point
that he could not recognize Mary 75 percent of the time. On
November 6, Haviland visited the emergency room for dehydration.
The emergency room consultation report describes Haviland as
suffering from advanced dementia.
. . .
After the court admitted Haviland’s 2006 will to probate, three
of Haviland’s children commenced this will contest. They alleged
that Haviland lacked testamentary capacity at the time he signed
the 2006 will and that the will was a product of undue influence. A
lengthy bench trial followed.
At trial, Dr. Elaine Peskind, a geriatric psychiatrist, testified
about her review of Haviland’s records and her “retrospective”
analysis. In her professional opinion, Haviland began exhibiting
symptoms of Alzheimer’s disease as early as 2000 and had
progressed to the early stages of the disease by 2002.
The trial court . . . determined that clear, cogent, and convincing
evidence established that the 2006 will was the product of undue
influence by Mary. The court set that will aside, admitted the 2002
will into probate, removed Mary as personal representative, and
appointed a new administrator of Haviland’s estate.
. . .
“The law presumes the validity of a rational will.” However, a will
executed by a person who otherwise possesses testamentary
capacity may be set aside if the beneficiary exercised undue
influence over the testator. To invalidate a will on this basis, the
court must find that the beneficiary exerted sufficient influence at
the time of the testamentary act to have “controlled the volition of
the testator, interfered with his free will, and prevented an exercise
of his judgment and choice.” The party challenging the will must
prove undue influence by clear, cogent, and convincing evidence.
. . .
[A] combination of suspicious facts and circumstances may
give rise to a rebuttable presumption of undue influence. The
“most important” suspicion-raising facts include
(1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2)
that the beneficiary actively participated in the preparation or procurement of the
will; and (3) that the beneficiary received an unusually or unnaturally large part of the
estate. Added to these may be other considerations, such as the age or condition of
health and mental vigor of the testator, the nature or degree of relationship between
the testator and the beneficiary, the opportunity for exerting an undue influence, and
the naturalness or unnaturalness of the will.
p. 374
p. 375
Once the evidence raises this presumption, the burden shifts to
the will proponent to rebut it with “evidence sufficient at least to
balance the scales and restore the equilibrium of evidence
touching the validity of the will.” In the absence of rebuttal
evidence, the evidence raising the presumption may be sufficient
to invalidate the will.
. . .
Here, the trial court invalidated the will as the product of Mary’s
undue influence. It found that Mary was Haviland’s fiduciary,
participated in the creation of the 2006 will, and received an
unnaturally large share of Haviland’s estate in comparison to his
earlier estate plans. It also found that Haviland was extremely
vulnerable to undue influence due to physical disabilities, some
cognitive impairment, and Mary’s position as his primary caregiver.
Finally, it found that Mary depleted his estate through a
systematic, persistent, and largely unexplained pattern of
transferring assets from Haviland’s estate for her benefit and that
of her children and other designees.
. . .
There is clear, cogent, and convincing evidence in the record
that Mary “controlled the volition of the testator, interfered with his
free will, and prevented an exercise of his judgment and choice.”
CASE DISCUSSION QUESTIONS
1. According to the court, what factors have to be present to raise
a rebuttable presumption of undue influence?
2. Why do you think the court requires the party challenging a will
to prove undue influence by clear, cogent, and convincing evidence?
3. Do you agree with the court’s finding that there was undue
influence in this case? Why or why not? If a will is ruled to be invalid,
as it was in the Haviland case, unless a prior valid will exists, the
estate has to be distributed according to the rules of intestate
succession.
b. Intestate Succession
In situations in which no valid will exists, the deceased is said to
have died intestate, and the probate property will be distributed
according to the state intestacy statutes. Most intestate laws give a
set proportion of the estate to the surviving spouse, with the rest
going to the children. If there are no children, the estate assets
usually go first to the spouse, second to the decedent’s parents, and
then to brothers and sisters.
Heir is the generic term for someone entitled to inherit property
left by the decedent. Kindred are those persons related to the
decedent by blood. A relationship through blood is also known as
consanguinity. Persons related by marriage are said to be related by
affinity. A lineal heir is someone who is a grandparent, parent, child,
grandchild, or great-grandchild of the decedent. Descendants or
issue are those lineal heirs who descend from, or issue from, the
decedent, such as children and grandchildren. A collateral heir is one
who has the same ancestors but does not descend from the
decedent. A brother or sister of the decedent would be a collateral
heir. Figure 9-3 illustrates these relationships.
p. 375
p. 376
If an heir is not alive at the time the assets are distributed, the
dead heir’s share passes to that person’s heirs per stirpes. This is
also known as the right of representation. For example, if a parent is
dead, the children inherit the dead parent’s share. Referring to Figure
9-3, assume the decedent’s wife has predeceased him. If all three
sons are still living, under most intestate statutes each son will
receive one-third of the estate. If Son 1 has also predeceased his
father, then his child, Grandchild A, will receive Son 1’s one-third
share. However, if Son 2 has predeceased his father, his children,
Grandchild B and Grandchild C, will only receive one-sixth each: their
father’s one-third, divided in half.
Adopted children have the same rights to inheritance as naturally
born children. If there are no children, parents, siblings, aunts or
uncles, nephews or nieces, or cousins, the property reverts, or
escheats, to the state.
Figure 9-3 A Decedent’s Intestate Heirs
p. 376
p. 377
NETNOTE
The Uniform Probate Code has been adopted by 16 states and
parts of it have been adopted by a number of additional states. You
can access the text of the code as it has been adopted by each of
those states by going to www.law.cornell.edu/uniform/probate.
CHAPTER SUMMARY
Property law deals with ownership rights in real and personal
property. Real property is land and anything permanently attached to
land. Personal property is everything else. Property can be owned
either individually or with others. Joint ownership that vests
ownership rights upon death in the other co-owner(s) is known as
joint tenancy with the right of survivorship. With a tenancy in
common the co-owner can pass his or her share to heirs at death.
Real property can be transferred through sale, at the death of the
owner, as a gift, through seizure by a creditor, by eminent domain, or
through adverse possession.
There are important legal constraints that limit how property
owners can use their property. These include zoning laws, covenants,
easements, and homeowner association restrictions. Landowners
can also rent their property for specified amounts of time. Residential
landlords are obligated to provide habitable living areas, and tenants
can sue for constructive eviction if landlords fail to do so. State and
local open housing laws place some restrictions on the criteria
landlords can use in determining to whom they will rent.
Estate planning involves the analysis of a person’s future financial
needs and of ways to ensure that the person’s desires regarding
distribution of assets will be accomplished after death. Wills and
trusts are two of the most common estate-planning tools. If a person
dies without a will, that person is said to have died intestate, and the
property passes to the decedent’s heirs according to that state’s
statutory intestacy scheme.
CRITICAL THINKING EXERCISES
1. Assume you have invented a new type of baby stroller that can
be converted into a portable crib. You also have a home business,
making and selling your “secret recipe” chocolate chip cookies. For
each of the following, determine
p. 377
p. 378
which type of intellectual property protection is appropriate:
trademark, copyright, patent, trade secret, or nothing.
a. The step-by-step instructions for how to manufacture your
stroller.
b. The instruction booklet you give to purchasers of your
strollers.
c. The distinctive mark you emboss on your strollers.
d. The lyrics to a song you create for a TV commercial
advertising your stroller.
e. The recipe for your cookies.
f. Your idea for a tire that would never go flat.
2. Sam and Mary are planning to marry and build a home. With
her own money Mary plans on purchasing a piece of property. She
wants Sam’s name to appear on the deed as a joint tenant. Do you
think this is advisable?
3. For each of the following questions, assume the decedent died
without a will and all the decedent’s debts have been paid, as have all
of his last sickness, funeral, and settlement of estate expenses. Base
your answers on the following statutes:
Ch. 190, § 1 Spouse’s share of property not disposed of by will A surviving husband or
wife shall be entitled to the following share in the spouse’s real and personal property
not disposed of by will:
(1) If the deceased leaves kindred and no issue, and the whole estate does not exceed
two hundred thousand dollars in value, the surviving husband or wife shall take the
whole thereof; otherwise such survivor shall take two hundred thousand dollars and
one-half of the remaining personal and one-half of the remaining real property.
(2) If the deceased leaves issue, the survivor shall take one-half of the personal and one-
half of the real property.
(3) If the deceased leaves no issue and no kindred, the survivor shall take the whole.
Ch. 190, § 2 Distribution of personal property
The personal property of the deceased shall be distributed in the proportions hereinafter
prescribed for the descent of real property.
Ch. 190, § 3 Descent of real property
When a person dies seized of real property, it shall descend, subject to the rights of the
husband or wife of the deceased, as follows:
(1) In equal shares to his children and to the issue of any deceased child by right of
representation; and if there is no surviving child of the intestate then to all his other lineal
descendants. If all such descendants are in the same degree of kindred to the intestate,
they shall share the estate equally; otherwise, they shall take according to the right of
representation.
(2) If he leaves no issue, in equal shares to his father and mother.
(3) If he leaves no issue and no mother, to his father.
(4) If he leaves no issue and no father, to his mother.
(5) If he leaves no issue and no father or mother, to his brothers and sisters and to the
issue of any deceased brother or sister by right of representation; and if there is no
surviving brother or sister of the intestate, to all the issue of his deceased brothers and
sisters. If all such issue are in the same degree of kindred to the intestate, they shall
share the estate equally; otherwise, according to the right of representation.
(6) If an intestate leaves no kindred and no widow or husband, his estate shall escheat
to the commonwealth.
p. 378
p. 379
a. Juan died, leaving a wife, Carmen, whom he adored, and a
brother, James, whom he hated and had not seen for the past 30
years. For each of the following, determine how much of Juan’s
estate Carmen will inherit and how much James will inherit.
(1) Juan leaves $180,000.
Wife Carmen:
Brother James:
(2) Juan leaves $500,000.
Wife Carmen:
Brother James:
(3) Juan leaves $500,000. Assume James had predeceased
Juan but has a living child, James, Jr., whom Juan has
never met.
Wife Carmen:
Nephew James, Jr.:
b. William died with an estate of $500,000. He left a wife, June,
but no issue and no kindred. How much will June inherit?
c. Mary died with an estate of $500,000. She left a husband,
John, and two living children, Rachel and Albert. How will the estate
be divided among her husband and children?
Husband John:
Daughter Rachel:
Son Albert:
d. Roberto died with an estate of $500,000. He left a wife, Maria,
and a living child, Bill, who has a child, Jill. His other child, Sam,
predeceased him. Sam has two living children, Tracy and Tim. How
will the estate be divided among his wife, Maria; his child, Bill; his
grandchild, Jill; and his grandchildren, Tracy and Tim?
Wife Maria:
Son Bill:
Grandchild Jill:
Grandchild Tracy:
Grandchild Tim:
e. Samantha died with an estate of $500,000. She left no
husband and no children. They had all predeceased her. However, she
did leave five grandchildren. Two of the grandchildren, Amy and
Albert, are the children of her deceased son, Robert. The other three
grandchildren, Bonnie, Brad, and Bennett, are the children of her
deceased daughter, Emily. How will the estate be divided among the
five grandchildren?
Grandchild Amy:
Grandchild Albert:
Grandchild Bonnie:
Grandchild Brad:
Grandchild Bennett:
p. 379
p. 380
WEB EXERCISES
1. The U.S. Patent and Trademark Office maintains a website
through which you can learn more about trademarks, copyrights,
and patents. Start by going to www.uspto.gov./.
a. First, under the Trademarks tab, click on “Trademark basics.”
Read the basic information provided and follow up on any links
that are of interest to you. Then, return to the home page and
under the Trademarks tab, click on the link for “Searching
trademarks.” This is the online Trademark Electronic Search
System. Choose the “Trademark Electronic Search System, or
TESS” link. (For more information about searching the
database, click on the “Getting Ready to Search” or “Using the
Trademark Electronic Search System” links.) Once you are in
the trademark database, choose the “Basic Word Mark Search
(New User)” form and then search for any well-known
trademark, such as “Nike” or “Redskins.” You may have to click
on several of the search results before seeing the symbol as
well as the words that have been trademarked. What was the
trademark for which you searched? What did you find?
b. Now contrast the treatment of trademarks with that of
patents. Return to the home page at www.uspto.gov./, and
under the Patents tab, click on “Search For Patents.” Use the
“Quick Search” link under “Searching Full Text Patents” to
locate information on conduit benders. Refine your search to
include conduit AND benders AND reciprocal. Scan through
the list and then click on the link for “Reciprocal conduit
bender.” Read the sections labeled “Background of the
Invention” and “Summary of the Invention.” Based on the
information contained in these two sections, briefly explain
what a conduit bender is and how the inventor’s product
differs from those that had been patented before his.
2. Use a free on-line resource, such as FindLaw,
http://lp.findlaw.com, or your state’s government website, to
research the intestacy laws in your state. How do they differ from
the statute presented in Critical Thinking Exercise 3 on page 378?
Do you think the provisions in your state’s statute do a better or
worse job at “guessing” what the deceased would have wanted?
[Note: For those of you living in Massachusetts, you will find that
the intestacy statute had been substantially changed from what
is included in the text.]
REVIEW QUESTIONS
Pages 349 through 363
1. Define the two basic types of property.
2. What types of laws impact a landlord’s selection of tenants?
What types of criteria are legal and what types are not?
p. 380
p. 381
3. Describe the different types of leasing agreements and how they
differ.
4. What is a constructive eviction, and how does it relate to the
implied warranty of habitability?
5. What is a listing agreement?
6. Why might it be important to know whether two friends shared
ownership in a house as joint tenants or as tenants in common?
7. What are land contracts? Can you envision any problems with
their use? For example, do you think the terms of a standard land
contract generally favor the buyer or the seller?
8. What is the purpose of zoning laws? How do they affect
homeowners and developers?
9. When can a zoning regulation be seen as a governmental “taking”
such that the government must give the landowner just
compensation?
10. What limits are there on the government’s right to take property
through eminent domain?
11. Describe two ways in which an owner’s right to use his or her
property may be limited by private arrangement.
12. How does someone acquire property through adverse
possession?
Pages 363 through 369
13. Why is it important to know if property is classified as personal or
real?
14. What are the requirements for a valid gift?
15. What is the distinction between lost and mislaid property? Why
does it matter?
16. What is a bailment?
17. What is intellectual property, and how is it protected?
Pages 369 through 377
18. What does it mean to say someone died intestate?
19. Why is it not a good idea to die without a will?
20. Define each of the following:
a. formal will
b. holographic will
c. nuncupative will
21. What is the purpose of a simultaneous death clause? Give an
example of when such a clause would be relevant and why it
would be important.
22. What is the purpose of a trust?
23. What types of property do not have to go through the probate
process?
24. What do the terms sound mind and undue influence mean in the
context of challenging a will?
1
Equity here refers to the difference between the selling price of the property and the balance
of any mortgages on the property.
2
Although the Fifth Amendment of the U.S. Constitution applies to actions of the federal
government only, the Supreme Court has interpreted the Fourteenth Amendment due
process clause as placing similar conditions on state and local governments.
3
344 U.S. 1 (1948).
4
392 U.S. 409 (1968).
5
Even though they have been illegal for more than 50 years, racially restrictive covenants still
exist in many older property records, because of the time and expense involved in physically
deleting them.
6
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241 (1897).
7
545 U.S. 469 (2005).
8
Transcript of oral argument, Feb. 22, 2005.
9
Id.
10
Kelo v. New London, 545 U.S. 469 (2005).
11
Id. at 489.
12
Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).
13
Dolan v. City of Tigard, 512 U.S. 374, 384-85 (1994).
14
15 U.S.C. § 1051 (2012).
15
“Eric Bradley, Federal Board Could Hold Key, USA Today, May 29, 2014, C1-2 at C2.
16
15 U.S.C. § 1052(a) (2019).
17
Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019).
18
17 U.S.C. § 102 (a)(5) (2019).
19
Id. § 101.
20
133 S. Ct. 2107 (2013).
21
Richard Wolf, Billions at Stake in App Patent Case, USA Today, Mar., 31, 2014, at B1.
22
719 F.3d 67 (2013).
23
Many states have created an alternative track that allows people to settle simple estates
(where there is a will and which do not involve a lot of money) without the extensive reporting
requirements and costs that are associated with traditional probate proceedings.
p. 381
p. 383
Laws Affecting Business
[Title VII of the Civil Rights Act of 1964]
proscribes not only overt discrimination but
also practices that are fair in form, but
discriminatory in operation. . . . [A]ny tests used
must measure the person for the job and not the
person in the abstract. Chief Justice Burger, U.S.
Supreme Court
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Describe the different types of legal entities a business can take
and identify the advantages and disadvantages of each type.
■ Describe what takes place in commercial transactions and the
difference between a secured and a non-secured transaction.
■ Explain the role of an agent and the importance of the
difference between an agent and an employee.
■ Explain the differences among at-will employees, contract
employees, and unionized employees.
■ Identify and explain the purpose of the most significant federal
and state laws relating to employee rights and benefits.
■ Discuss the types of actions that are prohibited by employment
discrimination laws.
p. 383
p. 384
INTRODUCTION
In Chapters 7, 8, and 9, we presented the basic legal concepts of tort,
contract, and property law. Those legal principles impact on a wide
range of activities in both our business and our personal lives. In this
chapter we introduce more specialized areas of the law that affect
how businesses operate and how commercial transactions work. The
topics covered include business formation, agency law, commercial
paper, secured transactions, and employment law, as they relate to
common business activities. Then, in the next chapter, we will focus
on laws affecting family relationships.
We start with a look at an energetic group of entrepreneurs
seeking the American dream of owning their own business.
Case 12: The Four Friends
Four friends — Alice, Betty, Claire, and Dan — meet once a week
to play bridge. During the course of one such meeting they begin
discussing the possibility of going into business together. Alice,
who is 30 years old, is currently working as a baker for FreshStuff
Bakeries, earning $30,000 a year. She loves her work but has long
dreamed of opening her own bakery. She even has a name picked
out — We BakeUm Fresh. Unfortunately, she is a single parent
raising two small children and does not feel she can afford to
invest any of her approximately $5,000 in savings into such a
business. Her friends, however, think that they may be able to help.
Betty, a 62-year-old retired school teacher, just won $150,000 in
the state lottery. In addition, she has $80,000 in retirement
savings. Enjoying her retirement, she does not feel she would want
anything to do with the day-to-day running of a business. However,
assuming her money would not be at risk, she would be willing to
invest up to $100,000 in the business.
Claire, a 20-year-old college student, recently inherited a small
two-story building, worth $125,000, in the downtown area that
could easily house a bakery. She would be too busy with classes to
help run the business, but she would be willing to let the others use
her building to house the bakery.
Finally, Dan is 25 years old. He currently works odd jobs for a
local landscaping company. However, he feels that he is a born
salesperson and manager. Of the $10,000 he has in savings, he
feels he could contribute up to $5,000 toward the business. He
would love to quit his current job, at which he earns $25,000 a year,
to serve as the bakery salesperson and manager.
If the four friends decide to go into business together, there will be
many basic legal issues that they will have to confront. The first will
be to decide what form they would like their business to take. While
they have at least five basic forms from which to choose — sole
proprietorship, partnership, corporation, limited liability company, or
limited liability partnership — each has its own unique advantages
and disadvantages.
Second, they will probably need to secure financing for their new
business. In return, a creditor may ask for their written promise that
they will repay the
p. 384
p. 385
debt. Such a promise to pay is one form of commercial paper. Most
suppliers and other creditors will want some additional guarantee
that they will be repaid beyond the friends’ simple promise that they
will do so. Such a guarantee often takes the form of a security
interest; that is, the debtor agrees to put up something as collateral
that the creditor can then claim if the debtor fails to pay his or her
debt. If the friends decide to share responsibility for running the
business, they must also have a basic understanding of agency law.
An agent is someone who has the power to act in place of another,
known as the principal. The agent has a fiduciary duty to the
principal, and the principal is responsible for the actions of the agent.
Finally, unless they are able to run the business on their own, they will
want to hire employees. The hiring and firing of employees raises a
whole series of legal issues. We will concentrate on just two: at-will
employment and federal discrimination law.
A. THE FIVE BASIC BUSINESS FORMS
As indicated above, the first basic legal decision involved in the
formation of a business is the legal form the business will take. Until
recently the choices were limited to three basic business forms: sole
proprietorship, partnership, or corporation. Starting in the mid-1990s,
however, two new business forms emerged: the limited liability
company and the limited liability partnership. These new forms are
quite appealing to many businesses, as they provide some of the best
benefits of both the partnership and the corporate form. Figure 10-1
summarizes the major features of each business type.
1. Sole Proprietorship
The sole proprietorship is the most common form of business
organization. Approximately two-thirds of all businesses are sole
proprietorships. However, while they account for the greatest number
of businesses, as most are small businesses, their revenues do not
begin to approach those produced by corporations.
There are several advantages to forming a business as a sole
proprietorship. First, it is the simplest form to start and maintain,
requiring a minimum of paperwork and expense. No forms have to be
filed with any state agency unless the owner chooses to use a
fictitious business name, such as We BakeUm Fresh. In that case the
owner may have to file a “doing business as” (DBA) certificate.
Another primary advantage of the sole proprietorship is that the
business’s profits and losses are treated as personal profits and
losses of the owner. Therefore, business profits are taxed as ordinary
personal income, and the owner pays taxes on these business profits
only once. In the corporate form of organization, on the other hand,
the business’s profits are taxed first at the corporate level and then
again when they are distributed to the individual. Perhaps the major
advantage, however, is that the owner retains complete control over
the business operation.
The major disadvantage of the sole proprietorship is that all of the
owner’s personal assets, regardless of whether they are related to the
operation of the business, are available to satisfy business-incurred
debts. For example, if the business is not able to pay its debts, in
addition to seizing the assets of the
p. 385
p. 386
business, creditors can take the business owner’s home, automobiles,
jewelry, or any other personal assets. Another disadvantage of this
type of business operation is that the business dies with the owner.
Finally, the owner of a sole proprietorship is often limited in funding to
his or her own resources. One of the most common reasons for
changing from a sole proprietorship to a partnership or corporate
form is the need for additional capital to finance the business’s
expansion.
Type of Sole Partnership Corporation Limited Limited
Business Proprietorship Liability Liability
Company Partnership
Number One Two or more One or more Usually one Two or more
of Owners or more
Taxation Single Single Double Single Single
Liability Unlimited Unlimited Limited to Limited to Usually
capital capital limited to
contribution contribution capital
contribution;
sometimes
liable for
business
debts and
for own
negligent
acts
Ease of Very easy; Very easy; formed File articles of File Register
Formation nothing to file by partners’ oral or organization; certificate of with the
except “DBA” written agreement; pay annual fee; organization; state; pay
certificate if no filing required elect board of pay annual annual fee;
using fictitious except for “DBA” directors and fee; use use
name certificate if using officers; hold designation designation
fictitious name annual such as LLC such as LLP
(can also be meetings; keep
established by corporate
partners’ words or records; use
conduct — designation
partnership by such as Corp. or
estoppel) Inc.
Managed Sole owner Partners Board of Manager Usually the
by directors and (either an partners or
officers ower or a the owners
nonowner)
or the
owners
Figure 10-1 A Comparison of the Basic Types of Businesses
As the name implies, a sole proprietorship can have only one
owner. In the hypothetical example we presented, only one of the four
friends could be designated as the owner. They could not share
ownership. (The remaining three could be either investors or
employees or both, but they could not be owners.) If they want their
business to have more than one owner, they will have to form a
partnership, a corporation, or a limited liability company.
p. 386
p. 387
2. Partnership
Under the Uniform Partnership Act, a partnership is defined as “an
association of two or more persons to carry on as co-owners a
business for profit.” Notice that this provision requires that there be
(1) two or more persons (2) who serve as co-owners and (3) run the
business for profit. As with a sole proprietorship, partnership assets
are only taxed once as personal income to the partners. However, a
partnership must file an informational tax return with the Internal
Revenue Service that indicates how the profits and losses were
divided among the partners.
One of the major disadvantages to doing business as a
partnership is that every partner assumes liability for the actions of
every other partner. And as with a sole proprietorship, personal assets
can be taken to pay for business liabilities. Thus partners share in the
liability for the actions of the partnership and for every other partner.
This is known as joint liability. Usually, a plaintiff suing a partnership
has the option of suing just the partnership, or the partnership and
one or more selected partners, or just one of the partners. This is
known as joint and several liability. For example, someone harmed
by partner A’s actions could sue the partnership, partner A and
partner B, only partner A, or any combination of the above.
Some partnerships have both general and limited partners. This
type of partnership is known as a limited partnership. The general
partners (there must be at least one) have all the rights and liabilities
of a normal partner within a general partnership. The limited
partners, however, are only investors and do not actively participate in
the management of the business. Therefore, their liability is limited to
the extent of their investment in the partnership. In our example of
the four friends, both Betty and Claire might be interested in
becoming limited partners, thereby limiting their liability to their
investment. However, if they actually take part in making business
decisions for the partnership, they forfeit their limited partner status.
A partnership consists of at least one general partner and one or
more limited partners. The limited partners’ liability is limited to their
investments so long as they do not participate in management
decisions. A partnership can be created in one of three ways: by a
written agreement, by an oral agreement, or by operation of law. While
there is no requirement that a partnership agreement be in writing, by
far the safest course is to use a written partnership agreement listing
the rights and duties of each of the partners. Recall also that most
states have a statute of frauds requiring any contract that cannot be
performed in a year to be in writing.
If there is no written partnership agreement, then the provisions of
the previously mentioned Uniform Partnership Act (UPA) will govern.
The 1914 version of the UPA has been adopted in all states except
1
Louisiana. The UPA is a “gap filler.” That is, its provisions control only
if the partners have not covered a particular area in their written
agreement. For example, if two people form a
p. 387
p. 388
partnership, the UPA will assume they intend to share profits on a
50/50 basis. If the partners want the profits to be divided differently,
they can provide for that so long as they explicitly state their
intentions. It is obviously prudent to do so.
If two or more individuals through their actions of sharing control,
profits, and losses act as though they are a partnership but have no
written partnership agreement, it may be difficult to determine
whether the parties intended to do business as partners. In those
situations, the court will frequently be called on to determine whether
a partnership has been formed. There is no single requirement that
determines whether a partnership exists. Rather, most courts have
adopted a three-part test. They will look at the facts of each individual
case to see whether there is
1. common ownership,
2. a sharing of the profits and losses, and
3. a shared right to management.
2
Consider, for example, a 1978 case from Michigan, in which the
court had to determine whether a surviving wife had worked with her
now-deceased husband as a partner or as an employee. If Mrs. Miller
could prove she and her husband were partners, she would be
entitled to keep her half of the business, and only his half would have
to be probated. However, if the business was found to be solely his,
then the entire business would be subject to inheritance taxes.
In court she showed that in 1959 she met her future husband,
Philip Miller. Mr. Miller asked her to marry him, to move to Jackson,
and to help him run his nursery business. She agreed and gave up a
well-paying job to move to Jackson. “Although Mr. Miller had been
operating the business for some time, it was close to failing at the
time of their marriage. However, by 1974, the time of Mr. Miller’s
3
death, the business was prosperous.” Although she had not invested
any money in the business, Mrs. Miller had acted as manager,
keeping the books and hiring and firing employees. She and her
husband also shared the profits 50/50. In addition, their business
registration certificate said they were a partnership, and their
checking account, vehicles, and equipment were in the partnership
name. However, on their annual tax forms they listed the husband’s
occupation as sole proprietor and the wife’s as housewife. Also, the
husband’s retirement fund listed him as owning a sole proprietorship.
Applying the traditional three-part test used to determine the
existence of a partnership, the court found that the second element,
sharing of profits, was not conclusive. The money given to the wife
could be seen as wages or simply as her wifely due rather than as her
partnership share. As to the third element, sharing the right of control,
there was no evidence that she did anything other than what any
trusted employee could do. Also, there was no written agreement to
prove that she had the right to control the business. Therefore, the
court concluded that a partnership had not been formed.
p. 388
p. 389
A partnership can also be created without any explicit agreement
but rather by operation of a law, even when the parties involved do
not want to form a partnership. While Mrs. Miller wanted to prove a
partnership existed, in the following case a group of doctors tried to
argue that they had not been working together as partners in order to
escape liability for the malpractice of another doctor with whom they
had worked.
Van Dyke v. Bixby
388 Mass. 665, 448 N.E.2d 353 (1983)
The plaintiffs recovered judgments against the defendants
solely on the theory that as partners of Richard E. Alt (Dr. Alt), a
physician who died in 1975, they were liable for Dr. Alt’s negligent
treatment of the plaintiff Edwin S. Van Dyke (Van Dyke). In this
appeal the defendants argue that the admissible evidence did not
warrant a finding that a partnership existed. . . . We affirm the
judgments and the order denying the defendants’ motion for a new
trial.
. . .
1. We start with the question whether the jury were warranted
in finding that the defendants were partners of Dr. Alt because, if
not, they could not be held liable for his negligent conduct. The
defendants concede, by implication, that, if certain challenged
evidence was admissible, the jury would have been warranted in
finding that a partnership involving Dr. Alt and the defendants
existed between 1962 and the end of 1969. . . .
We turn our attention then to the defendants’ challenges to the
admission of evidence offered to show that The Johnson Clinic
6
was a partnership from 1962 through 1969. The judge properly
admitted a certificate filed with the city clerk in Beverly in 1962 . . .
stating that ten doctors, all of whom signed the certificate, were
conducting a business in Beverly under the name THE JOHNSON
CLINIC. Five of the defendants signed the certificate, as well as Dr.
Peer P. Johnson and Dr. Alt. The certificate was relevant, although
certainly not conclusive, on the question whether a partnership
had been formed. A person conducting business under any title
other than his real name, “whether individually or as a partnership,”
must file such a certificate.
The judge properly admitted, solely on the issue of the
existence of a partnership, the endorsement page only of a
professional liability insurance policy stating that the defendants
and Dr. Alt were insured “individually and as copartners dba [doing
business as] Johnson Clinic.” The fact that the defendants insured
their liability as partners is some evidence that a partnership
existed.
An October 31, 1969, billing statement of The Johnson Clinic
was properly admitted. It showed that the defendants, Dr. Alt, and
other physicians were associated with the clinic and stated that all
checks should be made payable to The Johnson Clinic. It was
relevant on the question whether the defendants were associated
with Dr. Alt in the business at that time.
The statements of certain defendants in answers to
interrogatories that they were partners and the testimony of two of
those defendants that they were partners were admissible as
tending to prove that they were partners.
p. 389
p. 390
That evidence was admissible only against the defendant who
made the statements. It was not binding on such a defendant, but
it did show his state of mind concerning his relationship with Dr.
Alt. Such questions do involve a legal conclusion. One might
believe that he was a partner when, as a matter of law, he was not.
The jury, therefore, must be made aware, as they were in this case
through the judge’s charge, that the partnership question must be
determined on all the evidence.
2. There was evidence to warrant a finding that during the
period when a partnership existed Dr. Alt was negligent in his
treatment or failure to treat Van Dyke. . . . The jury could have
found that Dr. Alt failed to remove the Penrose drain from Van Dyke
after the 1969 operation. They could have found that, in his
treatment of Van Dyke in 1969 after the drainage persisted, Dr. Alt
failed to conform to accepted medical practice because he delayed
taking substantial affirmative measures to investigate and to
correct the cause of the condition.
. . .
Order denying motion for a new trial affirmed.
Judgments affirmed.
CASE DISCUSSION QUESTIONS
1. Why was it crucial to the plaintiff’s case to prove that Dr. Alt
and the other doctors were working together as a partnership?
2. What evidence do you think was particularly relevant in
answering that question?
As this case illustrates, if business owners give the appearance
that they are partners, the courts may hold them liable for each
other’s actions, just as though they had intentionally formed a
partnership. Sometimes this is referred to as partnership by
estoppel. In other words, if the persons doing business together,
through their words or conduct, lead others reasonably to believe that
they are working as partners and others rely on that belief, a court
may prevent (estop) the business owners from denying they are a
partnership. Once a court finds a partnership by estoppel, the
partners by estoppel are held liable for the actions of all the other
partners.
NETNOTE
You can find business ownership information, such as the names
of the resident agent and the corporate officers, at various places
on the Internet, including many state government websites.
Another source for this type of information is the Electronic Data
Gathering, Analysis, and Retrieval (EDGAR) system. It contains
information that companies are required to file with the U.S.
Securities and Exchange Commission (SEC). EDGAR filings are
located at sec.gov/edgar/searchedgar/webusers.
p. 390
p. 391
The death or withdrawal of any partner results in the dissolution
of the partnership. However, the business entity often continues
under a new restructured partnership agreement. The partnership
can also end by the agreement of the partners.
3. Corporation
If our four friends are worried about assuming unlimited liability for
their business actions, they may choose to form a corporation. In a
corporation the investors have the advantage of being owners
without having to assume any liability beyond the cost of their
individual shares. While this limitation on liability may be important in
the context of lawsuits, it may be somewhat illusionary when it
comes to seeking credit because banks and other creditors often
require shareholders in small corporations to provide personal
guarantees to secure loans.
Another benefit of the corporate form is perpetual existence and
transferability of shares. Unlike a partnership, it has a continuing life
of its own that is not affected by the death of a stockholder or the
exchange of shares of stock.
The major disadvantage of a corporation is the “double taxation”
involved. The corporation’s profits are taxed at the corporate level
before dividends are distributed to shareholders. The shareholders
then are taxed again on the dividends they receive. A dividend is a
distribution of the corporate profit as ordered by the directors.
The primary document needed to form a corporation is the
articles of incorporation. The articles of incorporation must include
the legal name of the corporation, the purpose of the corporation, a
list of the incorporators and directors, the name and address of a
registered agent (the person designated to receive service of legal
documents), and the share structure. Sometimes a business has its
main place of business in one state but chooses to incorporate in
another state. The articles of incorporation must be filed with the
secretary of state for the state in which the corporation wishes to
incorporate. Once a certificate of incorporation has been issued, the
corporation must maintain certain types of records, file periodic
reports to the appropriate state and federal agencies, and pay an
annual fee. Its name must also include a designation such as Corp. or
Inc. to alert those doing business with the company that it enjoys the
benefits of corporate limited liability.
Most corporate capital comes from the sale of shares of stock to
shareholders. Shareholders have no responsibility for the daily
management of the corporation. They do, however, elect the board of
directors. Also, they must approve fundamental changes, such as
amending the articles of incorporation or agreeing to the sale of all of
the corporation’s assets. They receive a share of the corporation’s
profits when the board chooses to distribute some of those profits
through dividends on its stock. The corporation can also borrow
money when it needs capital.
The board of directors is responsible for the management of the
corporation. The board has a fiduciary duty to the corporation and to
the shareholders. A fiduciary duty is one in which a person in a
position of trust is responsible for acting in the best interests of
another party. In this case the board is responsible for doing what is
best for the stockholders of the corporation. The board typically
makes
p. 391
p. 392
major policy and investment decisions, as well as appointing,
supervising, and removing corporate officers.
The officers of the corporation are elected by the board and are
responsible for executing the board’s policies. They are also expected
to provide leadership for the corporation. In addition, officers have a
fiduciary duty to act in the best interests of the corporation and its
shareholders. They can be held liable for their actions if they fail to
live up to this obligation.
Once a corporation has been properly formed, it becomes a
separate legal entity that can sue, be sued, own property, and make
contracts in its own name. Some corporations are relatively small
operations in which one person or the members of one family own all
the stock. Such corporations are referred to as close or closely held
corporations. The rights of shareholders of a closely held corporation
usually are restricted with respect to the transfer of shares to others.
Most larger corporations are publicly held, meaning that their stock is
openly traded on the New York and American Stock Exchanges.
When a corporation incorporated in one state does business in
another state, it is called a foreign corporation. In its own state it is
referred to as a domestic corporation. A corporation formed in
another country is known as an alien corporation.
While most corporations are formed to make money, there are
also “not for profit corporations” created for a public purpose, such
as education or some charitable endeavor. While created similarly to
any other corporation with a board of directors and officers, there are
no shareholders and any surplus left at the end of the year must be
put back into the corporation. Examples of non-profits include most
private colleges and universities, churches, and organizations like the
American Red Cross.
In contrast to non-profit corporations,
corporate law holds as a core precept that the corporation’s goal is to maximize
shareholder value. Corporations’ freedom to serve the goals of other corporate
constituencies (such as employees, customers, or the communities in which the
companies operate) or to serve broader goals such as protecting the environment or
aiding the poor is constrained by the requirement that any such efforts be primarily
4
aimed at improving the bottom line for the benefit of the companies’ shareholders.
While corporate charters and statutory law have given
corporations great latitude in corporate philanthropy, a new type of
corporation now exists which is meant not only to increase
shareholder value, but to prioritize environmental or social aims over
profit, the public benefit corporation. Public benefit corporations
5
have now been recognized in thirty-four states.
p. 392
p. 393
Persons wishing to sue a corporation may try to “pierce the
corporate veil,” that is, prove that the corporate form is really a sham
and that the business should be treated as a sole proprietorship or
partnership. This would mean that the personal assets of the owners
could then be used to pay business debts. In order to pierce the
corporate veil, the court would have to be convinced that it should set
aside the normal protections offered by the corporate form. Factors
that a court might look to in deciding whether to set aside the
corporate form include situations in close corporations where the
principal shareholder or shareholders did not follow the corporate
formalities, such as by failing to issue stock, or commingled personal
assets with corporate assets, such as by failing to set up a separate
checking account for the corporation.
DISCUSSION QUESTION
1. While corporations have long been treated as persons for
purposes of suing and being sued, until recently this was simply seen
as a necessary legal fiction. No one seriously considered that
corporations were the equivalent of persons. But then in 2010 the
U.S. Supreme Court ruled in Citizens United v. Federal Election
Commission that corporations had the same free speech rights as
private individuals when it came to regulating political contributions
6
and advertising on behalf of candidates for public office. And in 2014
the Court ruled in Burwell v. Hobby Lobby 7
that closely held business
corporations that had religious objections to providing contraceptive
services as part of their employee health care benefits could opt out
8
of those provisions. Do you think it is appropriate to give
corporations the same protections regarding freedom of speech and
religion as is accorded to individuals? What downsides do you think
there are to such an approach?
4. Limited Liability Company and Limited Liability
Partnership
In addition to these three traditional forms of business organization,
all states have passed statutes establishing the limited liability
company (LLC) and the limited liability partnership (LLP). These
forms are particularly attractive to small businesses. They offer the
best of two worlds — the limited liability that is afforded by the
corporate form and the single taxation that occurs in a partnership.
The profits from the LLC or LLP are “passed through” to the members.
Also, the limited liability protects the members from being sued for
the negligent actions of their partners, but as is true with corporate
limited liability, as the defendant found out in the following case, it
cannot protect them from their own personal conduct.
p. 393
p. 394
Mbahaba v. Morgan
44 A.3d 472 (N.H. 2012)
The plaintiff, Regina Mbahaba, individually and as next friend of
her minor daughter, Benita Nahimana, appeals orders of the
Superior Court [that] dismissed the plaintiff’s direct claims against
the defendant, Thomas Morgan.
. . . The defendant owned Property Management Services a/k/a
Property Services Company, a limited liability company (LLC) that
managed an apartment building where the plaintiff and her family
rented an apartment. . . . . The plaintiff’s daughter, Benita, was
poisoned by lead while living in the apartment, prompting an
inspection by the New Hampshire Department of Health and
Human Services, which revealed “lead exposure hazards” in the
home.
. . . The defendant moved to dismiss the action against him
personally, arguing that, because he supervised the property on
behalf of the LLC, he could not be “held personally liable for the
debts or actions of the company.”
. . .
We first examine the language of the statute, and, where
possible, we ascribe the plain and ordinary meanings to the words
used. When the language of a statute is clear on its face, its
meaning is not subject to modification. We will neither consider
what the legislature might have said nor add words that it did not
see fit to include.
The controlling statute here, RSA 304-C:25 (2005), governs the
liability of LLC members to third-parties and provides as follows:
Except as otherwise provided by this chapter, the debts, obligations and liabilities of a
limited liability company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the limited liability company; and no member or
manager of a limited liability company shall be obligated personally for any such debt,
obligation or liability of the limited liability company solely by reason of being a
member or acting as a manager of the limited liability company.
The defendant argues that this provision insulates him from
liability. . . .
“A member of an LLC generally is not liable for torts committed
by, or contractual obligations acquired by, the LLC.” When, however,
a member or manager commits or participates in the commission
of a tort, whether or not he acts on behalf of his LLC, he is liable to
third persons injured thereby. A member remains personally liable
for his own acts because RSA 304-C:25 governs a member’s
vicarious liability for an LLC’s debts or obligations. The statute has
nothing to do with a manager’s personal liability, including liability
for his own negligence.
Therefore, “[a] n LLC member is liable for torts he or she
personally commits . . . because he or she personally committed a
wrong, not ‘solely’ because he or she is a member of the LLC.”
. . .
Here, the plaintiff alleges . . . that: (1) the defendant, personally,
managed the property; (2) he “had prior knowledge of lead paint
dangers”; and (3) he had “actual knowledge of the fact that the
rental . . . had peeling and flaking paint . . . that probably contained
lead.” She further alleges that the defendant “[i]gnor[ed] this prior
knowledge, and . . . wholly fail[ed] to further investigate . . . and
make safe the rental, or at least warn the plaintiff.”
The defendant’s management of the apartment and his
superior knowledge of its hazardous condition suffice to establish
an individual tort duty to avoid “exposing [the plaintiff] to an
unreasonable risk of harm.” Thus, because these allegations state
facts entitling the plaintiff to relief, her negligence claim survives
the defendant’s motion to dismiss.
p. 394
p. 395
CASE DISCUSSION QUESTIONS
1. What was the basis of the defendant’s argument that he should
not be held responsible for the injuries caused by the lead paint found
in the apartment he managed?
2. Despite his being the owner of an LLC, why did the court hold
that he could be held personally liable if his negligence caused the
tenant’s daughter to become ill?
Because limited liability companies and partnerships are
creatures of statute, you must consult the statute in your individual
state for the specific requirements for forming and running these
business forms. Generally, most businesses appear to be following
the route of becoming LLCs for two basic reasons. First, in most
states the LLC form offers more liability protection. In an LLP the
partners are protected from being personally liable for the wrongful
acts of the other partners. However, in some states they remain liable
for other business debts, such as rent or utilities. In an LLC personal
liability is limited to the amount the person has invested in the
company. Second, the LLC form avoids some of the disadvantages of
having to use a partnership structure. For example, as you learned
earlier, in a partnership each partner has authority to bind the
business. With an LLC the business can provide that only some
members have that authority and in fact may appoint a manager.
Usually, to become a limited liability company, a business must
file articles of organization with the appropriate state office, such as
the secretary of state, and pay an annual fee. The articles contain the
name of the company, the period of its duration, the address, and the
name and address of a statutory agent. The company name must
include the words “Limited Liability Company,” “Limited,” or “Ltd.” In
addition, an operating agreement should set forth the basics of how
the LLC will be run. Typical provisions would include information
about how the LLC is to be managed; its purpose; the type and
amount of contributions by each member, whether in cash, property,
or service; how periodic allocations of income are to be made;
transferability of a member’s interest in the LLC; and when and how
the LLC can dissolve.
Professional partnerships, such as law firms, appear to be
gravitating more toward the LLP form. Because this form is
essentially identical to a general partnership, except for obtaining the
benefits of limited liability, law firms can easily make the change to a
limited liability partnership with minimal disruption of the firm’s
internal workings. Typically, to attain LLP status, a business must
register with the state and pay an annual fee. The partnership name
must also add the LLP designation.
Today, all 50 states have adopted LLC and LLP statutes. However,
one of the biggest disadvantages to operating as an LLC or LLP
remains the uncertainty of how the LLC and LLP statutes will be
applied and interpreted by the courts.
B. FINANCIAL TRANSACTIONS
After considering the advantages and disadvantages of the various
forms of business organizations, the four friends decide to have
Darrow and Bryan help them
p. 395
p. 396
form an LLC. The next step is to buy supplies or equipment, hire
employees, and advertise for customers. To pay for all of this, they
will need to establish business banking accounts. If they write a
check to pay for new equipment or sign a promissory note promising
to repay a loan, the law of commercial paper is involved. Whenever a
supplier or creditor asks for a guarantee of repayment in the form of
collateral, a secured transaction is created, whereby if the friends fail
to repay the debt, the creditor can seize the collateral (the asset) that
was used to secure the loan.
1. Commercial Paper
Commercial paper refers to a variety of instruments (written
documents) used for making payments. Commercial paper has two
basic functions: as a substitute for money and as a credit device. For
example, if you pay for a new stereo with a check, you have just used
a form of commercial paper (the check) to substitute for cash and to
give yourself some free credit until the store cashes the check.
There are a lot of terms involved in how commercial paper is
categorized. The important point is not to memorize all the
terminology but to become familiar with it so that later, when you
encounter your first client who has a legal problem involving
commercial paper, you will be conversant with the basic terms.
Commercial paper is categorized in the following ways:
■ as two-or three-party instruments,
■ as orders or promises to pay,
■ as bearer or order paper, and
■ as negotiable or nonnegotiable.
Therefore, the first way of categorizing commercial paper is by
how many parties are involved. Notes only involve two parties. A note
is a promise to pay money, whereby the maker signs the instrument
promising to pay money to the payee. See Figure 10-2. These notes
can be collectable either on a specific date in the future (time notes)
or at any time the payee wishes to collect (demand notes).
Installment notes establish a series of dates on which portions of the
money are to be paid. An example of a note would be a car loan.
Three-party instruments include drafts and checks. A draft is a
three-party instrument in which the drawer orders the drawee, usually
a bank, to pay money to the payee. A check is a specialized form of a
draft in which a bank depositor names a specific payee to whom
funds are to be paid from the drawer’s account. See Figure 10-3. An
example of a draft would be a check from your personal checking
account.
Figure 10-2 A Note
p. 396
p. 397
Figure 10-3 A Draft or Check (For a check, the drawee is a bank.)
Second, drafts and checks are classified as orders to pay, as each
contains an order by the drawer to the drawee to pay money to the
payee. Notes are promises to pay.
Third, instruments are also classified as being either bearer paper
or order paper. Bearer paper will have written on its front a statement
that it is payable to cash or payable to the bearer, or it will have a
signature on the back, causing it to be indorsed in blank. An
indorsement in blank occurs when an indorser simply signs his or
her name and does not specify to whom the instrument is payable.
Order paper states on its face “pay to the order of” a specific payee
and has not been indorsed in blank on its back.
The fourth category, negotiable versus nonnegotiable, is the
most essential category. Only if the paper is seen as negotiable can it
be treated as a substitute for money. This is important because, as
we mentioned above, one of the two main functions of commercial
paper is as a substitute for cash. If the paper does not satisfy the
requirements to be negotiable, that purpose has not been satisfied.
Article 3 of the Uniform Commercial Code (UCC) spells out the
requirements for an instrument to be negotiable. It must
1. be in writing,
2. be signed by the maker or drawer,
3. be an unconditional promise or order to pay,
4. state a specific sum of money,
5. be payable on demand or at a definite time, and
6. be payable to order or to bearer.
A person becomes a holder of a negotiable instrument that is
bearer paper by proper delivery. If it is order paper, it must be properly
delivered and have all necessary indorsements.
The reason all these steps are important is that if a note, check, or
draft meets the requirements of negotiability, a holder can become a
holder in due course and have the right not only to enforce the
agreement but also to be exempt from some of the defenses that
could have been asserted against the original payee. Under the UCC a
person becomes a holder in due course only if that person receives
the instrument under the following conditions. A holder in due course
is someone
1. who gives value
2. in good faith (a subjective standard) and
3. without notice that the instrument is overdue or has been
dishonored or has any claims against it or defenses to it (an
objective standard).
Again, the main benefit of being a holder in due course, rather than
a mere holder, is that a holder in due course takes the instrument free
of most claims
p. 397
p. 398
against payment. A holder, on the other hand, takes the instrument
along with any defenses to its payment. Therefore, for commercial
paper to truly work as a substitute for cash, it must be negotiable, and
the person owning it must be a holder in due course. The steps by
which commercial paper becomes negotiable and its owner becomes
a holder in due course are outlined in Figure 10-4.
For example, assume a bakery owner signs a contract with a
furniture store. The store gives the bakery owner a loan so that she
can purchase new tables and chairs for her reception area. In return,
the bakery owner promises to repay the loan on an installment basis.
Later a finance company purchases that installment contract from
the furniture store. The finance company becomes the holder in due
course. Assume the furniture proves to be defective. If the store had
not sold the installment contract, the bakery owner might have been
able to stop paying on the loan to the furniture store by raising a
defense of breach of
p. 398
p. 399
warranty. However, the holder in due course doctrine prevents the
bakery owner from being able to raise those defenses against the
finance company. Therefore, even though the furniture is defective,
the bakery owner will have to pay what it owes to the finance
company. It can separately sue the furniture store for breach of
warranty, but the results of the lawsuit do not affect the bakery
owner’s obligation to pay the finance company.
Figure 10-4 How to Determine Whether a Holder in Due Course Has Been Created
2. Secured Transactions
Often a creditor will demand more than the mere promise to repay a
debt. The creditor will want assurance that if the debtor fails to repay
the debt, the creditor can take something of value from the debtor.
Therefore, promises to repay a debt are often secured by a pledge of
something of value, such as a house, an automobile, or inventory, that
the creditor can seize and sell if the debtor does not repay the loan.
Such an arrangement is known as a secured transaction and is
governed by Article 9 of the UCC.
A creditor who has obtained a security interest has two main
concerns if a debtor defaults. First, the creditor wants to be able to
obtain the secured collateral from the debtor. This is done through a
process called attachment. Second, the creditor wants to have
priority over other creditors who may also have rights to the same
collateral. This is done through a process called perfection.
As to the first concern, for a creditor to have an enforceable
security interest against the debtor, the following must be true:
1. the creditor must either possess the collateral or have a signed
security agreement,
2. the creditor must have given something of value, and
3. the debtor must have rights in the collateral.
If all three requirements are satisfied, it is said that the security
interest has attached. The creditor’s first concern is satisfied. If the
debtor fails to pay, the creditor can take the collateral from the debtor
unless another creditor has a higher right to the collateral by having a
perfected security interest.
For a creditor to establish priority over other creditors, the creditor
must obtain a perfected security interest by taking additional steps.
The requirements for perfection are
■ possessing the collateral, or
■ filing a financing statement, or
■ giving money to purchase consumer goods.
The purpose behind each of these three methods is to give third
parties notice that the creditor has “first dibs” on the property. This
gives the perfected creditor first rights to the collateral over other
creditors.
Therefore, the difference between attachment and perfection is
that with attachment the creditor has an enforceable security interest
against the debtor. With perfection the creditor also has priority to the
collateral over other creditors. See Figure 10-5.
p. 399
p. 400
Figure 10-5 A Comparison of Attachment and Perfection
A special type of perfected security interest, a purchase money
security interest, arises when a seller gives credit to a debtor so that
the debtor can purchase an item. For example, if a car dealership lets
you purchase a car on credit, the dealership will have a purchase
money security interest in the car you buy. Also, if another creditor,
such as a bank, gives value to a debtor so that the debtor can
purchase the item, a purchase money security interest is formed. This
could occur in the prior example if you obtained your loan from a
credit union instead of the car dealership. The credit union would then
have a purchase money security interest in your car. If you purchased
the car for your own use, as opposed to that of your business, then
the security interest would also be classified as a purchase money
security interest in consumer goods. Purchase money security
interests in consumer goods are automatically perfected without the
necessity of filing a financing statement.
While those with a perfected security interest will prevail over
those whose interest has only attached, even a creditor with a
perfected security interest will lose to a buyer in the ordinary course
of business. If this were not so, once a store took out a secured loan,
everyone would stop shopping at that store. For example, assume
Sears took out a secured loan in order to increase its inventory of
refrigerators. Without the rule protecting the ordinary buyer, if Sears
failed to pay back the debt, the bank could go after customers, trying
to reclaim the refrigerators they had purchased from Sears.
In sum, keeping in mind the two purposes of obtaining a security
interest, to get repaid and to be first in line for the security, the general
order of priorities among creditors and buyers is as follows:
1. buyers in the ordinary course of business,
2. perfected purchase money security interests,
3. perfected security interests,
p. 400
p. 401
4. lien creditors (such as a trustee in bankruptcy),
5. unperfected security interests, and
6. general creditors.
Finally, a security interest can be retained in collateral even when
the collateral changes in character or location. For example, there can
be a security interest in proceeds or after-acquired property. This is
known as a floating lien. Assume our four entrepreneurs introduced
at the beginning of the chapter obtain a loan to purchase an oven for
their bakery. In addition to getting a security interest in the oven, the
creditor who loans the money for the oven’s purchase can also
acquire a security interest in the proceeds from the bakery sales and
in property, such as a new refrigerator, that the bakery later acquires.
C. AGENCY LAW AND AN EMPLOYER’S RESPONSIBILITY
FOR AN EMPLOYEE’S ACT
Returning to the hypothetical we introduced at the beginning of the
chapter, unless Alice chooses to run her business as a sole
proprietorship with no employees, she will need to understand how
her potential partners’ or employees’ actions can affect her business.
If she and her friends decide to form a partnership, corporation, or
limited liability company, each owner will be seen as an agent of the
business. Therefore, the actions of one of them would affect all of
them. Depending on the nature of their duties, their employees may
also be considered agents of the business. Finally, a business is
always responsible for the negligent acts of its employees when the
employees are acting within the scope of their duties.
1. Agency Law
An agent is someone who has the power to act in the place of
another. A principal is a person who permits or directs another
person, the agent, to act on his or her behalf, subject to the principal’s
direction and control. When an agent is authorized to act in the
principal’s place, the acts of the agent become binding on the
principal. For example, in a partnership each partner is an agent for
the partnership. Therefore, each partner has the right to make
decisions that will bind the partnership as a whole.
In a principal-agent relationship the agent owes a fiduciary duty
to the principal. As explained earlier, a fiduciary duty is a legally
imposed obligation to act in the best interests of the party to whom
this duty is owed. Because of this fiduciary duty, agents owe their
principals competent performance, notification of any important
information (notice to the agent is considered to be notice to the
principal, so the agent must keep the principal informed), loyalty,
obedience, and an accounting of all moneys spent and earned.
Therefore, agents must not place themselves in a conflict of interest
situation and must exercise reasonable care, skill, and diligence in
carrying out the principal’s instructions. An agent who fails to fulfill
these duties is liable for damages that result from this failure.
p. 401
p. 402
The principal, in turn, must cooperate with the agent and
compensate the agent for losses incurred in the course of
discharging the assigned duties. The principal must also pay the
agreed-on fee for the agent’s services.
2. Employees versus Independent Contractors
When a business — whether a sole proprietorship, partnership,
corporation, or limited liability partnership — pays people to work for
it, these individuals can be hired either as employees or as
independent contractors. An employee is someone who works for
another person or an organization in what the law has defined as an
employer-employee relationship. In such a relationship the worker is
typically paid an hourly wage or a monthly salary to perform a variety
of tasks assigned by the employer, and the employer is responsible
for withholding money for taxes and Social Security. Finally, the
employer maintains control over both the task and how the task is to
be performed.
An independent contractor, on the other hand, is someone who
contracts to perform a specific service for a set fee. The employer
does not withhold taxes or make contributions to retirement funds or
health insurance for an independent contractor. Another difference is
that contractors are usually expected to supply their own tools.
Ultimately the employer dictates the task to be done, but the
independent contractor determines how the task is to be performed.
The distinction between employees and independent contractors
is important because the duties, responsibilities, and liabilities of the
employer differ between the two classes of workers. The courts have
developed various tests to help determine if an employer-employee or
an employer–independent contractor relationship exists. While no
one factor will be determinative, the courts look to who controls the
details of the job, who owns the tools, who sets the hours, how the
worker is paid, whether the worker receives training from the
employer, whether the worker is engaged in a business different from
the employer’s, and how long the worker has been employed.
Figure 10-6 shows some of the important differences between
employees and independent contractors.
Figure 10-6 Employees versus Independent Contractors
p. 402
p. 403
3. Employees and Independent Contractors as Agents
If an employee’s duties include dealing with third parties, the
employee may be seen as an agent of the employer. Therefore, an
employee’s acts can bind the employer. An employer–independent
contractor relationship may involve an agency relationship if the
independent contractor is hired to act on the employer’s behalf in
making arrangements with third parties. For example, if you wish to
sell your house, you will most likely hire a real estate agent. The agent
will then negotiate on your behalf and can through his or her actions
bind you to contracts formed with third parties. However, because
you will have little control over how the agent performs the job, the
real estate agent will not be seen as your employee. Therefore, either
an employee or an independent contractor can be an agent, but not
all employees and not all independent contractors are agents. Figure
10-7 illustrates the relationships between employees, independent
contractors, and agents.
4. Employer’s Liability for Acts of Employees
When someone is hurt by an employee’s negligence, that person will
often choose to sue the employer rather than or in addition to the
employee because the employer has “deeper pockets” — that is, more
resources to pay a large damage award. The extent to which an
employer is held accountable for the acts of a worker depends on
three factors. First, was the worker an employee or an independent
contractor? Second, if the worker was an employee, did the employee
act negligently? Third, at the time of the injury was the employee
engaged in work of the type the employee was hired to perform? This
last question requires an assessment of whether the employee was
working within the “scope of employment” or, as the courts so
quaintly put it, whether the employee was “on a frolic of the
employee’s own.”
The employer-employee relationship follows common-law
principles that grew out of the master-servant relationship. Under the
doctrine of respondeat superior, a Latin expression translated as “Let
the master answer,” a business may be sued for the negligent acts of
one of its employees. On the other hand, an employer is generally not
responsible for the negligent actions of an independent contractor
unless the contractor is engaged in an ultrahazardous activity, such
as dynamiting. In such a case the employer is still held liable because
not to do
p. 403
p. 404
so would encourage employers to hire independent contractors
simply to avoid liability in admittedly dangerous situations.
Figure 10-7 Relationship between Employees, Independent Contractors, and Agents
Therefore, to find an employer responsible under the doctrine of
respondeat superior, a plaintiff must prove that
■ a true employer-employee relationship existed,
■ the employee was legally responsible for the injury, and
■ at the time of the negligent action the employee was “working
within the scope of his or her employment.”
In order to establish that the employee was working within the
“scope of employment,” the plaintiff will have to show that the
employee responsible for the injury was at that time engaged in work
of the type he or she was hired to perform. If the employee was “on a
frolic of his or her own,” the employer is not responsible. For example,
if Joe, a driver for Pizzas Are Us, negligently causes an accident while
delivering a pizza, the company will be liable. However, if while
returning from a delivery Joe decides to take an unauthorized side
trip to visit his girlfriend and negligently injures someone, the
company should not be held responsible for Joe’s unauthorized side
trip. In the following case the court acknowledges that it is much
easier to state the rule than it is to apply it to the facts of a specific
case.
O’Connor v. McDonald’s Restaurants of California, Inc.
220 Cal. App. 3d 25, 269 Cal. Rptr. 101 (1990)
Plaintiff Martin K. O’Connor appeals summary judgment
favoring defendants McDonald’s Restaurants of California, Inc.,
and McDonald’s Corporation (together McDonald’s) on his
complaint for damages for personal injuries on a theory of
McDonald’s vicarious liability for the negligence of its employee
Evans. . . .
Facts
In reviewing the propriety of the summary judgment, we state
the facts in the light most favorable to O’Connor.
From about 8 P.M. on August 12, 1982, until between 1 and 2
A.M. the next day, Evans and several McDonald’s coworkers
scoured the children’s playground area of McDonald’s San Ysidro
restaurant. The special cleaning prepared the restaurant for
inspection as part of McDonald’s “spring-blitz” competition. Evans
— who aspired to a managerial position — worked without pay in
the cleanup party at McDonald’s request. Evans’s voluntary
contribution of work and time is the type of extra effort leading to
advancement in McDonald’s organization.
After completing the cleanup, Evans and four fellow workers
went to the house of McDonald’s employee Duffer. Duffer had also
participated in the evening’s work. At Duffer’s house, Evans and the
others talked shop and socialized into the early hours of the
morning. About 6:30 A.M., as Evans drove from Duffer’s house
toward his own home, his automobile collided with O’Connor’s
motorcycle.
II
Superior Court Proceedings
O’Connor filed a lawsuit for negligence against Evans,
McDonald’s and others. O’Connor complained of serious injuries
resulting in permanent
p. 404
p. 405
disability and the loss of his left leg below the knee. The suit
claimed McDonald’s was liable for negligence on a theory of
1
respondeat superior.
. . .
III
Analysis
The central issue before us is of some antiquity. In 1834 Baron
Parke addressed the issue: “The master is only liable where the
servant is acting in the course of his employment. If he was going
out of his way, against his master’s implied commands, when
driving on his master’s business, he will make his master liable; but
if he was going on a frolic of his own, without being at all on his
master’s business, the master will not be liable.” Joel v. Morison
(1834) 6 Car. & P. 501, 503, 172 Eng. Rep. 1338, 1339.
Unfortunately, as an academic commentator observed in 1923,
“It is relatively simple to state that the master is responsible for his
servant’s torts only when the latter is engaged in the master’s
business, or doing the master’s work, or acting within the scope of
his employment; but to determine in a particular case whether the
servant’s act falls within or without the operation of the rule
presents a more difficult task.”
. . .
Whether there has been a deviation so material as to constitute
a complete departure by an employee from the course of his
employment so as to release employer from liability for employee’s
negligence, is usually a question of fact.
. . .
Here the evidence . . . raises triable issues on the factors
bearing on whether Evans completely abandoned the special
errand in favor of pursuing a personal objective.
A. Evans’s Intent
. . . The record contains evidence McDonald’s encourages its
employees and aspiring managers to show greater dedication than
simply working a shift and going home. O’Connor presented
McDonald’s operations and training manual and employee
handbook to demonstrate McDonald’s fosters employee initiative
and involvement in problem solving. Such evidence could
reasonably support a finding of “a direct and specific connection”
between McDonald’s business and the gathering at Duffer’s
because the gathering was consistent with the “family” spirit and
teamwork emphasized by McDonald’s in its communications with
employees. Such evidence could also reasonably support a finding
McDonald’s emphasis on teamwork made a group discussion of
McDonald’s business at Duffer’s house a foreseeable continuation
of Evans’s special errand. . . .
B. Nature, Time, and Place of Evans’s Conduct
McDonald’s contends the gathering at Duffer’s house after
normal business hours was an informal social function
unconnected to Evans’s special errand for his employer. However,
O’Connor submitted evidence suggesting the gathering benefited
McDonald’s, occurred at Evans’s fellow employee’s house
immediately after McDonald’s place of business closed, consisted
of continuation of employees’ discussion about the spring blitz,
and was inspired by the spirit of competition engendered by
McDonald’s. . . .
C. Work Evans Was Hired to Do
McDonald’s contends the asserted managerial discussions at
Duffer’s house went beyond the scope of work Evans was hired to
do. However, O’Connor introduced evidence suggesting Evans was
in training to become a manager and was expected to show
initiative in his work to be worthy of future promotion. Such
evidence raises an inference Evans’s participation in discussions at
Duffer’s house did not exceed the scope of his assigned work.
. . .
p. 405
p. 406
F. Amount of Time Consumed in Personal Activity
McDonald’s contends Evans stopped at Duffer’s home for four
hours on his own volition, for his own enjoyment and without
McDonald’s explicit direction or suggestion. However, O’Connor
presented evidence showing much of the discussion at Duffer’s
home was related to Evans’s employment at McDonald’s. Such
evidence raises a triable factual issue about the combination of
personal entertainment and company business at Duffer’s house.
“Where the employee may be deemed to be pursuing a business
errand and a personal objective simultaneously, he will still be
acting within the scope of his employment.”
G. Conclusion
The superior court found — and the parties here do not
challenge — Evans’s voluntary participation in the spring blitz until
after midnight constituted a special errand on McDonald’s behalf.
The question here is whether the gathering at Duffer’s to discuss
the spring blitz and socialize constituted a complete departure
from the special errand.
Because disputed factual questions and reasonable inferences
preclude determination as a matter of law of the issue whether
Evans completely abandoned his special errand, the court should
have denied McDonald’s motion for summary judgment.
The summary judgment is reversed.
CASE DISCUSSION QUESTIONS
1. What factors will be particularly important in determining
whether an employee is “on a frolic of his or her own”?
2. Why did the court reverse summary judgment in this case?
Does this mean the plaintiff will be able to hold McDonald’s liable for
his injury?
D. EMPLOYMENT LAW
Prior to the Industrial Revolution most workers in the United States
were either self-employed or worked as part of a family unit. After the
Civil War the percentage of people working for businesses grew
rapidly, and the courts applied the concept of employment “at will” to
allow employers to hire and fire employees without government
interference. When Congress first tried to curb the use of child labor
and set limits on the number of hours employees could be required to
work, the U.S. Supreme Court struck down such legislation on the
grounds that it violated the business owners’ substantive due
process right to “freedom of contract.”
However, in a series of cases beginning in 1934, the U.S. Supreme
Court rejected the right to “freedom of contract.” Today, with a few
limited exceptions (usually based on the number of employees), most
businesses in the United States are covered by federal and state
statutes that limit the freedom of employers with regard to their
employees’ working conditions. For example, statutes set a minimum
age at which someone is eligible to work, prohibit discrimination in
hiring and promotion, establish minimum wages, establish overtime
pay requirements, and impose safety standards for the workplace. In
addition, public employees, that is, those who work for units of local,
state, or the federal government also
p. 406
p. 407
receive protections provided by the Fifth and Fourteenth
Amendments’ due process and equal protection clauses.
Employment law covers a wide variety of federal and state
statutes and regulations affecting the hiring, firing, wages, working
conditions, and compensation for injured employees. It also covers
collective bargaining rights and retirement plans. Due to the limited
amount of space we can devote to this broad topic, we focus on the
major statutes prohibiting discrimination, giving only a brief overview
of other statutory protections and the common-law doctrine of at-will
employment.
1. Title VII: Discrimination Based on Race, Color, Religion,
Sex, or National Origin
Until 1964 it was perfectly legal for private employers to discriminate
against current and potential employees based on their race, sex, or
national origin. Congress dramatically changed this with the passage
of Title VII of the Civil Rights Act of 1964. With the passage of the
Civil Rights Act, Congress hoped to stop all forms of discrimination,
whether in voting, education, public accommodations, or
employment.
a. Introduction to Title VII
Title VII of the Civil Rights Act of 1964 deals specifically with
employment. It states that
[i] t shall be an unlawful employment practice for an employer (1) to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
9
such individual’s race, color, religion, sex, or national origin.
In Title VII Congress also established the Equal Employment
Opportunity Commission (EEOC) and delegated to it the task of
developing regulations to more specifically delineate what is unlawful
behavior. It also provided that persons who feel they have been
discriminated against must first file claims with the EEOC, or a similar
state agency, before taking their cases to court.
Because Congress relied on the interstate commerce clause to
justify the Civil Rights Act, it originally limited the definition of
employer to those with 20 or more employees. Since then Congress
has amended the statute to reduce that number to 15 employees.
Does that mean that employers with less than 15 employees can still
freely discriminate? Perhaps. The answer depends on state law as
Congress did not preempt the field. States are free to legislate in this
area so long as their statutory scheme does not conflict with the
federal prohibition. For example, in Michigan, no employer may
discriminate on the basis of race, color, national origin, sex, weight,
familial status, marital status, disability, or age.
p. 407
p. 408
The U.S. Supreme Court ruled that “employee” includes any
employee on the weekly payroll no matter how many days the
employee actually worked in a given week. Therefore, under the
federal statute an employer could have 15 part-time employees and
10
still be covered by Title VII. Note, however, that Title VII covers only
employees, not independent contractors. For example, in a Seventh
Circuit decision the court held that a staff doctor could not sue his
employing hospital, as he was an independent contractor and not an
11
employee of the hospital.
NETNOTE
The EEOC home page is located at eeoc.gov.
As originally proposed, Title VII would not have prohibited sex
discrimination. However, the bill was amended on the floor of the
house to add sex to the list of protected categories. The precise
meaning of “sex discrimination,” however, was and still is being hotly
debated. For example, recall our discussion in Chapter 2 of the U.S.
Supreme Court case of Gilbert v. General Electric. In that case the
Court held that pregnancy discrimination did not come within the
definition of sex discrimination under Title VII. In reaction to that
decision Congress passed the Pregnancy Discrimination Act of 1978,
which states that the phrase “because of sex” includes pregnancy,
12
childbirth, and related medical conditions. And it was not until 1998
that the United States Supreme Court decided that same-sex
harassment qualified as prohibited sex discrimination under Title
13
VII.
The current position of the EEOC is that “sex” discrimination also
includes discrimination on the basis of sexual orientation or gender
identity, although the Department of Justice takes the position that
sexual orientation is not covered. There is currently a split in the U.S.
Circuit Courts of Appeal on this issue. The Second, Sixth, and Seventh
Circuits have found that discrimination on the basis of sexual
orientation or gender identity does qualify as “sex” discrimination,
while the Eleventh Circuit has found that it does not. At the time this
text was written, the U.S. Supreme Court has agreed to hear
arguments addressing this issue.
This issue is of whether or not “sex” discrimination also includes
discrimination on the basis of sexual orientation and gender identity
is settled law in 21 states and the District of Columbia. In those
jurisdictions, the state legislatures
p. 408
p. 409
expressly prohibit discrimination on sexual orientation and gender
identity. The Supreme Court ruling will not affect those laws.
DISCUSSION QUESTION
2. As noted above, as originally proposed, Title VII would not have
prohibited sex discrimination. However, a congressman from the
South proposed an amendment from the floor to add sex to the list of
protected categories. Here is a brief excerpt from the debate on this
14
amendment:
Mr. Smith of Virginia. Mr. Chairman, this amendment is offered . . . with our desire to
prevent discrimination against another minority group, the women, but a very
essential minority group, in the absence of which the majority group would not be
here today. . . .
Mr. Cellar. Mr. Chairman, I heard with a great deal of interest the statement . . . that
women are in the minority. Not in my house. I can say as a result of 49 years of
experience . . . that I usually have the last two words, and those words are, “Yes, dear.” .
. . You know, the French have a phrase for it when they speak of women and men.
When they speak the difference, they say “vive la difference.”
I think the French are right.
Imagine the upheaval that would result from adoption of blanket language
requiring total equality. Would male citizens be justified in insisting that women share
with them the burdens of compulsory military service? What would become of
traditional family relationships? What about alimony? Who would have the obligation
of supporting whom? Would fathers rank equally with mothers in the right of custody
to children? What would become of the crimes of rape and statutory rape? . . . Would
the many State and local provisions regulating working conditions and hours of
employment for women be struck down? . . .
Mrs. George. . . . Women are protected — they cannot run an elevator late at night
and that is when the pay is higher.
They cannot serve in restaurants and cabarets late at night — when the tips are
higher — and the load, if you please, is lighter . . .
But what about the offices, gentlemen, that are cleaned every morning about 2 or 3
o’clock in the city of New York and the offices that are cleaned quite early here in
Washington, D.C.? Does anybody worry about those women? I have never heard of
anybody worrying about the women who do that work. . . .
The addition of that little, terrifying word “s-e-x” will not hurt this legislation in any
way. In fact, it will improve it. It will make it comprehensive. It will make it logical. It will
make it right.
a. What do you think Mr. Smith was trying to accomplish by
amending the statute to include sex discrimination?
b. In addition to the categories that Congress included in Title VII,
can you think of other categories that should have been included to
completely protect individuals from employment discrimination?
Should additional categories be added now?
Sex, along with race, color, religion, and national origin, are known
as protected categories. It is important to keep in mind, however, that
Title VII’s
p. 409
p. 410
prohibition against discriminating on the basis of these categories
does not mean that an employer can never make an employment
decision adverse to a member of a protected class. For example, an
employer can refuse to hire an African American because that person
lacks the skills required for the job, withhold a woman’s promotion
because of a bad attendance record, or fire a Muslim because that
employee was caught embezzling company funds. The key is the
reason behind the employer’s actions. A negative action against a
specific member of a protected class is unlawful only when the action
was taken because that person is a member of a protected class.
Proving this discriminatory motive is the most difficult part of the
typical employment discrimination case. While some employers may
admit to discriminatory motives, most employers will claim that their
decisions were based on legitimate considerations, such as
educational credentials or work record. The sections that follow will
identify the three major approaches the courts have taken to this
problem.
b. The Three Theories of Discrimination
Title VII prohibits both intentional and unintentional
discrimination. Intentional discrimination occurs when an employer
openly states a discriminatory reason for its decision or gives a
nondiscriminatory reason, but secretly bases its decision on a
discriminatory reason. In both situations, the employer has
intentionally discriminated. It is simply harder to prove the
discrimination when the employer hides the true reason for its
actions. In the second type of discrimination, the employer does not
intend to discriminate, but one of its neutral policies, such as a
requirement that all applicants have a college degree, excludes a
large number of otherwise qualified minorities or females.
The U.S. Supreme Court has developed three theories to help
plaintiffs prove that discrimination has occurred. In cases of
intentional discrimination, the courts use the theories of overt
discrimination and disparate treatment. In cases of unintentional
discrimination, the courts use the theory of disparate impact.
(1) Overt intentional discrimination and the BFOQ defense
The first and most obvious type of discrimination is called overt
discrimination. This occurs when an employer states that it will hire
only members of a particular sex, religion, or national origin. Because
the discrimination is done openly, this is called overt discrimination.
When such cases arise, Title VII contains a limited exception when
sex, national origin, or religion is “a bona fide occupational
qualification reasonably necessary to the normal operation of that
15
particular business or enterprise.” Notice how specific this provision
is. First, it applies only to religion, sex, and national origin
discrimination. Race can almost never be a bona fide job
16
requirement. Second, the occupational qualification must be
“reasonably necessary”
p. 410
p. 411
to the “normal operation” of that “particular” business. Figure 10-8
shows what the plaintiff in an overt discrimination case must prove
and the requirements of the defendant’s rebuttal.
Figure 10-8 Summary of the Order of Proof in Overt Discrimination Cases
A commonly cited example of a valid BFOQ defense is when an
employer limits applicants for a locker room attendant’s job in a
women’s locker room to females, and jobs in a men’s locker room to
males. The defense becomes more problematic when, for example,
the owner of a Chinese restaurant argues that being Chinese is a
valid BFOQ for working as a waiter in order to meet customer
expectations. Similarly, an upscale restaurant might argue that its
clientele expects to be assisted only by a male maître d’.
In the landmark case of Diaz v. Pan American Worlds Airways, 17
a
class action lawsuit was brought claiming that being female was not
a bona fide occupational qualification for the job of a flight cabin
attendant. Despite Pan American Worlds Airways’ claim that women
were better at the essential duties of a flight attendant and that
studies showed that passengers preferred female flight attendants,
the court found that
. . . the word “necessary” in section 703(e) requires that we apply a business necessity
test, not a business convenience test. That is to say, discrimination based on sex is valid
only when the essence of the business operation would be undermined by not hiring
members of one sex exclusively. . . .
Similarly, we do not feel that the fact that Pan Am’s passengers prefer female
stewardesses should alter our judgment. On this subject, EEOC guidelines state that a
BFOQ ought not be based on “the refusal to hire an individual because of the preferences
of co-workers, the employer, clients or customers . . .” 29 CFR § 1604.1(iii).
. . . While we recognize that the public’s expectation of finding one sex in a particular
role may cause some initial difficulty, it would be totally anomalous if we were to allow
the preferences and prejudices of the customers to determine whether the sex
discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act
was meant to overcome. Thus, we feel that customer preference may be taken into
account only when it is based on the company’s inability to perform the primary function
18
or service it offers.
p. 411
p. 412
DISCUSSION QUESTIONS
3. In what types of jobs, if any, do you think sex should be treated
as a BFOQ?
4. When casting for the musical Hamilton in 2016, the director did
not take race or sex into account when hiring and was lauded for not
playing into stereotypes, but instead opening roles for diverse actors.
Are there legal implications to using race, sex, religion, national origin,
or color as a BFOQ in casting? Should there be?
(2) Intentional discrimination — disparate treatment
In most cases of alleged discrimination the employer’s
discrimination is not overt, that is, the employer does not openly state
that it is discriminating on the basis of one of the protected
categories. Rather, the employer argues that its reasons are totally
justified and nondiscriminatory. For example, an employer might
argue that a decision to fire an employee was based on the worker’s
poor job performance rating rather than on the worker’s race, color,
sex, religion, or national origin. The courts call this much more
common type of employment discrimination disparate treatment,
because the plaintiff is claiming to have been treated differently than
other applicants or employees.
But if the employer claims the decision was based on something
other than the person’s membership in a protected group, how can
the plaintiff prove that the action was really based on a discriminatory
reason? This question was addressed by the U.S. Supreme Court in a
case involving the McDonnell Douglas Corporation’s decision not to
reinstate a laid-off worker. The worker claimed the decision not to
rehire him was because of his race, while the employer argued it was
based on his illegal labor union activities, which included his
involvement in a “stall in.” The Court grappled with the issue of how
such cases should be presented and proven and in the process laid
down guidelines for future disparate treatment cases. The Court
looked beyond the employer’s ability to articulate a legitimate,
nondiscriminatory reason for not reinstating the laid-off worker. The
Court held that if the articulated reason could be proven to be merely
a pretext for the hiring, that discrimination could still be proved.
Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the
inquiry must not end here. While Title VII does not, without more, compel rehiring of
respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for
the sort of discrimination prohibited by § 703(a)(1). On remand, respondent must . . . be
afforded a fair opportunity to show that petitioner’s stated reason for respondent’s
rejection was in fact pretext. Especially relevant to such a showing would be evidence
that white employees involved in acts against petitioner of comparable seriousness to
the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to
rehire one who was engaged in unlawful, disruptive acts against it, but only if this
criterion is applied alike to members of all races.
Other evidence that may be relevant to any showing of pretext includes facts as to the
petitioner’s treatment of respondent during his prior term of employment; petitioner’s
reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general
policy and practice with respect to minority employment. On the latter point, statistics
as to petitioner’s employment policy and practice may be helpful to a determination
p. 412
p. 413
of whether petitioner’s refusal to rehire respondent in this case conformed to a general
pattern of discrimination against blacks. . . . In short, on the retrial respondent must be
given a full and fair opportunity to demonstrate by competent evidence that the
presumptively valid reasons for his rejection were in fact a coverup for a racially
19
discriminatory decision. . . .
Figure 10-9 Three-Part McDonnell Douglas Analysis
See Figure 10-9 for a summary of the process outlined in
McDonnell Douglas and the cases that have followed it. Note
especially the four elements that the plaintiff must prove as part of
the prima facie case. This four-part test can also be adjusted to fit
firing and failure-to-promote cases.
Once the plaintiff has established this prima facie case, the
employer has to articulate a valid reason for not hiring, for not
promoting, or for firing the plaintiff. Note that this is a burden of
production as opposed to a burden of proof. It means the employer
will lose the case if it cannot come up with a reason that does not
involve discrimination based on a protected class criterion, but it does
not mean the defendant has the burden of proving that the reason
offered is true. After this alternative reason is presented, the plaintiff
has the burden of proving by a preponderance of the evidence that
the employer’s reason is really just a pretext and that the employer
actually acted with a discriminatory intent. See Figure 10-9.
Because the focus in a discriminatory treatment case remains on
the actual intent of the defendant, any evidence that the employer
was motivated by a discriminatory animus is relevant. For example, in
20
one case involving a nationwide professional accounting firm, a
female senior manager became a candidate for partnership. When
she failed to get the promotion, the rejected employee sued.
Supporters of her candidacy described her as “an outstanding
professional” with
p. 413
p. 414
a “strong character, independence and integrity.” However, those who
denied her the promotion appeared to react negatively to her
personality because she was a woman. Evidence that the Court
looked at in making this determination included the fact that one of
the partners suggested she “take a course at charm school.” In
addition, “[s]everal partners criticized her use of profanity; in response,
one partner suggested that those partners object to her swearing
21
only ‘because it[’]s a lady using foul language.’ ” Finally, one of the
partners, in advising the female candidate how to advance her
candidacy, suggested that she should “walk more femininely, talk
more femininely, dress more femininely, wear make-up, have her hair
22
styled, and wear jewelry.” Such “smoking gun” evidence can be used
by the plaintiff to convince the court that any proffered
nondiscriminatory reason for her rejection is really pretext.
In 1991 Congress made it easier for plaintiffs to win mixed motive
cases by amending Title VII to add this provision: “[A] n unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other
23
factors also motivated the practice.”
(3) Unintentional discrimination — disparate impact
The two types of discrimination described above both involve
intentional discrimination, that is, discrimination that was done
because of the person’s race, color, religion, sex, or national origin.
Title VII also makes it unlawful for an employer to
(2) limit, segregate, or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,
24
color, religion, sex, or national origin.
This provision provides the basis for the third type of
discrimination, disparate impact. Under disparate impact analysis
there is no need to prove that the employer intentionally
discriminated. Instead, the plaintiff must show that a neutral
employment practice deprived the plaintiff of “employment
opportunities” because the practice had a disproportionate impact on
the plaintiff’s protected class. This theory of discrimination was
originally developed by the U.S. Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424 (1971). Prior to the passage of the Civil
Rights Act of 1964, Duke Power openly discriminated against African
Americans. Once the Civil Rights Act of 1964 was passed, however,
Duke Power Co. required a high school education or the passage of a
standardized intelligence test as a condition of employment or
transfer. The Court of Appeals held that the Company had adopted
these new requirements
p. 414
p. 415
without any intention to discriminate. In its review of the case, the
United States Supreme Court stated:
Figure 10-10 Summary of the Order of Proof in Disparate Impact Cases
We do not suggest that either the District Court or the Court of Appeals erred in
examining the employer’s intent; but good intent or absence of discriminatory intent
does not redeem employment procedures or testing mechanisms that operate as “built-
25
in headwinds” for minority groups and are unrelated to measuring job capability.
. . . .
Nothing in the Act precludes the use of testing or measuring procedures; obviously
they are useful. What Congress has forbidden is giving these devices and mechanisms
controlling force unless they are demonstrably a reasonable measure of job
performance. Congress has not commanded that the less qualified be preferred over the
better qualified simply because of minority origins. Far from disparaging job
qualifications as such, Congress has made such qualifications the controlling factor, so
that race, religion, nationality, and sex become irrelevant. What Congress has
commanded is that any tests used must measure the person for the job and not the
26
person in the abstract.
In 1991, Congress amended Title VII to codify the concepts of
“business necessity” and “job related” as they had been developed in
Griggs. 27
DISCUSSION QUESTIONS
5. One day a Fox invited a Stork to dinner and, being disposed to
divert himself at the expense of this guest, provided nothing for the
entertainment but some thin soup in a shallow dish. This the Fox
lapped up very readily, while the Stork, unable to gain a mouthful with
her long narrow bill, was as hungry at the end of dinner as at the
beginning. The Fox meanwhile professed his regret at seeing his
guest eat so sparingly and feared that the dish was not seasoned to
her liking. The Stork said little but begged that the Fox would do her
the honor
p. 415
p. 416
of returning her visit. Accordingly, he agreed to dine with her on the
following day. He arrived true to his appointment, and the dinner was
ordered. But when it was served up, he found to his dismay that it
was contained in a narrow-necked vessel, down which the Stork
readily thrust her long neck and bill, while the Fox was obliged to
content himself with licking the neck of the jar.
Is this fable about disparate treatment or disparate impact? Why?
6. In 2016, members of U.S. Women’s Soccer (WNT) filed an
EEOC complaint against the United States Soccer Federation, Inc.
(USSF), for violations of the Equal Pay Act and a class action
complaint for violations of Title VII of the Civil Rights Act of 1964. In
2018, the EEOC gave U.S. Women’s Soccer a right to sue letter and a
complaint was filed in U.S. District Court. The complaint claims that
USSF has a policy and practice of discriminating against members of
the WNT by providing less favorable pay and terms and conditions of
employment. What are some of the factors that the courts should
look at in determining whether or not discrimination has occurred?
c. Harassment
As we have seen, Title VII protects employees from discrimination
in hiring and firing decisions. It also prohibits various forms of
harassing behavior if the harassment is based on the person’s
membership in a protected class. While most of the cases have
involved forms of sexual harassment, Title VII also prohibits
harassment based on race, color, religion, or national origin.
The U.S. Supreme Court first addressed the issue of sexual
harassment in 1986 in Meritor Savings Bank v. Vinson. 28
In that case
the Court held that, even in the absence of a tangible job loss (such
as a failure to receive a raise), an employee can maintain an action for
unlawful sex discrimination if the employer creates a “hostile or
abusive work environment.” The Court noted that
[s]exual harassment which creates a hostile or offensive environment for members of
one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial
harassment is to racial equality. Surely, a requirement that a man or woman run a
gauntlet of sexual abuse in return for the privilege of being allowed to work and make a
29
living can be as damaging and disconcerting as the harshest of racial epithets.
Current EEOC guidelines detail two types of prohibited sexual
harassment: quid pro quo sexual harassment and the creation of a
hostile work environment. Quid pro quo harassment involves an
exchange of sexual favors for employment benefits. An example
would be when an employee is denied a promotion because she
refused to have sex with her supervisor. An intimidating, hostile, or
offensive work environment can be created by
[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature . . . [that have] the purpose or effect of unreasonably
30
interfering with an individual’s work performance. . . .
p. 416
p. 417
It is not necessary for the victim in a hostile work environment
case to prove it seriously harmed his or her psychological well-
31
being. It is enough that “a reasonable person” would find it to be
hostile or abusive and that the victim perceived the environment to be
abusive. The Court noted that “Title VII comes into play before the
32
harassing conduct leads to a nervous breakdown.”
Although the most common form of sexual harassment involves
male supervisors or co-workers harassing females, the courts have
ruled that the law also applies to females harassing males, males
harassing other males, and females harassing other females. In
Oncale v. Sundowner Offshore Service, Inc. the U.S. Supreme Court
held that same-sex sexual harassment is actionable under Title VII so
long as there is a proven connection between the sexual harassment
and gender discrimination; that is, the plaintiff must still be able to
33
prove the harassment was “because of” the person’s gender. The
Court noted that while same-sex harassment was not the “primary
evil” Congress hoped to eliminate through Title VII, it was a
34
“reasonably comparable evil.”
A hostile work environment may be created not only by the
actions of an employer or a fellow employee, but also by a customer.
In EEOC v. Costco Wholesale Corporation an employee, Dawn Suppo,
reported to her supervisors that she was being followed and
harassed by a customer, Thad Thompson. The store managers spoke
with Thompson, but the harassment continued, and Suppo took a
medical leave. When she did not return from medical leave, she was
fired. The jury found that by its failure to respond appropriately,
Costco failed to protect Suppo from harassment. The Seventh Circuit
Court of Appeals agreed and remanded the case to the District Court
35
for an award of back pay.
There are still many unanswered questions in the area of sexual
harassment, such as how to distinguish between voluntary sexual
activity and “unwelcome” sexual advances. Also, from whose point of
view should a court judge whether a “hostile or offensive
environment” was created? The U.S. Court of Appeals for the Ninth
Circuit determined that when the alleged victim was female, the
appropriate standard was that of a “reasonable woman” rather than
that of a “reasonable person.” The court acknowledged that applying
this standard might sometimes mean classifying conduct as
unlawful when the sexual harasser does not even realize he is
creating a hostile working environment. However, the court noted that
“Title VII is not a fault-based tort scheme. ‘Title VII is aimed at the
consequences or effects of an employment practice and not at the . .
36
. motivation’ of co-workers or employers.”
p. 417
p. 418
DISCUSSION QUESTIONS
7. Do you agree that in cases of sexual or racial harassment the
correct test is whether a reasonable person of that sex or race would
have been offended?
8. Do you think it is appropriate to classify conduct as unlawful
sexual harassment even when the harasser does not realize his
conduct is creating a hostile work environment?
9. Erin Wade is a chef who created the restaurant Homeroom, a
“mac & cheese” restaurant in Oakland, California. She initiated a color-
coded system for her servers to signal when they were being
harassed by customers. Yellow indicates that there may be a
problem, orange indicates that a manager needs to take over the
table, and red indicates that the customer needs to be ejected from
the restaurant. The server may tell a manager “I have an orange on
37
table 5,” and the manager will become the server for table 5. What
do you think of this policy? Can you think of other ways in which a
business could protect its employees from customer harassment?
d. Affirmative Action
Affirmative action raises very fundamental and controversial
questions about what constitutes equality and fairness. Many
disagree as to whether employers should take factors such as race
and sex into consideration in hiring and promotions in order to
achieve a more diverse workforce that more closely approximates the
balance of these groups in society.
In addition to a basic disagreement as to the value of affirmative-
action, there is much confusion in this area as to what people believe
affirmative action entails. Many use the term very loosely to mean a
quota system or any other preferential treatment accorded to
otherwise unqualified applicants. However, this reflects a basic
misunderstanding of the law. Permissible affirmative-action plans
cannot involve quotas or preferences for unqualified applicants over
qualified applicants. In fact, any type of quota system is illegal, unless
38
mandated as part of a court order based on an employer’s own
discriminatory actions. A valid affirmative-action plan only allows an
employer to use race or gender as a “plus factor” when choosing
between two equally qualified applicants.
The first major affirmative-action employment case to come to
the U.S. Supreme Court was United Steelworkers of America v.
Weber. 39
In that case the justices considered the extent to which Title
VII prohibited the use of racial criteria in a “voluntary” affirmative-
action plan. The Court acknowledged that a literal reading of Title VII
might lead to the conclusion that employers could never voluntarily
make decisions based on race. But rather than applying such a literal
interpretation, the majority of the justices chose to focus on the
legislative
p. 418
p. 419
intent behind the statute and concluded that prohibiting all voluntary
race-conscious employment decisions would be contrary to the
40
legislation’s purpose of increasing employment opportunities. On
that basis, the Court ruled that the special training program Kaiser
Aluminum had voluntarily created did not violate Title VII.
However, not all race-conscious decisions, even in the name of
affirmative action, are permissible. To determine if a plan is
permissible under Title VII, the Court developed a two-pronged test.
First, the plan must be “designed to eliminate conspicuous racial
41
imbalance in traditionally segregated job categories.” In applying
this first prong to the Kaiser program, the Court noted the historic
exclusion of blacks from craft positions and that Kaiser’s training
program was specifically designed to remedy this history of
discrimination. Second, the plan must “not unnecessarily trammel the
42
interests of the white employees.” Not only were no employees
terminated, but all employees were given the opportunity to learn new
job skills through the plan’s training program. While 50 percent of the
positions were reserved for minority candidates, the other 50 percent
were open to white workers, thereby giving them a job benefit that
they would not have had but for the plan. Finally, the plan was
designed to be temporary and would cease once racial imbalance
was eliminated.
Eight years later, in Johnson v. Transportation Agency of Santa
Clara County, 43
the Supreme Court applied Weber’s two-pronged test
and upheld a highway department’s affirmative-action program to
promote women into management positions. At the time the
employer adopted its voluntary affirmative-action plan, of the 238
workers in its “skilled craft” positions, none were women. A skilled
craft position opened, and there were 12 applicants. Nine were
interviewed and scored based on the interview. Seven of the
applicants scored a 70 or higher, the lowest score an applicant could
receive to be deemed qualified. Two men received a 75. A woman
scored 73. The agency’s director did not perceive the two-point
difference as significant when viewed in light of the total work history
of the three top applicants. Using gender as one of the factors
considered, he offered the position to the female applicant, Johnson.
Applying the two-pronged test it had developed in Weber, the
Court found that the plan was justified. First, there was a manifest
imbalance of females in the workplace, and second, the plan did not
unduly trammel the rights of non-minorities or men. The Court noted
that the rejected male applicant had “no absolute entitlement to the
road dispatcher position. Seven of the applicants were classified as
qualified and eligible, and the Agency Director was authorized to
promote any of the seven. Thus, denial of the promotion unsettled no
44
legitimate, firmly rooted expectation on the part of petitioner.”
As exemplified in the Weber and Johnson cases, in the
employment law context involving private employers, challenges to
an affirmative-action plan have arisen most often when a white male
has lost an employment opportunity and
p. 419
p. 420
has sued under Title IV, alleging so-called reverse discrimination. The
Court has stated that when an affirmative-action plan is challenged,
the proper approach is to follow the analytical framework set forth in
McDonnell Douglas Corp. v. Green.
Figure 10-11 Analysis of Affirmative-Action Plans under Title VII
Once a plaintiff establishes a prima facie case that race or sex has been taken into
account in an employer’s employment decision, the burden shifts to the employer to
articulate a nondiscriminatory rationale for the decision. The existence of an affirmative-
action plan provides such a rationale. If such a plan is articulated as the basis for the
employer’s decision, the burden shifts to the plaintiff to prove that the employer’s
45
justification is pretextual and the plan is invalid.
Figure 10-11 summarizes how courts evaluate affirmative-action
plans under Title VII. A valid affirmative-action plan must be designed
to remedy past discrimination, and the plan must not unduly override
the rights of other employees. First, the employer must determine if
there is an imbalance in the employer’s workforce as compared to the
relevant labor market in “traditionally segregated job categories.”
Next, to ensure that the plan does not “unnecessarily trammel” the
rights of other individuals, any applicant who receives preferential
treatment must be qualified for the job. While race or gender may be
used as a “plus” factor, there can be no absolute bar to employment
based on race or gender. For example, courts are more inclined to
support affirmative-action plans that involve hiring than ones that
involve layoffs, because no particular candidate is entitled to any
particular job, whereas layoffs are imposed on specific individuals.
Finally, the plan must be temporary to remedy past discrimination,
not permanent in order to maintain a diverse workforce.
It is important to remember that Title VII applies to both private
and public employers. Public employers must also obey the
constraints of the equal protection clause of the Fourteenth
Amendment (state and local governmental employers) and
p. 420
p. 421
the due process clause of the Fifth Amendment (federal
governmental employers). Therefore, public employers may have to
defend their affirmative-action plans on both constitutional and
statutory grounds.
When undergoing a constitutional challenge to an affirmative-
action plan involving race, the Court applies a standard known as
strict scrutiny. Under that standard a public employer can justify its
use of a race-conscious plan only for the very strongest of reasons.
The plan must “serve a compelling governmental interest, and . . . be
46
narrowly tailored to further that interest.” While it is not clear what
will satisfy the strict scrutiny standard, the Court has held that a
47
desire to remedy general societal discrimination is not sufficient.
This is in contrast to its decisions under Title VII, where it has found
plans permissible even if there is no showing that the employers
48
themselves were responsible for past discrimination.
DISCUSSION QUESTIONS
10. President Johnson stated: “[I] t is not enough just to open the
gates of opportunity. All our citizens must have the ability to walk
through those gates.” Do you think this still provides a valid rationale
for affirmative action?
11. Should affirmative-action plans be used only to remedy past
discrimination, or should employers be allowed to use them to create
a diverse workforce, even absent any evidence of past discrimination?
For example, what if a car dealership located in a minority
neighborhood could show that it would sell more cars if it had a more
diverse sales force? Should the dealership be allowed to treat race as
a necessary job requirement? Would your answer be different if the
employer was a city, and it was looking to hire new police officers
whose main duties would require them to spend time in a minority
neighborhood where in the past white police officers had been
attacked?
e. Damage Awards and Other Relief under Title VII
Until 1991, a plaintiff prevailing in a Title VII case was entitled to a
court order enjoining the employer from engaging in unlawful
employment practices and requiring affirmative action as appropriate,
including reinstatement or hiring with or without back pay and other
equitable relief. Congress amended Title VII in the Civil Rights Act of
1991 so that in cases of intentional discrimination the complaining
party may also recover compensatory and punitive damages. Punitive
damages are possible if the plaintiff can show that the employer
acted “with malice or reckless indifference” to his or her federally
protected rights. Compensatory damages can include “future
pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other
p. 421
p. 422
49
nonpecuniary losses.” However, damages are limited based on the
size of the employer, from $50,000 for the smallest employers to
$300,000 for those with over 500 employees.
In order to recover damages, a plaintiff must file a claim with the
EEOC either 180 or 300 days, depending on the state, after the
alleged unlawful employment practice has occurred. Compared to
other statutes of limitations for common-law tort and contract
claims, this is a very short period of time. Congress apparently chose
to balance the new burden placed on employers with the guarantee
that employees would have to act quickly to maintain any claim of
discrimination.
As with all types of statutes of limitations, it is frequently
necessary to determine when the plaintiff became aware of the
alleged violation. In a highly controversial 2007 decision, the U.S.
Supreme Court affirmed the overturning of a jury verdict that had
awarded an employee $223,776 in back pay, $4,662 in compensatory
damages, and more than $3 million in punitive damages. The Court
reasoned that Ms. Ledbetter, the plaintiff, had not met the statutory
50
time limit for filing her claim.
Ms. Ledbetter had filed her claim as soon as she found out that
years before supervisors had discriminated against her based on her
sex, resulting in her being given a lower pay level. She argued that
every year since then those past discriminatory decisions continued
to affect the amount of her pay, creating an ongoing basis for her
lawsuit. However, the Court held that the statute of limitations
started, not when she found out about the discrimination (which was
within the 180-day filing period), but rather when it occurred (years
ago). Hence, she could no longer pursue her case.
In dissent, Justice Ginsburg argued that the statute should be
read in light of its remedial purpose and not given a “cramped
51
interpretation.” She ended by prophetically declaring that “the
Legislature may act to correct this Court’s parsimonious reading of
52
Title VII.” Within a month of the Court’s decision, the House of
Representatives had introduced and soon passed an amendment to
Title VII, clarifying that the time for filing compensation claims begins
either when the original discriminatory act occurs or at any time an
individual is “affected by application of a discriminatory
compensation decision or other practice, including each time wages,
benefits, or other compensation is paid, resulting in whole or in part
53
from such a decision or other practice.” The bill received its final
passage through Congress in early 2009 and was the first bill signed
into law by President Obama.
This action illustrates the basic concept we introduced in Chapter
3: When interpreting a statute, the courts are simply making their best
guess as to the legislative intent. If they guess wrong, the legislature
(in this case, Congress) is free to amend the statute. The Ledbetter
decision now signifies the third time that the
p. 422
p. 423
Supreme Court has “guessed” wrong about Congress’s intentions as
to Title VII, resulting in a congressional amendment to the statute.
f. Retaliation
In addition to protecting those who are discriminated against
because of race, color, religion, sex, or national origin, Title VII also
protects those who find their employment status adversely affected
because they have opposed an employer’s unlawful practices.
Without such protection, employees might be hesitant to complain
about an activity that Title VII prohibits, such as race or sex
discrimination. But what if instead of firing the employee who
complains, the employer fires the employee’s fiancé? Miriam
Regalado had filed a sex discrimination charge with the EEOC against
her employer, North American Stainless (NAS). Three weeks later
NAS fired Mrs. Regalado’s fiancé, Eric Thompson. When the fiancé
sued NAS claiming unlawful retaliation, the company argued that the
Title VII protections against retaliation did not apply to him as he was
not the one who had complained about unlawful discrimination. But
the Supreme Court disagreed. The Court held that the fiancé fell
within the zone of interests protected by Title VII. Thompson was an employee of NAS,
and the purpose of Title VII is to protect employees from their employers’ unlawful
actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim
of the retaliation — collateral damage, so to speak, of the employer’s unlawful act. To the
contrary, injuring him was the employer’s intended means of harming Regalado. Hurting
54
him was the unlawful act by which the employer punished her.
2. ADEA: Age Discrimination
In 1967 Congress passed the Age Discrimination in Employment Act
55
(ADEA). This applies to employers with twenty or more employees
56
and to governmental entities regardless of size. This act prohibits
employers from discriminating against persons aged 40 or older
because of their age. While the protected classes found under Title
VII are generally described by immutable characteristics, such as
race or sex, everyone will move into the protected age category. In
fact, according to the Bureau of Labor Statistics, by 2028, 25 percent
57
of the labor force will be 55 years or older.
As with other forms of discrimination, enforcement of the ADEA
involves proof problems. In case of alleged disparate treatment
employees can use a modified version of the McDonnell Douglas
four-part analysis:
1. The plaintiff belongs to the protected class of persons 40 years
of age or older;
2. The plaintiff applied for a job for which the plaintiff was
qualified;
p. 423
p. 424
3. The plaintiff was rejected; and
4. The position remained open or was filled by someone
substantially younger than the plaintiff.
Note that the fourth part of this test has been modified from
requiring “someone not in the protected class” to “someone
substantially younger than the plaintiff.” Without this change, if the
person who replaces the plaintiff is younger than the plaintiff but is
also from the protected age group, the plaintiff would be left without a
cause of action. The U.S. Supreme Court was faced with that
situation in O’Connor v. Consolidated Coin Caterers Corp. 58
The
Court was called on to decide if the ADEA was violated when the
Consolidated Coin Caterers Corporation fired a 56-year-old middle
manager and then gave his job to a 40-year-old. The company argued
that by replacing one protected class individual with another, it had
not violated the law. The Court, however, rejected this argument and
ruled that the law had been violated because the evidence showed
that O’Connor had been fired because of his age.
Or to put the point more concretely, there can be no greater inference of age
discrimination (as opposed to “40 or over” discrimination) when a 40 year-old is replaced
by a 39 year-old than when a 56-year-old is replaced by a 40 year-old. Because it lacks
probative value, the fact that an ADEA plaintiff was replaced by someone outside the
protected class is not a proper element of the McDonnell Douglas prima facie case.59
Therefore, the Court concluded that age discrimination can be more
reliably indicated by a showing that the replacement is substantially
younger than by a showing that the replacement is not a member of
the protected class.
Because the ADEA prohibits discrimination on the basis of age and not class
membership, the fact that a replacement is substantially younger than the plaintiff is a
far more reliable indicator of age discrimination than is the fact that the plaintiff was
60
replaced by someone outside the protected class.
This statement would seem to indicate that the replacement
worker must be substantially younger than the plaintiff. However, the
Tenth Circuit has ruled that all that is necessary is proof that age was
the motivating factor. The court found that a 57-year-old replaced by
a 52-year-old could win an age discrimination case where he had
61
direct proof that the reasons given for his firing were pretextual.
While it was clear that an older worker could bring a claim for
disparate treatment under the ADEA, for many years there had been a
split in the circuits regarding whether they could bring a claim using
the disparate impact theory. For example, when seeking to decrease
operating expenses, employers often choose to reduce the number of
highest-paid workers. As increased pay and
p. 424
p. 425
longevity at work tend to run together, such work reductions raise the
issue of disparate impact. The circuits were split on whether the
ADEA allowed for such claims based on disparate impact.
The Supreme Court resolved this issue by finding that the ADEA
does allow for claims based on disparate impact. In Smith v. City of
Jackson, 62
the city of Jackson decided to give all police officers a
raise, but to give proportionately more money to those police officers
with less than five years’ service in an attempt to bring starting
salaries up to the regional average. The older police officers sued,
alleging that the policy had a disparate impact, because under the
policy most of the older officers would get a smaller percentage raise
than the younger officers.
As you know, under Title VII, plaintiffs in a disparate impact case
must prove that a facially neutral plan or practice has the effect of
disproportionately impacting a protected group of employees, such
as women or minorities. Because the ADEA’s language outlawing
discrimination mirrors that of Title VII,
63
in Smith v. City of Jackson
the Supreme Court held that the older police officers could bring a
claim under the disparate impact theory of discrimination. Unlike Title
VII, however, where an employer can justify its actions only by proving
business necessity, under the ADEA, employers only need to show
that their practice advances some reasonable business purpose. This
is because, unlike Title VII, the ADEA has what is known as the RFOA
provision — if an employer can prove there was a “reasonable factor
other than age” in support of its policy, it has a valid defense even if it
cannot show that the practice is a business necessity.
Applying this provision, the Supreme Court held that
the disparate impact is attributable to the City’s decision to give raises based on
seniority and position. Reliance on seniority and rank is unquestionably reasonable given
the City’s goal of raising employees’ salaries to match those in surrounding
communities. . . . [T]he city’s decision to grant a larger raise to lower echelon employees
for the purpose of bringing salaries in line with that of surrounding police forces was a
decision based on “reasonable factors other than age” that responded to the City’s
legitimate goal of retaining police officers.
While there may be other reasonable ways for the City to achieve its goals, the one
selected was not unreasonable. Unlike the business necessity test, which asks whether
there are other ways for the employer to achieve its goals that do not result in a
disparate impact on a protected class, the reasonableness inquiry includes no such
64
requirement.
Having found that the city had met its burden of defending its
actions, the Court affirmed dismissal of the case. While it is now clear
that older workers may bring a discrimination lawsuit based on the
theory of disparate impact, they can be difficult to win. In Gross v.
FBL Financial Services, Inc. 65
the Court held:
a plaintiff bringing a disparate impact claim pursuant to the ADEA must prove, by a
preponderance of the evidence, that age was the “but-for” cause of the challenged
p. 425
p. 426
adverse employment action. The burden of persuasion does not shift to the employer to
show that it would have taken the action regardless of age, even when a plaintiff has
66
produced some evidence that age was one motivating factor in that decision.
Therefore, as long as the employer can articulate a valid, non-
discriminatory reason (in this case, reassigning an employee during
corporate restructuring to a position better suited to that employee’s
skills), the courts will find for the employer, even if age had also been
a factor in the employer’s decision.
NETNOTE
The official government website that maintains information on the
Americans with Disabilities Act can be found at www.ada.gov.
Another good source of information is the Job Accommodation
Network at askjan.org.
3. ADA: Disability Discrimination
In 1990 Congress enacted the Americans with Disabilities Act
67
(ADA) a federal statute designed to protect disabled people from
being discriminated against in a variety of situations, including
employment. Its employment provisions afford protections that are
similar to those found in Title VII and, as is true under Title VII, applies
to employers with 15 or more employees. Under the ADA an employer
cannot discriminate against a qualified individual with a disability who
can perform the essential job functions if reasonable
accommodations are possible. Therefore, cases in this area focus on
three issues: (1) defining “disability,” (2) determining what constitutes
essential job functions, and (3) resolving what is required by way of a
reasonable accommodation without creating an undue hardship.
For years, the most challenging part of bringing a successful
employment discrimination suit under the ADA was the difficulty in
getting over the initial hurdle of proving that the plaintiff was disabled.
The statute defines a disability as “a physical or mental impairment
that substantially limits one or more major life activities.” The
determination of whether an individual has a disability is made on a
case-by-case basis and is based on whether the person
■ has a physical or mental impairment that substantially limits
one or more major life activities,
■ has a record of such an impairment, or
■ is regarded as having such an impairment.
p. 426
p. 427
In 2008, Congress amended the statute to make it clear that it
meant for “major life activities” to include a broad range of categories
and even listed certain impairments, such as autism, partially or
completely missing limbs, cancer, and bipolar disorder, as ones that
should “virtually always” be considered disabilities. In addition, it
amended the statute to make it clear that whether a person has a
disability must be decided without taking into account mitigating
factors, such as prosthetic devices or medications. The only
68
exception is for glasses and contact lenses. These amendments to
the statute most likely mean that the focus of most litigation will no
longer be on whether the plaintiff is disabled, but instead will shift to
the other two factors, that is, whether the individual is qualified to
perform the essential job functions and whether the employer must
provide reasonable accommodations.
A qualified individual with a disability is an individual, who
despite the disability, can still perform the essential job functions. For
example, being in a wheelchair would not prevent someone from
performing all the essential job functions of an accountant. However,
things become a bit more difficult when the disability results in
behavior that interferes with the ability of the employee to adequately
perform. For example, while an employer could not refuse to hire nor
fire an employee for being an alcoholic, the employer could fire an
employee for drinking while at work. Many areas are even less clear-
cut, such as regular job attendance, which is usually seen as an
essential job function. The courts are divided on whether
absenteeism disqualifies a claimant under the statute if the claimant
can show that the absenteeism is due to a disability.
Finally, the employer is only required to make a reasonable
accommodation. An accommodation is not considered reasonable if
it would create an undue hardship for the employer. In such situations
the employer is excused from compliance. Examples of reasonable
accommodations might include providing flexible working hours or
installing a ramp to make an office wheelchair accessible. These
cases are very fact based, as the courts attempt to determine
whether a particular accommodation will involve significant difficulty
or expense. For example, while employers normally might not be
required to pay for employee parking, one court said that the
reasonableness of such a determination could only be made after a
full analysis of the employer’s geographic location and financial
69
resources.
4. Other Statutory Protections
While the focus of this chapter has been on antidiscrimination laws,
there are a plethora of other federal and state statutes that protect
workers’ rights. Here we provide a brief overview of some of the most
important federal statutes.
a. Regulation of Hours and Wages
After a great amount of congressional debate over multiple
versions of the bill, President Franklin Roosevelt signed the Fair Labor
Standards Act into law
p. 427
p. 428
in 1938. It established a federal minimum wage, overtime pay,
recordkeeping, and youth employment standards in the private sector
and in federal, state, and local governments.
The most significant sections of the FLSA established a minimum
wage and required employers to pay a rate (not less than one and
one-half times the regular rate of pay) for any hours non-exempt
70
employees worked beyond 40 hours in a week. The child labor
section was enacted to ensure that when children were hired, they
would work in safe conditions that would not jeopardize their health,
well-being, or educational opportunities.
The amount set for minimum wage and definitions of exempted
employees have been updated over the years. Many states, and some
cities, have established the minimum wage for their state or city at a
level much higher than that set by the federal government.
b. Family and Medical Leave Act
The Family and Medical Leave Act of 1993 (FMLA) allows
employees who meet certain qualifications to take up to 12 work
weeks of leave in a 12-month period. Note that the federal
requirement is only for an unpaid leave. Its purpose is to help an
employee with the birth or care of a newborn within one year of birth;
the placement with the employee and care of a child for adoption or
foster care within one year of placement; or to care for the employee’s
spouse, child, or parent who has a serious health condition. It
71
provides additional support for military members and their families.
This leave can be taken intermittently or all at once. An employer may
require that the employee use accrued paid vacation, paid sick, or
family leave for some or all of the FMLA leave period. The FMLA
requires that group health benefits be maintained during the leave
and that employers allow employees to return to their same or an
equivalent job at the end of the FMLA.
c. Workers’ Compensation Laws
Prior to the enactment of modern workers’ compensation laws,
some employers would voluntarily offer compensation for on-the-job
injuries. However, if the employer and employee could not come to an
agreement, the injured worker’s only option was to file a civil lawsuit.
Modern workers’ compensation systems are a form of insurance
providing employees injured in the course of their employment with
wage replacement and medical benefits in exchange for mandatory
relinquishment of the employee’s right to sue his or her employer for
the tort of negligence. The first legislation establishing such a system
72
in the United States was passed in Maryland in 1902. Other states
and the federal government followed.
p. 428
p. 429
d. Collective Bargaining and Unfair Labor Practices
Congress enacted the National Labor Relations Act (NLRA) in
1935 to protect the rights of employees and employers, to encourage
collective bargaining, and to curtail certain private sector labor and
management practices. The act also created the National Labor
Relations Board and gave it authority for overseeing the process by
which employees can vote on whether they want to authorize a
specific union to bargain on their behalf.
Section 157 of the act declares that “[e]mployees shall have the
right to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . . ,” and
Section 158 prohibits employers from taking various “unfair labor
73
practices.”
Today, most workers do not belong to a union. According to the
U.S. Bureau of Labor Statistics the percent of wage and salary
workers who were members of unions in 2018 was 10.5%. This is
down from 20.1% in 1983, the first year for which comparable union
74
data are available. However, while these statistics report on all
employees, and unionization in the private sector has been falling, in
the public sector it continues to rise.
DISCUSSION QUESTIONS
12. For over 40 years, Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97
S.Ct. 1782, 52 L.Ed.2d 261 (1977), struck a stable balance between
public employees’ First Amendment rights and government entities’
interests in running their workforces as they thought proper. Under
that decision, a government entity could require public employees to
pay a fair share of the cost that a union incurs when negotiating on
their behalf over terms of employment. But no part of that fair-share
payment could go to any of the union’s political or ideological
activities. In 2018, the court reversed itself and held that a public
employee who did not join a union could not be required to make a
fair-share payment because that requirement would be a violation of
75
the employee’s First Amendment rights. Do you think that the
Janus decision will decrease the number of people who belong to a
union in the public sector?
13. In March of 2014, the regional director of the Chicago office of
the National Labor Relations Board ruled that college football players
from Northwestern University, a private university, had a right to hold
an election to determine if they wanted the College Athletes Players
Association to engage in collective bargaining with the university on
their behalf.
The central issue in this case was whether college players
receiving athletic scholarships can be considered university
employees under the terms of
p. 429
p. 430
the National Labor Relations Act. An “employee” is a person who (1) is
under contract of hire to (2) perform services for another, (3) subject
to the employer’s control, and (4) in return for payment.
a. What arguments do you think the attorneys representing the
players made?
b. What arguments should the university’s representatives have
made?
e. Occupational Health and Safety Act
Congress created the Occupational Safety and Health
Administration (OSHA) in 1970. In addition to establishing and
enforcing safe and healthful working conditions, the agency provides
research, information, education, and training in the field of
occupational safety and health. Almost all private sector employers
and their workers are covered either by OSHA or by an OSHA-
approved state program. In addition, local, state, and federal
government workers receive protections similar to those provided by
OSHA.
f. Employee Retirement Income Security Act
Following incidents in which mismanaged pension funds caused
workers to lose promised retirement benefits, Congress passed the
Employee Retirement Income Security Act of 1974 (ERISA). It sets
minimum standards for most voluntarily established pension and
health plans in private industry.
ERISA requires plans to provide participants with plan information
including important information about plan features and funding;
provides fiduciary responsibilities for those who manage and control
plan assets; requires plans to establish a grievance and appeals
process for participants to get benefits from their plans; and gives
participants the right to sue for benefits and breaches of fiduciary
duty.
5. Common-Law Approach: At-Will Employment
As mentioned at the beginning of this chapter, most employees work
on an at-will basis. That is, they have not signed formal contracts with
their employers governing their employment relationships, and they
are not working in companies that have unions to protect the rights of
employees. Therefore, they are free to leave work at any time, and
likewise their employers are allowed to fire them at any time so long
as the reasons for the dismissal do not violate any federal or state
statutes, such as the antidiscrimination statutes covered above.
Under traditional interpretations of the at-will doctrine, employers
have been free to fire their employees for a good reason, a bad
reason, or no reason at all so long as that reason does not conflict
with specific statutes to the contrary. For example, if an employee
reports late for work, the employer is free to fire that employee, even if
this is the first instance of that employee’s arriving late. Employees
thus had no protection from arbitrary and even unreasonable
employer actions.
However, in recent years some courts have begun to give at-will
employees more protection. In some cases where employers have
established employee handbooks that spell out various personnel
procedures, the courts have generally
p. 430
p. 431
required those employers to follow their own rules. In addition, a few
courts have stated that employers owe employees an implied
covenant to act in good faith. Finally, many courts have found a
public policy exception that prevents an employer from firing an
employee when the employer’s actions are seen as harming not only
the employee but also society as a whole. Examples include an
employer firing an employee for asserting a legally guaranteed right,
such as applying for workers’ compensation; for doing what the law
requires, such as reporting for jury duty; and for refusing to do an
unlawful act, such as committing perjury.
At-will employment is another area of the law that is rapidly
changing. You should expect to see the rights of employers to freely
fire at-will employees come under increased judicial scrutiny in the
coming years.
NETNOTE
Website links related to federal employment law:
Age Discrimination in Employment Act:
www.eeoc.gov/laws/statutes/adea.cfm.
Americans with Disabilities Act: www.ada.gov.
Civil Rights Act of 1964: www.eeoc.gov/laws/statutes/titlevii.cfm.
Employee Retirement Income Security Act:
www.dol.gov/dol/topic/health-plans/erisa.htm.
Fair Labor Standards Act:
www.dol.gov/dol/aboutdol/history/flsa1938.htm.
Federal Workers Compensation:
www.dol.gov/owcp/owcphist.htm.
National Labor Relations Act: www.nlrb.gov/how-we-
work/national-labor-relations-act.
Occupational Safety and Health Administration:
www.osha.gov/about.html.
CHAPTER SUMMARY
Businesses must be concerned with many areas of the law, including
business formation, agency, commercial paper, secured transactions,
and employment discrimination. One of the first decisions a business
makes relates to its business form: whether it be a sole
proprietorship, partnership, corporation, limited liability company, or
limited liability partnership. When a company borrows money,
commercial paper is involved. The business may also have to
guarantee repayment by supplying collateral, thereby creating a
secured transaction.
Any employer who hires employees must be aware of agency law.
Generally, an agent is someone who has the power to act in the place
of another. If an
p. 431
p. 432
employee/agent acts within the scope of his or her responsibilities,
the employer can be held liable for the agent’s actions.
Finally, employment law is dominated by federal
antidiscrimination statutes, including Title VII of the Civil Rights Act of
1964, prohibiting discrimination based on race, color, religion, sex, or
national origin; the Age Discrimination in Employment Act (ADEA),
prohibiting discrimination based on age; and the Americans with
Disabilities Act (ADA), prohibiting discrimination based on disability. If
the case is not one of overt discrimination, the plaintiff can usually
bring a discrimination claim under a theory of either disparate
treatment or disparate impact. Other important federal statutes
include the Fair Labor Standards Act (FLSA), the Family Medical
Leave Act (FMLA), the National Labor Relations Act (NLRA), the
Employee Retirement Income Security Act (ERISA), and state
workers’ compensation laws.
Employers of the local, state, and federal government are also
constrained by constitutional restrictions, such as those imposed by
the Fifth and Fourteenth Amendments’ due process and equal
protection clauses.
CRITICAL THINKING EXERCISES
1. Reread the opening chapter scenario. What do you think would
be the advantages and disadvantages of each of the five major
business forms in light of the needs of Alice and her friends? Be sure
to take into account the special life situation of each person and how
that would impact that person’s choice of business form.
2. For each of the following situations, determine what happens
when the method of payment changes from cash, to the assignment
of a contract, to a promissory note.
a. Buyer pays Seller $600 in cash for 1,000 calculators. Seller
then takes the $600 and uses it to pay for a cruise. If the
calculators prove to be defective and the seller is insolvent,
who loses, the buyer or the third party who accepted $600
from the seller?
b. Buyer signs a contract with Seller promising to pay $600 for
1,000 calculators on or before 6/6/15. Seller then assigns
the contract to the owner of a travel agency in payment for a
cruise. If the calculators prove to be defective and the seller
is insolvent, who loses, the buyer or the third party who
accepted the assigned contract rights from the buyer?
c. Buyer signs a note promising to pay Seller $600 for 1,000
calculators on or before 6/6/15. Seller then delivers the note
to the owner of a travel agency in payment for a cruise. If the
calculators prove to be defective and the seller is insolvent,
who loses if the note is a negotiable instrument? Who loses
if the note is not a negotiable instrument? Why?
3. For each of the following, base your analysis on the case of
O’Connor v. McDonald’s Restaurants of California, Inc., beginning on
page 404 of the text.
a. At the request of his employer, Bob worked late one night
and missed the last bus home. No one was left at work
except for Bob, and not
p. 432
p. 433
being able to figure out any other way to get home, Bob
borrowed his employer’s truck. The next morning, while
driving to work, he was in an automobile accident, injuring
Martha. Martha wants to sue Bob’s employer. Do you think
her lawsuit will be successful? Why or why not?
b. Jill was a traveling salesperson. During the day she drove
one of her employer’s cars. If at the end of the day she
happened to be in the vicinity of her house, she could keep
the car overnight. One morning while driving her employer’s
car to work, she was in an automobile accident and injured
Billy. Billy wants to sue Jill’s employer. Do you think his
lawsuit will be successful? Now consider the following: As
Jill left her house that morning, she was juggling her keys,
coffee, and purse. Afraid she might spill her coffee, she
placed her purse on the roof, forgot she had done so, and
drove off. When she realized what she had done, she
immediately did a U-turn so that she could retrace her route
to search for her purse. It was while she was making the U-
turn that she had the accident. Do these additional facts
change your answer? Why or why not?
c. Jim worked for Pest-Be-Gone. All Pest-Be-Gone employees
wear a distinctive green uniform and name tags. Martha, a
homeowner, had hired Pest-Be-Gone to come to her house
to spray for termites. When Jim arrived, she let him into her
home so that he could perform the extermination. Jim
locked her in her bedroom and raped her. Martha has sued
Pest-Be-Gone for negligence. Do you think her lawsuit will be
successful? Why or why not?
d. As part of a goodwill campaign, James Manufacturing
entered a team in a citywide golf league. It recruited players
from among its employees, provided them with uniforms
and equipment, and paid their expenses. During the
tournament, one of the employees negligently hooked a golf
ball that struck and injured Sally. Sally wants to sue James
Manufacturing. Do you think her lawsuit will be successful?
Why or why not?
e. Brown Bakery allows its employees to play baseball in a field
behind the bakery during their lunch hour. During one game,
the pitcher threw a ball that hit Sam in the face. The pitcher
admitted after the game that he meant to hit Sam, a
notorious home run hitter, so he could walk him. Sam sued
Brown Bakery. Do you think his lawsuit will be successful?
Why or why not?
4. Johnson Controls, Inc., manufactures batteries. In the process,
lead is a primary ingredient. Because the company was afraid that
exposure to lead could lead to harm to any fetus carried by a female
employee, the company excluded women who were pregnant or
“capable of bearing children” from jobs that exposed them to lead.
When a group of women challenged this policy, the company argued
that it was a BFOQ. How do you think the court resolved this issue?
5. Dianne Rawlinson sought employment with the Alabama Board
of Corrections as a correctional officer. Alabama had established
minimum height and weight requirements of 120 pounds and 5 feet 2
inches for all correctional officers. These combined requirements
excluded 41.13 percent of the female
p. 433
p. 434
population and less than 1 percent of the male population. Ms.
Rawlinson was refused employment because she failed to meet the
minimum 120-pound weight requirement. The prison argued that the
requirements were necessary because they have a relationship to
strength. Ms. Rawlinson filed a charge of discrimination with the
EEOC. While her claim was pending, the Alabama Board of
Corrections adopted another regulation prohibiting female
correctional officers in any maximum-security institution housing
men. In those prisons the inmate living area was divided into large
dormitories with communal showers and toilets that are open to the
dormitories and hallways. The main duty of correctional officers in
such a setting is to maintain security. Because of inadequate staff
and facilities, no attempt was made in the four maximum-security
male prisons to segregate inmates according to their offenses or
levels of dangerousness, leading to what some described as a “jungle
atmosphere.” Ms. Rawlinson then amended her charge to also
challenge this regulation. Do you think Ms. Rawlinson was successful
on either claim? Think about the arguments Ms. Rawlinson would
advance as well as any defenses the employer would raise. In what
type of jobs, if any, do you think sex should be treated as a BFOQ?
6. Judith Smith was a unit director at a facility for the
intellectually disabled. Ms. Smith’s six-month rating was
“outstanding.” She came in conflict, however, with the superintendent
over an issue regarding the reorganization of the facility. The
superintendent wanted to centralize all power within his office. Ms.
Smith and the other unit directors thought it would be in the best
interest of the patients and staff to also give them an opportunity to
participate in policy decisions. The superintendent refused to
consider that option. The unit directors then wrote a letter critical of
the superintendent. Shortly thereafter Ms. Smith was fired. Ms. Smith
sued, alleging that her dismissal was against public policy. Do you
think a court would agree?
7. A hospital administrator promoted a 52-year-old “fishing buddy”
because he wanted to help his friend. A better qualified younger black
woman sued, saying that her rights under Title VII had been violated.
Do you think the hospital has engaged in unlawful discrimination?
WEB EXERCISES
1. Use FindLaw or a general search engine such as Google,
www.google.com, to see if your state has enacted a statute
authorizing businesses to form an LLP (Limited Liability
Partnership). (If you would like to use FindLaw, start at
www.findlaw.com/casecode. Scroll down on the screen, and
under “State Resources” select your state and then click on the
link to the state’s statutes.) If your state has enacted a statute
authorizing LLPs, find the provision that specifies the designation,
such as LLP, that such a business must use. Why do you think
states typically require the use of a specific designation showing
that a business is being run as an LLP? In your state, are partners
in an LLP shielded from liability for their own acts of negligence or
only for the acts of the other partners?
p. 434
p. 435
2. Title VII of the Civil Rights Act of 1964 established the
fundamental principle that employers cannot discriminate on
the basis of race, color, religion, sex, or national origin.
a. Use FindLaw at lp.findlaw.com or a similar site to locate
that statute. Its citation is 42 U.S.C. 2000e-2. We have
principally been discussing part (a). Read through the rest of
Section 2000e. Does anything within it surprise you? What
do you think is the purpose of part (j)?
b. As you know, the EEOC promulgates rules or guidelines
interpreting Title VII, including the definition of sexual
harassment as a form of sex discrimination. Find that
regulation. Its citation is 29 C.F.R. 1604.11. According to that
regulation, when can an employer be responsible for the
acts of non-employees, with respect to sexual harassment
of employees in the workplace?
c. Finally, find the Supreme Court opinion where that Court for
the first time agreed that a claim of “hostile environment”
sexual harassment is a form of sex discrimination. The
citation for that case is Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986). What did the Court have to say about the
authoritative weight of the EEOC guidelines?
REVIEW QUESTIONS
Pages 383 through 395
1. What are the five basic forms of business organizations, and
what are the main advantages and disadvantages of each?
2. What is the most common reason for changing from a sole
proprietorship to a partnership or a corporation?
3. Name the ways that a general partnership can be terminated.
4. What are the essential elements that the court looks for in trying
to determine whether a partnership exists?
5. What types of information are contained in a business’s articles
of incorporation?
6. List the general responsibilities of a corporate board of directors.
7. Why might forming a limited liability company be preferable to
forming either a partnership or a corporation?
Pages 395 through 401
8. Name the requirements for an instrument to be negotiable.
9. What must be satisfied for someone to be a holder in due course?
10. What are the two basic functions of commercial paper?
11. How does one become a holder of a negotiable instrument?
12. In a secured transaction what is the difference between
attachment and perfection?
13. Name the requirements that a creditor must meet in order to
have an enforceable security interest against a debtor (to have
the interest attach).
14. How may a creditor perfect a security interest?
p. 435
p. 436
15. What are the two main concerns of a creditor if a debtor defaults?
16. Define a floating lien and give an example.
17. Define a purchase money security interest.
18. What is the main benefit of being a holder in due course rather
than a mere holder?
19. List the following creditors in order of priority, starting with those
that have the highest level of priority: general creditors, perfected
security interest holders, unperfected security interest holders,
buyers in the ordinary course of business, lien creditors, and
perfected purchase money security interest holders.
Pages 401 through 406
20. What are the four basic duties that a principal owes an agent?
21. What are the basic duties that an agent owes a principal?
22. Name two of the factors a court will look to in trying to determine
if an employer-employee or an employer–independent contractor
relationship exists.
23. Give two examples of why it would matter whether a relationship
is one of employer-employee or one of employer–independent
contractor.
24. When will an employer be held responsible for an employee’s act?
Pages 406 through 427
25. What is a bona fide occupational qualification (BFOQ)? What role
does it play in Title VII litigation?
26. In a Title VII case alleging discriminatory treatment, how does the
plaintiff prove the prima facie case? What must the defendant do
in response? What must the plaintiff do to rebut the defendant’s
response?
27. In a Title VII case alleging discriminatory impact, how does the
plaintiff prove the prima facie case? What must the defendant do
in response? What must the plaintiff do to rebut the defendant’s
response?
28. After Griggs can employers use tests to evaluate people for hiring
and promotion purposes? Why?
29. When must an employer have an affirmative-action plan?
30. When may an employer adopt a voluntary affirmative-action plan?
31. How does the presentation of an age discrimination case differ
from that of one under Title VII?
32. Under the ADA who is a qualified individual?
33. What are the three main issues that arise when litigating cases
under the Americans with Disabilities Act (ADA)?
Pages 427 through 431
34. What was the historical significance of the Fair Labor Standards
Act?
35. Why are modern workers’ compensation laws akin to insurance?
36. What is the purpose of the National Labor Relations Act?
37. What must employers provide for employees taking leave under
the Family Medical Leave Act?
38. Why was the Employee Retirement Income Security Act passed?
39. What is employment at-will?
40. Name two exceptions to the employment at-will doctrine.
1
Several revisions were written in the 1990s. Over one-half of the states have adopted one or
more of the revisions.
2
Miller v. City Bank & Trust Co., 266 N.W.2d 687 (Mich. 1978).
3
Id. at 689.
6
The partnership was succeeded by a corporation on January 1, 1970. The judge instructed
the jury not to consider the acts of Dr. Alt after January 1, 1970, on the issue of partnership.
From the judge’s charge, it is reasonably clear that the jury were informed that the
defendants could be liable only for negligent acts or omissions of Dr. Alt during the time a
partnership existed.
4
Michael B. Dorff, “Why Public Benefit Corporations?,” The CLS Blue Sky Blog, November 28,
2016, http://clsbluesky.law.columbia.edu/2016/11/28/why-public-benefit-corporations/.
5
Dennis O’Reilly and Luciana Aquino-Hagedorn, “Benefit Corporations: An Introduction,”
Corporate on Bloomberg Law, (February 6, 2018), https://www.bna.com/benefit-
corporations-introduction-n57982088476/.
6
558 U.S. 310 (2010).
7
573 U.S. 2751 (2015).
8
The requirements being challenged involved the provision of four types of contraceptives.
1
“Under the doctrine of respondeat superior, an employer is liable for the torts of his
employees committed within the scope of their employment.”
9
42 U.S.C.S. § 2000e-2(a) (2019).
10
Walters v. Metropolitan Educ. Enterprises, Inc., 519 U.S. 202 (1997).
11
Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996).
12
42 U.S.C. § 2000e-(k) (2019).
13
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
14
110 Cong. Rec. 2,577-2,584 (1964).
15
42 U.S.C. § 2000e-2e (2019).
16
Casting for theatrical ventures such as plays and movies is the only area where race can
still be a BFOQ.
17
Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971)
18
Id. at 388.
19
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-06 (1973).
20
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
21
Id. at 235.
22
Id.
23
Civil Rights Act of 1991, § 107(a), 42 U.S.C. § 2000e-2(m) (2019).
24
42 U.S.C. § 2000e-2(a)(2) (2019).
25
Griggs v. Duke Power, 401 U.S. 424, 854 (1971).
26
Id. at 436.
27
42 U.S.C. § 2000e-2(k) (2019).
28
477 U.S. 57 (1986).
29
Id. at 67, citing Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982).
30
29 C.F.R. § 1604.11(a) (2019).
31
Harris v. Forklift Systems, 510 U.S. 17 (1993).
32
Id. at 22.
33
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
34
Id. at 79.
35
caselaw.findlaw.com/us-7th-circuit/1901047.
36
Ellison v. Brady, 924 F. 2d 872, 880 (9th Cir. 1991); see also McGinest v. GTE Serv. Corp.,
360 F.3d 1103 (9th Cir. 2004) (allegations of a racially hostile workplace must be assessed
from the perspective of a reasonable person belonging to the racial or ethnic group of the
plaintiff).
37
Erin Wade, I’m a female chef. Here’s how my restaurant dealt with harassment from
customers, The Washington Post (March 29, 2018),
www.washingtonpost.com/opinions/how-my-restaurant-successfully-dealt-with-
harassment-from-customers/2018/03/29/3d9d00b8-221a-11e8-badd-
7c9f29a55815_story.html?utm_term=.e3aa14c3793d.
38
Title VII directs courts to “order such affirmative action as may be appropriate.” 42 U.S.C. §
2000e-5(g)(1) (2019).
39
443 U.S. 193 (1979).
40
Id. at 203.
41
Id. at 209.
42
Id. at 208.
43
480 U.S. 616 (1987).
44
Id. at 638.
45
Id. at 626.
46
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995).
47
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (“Societal discrimination, without
more, is too amorphous a basis for imposing a racially classified remedy.”).
48
Weber, 443 U.S. at 212 (“[T]he Court considers a job category to be ‘traditionally
segregated’ when there has been a societal history of purposeful exclusion of blacks from
the job category.”) (emphasis added).
49
42 U.S.C. § 1981a (2019).
50
Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007).
51
Id. at 660.
52
Id.
53
H.R. 2831: Lilly Ledbetter Fair Pay Act of 2007, 110th Congress (as passed by House July
31, 2007).
54
Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011).
55
42 U.S.C. § 623 (2019).
56
Mount Lemmon Fire Dist. V. Guido, 139 S. Ct. 22, 27 (2018).
57
See U.S. Department of Labor Bureau of Labor Statistics, Employment Projections: 2018-
2028 Summary at www.bls.gov/news.release/ecopro.nr0.htm.
58
517 U.S. 308 (1996).
59
Id. at 312.
60
Id.
61
Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996).
62
544 U.S. 228 (2005).
63
U.S.C. §623-4(a)(2) substitutes “age” for “race, color, religion, sex, or national origin.”
64
Smith, 544 U.S. at 242-43.
65
557 U.S. 167 (2009).
66
Id. at 180.
67
42 U.S.C. § 12101 (2019).
68
42 U.S.C. § 12102(4)(e)(2)(2019).
69
Lyons v. Legal Aid Soc’y, 68 F.3d 1512 (2d Cir. 1995).
70
Examples of exempt employees include: executives and other high-level administrators,
commissioned sales employees, farmworkers employed on small farms, and some
employees working for specified types of seasonal and recreational establishments.
71
More information can be found on the U.S. Department of Labor’s homepage for the
Family and Medical Leave Act at dol.gov/whd/fmla/.
72
See www.ehow.com/about_5296716_history-workers-compensation-laws.html.
73
29 U.S.C. § 157-58 (2019).
74
U.S. Bureau of Labor Statistics, Economic News Release (Jan. 18, 2019),
bls.gov/news.release/union2.nr0.html
75
Janus v. American Federation of State, County, and Mun. Employees, Council 31, 138 S. Ct.
2448, 2487 (Kagan, J., dissenting) (2018).
p. 436
p. 437
Family Law
Children are our most valuable national
resource.
President Herbert Hoover
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Discuss the concept of the modern family.
■ List the requirements for marriage and divorce.
■ Distinguish between annulment and divorce.
■ Discuss laws regarding child custody, visitation, and support.
■ Debate the merits of modern trends in adoption and assisted
reproduction laws.
■ Discuss the role of the clear and convincing standard in family
law.
INTRODUCTION
This chapter presents an introduction to the basic legal principles of
what is commonly called family law. The first section will cover the
legal aspects of marriage and divorce. It will include a discussion of
what marriage is, the requirements for a valid marriage, and how the
marital bond can be dissolved. The second section will explore the
legal aspects of the parent-child relationship, including problems
related to adoption and paternity. It will also cover
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p. 438
parental rights and responsibilities and problems related to the
enforcement of those rights and responsibilities.
Family law is one of the most dynamic areas of the law. No longer
can we limit our definition of a family to a husband, a wife, and
children. Today a family might mean an unmarried mother and her
children; a single father and his children; a mother, her children, and a
stepfather; or a mother, her child, and her female spouse. Family law
also illustrates the inability of the courts to solve basic social
problems. The breakdown of the traditional family, advances in
medical science, and changing societal mores are all pressing the
courts with increasingly complex issues that can be only imperfectly
resolved within the legal arena. Family law decisions go to the very
heart of what we feel is important. For example, should the best
interests of the child or the rights of a natural parent govern the
outcome of a custody dispute? Should the courts enforce a contract
whereby a woman agrees to serve as a surrogate parent? Should
couples who choose to live together without getting married receive
the same legal benefits as do married couples? These are just a few
of the issues that we will grapple with in this chapter on family law.
Consider the following case of Tris and Isolde.
Case 13: The Modern Family
Tris was married to Mark for four years, and together they had
one child, Chad. Two years ago, Tris and Mark divorced. Tris’s very
good friend, Isolde, comforted and helped her during that difficult
time. Gradually, friendship turned to love. Tris and Isolde would like
to marry. Due to a job offer that Tris just received, they are thinking
of moving. They would also like to have a child of their own. Isolde
would like to bear the child, and a good friend of theirs, Jim, has
volunteered to provide the sperm. They realize, however, that all of
these decisions create legal complications, and so they decide to
consult the law firm of Darrow and Bryan.
Because family law is dominated by state statutes and the court
decisions interpreting those statutes, there is a great deal of variation
from one state to the next. Therefore, when considering Tris and
Isolde’s situation, the lawyers at Darrow and Bryan will consult the
laws both of their state and the state to which Tris and Isolde hope to
move. However, while state law is the principal source of family law,
the federal government has enacted legislation in certain areas of
family law, such as those laws assisting states with the collection of
child support and trying to prevent divorced or separated parents
from kidnapping their own children and taking them across state
lines.
Most aspects of family law — governing who can be married, how
marriages take place, the property rights of marital partners, how
marriages are dissolved, how children are adopted — are part of the
civil law. However, criminal statutes cover some aspects of family
law, such as child and spousal abuse.
As is true of any law, the laws that state and federal legislatures
develop governing family relationships must conform to the
restrictions of state constitutions, as well as the U.S. Constitution. For
example, in 2015 the U.S. Supreme
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p. 439
Court found that same-sex marriage is a fundamental right under the
United States Constitution’s due process clause, thereby nullifying
recent amendments to several state constitutions that had defined
1
marriage as only being between a man and a woman.
A. MARRIAGE
Until recently, marriage was defined as a “civil contract by which one
2
man and one woman take each other as husband and wife,” and this
served as one of the basic limitations on marriage. Starting in 2003,
when the Massachusetts Supreme Judicial Court interpreted its state
constitution to require recognition of same-sex marriage, a number of
state courts and legislatures began to recognize same-sex marriage.
At the same time as those states began to recognize same-sex
marriage, other states moved in the opposite direction by passing
legislation and constitutional amendments defining marriage as
being between one man and one woman. In Obergefell v. Hodges, the
U.S. Supreme Court settled the issue when it declared that same-sex
couples have the fundamental right to marry.
Obergefell v. Hodges
135 S. Ct. 2584 (2015)
Justice KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty
that includes certain specific rights that allow persons, within a
lawful realm, to define and express their identity. The petitioners in
these cases seek to find that liberty by marrying someone of the
same sex and having their marriages deemed lawful on the same
terms and conditions as marriages between persons of the
opposite sex.
. . .
III
Under the Due Process Clause of the Fourteenth Amendment,
no State shall “deprive any person of life, liberty, or property,
without due process of law.” The fundamental liberties protected
by this Clause include most of the rights enumerated in the Bill of
Rights. In addition these liberties extend to certain personal
choices central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.
. . .
The generations that wrote and ratified the Bill of Rights and
the Fourteenth Amendment did not presume to know the extent of
freedom in all of its dimensions, and so they entrusted to future
generations a charter protecting the right of all persons to enjoy
liberty as we learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a received legal
stricture, a claim to liberty must be addressed.
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p. 440
Applying these established tenets, the Court has long held the
right to marry is protected by the Constitution. In Loving v.
Virginia, 388 U.S. 1 (1967), which invalidated bans on interracial
unions, a unanimous Court held marriage is “one of the vital
personal rights essential to the orderly pursuit of happiness by free
men.” . . . Over time and in other contexts, the Court has reiterated
that the right to marry is fundamental under the Due Process
Clause.
. . .
The right of same-sex couples to marry that is part of the
liberty promised by the Fourteenth Amendment is derived, too,
from that Amendment’s guarantee of the equal protection of the
laws. . . . In Loving the Court invalidated a prohibition on interracial
marriage under both the Equal Protection Clause and the Due
Process Clause. . . . It stated: “There can be no doubt that
restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection
Clause.”
. . .
It is now clear that the challenged laws burden the liberty of
same-sex couples, and it must be further acknowledged that they
abridge central precepts of equality. Here the marriage laws
enforced by the respondents are in essence unequal: same-sex
couples are denied all the benefits afforded to opposite-sex
couples and are barred from exercising a fundamental right.
Especially against a long history of disapproval of their
relationships, this denial to same-sex couples of the right to marry
works a grave and continuing harm. The imposition of this
disability on gays and lesbians serves to disrespect and
subordinate them. And the Equal Protection Clause, like the Due
Process Clause, prohibits this unjustified infringement of the
fundamental right to marry.
These considerations lead to the conclusion that the right to
marry is a fundamental right inherent in the liberty of the person,
and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment couples of the same sex may not be
deprived of that right and that liberty. The Court now holds that
same-sex couples may exercise the fundamental right to marry. No
longer may this liberty be denied to them. . . .
IV
. . . The dynamic of our constitutional system is that individuals
need not await legislative action before asserting a fundamental
right. The Nation’s courts are open to injured individuals who come
to them to vindicate their own direct personal stake in our basic
charter. An individual can invoke a right to constitutional protection
when he or she is harmed, even if the legislature refuses to act. . . .
These cases also present the question whether the
Constitution requires States to recognize same-sex marriages
validly performed out of State. . . . The Court, in this decision, holds
same-sex couples may exercise the fundamental right to marry in
all States. It follows that the Court also must hold — and it now
does hold — that there is no lawful basis for a State to refuse to
recognize a lawful same-sex marriage performed in another State
on the ground of its same-sex character.
No union is more profound than marriage, for it embodies the
highest ideals of love, fidelity, devotion, sacrifice, and family. . . . It
would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do respect
it, respect it so deeply that they seek to find its fulfillment for
themselves. . . . They ask for equal dignity in the eyes of the law.
The Constitution grants them that right.
Chief Justice ROBERTS, with whom Justice SCALIA and Justice
THOMAS join, dissenting.
Petitioners make strong arguments rooted in social policy and
considerations of fairness. They contend that same-sex couples
should be allowed to affirm their love and commitment through
marriage, just like opposite-sex couples. That position has
undeniable appeal; over the past six years, voters and legislators in
eleven States and the District of Columbia have revised
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p. 441
their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage
is a good idea should be of no concern to us. Under the
Constitution, judges have power to say what the law is, not what it
should be. . . .
Although the policy arguments for extending marriage to same-
sex couples may be compelling, the legal arguments for requiring
such an extension are not. The fundamental right to marry does
not include a right to make a State change its definition of
marriage. . . . The people of a State are free to expand marriage to
include same-sex couples, or to retain the historic definition.
. . .
Understand well what this dissent is about: It is not about
whether, in my judgment, the institution of marriage should be
changed to include same-sex couples. It is instead about whether,
in our democratic republic, that decision should rest with the
people acting through their elected representatives, or with five
lawyers who happen to hold commissions authorizing them to
resolve legal disputes according to law.
. . .
II
The majority’s driving themes are that marriage is desirable
and petitioners desire it. The . . . compelling personal accounts of
petitioners and others like them are likely a primary reason why
many Americans have changed their minds about whether same-
sex couples should be allowed to marry. As a matter of
constitutional law, however, the sincerity of petitioners’ wishes is
not relevant.
III
. . .
Those who founded our country would not recognize the
majority’s conception of the judicial role. They after all risked their
lives and fortunes for the precious right to govern themselves.
They would never have imagined yielding that right on a question
of social policy to unaccountable and unelected judges.
. . .
If you are among the many Americans — of whatever sexual
orientation — who favor expanding same-sex marriage, by all
means celebrate today’s decision. Celebrate the achievement of a
desired goal. Celebrate the opportunity for a new expression of
commitment to a partner. Celebrate the availability of new benefits.
But do not celebrate the Constitution. It had nothing to do with it.
. . .
Justices SCALIA, THOMAS, and ALITO also wrote separate
dissenting opinions.
CASE DISCUSSION QUESTIONS
1. On what basis did the majority find that it is unconstitutional to
deprive same-sex couples of the right to marry?
2. In his dissent, Chief Justice Roberts argued that state
legislatures rather than the U.S. Supreme Court should be the ones to
decide the issue of same-sex marriage. Do you find his arguments
persuasive? Why or why not?
3. What is the effect of this ruling on the rights of same-sex
couples to marry in those states where the legislature has defined
marriage as the union of a man and a woman?
This decision left undisturbed the traditional state right to regulate
other aspects of marriage, such as requiring that persons applying for
a marriage
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p. 442
license be over a minimum age (usually eighteen), not be too closely
related by blood to their spouses, and to be “of sound mind” (that is,
mentally capable of giving consent). Historically, minors have
sometimes been allowed to marry if they have the consent of their
parents or guardians. A growing movement seeks to ban all marriage
before age 18 because of fears that allowing marriages of those
under that age may be contributing to sex trafficking and children
forced to marry against their will. Delaware in April 2018 became the
first state to enact such legislation, followed by New Jersey in June
2018. Several states have increased the age to marry with the
consent of a parent or judicial authority to 16 or 17.
The legal system recognizes two forms of marriage. In the first
and most common type, known as a ceremonial or solemnized
marriage, the parties first apply for and receive an official marriage
license from a local governmental official. Usually after a brief waiting
period, they then have their commitment solemnized by saying their
vows either through a religious ceremony presided over by a
recognized member of the clergy or a civil ceremony presided over by
a judge. The marriage becomes official once the license is witnessed,
signed, and filed with the appropriate governmental office.
The second type of marriage is much less common and is
referred to as common-law marriage. It is one in which the parties
have mutually agreed to enter into a relationship in which they accept
all the duties and responsibilities that correspond to those of a
marital relationship and have openly cohabitated together but have
never obtained a marriage license or had their marriage solemnized
by someone who is legally authorized to do so. Most states no longer
recognize the validity of such common-law marriages unless the
couple established their common-law marital relationship in one of
the few states that still formally recognize common-law marriages
and then moved into the state.
DISCUSSION QUESTIONS
1. The following section from the Illinois Marriage and Dissolution
of Marriage Act illustrates the types of prohibitions that appear in
many state statutes:
750 Ill. Comp. Stat. 5/212
(a) The following marriages are prohibited:
(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the
parties;
(2) a marriage between an ancestor and a descendant or between a brother and a
sister, whether the relationship is by the half or the whole blood or by adoption;
(3) a marriage between an uncle and a niece or between an aunt and a nephew,
whether the relationship is by the half or the whole blood;
(4) a marriage between cousins of the first degree; however, a marriage between first
cousins is not prohibited if:
(i) both parties are 50 years of age or older; or
(ii) either party, at the time of application for a marriage license, presents for filing
with the county clerk of the county in which the marriage is to be solemnized, a
certificate signed by a licensed physician stating the party to the proposed marriage is
permanently and irreversibly sterile.
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p. 443
What do you think is the legislative purpose behind each of these
provisions? With which ones do you agree or disagree?
2. List as many valid reasons as you can for why states require a
marriage license.
3. As part of the legal requirements for getting married many
states require a waiting period between the time the license is issued
and the time the actual marriage can take place. Do you think states
should impose these types of waiting periods? If yes, why and how
long should they be? If no, why not?
1. Consequences of Marriage
In the romantic haze that surrounds courtship and marriage, a couple
may not fully realize all the legal consequences that flow from their
decision to marry. Under our common-law traditions, marriage was
viewed as a contract in which a man and woman relinquished their
former independence to merge themselves into a new joint
enterprise. For example, married persons have a legal obligation to
support each other not only during the marriage but often even after
a divorce. Property purchased by one spouse may be seen as marital
property, in which both have rights. Through a legal right known as a
forced share, each of the married partners is given a statutory right to
inherit from the other, even if the other spouse seeks to prevent it.
One spouse may also be immune from being sued by the other
spouse for torts committed against the first spouse. There are also
many legal benefits to being married that are not given to nonmarital
partners. For example, if a spouse is injured, the other spouse may
recover loss of consortium damages. Marriage partners normally
qualify for employer and governmental benefits not available to
nonmarried couples. They also have the right to be taxed as a marital
unit. Finally, both partners generally may not be forced to testify
against each other.
As with other areas of family law the liabilities and benefits of
marriage are constantly being altered. For example, traditionally one
spouse could not sue the other spouse for torts committed during
the marriage. Today, however, many states allow one spouse to sue
the other for tortious injuries, at least in limited situations, such as
motor vehicle accidents.
Of course, choosing to live together instead of getting married
also has legal consequences. In the famous case of Marvin v.
Marvin, 3
a woman who had lived with the actor Lee Marvin for six
years sought enforcement of an oral agreement regarding the
division of their property when they separated. The court held that the
agreement was a valid, enforceable contract so long as it was not
based solely on immoral consideration.
2. Premarital Agreements
Premarital agreements, also known as prenuptial or antenuptial
agreements, are becoming increasingly popular. Their basic purpose
is to set forth the financial arrangements should one of the parties die
or the marriage end in divorce.
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p. 444
Premarital agreements are becoming especially common in
situations involving second marriages in which the spouses have
children from a previous marriage. Usually, the focus of such
agreements is financial considerations. For example, a premarital
agreement would be used when a couple in their sixties marries and
wishes to ensure that the property they bring with them to the
marriage will be passed on to their children rather than to the
surviving spouse. Such an agreement in this type of situation can put
to rest the children’s concerns that the parent’s new spouse will cut
them out of their inheritance.
Traditionally, the courts saw such agreements as encouraging
divorce, and therefore they found such contracts to be void as
against public policy. Today, however, most courts will enforce these
agreements if the standard contract requirements were met. First, in
most states to satisfy the statute of frauds, premarital agreements
must be in writing. Second, there must be an offer, an acceptance,
and consideration. Usually, the agreement to marry satisfies the
consideration requirement.
When preparing a prenuptial agreement, both parties must be represented individually
by an attorney. Not to do so invites ethical charges of conflict of interest. In addition, if it
is later discovered that through a lack of zealous representation one party had not been
fully informed of all the marital assets and liabilities, the court will probably refuse to
enforce the agreement.
The extent to which a court will enforce premarital agreements
regarding matters other than financial arrangements depends on the
nature of the specific provision. For example, although courts will
generally enforce reasonable provisions relating to the distribution of
property, they will not enforce provisions relating to third parties, such
as those dealing with child custody.
Normal contract defenses are also available. For example, if the
agreement was not based on full disclosure of all financial assets or
was the result of undue influence, the courts might see it as against
public policy and either modify its provisions or refuse to enforce it.
Also, as noted above, the courts view some provisions, especially
those trying to predetermine the rights of children, as against public
policy and hence unenforceable. An example would be a provision
that states that the custodial spouse will not seek child support if the
couple divorces.
DISCUSSION QUESTION
4. The prenuptial agreement between a Catholic woman and a
Jewish man stated that any children born of the marriage would be
raised in the Jewish faith. After the couple divorced, the wife was
given custody of the children. The father went to court, seeking to
have the prenuptial agreement enforced. How do you think the court
responded?
3. Consequences of Broken Engagements
Under common law the victim of a broken engagement could sue for
an array of tort and contractual damages for mental and emotional
suffering, damage to reputation, humiliation, embarrassment, and
even “loss of worldly advantage.” However, most states have adopted
“anti-heart-balm” statutes, which prohibit
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p. 445
lawsuits for such things as breach of a promise of marriage,
alienation of affection, and seduction of a person over the legal age of
consent.
Nevertheless, issues ranging from the return of the engagement
ring to disposition of joint property may still find their way to the
courts when wedding plans fall through. Such conflicts are illustrated
in the following case. Note that this suit is not barred by the New
Jersey anti-heart-balm statute because it is a suit to recover
conditional gifts, not an action for damages for breach of a contract
to marry.
Aronow v. Silver
223 N.J. Super. 344, 538 A.2d 851 (1987)
Philip Aronow, plaintiff, and Elizabeth Silver, defendant, were
engaged to be married. The engagement was a stormy one.
Problems arose involving the parties themselves and their
relatives. On three occasions, Elizabeth cancelled the engagement
and returned the engagement ring, only to recant. Finally, with the
marriage ceremony a few days away, the engagement was broken
irretrievably. Each party, in this resulting litigation, faults the other.
Each claims the engagement ring, certain shares of stock and a
jointly-owned condominium. . . .
A. The Law Concerning Engagement Rings
The majority rule in this country concerning the disposition of
engagement rings is a fault rule: the party who unjustifiably breaks
the engagement loses the ring. The minority rule rejects fault. . . .
New Jersey courts have considered the question in only four
published opinions, with split results. This court, not bound by any
of those opinions, joins the minority. Our earliest case is Sloin v.
Lavine, 11 N.J. Misc. 899 (Sup. Ct. 1933), in which the court, citing
the law of foreign jurisdictions, said:
So we have on the merits the simple case of an engagement ring and engagement
broken and ring not returned. The decisions are not numerous, but we follow those
holding what we deem the correct rule, viz., that such a gift is impliedly conditional,
and must be returned, particularly when the engagement is broken by the donee, as
the court was entitled to find in this case.
Sloin’s implication that the person who breaks the engagement
loses the ring was rejected by Judge (later Justice) Sullivan in
Albanese v. Indelicato, 25 N.J. Misc. 144 (D. Ct. 1947). The
decision involved ownership of an engagement ring and a dinner
ring. The court said:
As far as the engagement ring is concerned, the defendant had no right to keep it. An
engagement ring is a symbol or pledge of the coming marriage and signifies that the
one who wears it is engaged to marry the man who gave it to her. If the engagement
is broken off the ring should be returned since it is a conditional gift. True, no express
condition was imposed but the law implies a condition because of the symbolic
significance of the ring. It does not matter who broke the engagement. A person may
have the best reasons in the world for so doing. The important thing is that the gift
was conditional and the condition was not fulfilled.
The giving of the dinner ring is an entirely different proposition. True, it was given
after the parties became engaged. No doubt plaintiff would not have given the ring to
defendant if they had not been engaged. The dinner ring though, has no symbolic
meaning and is only a token of the love and affection which plaintiff bore for the
defendant. Many gifts are made for reasons that sour with the passage of time.
Under the law though, there is no consideration required for a gift and it is absolute
once made unless a condition is imposed. There was no express condition here and
the law will not imply one as in the case of the engagement ring since the dinner ring
has no symbolic meaning attached to it. Defendant was under no obligation to return
the dinner ring.
. . .
p. 445
p. 446
The fault rule is sexist and archaic, a too-long enduring
reminder of the times when even the law discriminated against
women. The history is traced in 24 A.L.R.2d at 582-586. In ancient
Rome the rule was fault. When the woman broke the engagement,
however, she was required not only to return the ring, but also its
value, as a penalty. No penalty attached when the breach was the
man’s. In England, women were oppressed by the rigidly stratified
social order of the day. They worked as servants or, if not of the
servant class, were dependent on their relatives. The fact that men
were in short supply, marriage above one’s station rare and travel
difficult abbreviated betrothal prospects for women. Marriages
were arranged. Women’s lifetime choices were limited to a
marriage or a nunnery. Spinsterhood was a centuries-long
personal tragedy. Men, because it was a man’s world, were much
more likely than women to break engagements. When one did, he
left behind a woman of tainted reputation and ruined prospects.
The law, in a de minimis gesture, gave her the engagement ring, as
a consolation prize. When the man was jilted, a seldom thing,
justice required the ring’s return to him. Thus, the rule of life was
the rule of law — both saw women as inferiors.
To accept the ancient rule of law is to ignore our constitutional
insistence upon the equality of women, to further the unfortunate
reality that society still discriminates. That reality is one which
courts must not promote. Our obligation is to enforce the law,
which bars discrimination. By doing so we move reality in the right
direction.
The majority rule, even without its constitutional infirmity, will
not withstand elementary scrutiny. Its foundation is fault, and fault,
in an engagement setting, cannot be ascertained.
What fact justifies the breaking of an engagement? The
absence of a sense of humor? Differing musical tastes? Differing
political views? The painfully learned fact is that marriages are
made on earth, not in heaven. They must be approached with
intelligent care and should not happen without a decent assurance
of success. When either party lacks that assurance, for whatever
reason, the engagement should be broken. No justification is
needed. Either party may act. Fault, impossible to fix, does not
count.
. . .
Philip’s gift of a ring to Elizabeth was conditioned upon
marriage. When the promise of marriage was not kept, regardless
of fault, the condition was not fulfilled and the ring must be
returned to him.
. . .
C. The Stock Purchases
During their engagement, the parties, in anticipation of their
marriage, purchased stock with Philip’s money upon the
understanding that the stock certificate was to be placed in joint
names. The broker, however, had the certificate issued in
Elizabeth’s name only. She sold it without Philip’s knowledge after
the engagement was broken and kept the proceeds. Other stock
previously owned by Elizabeth was placed in joint names. That
stock has not been sold. Quite clearly, these stock arrangements
were conditioned upon marriage. When the engagement was
broken, the stocks should have been returned to the parties who
donated them. Philip’s stock should not have been sold and
Elizabeth must pay the proceeds of the sale to him. Philip is
directed to transfer his interest in the jointly-held stock to
Elizabeth.
CASE DISCUSSION QUESTIONS
1. The Silver court refused to apply a “fault standard.” Do you
think it should matter who was at fault for breaking off the
engagement? Why?
2. In the cited case of Albanese v. Indelicato why did the court
treat the diamond ring and the engagement ring differently? The
Silver court did not
p. 446
p. 447
apply different standards to the engagement ring and stock. Can you
reconcile these seemingly different approaches? Do you think one
approach reaches a fairer result?
3. Elizabeth’s parents also sued, seeking recovery of various
wedding expenses paid by them. Do you think they should be able to
recover? Why?
4. Termination of the Marital Relationship
Once the state has recognized a couple as being married, they will
continue to be treated as married persons until one of the spouses
dies or a court grants either an annulment or a divorce. The latter is
sometimes referred to as dissolution. The major difference between
an annulment and a divorce is that an annulment can be granted only
for causes that existed at the time the marriage took place, whereas
divorces are based on causes that occurred before or during the
marriage.
a. Annulment
An annulment proceeding has the effect of rescinding the
marriage and returning the parties to the status they had before the
marriage took place. Therefore, if an annulment is granted, it is, from
the legal perspective, as if the marriage had never taken place.
Because the marriage never existed, normally there are no continuing
matrimonial obligations, such as a duty to pay support or attorney’s
fees. On the other hand, a divorce or dissolution ends but does not
erase the existence of the marital relationship. Although the parties
are no longer married to each other, it does not necessarily cancel
legal obligations that arose out of the marriage. One exception to this
difference between annulment and marriage relates to children born
during the marriage. Under the common law, children born during a
marriage later annulled were considered illegitimate. Many state
statutes have changed this, at least as to voidable marriages.
However, if it was a void marriage, some states still consider the
children to be illegitimate.
Recall the contract law distinction between void and voidable. A
void contract is a legal nullity, even without court intervention. A
voidable contract remains valid unless one of the parties takes steps
to void it through legal proceedings. Similarly, marriages are
considered void in certain situations, as when they involve incest or
bigamy. A voidable marriage, on the other hand, is one where the
marriage remains valid until a court has determined that it should be
voided.
The grounds for voiding a marriage that are typically listed in state
statutes include such things as the following:
1. One of the parties to the marriage lacked capacity to consent
to the marriage because of being either mentally incapacitated
or under the influence of alcohol, drugs, or other incapacitating
substances.
2. One of the parties lacks the physical capacity to consummate
the marriage, and the other party did not know of the
incapacity.
3. One of the parties was under the prescribed age for marriage
and did not have a parent’s or guardian’s consent.
p. 447
p. 448
4. The parties are too closely related to each other — for example,
siblings or first cousins.
5. One of the parties was induced to enter into the marriage by
force, duress, or fraud.
Most of the criteria listed in these statutes are fairly
straightforward and relatively objective, but the language in the last
provision relating to fraud often leads to difficult and controversial
cases. For example, courts in some states have ruled that it is
appropriate to annul a marriage on the grounds that the woman
falsely represented herself as being pregnant or was pregnant but lied
about who the father was. On the other hand, it has also been ruled
that false representations as to being a virgin at the time of marriage
do not constitute a basis for granting an annulment. Another
interesting line of cases involves fraudulent representations regarding
one’s wealth and ability to support and maintain a certain lifestyle
after the marriage. In such situations the courts have generally
adopted a “buyer beware” attitude and have not recognized such
representations as being the basis for granting an annulment. An
example of a situation that would be the basis for an annulment
based on fraud would be one where a spouse made promises of love,
devotion, and living together in a normal marital relationship and then
fled with the other spouse’s bank account a few days after the
wedding.
Keep in mind that there is a difference between legal annulments
and religious ones. The two are completely separate processes, and
clients must take additional steps to attain a religious annulment.
DISCUSSION QUESTION
5. Most statutes require the parties to be “mentally competent” in
order to marry, but what does that mean? Should someone who has a
mental or genetic disability, such as Down’s syndrome, be allowed to
marry? Should a court annul a marriage if the parties later allege they
were so intoxicated at the time of the ceremony that they did not
realize the significance of their actions?
b. Divorce/Dissolution
Traditionally, marriage meant that the norm was for spouses to be
together for life, and divorce was seen as the exception. Therefore,
the spouse wishing a divorce had to convince the court that there
were extraordinary reasons justifying that request. Those reasons,
called grounds, included such behavior as adultery and desertion.
Today, every state also allows a divorce based on “no fault.” Rather
than having to assess blame for the breakup, either party can end the
marriage, with or without the consent of the partner. Either spouse
can simply file a petition for dissolution. The parties merely must
allege that the marriage has suffered an irretrievable breakdown, with
no hope for reconciliation. In some states the parties must also allege
that they are living separate and apart.
The “costs” of divorce are many. First, when couples seek a
divorce, they relinquish to the state the power to make major life
decisions for them. State courts can oversee a divorced family’s
financial arrangements in ways not permitted for intact families. For
example, normally a court will not interfere with
p. 448
p. 449
an intact family’s decision as to whether to send a child to college.
However, during divorce proceedings child support orders can include
a requirement that the parents pay for their child’s college education.
In LeClair v. LeClair 4
the court stated that it could enforce such an
order because the state had an interest in promoting higher
education and in protecting children of divorce.
NETNOTE
You can find various uniform laws governing the family, such as the
Uniform Child Custody Jurisdiction Act, the Uniform Interstate
Family Support Act, the Uniform Premarital Agreement Act, and the
Uniform Marriage and Divorce Act at
www.law.cornell.edu/uniform/vol9.html.
In addition, divorce can have severe economic consequences.
This is especially true for women. The money that may have been
insufficient to maintain one household is now being asked to
maintain two homes. Studies have consistently shown that in the first
year after divorce the standard of living for men increases anywhere
from 17% to 43%, while that for women and children decreases by
5
29% to 73%. Finally, for many divorcing parents the greatest cost is
the loss of daily contact with their children.
(1) Divorce procedures
Whichever method is used, there are basic divorce procedures
that must be followed. First, the grounds, even under no-fault, must
exist to end the marriage. Then the party wishing a divorce must file a
petition or complaint, requesting the divorce and including the
reasons why one should be granted. Most states require the petition
to include the following information:
1. the age, occupation, and residence of each party;
2. the length of time each party has resided in the state;
3. the date of the marriage and the place at which it was
registered;
4. the names, ages, and addresses of all living children of the
marriage and whether the wife is pregnant;
5. any arrangements as to support, custody, and visitation of the
children and maintenance of a spouse; and
6. the relief sought.
p. 449
p. 450
If the petitioner wants to proceed on a fault basis, then there will
also be an identification of the grounds. Exhibit 11-1 on page 451
provides an example of a no-fault petition. Usually other documents,
such as affidavits, must be filed along with the petition.
Once the petition is filed with the court, the opposing party must
be notified. This can be accomplished as in other civil suits through
service of process. If the other spouse cannot be found, then an
alternative method of notification must be used, such as publication
in a newspaper. When both parties are agreeable to the divorce, the
defendant may willingly appear in court without the need for formal
service of process.
The other party can indicate he or she does not want to contest
the divorce or can countersue. Then both sides may engage in
discovery.
Many states incorporate alternative dispute resolution
mechanisms into the decisions regarding distribution of property and
child custody and support. Mediation is becoming increasingly
common, on either a voluntary or a court-ordered basis, especially if
minor children are involved. The philosophy behind mediation is that
it can create a win-win atmosphere as opposed to the courtroom
mentality of winner take all. In addition, it allows the participants to
have a sense of ownership in the decision, as they craft it themselves
rather than allowing a judge to impose it on them.
After the petition is filed, the court will hold a hearing to deal with
such matters as temporary child custody; child and spousal support;
who remains in the house and who leaves; liability for home
mortgages, car payments, and credit card bills; and orders protecting
existing joint assets. In cases where there have been allegations of
domestic abuse, there may also be a hearing on the issuance of a
temporary restraining order (TRO), sometimes also called a
protection order, to keep one spouse away from the other spouse,
the children, and the home. Although these are labeled temporary
orders, do not be fooled. If the proceedings drag on for any length of
time, when it is finally time to frame the permanent orders it may
prove very difficult to change the “temporary” arrangements.
In an effort to help parents appreciate the needs of their children
during the divorce process, some states are starting to mandate
parent education programs for all divorcing parents. A certificate of
attendance must be submitted to the court prior to a hearing on the
merits of the case.
At any point in this process a settlement agreement can be
reached and submitted to the court. The most important aspect of
divorce is the separation agreement, as it sets out the rights and
obligations of the parties, including the custody and support
arrangements for the children, the distribution of marital property,
and alimony (maintenance). In most cases these negotiations
eventually lead to agreements that are then formalized in the final
court decree. In those instances in which the parties cannot reach
agreement, a trial is held at which witnesses testify to such things as
the spouses’ fitness as parents, how and when various financial
assets were obtained, the fair market value of various assets, and the
nature of the children’s or spouses’ future financial needs. This is
often a poor solution, as all major decisions as to custody, alimony,
property division, and child support will be taken away from the
parties and left for the judge to decide. The judge then renders a
decision on the basis of this evidence
p. 450
p. 451
Exhibit 11-1 Joint Petition for Divorce
p. 451
p. 452
and issues the final divorce decree and related orders. The court
retains jurisdiction in matters of child and spousal support, and at a
later date the parties may come back to seek a modification of the
original order based on such things as a change in marital status, a
significant change in income, or a child’s unanticipated needs.
As mentioned above, many state courts now incorporate
alternative dispute resolution mechanisms, principally mediation, into
the divorce process. A new alternative to traditional ADR techniques
that attempts, so far as possible, to minimize the court’s involvement
in the divorce process is known as collaborative law or collaborative
divorce. In 1990 a Minnesota attorney was tired of seeing the
damage that the divorce process often produced. He started telling
his clients that he would represent them but only so long as they
agreed to settle out of court. If the negotiations broke down, and they
had to resort to litigation, then they would have to find another
attorney. From that beginning has sprung the nationwide movement
known as collaborative law or collaborative divorce.
Collaborative divorce is similar to mediation in that all of the
parties seek a win-win resolution rather than a battle based on
individual interests. However, it differs in that a mediator is a neutral
who cannot represent either of the parties. In a collaborative divorce,
typically each partner has an attorney who advocates for his or her
client. Further, what makes collaborative divorce truly unique is that
all four parties — the divorcing couple and both attorneys — sign a
participation agreement. That agreement contains a number of
standard provisions, such as promises to show respect for all
participants and not to hide any information. The most important
provision is that the attorneys will not litigate the case. If the
collaborative process does not succeed, then the attorneys must
withdraw, and the parties must retain new counsel. Obviously, this
means it is not only in the parties’ but also in the attorneys’ best
interest to work toward a negotiated result.
The collaborative model is based on a team approach. First, the
two parties and the attorneys meet frequently as a group in joint
sessions to try to determine what is in the best interests of the
divorcing couple as well as any children. Second, the parties agree to
jointly hire experts to help them with the process. This can include a
financial specialist, a divorce coach (to help with communication
skills), and a child specialist if there are children involved. Because the
couple shares experts, they save the cost of hiring two of each type
of expert and are better able to reach agreement on key financial and
other matters. Only when a mutually beneficial understanding is
reached, does the court become involved, as the recipient of the
couple’s written agreement.
(2) Property settlements
When a marriage ends, decisions need to be made regarding how
jointly owned property will be divided. Such decisions relate not only
to major assets, such as a home, but also to such specifics as who
gets the living room sofa or
p. 452
p. 453
the good china. In fact, some of the most hotly contested property
fights relate to who gets “custody” of the family pet. Because only
jointly owned property is subject to distribution, the first task is to
determine which property is joint and which is separate.
Traditionally, there were three methods the courts used to
determine what qualifies as marital property: by who holds title, by
community property law, or through equitable distribution. Only the
last two methods are still in use. Under a community property statute
everything acquired during the marriage, with the exception of gifts or
inheritances, is owned 50/50. Property acquired prior to the marriage
is separate property, but it can lose its status if it is commingled. For
example, if money acquired before the marriage is placed in a joint
bank account, it loses its separate identity. At the time of divorce
each spouse retains his or her share of separate property, but all
property classified as community property is divided 50/50.
In non-community property states courts follow the doctrine of
equitable distribution and award a “marital interest” in any property
that was acquired during the marriage through the efforts of both
spouses. This acknowledges the contributions of both spouses,
whether that contribution be financial or through a spouse’s work in
the home, regardless of whose name is on the legal title. Typically, a
statute will provide that the judge must look at several factors,
including the length of the marriage, the age and health of the
spouses, and their ability to make a living. While this process may
also result in a 50/50 division, under the theory of equitable
distribution such an equal split is not mandated.
Where the specific piece of property, such as a house, cannot be
literally split between the parties, the court can either require that it be
sold with a distribution of the profits or that a portion of its assessed
value be given to the other spouse, either in cash or through some
other item of equal value.
In addition to the types of property that you would normally view
as being available for distribution, such as the family home, cars, and
jewelry, the courts have recently been faced with the necessity of
deciding whether such items as personal injury awards, pension
plans, and professional degrees qualify as marital property. Once the
spouse has a vested interest in either a personal injury award or a
pension plan, most states will view it as a divisible marital asset.
However, the courts have come to varying conclusions as to how they
should classify professional degrees. At one end of the spectrum,
some courts do not factor it into a property or alimony agreement.
Others view it as valuable marital property that must be valued and
divided. Somewhere in between, other courts do not view it as
property but do award the party without the degree reimbursement
for the time and money expended in assisting the other spouse in
attaining the degree. Finally, some courts simply take it into account
when calculating possible future earning power and alimony awards.
Another area of concern involves frozen embryos. In the following
case, the court discusses the three main approaches that courts
have taken to determining who controls the disposition of
cryopreserved pre-embryos.
p. 453
p. 454
Terrell v. Torres
438 P.3d 681 (Ariz. Ct. App. 2019)
BACKGROUND
Ruby Torres and John Joseph Terrell disagree about the
disposition of cryogenically preserved embryos created using
Torres’ eggs and Terrell’s sperm. . . . Following an evidentiary
hearing, the court ordered the embryos to be donated to a third
party for implantation. . . .
In June 2014, Torres was diagnosed with an aggressive form of
bilateral breast cancer. Torres’ oncologist explained that she would
need to begin chemotherapy within a month. The oncologist
advised Torres that the chemotherapy would impair her ability to
become pregnant. [S] he elected to undergo IVF to produce
embryos, using her own eggs and donor sperm.
Torres initially asked Terrell, then her boyfriend, to serve as the
sperm donor, but he declined. She began the process of preserving
her eggs and found another sperm donor, a prior boyfriend. Upon
learning of the other volunteer donor, Terrell changed his mind and
agreed to be the donor. He later testified he only did this as a favor.
On July 11, 2014, the parties executed the IVF Agreement, . . .
which included terms regarding the parties’ informed consent . . .
and the disposition of any embryos that might result from the IVF
procedure.
. . .
Divorce or Dissolution of Relationship In the event the patient and her spouse are
divorced or the patient and her partner dissolve their relationship, we agree that the
embryos should be disposed of in the following manner (check one box only).
[1] A court decree and/or settlement agreement will be presented to the Clinic
directing use to achieve a pregnancy in one of us or donation to another couple for
that purpose.
[2] Destroy the embryos.
The parties selected and initialed the first option placing the
disposition decision in the hands of the court. . . .
Four days after signing the IVF Agreement, the parties married.
The IVF procedure yielded seven viable embryos which were
cryogenically preserved for future use. . . . After two years of
marriage, Terrell filed a petition for dissolution of marriage. The
seven embryos were still preserved and there had been no attempt
at implantation. The parties could not agree on the disposition of
the embryos — the primary dispute was whether the court could
award Torres the embryos to achieve a pregnancy.
. . .
I. Overview: The Law of Other States
This is a case of first impression in Arizona. To begin, we must
determine what law should govern the disposition of cryogenically
preserved embryos created using one party’s eggs and another
party’s sperm when the parties disagree. An overview of how other
states have approached this issue provides significant context for
this analysis.
A. The Contract Approach
. . . . The contract approach was first enunciated in Davis v.
Davis, 842 S.W.2d 588, 597 (Tenn. 1992). That case involved
dissolution proceedings, in which there was no prior agreement
between the parties, a husband and wife, regarding the disposition
of cryogenically preserved embryos. The court concluded as a
matter of first impression that the contract approach should be the
preferred method for resolving similar disputes, stating:
We believe, as a starting point, that an agreement regarding disposition of any
untransferred [embryos] in the event of contingencies (such as the death of one or
more of the parties, divorce, financial reversals, or abandonment of the program)
should be presumed valid and should be enforced as between the progenitors.
Id. at 597. The Davis court noted such an approach enables “the
progenitors, having
p. 454
p. 455
provided the gametic material giving rise to the [embryos], [to]
retain decision-making authority as to their disposition.”
The contract approach has been the most preferred and most
adopted approach nationwide.
. . .
The primary criticism of the contract approach is that there are
numerous “uncertainties inherent in the IVF process” that “extend[]
the viability of [embryos] indefinitely and allow[] time for minds, and
circumstances, to change.” Kass, 696 N.E.2d at 180. The court in
Davis agreed:
[W]e recognize that life is not static, and that human emotions run particularly high
when a married couple is attempting to overcome infertility problems. It follows that
the parties’ initial “informed consent” to IVF procedures will often not be truly
informed because of the near impossibility of anticipating, emotionally and
psychologically, all the turns that events may take as the IVF process unfolds. . . .
. . .
Courts have addressed these concerns by permitting parties to
subsequently jointly modify their initial agreement.
. . .
B. Balancing Approach
. . .
The Davis court applied the following framework to balance the
interests of the parties in the absence of a contract:
Ordinarily, the party wishing to avoid procreation should prevail, assuming that the
other party has a reasonable possibility of achieving parenthood by means other
than use of the [embryos] in question. If no other reasonable alternatives exist, then
the argument in favor of using the [embryos] to achieve pregnancy should be
considered.
C. Contemporaneous Mutual Consent
Finally, there is the contemporaneous mutual consent
approach, which has only been adopted by the Iowa Supreme
Court. Witten, 672 N.W.2d 768.
6
Under this approach, “no transfer,
release, disposition, or use of the embryos can occur without the
signed authorization of both donors. If a stalemate results, the
status quo would be maintained.” Id. at 783.
This approach attempts to avoid many of the concerns
regarding judicial or state interference in individual reproductive
choices, which involve “highly personal” and “intensely emotional
matters.” This approach has been criticized “as being totally
unrealistic” given that “[i] f the parties could reach an agreement,
they would not be in court.” Reber, 42 A.3d at 1135 n.5. . . . As such,
applying this approach “invite[s] individuals to hold hostage their
ex-partner’s ability to parent a biologically related child in order to
punish or to gain other advantages.” We agree with such criticism.
We decline to give one party a blanket veto and accordingly reject
this approach.
II. Adoption of the Contract Approach
Having considered each approach, we agree with the majority
of jurisdictions and adopt the contract approach. As the dissent
points out — and to which the majority agrees — contracts matter.
Specifically, we hold that “[a]greements between progenitors, or
gamete donors, regarding disposition of their [embryos] should
generally be presumed valid binding, and enforced in any dispute
between them.” Kass, 696 N.E.2d at 180. Such agreements, like
any contract, can subsequently be modified by written agreement.
If the parties have no prior agreement, or if the agreement leaves
the decision to the court, the balancing approach provides the
7
proper framework for the determination. Such a framework
“recognizes that both spouses have equally valid, constitutionally
based interests in procreational autonomy . . . [and] encourages
couples to record their mutual consent regarding the disposition of
remaining [embryos] in
p. 455
p. 456
the event of divorce by an express agreement.” Rooks, 429 P.3d at
594.
In applying the balancing approach, we agree with other
jurisdictions that the party who does not wish to become a parent
should prevail if the other party has a “reasonable possibility” of
becoming a parent without the use of the embryos. Davis, 842
S.W.2d at 604 (“If no other reasonable alternatives exist, then the
argument in favor of using the [embryos] to achieve pregnancy
should be considered.”). . . .
After reviewing the record, . . . we apply the balancing approach
to the competing interests. The majority finds Torres’ interests in
the embryos — especially given that she gave up the opportunity to
use another donor and she is likely unable to become a parent
(biological or otherwise) through other means — outweighs
Terrell’s interest in avoiding procreation. We therefore vacate the
trial court’s order and remand to the trial court to enter an order
awarding Torres the embryos.
CASE DISCUSSION QUESTIONS
1. What did the court say were the three approaches to
determining the disposition of pre-embryos when the parties who
created them disagree?
2. Which approach did this court adopt? Which do you think is the
best approach and why?
3. One of the first cases to deal with the issue of who should
control the disposition of embryos was Davis v. Davis. 6
Mrs. Davis
was unable to carry a pregnancy to term. She and her husband
turned to what was then a new medical technique, in vitro
fertilization. The doctors removed eggs from Mrs. Davis and fertilized
them in vitro. Seven were frozen for future use. When the Davises
decided to divorce, Mrs. Davis wanted to donate the frozen embryos
to a childless couple. The husband did not want to become a parent.
How do you think the court ruled?
4. In April 2018, after the case was decided in the trial court and
prior to the appellate decisions, the Arizona legislature passed a law
stating that courts should award the embryos to the spouse who
plans to develop the embryo to birth or to the party with the highest
medical probability of pregnancy occurring. The statute added that
the nonconsenting spouse will not be considered to be the parent to
any resulting child, but may be required to provide detailed, written,
nonidentifying information regarding their health and genetic history.
How might this change the approach that Arizona courts will use
when addressing this issue in the future?
5. In 2018, the University Hospitals Fertility Clinic in Cleveland,
Ohio, lost 4,000 eggs and embryos through a freezer failure. A similar
event occurred at Pacific Fertility in California that same year. Several
lawsuits have been filed as a result of the loss of these eggs and
embryos. How should a court determine the monetary worth of those
eggs and embryos?
p. 456
p. 457
(3) Alimony/maintenance agreements
Alimony, also referred to as maintenance or support, was
traditionally awarded to the wife, who had stayed at home and raised
the children, while the husband was working outside the home to
provide the income needed to support the family’s needs. The primary
rationale for alimony was that the divorced wife needed continued
support from the former husband because she lacked either the skills
or experience to support herself after the divorce. In its 1979 decision
in Orr v. Orr, 7
the U.S. Supreme Court ruled that gender-based
alimony violated the equal protection clause of the Fourteenth
Amendment and that the court must decide solely on the basis of the
educational backgrounds and job opportunities of both spouses.
In determining alimony, the court looks to many of the same
factors that are used in equitable property division. Also, the court
may take into account the lifestyle to which the parties have become
accustomed.
The trend in recent years has been to award rehabilitative or
limited-term support rather than a permanent alimony for an
indefinite time period. In many cases the nonworking spouse will be
given support for a specific amount of time to return to school and
reestablish job skills. After that period has expired, the spouse has to
provide for his or her own support. Modern reforms also look to such
factors as the length of the marriage, the impact of future
cohabitation or remarriage by either ex-spouse, and retirement.
Alimony can also be paid in one lump sum rather than over time.
Psychologically, a lump sum payment may allow the parties to “get on
with their lives.” However, there might be severe tax consequences for
the recipient, who might have to pay taxes on the entire amount when
received.
(4) Custody, visitation, and child support
Child custody and visitation rights often become two of the most
cotentious and difficult issues to deal with in a divorce case. Ideally
the divorcing couple puts their own selfish interests aside and works
with a professional mediator to arrive at an arrangement that is in the
best long-term interests of the children. All too often, however, the
issues of custody and visitation are decided in an atmosphere of
acrimony and retribution. Sometimes those ill feelings can even lead
to false charges of child abuse. Nothing can compare to the
emotional trauma felt by everyone involved in a contested child
custody dispute.
(a) Custody Custody can be either legal or physical, and it can be
either sole or joint. Traditionally, it was common for the mother to get
sole legal and physical custody. The trend today is toward joint legal
custody, regardless of who has physical custody.
Physical custody determines with whom the child will live and
who will supervise the child’s day-to-day activities. Legal custody
relates to who will have authority to make legal decisions for the child
relating to such things as health care and education. If one party to
the divorce is given sole custody, that parent
p. 457
p. 458
has both physical and legal custody of the child until either the child
reaches the age of majority or the court decides that it is in the best
interests of the child to change this custody arrangement. Joint legal
custody allows both parents to have an equal say in making major
decisions — for example, decisions regarding the education of the
child. Joint physical custody is also possible, allowing the child to
spend a significant amount of time with each parent. A new trend in
child custody is “nesting” or “bird nesting” to minimize the disruption
the divorce can have on the children. Nesting involves allowing
children to stay in the family home while each parent rotates between
living with the children in the home and living separately in an
apartment the parents rent: in this arrangement the children never
move; the parents do.
When parents live in different states, they often have split
custody, whereby one parent has both physical and legal custody
during the school year and then the other parent gets both physical
and legal custody during designated vacation periods. The term split
or divided custody can also refer to those rare situations when the
court separates the children so that each parent is awarded custody
of one or more of the children.
If the parents cannot agree on a mutually acceptable custody
arrangement, the court holds a hearing at which interested parties
give testimony regarding the child’s needs and the fitness of each
parent. The court should consider the wishes of the parents and the
child; the child’s adjustment to his or her home, school, and
community; and the mental and physical health of all involved. The
court may appoint a guardian ad litem, usually an attorney or a social
worker, to speak for the interests of the child.
(b) Visitation In addition to determining which parent will be given
custody of any children, the court must determine the extent to which
the noncustodial parent can visit the child. Normally, when physical
custody is given to one parent, the noncustodial parent is given
visitation rights and ordered to pay support. However, the right to
visit is not tied directly to the obligation to support. Therefore, if the
custodial parent wrongfully denies the other parent access to the
children, it does not relieve the noncustodial parent of the obligation
to provide support. Likewise, if the support payments are late, that
does not give the custodial parent the right to deny visitation. The
appropriate response in either case is to return to court and ask for a
court-ordered remedy. This is often a difficult concept for divorced
couples to grasp, as evidenced by the following case.
Carroll v. Carroll
593 So. 2d 1131 (Fla. Dist. Ct. App. 1972)
PARKER, Judge.
Jane Carroll, the former wife of Ira Carroll, Sr., appeals a
supplemental final judgment which temporarily suspended child
support based upon her sixteen-year-old son, Hunter Carroll,
refusing to visit his father, Mr. Carroll. Although we sympathize
with a trial judge dealing with an almost impossible situation, we
reverse that portion of the judgment suspending the father’s child
support obligation, concluding that the noncustodial
p. 458
p. 459
parent’s child support obligation does not cease upon the child
refusing to visit the noncustodial parent.
[F] or six years following a final judgment of dissolution of
marriage, there has been bitter strife between Mr. and Mrs. Carroll
over Mr. Carroll’s rights of visitation with their three children. Two
things happened to involve this court. The first was that the
parties’ sixteen-year-old child filed a motion through his mother’s
attorney to have the trial judge terminate the requirement that he
visit his father. The trial court granted the son’s motion. The next
thing to occur was the trial court, on its own motion, terminated
Mr. Carroll’s child support obligation for that child on a temporary
basis until visitation was reinstituted.
We recognize the dilemma of the trial judge and quote from his
order denying Mrs. Carroll’s motion for rehearing:
The Former Wife’s position is that the Court erred in tying a child support obligation
to a visitation issue. Ordinarily, the Former Wife would be correct, and as a general
rule it is clear that both Chapter 61 and the apposite case law provide that child
support cannot be conditioned upon visitation. However, the instant case defies, in
many ways, the general rule.
. . . By the time the temporary visitation order was entered in the fall of last year, the
parties and the child in question had reached a point justifying not only a temporary
cessation of visitation, but also support for that child. Hunter Carroll and his father had
become adversaries in about every sense of the word. They had escalated their enmity
to the point of a physical confrontation. Hunter referred to his father as “Mr. Carroll,”
and indicated no respect whatsoever for him. Hunter actively resisted visitation with
his father and in fact was the movant himself in the motion to terminate visitation.
Hunter Carroll is a very sophisticated, bright, articulate sixteen year old boy who has, as
he so forcefully points out, reached an age of discretion which all but insures that if he
doesn’t want to have meaningful visitation, it simply will not occur. He believes he has
been driven to this emotional juncture by his father’s behavior; the father believes his
son’s attitude is a by-product of the poisonous relationship between him and his
former wife who is the custodial parent. Whatever the truth, it appears to the Court that
where a child of sufficient maturity and intellect and discretion moves to terminate
visitation, and where the motion is granted, this conduct justifies the suspension of
support on a temporary basis. Of course support will be automatically and immediately
re-instated once visitation re-commences.
We first note that this record contains no findings by the trial judge
that Mrs. Carroll orchestrated her son’s motion to terminate
visitation. We do not have to address today what this court’s
position would be if that were the case. . . .
Both natural parents share a duty to support a minor child. . . .
Thus if this animosity had developed between the father and child
while the parents were still married, the father still would have a
duty of support of his family, including Hunter.
This court has recognized that ordinarily, if a parent supports
his child, he has the right to visit the child. However, this court has
further recognized that there are instances where a former spouse
has a duty of support when visitation would not be advisable for
various “sociological, psychiatric and other reasons.” . . .
[W]e are unwilling to say that conduct by a child, not shown to
be orchestrated by one of the parents, should relieve a parent of
his or her duty to support the child. This seems to punish only the
other parent’s ability to pay for that child’s needs.
The all too familiar tragedy in this case is [that] throughout this
scenario, quality time between a child and his father is being lost
which can never be replaced. The parents also should consider the
effect this may have upon the other children.
While fully understanding the trial court’s attempt to do equity
in this case, we reverse and remand with directions for the trial
court to order the payment of all of the suspended child support
payments.
p. 459
p. 460
CASE DISCUSSION QUESTIONS
1. Do you agree with the Carroll court’s decision in this case?
Why?
2. Should the court have considered the needs of the two other
children in reaching its decision?
3. Do you think the court would have reached a different result if it
had found that Mrs. Carroll had “orchestrated” her son’s decision to
terminate visitation? Most courts will not relieve a parent of his or her
obligation to supply child support solely on the basis that the
custodial parent had denied that parent his or her court-ordered
visitation rights. Do you agree with this? Why should the noncustodial
parent have to continue to pay child support if he or she is being
denied visitation rights?
(c) Custody and visitation rights of others Until recently the only
party with standing to request custody or visitation rights after
divorce was the noncustodial parent. Today, however, in some cases
courts have expanded those rights to encompass unwed fathers,
grandparents, stepparents, and gay and lesbian partners.
(i) Unwed fathers In contradistinction to the legal protections
offered unwed mothers, with regard to unwed fathers the U.S.
Supreme Court has stated that the “mere existence of a biological
link” is not enough to merit protection. For example, an unwed father
who has not participated in the rearing of his child or given any
financial support is not entitled to a hearing before his child can be
8
adopted by the stepfather. However, if an unwed father has
demonstrated a full commitment to parental responsibilities, then his
desire for personal contact with his child will acquire substantial
protection under the due process clause of the Fourteenth
Amendment. For example, where the father had lived with the mother
and his children off and on for 18 years, the unwed father was entitled
9
to a hearing before the state could take his children from him.
(ii) Grandparents Traditionally, grandparents had no legal rights to
visitation. In recent years, however, the courts have been more willing
to grant visitation rights if the children are no longer living in an intact
home with both parents and if it can be shown to be in the best
interests of the children.
By 1999, a majority of the states had enacted legislation allowing
third parties, such as grandparents, to petition for visitation, at least
in situations where the parental unit was no longer intact due to
divorce, separation, or death. In Troxel v. Granville, 10
the U.S.
Supreme Court was asked to rule on the constitutionality of a
Washington state statute that allowed any third party to petition for
visitation if it was in the “best interests” of the child. The Supreme
Court held that the Constitution protects the interest of parents in the
care, custody, and control of their children and that the Washington
statute unconstitutionally
p. 460
p. 461
infringed on that right. The Court noted that the statute was
“breathtakingly broad” in that it allowed any person (with no
requirement that the person have established a substantial
relationship to the child) to petition the court for visitation at any time
(with no requirement that the parent first be deemed unfit, that
evidence be introduced showing that the child would be adversely
affected by the lack of visitation, or that the parent first have
unreasonably denied visitation). Although the Court invalidated the
Washington statute, it limited its decision to the specifics of that
statute and declined to address the validity of the statutes enacted by
the other 49 states. However, the case can be seen as standing for
the general proposition that the rights of grandparents are
subservient to those of a fit parent’s right to exclusive care and
control of the child.
(iii) Stepparents When divorced parents remarry, their children
often form very strong “parental” bonds with the new stepparent.
However, if stepparents do not take the necessary steps to adopt the
child of the new spouse, they may have no visitation rights if they
divorce or their spouse dies. Sometimes visitation is allowed if the
court determines that the person has become a “de facto parent”
through prolonged contact and care for the child. However, it is not
wise to rely on this exception. A safer approach is to adopt the child.
However, adoption is not always a viable option. For example, in In re
EWB Applying for Adoption 11
a stepfather was denied the right to
adopt his wife’s daughter even though he was “an ideal father figure”
and the girl only occasionally saw her natural father, who owed
unpaid child support. The court determined that it was in the best
interest of the child to have “the best of both worlds” and denied the
12
adoption request.
In an unusual case, an Oregon court granted custody to a
stepfather. In Fenimore v. Smith 13
a 12-year-old girl was present
when her mother died of heart failure. Experts testified that the girl
suffered great guilt because she felt the mother died as a result of
being upset over an argument between her and her half-sister. In
addition, the girl did not administer CPR and called her father rather
than dialing 911. In those circumstances the court ruled it would be
an additional loss for the girl to be taken away from her stepfather
and half-sister.
However, other courts have held the opposite, stating that unless
the biological parent has abused or neglected the child, the award of
custody must be to the natural parent. For example, in the case of In
re A.R.A., 14
the parents, Tracy and Bill, were married for six years.
During that time A.R.A. was born. When she was 19 months old, they
divorced, and Tracy was given custody. A year later Tracy married
Patrick, and they had a son. Then Tracy died in a plane crash. In her
will Tracy named Patrick A.R.A.’s guardian. When Bill came to pick up
A.R.A., Patrick refused. The trial court determined that there was a
close relationship between Patrick and A.R.A., that she was attached
to her half-brother, that Patrick’s parenting skills were better than
Bill’s, and that A.R.A. would be
p. 461
p. 462
adversely affected by changing schools and homes. The court
awarded custody to Patrick. The Montana Supreme Court reversed. It
stated that the “best interest of the child” test can be used only after a
showing of dependency or abuse and neglect by the natural parent.
Because there was no such showing here, the natural parent should
15
be awarded custody.
(iv) Gay and lesbian partners After the United States Supreme
Court’s decision in Obergefell v. Hodges, it became settled law that
same-sex couples have a fundamental right to marry. Additionally, the
court noted that same-sex couples should have access to the
“constellation of benefits that States have linked to marriage.”
Including
taxation; inheritance and property rights; rules of intestate succession; spousal privilege
in the law of evidence; hospital access; medical decision making authority; adoption
rights; the rights and benefits of survivors; birth and death certificates; professional
ethics rules; campaign finance restrictions; workers’ compensation benefits; health
16
insurance; and child custody, support, and visitation rules.
The Court further addressed that specific issue in the 2017 case
of Pavan v. Smith. 17
Two same-sex couples, who had conceived
children through artificial insemination, sued for the right to have both
spouses’ names entered on their child’s birth certificate. The state of
Arkansas had denied them this right because, according to an
Arkansas statute, when a woman has a child through artificial
insemination, in addition to the birth mother, the name of the
woman’s male spouse must be listed on the birth certificate. The
Arkansas Supreme Court determined that denying the non-birth
mother the right to have her name on the birth certificate was not a
part of the “constellation of benefits that the Stat[e] ha[s] linked to
18
marriage,” because parental information was based on biology and
not on the marital relationship. The U.S. Supreme Court disagreed. It
held that the Arkansas statute was unconstitutional. In fact, in
Obergefell, 19
the Court had specifically identified a same-sex parent’s
right to be listed on a birth certificate. While the full scope of the
“constellation of benefits” is still being litigated, the majority,
concurrent, and dissenting opinions in Smith v. Pavan show the
thoughts of the Justices regarding the future of that litigation.
(d) Child support The level of child support that the noncustodial
parent will be required to contribute is another frequently contentious
aspect of divorce proceedings. These determinations require a
careful balancing of such factors as the parents’ income and
standard of living, the child’s age, and the child’s health and
educational needs. The courts retain jurisdiction over this aspect of
the divorce decree and often modify the support order based on
changes in a parent’s job status or remarriage.
p. 462
p. 463
Every state has guidelines to help the courts determine how much
the child support payments should be. Usually, the court has
discretion to either increase or decrease these amounts based on a
number of factors, such as the income of the parents and the number
of children.
One of the biggest problems with child support is collecting it. The
problem of “deadbeat dads” has been widely publicized in recent
years and has resulted in significant legislation at both the state and
the national levels. In most states the custodial parent can attach the
wages of the delinquent parent. Through a process called
garnishment, a court can require an employer to withhold money
from an employee’s wages and turn this money over to the party to
which a debt is owed. Some states assist in the collection of child
support by requiring that the payments be made directly to the local
clerk of the court.
If the parent with a child support obligation moves to another
state, two uniform laws come into play: the Uniform Reciprocal
Enforcement of Support Act (URESA), adopted by all 50 states, and
the Uniform Interstate Family Support Act (UIFSA), adopted by
approximately half the states. Both allow an order for support issued
in one state to be enforced in another state. A major difference in the
two laws is whether the enforcing state is allowed to modify the
original support order. Under URESA it can; under UIFSA it cannot.
The federal Child Support Recovery Act of 1992, with enforcement
20
provisions added by the Deadbeat Parents Punishment Act of 1998,
authorizes extradition — that is, the return of delinquent parents for
criminal prosecution — in states that make willful failure to pay child
support a crime.
DISCUSSION QUESTIONS
6. In settling custody issues the courts are supposed to use a
“best interest of the child” standard. To what extent do you think it is
appropriate for the courts to take into consideration such things as a
parent’s gender, age, or religion? In determining custody how much, if
any, consideration should be given to the fact that one parent smokes
and would therefore be exposing the child to secondhand smoke?
What if the new partner of one of the parents is of a different race
than the child?
7. To what extent should children at various ages be permitted to
help determine which parent should have custody?
8. What should the court do if a child refuses to visit the
noncustodial parent? In the case of In re Marriage of Marshall, 663
N.E.2d 1113 (Ill. App. 1996), nine-year-old Rachel and 13-year-old
Heidi flatly refused to visit their father. The court “found both Rachel
and Heidi to be in direct civil contempt. The court ‘grounded’ Rachel,
and ordered that she not leave her mother’s home. Rachel could not
watch television or have friends over to the house, but she could read
and do crafts. The court ordered [the mother] to enforce these
measures. The court placed Heidi in a juvenile detention facility until
she agreed to go to North Carolina. The judge indicated that the girls’
conduct arose from the efforts of adults to manipulate the system.”
Id. at 1119. Do you agree that such sanctions are appropriate? What
other remedies do you think the court could have pursued?
p. 463
p. 464
9. Which of the following two provisions for child visitation do you
prefer? Do you think your answer might vary depending on the couple
involved? Why?
■ The parties shall determine visitation schedules between
them. At a minimum the husband will see the children at
least two weekends a month and one day or early evening
during the week.
■ The husband will have visitation with the three children every
other weekend, commencing at 6:00 P.M. on Friday evening,
when he will pick up the children at the wife’s home. He will
return them at 6:00 P.M. on Sunday evening.
B. THE PARENT-CHILD RELATIONSHIP
Having discussed the legal nature of the marital relationship, we now
turn to a second major area of family law — the relationship between
parents and their children. In this section we will cover the procedure
for establishing paternity, adoption, surrogacy, parental rights, child
neglect and abuse, and the status of minors.
1. Establishing the Relationship
In most cases the parent-child relationship is legally established at
the point at which the names of the mother and father are recorded
on a child’s birth certificate, either at the time of birth or later through
an adoption proceeding. While there have always been situations in
which the identity of the father has not been clear, because of current
advances in the scientific methods for treating infertility, both legal
(as opposed to biological) paternity and legal maternity may be
difficult to establish. For example, in the case of an anonymous
sperm donor, state statutes cut off all rights of the donor and vest
paternity in the married husband. However, if an unmarried woman
has knowledge of a sperm donor’s identity, then the donor may later
be in a position to assert paternity rights. Another difficult situation
occurs when an infertility clinic artificially combines a man’s sperm
with a woman’s egg and then implants that fertilized egg into the
womb of a second woman. The result is a genetic mother and a
gestational mother. In this section we will discuss how parental rights
are established through paternity actions, adoption, sperm or egg
donation, and surrogacy arrangements.
a. Paternity Actions
The need to establish paternity usually arises when the mother
wishes her child to receive court-ordered support payment from the
alleged father. As one aspect of recent attempts at “welfare reform,”
many states have become much more aggressive in identifying
fathers of children born out of wedlock.
Regulations in some states require the mother to name the child’s
father as a condition of qualifying for welfare benefits. The
government itself then takes the lead in filing petitions to establish
paternity that require the alleged father to submit to blood tests and
to pay child support if found to have fathered the child.
p. 464
p. 465
An increasingly common occurrence is the case of a presumptive
father who voluntarily desires to establish paternity in order to gain
custody or visitation rights. For unwed fathers who wish to voluntarily
assert their paternity, some states have established a putative
fathers’ registry. Signing the registry ensures that the father will be
notified before any court determination regarding adoption of the
child.
When a man wishes to establish himself as a child’s father and he
was not wed to the mother at the time of birth, he may run into a
presumption that a husband who was living with his wife at the time
of the birth is the father of the child. Such presumptions sometimes
can be overcome if evidence shows the husband is impotent or
sterile or if a blood test shows the child could not be his. However,
some courts treat this presumption as a conclusive presumption and
will not allow paternity to be established even through DNA testing.
An example of a court allowing the father to overcome such a
presumption in favor of the husband is the case of Comino v.
Kelley. 21
In that case the evidence established that although the
child’s mother, Stephanie Kelley, was legally married to Jeffrey Moyer,
the marriage had been a mutually convenient “business relationship”
that involved living in separate bedrooms. When Kelley became
pregnant after having had intercourse with Paul Comino, she told him
that he was the father, and prior to the birth she moved into Comino’s
home. Comino attended at least one Lamaze childbirth class with
Kelley, was present at the birth, and was identified as the father on
the birth certificate. After the birth Kelley, Comino, and the baby all
returned to Comino’s house, and birth announcements were sent
identifying him as the father. More than two years later Kelley moved
out of Comino’s home. When she threatened to restrict his access to
the child, Comino went to court to formally establish his parental
relationship and to obtain joint physical and legal custody. Kelley, in
turn, asserted that “as a matter of law” Moyer was presumed to be
the child’s father because she had been married to him at the time
the child was conceived.
In ruling in Comino’s favor the California appellate court found that
Comino’s fatherhood was established by another section of the
California Code that provides a presumption for paternity when a man
“receives the child into his home and openly holds out the child as his
22
natural child.” The court ruled, in effect, that this statutory
presumption took precedence over the one on which Kelley relied.
In a case involving parental rights between two married women,
23
the Arizona Supreme Court ruled that “paternity” should be applied
the same way in same-sex marriages as it is in opposite sex
marriages. Under Arizona law, a man is presumed to be the child’s
parent if his wife gives birth during their marriage. Citing Obergefell v
Hodges, the court held that the same benefit should apply in the case
of same-sex marriages.
p. 465
p. 466
DISCUSSION QUESTIONS
10. Do you agree with a policy that denies welfare assistance to a
child because the mother refuses to cooperate with authorities in
identifying the child’s father?
11. A 15-year-old girl was raped and found herself pregnant. She
decided not to have an abortion but to give the child up for adoption.
The rapist, however, had other plans. He threatened to assert his
paternity rights by signing the state’s putative fathers’ registry unless
the girl dropped the charges against him. What actions do you think a
state can take to protect the rights of unwed fathers, while preventing
such abuses of the system?
12. Do you think the courts should continue to follow the
conclusive presumption that a child born of married parents is their
child?
b. Adoption
Adoption is the legal process by which someone other than a
child’s natural parent assumes the legal rights and responsibilities as
a parent for the child. The new adoptive parent literally takes the
place of the child’s natural parent. Therefore, before the new parent-
child relationship can be established, either the child’s natural parents
must voluntarily relinquish their parental rights, or a court of
competent jurisdiction must terminate such rights. For example, if a
woman remarries and her new husband wishes to adopt her child
from her previous marriage, he cannot do so until the child’s natural
father either voluntarily gives up his parental rights or has them
terminated by a court.
Open adoptions, allowing birth parents to have some contact with
the child, are becoming more common. Not all states have laws in
this area, but often the birth parent(s) and adoptive parent(s) will sign
a post-adoption contract to set out the terms of the arrangement.
There is also a process for adult adoptions, which allows one
adult to adopt another adult as a son or daughter. Such an adoption
requires the consent of both parties and is designed to establish
certain rights under the probate laws. The remainder of this section
will focus on the more common occurrence of infant or child
adoptions.
Most states have different procedures and rules for agency
adoptions and independent adoptions. Many agency adoptions
involve children born out of wedlock to parents who do not feel they
are prepared to accept the responsibilities of parenthood. Licensed
agencies assume responsibility for these children, providing
temporary foster care, and screen individuals and couples who wish
to adopt. An independent adoption is one that involves a private
agreement between the birth parents and the adoptive parents. Such
adoptions still require investigations by approval agencies and formal
actions by the courts.
Some states have adopted formal criteria that are to be used in
selecting among potential adoptive parents. In California, for example,
the first choice is a relative. If that is not possible or is not in the
child’s best interest, the foster parents as well as others can be
considered. In making that determination the religious background of
the child may be taken into account. However, the agency may not
delay or deny the placement “on the basis of the race, color, or
p. 466
p. 467
24
national origin of the adoptive parent or the child involved.” When a
match is made, the new parent or parents are given temporary
custody of the child for a trial period, during which the agency
monitors the new parents’ care of the child. During this time a social
worker or other official conducts a home study to determine whether
they are fit to adopt.
Before an adoption can be finalized, the birth parents must sign a
document agreeing to give up their parental rights. Usually, this
release cannot be signed prior to the baby’s birth. Once it is signed,
however, normally the birth parents cannot take back their
relinquishment of parental rights unless they can show their consent
was obtained by fraud. After the birth parents have released their
parental rights and the adoptive parents are deemed fit, the adoptive
parents must go to court to have the adoption finalized. Therefore,
the child can live with the adoptive parents for a lengthy period before
the adoption is finalized by the court.
DISCUSSION QUESTIONS
13. Do you agree with the placement criteria included in the
California statute discussed above? What is the justification for
matching the child’s religious background with those of the adoptive
parents? Should that factor take preference over the economic and
lifestyle advantages that an alternative placement might have?
14. Should children be allowed to “divorce” their parents so that
they can be adopted by others?
The importance of obtaining and documenting the consent of the
child’s natural parents to an adoption is illustrated in a highly
controversial Illinois Supreme Court decision, the “Baby Richard”
case.
In re Petition of John Doe and Jane Doe, Husband and
Wife, to Adopt Baby Boy Janikova
159 Ill. 2d 347, 638 N.E.2d 181 (1994)
Justice HEIPLE delivered the opinion of the court:
John and Jane Doe filed a petition to adopt a newborn baby
boy. The baby’s biological mother, Daniella Janikova, executed a
consent to have the baby adopted four days after his birth without
informing his biological father, Otakar Kirchner, to whom she was
not yet married.
The mother told the father that the baby had died, and he did
not find out otherwise until 57 days after the birth. The trial court
ruled that the father’s consent was unnecessary because he did
not show sufficient interest in the child during the first 30 days of
the child’s life. The appellate court affirmed with one justice
dissenting. We granted leave to appeal and now reverse. Otakar
and Daniella began living together in the fall of 1989, and Daniella
became pregnant in June of 1990. For the first eight months of her
pregnancy, Otakar provided for all of her expenses.
In late January 1991, Otakar went to his native Czechoslovakia
to attend to his gravely
p. 467
p. 468
ill grandmother for two weeks. During this time, Daniella received a
phone call from Otakar’s aunt saying that Otakar had resumed a
former romantic relationship with another woman.
Because of this unsettling news, Daniella left their shared
apartment, refused to talk with Otakar on his return, and gave birth
to the child at a different hospital than where they had originally
planned. She gave her consent to the adoption of the child by the
Does, telling them and their attorney that she knew who the father
was but would not furnish his name. Daniella and her uncle warded
off Otakar’s persistent inquiries about the child by telling him that
the child had died shortly after birth.
Otakar found out that the child was still alive and had been
placed for adoption 57 days after the child was born. He then
began the instant proceedings by filing an appearance contesting
the Does’ adoption of his son. As already noted, the trial court ruled
that Otakar was an unfit parent under section 1 of the Adoption Act
because he had not shown a reasonable degree of interest in the
child within the first 30 days of his life. Therefore, the father’s
consent was unnecessary under section 8 of the Act.
The finding that the father had not shown a reasonable degree
of interest in the child is not supported by the evidence. In fact, he
made various attempts to locate the child, all of which were either
frustrated or blocked by the actions of the mother. Further, the
mother was aided by the attorney for the adoptive parents, who
failed to make any effort to ascertain the name or address of the
father despite the fact that the mother indicated she knew who he
was. Under the circumstances, the father had no opportunity to
discharge any familial duty.
In the opinion below, the appellate court, wholly missing the
threshold issue in this case, dwelt on the best interests of the child.
Since, however, the father’s parental interest was improperly
terminated, there was no occasion to reach the factor of the child’s
best interests. That point should never have been reached and
need never have been discussed.
Unfortunately, over three years have elapsed since the birth of
the baby who is the subject these proceedings. To the extent that it
is relevant to assign fault in this case, the fault here lies initially
with the mother, who fraudulently tried deprive the father of his
rights, and secondly, with the adoptive parents and their attorney,
who proceeded with the adoption when they knew that a real
father was out there who had been denied knowledge of his baby’s
existence. When the father entered his appearance in the adoption
proceedings 57 days after the baby’s birth and demanded his
rights as a father, the petitioners should have relinquished the baby
at that time. It was their decision to prolong this litigation through
a lengthy, and ultimately fruitless, appeal.
The adoption laws of Illinois are neither complex nor difficult of
application. Those laws intentionally place the burden of proof on
the adoptive parents in establishing both the relinquishment
and/or unfitness of the natural parents and, coincidentally, the
fitness and the right to adopt of the adoptive parents. In addition,
Illinois law requires a good-faith effort to notify the natural parents
of the adoption proceedings. These laws are designed to protect
natural parents in their preemptive rights to their own children
wholly apart from any consideration of the so-called best interests
of the child. If it were otherwise, few parents would be secure in
the custody of their own children. If best interests of the child were
a sufficient qualification to determine child custody, anyone with
superior income, intelligence, education, etc., might challenge and
deprive the parents of their right to their own children. The law is
otherwise and was not complied with in this case.
Accordingly, we reverse.
Justice HEIPLE, writing in support of the denial of rehearing:
I have been a judge for over 23 years. In that time, I have
seldom before worked on a case that involved the spread of so
much misinformation, nor one which dealt with as straightforward
an application of law to fact.
. . .
p. 468
p. 469
As for the child, age three, it is to be expected that there would
be an initial shock, even a longing for a time in the absence of the
persons whom he had viewed as parents. This trauma will be
overcome, however, as it is every day across this land by children
who suddenly find their parents separated by divorce or lost to
them through death. It will not be an insurmountable trauma for a
three-year-old child to be returned, at last, to his natural parents
who want to raise him as their own. It will work itself out in the
fullness of time. As for the adoptive parents, they will have to live
with their pain and the knowledge that they wrongfully deprived a
father of his child past the child’s third birthday. They and their
lawyer brought it on themselves.
This much is clear. Adoptive parents who comply with the law
may feel secure in their adoptions. Natural parents may feel secure
in their right to raise their own children. If there is a tragedy in this
case, as has been suggested, then that tragedy is the wrongful
breakup of a natural family and the keeping of a child by strangers
without right. We must remember that the purpose of an adoption
is to provide a home for a child, not a child for a home.
CASE DISCUSSION QUESTIONS
1. The trial court stated: “Fortunately, the time has long past when
children in our society were considered the property of their parents. .
. . [W]e start with the premise that Richard is not a piece of property
with property rights belonging to either his biological or adoptive
parents. Richard ‘belongs’ to no one but himself. . . . A child’s best
interest is not part of an equation. It is not to be balanced against any
other interest.” Obviously, the Illinois Supreme Court disagreed.
Articulate the standard adopted by the Illinois Supreme Court. Which
standard, that of the trial court or that of the supreme court, produces
the more just result? Just to whom?
2. The Illinois Supreme Court’s decision in the “Baby Richard”
case brought on a great deal of negative media coverage, including
Chicago Tribune columns by Bob Greene entitled “Damn Them All,”
“The Sloppiness of Justice Heiple,” and “Supreme Injustice for a Little
Boy.” Following Greene’s columns, the governor publicly backed
legislation designed to change the court’s decision. Do you think this
is the type of decision that should be left to the courts, or could it be
better handled through legislation? Why?
3. If you were drafting a statute to cover the type of situation that
occurred in this case, what balance would you strike between the
parents’ rights to their natural-born children and the rights of adoptive
parents? In drafting your statute consider the proper balance between
the natural parents’ rights to keep their children and the “best interest
of the child.”
4. Three years after this case was decided, it was reported that
Otakar Kirchner had moved out of his home, leaving custody of Baby
Richard to his birth mother. Does this have any impact on your view
as to whether the court reached a just decision in this case?
(1) Adoption records
Once a child is adopted, the original birth certificate is placed in
the court records, and a new birth certificate is issued with the names
of the adoptive
p. 469
p. 470
parents. Those records are then sealed to protect the privacy of all
the parties. In recent years many adults who were adopted as
children have sought access to such records to learn the identity of
their natural parents. In response to this “desire to know,” some states
have developed a registry system whereby adopted children and birth
parents can let a state agency know they desire to be reunited. If both
sides contact the agency, then the agency will facilitate such a
reunion. In addition, records may be opened if the adoptee can show
a compelling medical need. However, in the absence of such a
procedure or a medical need the courts have been reluctant to open
adoption records.
25
In recent years a few states have changed this traditional
approach by enacting laws allowing adult adoptees access to their
original birth records. This makes it much easier for adoptees to track
down their birth parents. Such laws have created an emotional
debate. On the one side are the adoptees who feel they have an
absolute right to find out “who they are and where they came from.”
On the other side are the birth parents who wish to remain
anonymous and who do not want to be contacted by the children
they gave up for adoption. In response to this concern, most states
have a provision whereby birth parents can file a “no contact” request.
(2) Tort of wrongful adoption
Although adoption is a lifelong commitment from which the
parents cannot escape, recently several states have developed a new
tort of wrongful adoption. For example, in the case of Mohr v.
Commonwealth 26
the court held that an adoption agency must notify
the prospective parents of information that would enable them to
make a knowledgeable decision about whether to adopt the child. In
that case the social worker had not told the parents that the birth
mother was hospitalized for schizophrenia and that the child had
been diagnosed as developmentally delayed. While this would not
form the basis for revoking the adoption, it would provide grounds for
the recovery of resulting medical and educational expenses. States
vary as to whether they require an act of intentional fraud on the part
of the agency or whether negligent failure to disclose will suffice.
c. Assisted Reproduction
While sperm donation and artificial insemination have been
available for many years, thanks to advances in medicine, those
yearning for a child have found new ways to conceive: through egg
donation and surrogacy arrangements. All of these methods have
spawned a host of legal issues.
(1) Sperm and egg donation
As mentioned earlier, traditionally, an anonymous sperm donor
acquired neither parental rights nor obligations. Absent a written
agreement to the
p. 470
p. 471
contrary, in some states this remains true even when the donor is
known to the woman receiving the sperm. For example, a Kansas
man was asked by an unmarried female friend to donate his sperm
so that she could have a child. He agreed with the understanding that
he would act as the father. However, they never put their agreement in
writing, and when the woman petitioned the court the day after her
27
twins were born, he found that he was without any parental rights.
This is because the state in which he lived, Kansas, had enacted a
statute providing that absent a written agreement, sperm donors
have no parental rights.
However, most states do not have any provisions covering
situations such as this where the donor is known to the mother, and
so the law varies greatly from state to state. In fact, in some states a
sperm donor doing a “favor” for a friend may later find himself
obligated to provide child support. Consider the case of William
Marotta. An advertisement on Craigslist caught his eye. It had been
placed by a lesbian couple, seeking donated sperm. Intrigued, he
decided to help and donated three cupfuls of his sperm. He and the
women signed an agreement that he would not be financially
responsible for any child conceived with the use of his sperm.
Nonetheless, four years later, the state pursued Marotta for child
support. The state argued that because the insemination procedure
was performed at the woman’s home, rather than at a doctor’s office,
the signed agreement was meaningless. Marotta had no way to prove
he was a sperm donor rather than the woman’s lover. A judge agreed
28
and ordered Marotta to pay child support.
In an interesting case involving egg donation, a dispute arose
between a genetic father and a gestational mother. The unmarried
couple had conceived and given birth to triplets following an egg
implantation from an anonymous donor. When the couple’s
relationship deteriorated, the mother sought custody and child
support. The father argued that she did not qualify as a parent as she
had no genetic connection to the children and asked for sole custody.
29
The court found that the woman was the children’s legal mother.
In 2000, the Donor Sibling Registry was created to assist those
conceived through sperm donation in making contact with others
30
with whom they share genetic ties. DNA testing has made finding
sperm donors and siblings much easier. A 2019 study done by the
Registry shows that of those who chose to search for their sperm
donor or siblings through the sperm donor, 24% searched using DNA
testing. The New York Times reported that there are hundreds of half-
sibling groups that number more than 20, and that groups larger than
31
100 are far from rare.
DISCUSSION QUESTION
15. In 2018, for Christmas, Danielle Teuscher gave DNA tests to
everyone in her family. To her surprise, the results provided the
identity of her child’s
p. 471
p. 472
grandmother, the mother of the anonymous sperm donor she had
used. She attempted to reach out to the family in hopes they would
want to make contact with her or her daughter, but instead she
received a cease and desist letter from the sperm bank she had used,
NW Cryobank. Citing a privacy agreement that she had signed, the
sperm bank threatened Ms. Teuscher should she continue to seek the
32
identity of the donor. They also said they were going to deny her
access to four vials of sperm that she had already purchased that
were from the same donor. (If she had future children, she wanted
them to be full siblings.) Do you think the sperm bank should be able
to prevent Ms. Teuscher from locating the sperm donor? What about
her child? When her child reaches the age of 18, should she be able to
use DNA testing to locate her father and other relatives?
(2) Surrogacy contracts
In 1984, Mary Beth Whitehead agreed to be the surrogate mother
for a childless couple, William and Betsy Stern. Mary Beth was
impregnated using her own eggs and William’s sperm. Once the child,
Baby M, was born, Mary Beth found she could not give her up, ignored
the contract she had signed, refused the $10,000 surrogacy payment,
and fled the state. Four years later, the New Jersey Supreme Court
33
invalidated the contract as “the sale of a child.” The court feared
long-term negative effects if surrogacy contracts were allowed:
the impact on the child who learns her life was bought, that she is the offspring of
someone who gave birth to her only to obtain money; the impact on the natural mother
as the full weight of her isolation is felt along with the full reality of the sale of her body
and her child; the impact on the natural father and adoptive mother once they realize the
34
consequences of their conduct.
The court granted custody to William, the natural father, based on
what it viewed as the best interests of the child, but refused to
terminate Mary Beth’s parental rights, granted her visitation rights,
and voided the adoption by Betsy Stern.
Prior to the Baby M case, most states had no laws regarding
surrogacy contracts. However, that case created a flurry of state
legislation and within a year over half of the states had new laws
regulating or banning all but “compassionate surrogacy.” Such laws
provide that the surrogate can receive no financial compensation.
Since then, there have been changes both to the methods used to
create a child through a surrogacy arrangement and societal views
towards surrogacy.
As to the methods used, the Baby M case involved “traditional
surrogacy,” whereby the surrogate was artificially inseminated using
her own egg and the intended father’s sperm. Today, it is much more
common to use “gestational surrogacy,” whereby the egg and sperm
come from either an intended parent or a donor. The surrogate is not
genetically related to the baby.
p. 472
p. 473
States, such as California, have approved of gestational surrogacy
and provide that the “intended parents” will become the legal parents.
California also allows compensation to the surrogate. Such fees for
services, along with medical costs and legal fees, can easily bring the
cost of a surrogacy to $100,000. One reason the cost is so high is
because those living in states that do not allow paid surrogate
contracts arrange to have their child born in California, thereby
increasing the demand for California surrogates. Also increasing the
demand is the number of married male couples who see surrogacy
as a way to create a child genetically linked to at least one of the
spouses. To make surrogacy more available and affordable, some
35
states, such as New York, are considering amending their
surrogacy laws to allow for compensated surrogacy.
DISCUSSION QUESTIONS
16. Opponents of surrogacy contracts argue that they should be
outlawed because they amount to baby selling. Defenders of
surrogacy contracts claim such contracts do not involve the
purchase of a baby — they merely provide compensation to the
surrogate mother for her time and expenses. With which position do
you agree?
17. Opponents of surrogacy contracts also argue that they should
be outlawed because they exploit women. Defenders counter that
they are not exploitive because the women who agree to be surrogate
mothers do so voluntarily and wish to help other women have babies
of their own. Whose arguments do you find most persuasive and
why? What kind of protections, if any, could be built into surrogacy
contracts to prevent exploitation?
18. Jane and John Doe entered into a traditional arrangement.
The result was the birth of a girl. Since birth, she has lived with Jane
and John Doe. However, the surrogate mother never terminated her
parental rights. Jane and John Doe are now divorcing. The girl is 13
years old. Through blood testing John Doe was determined to be the
natural father. The surrogate mother, not Jane Doe, is the natural
mother. Both Jane and John Doe are seeking custody or, in the
alternative, visitation rights. How do you think the court should rule?
19. Do you think the law should treat anonymous and known
sperm donors the same?
Case 13: The Modern Family (Continued)
Given all of the possible legal complications involved in both in
vitro fertilization using a “friend’s” sperm and issues establishing a
same-sex marital partner’s parental rights, Tris and Isolde would be
well advised to return to Darrow and Bryan before proceeding with
either approach to bringing a child into their family.
p. 473
p. 474
2. Parental Rights, Responsibilities, and Liabilities
Parents have traditionally been given a great deal of discretion with
respect to how they raise their children. Although they are required to
provide an education, they can choose public schools, private
schools, or in some states “home schooling.” Parents can also decide
the religious tradition and value structure in which they wish to raise
their children. And short of crossing the line into child abuse, they can
determine how they wish to discipline their children.
Under the common law parents are normally not liable for their
child’s negligent acts unless the injury was caused by the parents’
own negligent failure to properly supervise the child. In addition, if a
child intentionally harms someone, the parent can be held
responsible only if the parent was negligent in supervising the child’s
activities. Section 316 of the Restatement of the Law of Torts,
Second describes a duty to exercise reasonable care to control one’s
minor children to prevent them from intentionally harming others.
However, the comments point out that a parent is only responsible for
a child’s conduct insofar as the parent had the ability to control it.
In derogation of the common law, some states have statutes
making parents strictly liable for the intentional torts of their children.
However, when only property is damaged, there is often a liability cap,
usually set to a relatively low amount of no more than a few thousand
dollars.
3. Child Neglect and Abuse
The state imposes responsibilities on parents to provide food, shelter,
medical care, and other basic needs for their children. It also prohibits
parents from physically or mentally abusing their children.
Unfortunately, there are often differences of opinion as to when one
crosses the line between a parent’s right to discipline a child and the
state’s right to protect that child from abuse.
As a society we have been reluctant to criminalize family law
issues for several reasons. First, the courts are already struggling to
manage their caseloads and are naturally cautious about adding to
them by criminalizing family law issues. Second, law enforcement
personnel have often been hesitant to arrest those who abuse family
members. This is due both to a concern that an arrest will escalate
the tension and to an awareness that frequently the victim will later
refuse to prosecute, thereby eliminating any possibility that the
abuser can be convicted. Third, what constitutes child neglect or
abuse is colored by time and culture. For example, corporal
punishment has been viewed with varying degrees of approval over
time and across cultures. Fourth, as a society we are torn by the
conflict between our belief that parents should have the right to raise
their children as they see fit and our desire to protect those children.
For example, if a parent’s refusal to allow his or her child to receive
needed medical treatment is based on strongly held religious views,
should the state be allowed to interfere with that decision?
Generally, child neglect can be defined as the negligent failure to
provide a child with necessaries, such as food, clothing, shelter, and
education. Child abuse involves intentional misconduct. However, in
specific cases it is often difficult to determine where neglect stops
and abuse begins. For example, the failure to feed
p. 474
p. 475
a child breakfast occasionally might be seen as neglect. The failure to
feed a child breakfast every day might be seen as abuse.
NETNOTE
Concerned over making decisions about abused and neglected
children’s lives without sufficient information, a Seattle judge
conceived the idea of using trained community volunteers to speak
for the best interests of these children in court. So successful was
this Seattle program that soon judges across the country began
utilizing citizen advocates. This program is now known as CASA,
Court Appointed Special Advocates. To learn more about CASA and
how to train as a volunteer, go to its national website at
www.nationalcasa.org.
Evidence of abuse or neglect triggers state intervention, which
can begin a multiyear process of trying to meet the needs of both the
child and the parents. Normally the state first becomes aware of a
potential neglect or abuse situation when someone reports
suspicions of child neglect or abuse. Every state requires that those
in a position of trust or authority with regard to children, such as
teachers and doctors, report any suspected abuse. Because the state
has the power to protect its citizens, including its children, it has the
right to investigate such reports. Usually, the first step is to try to get
voluntary compliance. If that is not possible, the investigating agency
may request court-ordered physical examinations of the child, visits
to the home, and a general psychological evaluation of the family.
During this process the court may appoint a guardian ad litem to
represent the child. If the end result of the investigation is a
determination that the child is in danger, the court may remove the
child from the home and place the child in foster care. The final and
most drastic remedy is termination of parental rights.
A state must have “clear and convincing” evidence before
parental rights can be terminated. A clear and convincing standard is
something more than a preponderance of the evidence (used in most
civil suits) but less than beyond a reasonable doubt (used in criminal
cases).
Child advocates argue that this standard is too difficult to meet,
thereby allowing children to remain with abusive or neglectful
parents. Those representing parents, however, argue that, short of
incarceration or death, there is no harsher penalty that the state can
impose than removing children from a parent’s care. Therefore, they
argue the standard is not efficiently stringent to protect parental
rights.
Evidence of the lack of parental fitness can result from direct
actions of the parent, as well as from a parent’s refusal to act to
protect a child. For example, when a mother did nothing to protect her
child from the abuse of her third
p. 475
p. 476
husband (the child was found naked in a filthy motel room with
multiple bruises and cigarette burns), the court involuntarily
36
terminated her rights.
DISCUSSION QUESTIONS
20. To what extent should child abuse protection laws apply to
the actions of pregnant women? Should the fact that a pregnant
woman smokes or drinks alcoholic beverages be treated as child
abuse?
21. When deciding whether to terminate parental rights, some
argue that a “clear and convincing” standard gives abused children
too little protection. They would advocate a “preponderance of the
evidence” standard. On the other hand, parent advocates argue that
termination of parental rights is such a final determination that
parents should be judged unfit only if the court can find them so
“beyond a reasonable doubt.” Which standard do you think best
balances the needs of the children and the parents?
22. A New York judge ordered a couple to abstain from
procreating until they could prove they can take care of their children.
Over a period of five years, the mother had four children. As
newborns, all four babies tested positive for cocaine and were placed
in foster care. The judge ruled the woman could not be a mother
again until she could prove that she could care for the children she
already had. A representative of the American Civil Liberties Union
argued that this ruling was inconsistent with fundamental principles
of privacy and autonomy. What do you think about the judge’s ruling?
Can you think of other approaches to the problems presented by
pregnant women suffering from drug addiction and poverty?
4. Legal Status of Minors
From the time they are born until they reach the age of majority (18 in
most states), children are classified as minors. Being classified as a
minor has both its benefits and its detriments. Although they have
legal rights, minors must rely on their parents or other guardians to
act on their behalf in enforcing those rights. For example, minors
cannot file lawsuits on their own.
Also, minors have more limited rights than do adults in regard to
making major life decisions, such as whether to obtain an abortion. A
minor who wants an abortion may be required to get the consent of a
parent or the authorization of a trial court judge.
As we discussed in Chapter 8, Contract Law, one of the benefits of
being a minor is that when he or she enters into a contract, it is
considered to be “voidable.” The minor may either enforce the terms
of the contract or “disaffirm” it within a reasonable time period. In
some states this has been modified so that contracts for necessaries
may be enforced, at least as to their reasonable value. Also, some
states have developed special laws to change this principle as it
applies to contracts for things such as artistic performances and
sports as long as the contract has court approval.
p. 476
p. 477
If a minor commits a crime, the case is ordinarily handled by a
special juvenile court system, which is designed to be less punitive
and more focused on rehabilitation. However, if the crime is a violent
felony, in some states the minor is automatically transferred to the
regular court system and is tried as an adult. In other states the judge
holds a transfer hearing to determine whether the child should be
treated as an adult.
Once minors have reached the age of majority, they are no longer
legally subject to parental authority. They become adults and at that
point trade in the special protections and liabilities they had as
minors for the full set of legal rights and responsibilities given to
adults.
An emancipated minor is someone who is still under the legal age
of adulthood but who has nevertheless been released from parental
authority and given the legal rights of an adult. Such emancipated
status is usually given when a minor has entered into a valid marriage
or is on active duty in the armed services. It can also be given at the
discretion of the courts in situations where the minor is living
independently, physically and financially, from his or her parents.
CHAPTER SUMMARY
Marriage, no longer viewed as the union of only a man and woman, is
categorized as either ceremonial or common-law. If the proper
grounds exist, either type of marriage can be ended through
annulment or divorce. An annulment is usually granted because of
factors, such as fraud, that existed before the couple was married. A
divorce can be based either on grounds or on no fault. Under no-fault
divorce neither party is blamed for the divorce.
As part of the divorce process, the parties must reach agreement
as to property division, alimony, child custody, child support, and child
visitation rights. Once the parties enter into a settlement agreement,
the court can finalize the divorce. If the parties are unable to agree,
the case proceeds to trial.
Family law deals with many issues relating to the parent-child
relationship, including establishing the relationship through paternity
actions, adoption, or surrogacy and defining parental rights and
liabilities. In this latter category child neglect and abuse have received
national attention as the legal system continues to struggle with
these concerns.
CRITICAL THINKING EXERCISES
1. A prenuptial agreement stated that the wife could not share in
her husband’s property. During the early years of their marriage the
couple kept their businesses and bank accounts separate. Eventually,
however, the wife left her job to work full-time for no pay in the pro
shop at her husband’s golf course. When the golf course ran into
financial troubles, she cashed in her retirement plan and took out a
loan to keep the business going. Now the couple has divorced, and
the wife wants “her share” of the husband’s golf course. What do you
think the court decided?
p. 477
p. 478
2. Before the honeymoon was even over, Ashley Jones realized
that her new husband had a major drinking problem. When he
refused to seek help for his drinking problem or look for a job, she
sought to have the marriage annulled. If you were the judge, would
you grant her an annulment? Why?
3. Brian LeClair lives in Tucson, Arizona. In early 2011 he bought a
small home for $50,000, $45,000 of which he financed through a
mortgage. Later that year, Brian met Monica, and they married within
the week. Brian was later to regret his quick decision.
Shortly after they were married, Brian discovered that Monica liked
to shop. In fact, she entered the marriage with approximately $5,000
in credit card bills. During their marriage this pattern persisted, with
Monica on average charging $500 per month for clothes and jewelry
for herself. Brian and Monica each deposited their earnings in a joint
checking account, and each paid half of the monthly mortgage
payments.
When Brian’s father died in 2015, he left Brian 100 shares of stock,
valued at $10 per share. Brian, knowing little about investments,
asked Monica to handle his stock for him. She did so, and through
careful buying and selling Brian now owns 150 shares of stock,
valued at $15 a share. Brian’s father also left Brian his mother’s
wedding ring, which as part of his father’s estate was valued at
$1,000. A jeweler recently appraised it at $1,500. Finally, his father left
him $5,000, which he deposited into his and Monica’s joint banking
account.
In 2016 Monica stated that she was tired of living in Brian’s tiny
house and wanted to buy some land so that they could build a new,
larger home. Brian was against the purchase both because of the
cost and because of the rumors the land she wanted to buy was
about to be rezoned industrial. Monica went ahead anyway and took
out a $20,000 loan from Commercial Savings to purchase the land.
Brian did not sign the loan papers. The deed, however, lists them as
joint owners. When the rumors proved to be true, the value of the land
plummeted to $2,000.
Last week Monica informed Brian that she was tired of being
married and that she needed some “space.” When Brian got home
from work the next day, he found that she was gone. Later that day
when he opened the mail, he found a letter from Commercial Savings
notifying him that the remaining amount of the loan ($18,000) was
due immediately, as Monica had not made any payments in the last
year. Also, there was a letter from the credit card company showing
Monica’s total balance of $12,000. As far as Brian could tell, at least
$4,000 was money she had charged before they were married. Brian
has come to your firm because he is thinking of initiating divorce
proceedings against Monica. He realizes, however, that Arizona is a
community property state and is concerned, first, that he may be
liable for what he considers to be Monica’s debts and, second, that
she may claim some of his property should be categorized as
community property, thereby allowing her to take one half. Your boss
wants you to research (1) whether Brian is liable for either the
Commercial Savings loan or Monica’s credit card bills, (2) which
assets would qualify as community assets and hence be available to
satisfy a community debt if the court were to find him liable, and (3)
which remaining assets Monica might be able to claim belong one
half to her as her share of community property. The contested assets
include
p. 478
p. 479
the stock valued at $2,250, the house (with a mortgage of $40,000
and a resale value of $60,000), the diamond ring valued at $1,500, the
land worth $2,000, and $10,000 in their joint checking account. As to
the latter, Brian claims that $5,000 is from his inheritance, $4,000
came from money he earned, and the remaining $1,000 came from
Monica’s earnings. In doing your research, you found the following
Arizona statutes:
Chapter 25-211 All property acquired by either husband or wife
during the marriage, except that which is acquired by gift, devise or
descent, is the community property of the husband and wife.
Chapter 25-213 All property . . . of each spouse, owned by such
spouse before marriage . . . is the separate property of such spouse.
Chapter 25-214 C Either spouse separately may acquire, manage,
control or dispose of community property, or bind the community. . . .
Chapter 25-215 A The separate property of a spouse shall not be
liable for the separate debts or obligations of the other spouse. . . .
Chapter 25-215 D [E] ither spouse may contract debts and
otherwise act for the benefit of the community. In an action on such a
debt or obligation the spouse shall be sued jointly and the debt or
obligation shall be satisfied: first, from the community property, and
second, from the separate property of the spouse contracting the
debt or obligation.
4. Michael and Bonnie were married. After the couple separated,
Michael began living with Donna. Bonnie filed for divorce. On February
10 a hearing was held to end the marriage, but because Bonnie’s
attorney sent Michael a notice with the wrong date, a new hearing
date was set. In the meantime, Michael and Donna won a $2.2 million
jackpot in the Arizona state lottery. At the rescheduled hearing Bonnie
claimed an interest in one-half of the winnings. Should the judge
award it to her? Note: Arizona is a community property state. Would
your answer be different if it was not?
5. As a favor to Joan, Bill agreed to donate his sperm so that she
and her female partner could have a child. The baby was born in
1994. Over the years, as the three adults were friends, Bill frequently
visited them and when he did so, often brought gifts for their child,
Sam, and signed the cards as “Daddy.” In 1997, the mother, partner,
and child moved out of state to Oregon. Over the next 15 years Bill
talked with Sam about seven times. Sam is now 18, and his mother
has petitioned the court asking that Bill provide child support until
Sam reaches the age of 21 (the statutory age in Oregon for the
termination of child support). How do you think the court should rule?
6. Mark and Chris Cooley were unable to have children because
Chris had undergone a hysterectomy. They decided to enter into a
surrogacy arrangement whereby a zygote formed of the gametes of
the husband and the wife would be implanted in the uterus of Anna
Johnson. Therefore, Mark and Chris were the natural parents of the
child, and Anna served as the host surrogate. Anna was a co-worker
of Chris’s and had volunteered to serve as the surrogate. In return for
agreeing to act as surrogate, the Cooleys agreed to reimburse Anna
for her medical expenses and any loss of wages for the time she had
to take off from work, both during and after the pregnancy. In return,
Anna agreed to relinquish all parental rights to the child. Shortly
before she was to give birth,
p. 479
p. 480
Anna announced that she would not go through with the agreement
unless the Cooleys gave her an additional $20,000. The Cooleys
responded with a lawsuit asking that they be declared the parents of
the unborn child. Evaluate the arguments both for and against having
the court rule in favor of the Cooleys. Base your arguments on In the
Matter of Baby M, as well as on any additional policy considerations
that you think should matter to the court.
WEB EXERCISES
1. Go to findlaw.com and search “state laws on marriage.” Choose
the link to your state. What are the annulment and prohibited
marriage laws of your state? Compare it to the annulment and
prohibited marriage laws of another state.
2. As the readings indicate, one of the newest methods for resolving
the issues raised by a divorce is to use collaborative law. Go to
www.collaborativedivorce.net/ and click on the link for
“Negotiation Tactics.” Read through the suggested tactics. Which
tactic do you think would be most effective in helping divorcing
partners reach a resolution of their differences? What made you
select that particular tactic?
REVIEW QUESTIONS
Pages 437 through 447
1. What are some of the legal benefits of marriage?
2. What is the difference between ceremonial and common-law
marriages?
3. What requirements does the state usually impose before allowing
a couple to marry?
4. What is the purpose of a prenuptial agreement? What restrictions
are placed on the enforceability of such agreements?
Pages 447 through 457
5. What is the difference between void and voidable marriages?
6. How does an annulment differ from a divorce?
7. What are some of the “costs” of divorce?
8. Describe the basic procedural steps involved in obtaining a
divorce.
9. How do courts determine what qualifies as marital property and
how it should be divided at divorce?
10. When dividing marital property how have the courts handled
professional degrees?
Pages 457 throught 464
11. What is the difference between physical custody and legal
custody?
12. Is the right to visitation directly tied to the obligation to provide
support payments? Why?
p. 480
p. 481
13. How are the courts handling the requests of nonparents for
visitation and custody?
Pages 464 through 477
14. What must happen to the natural parents’ rights before a child
can be freed for adoption?
15. Why are adoption records normally sealed? Are there any
exceptions?
16. What is a surrogacy contract? What factors would tend to make
such a contract enforceable? Unenforceable?
17. When are parents responsible for the negligent acts of their
children? When are they liable for the intentional torts of their
children?
18. What is the difference between child neglect and child abuse?
19. Describe the normal procedure that is followed when child
neglect or abuse is suspected.
20. In what ways does the law favor the rights of minors? In what
ways are minors legally disadvantaged?
21. Who is an emancipated minor?
1
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
2
23 Pa. C.S. § 1102 (Westlaw 2018).
3
557 P.2d 106 (Cal. 1976).
4
624 A.2d 1350 (N.H. 1993).
5
Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic
Consequences for Women and Children in America xii (1995); Joseph I. Lieberman, Child
Support in America: Practical Advice for Negotiating and Collecting a Fair Settlement 11
(1988), cited in J. Shoshanna Ehrlic, Family Law for Paralegals 181 (1997).
6
842 S.W.2d 588 (Tenn. 1992).
7
440 U.S. 268 (1979).
8
Lehr v. Robertson, 463 U.S. 248 (1983).
9
Stanley v. Illinois, 405 U.S. 645 (1972).
10
530 U.S. 57 (2000).
11
441 So. 2d 478 (La. App. 1983).
12
Id. at 483.
13
930 P.2d 892 (Or. App. 1997).
14
919 P.2d 388 (Mont. 1996).
15
Id. at 392.
16
135 S. Ct. 2584 at 2601.
17
Pavan v. Smith, 137 S. Ct. 2075 (2017).
18
Obergefell, 135 S. Ct. at 2601.
19
Id.
20
18 U.S.C. § 228 (2019).
21
25 Cal. App. 4th 678 (1994).
22
Id. at 685.
23
McLoughlin v. Jones, 401 P.3d 492 (Ariz. 2017).
24
Cal. Fam. Code §§ 8708-8709 (2014).
25
Alabama, Alaska, Colorado, Hawaii, Illinois (unrestricted regarding those adopted prior to
January 1, 1945); Kansas, Maine, New Hampshire, New Jersey (unrestricted regarding those
adopted after August 1, 2015); Ohio (unrestricted regarding those adopted prior to January 1,
1964); Oregon, Rhode Island, and Tennessee (unrestricted regarding those adopted prior to
March 16, 1951).
26
653 N.E.2d 1104 (Mass. 1995).
27
In re K.M.H., 169 P.3d 1025 (Kan. 2007).
28
Kansas Court Says Sperm Donor Must Pay Child Support, retrieved from
www.cnn.com/2014/01/23/justice/kansas-sperm-donation/index.html.
29
In re C.K.G., 173 S.W.3d 714 (Tenn. 2005).
30
www.donorsiblingregistry.com/about-dsr/history-and-mission, retrieved July 2019.
31
Susan Dominus, to Sperm Donors Can’t Stay Secret Anymore. Here’s What That Means,
N.Y. Times (June 26, 2019). www.nytimes.com/2019/06/26/magazine/sperm-donor-
questions.html?
fbclid=IwAR20155nhOoPB05g8CAUlH1chu61LoE30TH5RGM2uVu1MOvGY_11ZdMmp.
32
A Mother Learns the Identity of Her Child’s Grandmother. A Sperm Bank Threatens to Sue,
N.Y. Times (Feb. 6, 2019), www.nytimes.com/2019/02/16/health/sperm-donation-dna-
testing.html, retrieved July 2019.
33
In the Matter of Baby M, 537 A.2d 1227, 1248 (N.J. 1988).
34
Id. at 1250.
35
And Surrogacy Makes 3, N.Y. Times, Feb. 20, 2014, at E1.
36
In the Interest of B.R.S., 402 S.E.2d 281 (Ga. App. 1991).
p. 481
p. 483
Criminal Law
We can have as much or as little crime as we
please, depending on what we choose to count
as criminal.
Herbert L. Packer
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Describe the purpose of the Model Penal Code and explain how
it relates to state criminal law statutes.
■ List the basic classifications of crime.
■ Discuss the differences between actus reus and mens rea and
how they are relevant to the prosecution’s case.
■ Identify the most common defenses asserted in criminal cases.
■ Debate the constitutionality of the death penalty and the value
of mandatory sentencing.
INTRODUCTION
Hardly any aspect of our legal system is as dynamic as the study of
crime and criminals. Reacting to the fears and concerns of society,
this field of law changes rapidly. In this chapter, we will look at the
types of behavior regulated by criminal law and the ways in which
criminal laws are organized. Then, in the next
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p. 484
chapter, we will discuss the procedures used to investigate and
prosecute violations of the criminal law.
Both torts and crimes involve acts that harm individuals. But in
tort law, those harmful acts are treated as “private wrongs,” while in
criminal law they are treated as offenses against the state. A crime is
therefore defined as an act that is prohibited by the legislature, is
prosecuted by the government, and carries a punishment of a fine,
imprisonment, or even death.
Although some behavior might be considered morally or ethically
wrong, it is important to understand that nothing is a crime unless
the law makes it a crime. That is, no act is a crime unless the
legislature has written a statute explicitly prohibiting that behavior.
This principle is expressed by the Latin maxim nullum crimen, nulla
poena sine lege (“there can be no crime and no punishment without
the law”).
Case 14: The Cyberbully
Sixteen-year-old Billy Love was crushed when Janet Looker,
another 16-year-old whom he had been dating, told him she had
found a new boyfriend and did not want to date him anymore.
Then, when he saw her hanging around with Eric Manley, the star
quarterback on their high school football team, he got really
depressed and began to obsess over Janet.
At first, he left notes in Janet’s locker and sent her e-mails and
text messages begging her to take him back. When she ignored his
messages and continued to hang out with Eric, Billy sent
messages warning her that bad things would happen to her if she
kept dating Eric. Janet called him and begged him to leave her
alone. Instead, Billy used Facebook to post a topless picture of her
and some explicit text messages, which she had sent him while
they were still dating.
Janet was so mortified that she purposely took an overdose of
pills she found in her mother’s bathroom medicine cabinet.
Fortunately, her parents discovered what she had done in time to
rush her to the emergency room, and doctors there were able to
save her life. The emergency room staff reported Janet’s failed
suicide attempt to the local police department.
As you read this chapter, think about the types of laws that
either Billy or Janet may have violated, and what, if any, charges a
prosecutor could bring.
A. SOURCES OF CRIMINAL LAW
We inherited our system of criminal laws from many sources. The
earliest influences came from religious origins. The Hebrews, the
Greeks, the Romans, and the Catholics of the Middle Ages all
contributed toward our understanding of what was “right” and
“wrong,” “moral” and “immoral,” “legal” and “criminal.” Our most
significant contributors by far, however, were the English, who,
influenced by all these prior lawmakers, developed the system of
common law that defined and classified crimes, defenses, and
punishments. Over the years, our American legislative bodies have
clarified and added to these common-law
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p. 485
crimes and enacted them into systems of formal criminal statutes on
both the state and the federal levels.
By putting our criminal laws in statutory form, we provide all
citizens with written notice as to what behaviors may result in
prosecution and punishment. This notice helps contribute to due
process as it is guaranteed to all citizens through the Fifth and
Fourteenth Amendments to the U.S. Constitution.
Amendment V
No person shall be . . . deprived of life, liberty, or property, without
due process of law . . .
Amendment XIV
[N] or shall any State deprive any person of life, liberty, or property,
without due process of law. . . .
Although the principles of due process require the federal
government and each of the states to set out their criminal laws in
written form, there is no requirement for uniformity among the states.
Thus, while lotteries or casino gambling may be legal in some states,
they may be illegal in others.
In 1956 the American Law Institute assembled a group of law
professors and practicing lawyers to attempt to rectify this problem
and simplify U.S. criminal law by creating a Model Penal Code, which
would be adopted in all 51 jurisdictions. However, this hoped-for
uniformity was never achieved. While many of the provisions of the
Model Penal Code have been adopted and incorporated into the laws
of various states, the Code itself has not led to a uniform set of
criminal laws in all states. Significant variations continue to exist
among the state criminal codes.
DISCUSSION QUESTION
1. What does the Latin maxim nullum crimen, nulla poena sine
lege mean, and why is it important for our understanding of criminal
law?
B. CLASSIFICATION OF CRIMES
As discussed in Chapter 3, crimes are usually classified on the basis
of the type of harm done and the nature of the punishment imposed.
Serious crimes are classified as felonies, and they are generally
punishable by a year or more in a state prison. Misdemeanors are
thought to do less harm and therefore carry a lesser punishment —
either incarceration in a local jail for less than one year, a fine, or
requirement to perform some type of public service.
Sometimes the same basic activity, such as drug possession, can
be either a felony or a misdemeanor depending on the drug and the
quantity involved. For example, while possession of a single
marijuana cigarette might be only a
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p. 486
misdemeanor, possession of a large quantity of heroin would
certainly qualify as a felony. Legislators determine whether a given
act is to be considered a felony or a misdemeanor at the time that
they enact the statute making it a crime.
Criminal law also includes some quasi-criminal law situations. For
example, traffic laws are usually codified in a different part of the
state’s statutes and do not carry the same stigma as do violations of
the criminal law. Nevertheless, the judicial proceedings used to
enforce these traffic laws are criminal in nature. The state prosecutes
offenders who in turn must be found guilty “beyond a reasonable
doubt.” Some juvenile proceedings are also criminal in nature. Local
ordinances for matters like garbage disposal and barking dogs are
additional examples of quasi-criminal proceedings.
Most criminal behavior is defined by state statutes. Federal
criminal law tends to focus only on those crimes that involve federal
property or interstate activities. Nevertheless, there are numerous
situations in which a single act can be prosecuted as either a federal
or a state crime, or both. One notorious example is that of Terry
Nichols, who was tried twice, first in federal court and then in state
court, for his role in the 1995 bombing of a federal building in
Oklahoma City that resulted in the death of 168, including 19 children.
In federal court he was tried and convicted of conspiring to build a
weapon of mass destruction and of involuntary manslaughter,
resulting in a sentence of life without parole. The state of Oklahoma
then put him on trial for first-degree murder, seeking the death
sentence. While Nichols was also convicted in state court, the jury
was unable to decide on the appropriate sentence. The judge ordered
Nichols to serve 161 consecutive life terms without the possibility of
parole.
The Model Penal Code and the criminal codes of most states are
organized into groups on the basis of the type of harm caused to
society. Offenses involving physical harm to a person are considered
more serious than offenses involving damage to someone’s property.
Figure 12-1 illustrates how some of the more familiar crimes fit within
the major harm-based classifications. They include harm to the
person, harm to habitations and property, harm to society’s health
and safety, and crimes against the government itself.
NETNOTE
The U.S. Department of Justice maintains statistics about crimes
and victims at bjs.gov, as does the University of Michigan through
its National Archive of Criminal Justice Data (NACJD) project at
www.icpsr.umich.edu/icpsrweb/content/NACJD/index.html.
1. Offenses against the Person
Offenses against the person include various types of homicides,
kidnapping, and acts involving the infliction of bodily harm or a threat
to inflict bodily harm. The
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p. 487
most serious of these offenses, a homicide, is the killing of one
human being by another. As we will discuss in more detail later in this
chapter, the circumstances under which the killing takes place and
what the defendant was thinking at the time of the killing determine
whether it was a first-degree murder, manslaughter, negligent
homicide, or not a crime at all.
Figure 12-1 Classifications of Crime Based on Harm
Also related to the taking of human life are laws criminalizing
suicide. Section 210.5 of the Model Penal Code creates a felony
labeled “Causing or Aiding Suicide.” It occurs when a person
purposely causes another to commit suicide by “force, duress or
deception,” and a misdemeanor where “force, duress or deception” are
not present.
Notice that in addition to criminalizing causing another person to
commit suicide, most states have also criminalized the act of
assisting someone who plans to commit suicide. For instance, the
Illinois law on suicide prohibits persons, including medical
professionals, from providing “the physical means by which another
person commits or attempts to commit suicide, or participates in a
physical act by which another person commits or attempts to
1
commit suicide.” In contrast, Oregon’s “Death With Dignity Act”
provides that a person who has been “determined by the attending
physician and consulting physician to be suffering from a terminal
disease, and who has voluntarily expressed his or her wish to die,
may make a written request for medication for the purpose of ending
2
his or her life in a humane and dignified manner.”
p. 487
p. 488
Battery is a wrongful physical contact with a person that entails
some injury or offensive touching. An assault is conduct that places
another person in reasonable apprehension of receiving a battery.
Kidnapping is similar to the tort of false imprisonment in that it
involves unlawful confinement. However, in most states the victim
must also be moved. Robbery is a theft of personal property in
circumstances that involve either the infliction of serious bodily injury
or the threat of such injury.
Stalking and intimidation are relatively new crimes that are now
included in many state criminal codes. Stalking is the act of following
another person or placing them under surveillance when these
actions place that person in reasonable apprehension of bodily harm,
sexual assault, confinement, or restraint. Intimidation involves
putting someone in fear, usually of physical harm to themselves or
another person they know. The goal is to force the person to do
something or to refrain from doing something because of the fear the
intimidation causes. Witness intimidation is a classic example. Other
crimes similar to intimidation include coercion, extortion, and duress.
Increasing concerns about protecting minors from online bullying
or harassment have led states to enact “cyberbullying” laws that
explicitly include electronic forms of communication within more
traditional stalking or harassment laws. In the absence of these more
specific statutes, prosecutors can usually still bring charges under
the more general laws on stalking and intimidation.
2. Crimes against Habitations and Property
Crimes against habitations and property involve harm to or the taking
of another’s property without consent. Under the common law arson
was defined as the malicious burning of the house of another.
Modern statutes have generally enlarged the definition to include the
burning of any structure, not just dwellings, and to include the
arsonist’s own home if the intent was to collect on an insurance
policy.
Despite frequent misuse of the term, burglary is not synonymous
with theft. Burglary involves breaking into and entering a building with
the intent of committing a felony. That felony could be theft, but it
also could be some other felony, such as rape.
Theft, also known as larceny, is the act of “stealing,” that is, taking
property without the owner’s consent. Traditionally, theft required the
taking of tangible personal property. Therefore, the first person to
unlawfully access another person’s computer to steal information
located on that computer could not have been prosecuted for theft. It
did not take states and the federal government long, however, to fill
that hole in the criminal laws by enacting statutes aimed at deterring
computer crime. In 1984 Congress passed the Computer Fraud and
Abuse Act. This statute has been amended several times and covers
any computer used in or affecting interstate commerce. While it was
initially passed to control illegally obtained credit or financial
information, today it has a much broader reach as a student at
Florida’s A&M University learned when he was given a seven-year
sentence for violating the statute.
p. 488
p. 489
United States v. Barrington
648 F.3d 1178 (11th Cir. 2011)
Marcus Barrington appeals his convictions for . . . accessing a
protected computer without authorization with intent to defraud. . .
. For the reasons discussed below, we affirm Barrington’s
convictions and sentence.
. . .
Barrington’s convictions arose from a scheme he and his co-
conspirators concocted to access FAMU’s internet-based grading
system. . . . [T]he conspirators accessed FAMU’s grading system,
changed grades, added credits for courses which had been failed
or not taken, and changed the residencies of several non-resident
3
students to qualify them for instate tuition. The changes were
made via the Internet from the conspirators’ home computers,
campus computers at FAMU and Florida State University, and
from several wireless laptops.
[A]pproximately 30 to 35 unauthorized changes were made to
Barrington’s grades, all but one from a lower grade to an A. . . .
Ultimately, the investigation revealed that in excess of 650
unauthorized grade changes had been made, involving at least 90
students. As a result of the grade changes and residency changes,
the University incurred a loss of $137,000 in tuition it otherwise
would have received.
. . .
Barrington contends that he was prosecuted on a “legally
erroneous fraud theory.” [H] e essentially contends that the grades
which were changed do not constitute a property interest and
therefore the Government’s proof did not establish the requisite
financial deprivation.
. . .
[T]he computer fraud statute, 18 U.S.C. § 1030(a)(4), protects
“things of value” by prohibiting unauthorized access to protected
10
computers with the intent to defraud.
. . .
FAMU undeniably has a property right in tuition generated by
class hours a student registers for, as well as the higher tuition
paid by non-resident students. By changing failing grades to
passing grades, [Barrington] endeavored to obtain unearned credit
hours for students who were not entitled to them. Had their grades
not been changed, those students would have had to repeat the
failed classes or take equivalent hours, either of which would have
generated additional tuition for FAMU. By changing the residencies
of out-of-state students, [Barrington] sought to obtain tuition
reimbursement for those students, who otherwise would have
been required to pay higher, non-resident tuition. The unearned
credit hours and reimbursed tuition constitute . . . “things of value”
obtained through computer fraud.
. . .
Accordingly, we affirm.
p. 489
p. 490
CASE DISCUSSION QUESTIONS
1. What statute was Barrington charged with violating?
2. What was Barrington’s basic argument for why he should not
be found guilty?
3. How did the court respond?
Another crime against property is that of receiving stolen property.
To be found guilty, the state must prove that the property was stolen,
that the defendant knew the property was stolen, and that the
defendant knowingly had the stolen property in his or her possession.
Forgery involves the alteration or falsification of documents with the
intent to defraud. Trespass is an unauthorized intrusion or invasion of
the premises or land of another.
3. Crimes Affecting Public Health, Safety, and Decency
Crimes affecting the public health, safety, and decency cover a wide
variety of crimes, ranging from alcohol and drug abuse to obscenity
and prostitution. This is one of the most controversial areas of the
criminal law. As “victimless crimes,” many of the laws in this category
are criticized for interfering with basic civil liberties. Offenses covering
alcohol and drugs include the possession, use, and sale of these
substances. Some drugs are totally outlawed, while others can be
sold or possessed only when prescribed by a licensed physician.
Alcohol regulation can range from the establishment of a minimum
drinking age to complete prohibition. Prostitution involves
participation, or offering to participate, in sexual activity for a fee, and
obscenity regulations restrict the availability of sexually explicit
books, magazines, movies, videos, and live performances.
DISCUSSION QUESTIONS
2. What criteria should be used in determining when something
should be considered a crime? For example, what, if any, “victimless
crimes” should be decriminalized?
3. Federal prosecutors have successfully prosecuted top
executives of Insys, an opioid company, for racketeering and have
charged scores of doctors, nurses, pharmacists, and other medical
professionals for scheming to distribute opioids. “When medical
professionals behave like drug dealers, the Department of Justice is
going to treat them like drug dealers,” Brian Benczkowski, head of the
3
department’s criminal division, told reporters. Do you think that drug
company executives should be charged for a crime when they use
aggressive sales tactics to get medical professionals to prescribe
their drugs? What if they lie to the medical professionals? What if they
omit information? Do you believe that medical professionals behaved
like drug dealers when prescribing opioids?
p. 490
p. 491
4. Crimes Affecting Governmental Functions
Crimes affecting governmental functions include bribery, perjury, and
treason. Historically, bribery involved offering something of value to a
public official that, if accepted, would cause that public official to act
in such a way as to violate the public trust. Today there is also
commercial bribery. Perjury involves knowingly making a false
statement while under oath. Treason consists of either attempting to
overthrow the government or betraying the government to a foreign
power. Although it is a very serious crime, and in fact is the only crime
defined in the U.S. Constitution, it is also difficult to prove. Only one
4
person has been indicted for treason since 1954.
C. ELEMENTS OF A CRIME
In order for a crime to take place, someone with a “guilty intent”
(mens rea) must commit a “guilty act” (actus reus) that causes
specified harmful results.
1. Actus Reus
The Model Penal Code and every criminal statute in every jurisdiction
require the defendant to do some act to be found guilty of a crime.
This act, referred to as the actus reus of the crime, must be voluntary.
The act in itself need not do any harm. For example, just possessing
some substances, such as an illegal drug, may be a sufficient action
to satisfy the actus reus.
Consider the following crimes from the Illinois Criminal Code.
720 Ill. Comp. Stat. 5/18-1 Robbery
(a) A person commits robbery when he or she takes property,
except a motor vehicle covered by Section 18-3 or 18-4, from the
person or presence of another by the use of force or by threatening
the imminent use of force.
720 Ill. Comp. Stat. 5/18-2 Armed Robbery
(a) A person commits armed robbery when he or she violates
Section 18-1 while he or she carries on or about his or her person
or is otherwise armed with a dangerous weapon.
Therefore, to be found guilty of robbery in the state of Illinois, a
defendant must
1. take property, except a motor vehicle,
2. from the person or in the presence of another
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p. 492
3. by the use of force or
4. by threatening the imminent use of force.
A prosecutor must prove all portions of the statute (1, 2, and either
3 or 4) before the defendant may be found guilty. These individual
portions, referred to as the elements, include the actus reus of this
crime — the taking of property. A defendant would be found not guilty
if the prosecutor failed to prove any part or element of the statute or if
the finder of fact had a reasonable doubt about any part of the
prosecutor’s proof.
The more serious offense of armed robbery shares all of the
elements of the robbery statute plus the added actions or elements
of
5. carrying on or about his or her person or otherwise being
armed
6. with a dangerous weapon.
Because all the robbery elements are contained in the armed robbery
statute, robbery is called a lesser included offense of armed robbery.
Typically, a defendant may be charged with both crimes, but if found
guilty of the more serious offense, the lesser included offense usually
will be dismissed.
As noted above, for someone to be found guilty of violating a
specific statute, the prosecution must prove each required element.
Consider the following case in which Massachusetts’s highest court
found that a defendant was not guilty because all of the statutory
elements had not been satisfied.
Commonwealth v. Robertson
467 Mass. 371, 5 N.E.3d 522 (2014)
At issue is whether G. L. c. 272, § 105 (b) (§ 105 [b] ), which
prohibits secretly photographing or videotaping a person “who is
nude or partially nude” in certain circumstances, includes
“upskirting.” The Commonwealth alleges in two criminal
complaints that the defendant, Michael Robertson, while riding as
a passenger on the Massachusetts Bay Transportation Authority
(MBTA) trolley on two occasions, aimed his cellular telephone
camera at the crotch area of a seated female passenger and
attempted secretly to photograph or videotape a visual image of
the area in violation of § 105 (b). The defendant . . . contends that
§ 105 (b) does not criminalize the conduct he is charged with
having committed. We agree.
Section 105 (b), at issue here, provides as follows:
“Whoever willfully photographs, videotapes or electronically
surveils another person who is nude or partially nude, with the
intent to secretly conduct or hide such activity, when the other
person in such place and circumstance would have a reasonable
expectation of privacy in not being so photographed, videotaped or
electronically surveilled, and without that person’s knowledge and
consent, shall be punished by imprisonment in the house of
correction for not more than 2 1/2 years or by a fine of not more
than $5,000, or by both such fine and imprisonment.”
§ 105 (b) has five elements that the Commonwealth must
prove: (1) the defendant willfully photographed, videotaped, or
electronically surveilled; (2) the subject was another person who
was nude or partially nude; (3) the
p. 492
p. 493
defendant did so with the intent to secretly conduct or hide his
photographing activity; (4) the defendant conducted such activity
when the other person was in a place and circumstance where the
person would have a reasonable expectation of privacy in not
being “so photographed”; and (5) the defendant did so without the
other person’s knowledge or consent.
[T]he defendant . . . argues . . . that insofar as the
Commonwealth’s specific claim here is that his attempt was to
photograph up the skirt of a clothed female passenger on the
MBTA trolley, the charged conduct does not come within the scope
of . . . the second . . . element of the § 105 (b) offense because the
female passenger was not “nude or partially nude.”
[T]he defendant argues that “partially nude” refers to having one
or more private parts of the body uncovered by any clothes and
exposed or openly visible to another person’s eyes; and that in
proscribing the secret photographing of “a person who is . . .
partially nude,” the Legislature sought to protect against “Peeping
Toms,” that is, to punish secret photographing — by electronic
means or otherwise — of such persons. . . .
[W]e interpret the phrase, “a person who is . . . partially nude” in
the same way that the defendant does, namely, to mean a person
who is partially clothed but who has one or more of the private
parts of body exposed in plain view at the time that the putative
defendant secretly photographs her. A female passenger on a
MBTA trolley who is wearing a skirt, dress, or the like covering
these parts of her body is not a person who is “partially nude,” no
matter what is or is not underneath the skirt by way of underwear
or other clothing.
At the core of the Commonwealth’s argument . . . is the
proposition that a woman, and in particular a woman riding on a
public trolley, has a reasonable expectation of privacy in not having
a stranger secretly take photographs up her skirt. The proposition
is eminently reasonable, but § 105 (b) in its current form does not
address it.
CASE DISCUSSION QUESTIONS
1. The court stated that it was eminently reasonable for a woman
riding a public trolley to assume that strangers would not be allowed
to secretly take photographs up her skirt. And yet the court found that
the defendant was not guilty of having committed a crime. Why?
2. Explain whether you agree with the court’s reasoning in this
case.
Within two days of the court announcing its decision, the
Massachusetts legislature passed and the governor signed a new law
making it a crime to secretly photograph, videotape, or electronically
surveil “another person’s sexual or other intimate parts, whether
under or around a person’s clothing.” The speed with which the state
acted was truly extraordinary and took many by surprise including a
young man who was the first person to be charged under the new
law. When arrested, he protested to the police that he had just heard
on the news that it was not illegal to “take pictures up a girl’s skirt.”
But in the few weeks between when he listened to that news and
when he was arrested, the law had changed.
Sometimes something happens that prevents the criminal from
completing the crime. Therefore, because there is no required actus
reus, the defendant cannot be charged with having committed that
crime. Such attempts, however, can form the basis for a separate
conviction. Such attempts are classified as inchoate crimes. To be
found guilty of an attempt, the state must prove the defendant
p. 493
p. 494
intended to commit the crime. To satisfy the actus reus requirement,
the state also must prove that the defendant did some overt act in
furtherance of that intent that went beyond mere preparation. For
example, the Model Penal Code lists several acts that indicate an
intent to commit the crime, such as “possession of materials to be
employed in the commission of the crime, which are specially
designed for such unlawful use or which can serve no lawful purpose
5
of the actor under the circumstances.”
Two other inchoate crimes are solicitation and conspiracy.
Solicitation involves requesting or encouraging someone to commit
a crime. For example, if a wife encourages her boyfriend to kill her
husband, she could be found guilty of the crime of solicitation.
Conspiracy involves an agreement between two or more persons to
commit an unlawful act. The state must show that they intended to
enter into an agreement and that they had the specific intent to
commit some crime. Unlike an attempt, where mere preparation is
not enough of an overt act to satisfy the actus reus requirement, in
many states preparation is sufficient to prove conspiracy. In others
the defendants must take substantial overt steps to be found guilty.
2. Mens Rea
The mens rea, the nature of a person’s intent, is also a critical factor
in the definition of most crimes. The difference between innocently
bumping into someone on a crowded street and the commission of
the crime of battery depends for the most part on the state of mind of
the person who initiated the contact. In order for the act to be
considered a crime, there has to be evidence of a “guilty mind.”
Mens rea is critical in distinguishing one crime from another. The
same act and the same result can constitute different crimes based
on the intent of the criminal. For example, murder, voluntary
manslaughter, involuntary manslaughter, and reckless homicide all
involve the taking of a human life. They differ primarily in terms of the
intent of the person responsible for the killing.
In the following case, the court grappled with whether there was
sufficient evidence to find that a young woman had the appropriate
mens rea to be charged with involuntary manslaughter.
Commonwealth v. Carter
474 Mass. 624, 52 N.E.3d 1054 (2016)
CORDY, J.
On February 6, 2015, the defendant, Michelle Carter, was
indicted . . . on a charge of involuntary manslaughter after she, at
the age of seventeen, encouraged Conrad Roy (the victim), then
eighteen years of age, to commit suicide.
The defendant moved . . . to dismiss . . . arguing that the
Commonwealth failed to present the grand jury with sufficient
evidence of involuntary manslaughter. . . . The motion was denied.
The principal question we consider in this case is whether the
evidence was sufficient to
p. 494
p. 495
warrant the return of an indictment for involuntary manslaughter
where the defendant’s conduct did not extend beyond words. We
conclude that, on the evidence presented to the grand jury, the
verbal conduct at issue was sufficient. . . . Accordingly, we affirm.
1. Background. On the afternoon of July 13, 2014, an officer
with the Fairhaven police department located the deceased in his
truck, parked in a store parking lot. The medical examiner
concluded that the victim had died after inhaling carbon monoxide
that was produced by a gasoline powered water pump located in
the truck. The manner of death was suicide.
The victim and the defendant met in 2011 and had been dating
at various times during that period, including at the time of the
victim’s death. Because they did not live in the same town, the
majority of their contact took place through the exchange of
voluminous text messages and cellular telephone calls. . . . The
messages revealed that . . . the defendant encouraged the victim
to kill himself, instructed him as to when and how he should kill
himself, assuaged his concerns over killing himself, and chastised
him when he delayed doing so. The theme of those text messages
can be summed up in the phrase used by the defendant four times
between July 11 and July 12, 2014 (the day on which the victim
committed suicide): “You just [have] to do it.”
Cellular telephone records that were presented to the grand
jury revealed that the victim and defendant also had two cellular
telephone conversations at the time during which police believe
that the victim was in his truck committing suicide. . . . After the
victim’s death, the defendant sent a text message to [a friend]
explaining that, at one point during the suicide, the victim got out
of his truck because he was “scared,” and the defendant
8
commanded him to get back in.
Based on the foregoing evidence, the Commonwealth
successfully sought to indict the defendant for involuntary
manslaughter, . . . asserting that the defendant’s wanton or
reckless conduct was the cause of the victim’s death.
2. Discussion. Involuntary manslaughter can be proved under
two theories, either (1) wanton or reckless conduct or (2) wanton
or reckless failure to act. . . . The defendant argues that, because
she neither was physically present when the victim killed himself
nor provided the victim with the instrument with which he killed
himself, she did not cause his death by wanton or reckless
conduct. She maintains that verbally encouraging someone to
commit suicide, no matter how forcefully, cannot constitute
wanton or reckless conduct. Effectively, the argument is that verbal
conduct can never overcome a person’s willpower to live, and
therefore cannot be the cause of a suicide. We disagree.
* * * *
Here, the particular circumstances of the defendant’s
relationship with the victim may have caused her verbal
communications with him in the last minutes of his life on July 12,
2014, to carry more weight than mere words, overcoming any
independent will to live he might have had. It is in those final
moments, when the victim had gotten out of his truck, expressing
doubts about killing himself, on which a verdict in this case may
ultimately turn. In that moment of equivocation, the victim could
have continued to delay his death, perhaps attempting suicide
again at a later date, or perhaps seeking treatment; or he could
have gotten back into the truck and followed through on his
suicide. The grand jury heard that the victim, after the defendant
commanded him to “get back in,” obeyed, returning
p. 495
p. 496
to the truck, closing the door, and succumbing to the carbon
monoxide.
[T]he coercive quality of that final directive was sufficient in the
specific circumstances of this case to support a finding of
probable cause. Those circumstances included the defendant’s
virtual presence at the time of the suicide, the previous constant
pressure the defendant had put on the victim, and his already
delicate mental state. In sum, there was ample evidence to
establish probable cause that the defendant’s conduct was wanton
or reckless, under either a subjective or an objective standard. The
grand jury could have found that an ordinary person under the
circumstances would have realized the gravity of the danger posed
by telling the victim, who was mentally fragile, predisposed to
suicidal inclinations, and in the process of killing himself, to get
back in a truck filling with carbon monoxide and “just do it.” And
significantly, the grand jury also could have found that the
defendant — the victim’s girlfriend, with whom he was in constant
and perpetual contact — on a subjective basis knew that she had
some control over his actions.
* * * *
The motion judge’s denial of the defendant’s motion to dismiss
is affirmed. So ordered.
CASE DISCUSSION QUESTIONS
1. On what basis did the court find that Michele’s actions met the
objective standard for a finding of manslaughter? That her actions
met the subjective standard?
2. Do you agree that Michelle’s actions were sufficient to justify
an indictment for involuntary manslaughter?
3. Have you ever been in a situation, either on the sending or the
receiving end, of a string of text messages that caused, not physical
but strong emotional harm? Do you think such “talk” should be
criminalized?
Under the common law, intent was divided between general and
specific intent. If the defendant intended to act only, without regard to
causing the results of the act, then the defendant had general intent.
If the defendant did the act and intended to cause the harm that
resulted from the act, then the defendant possessed specific intent.
For example, many states divide murder into first-and second-degree
murder. To be found guilty of first-degree murder, state statutes often
require that the defendant’s actions be “willful, deliberate, and
premeditated.” As such, first-degree murder is a specific intent crime.
That is, the defendant must not only intend to do the act, such as
shooting a gun, but also intend that the victim die.
The Model Penal Code abandoned the use of general and specific
intent. Compare the ways in which criminal homicide, murder,
manslaughter, and negligent homicide, and causing or aiding suicide
are defined in the Model Penal Code.
p. 496
p. 497
Offenses Involving Danger to the Person Article 210.
Criminal Homicide
Section 210.1 Criminal Homicide
(1) A person is guilty of criminal homicide if he purposely,
knowingly, recklessly or negligently causes the death of
another human being.
(2) Criminal homicide is murder, manslaughter or negligent
homicide.
Section 210.2 Murder
(1) Except as provided in Section 210.3(1)(b), criminal
homicide constitutes murder when
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances
manifesting extreme indifference to the value of
human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice
in the commission of, or an attempt to commit, or
flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnapping or
felonious escape.
Section 210.3 Manslaughter
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is
committed under the influence of extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under
the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
Section 210.4 Negligent Homicide
(1) Criminal homicide constitutes negligent homicide when
it is committed negligently.
(2) Negligent homicide is a felony of the third degree.
As you can see in the definition for criminal homicide, the Model
Penal Code divides intent into four categories: purposeful, knowing,
reckless, and negligent.
When the defendant’s acts are purposeful, they are specifically
intended by the defendant. The defendant must desire to cause the
harm that resulted from the actions taken. For example, the
defendant shoots a gun with the intent to harm one particular person.
This is the highest level of intent, and when found, the defendant
usually pays the highest price.
If the judge or jury finds that the defendant acted knowingly, the
defendant knew or had reason to know that harm would be caused
even if the specific
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p. 498
harm was not the defendant’s objective. For example, a defendant
who shoots a gun into a crowded room would know that the action
would cause harm even though the defendant was unaware that the
action would harm one particular victim.
A defendant is said to have acted recklessly when he or she
disregards a substantial and unjustifiable risk that harm will result
from that action. For example, the defendant shoots a gun into the air
while walking through a park at night, and the bullet strikes a person
sitting on a bench. The defendant’s intent is said to be negligent
when he or she simply fails to be aware of that substantial and
unjustifiable risk. For example, negligence could be found if, when
cleaning a gun, a defendant forgets to check the bullet chamber,
accidentally pulls the trigger, and shoots someone.
As we mentioned earlier, not all states have chosen to follow the
Model Penal Code, and that is certainly true of its classification of
mental states into the four categories of purposeful, knowing,
reckless, and negligent. For example, instead of defining murder as a
homicide committed purposely or knowingly, states often define first-
degree murder as a homicide done willfully with premeditation,
deliberation, and malice and second-degree murder as an intentional
killing that was not premeditated.
Frequently, states also deviate from the Model Penal Code’s
definition of manslaughter and instead categorize it as either
voluntary or involuntary. Voluntary manslaughter is usually defined
as an intentional killing that is partially excused either by extenuating
circumstances, such as provocation, or by the defendant’s raising
what is known as an imperfect defense. For example, if the defendant
committed homicide believing he or she was acting in self-defense
when in reality there was no imminent danger, then the mistaken
belief as to the existence of a threat may serve to reduce the charge
from murder to manslaughter. For involuntary manslaughter, the
defendant must not have intended to cause the death but must have
done so by acting recklessly.
In sum, it is important to check the specific language of the
statutes in your state, so that you can see precisely how the degree of
culpability varies depending on the defendant’s mental state.
As you might suspect, without a direct statement from the
defendant that explains what he or she was thinking at the time of
the incident, proving mental state is a difficult task. To deal with this
problem, the law generally assumes that people know the probable
consequences of their acts. Therefore, a person who strikes another
is presumed to have intended the infliction of harm in that such a
result naturally flows from hitting another.
Also, during a criminal trial the judge or the jury is allowed to draw
inferences. After looking at the facts of the case presented during the
trial, including any statements and actions of the defendant and other
prosecution or defense witnesses, the jury is allowed to reach a
conclusion about the defendant’s intent and to draw an inference
about the defendant’s state of mind, as well as what most likely
occurred. For example, in Commonwealth v. Gilbert 6
a man was
charged with having murdered his roommate by beating
p. 498
p. 499
her with his cane. He told the police that she had died from an
overdose of painkillers. Based on the testimony that the victim had
been beaten, that there were no traces of any painkillers found during
the autopsy, that the victim and the defendant had been having
difficulties, and that the defendant was the only individual in the
apartment at the time of the victim’s death, the court held that it was
reasonable for the jury to conclude he had deliberately premeditated
his roommate’s death and hence was guilty of first-degree murder.
One exception to the general requirement of mens rea involves
what are known as strict liability offenses. In particular, Congress has
increasingly been enacting federal laws that require no mens rea at
7
all. This growth in strict liability offenses has been particularly strong
in the regulatory environment for businesses. Statutes without the
mens rea are thought to be necessary because it can be difficult to
prove mens rea in the corporate setting, especially regarding
executives who deliberately close their eyes to the criminal actions of
their employees. Some argue, however, that this is a dangerous trend
and that the element of mens rea is required to ensure that persons
are not prosecuted for crimes they did not intend to commit or know
they were committing. The U.S. Supreme Court has not explicitly
ruled that these strict liability offenses are unconstitutional. The
Court has held, however, that absent specific language that mens rea
is not required, “the usual presumption that a defendant must know
8
the facts that make his conduct illegal should apply.”
D. PARTIES TO THE CRIME
When more than one person commits a crime, the perpetrators may
be classified as principals, accomplices, or accessories. The person
who commits a criminal act is a principal in the first degree. A
principal in the second degree, sometimes also referred to as an
accomplice, assists the principal in the first degree during the
commission of the crime, for example, by driving the getaway car. An
accessory before the fact is someone who assisted in the
preparation of the crime but was not present during the crime. Finally,
an accessory after the fact is someone who aided the principal after
the commission of the crime. When it comes to punishment,
principals of any degree and accessories are generally all treated the
same, although in the past accessories after the fact have not been
punished as severely as principals and accessories before the fact.
E. DEFENSES
In some circumstances the law excuses persons from criminal
responsibility if they have what the law considers to be a valid excuse
for their actions. The
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p. 500
alibi and insanity defenses are perhaps the best known. Other
criminal defenses include ignorance or mistake, intoxication, duress,
necessity, and entrapment.
If believed by the judge or jury, some defenses are complete
defenses to a crime, and the defendant will be found not guilty.
Partial defenses may reduce a crime to a lesser included offense.
In this section, we will discuss the alibi defense, status defenses
(including infancy, insanity, and intoxication), duress and necessity,
entrapment, reactive defenses (such as self-defense), statutes of
limitations, and constitutional defenses.
1. Alibi Defense
An alibi defense is one in which the defense attempts to show that
the defendant could not have committed the crime because the
defendant was in a specified place at a specific time that would make
it impossible for him or her to have committed the crime. For
example, if four witnesses testify that they were playing poker with
the defendant at a home on the east side of town, then the defendant
could not have been the person who robbed a liquor store on the west
side of town at that time.
2. Ignorance or Mistake
We have all heard that ignorance of the law is no excuse. Generally,
that is true. On the other hand, ignorance or mistake as to facts can
form the basis for a defense if it can be shown that the defendant’s
ignorance or mistake negated the requisite mens rea. For example, if
you left a classroom with a classmate’s textbook, thinking it was your
own, you would be mistaken as to the fact of ownership. Therefore,
you could not be prosecuted for theft, as you did not have the
required mens rea, the intent to steal the property of another.
3. Status of the Offender
Infancy, insanity, and intoxication are referred to as status defenses.
They all involve excusing people from the criminal consequences of
their actions because their status or condition renders them
incapable of formulating the required element of mens rea.
a. Children
Under the common law, children under the age of seven were
conclusively presumed to be incapable of forming criminal intent,
while there was a rebuttable presumption that those between the
ages of seven and 14 were not capable of forming such intent.
The juvenile court system was created to provide an alternative to
the regular “adult courts” for dealing with youth who are accused of
acts that would be considered crimes if they had been committed by
adults. Technically, those who are diverted into these alternative
courts are adjudged to be juvenile delinquents, do not have a
“criminal conviction” on their record, and are usually required to take
part in various types of treatment options such as counseling, special
classes, or community service.
p. 500
p. 501
Under the federal Juvenile Delinquency Act, a person is classified
as a juvenile if that person is under the age of 18. A majority of the
states also define a juvenile as someone under the age of 18 and that
number of states has been quickly rising. In 2019, only four states
defined a juvenile as anyone under the age of 17, and two states
(New York and North Carolina) defined a juvenile as anyone under the
age of 16. Both New York and North Carolina have proposed
legislation that would alter those definitions. A new trend is to treat all
teenagers as juveniles, and a few states have proposed legislation
that would increase the age to 21. Vermont was the first state to
include all teenagers as juveniles. In 2022, anyone under the age of
21 will be considered a juvenile in Vermont.
In some cases, particularly those where the juvenile is older and is
accused of committing a very serious crime, such as rape or murder,
a state may have processes to remove the accused from the juvenile
court and authorize adult criminal prosecutions. Some state statutes
do not allow removal at all, some states allow removal, and some
states have mandatory removal under specific circumstances. In
addition to being held responsible for any adult crimes they might
commit, juveniles can also be found liable for so-called status crimes.
These cover activities, such as truancy, running away from home, and
alcohol consumption, that are criminal only as applied to juveniles.
DISCUSSION QUESTIONS
4. In the cyberbully case both Billy Love and Janet Looker were
16. How should this fact affect the way in which the police and the
prosecutor view the case?
5. If children engage in criminal behavior, how old do you think
they should be before being treated the same as adults? Do you think
that answer should change based on the crime committed?
b. Mental Illness
The insanity defense is based on the assertion that the defendant
is incapable of forming the requisite mens rea. While most
jurisdictions have the insanity defense, there is disagreement among
the states and the federal circuits about the standard that should be
used to determine insanity. The three most common alternatives are
the M’Naghten test, the irresistible impulse test, and the Model Penal
Code substantial capacity test. These tests are summarized in Figure
12-2.
When the M’Naghten test is used, a defendant is not considered
guilty of the crime if, at the time of committing the actus reus, the
defendant was suffering from a defect or disease of the mind and
could not understand whether the act was right or wrong. Under the
M’Naghten test a defendant will be found sane if he or she knew that
a certain action was wrong but could not stop from taking that
action. Therefore, some jurisdictions have both the M’Naghten
standard and a variation of what is commonly known as the
irresistible impulse test. With this test, the focus is on the
defendant’s ability to control his or her own actions. If a mental
disease robs the individual of control over his or her conduct, the
person is not guilty by reason of insanity.
p. 501
p. 502
M’Naghten or “Right from Wrong” Test
“[T]o establish insanity sufficient to relieve the defendant of guilt, it must be proved that,
at the time of the commission of the act, the defendant was laboring under such a defect
of reason, from disease of the mind as not to know the nature and quality of the act he
was doing, or if he did know it, that he did not know that what he was doing was wrong.”
M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843).
Irresistible Impulse Test
One is not guilty by reason of insanity if it is determined that the defendant has a mental
disease that kept the defendant from controlling his or her conduct.
Substantial Capacity Test (Model Penal Code)
(1) A person is not responsible for criminal conduct if at the time of such conduct, as a
result of mental disease or defect, he or she lacks substantial capacity to appreciate the
criminality (wrongfulness) of his or her conduct or to conform that conduct to the
requirements of law.
(2) The terms mental disease and mental defect do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct.
Figure 12-2 Insanity Tests
The drafters of the American Law Institute’s Model Penal Code
developed a third test, which combines elements of the other two.
This test is known as the substantial capacity test. It requires that
the defendant “appreciate,” rather than “know,” the wrongfulness of his
or her actions. Under the two options provided in this test defendants
can lack either the ability to understand that their acts were wrong or
the ability to control their behavior. Although the complete Model
Penal Code has not been widely adopted, this section has been
accepted as the test for insanity in almost half of the states.
The following case illustrates the role of both jurors and
psychiatrists in determining insanity. In this appellate court opinion
Justice Schauer explains why the court upholds a jury finding that the
defendant was sane even though four psychiatrists testified at the
trial that he suffered from “schizophrenia” and was therefore insane at
the time he murdered his mother.
People v. Wolff
61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964)
Defendant appeals from a judgment imposing a sentence of life
imprisonment (with recommendation that he be placed in a
hospital for the criminally insane) after he pleaded not guilty by
reason of insanity to a charge of murder, the jury found that he
was legally sane at the time of the commission of the offense, and
the court determined the killing to be murder in the first degree.
. . .
p. 502
p. 503
The defendant, a 15-year-old boy at the time of the crime, was
charged with the murder of his mother. The juvenile court found
him to be “not a fit subject for consideration” under the Juvenile
Court Law, and remanded him to the superior court for further
proceedings in the criminal action. . . .
The California M’Naughton Rule
On the issue of insanity the jury were instructed in terms of the
California rule; i.e., the so-called M’Naughton rule as that rule has
been developed by statute and decision in California.
. . .
“The test of sanity is this: First, did the defendant have
sufficient mental capacity to knowand understand what he was
doing, and second, did he know and understand that it was wrong
and a violation of the rights of another? To be sane and thus
responsible to the law for the act committed, the defendant must
be able to know and understand the nature and quality of his act
and to distinguish between right and wrong at the time of the
commission of the offense.” (Italics added.)
. . .
The Sufficiency of the Evidence of Sanity
Turning now to defendant’s more specific contentions, it is first
urged that “As a matter of law, [defendant] was legally insane at the
time of the commission of the offense.” In support of this
proposition defendant stresses the fact that each of the four
psychiatrists who testified at the trial stated (1) that in his medical
opinion defendant suffers from a permanent form of one of the
group of mental disorders generically known as “schizophrenia”
and (2) that defendant was also legally insane at the time he
murdered his mother. . . .
However impressive this seeming unanimity of expert opinion
may at first appear, . . . our inquiry on this just as on other factual
issues is necessarily limited at the appellate level to a
determination whether there is substantial evidence in the record
to support the jury’s verdict of sanity . . . under the law of this state.
. . .
Conduct of Defendant as Evidence of Legal Sanity
[T]here was evidence that in the year preceding the
commission of the crime defendant “spent a lot of time thinking
about sex.” He made a list of the names and addresses of seven
girls in his community whom he did not know personally but whom
he planned to anesthetize and then either rape or photograph
nude. One night about three weeks before the murder he took a
container of ether and attempted to enter the home of one of these
girls through the chimney, but he became wedged in and had to be
rescued. In the ensuing weeks defendant apparently deliberated on
ways and means of accomplishing his objective and decided that
he would have to bring the girls to his house to achieve his sexual
purposes, and that it would therefore be necessary to get his
mother (and possibly his brother) out of the way first.
The attack on defendant’s mother took place on Monday, May
15, 1961. On the preceding Friday or Saturday defendant obtained
an axe handle from the family garage and hid it under the mattress
of his bed. At about 10 P.M. on Sunday he took the axe handle from
its hiding place and approached his mother from behind, raising
the weapon to strike her. She sensed his presence and asked him
what he was doing; he answered that it was “nothing,” and returned
to his room and hid the handle under his mattress again. The
following morning defendant . . . ate the breakfast that his mother
prepared, then went to his room and obtained the axe handle from
under the mattress. He returned to the kitchen, approached his
mother from behind and struck her on the back of the head. She
turned around screaming and he struck her several more blows.
They fell to the floor, fighting. She called out her neighbor’s name
and defendant began choking her. She bit him on the hand and
crawled away. He got up to turn
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p. 504
off the water running in the sink, and she fled through the dining
room. He gave chase, caught her in the front room, and choked her
to death with his hands. Defendant then took off his shirt and hung
it by the fire, washed the blood off his face and hands, read a few
lines from a Bible or prayer book lying upon the dining room table,
and walked down to the police station to turn himself in. Defendant
told the desk officer, “I have something I wish to report. . . . I just
killed my mother with an axe handle.” The officer testified that
defendant spoke in a quiet voice and that “His conversation was
quite coherent in what he was saying and he answered everything I
asked him right to a T.”
Defendant’s counsel repeatedly characterizes as “bizarre”
defendant’s plan to rape or photograph nude the seven girls on his
list. Certainly in common parlance it may be termed “bizarre”;
likewise to a mature person of good morals, it would appear highly
unreasonable. But many a youth has committed — or planned —
acts which were bizarre and unreasonable. This defendant was
immature and lacked experience and judgment in sexual matters.
But it does not follow therefrom that the jury were precluded as a
matter of law from finding defendant legally sane at the time of the
murder. From the evidence set forth hereinabove the jury could
infer that defendant had a motive for his actions (gratification of
his sexual desires), that he planned the attack on his mother for
some time (obtaining the axe handle from the garage several days
in advance; abortive attempt to strike his mother with it on the
evening before the crime), that he knew that what he was doing
was wrong (initial concealment of the handle underneath his
mattress; excuse offered when his mother saw him with the
weapon on the evening before the crime; renewed concealment of
the handle under the mattress), that he persisted in the fatal attack
(pursuit of his fleeing mother into the front room; actual infliction
of death by strangling rather than bludgeoning), that he was
conscious of having committed a crime (prompt surrender to the
police), and that he was calm and coherent (testimony of desk
officer and others).
. . .
It is contended that the foregoing evidence of defendant’s
conduct and declarations is equally consistent with the type of
mental illness (i.e., a form of “schizophrenia”) from which,
according to the psychiatric witnesses, defendant is said to be
suffering. But this consistency establishes only that defendant is
suffering from the diagnosed mental illness — a point that the
prosecution readily concedes; it does not compel the conclusion
that on the very different issue of legal sanity the evidence is
insufficient as a matter of law to support the verdict. To hold
otherwise would be in effect to substitute a trial by “experts” for a
trial by jury, for it would require that the jurors accept the
psychiatric testimony as conclusive on an issue — the legal sanity
of the defendant — which under our present law is exclusively
within the province of the trier of fact to determine.
. . .
[T]he evidence adequately supports the jury’s verdict.
CASE DISCUSSION QUESTIONS
1. Why did the Wolff court refuse to accept the testimony of the
experts regarding the defendant’s sanity? Do you agree that there
should be a difference between the legal and the medical definitions
of insanity? Why?
2. Do you think the result would have been different in this case if
the court had been following the standard for insanity set out in the
Model Penal Code?
3. In 2019, the California Penal Code was amended so that “to
prove the killing was ‘deliberate and premeditated,’ it is not necessary
to prove the
p. 504
p. 505
defendant maturely and meaningfully reflected on the gravity of his or
9
her act.” How would this change the result if this case had happened
after this change to the penal code?
As the Wolff case illustrates, insanity is not an easy defense to
prove, particularly in those states that apply the M’Naghten test.
While Wolff was decided over 50 years ago, the M’Naghten test is still
used in approximately half of the states.
It also remains difficult for defendants to use the defense
successfully, as demonstrated in the Texas case of Andrea Yates.
Yates confessed to having drowned her five young children in the
bathtub because she heard voices telling her to kill them in order to
10
“save them from Satan.” The case was tried in Texas, a state that
still followed the M’Naghten “right from wrong” test. Therefore, to
prove insanity, the defense had to show not just that Yates was
mentally ill, about which there was no dispute, but also that she was
not aware what she had done was wrong. In a three-week-long trial,
the defense called as witnesses psychiatrists, relatives, and friends to
testify that Yates suffered from severe postpartum depression. The
prosecution countered by arguing that Yates’s prompt action in
reporting the drowning to the police established that she did know
what she had done was wrong. The jury apparently agreed with the
prosecution that Yates was not legally insane and convicted her of
murder. She was sentenced to life in prison and sent to a prison
psychiatric ward to receive treatment for her mental illness.
It is also possible that the jury found her guilty not because they
thought she was sane when she drowned her children, but because
they were afraid that a not guilty by reason of insanity verdict would
have resulted in her being released from state custody. What the jury
11
did not know, because by Texas statute they could not be told, is
that even a not guilty by reason of insanity verdict would most likely
have resulted in her immediate involuntary commitment to a mental
12
institution. When a trial ends in a verdict of “not guilty” by reason of
insanity, the defendant is absolved of any criminal responsibility but is
often civilly committed to a mental health facility for treatment. And
unlike a finding of guilt that results in a fixed sentence, a finding of not
guilty by reason of insanity can result in defendants being committed
for an indefinite term, potentially for life, until they are deemed to no
longer be a threat to themselves or society.
As a result both of the difficulty of proving the defendant was
insane at the time the crime was committed and of the uncertain
result, the insanity defense is rarely used. Studies have shown that it
is alleged in less than one percent of all criminal cases. Even if a
defendant was sane at the time the crime was
p. 505
p. 506
committed, however, the defendant can be considered legally
incompetent at the time of trial. If a defendant cannot understand the
legal process or assist in his or her own defense by, for example,
talking about the case with the attorney or testifying meaningfully at
trial, the defendant may not be tried until the court determines the
defendant is mentally competent.
DISCUSSION QUESTIONS
6. Do you think anyone should ever be found not guilty on the
basis of insanity? If so, under what circumstances?
7. Why do you think we have not been able to settle on one
definition of legal insanity?
8. Which of the three major insanity defenses do you think is the
most appropriate? Do you support the concept of “guilty but insane”
verdict? Why or why not?
9. The U.S. Supreme Court has agreed to hear a case in the
2019–2020 term challenging whether states can abolish the insanity
13
defense. In that case, James Kahler killed his ex-wife, her
grandmother, and his two daughters. At his trial, an expert testified
that Kahler “felt compelled” to kill and at the time was “completely out
of control.” Kansas, the state in which Kahler committed the killings,
had eliminated the defense of insanity, requiring juries to look only to
whether the defendant was able to form the intent to kill no matter
his subjective reasoning. The jury found that Kahler had the intent to
kill, and he was sentenced to death. Do you think, given the provisions
of the Eighth and Fourteenth Amendments, that states should be
allowed to completely eliminate the insanity defense?
c. Intoxication
The third defense of this type is the intoxication defense. In some
jurisdictions and under some circumstances, being under the
influence of drugs or alcohol is considered a valid defense. Here the
theory is that the intoxicating substance interfered with the
defendant’s ability to form the required mens rea. Although
intoxication cannot be used as a defense for charges involving
reckless behavior (such as drunk driving or criminal damage to
property), it can generally be used as a defense for crimes requiring a
specific intent, such as murder.
4. Duress and Necessity
Because one of the fundamental principles of criminal law is that
criminal behavior must be the result of a voluntary act, the law
recognizes both duress and necessity as legitimate defenses. If a
defendant can establish that the criminal act was committed
because he or she was forced to carry it out, that individual is not
held accountable for the criminal act.
Section 2.09 of the Model Penal Code defines duress as coercion
through “the use of, or a threat to use, unlawful force against his
person or the person
p. 506
p. 507
of another, which a person of reasonable firmness in his situation
would have been unable to resist.” Therefore, if someone held a gun
to your head and forced you to commit a criminal act, you would be
entitled to use the defense of duress.
The necessity defense is similar to the duress defense except the
force is exerted by nature rather than by another person. For example,
you may be forced to trespass across a neighbor’s yard to escape a
fire in your home. In addition, this defense may be used in a more
general way to exonerate otherwise criminal conduct when a person
believes that such conduct is necessary to avoid a greater injury. An
example would be where a motorist chooses to crash an automobile
into a building in order to avoid hitting a child who runs into the street.
5. Entrapment
The defense of entrapment arises when a defendant believes that he
or she was tricked or led to commit a crime by a law enforcement
agency when the defendant would not have committed the crime
without the government’s enticement. It is not entrapment if the
government agents provide a person with the opportunity to commit
a crime that he or she was already contemplating. The key is whether
the defendant had a predisposition to commit the crime before the
government agents contacted the person.
DISCUSSION QUESTION
10. Why is the entrapment defense so controversial? Where do
you think the line should be drawn with respect to what constitutes
entrapment?
6. Self-Defense
One of the most frequently used defenses in criminal trials is self-
defense. When asserting a variation of this defense, a person admits
that they did something which is normally illegal — such as shooting
another person — in order to protect themselves from being harmed
by the person who was shot.
In most jurisdictions the justification of self-defense can also be
applied to a person’s right to protect another person if the threat of
bodily harm is immediate and that the amount of force used is
reasonable. You may also act against another person in defense of
property, but many states do not authorize the use of deadly force to
protect property because they value human life over property — even
when the human life in question is trying to steal that property.
However, deadly force is permitted if a home intruder is attempting to
do great bodily harm.
Generally, the right to use force is valid only as long as the
following conditions are met:
■ The person claiming self-defense must not have been the
initiator of the violence;
■ The threat of bodily harm must be immediate;
■ The amount of force used must be no more than is reasonably
necessary to repel the attack; and
■ Deadly force can only be used when the danger faced includes
fear of serious bodily injury or death.
p. 507
p. 508
Once the threatening party ceases the threatening behavior, the
right to self-defense disappears.
This right to defend oneself does not extend to all people at all
times. In fact, it does not even extend to all people who find
themselves in dangerous positions. Most jurisdictions include a
retreat exception to the right to self-defense. This doctrine of retreat
generally requires a person in danger to get away from the danger, or
give up possessions, before resorting to the use of deadly force. If the
victim can avoid danger but chooses instead to use deadly force, that
victim may be prosecuted for any crime committed. However,
potential victims need not retreat if they are in their own homes or if
retreating would create additional danger for them.
Since 2005, a number of states have extended the right of self-
defense by enacting so-called stand-your-ground laws that allow
citizens to use deadly force without attempting to retreat, even when
14
they are threatened outside their homes. These laws give citizens a
right to use deadly force as long as they reasonably believe they are
15
facing a threat of death or bodily harm.
These laws first received national media attention when George
Zimmerman, a “neighborhood watch” volunteer in Florida, shot and
killed Trayvon Martin, an unarmed black teenager. Rather than
heeding police directives to back off and let them handle the
“suspicious” teenager, Zimmerman followed him. According to
Zimmerman’s account of the incident, Martin confronted him and
then physically attacked him. Zimmerman told police he shot Martin
because he feared for his life. Because Martin died before police
arrived, and there were no eyewitnesses, prosecutors were not able to
present enough evidence to convince a jury to convict Zimmerman.
Following Zimmerman’s acquittal, the Florida legislature considered
but rejected a bill to repeal the stand-your-ground law.
Florida has had a number of stand-your-ground cases since the
Zimmerman case. All have been difficult to prosecute because the
statute uses a subjective standard regarding threat of death or bodily
harm rather than an objective standard. Therefore, the jury can acquit
a defendant if it finds the defendant was actually fearful of death or
bodily harm even if no reasonable person would have felt threatened.
The Florida legislature has made it even more difficult to prosecute
such cases with a 2017 amendment to the statute that has shifted
the burden to the prosecutor to prove that the defendant was not
acting in self-defense rather than the defendant having to prove that
16
he or she was acting in self-defense.
The so-called battered spouse syndrome is a variation on self-
defense that does not require the defendant to have been in
immediate danger at the moment of the attack if it can be
established that the defendant had been the victim of repeated
attacks and did not believe escape from future attacks was possible.
p. 508
p. 509
However, not all states have been willing to accept this defense, as
the defendant’s actions usually are not taken in the face of “imminent”
death or great bodily harm. The effects of the battered spouse
syndrome may be used, however, to reduce the charge from murder
to manslaughter.
A final variation on self-defense relates to the special exemptions
given to law enforcement and military personnel to take actions that
are required as part of their official duties. Soldiers killing enemy
soldiers in battle and police officers killing an escaping felon fall
under the category of justifiable homicide.
Special guidelines apply to the use of deadly force, which is
defined as a force that would cause serious bodily injury or death.
Thus, while a police officer could justifiably shoot a person who is
shooting at him or her, that officer could not shoot a purse snatcher
running away down an alley.
If law enforcement officers exceed the appropriate use of force,
the governmental units for which they work are subject to civil
lawsuits. And while exceedingly rare, the officers can be
administratively disciplined and even prosecuted. Two highly
publicized cases that occurred in 2014 illustrate the difficulty in
determining the appropriate course of action when a confrontation
with the police results in death.
The first case occurred in Ferguson, Missouri, a largely black
suburb of St. Louis, and involved a white police officer who fatally
shot an 18-year-old black youth suspected of shoplifting. The other
involved a black man who died of asphyxiation from a choke hold
applied by a New York City police officer who, along with several other
officers, was wrestling him to the ground for allegedly resisting arrest
for selling loose, untaxed cigarettes.
In the first case, numerous witnesses saw the shooting, but they
gave conflicting testimony as to what they observed. Some said the
young man was standing still with his hands raised, while others said
he was charging the officer in a threatening way. The evidence
indicated that the officer had fired a total of 12 shots (two from within
his squad car and the other ten from outside the car). Evidence also
showed that the young man did not have a gun or a knife. After
hearing the conflicting testimony and reviewing the physical
evidence, a local grand jury chose not to bring criminal charges
against the officer. That decision was followed by both peaceful
protests and destructive riots.
The second case was recorded, and the video was repeatedly
played on national media. It showed a large, overweight black man
backed against a wall, surrounded by several white police officers. As
one officer grabbed him around the neck, the others in the group
tackled him to the ground. The man can be heard repeatedly stating
that he could not breathe as he gasped for air. As in the Ferguson
case, a grand jury declined to indict the officers.
In both cases, in addition to not being prosecuted, none of the
17
officers faced formal internal disciplinary actions. In both cases, the
federal Justice Department
p. 509
p. 510
18
announced it would conduct its own investigation. Under Title 18 of
the U.S. Code, law enforcement personnel can be criminally
prosecuted for depriving people of their rights “under color of law.” In
addition, Title 42 provides for civil penalties if state or local law
enforcement officers engage in a pattern or practice of conduct that
deprives persons of rights protected by the Constitution or laws of
19
the United States, and for discriminating on the basis of race.
While it can be extremely difficult to prosecute officers for actions
committed during the course of performing their duties, in a few
instances police officers have been convicted for killing civilians. For
example, in 2015 a Chicago policeman was indicted and convicted of
second-degree murder and 16 counts of aggravated battery for
actions taken while on duty, and in 2017, a Balch Springs, TX,
policeman was found guilty of murder for having fatally shot a 15-
year-old in a car leaving the scene of an underage drinking party.
DISCUSSION QUESTIONS
11. As noted in the discussion of stand-your-ground laws, George
Zimmerman consciously put himself in danger by following Trayvon
Martin, even though police had told him not to do so.
a. To what extent do you think this should have made a
difference in the outcome of his trial?
b. Do you think the law should be modified so as not to apply
in situations where people put themselves in danger?
12. In another incident in Florida, Curtis Reeves, a 71-year-old
man, shot and killed Chad Oulson during an argument over Oulson’s
texting in a movie theater. Witnesses reported that Mr. Oulson threw a
bag of popcorn at Mr. Reeves. Mr. Reeves then pulled out a
semiautomatic handgun from his pocket and shot Mr. Oulson. The
police report noted that during the argument over the texting no
punches were thrown, but that the shooter claimed he was “in fear of
being attacked” after being struck in the face “with an unknown
20
object.”
a. Do you think Mr. Reeves should be able to assert a valid self-
defense claim based on his assertion that he was “in fear of
being attacked”? Why or why not?
b. In this case, the shooter was a retired police officer. Do you
think this fact helps or hurts his use of the stand-your-
ground law? Why?
p. 510
p. 511
c. Why does the 2017 Amendment to Florida’s stand-your-
ground law make it harder to prosecute someone in a
shooting incident? Do you think that the amendment to the
“stand-your-ground” defense should be retroactive?
13. Do you support the “battered spouse syndrome” defense?
Why or why not?
14. According to a 2014 Associated Press article, at least 400
people are killed by police officers every year in the United States.
Following the cases in Ferguson and New York discussed above,
interest in requiring the police to be equipped with and to use body
cameras gained new impetus. Do you think increased use of such
cameras would reduce the incidence of such killings? Why or why
not?
7. Constitutional Defenses
The U.S. Constitution provides a variety of defenses that can be used
in criminal cases. The most common involve challenges to the
procedures used in investigating and prosecuting alleged violations
of the law and focus on applications of the Fourth Amendment’s
search and seizure clause, the Fifth Amendment’s privilege against
self-incrimination, and the Sixth Amendment’s right to counsel. We
will discuss these types of procedurally based constitutional
challenges in the next chapter.
The most common constitutional grounds for challenging
criminal statutes are that they are vague or overbroad or they violate
the First Amendment protections of freedom of speech and religion.
If a court finds that a statute is unconstitutional, a defendant cannot
be legally convicted or punished for violating it.
The due process clauses of the Fifth and Fourteen Amendments
can form the basis for a void for vagueness or overbreadth
argument. For example, the Texas stalking statute made it illegal to
engage in conduct that is “reasonably likely to harass, annoy, alarm,
abuse, torment, or embarrass” someone. The highest Texas criminal
appellate court found the statute to be unconstitutionally vague on its
21
face. The overbreadth argument has been used to challenge city
ordinances aimed at stopping gang activity. Such ordinances
empower the police to order groups of loiterers to disperse if an
officer reasonably believes one of the loiterers is a gang member.
Obviously, such ordinances have the potential for abuse and for
interfering with lawful activities. Therefore, because they cover both
criminal activity and protected activity, these ordinances can be
challenged as overbroad.
Criminal statutes can also be challenged on the basis that they
violate the defendant’s First Amendment rights of freedom of religion
or freedom of speech. When freedom of religion is used as a basis for
challenging a statute, the government must show the law in question
is neutral on its face and of general applicability. If this standard is
met, the statute is valid even though it may have the incidental effect
22
of burdening a particular religious practice. For example, the
p. 511
p. 512
U.S. Supreme Court upheld the constitutionality of a statute
prohibiting polygamy, even though the Mormon defendant argued
23
that polygamous marriage was part of his religion. However, the
Court invalidated a city ordinance prohibiting the ritual sacrifice of
animals on the grounds that it was neither neutral on its face nor of
24
general applicability. It was not neutral because it was directed at a
specific religious group, the Santerias, and it was not of general
applicability because it only applied to the killing of animals in the
context of a religious service. If the city had been motivated by
legitimate public health concerns, the ordinance would have been
applicable to all situations in which animals are killed.
The First Amendment protection of freedom of speech can also
form the basis for a constitutional challenge. The concept of content
neutrality plays a critical role in First Amendment cases. For example,
as you learned in Chapter 6, the Supreme Court determined that the
state of Texas could not punish someone for symbolic speech, in that
case the burning of an American flag, simply because they disagreed
25
with the message being sent. Similarly, the government cannot
grant or deny a permit for a rally or parade on the basis of which
political party is sponsoring the event. The Court held that the Village
of Skokie could not prevent a neo-Nazi group from marching in its
town even though their presence would be offensive to the 60 percent
of its residents who were Jewish, 10 percent of whom were survivors
26
of the Holocaust.
Content neutrality also plays a role in the Court’s treatment of
hate crime laws. Hate crimes are offenses that are motivated by a
hatred of a specific group or category of people, such as racial or
religious minorities or homosexuals. In analyzing these types of laws,
one needs to distinguish between those prohibiting certain types of
“hate speech” and those that enhance the punishment of another
underlying crime.
The contrast between these two approaches can be seen in two
Supreme Court cases. In a case dealing with a form of “hate speech,”
the Court was asked to consider whether a state statute that
outlawed cross burning unconstitutionally infringed on protected
symbolic speech. The Court held that cross burning by itself could be
protected speech. However, if the intent behind the cross burning was
to intimidate, the state could constitutionally criminalize that
27
behavior. Therefore, the Court reversed the conviction of a man who
had led a Ku Klux Klan rally during which a cross was burned but
affirmed that the state could prosecute those who used a cross
burning to intimidate, as was done by two men who placed a burning
cross in the yard of an African-American family.
In contrast to “hate speech” laws, the penalty enhancement
statutes simply provide for stiffer penalties in situations where the
defendant has been found guilty of another crime, such as robbery,
but it is proven that the defendant selected the specific victim
because of that person’s race, religion, or other
p. 512
p. 513
specified factors. The Supreme Court upheld the validity of such a
statute in Wisconsin v. Mitchell. 28
Several young black men attacked a white youth, beating him so
badly that he was in a coma for four days. Just before they assaulted
him, one of the defendants yelled, “There goes a white boy. Go get
him.” The defendants admitted that they had chosen the victim
because he was white. Under Wisconsin law, the penalty for battery
was increased from two years to seven years if the defendant
“intentionally selects the person against whom the crime . . . is
committed . . . because of the race, religion, color, disability, sexual
29
orientation, national origin or ancestry of that person.” In upholding
the constitutionality of the statute, the justices reasoned that it was
appropriate for the statute to single out for enhancement bias-
inspired conduct “because this conduct is thought to inflict greater
individual and societal harm. . . . Bias-motivated crimes are more
likely to provoke retaliatory crimes, inflict distinct emotional harms on
30
their victims, and incite community unrest.”
NETNOTE
To learn more about hate crimes, visit
www.justice.gov/hatecrimes/learn-about-hate-crimes.
DISCUSSION QUESTIONS
15. In Mitchell, the Court also rejected an argument that the
statute was overbroad. The Court stated that the suggestion that the
statute would have a “chilling effect” on free speech was “attenuated
and unlikely.” Do you agree?
16. While virtually all states have some form of hate crime
statute, according to the FBI the number of hate crimes is on the
increase. Do you think this serves as evidence that hate crime
statutes do not really work?
17. Some have argued against the adoption of hate crime
statutes on several grounds, including the difficulty of proving that
the crime was motivated by hate. In addition, they contend that it is
the crime itself — not the motive — that should form the basis of
punishment, arguing that a person is just as dead if a murder is
committed in the course of a robbery gone wrong as during a race
riot. How would you answer such critics?
In addition to challenging the constitutionality of the criminal
statute under which they have been charged, defendants can
challenge the constitutionality
p. 513
p. 514
of their prosecution by raising the defense of double jeopardy.
Relying on the Fifth Amendment, defendants argue that they cannot
be prosecuted because they have previously been tried for the same
offense. The courts have interpreted the Fifth Amendment protection
of not being put twice “in jeopardy of life or limb” as meaning a
defendant cannot be tried a second time for the same offense once
“jeopardy” attaches. Generally, jeopardy attaches once a jury has
been selected. However, the same action can sometimes constitute
two different criminal offenses. An act that is prosecuted as a
homicide in state court may also be prosecuted as a violation of civil
rights in federal court. Furthermore, double jeopardy does not prevent
a civil action for damages that arose from the criminal action. Finally,
if the defendant appeals a conviction and wins the appeal, the
appellate court may remand the case for a new trial.
NETNOTE
To keep up with current topics in criminal law, consider following
blogs that discuss national issues, such as CrimProf at
lawprofessors.typepad.com/crimprof_blog/. Or follow a blog on
developments in your state, such as the UNC School of
Government’s North Carolina Criminal Law blog at nccriminallaw.
sog.unc.edu/.
F. PUNISHMENTS
In addition to defining the nature of what constitutes each of the
different types of offenses, criminal codes also establish a range of
punishments associated with each type of crime. Most state statutes
establish a minimum and a maximum sentence for each crime. Often
there are significant differences between these minimums and
maximums. For example, under the Model Penal Code, the sentence
for murder can range from one year to life imprisonment.
1. Theories of Punishment
There are at least five theories of punishment that help explain what
society hopes to gain from punishing criminal offenders. They are
summarized in Figure 12-3.
General and specific deterrence are both designed to prevent
future crime by convincing would-be criminals that any benefits they
might get from carrying out criminal acts will be outweighed by the
punishments they will receive. The difference between general and
specific deterrence is that specific deterrence applies to the person
who has already committed a crime, while general deterrence is
directed at others who might be tempted to commit a similar crime.
p. 514
p. 515
Figure 12-3 Theories of Punishment
Both versions of deterrence theory rely on the assumption that
would-be criminals will consciously weigh the benefits of committing
crimes against the punishments they will receive if they are caught.
Critics point out that criminals often act on emotion rather than
reason and that they usually believe they will not be caught.
Incapacitation of criminals keeps individuals who commit crimes
separated from society and limits their opportunities to commit
further crimes. Criminals who are incarcerated or executed are denied
the opportunity to commit additional criminal acts against the public,
although those incarcerated may still be able to harm fellow prisoners
or correctional officers. Instead of incarceration, criminals who are
not citizens of the United States may be deported back to their
countries of origin.
Rehabilitation involves efforts to reduce crime by changing the
perpetrator of a crime so that he or she will have no need or desire to
commit crimes in the future. Programs designed to rehabilitate
criminals usually include education and job skill development that will
help these persons become productive members of society who do
not need to turn to crime for financial support. They may also include
psychological counseling to help the criminals understand the
difference between right and wrong and to appreciate the harm their
crimes produce. Through the successful completion of these
retraining and reshaping programs, it is hoped that criminals will alter
the patterns of their behavior and return to society without further
episodes of criminal activity.
Retribution is based on society’s desire for revenge. Many people
wish to have the government enforce the Biblical admonition that
punishment should involve “an eye for an eye, a tooth for a tooth.” The
theory is that it is better to
p. 515
p. 516
have the government administer retribution than to leave it up to the
victims to seek their own vengeance, thereby starting a cycle of
retaliation involving friends and relatives.
2. Capital Punishment
The most severe punishment a government can impose on a
convicted criminal is the death penalty. The federal government and
the majority of states currently authorize the use of the death penalty
in certain types of situations. While the states are free to determine
for themselves whether to have the death penalty, the Eighth
Amendment’s prohibition against cruel and unusual punishment
places some constitutional limitations as to the type of crime
committed and the characteristics of the defendant.
In 2008, the Supreme Court confronted the issue of whether the
death penalty can ever be applied in cases not involving murder.
Patrick Kennedy raped his eight-year-old stepdaughter. He was
convicted and the jury voted to sentence him to death. The Court held
that while child rape causes grave harm, the Eighth Amendment
requires that the punishment be proportionate to the crime.
Therefore, in cases where an individual is harmed, the death penalty
can be used only when the defendant’s actions cause the victim’s
31
death.
There have also been several U.S. Supreme Court cases regarding
application of the death penalty to the age and the mental status of
the defendant. In 2002, the Court considered a case involving a
defendant who had an IQ of only 59. The Court held that intellectual
disability diminishes personal culpability. It also noted that the
impairments of intellectually disabled offenders make it less
defensible to impose the death penalty as retribution and less likely
32
that the death penalty will have a real deterrent effect. Stating that a
national consensus had formed against executing the intellectually
disabled, the Court held that such executions are excessive and
violate the Eighth Amendment’s prohibition against cruel and unusual
33
punishment.
In 2005, when confronted with a case involving a 17-year-old
convicted murderer, the Court found that the death penalty as applied
to juveniles does not serve the purpose either of retribution or of
deterrence. This reasoning led the Court to hold that the Constitution
forbids the imposition of the death penalty on offenders who are
34
under the age of 18 when their crimes are committed.
Competency continues to be an issue for the courts. In 2019, the
U.S. Supreme Court reviewed the case of Madison v. Alabama. 35
Vernon Madison had killed a police officer in 1985 during a domestic
dispute, was convicted of first-degree murder, and spent more than
thirty years on death row. While awaiting his execution, he suffered a
series of strokes and was diagnosed with vascular dementia. In 2016,
his attorneys petitioned the trial court for a stay of execution
p. 516
p. 517
on the grounds that he had become mentally incompetent because
he could no longer remember his actions. The U.S. Supreme Court
held that loss of memory in and of itself was not enough to stay
execution. The Court reviewed the criteria for competency:
The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose
mental illness prevents him from “rational[ly] understanding” why the State seeks to
impose that punishment. In this case, Vernon Madison argued that his memory loss and
dementia entitled him to a stay of execution, but an Alabama court denied the relief.
[D]oes the Eighth Amendment forbid execution whenever a prisoner shows that a mental
disorder has left him without any memory of committing his crime? We . . . think not,
because a person lacking such a memory may still be able to form a rational
understanding of the reasons for his death sentence. Second, does the Eighth
Amendment apply similarly to a prisoner suffering from dementia as to one experiencing
psychotic delusions? We . . . think so, because either condition may — or, then again,
36
may not — impede the requisite comprehension of his punishment.
A final issue related to capital punishment involves the method of
execution. Over the years, states have used various methods, from
hangings and firing squads to the electric chair and the gas chamber.
Most recently, the trend has been toward the use of lethal injections.
In the 2008 case of Baze v. Rees, the U.S. Supreme Court ruled that
Kentucky’s drug protocol, used for lethal injections, did not violate the
Eighth Amendment.
37
Since the Baze decision, however, drug
shortages and botched executions have forced states to alter the
38
drugs used for lethal injections, leading the Supreme Court to
review the constitutionality of Oklahoma’s use of a different protocol
involving the drug midazolam.
In Glossip v. Gross, the petitioners argued that the first drug used
in Oklahoma’s protocol, midazolam, could not be counted on to
reliably put the sentenced individual into a deep unconscious state
and might therefore result in the inmate suffering extreme pain as he
dies from the effects of the other two drugs. This extreme pain, they
argued, amounted to the type of cruelty prohibited by the Eighth
Amendment.
In response, the Court’s majority stated:
[B]ecause it is settled that capital punishment is constitutional, “[i]t necessarily follows
that there must be a [constitutional] means of carrying it out.” And because some risk of
pain is inherent in any method of execution, we have held that the Constitution does not
require the avoidance of all risk of pain. After all, while most humans wish to die a
painless death, many do not have that good fortune. Holding that the Eighth
p. 517
p. 518
Amendment demands the elimination of essentially all risk of pain would effectively
39
outlaw the death penalty altogether.
Because “the prisoners had failed to identify a known and available
alternative method of execution that entails a lesser risk of pain, a
40
requirement of all Eighth Amendment method-of-execution claims,”
the Court rejected their argument that the use of midazolam violated
their rights.
In dissent, Justice Breyer not only agreed with three of his
colleagues that the Court’s reasoning as to the drug midazolam was
41
faulty, but he argued further that “rather than try to patch up the
death penalty’s legal wounds one at a time, I would ask for full
briefing on a more basic question: whether the death penalty violates
42
the Constitution.”
Today’s administration of the death penalty involves three fundamental constitutional
defects: (1) serious unreliability [an estimated 4 percent of those on death row are
actually innocent], (2) arbitrariness in application, [for example, individuals accused of
murdering white victims, as opposed to black or other minority victims, are more likely to
receive the death penalty] and (3) unconscionably long delays that undermine the death
penalty’s penological purpose [executions occur, on average, nearly 18 years after a
court pronounces a death sentence]. Perhaps as a result, (4) most places within the
United States have abandoned its use [only three states account for 80 percent of the
43
executions that have occurred over the last eight years].
Of the issues Justice Breyer raised, many people believe that the
strongest argument against the death penalty is that errors in our
criminal justice system have resulted in too many innocent men and
women being executed. A variety of factors have led to these
wrongful convictions, including unethical actions by police and
prosecutors, ineffective defense attorneys, biased jurors, and
mistaken witness identifications.
In 2008, following the Supreme Court ruling in Baze v. Rees, the
federal government had suspended executions. However, in 2019,
Republican Attorney General William Barr stated that federal
executions would be resumed using lethal injections of pentobarbital,
and that the U.S. government had arranged to get a sufficient amount
from an unnamed source.
DISCUSSION QUESTIONS
18. What does the term “cruel and unusual” mean to you? Should
it have to be cruel and unusual or can it be either cruel or unusual?
Can the death penalty ever be carried out in a manner that is not
cruel?
19. What arguments both for and against capital punishment do
you find to be most convincing? Why?
p. 518
p. 519
20. According to the National Coalition to Abolish the Death
penalty, nearly 140 death row inmates have been exonerated or had
their cases overturned on appeal. What does this imply about the
validity of the legal process and the use of capital punishment?
21. In Bucklew v. Precythe, 44
an inmate on death row claimed
that because of a congenital medical condition, the drugs used for
execution would cause him to experience prolonged feelings of
suffocation and excruciating pain. The U.S. Supreme Court held that
the inmate failed to provide an alternative method of execution that
was feasible and capable of being readily implemented or that was
likely to cause less pain. In his dissent, Justice Breyer claimed that
the issue was not whether the death penalty should be applied, but
only whether it should be applied in an individual case with such
special circumstances. What do you think of the two arguments?
3. Mandatory Sentencing
In the 1970s, in reaction to what many saw as a growing crime and
drug epidemic, many states and the federal government enacted laws
mandating a minimum number of years in prison for specific crimes.
Once a defendant pleads guilty or is convicted of committing a
particular crime, the trial court judge has no sentencing discretion,
even if the mandated minimum sentence does not seem to fit the
crime. One result has been the quadrupling of our prison population.
The United States now imprisons a higher percentage of its citizens
45
than any other country.
a. Mandatory Life Sentence for Minors
As discussed earlier, when a juvenile is charged with committing a
serious crime, such as murder, most states have provisions for trying
that juvenile in the adult system. Some states also provide for
mandatory life sentences for those convicted of first-degree murder.
Therefore, juveniles tried as adults for murder face the possibility of a
mandatory life sentence. In 2012, the U.S. Supreme Court determined
that such laws are unconstitutional as applied to those who commit
murder before the age of 18. States are still free to impose a life
sentence without the possibility of parole, but the judge must be
given discretion to determine in each individual case whether that is
the appropriate sentence. The evil was in the mandatory nature of the
sentence.
Such mandatory penalties, by their nature, preclude a sentencer from taking account of
an offender’s age and the wealth of characteristics and circumstances attendant to it.
Under these schemes, every juvenile will receive the same sentence as every other — the
17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable
46
household and the child from a chaotic and abusive one.
p. 519
p. 520
Left undecided was whether the decision should be applied
retroactively to those already imprisoned for life for murders they
committed when juveniles. To date, the states have split as to the
decision’s retroactive application.
b. Habitual Offender Statutes
Another controversial sentencing issue involves criminals who
continue to commit crimes after their first offense, so-called
recidivists. In an attempt to attack the problem of recidivism,
approximately half of the states, as well as the federal government,
have enacted “three strikes” or habitual offender statutes. Typically,
these statutes mandate required prison sentences for third-time
offenders. As is true with all mandatory sentencing provisions, these
statutes remove a great deal of the sentencing discretion from the
hands of judges, and some believe that they can create unfair results
in individual cases. For example, a man in California was sentenced
to 25 years to life under the state’s three strikes law. His crime?
Attempting to steal three golf clubs, worth $399 apiece. He
challenged the length of his sentence, arguing that the Eighth
Amendment’s prohibition against cruel and unusual punishment
required greater proportionality between the crime and the
punishment. In a five-to-four decision, the U.S. Supreme Court
disagreed, declaring that such three strikes provisions do not violate
47
the Eighth Amendment.
While the case cited above was an extreme example of the
perceived unfairness of a mandatory three strikes law, it illustrates
the problems inherent in any proposed solution where one result was
designed to fit all situations. While the California law had been
enacted to address the problems of violent crimes, it ended up
incarcerating many whose third offence was nonviolent. In 2012,
California reformed its three strikes law so that those who commit a
third nonviolent felony would be sentenced to double prison time for
that third felony, but only violent felons would face life in prison.
DISCUSSION QUESTIONS
22. How much discretion should the judge have in sentencing?
Why?
23. Leandro Andrade stole five videotapes worth $84.70 from a
Kmart store. Fourteen days later, Andrade entered a different Kmart
store and placed four videotapes worth $68.84 in the rear waistband
of his pants. (The tapes included Batman Forever and Cinderella.)
The police arrested Andrade for these crimes. At trial, Andrade was
found guilty of two counts of petty theft. The jury also made a special
finding that he had previously been convicted of three counts of first-
degree residential burglary. (One case involved his attempt to steal a
bicycle.) Each of his petty theft convictions for stealing the
videotapes triggered a separate application of the three strikes law.
Therefore, the judge sentenced him to two consecutive terms of 25
years to life, with no chance for parole. Does it seem as though his
punishment was proportionate to his crime? How would you argue
that his case is similar to or different from the Ewing case discussed
above?
p. 520
p. 521
CHAPTER SUMMARY
Criminal law defines what behaviors are illegal and what punishments
convicted defendants are to receive. Criminal procedure governs how
the criminal process works.
Crimes can generally be divided into felonies, crimes that usually
involve punishment by incarceration for a year or more, and
misdemeanors. For any crime the government must prove that the
defendant had the requisite mens rea while committing the actus
reus. Common defenses include alibi, ignorance or mistake, infancy,
insanity, intoxication, duress, necessity, entrapment, self-defense, and
defense of others. In addition, a defendant may challenge a
prosecution on the basis of a statute of limitations or the
Constitution.
In addition to defining the nature of what constitutes each of the
different types of offenses, criminal codes also establish a range of
punishments associated with each type of crime.
CRITICAL THINKING EXERCISES
1. Based on the information given in the cyberbully case, do you
think Billy Love could be successfully prosecuted for violating any of
the following provisions of his state’s criminal code? Why or why not?
Intimidation
(a) A person commits intimidation when, with intent to cause another
to perform or to omit the performance of any act, he communicates
to another, whether in person, by telephone or by mail, a threat to
perform without lawful authority any of the following acts:
(1) Inflict physical harm on the person threatened or any other
person;
(2) Subject any person to physical confinement or restraint; or
(3) Commit any criminal offense; or
(4) Accuse any person of an offense; or
(5) Expose any person to hatred, contempt or ridicule.
Invasion of privacy
A person commits invasion of privacy when he or she discloses any
photograph, film, videotape, recording or any other reproduction of
the image of another person whose intimate parts are exposed or
who is engaged in an act of sexual contact, unless that person has
consented to such disclosure. For purposes of this subsection,
“disclose” means sell, manufacture, give, provide, lend, trade, mail,
deliver, transfer, publish, distribute, exhibit, or circulate.
Inducement to commit suicide
(a) A person commits inducement to commit suicide when he or she
knowingly coerces another to commit suicide and the other person
commits or attempts to commit suicide as a direct result of the
coercion, and he or she exercises substantial control over the other
person through (i) control of the other person’s
p. 521
p. 522
physical location or circumstances; (ii) use of psychological pressure;
or (iii) use of actual or ostensible religious, political, social,
philosophical or other principles.
2. Review the robbery and armed robbery statutes from the
Illinois Criminal Code on page 491 of the text. What crimes were
committed under the following circumstances?
a. Martin waited until the bartender turned her head. Then he
slipped $10 from the cash register into his pocket.
b. Kamil used a crowbar to break the lock on the kickstand and
stole a bicycle while the owner was in the grocery store.
c. David drove his car slightly behind a woman walking on the
side of the road. When she stopped for the light, David
reached out of the car window and grabbed her purse. The
set of knives that David just won while playing bingo was on
the front passenger seat of the car.
d. After everyone left the party, Rosie took a fur coat that had
been left behind, hid it in a shopping bag, left the apartment,
and pushed the doorman as she left the building.
3. Apply the Model Penal Code, Article 210, Criminal Homicide on
page 497, to each of the following situations. What crimes, if any,
have been committed?
a. Sam, a hired assassin, pulls out a gun and points it at Mary’s
head. He pulls the trigger, the bullet strikes Mary in the
temple, and she is killed instantly.
b. Janet, to protest what she views as the increasing
decadence of modern society, leaves a bomb in an empty
adult movie theater. Later that night the bomb goes off and
kills the janitor, who was there cleaning the theater.
c. Rita accompanies John while he robs a store owner at
gunpoint. The gun goes off, and the owner is killed by the
gunshot.
d. Five boys are playing a game of “chicken” in which they pass
a partially loaded gun (one of the six chambers contains a
live bullet) around the circle. Each player takes a turn
spinning the cylinder, pointing the gun at his head, and
pulling the trigger. When Dan takes his turn, the gun goes
off, and he dies instantly.
e. After leaving a bar, Ralph and Sam started arguing in the
parking lot. Both had been drinking, and they began to fight.
Ralph threw the first punch but Sam soon retaliated, by
pulling out a gun and pistol-whipping him on his head. Ralph
was overcome by rage, grabbed Sam around the neck, and
flung him to the pavement. As a result of his injuries Sam
died.
f. Marjorie owned a 130-pound dog. On more than 30
occasions the dog had lunged, snapped, and growled at
people or physically attacked other dogs. One day, in the
hallway of her apartment building, the dog broke away from
her, and attacked and killed a neighbor. Marjorie did not call
911 for help, never asked after the attack about the victim’s
condition, and returned to the scene of the attack, not to
assist the dying victim, but to find her keys.
g. A passenger in an automobile fires a pistol into the driver’s
side window of a tractor trailer in an adjacent lane. The
bullet strikes the driver in the head and kills him.
p. 522
p. 523
h. A robber who knows that he has been infected with the
human immunodeficiency virus (HIV) rapes one of his
robbery victims. As a result of the rape, his victim also
becomes infected with HIV.
4. Jimmy Jones and his best friend, Bobby Smith, are both 20-
year-old high school dropouts. They have held several part-time jobs
in the past but are currently unemployed.
Last Saturday night Jimmy and Bobby, along with their friend
Doris, were restless with nothing to do. Bobby then had a brainstorm,
and what started out as a frolic has since ended in a nightmare for
Jimmy.
For “fun” and money the three decided to hold up the local
convenience store. Doris volunteered the information that the only
person on duty at that time of night would be an elderly gentleman
who would give them no trouble. Shortly before leaving for the store
Doris had a change of heart and told the other two that she would not
be coming along.
Neither Jimmy nor Bobby owns a gun. Unbeknown to Jimmy,
Bobby decided to take along his kid brother’s very realistic looking
water pistol. When they got to the store, no customers were present.
Jimmy and Bobby went up to the counter and demanded that the
clerk hand over the money in the cash register. When the clerk simply
stared at them, Bobby pulled out the water pistol, which had been
concealed under his jacket. He said, “Hand over the money, old man,
or I’ll spray you with acid.” Actually, the gun only had water in it. The
clerk, who was an elderly, overweight man, began to perspire and
shake. He placed the money on the counter. Then he suddenly
clutched his chest and fell to the floor. Bobby grabbed the money and
ran from the store.
Although very frightened by the turn of events Jimmy decided to
stay and try to help the clerk. He called the police, telling them to send
an ambulance right away. When the police arrived, Jimmy turned
himself in. Unfortunately, on his way to the hospital the store clerk
died.
a. With what crimes do you think Bobby could be charged?
b. What would be the major weaknesses in the prosecution’s
case?
c. Do you think Doris could be convicted of any crimes? If so,
which ones?
d. What about Jimmy?
5. Apply each of the three tests for insanity to determine whether
this defendant might succeed with an insanity defense.
Emanuel Jones had been on medication for several years to stop
the voices he heard in his head. He recently stopped taking his
medication because it made him feel sleepy. Five days ago, during a
visit with his best friend, Sam, Emanuel became angry and confused.
He attacked Sam with a golf club and chased him from room to room
as he tried to escape. He hit Sam several times with the golf club, and
Sam died as the result of the wounds he sustained.
a. Emanuel walked out of the house and stopped at a nearby
restaurant for a hamburger. When the waiter asked him how
Sam was, Emanuel replied that he thought Sam was at
home sleeping.
b. Before leaving the house Emanuel put the golf club and his
bloody clothes in the bathtub and filled the tub with water.
He changed his clothes and ran home.
c. When the police questioned Emanuel the next day and
asked him about Sam, he replied, “I killed him. He’ll be back
tomorrow.”
p. 523
p. 524
d. When the police questioned Emanuel the next day and
asked him about Sam, he replied, “I killed him. I tried to stop,
but he just kept laughing at me.”
e. Several weeks after the incident and his return to his
medication Emanuel expressed great grief and guilt over the
death of Sam.
6. What defense(s) might be available to the following individuals?
a. The Elliots complained to the police that the son of their
next-door neighbor broke their garage windows with rocks.
They wanted him arrested. The police went next door to
arrest the boy, and they discovered that he is seven years
old. They arrested him and brought him to the police station.
He was charged with destroying the Elliots’ property.
b. Marcus was arrested for the murder of his cousin Michael.
At the time that Michael was killed, Marcus claimed that he
was on a business trip 300 miles away.
c. Every day on the way to school Rosa pushed Carmen to the
ground and stole her lunch. On Tuesday Carmen hid behind
a car on the way to school, and when she saw Rosa walking
toward her, she jumped out and hit her. Rosa pushed
Carmen to the ground and walked away without taking her
lunch.
d. As Paula walked toward her car after work, she was
confronted by Terry, who pointed a realistic toy gun at Paula
and demanded that Paula hand over her wallet. Paula took a
gun out of her purse and shot and killed Terry.
e. After his car was forced off the road, Patrick tried to stop the
bleeding on his wife’s face. When she passed out, Patrick
ran to a nearby home, jumped over the fence, and banged on
the front door. When the occupants would not let him in,
Patrick broke a window of the house, climbed through, and
ran toward the telephone. The homeowner grabbed a rifle
and shot Patrick in the back.
f. During a grocery store robbery, a thief held a gun to a
customer’s head and demanded that he put all the money
from the store safe into a bag, which he did. When the police
arrived, they arrested the customer for robbery.
g. During the last five years of their marriage David beat his
wife, Mary, so severely that she was hospitalized four times.
About six months after the last beating, Mary stabbed David
to death while he was sleeping. She was arrested for
murder.
h. Officer Kaplan responded to an emergency call for a store
robbery in progress. When the masked thief shot at the
officer, Officer Kaplan shot and killed the thief. The man’s
family wanted Officer Kaplan charged with murder.
i. Galen Black, a member of the Native American Church,
ingested peyote as part of a religious ceremony held at that
church. Peyote contains a hallucinogenic drug mescaline.
Black was arrested for possession and use of an illegal drug.
j. George Jefferson was tried for murder. After the jury
returned a not guilty verdict, George held a press conference
and confessed that he
p. 524
p. 525
had indeed committed the murder. With this new evidence,
the prosecutor wants to try George a second time for
murder.
WEB EXERCISES
1. Identity theft is a growing problem. Take the “Identity Theft Safety
Quiz” www.justice.gov/criminal-fraud/identity-theft/identity-
at
theft-quiz. What was your score on the quiz? What concrete
steps do you think you should take to increase your level of
protection against identity theft?
2. There is an interesting website at www.cyberbullying.us that has
collected information on cyberbullying and sexting statutes for all
50 states. It also includes editorial blogs. One discusses whether
criminal prosecutions are the best approach. Click on
http://cyberbullying.us/criminalization-of-cyberbullying/ and
then read the blog. What are the author’s main arguments against
the criminalization of cyberbullying?
REVIEW QUESTIONS
Pages 483 through 490
1. Why is “[n]o behavior a crime unless the law makes it a crime”?
2. What is the Model Penal Code and what was the intent of its
drafters?
3. How are felonies usually distinguished from misdemeanors?
4. What are the major classifications used for distinguishing among
crimes on the basis of the harm done?
Pages 490 through 499
5. What is the actus reus of a crime? What is the mens rea?
6. How do you determine whether one crime is a lesser included
offense of another crime?
7. What is an inchoate crime?
8. What is the difference between general intent and specific intent?
9. Define and describe the categories of intent used by the Model
Penal Code.
10. What methods, besides a defendant’s statements, might a
prosecutor use to prove a defendant’s state of mind?
11. Who is the principal of a crime? What is the difference between
the principal and the accessory to a crime?
Pages 499 through 511
12. What is the difference between a complete and a partial defense?
13. Describe the various tests that have been developed to determine
whether a defendant was insane at the time he or she committed
the crime.
14. What are the possible results of successfully proving an insanity
defense?
15. What is the difference between the duress and the necessity
defenses?
16. What does a defendant have to show to prove entrapment?
p. 525
p. 526
17. When can a potential victim use deadly force to protect himself or
herself?
18. What is the retreat exception to the self-defense doctrine?
Pages 511 through 514
19. When might a statute be challenged for vagueness? For
overbreadth?
20. What must the government show when a statute is questioned
as violating the defendant’s First Amendment right of freedom of
religion?
21. What are the two different approaches that states might take to
legislate against hate crimes?
22. On what basis might a defendant challenge his conviction under
a hate crimes statute?
23. What protections are afforded by the double jeopardy clause?
24. Why is it not double jeopardy for the prosecutor to appeal an
intermediate-appellate-level decision?
Pages 514 through 520
25. What are the theories of punishment? Which theory or theories
do you think are the most effective in eliminating crime in
society?
26. Who is, or is not, eligible to receive the death penalty?
27. What is the basis for a constitutional challenge to use of the
death penalty?
28. What is the purpose of “three strikes” or habitual offender
statutes?
1
720 ILCS 5/12-34.5 (Westlaw 2019).
2
Or. Rev. Stat. § 127.80 5 (Westlaw 2019). Nine states and the District of Columbia allow
assisted suicide, including California, Colorado, Hawaii, Maine, Montana, New Jersey, and
Oregon.
3
For example, in September 2007, twin sisters who were non-resident students paid $1200
to have their residencies changed. . . . Jonathan Huggs and Secrease had their residencies
changed as well. Huggs received a tuition reimbursement and Secrease received a 75%
refund totaling $15,000-$20,000. Non-resident students paid approximately four times the
tuition in-state students paid.
10
Section 1030(a)(4) provides in pertinent part that one who “knowingly and with intent to
defraud, accesses a protected computer without authorization . . . and by means of such
conduct furthers the intended fraud and obtains anything of value . . .” commits the offense
of computer fraud.
3
Sadie Gurman and Sara Randazzo, Dozens of Medical Professionals Charged in Opioids
Sting, Wall St. J. (Apr. 18, 2019), www.wsj.com/articles/dozens-of-medical-professionals-
charged-with-illegally-prescribing-opioids-11555533761.
4
The Constitution Center provides a common interpretation of the Treason Clause as well as
a for/against debate at constitutioncenter.org/interactive-constitution/articles/article-
iii/article-iii-section-3-the-treason-clause/clause/39.
5
Model Penal Code § 5.01(2)(c).
8
The text message . . . in relevant part, stated: “[Conrad’s] death is my fault like honestly I
could have stopped him I was on the phone with him and he got out of the [truck] because it
was working and he got scared and I fucking told him to get back in.”
6
673 N.E.2d 46 (Mass. 1996).
7
For a full discussion of strict liability offenses, see U.S. Congressional Research Service:
Mens Rea Reform: A Brief Overview (R44464; April 14, 2016), by Richard M. Thompson II,
fas.org/sgp/crs/misc/R44464.pdf (accessed July 29, 2019).
8
Staples v. United States, 511 U.S. 600, 619 (1994).
9
CA PENAL § 189 (West’s Annotated California Code, 2019).
10
Jury to Decide Yates’ Sentence, USA Today, Mar. 14, 2002, at 3A.
11
Tex. Code Crim. Proc. art. 46C.154 (“The court, the attorney for the state, or the attorney
for the defendant may not inform a juror of the consequences to the defendant if a verdict of
not guilty by reason of insanity is returned.”).
12
In fact, that is what eventually happened in the Yates case. A Texas appeals court reversed
Yates’s conviction based on improper expert testimony and ordered a retrial. At the second
trial, the jury found her not guilty by reason of insanity, and she was involuntarily committed
to a mental health facility.
13
Kahler v. Kansas, 139 S.Ct. 1318 (Mem) (2019).
14
As of 2019, 25 states had some variation of a stand-your-ground law;
criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-
laws.html.
15
Stand Your Ground Laws Represent a Recipe for Tragedy, USA Today, Mar. 27, 2012, at 6A.
16
Fla. Stat. § 776.032(4)(2019). “In a criminal prosecution, once a prima facie claim of self-
defense immunity from criminal prosecution has been raised by the defendant at a pretrial
immunity hearing, the burden of proof by clear and convincing evidence is on the party
seeking to overcome the immunity from criminal prosecution.”
17
See the discussion on grand juries in Chapter 13. While not formally disciplined, the officer
in the shooting case resigned his position with the Ferguson, Missouri, police department.
The New York City police union held demonstrations protesting statements the mayor had
made criticizing the police officers’ conduct in the asphyxiation death.
18
The Department of Justice (DOJ) released a formal report on the Ferguson Police
Department on March 4, 2015. It can be found at
www.justice.gov/sites/default/files/opa/press-
releases/attachments/2015/03/04/ferguson_police_department_report.pdf. On the eve of
the fifth anniversary of Eric Garner’s death, the DOJ released a statement that no federal
rights charges would be brought against an officer involved “after years of disputes in the
Justice Department, under both President Barack Obama and President Trump.” Eric Garner’s
Death Will Not Lead to Federal Charges for N.Y.P.D. Officer, New York Times, July 16, 2019, at
https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-daniel-
pantaleo.html.
19
18 U.S.C. §§ 241, 242; 42 U.S.C. §§ 14141, 2000d, and 3789d (2019).
20
William M. Welch, No Bail in Texting Shooting, USA Today, Jan. 15, 2014, at 3A. Mr. Reeve
claimed the stand your ground defense. After a hearing, in 2017, a trial judge denied him the
“stand your ground” defense and found that the prosecutors could charge Mr. Reeves with
second-degree murder. The case has continued in limbo because of the 2017 amendment to
the stand your ground law and an ongoing debate as to whether the new provisions are
retroactive.
21
Long v. State, 931 S.W.2d 285 (Tex. 1996).
22
Employment Div. v. Smith, 494 U.S. 872 (1990).
23
Reynolds v. United States, 98 U.S. 145 (1878).
24
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
25
Texas v. Johnson, 491 U.S. 397 (1989).
26
National Socialist Party v. Skokie, 432 U.S. 43 (1977).
27
Virginia v. Black, 538 U.S. 343 (2003).
28
508 U.S. 476 (1993).
29
Wis. Stat. § 939.645(1)(b) (2019).
30
Mitchell, 508 U.S. at 487-88.
31
Kennedy v. Louisiana, 554 U.S. 407 (2008).
32
Atkins v. Virginia, 536 U.S. 304, 318-20 (2002); Hall v. Florida, 572 U.S. 701 (2014).
33
Atkins, 536 U.S. at 321.
34
Roper v. Simmons, 543 U.S. 551 (2005).
35
139 S. Ct. 718 (2019)
36
Id. at 722.
37
553 U.S. 35. The protocol in question involved having “qualified personnel” inject a
combination of three drugs: sodium thiopental, pancuronium bromide, and potassium
chloride. Sodium thiopental induces unconsciousness when given in the specified amounts,
and its administration is meant to ensure that the prisoner does not experience any pain
from the paralysis and cardiac arrest caused by pancuronium bromide and potassium
chloride. This method was used in at least 29 other states at the time of the Court’s decision.
38
Sodium thiopental is no longer being manufactured in the United States and is not
available from foreign sources. The drug used to replace it, midazolam, has led to at least
three botched executions in Arizona, Ohio, and Oklahoma. Marcia Coyle, Death Debate at
High Court, National Law Journal, Feb. 2, 2015, at 1, 6.
39
135 S. Ct. 2726, 2733.
40
Id. at 2731.
41
Justice Breyer was joined in his dissent by Justice Ginsburg; a separate dissent was
written by Justice Sotomayor and joined by Justices Ginsburg, Kagan, and Breyer.
42
Id. at 2755 (Breyer, J., dissenting).
43
Id. at 2757 (Breyer, J., dissenting).
44
Bucklew v. Precythe, 139 S. Ct. 1112 (2019).
45
The Week, Rethinking mandatory sentencing, p. 11 (September 20, 2013).
46
Miller v. Alabama, 567 U.S. 460, 476-77 (2012).
47
Ewing v. California, 538 U.S. 11 (2003).
p. 526
p. 527
Criminal Procedure
It is better that ten guilty persons escape than
that one innocent suffer. William Blackstone
(1765)
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Describe the stages of a criminal case from discovery of a crime
through sentencing.
■ Explain the difference between reasonable suspicion and
probable cause and when each applies.
■ Discuss when a search warrant is required and how one is
obtained.
■ Discuss the content and the justification for the Miranda
warnings.
■ Define the exclusionary rule and explain its purpose.
■ Differentiate a grand from a petit jury.
INTRODUCTION
Almost any time you turn on your television you can see someone’s
interpretation of how our criminal justice system works — or fails to
work. Real-life court cases intertwine in the public’s mind with
fictitious courtroom battles, sending mixed messages. Our criminal
justice system raises fundamental questions: How far should police
go to capture suspected criminals and to construct
p. 527
p. 528
cases against them? Can defense attorneys and prosecutors protect
the rights of criminal defendants and still respond to the needs of
crime victims? How can criminal defense attorneys represent
defendants who they know are guilty? Is it really better to let ten guilty
people go free than to have one innocent person sent to jail? Are some
innocent persons being sent to jail in spite of all our system’s due
process guarantees? These are the types of questions that you will
encounter in the study of criminal procedure.
The federal and state rules of criminal procedure govern
everything from investigation and arrest through sentencing and
appeals. The federal and state rules of evidence regulate what types
of evidence can be used in the trial and how it must be presented. The
goal of these rules is to protect all of society, even alleged criminals,
from unjust prosecutions.
Civil and criminal procedure share many similarities, especially at
the trial stage. However, there are significant differences as well. For
example, whereas civil lawsuits begin with the official filing of the
complaint, criminal cases normally begin with the arrest of the
accused. Figure 13-1 provides an overview of the stages in a criminal
prosecution. Be warned, however, that the details of criminal
procedure vary greatly among jurisdictions. For example, only about
half the states have a grand jury system. Also, especially for
misdemeanors, the stages may be accelerated or even combined. The
only mandated uniformity is the U.S. Supreme Court requirement that
a probable cause hearing be held within 48 hours after a person is
1
arrested without a warrant. Also, Figure 13-1 assumes that the
process continues until there is either a guilty plea or a trial. However,
the charges can be dropped at any time. For example, the prosecutor
might decide that there is insufficient evidence to file an information,
or the grand jury might refuse to indict.
The U.S. Supreme Court has ruled that state, as well as federal,
prosecutions must be consistent with the constitutional protections of
the Bill of Rights. Therefore, although approximately 95 percent of
criminal prosecutions occur in state courts, the U.S. Constitution has a
significant impact on how these prosecutions are conducted.
In the next few sections, we will use the fictitious case of People v.
Grant to illustrate the various stages in a criminal prosecution. Pay
special attention to how the federal and state rules of criminal
procedure are designed to protect the rights of the accused, ensure a
just result, and keep the system running smoothly. These rules cover
the actions of law enforcement, the court system, defense attorneys
and prosecutors, and the guidelines by which convicted criminals are
sentenced.
Case 15: People v. Grant
When Stephen Joseph returned home at about 10:00 p.m. on
April 30, he discovered that the window of his porch door was
broken and someone had taken his stereo, DVD, and television. Mr.
Joseph called the police.
p. 528
p. 529
Figure 13-1 Stages of Criminal Procedure
p. 529
p. 530
A. PARTICIPANTS IN THE PROCESS
While criminal acts are legally treated as offenses against the state, in
reality, it is individuals who typically suffer the greatest injuries from
crime. The information provided by victims and their testimony play
important roles in the identification and trial of criminal defendants.
Many states have a “Victim’s Bill of Rights” outlining the rights of
victims in a criminal matter.
Note, however, that there are situations in which criminal
proceedings are started without any action being taken by a victim.
For example, the crime may have been observed by police or others
who were in a position to see it happen. There are also situations in
which the victim is either unable or unwilling to testify. In domestic
violence cases, it is not unusual for the victim to deny that an offense
took place and to refuse to testify against the abuser. However, if there
is no other evidence of the crime, the victim’s refusal to testify may
mean that the case has to be dismissed.
In some cases, victims also have a role in the sentencing process.
Indeed, some states provide for “victim impact statements” in which
the victim or the victim’s family members relate how the crime
affected their lives.
Law enforcement officials — from local police, sheriff’s officers,
highway patrol, state police, game wardens, and park rangers to
agents from federal agencies such as the FBI — are also key
participants in criminal prosecutions. In some cases, they actually
witness the crime as it is being committed, and in others they
interview victims and witnesses and collect evidence. If they do not
give proper warnings or seek required search warrants, they can make
it very difficult (and often impossible) for prosecutors to obtain a
conviction.
The attorney’s role in the criminal justice system is to be an
advocate for either the government seeking to enforce the law or the
defendant who is accused of violating it. Prosecuting attorneys usually
carry titles such as District Attorney, States’ Attorney, or U.S.
2
Attorney and are full-time employees. Those representing the
defendants are usually in private practice or employees of a
government-financed public defender’s office.
The roles of judges, clerks, reporters, bailiffs, and jurors are pretty
much the same whether they are handling civil or criminal matters.
Later in this chapter we will cover the special role of grand juries. The
final group of professionals involved in the criminal justice system are
those who work in prisons and as probation and parole officers.
B. INVESTIGATION OF A CRIME
The criminal process usually begins when a law enforcement officer
learns that a crime has been committed or is about to be committed.
Either the officer personally observes the crime being committed, or
the officer is sent to investigate a crime that either the victim or a
witness has reported. A good example
p. 530
p. 531
of the former would be a situation in which a police officer observes
an automobile being driven in a dangerous and erratic manner, pulls
the car over, and observes that the driver appears to be drunk. The
latter is what happened in People v. Grant.
Case 15: People v. Grant (continued)
When the police dispatcher received Mr. Joseph’s call regarding
a possible burglary, she dispatched police personnel to his home.
After talking with Joseph, they determined that a crime had indeed
been committed and began talking with neighbors and collecting
evidence.
A next-door neighbor, Pat Baker, remembered seeing a van
parked in Mr. Joseph’s driveway earlier in the evening. According to
Mrs. Baker, she saw two men in dark clothes standing at the end of
Mr. Joseph’s driveway next to the van. It had Grant’s Audiovisual
Equipment written on the side.
1. Constitutional Restrictions
Both federal and state investigations and prosecutions must be
conducted in such a way as not to violate constitutional rights set out
in the Bill of Rights. The Fourth, Fifth, and Sixth Amendments to the
U.S. Constitution impose important restrictions on how law
enforcement officials can go about gathering evidence when
conducting searches and questioning potential suspects.
NETNOTE
The FBI maintains a website at www.fbi.gov, where you can find a
great deal of information, including the “Ten Most Wanted” list.
a. Fourth Amendment
Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
p. 531
p. 532
The Fourth Amendment begins with a prohibition against
“unreasonable” searches of “persons, houses, papers, and effects.” It
then goes on to require that search warrants only be issued upon a
showing (supported by “oath or affirmation”) of “probable cause” and
that these warrants “particularly” describe “the place to be searched,
and the persons or things to be seized.”
Because the Fourth Amendment protects only against
unreasonable searches, when policy activity is challenged, the first
question that needs to be answered is whether what was done
constituted a search. To determine whether a search has taken place,
courts evaluate the defendant’s expectation of privacy. Some areas,
such as a suspect’s bedroom closet and the inside of a suspect’s
refrigerator, clearly raise expectations of privacy. Other areas, such as
the license plate of a suspect’s automobile and the outside stairs of a
suspect’s home, are less private. The suspect expects that these areas
will be seen by anyone passing by. Therefore, it is not a “search” to
write down a speeding car’s license plate number.
In sum, legal challenges to specific searches traditionally have
centered on whether the individual whose property was searched had
a reasonable “expectation of privacy.” If police actions do not violate
any expectation of privacy, then the Fourth Amendment protection
does not apply. However, if individuals have an expectation of privacy,
then the police must get a warrant before they can perform a search.
For example, if the police are looking for evidence that a former bank
employee downloaded customers’ credit card information onto a
personal computer, then the police would be required to get a warrant
before performing a search of the computer’s contents.
b. Fifth Amendment
While arguably the Fourth Amendment protections play the largest
role in regulating the ability of law enforcement officials to investigate
crime, the Fifth Amendment right against self-incrimination also plays
an important role.
Amendment V
No person shall . . . be compelled in any criminal case to be a
witness against himself . . .
The courts could have interpreted the language stating that a
person cannot be compelled to be a “witness against himself” very
narrowly so that it would only apply in the courtroom setting, thereby
preventing the prosecution from requiring the defendant to answer
incriminating questions. However, the courts have adopted the
broader interpretation. Thus, this protection applies not only to
questioning at trial but also to police interrogations.
p. 532
p. 533
c. Sixth Amendment
The Sixth Amendment guarantees a right to be represented by an
attorney.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to . . .
have the assistance of counsel for his defense.
In the landmark case of Miranda v. Arizona, the Court stated that
in addition to having the right to have an attorney present during police
interrogations, the police must also inform the suspect of that right.
2. Discovery of the Crime and Initial Actions Taken
In addition to being aware of the constitutional protections discussed
above, in order to be able to introduce this evidence in court, the police
and their crime scene investigation units have to be very careful not to
compromise the admissibility of the evidence. For example, they
should not touch items without gloves nor move anything before
pictures can be taken to document the location in which they were
found. They must clearly mark any items they take with them and
maintain records establishing the “chain of custody.”
Case 15: People v. Grant (continued)
When the police were returning to the station to file a report,
they noticed two men in dark clothes walking about ten blocks from
the Joseph home. The police turned on their cruiser lights and
pulled up behind the men. After briefly questioning the men and
patting down their clothes to make sure that they did not carry any
weapons, the police determined that these men were late-night
joggers and not related to the crime.
Depending upon the timeframe involved, police may also begin
driving around near the scene of the crime, looking for any related
crimes or suspicious activities. In the case of People v. Grant, when
the police stopped and questioned these late-night joggers, they were
conducting what is known as a stop and frisk. If the police have a
reasonable suspicion a person has committed or is about to commit
a crime, they can stop (detain) a person and ask questions. When
circumstances such as the time of day and the number of people in
the area justify it, the police can “frisk” (pat down the outside of the
person’s clothes they stopped) to see if the person is carrying any
dangerous weapons.
The origin of this right dates back to 1963, when an Ohio police
officer thought that a group of individuals was hanging around a street
corner to plan a “stick-up.” The officer asked the men to identify
themselves. Then the officer patted down the men’s clothing. The
officer uncovered two guns. After one of the men was convicted of
carrying a concealed weapon, he appealed to the U.S.
p. 533
p. 534
Supreme Court. In Terry v. Ohio 3
the Supreme Court declared that the
officer’s stop and frisk was a search and seizure covered by the Fourth
Amendment of the Constitution, However, because the intrusion into
the person’s privacy was slight, the “pat-down” did not give rise to a
Fourth Amendment violation. Further, once the officer felt the gun, he
or she then had probable cause to conduct a search and seize the
weapon.
But as suggested above, the police cannot stop and frisk any
individual they want at any time they want. An individual may be
stopped only when the officer has a reasonable suspicion that the
individual has committed, is in the process of committing, or is about
to commit a crime. According to the Court’s opinion in Terry,
reasonable suspicion must be based on “specific and articulable facts
which, taken together with rational inferences from those facts,
4
reasonably warrant that intrusion.”
In recent years, the Supreme Court has expanded the scope of
“stop and frisk” procedures in the context of traffic stops. In Arizona v.
Johnson, the Court gave police the authority not only to pat down the
driver of a stopped motor vehicle, but also its passengers if they had
5
reason to believe any of them might be armed and dangerous.
In addition, if a reasonable suspicion exists that a crime has been
committed, the police can ask individuals to identify themselves. In
Hiibel v. Nevada, 6
a Nevada police officer was responding to a call
reporting that a man had assaulted a woman. When the officer found
a man standing outside a parked truck that matched the description
the police had been given and observed a woman inside the truck, the
U.S. Supreme Court concluded that the officer had reasonable
suspicion to stop the defendant and to ask him to identify himself.
When the defendant did not do so, the police were justified in arresting
him. The Court also noted that asking an individual to reveal his or her
name does not violate the Fifth Amendment privilege against self-
7
incrimination. However, the Court has also held that if the police
officer was not involved in a lawful “Terry stop,” that is, if the police
officer did not have reasonable suspicion of criminal activity, and the
individuals refused to identify themselves, the police officer could not
8
arrest them for remaining silent.
The circumstances of the stop matter. The length of time that the
officers detain the suspect cannot be long. The longer the period of
time, the closer the court will look at the intrusiveness of the search.
The court will also look at the number and the type of questions the
police ask. If the questions become detailed or the officers begin to
accuse the suspect of committing a crime, then the court may
consider the stop too intrusive.
The court will also look carefully at the circumstances of a frisk.
Because the purpose of the frisk is to protect the officers and to aid in
the detection and prevention of crime, the officers may frisk the
suspect only if the officers, in their
p. 534
p. 535
experience, believe that the suspect is carrying a weapon. The frisk
must take place outside the suspect’s clothes. The officers are not
allowed to search the inside clothing or pockets of the suspect. If a
motorist is stopped, the officer may pat down the areas within the
suspect’s immediate control, such as the car’s seat.
In our hypothetical case of People v. Grant, the police would argue
that they had a reasonable basis to stop and frisk the two joggers.
■ The neighbor’s description of the men matched their
appearances.
■ They were two in number.
■ They wore dark clothes.
■ They were in the neighborhood of the crime late at night.
3. Searches and Seizures of Evidence
Searches of a suspect’s home, business, or automobile and seizures
of property from those locations are crucial law enforcement tools.
Through legal searches and seizures, officers may uncover items that
are illegal on their face, such as illegal drugs or weapons. Officers may
also locate the fruits of crime, such as stolen property, or the
instruments of crime, such as burglary tools, weapons, and plans.
a. Procedures for Obtaining and Executing Search
Warrants
The best way to ensure that the results of a search will be
admissible in court is first to have the police or prosecutor go before a
judge to obtain a formal search warrant. In order to issue the warrant,
a judge needs to find that it is supported by probable cause.
In seeking a search warrant, law enforcement agents must:
■ List the specific items they expect to find at the location they
wish to search (they cannot just look for something that might
be incriminating);
■ Explain how the items they are searching for are connected to
criminal activity; and
■ Convince the judge that there is probable cause to believe the
items they seek are located where they intend to search.
Note how this process worked in People v. Grant.
Case 15: People v. Grant (continued)
After some investigation the officers determined that Bruce
Grant is the owner of Grant’s Audiovisual Equipment. By checking
with the motor vehicle department, the police also discovered that
the vehicle was registered to Bruce Grant, age 42. The business is
located at 17 Hastings Street. When they checked Mr. Grant’s
record, they discovered that he had twice been
p. 535
p. 536
convicted of stealing audiovisual equipment and selling the stolen
goods.
The officers wanted to search the business premises to look for
Mr. Joseph’s missing goods. They wanted to be able to take those
goods, and any other stolen goods, from Mr. Grant’s place of
business to be used against him at a trial.
The officers went to court and told the judge what their
investigation had produced. They told the judge exactly what they
wanted to search (Grant’s place of business and the inside of the
van), and they told the judge exactly what they expected to find
there (Mr. Joseph’s stolen items). The judge determined that there
was probable cause and issued the warrant to search.
In this case it would not be appropriate for the officers to simply
ask the court for a warrant to search for TV sets because the business
could have several TVs for sale that are not the products of the crime.
The officers should list the specific brands, models, model numbers if
they are known, and any other specific characteristics of the stolen
items. Where the police are looking for illegal drugs, however, they
need not be as specific. They can indicate on the warrant that they are
looking for heroin because there is no legal heroin that can be found
by mistake. The officers should also be as specific as possible about
the location, noting street address, apartment number, or level. This
not only makes the officers’ probable cause stronger but also assists
the officers who execute the warrant.
The search warrant must be executed — that is, the search must
actually be carried out — within a specific period of time. The officers
must announce themselves as police officers and execute the warrant
during the daytime unless the warrant specifically allows other
arrangements. They must inventory and describe in writing all the
items they seize, and usually they must give the suspect a receipt.
Under special conditions the courts will sometimes issue no-knock
warrants, which allow the police to enter without announcing their
presence in advance. In order to receive one of these special search
warrants, the police must convince the judge that evidence is likely to
be destroyed or that the police administering the warrant will be in
danger.
b. Exceptions to the Warrant Requirement
Although it is always best to obtain a warrant, many searches are
conducted without a warrant and are nonetheless valid. Figure 13-2
contains a listing and brief explanation of the most common
exceptions to the requirement that law enforcement authorities obtain
a warrant before they conduct a search. Most of these exceptions are
based on one of two theories. The first is that the Fourth Amendment
is not violated because there is no expectation of privacy (as with the
plain view and consent exceptions) or the invasion was minimal (as
with the stop and frisk exception). The second is that in order to
protect human life or to prevent the destruction of evidence, the police
action was reasonable under the circumstances (as with a search
incident to an arrest or exigent circumstances).
p. 536
p. 537
Rationale for Not
Type of Exception Description of Search
Requiring a Warrant
Consent search Search takes place after someone, Constitutional rights can
who has authority to do so, be voluntarily waived.
voluntarily agrees to allow law
enforcement authorities to search.
In plain view doctrine Officers see items they believe to be There is no violation of the
contraband or evidence of a crime right to privacy when the
when the objects are in plain view officers can see the
and the police are in a place where items.
they have a right to be.
Incident to lawful arrest A search for potential weapons or This protects the safety of
evidence of a crime that is police and prevents
conducted at the time a person is destruction of evidence.
arrested.
Inventory search An examination of personal effects Documentation protects
or vehicle to document the against theft or damage
contents, following an arrest or of items while under
seizure of a vehicle. police control.
Stop and frisk A “pat down search” of someone the The need to protect the
police have stopped to question in officers’ safety
surroundings (e.g., a dark alley) outweighs the relatively
where the officers’ personal safety minor invasion of
might be at risk. privacy.
Exigent circumstances An emergency situation in which Applies in emergency
there is not adequate time to get a situations when action is
warrant before the evidence could necessary to avoid loss
be destroyed or life could be of evidence or to save
endangered. (Examples: People are human life.
trapped inside a house that is on
fire or the police are in “hot pursuit”
of a suspect.)
Figure 13-2 Exceptions to the Warrant Requirement
The two most common exceptions to the requirement to obtain a
warrant before undertaking a search are when there is consent to the
search and when the seized evidence was in plain view.
A consent to search occurs when someone, who has authority to
do so, voluntarily agrees to allow law enforcement authorities to
search a dwelling, car, or business. A warrant is not necessary where
proper consent was given, but issues can arise as to whether the
person giving consent had the authority to do so.
p. 537
p. 538
The plain view doctrine holds that law enforcement officers have
the right to seize contraband items or evidence of a crime when they
see such items “in plain view.” Therefore, if officers observe marijuana
growing in containers on someone’s front porch, they can seize the
plants and use them as evidence against the occupants of the
dwelling. And when an officer looks in the driver’s window of a car that
has been stopped for a minor traffic offense, that police officer can
seize a partially filled beer can she observes sitting on the
automobile’s front seat. However, an officer may not search an
automobile without a warrant in the area immediately surrounding and
associated with the home, an area referred to as the curtilage, for
9
evidence that is not in plain view from a lawful vantage point.
The exception for trained dog alerts in drug cases is similar to the
plain view doctrine except that instead of a human seeing evidence of
illegal activity, a specially trained dog smells evidence of illegal activity.
In Illinois v. Caballes, the U.S. Supreme Court held that it did not
violate the Fourth Amendment when after a traffic stop, police used a
10
specially trained dog to sniff the exterior of the driver’s car. However,
in 2013, in Florida v. Jardines, the Court excluded evidence from a
warrantless search of a house, following a dog alert at the front door
11
of the house where police suspected drugs were being grown. In
Jardines, the Court’s decision was based on the location of the alert.
The police had trespassed on the defendant’s property when they
brought the dog onto his porch. In Collins v. Virginia, 12
the Court held
that without a warrant police could not use a picture from the
accused’s Facebook page to examine a motorcycle located on private
property.
As noted in Figure 13-2, the exception for a search incident to
arrest is based on the need to protect the safety of law enforcement
officers and to prevent destruction of evidence. When exigent
circumstances exist, police may have no time to obtain a warrant
before evidence is destroyed or people are endangered.
The states are legitimately concerned about drunk driving and the
damage it can cause. In addition to conducting “field sobriety tests”
that involve observing the manner in which a driver performs physical
tests such as walking a straight line, law enforcement officers rely on
the use of breathalyzer tests and blood tests to measure blood alcohol
levels and drivers’ degree of impairment. All states have some sort of
implied consent law that provides for the loss of a driver’s license for
refusing to take a breathalyzer test, blood test, or urine test after being
stopped on suspicion of drunk driving. A number of states have even
made refusing to take a breathalyzer test a crime. Two states,
Minnesota and North Dakota, have gone further and have made
refusing to take a blood test a crime. Noting the difference between
requiring a breathalyzer test and requiring a blood test, the U.S.
Supreme Court has held that charging a driver with a crime for
refusing a breathalyzer test incident to a drunk driving arrest is
permitted under the Fourth Amendment. Because of the intrusiveness
of the act of taking blood, however, before charging a driver with a
crime for refusing a blood test,
p. 538
p. 539
the Fourth Amendment requires the law enforcement officers to
13
obtain a warrant. The following case addresses those cases in
which a blood test can be made without a warrant.
Mitchell v. Wisconsin
139 S. Ct. 2525 (2019)
Justice ALITO announced the judgment of the Court. . . .
IB
. . . .Officer Alexander Jaeger of the Sheboygan Police
Department received a report that petitioner Gerald Mitchell,
appearing to be very drunk, had climbed into a van and driven off.
Jaeger soon found Mitchell wandering near a lake. Stumbling and
slurring his words, Mitchell could hardly stand without the support
of two officers. Jaeger judged a field sobriety test hopeless, if not
dangerous, and gave Mitchell a preliminary breath test. It registered
a BAC [blood alcohol concentration] level of 0.24%, triple the legal
limit for driving in Wisconsin. Jaeger arrested Mitchell for operating
a vehicle while intoxicated and, as is standard practice, drove him to
a police station for a more reliable breath test using better
equipment.
On the way, Mitchell’s condition continued to deteriorate — so
much so that by the time the squad car had reached the station, he
was too lethargic even for a breath test. Jaeger therefore drove
Mitchell to a nearby hospital for a blood test; Mitchell lost
consciousness on the ride over and had to be wheeled in. Even so,
Jaeger read aloud to a slumped Mitchell the standard statement
giving drivers a chance to refuse BAC testing. Hearing no response,
Jaeger asked hospital staff to draw a blood sample. Mitchell
remained unconscious while the sample was taken, and analysis of
his blood showed that his BAC, about 90 minutes after his arrest,
was 0.222%.
Mitchell was charged with violating two related drunk-driving
provisions. He moved to suppress the results of the blood test on
the ground that it violated his Fourth Amendment right against
“unreasonable searches” because it was conducted without a
warrant. . . . The Wisconsin Supreme Court affirmed Mitchell’s
convictions, and we granted certiorari to decide “[w]hether a statute
authorizing a blood draw from an unconscious motorist provides an
exception to the Fourth Amendment warrant requirement.”
II
Over the last 50 years, we have approved many of the defining
elements of this scheme. We have held that forcing drunk-driving
suspects to undergo a blood test does not violate their
constitutional right against self-incrimination. Nor does using their
refusal against them in court. And punishing that refusal with
automatic license revocation does not violate drivers’ due process
rights if they have been arrested upon probable cause; on the
contrary, this kind of summary penalty is “unquestionably
legitimate.”
These cases generally concerned the Fifth and Fourteenth
Amendments, but motorists charged with drunk driving have also
invoked the Fourth Amendment’s ban on “unreasonable searches”
since BAC tests are “searches.” Though our precedent normally
requires a warrant for a lawful search, there are well-defined
exceptions
p. 539
p. 540
to this rule. In Birchfield, we applied precedent on the “search-
incident-to-arrest” exception to BAC testing of conscious drunk-
driving suspects. We held that their drunk-driving arrests, taken
alone, justify warrantless breath tests but not blood tests, since
breath tests are less intrusive, just as informative, and (in the case
of conscious suspects) readily available.
We have also reviewed BAC tests under the “exigent
circumstances” exception — which, as noted, allows warrantless
searches “to prevent the imminent destruction of evidence.” In
McNeely, we were asked if this exception covers BAC testing of
drunk-driving suspects in light of the fact that blood-alcohol
evidence is always dissipating due to “natural metabolic processes.”
We answered that the fleeting quality of BAC evidence alone is not
enough. But in Schmerber it did justify a blood test of a drunk driver
who had gotten into a car accident that gave police other pressing
duties, for then the “ further delay” caused by a warrant application
really “ would have threatened the destruction of evidence.”
IIIA
Finally, when a breath test is unavailable to promote those
interests, “a blood draw becomes necessary.” Thus, in the case of
unconscious drivers, who cannot blow into a breathalyzer, blood
tests are essential for achieving the compelling interests described
above.
Indeed, not only is the link to pressing interests here tighter; the
interests themselves are greater: Drivers who are drunk enough to
pass out at the wheel or soon afterward pose a much greater risk. It
would be perverse if the more wanton behavior were rewarded — if
the more harrowing threat were harder to punish.
IV
When police have probable cause to believe a person has
committed a drunk-driving offense and the driver’s
unconsciousness or stupor requires him to be taken to the hospital
or similar facility before police have a reasonable opportunity to
administer a standard evidentiary breath test, they may almost
always order a warrantless blood test to measure the driver’s BAC
without offending the Fourth Amendment. We do not rule out the
possibility that in an unusual case a defendant would be able to
show that his blood would not have been drawn if police had not
been seeking BAC information, and that police could not have
reasonably judged that a warrant application would interfere with
other pressing needs or duties. Because Mitchell did not have a
chance to attempt to make that showing, a remand for that purpose
is necessary.
* * *
The judgment of the Supreme Court of Wisconsin is vacated,
and the case is remanded for further proceedings.
It is so ordered.
CASE DISCUSSION QUESTIONS
1. Based on the cases cited in Justice Alito’s opinion:
a. Under what circumstances can police require a driver to take
a roadside breath test, and what are the legal consequences
if the driver does not comply?
b. Under what circumstances can police require a driver to take
a breath test at a police station, and what are the legal
consequences if the driver does not comply?
c. Under what circumstances can police require a driver to give
a blood or a urine sample at either a police station or a
medical facility, and what are the legal consequences if the
driver does not comply?
p. 540
p. 541
2. To what extent are the Fourth and Fifth amendments relevant to
the answers to question 1?
3. What is the court’s justification for treating drunk driving cases
differently than other types of crimes?
4. Why did the U.S. Supreme Court remand the case back to the
Wisconsin courts, rather than ruling directly on the admissibility of
Mitchell’s blood test?
5. While breathalyzer tests can determine the level of alcohol in
one’s body, such tests cannot be used for marijuana and other drugs
that can affect someone’s driving. Do you think police should be able
to require motorists to provide blood samples whenever they suspect
the driver was under the influence of some drug?
In the discussion on page 532, you learned that searching a private
computer required a warrant, but what about cell phones? In Riley v.
California, the U.S. Supreme Court found that, because of the
expectation of privacy, police may not generally search digital
information on a cell phone from an individual who has been
14
arrested. In the following case, the U.S. Supreme Court was asked to
decide whether police can obtain cell-site locations from cell phones
through their wireless carrier without first obtaining a search warrant.
Carpenter v. U.S.
138 S. Ct. 2206 (2018)
Chief Justice ROBERTS delivered the opinion of the Court.
This case presents the question whether the Government
conducts a search under the Fourth Amendment when it accesses
historical cell phone records that provide a comprehensive
chronicle of the user’s past movements.
IB
In 2011, police officers arrested four men suspected of robbing
a series of Radio Shack and (ironically enough) T-Mobile stores in
Detroit. One of the men confessed that, over the previous four
months, the group (along with a rotating cast of getaway drivers
and lookouts) had robbed nine different stores in Michigan and
Ohio. The suspect identified 15 accomplices who had participated
in the heists and gave the FBI some of their cell phone numbers; the
FBI then reviewed his call records to identify additional numbers
that he had called around the time of the robberies.
Based on that information, the prosecutors applied for court
orders . . . to obtain cell phone records for petitioner Timothy
Carpenter and several other suspects. Federal Magistrate Judges
issued two orders directing Carpenter’s wireless carriers —
MetroPCS and Sprint — to disclose “cell/site sector [information] for
[Carpenter’s] telephone[] . . . for incoming and outgoing calls” during
the four-month period when the string of robberies occurred. . . .
Altogether the Government obtained 12,898 location points
cataloging Carpenter’s movements — an average of 101 data points
per day.
p. 541
p. 542
Carpenter was charged with six counts of robbery and an
additional six counts of carrying a firearm during a federal crime of
violence. Prior to trial, Carpenter moved to suppress the cell-site
data provided by the wireless carriers. He argued that the
Government’s seizure of the records violated the Fourth
Amendment because they had been obtained without a warrant
supported by probable cause. . . .
The Court of Appeals for the Sixth Circuit . . . held that Carpenter
lacked a reasonable expectation of privacy in the location
information collected by the FBI because he had shared that
information with his wireless carriers. Given that cell phone users
voluntarily convey cell-site data to their carriers as “a means of
establishing communication,” the court concluded that the resulting
business records are not entitled to Fourth Amendment protection.
IIIA
. . .
[A] cell phone — almost a “feature of human anatomy” — tracks
nearly exactly the movements of its owner. While individuals
regularly leave their vehicles, they compulsively carry cell phones
with them all the time. A cell phone faithfully follows its owner
beyond public thoroughfares and into private residences, doctor’s
offices, political headquarters, and other potentially revealing
locales. Accordingly, when the Government tracks the location of a
cell phone it achieves near perfect surveillance, as if it had attached
an ankle monitor to the phone’s user.
Moreover, the retrospective quality of the data here gives police
access to a category of information otherwise unknowable. In the
past, attempts to reconstruct a person’s movements were limited
by a dearth of records and the frailties of recollection. With access
to CSLI [cell-site location information], the Government can now
travel back in time to retrace a person’s whereabouts, subject only
to the retention policies of the wireless carriers, which currently
maintain records for up to five years. Critically, because location
information is continually logged for all of the 400 million devices in
the United States — not just those belonging to persons who might
happen to come under investigation — this newfound tracking
capacity runs against everyone. . . .
Whoever the suspect turns out to be, he has effectively been
tailed every moment of every day for five years, and the police may
— in the Government’s view — call upon the results of that
surveillance without regard to the constraints of the Fourth
Amendment. Only the few without cell phones could escape this
tireless and absolute surveillance.
IV
[I]f law enforcement is confronted with an urgent situation, such
fact-specific threats will likely justify the warrantless collection of
CSLI. Lower courts, for instance, have approved warrantless
searches related to bomb threats, active shootings, and child
abductions. Our decision today does not call into doubt warrantless
access to CSLI in such circumstances. While police must get a
warrant when collecting CSLI to assist in the mine-run criminal
investigation, the rule we set forth does not limit their ability to
respond to an ongoing emergency.
* * *
As Justice Brandeis explained in his famous dissent, the Court
is obligated — as “[s]ubtler and more far-reaching means of invading
privacy have become available to the Government” — to ensure that
the “progress of science” does not erode Fourth Amendment
protections. Here the progress of science has afforded law
enforcement a powerful new tool to carry out its important
responsibilities. At the same time, this tool risks Government
encroachment of the sort the Framers, “after consulting the lessons
of history,” drafted the Fourth Amendment to prevent.
We decline to grant the state unrestricted access to a wireless
carrier’s database of physical location information. In light of the
deeply
p. 542
p. 543
revealing nature of CSLI, its depth, breadth, and comprehensive
reach, and the inescapable and automatic nature of its collection,
the fact that such information is gathered by a third party does not
make it any less deserving of Fourth Amendment protection. The
Government’s acquisition of the cell-site records here was a search
under that Amendment.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this opinion.
It is so ordered.
CASE DISCUSSION QUESTIONS
1. In what ways did the justices think searching cell phone location
data impacts the Fourth Amendment’s protection of privacy? Why was
this important to the Court’s decision?
2. How did the police use the information they obtained from
Carpenter’s wireless carrier? Do you think he could have been
convicted without the use of that information?
3. In 1979, the U.S. Supreme Court held in Smith v. Maryland 15
that there was no reasonable expectation of privacy and hence no
warrant requirement for a telephone company to install a “pin” on a
suspect’s phone. This allowed the police to track all of the phone
numbers that the suspect dialed. What is the difference between the
two cases?
DISCUSSION QUESTION
1. Which of the following areas do you think should be considered
“private” and therefore require a warrant to be searched?
a. a teenager’s bedroom in the parents’ home
b. a garage
c. someone’s office at work
d. a school locker
e. garbage that was placed on the curb for roadside pickup
Case 15: People v. Grant (continued)
When the search warrant was executed, the police found the
stolen items in an unlocked cabinet in the rear of the store. The
officers seized the equipment, gave Mr. Grant a receipt for the items
they seized, and filed a report with the court. The police officers
then asked Mr. Grant to come to the station to talk to them about
the equipment. Mr. Grant rode along with them in the back seat of
one of the patrol cars.
p. 543
p. 544
On the ride to the station one of the officers asked Mr. Grant
where he had been on the evening of April 30. He replied that he and
his cousin had gone to a movie. The officer then asked him what
movie they had seen and what time it had started. Mr. Grant said
they had gone to an 8 o’clock showing of Star Wars. Next the officer
asked him where he had gotten the electronic equipment that they
had seized from his store. He replied that he had taken it as a trade-
in as part of a sale of a big-screen TV.
When they arrived at the police station, the officers took Mr.
Grant into an interrogation room and read him his Miranda rights.
He responded that he did not want to talk to them unless he had an
attorney present. When they gave him a telephone so he could call
his attorney, he told them he wanted a court-appointed attorney
because he could not afford to hire one on his own.
4. Interrogations
As previously noted, police officers usually start their investigation of
criminal activity by questioning victims and witnesses. This form of
questioning usually takes place at the scene of the crime or
sometimes even in the person’s home or office. But for purposes of
the Fifth and Sixth Amendments, there is an important distinction
between simply addressing questions to victims and witnesses to get
background information about a crime, and interrogating suspects to
elicit potentially incriminating information linking them to the
commission of the crime.
In the landmark cases of Escobedo v. Illinois 16
and Miranda v.
Arizona, 17
the U.S. Supreme Court ruled that the Fifth Amendment’s
privilege against self-incrimination and the Sixth Amendment’s right to
assistance of counsel apply to the interrogation stage, as well as to
the trial. The Court reasoned that the right to counsel at trial would not
benefit the defendant if the defendant had already confessed before
meeting with an attorney and that the presence of an attorney during
an interrogation would help to ensure that any statements given would
be truly voluntary rather than coerced. The famous Miranda warnings
are designed to notify defendants of their rights and to explain those
rights in language they will understand.
Miranda Warnings
Prior to custodial interrogation, the suspect must be told of these
rights:
1. The right to remain silent.
2. That anything said can be used against the suspect in a court
of law.
3. The right to the presence of an attorney.
4. That if the suspect cannot afford an attorney, one will be
appointed prior to any questioning.
p. 544
p. 545
Once the Miranda warnings are given, the police cannot interrogate
the suspect further unless he or she waives these rights. Note,
however, that these rights apply only to testimonial evidence and do
not protect a suspect from having to take a breathalyzer test, be
18
fingerprinted, be subjected to a DNA swab, or provide a handwriting
sample.
In our hypothetical People v. Grant case, the police read Mr. Grant
his Miranda rights before they began questioning him at the police
station. However, they questioned him in the car about his activities on
the night of the burglary before they informed him of his Miranda
rights. Did this questioning in the car constitute an interrogation, and
were the police required to have read the Miranda rights before they
questioned him in the car?
The answers depend on the definition of a custodial interrogation.
Suspects are in police custody when they feel that their freedom has
been deprived in a significant way. It does not matter whether the
suspects have been arrested (formally charged with a crime), although
an arrest would indicate that the suspects are not free to leave. When
suspects are in police custody and are questioned by the police, it is
difficult, and maybe even frightening, for them to say, “No, thank you,”
to police questions. Therefore, before beginning this custodial
interrogation (questioning of suspects when they feel that their liberty
has been deprived), the police are required to tell the suspects about
their rights. However, what constitutes “interrogation” is not always
clear.
In Rhode Island v. Innis, 19
the U.S. Supreme Court considered what
constituted an “interrogation” in a situation in which police were
transporting a suspect to the police station after that suspect had
been given his Miranda rights and had asked to speak to a lawyer.
While en route to the central station one of the officers initiated a
conversation with the other patrolman concerning a missing shotgun
involved in the crime. They expressed concern that children in the area
might find it and inadvertently hurt or kill someone with the weapon. In
response to this discussion between the officers, Innis told them to go
back to the scene of his arrest so he could show them where they
could find the gun. Innis then directed the police to where they found
the gun.
After the weapon and the statements he made to the police in the
patrol car were introduced at his trial, Innis appealed his conviction on
the basis that the admission of this evidence constituted a violation of
the Miranda decision. In its decision to uphold the constitutionality of
Innis’s conviction, Justice Stewart declared:
[W]e conclude that the respondent was not “interrogated” within the meaning of Miranda.
It is undisputed that the first prong of the definition of “interrogation” was not satisfied, for
the conversation between Patrolmen Gleckman and McKenna included no express
questioning of the respondent. Rather, that conversation was, at least in form, nothing
more than a dialogue between the two officers to which no response from the respondent
20
was invited.
p. 545
p. 546
Although suspects have the right not to answer questions during
custodial interrogation, this does not mean that they have to remain
silent. Suspects may waive their Miranda rights as long as they do so
voluntarily, knowingly, and intelligently. To determine whether a
suspect waived his or her rights, the court will look carefully at all the
circumstances. The court will consider the educational level of the
suspect, language barriers, the existence of a mental condition or
impairments, addictions to alcohol or illegal substances, the suspect’s
prior court experiences, the duration and intensity of the questioning
period, and any other facts brought to the court’s attention. The
prosecution has the burden of proving that the defendant made a
proper waiver. To avoid confusion about whether a suspect received
Miranda warnings or about whether there were proper waivers of the
suspect’s rights, law enforcement agencies usually require defendants
to sign a card that lists the suspect’s rights and asks the defendant
questions, such as these:
1. Do you understand these rights as they have been explained to
you?
2. Understanding these rights, do you wish to speak to me now?
3. Please sign this card indicating that you understand the above
information.
In addition to the Miranda cards, many police departments
videotape or tape-record the suspects as they receive their rights and
consider waiving their rights. Then, if the suspects later claim that they
did not receive their rights or that they did not understand the waiver
of their rights, the police have documentation to show to the court.
If a suspect decides to remain silent, the police cannot continue
the questioning and must give the suspect an opportunity to
communicate with an attorney. The police cannot try to continue
questioning at a later time unless an attorney is present. A suspect
can waive his or her Miranda rights at a later interrogation.
Once in “custody,” juvenile suspects must also be given their
Miranda rights, and the age of the suspect must be considered as a
factor in determining when the questioning rises to the level of being
21
“custodial.” In addition to a right to speak to an attorney, juvenile
suspects are given the right to talk to an interested adult, such as a
parent or guardian, before deciding to waive their rights. Because of
their age, or in some circumstances because of their lack of
experience with the criminal justice system, juveniles may need extra
help making such important decisions. Just as parents or guardians
may help juveniles with other life decisions, the court recognizes that a
juvenile needs the extra protection that talking to a trusted adult may
provide.
p. 546
p. 547
NETNOTE
The use of DNA evidence to exonerate individuals who have been
falsely convicted of a crime has led to a growing recognition of the
problem of false confessions. A significant percentage of those
falsely convicted, especially those with mental disabilities and
juveniles, were found to have confessed. Read this article from The
National Registry of Exonerations addressing the issue and its
causes www.law.umich.edu/special/exoneration/Pages/false-
at
confessions-.aspx. For an article on the difference between false
confessions and guilty pleas, see
www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.P
lea.Article4.pdf.
Because Mr. Grant told police that he did not wish to be questioned
without his lawyer being present and because he indicated that he
could not afford to hire a lawyer, the police must withhold any further
questioning until they can arrange to have a public defender present or
have the court appoint counsel.
Case 15: People v. Grant (continued)
On the basis of a witness having reported seeing the Grant’s
Audiovisual Equipment van and the evidence seized from Mr.
Grant’s store, the police were convinced that Mr. Grant had
burglarized Stephen Joseph’s home. They therefore informed him
that he was under arrest and began the process of fingerprinting
and booking him.
5. Arrest and Booking
If, and when, law enforcement authorities collect enough evidence,
they will arrest the alleged suspect and begin the “charging” process.
An arrest is the act of legally restraining a person’s freedom by taking
that person into police custody for the purpose of filing formal
charges. A law enforcement officer can make an arrest if he or she
either has probable cause to believe the person being arrested
committed a crime or has been properly informed that a court has
issued a warrant for the individual’s arrest.
The booking process usually includes taking the defendant’s
personal information, giving the defendant an opportunity to read and
sign a Miranda card, and allowing the defendant the opportunity to
use a telephone. Additionally, the police may take photographs, or
“mug shots,” of the defendant for identification purposes. The police
may also require the defendant to be fingerprinted. Fingerprints may
then be compared to fingerprints found at the scene of the
p. 547
p. 548
crime or saved to be compared to prints found at future crime scenes.
If the defendant is being charged with a serious crime, a DNA swab
may also be taken. The defendant is then searched, and his or her
belongings are inventoried and stored by the police.
In some jurisdictions, people arrested for less serious crimes may
be able to be released on a preset bail schedule or on personal
recognizance as soon as the booking process is completed. Others,
especially those arrested for felony offenses, will be held in custody
until they can appear before a judge.
C. THE COURT SYSTEM
A suspect’s involvement with the court system begins with the initial
appearance and then continues through a series of stages, eventually
leading to either a guilty or a not guilty plea. If a guilty plea is entered,
the case moves into the sentencing phase. If a not guilty plea is
entered, the case is scheduled for trial. Finally, in some situations
either the defendant or the prosecution may appeal the results of a
court proceeding.
1. Formal Charges, Bail, and Initial Appearances
After an individual has been placed in custody, the law requires that he
or she be brought before a judge or magistrate without unnecessary
delay. At this initial appearance the defendant must be told of the
charges being brought against him or her, be advised of the right to
counsel, and have bail set. In some states, the amount of bail is preset
for minor offenses, and the accused can post bail at the police station
prior to this initial appearance.
Case 15: People v. Grant (continued)
The following morning Grant was taken to court to have bail set
and to determine if he was qualified to have a public defender
appointed. At this initial appearance the judge told Mr. Grant of the
charges being brought against him, set bail at $5,000, and denied
his request for a public defender because he appeared to have
enough assets in his business to be able to afford to hire his own
attorney.
His case was then bound over to the grand jury to determine if
there was sufficient evidence to proceed to trial.
Bail is money or something else of value, such as a deed to real
property, held by the government to ensure the defendant’s
appearance in court for further proceedings. The Eighth Amendment
to the U.S. Constitution includes a prohibition against “excessive bail.”
Thus, judges are expected to set bail at an amount of money that will
make it too costly for the defendant to skip town, but yet not be
“excessive.” In deciding what this amount should be, judges will often
consider such things as having a job or owning a home in the
community.
p. 548
p. 549
In many states, a bail bondsman will post the money for
defendants who do not have ready access to the amount required for
22
bail. Some states, such as Illinois, have sought to eliminate the bail
bondsman by only requiring defendants to deposit 10 percent of the
23
bail amount.
Persons can also be released prior to the trial date on a personal
recognizance bond by giving their personal promise to appear in court
when instructed to do so. These defendants are indebted to pay a
specified amount if they fail to fulfill the conditions of the bond.
At the initial appearance a defendant who cannot afford the
services of a private attorney will usually have either a public defender
or a member of the private bar appointed to provide representation.
Most courts have developed local guidelines that take into
consideration the income and assets of the defendant, as well as the
nature of the offense.
In Scott v. Illinois, 24
the U.S. Supreme Court ruled that attorneys do
not have to be provided in all misdemeanor cases but that indigent
defendants cannot be given jail sentences unless they either were
provided with counsel or waived their right to such representation.
Case 15: People v. Grant (continued)
Two weeks later the grand jury heard testimony from the police
officers who had taken the report of what had been stolen from Mr.
Joseph’s home and had interviewed the witness about seeing the
Grant’s Audiovisual Equipment truck there. It also heard from the
officer who was involved in executing the search warrant and had
heard Mr. Grant say that he had been watching Star Wars at the
local theater that night. In addition to describing the goods they had
seized, the officer reported that when he checked with the local
theaters, he discovered that none had been showing Star Wars on
April 30. The grand jury never heard any testimony from Mr. Grant.
The grand jury then followed the prosecuting attorney’s
suggestion and indicted Bruce Grant for possession of stolen
property, selling stolen property, and larceny.
2. Grand Juries and Preliminary Hearings
Grand juries are part of our common law tradition. The drafters of the
Bill of Rights incorporated the following language into the Fifth
Amendment:
[n] o person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury. . . .
p. 549
p. 550
Note, however, that this requirement of a grand jury is one of the few
constitutional guarantees that has not been incorporated by the
Fourteenth Amendment due process clause and therefore does not
25
apply to the states. Today, some states require grand juries; others
allow the prosecutor the option of using or not using one; and some
do not use grand juries at all.
Where grand juries are used, their function is to determine if
probable cause exists to believe that a crime has been committed by a
specific person (or persons) and if the answer is yes, to return an
indictment against the offender. The federal government and most
states that use grand juries follow the common-law format of having
23 persons meet multiple times over a period of several months.
During their meetings the prosecutor provides background information
on crimes that may have been committed and subpoenas witnesses
26
to give testimony about those crimes. Grand juries also can serve as
an investigative arm of the government and can be especially useful
when it comes to investigating organized crime or corruption in the
government’s own bureaucracy. The ability to subpoena and give
immunity to key witnesses makes the grand jury an effective weapon
in the hands of a well-trained prosecutor.
A grand jury indictment is not the same as a finding of guilt; it is
simply a finding by the jury, after hearing only the prosecutor’s
evidence, that the prosecutor has enough evidence to continue with a
prosecution. Because grand juries only hear one side of the evidence,
and they do not hear any defenses or arguments from the defendant,
an indictment is a fairly low threshold for the prosecutor to meet. The
role of the grand jury is to make sure that the prosecution has a
credible argument. Most grand jurors sit passively while the
prosecutor determines what evidence they will hear and suggests
whom they should indict and for what crime. Although grand jurors
have the right to question witnesses, and can even ask to have
additional witnesses appear before them, they generally do not do so.
Because they may have a limited knowledge of the law, they tend to sit
back and just listen to the answers given to the prosecutor’s
questions.
When states give prosecutors a choice as to whether to use a
grand jury or to file charges on their own, they usually take the far
more efficient route of doing the latter. At times, however, prosecutors
may use the grand jury as a means of getting testimony on the record
before they file their charges, or, in controversial cases, they may use
the grand jury as “political cover” to protect themselves or their office
from the negative fallout caused by their decision to prosecute or, in
some cases, not to prosecute when various groups are demanding an
indictment.
Historically, grand juries were thought to be a protection against
politically motivated prosecutions because they required prosecutors
to obtain approval from a group of ordinary citizens before forcing
someone to undergo the expense and ordeal of a trial. Today, however,
many advocate abolishing grand juries because they increase costs to
taxpayers while failing to serve their original function of being a check
on prosecutorial abuses.
p. 550
p. 551
In Chapter 12, we mentioned two highly publicized police actions
resulting in deaths: a shooting in Ferguson, Missouri, and a chokehold
arrest in New York City. Both cases were taken to a grand jury, and in
both cases the grand jury chose not to indict the officers involved. The
Ferguson case is particularly noteworthy because, in an apparent
effort to reduce demonstrations and potential mob violence, the St.
Louis prosecutor, Robert McCulloch, held a press conference at which
he not only explained the grand jury’s decision not to indict the police
officer involved but announced that he was posting a transcript of the
grand jury proceedings on the Internet. There is little evidence that his
press conference did anything to reduce the protest marches and mob
violence that followed the grand jury’s decision not to charge the
officer with any crime, but the transcript provided great insight into
problems that are inherent in the grand jury system.
Normally, the prosecutor presents only selected testimony that
supports a finding that there is probable cause to believe the suspect
committed a crime. Note that the much higher “beyond a reasonable
doubt” standard only applies to convictions at the trial stage. Yet in his
press conference explaining the grand jury’s decision not to indict,
McCulloch emphasized that the conflicting testimony given by
different witnesses created “reasonable doubts.”
Another anomaly with the process involved the participation of
Officer Wilson. While the prosecutor may ask a potential defendant to
testify, normally that does not occur. The potential defendant is under
no obligation to testify and is usually advised by his or her attorney to
refuse to do so. This is because potential defendants are not allowed
to have an attorney present to protect them from what is normally an
intense examination by the prosecutor. Here, however, Officer Wilson
voluntarily testified for hours in a narrative fashion with no one
questioning the veracity of his testimony. In fact, at times, it appeared
27
as though the prosecutors were assisting him in building a defense.
When grand juries are not used, a prosecutor files an information
and a preliminary hearing is held. An information, like an indictment,
sets out the formal legal charges against a specifically named
individual. At the preliminary hearing the prosecutor must present
sufficient evidence to convince the judge that there is probable cause
to believe the named individual committed the crimes for which he or
she is being charged. Thus, it serves as an alternative to the grand jury
as a check on prosecutorial discretion.
p. 551
p. 552
Finally, some states require neither a preliminary hearing nor a
grand jury indictment for misdemeanors. After the initial court
appearance, the prosecutor can simply file the information.
DISCUSSION QUESTION
2. Do you think grand juries should still be used? If so, in what
types of situations?
3. Arraignments
At the arraignment, the court informs the defendant of the charges
contained in the indictment or the information. The judge then asks
the defendant to answer the charges by pleading guilty or not guilty. At
this stage, defendants represented by counsel are highly unlikely to
plead anything but not guilty. Their attorneys will have told them to
wait until they go through the discovery process and engage in plea
bargaining. (We discuss plea bargaining later in this chapter.) If the
defendant wishes to plead guilty, the judge must speak with the
defendant to be sure that he or she understands the nature of the
charge, the minimum and maximum sentences prescribed by law, and
that by entering a guilty plea he or she waives the right to have a trial
and to confront and cross-examine witnesses. If the court determines
that the defendant is voluntarily pleading guilty, usually the court will
ask the prosecution to recommend a sentence. The judge may either
pronounce the sentence at that time or set a specific time for a
sentencing hearing at some later date. If the defendant enters a not
guilty plea, a tentative date is set for the trial based on whether the
defendant requests a jury trial or a bench trial.
Case 15: People v. Grant (continued)
Mr. Grant was released from custody after posting his bond, and
he arrived at his arraignment with a private attorney he had hired.
The judge informed him that he had been charged with possessing
stolen property, selling stolen property, and committing larceny.
Following his attorney’s advice Mr. Grant pleaded not guilty and
demanded a jury trial. The judge accepted his plea and assigned the
case to the next jury calendar.
At this point Mr. Grant’s attorney filed a motion to require the
state to turn over police notes regarding interviews with witnesses.
She also moved to suppress the statements her client had made in
the back of the police car about his activities on the night of the
crime.
A seldom used alternative to pleading either guilty or not guilty is to
plead nolo contendere. This Latin phrase means “no contest.” A
defendant neither admits nor denies the charges. He or she simply
agrees that if the case went to trial, the prosecution would have
sufficient evidence to prove its case beyond a reasonable doubt. This
plea is not considered an admission of guilt and so cannot be used
later against the defendant at a civil trial. However, for purposes of the
arraignment, the case proceeds as though the defendant had pleaded
guilty.
p. 552
p. 553
4. Discovery, Pretrial Motions, and the Exclusionary Rule
As in civil proceedings, the parties in a criminal case have an
opportunity to use various discovery devices to avoid “trial by
ambush.” Although the particulars vary from one jurisdiction to
another, the defense generally has a right to discover all the evidence
that the prosecution intends to use at trial, including such things as
the names, addresses, and statements of persons that the
prosecution intends to call as witnesses; transcripts of any electronic
surveillance; and physical evidence, such as a gun, a knife, illegal
drugs, or the results of scientific tests. In addition to turning over
inculpatory evidence, which suggests the defendant’s guilt, the
prosecution is required to produce exculpatory evidence, which
suggests that the defendant did not commit the crime. If the
prosecution refuses to provide discovery to the defense, the defense
team may file motions to compel the evidence and ask the court to
force the prosecution to supply the evidence. The prosecution, in turn,
has a right to have the defendant appear in line-ups, give handwriting
samples, provide names and addresses of people who will be called as
defense witnesses, and provide results of laboratory and medical
reports to be used as evidence.
The most common pretrial motions relate to facilitating the
discovery process and preventing certain types of evidence from being
used at the trial. Figure 13-3 lists the motions you are most likely to
encounter. Note, however, that not all of these are available in every
jurisdiction. You need to check local court rules to determine the
availability and format of specific motions. The federal and state rules
of criminal procedure typically require that motions be accompanied
by a memorandum of law, analyzing how the courts have decided
similar motions in past cases and arguing how the motions should be
decided in this case.
Success in winning a motion to suppress, the first type of motion
listed in Figure 13-3, could mean the difference between winning or
losing the entire case. Such a motion is a request to have the court
prohibit the use of certain evidence at the trial. If the evidence is
excluded, then the prosecution may not be able to prove its case.
Motions to suppress are based on what is known as the
exclusionary rule. Under the terms of the exclusionary rule, evidence
that has been obtained in violation of an individual’s constitutional
rights cannot be used against that individual in a criminal trial. For
example, if police interrogate suspects without first informing them of
their Miranda rights, then the confession cannot be used in court.
Furthermore, if illegally obtained evidence in turn leads to the
discovery of other evidence (such as the location of stolen property),
that evidence is likewise inadmissible under the doctrine known as the
fruit of the poisonous tree doctrine. Any evidence that is spawned by
or directly derived from an illegal search or illegal interrogation is
inadmissible against the defendant by virtue of being tainted by the
original illegality. If the tree (the primary evidence) has been poisoned
from the illegal search, then all the fruit (collateral or additional
evidence) must also be suppressed. The exclusionary rule, which
remains one of the most controversial aspects of constitutional law,
applies to state as well as federal court cases. The exclusionary rule,
as applied to the states, was established in the following landmark
case.
p. 553
p. 554
Type of Goal Rationale
Motion
Motion to To eliminate all Without evidence, the state cannot meet its burden of proof.
suppress or some of the Evidence obtained during an illegal search and seizure, or
evidence other improper behavior, may be suppressed.
against the
defendant
Motion to To dismiss all or The best way for the defense team to win is to get the case
dismiss some of the (or at least a few charges) dismissed before subjecting the
charges defendant to the dangers of trial.
against the
defendant
Motion to To force the There is no more trial by ambush. The prosecution must
compel opposition to disclose inculpatory and exculpatory evidence.
provide
evidence that
has been
refused
Motion to To try multiple If several defendants are tried together, they may be deprived
sever defendants at of certain defenses that point to another defendant as
separate trials more culpable, and the jury may be overwhelmed and
confused about what evidence pertains to each defendant.
Through this motion the court attempts to eliminate
undue prejudice.
Motion to To isolate the If the jury would be misled by alternative charges, the
bifurcate charges defendant would benefit by defending against one charge
against a at a time. Prejudice and unfairness are considered proper
defendant and grounds under most circumstances.
try each
charge at a
separate trial
Motion for a To force the The defense team is entitled to know the details of the case
bill of prosecution to with as much specificity as possible.
particulars provide
specific
information
regarding the
case
Motion to To keep The testimony of one witness or the questioning tactics
sequester witnesses out used by the attorneys may influence the testimony of
witnesses of the witnesses yet to testify. Keeping witnesses outside the
courtroom courtroom may help keep their testimony pure.
until after they
testify
Motion to To remove a If a judge knows a victim or defendant in a case, publicly
recuse particular voices an opinion about the outcome of the case, or
judge from a otherwise has a conflict of interest, the judge should step
case down, and another judge should proceed.
Motion for To allow indigent An indigent defendant has the same legal needs for trial
funds defendants preparation as a wealthy defendant. Money may be made
access to available through the court for expert witnesses, scientific
funds from the tests, or other investigatory needs.
state
Motion for To achieve an Sometimes a defendant cannot get a fair trial in the location
change of impartial jury where the crime was committed. Pretrial publicity or local
venue panel through prejudice may inhibit justice.
a request for a
change of the
location for
trial
Motion to To change the The parties may require more time to prepare or to allow
continue date of trial, witnesses to travel to the trial. Attorneys, witnesses, or the
usually to defendant could fall ill. When the trial cannot proceed as
postpone to a scheduled, this motion should be filed. Motions of this
later date type, if not abused, are usually allowed.
Motion in To make Some decisions, such as the order of witnesses, the scope of
limine evidentiary examination or cross-examination, and the admission of
and trial certain documents, may be decided by the parties prior to
decisions prior the start of trial. This speeds up the trial process and
to the avoids bickering in front of the jury.
beginning of
trial
Motion for a To allow the jury A viewing can give the jury members a better understanding
view visit the scene of the crime scene than they could otherwise gain from
of the crime witness testimony alone.
Figure 13-3 Typical Pretrial Motions
p. 554
p. 555
Mapp v. Ohio
367 U.S. 643 (1961)
Appellant stands convicted of knowingly having had in her
possession and under her control certain lewd and lascivious
books, pictures, and photographs in violation of § 2905.34 of Ohio’s
Revised Code. As officially stated in the syllabus to its opinion, the
Supreme Court of Ohio found that her conviction was valid though
“based primarily upon the introduction in evidence of lewd and
lascivious books and pictures unlawfully seized during an unlawful
search of defendant’s home. . . .”
On May 23, 1957, three Cleveland police officers arrived at
appellant’s residence in that city pursuant to information that “a
person [was] hiding out in the home, who was wanted for
questioning in connection with a recent bombing.” . . . Miss Mapp
and her daughter by a former marriage lived on the top floor of the
two-family dwelling.
. . .
When Miss Mapp did not come to the door immediately, at least
one of the several doors to the house was forcibly opened and the
policemen gained admittance. . . . It appears that Miss Mapp was
halfway down the stairs from the upper floor to the front door when
the officers, in this highhanded manner, broke into the hall. . . .
Running rough-shod over appellant, a policeman “grabbed” her,
“twisted [her] hand,” and she “yelled [and] pleaded with him” because
“it was hurting.” Appellant, in handcuffs, was then forcibly taken
upstairs to her bedroom where the officers searched a dresser, a
chest of drawers, a closet and some suitcases. They also looked
into a photo album and through personal papers belonging to the
appellant. The search spread to the rest of the second floor
including the child’s bedroom, the living room, the kitchen and a
dinette. The basement of the building and a trunk found therein
were also searched. The obscene materials for possession of which
she was ultimately convicted were discovered in the course of that
widespread search.
At the trial no search warrant was produced by the prosecution,
nor was the failure to produce one explained or accounted for. . . .
The State says that even if the search were made without
authority, or otherwise unreasonably, it is not prevented from using
the unconstitutionally seized evidence at trial.
I.
[T] his Court, in Weeks v. United States, 232 U.S. 383 (1914),
stated that
the Fourth Amendment . . . put the courts of the United States and Federal officials, in
the exercise of their power and authority, under limitations and restraints [and] . . .
forever secure[d] the people, their persons, houses, papers and effects against all
unreasonable searches and seizures under the guise of law . . . and the duty of giving
to it force and effect is obligatory upon all entrusted under our Federal system with
the enforcement of the laws.
Specifically dealing with the use of the evidence
unconstitutionally seized, the Court concluded:
If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the Fourth Amendment
declaring his right to be secure against such searches and seizures is of no value,
and, so far as those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land.
Finally, the Court in that case clearly stated that use of the
seized evidence involved “a denial of the constitutional rights of the
accused.” At p. 398. Thus, in the year 1914, in the Weeks case, this
Court “for the first time” held that “in
p. 555
p. 556
a federal prosecution the Fourth Amendment barred the use of
evidence secured through an illegal search and seizure.”
. . .
IV.
Since the Fourth Amendment’s right of privacy has been
declared enforceable against the States through the Due Process
Clause of the Fourteenth, it is enforceable against them by the
same sanction of exclusion as is used against the Federal
Government. Were it otherwise, then just as without the Weeks rule
the assurance against unreasonable federal searches and seizures
would be “a form of words,” valueless and undeserving of mention
in a perpetual charter of inestimable human liberties, so too,
without that rule the freedom from state invasions of privacy would
be so ephemeral and so neatly severed from its conceptual nexus
with the freedom from all brutish means of coercing evidence as
not to merit this Court’s high regard as a freedom “implicit in the
concept of ordered liberty.”
. . .
V.
Moreover, our holding that the exclusionary rule is an essential
part of both the Fourth and Fourteenth Amendments is not only the
logical dictate of prior cases, but it also makes very good sense.
There is no war between the Constitution and common sense.
Presently, a federal prosecutor may make no use of evidence
illegally seized, but a State’s attorney across the street may,
although he supposedly is operating under the enforceable
prohibitions of the same Amendment. Thus the State, by admitting
evidence unlawfully seized, serves to encourage disobedience to
the Federal Constitution which it is bound to uphold. . . .
There are those who say, as did Justice (then Judge) Cardozo,
that under our constitutional exclusionary doctrine “the criminal is
to go free because the constable has blundered.” In some cases this
will undoubtedly be the result. But, as was said in Elkins, “there is
another consideration — the imperative of judicial integrity.” 364
U.S. at 222. The criminal goes free, if he must, but it is the law that
sets him free. Nothing can destroy a government more quickly than
its failure to observe its own laws, or worse, its disregard of the
charter of its own existence. As Mr. Justice Brandeis, dissenting,
said in Olmstead v. United States, 277 U.S. 438, 485 (1928): “Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. . . . If the Government
becomes a lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy.” . . .
Twenty-three years later, the U.S. Supreme Court curtailed its broad
holding in Mapp by creating a “good faith” exception to the application
of the exclusionary rule. After noting that “substantial social costs
[have been] exacted by the exclusionary rule,” the Court held in United
States v. Leon, that even when it is later determined that a search
warrant has been issued without probable cause (and was therefore
invalid), the evidence should not be excluded from the prosecution’s
case when the officers who seized the evidence were “acting in
reasonable reliance on a search warrant issued by a detached and
28
neutral magistrate.”
CASE DISCUSSION QUESTIONS
1. According to the Supreme Court, what is the main justification
for the exclusionary rule?
2. What negative consequences arise out of application of the
exclusionary rule?
3. What problems would be created by having one set of rules for
the federal courts and a separate set of rules for the state courts?
p. 556
p. 557
4. The dissenting justices in Leon saw that decision as a step
toward the destruction of the Fourth Amendment. They wrote that
“[t]he right to be free from the initial invasion of privacy and the right of
exclusion are coordinate components of the central embracing right to
29
be free from unreasonable searches and seizures. Do you agree?
The application of the exclusionary rule does not invalidate the
arrest or prevent the defendant from being convicted on the basis of
independent evidence. Nor does it prohibit officers from later
conducting legal searches and gathering additional evidence as long
as that evidence was gathered without the aid of knowledge gained
from the tainted evidence that was suppressed. Nevertheless, the
exclusionary rule does make law enforcement’s job more difficult, and
police may not be able to gather enough evidence to obtain a
conviction. In these cases, the application of the exclusionary rule
does in fact result in guilty persons going free.
DISCUSSION QUESTION
3. How do you reconcile the purpose behind a motion for a view
with the traditional belief that jurors are supposed to base their
decision solely on what they hear and see in the courtroom?
5. Plea Bargaining
Rather than going to trial, in over 90% of the cases the prosecution
and the defense negotiate the defendant’s punishment. This
negotiation, called plea bargaining, can happen at any time in the
process. In plea bargaining, the defendant may agree to plead guilty to
the crime, or to a lesser included offense of the crime, in exchange for
the prosecution’s recommendation for a lighter sentence. The judge
may consider the results of the plea bargain but is not required to
accept it. The U.S. Supreme Court has held that a defendant has the
right to effective assistance of counsel throughout the plea bargaining
30
process.
Case 15: People v. Grant (continued)
After several continuances had pushed back the original court
date, the judge announced that he would tolerate no further delays
in the case and that both attorneys needed to be ready to begin the
trial on January 10. Shortly before Christmas Mr. Grant’s attorney
called the assistant prosecutor that had been assigned to the case
to discuss the terms of a possible plea bargain.
The prosecutor offered to drop the larceny charges if Mr. Grant
would plead guilty to possession of stolen property. Mr. Grant’s
attorney then proceeded to inquire as to what the prosecutor would
recommend for jail time if her client accepted this offer. When the
prosecutor said five years, she countered with one year. The
prosecutor then laughed and said that his absolute minimum offer
was four years. She responded that she would discuss the offer
with her client but that she doubted he would accept. When she
discussed the matter with Mr. Grant, he told her he would rather
take his chances with a trial.
p. 557
p. 558
Prosecutors are willing to make these types of bargains for a
variety of reasons. Because most prosecutors’ offices are
understaffed and overworked, plea bargaining provides a way to more
efficiently manage their workloads and produce high conviction rates.
Many prosecutors are willing to settle for a sure conviction on the
record with at least some jail time for the defendant rather than risking
an uncertain conviction for the sake of longer jail time. In Santobello v.
New York, 31
the U.S. Supreme Court spoke of the benefits of
encouraging plea bargaining in a case in which the government tried
to change the terms of a bargain after the defendant had entered a
guilty plea. The Court stated that this was improper. Once a deal has
been struck and the defendant has entered a guilty plea, the state
cannot change the terms of the agreement.
DISCUSSION QUESTION
4. How might you respond to your neighbor who says the judicial
system is “falling apart” because of plea bargaining?
6. The Right to a Jury Trial
The Sixth Amendment to the U.S. Constitution creates a right to trial
by an impartial jury in federal criminal cases. The due process clause
of the Fourteenth Amendment applies the right to a trial by jury to
defendants in state criminal actions who face possible incarceration
32
of six months or more.
The U.S. Constitution requires that criminal juries at the federal
level consist of 12 members and that their verdicts be unanimous. The
U.S. Supreme Court has ruled that six-member juries are permissible
33 34
at the state level, as are less-than-unanimous verdicts. It is left to
the states to select which of these options they wish to use.
One of the most frequently misunderstood principles of the jury
system is the concept of being tried before a jury of one’s peers. This
does not mean that the jury must consist of a group of people who are
similar to the defendant. Rather, the jury simply must be broadly
representative of the community in which the trial takes place.
Perhaps the most problematic aspect of jury selection is the goal
of obtaining an “ impartial jury.” The criminal courts rely on the same
jury selection procedures used in civil cases. As discussed in Chapter
5, the courts rely on voir dire questioning and both peremptory
35
challenges and challenges for cause to eliminate jurors who have
biases or prior experiences that could affect their ability to be
impartial. Other options involve either a change of venue or a change
of venire. The former involves moving the location of the trial to
another area where potential jurors are less likely to have read or heard
about the case, while the latter option holds the trial in the area where
the crime was allegedly
p. 558
p. 559
committed but imports jurors from another community. If a criminal
defendant does not trust any of these options, the only remaining
choice is to waive the right to a jury trial and choose a bench trial with
the judge serving as the fact finder, as well as presiding officer.
DISCUSSION QUESTIONS
5. In 2013, Dzokhar Tsarnaev and his brother, Tamerlan Tsarnaev,
set off two pressure cooker bombs near the finish line of the Boston
Marathon. The bombings ultimately led to the deaths of three civilians
and two police officers and left 280 individuals injured.
a. Do you think you could be an impartial juror in the accused
bomber’s trial? Why or why not?
b. In a memorandum in support of their motion for a change of
venue from Boston, defense attorneys claimed that 85% of
the 1,373 people who had completed prospective juror
questionnaires either believed their client was guilty or had
some “self-identified” connection to the case. The federal
judge handling the case denied the defendant’s motion. Do
you to think he made the correct decision? Why?
6. In situations where the prosecution may ask the jury to return a
verdict that includes a possible death sentence, potential jurors can be
questioned about their views on capital punishment and can be
excused for cause if they indicate they are unwilling to impose the
death penalty for religious or moral reasons. The catechism of the
Roman Catholic Church states that the death penalty should not be
used when “non-lethal means are sufficient to defend and protect
people’s safety from the aggressor.” Should all Roman Catholics
automatically be excluded from being jurors in capital cases? Why or
why not?
7. Trial Procedures
There are few, but very important, differences between civil and
criminal trials. The major difference is that the prosecutor in a criminal
case must bear the burden of a higher standard of proof, beyond a
reasonable doubt, as opposed to preponderance of the evidence. The
defense is not required to put the defendant, or any other witnesses,
on the stand. If the defendant chooses not to testify, the prosecution
cannot comment or otherwise draw attention to it during any part of
the trial.
The prosecution goes first, presenting all the information
necessary to meet its burden of proof beyond a reasonable doubt.
Through witnesses and the introduction of evidence, the prosecution
attempts to prove each element of each charge. With cross-
examination of the prosecution’s witnesses, the defense attempts to
discredit their testimony.
When the prosecution has completed its case, it “rests.” At that
time, in most jurisdictions, the defense may make a motion to require
a finding of not guilty for some or all of the charges. Outside of the
hearing of the jury the defense may argue that the prosecution failed
to meet its burden and that the court should remove the case from the
jury by finding the defendant not guilty. The judge looks at the
evidence presented and evaluates it in the light most
p. 559
p. 560
favorable to the prosecution. If the judge grants this defense motion,
the defendant can be found not guilty of the individual charges or the
entire case. There is no penalty if the judge does not allow this motion.
The jury returns and simply resumes hearing the case.
As mentioned above, the defense is not required to put witnesses
on the stand. If the defense calls witnesses, the defense examines and
the prosecution cross-examines each witness, again with an eye
toward credibility.
Once the defense has rested its case, the defense may renew the
motion for a required finding of not guilty. This time the judge looks at
the motion in the light most favorable to the defendant. If the motion
is allowed, the case never goes to the jury for a verdict. If the motion is
denied, the court process begins again. The attorneys deliver their
closing arguments to the jury, and the judge informs the jurors of the
law that they need to know to make their decision, which is called
charging the jury. Once they are charged and sworn to do their duty,
the jury members are released from the courtroom to deliberate. They
may bring any items entered into evidence into the jury room with
them to help them decide, and they can come back into the courtroom
to ask questions.
Nothing can describe the waiting period while the jury is
deliberating. It is too late to change anything, too soon to know
whether your strategy worked. Many attorneys spend this time
discussing possible outcomes with their clients or evaluating their trial
performances. There is no set length of time that a jury can deliberate
and no special process that a jury must follow. If the defendant is
found not guilty, the case is over. If the defendant is found guilty, then
the case moves into the sentencing phase.
DISCUSSION QUESTIONS
7. Criminals are guaranteed a jury of their peers. If you were on
trial for a criminal offense, what factors would you consider when
trying to select a jury of your peers? Is there really such a thing?
8. “It is better that ten guilty men go free than one innocent man
be convicted” is an often-quoted legal expression. Do you agree or
disagree?
8. Sentencing
Federal and state statutes not only define what is considered to be
criminal behavior, but also set out a range of punishments for those
convicted of committing those crimes. Under the Model Penal Code,
for example, the sentence for murder can range from one year to life
imprisonment. Furthermore, judges often have the power to sentence
defendants to probation, to give them a conditional discharge, or to
suspend their sentences altogether.
With the exception of capital punishment cases, where statutes
frequently give the defendant the option of having the jury decide if the
death penalty should be imposed, the jury usually has no role to play in
the sentencing process. Once the jury has found the defendant guilty
of a specified crime, the judge is responsible for determining what the
sentence will be.
Following a conviction for serious crimes, a separate sentencing
hearing is usually held, at which evidence can be presented “in
aggravation and mitigation.”
p. 560
p. 561
At such a hearing both the prosecution and the defense have an
opportunity to present evidence that was not relevant to whether the
defendant committed the crime but is relevant to the nature of the
punishment that is to be imposed. The judge also receives a pre-
sentence report, which reviews the defendant’s criminal record, work
record, family background, and other factors considered relevant in
determining the appropriate punishment. As mentioned above, some
states provide for “victim impact statements,” in which the victim of
the crime describes how it negatively affected his or her life and the
lives of family members.
9. Appeal
Recall that the Fifth Amendment protection against double jeopardy
prohibits the state from trying a defendant more than once for the
same crime. It also prevents the government from appealing an
acquittal. It does not prevent a prosecutor from appealing the
dismissal of a case on technical grounds or from appealing a lower
appellate court ruling to a higher court.
Criminal defendants who wish to appeal a conviction must file the
appropriate post-trial motions, usually accompanied by a notice of
appeal. There is a specified time during which an appeal may be filed.
Because the Supreme Court has determined that this is a jurisdictional
requirement, the courts are without power to hear an appeal filed
36
beyond the deadline.
10. Writ of Habeas Corpus
If the deadline for appeal has expired or the appeal was unsuccessful,
attorneys sometimes file a petition for a writ of habeas corpus as a
sort of “back door” way to get a client’s case reconsidered. A petition
for a writ of habeas corpus is a prisoner’s request that a court review
the legality of his or her imprisonment.
The concept behind habeas corpus is ancient, dating back to the
English common law and the signing of the Magna Carta in 1215.
Translated from Latin it literally means “you have the body.” Therefore,
a writ of habeas corpus is a court order to produce the person
detained, so that a neutral judge can determine if there is a lawful
basis for the incarceration. Without such a protection, there would be
nothing to prevent a person’s imprisonment for indefinite periods of
time when there was, in fact, no legal reason for the incarceration.
In practice, the vast majority of petitions for a writ of habeas
corpus are filed by state prisoners incarcerated after having been
convicted of committing a state crime, such as murder. The basis of
their petition is the argument that the state violated their
constitutional right to due process during their arrest, trial, or
incarceration. For example, a defendant could argue that his trial
lacked fundamental fairness because the judge was biased against
him or his attorney was incompetent.
p. 561
p. 562
Because a petition for a writ of habeas corpus is often the last
opportunity a convicted criminal has to seek relief from an arguably
unjust incarceration, that right is considered fundamental to our
criminal justice system. Indeed, Article I, Section 9 of the Constitution
provides that “[t]he privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.”
However, as you can see from the last part of that constitutional
provision, there may be times when the right to habeas corpus can be
suspended in order to protect the nation’s security. Examples from the
past include Abraham Lincoln’s suspending the right to habeas corpus
during the Civil War and a selective suspension as regards Japanese-
Americans interned in the United States during World War II. In recent
years Congress curtailed its use, first in 1996 in relation to appeals by
death row inmates, and then in 2005 and 2006 through legislation
aimed at limiting the rights of alleged terrorists.
The Supreme Court reacted to this last attempt to limit habeas
corpus rights by finding that Congress lacked authority to authorize its
37
suspension. In response to the government’s concerns about the
dangers that would be presented by granting habeas corpus rights to
suspected terrorists, Justice Kennedy, writing for the majority, stated,
“The laws and Constitution are designed to survive, and remain in
38
force, in extraordinary times.”
11. Petitions for Executive Clemency
After having exhausted all other avenues, the only remaining option for
convicted criminals involves filing a petition for executive clemency
with the governor for state offenses or the President for federal
offenses. Clemency can come in a variety of forms, including a full
pardon, a commutation, which is reduction of a sentence, or a
reprieve, which is a temporary stay. Many states utilize a formal Board
of Pardons to review applications for executive clemency and then
make recommendations to the governor on those requests.
The case of Sara Kruzan provides a good example of the use of
executive clemency. At the age of 17, she was convicted of first-degree
murder for killing the man who had forced her into a life of prostitution
when she was only 13 years old. She was sentenced to life
imprisonment without parole. In 2011 then Governor Arnold
Schwarzenegger commuted her sentence to 25 years with the
possibility of parole. Because of what had happened to her at such a
young age, Sara’s case had received a great deal of publicity and was
therefore unique. Normally, however, the odds of a petition for
executive clemency proving successful are not very good.
DISCUSSION QUESTION
9. In a 1991 trial in the Georgia criminal courts, Troy Davis was
convicted of murder and sentenced to death for the 1989 death of a
police officer. At the trial, several witnesses stated they saw Davis
shoot the officer. No gun was found, and no physical evidence tied
Davis to the murder. Davis then began
p. 562
p. 563
a series of appeals and habeas corpus actions based on affidavits
from ten witnesses in the case in which they recanted their testimony
and claimed that police had coerced them into falsely implicating him.
The Georgia Board of Pardons and Paroles received more than
663,000 signatures on petitions to spare his life, and such prominent
people as Jimmy Carter, Pope Benedict XVI, and Desmond Tutu
publically supported his appeals. After a last-minute appeal to the U.S.
Supreme Court was denied, he was executed by lethal injection in
2011.
a. What does this case indicate about the efficiency of the
criminal justice process?
b. What does this case indicate about the ability of the system
to reach a “just” result?
c. To what extent do you think a pardon and parole board or a
governor should consider petitions from members of the
public in determining whether to grant clemency?
CHAPTER SUMMARY
The rules governing criminal procedure begin with the criminal
investigation and continue in force through trial and any possible
appeal. The Fourth Amendment requires that all searches and
seizures be reasonable. The court-crafted exclusionary rule provides
that any evidence unlawfully seized may not be used in court against
the defendant. The Fifth Amendment protects defendants against self-
incrimination, and the Sixth Amendment guarantees a right to an
attorney. While every defendant has a right to a trial, most cases end
through a negotiated plea bargain.
If a trial does occur, the prosecution bears the burden of proving
guilt beyond a reasonable doubt. The defense attorney is not required
to put the defendant, or any other witnesses, on the stand. If the
defendant chooses not to testify, the prosecution cannot comment or
otherwise draw attention to the defendant’s silence.
If the jury finds the defendant guilty, the judge is usually
responsible for determining what the sentence will be. Most state
statutes give the judge a broad range of discretion between a
minimum and a maximum sentence for the crime.
If a criminal defendant wishes to appeal a conviction, he or she
may do so. The Fifth Amendment protection against double jeopardy
prohibits the state from trying a defendant twice for the same crime
and prevents the government from appealing an acquittal. It does not,
however, prevent a prosecutor from appealing the dismissal of a case
on technical grounds or from appealing a lower appellate court ruling
to a higher court.
CRITICAL THINKING EXERCISES
1. For each of the following, indicate whether you think marijuana
could be lawfully seized if its discovery was based on the following:
a. Using a helicopter, the police fly over your fenced backyard
and see it growing in pots on your back patio.
p. 563
p. 564
b. Standing across the street from your house, the police use
binoculars and see it growing inside your sunroom.
c. Aiming a thermal-imaging device at your house, the police
find suspicious “hot spots,” indicating the probable presence
of marijuana growing within your home.
d. Using a police dog that has been specially trained to smell
marijuana and other illegal drugs, the dog “points” to your
briefcase, when
1) you are walking down the street.
2) you are walking through an airport.
3) your briefcase is located in the locked trunk of your car,
and you have been stopped for speeding six miles per
hour over the limit on a major highway.
4) your briefcase is located in your living room, and the
police walked the dog down an interior hallway of your
apartment building.
2. Using the standard discussed in this chapter, did custodial
interrogation take place during the following incidents?
a. A suspect ran up to the police officer and cried, “Help! I killed
him. I killed him. I didn’t mean to do it!”
b. An officer walked up to a group of boys hanging around a
street corner and said, “Hey, guys. What are you doing here?”
c. While at the police station the suspect explained how he
stole the car from the parking lot down the street.
d. As an officer asked questions, the suspect wrote answers on
a piece of paper.
e. In the case scenario being used in this chapter the police
questioned Bruce Grant on the ride to the police station.
3. Would the prosecution consider the following items to be
potentially inculpatory or exculpatory? Could this evidence be
potentially inculpatory and exculpatory?
a. the fingerprints of a second person on the murder weapon
b. a statement that the defendant gave to the police shortly
after the arrest disclosing the location of the missing body
c. samples of hair and skin found at the scene of the crime
4. Suppose someone fired a bullet through the floor of an
apartment into the apartment below. The police entered the shooter’s
apartment looking for the shooter, for other weapons, and possibly for
victims. While they were in the apartment, the police discovered
weapons and a stocking cap. The police also noticed stereo
equipment and, suspecting it was stolen, recorded the serial numbers.
In order to read all the numbers, the police moved some of the
equipment. When the police headquarters notified the police that the
equipment was stolen, the police officers seized it.
a. If you were arguing on the side of the defense, what
arguments would you make to convince the court to
suppress the evidence?
b. If you were arguing for the prosecution, what arguments
would you make to convince the court that the search was
legal?
c. Which side has the most persuasive arguments?
p. 564
p. 565
WEB EXERCISES
1. There is a wealth of information on the Federal Bureau of
Investigation website. You can even play games. Explore the site
at www.fbi.gov. At the very bottom of the page, click on “News”
and then on the top of the page click on “Video.” Select a video.
Which one did you watch? What did you learn?
2. Congress established the National Constitution Center in
Philadelphia to disseminate non-partisan information about the
Constitution. The Center has created an online interactive
Constitution with links to articles from selected scholars
presenting opposing points of view for each of the Constitutional
provisions. Read the description of the Fourth Amendment and
accompanying articles. Start at constitutioncenter.
org/interactive-constitution# and then choose the Fourth
Amendment. Which of the articles did you find more persuasive?
What did you learn?
REVIEW QUESTIONS
Pages 527 through 544
1. What is a warrant?
2. What is a stop-and-frisk search?
3. What is the difference between reasonable suspicion and probable
cause? Why does it matter?
4. Why does the court consider the suspect’s expectation of privacy
when evaluating a search?
5. List some specific facts that must be included when police
officers apply for a warrant to search a suspect’s home.
6. What is a no-knock warrant?
7. What exigent circumstances may allow the police to search
without a warrant?
Pages 544 through 547
8. What are the Miranda warnings, when are the police required to
give them, and under what circumstances might a defendant
waive them?
9. What extra protection do juveniles usually get when they are given
their Miranda rights?
Pages 547 through 558
10. What might a defendant expect to occur during booking?
11. What are the differences between a guilty plea and a plea of nolo
contendere?
12. Discuss the purpose of each of the following motions:
a. to sever
b. to bifurcate
p. 565
p. 566
c. to sequester witnesses
d. to recuse
e. for change of venue
f. in limine
13. How do motions to suppress affect the prosecution’s case against
defendants?
14. What is the exclusionary rule?
15. If the following facts are true, what pretrial motions might a
defense attorney file on behalf of the defendants?
a. All the local papers have reported that the judge on the case
used to be married to the victim.
b. Each of the two defendants claims that the other defendant
was the sole assassin.
c. The defendant, who was represented by a public defender,
needs to conduct an independent drug evaluation, especially
since the defendant alleged the green, leafy substance was
oregano bought to add spice to spaghetti sauce.
d. Four of the seven witnesses prepared to testify at trial are
related by blood or marriage.
e. The police stopped the defendant for speeding and then
proceeded to search the glove compartment, in which they
found a bag of heroin.
Pages 558 through 563
16. Describe the basic steps that occur in a criminal trial.
17. Why is there no requirement that the defendant take the stand?
18. What is the purpose of charging the jury?
19. What are the theories of punishment? Which theory or theories do
you think are the most effective in eliminating crime in society?
20. What is a writ of habeas corpus? When is it usually used?
1
County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
2
In smaller communities these positions may be part-time. On occasion, a private attorney
may be appointed as a “special prosecutor.”
3
392 U.S. 1 (1968)
4
Id. at 21.
5
555 U.S. 323 (2009).
6
542 U.S. 177 (2004).
7
Id. at 190-91.
8
Brown v. Texas, 443 U.S. 47 (1979).
9
Collins v. Virginia, 138 S. Ct. 1663 (2018).
10
543 U.S. 405 (2005).
11
133 S. Ct. 1409 (2013).
12
138 S. Ct. 1663 (2018).
13
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).
14
Riley v. California, 573 U.S. 373 (2014).
15
Smith v. Maryland, 442 U.S. 735 (1979).
16
378 U.S. 478 (1964).
17
384 U.S. 436 (1966).
18
In Maryland v. King, the U.S. Supreme Court held that “taking and analyzing a cheek swab
of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking
procedure that is reasonable under the Fourth Amendment.” 569 U.S. 435, 465-66 (2013).
19
446 U.S. 291 (1980).
20
Id. at 302.
21
See J.D.B. v. North Carolina, 564 U.S. 261 (2011) (case remanded for further determination
as to whether a 13-year-old student questioned by police in his school’s conference room
would have felt he was in “custody”).
22
The bondsman receives a fee from the defendant for posting the amount of money the
judge has set for bail. The fee is to compensate the bondsman for taking the risk that the
money posted will be forfeited to the court if the defendant does not appear when he or she is
supposed to do so. If the defendant does appear, the funds posted will be returned to the
bondsman. If the defendant “skips,” the bondsman may hire a “bounty hunter” to find and bring
the person back.
23
Although defendants only have to deposit 10% of the bail amount, they are still responsible
for the remaining 90% if they fail to come to a scheduled court appearance.
24
440 U.S. 367 (1979).
25
See discussion on incorporation in Chapter 2.
26
Although grand jury members can direct the prosecutor to subpoena additional witnesses,
it is very uncommon for them to do so. They typically just listen to the testimony of whomever
the prosecutor has arranged for them to hear.
27
The following is from the transcript of Officer Wilson’s testimony.
Q: So you got out of the car, you are running, you are telling him to stop; is that right?
A: Correct.
Q: And he’s not listening?
A: No.
Q: And it was your opinion that you needed to pull out your weapon because why did you feel
that way. I don’t want to put words in your mouth?
A: I felt that another one of those punches in my face could knock me out or worse. I mean it
was, he’s obviously bigger than I was and stronger and the, I’ve already taken two to the
face and I didn’t think I would, the third one could be fatal if he hit me right.
State of Missouri v. Darren Wilson, Grand Jury, Volume V, located at
www.documentcloud.org/documents/1370494-grand-jury-volume-5.html.
28
468 U.S. 897, 907 (1984).
29
Id. at 935.
30
See Lafler v. Cooper, 566 US 156 (2012); Missouri v. Frye, 566 US 134 (2012).
31
404 U.S. 257 (1971).
32
Baldwin v. New York, 399 U.S. 66 (1970).
33
Williams v. Florida, 399 U.S. 78 (1970).
34
Apodaca v. Oregon, 406 U.S. 404 (1972).
35
See discussion on page 143-44.
36
Bowles v. Russell, 551 U.S. 205 (2007). The defendant’s counsel had relied on the district
court’s wrongly calculated date as the filing deadline and so had filed two days late. The
dissent argued that “it is intolerable for the judicial system to treat people this way, and there
is not even a technical justification for condoning this bait and switch.” Id. at 215.
37
Boumediene v. Bush, 553 U.S. 723 (2008).
38
Id. at 798.
p. 566
p. 567
Ethical Dilemmas Facing
Attorneys
Virtually all difficult ethical problems arise from
conflict between a lawyer’s responsibilities to
clients, to the legal system and to the lawyer’s
own interest in remaining an ethical person.
Model Rules of Professional Conduct, Preamble,
Comment 9
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Describe the principles and assumptions that underlie our
adversarial system.
■ Give examples of how attorneys may find that following the
Rules of Professional Conduct will not always provide clear-cut
answers to ethical dilemmas.
■ Distinguish between client confidentiality and attorney-client
privilege.
■ Explain the ethical dilemmas presented by suspected client
perjury.
■ Describe the types of conflict of interest situations that can
arise in a law practice.
■ Describe two access to justice issues.
p. 567
p. 568
INTRODUCTION
Legal decisions often involve ethical and moral choices. You have
already encountered several examples in the early chapters of this
text: Should the law support a system whereby couples who cannot
have children of their own pay a surrogate mother; should spouses be
able to sue each other for tortious injuries that occur while they are
married; should the court recognize the rights of an unborn child?
These and other legal decisions involve a balance between conflicting
goals and values in the search to reach the just or ethical result. In
this chapter, we will focus on the particular ethical dilemmas that are
presented to attorneys in their role as advocates for their clients.
As advocates, attorneys sometimes find themselves confronted
with situations in which they are torn between their loyalty to their
client, their role as a member of the legal system, and their own sense
1
of morality. For example, consider the following true story.
Case 16: The Buried Bodies
Attorney Belge, along with his colleague Frank Armani, was
appointed to represent a criminal defendant charged with murder.
In the course of their conversations, the client revealed that not
only had he committed the murder, but three others as well. The
attorneys went to the location where his client had said one of the
bodies was buried and found the corpse of a young girl, Alicia
Hauck. For six months, neither attorney reported their gruesome
discovery despite repeated frantic pleas by Alicia’s parents for any
information they might have that would let them know if their
daughter was still alive. Finally, the truth was revealed in court
when the attorneys used the information to try to mount an
insanity defense for their client. The townspeople were outraged.
How could these attorneys, members of this small community,
have kept silent so long, while the parents agonized over whether
their little girl was dead or alive?
Stories like this raise complex issues that do not have simple
solutions. Did Belge and Armani act appropriately? Should they have
notified the police or at least the parents either directly or through an
anonymous telephone call? What harm would have been done if they
had notified either the police or the parents? Before you answer these
questions, you need to learn more about the principles and
assumptions that underlie our adversary system, the ethical rules
that govern attorney behavior, and the nature of the attorney-client
relationship. We will then return to the Belge case and the tension
created by the need to keep client confidences when doing so can
cause harm to others. We will also examine two
p. 568
p. 569
other areas that raise ethical dilemmas: conflict of interest and
access to justice. Conflict of interest issues arise when attorneys find
themselves with divided loyalties. This can occur when attorneys try
to represent two clients with differing interests or when an attorney’s
personal loyalties jeopardize his or her ability to give impartial
representation. We end the chapter with a discussion of access to
justice issues, including the need to represent unpopular clients and
to ensure that those with limited resources receive representation.
A. THE ADVERSARIAL SYSTEM
In Chapter 4 we saw how our courts are organized to discover the
facts underlying a case and then to interpret and apply the law to
those facts. In Chapter 5 we learned about the variety of things
lawyers do in preparing cases for trial and that our legal system can
best be described as an “adversarial system.” Such a system places
lawyers in an adversarial relationship and then relies on them to
present all of the relevant facts and arguments needed for a neutral
judge or jury to reach a proper decision.
You may also recall from Chapter 5 that our adversarial system
can be contrasted with the “inquisitorial system” used in many
European nations where judges are active participants in the search
for truth rather than neutral arbitrators. It is judges, rather than
lawyers, who determine who will be called as witnesses, and it is the
judges who ask most of the questions of the witnesses. Lawyers are
present in the courtroom to assist the judge, and the lawyers’ duty to
the litigants is clearly secondary to their duty to the court.
The primary criticism of the inquisitorial system is that it puts too
much power in the hands of judges, thereby creating an imbalance of
power between the individual and the government. Our adversary
system is thought to better serve the needs of the individual litigants
because it places greater emphasis on the lawyer’s responsibility to
serve the client’s interests and limits the judge’s role to that of a
neutral arbitrator of the rules.
A constitutional basis for our adversary system can be found in
the Bill of Rights. The Fourth Amendment prohibition against
unreasonable searches and seizures and the Fifth Amendment
privilege against self-incrimination demonstrate that due process
rights take precedence over the government’s search for the truth.
Although the use of these rights may result in allowing some guilty
persons to go free, they help ensure the innocent are not unjustly
convicted. And, perhaps most significantly, the Sixth Amendment
guarantee of the right to counsel recognizes the importance placed
on the role of lawyers in our adversarial legal system.
Critics of the adversary system argue that it places too much
reliance on the quality of the lawyers handling the case. It assumes
that the lawyers will use skillful examinations of witnesses and well-
researched arguments about the interpretation of the law to present
the strongest possible case for their clients. However, if a lawyer is
poorly prepared or lacks certain key skills, justice is not necessarily
done, and the client will suffer for the lawyer’s inadequacies.
p. 569
p. 570
DISCUSSION QUESTIONS
1. Approximately 90% of all criminal cases scheduled for trial are
instead resolved through plea bargaining. In a plea bargain, the two
sides work together to reach a compromise. Does this undermine the
very notion that ours is an adversarial system?
2. It is often said that the function of the adversarial system is to
find the truth. How is it then that courts frequently block access to
information that would assist in that search for truth? For example,
courts routinely exclude evidence if the police officers used
unconstitutional means to acquire it, and they do not require spouses
to testify against each other.
B. REGULATION OF ATTORNEYS
Historically, state supreme courts have claimed the power to
determine who can or cannot “practice law.” Typically, they establish
specialized boards or agencies to administer bar exams, investigate
the character and fitness of applicants, review complaints against
attorneys, and discipline those who violate their rules of professional
conduct.
The American Bar Association (ABA) adopted a set of rules of
professional conduct known as the Model Rules of Professional
Conduct in 1983, but since then it has amended them many times.
This continuous amendment process has resulted in a great deal of
variation amongst the states. While all states, other than California,
base their codes of ethics on the Model Rules, they do not necessarily
keep pace with the changes suggested by the ABA amendments. In
addition, individual states often adopt their own unique variation of
some of the more controversial provisions, such as those affecting
client confidentiality, and proscriptions on incorporating new
technology, such as limitations on an elected judge’s use of social
media.
With so many different approaches, you may ask how any of
these sets of rules can claim to guide attorneys as to ethical behavior.
One answer is that none of these are actually ethical codes based on
moral values; rather, they are simply rules to govern attorney
behavior. This explanation is supported by the name: the Rules of
Professional Conduct, not the Rules of Professional Ethics. That is,
arguably these rules are not meant to offer attorneys moral guidance
but rather to set forth a strict set of rules that attorneys must follow
at the peril of losing their license to practice law. Therefore, when they
study these rules in law school, law students are not really studying a
code of ethics but rather a series of rules governing behavior,
violation of which could result in disbarment. Hence, when confronted
with what might be seen as an ethical dilemma, attorneys may not
immediately ask, ‘‘What is right thing to do?’’ but rather ‘‘What does
2
the rule say I have to do?’’
p. 570
p. 571
NETNOTE
You can locate the ABA Model Rules of Professional Conduct at
www.abanet.org/cpr/mrpc/mrpc_toc.html.
In recognition of the distinction between rules of conduct and
ethics, a number of state bar associations have started to focus on
the concept that there are standards toward which the legal
professional should strive that are higher than those required by the
rules of professional conduct. Many state courts and bar
associations have created professionalism commissions, and some
have promulgated codes of professionalism and civility.
In additional to the Model Rules, the ABA has also adopted a set
of Formal Ethics Opinions that address questions attorneys have
asked regarding particular Model Rules. Each state has adopted a
similar system to help attorneys meet their obligations under the
rules. These opinions are advisory only, but they can be helpful in
understanding how each state bar, or the ABA, interprets specific
provisions of their Model Rules or Model Code.
The drafters of the Model Rules had as one of their goals the
creation of definitive answers so that, at least theoretically, lawyers
would be able to find specific guidance in order to avoid disciplinary
sanctions. However, as we will see later, the Model Rules are often
ambiguous and offer less than complete instructions on how to
behave in difficult situations. Even on their own terms, the Model
Rules cannot be seen simply as a set of proscriptions. Rule 2.1
provides that in “rendering advice, a lawyer may refer not only to law
but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client’s situation.” Even
more telling is this statement from Comment 7 of the Preamble:
“Many of a lawyer’s professional responsibilities are prescribed in the
Rules. . . . However, a lawyer is also guided by personal conscience
and the approbation of professional peers.”
For an attorney mired in an ethical dilemma, this acknowledgment
— that at times attorneys may have to look to their own consciences
rather than at the exact rules — does not provide much assistance.
Also, it appears that the very purpose of a set of rules — to make it
easy for attorneys to know the right thing to do — is completely
undercut if there is a general acknowledgment that the rules will not
provide for an efficacious result in many situations. We will see this
tension between following the rules versus doing “the right thing”
throughout our discussions in this chapter.
It probably should not surprise us that following any set of rules
will not always provide attorneys with the best answer in any
individual situation. After all, rules are simply society’s best guess as
to what is the most appropriate behavior most of the time. Because
by its nature a set of rules is designed to apply to the usual situation,
the rules cannot provide answers for the unusual. For the unusual,
p. 571
p. 572
attorneys are thrown back onto their individual senses of morality,
having to make individual choices in situations where the rule no
longer “works.” In the next section, we will explore some of these
difficult situations in the context of the rules regarding attorney-client
confidentiality and conflict of interest. Later in the chapter, we will
discuss the impact these regulations have on the availability of legal
services.
DISCUSSION QUESTIONS
3. On a basic level, do you think attorneys have to face ethical
dilemmas that are fundamentally different from those faced by other
professionals, such as physicians or accountants?
4. In the popular media, attorneys are often referred to as “hired
guns.” We have also all heard the lawyer jokes: “How do you know
when a lawyer is lying? His lips are moving.” Why do you think there is
this negative perception of lawyers and what they do? Do you think it
is a fair characterization?
5. What do you think of the statement “At times following the
rules may not lead to the best moral response and indeed may
produce an amoral or even immoral response”?
C. THE ATTORNEY-CLIENT RELATIONSHIP
The attorney-client relationship is critical to the successful operation
of the adversary system of justice. To fulfill this critical role, the
lawyer must be able to obtain confidential information about the
client’s situation and must not have any interests that might conflict
with those of the client.
1. Confidentiality
A basic tenet of the attorney-client relationship is that attorneys must
keep confidential any information their clients tell them. While there is
little empirical data to support the claim, it is generally assumed that
without the assurance of confidentiality, many clients would be
reluctant to reveal potentially embarrassing or incriminating
information to their attorneys. There is also the assumption that only
if an attorney knows of a client’s planned bad acts can the attorney
have the opportunity to try to talk the client out of proceeding with
those acts.
Because of these concerns, Model Rule 1.6 begins with a general
statement prohibiting attorneys from revealing client confidences.
Except in very rare situations, an attorney can never mention any
aspect of a client’s case to those outside the law firm. In fact, the very
presence of the client in the firm must be kept confidential. This
confidentiality covers any information that clients tell their attorneys
as well as any information that attorneys learn from a third party,
such as witnesses or an investigator. The prohibition against
revealing client confidences applies to potential clients, clients, and
3
prior clients. It even remains in effect after the client’s death.
p. 572
p. 573
a. Attorney-Client Privilege
Under certain circumstances a court may order an attorney to
testify, thereby potentially forcing the revelation of confidential
information. Rather than testifying, the attorney may object on the
grounds of “attorney-client privilege.” The attorney-client privilege is
not part of the ethical codes. Rather, it is contained within the rules of
evidence.
For the attorney-client privilege to apply, the client, while seeking
legal advice, must speak directly to an attorney or his or her
employee, with no unnecessary third parties present. This is more
restrictive than the ethical rule protecting client confidences. The
ethical rule applies no matter how the attorney acquired the
confidential information, so long as it was during the course of the
representation.
The rules regarding client confidentiality have always been very
broad, requiring that the attorney keep secret almost all information
learned from any source during the course of representation. The
evidentiary rule of attorney-client privilege is much narrower because
it keeps out testimony during trials — the purpose of which is to
reveal as much information as possible to the court in its search for
the truth.
Figure 14-1 summarizes the differences between the attorney-
client privilege and the ethical rules regarding confidentiality. As you
can see, the attorney-client privilege does not cover as many
situations as do the ethical rules regarding confidentiality. The ethical
rules generally cover any confidence regarding the client, no matter
the source. Therefore, an attorney cannot voluntarily repeat that
information without the client’s consent. However, a court
p. 573
p. 574
could require the attorney to testify regarding that information unless
it also meets the four-part test for satisfying the attorney-client
privilege:
Ethical Rule Regarding Confidentiality Attorney-Client Privilege
Under the Model Code applies to Applies to
■ confidences and secrets ■ a client statement
■ learned from any source ■ to an attorney or a
paralegal
■ regarding anything and ■ made while seeking legal
■ made anywhere ■ advice and given in
confidence (no
unnecessary persons
present)
Under the Model Rules applies to
■ information
■ relating to representation of the client
Result:
Result:
If all the conditions are present, the attorney or paralegal may If any of these four
not voluntarily reveal the information (but may be compelled conditions is missing, the
to testify unless statements also satisfy criteria for the attorney or paralegal can be
attorney-client privilege). compelled to testify.
Figure 14-1 A Comparison of the Ethical Rule Regarding Confidentiality and the Attorney-
Client Privilege
Figure 14-2 Attorney-Client Privilege: A Subset of Confidentiality
1. The client made a statement
2. to the attorney
3. while seeking legal advice and
4. no unnecessary persons were present.
Therefore, you can think of information covered by the attorney-client
privilege as a subset of all confidential information. See Figure 14-2.
Closely related to the concept of attorney-client privilege is the
doctrine of attorney work product. Materials that can be categorized
as attorney work product are protected from discovery requests and
need not be disclosed even during trial. Generally, to be protected, the
materials must be prepared by an attorney or an agent of the
attorney, such as a paralegal; they must contain thoughts, strategy, or
opinions of the attorney or paralegal; and they must be prepared in
anticipation of litigation or for trial. This protected work product
includes private memoranda, written statements of witnesses, and
mental impressions, conclusions, or legal strategies related to
litigation. While the attorney client privilege in effect belongs to the
client and can be waived only by the client, the doctrine of attorney
work product is meant to protect the mental impressions and
creativity of the attorney.
With this background information on client confidentiality and the
attorney-client privilege, think back to the situation mentioned at the
beginning of this chapter. Attorneys Belge and Armani chose not to
report their knowledge of the death of Alicia Hauck or the location of
her body because they believed that they would be violating the
confidentiality of attorney-client communications. Did they do the
right thing, or should the obligation to maintain client confidentiality
take a back seat to other, more important societal needs?
More than a hundred years ago, Lord Broughham, while
representing Queen Caroline in a divorce trial that threatened to end
the reign of King George IV, declared:
[A] n advocate . . . knows but one person in all the world, and that person is the client. To
save that client by all means and expedients, and at all hazards and costs to other
and in performing this
persons, and among them, to himself, is his first and only duty;
duty he must not regard the alarm, the torments, the destruction which he may bring
upon others.4
On the other hand, Rule 1.6 of the Model Rules of Professional
Conduct specifically authorizes attorneys to reveal confidential
information about their clients in specified situations. It is to these
exceptions that we will turn in the next section.
p. 574
p. 575
b. Exceptions to Confidentiality
The Model Rules provide for several exceptions to the general
prohibition against revealing client confidences. The most
fundamental of these exceptions is when an attorney has knowledge
that the client plans a criminal act. The rules provide that a lawyer
may reveal confidential information to “prevent reasonably certain
death or substantial bodily harm.” Note the use of the word “may.” If
the client reveals he or she is planning a criminal act that is likely to
result in certain death and substantial bodily harm, the attorney may,
but is not required, to reveal the planned crime. In a very few states
the verb “may” has been changed to “shall.” In those states, attorneys
are given no option but instead must report their client’s planned
criminal activities.
Several states, although not the ABA, actually have mandatory
disclosure rules. In Wisconsin, Supreme Court Rule 20:1.6(b) states
that disclosure is mandatory in instances in which it is likely that
disclosure will “prevent a client from committing a criminal or
fraudulent act that could result in the death or substantial harm to
another or substantial injury to the financial interests or property of
5
another.” Rule 1.05 (e) in Texas requires mandatory disclosure “when
a lawyer has confidential information clearly establishing that a client
is likely to commit a criminal or fraudulent act that is likely to result in
6
death or substantial bodily harm to a person.”
It is also important to note that this exemption from client
confidentiality has three qualifiers. The first is that it applies only to
future crimes. Therefore, if the client reveals past criminal conduct,
the attorney may not reveal it. In only a few states, an attorney may
reveal a confidence in those situations where the criminal activity is
over, but there is the potential for ongoing harm. The most recent
revision to the Model Rules also allows the attorney to reveal
information of past bad acts, but only if needed to rectify “substantial
injury to the financial interests or property of another.”
Second, in some states, attorneys are only allowed to reveal
confidences if it is the client who was planning the criminal activity.
For example, if Mrs. Smith was to tell her attorney that her husband
was so upset with the course of her litigation that he was planning to
kill the opposing attorney, under the ethical rules in effect in most
states, Mrs. Smith’s attorney could not breach that confidence. The
Model Rules as well as the rules in effect in a few states allow the
attorney to breach the client’s confidence in situations such as that
involving Mrs. Smith’s husband — that is, when persons other than
the client plan the criminal acts, and those plans are discovered by
the attorney through a conversation with the client.
The third qualifier relates to the type of crime. The Model Rules
require that the planned criminal activity be likely to result in
“reasonably certain death or substantial bodily harm.” In addition to
death or substantial bodily harm, the rules also allow attorneys to
reveal information to prevent the client from
p. 575
p. 576
committing fraud or “substantial injury to the financial interests or
property of another . . . in furtherance of which the client has used the
lawyer’s services.”
According to the comments the rule recognizes
the overriding value of life and physical integrity. . . . Thus, a lawyer who knows that a
client has accidentally discharged toxic waste into a town’s water supply may reveal this
information to the authorities if there is a present and substantial risk that a person who
drinks the water will contract a life-threatening or debilitating disease and the lawyer’s
7
disclosure is necessary to eliminate the threat or reduce the number of victims.
DISCUSSION QUESTION
6.Do you think that clients will seriously be dissuaded from
revealing confidences if they know that their attorney may be allowed
to reveal that information after the client’s death?
Let us now return to the situation facing attorneys Belge and
Armani. During their client’s trial, the townspeople found out that the
attorneys had kept quiet for months about the location of the girl’s
body. Their outrage put pressure on the local district attorney to
prosecute the men for their silence. The problem was in finding a law
that the attorneys had violated. Remarkably, the district attorney did
not charge Belge and Armani with obstruction of justice or being
accessories after the fact. Instead, the indictment was based on two
little-known statutes: one that requires a decent burial be accorded
the dead and the other that anyone knowing that a person died
without medical attendance must report that death to the proper
authorities. The grand jury indicted one of the attorneys, Francis
Belge. Prior to trial, his attorney brought a motion seeking dismissal
of the indictment. The following is the trial court’s decision regarding
whether or not the charges against attorney Belge should be dropped.
People v. Belge
County Court of New York, Onondaga County
83 Misc. 2d 186, 372 N.Y.S.2d 798 (1975)
GALE, J.
In the summer of 1973 Robert F. Garrow, Jr., stood charged in
Hamilton County with the crime of murder. The defendant was
assigned two attorneys, Frank H. Armani and Francis R. Belge. A
defense of insanity had been interposed by counsel for Mr. Garrow.
During the course of the discussions between Garrow and his two
counsel, three other murders were admitted by Garrow, one being
in Onondaga County. On or about September of 1973 Mr. Belge
conducted his own investigation based upon what his client had
told him and with the assistance of a friend the location of the
body of Alicia Hauck was found in Oakwood Cemetery in Syracuse.
Mr. Belge personally inspected the body and was satisfied,
presumably, that this was the Alicia Hauck that his client had told
him that he murdered.
p. 576
p. 577
This discovery was not disclosed to the authorities, but became
public during the trial of Mr. Garrow in June of 1974, when to
affirmatively establish the defense of insanity, these three other
murders were brought before the jury by the defense in the
Hamilton County trial. Public indignation reached the fever pitch. . .
. [T]he District Attorney of Onondaga County . . . caused the Grand
Jury of Onondaga County, then sitting, to conduct a thorough
investigation. As a result of this investigation . . . Indictment No.
75–55 was returned as against Francis R. Belge, Esq., accusing
him of having violated subdivision 1 of section 4200 of the Public
Health Law, which, in essence, requires that a decent burial be
accorded the dead, and section 4143 of the Public Health Law,
which, in essence, requires anyone knowing of the death of a
person without medical attendance, to report the same to the
proper authorities. Defense counsel moves for a dismissal of the
indictment on the grounds that a confidential, privileged
communication existed between him and Mr. Garrow, which
should excuse the attorney from making full disclosure to the
authorities.
The National Association of Criminal Defense Lawyers, as
amicus curiae (Times Pub. Co. v Williams, 222 So. 2d 470, 475
[Fla]), succinctly state the issue in the following language: If this
indictment stands, “The attorney-client privilege will be effectively
destroyed. No defendant will be able to freely discuss the facts of
his case with his attorney. No attorney will be able to listen to
those facts without being faced with the Hobson’s choice of
violating the law or violating his professional code of Ethics.”
In the most recent issue of the New York State Bar Journal
(June, 1975) there is an article by Jack B. Weinstein, entitled
“Educating Ethical Lawyers.” In a subcaption to this article is the
following language which is pertinent: “The most difficult ethical
dilemmas result from the frequent conflicts between the obligation
to one’s client and those to the legal system and to society. It is in
this area that legal education has its greatest responsibility, and
can have its greatest effects.” In the course of his article Mr.
Weinstein states that there are three major types of pressure
facing a practicing lawyer. He uses the following language to
describe these: “First, there are those that originate in the
attorney’s search for his own well-being. Second, pressures arise
from the attorney’s obligation to his client. Third, the lawyer has
certain obligations to the courts, the legal system, and society in
general.”
Our system of criminal justice is an adversary system and the
interests of the State are not absolute, or even paramount. “The
dignity of the individual is respected to the point that even when
the citizen is known by the state to have committed a heinous
offense, the individual is nevertheless accorded such rights as
counsel, trial by jury, due process, and the privilege against self
incrimination.”
A trial is in search for truth, but it is only partly a search for
truth. The mantle of innocence is flung over the defendant to such
an extent that he is safeguarded by rules of evidence which
frequently keep out absolute truth, much to the chagrin of juries.
Nevertheless, this has been a part of our system since our laws
were taken from the laws of England and over these many years
has been found to best protect a balance between the rights of the
individual and the rights of society.
The concept of the right to counsel has again been with us for
a long time, but . . . [t]he effectiveness of counsel is only as great
as the confidentiality of its client-attorney relationship. If the lawyer
cannot get all the facts about the case, he can only give his client
half of a defense. This, of necessity, involves the client telling his
attorney everything remotely connected with the crime.
Apparently, in the instant case, after analyzing all the evidence,
and after hearing of the bizarre episodes in the life of their client,
they decided that the only possibility of salvation was in a defense
of insanity. For the client to disclose not only everything about this
particular crime but also everything about other crimes which
might have
p. 577
p. 578
a bearing upon his defense, requires the strictest confidence in,
and on the part of, the attorney.
. . .
In the case at bar we must weigh the importance of the general
privilege of confidentiality in the performance of the defendant’s
duties as an attorney, against . . . the heart tearing that went on in
the victim’s family by reason of their uncertainty as to the
whereabouts of Alicia Hauck. In this type of situation the court
must balance the rights of the individual against the rights of
society as a whole.
. . .
It is the decision of this court that Francis R. Belge conducted
himself as an officer of the court with all the zeal at his command
to protect the constitutional rights of his client. Both on the
grounds of a privileged communication and in the interests of
justice the indictment is dismissed.
CASE DISCUSSION QUESTIONS
1. What do you think the court meant when it said that a “trial is in
part a search for truth, but it is only partly a search for truth”?
2. Ultimately, why did the court find that the indictment against
attorney Belge should be dismissed?
3. Do you agree with the result? What do you think the lawyers
should have done?
At the time when Belge had to make his decision about whether to
reveal the location of the dead girls’ bodies, New York followed ethical
rules that dictated the only time an attorney could reveal a client
confidence was to prevent a crime. Therefore, the attorneys would
have been violating their code of ethics if they had revealed the girls’
location. However, this does not mean keeping silent was an easy
decision. One of the lawyers made the following statement: “I caused
pain, I prolonged their pain. What can you say . . . . How do you . . . .
Nothing I could say would justify it in their minds. You couldn’t justify
8
it to me.” Even the lawyers in the case were troubled by having to
follow what they considered to be binding ethical rules.
DISCUSSION QUESTIONS
7. The common justification for having such strict limits on when
an attorney can reveal client confidences is because without such
restrictions, clients would be afraid to give their attorneys the
complete story. Do you think this is really true? Given the complexities
of the legal system and hence the need for an attorney to help others
through it, do you think a client would risk not getting adequate
representation by not being forthcoming to the attorney?
8. What do you make of the fact that in every jurisdiction the
confidentiality rules do not apply where the litigation is between a
lawyer and the client and the issue is the attorney’s fees?
p. 578
p. 579
Some have argued that the Belge case does not really present a
clear conflict between the attorneys’ duty of maintaining client
confidences and preventing harm to others because in Belge the
crime had already been committed and could not be undone. Nothing
attorney Belge could have done would have prevented further harm
except perhaps to shorten the time of the parents’ not knowing of
their daughter’s death. But who is to say learning of her death several
months later caused them any more harm than the time they spent
with some hope she was still alive? A more striking conflict was
presented by a case that arose in Minnesota.
NETNOTE
You can read blog postings about developments in legal ethics at
bernabepr .blogspot.com/.
In 1956, David Spaulding, a minor, was injured in a car accident.
David’s father sued on behalf of his son for the injuries David
sustained. During the discovery phase of the lawsuit, David was
examined by his own physician as well as an orthopedic specialist.
Both of the doctors found David had suffered severe, but not life-
threatening, injuries.
David was also examined by a doctor for the defense. That doctor
discovered David was also suffering from a life-threatening medical
condition caused by the car accident. In a report to the defendants’
attorneys, the doctor wrote:
The one feature of the case which bothers me more than any other part of the case is
the fact that this boy of 20 years of age has an aneurysm, which means a dilatation of
the aorta and the arch of the aorta. . . . Of course an aneurysm or dilatation of the aorta
in a boy of this age is a serious matter as far as his life. This aneurysm may dilate
9
further and it might rupture with further dilatation and this would cause his death.
The defendants’ attorneys did not share this information with
David nor his attorneys even though the doctor’s report contained
critical information that David and his physicians needed to have him
properly treated. The parties agreed to settle the case for $6,500. One
can only speculate that had the plaintiffs known about the aneurysm
and the potential deathly danger it posed, the amount would have
been much greater.
Because David was a minor, the parties had to submit the
settlement to the court for its approval, which it gave. Two years later,
before entering the army reserve, David underwent a physical
examination. During that examination, his family physician for the
first time discovered the aorta aneurysm that had been
p. 579
p. 580
caused by the automobile accident and that was threatening David’s
life. David underwent immediate surgery that repaired the aneurysm
but left David with permanent severe speech loss. Shortly thereafter
David petitioned the court to set aside the settlement so that he could
recover additional compensation. The trial court set aside the
settlement, and the defendants appealed. In the following case, the
supreme court of Minnesota discussed whether the settlement
should have been set aside.
Spaulding v. Zimmerman
263 Minn. 346, 116 N.W.2d 704 (1962)
GALLAGHER, J.
The case was called for trial on March 4, 1957. . . . On the
following day an agreement for settlement was reached wherein, in
consideration of the payment of $6,500, David and his father
agreed to settle in full for all claims arising out of the accident.
Richard S. Roberts, counsel for David, thereafter presented to
the court a petition for approval of the settlement. . . . At no time
was there information disclosed to the court that David was then
suffering from an aorta aneurysm which may have been the result
of the accident. [T]he court on May 8, 1957, made its order
approving the settlement.
Authors’ Note: The court recounted the events that led David
[
two years later to discover for the first time that he had an
aneurysm.]
Shortly thereafter, David . . . instituted the present action for
additional damages due to the more serious injuries including the
aorta aneurysm which he alleges proximately resulted from the
accident. As indicated above, the prior order for settlement was
vacated. In a memorandum made a part of the order vacating the
settlement, the court stated:
“The mistake concerning the existence of the aneurysm was not mutual. [P]laintiff’s
doctor failed to ascertain its existence. By reason of the failure of plaintiff’s counsel to
use available rules of discovery, plaintiff’s doctor and all his representatives did not
learn that defendants and their agents knew of its existence and possible serious
consequences. Except for the character of the concealment in the light of plaintiff’s
minority, the Court would, I believe, be justified in denying plaintiff’s motion to vacate,
leaving him to whatever questionable remedy he may have against his doctor and
against his lawyer.
That defendants’ counsel concealed the knowledge they had is
not disputed. . . . There is no doubt that during the course of the
negotiations, when the parties were in an adversary relationship,
no rule required or duty rested upon defendants or their
representatives to disclose this knowledge. However, once the
agreement to settle was reached, it is difficult to characterize the
parties’ relationship as adverse. At this point all parties were
interested in securing Court approval.
. . .
When the adversary nature of the negotiations concluded in a settlement, the
procedure took on the posture of a joint application to the Court, at least so far as
the facts upon which the Court could and must approve settlement is [sic]
concerned. It is here that the true nature of the concealment appears, and
defendants’ failure to act affirmatively, after having been given a copy of the
application for approval, can only be defendants’ decision to take a calculated risk
that the settlement would be final.
To hold that the concealment was not of such character as to result in an
unconscionable advantage over plaintiff’s ignorance or mistake, would be to penalize
innocence and incompetence and reward less than full performance of an officer of the
Court’s duty to make full disclosure to the
p. 580
p. 581
Court when applying for approval in minor settlement proceedings.”
. . .
From the foregoing it is clear that in the instant case the court
did not abuse its discretion in setting aside the settlement which it
had approved on plaintiff’s behalf while he was still a minor. It is
undisputed that neither he nor his counsel nor his medical
attendants were aware that at the time settlement was made he
was suffering from an aorta aneurysm which may have resulted
from the accident. The seriousness of this disability is indicated by
Dr. Hannah’s report indicating the imminent danger of death
therefrom. This was known by counsel for both defendants but
was not disclosed to the court at the time it was petitioned to
approve the settlement. While no canon of ethics or legal
obligation may have required them to inform plaintiff or his
counsel with respect thereto, or to advise the court therein, it did
become obvious to them at the time that the settlement then
made did not contemplate or take into consideration the disability
described. This fact opened the way for the court to later exercise
its discretion in vacating the settlement.
Affirmed.
CASE DISCUSSION QUESTIONS
1. Why did the Minnesota Supreme Court agree that the trial
court could set aside the settlement? Do you think the result would
have been the same if the settlement had involved an adult plaintiff
rather than a child? Should it matter?
2. Did the court view the attorneys’ decision not to reveal the
extent of David’s injury as a violation of an ethical obligation or rather
as a strategic move that in this case simply did not work out?
3. Do you think the court should have tackled head on the ethical
and moral issues involved in choosing to keep a client’s confidence
over saving a child’s life?
4. David Spaulding was represented by a young, inexperienced
attorney. Perhaps the attorney was not aware that he was entitled to
ask for a copy of the defendant doctor’s examination. Or perhaps he
just thought it would duplicate the information his own doctors had
found. Or perhaps in the rush to settle the case, he simply forgot to
ask for a copy. No matter the answer, should the system develop
better protections for clients against the inexperience or
incompetence of their attorneys?
5. It appears in this case that the defendants’ attorneys never
even consulted with the defendants about what they wanted to do
but rather just assumed they would not want the information
revealed. Should the attorneys have made such an assumption?
6. Assuming the attorneys had discussed with their clients the
decision regarding whether to reveal this information, and the clients
had said they did not wish to have the information revealed, what
options would the attorneys have had?
7. Consider whether you think your answer to number 6 would
change under the newly revised Model Rules that a “lawyer may
reveal information . . . to prevent reasonably certain death or
substantial bodily harm.” Do you think the defense attorneys would
have an ethical obligation to reveal the injury?
p. 581
p. 582
Would you change your answer if David had been suffering from an
inoperable tumor rather than a correctable, but life-threatening
condition?
After the court’s decision in this case, David entered into a new
settlement with the defendants for $25,000. The lawyers representing
Mr. Spaulding received $12,500, $6,500 went to medical bills, and the
remaining amount went to Mr. Spaulding and his family. Because of
the aftereffects of the aortal aneurysm Mr. Spaulding lost much of his
vocal range. Many years and a pioneering new surgery later, Mr.
10
Spaulding was able to regain some of his speaking voice.
c. The Effect of Breaching a Confidence on the Attorney-
Client Privilege
The Belge and Spaulding cases highlight the dilemma of
balancing client confidentiality against the desire to prevent harm to
others. Recall that even when danger to others is reasonably certain,
under the Model Rules and in most states, there is no requirement
that attorneys disclose the confidential information. Even when a
client directly tells his or her attorney that he is planning on killing
someone or causing substantial bodily harm, the Model Rules would
allow but not mandate that the attorney reveal this information. This
presents another problem, however. Assume for the moment that a
client tells an attorney of his plans to kill someone and that attorney
tells the police of the client’s plans, thereby saving a life. Can that
information then be used in court against the client? If the answer is
yes, would knowledge of such potential use of the information
discourage attorneys from revealing such information?
Specifically, in situations where attorneys may reveal a confidence
without breaking the code of ethics, what impact does that have on
the attorney-client privilege? In a case from Massachusetts, the
Supreme Judicial Court discussed this intersection between the
ethical rules of client confidentiality and the evidentiary rule of
11
attorney-client privilege. In that case, Joseph Tyree met with
attorney Purcell, a legal services attorney. Mr. Tyree was seeking
advice about being evicted. He was about to lose his apartment
because he had been fired as the maintenance man for his apartment
complex. In the course of the conversation, the client told the
attorney he planned to burn down the building. After thinking long and
hard, the attorney reported this information to the police. When they
investigated, they found gas cans and fuses in Tyree’s apartment.
Also all of the fire detectors had been disabled. At Tyree’s trial for
arson, the prosecution called attorney Purcell to testify. Purcell
invoked the attorney-client privilege, and the judge agreed he did not
have to testify. The jury was unable to reach a verdict, and the judge
was forced to call a mistrial. At the second trial, a different judge
ordered Purcell to testify, and when he refused, the judge determined
Purcell was not protected by the attorney-client privilege and held him
in contempt for refusing to testify. Purcell appealed to the
Massachusetts Supreme Judicial Court, the highest appellate court in
Massachusetts. That court determined that he did not
p. 582
p. 583
have to testify, concluding “lawyers will be reluctant to come forward
if they know that the information that they disclose may lead to
12
adverse consequences to their clients.”
Three years later, the Ohio Supreme Court was confronted with a
similar case. Attorney Helmick was representing a defendant in a
capital murder trial. While he was preparing for trial, one of his
investigators gave him a letter written by his client. The investigator
had gotten the letter from the client’s mother. The letter contained
death threats. After consulting with the state ethics committee,
attorney Helmick revealed the contents of the letter to the police and
then filed a motion to withdraw as defense counsel. The district
attorney served attorney Helmick with a subpoena ordering him to
produce the letter in his former client’s murder trial. Helmick refused,
and he was found in contempt of court. In the following case, the
supreme court of Ohio discusses whether attorney Helmick can be
required to turn over the letter to the prosecution.
In re Original Grand Jury Investigation
89 Ohio St. 3d 544, 733 N.E.2d 1135 (2000)
SWEENEY, SR., J.
The issue presented in this case is whether an attorney can be
compelled to disclose to the grand jury a letter written by a client
and discovered by an investigator that contains evidence of a
possible crime or whether the Ohio Code of Professional
Responsibility prohibits such disclosure.
. . .
DR 4–101(B) states, “Except when permitted under DR 4–
101(C), a lawyer shall not knowingly . . . reveal a confidence or
secret of a client.”
We must first determine whether the letter sought falls within
the definition of a client “secret.” Unlike “confidence,” which is
limited to information an attorney obtains directly from his or her
client, the term “secret” is defined in broad terms. Therefore, a
client secret includes information obtained from third-party
sources, including “information obtained by a lawyer from
witnesses, by personal investigation, or by an investigation of an
agent of the lawyer, disclosure of which would be embarrassing or
harmful to the client.”
[W]e find that the letter falls within the definition of a client
“secret,” since it was obtained in the professional attorney-client
relationship, by appellant’s agent (the investigator), and since it
contains detrimental information detailing a possible crime
committed by appellant’s former client.
Although the letter is a client secret, this does not necessarily
mean that disclosure of the letter is absolutely prohibited. An
attorney may disclose a client secret if one of the four listed
exceptions in DR 4–101(C) applies.
Appellant concedes that DR 4–101(C)(3) permits him to “reveal
. . . the intention of his client to commit a crime and the
information necessary to prevent the crime.” . . .
We agree with appellant that he was authorized by DR 4–
101(C)(3) when he chose to reveal the intent of his client to
commit a crime. . . . However, the fact that he revealed this
information does not answer the question whether he is
p. 583
p. 584
obligated to produce the letter itself. Thus, the question that
remains is whether appellant is required to relinquish the letter
itself and present it to the grand jury. We find that the exception
found in DR 4–102(C)(2) governs disposition of this issue.
DR 4–101(C)(2) provides that an attorney may reveal
“confidences or secrets when permitted under Disciplinary Rules or
required by law or court order.” . . .
The exception of DR 4–101(C)(2) for disclosures required by
law has been applied in the context of mandating that attorneys
relinquish evidence and instrumentalities of crime to law-
enforcement agencies. Thus, the rule has emerged that, despite
any confidentiality concerns, a criminal defense attorney must
produce real evidence obtained from his or her client or from a
third-party source. . . . State v. Green (La.1986), 493 So. 2d 1178
(holding that the attorney had an obligation to relinquish client’s
gun, an instrumentality of a crime, to authorities). In essence, the
confidentiality rules do not give an attorney the right to withhold
evidence.
Appellant contends, however, that there are strong policy
reasons against mandating disclosure. Appellant believes that
mandatory disclosure will discourage attorneys from reporting
possible threats made by their clients and will therefore run
contrary to the intent of the code, which is to prevent crimes from
occurring. Appellant cites the Massachusetts decision of Purcell v.
Dist. Atty. for Suffolk Dist. (1997), 424 Mass. 109, 676 N.E.2d 436,
which highlights these concerns.
In Purcell, an attorney informed police about his client’s
intention to commit arson. The trial court ordered the attorney to
testify about the conversation he had with his client concerning his
client’s intention to commit this crime, and the state defended the
order on the basis of the crime-fraud exception to the attorney-
client privilege. The Massachusetts Supreme Court vacated the
trial court’s order and held that the attorney did not have to testify
against his client. In so holding, the court noted:
“We must be cautious in permitting the use of client
communications that a lawyer has revealed only because of a
threat to others. Lawyers will be reluctant to come forward if they
know that the information that they disclose may lead to adverse
consequences to their clients. A practice of the use of such
disclosures might prompt a lawyer to warn a client in advance that
the disclosure of certain information may not be held in
confidence, thereby chilling free discourse between lawyer and
client and reducing the prospect that the lawyer will learn of a
serious threat to the well-being of others.”
Although these may be valid concerns, we find that the Purcell
decision is distinguishable from the instant case, and that the
policy reasons cited in Purcell have less validity here. Purcell
involved direct communications between an attorney and client.
The issue in that case was whether the attorney was required to
testify against his client. In this case, the attorney-client privilege is
not at issue. Nor is appellant being asked to testify against his
former client. Instead, the instant case revolves around whether a
physical piece of evidence must be relinquished to the grand jury.
While we recognize the importance of maintaining a client’s
confidences and secrets and understand that an attorney may
have concerns in turning over incriminating evidence against his or
her client, we do not believe that these concerns should override
the public interest in maintaining public safety and promoting the
administration of justice by prosecuting individuals for their
alleged criminal activity.
Since the letter sought in this case contains evidence of a
possible crime, we find that the letter must be turned over to the
grand jury. Accordingly, we hold that where an attorney receives
physical evidence from a third party relating to a possible crime
committed by his or her client, the attorney is obligated to
relinquish that evidence to law-enforcement authorities and must
comply with a subpoena issued to that effect.
Judgment affirmed.
p. 584
p. 585
CASE DISCUSSION QUESTIONS
1. On what basis did the court decide that the attorney should
turn over the client’s letter?
2. The dissent argued that the reasoning in Purcell should have
been followed and that the court’s failure to do so will mean
“attorneys and their clients will be less likely to discuss potential
crimes, which will decrease the likelihood that the crimes can be
13
prevented.” Do you agree? Why or why not?
d. Responding to Suspected Client Perjury
What should an attorney do if he or she suspects a client is
planning on committing perjury? This creates one of the most difficult
ethical challenges attorneys face as it involves balancing a client’s
confidentiality interests against the attorney’s responsibility to be
truthful to the court. While attorneys must act as the zealous
advocates of their clients, they also owe a duty of candor toward the
court. Before we tackle this problem of how to handle perjury, we
should acknowledge that what is or is not truthful testimony is not
always clear. Was President Clinton testifying falsely when he said he
and Monica Lewinsky were never alone? There were always other
persons present somewhere in the White House even if no one else
was present in the same room as they were. The problem is that
people may give different definitions to the same word. By giving
uncommon definitions to common words, the statements may be
technically true but misleading.
Consider the following exchange that occurred during a
bankruptcy hearing. The questioner was trying to determine if Mr.
Bronston in the past or currently had any personal accounts in Swiss
banks.
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in
Zurich.
Mr. Bronston’s last answer, while truthful, was incomplete. For five
years he had a Swiss bank account. He was charged with perjury
based on the “theory that in order to mislead his questioner, [he]
answered the second question with literal truthfulness but
unresponsively addressed his answer to the company’s assets and
not to his own — thereby implying that he had no personal Swiss
14
bank account at the relevant time.” The court reversed his
conviction, finding that he could not be found guilty of perjury for
giving a nonresponsive answer. The court distinguished this from the
situation where a witness has visited a store 50 times in a given day
and when asked how many times she entered the store, replied “five.”
While technically true (she did enter five times, and ten times, etc.),
such a responsive answer would do nothing to alert the questioner to
probe further.
p. 585
p. 586
Returning to the problem of suspected perjury, Rule 3.3(a)(4) of
the Model Rules states, “A lawyer shall not knowingly offer evidence
that the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures.” However, Rule 3.3(c) states, “A lawyer
may refuse to offer evidence, other than the testimony of a defendant
in a criminal matter, that the lawyer reasonably believes is false.”
Note that the rule makes a distinction between testimony the
attorney “knows” will be false and testimony the attorney “reasonably
believes” will be false. If the attorney knows the testimony will be
false, he cannot present it, and if it has already been given, he must
take reasonable remedial measures. If, however, the attorney simply
believes it is or will be false, it is at the discretion of the attorney
whether to present the evidence.
The rule also makes a distinction between civil and criminal
matters. When that witness is a criminal defendant, the defense
attorney is faced with what Monroe Freedman termed “the defense
15
lawyer’s trilema.” A lawyer in this situation must balance three
separate and sometimes conflicting responsibilities:
■ To best represent the client’s interests, the lawyer must
discover all relevant facts about the case.
■ The lawyer must keep in strictest confidence all disclosures
made by the client in the course of their professional
relationship.
■ As an “officer of the court,” the lawyer must not knowingly
present false evidence.
The ideal ethical solution is for the lawyer to talk the client out of
presenting perjured testimony. The attorney can point out the
dangers of lying: the fact that most people are actually terrible liars,
the potential of being charged with the additional crime of perjury,
and the consequences if the prosecution can prove that the
defendant’s statement is false. But what if the client insists on going
ahead with the perjured testimony? Can the attorney threaten to
withdraw from the case without violating the client’s Sixth
Amendment right to assistance of counsel? The U.S. Supreme Court
addressed this issue in Nix v. Whiteside.
Nix v. Whiteside
475 U.S. 157 (1986)
BURGER, J.
We granted certiorari to decide whether the Sixth Amendment
right of a criminal defendant to assistance of counsel is violated
when an attorney refuses to cooperate with the defendant in
presenting perjured testimony at his trial.
Whiteside and two others went to one Calvin Love’s apartment
late [at] night, seeking marihuana. Love was in bed when Whiteside
and his companions arrived; an argument between Whiteside and
Love over the marihuana ensued. At one point, Love directed his
girlfriend to get
p. 586
p. 587
his “piece,” and at another point got up, then returned to his bed.
According to Whiteside’s testimony, Love then started to reach
under his pillow and moved toward Whiteside. Whiteside stabbed
Love in the chest, inflicting a fatal wound.
Whiteside was charged with murder, and when counsel was
appointed he objected to the lawyer initially appointed, claiming
that he felt uncomfortable with a lawyer who had formerly been a
prosecutor. Gary L. Robinson was then appointed and immediately
began an investigation. Whiteside gave him a statement that he
had stabbed Love as the latter “was pulling a pistol from
underneath the pillow on the bed.” Upon questioning by Robinson,
however, Whiteside indicated that he had not actually seen a gun,
but that he was convinced that Love had a gun. No pistol was
found on the premises; shortly after the police search following the
stabbing, which had revealed no weapon, the victim’s family had
removed all of the victim’s possessions from the apartment.
Robinson interviewed Whiteside’s companions who were present
during the stabbing, and none had seen a gun during the incident.
Robinson advised Whiteside that the existence of a gun was not
necessary to establish the claim of self-defense, and that only a
reasonable belief that the victim had a gun nearby was necessary
even though no gun was actually present.
Until shortly before trial, Whiteside consistently stated to
Robinson that he had not actually seen a gun, but that he was
convinced that Love had a gun in his hand. About a week before
trial, during preparation for direct examination, Whiteside for the
first time told Robinson and his associate Donna Paulsen that he
had seen something “metallic” in Love’s hand. When asked about
this, Whiteside responded: If I don’t say I saw a gun, I’m dead.
Robinson told Whiteside that such testimony would be perjury
and repeated that it was not necessary to prove that a gun was
available but only that Whiteside reasonably believed that he was
in danger. On Whiteside’s insisting that he would testify that he
saw “something metallic” Robinson told him, according to
Robinson’s testimony:
[We] could not allow him to [testify falsely] because that would be perjury, and as
officers of the court we would be suborning perjury if we allowed him to do it; . . . I
advised him that if he did do that it would be my duty to advise the Court of what he
was doing and that I felt he was committing perjury. . . .
Robinson also indicated he would seek to withdraw from the
representation if Whiteside insisted on committing perjury.
Whiteside testified in his own defense at trial and stated that he
“knew” that Love had a gun and that he believed Love was reaching
for a gun and he had acted swiftly in self-defense. On cross-
examination, he admitted that he had not actually seen a gun in
Love’s hand. Robinson presented evidence that Love had been
seen with a sawed-off shotgun on other occasions, that the police
search of the apartment may have been careless, and that the
victim’s family had removed everything from the apartment shortly
after the crime. Robinson presented this evidence to show a basis
for Whiteside’s asserted fear that Love had a gun.
The jury returned a verdict of second-degree murder.
. . .
[W]e [have] recognized counsel’s duty of loyalty and his
“overarching duty to advocate the defendant’s cause.” Plainly, that
duty is limited to legitimate, lawful conduct compatible with the
very nature of a trial as a search for truth. Although counsel must
take all reasonable lawful means to attain the objectives of the
client, counsel is precluded from taking steps or in any way
assisting the client in presenting false evidence or otherwise
violating the law.
. . .
p. 587
p. 588
The suggestion sometimes made that “a lawyer must believe
his client, not judge him” in no sense means a lawyer can
honorably be a party to or in any way give aid to presenting known
perjury.
Considering Robinson’s representation of respondent, . . . we
discern no failure to adhere to reasonable professional standards
that would in any sense make out a deprivation of the Sixth
Amendment right to counsel. Whether Robinson’s conduct is seen
as a successful attempt to dissuade his client from committing
the crime of perjury, or whether seen as a “threat” to withdraw from
representation and disclose the illegal scheme, Robinson’s
representation of Whiteside falls well within accepted standards of
professional conduct.
. . .
Nothing counsel did in any way undermined Whiteside’s claim
that he believed the victim was reaching for a gun. . . . We see this
as a case in which the attorney successfully dissuaded the client
from committing the crime of perjury.
. . .
Robinson’s admonitions to his client can in no sense be said to
have forced respondent into an impermissible choice between his
right to counsel and his right to testify as he proposed for there
was no permissible choice to testify falsely. For defense counsel
to take steps to persuade a criminal defendant to testify truthfully,
or to withdraw, deprives the defendant of neither his right to
counsel nor the right to testify truthfully. In United States v.
Havens, we made clear that “when defendants testify, they must
testify truthfully or suffer the consequences.” When an accused
proposes to resort to perjury or to produce false evidence, one
consequence is the risk of withdrawal of counsel.
. . . An attorney’s duty of confidentiality, which totally covers the
client’s admission of guilt, does not extend to a client’s announced
plans to engage in future criminal conduct. In short, the
responsibility of an ethical lawyer, as an officer of the court and a
key component of a system of justice, dedicated to a search for
truth, is essentially the same whether the client announces an
intention to bribe or threaten witnesses or jurors or to commit or
procure perjury. No system of justice worthy of the name can
tolerate a lesser standard.
[Authors’ Note: The Court found that the defendant had no
valid grounds for contesting his conviction.]
STEVENS, J., concurring in the judgment.
Justice Holmes taught us that a word is but the skin of a living
thought. A “fact” may also have a life of its own. From the
perspective of an appellate judge, after a case has been tried and
the evidence has been sifted by another judge, a particular fact
may be as clear and certain as a piece of crystal or a small
diamond. A trial lawyer, however, must often deal with mixtures of
sand and clay. Even a pebble that seems clear enough at first
glance may take on a different hue in a handful of gravel.
As we view this case, it appears perfectly clear that respondent
intended to commit perjury, that his lawyer knew it, and that the
lawyer had a duty — both to the court and to his client, for perjured
testimony can ruin an otherwise meritorious case — to take
extreme measures to prevent the perjury from occurring. The
lawyer was successful and, from our unanimous and remote
perspective, it is now pellucidly clear that the client suffered no
“legally cognizable prejudice.”
Nevertheless, beneath the surface of this case there are areas
of uncertainty that cannot be resolved today. A lawyer’s certainty
that a change in his client’s recollection is a harbinger of intended
perjury . . . should be tempered by the realization that, after
reflection, the most honest witness may recall (or sincerely believe
he recalls) details that he previously overlooked. . . . Thus, one can
be convinced — as I am — that this lawyer’s actions were a proper
way to provide his client with effective representation without
confronting the much more difficult questions of what a lawyer
must, should, or may do after his client has given testimony that
the lawyer does not believe.
p. 588
p. 589
CASE DISCUSSION QUESTIONS
1. The court assumes, without really discussing, that Robinson
“knew” Whiteside was going to commit perjury. Given the nature of
memory and how a person’s recollections can change over time, is it
fair to say that Robinson “knew” that Whiteside was lying when he
said he had seen something metallic?
2. What guidance does this case provide for other attorneys
confronted with a client who recalls events one way shortly after first
meeting with the attorney and then differently right before trial?
3. Why did Justice Stevens concur?
Because the absolute prohibition against offering testimony only
applies when the attorney knows the client is lying, several
commentators have suggested that attorneys often work very hard to
“not know.” The classic literary presentation of this approach occurred
in Robert Traver’s Anatomy of a Murder in the famous scene where
the defense attorney meets with a client who has been arrested for
murder. The attorney first describes the elements of an insanity
defense and then asks for the client’s version of the events.
While some lawyers may indeed coach their clients or tell them
that they do not want to know “if they did it,” these lawyers are not
fulfilling their duty to know all the facts and as a result they may fail
to provide the most effective defense. For example, while a client
charged with murder may indeed have “done it” by stabbing the victim
to death, telling all of the facts may reveal information that could lead
to a valid self-defense argument.
In situations in which a lawyer is concerned about a client’s
committing perjury, some state courts allow the attorney to call the
client to testify in a narrative fashion. Rather than having the client
respond to specific questions posed by the attorney, the attorney
simply asks the client to give an account of what happened. While the
attorney cannot ask any follow-up questions, the prosecuting
attorney conducts a regular cross-examination. Additionally, the
defense attorney may not refer to the client’s false testimony during
closing argument. The obvious problem with this procedure is that it
signals the judge and the opposing attorney, and possibly the jury,
that the client is lying.
Another option is for the lawyer to withdraw from the case when
the client insists on going ahead with perjured testimony. While the
Court in Nix v. Whiteside decided that there is no Sixth Amendment
claim of ineffective assistance of counsel when an attorney threatens
to withdraw from the case and expose the perjury if the client lies on
the stand, the Court did not decide whether such a withdrawal
violates the lawyer’s ethical duty not to reveal confidential information
or whether a refusal to call the defendant to the stand violates the
client’s due process right to testify in his or her own behalf.
Furthermore, lawyers are usually not allowed to withdraw from a case
without giving the judge a good reason for doing so. But the lawyer
cannot tell the judge the reasons for withdrawing without revealing
confidential information about the client.
p. 589
p. 590
In summary, the issue of client perjury presents many difficult
issues for the advocate. As one court has stated:
The problem of representing a defendant who insists on testifying falsely has been
called, correctly, one of the hardest questions a criminal defense lawyer faces. The
attorney is faced simultaneously with a duty to represent [the] client effectively, a duty to
protect [the] client’s right to testify, a duty not to disclose the confidential
communications of [the] client, a duty to reveal fraud on the court, and a duty not to
knowingly use perjured testimony. . . . Experienced and conscientious people can come
16
to different conclusions about the best way to deal with the conflict.
DISCUSSION QUESTIONS
9. Under the Model Rules an attorney has an obligation not to
present false evidence, but there is no affirmative obligation to reveal
truthful material facts unless asked to do so by the other side.
However, attorneys are under an obligation to disclose to the court
legal authority in the controlling jurisdiction that is directly adverse to
their clients’ position if it has not already been disclosed by the
opposing counsel. While there can be arguments as to why the
obligation only runs to law from the “controlling jurisdiction” (the state
or federal district in which the case is being tried) and what it means
for the law to be “directly” adverse, this raises an even more
fundamental question: If the goal of a trial is the search for truth, why
is there an affirmative obligation to reveal harmful law but not
harmful facts?
10. Former Supreme Court Justice Byron White said that if a
defense attorney “can confuse a witness, even a truthful one, or make
him appear at a disadvantage, unsure or indecisive, that will be his
normal course.” But is it ethical for an attorney to impeach the
credibility of a witness when the attorney knows that the testimony
given was in fact truthful? In essence, how is that different from
putting on the stand a client the attorney knows is going to lie?
e. Inadvertent Disclosure of Confidential Information
Under our adversarial system, attorneys are expected to serve as
zealous advocates for their clients. However, there may be times
when zealous advocacy should give way to other interests, such as
professionalism, respect for the courts, and respect for innocent
bystanders. We have already discussed the requirement that lawyers
not use false evidence to help win their cases. An additional limitation
on zealous representation involves the decision regarding what to do
with confidential information that the other side has inadvertently
disclosed.
Consider the following fact scenario. You are an attorney working
on a major case. Things are not going so well. Imagine your surprise
and delight when in opening the day’s mail you find the proverbial
smoking gun: the one piece of evidence that seals your opponent’s
fate and guarantees victory for your side. Unfortunately, the piece of
paper that contains this information is a letter from the opposing
attorney to her client. Apparently, this letter was accidentally
p. 590
p. 591
mixed in with a group of other documents that you had legitimately
received through a document request. Should you try to forget what
the letter said, notify the opposing attorney you have the letter, and
then return or destroy it at the opposing attorney’s direction? Or
should you remind yourself that you are a zealous advocate, that your
first duty is to your client, keep the fact that you have it secret, and
then use the information to win your case?
The receipt of such misdirected confidential information raises
this fundamental question: In an adversarial system, just how
adversarial do the adversaries have to be? Is there a place for
cooperation and even assistance when one adversary makes a
mistake?
When an adversary fails to make a crucial motion or ask the right
questions on cross-examination, it is not incumbent on the other
attorney to point out or even correct the mistake. However, in the area
of inadvertent disclosure of confidential information, ethics
committees and courts seem to have more trouble balancing the
requirements of zealous advocacy with those of professional
courtesy. As first fax and now e-mail have become major modes of
communication, the danger of misdialing a fax number or hitting
“reply all” rather than “reply” to an e-mail are obvious. But are these
errors fundamentally different from other mistakes that attorneys
make?
In 1992, the ABA issued an ethics opinion in which it stated that
the correct course was for the attorney to refrain from reading or
using inadvertently received confidential documents. Instead, the
attorney should notify the other lawyer and comply with any request,
17
such as to return the unread documents. However, many
commentators and state bar associations disagreed with that
approach. For example, the Massachusetts Bar Association’s
Committee on Professional Ethics advised that a lawyer’s primary
ethical duty is to zealously advocate his client’s interests, and
therefore the documents do not have to be returned. In 2005, the ABA
reversed its position. It withdrew its 1992 opinion and amended Rule
4.4 to require that the attorney who receives the materials must do no
more than notify the lawyer who inadvertently sent them. Under the
revised Rule, attorneys are no longer under an obligation to comply
with the other attorney’s request as to how to dispose of the
materials. However they are required to follow any applicable law,
such as the waiver provisions of the Federal Rules of Evidence Rule
18
26(b)(5)(B).
The Maine Board of Bar Overseers was presented with a similar
issue. The board was asked to decide whether an attorney (Counsel
Z) who had received several documents from Counsel A, one of which
was clearly privileged, could use that information and whether
Counsel Z had to notify Counsel A of the error. While the majority of
the board members agreed with the current ABA approach, that is,
that Counsel Z could use the document and the information
contained in it, the dissent called attention to the conflict between
what some of the commissioners said they would do as individuals,
that is, return the papers, and what they felt the ethical rules required.
Maine’s Rule 4.4 was
p. 591
p. 592
amended in 2002 to prohibit the attorney from using inadvertently
disclosed information.
In an article entitled “uncivil Law,” . . . former B.C. Law School Dean Dan Coquillette
states that the “legal culture” must change before the public’s perception of lawyers will
improve. He suggests that attorneys cannot separate their private views of justice and
morality from the standards which they practice as professionals:
One lawyer I talked to who was very embarrassed about the profession said to
me, “You know, one thing I keep telling myself is that being a lawyer is what I do. It’s
not what I am.” I said, “You’ve got it wrong. Aristotle said you are what you do every
day. You are the product of what you do day in, day out, hour in, hour out. You can’t
say that being a lawyer is what you do and not what you are. . . . There’s no way you
can split these roles. If you act like a jerk in court, you’re not an aggressive advocate
pursuing an assertive strategy — you’re just a jerk.”
The foregoing considerations suggest that conduct which attorneys would find
repugnant in their private lives, e.g., refusing to return something which clearly belongs
19
to another, should not be tolerated on a professional level.
DISCUSSION QUESTIONS
11.When an attorney receives information that the opposing side
has sent accidentally, that attorney has four options:
■ to refrain from reading the information, and then to contact the
opposing attorney and return the document unread;
■ to read the information, contact the opposing attorney, and
return the document;
■ to read the information, contact the opposing attorney, and
refuse to return the document; or
■ to read the information and use it.
Given our adversarial system and your own sense of justice, which
approach do you think is best?
12. Attorney White represents the plaintiff, who was injured in an
automobile accident. She and her client have decided to settle the
case if they can obtain at least $200,000. The settlement talks are set
to begin tomorrow, and her strategy is to start by asking for
$300,000, hoping to end up at $200,000. As attorney White is
reviewing the files in preparation for the settlement talks, she
discovers a one-page fax that she had not noticed before. It is from
the defendant’s insurer and was obviously intended to reach the
defendant’s attorney. It contains just one line: “Offer $100,000, but
you have authority to settle for up to $500,000.”
a. What should attorney White do?
b. Do you think that it should matter whether the fax was
intermixed with other documents?
p. 592
p. 593
c. What if attorney White was wandering by the fax machine as it
came in? As she pulled it out, she saw the cover sheet that
contained the following language:
Privileged and Confidential — All information transmitted
hereby is intended only for the use of the addressee(s) named
above. If the reader of this message is not the intended
recipient or the employee or agent responsible for delivering
the message to the intended recipient(s), please note that any
distribution or copying of this communication is strictly
prohibited. Anyone who receives this communication in error
should notify us immediately by telephone and return the
original to us at the above address via the U.S. mail.
The cover sheet showed that the fax was to be sent to the
opposing attorney, but the fax number was for Ms. White’s office.
What should she do?
13. How do you think the situation should be handled when the
inadvertently sent e-mail is from the client and not the attorney?
Recently, a defendant’s attorney sent an e-mail to the opposing
attorney. He blind copied his own client. The client responded to the
e-mail by hitting the Reply All button, thinking he was replying to his
attorney only. Of course, instead the e-mail was sent to the opposing
attorney as well. Do you think the opposing attorney should be able to
use the contents of the e-mail at trial or should it be excluded as
protected by the attorney-client privilege? Why? What should
attorneys do to prevent this type of situation from arising in the
future?
2. Conflict of Interest
In an adversarial system, an attorney may not represent both sides.
By representing both the plaintiff and the defendant in a negligence
action, or acting as both prosecutor and defense attorney in a
criminal case, an attorney would have a clear conflict of interest. Any
action that would help the plaintiff or the government would at the
same time hurt the defendant.
However, many conflicts are not this obvious. Take, for example, a
situation in which the chief executive officer (CEO) of a corporation
comes to the corporation’s attorney for advice. Is the corporation’s
attorney supposed to be representing the interests of the CEO, the
interests of the board of directors, the interests of the employees, or
the interests of the shareholders?
Conflicts of interest can generally be divided into two categories.
The first involves situations in which lawyers have a personal or
business interest that suggests they cannot give their undivided
loyalty to a client. The second involves either present or past client
representation that presents a conflict with the representation of a
new client.
Conflicts of the first type can occur when a lawyer is related to
another lawyer who represents the opposite side of a case. Other
examples include entering into certain types of business relationships
with clients, preparing instruments for a client that give some benefit
to the lawyer or a family member of the lawyer (such as a bequest in
a will), providing financial assistance to a client in connection with
pending litigation, and accepting compensation from third parties.
Each of these situations poses either a real or a potential conflict of
interest.
p. 593
p. 594
Figure 14-3 Personal Conflict
As an example of the first type of conflict, assume Mrs. Abbot is
an attorney working for a defendants’ firm. Her husband is an
attorney who works for a plaintiffs’ firm. One of Mr. Abbot’s clients is
suing the local grocery store for allegedly selling tainted meat. Mrs.
Abbot represents the grocery store. See Figure 14-3. Mr. and Mrs.
Abbot had been hoping for some time to get away from the pressures
of work for a week or so, but their lack of finances was standing in
their way. If Mr. Abbot wins his case against the grocery store
(through either a settlement or a court judgment), he will earn 33
percent of the amount awarded to his client. Defendants’ attorneys,
however, usually receive a fee that does not vary based on whether
their clients win. Can you see any potential conflict of interest? Would
anyone knowing all the facts think that perhaps Mrs. Abbot might not
be quite as diligent in her representation of the grocery store as she
would be if another attorney were representing the plaintiff? In
addition, do you think anyone might be concerned that in a careless
moment either Mr. or Mrs. Abbot might let some confidential
information slip?
DISCUSSION QUESTION
14. In Chapters 12 and 13, we mentioned the Ferguson case. A
white police officer shot and killed a young black man. The local
prosecutor convened a grand jury to decide whether the officer
should be charged with a crime. (As you may recall, the grand jury
determined that there was insufficient evidence to believe a crime
had been committed.) Many people felt that the governor should have
brought in a special prosecutor because it was a conflict of interest
for the local county prosecutor to consider potential charges against
local law enforcement officers.
a. Five members of McCulloch’s immediate family were, or had
been, police officers, and his father had been killed by a young
black man. Do you think an independent prosecutor should
have been appointed? Why or why not?
b. Do you think there is an inherent conflict of interest for any
local prosecutor to handle a case involving alleged police
misconduct? Why or why not?
Because of the ever-increasing number of women entering the
legal profession and because of the variety of lifestyle choices other
than traditional marriage that are becoming commonplace, one type
of personal conflict that we may expect to see more frequently is the
one created when the opposing attorneys share a close personal
relationship. One such case was Commonwealth v. Croken.
p. 594
p. 595
Commonwealth v. Croken
432 Mass. 266, 733 N.E.2d 1005 (2000)
SPINA, J.
The defendant, Richard H. Croken, was convicted on two
indictments charging forcible rape of a child under sixteen years,
and one indictment charging indecent assault and battery on a
child under fourteen years. Represented by new counsel on appeal
the defendant filed a motion for a new trial raising claims . . . that
trial counsel was impaired by a conflict of interest due to an
undisclosed intimate relationship he had at the time of
representation with an assistant district attorney (to whom he is
now married) employed by the office which prosecuted the
defendant. The motion was denied by the trial judge without an
evidentiary hearing. [We] remand the case to the Superior Court for
an evidentiary hearing on that motion.
We summarize the evidence. . . . The defendant frequently
babysat for the victims, whom we shall call Steve and Chris. Steve
and Chris are cousins, and they are related to the defendant by
marriage. One night when Chris was eight years old he slept at the
defendant’s home during a February vacation. The defendant
fondled the boy’s penis during the night and performed fellatio on
him. Chris struck the defendant, then ran into the bathroom. The
next morning the defendant told Chris not to tell anyone what
happened or he would get hurt and disappear, and his mother
would never find him. On several other occasions the defendant
put his fingers or his penis into Chris’s anus. When Chris was ten
or eleven years old the defendant again fondled his penis and
performed fellatio on him during the night. He also put his penis
into the boy’s anus. Chris first disclosed these events after Steve
made a similar disclosure in 1993.
. . .
Attorney Robert LaLiberte was appointed to represent the
defendant from his arraignment in the District Court through
sentencing in the Superior Court and until August 13, 1996, when
appellate counsel was appointed. For much if not all of that time,
LaLiberte was involved in a close relationship with an assistant
district attorney whom we . . . shall call Jane Doe.
Doe was employed as an assistant district attorney for the
Plymouth district. . . . At the start of LaLiberte’s representation, one
of Doe’s colleagues was James M. Sullivan, the assistant district
attorney in Plymouth County who was responsible for prosecuting
the defendant throughout the proceedings in the trial court. . . . Doe
and LaLiberte lived together during a portion of the time that
LaLiberte represented the defendant.
Much more than this we do not know. Nor, apparently, does the
defendant, whose affidavit states that he knew during the
representation that LaLiberte had a girl friend with whom he was
living, but that he did not know her name or her occupation. The
defendant avers that he would never have consented to LaLiberte’s
representing him had he known that she worked for the district
attorney’s office for the Plymouth district. He became aware of this
fact only by chance. His appellate counsel was speaking casually
one day at a courthouse with an assistant district attorney, who
informed her that Doe and LaLiberte were now married. . . .
Appellate counsel investigated and brought to light some of the
few details that are known.
. . .
At the time LaLiberte represented the defendant, the Canons of
Ethics and Disciplinary Rules were still in effect. Disciplinary Rule
5–101(A), as appearing in 382 Mass. 779 (1981), provided: “Except
with the consent of his client after full disclosure, a lawyer shall not
accept employment if the exercise of his professional
p. 595
p. 596
judgment on behalf of his client will be or reasonably may be
affected by his own financial, business, property, or personal
interests.” A lawyer’s personal interests surely include his interest
in maintaining amicable relations with his relatives, his spouse,
and anyone with whom he is comparably intimate. This interest is,
of course, often significantly pecuniary in character, but it also has
irreducible emotional and moral dimensions, and it heavily bears
on how any ordinary human being goes about making important
decisions. It follows that in a case where a lawyer’s representation
of a client may be significantly limited by his ties to his relatives
and intimate companions, professional ethics are implicated just
as they would in a case where the lawyer represents a second
client with litigation interests potentially adverse to those of the
first client.
. . .
Before agreeing to represent the defendant, LaLiberte should
have determined whether he reasonably believed his
representation would be adversely affected by his relationship with
Doe. If he concluded that it would, then he should have withdrawn
from the case. If, on the other hand, he determined that he could
represent the defendant vigorously, LaLiberte should then have
asked the defendant whether he consented to being represented
by him in light of his relationship with Doe. Informed consent
would of course include disclosure of the fact that Doe was an
assistant district attorney who worked in the same office as the
prosecutor who was trying to convict the defendant.
. . . Although factually underdeveloped, the papers demonstrate
sufficient basis for a reasonable belief that the core of the
attorney-client relationship might have been impaired, and that
some probing of the matter by way of an evidentiary hearing was
required. . . .
Marital and similar intimate relationships between lawyers have
potential for creating unique problems. “The marriage relationship
may be conducive to inadvertent breaches of confidentiality. A
spouse may have knowledge of out-of-town investigative trips at or
around the time of preparation for a particular case; clients and
witnesses may contact the lawyer at home or leave messages on
the home answering machine that may reveal a tactic or a
confidence. Working papers left at home or work performed at
home may reveal confidences of a client. The needs of a lawyer to
work early or late or on weekends may give rise to the need for
explanation in a marriage relationship that could inadvertently
reveal client confidences or secrets.” ABA Criminal Justice Section,
Ethical Problems Facing the Criminal Defense Lawyer at 248
(1995). In addition, a “potential conflict of interest that may arise
can be financial or personal. A district attorney or public defender
may have a special interest in the outcome of a case based on a
concern for a promotion or political benefit for one’s spouse. A
lawyer’s loyalty to a client may be impaired by a personal interest
in the success of a spouse. . . .” Id. at 249. We see no appreciable
difference between marriage and other intimate relationships in
this regard.
The . . . matter is remanded to the Superior Court for an
evidentiary hearing consistent with this opinion.
So ordered.
CASE DISCUSSION QUESTIONS
1. What is the danger to a client when his or her attorney is having
a personal relationship with another attorney who works for the same
organization that is prosecuting the client?
2. Do you think this case would have been decided differently if
Jane Doe had been the prosecuting attorney instead of simply being
an attorney working in the office?
p. 596
p. 597
3. The defendant stated that he would never have retained
attorney LaLiberte as his attorney had he known of LaLiberte’s and
Ms. Doe’s relationship. Why is this statement and the attorney’s total
failure to reveal the potential conflict not enough to form the basis for
a new trial?
4. How is a client ever truly to know whether confidences and
secrets were shared if the majority of the evidentiary hearing is based
on the testimony of the two individuals who have the alleged conflict?
The second type of conflict of interest occurs when the attorney
has information about the client on the opposite side of the case and
therefore may know something that will be detrimental to that
person. For example, assume attorney Smith worked for Mr. Brown
when he was getting a divorce. During the divorce proceedings,
attorney Smith naturally learned about Mr. Brown’s financial state,
including his partnership interest in a local gymnasium. It is now two
years later, and one of Mr. Brown’s partners has approached the firm
seeking representation in a case he wants to bring against Mr. Brown.
If attorney Smith is allowed to take the case, his knowledge of Mr.
Brown’s finances that he gained while he represented him in his
divorce might put Mr. Brown at an unfair disadvantage.
As you can see, client confidentiality and conflicts of interest are
very closely related. In the situation involving Mr. and Mrs. Abbot and
the Croken case, there is the fear that confidentiality might be
breached because of the close relationship between the attorneys
representing the two sides. In the situation involving information
gained from a client, the fear is more real, as attorney Smith actually
knows confidential information and the only issue is whether he
might use it against his former client. Because of this possibility, the
ethics codes require that attorney Smith either obtain Mr. Brown’s
consent to proceed as the attorney representing the partner or resign
from the case. In addition, all other attorneys at attorney Smith’s firm
would be barred from representing Mr. Brown’s partner.
To summarize, in cases of actual conflict, an attorney can never
represent both sides. In situations involving potential conflict, a court
might allow the representation so long as the client consented after
being fully informed of the potential problems. However, the court
could still disallow the representation if the court thought that there
was in fact an actual conflict or that the client had not been fully
informed.
DISCUSSION QUESTIONS
15. Why should Mr. Brown’s partner be penalized in his choice of
attorney just because attorney Smith happened to represent Mr.
Brown years ago in an unrelated matter?
16. Model Rule 1.7 states that “notwithstanding the existence of a
concurrent conflict of interest . . . a lawyer may represent a client if
the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation.” Is that a bit like asking the fox
to guard the hen house?
D. ACCESS TO JUSTICE
In this chapter we have discussed the key role lawyers play in the
adversary system. But what if no lawyer wants to take the person’s
case? Can a lawyer be
p. 597
p. 598
forced to represent a guilty client or to advocate for a cause that is
contrary to the lawyer’s personal beliefs? What if a person cannot
afford to hire a lawyer? While the Constitution guarantees the right to
an attorney in criminal matters, that is not true in civil cases. In this
section we will explore these issues of access to justice.
1. Providing Services to Unpopular Clients and Causes
Generally, lawyers are free to accept or reject clients. However,
lawyers who work for others, whether it is in a law firm, public agency,
corporation, or advocacy group, generally lose the ability to pick and
choose the individuals they wish to represent. Perhaps the most
obvious example of this is the lawyer who works for the public
defenders’ office representing individuals who have been charged
with a crime. That lawyer is not free to represent only those whom
the lawyer believes are innocent.
One of the most common questions asked of lawyers is, “How can
you defend a guilty client?” There are several possible responses to
20
this question. The first response is to point out that guilt is a legal
concept that is determined by a judge or a jury and not by the lawyer.
A person is not considered guilty until after the trial has been
completed. Second, in representing a guilty client, the attorney is just
playing a role, similar to the actor who plays the part of the villain in a
movie. Third, many believe that the very legitimacy of our adversary
system depends upon having lawyers willing to represent the “guilty”
as well as the innocent. If criminal defendants cannot find attorneys
willing to represent them, “the foundation of the judicial system is
eroded and the lawyers become the judges of guilt or innocence by
21
their very decision to accept or reject those criminal clients.” The
importance of attorneys being willing to accept court appointments is
stated in Model Rule 6.2: “A lawyer shall not seek to avoid
appointment by a tribunal to represent a person except for good
cause.” Examples of good cause include where the lawyer is not
competent to handle the particular type of case or the representation
would result in a conflict of interest.
One exception to Rule 6.2 provides that an attorney may decline
representation if “the client or the cause is so repugnant to the lawyer
as to be likely to impair the client-lawyer relations or the lawyer’s
22
ability to represent the client.” Because of this provision, no doubt
there are limits as to the types of situations in which a court would
order an attorney to represent a client. For example, it is not likely that
a court would force an African-American attorney to represent a
member of the Ku Klux Klan accused of placing a burning cross on
the front lawn of an integrated church. Similarly, a court would not
order a Jewish attorney to defend a Nazi organization that wished to
march in a town parade.
p. 598
p. 599
Nonetheless, some attorneys who have found themselves in such
situations have voluntarily chosen to represent such unpopular
clients in order to defend constitutional principles, such as freedom of
23
speech and assembly.
DISCUSSION QUESTION
17. Attorney Judith Nathanson is an attorney who earned her law
degree with the purpose of helping to advance the status of women
in the legal system. In her divorce practice, she only represents wives.
As she only has a certain amount of time and energy to devote to her
clients, she feels it essential to use her resources to redress social
and legal wrongs done to women. Therefore, when Mr. Stropnicky
asked her to represent him in his divorce, she refused. Should she be
required to represent him? Should it matter that in his marriage he
had assumed the role of homemaker and childcare giver? Is this
analogous to an attorney with white supremacist views arguing that
she should be able to decline to represent nonwhite clients?
NETNOTE
The ABA maintains a list of resources for access to justice
initiatives at
www.americanbar.org/groups/legal_aid_indigent_defendants/res
ource_center_for_access_to_justice/
2. Making Legal Services Available to Low-Income Clients
There is an increasingly large unmet need for legal services,
particularly among the poor and middle class. The Legal Services
Corporation reported in 2016 that 86 percent of civil legal problems
reported by low-income Americans received inadequate or no legal
24
help.
Legal services agencies were created in the 1970s by the federal
government to serve the poor, but they have not been able to keep up
with this demand for legal assistance. They lack sufficient funding
and typically can represent only the very poor. Attorney pro bono work
is also not filling this need for legal services. Rule 6.1 of the Model
Rules of Professional Conduct states that every lawyer should “aspire
to render at least fifty hours of pro bono publico legal services per
year,” but this provision has not been adopted in all states, and even in
the ones
p. 599
p. 600
where it has, the rule is aspirational only. It does not require attorneys
to provide pro bono representation.
Funding Legal Aid offices and encouraging attorneys to provide
pro bono services are just two of the approaches being taken to
assist indigent clients in civil matters. Another approach has been to
assist in self-help. One example of this is courthouse-created
information packets with directions for how to fill out forms and how
to file complaints in small claims court. The packets are made
available at courthouses, in libraries, and in other convenient
locations. Another example is North Carolina Legal Aid’s Lawyer on
the Line program, which matches indigents with legal needs with
attorneys who can provide basic legal advice that will help such
clients resolve the issues themselves. Montana has established a
court mediation program for self-represented litigants.
Some states are expanding limitations on who can provide legal
services to indigent clients. Two states, California and Arizona, have
carved out specialized areas for document preparers. California has
established a position known as the unlawful detainer assistant
(UDA). UDAs are authorized to assist landlords and tenants during
eviction proceedings. The state also allows for legal document
assistants (LDA). Practitioners in both roles must satisfy very basic
educational requirements and be registered with the state. UDAs and
LDAs cannot offer legal advice, but they can assist consumers in
filling out complex forms. However, new proposals would allow legal
25
technicians to offer legal advice. Arizona has legal document
preparers (LDP), who can also give general legal information but not
legal advice. LDPs must meet certain education or work experience
requirements and pass an examination that includes “legal
terminology, client communication, data gathering, document
preparation, ethical issues, and professional and administrative
26
responsibilities pertaining to legal document preparation.”
A different and more expansive approach to allowing nonlawyers
to deal directly with the public is occurring in the states of
Washington and Utah. In 2012, the Washington Supreme Court
adopted a rule that authorizes nonlawyers meeting certain
educational requirements to advise and assist clients in approved
practice areas. Known as limited licensed legal technicians (LLLT),
these providers have begun to work in family law, the first practice
area chosen for the new licenses.
A similar scheme is being passed in Utah, under the name
27
Licensed Paralegal Practitioner (LPP). Similar to the Washington
approach, LPPs in Utah can provide assistance to clients with family
law, eviction, and debt collection. The first LPPs were licensed in Utah
in 2019.
The traditional method that attorneys have used in order to
provide representation to those who have been injured and who could
not otherwise afford an attorney is the contingency fee. Clients can
hire an attorney and only owe a fee “contingent upon” the attorney’s
winning the case. If the plaintiff loses, the
p. 600
p. 601
plaintiff is responsible for the costs of litigation but owes the attorney
nothing. If the plaintiff wins, however, then the attorney’s fee is a
percentage of what the plaintiff has won. Typically, that amount is
33% of the plaintiff’s recovery. Because typically lower-income clients
do not have enough money to pay an attorney on an hourly basis,
many argue that contingency fees make it possible for those clients
to pursue claims that they would otherwise have to abandon.
However, some have questioned if it is ethical for an attorney to
take one-third of the money that would otherwise be going to
compensate the client for his or her injuries. If the goal in awarding a
plaintiff money, either through a jury award or settlement, is to
compensate the plaintiff fully for the plaintiff’s loss, that will not
happen if the attorney takes one-third of the payment. Consider the
following case and accompanying contingency fee agreement, shown
in Exhibit 14-1, found on page 604.
Attorney Goodman represented Donald Gagnon, who was severely
injured in a highway accident. At the time of the accident, Gagnon
was trying to help another motorist. The driver of a tractor-trailer had
pulled completely off the travel lane of the highway and was parked in
the breakdown lane. The driver had stopped because she had noticed
that the mud flaps on her truck were rubbing against her rear trailer
wheels. To help the woman, Gagnon pulled off the highway behind
the truck in the breakdown lane. He then went underneath the rear of
the trailer to attempt to correct the problem. While he was in that
position, Donald Shoblom, driving a loaded garbage truck, veered off
the highway into the breakdown lane and crashed into the tractor-
trailer. The woman was killed as the result of the collision, and
Gagnon sustained massive injuries, leaving him a paraplegic.
Gagnon v. Shoblom
409 Mass. 63, 565 N.E.2d 775 (1991)
On June 9, 1988, at 1 pm, a truck operated by Donald Shoblom
crashed into a parked trailer, killing Susan J. Thompson and
severely injuring Donald Gagnon. Gagnon retained Attorney Alan R.
Goodman in pursuit of his claim against Shoblom and Shoblom’s
employer, and for his workers’ compensation claim. Gagnon and
Mr. Goodman signed a contingent fee agreement in which Gagnon
1
agreed that Mr. Goodman’s compensation would amount to 33 ⁄
3
percent of the recovery in his personal injury claim. The entire
contingent fee agreement is set forth as an appendix to this
opinion.
Mr. Goodman commenced an action and, after extensive
discovery and investigation, a structured settlement of $2,925,000
(present cash value) was reached.*
A Superior Court judge conducted a hearing and indicated his
approval of the terms of the settlement agreement except the
1
provision for recovery of 33 ⁄ percent of the settlement which
3
amounted to $975,000. The judge called this fee unconscionable.
There was an evidentiary hearing on the reasonableness of the
settlement agreement. Gagnon testified that he voluntarily signed
the contingent fee agreement and that he
p. 601
p. 602
was satisfied that Mr. Goodman had earned his agreed fee.
Additionally, a leading member of the bar who specializes in
prosecuting personal injury claims for plaintiffs testified as to the
reasonableness of the fee. The attorney who defended the action
in the case testified as to the impressive work performed by Mr.
Goodman. There was no evidence tending to prove that the fee
was anything but reasonable.
However, the judge filed a carefully crafted memorandum and
order in which he ordered payment of legal fees to Mr. Goodman
as follows: “Mr. Goodman handled the case expeditiously and well.
He obtained what I consider to be a very fine result. As stated
above, he is entitled to handsome compensation.
“Taking those factors into account, as well as Mr. Goodman’s
ability and reputation (both of which are good) the demand for his
services by others, the time reasonably spent, the expenses
reasonably incurred by him and the charges usually made for
similar services by others in Western Massachusetts, I am
1 3
satisfied that the 33 ⁄ percent maximum rate provided for in his
contingent fee agreement should only be applied to the first
$300,000.00 of the recovery. A rate of 25 percent of the next
$1,200,000.00, plus a rate of 20 percent of all amounts in excess
of $1,500,000 would be reasonable. At those rates Mr. Goodman is
entitled to an attorney’s fee of $695,000.00, which I consider to be
‘handsome’ compensation. Anything in excess of that amount
would be unreasonable and excessive.”
We allowed Mr. Goodman’s request for direct appellate review
of the correctness of the judge’s order regarding the fee. We hold
that it was error for the judge to disapprove the agreed fee.
. . .
The courts are not powerless to act in disapproving a fee which
exceeds the percentage in the agreement, a fee to which the client
never agreed, or a fee which is plainly unreasonable. . . . However,
we need not discuss the court’s inherent power in this case
because no one is challenging the fee.
Accordingly, an order shall enter approving the entire
settlement, including the amount of compensation due to Mr.
Goodman under the contingent fee agreement.
So ordered.
GREANEY, J. (concurring). . . . I agree with the court that the
attorney’s fee in this case should not have been reduced. The
evidence before the judge sufficiently indicated that the contingent
fee agreement was reasonable “in light of the circumstances
prevailing at the time of [the] making [of the agreement].” This
conclusion is reinforced by the fact that the client, Gagnon, has
made no objection to the contingent fee agreement and has
affirmatively stated his satisfaction both with the work done and
the percentage charged by Goodman. It is also a consideration
that the one-third percentage has become institutionalized in the
practice of the litigation bar as the minimum rate to be charged in
the typical tort case. Change, if it is to come, should not come
suddenly and to the disappointment of longstanding expectations.
The judge, however, has touched upon a larger issue. His
memorandum frames that issue in this manner:
“Contingent fee agreements . . . serve a very beneficial public
purpose. They have been said to be the ‘poor man’s key to the
courthouse’ because they do provide a method whereby civil
claims can be filed and litigated by persons who would otherwise
be unable to afford the assistance of counsel. . . .
“I am satisfied (both on the basis of my own experience as a
practicing attorney and as a trial judge as well as by the evidence
presented at the hearings) that in the case of a civil tort action in
which damages are sought for personal injuries a contingent fee of
1 3
33 ⁄ % of the amount recovered is reasonable to a point;
depending (among other factors of course) upon the size of the
recovery ultimately obtained. I am also satisfied, however, that as
the size of the recovery (and hence the size of the fee) increases,
the
p. 602
p. 603
spread between the attorney’s fee and the fair value of the time,
effort and skill that he devoted to earning that fee widens — and at
some point the fee becomes unreasonable and even (if the spread
becomes wide enough) outrageous or unconscionable.
“One should not lose sight of the fact that under our law a
recovery for a personal injury is limited, at least in theory, to the fair
and reasonable value of the pain and suffering, mental anguish,
reasonable medical expenses, disfigurement, disability and lost
earning capacity, both past and future, sustained by the client.
However, attorney’s fees incurred by the client are not recoverable
in such a case, either as part of or in addition to his damages. Any
fee that the attorney exacts from the client under a contingent fee
agreement must therefore reduce the client’s compensation for his
injury below what is fair and reasonable. When, as in this case, the
injury sustained by the client is catastrophic, the amount of the
reduction can become enormous unless some rule of reason is
applied to the application of the contingent fee. It is, after all, Mr.
Gagnon and not Mr. Goodman who must spend the remainder of
his life confined to a wheelchair with no bowel or bladder control
and with constant dependence upon others to assist him in the
normal tasks of day-to-day living . . .” (Emphasis in original; citation
omitted).
. . .
At a time when the gap between the service and the fee in tort
cases appears to be becoming more and more pronounced, there
may be a need to establish a better sense of proportion. This case
is illustrative of the problem. The question raised by the judge
deserves honest debate.
CASE DISCUSSION QUESTIONS
1. Why did the Massachusetts Supreme Judicial Court think the
trial court had erred in disapproving the agreed-upon fee?
2. Mr. Gagnon received a structured settlement in this case. How
do you think that might have affected his ability to pay his attorney’s
fees?
3. Do you agree with the trial court judge that the percentage an
attorney earns should decrease as the size of the client’s award
increases? Why or why not?
4. Specifically, how do you answer the trial judge’s assertion that
“[a]ny fee that the attorney exacts from the client under a contingent
fee agreement must therefore reduce the client’s compensation for
his injury below what is fair and reasonable”?
5. What do you think of the contingency fee agreement in this
particular case? (See Exhibit 14-1 on page 604.) Given the facts
outlined before the case, it seems apparent that when Goodman had
his client sign the contingent fee agreement, he knew that the liability
aspect of Gagnon’s case would not be difficult to prove, that his
client’s injuries were catastrophic, and as Shoblom was employed as
a driver for a large corporate employer, that it was likely Gagnon
would receive a very substantial judgment or settlement from that
corporate employer.
6. In addition to representing Donald Gagnon, attorney Goodman
had also been retained to represent the administrator of the dead
woman’s estate in her claim for wrongful death and the dead
woman’s mother for her claim of negligent infliction of emotional
distress. Clearly, Goodman could make use of much of the
p. 603
p. 604
Exhibit 14-1 Contingent Fee Agreement
p. 604
p. 605
work he had already done on the Gagnon case in preparing those
additional cases, for which he was also charging a fee. Do you think
those clients should receive some sort of a discount for work that
had already been done and paid for?
CHAPTER SUMMARY
In this chapter we have focused on some of the most important
ethical and moral issues related to the role of attorneys in our
adversarial system of justice. We have seen how the need to protect
the interests of their clients may come into direct conflict with the
needs and even safety of others. Specifically, we examined these
conflicts in the context of client confidentiality, conflict of interest,
and access to justice.
In dealing with these issues, attorneys often have to choose
between competing values and interests. While the ABA and state bar
associations have addressed many of these issues in their ethical
guidelines, we saw that the provisions of these codes do not always
provide individual attorneys with the answers they need.
Clearly, knowing and following a code of ethics does not ensure
moral behavior. In fact, at times it could even be argued that it leads
to immoral or at least amoral behavior. However, if attorneys follow
general rules, the belief is that over the long run more morally right
than wrong choices will be made. The only other alternative is the
anarchy that would result if each individual attorney were allowed to
decide on a course of action based on his or her individual
conscience. A compromise position acknowledges that the rules are
meant to govern the “normal,” while attorneys must exercise
discretion in cases of the extraordinary.
We ended the chapter with a look at the issue of access to justice.
In this context we considered an attorney’s responsibility for taking
on unpopular clients and the contingency fee as a way to increase
access to justice for those who otherwise could not afford legal
services.
CRITICAL THINKING EXERCISES
1. As you can see, there is substantial disagreement as to when
an attorney should be required or even allowed to report a client’s
future crime. Do you think there are any instances when such
28
reporting should be required instead of merely permitted? Classify
each of the following according to whether you
p. 605
p. 606
think an attorney should be required to report the future crime,
allowed to do so at his or her discretion, or prohibited from disclosing
it at all. You should also consider whether the test should be a
subjective one, based on what the attorney actually thought was
likely to happen, or an objective test, based on what a reasonable
person would think would happen.
a. A deliberately wrongful act
b. Harm to a financial or property interest
c. Substantial harm to a financial or property interest
d. Any crime
e. A serious violent crime
f. Bodily harm
g. Substantial bodily harm
h. Death
i. Imminent death
2. In Belge (page 576), the principal harm had already been done.
The client had committed the crime of murder, and the girl was dead.
Nothing the attorney could do would change that. In Spaulding (page
580), the harm had also been done, but revealing it would serve to
save a life and would not lead to the client’s trial for murder. Suppose,
however, that a case arose in which the attorney had a chance to still
“save the girl” but that his actions would lead to the criminal
29
conviction of his client. Consider the following. On December 17,
Gary Krist went to the motel room of Barbara Mackle. He told her he
was a detective and that there had been an accident involving a
young man driving a white Ford. The young man was in the hospital
and asking for her. As her boyfriend owned a white Ford, she believed
Krist and opened the door. Krist entered brandishing a knife and
forced her into the backseat of his car where he then tied her up. After
driving her out into the country, he ordered her into a coffin-like box,
equipped with a method for getting air, and buried her alive. He then
called her father, told him he had kidnapped his daughter, and
demanded $500,000 in ransom. Arrangements were made for Krist to
receive the money. On December 19 following Krist’s instructions, the
father left the money in a suitcase. Krist retrieved the money and left
without revealing the whereabouts of Barbara. Two days later on
December 21 Krist was arrested when he tried to spend part of the
money in order to rent a boat and motor at a local marina.
Assume that Krist meets with his court-appointed attorney and
reveals where Barbara is located. He thinks she is still alive but does
not know. He said that he left her with a limited amount of food and
water but does not know how long it will last. The attorney
encourages Krist to tell the police where Barbara is buried. Krist
refuses to do so, feeling that so long as they do not find Barbara, the
police have no direct proof that he was the kidnapper. What should
the attorney do?
3. Consider the case of Leo Frank. Although innocent, he had
been convicted of the rape and murder of a 14-year-old girl. While he
was waiting to be executed, an attorney, who was not involved in the
Frank case, found out from a prospective client the name of the true
murderer. The attorney never revealed
p. 606
p. 607
the information, and Frank was killed when a mob kidnapped him
from prison and lynched him. Later in his memoirs, the attorney
wrote, “I am one of the few people who know that Leo Frank was
innocent of the crime for which he was convicted and lynched. . . .
[B]ut the information came to me in such a way that, though I wish I
could do so, I can never reveal it so. . . . We lawyers . . . take an oath
never to reveal the communications made to us by our clients; and
this includes facts revealed in an attempt to employ the lawyer,
30
though he refuses the employment.” If you had been the attorney
who found out that Leo Frank was not guilty, what would you have
done?
4. William Macumber was on trial for first-degree murder. His
attorney wanted to call attorney Brown to the stand. Attorney Brown
had been the attorney for James Smith in a different murder trial.
During his representation of Smith, Smith had confessed to attorney
Brown that he was the murderer and had acted alone in the case for
which Macumber was on trial. Sometime prior to the Macumber trial,
Smith died. After his death, attorney Brown approached Macumber’s
attorney and volunteered to testify as to what Brown had told him.
31
Should the court allow this testimony?
5. John Brown was charged with being an accessory to an armed
robbery. When he met with his attorney, he asked him to hold his cell
phone for safekeeping. The attorney took the phone and locked it in
one of his desk drawers. Two weeks later, Brown’s ex-girlfriend told
the police where the cell phone was located. When they arrived at the
attorney’s office and asked for the phone, he handed it over. They did
not have a search warrant. The police searched the contents of the
cell phone and found evidence harmful to Brown. The prosecuting
attorney would like to use this information at Brown’s trial. Brown’s
new attorney has filed a motion asking that the contents of the cell
phone be suppressed. If you were the trial judge, how would you rule?
Why?
6. In 2016, hackers released 11.5 million documents they had
obtained from a Panamanian law firm, Mossack Fonesca. These
documents became known collectively as the Panama Papers. A
number of the documents were labeled “Attorney-Client Privilege.”
Does the publication of these documents on the Internet mean that
attorney-client privilege is waived, even though the information was
32
released through illegal means?
WEB EXERCISES
1. Go to bernabepr.blogspot.com and select a current ethical issue
that interests you. For example, if you choose confidentiality, you
will find that many problems are being created by the ever-
increasing use of devices such as smartphones and the
staggering amount of communication carried on through e-mails,
blogs, text messaging, and Twitter.
p. 607
p. 608
What area did you research? Be prepared to discuss what you
found with your classmates.
2. The American Bar Association provides links to the rules of
professional conduct for all states. Go to
www.americanbar.org/groups/professional_responsibility/resou
rces/links_of_interest and find your state. What do your state’s
rules say about the obligation of the attorney to maintain client
confidences? When may an attorney reveal a confidence? Are
there any situations when an attorney must reveal a confidence?
REVIEW QUESTIONS
Pages 567 through 572
1. Describe the adversarial system. How does it vary from a system
based on the inquisitorial model?
2. Explain the relationship between the rights contained in the
Fourth, Fifth, and Sixth Amendments and our adversarial system.
3. Some have described litigation as a battleground. Why is that?
Pages 572 through 593
4. Why does our legal system place such a high value on attorneys
maintaining their clients’ confidences?
5. How does the attorney-client privilege differ from the ethical rules
regarding confidentiality?
6. Mrs. Smith, who is seeking a divorce, entered attorney Black’s
office for her first interview. Because she was very disturbed over
the prospect of a divorce, Mrs. Smith brought her best friend
along with her to the interview. Should attorney Black let Mrs.
Smith’s best friend sit in on the interview? Why?
7. At a cocktail party attorney Sims sees one of his firm’s clients
kissing someone not the client’s wife. At the client’s divorce
hearing could attorney Sims be required to testify about what he
saw at the party? Could attorney Sims ethically tell his own wife
about what he saw at the party? Why?
8. For each of the following discuss whether you think the attorney
should reveal the information:
a. A client tells her attorney that she murdered her husband.
b. A client tells her attorney that she is planning to murder her
husband.
c. A client tells her attorney that at the end of the week she is
planning to steal all of her employer’s cash receipts as she has
access to his safe.
d. A client tells her attorney that her husband is so upset with
how the litigation is going that he is planning to kill the
opposing attorney.
e. A client tells her attorney that it was she, and not the woman
who is on trial for murder, who killed the victim.
9. If a client tells an attorney she is going to commit perjury, what
are the attorney’s options?
p. 608
p. 609
10. If an attorney suspects but does not know that a client is going to
commit perjury, what should the attorney do? Does it matter if the
client is the defendant in a criminal case?
11. What should attorneys do when they inadvertently receive
confidential information from the other side?
12. Give some examples of when an attorney might feel a conflict
between her duty of loyalty to her client and other values she
holds.
Pages 593 through 599
13. What are the two major causes of a conflict of interest?
14. In each of the following situations determine whether you see any
potential conflict of interest problem.
a. Sam was injured in an automobile accident when the car he
was riding in was struck in an intersection by a pickup truck.
Both Sam and the driver of the car want attorney Black to
represent them against the driver of the pickup truck.
b. Sara and Emily were arrested for the attempted robbery of
United Bank. They would like attorney Jones to represent both
of them.
c. Attorney Lacy is the prosecuting attorney for the murder trial
of Tom Black. Jim White represents the defendant. Halfway
through the murder trial, attorney Lacy and attorney White
start dating.
Pages 599 through 605
15. What reasons do attorneys usually give for why they are willing to
represent guilty or unpopular clients?
16. What is a contingency fee and how does it arguably increase
access to justice?
1
For a fascinating discussion of the events that led up to this case, see Richard Zitrin & Carol
M. Langford, The Moral Compass of the American Lawyer (1999).
2
For further discussion of this concept, see Ethics + a changed world = Neoethics, available
at bucklin.org/articles/legal-ethics/ethics-a-changed-world-neoethics/ (last visited August 1,
2019).
3
Swidler v. U.S., 524 U.S. 399 (1998), discussing whether communications made by White
House counsel Vincent Foster, Jr., and his lawyer, James Hamilton, made nine days before
Foster’s suicide, remained confidential. The Court determined the communications were still
protected by the attorney-client privilege.
4
2 Trial of Queen Caroline 83 (1879) (emphasis added).
5
SCR (2017).
6
Tex. Disciplinary R. Prof. Conduct (2019).
7
Model Rules of Professional Conduct, Rule 1.6, Comment 6.
8
Zitrin & Langford, supra, at 19.
9
Spaulding v. Zimmerman, 116 N.W.2d 704, 707 (Minn. 1962).
10
Legal Ethics, Narrative, and Professional Identity: The Story of David Spaulding, Timothy
W. Floyd, John Gallagher, 59 MERLR 914, 951 (2008).
11
Purcell v. District Attorney for the Suffolk District, 676 N.E.2d 436 (Mass. 1997).
12
Id. at 440.
13
733 N.E.2d at 1141 (Pfeifer, J., concurring in part and dissenting in part).
14
Bronston v. U.S., 409 U.S. 352, 355 (1973).
15
See Monroe Freedman, Lawyers’ Ethics in an Adversary System (1975).
16
Maddox v. State, 613 S.W.2d 275, 280 (Tex. Crim. App. 1980).
17
ABA, formal ethics opinion No. 92–368.
18
Fed. R. Evid. 25(b)(5)(B) (2019).
19
Maine Bar of Overseers of the Bar Opinion No. 146 (1994); withdrawn by Opinion No. 172
(2000); http://www.mebaroverseers.org/attorney_services/opinion.html?id=89776.
20
For an interesting discussion of this topic found in the world of fiction, you might enjoy
reading A Cinderella Affidavit by Michael Fredrickson. In that novel, when discussing the
difficulties that confront attorneys, the main character concludes that attorneys must
proceed on “the curious faith that the localized permissible evil we do on behalf of our clients
will dissolve in the higher justice served by the adversary system.” Id. at 446.
21
Stephen Jones, A Lawyer’s Ethical Duty to Represent the Unpopular Client, 1 Chap. L. Rev.
105, 107 (1998).
22
Model Rule 6.2(c).
23
See, for example, the case of Anthony Griffin, an attorney for the NAACP who represented
the Grand Dragon of the Texas Knights of the Ku Klux Klan, and David Goldberger, an ACLU
lawyer who defended the Nazis’ right to march in Skokie, Illinois.
24
Access to Justice Commissions: Increasing effectiveness through adequate staffing and
funding. Report Compiled for the ABA Resource Center for Access to Justice Initiatives
(2018). Last accessed on August 3, 2019, at
www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sc
laid_atj_commission_report.pdf.
25
http://www.abajournal.com/news/article/california-bar-considers-legal-technicians-
nonlawyer-ownership-of-law-firms (last visited August 3, 2019).
26
Arizona Code of Judicial Administration, Part 7: Administrative Office of the Courts,
Chapter 2: Certification and Licensing Programs, Section 7-208: Legal Document Preparer
www.azcourts.gov/Portals/26/ACJA%20Code/7-208_Amend_2013.pdf (last visited August 3,
2019).
27
Information about Utah’s LLP Program can be found at www.utahbar.org/licensed-
paralegal-practitioner/ (last visited August 3, 2019).
*The settlement called for immediate cash payment of $800,000 to Gagnon and . . . for
substantial annual payments to Gagnon for life and deferred payments to Gagnon and his
daughter.
28
See, e.g., the argument presented in Harry L. Subin, The Lawyer as Superego: Disclosure of
Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091 (July 1985), to the effect that in the
case of threatened criminal activity the rules should provide for mandatory disclosure
because the present rules give attorneys no guidance as to how and when to exercise their
discretion. Contrast this with the position of others who view the duty of confidentiality as a
sacred trust between attorney and client. Therefore, almost always the balance should be
tipped toward silence. This may cause individualized harm, but it will prevent harm to the
system as a whole. Allegiance to that system is viewed as necessary. Without the
maintenance of client confidences, the attorney-client relationship, the very foundation of the
adversary system, would be destroyed.
29
These facts are based on the case of Krist v. State, 179 S.E.2d 56 (Ga. 1970).
30
Arthur G. Powell, I Can Go Home Again 291 (1943).
31
These facts are based on State v. Macumber, 544 P.2d 1084 (Ariz. 1976).
32
Reevaluating Attorney-Client Privilege in the Age of Hackers, Anne E. Conroy, 82 BKNLR
1817 (2017).
p. 609
p. 611
The Constitution of the United
States
We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide
for the common defense, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.
Article I
Section 1. All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and
House of Representatives.
Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several
States, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State
Legislature.
No Person shall be a Representative who shall not have attained
to the Age of twenty five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to
their respective Numbers, which shall be determined by adding to the
whole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all
other Persons. The actual Enumeration shall be made within three
Years after the first Meeting of the Congress of the United States, and
within every subsequent Term of ten Years, in such Manner as they
shall by Law direct. The Number of Representatives shall not exceed
one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State
of New Hampshire shall be entitled to chuse three, Massachusetts
eight, Rhode-Island and Providence Plantations one, Connecticut five,
New-York six, New Jersey four, Pennsylvania eight, Delaware one,
Maryland six, Virginia ten, North Carolina five, South Carolina five, and
Georgia three.
When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.
Section 3. The Senate of the United States shall be composed of
two Senators from each State, chosen by the Legislature thereof, for
six Years; and each Senator shall have one Vote.
p. 611
p. 612
Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three
Classes. The Seats of the Senators of the first Class shall be vacated
at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration
of the sixth Year, so that one third may be chosen every second Year;
and if Vacancies happen by Resignation, or otherwise, during the
Recess of the Legislature of any State, the Executive thereof may
make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the
Age of thirty Years, and been nine Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President
pro tempore, in the Absence of the Vice President, or when he shall
exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.
Section 4. The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by
the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators.
The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall
by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a Majority of
each shall constitute a Quorum to do Business; but a smaller Number
may adjourn from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and under such
Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and, with the Concurrence of
two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members of
either House on any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid
out of the Treasury of the United States. They shall in all Cases,
except Treason, Felony and Breach of the Peace, be privileged from
Arrest during their Attendance at the Session of their respective
Houses, and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be questioned in any
other Place.
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments
whereof shall have been increased during such time; and no Person
holding any Office under the United States, shall be a Member of
either House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in the House
of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
p. 612
p. 613
Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States: If he approve he shall sign it, but if not
he shall return it, with his Objections to that House in which it shall
have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration
two thirds of that House shall agree to pass the Bill, it shall be sent,
together with the Objections, to the other House, by which it shall
likewise be reconsidered, and if approved by two thirds of that House,
it shall become a Law. But in all such Cases the Votes of both Houses
shall be determined by Yeas and Nays, and the Names of the Persons
voting for and against the Bill shall be entered on the Journal of each
House respectively. If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall have been presented
to him, the Same shall be a Law, in like Manner as if he had signed it,
unless the Congress by their Adjournment prevent its Return, in which
Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a
question of Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by
two thirds of the Senate and House of Representatives, according to
the Rules and Limitations prescribed in the Case of a Bill.
Section 8. The Congress shall have Power To lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United
States; To borrow Money on the credit of the United States; To
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes; To establish an uniform Rule of
Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States; To coin Money, regulate the Value
thereof, and of foreign Coin, and fix the Standard of Weights and
Measures; To provide for the Punishment of counterfeiting the
Securities and current Coin of the United States; To establish Post
Offices and post Roads; To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries; To
constitute Tribunals inferior to the supreme Court; To define and
punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations; To declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land
and Water; To raise and support Armies, but no Appropriation of
Money to that Use shall be for a longer Term than two Years; To
provide and maintain a Navy; To make Rules for the Government and
Regulation of the land and naval Forces; To provide for calling forth
the Militia to execute the Laws of the Union, suppress Insurrections
and repel Invasions; To provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as may
be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority
of training the Militia according to the discipline prescribed by
Congress; To exercise exclusive Legislation in all Cases whatsoever,
over such District (not exceeding ten Miles square) as may, by
Cession of particular States, and the Acceptance of Congress,
become the Seat of the Government of the United States, and to
exercise like Authority over all Places purchased by the Consent of
the Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings; — And To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as any of
the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the Year one thousand eight
hundred and eight, but a Tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person.
p. 613
p. 614
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or enumeration herein before directed to be
taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another; nor shall
Vessels bound to, or from, one State, be obliged to enter, clear, or pay
Duties in another.
No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and Account
of the Receipts and Expenditures of all public Money shall be
published from time to time.
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument,
Office, or Title, of any kind whatever, from any King, Prince, or foreign
State.
Section 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a Tender
in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
Law impairing the Obligation of Contracts, or grant any Title of
Nobility.
No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be
absolutely necessary for executing it’s inspection Laws: and the net
Produce of all Duties and Imposts, laid by any State on Imports or
Exports, shall be for the Use of the Treasury of the United States; and
all such Laws shall be subject to the Revision and Controul of the
Congress.
No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger
as will not admit of delay.
Article II
Section 1. The executive Power shall be vested in a President of
the United States of America. He shall hold his Office during the Term
of four Years, and, together with the Vice President, chosen for the
same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number
of Senators and Representatives to which the State may be entitled in
the Congress: but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall be appointed an
Elector.
The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an
Inhabitant of the same State with themselves. And they shall make a
List of all the Persons voted for, and of the Number of Votes for each;
which List they shall sign and certify, and transmit sealed to the Seat
of the Government of the United States, directed to the President of
the Senate. The President of the Senate shall, in the Presence of the
Senate and House of Representatives, open all the Certificates, and
the Votes shall then be counted. The Person having the greatest
Number of Votes shall be the President, if such Number be a Majority
of the whole Number of Electors appointed; and if there be more than
one who have such Majority, and have an equal Number of Votes,
then the House of Representatives shall immediately chuse by Ballot
one of them for President; and if no Person have a Majority, then from
the five highest on the List the said House shall in like Manner chuse
the President. But in chusing the President, the Votes shall be taken
by States, the Representation from each State having one Vote; A
quorum for this purpose shall consist of a Member or Members from
two thirds of the States, and a Majority of all the States shall be
necessary to a Choice. In every Case, after the Choice of the
President,
p. 614
p. 615
the Person having the greatest Number of Votes of the Electors shall
be the Vice President. But if there should remain two or more who
have equal Votes, the Senate shall chuse from them by Ballot the Vice
President.
The Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their Votes; which Day shall be
the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any Person be eligible
to that Office who shall not have attained to the Age of thirty five
Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties of
the said Office, the Same shall devolve on the Vice President, and the
Congress may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer
shall act accordingly, until the Disability be removed, or a President
shall be elected.
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished
during the Period for which he shall have been elected, and he shall
not receive within that Period any other Emolument from the United
States, or any of them.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation: ‘‘I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States, and
will to the best of my Ability, preserve, protect and defend the
Constitution of the United States.’’
Section 2. The President shall be Commander in Chief of the Army
and Navy of the United States, and of the Militia of the several States,
when called into the actual Service of the United States; he may
require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of
their respective Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases
of Impeachment.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
which shall expire at the End of their next Session.
Section 3. He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both Houses,
or either of them, and in Case of Disagreement between them, with
Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and
other public Ministers; he shall take Care that the Laws be faithfully
executed, and shall Commission all the Officers of the United States.
Section 4. The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
Article III
Section 1. The judicial Power of the United States shall be vested
in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services
p. 615
p. 616
a Compensation, which shall not be diminished during their
Continuance in Office.
Section 2. The Judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority; — to
all Cases affecting Ambassadors, other public Ministers and Consuls;
— to all Cases of admiralty and maritime Jurisdiction; — to
Controversies to which the United States shall be a Party; — to
Controversies between two or more States; — between a State and
Citizens of another State; — between Citizens of different States; —
between Citizens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within
any State, the Trial shall be at such Place or Places as the Congress
may by Law have directed.
Section 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them
Aid and Comfort. No Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.
The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of Blood,
or Forfeiture except during the Life of the Person attainted.
Article IV
Section 1. Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State.
And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the
Effect thereof.
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from which
he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.
Section 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the
Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of the
Congress.
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
Section 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened), against
domestic Violence.
Article V
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds
p. 616
p. 617
of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode of Ratification
may be proposed by the Congress; Provided that no Amendment
which may be made prior to the Year One thousand eight hundred
and eight shall in any Manner affect the first and fourth Clauses in the
Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.
Article VI
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.
Article VII
The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the Same. Done in Convention by the Unanimous
Consent of the States present the Seventeenth Day of September in
the Year of our Lord one thousand seven hundred and Eighty seven
and of the Independence of the United States of America the Twelfth.
Amendment I [1791]
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances.
Amendment II [1791]
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.
Amendment III [1791]
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner
to be prescribed by law.
Amendment IV [1791]
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
Amendment V [1791]
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due
p. 617
p. 618
process of law; nor shall private property be taken for public use,
without just compensation.
Amendment VI [1791]
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
Amendment VII [1791]
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise reexamined in any Court of
the United States, than according to the rules of the common law.
Amendment VIII [1791]
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
Amendment IX [1791]
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
Amendment X [1791]
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
Amendment XI [1798]
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
Amendment XII [1804]
The Electors shall meet in their respective states and vote by
ballot for President and Vice-President, one of whom, at least, shall
not be an inhabitant of the same state with themselves; they shall
name in their ballots the person voted for as President, and in distinct
ballots the person voted for as Vice-President, and they shall make
distinct lists of all persons voted for as President, and of all persons
voted for as Vice-President, and of the number of votes for each,
which lists they shall sign and certify, and transmit sealed to the seat
of the government of the United States, directed to the President of
the Senate; — the President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and
the votes shall then be counted; — The person having the greatest
number of votes for President, shall be the President, if such number
be a majority of the whole number of Electors appointed; and if no
person have such majority, then from the persons having the highest
numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall chuse immediately, by
ballot, the President. But in chusing the President, the votes shall be
taken by states, the representation from each state having one vote; a
quorum for this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states shall be
necessary to a choice. And if the House of Representatives shall not
chuse a President whenever the right of choice shall devolve upon
them, before the fourth day of March next following, then the Vice-
President shall act as President, as in case of the death or other
constitutional disability of the President. — The person having the
greatest number of votes as Vice-President, shall be the Vice-
President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the
two highest numbers on the list, the Senate shall choose the Vice-
President; a quorum for the purpose shall consist of two-thirds of
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p. 619
the whole number of Senators, and a majority of the whole number
shall be necessary to a choice. But no person constitutionally
ineligible to the office of President shall be eligible to that of Vice-
President of the United States.
Amendment XIII [1865]
Section 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to
their jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
Amendment XIV [1868]
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of electors for
President and Vice-President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of
age in such State.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or as
an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions
and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.
Section 5. The Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.
Amendment XV [1870]
Section 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section 2. The Congress shall have the power to enforce this
article by appropriate legislation.
Amendment XVI [1913]
The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment
among the several States, and without regard to any census or
enumeration.
Amendment XVII [1913]
The Senate of the United States shall be composed of two
Senators from each State, elected by the people thereof, for six years;
and each Senator shall have one vote. The electors in each State shall
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p. 620
have the qualifications requisite for electors of the most numerous
branch of the State legislatures.
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the
legislature may direct.
This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid as
part of the Constitution.
Amendment XVIII [1919]
Section 1. After one year from the ratification of this article the
manufacture, sale, or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of the several States, as provided in the Constitution, within seven
years from the date of the submission hereof to the States by the
Congress.
Amendment XIX [1920]
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
sex.
Congress shall have power to enforce this article by appropriate
legislation.
Amendment XX [1933]
Section 1. The terms of the President and the Vice President shall
end at noon on the 20th day of January, and the terms of Senators
and Representatives at noon on the 3d day of January, of the years in
which such terms would have ended if this article had not been
ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every
year, and such meeting shall begin at noon on the 3d day of January,
unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the
President, the President elect shall have died, the Vice President elect
shall become President. If a President shall not have been chosen
before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify, then the Vice President elect shall act
as President until a President shall have qualified; and the Congress
may by law provide for the case wherein neither a President elect nor
a Vice President shall have qualified, declaring who shall then act as
President, or the manner in which one who is to act shall be selected,
and such person shall act accordingly until a President or Vice
President shall have qualified.
Section 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of
Representatives may chuse a President whenever the right of choice
shall have devolved upon them, and for the case of the death of any
of the persons from whom the Senate may chuse a Vice President
whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the
date of its submission.
Amendment XXI [1933]
Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State,
Territory, or Possession of the United States for delivery or use therein
of
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p. 621
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
Amendment XXII [1951]
Section 1. No person shall be elected to the office of the President
more than twice, and no person who has held the office of President,
or acted as President, for more than two years of a term to which
some other person was elected President shall be elected to the
office of President more than once. But this Article shall not apply to
any person holding the office of President when this Article was
proposed by Congress, and shall not prevent any person who may be
holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the
date of its submission to the States by the Congress.
Amendment XXIII [1961]
Section 1. The District constituting the seat of Government of the
United States shall appoint in such manner as Congress may direct: A
number of electors of President and Vice President equal to the whole
number of Senators and Representatives in Congress to which the
District would be entitled if it were a State, but in no event more than
the least populous State; they shall be in addition to those appointed
by the States, but they shall be considered, for the purposes of the
election of President and Vice President, to be electors appointed by a
State; and they shall meet in the District and perform such duties as
provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
Amendment XXIV [1964]
Section 1. The right of citizens of the United States to vote in any
primary or other election for President or Vice President, for electors
for President or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United States or any
State by reason of failure to pay poll tax or other tax.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
Amendment XXV [1967]
Section 1. In case of the removal of the President from office or of
his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice President who shall
take office upon confirmation by a majority vote of both Houses of
Congress.
Section 3. Whenever the President transmits to the President pro
tempore of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either
the principal officers of the executive departments or of such other
body as Congress may by law provide, transmit to the President pro
tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice President
shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President pro
tempore of the Senate and the Speaker of the House of
Representatives his written declaration that no inability exists, he
shall resume the powers and duties of his office unless
p. 621
p. 622
the Vice President and a majority of either the principal officers of the
executive department or of such other body as Congress may by law
provide, transmit within four days to the President pro tempore of the
Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide the issue,
assembling within forty-eight hours for that purpose if not in session.
If the Congress, within twenty-one days after receipt of the latter
written declaration, or, if Congress is not in session, within twenty-one
days after Congress is required to assemble, determines by two-
thirds vote of both Houses that the President is unable to discharge
the powers and duties of his office, the Vice President shall continue
to discharge the same as Acting President; otherwise, the President
shall resume the powers and duties of his office.
Amendment XXVI [1971]
Section 1. The right of citizens of the United States, who are
eighteen years of age or older, to vote shall not be denied or abridged
by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
Amendment XXVII [1992]
No law, varying the compensation for the services of the Senators
and Representatives, shall take effect, until an election of
representatives shall have intervened.
p. 622
p. 623
NetNotes
ALTERNATIVE DISPUTE RESOLUTION (ADR)
ABA Section on Dispute Resolution —
www.americanbar.org/groups/dispute_resolution/.
American Arbitration Association — www.adr.org.
Center for Justice and Reconciliation —
restorativejustice.org/restorative-justice/about-restorative-
justice/tutorial-intro-to-restorative-justice/lesson-3-
programs/victim-offender-mediation/#sthash.pwLBaM2u.dpbs.
The College of Commercial Arbitrators — www.ccarbitrators.org/.
The Mediation Information and Resource Center —
www.mediate.com.
BLOGS
Find legal blogs at legalblogs.findlaw.com.
BUSINESS AND EMPLOYMENT-RELATED INFORMATION
Uniform Commercial Code — www.uniformlaws.org/acts/ucc.
Law Insider, a contract database and search engine —
www.lawinsider.com.
Online links to each state’s secretary of state are available at www.e-
secretaryofstate.com/.
Electronic Data Gathering, Analysis, and Retrieval (EDGAR) —
www.sec.gov/edgar.shtml.
The EEOC — www.eeoc.gov.
p. 623
p. 624
Age Discrimination in Employment Act —
www.eeoc.gov/laws/statutes/adea.cfm.
Information on the Americans with Disabilities Act — Go to the official
government website www.ada.gov
at or the Job Accommodation
Network at askjan.org/index.cfm.
Civil Rights Act of 1964 — www.eeoc.gov/laws/statutes/titlevii.cfm.
Employee Retirement Income Security Act —
www.dol.gov/general/topic/health-plans/erisa.
Fair Labor Standards Act — www.dol.gov/whd/flsa/.
Family and Medical Leave Act — www.dol.gov/whd/fmla/.
Federal Workers Compensation — www.dol.gov/owcp/owcphist.htm
National Labor Relations Act — www.nlrb.gov/.
Occupational Safety and Health Administration —
www.osha.gov/aboutosha.
COMMERCIAL LEGAL RESEARCH PROVIDERS
Fast Case — www.fastcase.com/.
Findlaw for Legal Professionals — lp.findlaw.com.
Lexis and Lexis Advance — www.lexis.com; advance.lexis.com.
LoisLaw — www.loislaw.com.
VersusLaw — www. versuslaw.com.
Westlaw and WestlawNext — www.westlaw.com; next.westlaw.com.
THE COURT SYSTEM
The U.S. Supreme Court — www.supremecourt.gov/.
U.S. Supreme Court Justices’ biographies —
www.supremecourt.gov/about/biographies.aspx.
To hear oral arguments before the U.S. Supreme Court, go to
www.supremecourt.gov/oral_arguments/oral_arguments.aspx.
Information on federal courts — Go to either the federal judiciary
home page at www.uscourts.gov or the Federal Judicial Center home
page at www.fjc.gov.
Information on specific state courts — Go to the National Center for
State Courts,www.ncsc.org/. Read about and see video clips of
current trials at www.cnn.com/specials/us/crime-and-justice.
p. 624
p. 625
CRIMINAL LAW
CrimProf — Criminal law blog at
lawprofessors.typepad.com/crimprof_blog/.
FBI — www.fbi.gov.
Model Penal Code — www.ali.org/publications/show/model-penal-
code/.
National Constitution Center — For nonpartisan information about the
Constitution, see constitutioncenter. org/.
University of Michigan National Archive of Criminal Justice Data
(NACJD) —
www.icpsr.umich.edu/icpsrweb/content/NACJD/index.html.
The U.S. Department of Justice maintains statistics about crimes and
victims at bjs.gov.
To learn more, go to www.justice.gov/hatecrimes/learn-about-hate-
crimes.
FAMILY LAW
For various uniform laws governing the family, such as the Uniform
Child Custody Jurisdiction Act, the Uniform Interstate Family Support
Act, the Uniform Premarital Agreement Act, and the Uniform Marriage
and Divorce Act, go to www.law.cornell.edu/uniform/vol9.html.
For information on collaborative law, go to
www.collaborativedivorce.net/.
To learn about Court Appointed Special Advocates (CASA) and how to
train as a volunteer, go to CASA’s national website at
casaforchildren.org/.
FREE LEGAL RESEARCH
For free legal research, try your state’s official government and court
web sites. Other resources include: ■ FindLaw for Legal
Professionals at lp.findlaw.com/.
■ Google Scholar at scholar.google.com/.
■ Justia at www.justia.com/.
■ The Public Library of Law at www.plol.org.
GOVERNMENT SITES
Congress–Both the House and Senate maintain websites; go to
www.house.gov and www.senate.gov.
p. 625
p. 626
For the White House website, go to www.whitehouse.gov/.
The U.S. Supreme Court — Go to www.supremecourt.gov.
The Library of Congress provides a list of official U.S. Executive
Branch websites at www.loc.gov/rr/news/fedgov.html.
Information about U.S. government services and information is
available at www.usa.gov/states-and-territories.
LEGAL ETHICS
You can locate the ABA Model Rules of Professional Conduct at
www.americanbar.org/groups/professional_responsibility/publicati
ons/model_rules_of_professional_conduct/model_rules_of_professi
onal_conduct_table_of_contents/.
You can locate the ABA Ethics Opinions at
www.americanbar.org/groups/professional_responsibility/publicati
ons/ethics_opinions/.
Legal blog on ethics at bernabepr.blogspot.com/.
LITIGATION
For information on federal courts, go to either the federal judiciary
home page at www.uscourts.gov or the Federal Judicial Center home
page at www.fjc.gov.
For information on specific state courts, go to the National Center for
State Courts, www.ncsc.org/.
Current medical news can be found at www.medscape.com.
Consumer Product Safety Commission — www.cpsc.gov.
For topics covering different types of litigation, go to
public.findlaw.com/moretopics.html.
PRIMARY MATERIAL
U.S. Supreme Court opinions dating back to the 1800s — Start with
FindLaw, at caselaw.findlaw.com/court/us-supreme-court.
Federal appellate court opinions — Start with FindLaw, at
caselaw.findlaw.com/. Select your circuit.
State court opinions — Start with FindLaw, at caselaw.findlaw.com.
Select your state.
Federal statutes and regulations — Start with FindLaw, at
caselaw.findlaw.com. Select the U.S. Code or the Code of Federal
Regulations.
State statutes and regulations — Start with FindLaw, at
caselaw.findlaw.com. Select your state.
p. 626
p. 627
Current information on federal legislation — A good source is
www.congress.gov/.
For texts of the Declaration of Independence, the Constitution, and
the Bill of Rights, go to the National Archives website,
www.archives.gov/founding-docs.
UNIFORM LAWS
The Uniform Commercial Code — www.law.cornell.edu/ucc.
The Uniform Probate Code —
www.law.cornell.edu/uniform/probate.html.
Various uniform laws governing the family, such as the Uniform Child
Custody Jurisdiction Act, the Uniform Interstate Family Support Act,
the Uniform Premarital Agreement Act, and the Uniform Marriage and
Divorce Act — Go to www.law.cornell.edu/uniform/vol9.html.
p. 627
p. 629
Glossary
Absolutist approach In the context of interpreting the First Amendment, a belief that the
words “no law” should be read literally to prohibit any statute, regulation, or court action
which abridges First Amendment rights.
Abstract A condensed history of the title to real property, which includes the chain of
ownership and a record of all liens, taxes, or other encumbrances that may impair the
title.
Abuse of process Misusing the criminal or civil court process.
Accessory Also referred to as an accomplice; a person who assists the principal in the
preparation of the crime.
Accessory after the fact A person who aids the principal after the commission of the crime.
Accessory before the fact A person who assisted in the preparation of the crime, but was
not present during the crime.
Accomplice Also referred to as an accessory; a person who assists the principal with the
crime or with the preparation of the crime.
Accord and satisfaction The agreement and then the performance of something different
than originally promised.
Acquit To determine that a criminal defendant is not guilty of the crime with which he or she
is charged.
Actual cause Also known as cause in fact; this is measured by the “but for” standard: But for
the defendant’s actions, the plaintiff would not have been injured.
Actual damages See Compensatory damages.
Actus reus Bad act; along with mens rea (bad intent), a required element of any crime.
Adhesion contract A contract formed where the weaker party has no realistic bargaining
power. Typically a form contract is offered on a “take it or leave it” basis.
Adjudicatory hearing A mechanism through which parties to a dispute can present
arguments and evidence about their case to an administrative law judge.
Administrative law Rules and regulations created by administrative agencies.
Administrative law judge Another name for a hearing officer.
Administrative regulations Rules, regulations, orders, and decisions created by
administrative agencies under their authority to interpret specific statutes.
Administrator/administratrix A person appointed by the court to manage the assets and
liabilities of the decedent.
ADR See Alternative dispute resolution.
Advance sheets The first printing of a court decision before it appears in a hardbound
reporter.
Adversarial system A system characterized by competing, opposing parties overseen by a
neutral decision maker.
Adverse possession A transfer of real property rights that occurs after someone other than
the owner has had actual, open, adverse, and exclusive use of the property for a
statutorily determined number of years.
Affinity Persons related to the decedent by marriage.
Affirm A decision is affirmed when the litigants appeal the trial court decision and the higher
court agrees with what the lower court has done.
Affirmative action plan A temporary plan designed to remedy past discrimination by using
race or sex as
p. 629
p. 630
a ‘‘plus factor’’ in employment settings or admission to educational programs.
Affirmative defense A defense whereby the defendant offers new evidence to avoid
judgment.
Age Discrimination in Employment Act (ADEA) Federal statute that prohibits discrimination
in employment against those aged 40 or older.
Agency adoption An adoption in which a licensed agency assumes responsibility for
screening adoptive parents and matching them with available children.
Agent Someone who has the power to act in the place of another.
Alibi defense A defense requiring proof that the defendant could not have been at the scene
of the crime.
Alien corporation A corporation formed in another country.
Alimony Also known as maintenance or support; financial support and other forms of
assistance required to supply the “necessities” of life.
Alternative dispute resolution (ADR) Techniques for resolving conflicts that are alternatives
to full-scale litigation. The two most common are arbitration and mediation.
ALWD Citation Manual Created by the Association of Legal Writing Directors, providing a
single consistent set of rules for all forms of legal writing.
American Bar Association (ABA) A national voluntary organization of lawyers.
American Jurisprudence Second (Am. Jur. 2d) A general legal encyclopedia that
summarizes the entire body of American law.
American Law Reports (ALR) ALR contains the full text of leading court opinions, followed by
a discussion of the issue with references to cases from around the country. Only
selected topics are covered, but they are covered in more depth than you will find in an
encyclopedia.
Americans with Disabilities Act (ADA) Federal statute designed to protect disabled people
from being discriminated against in a variety of situations, including employment.
Amicus curiae Someone who, with the court’s permission, intervenes in litigation, usually on
appeal, to influence the decision. Also known as a friend of the court.
Analogize To find similarities between two situations.
Analogous Similar; analogous cases involve similar facts and rules of law.
Annotated codes Private publications that include not only the statutes arranged by subject
matter but also editorial material, such as legislative history and summaries of court
decisions that have interpreted the statutes.
Annotated statutes See Annotated codes.
Annotations Editorial features, such as court decision summaries and references to other
sources of information, added by the editor to assist the researcher.
Annulment A legal (or religious) judgment that a valid marriage never existed.
Answer The defendant’s reply to the complaint. It may contain statements of denial,
admission, or lack of knowledge and affirmative defenses.
Antecedent When a pronoun ( hers, her, his, him, it, its, them, their, theirs) substitutes for a
noun that has preceded it, the noun is known as an antecedent.
Antenuptial agreement See Prenuptial agreement.
Anti-heart-balm statute A law that prohibits lawsuits for such things as breach of a promise
of marriage, alienation of affection, and seduction of a person over the legal age of
consent.
Appeal To ask a higher court to review the actions of a lower court.
Appealable issues Questions that can form the basis for an appeal.
Appellant or petitioner The party in a lawsuit who has initiated an appeal.
Appellate brief A formal written argument to an appellate court, in which a lawyer argues
why that court should affirm or reverse a lower court’s decision.
Appellate courts Courts that determine whether lower courts have made errors of law.
Appellate jurisdiction The power of a higher court to review and modify the decision of a
lower court.
Appellee or respondent The party in a lawsuit against whom an appeal has been filed.
Appropriation An intentional unauthorized exploitive use of another person’s personality,
name, or picture for the defendant’s benefit.
Arbitration An ADR mechanism whereby the parties submit their disagreement to a third
party whose decision is binding.
Arraignment A criminal proceeding at which the court informs the defendant of the charges
being brought against him or her and the defendant enters a plea.
Arrest Occurs when the police restrain a person’s freedom and charge the person with a
crime.
Arrest warrant A court order directing the arrest of a person.
Arson The malicious burning of the house or property of another.
Articles of incorporation The primary document needed to form a corporation.
Artisan’s lien The right to retain an interest in property until a worker has been paid for his or
her labor.
Assault An intentional act that creates a reasonable apprehension of an immediate harmful
or offensive physical contact.
p. 630
p. 631
Assigned counsel A private attorney paid by the state on a contractual basis to represent an
indigent client.
Assignee A person to whom contract rights are assigned.
Assignment The transfer by one of the original parties to the contract of part or all of his or
her interest to a third party.
Assignor A person who assigns contract rights.
Assumption In logic, a belief that justifies one in arguing a conclusion.
Assumption of the risk Voluntarily and knowingly subjecting oneself to danger.
At-will employment When an employee has not signed a formal contract with the employer
governing the employment relationship.
Attachment A process that gives the creditor rights against the debtor when the creditor
either possesses collateral from the debtor or has a signed security agreement.
Attorney Lawyer; a person licensed by a court to practice law.
Attorney-client privilege A rule of evidence that prevents an attorney or a paralegal from
being compelled to testify about confidential client information.
Attorney general The chief legal officer of the federal or a state government.
Attorney work product Materials prepared by an attorney or paralegal in anticipation of
litigation.
Bail Money or something else of value that is held by the government to ensure the
defendant’s appearance in court.
Bailee The party taking temporary control of personal property during a bailment.
Bailiff An officer of the court who is responsible for maintaining order in the courtroom.
Bailment A temporary transfer of personal property to someone other than the owner for a
specified purpose.
Bailor The owner of the personal property that is being temporarily transferred as part of a
bailment.
Balancing tests In the context of interpreting the First Amendment, a group of tests or
standards that have been developed for determining whether the First Amendment
prohibits government actions based on balancing the benefits of free expression against
other legitimate and important government interests.
Bankruptcy judges Appointed for set terms, they handle bankruptcy matters.
Battered woman’s or spouse’s defense A defense that is sometimes allowed when someone
has been the victim of repeated attacks, even when that victim is not in immediate
danger.
Battery An intentional act that creates a harmful or offensive physical contact. Can form the
basis for either a tort or a criminal action.
Bearer paper Has written on its front a statement that it is payable to cash or payable to the
bearer, or has a signature on the back, causing it to be indorsed in blank.
Bench trial A trial conducted without a jury.
Beneficiary The person named in a will, insurance policy, or trust who receives a benefit.
Bequest Also known as a legacy; a gift of personal property in a will.
Beyond a reasonable doubt The standard of proof used in criminal trials. The evidence
presented must be so conclusive and complete that there are no reasonable doubts
regarding the guilt of the accused.
Bilateral contract A contract where a promise is exchanged for a promise.
Bill A proposed law as presented to a legislature.
Bill of Rights The first ten amendments to the U.S. Constitution.
Black letter law Generally accepted legal principles.
Bluebook A book originally written by a group of law students to provide a uniform method
for citations in law reviews; contains detailed rules for all forms of citation.
Board of directors The group responsible for the management of a corporation.
Boilerplate Standard language found in a particular type of legal document.
Bona fide occupational qualification (BFOQ) A defense to an overt discrimination claim,
alleging that the qualification is necessary to the essence of the business operation.
Booking The process after arrest that includes taking the defendant’s personal information,
giving the defendant an opportunity to read and sign a Miranda card, and allowing the
defendant the opportunity to use a telephone.
Bribery Offering something of value to a public official with the purpose of influencing that
official’s actions.
Brief Either a short, written summary of a court opinion or a written argument presented to a
court. See Appellate brief.
Brief answer In a law office memorandum, the brief answer gives the reader a short, specific
answer to the question presented.
Broad holding A statement of the court’s decision in which the facts are either omitted or
given in very general terms so that it will apply to a wider range of cases.
Burden of production The necessity to produce some evidence, but it need not be so strong
as to convince the trier of fact of its truth.
Burden of proof The necessity of proving the truth of the matter asserted.
p. 631
p. 632
Bureau of National Affairs (BNA) A private publishing company that publishes legal
materials, including United States Law Week.
Burglary Breaking into and entering a building with the intent of committing a felony.
“But for” standard See Actual cause.
Buyer in the ordinary course of business Someone who buys a product in good faith and
without knowledge that someone else has a security interest in the goods.
Canons of construction General principles that guide the courts in their interpretation of
statutes.
Capital crime A crime for which the death sentence can be imposed.
Caption The heading section of a pleading that contains the names of the parties, the name
of the court, the title of the action, the docket or file number, and the name of the
pleading.
Case brief A short written summary of a court opinion.
Case briefing A method for summarizing court opinions.
Case citation Information that tells the reader the name of the case, where it can be located,
the court that decided it, and the year it was decided. The Bluebook gives precise rules
as to how case citations are to be written.
Case history Either prior or subsequent procedural history of the case cited.
Case management Managing the flow of paperwork involved in handling client cases.
Case Management/Electronic Case Files (CM/ECF) A comprehensive case management
system developed for the federal courts allowing them to receive electronic filings and to
maintain case files accessible via the Internet.
Case of first impression A type of case that the court has never faced before.
Case reporters or reports Books that contain appellate court decisions. There are official
reports and unofficial reporters.
Cause of action A claim that based on the law and the facts is sufficient to support a lawsuit.
If the plaintiff does not state a valid cause of action in the complaint, the court will
dismiss it.
Cause in fact See Actual cause.
Caveat emptor Let the buyer beware.
Censure A public or private statement that an attorney’s conduct violated the code of ethics.
Ceremonial Marriage A marriage in which the couple has obtained the proper marriage
license from a local government official and has then taken marriage vows before either
a recognized member of the clergy or a judge and a designated number of witnesses.
Also known as a solemnized marriage.
Certiorari See Writ of certiorari.
Chain of custody A record identifying who had control and access to evidentiary materials
from the time they were obtained until the time they are introduced into evidence.
Challenge for cause A method for excusing a prospective juror based on the juror’s inability
to serve in an unbiased manner.
Charging the jury The time near the end of a trial when the judge instructs the jurors about
the meaning of the law they are supposed to apply to reach their decision.
Charitable immunity The prohibition against suing charitable institutions or capping the
possible damage award.
Chattel See Tangible property.
Check A specialized form of a draft in which a bank depositor names a specific payee to
whom funds are to be paid from the drawer’s account.
Checks and balances Division among governmental branches so that each branch acts as a
check on the power of the other two.
Child abuse Intentional harm to a child’s physical or mental well-being.
Child neglect The negligent failure to provide a child with the necessaries of life.
Child support Money that the noncustodial parent contributes to assist the custodial parent
in paying for a child’s food, shelter, clothing, medical care, and education.
Chilling effect doctrine The requirement that courts invalidate laws that are written in such a
way as to lead to self-censorship because people cannot determine the legality of their
actions before they undertake First Amendment activities.
Citation A stylized form for giving the reader information about a legal authority, generally
including the name of the authority, its date, and specifics such as volume and page
numbers to help the reader locate it. For court opinions, a citation includes the name of
the case, where it can be located, the name of the court that decided it, and the year it
was decided. A statutory citation is a formalized method for referring to a statute’s
chapter (or title) and section numbers. The Bluebook and the ALWD Citation Manual give
precise rules as to how citations are to be written. See Bluebook and ALWD Citation
Manual.
Civil action A lawsuit brought to enforce an individual right or gain payment for an individual
wrong.
Civil law Law that deals with harm to an individual.
Civil liberties Legal guarantees that the government will not interfere with aspects of
people’s personal lives.
Civil rights Legal rights that (1) are associated with being a citizen or an inhabitant of a
country and
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p. 633
are enforced by the government of that country, and (2) involve having the government
do something for its citizens.
Class action suit A lawsuit brought by a person as a representative for a group of people
who have been similarly injured.
Claw-back provision An agreement whereby privileged documents inadvertently produced
can be retrieved.
Clear and convincing The standard of proof used in some civil trials. The evidence presented
must be greater than a preponderance of the evidence but less than beyond a
reasonable doubt.
Clear and present danger test A test used by judges in which the courts will limit rights of
free expression when the challenged actions create a “clear and present danger” that
they will bring about substantive evils that government has a right to prevent.
Clear title Also known as marketable title; an ownership right that is free from
encumbrances or other defects.
Clearly erroneous Standard used by appellate courts when reviewing a trial court’s findings
of fact.
Client confidentiality An ethical rule requiring that attorneys and paralegals maintain their
clients’ secrets.
Client trust account A bank account used to hold money belonging to a client or to a third
party.
Closely held corporation A relatively small business operation in which one person or the
members of a family own all the stock.
Closing statement An itemized allocation of all the costs and moneys exchanged among the
various parties, including financial institutions and real estate brokers, when a property
is sold.
Code A compilation of federal or state statutes in which the statutes are organized by
subject matter rather than by year of enactment.
Code of Federal Regulations (C.F.R.) A compilation of federal administrative regulations
arranged by agency.
Codicil A supplement or addition to a will that modifies, explains, or adds to its provisions.
Codification The process of organizing statutes by subject matter.
Codification of the common law The process of legislative enactment of areas of the law
previously governed solely by the common law.
Collaborative divorce A non-adversarial process whereby the divorcing couple hires a team
of professionals to help them reach a mutually satisfactory agreement.
Collateral heir One who has the same ancestors, but does not descend from the decedent.
Comma splice A type of run-on sentence; two independent clauses joined by a comma.
Commercial impracticability An argument that a contract has become too costly for one of
the parties.
Commercial paper A written promise or order to pay a certain sum of money.
Commercial speech Advertising that communicates information about nature, availability,
and prices for various commercial products and services.
Committee hearing Legislative committees often hold public hearings where interested
parties can testify about a proposed law. The transcript of the hearing becomes a part of
the statute’s legislative history.
Committee report When a legislative committee holds public hearings on proposed
legislation, the result of those hearings is sometimes published in a committee report,
which becomes part of the statute’s legislative history.
Common law Law created by the courts. See also Codification of the common law and
Derogation of the common law.
Common-law marriage A marriage that has not been solemnized but in which the parties
have mutually agreed to enter into a relationship in which they accept all the duties and
responsibilities that correspond to those of marriage.
Community property states States that classify all property acquired by either the husband
or the wife during the marriage, with the exception of gifts or inheritance, as marital
property to be equally distributed between the spouses at the time of the divorce.
Commutation A form of executive clemency whereby a sentence is reduced; a lessening of
the penalty without changing the conviction.
Comparative negligence A method for measuring the relative negligence of the plaintiff and
the defendant, with a commensurate decrease in the compensation for the injuries.
Compelling interest test See Strict scrutiny test.
Compensatory damages Money awarded to a plaintiff in payment for his or her actual
losses. Compare Punitive damages.
Complaint The pleading that begins a lawsuit.
Complete defense A defense that, if proven, relieves the defendant of all criminal
responsibility.
Compulsory joinder When a person must be brought into a lawsuit as either a plaintiff or a
defendant.
Concurrent conflict of interest Simultaneously representing adverse clients.
Concurrent jurisdiction When more than one court has jurisdiction to hear a case.
Concurring opinion An opinion that agrees with the majority’s result but disagrees with its
reasoning.
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p. 634
Conditional fee estate The current owner of the land retains ownership only as long as
certain conditions are met.
Cone of silence See Ethical wall.
Confederation A form of government in which independent units form an alliance but retain
most of their power delegating only a limited amount of power to a central authority.
Confidentiality The ethical rule prohibiting attorneys and paralegals from disclosing
information regarding a client or a client’s case.
Conflict of interest The ethical rule prohibiting attorneys and paralegals from working for
opposing sides in a case.
Consanguinity See Kindred.
Consequential damages In contract law, indirect damages that must be foreseeable to be
recovered. See Special damages.
Consideration Something of value exchanged to form the basis of a contract.
Consortium See Loss of consortium.
Conspiracy An agreement to commit an unlawful act.
Constitution The fundamental law of a nation or state.
Constitutional court A court established by Article III of the U.S. Constitution.
Constitutional law A body of principles and rules either explicitly stated in, or inferred from,
the U.S. Constitution and those of the individual states.
Constructive Not factually true, but accepted by the courts as being legally true.
Constructive delivery When actual delivery is impossible but the court decides that enough
was done to prove intent to relinquish title and control.
Constructive eviction An act by a landlord that makes the premises unfit or unsuitable for
occupancy.
Constructive knowledge Not actual knowledge but the knowledge the person should have if
reasonable care is taken to be informed.
Content neutrality A court-imposed requirement that government regulation of free
expression not be based on the viewpoint being expressed or the identity of the speaker.
Contextual approach A method for interpreting enacted law in which other parts of the same
document or similar documents are examined to see how the same words or phrases
were used in those related contexts.
Contingency fee Attorney compensation as a percentage of the amount recovered rather
than a flat amount of money or an hourly fee.
Contract An agreement supported by consideration.
Contract reformation An equitable remedy that allows the courts to “rewrite” contract
provisions.
Contributory negligence Negligence by the plaintiff that contributed to his or her injury.
Normally, any finding of contributory negligence acts as a complete bar to the plaintiff’s
recovery. See Comparative negligence.
Conversion The taking of someone else’s property with the intent of permanently depriving
the owner; the civil side of theft.
Copyright An author or artist’s right to control the use of his or her works.
Corporation A business entity formed by an association of shareholders.
Corpus Juris Secundum (C.J.S.) West’s law encyclopedia. Contains cross-references to
West digest topics and key numbers.
Count In a complaint, one cause of action.
Counterclaim A claim by the defendant against the plaintiff. A compulsory counterclaim
relates to the facts alleged in the complaint. A permissive counterclaim can relate to an
entirely different factual setting.
Court A unit of the judicial branch of government that has the authority to decide legal
disputes.
Court clerk A court official responsible for keeping the court files in proper condition and
ensuring that the various motions filed by lawyers and the actions taken by judges are
properly recorded.
Court commissioner A title given in some states to a public official with limited judicial
powers.
Court of record A court where a permanent record is kept of the testimony, lawyers’ remarks,
and judges’ rulings.
Court reporter A person trained to take a verbatim transcript of a courtroom proceeding or
deposition.
Covenant not to compete A promise not to compete within a given geographical area for a
specific time period.
Cover Finding substitute goods.
Crime An activity that has been prohibited by the legislature as violating a duty owed to
society and hence prosecutable, with the possibility of punishment resulting in a fine,
imprisonment, or even death.
Criminal complaint A document charging a person with a crime.
Criminal justice system Used to refer to a combination of legislative, administrative, and
judicial agencies that are involved in the development and enforcement of criminal law
in the United States.
Criminal law Law that deals with harm to society as a whole.
Criminal procedure The way in which criminal prosecutions are handled; governed by the
federal or state rules of criminal procedure.
Critical Legal Studies (CLS) An offshoot of legal realism that seeks to identify ways in which
the law protects certain groups and ideas at the expense of others.
p. 634
p. 635
Cross-claim A claim by one defendant against another defendant or by one plaintiff against
another plaintiff.
Cross-examination The questioning of an opposing witness.
Custodial interrogation Questioning that occurs after a defendant has been deprived of his
or her freedom in a significant way.
Custody In family law, the right given during a separation or divorce to a parent regarding the
residence and care of minor children. In criminal law, when the government deprives a
defendant of his or her freedom in a significant way.
Cyberbullying When technology is used to harass, threaten or embarrass another person.
Damages Monetary compensation, including compensatory, punitive, and nominal damages.
Deadly force A force that would cause serious bodily injury or death.
Decedent A person who died.
Deductive reasoning A form of logical reasoning based on a major premise, a minor premise,
and a conclusion.
Deed The legal document that formally conveys title to the property to the new owner.
Defamation The publication of false statements that harm a person’s reputation.
Defamation per se Remarks considered to be so harmful that they are automatically viewed
as defamatory.
Default judgment A judgment entered against a party who fails to complete a required step,
such as answering the complaint.
Defendant In a lawsuit, the person who is sued; in a criminal case, the person who is charged
with a crime.
Defense A fact or legal argument that would relieve the defendant of liability in a civil case or
guilt in a criminal case.
Delegatee A person who owes an obligation to the obligee in a contractual situation.
Delegation The transfer by one of the original parties to the contract of his or her obligations
to a third party.
Delegator A person who delegates duties under a contract.
Demand letter A letter from an attorney demanding that some action be taken, with either an
implicit or an explicit threat to take the matter to court if the requested action is not
forthcoming.
Dependent clause A clause that contains a subject and a verb but that cannot stand alone,
as it does not contain a complete thought. Dependent clauses always begin with
subordinating conjunctions.
Deponent The person who is being asked questions at a deposition.
Deposition The pretrial oral questioning of a witness under oath.
Derogation of the common law Used to describe legislation that changes the common law.
Descendants Also known as issue; lineal heirs who descend from, or issue from, the
decedent, such as children and grandchildren.
Detrimental reliance See Promissory estoppel.
Devise A gift of real estate that is given to someone through a will.
Dicta Plural of dictum.
Dictum A statement in a judicial opinion not necessary for the decision of the case.
Digest A book that contains court opinion headnotes arranged by subject matter.
Direct appellate review Occurs when the courts think a case is so significant that the middle
step of going through an intermediate appellate court should be skipped; the case
proceeds directly from a trial court to the highest appellate court.
Direct examination An attorney’s questioning of his or her own witness.
Directed verdict A verdict ordered by a trial judge if the plaintiff fails to present a prima facie
case or if the defendant fails to present a necessary defense.
Disability Under the Americans with Disabilities Act, a physical or mental impairment that
substantially limits a major life activity. An individual with a disability is one who has
such an impairment, has a record of such an impairment, or is regarded as having such
an impairment.
Disaffirm The ability to take back one’s contractual obligations.
Disbarment The revocation of an attorney’s license.
Disclosure The intentional publication of embarrassing private affairs.
Discovery The modern pretrial procedure by which one party gains information from the
adverse party.
Dismissal with prejudice A court order that ends a lawsuit; the suit cannot be refiled by the
same parties.
Dismissal without prejudice A court order that ends a lawsuit; the suit can be refiled by the
same parties.
Dissolusion See divorce.
Disparate impact The legal theory applied when the use of a neutral standard has a
disproportionate impact on one protected group.
Disparate treatment The legal theory applied when a rejected applicant claims the reason for
rejection was based on a discriminatory intent but the employer alleges a
nondiscriminatory reason.
Disposition The result reached in a particular case.
Dissenting opinion An opinion that disagrees with the majority’s decision and reasoning.
p. 635
p. 636
Distinguish To find differences (distinctions) between two situations.
Distinguishable Different; distinguishable cases involve dissimilar facts and/or rules of law.
District attorney An attorney appointed to prosecute crimes.
Diversity of citizenship A basis for jurisdiction in federal court requiring that the opposing
parties be from different states and the amount in controversy exceed $75,000.
Diversity jurisdiction The power of the federal courts to hear matters of state law if the
opposing parties are from different states and the amount in controversy exceeds
$75,000.
Divided custody A situation in which the court separates the children so that each parent is
awarded custody of one or more of the children.
Dividend A distribution of the corporate profit as ordered by the board of directors.
Divorce Also called dissolution; a legal judgment that dissolves a marriage.
DNR (Do-Not-Resuscitate) A document designed to inform emergency responders that the
person does not want to be resuscitated.
Doctrine of equitable distribution A system for distributing property acquired during a
marriage on the basis of such factors as the contributions of the spouses, the length of
the marriage, the age and health of the spouses, and their ability to make a living.
Doctrine of implied powers Powers not stated in the Constitution but that are necessary for
Congress to carry out other, expressly granted powers.
Doctrine of incorporation The application of the Fourteenth Amendment’s due process
protections to incorporate the provisions of the Bill of Rights and make them applicable
to the states.
Documents clerk Someone who organizes and files legal documents.
Domestic corporation A corporation doing business in its own state.
Donor Also known as a grantor or settlor; a person who creates a trust.
Double jeopardy A constitutional protection against being tried twice for the same crime.
Draft A three-party instrument in which the drawer orders the drawee, usually a bank, to pay
money to the payee.
Dramshop laws Statutes making bar owners responsible if intoxicated patrons negligently
injure third parties.
Drawee On the face of a check or draft, the party that is ordering payment to be made.
Drawer On the face of a check or draft, the party that is ordered to pay.
Due process Fifth and Fourteenth Amendment guarantees that notice and a hearing must be
provided before depriving someone of property or liberty.
Durable power of attorney A document that gives someone else power to act for you if you
become incapacitated and unable to handle matters on your own. See Health care
proxy.
Duress In criminal law, a defense requiring proof that force or a threat of force was used to
cause a person to commit a criminal act. In contract law, pressure that is so great as to
overwhelm the contracting party’s ability to make a free choice.
Earnest money The money the buyer turns over to the real estate agent to be applied to the
purchase price of property.
Easement A right to use property owned by another for a limited purpose.
E-discovery See electronic discovery.
Ejusdem generis A canon of construction meaning ‘‘of the same class.’’
Electronically Stored Information (ESI) Information created, disbursed, or stored in an
electronic format.
Electronic discovery The process of gaining information from the adverse party when that
information is in electronic form, such as e-mails, voice mails, text messages,
photographs, spreadsheets, and documents; also known as e-discovery.
Electronic filing The filing of court documents over the Internet as electronic files.
Electronic signature A means of establishing that a document being sent electronically was
properly authorized.
Element A separable part of a statute that must be satisfied for the statute to apply.
Emancipated minor Someone who is still under the legal age of adulthood but who has
nevertheless been released from parental authority and given the legal rights of an adult.
Eminent domain The power of government to take private property for public purposes.
Employee A person working for another. Compare Independent contractor.
Employee Retirement Income Security Act of 1974 (ERISA) Federal statute that sets
minimum standards for most voluntarily established pension and health plans in private
industry.
En banc When an appellate court that normally sits in panels sits as a whole.
Enabling act A statute establishing and setting out the powers of an administrative agency.
Enacted law Constitutions, statutes, ordinances, and regulations.
p. 636
p. 637
Encumbrance A lien or other type of security interest that signifies that some other party has
a legitimate claim to the property.
Entrapment A defense requiring proof that the defendant would not have committed the
crime but for police trickery.
Equity Fairness; a court’s power to do justice. Equity powers allow judges to take action
when otherwise the law would limit their decisions to monetary awards. Equity powers
include a judge’s ability to issue an injunction and to order specific performance.
Escheat A reversion of property to the state when there are no heirs.
Escrow account A bank account used to hold money belonging to a client or a third party.
Establishment of religion clause A clause in the First Amendment that restricts the types of
actions government can take to recognize and support religious groups and religious
principles.
Estate In property law, an interest in or title to real property. In probate law, the total property
of whatever kind, both real and personal, that a person owns at the time of his or her
death.
Estate for years Also known as tenancy for a term; a right to control real property for a set
period of time.
Estate Planning The process of analyzing a person’s future financial needs, developing
strategies to meet those needs, and determining how the remaining assets should be
distributed following that person’s death.
Ethical wall Also known as a screen or cone of silence; a system developed to shield an
attorney or a paralegal from a case that otherwise would create a conflict of interest.
Evict To remove a tenant from possession of rental property.
Evidence The way in which a question of fact is established. Evidence can consist of witness
testimony or documents and exhibits. It is the proof presented at a trial.
Evolutionary approach An approach to constitutional interpretation in which judges seek to
determine the underlying purpose that the drafters had in mind at the time they wrote
the law and the modern-day option that best advances that purpose.
Exception An attorney’s objection to a trial court’s ruling in order to preserve it as grounds for
an appeal.
Exclusionary rule A rule that states that evidence obtained in violation of an individual’s
constitutional rights cannot be used against that individual in a criminal trial.
Exclusive jurisdiction When only one court has the power to hear a case.
Exculpatory clause A provision that purports to waive liability.
Exculpatory evidence Evidence that suggests the defendant’s innocence; opposite of
inculpatory evidence.
Execute To perform or to sign; in contract law, an executed contract is one that has been
completely performed.
Execute a warrant To carry out the provisions of a warrant.
Executive clemency The power of the president or a governor to pardon, reduce, or delay a
sentence.
Executive memorandum An official policy directive issued by the President, or by the
governor of a state, which, like an executive order, directs government employees as to
how they should implement the law, but does not have to cite the legal basis, or be
formally numbered and published in an official government registry.
Executive order An official policy directive issued by the President, or by the governor of a
state, which directs government employees as to how they should implement the law
and specifically cites the legal basis upon which the order is based, and at the federal
level must be numbered and published in the Federal Register.
Executive privilege A legal doctrine that exempts some members of the executive branch
from having to disclose information in situations where nondisclosure is deemed
necessary to the discharge of executive responsibilities.
Executor/executrix A person appointed by the testator to carry out the directions and
requests in his or her will.
Executory contract A contract that has not been fully performed.
Exemplary damages See Punitive damages.
Exhaustion The requirement that certain preliminary steps be taken.
Exhaustion of administrative remedies The requirement that relief be sought from an
administrative agency before proceeding to court.
Exigent circumstances An emergency situation that allows a search to proceed without a
warrant.
Explanatory parenthetical A parenthetical located at the end of a case citation containing
information about the case.
Express contracts Contracts that are formed through words, either oral or written.
Express warranty An express warranty or promise can be created by an affirmation of fact or
a promise made by the seller, a description of the goods being sold (including technical
specifications and blueprints), or a sample or model provided.
p. 637
p. 638
Extradition The transportation of an individual from one state to another so that person can
be tried on criminal charges.
Fact bound When even a minor change in the facts can change the outcome.
False arrest Occurs when a person is arrested (by either a law officer or a citizen) without
probable cause and the arrest is not covered by special privilege.
False imprisonment Occurs whenever one person, through force or the threat of force,
unlawfully detains another person against his or her will.
False light The intentional false portrayal of someone in a way that would be offensive to a
reasonable person.
Family law The area of the law that covers marriage, divorce, and parent-child relationships.
Federal courts of appeals The intermediate appellate courts in the federal system.
Federal district courts The trial courts in the federal system.
Federal question A legal issue involving the application of a federal law.
Federal question jurisdiction The power of the federal courts to hear matters of federal law.
Federal Register A daily newspaper in which proposed federal regulations are first printed.
Federal Reporter The West reporter that contains decisions from the U.S. courts of appeals.
Federal Rules of Civil Procedure The rules governing the stages of civil litigation in federal
courts.
Federal Supplement The West reporter that contains decisions from the U.S. district courts.
Federalism A system of government in which the authority to govern is split between a
single, nationwide central government and several regional governments that control
specific geographical areas.
Fee simple absolute estate An ownership of land that is free from any conditions or
restrictions.
Felony A serious crime, usually carrying a prison sentence of one or more years.
Fiduciary A person who has a legally imposed obligation to act in the best interests of
another party.
Fiduciary duty A legally imposed obligation to act in the best interests of the party to whom
the duty is owed.
Fighting words Written or spoken words, generally expressed to incite hatred or violence
from their target.
Financing statement A public record of a security interest.
Fine A penalty requiring the payment of money.
Floating lien A security interest in proceeds or after-acquired property.
Floor debate Debate that takes place in the legislature before a vote is taken on a proposed
statute. It becomes part of the statute’s legislative history.
Follow precedent When a court bases its decision on prior similar cases.
Forced share Statutory provision whereby a spouse is given the right to inherit from the other
spouse, even if the other spouse seeks to prevent it.
Forcible entry and detainer In some states, a summary civil action by a landlord to regain
possession of the premises from a tenant who disputes the landlord’s right to
possession. Also, an action by anyone with the right to possession who has been
unlawfully evicted.
Foreclosure The process by which a creditor who holds a mortgage or some other form of a
lien on real property can force the sale of that property in order to satisfy the debt to the
mortgagee or lien holder.
Foreign corporation A corporation incorporated in one state doing business in another state.
Forfeiture The loss of money or property as a result of committing a criminal act.
Forgery The alteration or falsification of documents with the intent to defraud.
Formal contract A contract requiring certain formalities, such as a seal, to be valid.
Formal will A will that has been prepared on a word processor or typewriter and that has
been properly signed by the testator and the required witnesses.
Fourth branch of government Administrative agencies.
Fraud A false representation of facts or intentional perversion of the truth to induce someone
to take some action or give up something of value.
Freedom of expression A term used to include a group of First Amendment provisions
designed to protect people’s ability to inform and influence others.
Freedom of religion See Free exercise of religion clause and Establishment of religion
clause.
Free exercise of religion clause A clause in the First Amendment that prohibits government
from taking actions to prevent people from adopting any type of religious beliefs or
following religious practices that do not violate general, religiously neutral laws.
Freehold estate A right of title or ownership to real property that extends for life or some
other indeterminate period of time.
Free speech See Freedom of expression.
Friend of the court See Amicus curiae.
Fruit of the poisonous tree doctrine Evidence that is derived from an illegal search or
interrogation is inadmissible.
Full-text search A computer search that identifies every place in which the search term
appears in the actual text of the document being searched.
Garnishment A process through which a court can require an employer to withhold money
from an
p. 638
p. 639
employee’s wages and turn this money over to the party to whom a debt is owed.
General damages Damages that you would naturally expect to occur given the type of harm
suffered.
General intent An intention to act without regard to the results of the act.
General jurisdiction A court’s power to hear any type of case arising within its geographical
area.
General partnership A type of partnership in which all partners have the right to manage the
business.
Grand jury A group of people, usually twenty-three, whose function is to determine if
probable cause exists to believe that a crime has been committed and that the
defendant committed it.
Grantor The prior owner.
Guardian A person appointed by the court to manage the affairs or property of a person who
is incompetent due to age or some other reason.
Guardian ad litem Someone appointed by the court to speak for the interests of a child.
Guilty Convicted of a crime.
Harmless error A trial court error that is not sufficient to warrant reversing the decision.
Hate crime Crime where the selection of the victim is based on that person’s membership in
a protected category, such as race, sex, or sexual orientation.
Hate speech A form of communication that involves the expression of hatred for, or violence
against, a specific minority group or other protected class of people.
Headnote A summary of one legal point in a court opinion; written by the editors at West.
Health care proxy Also known as a durable power of attorney; a document in which an
individual delegates legal authority to make medical or financial decisions for that
person if he or she is too incapacitated to make such decisions.
Hearing officer An official who conducts administrative hearings, administers oaths, issues
subpoenas, oversees depositions, and holds settlement conferences.
Hearsay Testimony or evidence introduced in court regarding what someone said out of
court for the purpose of establishing the truth of what was said.
Heightened scrutiny See Intermediate scrutiny test.
Heir Someone entitled to inherit property left by the decedent.
History The prior or subsequent history of the case you are Shepardizing. It is always
preceded by a one-letter abbreviation.
Holder Someone who receives negotiable paper through proper delivery.
Holder in due course Someone who gives value in good faith (a subjective standard) and
without notice that the instrument is overdue or has been dishonored or has any claims
against it or defenses to it (an objective standard).
Holding In a case brief, the court’s answer to the issue presented to it; the new legal principle
established by a court opinion; see also Broad holding and Narrow holding.
Holographic will A will that was handwritten by the testator, without the witness signatures
necessary for a formal will; an informal will.
Homicide The killing of one human being by another.
Hostile work environment Occurs when unwelcome sexual conduct has the purpose or
effect of unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.
Human rights Legal rights that all human beings are thought to have regardless of where
they live.
Id. A short citation form indicating reference is to the immediately preceding authority.
Immunity For policy reasons, protection from being sued for negligent acts.
Implied powers In constitutional law, powers not stated in the Constitution but that are
necessary for Congress to carry out other, expressly granted powers.
Implied warranty of fitness An implied promise that the goods being sold will satisfy a
special purpose.
Implied warranty of habitability A requirement that property be fit for the purpose for which
it is being rented. Owners are required to repair and maintain the premises at certain
minimum levels.
Implied warranty of merchantability An implied promise that the goods being sold will be
usable for the purpose for which they were sold.
Implied-in-fact contracts Contracts formed through conduct.
Inchoate crimes Attempted crimes.
Incidental beneficiary Someone who the original contracting parties did not explicitly intend
to benefit from the contract.
Incorporation In constitutional law, the application of the Fourteenth Amendment’s due
process protections to incorporate the provisions of the Bill of Rights and make them
applicable to the states.
Inculpatory evidence Evidence that suggests the defendant’s guilt; opposite of exculpatory
evidence.
Indecent materials Materials related to nudity, sex, and foul language that are objectionable
to many people and not appropriate for children, yet fall short of the constitutional
standard for being obscene.
Independent adoption An adoption that involves a private agreement between the birth
parents and the adoptive parents.
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p. 640
Independent contractor A person who works for another but who retains the right to control
the manner of producing the end result; not an employee.
Indictment A grand jury’s written accusation that a given individual has committed a crime.
Compare Presentment.
Indorsement in blank When an indorser simply signs his or her name and does not specify
to whom the instrument is payable.
Infant In the law, a name sometimes used to mean any minor child.
Inference A conclusion reached based on the facts given.
Inferior courts In the federal system, all courts other than the U.S. Supreme Court.
Informal contract A contract not requiring any particular formalities to be valid.
Information A prosecutor’s written accusation that a person has committed a crime.
Infra Below; used to refer to authority cited later in the document. May not be used with
citations to cases, statutes, or constitutions.
Initial appearance The first court hearing for a person charged with committing a crime.
Injunction A court order requiring a party to perform a specific act or to cease doing a
specific act.
Inquisitorial system A system where the judge is actively involved in the investigation of the
facts of the case.
Insanity defense A defense requiring proof that the defendant was not mentally responsible.
Intangible property Personal property that cannot be touched.
Intellectual property Intangible assets, such as trademarks, copyrights, and patents.
Intended beneficiary A person the contractual parties intend to benefit.
Intentional infliction of emotional distress An intentional tort that occurs through an
extreme and outrageous act that causes severe emotional distress.
Intentional tort A tort committed by one who intends to do the act that creates the harm.
Inter vivos trust A trust that is created before a person’s death.
Interference with a contractual relationship An intentional tort that occurs if someone
induces a party to breach a contract or interferes with the performance of a contract.
Intermediate scrutiny test Usually applied to cases of alleged gender discrimination; the
government must show the challenged action was substantially related to an important
government interest. Also known as heightened scrutiny.
Interrogatories Written questions sent by one side to the opposing side, answered under
oath.
Intestate When a person dies without a valid will.
Intimidation Putting someone in fear, usually of physical harm to themselves or another
person they know.
Intoxication defense A defense requiring proof that the defendant was not able to form the
requisite mens rea due to intoxication.
Intrusion The intentional unjustified encroachment into another person’s private activities.
Intrusive phrase A phrase placed between a sentence’s subject and verb.
Invasion of privacy An intentional tort that covers a variety of situations, including
disclosure, intrusion, appropriation, and false light.
Involuntary manslaughter See Manslaughter.
IRAC A method for organizing legal writing: issue, rule, analysis, and conclusion.
Irresistible impulse test A test that provides that the defendant is not guilty due to insanity if,
at the time of the killing, the defendant could not control his or her actions.
Irrevocable trust A form of inter vivos trust that the grantor cannot alter.
Issue In the context of legal analysis, an issue is a question about how the law should be
applied to specific facts. In an IRAC analysis, the statement of the client’s problem. In
probate law, a lineal heir; see Decedent.
Issue of first impression An issue that the court has never faced before.
Jails City or county places of confinement for people charged with or convicted of minor
crimes. Compare prisons.
J.N.O.V. Shorthand for judgment notwithstanding the verdict.
Joint and several liability Liability shared collectively and individually.
Joint legal custody Both parents have an equal say in making major decisions, such as
those regarding the education of the child.
Joint liability Shared liability, so that if one party is sued, others must be sued also.
Joint tenancy Ownership by two or more persons who have equal rights in the use of that
property. When a joint tenant dies, that person’s share passes to the other joint
tenant(s).
Joint tenancy with right of survivorship Another term for joint tenancy.
Judge A court official who presides over courtroom proceedings and decides all legal
questions. In a bench trial, the judge also decides the facts.
Judgment The decision of the court regarding the claims of each side. It may be based on a
jury’s verdict.
Judgment notwithstanding the verdict (J.N.O.V.) A judgment that reverses the verdict of the
jury when the
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verdict had no reasonable factual support or was contrary to law.
Judgment proof When the defendant does not have sufficient money or other assets to pay
the judgment.
Judicial activism A judicial philosophy that supports an active role for the judiciary in
changing the law.
Judicial history See Procedural facts.
Judicial restraint A judicial philosophy that supports a limited role for the judiciary in
changing the law, including deference to the legislative branch.
Judicial review The court’s power to review statutes to decide if they conform to the U.S. or
state constitutions.
Judicial self-restraint A self-imposed restraint that judges exercise to avoid political
confrontations and having to decide controversial issues.
Jurisdiction The power of a court to hear a case.
Jurisprudence The study of law and legal philosophy.
Jury trial When a jury decides the facts and determines liability or guilt.
Just compensation The amount of money the government must pay the owner of property it
seizes through eminent domain.
Justice of the peace A title given to the presiding officer (judge) in limited jurisdiction minor
courts operated by some states.
Justiciable controversy A real and active controversy (as opposed to a hypothetical or
abstract one) that is appropriate for judicial resolution.
Juvenile courts Special courts established to deal with juveniles who commit crimes or
status offenses, or who are adjudged to be abused or neglected.
Juvenile delinquent A minor, usually under the age of 18, who commits acts that would be
considered crimes if committed by adults or who commits status offenses, such as
underage drinking or truancy.
Kidnapping An unlawful movement and confinement of the victim.
Kindred Also known as consanguinity; persons related to the decedent by blood.
Knowingly Not intending to cause a specific harm but being aware that such harm would be
caused.
Land contract An installment contract for the sale of land.
Landmark decision A court opinion that establishes new law in an important area.
Larceny Another term for theft.
Last clear chance The doctrine that states that despite the plaintiff’s contributory negligence,
the defendant should still be liable if the defendant was the last one in a position to
avoid the accident.
Law clerk A law student or a recent law school graduate whose duties usually focus on legal
research.
Law review A journal generally published by a law school editorial board or by a bar
association. The articles usually contain in-depth analyses of current legal topics.
Laws Rules of conduct promulgated and enforced by the government, based on policy
decisions that determine legal rights and duties between people or between people and
the government.
Lay advocate A nonlawyer, generally operating within the law, representing persons before
administrative agencies that permit the practice.
Leading question A question that suggests the answer; generally, leading questions may not
be asked during direct examination of a witness.
Lease An agreement in which the property owner gives someone else the right to use that
property for a designated period of time.
Leasehold A parcel of real estate held under a lease.
Leasehold estate A right to use real property for a limited period of time.
Legacy See Bequest.
Legal aid services See Legal Services Corporation.
Legal analysis The process of applying the law to specific facts. Also known as legal
reasoning.
Legal assistant Synonym for paralegal; may also refer to other nonlawyers who assist
attorneys.
Legal custody In family law, the designated parent or guardian who has authority to make
legal decisions for the child relating to such matters as health care and education.
Legal fiction An assumption that something that is not real is real — for example, assuming
that a corporation is a person for purposes of its being able to sue and be sued.
Legal issue Question about the interpretation and application of the law.
Legal formalism A legal theory that views the law as a complete and autonomous system of
logically consistent principles within which judges find the correct result by simply
making logical deductions.
Legal malpractice The failure of an attorney to act reasonably.
Legal positivism A legal theory whose proponents believe that the validity of a law is
determined by the process through which it was made rather than by the degree to
which it reflects natural law principles.
Legal realism A legal philosophy whose proponents think that judges decide cases based on
factors other than logic and preexisting rules, such as economic and sociological
factors.
Legal reasoning The application of legal rules to a specific factual situation; also known as
legal analysis.
Legal research The process of finding the law.
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Legal right A legally enforceable claim to use something or to be treated in a particular way.
Legal scrivener The provider of a typing service.
Legal Services Corporation A federally funded program to deliver legal assistance to the
indigent.
Legal technician A nonlawyer who provides legal services directly to the public without being
under the supervision of an attorney; also known as a lay advocate. Absent a statute
allowing this activity, it constitutes the unauthorized practice of law.
Legal writing The drafting of legal documents such as case briefs, law office memoranda,
and documents filed with a court.
Legislative courts Courts created under Congress’s Article I powers.
Legislative history The background documents created during the process of a bill
becoming a statute. These documents can include alternative versions of the legislation,
proceedings of committee hearings, committee reports, and transcripts of floor debates.
Legislative history approach A method for interpreting statutes, regulations, and
constitutional provisions in which judges attempt to determine what the drafters
intended to accomplish by passing the law.
Legislative intent The purpose of the legislature at the time it enacted a statute. In
interpreting statutes the role of the court is to try to discover the intent of the legislature
at the time it enacted the statute.
Lessee or tenant The person with right of possession during the term of the lease.
Lesser included offense A crime whose elements are contained within a more serious crime.
Theft is a lesser included offense of robbery.
Lessor or landlord The owner of the property being leased.
Lexis An on-line legal database containing court decisions and statutes from the entire
country, as well as secondary authority; a competitor to Westlaw.
Liable A finding in a civil suit that a defendant is responsible.
Libel Written defamation.
Liberal construction An approach whereby the courts give a statute a broad interpretation.
License Permission to enter or use the property of another that usually can be revoked at
any time.
Licensing Governmental permission to engage in a profession.
Life estate An ownership right to real property that lasts only as long as that person, or some
other named individual, lives.
Life tenant A person who has ownership under a life estate.
Limited jurisdiction A court’s power to hear only specialized cases.
Limited liability company (LLC) A form of business ownership that gives small businesses
the advantage of liability limited to the amount of the owner’s investment along with
single taxation.
Limited liability partnership (LLP) A form of business ownership similar to a general
partnership except the partners do not have unlimited personal liability for the wrongful
acts of other partners.
Limited partnership A partnership of at least one general partner and one or more limited
partners. The limited partners’ liability is limited to their investments so long as they do
not participate in management decisions.
Lineal heir Someone who is a grandparent, parent, child, grandchild, or great-grandchild of
the decedent; also known as descendants or issue.
Liquidated damages clause A contract provision that specifies what will happen in case of
breach.
Listing agreement A document that spells out the nature of the services a real estate agent
will perform with respect to selling real property and how the agent will be compensated
for those services.
Literal interpretation An approach to constitutional interpretation in which judges use
common dictionary definitions for terms used in the document they are interpreting.
Litigation A lawsuit; a controversy to be settled in a court.
Litigation hold A requirement that routine alteration or destruction of ESI must stop
whenever there is a reasonable belief litigation may arise.
Living Constitution Judicial philosophy that seeks to interpret the Constitution in light of
existing societal values.
Living trust A form of inter vivos trust that allows a person, while still living, to benefit
another.
Living will Also known as a medical directive; a document expressing a person’s wishes
regarding the withholding or withdrawal of life-support equipment and other heroic
measures to sustain life if the individual has an incurable or irreversible condition that
will cause death.
Loss of consortium The loss by one spouse of the other spouse’s companionship, services,
or affection.
Magistrate A title sometimes given to a public official exercising limited judicial power.
Magistrate judges In the federal district courts they supervise court calendars, hear
procedural motions, issue subpoenas, hear minor criminal offense cases, and conduct
civil pretrial hearings.
Maintenance See Alimony.
Major premise In deductive reasoning, the statement of a broad proposition that forms the
starting point; in law, the statement of a legal rule that you can find in a statute or court
opinion.
Majority opinion An opinion in which a majority of the court joins.
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Maker On the face of a note, the person who signs, promising to pay.
Malice In tort law, making a defamatory remark either knowing the material was false or
acting with a ‘‘reckless disregard’’ for whether or not it was true.
Malicious prosecution A lawsuit that can be brought against someone who unsuccessfully
and maliciously brought an action without probable cause.
Mandatory authority or decisions Court decisions from a higher court in the same
jurisdiction involving similar facts and law.
Manslaughter Criminal homicide committed recklessly (involuntary manslaughter) or when
either under the influence of extreme mental or emotional disturbance or mistaken as to
the justification of using self-defense (voluntary manslaughter).
Marital property Property that is subject to court distribution upon termination of the
marriage.
Market share theory A legal theory that allows plaintiffs to recover proportionately from a
group of manufacturers when the identity of the specific manufacturer responsible for
the harm is unknown.
Marketable title See Clear title.
Master In law, the name that is sometimes given to an employer.
Material breach Such a grave failure to fulfill the contractual terms that the other party is
relieved of all contractual obligations.
Mechanic’s lien A claim filed by a contractor or repair person who had done work on a
building for which he or she has not been fully paid.
Mediation An ADR mechanism whereby a neutral third party assists the parties in reaching a
mutually agreeable, voluntary compromise.
Medical directive See Living will.
Meet and confer conference In federal court, a mandated conference at which the parties
must develop a discovery plan.
Mens rea Bad intent; along with actus reus (bad act), a required element of any crime.
Merchant’s firm offer An offer made by a merchant in a signed writing that assures the
buyer that the offer will remain open for a specific period of time. It does not require
consideration to be binding.
Metadata Information contained in a document that may include the author of the
document, the date it was created, and other data about the document.
Minimum contacts A constitutional fairness requirement that a defendant have at least a
certain minimum contact with a state before the state courts can have jurisdiction over
the defendant.
Minor A child who is under the age of legal competence.
Minor premise In deductive reasoning, the second proposition, which along with the major
premise leads to the conclusion; in law, the minor premise consists of the client’s facts.
Miranda warnings The requirement that defendants be notified of their rights to remain silent
and to have an attorney present prior to being questioned by the police.
Mirror image rule The requirement that the acceptance exactly mirror the offer or the
acceptance will be viewed as a counteroffer.
Misdemeanor A minor crime not amounting to a felony, usually punishable by a fine or a jail
sentence of less than a year.
Misfeasance Acting in an improper or a wrongful way.
Mistrial A trial ended by the judge because of a major problem, such as a prejudicial
statement by one of the attorneys.
Mitigation of damages The requirement that the non-breaching party take reasonable steps
to limit his or her damages.
M’Naghten test A test that provides that the defendant is not guilty due to insanity if, at the
time of the killing, the defendant suffered from a defect or disease of the mind and could
not understand whether the act was right or wrong.
Model Code of Professional Responsibility An older set of standards governing attorney
ethics developed by the American Bar Association.
Model Penal Code The American Law Institute’s proposal for a uniform set of criminal laws;
not the law unless adopted by a state’s legislature.
Model Rules of Professional Conduct A set of ethical rules developed by the American Bar
Association in the 1980s. The Model Rules have been adopted by more than half the
states.
Motion A request made to the court.
Motion for acquittal A request that the court end the trial by finding for the defendant.
Motion for a continuance A request that the court postpone the proceeding to a later time.
Motion for a directed verdict A request that the court find for the moving party because
either the plaintiff failed to present a prima facie case or the defendant failed to present
a necessary defense.
Motion for a new trial A request that the court order a rehearing of a lawsuit because
irregularities, such as errors of the court or jury misconduct, make it probable that an
impartial trial did not occur.
Motion for further appellate review In Massachusetts, the process whereby the Supreme
Judicial Court agrees to hear a case.
Motion for judgment notwithstanding the verdict A request that the court reverse the jury’s
verdict when the verdict had no reasonable factual support or was contrary to law.
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p. 644
Motion for leave to obtain further appellate review In Massachusetts, a request that the
Supreme Judicial Court hear a case.
Motion in limine A request that the court order that certain information not be mentioned in
the presence of the jury.
Motion to dismiss In civil litigation, a request that the court dismiss the case based on one
of several grounds, including the failure of the plaintiff to state a claim upon which relief
can be granted. See 12(b)(6) motion.
Motion to require a finding of not guilty Defense request that the court find the prosecution
failed to meet its burden and that it remove the case from the jury by finding the
defendant not guilty.
Motion to suppress A request that the court prohibit the use of certain evidence at the trial.
Murder The unlawful premeditated unjustified killing of one human being by another.
Narrow holding A statement of the court’s decision that contains many of the case’s specific
facts, thereby limiting its future applicability to a narrow range of cases.
National Labor Relations Act (NLRA) Federal statute designed to protect the rights of
employees and employers, to encourage collective bargaining, and to curtail certain
private sector labor and management practices.
National Reporter System West’s system for reporting court decisions from every state and
the federal courts.
Native format The format used by a software program, such as Microsoft Word or Excel, that
created the file.
Natural law A legal philosophy whose proponents think there are ideal laws that can be
discovered through careful thought and humanity’s innate sense of right and wrong.
Necessaries Normally food, clothing, shelter, and medical treatment.
Necessity A defense requiring proof that the defendant was forced to take an action to avoid
a greater harm.
Negligence The failure to act reasonably under the circumstances.
Negotiable instrument Commercial paper that can be transferred by indorsement or delivery.
It must meet the requirements of UCC §3-104 to be negotiable. If it does not, a
transferee cannot become a holder, but only gets the rights along with the liabilities of a
contract assignee.
New trial A rehearing of a lawsuit granted when irregularities such as errors of the court or
jury misconduct make it probable that an impartial trial did not occur.
Next friend A person who represents the interests of someone in court without being that
person’s legal guardian.
No-fault divorce A form of divorce that allows a couple to end their marital relationship
without having to assess blame for the breakup.
No-knock warrant A warrant that allows the police to enter without announcing their
presence in advance.
Nolo contendere A defendant’s plea meaning that the defendant neither admits nor denies
the charges.
Nominal damages A token sum awarded when liability has been found but monetary
damages cannot be shown.
Nonfeasance Failing to act.
Nonnegotiable Commercial paper that does not meet the requirements of UCC § 3-104;
cannot be used as a substitute for money.
Nonrestrictive phrase A phrase that is not essential to the sense of a sentence; it should be
set off with commas.
Not for profit corporation Formed for a public purpose; any profits are reinvested in the
corporation.
Note A two-party instrument in which the maker promises to pay the payee; a promise to pay
money.
Notice Being informed of some act done or about to be done.
Notice pleading A method adopted by the federal rules in which the plaintiff simply informs
the defendant of the claim and the general basis for it.
Novation In a contract, when a third party is substituted for one of the original parties.
Nuncupative will An oral will.
Obiter dictum See Dictum.
Obligee A person owed a contractual benefit.
Obligor A person under a contractual obligation.
Obscene materials Written and pictorial materials relating to sexual activities that are not
protected by the First Amendment.
Occupational Safety and Health Administration (OSHA) A federal statute that establishes
and enforces safe and healthful working conditions.
Official reports A governmental publication of court opinions.
On all fours A term used to describe two cases that are almost identical, with similar facts
and legal issues.
On point A term used to describe a case that is similar to another case.
Option contract A contract in which the buyer gives the seller consideration to keep the offer
open for a stated period of time.
Order paper An instrument that is payable to the order of a specific party.
Ordinance A law enacted by a local government; a subcategory of statutory law.
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p. 645
Originalism An approach to constitutional interpretation that narrowly interprets the text of
the Constitution in a manner that is consistent with what most people understood those
words to mean at the time that they were written.
Original jurisdiction The authority of a court to hear a case when it is initiated, as opposed to
appellate jurisdiction.
Output contract A contract in which one party agrees to deliver its entire output of a
particular product to the other party.
Overbreadth doctrine The requirement that even if a law properly prohibits certain types of
activities, it will be struck down if it is written in such a way as to also prohibit other
activities that are constitutionally protected.
Overrule A decision is overruled when a court in a later case changes the law so that its prior
decision is no longer good law. Compare Reverse.
Overt discrimination When an employer openly refuses to treat all applicants or employees
equally.
Paralegal A person who assists an attorney and, working under the attorney’s supervision,
does tasks that, absent the paralegal, the attorney would do. A paralegal cannot give
legal advice or appear in court.
Parallel citation When reference to two or more reporters is required, each citation is known
as a parallel citation. For example, 333 Mass. 99 is the parallel citation for 89 N.E.2d 488;
the reverse is also true.
Pardon An executive action that cancels a conviction for a crime and the penalty that was
associated with it.
Parental immunity The prohibition against allowing children to sue their parents.
Parenthetical The parenthetical that occurs at the end of a court citation always contains
the year of decision and also the name of the court if that information is not obvious
from the name of the reporter.
Parole Conditional early release from custody.
Parole evidence rule An evidentiary rule that a written contract cannot be modified or
changed by prior verbal agreements.
Partial defense A defense that reduces a crime to a lesser included offense.
Partnership A business run by two or more persons as co-owners.
Partnership by estoppel A partnership created by the words or actions of persons acting as
though they were a partnership.
Patent A right to exclude others from making, using, or selling one’s invention.
Pattern jury instructions A set of standardized jury instructions.
Payee The person who will receive payment.
Penal system Also known as the correctional system; the system of jails, prisons, and other
places of confinement, as well as the pardon and parole systems.
Penalty enhancement statute A law that provides for a stiffer penalty in situations in which
the crime victim was specifically selected on the basis of race, religion, color, disability,
sexual orientation, national origin, or ancestry.
Per stirpes Also known as the right of representation; a method of dividing an intestate
estate whereby a person takes in place of the dead ancestor.
Peremptory challenge A method for excusing a prospective juror; no reason need be given.
Perfect tender rule The requirement that the goods delivered exactly meet the contractual
specifications.
Perfected security interest A creditor’s interest in security is perfected if the creditor
possesses the security, files a financing statement, or gives money to purchase
consumer goods.
Perfection In secured transactions, a process by which the secured party gives notice of an
attached security interest, usually by filing a financing statement, thereby giving the
secured party priority to the collateral over the claims of other creditors.
Periodic tenancy A tenancy established at a set interval, such as week to week, month to
month, or year to year. At the end of each rental period the lease can be terminated with
proper notice.
Perjury Lying to the court while under oath.
Perpetrator A person who commits a crime.
Personal defense In negotiable instrument law, a defense that is good against everyone
except a holder in due course. Compare Real defense.
Personal jurisdiction The power of a court to force a person to appear before it.
Personal property All property that is not real property.
Personal recognizance bond A defendant’s personal promise to appear in court.
Persuasive authority or decisions Court decisions from an equal or a lower court from the
same jurisdiction or from a court in a different jurisdiction; also includes secondary
authority.
Petitioner A person who initiates an appeal.
Physical custody In family law, the child lives with and has day-to-day activities supervised
by the designated parent or guardian.
Piercing the corporate veil When a court sets aside the unlimited liability protection normally
given to corporate shareholders.
Pinpoint cite The reference to a particular page within an opinion.
Plain meaning approach A method for interpreting enacted law in which the key terms are
interpreted
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p. 646
in light of their dictionary definitions and use in ordinary conversations.
Plain view doctrine A policy that allows police to seize contraband or evidence that is openly
visible in an area where the police are authorized to be.
Plaintiff A person who initiates a lawsuit.
Plea bargaining A process whereby the prosecutor and the defendant’s attorney agree for
the defendant to plead guilty in exchange for the prosecutor’s promise to charge him or
her with a lesser offense, drop some additional charges, or request a lesser sentence.
Pleading in the alternative Including more than one count in a complaint; the counts do not
need to be consistent.
Pleadings The papers that begin a lawsuit — generally, the complaint and the answer.
Pocket part A pamphlet inserted into the back of a book containing information new since
the volume was published.
Political question doctrine The practice of not deciding cases in situations where their
resolution is committed to another branch of government or because those issues are
not capable of judicial resolution.
POLST (Physician’s Orders for Life Sustaining Treatment) A form that requires health care
professionals to give or withhold the treatments specified on the form.
Popular name table Located in most codified statutes, this table lists statutes by their
popular names along with their citations.
Portable Document Format (PDF) A commonly used electronic format for displaying and
printing documents; any document filed in the federal courts must be in the PDF format.
Post-conviction relief A statutory collateral challenge to a judgment of conviction.
Potential conflict A situation in which a conflict of interest may arise in the future — for
example, representing business partners.
Power of judicial review A court’s power to review statutes to decide if they conform to the
U.S. or state constitutions.
Power of sale clause A clause authorizing a private foreclosure sale that does not require
court action.
Practice of law An activity that requires professional judgment, or the educated ability to
relate law to a specific legal problem.
Practitioners’ Notes A section of the Bluebook devoted to citation information for the
practicing attorney.
Precedent One or more prior court decisions.
Preemption The power of the federal government to prevent the states from passing
conflicting laws, and sometimes even to prohibit states from passing any laws on a
particular subject.
Peremptory challenge A method for excusing a prospective juror; no reason need be given.
Prejudicial error A trial court error so serious as to require reversal of the trial court’s
decision.
Preliminary hearing A hearing where the prosecutor must present sufficient evidence to
convince the judge that there is probable cause to believe the named individual
committed the crimes for which the defendant is being charged.
Prenuptial agreement Also known as an antenuptial agreement; a document that
prospective spouses sign prior to marriage regarding financial and other arrangements
should the marriage end.
Preponderance of the evidence The standard of proof most commonly used in civil trials.
The evidence presented must prove that it is more likely than not that the defendant
committed the wrongful act.
Presentment Acting on its own initiative, a grand jury’s charging a person with a crime.
Compare Indictment.
Presidential immunity A legal doctrine that exempts the President of the United States from
being criminally prosecuted or from being civilly sued for actions taken as President.
Pretrial conference A meeting of the attorneys and the judge prior to the beginning of the
trial.
Pretrial motion A motion brought before the beginning of a trial either to eliminate the
necessity for a trial or to limit the information that can be heard at the trial.
Prima facie case What the prosecution or the plaintiff must be able to prove in order for the
case to go to the jury — that is, the elements of the prosecution’s case or the plaintiff’s
cause of action.
Primary authority The law itself, such as statutes and court opinions.
Principal In agency law, a person who permits or directs another person to act on the
principal’s behalf; in criminal law, the person who commits the crime.
Prior case history Information about what happened procedurally to the cited case before it
was heard by the cited court. Do not include this information in a citation.
Prisons Places of confinement for those convicted of the more serious crimes.
Privity of contract The relationship that exists between the contracting parties.
Pro bono work Legal representation done without charge.
Pro se One who represents himself or herself in a legal action.
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Probable cause Not susceptible to a precise definition; a belief based on specific facts that a
crime has been or is about to be committed; more than a reasonable suspicion.
Probate The process of court supervision over the distribution of a deceased person’s
property.
Probation An alternative sentence to incarceration that releases the defendant upon
agreeing to certain conditions.
Probation officers Government employees who administer the probation system.
Procedural due process The requirement that governments follow certain procedures when
seeking to deprive people of life, liberty, or property.
Procedural facts Actions taken in the lower courts or administrative agencies before the
case reached the court issuing the opinion you are reading. Examples include affirmed
and reversed.
Procedural law Law that regulates how the legal system operates.
Process server A person authorized by law to serve legal papers on defendants.
Product misuse When the product was not being used for its intended purpose or was being
used in a dangerous manner; it is a defense to a products liability claim so long as the
misuse was not foreseeable.
Products liability The theory holding manufacturers and sellers liable for defective products
when the defects make the products unreasonably dangerous.
Professional Corporation (PC) A professional entity in which the stockholders share in the
organization’s profits but have their liability limited to the amount of their investment.
Professional judgment The educated ability to apply law to specific facts.
Promissory estoppel Occurs when the courts allow detrimental reliance to substitute for
consideration.
Property A tangible object or a right or ownership interest.
Property law Law dealing with ownership.
Prosecuting attorney The attorney responsible for presenting the state’s evidence against
the defendant; called United States attorneys on the federal level and district attorneys
or state’s attorneys on the state level.
Prostitution Participating in sexual activity for a fee.
Protected categories Under Title VII, race, color, religion, sex, and national origin.
Protection order A court order issued in domestic violence and abuse cases to keep one
spouse away from the other, the children, or the home.
Proving a case within a case The requirement in a legal malpractice case that the plaintiff-
client prove that but for the attorney’s negligence, the client would have won.
Proximate cause Once actual cause is found, as a policy matter, the court must also find
that the act and the resulting harm were so foreseeably related as to justify a finding of
liability.
Public benefit corporation A type of corporation that allows public benefit as a charter
purpose in addition to the traditional corporate goal of maximizing profit for
shareholders.
Public defender An attorney employed by the state to represent indigent defendants.
Punitive damages Money awarded to a plaintiff in cases of intentional torts in order to
punish the defendant and serve as a warning to others.
Purchase money security interest Arises when a seller gives credit to a debtor so that the
debtor can purchase an item.
Pure speech The use of spoken words to communicate information.
Purposeful Intending to cause a specific harm.
Qualified individual Under the Americans with Disabilities Act, someone who can perform
the essential job functions.
Quasi-contract Although no contract was formed, the courts will fashion an equitable
remedy to avoid unjust enrichment.
Question of fact Questions relating to what happened: who, what, when, where, and how.
Question of law Questions relating to the application or interpretation of the law.
Quid pro quo sexual harassment A situation involving an exchange of sexual favors for
employment benefits.
Quiet enjoyment The tenant’s right to be free from interference from the landlord with
respect to how the property is used.
Quitclaim deed A deed in which the grantor gives up any claims to the property without
making any assertions about there being a clear title.
Ratio decidendi The court’s reasoning for its decision.
Rational basis test Applied to cases of alleged discrimination when there is no suspect
classification nor fundamental right involved; the plaintiff must prove the challenged
action is not reasonably related to achieving a legitimate government purpose. Also
known as Standard scrutiny.
Real defense In negotiable instrument law, a defense inherent in the instrument itself, such
as forgery. Compare Personal defense.
Real estate Also known as real property; land and items growing on or permanently attached
to that land.
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Real estate closing A meeting at which the buyer and the seller or their representatives sign
and deliver a variety of legal documents associated with the sale and transfer of the
property.
Real property Land and items growing on or permanently attached to that land; also known
as real estate.
Reasonable accommodation Under the Americans with Disabilities Act, an accommodation
that would not create an undue hardship for the employer.
Reasonable suspicion A suspicion based on specific facts; less than probable cause.
Receiving stolen property Knowingly possessing stolen property.
Recidivist A repeat offender; one who continues to commit more crimes.
Recklessness Disregarding a substantial and unjustifiable risk that harm will result.
Reformation An equitable remedy whereby the court rewrites a contract.
Registered agent The person designated to receive service of legal documents.
Registration The process by which individuals or organizations have their names placed on
an official list kept by some private organization or governmental agency.
Regulation A law promulgated by an administrative agency.
Remand When an appellate court sends a case back to the trial court for a new trial or other
action.
Remedial statute A statute enacted to correct a defect in prior law or to provide a remedy
where none existed.
Removal The transfer of a case from one state court to another or from state court to federal
court.
Reporters Books that contain court decisions. There are both official and unofficial reporters.
Reprieve A form of executive clemency in which the punishment is stayed pending further
action.
Reprimand or censure A public or private statement that an attorney’s conduct violated the
code of ethics.
Request for admissions A document that lists statements regarding specific items for the
other party to admit or deny.
Request for documents A discovery tool whereby one party asks for documents in the other
party’s possession or control.
Requirements contract A contract in which one party agrees to buy all its requirements for a
particular product from the other party.
Res ipsa loquitur “The thing speaks for itself”; the doctrine that suggests negligence can be
presumed if an event happens that would not ordinarily happen unless someone was
negligent.
Res judicata In civil litigation, the rule that when there is a final judgment,the matter cannot
be relitigated by the original parties.
Rescission The act of canceling the contract and returning the parties to the positions they
were in prior to the contract having been formed.
Respondeat superior The tort theory that an employer can be sued for the negligent acts of
its employees.
Respondent The party in a lawsuit against whom an appeal has been filed.
Restatement of the Law of Torts, Second An authoritative secondary source, written by a
group of legal scholars, summarizing the existing common law, as well as suggesting
what the law should be.
Restatements A series of books — the Restatements of the Law — summarizing the basic
principles of the common law, written by the American Law Institute (ALI).
Restitution Repaying the victim for harm caused.
Restrictive covenant A provision in a deed that prohibits specified uses of the property.
Retreat exception The rule that in order to claim self-defense there must have been no
possibility of retreat.
Reversal When an appellate court reverses a lower court decision.
Reverse A decision is reversed when the litigants appeal a lower court decision and the
higher court disagrees with the decision of the lower court. Compare Overrule.
Reversible error An error made by the trial judge sufficiently serious to warrant reversing the
trial court’s decision.
Revocable trust A form of inter vivos trust that the grantor can alter.
RICO The federal Racketeer Influenced and Corrupt Organizations Act.
Right of representation See Per stirpes.
Ripeness doctrine The requirement that courts not attempt to settle a controversy
prematurely, before all the issues have been fully developed.
Robbery Theft through the use of force.
Rule In a case brief, the general legal principle in existence before the case began.
Rule 8 The rule of civil procedure that sets forth the general pleading requirements.
Rule 11 A requirement that attorneys sign a pleading only after conducting a reasonable
inquiry into the circumstances supporting it.
Rule 12(b)(6) motion A request that the court find the plaintiff has failed to state a valid
claim and dismiss the complaint. Also known as a motion to dismiss.
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Rule 56 motion A request that the court grant judgment in favor of the moving party
because there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. It is similar to a 12(b)(6) motion except that the
court also considers matters outside the pleadings. Also known as a summary
judgment motion.
Rulemaking hearing An administrative agency hearing that resembles a legislative hearing in
which interested parties present evidence and arguments to an administrative agency
about what the general law should be.
Rules of criminal procedure Federal and state rules that regulate how criminal proceedings
are conducted.
Rules of evidence Federal and state rules that govern the admissibility of evidence in court.
Said Legalese for “the.”
Screen See Ethical wall.
Search engine A computer program that allows the user to retrieve web documents that
match the key words entered by the searcher.
Search warrant A court’s prior permission for the police to search for and seize property.
Secondary authority Information about the law, such as that contained in encyclopedias and
law review articles.
Secured transaction An arrangement whereby a creditor asks for and receives a guarantee
of repayment from the debtor in the form of collateral.
Security agreement An agreement granting a creditor a security interest in specific property.
Security deposit An amount of money, usually equal to one month’s rent, that is collected at
the time the lease is signed and then held by the landlord to cover the cost of repairs
that may be needed when the tenant moves out.
Security interest A security interest is created when a debtor agrees to put up something as
collateral that the creditor can then claim if the debtor fails to pay the debt.
Self-defense The justified use of force to protect oneself or others.
Self-proving clause A notarized affidavit, signed by the attesting witnesses, that may
eliminate the need to call witnesses during the probate process to attest to the validity
of the will.
Sentencing hearing A hearing held after a finding of guilt to determine the appropriate
sentence.
Separation of powers The division of governmental power among the legislative, executive,
and judicial branches.
Servant In law, an archaic term sometimes used to mean employee.
Service The delivery of a pleading or other paper in a lawsuit to the opposing party.
Service mark A mark used to identify a service-oriented business.
Service of process See Service.
Session laws Statutes that are enacted and published for a particular session of the
legislature.
Settlement The resolution of a dispute between parties independent of the rendering of a
final decision by a trial or appellate court.
Settlement agreement A document that contains the arrangements agreed on by the parties
to a dispute.
Settlor See Donor.
Shareholders The owners of a corporation.
Shepardizing The process of using Shepard’s Citations to check a court citation to see
whether there has been any subsequent history or treatment by other court decisions.
Shepard’s Citations A book that contains nothing but citations. It serves three purposes: (1)
as a source for parallel citations; (2) as a source for subsequent history for a case or
statute; and (3) as a source for treatment by later courts of the case or statute you are
Shepardizing.
Short citation form A partial citation that may be used after you have given a complete
citation.
Signal A word or a phrase that precedes a citation to indicate the purpose for which the
citation is being given.
Signing Statement A written pronouncement issued by the President at the time a bill is
signed into law.
Simultaneous death clause A clause that states that if a person named as a beneficiary in
the will dies within a short period of time after the decedent dies, it will be assumed for
purposes of the will that the person in question failed to survive the decedent.
Slander Spoken defamation.
Slip laws A form in which statutes are published; they are printed individually at the time they
are first enacted.
Sole custody An individual has both physical and legal custody of the child.
Sole proprietorship A business owned by a single owner.
Solemnized marriage See Ceremonial marriage.
Solicitation Encouraging someone to commit a crime.
Sovereign immunity The prohibition against suing the government without the government’s
consent.
Sovereign powers The power of a government to do the things that are traditionally
considered necessary to govern, such as making and executing laws, collecting taxes,
signing treaties, and making war.
Special damages Indirect damages that must be foreseeable to be recovered.
Specific intent An intention to act and to cause a specific result.
Specific performance A requirement that a party fulfill his or her contractual obligations.
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Split custody One parent has both physical and legal custody during one part of the year,
and the other parent gets both physical and legal custody during the rest of the year.
Spoilation The destruction or alteration of relevant electronic documents.
Spousal immunity The prohibition against one spouse suing the other.
Stalking The intentional or knowing course of conduct that places a person in fear of
imminent physical injury or death to that person or that person’s family.
Standard scrutiny See Rational basis test.
Stand-your-ground laws Statutes that allow citizens to use deadly force without attempting
to retreat, even when they are threatened outside their homes.
Standing The principle that courts cannot decide abstract issues or render advisory
opinions; rather they are limited to deciding cases that involve litigants who are
personally affected by the court’s decision.
Standing to sue The requirement that a potential litigant have a sufficient stake in the
outcome of the case before being accepted as a party in the case.
Stare decisis The doctrine stating that normally once a court has decided one way on a
particular issue, it and other courts in the same jurisdiction will decide the same way on
that issue in future cases given a similar set of facts, unless they can be convinced of
the need for change.
State action requirement A court-imposed requirement that most constitutional protections
apply only if a governmental entity is involved. A defendant cannot be charged with
violating a constitutional right unless acting as an agent of a governmental entity.
State’s attorney A law officer who represents the state in criminal cases. Also known as a
district attorney.
Statute A law enacted by a state legislature or by Congress.
Statute in derogation of the common law A statute that changes the common law.
Statute of frauds A statutory requirement that in order to be enforceable certain contracts
must be in writing.
Statute of limitations The law that sets the length of time from when something happens to
when a lawsuit must be filed before the right to bring it is lost.
Statutes at large or session laws The chronological publication of statutes at the end of a
legislative session.
Statutory element A separable part of a statute that must be satisfied for the statute to
apply.
Stay the judgment A suspension of the judgment. It is often requested when the trial court
judgment is being appealed.
Stipulate To agree.
Stop and frisk The right of the police to detain an individual for a brief period of time and to
search the outside of the person’s clothing if the police have a reasonable suspicion that
the individual has committed or is about to commit a crime.
Strict construction An approach whereby the courts give a statute a narrow interpretation.
Strict liability Liability without having to prove fault.
Strict scrutiny test Applied to cases of alleged discrimination when there is a suspect
classification or a fundamental right involved; the government must prove the
challenged action was necessary to achieve a compelling government interest and was
the least restrictive means available. Also known as compelling interest test.
String citation A series of citations in a row.
Subject matter jurisdiction The power of a court to hear a particular type of case.
Subpoena A court order requiring a person to appear to testify at a trial or deposition.
(Administrative agencies also usually have subpoena powers.) Subpoena duces tecum
A court order that a person who is not a party to litigation appear at a trial or deposition
and bring requested documents.
Subsequent case history Information about what happened procedurally to the litigation
after the case cited. Include this information in a citation.
Substantial capacity test Part of the Model Penal Code; a test that provides that the
defendant is not guilty due to insanity if, at the time of the killing, the defendant lacked
either the ability to understand that the act was wrong or the ability to control the
behavior.
Substantial performance Although a breach of contract, performance of all the essential
terms of the contract will entitle the breaching party to the contractual price minus any
damages caused by the breach.
Substantive due process The requirement that governments not deprive anyone of life,
liberty, or property where the law being violated is found to be arbitrary or unreasonable.
Substantive facts Things that happened to the parties before the litigation began and that
are relevant to their claims.
Substantive law Law that creates rights and duties.
Successive conflict of interest Representing someone who is in a position adverse to a prior
client.
Suicide The deliberate termination of one’s own life.
Summary judgment A judgment based on a finding that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment motion A request for a summary judgment. Also known as a Rule 56
motion.
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Summary jury trial A nonbinding process in which attorneys for both sides present synopses
of their cases to a jury, which renders an advisory opinion on the basis of these
presentations.
Summons A notice informing the defendant of the lawsuit and requiring the defendant to
respond or risk losing the suit.
Superseding cause In negligence, an intervening cause that relieves the defendant of liability.
Support See Alimony.
Supra Above; used to refer to authority already cited in the document. May not be used with
citations to cases, statutes, or constitutions.
Supreme Court Reporter A West publication containing U.S. Supreme Court decisions.
Surrogacy contract A document in which a woman agrees to conceive and give birth to a
child, deliver the child to its natural father, and terminate her parental rights so the
father’s wife can become its adoptive mother.
Suspension A determination that an attorney may not practice law for a set period of time.
Symbolic speech The use of physical actions, rather than words, to express a point of view.
Syllabus A summary of a court opinion that appears at the beginning of the case.
Synthesis The process of integrating a series of cases in such a way that their
interrelationship is explained to the reader.
Tangible property Also known as chattel; personal property, such as automobiles, jewelry,
and clothing, that can be touched and moved.
Temporary restraining order (TRO) A court order of limited duration designed to maintain the
status quo pending further court action at a later date.
Tenancy at sufferance A situation in which the person in possession of the land has no legal
right to be there.
Tenancy at will An arrangement in which no time period is specified and the lessee can leave
or the lessor can reclaim the land at any time.
Tenancy in common Ownership by two or more people. When a tenant in common dies, that
person’s share passes either by will or by intestate statute.
Tenancy by the entirety A special type of joint tenancy applicable only to married couples.
Tenancy for a term or estate for years A right to control real property for a set period of time.
Testamentary capacity The mental capacity, also known as sound mind, whereby the
testator understands the nature of his or her property and the identity of those most
closely related to him or her.
Testamentary trust A trust that is created by a will and does not become effective until after
the testator’s death.
Testator/testatrix The person making a will to direct how his or her assets will be distributed
at death.
Theft Also known as larceny; the taking of another’s property with the intent to permanently
deprive the owner.
Third-party claim A claim by a defendant against someone in addition to the persons the
plaintiff has already sued.
Time and place restrictions Governmental restrictions that limit when and where free
expression activities can take place or require that a permit be obtained in advance.
Title VII Federal statute that prohibits discrimination in employment because of an
individual’s race, religion, color, sex, or national origin.
Title insurance Insurance against any loss due to a defective title.
Title search An examination of documents recording title to a property to ensure the owner
has a clear title.
Tort Harm to a person or a person’s property.
Tort law Law that deals with harm to a person or a person’s property.
Tortfeasor A person who commits a tort.
Trademark A name, combination of letters or numbers, or logo that identifies a particular
product.
Trade secret A formula or process that has not been patented and is known by a limited
number of individuals working for the company that uses it.
Transferred intent A legal fiction that if a person directs a tortious action toward A but
instead harms B, the intent to act against A is transferred to B.
Treason Attempting to overthrow the government or betraying the government to a foreign
power.
Treatise A book that summarizes, interprets, and evaluates the law.
Treatment How subsequent cases have affected the case you are Shepardizing. It is
sometimes indicated by a one-letter abbreviation before the Shepard’s citation.
Trespass The unauthorized intrusion onto the land of another.
Trespass to personal property Occurs when someone harms or interferes with the owner’s
exclusive possession of the property but has no intention of keeping the property.
Trial The process of deciding a dispute by presenting evidence and witness testimony either
to a jury or to a judge.
Trial courts Courts that determine the facts and apply the law to the facts.
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Trust A legal relationship in which one party holds property for the benefit of another.
Trustee The person appointed to administer a trust.
12(b)(6) motion A request that the court find the plaintiff has failed to state a valid claim and
dismiss the complaint.
Ultrahazardous activities Those activities that have an inherent risk of injury and therefore
may result in strict liability.
Unauthorized practice of law When nonlawyers do things that only lawyers are allowed to
do. In most states this is a crime.
Unconscionable contract A contract formed between parties of very unequal bargaining
power where the terms are so unfair as to ‘‘shock the conscience.’’
Undue influence When one party is in a position of trust and misuses that trust to influence
the actions of another.
Unenforceable contract A valid contract that cannot be enforced, for example, because the
statute of limitations has passed.
Uniform Commercial Code (UCC) Originally drafted by the National Conference of
Commissioners on Uniform State Law, it governs commercial transactions and has
been adopted by all states entirely or in part.
Uniform Partnership Act (UPA) Known as a gap filler, the UPA comes into play only if terms
are left out of a partnership agreement.
Unilateral contract A contract where a promise is exchanged for an act.
United States Code (U.S.C.) Federal statutes arranged by subject matter.
United States Code Annotated (U.S.C.A.) Federal statutes arranged by subject matter,
published by West.
United States Code Service (U.S.C.S.) Federal statutes arranged by subject matter,
published by Lexis Law Publishing.
United States Constitution Drafted in 1787, it established the structure of the federal
government and the relationship between the federal and state governments.
United States courts of appeals The intermediate appellate courts in the federal system.
United States district courts The general jurisdiction trial courts in the federal system.
United States Law Week BNA’s publication of U.S. Supreme Court decisions.
United States Reports The official federal government publication of U.S. Supreme Court
decisions.
United States Sentencing Guidelines Government guidelines that specify an appropriate
range of sentences for each class of convicted persons based on factors related to the
offense and the offender.
United States Supreme Court The highest appellate court in the federal system, established
by Article III of the U.S. Constitution.
United States Supreme Court Reports, Lawyers’ Edition U.S. Supreme Court decisions
published by Lexis Law Publishing.
Unlawful detainer A civil action brought to recover use of property.
Unofficial reporter A private publication of court opinions — for example, the regional
reporters, such as N.E.2d, published by West.
Valid In logic, an argument is considered to be valid or sound if the assumptions underlying
the argument are true.
Valid contract A contract having all the essential elements needed for a binding agreement.
Venue When the court with the power to hear the case has multiple locations, the proper
location for the case to be filed and heard.
Verdict The opinion of a jury on a question of fact.
Verification An affidavit signed by the client indicating that he or she has read the complaint
and that its contents are correct.
Vicarious representation The rule whereby all members of a law firm are treated as though
they had represented the former client.
Victim impact statement A written or oral statement made by the victim of the crime (or the
family members of a deceased victim) that is presented at the sentencing hearing.
Visitation rights In family law, the legal right granted to a divorced or separated parent to
visit a child in the custody of the other parent.
Void In law, if an action is void, it has no legal effect.
Void contract A contract that is invalid even if it is not repudiated by either party; for
example, a contract formed for an illegal purpose.
Void for vagueness doctrine The requirement that a law imposing a criminal penalty must
be invalidated if it does not fairly inform a person of what is commanded or prohibited.
Void marriage A marriage that is invalid from its inception and that does not require court
action for the parties to be free of any marital obligations.
Voidable Something that is not automatically void but that under the right circumstances
may be set aside. See Voidable contract.
Voidable contract A valid contract that can be set aside at the option of one of the parties.
Voidable marriage A marriage that was valid when it was entered into and that remains valid
until either party obtains a court order dissolving it.
Voir dire An examination of a prospective juror to see if he or she is fit to serve as a juror.
Voluntary manslaughter See manslaughter.
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Warrant A court’s prior permission for the police to search and seize.
Warranty A guarantee, made by the seller or implied by law, regarding the character, quality,
or title of the goods being sold.
Warranty deed A deed in which the seller promises clear title to the property.
West Group A major private publisher of legal materials. Its logo is the key symbol.
Westlaw An on-line legal database containing court decisions and statutes from the entire
country, as well as secondary authority; a competitor to Lexis.
Will The document used to express a person’s wishes as to how his or her property should
be distributed upon death.
Writ A judge’s order requiring that something be done.
Writ of certiorari A means of gaining appellate review; in the U.S. Supreme Court, the writ is
discretionary and will be issued to another court to review a federal question if four of
the nine justices vote to hear the case.
Writ of execution A court order authorizing a sheriff to take property in order to enforce a
judgment.
Writ of habeas corpus A court order to produce the person detained; designed to give a
neutral judge an opportunity to review the charges, to ensure there is a lawful basis for
the incarceration.
Wrongful birth A tort; a parent sues on the basis that a medical professional negligently
caused a child’s birth.
Wrongful life A tort; a child sues on the basis that but for someone’s negligence the child
never would have been born.
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Table of Cases
Featured cases are in bold.
Abood v. Detroit Bd. Of Ed., 431 U.S. 209 (1977), 429
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), 421
Alaska Packers’ Assn. v. Domenico, 117 F. 99 (9th Cir. 1902), 311-12
Albanese v. Indelicato, 25 N.J. Misc. 144 (D. Ct. 1947), 446
Aleo v. SLB Toys USA, Inc., 995 N.E.2d 740 (Mass. 2013), 278-79
Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996), 408
Allegheny v. ACLU, 492 U.S. 573 (1989), 192
American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), 192-94
AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988 (Pa. Super. 2001), 306-08
Anglin v. State Dep’t of Transp., 472 So. 2d 784 (Fla. Dist. Ct. App. 1985), 251-53
Apodaca v. Oregon, 406 U.S. 404 (1972), 558
Arizona v. Johnson, 555 U.S. 323 (2009), 534
Arizona v. United States, 567 U.S. 387 (2012), 61-63, 534
Aronow v. Silver, 538 A.2d 851 (N.J. 1987), 445-47
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), 174
Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013), 368
Atkins v. Virginia, 536 U.S. 304 (2002), 516
Baldwin v. New York, 399 U.S. 66 (1970), 558
Barrington, United States v., 648 F.3d 1178 (11th Cir. 2011), 489-90
Bates v. State Bar of Arizona, 433 U.S. 350 (1977), 173
Batson v. Kentucky, 476 U.S. 79 (1986), 143
Baze v. Rees, 553 U.S. 35 (2008), 516
Benton v. Maryland, 395 U.S. 784 (1969), 161
Bigelow v. Virginia, 421 U.S. 809 (1973), 171
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), 539
BMW v. Gore, 517 U.S. 559 (1996), 278
Bob Jones University v. United States, 461 U.S. 574 (1983), 39-40
Boumediene v. Bush, 553 U.S. 723 (2008), 562
Bowles v. Russell, 551 U.S. 205 (2007), 561
Bradwell v. Ill., 83 U.S. 130 (1873), 205
Bronston v. United States, 409 U.S. 352 (1973), 585
Brooks v. Auburn, 296 F. Supp. 188 (1969), 163
Brooks v. City of San Mateo, 229 F.3d 917 (2000), 275
Brown v. Board of Education, 347 U.S. 483 (1954), 27, 107, 124, 204
Brown v. Texas, 443 U.S. 47 (1979), 534
Bucklew v. Prcythe, 139 S. Ct. 1112 (2019), 519
Buckley v. Valeo, 424 U.S. 1 (1976),171
Burnett v. National Enquirer, Inc., 144 Cal. App. 3d 991 (1983), 225-26
Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), 393
Cabaness v. Thomas, 232 P.3d 480 (Utah 2010), 229-32
Cantwell v. Connecticut, 310 U.S. 296 (1940), 161
Carpenter v. U.S., 138 S. Ct. 2206 (2018), 541-43
Carroll v. Carroll, 593 So. 2d 1131 (Fla. 1992), 458-60
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), 228
p. 655
p. 656
Ceglia v. Zuckerberg, 772 F. Supp. 2d 453 (W.D.N.Y. 2011), 99-101
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 174
Charles v. Seigfried, 651 N.E.2d 154 (Ill. 1995), 254
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), 359
Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993), 187, 512
Citizens United v. FEC, 558 U.S. 310 (2010), 171, 393
Cohen v. California, 403 U.S. 15 (1971), 174-76
Collins v. Virginia, 138 S. Ct. 1663 (2018), 538
Comino v. Kelley, 25 Cal. App. 4th 678 (1994), 465
Commonwealth v. Carter, 52 N.E.3d 1054 (2016), 494-96
Commonwealth v. Croken, 733 N.E.2d 1005 (Mass. 2000), 595-97
Commonwealth v. Gilbert, 673 N.E.2d 46 (Mass. 1996), 498-99
Commonwealth v. Robertson, 5 N.E.3d 522 (Mass. 2014), 492-93
Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198 (1941), 238-40
Corso v. Merrill, 406 A.2d 300 (N.H. 1979), 255
County of Riverside v. McLaughlin, 500 U.S. 44 (1991), 528
Craig v. Boren, 429 U.S. 190 (1976), 203
Dailey v. Popma, 662 S.E.2d 12 (N.C. App. 2008), 127-29
Davis v. Beason, 133 U.S. 333 (1890), 182
Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), 456
Dept. of Transportation v. Anglin, 502 So. 2d 896 (Fla. 1987), 253
De Jonge v. Oregon, 299 U.S. 353 (1937), 161
Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971), 411
Dillon v. Legg, 441 P.2d 912 (Cal. 1968), 10-12, 255
District of Columbia v. Heller, 554 U.S. 570 (2008), 104-07
Doe v. Miles Laboratories, Inc., 675 F. Supp. 1466 (D. Md. 1987), 270-72
Dolan v. City of Tigard, 512 U.S. 374 (1994), 361
Dukes v. Wal-Mart Stores, 131 S. Ct. 2541 (2011), 123
Duncan v. Louisiana, 391 U.S. 145 (1968), 161
EEOC v. Costco Wholesale Corporation, caselaw. findlaw.com/us-7th-circuit/1901047, 417
Ehlen v. Melvin, 823 N.W.2d 780 (N.D. 2012), 305-06
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), 417
Employment Div. v. Smith, 494 U.S. 872 (1990), 181, 186, 190, 511
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), 115-16
Escobedo v. Illinois, 378 U.S. 478 (1964), 544
Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), 280-82
Everson v. Board of Ed., 330 U.S. 1 (1947), 191
Ewans v. Wells Fargo Bank, 389 Fed. App. 383 (5th Cir. 2010), 236-37
Ewing v. California, 538 U.S. 11 (2003), 520
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), 275
FCC v. Pacifica, 438 U.S. 726 (1978), 174
Fenimore v. Smith, 930 P.2d 892 (Or. App. 1977), 461
Finsteuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), 121-22
Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967), 218
Florida v. Jardines, 133 S. Ct. 1409 (2013), 538
Flowers v. Mississippi, 139 S. Ct. 2228 (2019), 144
Frederick v. Morse, 551 U.S. 393 (2007), 177
Gagnon v. Shoblom, 565 N.E.2d 775 (Mass. 1991), 601-05
Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989), 262
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), 225
Gibbons v. Ogden, 22 U.S. 1 (1824), 54
Gideon v. Wainwright, 372 U.S. 335 (1963), 161
Gilbert v. General Electric, 429 U.S. 125 (1976), 37, 408
Ginsberg v. N.Y., 390 U.S. 629 (1968), 174
Gitlow v. New York, 268 U.S. 652 (1925), 161
Glossip v. Gross, 135 S. Ct. 2726 (2015), 516-17
Gonzales v. Raich, 545 U.S. 1 (2005), 55-57, 60
Gorman v. Abbot Laboratories, 559 A.2d. 1364 (RI 1991), 247
Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), 424-25
Griggs v. Duke Power Co., 401 U.S. 424 (1971), 414-15
Griswold v. Connecticut, 381 U.S. 479 (1965), 197-98
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), 425-26
Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 14 (1854), 338
Hall v. Florida, 134 S. Ct. 1986 (2014), 516
Hamer v. Sidway, 27 N.E. 256 (N.Y. 1891), 309-10
Hampton v. United States, 425 U.S. 484 (1976), 86
Harris v. Forklift Systems, 510 U.S. 17 (1993), 275, 417
Harris v. Jones, 380 A.2d 611 (Md. 1977), 232
Hawkins v. McGee, 146 A. 641 (N.H. 1929), 337
Hazelwood School Dist. v. Kuhlmeir, 484 U.S. 260 (1988), 177
p. 656
p. 657
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), 54
Heitt v. Lake Barcroft Community Ass’n, 418 S.E.2d 894 (Va. 1992), 258
Hiibel v. Nevada, 342 U.S. 177 (2004), 534
Hoffman v. Red Owl Stores, Inc., 133 N.W.2d 267 (Wis. 1965), 312-13
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012), 196
Hutchinson v. Proxmire, 443 U.S. 111 (1979), 226
Iancu v. Brunetti, 139 S. Ct. 2294 (2019), 367
Illinois v. Caballes, 543 U.S. 405 (2005), 538
In re A.R.A., 919 P.2d 388 (Mont. 1996), 461
In re C.K.G., 173 S.W.3d 714 (Tenn. 2005), 471
In re D.T., 818 N.E.2d 1214 (Ill. 2004), 68-70
In re Estate of Haviland, 255 P.3d 854 (Wash. Ct. App. 2011), 373-75
In re EWB Applying for Adoption, 441 So. 2d 478 (La. App. 1983), 461
In re K.M.H., 169 P.3d 1025 (Kan. 2007), 471
In re Marriage of Marshall, 663 N.E.2d 1113 (Ill. App. 1996), 463
In re Oliver, 333 U.S. 257 (1948), 161
In re Original Grand Jury Investigation, 733 N.E.2d 1135 (Ohio 2000), 583-85
In re Petition of John Doe and Jane Doe, 638 N.E.2d 181 (Ill. 1994), 467-69
In the Interest of B.R.S., 402 S.E.2d 281 (Ga. App. 1991), 476
In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988), 472
Irwin v. Town of Ware, 467 N.E.2d 1292 (Mass. 1984), 259-60
Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (N.Y. 1921), 330-31
Jacobellis v. Ohio, 378 U.S. 184 (1964), 173
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), 184
Janus v. American Federation of State, County, and Mun. Employees, Council 31, 138 S. Ct.
2448 (2018), 429
Jaworski v. Keirnan, 696 A.2d 332 (Conn. 1997), 262
J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), 546
Jennings v. Rodriguez, 138 S. Ct. 830 (2018), 199
Johnson v. Transportation Agency, 480 U.S. 616 (1987), 419-20
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 358
Kahler v. Kansas, 139 S. Ct. 1318 (Mem)(2019), 506
Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), 221-23
Kelo v. New London, 545 U.S. 469 (2005), 359-60
Kennedy v. Louisiana, 554 U.S. 407 (2008), 516
Klopfer v. North Carolina, 386 U.S. 213 (1967), 161
Knight v. Jewett, 3 Cal. App. 4th 1022 (1990), 263-65
Knight v. Jewett, 834 P.2d 696 (Cal. 1992), 255, 219-20
Knight First Amendment Institute at Columbia University v. Trump, 938 F.3d. 226 (2019), 181
Krist v. State, 179 S.E.2d 56 (Ga. 1970), 606
Lafler v. Cooper, 132 S. Ct. 376 (2012), 557
Lawrence v. Tex., 539 U.S. 558 (2003), 199
LeClair v. LeClair, 624 A.2d 1350 (N.H. 1993), 449
Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007),422
Lefkowitz v. Great Minneapolis Surplus Store, 86 N.W.2d 689 (Minn. 1957), 300-02
Lehr v. Robertson, 463 U.S. 248 (1983), 460
Lemon v. Kurtzman, 468 U.S. 602 (1971), 191, 194
Leong v. Takasaki, 520 P.2d 758 (Haw. 1974), 255
Leuer v. Johnson, 450 N.W.2d. 363 (MN 1990), 247
Long v. State, 931 S.W.2d 285 (Tex. 1996), 511
Loving v. Virginia, 388 U.S. 1 (1967), 205
Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992),361
Lucy v. Zehmer, 84 S.E.2d 516 (Va. 1954), 317-19
Lynch v. Donnely, 465 U.S. 668 (1984), 192
Lyons v. Legal Aid Soc’y, 68 F.3d 1512 (2d Cir. 1995), 427
MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), 267-68
Maddox v. State, 613 S.W.2d 275 (Tex. Crim. App. 1980), 590
Madison v. Alabama, 35 S. Ct. 718 (2019), 516-17
Malloy v. Hogan, 378 U.S. 1 (1949), 161
Manhattan Community Access Corporation v. Halleck, 139 S. Ct. 1921 (2019), 178
Maple Farms, Inc. v. City Sch. Dist., 352 N.Y.S.2d 784 (S. Ct. 1974), 334
Mapp v. Ohio, 367 U.S. 643 (1961), 107, 555-57
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),31
Marsh v. Chambers, 463 U.S. 783 (1983), 192
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), 443
Maryland v. King, 135 S. Ct. 1958 (2013), 545
Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), 208
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018),
187-89
Matthews v. Eldridge, 424 U.S. 319 (1976)
Matal v. Tam, 137 S. Ct. 1744 (2017), 365-67
Mbahaba v. Morgan, 44 A.3d 472 (N.H. 2012), 394-95
McCulloch v. Maryland, 17 U.S. 316 (1819), 53-54
McDonad v. Chicago, 561 U.S. 742 (2010), 161
p. 657
p. 658
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 413
McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004), 417
McGuiggan v. New England Telephone & Telegraph Co., 496 N.E.2d 141 (Mass. 1986), 254-55
McLoughlin v. Jones, 401 P.3d 492 (Ariz. 2017), 465
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), 151, 275, 416
Michael M. v. Superior Court, 450 U.S. 464 (1981), 205
Miller v. Alabama, 132 S. Ct. 2455 (2012), 519
Miller v. California, 413 U.S. 15 (1973), 173
Miller v. City Bank & Trust Co., 266 N.W.2d 687 (Mich. 1978), 388
Miranda v. Arizona, 384 U.S. 436 (1966), 107, 544-46
Missouri v. Frye, 132 S. Ct. 1399 (2012), 557
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), 539-41
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982), 205
Mohr v. Commonwealth, 653 N.E.2d 1104 (Mass. 1995), 470
Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 27 (2018), 423
Murphy v. National Collegiate Athletic Assn, 138 S. Ct. 1461 (2018), 63
NAACP v. Alabama, 357 U.S. 449 (1958), 161
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), 58
National Socialist Party v. Skokie, 432 U.S. 43 (1977), 512
Near v. Minnesota, 283 U.S. 697 (1931), 161
New York v. Ferber, 458 U.S. 747 (1982), 174
New York Times v. Sullivan, 376 U.S. 254 (1964), 181-82, 225
Nix v. Whiteside, 475 U.S. 157 (1986), 586-89
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), 60, 207, 439-41, 462, 465
O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), 424
O’Connor v. McDonald’s Restaurants, 220 Cal. App. 3d 25 (1990), 404-06
Oncale v. Sundowner Offshore Services, Inc., 523 U.S.75 (1998), 408, 417
Orr v. Orr, 440 U.S. 268 (1979), 457
Packingham v. North Carolina, 137 S. Ct. 1730 (2017), 178-180
Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y. 1928), 248-50
Parker v. Gladden, 385 U.S. 363 (1966), 161
Patch v. Hillerich & Bradsby Co., 257 P.3d 383 (Mont. 2011), 268-70
Pavan v. Smith, 137 S. Ct. 2075 (2017), 462
People v. Belge, 372 N.Y.S.2d 798 (Cnty. Ct. 1975), 576-78
People v. Wolff, 394 P.2d 959 (Cal. 1964), 502-05
Pierce v. Society of Sisters, 268 U.S. 570 (1925), 186
Plessy v. Ferguson, 163 U.S. 537 (1896), 27, 204
Plyler v. Doe, 457 U.S. 202 (1982), 199
Pointer v. Texas, 380 U.S. 400 (1965), 161
Powell v. Alabama, 287 U.S. 45 (1932), 161
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 413-14
Purcell v. D.A. for the Suffolk District, 676 N.E.2d 436 (Mass. 1997), 582-83
Quality Motors, Inc. v. Hays, 255 S.W.2d 326 (Ark. 1949), 315-16
Raffles v. Wichelhaus, 159 Eng. Rep. 375 (1864), 324
Reed v. Reed, 404 U.S. 71 (1971), 205
Reynolds v. United States, 98 U.S. (1878), 512
Riley v. California, 134 S. Ct. 2473 (2014), 541
Rhode Island v. Innis, 446 U.S. 291 (1980), 545
Robinson v. California, 370 U.S. 660 (1962), 161
Roe v. Wade, 410 U.S. 113 (1973), 107, 198-99
Romer v. Evans, 517 U.S. 620 (1996), 207
Roper v. Simmons, 543 U.S. 551 (2005), 516
Rostker v. Goldberg, 453 U.S. 57 (1981), 205
Roth v. United States, 354 U.S. 476 (1957), 173
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973), 202-03, 208
Santobello v. New York, 404 U.S. 257 (1971), 558
Sargon Enterprises, Inc. v. Univ. of Southern California, 288 P.3d 1237 (Cal. 2012), 3338-40
Sauer v. Hebrew Institute, 233 N.Y.S.2d 1008 (N.Y. App. Div. 1962), 245-46
Sawyer v. Food Lion, Inc., 549 S.E.2d 867 (N.C. 2001), 261
Schenck v. United States, 249 U.S. 47 (1919), 162
Schick v. Ferolito, 76 A.2d 962 (N.J. 2001), 261
Scott v. Illinois, 440 U.S. 367 (1979), 549
Seeger, United States v., 380 U.S. 163 (1965), 183
Shelley v. Kraemer, 344 U.S. 1 (1948), 205, 358
Sherbert v. Verner, 374 U.S. 398 (1963), 186, 196
Sindell v. Abbott Laboratories, 607 P.2d 9234 (Cal. 1980), 247
Skinner v. Oklahoma, 316 U.S. 535 (1942), 197
Smith v. City of Jackson, 554 U.S. 228 (2005), 425
Smith v. Maryland, 442 U.S. 735 (1979), 543
Snyder v. Phelps, 131 S. Ct. 1207 (2011), 164-66
Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (1st Cir. 2013), 369
p. 658
p. 659
Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), 579-82
Stanley v. Illinois, 405 U.S. 645 (1972), 460
Staples v. United States, 511 U.S. 600 (1994), 499
State v. Lopez, 514 U.S. 549 (1995), 55
State v. Macumber, 544 P.2d 1048 (Ariz. 1976), 607
Stern v. Marshall, 131 S. Ct. 2594 (2011),94
Steuck v. Easley, 785 N.W.2d 631 (Wis. Ct. App., 2010), 362-63
Sumers v. Tice, 199 P.2d 1 (Cal. 1948), 246-47
Swidler v. United States, 524 U.S. 399 (1988), 572
Terrell v. Torres, 438 P.3d 681 (2019), 454-56
Terry v. Ohio, 392 U.S. 1 (1968), 534
Texas v. Johnson, 491 U.S. 397 (1989), 167-70, 512
Tiberino v. Spokane County, 13 P.3d 1104 (Wash. App. 2000), 228
Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011), 423
Times v. Sullivan, 376 U.S. 254 (1964), 181
Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969), 177
Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), 195
Troxel v. Granville, 530 U.S. 57 (2000), 460-61
Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016), 124
United States v. _ . See defendant’s name.
United Steel Workers v. Weber, 444 U.S. 193 (1979), 418-21
Van Dyke v. Bixby, 448 N.E.2d 353 (Mass. 1983), 389-90
Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976), 172
Virginia v. Black, 538 U.S. 343 (2003), 175
Virginia, United States v., 518 U.S. 515 (1996), 205-06, 512
Vokes v. Arthur Murray, 212 So. 2d 906 (Fla. Dist. Ct. App. 1968), 322-24
Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997), 408
Watts v. United States, 394 U.S. 705 (1969), 175
Webster Street Partnership, Ltd. v. Sheridan, 368 N.W.2d 439 (Neb. 1985), 314
Webster v. Blue Ship Tea Room, 198 N.E.2d 309 (Mass. 1964), 327-28
Weirum v. RKO General Inc., 539 P.2d 36 (Cal. 1975), 239-40
Wickard v. Filburn, 317 U.S. 111 (1942), 56
Williams v. Florida, 399 U.S. 78 (1970), 558
Wisconsin v. Mitchell, 509 U.S. 476 (1993), 175, 513
Wisconsin v. Yoder, 406 U.S. 205 (1972), 184-85
Wolf v. Colorado, 338 U.S.25 (1949), 161
Woods v. Lancet, 102 N.E.2d 691 (N.Y. 1951), 241-44
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), 421
Yick Wo v. Hopkins, 118 U.S. 356 (1886), 199
York v. Walkiakum School Dist. No. 200, 178 P.3d 995 (Wash. 2008), 33-34
Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 192
p. 659
p. 661
Index
#MeToo Movement, 116, 273-75
Civil Rights Act of 1964, 274-75, 358, 407-23
Confidentiality clauses, 273
Employment contracts, 273
Harassment, 276, 416-18
Mandatory arbitration, 273
Non-disclosure agreements, 273
Sexual assault, 274
Sexual harassment, 273-75
12(b)(6) Motion, 136-37
ABA. See American Bar Association
Abandoned property, 364
Absolute defense, 226
Absolute privilege, 259-60
Abstract (in real estate), 355
Abuse of process, 233
Accessory. See Accomplice
Accessory after the fact, 499
Accessory before the fact, 499
Accept, 303
Acceptance, 297-299, 303-06, 354
Accept, 303
Boilerplate, 304
Counteroffer, 303-06, 353
Materially alter, 304-06, 335
Mirror image rule, 303-06
Quasi-contract, 306-08
Reject an offer, 303
Access to justice, 597-605
Contingency fee, 600
Legal Aid, 600
Legal document assistant (LDA), 600
Legal document preparer (LDP), 600
Licensed paralegal practitioner (LPP), 600
Limited licensed legal technician (LLLT), 600
Pro bono, 599
Unlawful detainer assistant (UDA), 600
Accomplice (accessory), 499
Accord and satisfaction, 333, 336
Actual cause (cause in fact), 246-50
Actual damages. See Compensatory damages
Actual intent, 413
Actus reus (bad act), 72, 491-94
Actual malice. See Malice
ADA.See Americans with Disability Act of 1990
ADEA. See Age Discrimination in Employment Act of 1967
Adequacy of consideration, 310-11, 320-21
Adhesion contract, 320-21
Administrative agency, 37-41, 129
Administrative law, 37-41
Administrative agency, 37-41, 129
Enabling act, 38
Executive memorandum, 37, 41
Executive orders, 37, 41
Fourth branch of government, 39
Regulations, 7-8, 35, 38-41
Administrative law judges, 129
Administrator/administratrix, 372-73
Adoption records, 469-70
Adoptions, 466-70
Adoption records, 469-70
Adult adoptions, 466
Agency adoptions, 466
Birth certificate, 462, 464
Independent adoptions, 466
Open adoptions, 466
Wrongful adoption, 470
Adult adoptions, 466
Adultery, 448
Adversarial system, 142
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Fifth Amendment, 161, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourth Amendment, 161, 198, 511, 531-44, 569
Inquisitorial system, 142, 569
Right to counsel, 161, 511
Search and seizure, 161, 197, 511, 534-44
Self-incrimination, 161, 197, 511, 532, 544-47
p. 661
p. 662
Adversarial system (cont’d)Sixth Amendment, 161, 197, 533, 544-47, 558-59, 569
Adverse possession, 361-62
Affinity, 375
Affirm, 9, 16, 87, 150
Affirmative action, 418-21
Affirmative action plan, 418-21
Equal protection, 199-209, 420-21, 457
Fourteenth Amendment, 31, 196-205, 359-61, 420-21, 457, 485, 511, 550, 558-59
Reverse discrimination, 420-21
Strict scrutiny (compelling interest test), 200-04, 421
Title VII of the Civil Rights Act of 1964, 407-23
Affirmative action plan, 418-21
Affirmative defense, 73-74, 133, 256-58
Age discrimination, 208, 423-26
Age Discrimination in Employment Act of 1967 (ADEA), 423-26
Disparate impact, 414-16, 424-26
Disparate treatment, 412-16, 424-26
Facially neutral, 415-16, 425
Reasonable factor other than age (RFOA) provision, 425
Age Discrimination in Employment Act of 1967 (ADEA), 423-26
Agency adoptions, 466
Agency law, 401-06
Agent, 401-04
Fiduciary duty, 391-92, 401-04
Principal, 401-04, 499
Respondeat superior, 124, 403-06
Scope of employment, 404-06
Agent, 401-04
Agreement, 332-33
Alibi, 500
Alienation of affection, 445
Alien corporation, 392
Alimony (maintenance, support), 450, 457
Alternative dispute resolution (ADR), 112-17
Arbitration, 113-17
Mediation, 113-14, 452
Settlement, 112
Ambiguity, 7, 19, 32, 35-37, 313
American Bar Association, 570-72, 591
Americans with Disabilities Act of 1990 (ADA), 426-27
Disability, 426-27
Qualified individual with a disability, 427
Reasonable accommodation, 426-27
Analogous, 103
Annulment, 447-48
Capacity, 313
False representation, 448
Fraud, 233, 276, 314, 321-24, 373, 448
Intoxication, 316-19
Legal annulment, 448
Mental incompetence, 319-20
Minors, 314-16, 476-77, 519-20
Religious annulment, 448
Void, 258, 296-97, 316-20, 434
Voidable, 297, 314-16, 319, 476
Answer, 130, 133-35
Affirmative defense, 73-74, 133, 256-58
Antenuptial agreements. See Premarital agreements
Anti-heart-balm statute, 444-47
Appeal (civil), 148-51
Affirm, 9, 16, 87, 150
Appellate brief, 13, 148
Clearly erroneous, 149
Concurring opinion, 10, 88
Dissenting opinion, 10, 88
Exhaustion, 148
Harmless error, 87, 149
Majority opinion, 10, 88
Remand, 10, 16, 87, 150
Reverse, 10, 16, 87, 150
Reversible errors, 87, 149
Writ of certiorari, 92-93, 150
Appeal (criminal), 561
Appellee, 86, 149
Appellant, 86, 148
Appellate brief, 13, 148
Appellate court, 84, 86-88, 96, 149-50
Appeal, 148-51
Appellee, 86, 149
Appellant, 86, 148
En banc, 92
Appropriation, 228
Arbitration, 113-17
Armed robbery, 491-93
Arraignment, 552
Arrest, 547-48
Arson, 488
Article I Powers (Legislative), 29, 90
Article II Powers (Executive), 29, 90
Article III Powers (Judicial), 29, 89, 97
Articles of confederation, 29
Articles of incorporation, 391
Articles of organization, 395
Artisan’s lien, 233
Assault, 217-33, 263-65, 488
Assignee, 334-35
Assignment, 334-35
Assignor, 334-35
Assistance of counsel, 197, 533, 544-47, 569
Assisted reproduction, 470-74
Donor Sibling Registry, 471
Egg donation, 470-72
Parental rights, 471, 475
Sperm donations, 470-72
Surrogacy contracts, 472-73
Assisting suicide, 487
Assumption of risk, 77, 257-58, 272
Attachment, 399
Attorney-client privilege, 573-74
Attorney work product, 575
Confidential information, 590-91
Disclosure, 228
Mandatory disclosure rules, 575
Rules of evidence, 520, 573, 591
Attorney work product, 575
At will employment, 406-07, 430-31
Implied covenant to act in good faith, 431
Public policy exception (in employment law), 431
Authority Mandatory authority, 8-9
Persuasive authority, 8
Bad act.See Actus reus
Bad intent. See Mens rea
p. 662
p. 663
Bail, 197, 548-49
Bail bondsman, 549
Bailee, 364
Bailment, 364
Bailor, 364
Balancing tests, 162
Battered spouse syndrome, 220, 508-09
Battery, 76, 217-33, 263-65, 488
Bearer paper, 397-99
Bench trial, 86, 92
Beneficiary, 370
Benefit of the bargain, 298
Benefit to the promisor, 309-10
Bequest (legacy), 370
Best interest of the child, 460
Beyond a reasonable doubt, 67, 551, 559
BFOQ. See Bona fide occupational qualification
Bifurcated trial, 147
Bilateral contract, 296-97, 303
Bilateral mistake, 324
Bill, 35
Bill of Rights, 30-31, 158-99, 569
Balancing tests, 162
Cruel and unusual punishment, 161, 516-20
Double jeopardy, 65-66, 87, 161, 197, 514, 561
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Eighth Amendment, 161, 197, 516-20, 548-49
Equal protection, 199-209, 420-21, 457
Exclusionary rule, 161, 553-57
Fifth Amendment, 161, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
First Amendment, 31, 160-96, 198, 275-76, 511-12
Fourth Amendment, 161, 198, 511, 531-44, 569
Freedom of association, 161
Freedom of contract, 161, 320-21
Freedom of expression, 161-82
Free exercise of religion clause, 161, 182-91
Freedom of religion, 161, 511
Freedom of speech, 161-82, 511-12
Freedom of the press, 161
Ninth Amendment, 161, 198
Privacy, 161, 197, 228
Public trial, 161, 197
Right to a jury trial for a serious offense, 161
Right to an impartial jury, 161
Right to bear arms, 161
Right to confront and cross-examine, 161
Right to counsel, 161, 511
Right to peaceably assemble, 161
Right to petition, 161
Search and seizure, 161, 197, 511, 534-44
Second Amendment, 161
Self-incrimination, 161, 197, 511, 532, 544-47
Seventh Amendment, 161, 142
Sixth Amendment, 161, 197, 533, 544-547, 558-59, 569
Speedy trial, 161, 197
Tenth Amendment, 63-64, 161
Third Amendment, 161, 198
Binding contract, 298
Birth certificate, 462, 464
Board of directors, 391-392
Boilerplate, 304
Bona fide occupational qualification (BFOQ), 410-12
Booking, 547-48
Breach of duty, 76, 234, 244-46
Actual cause (cause in fact), 246-250
Assumption of risk, 77, 257-58, 272
But for standard, 246-50
Causation, 76, 234, 246-55
Duty of care, 76, 234-44
Dramshop laws, 254-55
Foreseeability, 238-44
Intervening cause, 247-53
Market share theory, 247
Objective standard, 244-45
Proximate cause, 247-50
Reasonable person standard, 76, 238-39, 244, 322, 417
Res ipsa loquitur, 245
Social host liability, 251-55
Superseding cause, 250-53
Breach of promise, 445
Breach of warranty (contracts), 325-28
Disclaimers, 327
Express warranties, 325-26
Implied warranty of fitness, 325-26
Implied warranty of merchantability, 325-28
Breach of warranty (products), 267
Bribery, 491
Brief, 151
Broad holding, 15
Broken engagements, 444-47
Building permits, 357
Burden of production, 413-14
Burden of proof, 144, 413-14
Burglary, 488
Business necessity, 415
But for standard, 246-50
Buyer in the ordinary course of business, 400
Buying and selling real estate, 354-56
Earnest money, 354
Listing agreement, 354
Offer to purchase, 354
Real estate closing, 354
Campaign activities, 171-72
Capacity, 313
Intoxication, 316-19
Mental incompetence, 319-20
Minors, 314-16, 476-77, 519-20
Void, 258, 296-97, 316-20, 434
Voidable, 297, 314-16, 319, 476
Capital punishment, 516-19, 560-61
Case briefing, 10, 13-17
Reasons for briefing a case, 13
Format of a case brief, 13
Case citation, 13
Facts, 14
Rule, 14
Issues, 14
Holding, 15
Criticism, 17
Case citation, 13
p. 663
p. 664
Case of first impression, 103
Causation, 76, 234, 246-55
Cause of action, 6, 19, 73, 119
Cause in fact. See Actual cause
Causing suicide, 487
Cease and desist letter, 368
Ceremonial marriage (solemnized marriage), 442
Chain of custody, 533
Challenge for cause, 143
Change of venue, 558
Change of venire, 558
Charging the jury, 560
Charitable immunity, 258
Chattel. See Tangible property
Checks and balances, 30
Child abuse, 474-76
Clear and convincing, 67-70, 475
Guardian ad litem, 458, 475
Parental fitness, 475
Parental rights, 471, 475
Child custody, 444
Child labor, 428
Child neglect, 474-76
Clear and convincing, 67-70, 475
Guardian ad litem, 458, 475
Parental fitness, 475
Parental rights, 471, 475
Child support, 452, 457, 460-63
Child Support Recovery Act of 1992, 463
Custodial parent, 462-63
Deadbeat Parents Punishment Act of 1993, 463
Extradition, 463
Garnishment, 463
Noncustodial parent, 462-63
Uniform Interstate Family Support Act (UIFSA), 463
Uniform Reciprocal Enforcement of Support Act (URESA), 463
Child Support Recovery Act of 1992, 463
Chilling effect doctrine, 181
Civil action. See Civil suit
Civil law, 25, 65-71, 73-77
Civil Rights Act of 1866, 358
Civil Rights Act of 1964, 274-75, 358, 407-23
Civil suit, 66
Circuit Courts, 90-92
Class action suit 123-24
Clear and convincing, 67-70, 475
Clear and present danger, 162
Clearly erroneous, 149
Clear title (marketable title), 355
Closely held corporation, 392
Closing, 356
Real estate closing, 354-56
Closing arguments, 147, 560
Closing statement ,356
Codes, 35
Codicil, 371
Codification of the common law, 43
Collaborative divorce, 452
Collateral, 399-401
Collateral heir, 375
Collective bargaining, 429
Commerce clause, 54-58
Commercial bribery, 490
Commercial impracticability, 332-34
Commercial paper, 396-99
Bearer paper, 397-99
Draft, 396-99
Drawee, 396
Drawer, 396
Holder, 397-99
Holder in due course, 397-99
Indorsement in blank, 397
Installment contract, 398
Maker, 396
Negotiable instrument, 397-99
Nonnegotiable, 397-99
Note, 396-99
Order paper, 397-99
Payee, 396-397
Uniform Commercial Code (UCC), 292-94, 302-06, 312, 325-32, 364, 397-401
Commercial speech, 172-73
Common law, 6, 8, 41-43, 71, 78, 430-31
Codification of the common law, 43
Derogation of the common law, 43
Equity, 43, 306
Common-law crimes, 484-85
Common-law marriage, 442
Communication Decency Act of 1996, 227, 275-76
Community property states, 453
Commutation, 562-63
Comparative negligence, 77, 256-57
Gross negligence, 256-57, 261
Modified comparative negligence, 256-57
“Pure” comparative negligence, 256
Compelling interest test. See Strict scrutiny
Compelling state interest, 186, 200-01
Compensatory damages (actual damages), 74, 277, 337
Competency, 123, 516
Complaint, 78, 130-34
Count, 131
Electronic filing, 133
Service, 133
Summons, 133-34
Verification, 133
Complete defense, 500
Compulsory joinder, 125
Computer Fraud and Abuse Act of 1984, 488-90
Concurrent jurisdiction, 101
Concurring opinion, 10, 88
Confederation, 29
Confidential information, 590-91
Confidentiality, 572-93, 597
Attorney-client privilege, 573-74
Attorney work product, 575
Confidential information, 590-91
Disclosure, 228
Mandatory disclosure rules, 575
Rules of evidence, 520, 573, 591
Confidentiality clauses, 273
Conflict of interest, 444, 593-97
Consanguinity, 375
Consent, 220, 228, 442
Consequences of marriage, 443
Forced share, 443
Loss of consortium, 443
Marital property, 450
Consequential damages, 338-40
Consent to a search, 537-44
Consideration, 75, 297, 308-13
Adequacy of consideration, 310-11, 320-21
Adhesion contract, 320-21
Benefit to the promisor, 309-10
p. 664
p. 665
Detriment to the promisee, 309-10
Duress, 311, 325, 506-07
Gift, 297, 308, 311, 364
Past consideration, 308
Preexisting duty, 308
Promissory estoppel, 312-13, 329-30
Unconscionable contract, 311, 321
Undue influence, 311, 314, 324-25, 373-75
Constitutional courts, 89, 94
Constitutional law, 29-35, 158
Bill of Rights, 30-31, 158-99, 569
Checks and balances, 30
Commerce clause, 54-58
Doctrine of incorporation, 31
Eighth Amendment, 197, 516-20, 548-49
Fifth Amendment, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
First Amendment, 31, 160-96, 198, 275-76, 511-12
Fourteenth Amendment, 31, 196-05, 359-61, 420-21, 457, 485, 511, 550, 558-59
Fourth Amendment, 198, 511, 531-44, 569
Judicial review, 30-32
Federalism, 30, 53, 97
Ninth Amendment, 198
Separation of powers, 29
Seventh Amendment, 142
Sixth Amendment, 197, 533, 544-47, 558-59, 569
State action requirement, 31, 159
Tenth Amendment, 63-64
Third Amendment, 198
Constitutional interpretation, 104-06
Contextual approach, 105
Legislative history approach, 106
Originalism approach, 106
Plain meaning approach, 104-06
Constitutions, 7, 29, 32-34, 53
Contemporary community standards, 173
Content neutrality, 177
Contextual approach, 105-06
Contract defenses, 313-330
Capacity, 313
Genuineness of assent, 313
Illegal contracts, 320
Lack of genuineness of assent, 321-25
Mistake, 314, 324
Recklessness, 261-65, 321, 498
Statute of frauds, 328-30, 444
Unenforceable, 297
Violate public policy, 314
Warranties, 314, 325-28
Contract reformation, 340
Contracts, 74, 291-40, 444
Acceptance, 297-299, 303-06, 354
Bilateral contract, 296-97, 303
Consideration, 75, 297, 308-13
Executed (contracts), 296-98
Executory, 296-97
Express contracts, 296-97
Formal contracts, 296-97
Implied-in-fact contracts, 296-97
Informal contracts, 296-97
Offer, 297-03, 354
Termination of contractual duties, 330-34
Unilateral contract, 296-97
Constructive, 75
Constructive delivery, 75
Constructive eviction, 353
Content neutrality, 512
Contextual approach, 105
Contingency fee, 600
Contract reformation, 340
Contributory negligence, 77, 256, 265
Conversion, 233, 276
Copyright, 367-68
Copyright infringement, 367-68
Corporation, 391-93
Alien corporation, 392
Annual meetings, 386, 391-93
Articles of incorporation, 391
Articles of organization, 395
Board of directors, 386, 391-92
Closely held corporation, 392
Dividend, 391
Domestic corporation, 392
Double taxation, 386-91
Fiduciary duty, 391-92, 401-04
Foreign corporation, 392
Incorporate, 391
Limited liability, 386-93
Not for profit corporation, 392
Officers, 392
Pierce the corporate veil, 393
Public benefit corporation, 392
Shareholders, 391
Count, 131
Counteroffer, 303-06, 353
Court, 84-102
Court commissioners, 97
Court opinion, 8-20
Covenant not to compete, 320-21
Cover, 337
Creditor, 399-401
Crime, 484
Arson, 488
Assault, 217-33, 263-65, 488
Assisting suicide, 487
Battery, 76, 217-33, 263-65, 488
Bribery, 491
Burglary, 488
Cyberbullying, 275-76, 488
Kidnapping, 488
Intimidation, 488
Involuntary manslaughter, 498
Larceny, 488
Misdemeanor, 72, 485-86
Robbery, 488
Suicide, 487
Stalking, 488
Theft, 488
Treason, 491
Criminal defenses, 500-514
Alibi, 500
Duress, 311, 325, 506-07
Entrapment, 85-86, 507
Ignorance, 500
Insanity, 501-06
Intoxication, 316-19
Juveniles, 518-19
p. 665
p. 666
Criminal defenses (cont’d)
Juvenile courts, 500-01
Juvenile delinquents, 500-01
Mistake, 314, 324
Necessity, 233, 506-07
Overbreadth doctrine, 178, 511-12
Self-defense, 220, 498, 507-11
Void for vagueness doctrine, 178, 511-12
Criminal law, 25, 65-73, 483-520
Accomplice (accessory), 499
Actus reus (bad act), 72, 491-94
Beyond a reasonable doubt, 67, 551, 559
Criminal defenses, 500-14
Criminal statutes, 485
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Felony, 72, 485-486
Fifth Amendment, 196-199, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourteenth Amendment, 31, 196-05, 359-61, 420-21, 457, 485, 511, 550, 558-59
Hate crimes, 512-14
Hate speech, 175-76, 512-14
Inchoate crimes, 493-94
Lesser included offense, 492-93
Mens rea (bad intent), 72, 494-99, 501
Misdemeanor, 72, 485-86
Model Penal Code, 485-86, 496-99, 502-06, 560
Penalty enhancement statute, 175
Perjury, 491, 585-90
Principal, 401-04, 499
Quasi-criminal law, 486
Statutes, 7-8, 35, 71
Strict liability offenses, 499
Criminal procedure, 527-63
Appeal (criminal), 561
Arrest, 547-48
Arraignment, 552
Bail, 197, 548-49
Booking, 547-48
Cruel and unusual punishment, 161, 516-20
Discovery (criminal), 552-57
Double jeopardy, 65-66, 87, 161, 197, 514, 561
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Eighth Amendment, 161, 197, 516-20, 548-49
Equal protection, 199-209, 420-21, 457
Exclusionary rule, 553-57
Fifth Amendment, 161, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
First Amendment, 31, 160-96, 198, 275-76, 511-12
Fourth Amendment, 161, 198, 511, 531-44, 569
Grand jury, 197, 549-52
Initial appearance, 548-49
Interrogations, 544-47
Investigation, 530-48
Petition for executive clemency, 562
Plea bargaining, 552, 557-58
Preliminary hearing, 549-52
Probable cause, 532-44, 547, 551
Right to a jury trial for a serious offense, 161
Right to confront and cross-examine, 161
Right to counsel, 161, 511
Rules of criminal procedure, 117, 528
Rules of evidence, 520, 573, 591
Search and seizure, 161, 197, 511, 534-44
Search warrants, 530, 532, 534-44
Self-incrimination, 161, 197, 511, 532, 544-47
Sentencing, 560-61
Sixth Amendment, 161, 197, 533, 544-47, 558-59, 569
Speedy trial, 161, 197
Witnesses, 530
Writ of habeas corpus, 561-62
Victim, 67, 530
Victim impact statement, 530, 561
Victim’s Bill of Rights, 530
Criminal statutes, 485
Criticism, 17
Cross-claim, 131
Cross-examination, 145-46, 559-60
Cruel and unusual punishment, 516-20
Curtilage, 538
Custodial interrogation, 544-47
Custodial parent, 462-63
Custody, 457-58, 544-47
Guardian ad litem, 458, 475
Joint legal custody, 457-58
Joint physical custody, 458
Nesting, 458
Legal custody, 457
Physical custody, 458-49
Sole custody, 457
Split custody (divided), 458
Cyberbullying, 275-76, 488
Conversion, 233, 276
Defamation, 223-27, 261, 276
Stalking, 488
Cybertorts, 276
Communication Decency Act of 1996, 227, 275-76
Conversion, 233, 276
Defamation, 223-27, 261, 276
Fraud, 233, 276, 314, 321-24, 373, 448
Damages, 70-71, 147, 336-40, 421-23
Compensatory damages (actual damages), 74, 277, 337
Consequential damages, 338-40
Contract reformation, 340
Cover, 337
General damages, 277
Injunction, 43, 70-71, 277
Liquidated damages clause, 340
Mitigation of damages, 337
Money damages, 298
Nominal damages, 74, 280
Punitive damages, 74, 277-80, 421
Special damages, 277
Specific performance, 43, 298, 336
DBA certificate. See Doing business as certificate
p. 666
p. 667
Deadbeat Parents Punishment Act of 1993, 463
Deadly force, 506-11
Death penalty, 516-19
Debtor, 399-01
Decedent, 375
Descendant, 375
Decision, 150
Declaration of independence, 29
Deed, 355
Defamation, 223-27, 261, 276
Malice, 225
Public figures, 224-26
Public officials, 224-26
Defamation per se, 224
Default judgment, 134
Defect, 314
Defendant, 66-67
Defense, 72-74, 499-14
Defense of others, 220
Defense of property, 220-23
Delegation, 335-36
Deponent, 139
Depositions, 138-39
Derogation of the common law, 43
Desertion, 448
Destruction of the subject matter, 303
Deterrence, 516
Detriment to the promisee, 309-10
Devise, 370
Dictum, 16
Direct examination, 145-46
Directed verdict, 146
Disability, 426-27
Disaffirm, 314-16, 476
Disclaimers, 327
Disclosure, 228
Discovery (civil), 137-41
Depositions, 138-39
Electronic discovery, 140
Interrogatories, 138
Request for admissions, 140
Subpoena duces tecum, 140
Discovery (criminal), 552-57
Exclusionary rule, 553-57
Exculpatory evidence, 553
Fruit of the poisonous tree doctrine, 553-57
Inculpatory evidence, 553
Discrimination, 204-08, 351
Age discrimination, 208, 423-26
Compelling state interest, 200-01
Economic discrimination, 208
Sexual orientation discrimination, 207, 408
Important state interest, 200-01
Intermediate scrutiny (heightened scrutiny), 201-04
Legitimate state interest, 200-01
Race discrimination, 204-05
Sex discrimination, 205, 407-23
Sexual orientation discrimination, 207, 408
Standard scrutiny (rational basis test), 200-04
Strict scrutiny (compelling interest test), 200-04, 421
Discriminatory intent, 413
Dismissal, 141
Dismissal with prejudice, 141
Disparagement clause, 365-66
Disparate impact, 414-16, 424-26
Disparate treatment, 412-16, 424-26
Disposition, 9, 16
Dissenting opinion, 10, 88
Distinguishable, 19, 103
Distribution of property, 444, 453
District Attorney, 530
Diversity of citizenship, 98-99
Divided custody. See Split custody
Dividend, 391
Divorce decree, 452
Divorce/dissolution, 448-64
Alimony (maintenance, support), 450, 457
Custody, 457-458, 544-47
No-fault divorce, 448-49
Divorce decree, 452
Divorce procedures, 449-52
Property settlements, 452-56
Divorce procedures, 449-52
Alimony (maintenance, support), 450, 457
Alternative dispute resolution (ADR), 112-17
Child support, 452, 457, 460-63
Collaborative divorce, 452
Divorce decree, 452
Marital property, 450
Mediation, 113-14, 452
Modification, 452
Participation agreements, 452
Petition for dissolution, 448-52
Property settlements, 452-56
Protection order, 450
Settlement agreement, 450
Temporary restraining order (TRO), 450
DNR. See Do-Not-Resuscitate
Doctrine of equitable distribution, 453
Doctrine of implied powers, 53
Doctrine of incorporation, 31
Document preparer, 600
Domestic corporation, 392
Doing business as (DBA) certificate, 385
Donor, 371
Donor Sibling Registry, 471
Do-Not-Resuscitate (DNR), 372
Double jeopardy, 65-66, 87, 197, 514, 561
Double taxation, 386-91
Draft, 396-399
Dramshop laws, 254-55
Drawee, 396
Drawer, 396
Due care, 238
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Fifth Amendment, 196-199, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourteenth Amendment, 31, 196-05, 359-61, 420-21, 457, 485, 511, 550, 558-59
Procedural due process, 197
Substantive due process, 197-99
Durable power of attorney, 371-72
Duress, 311, 325, 506-07
Duty of care, 76, 234-44
Breach of duty, 76, 234, 244-46
Contributory negligence, 77, 256, 265
Duty of care, 76, 234-44
Foreseeability, 238-44
Misfeasance, 239-40
Nonfeasance, 239-40
p. 667
p. 668
Duty of care (cont’d)
Reasonable person standard, 76, 238-39, 244, 322, 417
Wrongful birth, 244
Wrongful life, 244
Earnest money, 354
Easement, 358
Economic discrimination, 208
E-filing. See Electronic filing
Egg donation, 470-72
Eighth Amendment, 197, 516-20, 548-49
Cruel and unusual punishment, 161, 516-20
Electronic discovery, 140
Electronically stored information, 140
Electronic filing, 133
Emancipated minor, 477
Eminent domain, 359-61
Fifth Amendment, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourteenth Amendment, 31, 196-05, 359-61, 420-21, 457, 485, 511, 550, 558-59
Just compensation, 359-61
Public use, 359
Taking, 359-61
Employee Retirement Income Security Act of 1974 (ERISA), 430
Employees, 402-06, 408
Employment contracts, 273
Employment law, 406-31
Enabling act, 38
Enacted law, 6, 53, 59-60
En banc, 92
Encumbrance, 355
Engagements, 444-47
Alienation of affection, 445
Anti-heart-balm statute, 444-47
Breach of contract, 445
Breach of promise, 445
Engagement rings, 445
Engagement rings, 445
Entrapment, 85-86, 507
Equal Employment Opportunity Commission (EEOC), 407, 422
Equal protection, 199-209, 420-21, 457
Compelling state interest, 200-01
Fourteenth Amendment, 31, 196-05, 359-61, 420-21, 457, 485, 511, 550, 558-59
Important state interest, 200-01
Intermediate scrutiny (heightened scrutiny), 201-04
Legitimate state interest, 200-201
Standard scrutiny (rational basis test), 200-04
Strict scrutiny (compelling interest test), 200-04, 421
Equity, 43, 306
Injunction, 43, 70-71, 277
Specific performance, 43, 298, 336
ERISA. See Employee Retirement Income Security Act of 1974
Escheat, 376
ESI. See Electronically stored information
Establishment of religion clause, 182-83, 191-96
Estate, 369
Estate for years, 352
Estate Planning, 369-77
Durable power of attorney, 371-72
Estate, 369
Living trust, 371
Living will, 371
Probate, 372-75
Trusts, 371
Wills, 369-71
Ethics, 570-72
Ethics opinions, 591
Evict, 353
Evolutionary approach, 28
Excessive bail, 548
Exclusionary rule, 553-57
Exclusive jurisdiction, 101
Exculpatory clause, 257, 321
Exculpatory evidence, 553
Execute a warrant, 536
Executed (contracts), 296-98
Executive clemency, 562-63
Commutation, 562-63
Pardon, 562-63
Reprieve, 562-63
Executive memorandum, 37, 41
Executive orders, 37, 41
Executor/executrix, 370-73
Executory, 296-97
Exempted employees, 428
Exhaustion, 148
Exhaustion of administrative remedies, 129-30
Exhibits, 144-45
Exigent circumstances, 536-44
Expectation of privacy, 532-33
Express contracts, 296-97
Express warranties, 325-26
Extradition, 463
Facially neutral, 415-16, 425
Fact bound, 6
Facts, 14
Factual mistake, 324
Failure to warn, 267
Fair Labor Standards Act of 1938, 427-28
Fair use, 367-368
False arrest, 233
False imprisonment, 223, 488
False light, 228
False representation, 448
False statements, 224-27
Family and Medical Leave Act of 1993 (FMLA), 428
Family Law, 437-77
Marriage, 439-64
Parent-child relationship, 464-77
Federal agency, 53
Federal Arbitration Act of 1924, 115-16
Federal court of appeals, 8
Federal court system, 88-94, 96
Article II Powers (Executive), 29, 90
Article III Powers (Judicial), 29, 89, 97
Circuit Courts, 90-92
Constitutional courts, 89, 94
Diversity of citizenship, 98-99
Federal court of appeals, 8
Federal district court, 8
Federal question jurisdiction, 97
Inferior courts, 89
Legislative courts, 94
Removal, 101
U.S. Courts of Appeal. See Circuit courts
U.S. District Courts, 89-92
U.S. Supreme Court, 90-94
Federal district court, 8
Federalism, 30, 53, 97
p. 668
p. 669
Federal issue. See Federal question
Federal law, 53-58, 96
Commerce clause, 54-58
Doctrine of implied powers, 53
Federalism, 30, 53, 97
Preemption, 60-64
Supremacy clause, 60-64
Federal question, 53, 98-99
Federal question jurisdiction, 97
Federal Register, 38, 41
Federal regulation, 53
Federal statute, 53
Federal Tort Claims Act (FTCA), 258
Felony, 72, 485-86
Fiduciary duty, 391-92, 401-04
Fifth Amendment, 196-199, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Double jeopardy, 65-66, 87, 161, 197, 514, 561
Eminent domain, 359-61
Grand jury, 549-51
Privacy, 161, 197, 228
Fighting words, 174-76
Final judgment, 148
Financial transactions, 395-01
Commercial paper, 396-99
Secured transaction, 399-401
Financing statement, 400
Findings of fact, 149
First Amendment, 31, 160-96, 198, 275-76, 511-512
Freedom of association, 161
Free market of ideas, 161-62
Freedom of religion, 511
Freedom of speech, 161-82, 511-12
Freedom of the press, 161
Right to peaceably assemble, 161
Right to petition, 161
First-degree murder, 486-87
Fixture, 350
Floating lien, 401
FMLA. See Family and Medical Leave Act of 1993
Forced share, 443
Foreclosure, 359
Foreign corporation, 392
Foreseeability, 238-44
Forgery, 490
Formal contracts, 296-97
Formal ethics opinions, 571-72
Formal hearing, 129
Formal will, 370
Format of a case brief, 13
Foreseeability, 247-53
Fourteenth Amendment, 31, 196-05, 359-361, 420-21, 457, 485, 511, 550, 558-59
Fourth Amendment, 198, 511, 531-44, 569
Exclusionary rule, 161, 553-57
Search and seizure, 161, 197, 511, 534-44
Fourth branch of government, 39
Fraud, 233, 276, 314, 321-24, 373, 448
Freedom of association, 161
Freedom of contract, 320-21
Freedom of expression, 161-82
Balancing tests, 162
Campaign activities, 171-72
Chilling effect doctrine, 181
Clear and present danger, 162
Commercial speech, 172-73
Content neutrality, 177
Fighting words, 174-76
First Amendment, 31, 160-96, 198, 275-76, 511-12
Hate speech, 175-76, 512-14
Indecent materials, 174
Indecent speech, 17
Obscene materials, 173-74
Overbreadth doctrine, 178, 511-12
Pornography, 173-74
Pure speech, 165-71
Symbolic speech, 167-71, 512
Time and place restrictions, 176-77
Void for vagueness doctrine, 178, 511-12
Freedom of the press, 161
First Amendment, 31, 160-96, 198, 275-76, 511-512
Free exercise of religion clause, 182-91
First Amendment, 31, 160-96, 198, 275-76, 511-512
Separation of church and state, 191
Free market of ideas, 161-62
Freedom of religion, 511
First Amendment, 31, 160-96, 198, 275-76, 511-12
Freedom of speech, 161-82, 511-12
Balancing tests, 162
Campaign activities, 171-72
Chilling effect doctrine, 181
Clear and present danger, 162
Commercial speech, 172-73
Content neutrality, 177
Fighting words, 174-76
First Amendment, 31, 160-96, 198, 275-76, 511-12
Hate speech, 175-76, 512-14
Indecent materials, 174
Indecent speech, 17
Obscene materials, 173-74
Overbreadth doctrine, 178, 511-12
Pornography, 173-74
Pure speech, 165-71
Symbolic speech, 167-71, 512
Time and place restrictions, 176-77
Void for vagueness doctrine, 178, 511-12
Symbolic speech, 167-71, 512
Frozen embryos, 453-56
Fruit of the poisonous tree doctrine, 553-57
Fundamental right, 201-04
Gap filler, 387
Garnishment, 463
Gay and lesbian partners in a divorce, 462
Gender identity discrimination, 408
General creditors, 400-01
General damages, 277
General deterrence, 514-15
General jurisdiction, 95
General partnership, 387
Genuineness of assent, 313
Gift, 297, 308, 311, 364
Guardian or “next friend”, 123, 319-20, 370
Guardian ad litem, 458, 475
Grand jury, 197, 549-52
Fifth Amendment, 196-199, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Indictment, 550
Probable cause, 532-44, 547, 551
Grandparents, 460
p. 669
p. 670
Grantor, 371
Gross negligence, 256-57, 261
Guest statutes, 262
Habitual offender statutes, 520
Harm, 76, 234, 255
Harmless error, 87, 149
Harassment, 276, 416-18
Hostile work environment, 416-18
Quid pro quo sexual harassment, 416-18
Reasonable person standard, 76, 238-39, 244, 322, 417
Same-sex harassment, 408, 417
Sex discrimination, 205, 407-23
Sexual harassment, 273-75
Hate crimes, 512-14
Hate speech, 175-76, 512-14
Heightened scrutiny. See Intermediate scrutiny
Heir, 375
Hierarchy of the law, 8, 44-45
Holder, 397-99
Holder in due course, 397-99
Holding, 15-16
Broad holding, 15
Narrow holding, 15
Holographic will, 370
Homeowner association regulations, 357-58
Homicide, 487, 497-99
Hostile work environment, 416-18
Ignorance, 500
Illegal contracts, 320
Immunities, 258-60
Charitable immunity, 258
Parental immunity, 258
Sovereign immunity, 74, 258
Spousal immunity, 258
Implied-in-fact contracts, 296-97
Implied consent, 537-41
Implied covenant to act in good faith, 431
Implied warranty of fitness, 325-26
Implied warranty of habitability, 353
Implied warranty of merchantability, 325-28
Important state interest, 200-01
Impossibility, 333
Inadvertent disclosure, 590-93
Incapacitation, 515
Inchoate crimes, 493-94
Incidental beneficiaries, 336
Incidental damages, 337
Incident to a lawful arrest, 536-44
Incorporate, 391
Inculpatory evidence, 553
Indecent materials, 174
Indecent speech, 17
Independent adoptions, 466
Independent contractors, 402-06, 408
Indictment, 550
Individual rights, 30-31
Indorsement in blank, 397
Inference, 498
Inferior courts, 89
Informal contracts, 296-97
Information, 551-52
Infringement, 367-68
Initial appearance, 548-49
Injunction, 43, 70-71, 277
In plain view, 537-38
Inquisitorial system, 142, 569
Insanity, 501-06
Irresistible impulse test, 501-02
M’Naghten test, 501-06
Model Penal Code, 485-86, 496-99, 502-06, 560
Substantial capacity test, 502-06
Installment contract, 398
Intangible property, 363
Intellectual property, 364-69
Copyright, 367-68
Disparagement clause, 365-66
Fair use, 367-368
Infringement, 367-68
Lanham Trade Act, 365
Patent, 368
Trademark, 365
Trade secret, 368
Service mark, 365
Intended beneficiaries, 336
Intent, 299-300
Intentional discrimination, 410-16
Actual intent, 413
Burden of production, 413-14
Burden of proof, 144, 413-14
Mixed motives, 414-15
Preponderance of the evidence, 67-70, 413, 425, 559
Pretext, 413-15, 424
Intentional infliction of emotional distress, 229-32
Intentional tort, 76, 216-34, 261
Abuse of process, 233
Assault, 217-33, 263-65, 488
Battery, 76, 217-33, 263-65, 488
Conversion, 233, 276
Defamation, 223-27, 261, 276
Defamation per se, 224
False arrest, 233
False imprisonment, 223, 488
Fraud, 233, 276, 314, 321-24, 373, 448
Intentional infliction of emotional distress, 229-32
Interference with a contractual relationship, 234
Invasion of privacy, 228
Malicious prosecution, 233
Recklessness, 261-65, 321, 498
Transferred intent, 218-19
Trespass to land, 232-33
Trespass to personal property, 233
Interference with a contractual relationship, 234
Intermediate scrutiny (heightened scrutiny), 201-04
Interrogations, 544-47
Custodial interrogation, 544-47
Custody, 457-458, 544-47
Fifth Amendment, 161, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Right to counsel, 161, 511
Self-incrimination, 161, 197, 511, 532, 544-47
Sixth Amendment, 161, 197, 533, 544-547, 558-59, 569
Interrogatories, 138
Interstate commerce clause, 407
Intervening cause, 247-53
Inter vivos trust, 371
Intestacy statutes, 377
Intestate, 370
p. 670
p. 671
Intestate succession, 375-77
Intimidation, 488
Intoxication, 316-19
Intoxication defense, 506
Intrusion, 228
Invasion of privacy, 228
Appropriation, 228
Disclosure, 228
False light, 228
Intrusion, 228
Inventory search, 537-38
Investigation, 530-48
Arrest, 547-48
Arraignment, 552
Bail, 197, 548-49
Booking, 547-48
Chain of custody, 533
Discovery (criminal), 552-57
Exclusionary rule, 553-57
Grand jury, 197, 549-52
Interrogations, 544-47
Initial appearance, 548-49
Plea bargaining, 552, 557-58
Preliminary hearing, 549-52
Search and seizure, 197, 511, 534-44
Search warrants, 530, 532, 534-44
Stop and frisk, 533-35
Involuntary loss of property, 358-363
Adverse possession, 361-62
Eminent domain, 359-61
Foreclosure, 359
Power of sale clause, 359
Involuntary manslaughter, 498
Irresistible impulse test, 501-02
Irrevocable trust, 371
Issues, 14-15
Joint and several liability, 386-87
Joint legal custody, 457-58
Joint liability, 386-87
Joint physical custody, 458
Joint property, 445, 452-56
Joint tenancy (joint tenancy with right of survivorship), 355
Joint tenancy with right of survivorship. See Joint tenant
Judgment, 70, 147
Judgment notwithstanding the verdict (judgment N.O.V.), 148
Judgment N.O.V. See Judgment notwithstanding the verdict
Judgment proof, 124
Judicial interpretation, 41-43
Stare decisis, 8, 19, 41, 102-03
Judicial review, 30-32
Judiciary Act of 1789, 89, 92
Jurisdiction, 84, 97-102, 125-29
Concurrent jurisdiction, 101
Diversity of citizenship, 98-99
Exclusive jurisdiction, 101
Federal question jurisdiction, 97
Minimum contacts, 126
Personal jurisdiction, 125-29
Subject matter jurisdiction, 125
Jurisprudence, 26-29
Evolutionary approach, 28
Natural law, 26
Originalism, 28
Legal formalism, 20
Legal positivism, 26
Legal realism, 27
Jury selection, 143-44
Challenge for cause, 143
Peremptory challenge, 143
Voir dire, 141
Jury trial, 86, 92, 142-44, 197, 558-60
Change of venue, 558
Change of venire, 558
Sixth Amendment, 161, 197, 533, 544-547, 558-59, 569
Just compensation, 359-61
Justices of the peace, 97
Justifiable homicide, 509
Justifiable reliance, 321-24, 329-30
Juveniles, 518-19
Juvenile courts, 500-01
Juvenile delinquents, 500-01
Kidnapping, 488
Kindred, 375
Knowingly, 497-98
Lack of genuineness of assent, 321-25
Duress, 311, 325, 506-07
Fraud, 233, 276, 314, 321-24, 373, 448
Meeting of the minds, 321
Mistake, 314, 324
Rescission, 322-24, 332, 336
Undue influence, 311, 314, 324-25, 373-75
Land contract, 356
Landlord/tenant law, 351-53
Lanham Trade Act, 365
Lapse of time, 303
Larceny, 488
Laws, 25
LDA. See Legal document assistant
LDP. See Legal document preparer
Leading question, 145
Lease, 352
Estate for years, 352
Leasehold, 352
Periodic tenancy, 352
Security deposit, 352
Tenancy at sufferance, 352
Tenancy at will, 352
Tenancy for a term, 352
Leasehold, 352
Least restrictive, 200-01
Legal Aid, 600
Legal analysis, 5-20
Analogous, 103
Dictum, 16
Disposition, 9, 16
Distinguishable, 19, 103
Fact bound, 6
Facts, 14
Holding, 15-16
Issues, 14-15
Legal issues, 9, 149
Legal reasoning, 18-19
Legal rules, 6
Mandatory authority, 8-9, 103
Persuasive authority, 8, 103
Precedent, 8-9, 19, 103
Procedural facts, 8-9, 14
Ratio decidendi, 16
Rules, 14-15, 41
Stare decisis, 8, 19, 41, 102-03
Substantive facts, 8, 14
Legal annulment, 448
Legal competence. See Competence
Legal custody, 457
Legal document assistant (LDA), 600
Legal document preparer (LDP), 600
Legal fiction, 75
Legal formalism, 20
Legal issues, 9, 149
Legal positivism, 26
p. 671
p. 672
Legal realism, 27
Legal reasoning, 18-19
Legal rules, 6
Legislative courts, 94
Legislative dominance, 104
Legislative history approach, 106
Legitimate state interest, 200-01
Lemon test, 191
Lessee/tenant, 352
Lesser included offense, 492-93
Lessor/landlord, 352
Libel, 224-26
License, 358
Licensed paralegal practitioner (LPP), 600
Lien, 355
Lien creditors, 400-01
Lilly Ledbetter Fair Pay Act of 2007, 422-23
Limited jurisdiction, 95
Limited liability company (LLC), 393-95
Articles of organization, 395
Limited liability, 386-93
Operating agreements, 395
Single taxation, 385-91, 393-95
Limited liability partnership (LLP), 393-95
Articles of organization, 395
Limited liability, 386-93
Operating agreements, 395
Single taxation, 385-91, 393-95
Limited partnership, 386-87
Limitation on use of real property, 355-58
Building permits, 357
Easement, 358
Eminent domain, 359-61
Homeowner association regulations, 357-58
License, 358
Restrictive covenants, 357-58
Set-backs, 357
Zoning, 357, 360-61
Limited jurisdiction, 95
Limited licensed legal technician (LLLT), 600
Lineal heir, 375
Liquidated damages clause, 340
Liquidated debt, 333
Listing agreement, 354
Literal interpretation, 104-06
Litigation, 117-52
Living law. See Originalism
Living trust, 371
Living will, 371
LLLT. See Limited licensed legal technician
Local government, 60
Long-arm statute, 126
Loss of consortium, 443
Lost property, 364
LPP. See Licensed paralegal practitioner
Magistrate judges, 92, 97
Maintenance. See Alimony
Majority opinion, 10, 88
Maker, 396
Malice, 225
Malicious prosecution, 233
Mandatory arbitration, 273
Mandatory authority, 8-9, 103
Mandatory disclosure rules, 575
Mandatory sentencing, 519-20
Eighth Amendment, 197, 516-520, 548-49
Cruel and unusual punishment, 161, 516-20
Juveniles, 518-19
Recidivist, 520
Three strikes laws, 520
Manufacturing defect, 267
Marital interest, 453
Marital property, 450
Marketable title. See Clear title
Market share theory, 247
Marriage, 439-464
Ceremonial marriage (solemnized marriage), 442
Common-law marriage, 442
Consent, 220, 228, 442
Consequences of marriage, 443
Engagements, 444-47
Marriage license, 441-42
Premarital agreements (antenuptial agreements), 443-44
Same-sex marriage, 439-41, 465
Termination of the marital relationship, 447-464
Marriage license, 441-42
Marital share, 443
Material breach, 330
Material facts, 321-24
Materially alter, 304-06, 335
Mechanic’s lien, 355
Mediation, 113-14, 452
Medical directive, 371-72
Do-Not-Resuscitate (DNR), 372
Physician orders for life saving treatment (POLST), 372
Medical malpractice, 280-282
Meeting of the minds, 321
Mens rea (bad intent), 72, 494-99, 501
Knowingly, 497-98
Negligence, 76, 234-65, 498
Purposeful, 497
Recklessness, 261-65, 321, 498
Mental incompetence, 319-20
Merchant, 294, 312
Merchant’s firm offer, 302-03
Merit selection, 97
Mills, John Stewart, 161-62
Minimum contacts, 126
Minimum wage, 428
Minors, 314-16, 476-77, 519-20
Disaffirm, 314-16, 476
Emancipated minor, 477
Necessaries, 314, 319-20
Ratify, 314-16
Voidable, 297, 314-16, 319, 476
Miranda rights, 78, 544-47
Mirror image rule, 303-06
Misdemeanor, 72, 485-86
Misfeasance, 239-40
Mislaid property, 364
Missouri plan. See Merit selection
Mistake, 314, 324
Bilateral mistake, 324
Factual mistake, 324
Rescission, 322-24, 332, 336
Unilateral mistake, 324
Mistrial, 147
Mitigation of damages, 337
Mixed motives, 414-15
M’Naghten test, 501-06
Model Penal Code, 485-86, 496-99, 502-06, 560
Model Rules of Professional Conduct, 570-72, 582, 599
Modification, 452
p. 672
p. 673
Modified comparative negligence, 256-57
Money damages, 298
Motion, 136-37
Motion for a bill of particulars, 554
Motion for a change of venue, 554
Motion for a directed verdict, 148
Motion for a new trial, 148
Motion for a view, 554
Motion for funds, 554
Motion in limine, 141, 554
Motion to bifurcate, 554
Motion to compel, 554
Motion to continue, 554
Motion to dismiss, 148, 554
Motion to recuse, 554
Motion to require a finding of not guilty, 559
Motion to sequester witnesses
Motion to sever, 554
Motion to suppress, 553-37
Motion to suppress, 553-37
Mutual agreement, 299
Narrow holding, 15
National Labor Relations Act of 1935 (NLRA), 429-30
National Labor Relations Board, 429
Natural law, 26
Natural objects of the testator’s bounty, 373
Necessaries, 314, 319-20
Necessity, 233, 506-07
Negligence, 76, 234-65, 498
Actual cause (cause in fact), 246-250
Assumption of risk, 77, 257-58, 272
Breach of duty, 76, 234, 244-46
But for standard, 246-50
Causation, 76, 234, 246-55
Comparative negligence, 77, 256-57
Contributory negligence, 77, 256, 265
Duty of care, 76, 234-44
Dramshop laws, 254-55
Foreseeability, 238-44
Harm, 76, 234, 255, 255
Immunities, 258-60
Intervening cause, 247-53
Market share theory, 247
Misfeasance, 239-40
Negligence per se, 245
Nonfeasance, 239-40
Objective standard, 244-45
Proximate cause, 247-250
Reasonable person standard, 76, 238-39, 244, 322, 417
Recklessness, 261-65, 321, 498
Res ipsa loquitur, 245
Social host liability, 251-55
Superseding cause, 250-53
Wrongful birth, 244
Wrongful life, 244
Zone of danger, 255
Negligence per se, 245
Negligent design, 267
Negotiable instrument, 397-99
Nesting, 458
Newsworthiness, 228
Nineteenth Amendment, 205
Ninth Amendment, 198
NLRA. See National Labor Relations Act of 1935
No-knock warrant, 536
Nolo contendere, 552
Nominal damages, 74, 280
Noncustodial parent, 462-63
Non-disclosure agreements, 273
Nonfeasance, 239-240
No-fault divorce, 448-49
No-knock warrant, 536
Nonnegotiable, 397-99
Normal wear and tear, 352
Norman Conquest, 42
Note, 396-99
Notice, 133
Notice of appeal, 148
Notice and comment, 38
Notice pleading, 131
Novation, 333, 336
Nuncupative will, 370
Obiter dictum, 16. See also Dictum
Objections, 145
Objective standard, 244-45
Objective theory of contract, 299
Obligor, 335
Obscene materials, 173-174
Obscenity, 172-174, 490
Occupational Health and Safety Act of 1970, 430
Occupational Health and Safety Administration (OSHA), 430
Offer, 297-03, 354
Merchant’s firm offer, 302-03
Mirror image rule, 303-06
Objective theory of contract, 299
Operation of law, 303
Option contract, 302
Output contract, 302
Preliminary negotiations, 300-02
Requirements contract, 302
Statements of intent, 300
Termination of an offer, 302-03
Terms definite, 300-02
Time is of the essence clause, 299
Offeror, 299
Offer to purchase, 354
Officers, 392
Open adoptions, 466
Open housing laws, 351
Opening statements, 144
Operating agreements, 395
Operation of law, 303
Opinions
Concurring opinion, 10, 16
Dissenting opinion, 10, 16
Majority opinion, 10
Option contract, 302
Oral arguments, 150
Oral contracts, 329-30
Order paper, 397-99
Ordinances, 7, 35-37
Organization of government, 29-30
Originalism, 28
Originalism approach, 106
Original jurisdiction, 85
OSHA. See National Health and Safety Administration
Output contract, 302
Overbreadth doctrine, 178, 511-12
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Fifth Amendment, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourteenth Amendment, 31, 196-05, 359-361, 420-21, 457, 485, 511, 550, 558-59
Override, 36
Overt discrimination, 410-12
p. 673
p. 674
Bona fide occupational qualification (BFOQ), 410-12
Penalty enhancement statutes, 512-13
Pardon, 562-63
Parent-child relationship, 464-77
Adoptions, 466-70
Paternity, 464-66
Parental fitness, 475
Parental immunity, 258
Parental rights, 471, 475
Parol evidence rule, 330
Participation agreements, 452
Partnership, 387-91, 393
Doing business as (DBA) certificate, 385
Gap filler, 387
General partnership, 387
Joint and several liability, 386-87
Joint liability, 386-87
Limited liability, 386-93
Limited partnership, 386-87
Partnership by estoppel, 390
Unlimited liability, 386-93
Partnership by estoppel, 390
Passed through profits, 393-95
Past consideration, 308
Patent, 368
Paternity, 464-66
Petition for executive clemency, 562
Pattern jury instructions, 147
Payee, 396-397
Penalty enhancement statute, 175
Peremptory challenge, 143
Perfect tender rule, 332
Perfected purchase money security interest, 400
Perfected security interest, 399-401
Perfection, 399-401
Performance, 330-32
Periodic tenancy, 352
Perjury, 491, 585-90
Personal jurisdiction, 125-29
Personal property, 75, 350
Abandoned property, 364
Intangible property, 363
Intellectual property, 364-69
Lost property, 364
Mislaid property, 364
Tangible personal property (chattel), 363
Personal recognizance bond, 549
Per stirpes (right of representation), 376
Persuasive authority, 8, 103
Petitioner, 86
Petition for dissolution, 448-52
Physical custody, 458-49
Physician orders for life saving treatment (POLST), 372
Pierce the corporate veil, 393
Plain meaning approach, 104-06
Plaintiff, 66-67
Plain view doctrine, 538
Plea bargaining, 552, 557-58
Pleading in the alternative, 131
Pleadings, 119, 130-34
POLST. See Physician orders for life saving treatment
Pornography, 173-74
Possession, 490
Post-trial motions, 148
Judgment notwithstanding the verdict (judgment N.O.V.), 148
Motion for a new trial, 148
Power of judicial review. See Judicial review
Power of sale clause, 359
Precedent, 8-9, 19, 103
Preemption, 60-64
Preexisting duty, 308
Pregnancy discrimination, 408-09
Pregnancy Discrimination Act of 1978, 408
Prejudicial errors, 149
Preliminary hearing, 549-52
Information, 551-52
Probable cause, 532-44, 547, 551
Preliminary negotiations, 300-02
Premarital agreements (antenuptial agreements), 443-44
Contracts, 74, 291-40, 444
Distribution of property, 444, 453
Public policy, 258, 320-21, 444
Statute of frauds, 328-30, 444
Unenforceable, 297
Preponderance of the evidence, 67-70, 413, 425, 559
Pre-sentencing report, 561
Presumptive father, 465
Pretext, 413-15, 424
Pretrial conference, 141-42
Motion in limine, 141
Pretrial motions (civil), 134-37 12(b)(6) Motion, 136-37
Summary judgment motion (Rule 56 Motion), 136-37, 148
Pretrial motions (criminal), 553-57
Motion for a bill of particulars, 554
Motion for a change of venue, 554
Motion for a view, 554
Motion for funds, 554
Motion in limine, 141, 554
Motion to bifurcate, 554
Motion to compel, 554
Motion to continue, 554
Motion to dismiss, 148, 554
Motion to recuse, 554
Motion to sequester witnesses Motion to sever, 554
Motion to suppress, 553-37
Pretrial stage, 117-30
Answer, 130, 133-35
Complaint, 78, 130-34
Compulsory joinder, 125
Cross-claim, 131
Default judgment, 134
Discovery, 137-41, 552-57
Exhaustion of administrative remedies, 129-30
Jurisdiction, 84, 97-102, 125-29
Notice pleading, 131
Pleading in the alternative, 131
Pleadings, 119, 130-34
Pretrial motion, 119
Standing, 120-23
Statute of limitation, 78, 119, 129, 422
Venue, 125, 558
Prima facie case, 72-73
Principal, 401-04, 499
Privacy, 161, 197, 228
Privilege, 226-27
Probable cause, 532-44, 547, 551
Probate, 372-75
Administrator/administratrix, 372-73
Affinity, 375
Collateral heir, 375
Consanguinity, 375
p. 674
p. 675
Decedent, 375
Descendant, 375
Escheat, 376
Executor/executrix, 370-73
Heir, 375
Intestacy statutes, 377
Intestate, 370
Intestate succession, 375-77
Kindred, 375
Lineal heir, 375
Per stirpes (right of representation), 376
Pro bono, 599
Procedural due process, 197
Procedural facts, 8-9, 14
Procedural law, 77-79
Procedural rights, 35
Product misuse, 272
Products liability, 265, 267-72
Professionalism, 571-72
Protected categories, 409-10
Protection order, 450
Proximate cause, 247-50
Product defect, 267
Product misuse, 272
Promissory estoppel, 312-13, 329-30
Prosecute, 67
Protected categories, 409-10
Protection order, 450
Prostitution, 490
Property law, 75, 349-69
Property settlements, 452-56
Community property states, 453
Doctrine of equitable distribution, 453
Joint property, 445, 452-56
Marital interest, 453
Proximate cause, 247-250
Publication, 224-27
Public benefit corporation, 392
Public defender, 549
Public figures, 224-26
Public officials, 224-26
Public necessity, 233
Public policy, 258, 320-21, 444
Adhesion contract, 320-21
Covenant not to compete, 320-21
Exculpatory clause, 257, 321
Fraud, 233, 276, 314, 321-24, 373, 448
Genuineness of assent, 313
Illegal contracts, 320
Recklessness, 261-65, 321, 498
Unconscionable contract, 311, 321
Undue influence, 311, 314, 324-25, 373-75
Unenforceable, 297
Violate public policy, 314
Public policy exception (in employment law), 431
Public trial, 197
Public use, 359
Punishments, 514-20
Capital punishment, 516-519, 560-61
Competency, 123, 516
Cruel and unusual punishment, 516-20
Eighth Amendment, 197, 516-520, 548-49
General deterrence, 514-15
Incapacitation, 515
Juveniles, 518-19
Retaliation, 423
Retribution, 515-16
Specific deterrence, 514-15
Punitive damages, 74, 277-80, 421
Purchase money security interest, 400
“Pure” comparative negligence, 256
Pure speech, 165-71
Purposeful, 497
Qualified individual with a disability, 427
Quasi-contract, 306-08
Equity, 43, 306
Unjust enrichment, 306
Quasi-criminal law, 486
Questions of fact, 85-86, 240-41
Questions of law, 85-87
Quid pro quo sexual harassment, 416-18
Quiet enjoyment, 353
Race discrimination, 204-05
Ratify, 314-16
Ratio decidendi, 16
Rational basis test. See Standard scrutiny
Real estate. See Real property
Real estate closing, 354-56
Abstract (in real estate), 355
Clear title (marketable title), 355
Closing statement, 356
Deed, 355
Encumbrance, 355
Joint property, 445, 452-56
Joint tenancy (joint tenancy with right of survivorship), 355
Land contract, 356
Mechanic’s lien, 355
Tenancy by the entirety, 355
Tenancy in common, 355
Title search, 354-56
Warranty deed, 355
Real property (real estate), 75, 350-63
Buying and Selling Real Estate, 354-56
Involuntary loss of property, 358-363
Limitation on use of real property, 355-58
Rental property, 351-53
Reasonable accommodation, 426-27
Reasonable factor other than age (RFOA) provision, 425
Reasonable period of time, 303
Reasonable person standard, 76, 238-39, 244, 322, 417
Reasonable suspicion, 533-35
Recidivist, 520
Recklessness, 261-65, 321, 498
Recross, 145
Redirect, 145
Registered agent, 391
Regulations, 7-8, 35, 38-41
Regulation of hours and wages, 427-28
Child labor, 428
Exempted employees, 428
Fair Labor Standards Act of 1938, 427-28
Minimum wage, 428
Rehabilitation, 515
Reject an offer, 303
Relevant facts, 6, 8, 14
Religious annulment, 448
Religious discrimination, 409-10
Remand, 10, 16, 87, 150
Removal, 101
Rental property, 351-53
p. 675
p. 676
Rental property (cont’d)Constructive eviction, 353
Evict, 353
Implied warranty of habitability, 353
Landlord/tenant law, 351-53
Lease, 352
Open housing laws, 351
Quiet enjoyment, 353
Reprieve, 562-63
Request for admissions, 140
Requirements contract, 302
Rescission, 322-24, 332, 336
Res ipsa loquitur, 245
Res judicata, 66
Respondeat superior, 124, 403-06
Respondent, 86
Restatement of Torts, Second, 214, 272
Restrictive covenants, 357-58
Retaliation, 423
Retreat exception, 508-09
Retribution, 515-16
Reverse, 10, 16, 87, 150
Reverse discrimination, 420-21
Reversible errors, 87, 149
Revocable trust, 371
Rewards, 299
RFOA. See Reasonable factor other than age
Right of representation. See Per stirpes
Right to bear arms, 161
Right to confront and cross-examine, 161
Right to counsel, 511
Right to a jury trial for a serious offense, 161
Right to an impartial jury, 161
Right to peaceably assemble 161
Right to petition, 161
Right to privacy. See Privacy
Robbery, 488
Rule 8, 125
Rule 11, 120
Rule 12, 136
Rule 56 Motion. See Summary judgment motion
Rule of law, 14
Rules, 14-15, 41
Rules of civil procedure, 117, 120
Rules of criminal procedure, 117, 528
Rules of evidence, 520, 573, 591
Sale, 490
Same-sex harassment, 408, 417
Same-sex marriage, 439-41, 465
Same-sex partners, 462
Search and seizure, 197, 511, 534-44
Consent to a search, 537-44
Exigent circumstances, 536
Expectation of privacy, 532-33
Fourth Amendment, 198, 511, 531-44, 569
Incident to a lawful arrest, 536-44
In plain view, 537-38
Inventory search, 537
No-knock warrant, 536
Probable cause, 532-44, 547, 551
Search warrants, 530, 532, 534-44
Stop and frisk, 533-35
Unreasonable search and seizure, 532
Search warrants, 530, 532, 534-44
Consent to a search, 537-44
Exigent circumstances, 536
Expectation of privacy, 532-33
Fourth Amendment, 198, 511, 531-44, 569
Incident to a lawful arrest, 536-44
In plain view, 537-38
Inventory search, 537
No-knock warrant, 536
Probable cause, 532-44, 547, 551
Stop and frisk, 533-35
Unreasonable search and seizure, 532
Scope of employment, 404-06
Second Amendment, 161
Right to bear arms, 161
Secured loan, 400-01
Secured transaction, 399-401
Attachment, 399
Buyer in the ordinary course of business, 400
Collateral, 399-401
Creditor, 399-401
Debtor, 399-01
Financing statement, 400
Floating lien, 401
Perfected security interest, 399-401
Perfection, 399-401
Purchase money security interest, 400
Security agreement, 399
Security interest, 399-401
Uniform Commercial Code (UCC), 292-94, 302-06, 312, 325-32, 364, 397-401
Unperfected security interest, 400-01
Security agreement, 399
Security deposit, 352
Security interest, 399-401
Self-defense, 220, 498, 507-11
Battered spouse syndrome, 220, 508-09
Deadly force, 506-11
Justifiable homicide, 509
Retreat exception, 508-09
Stand-your-ground laws, 508-11
Self-incrimination, 197, 511, 532, 544-47
Self-proving will, 371
Sentencing, 560-561
Penalty enhancement statutes, 512-13
Pre-sentencing report, 561
Sentencing hearing, 560
Victim impact statement, 530, 561
Sentencing hearing, 560
Separation of church and state, 191
Separation of powers, 29
Service, 133
Service mark, 365
Set-backs, 357
Settlement, 112
Settlement agreement, 450
Settlor, 371
Seventh Amendment, 142
Sex discrimination, 205, 407-23
Sexual assault, 274
Sexual harassment, 273-75
Sexual orientation discrimination, 207, 408
Shareholders, 391
Simultaneous death clause, 370
Sixth Amendment, 197, 533, 544-47, 558-59, 569
p. 676
p. 677
Public trial, 161, 197
Right to a jury trial for a serious offense, 161
Right to an impartial jury, 161
Right to confront and cross-examine, 161
Right to counsel, 161, 511
Speedy trial, 161, 197
Slander, 224-26
Social host liability, 251-55
Sole custody, 457
Sole proprietorship, 385-86, 393
Doing business as (DBA) certificate, 385
Single taxation, 385-91, 393-95
Sole owner, 385-86
Unlimited liability, 386-93
Solemnized marriage. See Ceremonial marriage
Sovereign immunity, 74, 258
Sovereign power, 29
Special damages, 277
Specific deterrence, 514-15
Specific facts, 14-15
Specific performance, 43, 298, 336
Speedy trial, 197
Sperm donations, 470-72
Split custody (divided), 458
Spousal immunity, 258
Stalking, 488
Standard of Proof, 67-70
Beyond a reasonable doubt, 67, 551, 559
Clear and convincing, 67-70, 475
Preponderance of the evidence, 67-70, 413, 425, 559
Standard scrutiny (rational basis test), 200-04
Standing, 120-23
Stand-your-ground laws, 508-11
Stare decisis, 8, 19, 41, 102-03
State action requirement, 31, 159
State constitutions, 33
State court systems, 88-89, 95-102
General jurisdiction, 95
Limited jurisdiction, 95
State supreme court, 96
State law, 58-60
Statements of intent, 300
States’ Attorney, 530
State supreme court, 96
Writ of certiorari, 92-93, 150
Status crimes, 501
Statutes, 7-8, 35, 71
Statute of frauds, 328-30, 444
Justifiable reliance, 321-24, 329-30
Oral contracts, 329-30
Parol evidence rule, 330
Promissory estoppel, 312-13, 329-30
Statute of limitation, 78, 119, 129, 422
Statutory interpretation, 104-06
Contextual approach, 105
Originalism approach, 106
Legislative history approach, 106
Plain meaning approach, 104-06
Statutory law, 35-37
Ordinances, 7, 35-37
Statutes, 7-8, 35, 71
Stepparents, 461-62
Stop and frisk, 533-35
Reasonable suspicion, 533-35
Strict construction, 27
Strict liability, 76-77, 265-73
Product misuse, 272
Products liability, 265, 267-72
Ultrahazardous activities, 265-267
Strict liability offenses, 499
Strict scrutiny (compelling interest test), 200-04, 421
Subjective standard, 257
Subject matter jurisdiction, 125
Subpoena, 92
Subpoena duces tecum, 140
Substantial capacity test, 502-06
Substantial performance, 296, 330
Substantive due process, 197-99
Substantive facts, 8, 14
Substantive law, 77
Substantive rights, 35
Suicide, 487
Summary judgment motion (Rule 56 Motion), 136-37, 148
Summons, 133-34
Superseding cause, 250-53
Supervening illegality, 303
Support. See Alimony
Supreme Court. See State supreme court or U.S. Supreme Court
Supremacy clause, 60-64
Surrogacy contracts, 472-73
Symbolic speech, 167-71, 512
Tacking, 362
Taking, 359-61
Temporary restraining order (TRO), 450
Tangible personal property (chattel), 363
Tenancy at sufferance, 352
Tenancy at will, 352
Tenancy by the entirety, 355
Tenancy for a term, 352
Tenancy in common, 355
Tenant. See also Lessee/tenant
Tenth Amendment, 63-64
Termination of an offer, 302-03
Destruction of the subject matter, 303
Lapse of time, 303
Mirror image rule, 303-06
Operation of law, 303
Reasonable period of time, 303
Supervening illegality, 303
Termination of contractual duties, 330-34
Accord and satisfaction, 333, 336
Agreement, 332-33
Commercial impracticability, 332-34
Impossibility, 333
Liquidated debt, 333
Material breach, 330
Novation, 333, 336
Perfect tender rule, 332
Rescission, 322-24, 332, 336
Substantial performance, 296, 330
Termination of parental rights, 475
Termination of the marital relationship, 447-64
Annulment, 447-48
Divorce/dissolution, 448-64
Void marriages, 447
Voidable marriages, 447
Terms definite, 300-02
Testamentary capacity, 373-75
Testamentary trust, 371
Theft, 488
p. 677
p. 678
Theories of discrimination, 410-16
Intentional discrimination, 410-16
Overt discrimination, 410-12
Unintentional discrimination, 414-16
Third Amendment, 198
Third-party beneficiaries, 335-36
Incidental beneficiaries, 336
Intended beneficiaries, 336
Third party rights, 334-36
Assignment, 334-35
Delegation, 335-36
Third-party beneficiaries, 335-36
Three strikes laws, 520
Time and place restrictions, 176-77
Time is of the essence clause, 299
Title search, 354-56
Title VII of the Civil Rights Act of 1964, 407-23
Equal Employment Opportunity Commission (EEOC), 407, 422
Interstate commerce clause, 407
Pregnancy discrimination, 408-409
Protected categories, 409-10
Religious discrimination, 409-10
Race discrimination, 204-05
Sex discrimination, 205, 407-23
Sexual harassment, 273-75
Sexual orientation discrimination, 207, 408
Title VII of the Civil Rights Act of 1991, 421-23
Tort law, 75, 213-82
Intentional tort, 76, 216-34, 261
Negligence, 76, 234-65, 498
Restatement of Torts, Second, 214, 272
Strict liability, 76-77, 265-73
Tort of outrage, 229
Tort reform, 215, 280-82
Tortfeasor, 215
Torts, 443
Trademark, 365
Trade secret, 368
Transferred intent, 218-19
Treason, 491
Trespass, 490
Trespass to land, 232-33
Trespass to personal property, 233
Trial, 142-48
Adversarial system, 142
Cross-examination, 145-46, 559-60
Direct examination, 145-46
Directed verdict, 146
Leading question, 145
Inquisitorial system, 142, 569
Judgment, 70, 147
Mistrial, 147
Opening statements, 144
Pattern jury instructions, 147
Recross, 145
Redirect, 145
Jury trial, 86, 92, 142-44, 197, 558-60
Verdict, 147
Trial courts, 84-86, 89, 95
Bench trial, 86, 92
Case of first impression, 103
Original jurisdiction, 85
Mandatory authority, 8-9, 103
Precedent, 8-9, 19, 103
Questions of fact, 85-86, 240-41
Questions of law, 85-87
Stare decisis, 8, 19, 41, 102-03
TRO. See Temporary restraining order
Trusts, 371
Beneficiary, 370
Donor, 371
Inter vivos trust, 371
Irrevocable trust, 371
Living trust, 371
Testamentary trust, 371
Trustee, 371
Trustee, 371
UCC. See Uniform Commercial Code
UDA. See Unlawful detainer assistant
UIFSA. See Uniform Interstate Family Support Act
Ultrahazardous activities, 265-67
Unconscionable contract, 311, 321
Undue influence, 311, 314, 324-25, 373-75
Unenforceable, 297
Unforeseeable. See Foreseeability
Uniform Commercial Code (UCC), 292-94, 302-06, 312, 325-32, 364, 397-401
Uniform Interstate Family Support Act (UIFSA), 463
Uniform Partnership Act (UPA), 387-89
Uniform Reciprocal Enforcement of Support Act (URESA), 463
Unilateral contract, 296-97
Unilateral mistake, 324
Unions, 429
Unintentional discrimination, 414-16
Business necessity, 415
Disparate impact, 414-16, 24-426
U.S. Attorney, 530
U.S. Congress, 35
U.S. Constitution. See Constitution
U.S. Congress, 35
U.S. Constitution.See Constitution
U.S. Courts of Appeal. See Circuit courts
U.S. District Courts, 89-92
U.S. Supreme Court, 90-94
Writ of certiorari, 92-93, 150
Unjust enrichment, 306
Unlawful detainer assistant (UDA), 600
Unperfected security interest, 400-01
Unreasonable search and seizure, 532
Unwed fathers, 460
URESA. See Uniform Reciprocal Enforcement of Support Act
Use, 490
U.S. Supreme Court, 90-94, 151
Valid, 296-297
Venire, 558-59
Venue, 125, 558
Verdict, 147
Verification, 133
Veto, 36
Victim, 67, 530
Victim impact statement, 530, 561
Victim’s Bill of Rights, 530
Violate public policy, 314
Visitation, 457-62
Best interest of the child, 460
Grandparents, 460
Unwed fathers, 460
Stepparents, 461-62
p. 678
p. 679
Void, 258, 296-97, 316-20, 434
Void marriages, 447
Voidable, 297, 314-16, 319, 476
Voidable marriages, 447
Void for vagueness doctrine, 178, 511-12
Due process, 196-99, 278, 421, 485, 511-12, 550, 558-59, 569
Fifth Amendment, 196-99, 359-61, 421, 485, 511, 514, 532, 544-47, 549-52, 561, 569
Fourteenth Amendment, 31, 196-205, 359-61, 420-21, 457, 485, 511, 550, 558-59
Voir dire, 141
Voluntary manslaughter, 498
Waivers. See Exculpatory clauses
Warranties, 314, 325-28
Breach of warranty (contracts), 325-28
Breach of warranty (products), 267
Disclaimers, 327
Implied warranty of fitness, 325-26
Implied warranty of habitability, 353
Implied warranty of merchantability, 325-28
Warranty deed, 355
Warranty theory, 270
Wills, 369-71
Beneficiary, 370
Bequest (legacy), 370
Codicil, 371
Devise, 370
Executor/executrix, 370-73
Formal will, 370
Fraud, 233, 276, 314, 321-24, 373, 448
Holographic will, 370
Guardian or “next friend”, 123, 319-20, 370
Intestacy statutes, 377
Intestate, 370
Nuncupative will, 370
Self-proving will, 371
Simultaneous death clause, 370
Testamentary capacity, 373-75
Undue influence, 311, 314, 324-25, 373-75
Witnesses, 530
Workers’ compensation, 428
Writ of certiorari, 92-93, 150
Writ of habeas corpus, 561-62
Wrongful adoption, 470
Wrongful birth, 244
Wrongful life, 244
Zone of danger, 255
Zoning, 357, 360-61
p. 679
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