7/3/24, 3:39 PM Module 1

Module 1

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Module 1 Study Guide and Deliverables

Sources of Law and Dispute Resolution

Learning Objectives: In the first week of class, you will be introduced to the sources
of law in the U.S. legal system, including the system of
federalism and the U.S. Constitution. We will also learn about
the civil litigation process, including the pros and cons of how
and when to settle litigation claims. However, one of the most
important aspects of what you will learn about litigation is the
various forms of Alternative Dispute Resolution (which includes
negotiation, mediation, and arbitration). In addition, you will
learn the importance of International Arbitration and how it is a
key aspect of negotiating cross-border transactions.

Readings: Module 1 online content

Read the following Textbook Chapters and Cases:

Chapter 1, Introduction to Law

1-1 Exploring the Law

1-2 Sources of Contemporary Law
1-3a Classifications (Criminal and Civil Law)
1-5 Working with the Book’s Features (Optional: helpful
tips for success)

Cases:

Keuhn v. Pub Zone

Chapter 3, Dispute Resolution

3-1 Court Systems

3-2 Before Trial

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3-3 The Anatomy of a Trial and Appeal

3-4 Alternative Dispute Resolution (ADR)

Chapter 4, Common Law, Statutory Law, and

Administrative Law

4-1 Common Law

4-2 Statutory Law
4-2a Bills
4-2h Congressional Override
4-3 Administrative Law
4-3a Creation of Agencies
4-3b Power of Agencies (skim Types of Rules
section)

Cases:
Tarasoff v. Regents of University of California
U.S. v. Biswell

* Chapters 1, 3, and 4 of Legal Environment, 8th ed. are

available to students from the Frederick S. Pardee Management
Library Reserve.

Discussions: Discussion 1.1: Introduction. Please post your introduction as

soon as possible.

Assignments: Module 1 Homework Assignment due Monday, July 8 at 11:59

PM ET.

Assessments: Module 1 MindTap Brief Hypotheticals are due Monday, July 8

at 11:59 PM ET

Live Classroom: Tuesday, July 2 from 9:00-11:00 AM ET.

Topic: Course Introduction and Sources of Law and

Dispute Resolution

Instructor Office Hours: Tuesday, July 2 from 11:00 AM–12:00

PM ET (following Live Classroom sessions)

Course Welcome and Introduction

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Welcome to Introduction to Law. I am Professor Lomax and I am delighted to be teaching this

class and to meet all of you. I have been fortunate to view the law from many different
perspectives. Throughout the course I will weave my background and experience into our lessons.
I also hope to bring in a few virtual guest speakers who can share additional real-world practical
perspectives with you.

Course Goals
I hope to achieve four main goals during this course:

1. Provide a broad overview of the American judicial system and fundamental legal issues,
while enabling students to learn how the U.S. justice system works, and how different
bodies of law apply to both businesses and individual lives.
2. To enable students to begin to anticipate legal problems, analyze how to avoid them, and
realize how legal principles can be employed to add value to their chosen fields.
3. Teach students to understand and discuss legal issues through precise language and clear
communication (both written and oral) in order to empower them to effectively work with
legal counsel and to proactively incorporate law into their business strategy.
4. Facilitate understanding of not only the basic rules of law but also the underlying social
policies and ethical dilemmas.

Learning Objectives
After taking this course, you should be able to:

1. Identify legal issues that arise in business and industry

2. Communicate effectively with lawyers
3. Understand the system of laws and government in the United States
4. Understand the public policies and ethical dilemmas related to the law
5. Read and understand case law, statutes, and regulations
6. Apply the law to fact-based scenarios and evaluate potential outcomes

So what can you expect from this Introduction to Law class during the next 6 weeks? I’ll let
Attorney Dee explain that to you!!

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What to Expect

qst_la245_AttorneyDee_what_to_expect video cannot be displayed here.

Videos cannot be played from Printable Lectures. Please view media in the
module.

Finally, what is the best way for you to truly succeed in this course? By doing the work and
making sure you understand the concepts. Please see the chart below for helpful tips and tricks.

How to Succeed in this Class

Select each of the concepts below for tips on succeeding in this class.

▶ Be Respectful

Listen in class
Take good notes

▶ Be Engaged

Complete online MindTap assessments

Ask questions
Share your thoughts when applicable

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▶ Write Clearly and Effectively

Plan ahead. Don't procrastinate!

Leave time to review and proofread homework

▶ Practice

Read the cases, spot the issues, apply the law to the facts
Engage in application and analysis, not regurgitation

Also, please remember to:

1. Always reach out if you have any questions or concerns.

2. Now is NOT the time to worry about what anyone else thinks about your question. ASK,
ASK, ASK!!!
3. Be patient with yourself, with me, and with one another.

Learning Objectives

In Module 1 of this class, you will be introduced to the sources of law in the U.S. legal system,
including the system of federalism and the U.S. Constitution. We will also learn about the civil
litigation process, including the pros and cons of how and when to settle litigation claims.
However, one of the most important aspects of what you will learn about litigation is the various
forms of Alternative Dispute Resolution (which includes negotiation, mediation, and arbitration).
In addition, you will learn the importance of International Arbitration and how it is a key aspect of
negotiating cross-border transactions.

By successfully completing this module you will be able to:

Describe how the U.S. government is structured and the sources of U.S. law.
Describe the role of the U.S. Constitution, the system of federalism, and how the common
law evolves.
Recognize legal precedent and analyze how it applies in various factual scenarios.

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Explain the importance of alternative forms of dispute resolution and how they compare to
dispute resolution in courts.

Introduction to Law

The primary sources of U.S. law and the organization

of the federal system
The law is a system of rules that are enforced through social institutions to govern behavior.
There are four primary sources of law in the United States: The Constitution, Statutes, Common
Law, and Administrative Law.

Primary Sources of Law

The Constitution
Statutes
Common Law
Administrative Law

The law in the United States was born out of revolution and conflict. Drawn primarily from the
English system, the U.S. system was structured as a balance of power to avoid a dictatorship.
Created in part to protect the rights of people from the government, a multi-layered government
was developed.

The Iroquois Native Americans directly informed our notions of federalism (federal and state
government and how they interact—two levels of government, each with specified powers). The

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Iroquois were comprised of 5 major nations (Mohawk, Oneida, Onondaga and Seneca). Each
nation governed its own domestic issues, but they also elected a representative to the “League of
Iroquois.” The League had authority over issues common to all (e.g., relations with outsiders,
etc.). Ben Franklin was apparently impressed with this structure and used it as inspiration when
drafting the U.S. Constitution.

The U.S. Constitution

The Constitution protects rights that Americans have found to be critical to how the nation
operates. The Constitution of the United States established the federal system, also known as
federalism. Under federalism, each level of government has sovereignty in some areas and shares
powers in other areas. This division of power between the three branches of the national or
central government helps to avoid dictatorships and gives ordinary citizens an opportunity to
participate in the government.

Many U.S. citizens complain about the “gridlock” that exists in Washington, D.C., noting how hard
it is to get anything done. To a certain extent, that is by design. The system essentially keeps any
one branch of the government from gaining too much power. It can enable an almost “do-over”
when one level of government gets something wrong. It is an extremely complex and messy
system.

Statutes

At every level of government in the United States, federal, state, and local legislatures create law
by enacting statutes that govern the rights and duties of the people who reside within—or have
contact with—the jurisdiction. Thus, statutory law is law created by the legislature that can cover
absolutely any topic, so long as it does not violate the U.S. Constitution.

At the federal level, bills are proposed in Congress and must be passed independently by the U.S.
House of Representatives and the U.S. Senate. To pass Congress, a simple majority vote in each
chamber is required. Once approved by the majority of both houses the bill goes to the White
House for the President’s signature. If the President signs the proposed bill, it then becomes a
law. If the President refuses to sign the proposed bill and vetoes it, it will not become a law.
However, Congress can still cause the bill to become law if two-thirds of the Congress votes to
override the veto.

The Civil Rights Act of 1866 is just one example of when Congress enacted legislation over the
objection of the President. The Civil Rights Act of 1866 was passed to give citizenship to former
slaves, making sure everyone EXCEPT Native Americans were considered citizens. Although
Congress sought to provide freed slaves with the same rights as white citizens, President Johnson

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disagreed, and vetoed the bill. Congress overrode the veto, making the Civil Rights Act a law
without President Johnson’s consent.

Common Law

Switching gears, let’s now turn to a category of the law derived from court decisions rather than
from the U.S. Constitution, state constitutions, or a statute. The concept of the “common law”
came from England and was transplanted to America via British colonists. Often referred to as
judge-made law, common law is derived purely from court decisions. Judges routinely applied
widely accepted doctrines and principles to various cases presented, and over time, began to
make changes and/or carve out exceptions to such principles when faced with factual scenarios
that differed in some measurable way from previous cases. Despite the extensive number of both
federal and state statutes that currently exist, the common law is very much alive and well in the
United States. In fact, we are taught in law school how to argue cases by emphasizing the factual
similarities to previous cases or persuading the court that a previous case (and the accompanying
court opinion) is not on-point because the factual circumstances are vastly different from the case
we are arguing. In addition, the common law and the precedential value of cases provides some
degree of predictability, enabling lawyers to advise their clients on the likely outcome of their
conduct based, in part, on the court’s decision in previous cases.
Let’s answer a brief hypothetical (i.e., hypo) to help you understand a bit better.

Hypo 1.1: The Role of Precedent

The doctrine of precedent is binding
on all courts from county courts to the
U.S. Supreme Court.

True or False?

True

This answer is incorrect.

False

This answer is correct.

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The statement is False.

Why? Because legal precedent is binding only on lower courts. The Supreme
Court is NOT bound by earlier decisions. Even though it does not do so very
often, it can change its mind. For example, if the Supreme Court decided a
case in one way in 1965, it is under no obligation to follow precedent if the
same issue arises in 2021. Two good examples of that are below:

There are differing opinions on how judges (especially Supreme Court judges) should interpret
constitutional issues. But don’t take my word for it, let’s hear directly from two Supreme Court
Justices on how they determine what the Constitution means and how it should be applied in
various cases.

qst_la245_Interpreting_Constitution video cannot be displayed here. Videos

cannot be played from Printable Lectures. Please view media in the module.

Instructor Sidebar Conversations

In court a sidebar conversation occurs when the lawyer(s) meet with the
judge out of the hearing of the jury. Perhaps there has been an objection
raised to admitting certain evidence and the judge does not want to have the
jury get confused about the discussion or hear things they should not be
aware of. In this instance, the judge will ask the attorneys for both sides for a
conversation outside of the hearing of the jury and others in the courtroom to
discuss the issue. Here, our sidebar conversations are areas where I raise
certain questions for you to consider on your own.

Sidebar Conversation 1.1

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Q1: Does the Supreme Court have the last word on the scope and meaning
of federal law?

Q2: What if the Supreme court makes a decision that is not favored by
Congress? Can Congress overrule the Supreme Court on what a law means?

Administrative Law

Federal and state legislators enact statutes but also authorize federal, state, and local agencies to
issue regulations that help interpret and clarify what statutes mean. For example, you may have
heard of the National Labor Relations Act. This is a federal statute which provides protection to
non-supervisory employees who engage in collected or concerted activity in connection with work
conditions. However, when it passed the NLRA, Congress also empowered a federal agency—the
National Labor Relations Board—to administer and interpret the statute and adjudicate labor
cases. Most federal government agencies are created by Congress. These agencies do the day-to-
day work of administering and interpreting the federal statutes within the scope of their
enumerated powers. Agencies have the power to create regulations (i.e., mandatory requirements
that can apply to individuals, businesses, state or local governments, non-profit institutions, or
others).

During our live class, you will “Be the Judge” and try your hand at statutory interpretation in a
rather interesting context. Stay tuned…

Legal Classifications in the Law

Criminal vs. Civil Law

There are also some important legal distinctions you should be aware of. They include the
difference between criminal law and civil law. During this course we will cover cases that deal with
both classifications. You should remember some of the key differences per the table below:

Legal Classifications

Criminal Law Civil Law

Statutes Common Law and Statute

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Government prosecutes Regulates rights and duties between

Decision independent of victim parties
District Attorney brings case to Private parties sue to enforce
court rights/duties
Punishment Remedies
Prison sentence Monetary judgment
Fine (money to government) Injunction
Both

As you can see, some of the main differences include who the parties are in a criminal versus a
civil case. The federal, state, or some governmental authority prosecutes criminal cases, whereas
private citizens, corporations, or other organizations (i.e., private parties), file lawsuits against
one or more defendants in a civil case.

The remedies also differ. In a criminal case the defendant is deemed guilty or not guilty and may
be sentenced to prison and/or have monetary fines imposed. In a civil case the defendant is
deemed liable or not liable, but prison is not an option. Instead, the defendant may be required to
pay a monetary fine and/or may have an injunction imposed against them. Such injunctive relief
accomplishes one or more of the following:

1. Commands defendant(s) to perform some positive act or conduct (e.g., turn over the deed
to a house they contracted to sell);
2. Prohibits defendant(s) from refusing (or persisting in a refusal) to do or permit some act to
which the plaintiff has a legal right; or
3. Restrains defendant(s) from continuing in a wrongful act and essentially compels them to
undo their past acts. (See Black’s Law Dictionary; Bailey v. Schnitzus, 45 N.J. Eq. (1888)).

Please answer the two questions below to further understand these important legal distinctions:

Hypo 1.2: Criminal vs. Civil Law

Criminal law is a combination of common law and statutory law. True or False?

True

This answer is incorrect.

False

This answer is correct.

The statement is False.

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All crimes are written in statutes or ordinances. There is no criminal common

law.

Hypo 1.3: Criminal vs. Civil Law

In a civil case the losing party is deemed guilty or not liable. The terms
"guilty/not guilty" and "liable/not liable" can be used interchangeably in the
civil context.

True or False?

True

This answer is incorrect.

False

This answer is correct.

The statement is False.

In a criminal case the defendant is either guilty or not guilty. In the civil
context, the defendant is either liable or not liable.

Procedure vs. Substance

Another important concept to remember is the difference between procedural law (procedure)
and substantive law (substance). Substantive Law involves the actual content of the law; it
determines how the facts in a case will be treated and/or outlines how society should behave.
Procedural law establishes procedures or the process to be followed in resolving a legal dispute.

Later in this course you will learn about the anatomy of a civil legal case when a private party is
seeking a remedy from a court. It is in this context that the difference between process and
substance becomes apparent. Believe it or not… sometimes, process matters as much as
substance. After the complaint is filed by the plaintiff and the answer to the complaint is filed by
the defendant (collectively referred to as pleadings), issues of procedure and substance come into
play. Listen to the following Flash Legal Analysis to further understand this concept in the context
of litigation.

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Alternative Dispute Resolution

When parties are seeking to resolve a legal dispute outside of court, we refer to it as alternative
dispute resolution or ADR. The parties are obviously at opposite ends of a legal issue, but they
seek to escape the expense and time it will take to litigate a case in court. Also, they seek to
resolve the dispute out of the public eye. Companies and individual parties are often concerned
about their reputations and goodwill. As such, if there is a way to resolve something without
winding up in the news, it may be preferable to litigation. This is one of the benefits of ADR.

There are three different types of ADR: Negotiation, Mediation, and Arbitration.

Negotiation involves a discussion about claims and possible settlements between the
parties directly or through their attorneys. In this form of ADR the parties remain in control
of the outcome.

Mediation involves a neutral third party. This neutral player holds discussions with each
side and seeks to guide the parties toward a voluntary settlement. The use of mediation
may be court-ordered or it can be voluntary. For example, mediation is often court-ordered
in the family law context after parties have filed for divorce. The purpose of court mediation
in that context is to help parents develop a parenting plan and resolve other issues without
incurring the costs of litigation.

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Arbitration involves a neutral third party that also helps to guide the parties to discuss
various aspects of their dispute. It can be similar to a trial in some respects, but may
involve truncated discovery, fewer witnesses and a shorter time frame. Generally, the
neutral third party directs the informal process, but unlike mediation, the arbitrator makes
the final decision. The use of arbitration may be court-ordered or voluntary.

As shown above, the further down the line parties get to resolving a dispute in court, the less
control the parties have over the ultimate outcome.

It is also important to recognize that business is international. As such, parties all over the world
are engaging in cross-border transactions to engage in various business deals. It is important to
pay close attention to arbitration issues as those transactions are being negotiated and finalized.
The clip below explains this concept in a bit more detail.

qst_la245_adr_lomax_arbitration video cannot be displayed here. Videos

cannot be played from Printable Lectures. Please view media in the module.

International Arbitration—What Is It and Why Is it

Important?

Since companies operate in a global economy, international arbitration clauses are often included
in commercial contracts with other businesses. This way, if a dispute arises, the parties to the
contract are obligated to arbitrate in lieu of pursuing traditional court litigation.

As discussed by our guest speaker, Adrianne Goins, Esq. (Counsel, Vinson & Elkins LLP),
international arbitration allows the parties to select their arbitrator or panel of arbitrators, and
essentially to design or craft the arbitral procedures that will be used to resolve commercial
disputes.

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In fact, one of the benefits of using international arbitration to resolve legal disputes is that it
allows parties from different jurisdictions to resolve legal disputes in a final and binding way in
the absence of the often strict procedural rules that accompany the traditional litigation process in
various jurisdictions.

View the following Adrianne Goins International Arbitration Video Clips:

ADR International Arb Clip 1

ADR International Arb Clip 2
ADR International Arb Clip 3

Arbitration vs. Dispute Resolution in Courts

The table below (prepared by Adrianne Goins, Esq.) provides you with a visual depiction of why
parties choose arbitration over litigation.

Why Do Parties Choose Arbitration?

Attributes Arbitration Litigation

Neutrality No "home court" advantage Advantage to local party

Confidentiality Private; can bar disclosure Public; searchable dockets

Decision maker Selected by the parties; expertise Selected by the court; luck of the
draw

Procedures Informal; flexible procedural Highly formal; fixed rules

rules

Discovery Can limit; depositions unusual Extensive; depositions common

Duration of Parties control; can be fast-track Varies by court and judge

proceedings

Enforceability Award is enforceable Judgment is harder to enforce

internationally abroad

Appeal Limited; high standard for Right to an appeal

vacatur

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Costs Can control costs; potential for Costs less controllable; cost-
cost-shifting shifting rare in US

Dispute Resolution in Courts

The legal system in the United States is considered an adversary system. Where do lawsuits
start? Almost all cases start in trial courts, which are endlessly portrayed on television and in film.
There is one judge AND there will often (but not always) be a jury.

1. Key: This is the only court to hear testimony from witnesses and receive evidence.
2. The main role of trial courts is to determine the facts of a particular dispute.
3. Trial courts also apply to those facts, any law given by an earlier appellate court decision.

To hear a case a trial court must have jurisdiction to hear or oversee the case (i.e., a court’s
power to hear a case).

Cause of Action
A cause of action is a fact or a set of facts that enables a party to bring a lawsuit against another.
In the litigation context you will often hear reference to… “is there a cause of action?” In that
context the inquiry is whether there is a legal theory upon which a plaintiff brings a lawsuit
against a defendant. Thus, when attorneys mention whether there is a cause of action, they mean
one of two things:

A group of facts upon which a claim for judicial relief can be made, and/or
The legal theory upon which a plaintiff brings a lawsuit against a defendant

In order to figure this out, you will need to determine whether the factual elements needed to
bring a particular legal claim are met. There are certain factual elements needed to support a
specific cause of action. They can come from the constitution, a statute, judicial precedent, or an
administrative regulation. Let’s look at an example in the video below:

qst_la245_amal_big_corp video cannot be displayed here. Videos cannot be

played from Printable Lectures. Please view media in the module.

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Sidebar Conversation 1.2

The elements of a defamation claim are: (1) A defamatory
statement. A statement that is likely to harm another person’s
reputation; (2) that is false; (3) that is communicated to at least
one person other than the plaintiff; and (4) that somehow injures
the plaintiff.

Q1: Has Amal stated a cause of action for libel (i.e., written
defamation)?

Amal and Big Corp Answer:

Q2: Here, there are several elements of libel that are not met
(arguably three). What are they?

Hint:

The U.S. Court System

U.S. Court System

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The United States has over 50 systems of courts. One nationwide system of federal courts serves
the entire country AND Each individual state has its own court system.

Federal System: U.S. District Courts – The primary trial court in the federal system. The nation
is divided into about 94 districts and each has a district court. There are also specialized courts
(tax, bankruptcy). To bring a case to the U.S. Supreme Court the court must issue something
called a “writ of certiorari” (at least 4 of the 9 Justices must approve the writ).

State Court System: State courts work roughly the same way. General trial courts can be
broken out by civil and criminal, but there are some courts with more limited focus (e.g., juvenile,
domestic relations, probate). At the state level, the party that loses at the trial may appeal to the
intermediate court of appeals. In most states there is no absolute right to appeal to the State
Supreme Court—the highest court in the state. The State Supreme Court accepts some appeals
from the intermediate court of appeals. If the high court regards a legal issue as important, it
accepts the case.

Geographic Boundaries of Federal District Courts and Circuit Courts of Appeal

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This is a visual depiction of the federal courts and the circuit courts of appeal. The courts of
appeal are divided into “circuits” or geographical areas.

There are 12 circuits that hear appeals from district courts located in their circuit. The 13th Court
of Appeals is the Federal Circuit, which hears appeals from the various districts including
specialized courts e.g., court of international trade.

As you can see here, Massachusetts is located in the 1st Circuit. The 1st Circuit is a federal court
with appellate jurisdiction over the district courts in MA as well as Maine, New Hampshire, Puerto
Rico and Rhode Island.

The Role of Appellate Courts

Appellate courts are higher courts that review the trial record to see if the court made errors of
law. If there are errors of law, the appeals court may require a new trial. Characteristics of
Appellate Courts include the following:

Three or more judges hear the case. There are no juries, ever.
These courts do not hear witnesses or take new evidence. They hear appeals of cases
already tried below.
Appeals courts generally accept the facts given to them by trial courts and review the trial
record to see if the court made errors of law.

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Juries and trial court judges see all evidence as it is presented, and they are in the best
position to evaluate it. An appeals court will accept a factual finding unless there was no
evidence at all to support it.
An appeals court reviews the trial record to make sure the lower court correctly applied the
law to the facts. If the trial court made an error of law, the appeals court may require a
new trial.

Upon hearing an appeal, appellate courts can engage in the following actions:

1. Affirm: Allow the decision to stand;

2. Modify: Let a court decision stand with some changes;
3. Reverse and remand: Nullify the lower court decision and return the case for
reconsideration;
4. Reverse: Turn the loser into the winner, with no new trial.

The table below provides a comparison of the role of trial courts versus appellate courts:

Trial Courts vs. Appellate Courts

Trial Courts Appellate Courts

Jury present in certain cases No juries

One judge (sits individually) More than one judge (panel of 3)

Attorneys call witnesses and present Does NOT hear witnesses or review new
evidence evidence

Determines and establishes the facts of Review limited to legal issues

a dispute Oral arguments on legal issues

First opportunity for a case to be heard Cannot initiate cases

Judicial Precedent
As previously discussed, judicial precedent attaches a specific legal outcome to a particular set of
facts. Thus, the rule of law established in the case becomes the rule used to decide other cases
that involve IDENTICAL OR SIMILAR facts and arise in the same court or a lower court in
the jurisdiction.

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When determining whether a court must adhere to legal precedent, judges consider whether the
prior case is mandatory or persuasive legal authority. While courts must follow and apply
mandatory legal precedent, they are permitted to merely consider if they want to apply (and be
persuaded by) previous cases that are categorized as persuasive legal precedent.

Whether a case is considered mandatory or persuasive precedent depends on the level of the
court in the jurisdiction and the jurisdiction within which the case arose. A lower court is only
required to follow the mandatory legal precedent for the jurisdiction (or judicial circuit) in which
the court sits. Thus, a previous case is binding on a new court only if: (1) the previous case arose
within the same jurisdiction as the dispute presently before the court; and (2) the earlier case
was decided by a higher-level court within the same jurisdiction.

Hypo 1.4: Legal Precedent

Debbie is a lawyer in Boston (located in the 1st Circuit). She is trying an
important case in federal district court that raises a novel issue that has not
been addressed in a previous case by the 1st Circuit Court of Appeals. She
does, however, find an identical case from the 9th Circuit Court of Appeals
that she feels is perfect. In her legal brief filed with the court, Debbie argues
that the 9th Circuit Opinion is mandatory authority that must be followed by
the federal district court in Boston. Debbie is correct. True or False?

True

This answer is incorrect.

False

This answer is correct.

The statement is False.

The 9th Circuit ruling can only be used as persuasive authority to try to get
the judge presiding over the case in the district court in Boston to rely heavily
upon it when deciding the issue. The only mandatory precedent for the federal
district court in Boston, are rulings from the 1st Circuit Court of Appeals and
Supreme Court rulings.

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Dispute Resolution—Jurisdiction and Anatomy

of Civil Litigation

Jurisdiction
Jurisdiction is the power of a court to hear a case or preside over a party. There are two types:
(a) Subject Matter Jurisdiction, and (b) Personal Jurisdiction.

In state or federal court, a plaintiff may start a lawsuit only in a court that has jurisdiction over
that kind of case. Some courts have limited jurisdiction, while others have the power to hear
almost any case (general jurisdiction).

Subject Matter Jurisdiction is the power of a court to hear a particular type of case. The
default is state court jurisdiction. This means that you can certainly file in state court as a
first step. However, whether a party can file in federal court depends on if that party meets
certain criteria. Per below, there are certain limits and thresholds that must be met to try a case
in federal court.

The two kinds of lawsuits that can be brought in federal court are federal question cases and
federal diversity cases.

Federal Question Case – A case in which the claim is based on the U.S. Constitution, a
federal statute, or a federal treaty.
Diversity Case (aka Diversity Jurisdiction) – Applies when (1) the plaintiff and defendant are
citizens of different states and (2) the amount in dispute or in controversy exceeds
$75,000.

The jurisdictional inquiry does not end there, however. In addition to subject matter jurisdiction,
courts must also have personal jurisdiction over the defendant.

Personal Jurisdiction is the legal authority to require a defendant to stand trial and pay a
judgment. It can only be established if certain criteria are met.

Sidebar Conversation 1.3

Q: Can a court haul an out-of-state person or entity into its court to
defend a lawsuit? If so, how?

Answer:

The Anatomy of Civil Litigation

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A lawsuit is started by the filing of a complaint, to which the defendant must respond (i.e., file an
Answer) within 20 days. Together, the Complaint and Answer (and sometimes a reply to the
Answer from the plaintiff) are considered the pleadings.

The Complaint is a short, plain statement of the facts alleged and the legal claims made. In most
cases it tries to tell a story in a clear and persuasive way. The Summons is the document that
orders the defendant to answer the complaint within 20 days (Federal Rule of Civil Procedure
12(a)(1)(A)). The summons and the complaint must be served (i.e., personally delivered by a
process server) to the defendant.

Generally, the defendant’s Answer provides less information and only admits to undisputed
factual information. This is because once admissions are made, they cannot be recanted. If a
defendant fails to file an Answer or submits it too late, a Default Judgment can be entered against
them. A Default Judgment is a decision of the court that the plaintiff wins without trial because
the defendant failed to answer the Complaint in time. If a Default Judgment is entered, a party
can file a motion with the court and ask the judge to set it aside (void or nullify) the judgment.

Sometimes a defendant will answer the Complaint but also file a counterclaim (defendant’s
lawsuit filed against the plaintiff) along with the Answer. Finally, remember that process matters
as much as substance. This basically means that what happened does not always equate to
what you can prove. A party needs to win on procedure and substance in order to prevail in
litigation. Falling short in either area can cost a plaintiff or defense the case. A good example of
this concept is seen in the Enviro-Vision v. Coastal Insurance Company case discussed in your
text.

Remember also that more than 90% of all lawsuits are settled before trial!!

Motions

After the pleadings, the parties can file various motions. Motions are requests for the judge to
make certain determinations. Two of the most common are motions to dismiss and motions for
summary judgment.

Let’s watch a short clip of these concepts:

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cannot be played from Printable Lectures. Please view media in the module.

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cannot be played from Printable Lectures. Please view media in the module.

Common Law, Statutory Law, and

Administrative Law

Common Law
Common law is important in tort, contract, agency, property and employment law. As we have
discussed, the doctrine of STARE DECISIS (“Let the decision stand”), refers to the ruling of a
previous case (i.e., precedent). Legal precedent exists, in part, to help people understand the law
and have some way to predict the legal consequences of certain conduct. Your textbook looks to
bystander cases to demonstrate how common law evolves. As you will notice, it is a very slow
process.

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Sidebar Conversation 1.4

Q: According to the text, what is the longstanding, common law rule
regarding bystanders?

Answer:

In Union Pacific Railway Co. v. Cappier, a man “trespassing on a railroad” was struck by the train.
The train did not stop and the employees on the train did not help. When an ambulance arrived
30 minutes later, the man was dead. The man’s mother sued the railroad for damages. The court,
following precedent, held that the railroad was not liable because there is no duty to rescue
unless you created the danger.

While this ruling was viewed as a harsh judgment and criticized by judges, the concept of STARE
DECISIS required courts to follow the old and well-established rule. Although no judge was willing
to scuttle it completely, judges did begin to seek openings to make small changes. Often, those
openings came in the form of slightly different factual circumstances which allowed for an
alternative ruling.

Thus, 18 years after Union Pacific Railway Co. v. Cappier, the court carved out a narrow exception
to the previous rule. In Cary v. Davis, a farm laborer had heatstroke and fainted. The employer
hauled him to the side but left him in the sun for four hours. As a result, the farm laborer suffered
serious permanent injury. The court carved out a narrow, but important exception and held that
where there is an employer/employee relationship, if the employer is present during an
emergency, there is a duty to seek aid even though the employer was not at fault in
causing the emergency.

A broader principle later emerged in Tarasoff v. Regents of the University of California, 17 Cal.3d
425 (1976), but it took another 55 years.

Let’s apply some of these concepts with a few hypotheticals below:

Hypo 1.9: Falling Child Hypothetical

While at the park, Tasha saw a small child fall into the lake. Tasha did not
know the child. Under the common law of most states, Tasha has a legal duty
to take reasonable steps to assist the child if Tasha is able to help and such
help will not jeopardize Tasha's well-being.

Is this statement True or False?

True

This answer is incorrect.

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False

This answer is correct.

The answer is False. Tasha has no legal duty to rescue the child.

Hypo 1.10: Dr. Holz Hypothetical

Psychiatrist Holz is working with a
patient, Rebecca, who has
expressed the intention to seriously
harm two of her acquaintances.

If you apply the principle set forth

by the Supreme Court of California
in the Tarasoff v. Regents of the
University of California case,
Psychologist Holz:

has, because of the bystander rule, no duty to warn the foreseeable victims
about Rebecca's expressed intention to harm them.

This answer is incorrect.

has a duty to exercise reasonable care to protect foreseeable victims of

Rebecca's violence.

This answer is correct.

is in a special relationship with patients, and this relationship creates a

privilege of confidentiality between the communicants.

This answer is incorrect.

will be held to a strict duty of care and will be held liable for any victim's
injuries if Holtz failed to warn them of Rebecca's potential violence toward
them.
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This answer is incorrect.

Psychiatrist Holtz has a duty to warn based on knowledge that their client
might harm others.

Good Samaritan Laws

Good Samaritan laws offer legal protection to people who give reasonable assistance to those who
are, or whom they believe to be, injured, ill, or in danger. The details of good Samaritan laws vary
by jurisdiction, including who is protected from liability and under what circumstances.

State statutes generally fall into one of three categories:

Some apply only to medical personnel or medical treatment

A small fraction impose a duty to rescue if you can do so without putting yourself in danger
Others impose a
duty to report

Some states have versions of a “Duty to Rescue” statute that require people to notify authorities
or to seek aid for people in danger.

Most of these criminal statutes require witnesses of certain violent crimes to report the crime as
soon as they can if they can do so without endangering themselves or others. There is no
duty to prevent the crime or go to the aid of the victim.

Sidebar Conversation 1.5

Q: Why do you think that the common law of most states has not
forced bystanders to render aid?

Answer:

Posting Death on Social Media: Should Bystander Laws Be

Changed in the Digital Age?

On July 9, 2017, 31-year old Jamel Dunn wandered into a pond in

Florida and drowned. Footage of his death shows that he struggled
and called for help for over two minutes before he drowned to
death.

The video of Dunn's drowning was recorded by five teenage boys,

who were smoking marijuana and drinking beer on the other side of
the pond from Dunn. During the video, they can be heard laughing
at Dunn while he struggled in the water. The teens did not call the

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police
once
Dunn

drowned or at any time afterwards. The teen's footage of Jamel

Dunn's death was posted to social media.

Q: Should the teens be held legally responsible for Dunn’s death?

Q: Do you think social media has changed what it means to be a

bystander?

Q: Do you think that third parties who are “actively” recording

everything and posting to social media transform themselves from
passive bystanders into active participants, such that criminal
liability should attach?

Statutory Law
A bill is a proposed statute that has not yet passed the legislature. If you have ever been to
Washington D.C. and gone to the gallery to view the activity on the House or Senate floor, you
probably were a bit disappointed to see it rather empty and deserted. This is because most
congressional work is done in committees.

OK, so the bill becomes a law. Are we done now? Not necessarily. There may be disputes over
where it applies and what it means. There might also be challenges re: its constitutionality. The
court’s role at this point will involve statutory interpretation.

For example, in Griggs v. Duke Power, 401 U.S. 424 (1971), the Supreme Court interpreted Title
VII of the Civil Rights Act of 1964 for the first time. As you read the case, you will notice that the
court used all three methods of statutory interpretation:

Plain Meaning Rule—When a court applies the ordinary, everyday meaning of the words in
a statute.

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Legislative History and Intent—When a court looks at the statute’s history, including the
records of the congressional hearings, to find the meaning of certain language.

Public policy—When a court uses its own precedent and relies on general public policies.

How the Court Interpreted Title VII in Griggs v. Duke Power

Plain language Public Policy Legislative History

"The objective of Under the Act, practices, Looked to debate

Congress in the procedures or tests around Section 703(h)
enactment of Title VII is neutral on their face, and Process for adding it as
plain from the language even neutral in terms of amendment, and
of the statute. It was to intent, cannot be concerns that
achieve equality of maintained if they amendment language be
employment operate to freeze the addressed
opportunities and status quo of prior
remove barriers that discriminatory
have operated in the employment practices
past..."

Administrative Law
Administrative law is law made by agencies. Congress creates a federal agency by passing
enabling legislation. This enabling legislation:

Describes the problems that Congress believes need to be addressed by regulation,

Establishes an agency to address them, and
Defines the agency’s powers.

Administrative Agencies:
Were created to respond to the need for regulation.
Affect each of us daily in many ways.
Their wide reach and influence make them seem almost like a fourth branch of
our government.
Their power and influence is controversial because agency members are not
elected by the people.

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Critics argue that Congress is delegating to another body powers that only the
legislature or courts are supposed to exercise.

Agencies have various powers. They include rulemaking, investigation, and adjudication:

Rulemaking

Agencies may promulgate legislative rules, which generally have the effect of statutes; or
interpretive rules, which merely interpret existing statutes. To create a new rule is to “promulgate
it.” There are two types of rules:

Legislative—require businesses and people to act a certain way

Interpretive—agency interpretation of what the law already requires (e.g., how a specific
provision of the law will be implemented)

Both types impose requirements that must be followed and may be challenged in court. There are
also two types of rulemaking:

Informal—proposed rule must be published, and public allowed to comment

Formal—must hold a public hearing before establishing the rule

Investigation

Agencies have broad investigatory powers and may use subpoenas and, in some cases,
warrantless searches to obtain information.

Voluntary Request for Information: Agencies may ask businesses to provide information
voluntarily. This is where the agency asks for information and/or issues a recommendation.
Businesses voluntarily comply.
Compulsory Request for Information: Here, the agency may issue a subpoena, which is
an order to appear at a hearing or to produce information or documents. They may also
issue something called a Subpoena Duces Tecum, which requires a person to produce
certain documents or items. Agencies can obtain warrants (a type of court order that can
permit entry, search and seizure (without prior notice). In some cases, agencies are also
permitted to conduct surprise inspections without a warrant (where the scope of regulatory
authority permits it).

Information Sought by an Agency Must:

Be RELEVANT to a lawful agency investigation
Not be UNREASONABLY BURDENSOME
Not be PRIVILEGED
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Attorney-Client communications
The Fifth Amendment privilege against self-incrimination also applies to a
corporate officer accused of criminal violations (cannot compel the officer
to testify about his/her behavior)

Adjudication

Agencies also adjudicate cases, meaning they hold hearings and decide issues. Adjudication
generally begins with a hearing before an administrative law judge (or ALJ) and may involve an
appeal to the full agency or ultimately to federal court.

An agency adjudication can differ in important ways from a trial. The parties have counsel, but
the rules of discovery, rules of evidence, and trial procedures are established by the ALJ and the
agency and not the federal rules of civil procedure. In addition, all matters are decided by the
ALJ. There are no juries.

However, litigants do have the right to appeal an adverse decision. They must first exhaust any
appellate rights or remedies available to them within the agency prior to appealing to one of the
U.S. Courts of Appeal.

Judicial Reviews of Agency Actions

Select each of the concepts below for more information.

▼ Right to appeal to federal courts

Must exhaust all appeal options within the agency

Then, party injured by an agency decision can appeal to federal court

▼ Deference afforded to agency

Courts typically defer to agency fact finding (so long as evidence supports
determinations)
Courts also often defer to agency interpretation of law, so long as reasonable
If agency decision is arbitrary and capricious, Court will overrule agency

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Module 1 Case Questions

Case Questions: Kuehn v. Pub Zone

What kind of case is this, civil or criminal? What is the difference?
What is the key issue in the case?
Why does Pub Zone claim it had no duty to Kuehn?
What did the trial court conclude?
What did the appellate court decide?
What was the appellate court’s rationale for its decision?
What should Pub Zone have done to satisfy its duty?

Case Questions: Tarasoff v. Regents of University of

California
After the Tarasoff case, do people generally have a duty to come to the aid of someone in
danger?
What is the exception that this decision creates?
Therapists hear patients' anger all day long. How can a therapist know for sure whether a
patient is serious in making a threat?
Poddar was Dr. Moore’s patient. Did the doctor-patient privilege protect his conversations
with Dr. Moore?

Case Questions: U.S. v. Biswell

What if this was a search of a private home?

Does the owner of commercial property have a different expectation of privacy than that of
a homeowner?

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