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Chapter 1

Introduction to Law
LEARNING OBJECTIVES
After reading this chapter, you should be able to understand the nature and sources of law, and the
concept of the rule of law and how it affects business and economic prosperity. At the conclusion of this
chapter, you should be able to answer the following questions:
1.

What is the law?

2.

Where does our law come from?

3.

What is a rule of law?

4.

How is the law relevant to business?

5.

How does the study of the legal environment of business create a foundation for future business courses?

You might be wondering what the law has to do with you. You try to follow the rules. You don’t get into
any trouble. You want to engage in honest dealings in business. Besides, you can always hire an attorney if
you need legal help.
This may all be true. However, it is imperative for those in the business world to understand the legal
environment in which they are operating. While you may have the best intentions and be truly diligent in
your efforts to do business fairly, inevitably conflicts will arise in everyday business dealings. For example,
what does it mean to do business “fairly”? Fair to whom? Fair to your shareholders? Fair to your
employees? Fair to the consumers who will purchase your products? Through which ethical lens will you
contemplate these issues? Trade-offs are a part of business. If you want to increase shareholder profits,
you may need to reduce labor costs. One way to reduce labor costs is to use cheaper labor. If you pay your
employees less, your employees will be less well off, but your shareholders may be happier.
Consider the credit crisis that came to the world’s attention in October 2008 and nearly toppled the U.S.
economy into depression. Hundreds of thousands of homes were foreclosed by banks (Figure 1.1 "The
Credit Crisis"), leading to a vicious cycle of depressed housing prices, shattered consumer confidence, and
business retrenchment. You may be thinking that this has little to do with you or with the study of the

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legal environment of business. Think again. The credit crisis affected everyone. And the nature of the
crisis implicated several legal environment issues.
Figure 1.1 The Credit Crisis

Source: Photo courtesy of Brendel, http://en.wikipedia.org/wiki/File:Foreclosedhome.JPG.

In a nutshell, the U.S. financial system nearly collapsed under the weight of high default rates among
mortgagees, the issuance of excessive subprime mortgages to unqualified debtors, collateralized debt
obligations (CDOs) that were not being serviced and could not be sold, and a mortgage banking system
with flawed incentive structures from the bottom to the top. The mortgage industry created incentives for
those who worked in that industry to act in their own self-interest to make a profit, even at the expense of
the long-term health of the institutions for which they were working.
Considering this flawed incentive system, the results were not surprising to many economists, who know
that people tend to act in their own self-interest, even at the expense of their institutions’ goals. Mortgage
brokers had very strong incentives to approve every mortgage applicant, regardless of creditworthiness or
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ability to service the mortgage. This was because the lenders were pressuring them for more mortgages, so
that the lenders themselves could sell those mortgages for a profit. And this pressure for “more” was
endemic at every level of the mortgage industry, from the would-be homeowner who wanted more house
than he or she could afford to the investment bankers who wanted more CDOs on which they could profit.
However, excessive risk was undertaken, and when mortgagees began defaulting on their mortgages, the
market became flooded with houses that had been foreclosed. As supply of houses increased and demand
for them fell, housing prices plummeted, which meant that not only were the investors not receiving
income on their investments, but also homeowners were losing the value of their investments, since their
house prices were plummeting. The end result was that many homeowners were “upside down” on their
obligations, meaning that they owed more on their houses than what the houses were worth. This created
an incentive for mortgagees to abandon their debt obligations. When the investors did not receive income
on their investments, they also were not receiving the cash flow to cover their debts, and they could not
service their obligations under their CDOs. Parties at every level began clamoring for protection from
their creditors from the U.S. bankruptcy courts by filing petitions for bankruptcy.

Hyperlink: Credit Crisis
http://vimeo.com/3261363
This video explains the credit crisis and will help you begin thinking about the intersection between the
legal environment of business and the role of government in regulating business.
After watching the video in Note 1.2 "Hyperlink: Credit Crisis", consider the intersection between law and
economics. Former Federal Reserve Chairman Alan Greenspan had consistently maintained that private
regulation (that is, self-regulation by private industry) was better at containing risk than government
regulation. But when the 2008 credit crisis manifested, Greenspan retracted this belief, at least in part.
He expressed that he was in “a state of shocked disbelief” concerning the financial institutions’ inabilities
to self-regulate.

[1]

He always believed that the incentive of survival of the institution itself would force

banks to self-regulate. However, this “shocked disbelief” underscored a fissure within the discipline of
economics—namely, whether the same economic principles that apply to individuals also apply to
organizations. While we know from our study of economics that individuals act in their own self-interest,

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the 2008 credit crisis perhaps illustrated that people continue to act in their own self-interest, even when
working within a firm. The firm itself is only a collection of individual people, and so the firm itself does
not act in any type of organizational self-interest.
You might be wondering why we are discussing economics. This is because economic principles are
intertwined with economic prosperity, and economic prosperity is intertwined with business, as the
preceding example illustrates. To understand what happened in the credit crisis and, more importantly,
how to prevent something like this from happening in the future, we have to understand economic
principles that impel behavior. Additionally, we have to understand how our laws can embody the
knowledge that we have from economics to prevent situations like this from happening in the future.
Specifically, while a basic principle of economics is that individuals act in their own self-interest, they do
so within the rules of the game. That is, they do so within the parameters of the law. Additionally,
sometimes individuals weigh the penalties of violating the law against the chances of getting caught to
determine how they should behave. In both instances, the law is a restraint on behavior.
Reflect on the credit crisis and how our laws could have entirely averted or seriously mitigated the fallout
that resulted from it. For example, if the laws regulated the incentive structures that exist within private
industry, the individual incentive to make a profit would not have been allowed to overtake the financial
institutions’ need to self-preserve by limiting risk. Likewise, if our banking regulations limited the types of
services that banks could offer, perhaps the exotic financial instruments that were created as a precursor
to the credit crisis would not have been permitted in the first place. If the size of our financial institutions
had been limited by law, the dangerous fallacy that the financial institutions were too large to fail could
not have been perpetuated. If compensation packages were legally restricted by limitations on size or
severed from linkages to performance, then individual incentives to maximize profit could have been
restrained. Additionally, this situation raises several ethics questions. For example, was it ethical to loan
money to people who were not able to service those debts?
As you think about these questions and the many other questions that will arise during your study of the
legal environment of business, try to set aside any fixed ideas that you have already formulated about law
and the legal system. Many students who are new to the study of law find themselves sharply swayed by a

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particular type of fiction that has grown around the legal system. Specifically, many students find that
they harbor a sense of repugnance to law, because they have heard that it is filled with frivolous lawsuits
brought by a litigious public waiting to pounce at the smallest slight, along with money-grubbing
attorneys waiting to cash in. We ask that you set aside those and any other preconceived notions that you
may harbor about the law and the legal system. The law is a dynamic, sophisticated field. Frivolous
lawsuits are not permitted to advance in our legal system, and most attorneys are committed to justice
and fairness. They work hard to protect their clients’ legal interests and simply do not have the desire or
the time to pursue frivolous claims. Indeed, there is no incentive for them to pursue such claims, because
our legal system does not reward such behavior.
Most people want to conduct themselves and their business dealings within the parameters of the law.
Even if we are very cynical, barring any other compunction to behave well, we can see that it makes the
most economic sense to do so. Following the rules of the game saves us money, time, and aggravation, and
it preserves our individual and professional reputations. So if most people recognize that they have an
incentive not to run afoul of the law, why are there so many legal disputes? There are many reasons for
this, such as the fact that many of our laws are ambiguous, and reasonable people may disagree about
what is “right.” Additionally, legal injuries happen even under the best of conditions, and the aggrieved
parties need a method to press their claims to be compensated for their damages.
A common theme in the study of the legal environment is responsibility. Much of our legal wrangling
seeks to answer the questions, “Who is responsible, and what should be done about this injury?”
Additionally, and perhaps more importantly for business, is the concern of how to limit liability exposure
in the first place. A solid understanding of the legal environment of business should help limit the risk of
liability and thus avoid legal disputes. Moreover, it should help you recognize when you need to contact
your attorney for assistance in defining the contours of the law, which are the rules of the game. The law
provides continuity and a reasonable expectation of how things will be, based on how they have been in
the past. It provides predictability and stability.
This book does not teach you how to practice law or to conduct legal research. That is the work of
attorneys. Legal research is a sophisticated method of research that seeks to determine the current state of

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the law regarding narrowly defined legal issues. Legal research helps guide our behavior to help us comply
with the rules of the game. When you need an answer regarding a specific legal issue, you will contact your
attorney, who will research the issue, inform you of the results of that research, and advise you of the
decisions you must make with respect to that issue.
The goals of this book are practical. Try to conceptualize your study of the legal environment of business
as a map by which you must navigate your business dealings. We want to teach you how to read this map
so that you are able to understand the law and how it affects your business and your life. Besides limiting
legal liability proactively, an understanding of the law can also help you avoid serious missteps. After all,
ignorance of the law is no defense for violating the law.
This chapter provides an overview of the legal system. We begin with a discussion of what the law is, and
then we turn our attention to the sources of law, the rule of law, the reasons why rule of law is important
to business, and how law affects business disciplines such as management, marketing, finance, and
accounting. The chapter concludes with a discussion of the link between rule of law and economic
prosperity.

Key Takeaways
Law is a dynamic and ever-changing field that affects everyone, both in their individual capacities as
people and in their business interactions. Studying the legal environment of business helps us understand
how to reduce liability risks, identify legal problems that require an attorney’s assistance, and identify the
links between business and the law.

[1] Brian Knowlton and Michael M. Grynbaum, “Greenspan ‘Shocked’ That Free Markets Are Flawed,” New York
Times, October 23, 2008,http://www.nytimes.com/2008/10/23/business/worldbusiness/23ihtgspan.4.17206624.html (accessed August 18, 2010).

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1.1 What Is Law?
LEARNING OBJECTIVES
1.

Understand the meaning of jurisprudence and how its study can lead to greater understanding of our laws
and legal system.

2.

Distinguish among law as power, legal positivism, legal realism, and natural law.

3.

Examine strengths and criticisms of several theories of jurisprudence.

4.

Explore examples of several theories of jurisprudence.

If you were asked to define “the law,” what would you say? Is “you should eat five fruits and
vegetables a day” a law? What distinguishes law from mere suggestions or good advice? The key
difference is obviously enforcement and consequence. If you don’t eat five fruits and vegetables a
day, you are not going to be imprisoned or fined. If you steal or embezzle, however, you may be
prosecuted and face stiff financial penalties and imprisonment. Law, therefore, is a set of rules that
are enforced by a government authority.
Now consider the nature of law. Would you say that the law includes only the actual words that are
written, or does it also include reading between the lines to discern the spirit of the law? Would you
follow a law that you disagreed with, or would you ignore such a law? Do you believe that what the
law actually is matters as much as who enforces it? Do you think that morality is a part of legality, or
do you think that morality is wholly separate from the law?
Based on the particular system of jurisprudence to which one ascribes, these questions will generate
different answers. Not only will the answers to these questions differ, but the potential outcomes of
legal disputes can also vary widely, depending on one’s conception of what the law is. These
differences highlight fundamental disagreements over the nature of law.
Jurisprudence is the philosophy of law. The nature of law has been debated for centuries, giving rise

to a general coalescence of ideas to create particular schools of thought. Several different theories of
jurisprudence are explored in the paragraphs that follow.
At a most basic interpretation, some believe that law is simply power. That is, the law is followed
because the sovereign issues orders that are backed by threats. Consider tyrannical rulers who create
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arbitrary laws or bad laws. If the sovereign has the power to enforce those “laws,” then regardless of
the “badness” of the law, it is still law. The Nazis executed six million Jews pursuant to German law
during World War II. Saddam Hussein routinely tortured and executed political opponents and
minority Sunni Muslims in Iraq under Iraqi law. The military in Myanmar (known euphemistically
as the State Peace and Development Council) imprisoned the democratically elected and Nobel Peace
Prize–winning prime minister of the country, Aung San Suu Kyi (Figure 1.2 "Aung San Suu Kyi"),
under color of authority. (Actions taken under the law are said to be under the color of authority.)
Those who ascribe to the idea that law is power often argue that coercion is an essential and
necessary feature of law.
Figure 1.2 Aung San Suu Kyi

Source: Photo courtesy of the U.S. Department of State, http://en.wikipedia.org/wiki/File:Burma_3_150.jpg.

Let’s explore whether the law is nothing more than power. If an armed person robs your store, you
will very likely hand over whatever it is that he or she wants. The robber has exercised power over
you but has not exercised the law. This is because, as you might point out, an armed robber is not the
sovereign power. But compare this to a sovereign who exercises power over you. For instance,
imagine a government that institutes compulsory military service (the draft) under threat of
imprisonment for failing to comply. The sovereign would have the power to deprive us of our liberty
if we did not follow the rules; such a law certainly has the force of power behind it.
Many have criticized the understanding of law as nothing more than power backed by threats. For
example, some point out that if law is nothing more than power, then the subjects of the law are
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simply at the mercy of whoever is in power. If we look at the U.S. system of government, however,
citizens generally do not feel that they are “at the mercy” of the government. This is because people
also have power. People can elect their government officials, and they can vote “out” government
officials who aren’t doing a good job. In this way, those in power are accountable to the people. Other
criticisms include the more piercing observation that not all law requires the exercise or threat of
overt power. For instance, many of our laws rely on economic incentives, rather than force of power,
to encourage compliance. Though penalty provisions may exist for violating those laws, those
penalties may not be driving compliance itself.
A competing view is that of legal positivism, whose proponents disagree that law is simply power.
Legal positivists believe that the law is what the law says. The laws are written, human-made rules.
The law is not drawn from any source higher than man. Legal positivists do not try to read between
the lines. They may disagree with the law as it is written, but they will acquiesce to the sovereign
power and follow the law as it is written. They reject any belief that they have an individual right to
disobey a law that they happen to oppose, providing that the law is from a legitimate source.
Positivists believe that law is wholly separate from any consideration of ethics. Moreover, they do not
believe that people have intrinsic human rights other than those created by the law. This is very
different from a natural rights perspective, which is discussed in the following paragraphs.
Positivists differ from the view that law is simply power, because they believe that valid law must be
created pursuant to the existing rules that allow the sovereign to create law. Under this way of
thinking, an arbitrary declaration of law by a sovereign who did not follow the rules for creating the
law would not be viewed as valid law. Additionally, positivists would not consider any rule or “law”
created by an illegitimate ruler as valid law. Consequently, a legal positivist would feel no need to
obey an illegitimately created “law.”
Consider the example of the draft again. Some people have a strong moral objection to engaging in
armed conflict with other human beings. However, a legal positivist would most certainly comply
with a law that required compulsory conscription, though he or she might use other legal channels to
try to change the law.

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A common criticism of legal positivism is that it prohibits individuals from remaining true to their
own consciences when their consciences conflict with the laws of the sovereign. However, for a
positivist, the desirability of enacting a law that might be viewed as “good” or “bad” is not relevant
for determining what the law is.
Some critics point out that legal positivism is too limited in its conception of law. For instance, at
least some laws seem to reflect a moral stance. The prohibition against insider trading (using
nonpublic information to buy or sell a stock to make money) might be said to encompass the idea of
fairness, which is a moral consideration. Likewise, due process (fundamental fairness and decency in
government actions) might be said to encompass the ideas of both fairness and a moral position
against cruelty. Moreover, not all law is the result of a sovereign-issued, written rule. For
example,international customary law has developed through customary practices. It is valid law, but it
is not a set of rules handed down from a sovereign ruler.
A different viewpoint is legal realism, which is the belief that the law itself is far less important than
the consideration of who is in the position to enforce the law. Like positivists, legal realists believe
that law is the product of human making. However, unlike positivists, they believe that the outcome
of any issue that arises under law is dependent on the person, such as a judge, who is in the position
to exercise power under the mantle of the law. Additionally, realists believe that social and economic
considerations should be brought to bear in legal disputes, which may very well be “extra”
considerations that are not captured by the written law itself.
If a realist brought a dispute before a particular judge who was known to be unsympathetic to that
particular type of dispute, the realist would believe that the judge’s decision would reflect that
leaning. For example, if a dispute arose under the Clean Water Act, and the defendant was a legal
realist who believed that the judge was unduly harsh with environmental offenders, the legal realist
would not look to the actual words of the Clean Water Act itself to determine a likely outcome.
Instead, the defendant would view the judge’s personal and professional beliefs about water
pollution as determinative factors. Moreover, if the plaintiff in the same case were a realist who did
not believe that the Clean Water Act was very strong, that plaintiff might hope that the judge would

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consider the social importance of clean water to human health, natural environment, and nonhuman
animals.
Critics of legal realism point out that those who are in the position to exercise the power of the law
over others should not circumscribe the checks and balances of our system of government by
considering factors outside of legitimate sources of law when making decisions. For instance, they
argue that judges should not use any factors other than the written law when rendering decisions.
Legal realists, however, point out that judicial interpretation not only is necessary but also was
contemplated by our Founding Fathers as a built-in check and balance to our other branches of
government.
Natural law is the idea that humans possess certain inalienable rights that are not the products of

human-made law. Therefore, we can say that natural law differs from both positivism and realism in
this important respect. Humans are able to reason, and therefore they are able to discover moral
truths on their own. They are not automatons who require a sovereign power to tell them right from
wrong. Natural law adherents do not reject human-made law. However, they recognize that humanmade law is subordinate to natural law if the two types of law conflict.
Civil rights activists often rely on natural law arguments to advance their platforms. This is true
today as well as historically. For example, a civil rights advocate might point out that regardless of
what the law “says,” discrimination based on race is simply wrong. If the written law allowed racial
discrimination, natural law adherents would not recognize the law as valid.
Each theory of jurisprudence can inform our understanding of legal issues by allowing us to see the
same thing from many different perspectives. Moreover, depending on philosophical perspective,
there may be several possible outcomes to the same legal dispute that are equally supportable. This
understanding can help us identify common ground among disputants as well as points of departure
in their reasoning.

KEY TAKEAWAYS

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Different theories of jurisprudence inform our understanding of what the law is. Examining legal issues
through the lenses of different theories of jurisprudence allows us to see how different outcomes can be
defended.

EXERCISES
1.

Read “The Case of the Speluncean Explorers” at http://www.nullapoena.de/stud/explorers.html. Identity
the justice’s opinion with which you most closely agree. Name the different theories of jurisprudence used
by each justice in reaching his or her opinion.

2.

What are some examples of natural law in our legal system or system of governance?

3.

Is it more important for you to follow the letter of the law or to follow the spirit of the law? In what
circumstance would you believe the opposite to be true?

4.

Can you think of any examples of law in which the threat of force or power is not needed?

5.

Do you believe that morals are a part of our law, or do you believe that morality and law are separate
concepts?

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1.2 Sources of Law
LEARNING OBJECTIVES
1.

Differentiate between social customs and law.

2.

Become familiar with primary sources of law in the United States.

3.

Understand the difference between public law and private law.

4.

Understand the relationship between state and federal systems of government.

Hyperlink: Supreme Court Friezes
http://www.supremecourt.gov/about/north&southwalls.pdf
Along the north and south walls of the Great Hall at the U.S. Supreme Court, friezes representing the
great lawgivers in history are carved in marble. Among them are Hammurabi, Moses, Solomon, Draco,
Confucius, Muhammad, Napoleon, and one American. Click the link to find out who he is.

Where does the law come from? How do you know right from wrong? Certainly your caretakers
taught you right from wrong when you were a child. Your teachers, community elders, and other
people who were in the position to help shape your ideas about appropriate manners of behavior also
influenced your understanding of which behaviors are acceptable and which are not. Additionally,
employers often have very firm ideas about how their employees should comport themselves. Those
ideas may be conveyed through employers’ codes of ethics, employee handbooks, or organizational
cultures.
Of course, actions that are considered “wrong” and inappropriate behavior are not violations of the
law. They simply may represent social norms. For example, it is generally not acceptable to ask
strangers about their income. It is not illegal to do such a thing, but it is considered impolite.
Imagine that you are interviewing for a position that you really want. Can you imagine yourself
asking your potential employer how much money he or she makes? It would not be illegal for the
employer to refuse to hire you based on your lack of social skills. However, it would be illegal for the
employer not to hire you based solely on your race.

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So what is the difference? One type of “right from wrong” is based on societal norms and cultural
expectations. The other type of “right from wrong” is based on a source recognized as a holding
legitimate authority to make, and enforce, law within our society. These are two types of rules in our
society—social norms and laws.

A Question of Ethics
In January 2010, Haiti, the poorest country in the Western Hemisphere, was struck by a massive
earthquake that killed tens of thousands—maybe even hundreds of thousands—of people. Rescue workers
rushed to remove survivors from the rubble, but in the days following the earthquake thousands of people
wandered the streets without food or shelter. Some instances of looting and violence occurred as survivors
grew desperate for sustenance.
In the meantime, Royal Caribbean operated a cruise line that made a regular stop at Haiti, at a private
beach where it had previously spent millions of dollars in improvements to ensure that the vacationers on
its cruise ships would enjoy themselves during their overnight stops. Within a week of the disaster, Royal
Caribbean was seeking to assure its customers that the stop in Haiti was not unethical. It pointed out that
bringing tourist dollars to Haiti was actually an ethical thing to do, despite the thousands of dying and
injured just a short distance away.
If you were scheduled to begin a vacation on a Royal Caribbean cruise ship that docked at its private beach
during the week following the earthquake, would you go? If you decided to go, how would your friends
and family react to your choice? If Royal Caribbean was not legally required to issue refunds for
nonrefundable tickets, should it be willing to issue refunds anyhow?
Check out a video of Royal Caribbean’s CEO discussing his company’s involvement in bringing emergency
supplies to Haiti, as well as the potential for using ships as hotels or hospitals in the interim.
http://cnn.com/video/?/video/world/2010/01/18/ct.anderson.haiti.cruise.cnn

Social customs may be violated on pain of embarrassment or ostracism. Someone may choose to
ignore social customs, but there are usually negative social or professional consequences to doing so.
A person who violates social customs may be said be a boor, or people may try to avoid that person
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because his or her actions and comments make others uncomfortable. However, no legal
repercussions follow violating social customs.
Violations of law are different. Violating the law carries penalties, such as liability or loss of liberty,
depending on the type of violation. While we may generally decide whether or not to conform to
social customs, we are compelled to obey the law under threat of penalty.
Law can generally be classified as public law or private law. Public law applies to everyone. It is law
that has been created by some legitimate authority with the power to create law, and it has been
“handed down” to the people within its jurisdiction. In the United States, the lawmaking authority
itself is also subject to those laws, because no one is “above” the law. If the law is violated, penalties
can be levied against the violator. These penalties are also “handed down” from some recognized
source of authority, like the judiciary. Of course, people in the United States may participate in many
law-creating activities. For instance, they may vote in elections for legislators, who, in turn, create
legislation. Likewise, if people have a legal claim, their case may be heard by the judiciary.
It’s important to note, however, that not all law is public law. Private law is typically understood to be
law that is binding on specific parties. For instance, parties to a contract are involved in a private law
agreement. The terms of the contract apply to the parties of the contract but not to anyone else. If the
parties have a contract dispute, they will be able to use dispute-resolution methods to resolve it. This
is because both parties of the contract recognize the judiciary as a legitimate authority that can
resolve the contract dispute. However, regardless of the resolution, the terms of the contract and the
remedy for breach will apply only to the parties of the contract and not to everyone else.
Additionally, some law is procedural and some law is substantive. Procedural law describes the legal
rules that must be followed. In other words, it details the process or rules that are legally required.
For instance, the U.S. government must generally obtain a warrant before searching someone’s
private home. If the process of obtaining the warrant is ignored or performed illegally, then
procedural law has been violated. Substantive law refers to the actual substance of the law or the
merits of the claim, case, or action. Substantive law embodies the ideas of legal rights and duties and
is captured by our different sources of law, like statutes, the Constitution, or common law.

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Sources of Law
In the United States, our laws come primarily from the U.S. Constitution and the state constitutions; from
statutory law from Congress, the state legislatures, and local legislative bodies; from common law; and
from administrative rules and regulations. Executive orders and treaties are also important sources of law.
These are all primary sources of law. As is true in any democracy, U.S. law reflects the will of the people
who vote for representatives to make the law. In this way, U.S. law is also a reflection of public policy.
Secondary sources of law include restatements of the law, law review and journal articles, uniform codes,
and treatises. These sources are created by legal scholars rather than by a recognized, legitimate lawcreating authority. However, these sources are read by and often influence those who are in the position
to create law. Members of the judiciary, for example, may consult a restatement of law or law-review
articles when making decisions. Likewise, state legislatures often adopt whole or parts of uniform acts,
such as theUniform Commercial Code (UCC). When a body of secondary law is formally adopted by a
legitimate lawmaking authority, then it becomes primary law. In this example, adoption of the UCC by a
state legislature transforms the UCC from a secondary source of law (a model code) to a primary source of
law in that state—namely, a statute.

Hyperlink: The U.S. Constitution
http://www.archives.gov/exhibits/charters/constitution_transcript.html
Read the U.S. Constitution at this link.
The U.S. Constitution created the structure of our federal government. Among other things, it sets forth
the three branches—the legislative, executive, and judicial branches.
It provides organizational and procedural requirements, defines the boundaries of each branch’s
jurisdiction, and creates “checks” on each branch by the other branches. For example, look at Note 1.26
"Hyperlink: The U.S. Constitution". As you can see, in Article II, Section 2 the president is the commander
in chief of the several armed forces, but he does not have the power to declare war. That duty falls to
Congress.

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The first ten amendments to the U.S. Constitution are known as the Bill of Rights. Some of the Founding
Fathers did not believe that a Bill of Rights was necessary because the power granted to the federal
government created by the U.S. Constitution was expressly limited. Any powers not expressly granted to
the federal government by the U.S. Constitution are reserved to the states. This means that if the U.S.
Constitution does not state that one of the federal branches of government has jurisdiction over a
particular area, then that area falls to the states to regulate.
Despite the limited power granted to the federal government by the U.S. Constitution, as a condition of
ratification, many states insisted on a written Bill of Rights that preserved certain individual civil rights
and liberties. Today, business entities that are treated as legal persons under the law, such as
corporations, enjoy many of these rights and liberties, just as if they were natural human beings.
Each state also has its own constitution, and those constitutions serve essentially the same function for
each individual state government as the U.S. Constitution serves for the federal government. Specifically,
they establish the limits of government power, create protections for fundamental rights, and establish the
organization and duties of the different branches of government at the state level.
This dual system of government present in the United States is called federalism, which is a governance
structure whereby the federal government and the state governments coexist through a shared power
scheme. State laws may not conflict with federal laws, including the U.S. Constitution. This is because the
U.S. Constitution is the supreme law of the land.
Statutory law is law created by a legislative body. Congress is the legislative body at the federal level. The
states also have legislative bodies, most of which are bicameral, like our federal system. The state
legislatures’ names vary by state. For instance, in Indiana, the legislature is known as the General
Assembly. In North Dakota, it is the Legislative Assembly. In New York, it is called the Legislature.
Nevertheless, their purposes are the same. They are the legislative branches of their respective state
governments.
Congress is composed of a Senate, with 100 members, and a House of Representatives, with 435
members. The forefathers who wrote the Constitution deliberated and argued over how to compose the
legislature, and the result is a deliberative body that doesn’t always respond quickly to the will of the
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majority. Since population numbers from the census taken every ten years determine how many House
seats a state receives, smaller states are sometimes disproportionately represented in the Senate. Alaska
and Delaware, for example, have only one representative in the House, but each has two senators.
Senators serve six-year terms, and members of the House of Representatives serve two-year terms. There
are no term limits for either senators or members of the House. One benefit of having no term limits is
that institutional knowledge and wisdom can be carried forward in perpetuity. One drawback is that
elected officials may hedge their votes on important issues in a calculated way, to ensure reelection. If
term limits were imposed, then vote pandering would not be a problem, but the Congress would be
forever laboring with many inexperienced lawmakers.
As you can see from Note 1.32 "Hyperlink: How a Bill Becomes a Law", a bill may be introduced in
Congress through the Senate or through the House of Representatives. Both the House of Representatives
and the Senate have many committees, and these are related to all areas under the purview of Congress to
legislate. After a bill is introduced, it is sent to an appropriate committee in the chamber of the Congress
where the bill originated. If the committee moves forward with the bill, it modifies the bill as it sees fit to
do, and then it sends the bill to the house of origination (either the Senate or the House of
Representatives) for a vote. If the bill passes, then it is sent to the other house (again, either the Senate or
the House of Representatives), where it undergoes the same process. If the other house votes to approve
the bill, then the bill goes to the joint committee, which is composed of members of both the House of
Representatives and the Senate, where final work is completed. After that, the bill is sent to Congress for a
full vote. If the bill passes, it is sent to the president. If the president signs the bill, then it becomes a
statute.
The president may veto a bill. A presidential veto is an executive “check” on the legislative body. However,
if the president vetoes a bill, the legislature can override the veto by a supermajority vote. A congressional
override is a legislative “check” on the executive branch. These checks are built into our U.S. Constitution.

Hyperlink: How a Bill Becomes a Law
http://www.lexisnexis.com/help/CU/The_Legislative_Process/How_a_Bill_Becomes_Law.htm

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Check out the interactive flowchart for how a bill becomes law. Be sure to click on the different boxes for
additional information about each step.
Importantly, Congress may not act outside of its enumerated powers. Many people wrongfully believe that
Congress can do anything. That is simply not true. Look at Article I, Section 8, accessible through Note
1.26 "Hyperlink: The U.S. Constitution", for the enumerated powers of Congress. Remember that any
power not granted to the federal government by the U.S. Constitution is reserved to the states. This means
that if Congress passed a law in an area that was actually reserved to the states to regulate, Congress
would have acted outside the scope of its powers. If challenged, the law would be struck down as
unconstitutional.
As a practical matter, this means that many U.S. states have state laws that are very different from each
other. For instance, in Oregon, certain terminally ill patients may legally commit suicide under the state’s
Death with Dignity Act. However, in many other states, such an act would be illegal.
Common law is judge-made law. Common law is a feature of most countries previously colonized by Great
Britain, where it originated. In continental Europe, an alternative system called civil law developed, where
judges do not have the power to create law through interpretation. In civil-law jurisdictions, only the
legislature may create law. A jurisdiction is an area where power may be exercised.
In a common-law system, when an appellate court hears cases and writes opinions, rules of law are
created, formed, and shaped. After a particular legal issue has been decided in a jurisdiction, there is a
high probability that subsequent cases that present the same legal issue will use the same rule of law
generated from already-decided cases regarding the same legal issue. This policy is known as stare decisis,
or “let the decision stand.” This is how a precedent is formed, though precedents may shift or change over
time. Precedents also may be entirely overturned, though that is rare. Precedents and stare decisis allow
us to anticipate the behavior of others and to gauge the legality of our own actions.
Legal reasoning is used by attorneys to argue for a particular outcome in a case and by judges when
rendering decisions. At its most basic form, legal reasoning involves first identifying the legal question,
which is the issue in dispute. Then, the rule of law that applies to that issue is identified. The rule of law
may be drawn from precedent, for example. The facts of the case are analyzed against the rule of law to
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reach a supportable conclusion. This method of legal reasoning is referred to as the IRAC method, which
is an acronym for issue, rule, analysis, and conclusion.
Common law is an important source of law in those many areas that are reserved to the states to regulate.
A state may exercise its police powers to regulate the safety, health, and welfare of its citizens, for
example. The laws implemented in these areas may give rise to laws in divergent areas, such as property
law (e.g., zoning regulations), so-called vice laws (e.g., restrictions on vice business activities in certain
areas or during certain days), and domestic relations (e.g., laws relating to marriage and adoption). It’s
also important to note that precedents vary among different jurisdictions because precedents created by
one jurisdiction are not binding in other jurisdictions.
Most administrative agencies are created by the legislature. At the federal level they are created by
Congress, and at the state level they are created through the state legislative bodies. Administrative
agencies may be thought of as a delegation of congressional authority to area experts in particular fields,
so that those experts can engage in limited lawmaking, adjudicative procedures, and investigations within
their particular purviews. Laws made by administrative agencies are called rules or regulations.
Administrative agencies are created by enabling legislation, which sets forth the agencies’ jurisdictional
boundaries, rule-making procedures, and other information relating to agencies’ scopes of power.

KEY TAKEAWAYS
The legal system in the United States is composed of multiple jurisdictions at the local and state levels and
one federal jurisdiction. Local and state laws may not conflict with federal laws. Primary sources of law in
the United States include constitutional law, statutory law, common law, and administrative law.

EXERCISES
1.

Identify an action that would violate social norms but would not violate any laws. Can you identify any
violations of law that would not violate any social norms?

2.

What are three specific powers of Congress? What are three specific powers of the executive branch? Do
you think that the powers of the judicial branch are well defined? Why or why not?

3.

What areas of law have been reserved to the states to regulate? How do you know?

4.

Identify a bill in either the House of Representatives or the U.S. Senate. What stage(s) of the bill process
has it passed through? To be passed into law, what stages must it still pass through?

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5.

Which three federal administrative agencies affect you or your family the most? Why?

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1.3 The Rule of Law
LEARNING OBJECTIVES
1.

Understand what a rule of law system is.

2.

Explore the U.S. rule of law system.

When you hear the term “rule of law,” what comes to mind? It may seem like an ambiguous term, but
it is used frequently in legal and governance circles. Rule of law is a system of laws under which the
people and the government are bound, which allows predictability and restraint of government
action.
A rule of law legitimizes the law. It establishes clear rules of behavior, establishes (or captures)
precedent, and seriously undermines any defense of ignorance of the law. Moreover, it holds people
to the same standards, though in many ancient rules of law, the standards differed depending on the
person’s classification. For instance, men often had different rights than women. Slaves were a
different legal class than those who were free, and indentured servants were often a different
classification altogether. When people are held to the same standards, we can see systems of fairness
(that is, equal justice under the law) emerging, at least for those within the same class.
The Founding Fathers of the United States did not create our rule of law system out of thin air. Many
rule of law systems existed prior to the founding of the United States. The U.S. rule of law system has
many similarities with prior rule of law systems from which our Founding Fathers drew their ideas.
We can trace elements of our legal genealogy back to ancient Babylon. For example, who has the
right to govern, the legitimate sources of law, the organization of government, substantive and
procedural legal responsibilities, processes for dispute resolution, and consequences for legal
transgressions are all common foci for rule of law systems.
Can you imagine if we had no way to determine these things? Imagine that we did not know who had
the legitimate right to govern or that we did not know which sources of law were legitimate. If we did
not have a rule of law system that specified and legitimized these and other foundational issues,
chaos would rule. There would likely be competing claims of authority between different factions of
power if our U.S. Constitution and our state constitutions did not create our systems of government.
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Likewise, there would be competing sources of law—such as those based on religious texts, or others
created by modern human beings—if our constitutions did not legitimize the manner in which laws
were to be created. Also, there would be different methods of dispute resolution. Perhaps some
people would favor a vigilante system, while others would prefer a procedural system. This type of
unpredictability would result in a very unstable society. We should not take the American rule of law
system for granted. It provides predictability and stability to our lives.
Rule of law systems establish authority, create expectations for behavior, and establish redress for
grievances and penalties for deviance. Governance of conflict and the attainment of peace among the
governed are primary goals of rule of law systems. For example, securing peace is a goal within the
U.S. rule of law system. The U.S. Constitution’s preamble states, “We the People…in Order to…insure
domestic Tranquility.” We see this same notion in the English Bill of Rights of 1689, though the words
used are somewhat different.

According to many rule of law systems, the attainment of peace relies on the establishment of a
hierarchical authority structure. This recognition of the right to govern provides legitimacy. For
instance, in the Code of Hammurabi and the Magna Carta, these rights are derived from religious
authority. In the U.S. Constitution and the English Bill of Rights of 1689, the power is derived from
the people.
Note the difference between power and authority. Power is the ability to make someone behave in a
predictable manner. Authority draws its strength from legitimacy. Imagine that your friend told you
that his mother granted him the right to govern others. Would you believe him? Probably not. Why?
Because it is unlikely that you would recognize your friend’s mother as having a legitimate authority
to bestow the right to govern on anyone, including your friend. Imagine, instead, the governor of
your state. You probably recognize the authority of the governor to govern, because you recognize
that the people, through representative government, have the authority to elect the governor to do
so.
The rule of law of the federal government in the United States is composed of many different sources
of law, including constitutional law, statutory law, rules and regulations promulgated by

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administrative agencies, federal common law, and treaties. Additionally, within the United States,
several state and local jurisdictions exist, each having its own rule of law systems. Moreover, the U.S.
system of governance is one of federalism, which allows different rule of law systems to operate side
by side. In the United States, these systems are the federal government and the state governments.
Organizational structures for government—including who has the right to govern—are also set out in
rule of law systems. For instance, the Code of Hammurabi identified a ruler: Hammurabi himself.
The English Bill of Rights of 1689 required representative bodies. The U.S. Constitution organized
the U.S. government by creating the legislative, executive, and judicial branches. These models
minimally provide order and, in some cases, provide opportunities for the governed to participate in
government, both of which create role expectations of the governed.
Notably, even though our Founding Fathers relied on prior rule of law systems when creating our
Constitution, they were unable to resolve all challenges that exist when people live together. Today,
for instance, one unresolved challenge is reflected in the tension between personal liberty and
responsibility to state. We have many individual rights and personal liberties, but as some argue, we
do not have many responsibilities to the state. We could have a system that requires greater duties—
such as the legal duty to vote, to serve in public office or in the military, or to maintain public lands.
Unresolved challenges highlight the fact that rule of law systems are not perfect systems of
governance. Nevertheless, these systems create expectations for conduct, without which governance
of conflict could not reasonably exist and peace could not be attained.
The U.S. Constitution is the foundation on which the U.S. federal rule of law system rests. It asserts
the supremacy of law. “We the people” is a very important part of the preamble, because it confers
power on the people as well as on the states. Notably, unlike the Magna Carta and the English Bill of
Rights of 1689, it does not focus on individual rights. Of course, the Bill of Rights does focus on
individual rights, but those amendments were passed after the Constitution was written. (That is why
they are called amendments to the constitution.) The U.S. Constitution implemented the supremacy
of law using structure and processes. The Founding Fathers were particularly concerned about giving
the government the power to do its job without encouraging tyranny. They built in processes to
ensure the supremacy of law. Indeed, ours is “a government of laws and not of men,” John Adams
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wrote in the Massachusetts Constitution. Thomas Paine noted the same sentiment in Common Sense,
when he wrote, “the law is king.”

KEY TAKEAWAYS
Rule of law is a system of published laws under which the people and the government are bound, which
allows predictability and restraint of government action. A rule of law system allows people to understand
what is expected of them. It provides a system that allows many people with different beliefs and cultures
to live together in peace, by providing methods by which conflicts can be resolved. The U.S. rule of law
system contains many elements of prior rule of law systems.

EXERCISES
1.

View the Code of Hammurabi athttp://avalon.law.yale.edu/ancient/hamframe.asp. Scroll down slightly
until you see the subheading “Code of Laws.” Find three laws that you believe are similar to laws that we
have in the United States.

2.

Given the long history of rule of law systems, why hasn’t any rule of law system been developed that
resolves all problems? Name three social problems that our rule of law system does not address, or does
not address adequately.

3.

Are the Ten Commandments a rule of law system? How many of the Ten Commandments are illegal in
your state today?

4.

What problems would exist without a rule of law?

5.

How does the rule of law affect business?

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1.4 Importance of Rule of Law to Business
LEARNING OBJECTIVES
1.

Determine why the rule of law is important to business.

2.

Identify several areas of law that are especially relevant to business and the importance of the rule of law
to those areas.

3.

Identify how the rule of law limits government.

4.

Identify how the rule of law protects people from harmful business practices.

As you may have guessed by now, the rule of law is important to business. Can you imagine trying to
do business without being able to have any reasonable expectations of other people’s behavior?
Would you be willing to conduct business if you had no legal means by which to protect your
property interests? And in the case of a dispute, without a rule of law system, there would be no
established way of resolving it. Without the rule of law, business would be chaotic. This section
provides some overarching examples of why the rule of law is important to business.
Before getting to those examples, imagine this: What if you did not know how to play chess, but you
tried to play anyhow? You would probably become frustrated very quickly, because you would see no
logic in the movement of your opponent’s pieces, and you would not be permitted to move some
pieces like you might wish to. Sometimes you would see your opponent move his or her knight two
spaces in one direction and then one space in another. Other times, you would see your opponent
move his or her bishop diagonally. Moreover, you would not understand what you were and were not
permitted to do. You would also not know how to penalize an opponent who moved his or her pieces
incorrectly to gain advantage or to take something of yours. This is analogous to what it’s like to do
business without understanding the rules of the game.
The rule of law establishes rules that people—and businesses—must follow to avoid being penalized.
The rule of law not only allows people to understand what is expected of them in their personal
capacities but also sets forth rules for businesses so that they, too, know what is expected of them in
their dealings and transactions. In addition, it restrains government and others from infringing on

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property rights. Should disputes arise, the rule of law provides a peaceful and predictable means by
which those disputes can be resolved.
The rule of law provides guidance and direction in every area of business. For example, it provides a
means to bring a complaint against another party to a neutral decision maker so that a decision can
be made regarding the dispute. Because of our rule of law system, we know that we are permitted to
file a complaint in the proper court to commence litigation. Or we can try an alternative method of
dispute resolution if we do not wish to engage in litigation. We know that we are permitted to do
these things because our rule of law system allows us to do them. Moreover, we can expect some sort
of resolution when we institute such a proceeding. This expectation is reasonable only because we
have a rule of law.
Additionally, in the United States, the rule of law provides a sophisticated system of federalism,
where state and federal laws coexist. This allows people and businesses to determine which system of
government pertains to them and which jurisdiction they belong to. Imagine that you sell firearms in
a retail capacity. You would be subject to both state and federal laws. You would be required to carry
a federal permit from the federal administrative agency known as the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. You would be forbidden from engaging in illegal arms trading. According
to state laws, you would likely have to ensure that each purchaser of a firearm held a valid permit for
a firearm. You would be required to check identification, enforce waiting periods, and refuse to sell
guns to people who were not permitted to carry them according to your state’s laws. If we did not
have a rule of law system, you might be uncertain how to conduct your business, and you would be
subject to arbitrary enforcement of unstated or ex post facto (retroactive) laws that affected your
business.
The rule of law also governs contracts between people and between merchants. Under the common
law system, certain elements of a contract must exist for the contract to be enforceable. Under the
Uniform Commercial Code (UCC), merchants are governed by a separate set of rules that anticipate
and allow for flexibility in contractual terms, to facilitate business needs. In the event that terms
conflict in an offer and acceptance between merchants, the UCC allows “gap fillers” to complete the
terms of the contract without need for the contract to be rewritten or for formal dispute resolution.
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Moreover, businesses rely on the rule of law to help them enforce contracts against contractors who
fail to perform.
Additionally, because we have a rule of law system, employers know the rules of the game regarding
their relationship to employees, and employees know the rules with respect to their obligations to
employers. Likewise, business partners, members of boards of corporations, and members of limited
liability companies all know what is expected of them in their roles vis-à-vis the business and other
people within their organizations. When someone does something that is not permitted, there is legal
recourse.
The rule of law also provides protection for property. Imagine if we did not have protection for
nontangible property, such as intellectual property like trade secrets, trademarks, or copyrights. It
would be very difficult to protect this type of property if we did not know the rules of the game.
People would not have the incentive to create or share new intellectual property if they had no
reasonable expectation of being able to protect it or of being rewarded for their creations. Likewise,
the rule of law allows us to protect tangible property without having to go to extraordinary measures.
For instance, if we had no rule of law system to convey and maintain legal ownership to us for our
real or personal property, we might be forced to hire expensive private security forces to guard our
property when we could not be there to physically protect it ourselves.
Businesses also rely on the rule of law to govern their debtor and creditor relationships. And, if
financial matters do not go as anticipated, our legal system allows businesses to ask the court for
protection from creditors under our bankruptcy law. This allows businesses to protect their property
from creditor repossessions or foreclosures while they get back on track financially.
The rule of law also protects people from businesses. For example, Congress has enacted antitrust
legislation that prevents certain anticompetitive practices, such as colluding and price fixing.
Additionally, businesses are prohibited from using deceptive advertising and are held responsible
when they manufacture or sell defective products that cause injury.
The rule of law also protects businesses from government. Since everyone is subject to the rule of
law, this means that government itself may not overextend its reach when regulating or investigating
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businesses. Government must play by the rules, too. For example, imagine that our government
could do anything, without any limits or jurisdictional restraints. A business operating in such a
climate might find itself subject to government closure on a whim, or excessive taxes, or
requirements to pay bribes to gain permits to do business. Our rule of law system prevents such
abuses.
Without a rule of law system, people would have to exact satisfaction for the wrongs committed
against them on their own. They would have to physically protect their own property. This would
lead to a breakdown in social structure, and it would result in vigilante justice and physical strength
playing primary roles in dispute resolution.

KEY TAKEAWAYS
The rule of law system in the United States sets the rules of the game for doing business. It creates a
stable environment where plans can be made, property can be protected, expectations can exist,
complaints can be made, and rights can be protected. Violation of the law can result in penalties. The rule
of law protects business, protects consumers from harmful business practices, and limits government from
engaging in abusive practices against businesses.

EXERCISES
1.

Have you ever played a game in which you did not know all the rules? Have you ever tried to speak a
language in which you weren’t fluent? What was the outcome?

2.

What incentive or motivation would exist to work for your employer if you were not certain that you
would be paid for your efforts and your time? What incentive would you have to invent something new,
create a work of art, or write a book if you had no legal expectation that you would be able to protect your
creation?

3.

Imagine that you are an entrepreneur. What type of business would you open? Would you know what
types of permits were required to conduct your business and which government entities had jurisdiction
over your business? If not, how could you find out?

4.

What would business be like in a land without any rule of law system? Be specific.

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1.5 How Law Affects Business Disciplines
LEARNING OBJECTIVES
1.

Identify the relevance of law to business disciplines.

2.

Understand the relevance of law to the study of business.

3.

Identify how the rule of law protects people from harmful business practices.

Foundational courses taken by undergraduate business students usually include accounting, finance,
management, and marketing. An understanding of the legal environment of business is relevant—
indeed, essential—to functioning well within each of those disciplines. Additionally, a solid
understanding of the legal environment can help avoid liability or at least minimize risk. In business,
it is not enough to comport yourself and your business ethically. You must also ensure that you
understand the legal environment in which you are working. Therefore, it is important to you, to
your employer, and to all the other people who may be relying on your business expertise—such as
your employees and your family—to understand the legal environment. Such an understanding will
help you avoid or lessen the likelihood of liability exposure, enabling you to manage your business
affairs successfully, unhampered by unmanaged legal liability risks. This section provides some
examples of how law affects specific business disciplines.
During the last several years, accountants have been in the limelight due to culpable behavior of
some members of the profession during well-known business scandals, such as Enron. Largely as a
result of the fallout from the Enron case, Congress passed the Sarbanes-Oxley Act (SOX) of 2002,
which imposed stringent oversight requirements on accounting and auditing firms. The
requirements seek to ensure competence, compliance with security laws, and conduct consistent
with generally accepted accounting principles.
Of course, the Enron scandal and SOX were both fairly dramatic examples of how law can affect
accounting. Other ways in which law affects this discipline are through regulation. For example, the
U.S. Securities and Exchange Commission’s (SEC) mission is to protect investors and to maintain a
fair market, among other things. Accordingly, the SEC enforces accounting and auditing policies to

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allow investors to make decisions based on accurate information. The SEC pursues charges of
accounting fraud and oversees private regulation of the accounting profession.
The law also affects finance. Like accounting professionals, many who work in finance are also
regulated by the SEC. The SEC is concerned that investors receive accurate information to make
investment decisions. Moreover, the SEC enforces prohibitions against insider trading and pursues
claims of other types of securities fraud, such as Ponzi schemes.
Similarly, several statutes protect consumers in financial transactions. For example,
the Truth in Lending Act (TILA) requires lenders to accurately provide information concerning the
costs involved in offers of credit. TILA and its corresponding Regulation Z are administered by
federal banking agencies.
Law also affects those in management. For instance, knowledge of employment law is essential to
those in human resources.Title VII of the Civil Rights Act prohibits discrimination related to protected
characteristics in hiring and employment practices. Those in management also must be aware of the
potential liability that demands on employees might create. For example, in Oregon, McDonald’s was
found to be liable for injuries resulting when an off-duty, off-premises worker fell asleep while
driving. [1] The employee had worked three shifts during a twenty-four-hour period. The court held
that employers have a duty to avoid conduct that creates a foreseeable risk of harm to others.
If your field is marketing, the law also relates to your work. Marketers must be particularly attuned
to tort law, consumer protection law, and intellectual property law. For example, to avoid charges of
libel, those in advertising need to take care not to defame another person, business, or product. It
might be tempting to do so, especially if you were engaged in serious competition with another
company that sold a similar product. Likewise, marketers must take great care not to engage in
deceptive advertising practices, lest their employer run afoul of
the Federal Trade Commission’s (FTC) policies or the FTC Act. Additionally, marketers must be aware
of other people’s intellectual property to avoid copyright or trademark infringement in their own
work product.

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These are a few examples of how the law relates to specific business disciplines. Of course, this is just
an overview. It is incumbent on each business professional to become familiar with the legal
environment in his or her profession. Employers may provide training regarding legal environment
issues, such as anti–sexual harassment training or anti–insider trading training, but ultimately,
becoming familiar with the legal environment is each person’s individual responsibility. Remember
that a defense of “I didn’t know the law!” is no defense at all.

KEY TAKEAWAYS
The law is relevant to every business discipline. Minimizing liability exposure is a primary concern of
business, and an understanding of the legal environment relevant to each disciplinary perspective helps
business practitioners minimize their risk of incurring liability to themselves or to their employers.

EXERCISES
1.

Which business discipline is your favorite? Find a newspaper article that illustrates a legal problem
pertaining to that discipline that could have been avoided with a better understanding of the legal
environment of business.

2.

How can employers use knowledge of the legal environment of business to minimize liability exposure?
Identify three concrete ideas.

3.

How can employers stay current with the legal environment of business? For example, how would other
employers in Oregon find out about the case of the off-duty, off-premises worker mentioned in this
section? If you were an employer in Oregon, how might this case change your business practices?

4.

Do you think that if employers train their employees how to behave on the job, those employers should be
absolved from legal liability resulting from employees’ actions? For example, imagine that an employer
provides training to its employees regarding how to avoid sexual harassment in the workplace, but an
employee ignores the training and sexually harasses a colleague. Should the employer bear liability in that
situation? Why or why not?

[1] Faverty v. McDonald’s, 892 P.2d 703 (Or. Ct. App. 1995).

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1.6 Concluding Thoughts
This chapter provides an introduction to the legal environment of business. Knowledge of the legal
environment of business is essential to successful business practices. This involves understanding
what the law is, where it comes from, and specifically how it relates to business. Moreover, different
philosophies of law exist. Approaching a problem from different perspectives allows for multiple
outcomes to be explored. Additionally, when people approach the same problem from different legal
philosophies, reasonable minds can disagree on the outcome. Familiarity with government structure
and an understanding of rule of law are essential to successful business operations. Ultimately,
businesspeople should be able to recognize legal situations, minimize liability exposure, and know
when to consult an attorney.
As you embark on your study of the legal environment, try to remain oriented. Ask yourself questions
like “Where does this piece of law fit in the business world?” and “Why is it important for me to know
this?” Studying the law can, at times, seem like studying pieces of a very large jigsaw puzzle. You may
not immediately see how individual pieces fit together, but with protracted study of law, it will
become clear. Often, with that understanding, the depth of law becomes apparent.
Additionally, it is very helpful if you try to find contemporary examples of the concepts that are
discussed in this book. When surfing the Internet, watching movies, or reviewing current events, try
to “issue spot.” In other words, try to identify the legal issue raised by the particular problem
presented. Try to figure out which jurisdiction would have authority over the issue. State
government? Federal government? Both? Try to determine which type of law would control or be
determinative of the outcome. Is it a statutory issue? A constitutional issue? A regulatory issue?
Also, try to ask yourself why the dispute was raised. Will the parties involved be able to work it out on
their own? If not, why not? Has the issue entered into litigation? How could the issue have been
avoided with better planning and greater familiarity with the legal environment?
This little game can give you practice in orienting yourself as you gain footing in the study of law and
the legal environment of business. We wish you every success in your course!
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Chapter 2

The Court System
LEARNING OBJECTIVES
After reading this chapter, you should have a thorough understanding of the U.S. court system and how it
affects the conduct of businesses and individuals. Specifically, you should be able to answer the following
questions:
1.

What role does each of the three branches of government play?

2.

How do the other two branches of government balance the judiciary?

3.

How are the state and federal courts structured?

4.

What are the primary differences between trial and appellate courts?

5.

How does the Supreme Court do its work?

As you now know, laws are meaningless if they are not enforced. Companies have to make a barrage
of decisions daily, from product development to marketing to strategies to maintain growth, but
most of these are based on sound business acumen rather than legal requirements. If a company
does violate a law, however, it must be held accountable. Typically, that accountability comes in the
form of a lawsuit heard in court. Whether a suit is brought by a supplier, customer, employee,
shareholder, or other stakeholder, litigation is a fact of life for companies. As future business
professionals, being familiar with our court system will lay the foundation for your understanding of
the litigation process.

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2.1 The Third Branch
LEARNING OBJECTIVES
1.

Understand the constitutional basis for the judicial branch.

2.

Explore the differences among the three branches of government.

3.

Learn about the chief justice’s role in judicial administration.

4.

Explore the concept of judicial review.

5.

Become familiar with how the other two branches check and control the judiciary.

Under the federal Constitution, power is separated among three branches of government. Article I of
the Constitution allocates the legislative power to Congress, which is composed of the House of
Representatives and the Senate. Congress makes laws and represents the will of the people in doing
so. Article II of the Constitution creates the executive power in the president and makes the president
responsible for enforcing the laws passed by Congress. Article III of the Constitution establishes a
separate and independent judiciary, which is in charge of applying and interpreting the meaning of
the law. The U.S. Supreme Court sits at the top of the federal judiciary as the supreme court of the
land. There are nine judges on the Supreme Court. (See Figure 2.1 "The U.S. Supreme Court in
2009".)
Figure 2.1 The U.S. Supreme Court in 2009

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Justice Stevens has since retired and was replaced by Justice Kagan in 2010.
Source: Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United
States,http://en.wikipedia.org/wiki/File:Supreme_Court_US_2009.jpg.
The Constitution is remarkably short in describing the judicial branch. The president, under Article
II, has the power to nominate judges with the advice and consent of the Senate. Article III also
provides the following: “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, a compensation, which shall not be diminished
during their continuance in office.” Under the Constitution, therefore, there are only two
requirements to becoming a federal judge: nomination by the president and confirmation by the
Senate. There are no age, citizenship, or qualification requirements. If the president wanted to, he
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could nominate any reader of this book as a federal judge. Additionally, the Constitution guarantees
that judges are relatively free from political interference by providing them with lifetime tenure and a
salary that cannot be reduced.
It is commonly accepted that the three branches of government are coequal, but in reality they are
very different. The judiciary is the only unelected branch of government and is therefore the most
mysterious. Although many Americans know who the president is, and many are familiar with their
representatives in Congress, very few know the names of the judges who sit on the Supreme Court or
any lower court. When politicians run for Congress or president, they spend months campaigning,
begging voters to look into their eyes and trust them enough to cast their votes. Since judges are not
elected, the vast majority of Americans cannot associate them with a face. Indeed, many visitors to
the Supreme Court building in Washington, DC, routinely come face-to-face with a justice and don’t
realize it.
The three branches also consume vastly different resources in serving the public, with the entire
federal court system consuming less than two-tenths of 1 percent of the federal budget. The political
branches capture the public imagination with monuments and landmarks (Air Force One, the White
House, the Capitol), while the federal judiciary works in relative anonymity. (All federal judges, for
example, travel commercially and do not have access to government-owned planes.) Finally, the
judiciary is designed to be the most remote branch from the people. In addition to being unelected,
federal judges have life tenure and can be removed from office only through impeachment. They also
tend to be in public office far longer than politicians. While the United States has had forty-four
presidents and more than two thousand members of Congress, Chief Justice John Roberts is only the
seventeenth chief justice. Roberts was only fifty years old when he became chief justice and will likely
be chief justice for many decades to come, certainly long after his nominating president, George W.
Bush, has faded from public life.
When we speak of the “federal judiciary,” we are referring to a very small entity compared to other
federal bureaucracies. The Supreme Court (the building, justices, and staff) is one part of the federal
judiciary. The district and appellate courts (described later in this chapter) are another part, and they
also comprise judges and staff (although these courts do not own their own buildings; rather, all
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courts other than the Supreme Court are rented from other branches of the government).
The Administrative Office of the United States Courts runs the day-to-day issues for all the courts,
such as payroll and rent. A second component of the judiciary is the Federal Judicial Center, an
agency dedicated to conducting research on judicial administration and providing judicial education.
A third component is the United States Sentencing Commission (USSC), established by Congress to
make recommendations on how to establish uniformity in federal criminal sentencing. In addition to
his responsibilities in hearing cases and writing opinions, the chief justice oversees the overall
operation of the federal courts and represents the courts to the other branches of government. When
it comes to hearing and deciding cases, however, the chief justice is “first among equals”: he has no
more power than any of the other justices, known as associate justices.
In that capacity, the chief justice traditionally releases an annual report on the judiciary. Since
becoming chief justice in 2005, Chief Justice Roberts (Figure 2.2 "Chief Justice John G. Roberts")
has focused his annual reports on judicial pay. Although judicial salaries cannot be reduced, years
have passed since Congress approved a cost-of-living increase for judges. District court judges are
currently paid $169,300 (the same salary as members of Congress), while circuit court judges are
paid $179,500. Supreme Court justices earn $208,100, and the chief justice earns $217,400. While
this may seem like a lot of money, it’s important to keep in mind that the integrity of the judicial
system depends on attracting the very best lawyers to join the bench. Lawyers of that caliber are also
in high demand in private law firms, where they can earn many times more than what judges earn.
As a result, high-quality lawyers who otherwise may serve the country by becoming judges never
even consider joining the bench. As you can see from Note 2.11 "Hyperlink: Excerpt from 2008 YearEnd Report to Congress", there is a risk, the chief justice believes, that the pool of judicial talent may
be limited to less-than-the-best lawyers or those who are independently wealthy.
Figure 2.2 Chief Justice John G. Roberts

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Source: Photo courtesy of the Supreme Court of the United
States,http://en.wikipedia.org/wiki/File:File-Official_roberts_CJ_cropped.jpg.

Hyperlink: Excerpt from 2008 Year-End Report to Congress
http://www.supremecourt.gov/publicinfo/year-end/2008year-endreport.pdf
I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—
Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay
was when they answered the call of public service. But they did not know that Congress would steadily
erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases.
Last year, Congress fell just short of enacting legislation, reported out of both House and Senate
Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have
been denied in past years. One year later, Congress has still failed to complete action on that crucial
remedial legislation, despite strong bipartisan support and an aggregate cost that is miniscule in relation
to the national budget and the importance of the Judiciary’s role. To make a bad situation worse,
Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even
though it provided one to every other federal employee, including every Member of Congress. Congress’s
inaction this year vividly illustrates why judges’ salaries have declined in real terms over the past twenty
years.

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Our Judiciary remains strong, even in the face of Congress’s inaction, because of the willingness of those
in public service to make sacrifices for the greater good. The Judiciary is resilient and can weather the
occasional neglect that is often the fate of those who quietly do their work. But the Judiciary’s needs
cannot be postponed indefinitely without damaging its fabric. Given the Judiciary’s small cost, and its
absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the Judiciary’s
modest petition: Simply provide cost-of-living increases that have been unfairly denied! We have done our
part—it is long past time for Congress to do its.

The Supreme Court is a well-known institution today, but it wasn’t always that way. When the Court
first met, many of the justices (then appointed by George Washington) couldn’t travel in time for the
Court’s opening day, so the session was dismissed. For the first three years of its existence, the Court
heard no cases of any importance. John Jay, the first chief justice, traveled to Europe while he was
chief justice to negotiate the Jay Treaty with Great Britain. While there, he won election as governor
of New York. He was reappointed as chief justice by President Washington and confirmed by the
Senate but declined to return to the Court, citing the Court’s lack of energy, weight, and dignity as
part of his reasoning. It wasn’t until John Marshall became the fourth chief justice (a position he
held for a record thirty-four years) that the Supreme Court firmly established itself as a separate and
coequal branch of government. The Supreme Court did not even get its own building until 1932,
years after the nation’s capital was established in Washington, DC. Before then, it met in the
basement of the old Senate building to hear cases. When William Taft (the only president who also
served as a Supreme Court justice) became chief justice, he persuaded Congress to appropriate
funds, and the Court finally got its own building in Washington, DC (see Figure 2.3 "U.S. Supreme
Court").

Hyperlink: Supreme Court Virtual Tour
http://supremecourt.c-span.org/VirtualTour.aspx
The Supreme Court building, located at 1 First Street, is an impressive marble building that sits at the
northern border of Washington, DC’s, famous plaza. It is open year-round and is free to visit. If you have

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not been there, you can use the link to take a virtual tour of the entire building, inside and out, courtesy of
C-Span.

The Supreme Court’s early malaise can partially be attributed to the problem that no one really had a
good idea of what the Supreme Court was supposed to do. There were few cases of tremendous
national importance in the new republic, and a quirky tradition known as “riding circuit” meant that
the Supreme Court justices also acted as lower appellate court judges, thus making their work at the
Supreme Court somewhat duplicitous. The Constitution simply states that the judicial power of the
United States is vested in the Supreme Court, without expounding what that means. It wasn’t until
1803 that the modern role of the Supreme Court began to emerge.
In 1800, the presidential election between John Adams and Thomas Jefferson nearly tore the
country apart. The election was bitter, partisan, and divisive. Jefferson won but wasn’t declared the
winner until early in 1801. In the meantime, Adams and other Federalists in Congress attempted to
leave their mark on government by creating a slate of new life-tenured judgeships and appointing
Federalists to those positions. For the judgeships to become effective, certain paperwork (known as
commissions) had to be delivered in person to the new judges. At the time power transitioned from
Adams to Jefferson, several commissions had not been delivered, and Jefferson ordered his acting
secretary of state to stop delivering them. When Jefferson came to power, there was not a single
judge from his Democratic-Republican Party sitting on the bench, and he wasn’t keen on expanding
the Federalist influence on the bench any further. One Federalist judge, William Marbury, sued the
secretary of state, James Madison, to deliver his commission. The case was filed in the Supreme
Court, led by Chief Justice John Marshall (Figure 2.4 "Chief Justice John Marshall"). Marshall
himself was a Federalist and had served as Adams’s secretary of state, so he understood how political
the case was and how he stood to be accused of bias if he ruled the wrong way. In a shrewd and
calculated move, he ultimately ruled against Marbury but at the same time declared that it was the
Supreme Court’s role to decide the meaning of the Constitution. This is called judicial review, and it
makes the U.S. Supreme Court the most powerful judicial body in the world. The following is from
Marbury v. Madison: “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

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interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of
each.” [1]
Figure 2.4 Chief Justice John Marshall

Source: Photo courtesy of the U.S. Department of State, http://www.flickr.com/photos/statephotos/2267272626.

Chief Justice Marshall did not invent judicial review; it is a feature of most common-law countries
and as a concept goes back centuries. He did, however, institutionalize judicial review at the U.S.
Supreme Court at a time when there was great uncertainty about the Court’s future role in
government. While all three branches are bound to uphold the Constitution, on all matters relating
to the meaning of the Constitution, the Supreme Court has the final say.
After Marbury v. Madison, it took the Supreme Court nearly sixty years to again use the power of
judicial review to strike down legislation. The case was Dred Scott v. Sanford, [2] and it involved a
slave who traveled with his owner, a doctor in the army, to many states including free states (Figure
2.5 "Dred Scott"). Dred Scott filed suit for his freedom, and the case ended up before the Supreme
Court. In what many commentators call the Supreme Court’s “self-inflicted injury,” the Court, in an

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opinion written by Chief Justice Roger Taney, used judicial review to overturn the Missouri
Compromise and held that Dred Scott was not a person under the Constitution and therefore could
not file suit. The decision hastened the country into Civil War, and it took years for the Supreme
Court to recover its standing with the public.
Figure 2.5 Dred Scott

Source: Photo courtesy of the Missouri Historical Society, http://en.wikipedia.org/wiki/File:DredScott.jpg.

Judicial review means that any federal court can hold any act of the president or the Congress to be
unconstitutional. It is a power that rests with each of the more than eight hundred federal judges,
from the trial courts through the appellate courts. It is an extraordinary power in a democracy, as an
unelected life-tenured person or group of persons overturns the acts of a popularly elected branch of
government. Rather than give rise to judicial tyranny, however, our system of checks and balances
ensures that the other two branches also play a critical role in “checking” the judiciary.
Take, for example, the executive branch. The president can control the judiciary by making careful
judicial selections. The power of the president to name federal judges is absolute—he is not required
to consult with any other individual in making his choice. As a matter of custom, presidents have
traditionally looked to senators to provide names of judicial candidates for consideration, and some
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presidents are more willing than others to defer to the advice of aides and advisors. For much of the
nation’s history, the Senate routinely confirmed the president’s choices. President Reagan’s
nomination of Robert Bork in 1987 changed that tradition forever. Alarmed Democrats grilled Bork
in confirmation hearings and ultimately declined to confirm him, setting the stage for a new breed of
confirmation hearings where senators try to ascertain not just the nominee’s character but also how
he or she will judge certain issues. Judicial nominees, especially to the Supreme Court, are under so
much scrutiny now that sometimes even the president’s own party will turn against a nominee. This
happened to President George W. Bush when he named his close friend Harriet Miers to fill a
vacancy left by Justice Sandra Day O’Connor’s retirement. Alarmed at her lack of judicial experience
and record on conservative judicial issues, Republicans urged the president to reconsider his choice,
and Ms. Miers eventually withdrew as a nominee.
Presidents hope, and believe, that their selections reflect their own ideologies and beliefs. Federal
judges are notoriously independent, however, and many demonstrate little hesitance to overrule
their nominating president if they believe it necessary to do so. Several presidents have been
disappointed in their nominee as they watched the judge move away from his or her earlier political
roots. For example, President Eisenhower, a Republican, nominated Earl Warren as chief justice.
Warren would later transform the civil rights landscape with a series of decisions, leading
Eisenhower to describe nominating Warren as “the biggest damned fool mistake I ever
made.” [3] President Nixon, a Republican, placed Harry Blackmun on the Supreme Court, only to see
Blackmun later move to the left and author Roe v. Wade, [4] the principal decision legalizing access to
abortion services. More recently, President George H. W. Bush nominated David Souter to the Court
on the belief that Souter would be a reliable conservative. Souter quickly aligned himself with the
liberal wing of the Court.
In addition to nominating judges, the president serves as a check on the judiciary by being the
primary means of enforcing judicial decisions. Federal judges do not control any police force and as
such are unable to ensure their decisions are carried out. That responsibility falls on the executive
branch. No matter how much a president may disagree with a judicial decision, it is a testament to

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our republican form of government, and the rule of law, that the president nonetheless faithfully
executes a federal court’s decision.

Hyperlink: The Little Rock Nine
http://www.npr.org/templates/story/story.php?storyId=14091050
Figure 2.6Elizabeth Eckford

Source: Photo courtesy of Will Counts,http://en.wikipedia.org/wiki/File:Little_Rock_Desegregation_1957.jpg.

After the Supreme Court handed down its seminal decision in Brown v. Board of Education,

[5]

many

Southern states continued to resist desegregation. In Little Rock, Arkansas, the local NAACP chapter
enrolled nine students in Little Rock High School to begin with the fall term in September 1957. Several
segregationist groups protested, and Arkansas governor Orval Faubus deployed Arkansas National Guard
troops to stop the students from entering the school. President Eisenhower reluctantly ordered the 101st
Airborne Division of the U.S. Army to Little Rock to ensure the students could enroll and attend class.
Click the link to listen to a story about one of the students, Elizabeth Eckford (Figure 2.6 "Elizabeth
Eckford"), who tried to enroll in Little Rock High School that day.

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The Congress can also play an important role in “checking” the judiciary. The most obvious role is in
confirming judicial selections. In the last few years, judicial confirmations have become a political
battlefield, as activists on both the left and right seek to block judicial nominees they view as being
too radical. It’s not unusual for some judicial candidates to wait years for their confirmation
hearings. President George W. Bush, for example, initially appointed Chief Justice Roberts to a court
of appeals judgeship in 2001, but he wasn’t confirmed until 2003, after Republicans regained control
of Congress in midterm elections. Similarly, the newest member of the Supreme Court, Elena Kagan,
was nominated for a federal appellate judgeship in 1999 by President Bill Clinton but was never
confirmed due to Republican objections to her nomination.
In addition to confirmation, Congress also controls the judiciary through its annual budgetary
process. Although the Constitution protects judicial salaries from any reductions, Congress is not
obligated to grant any raises. For several years, judges have worked without cost-of-living raises.
Although no one has seriously suggested that Congress is withholding money from the courts in
retaliation for judicial decisions, some have observed that Congress would like to see the judicial
branch yield on some high-profile issues such as televising Supreme Court proceedings in turn for
pay raise consideration.
Finally, Congress can control the judiciary by determining how the courts are organized and what
kind of cases the courts can hear. After the 1800 presidential election, for example, the newly elected
Congress canceled the Supreme Court’s term for the entire year while they reorganized the judiciary.
More recently, several conservative members of Congress have suggested splitting up the liberalleaning Ninth Circuit Court of Appeals on the West Coast, to reduce its influence. The Constitution
also gives Congress the authority to determine the courts’ jurisdiction. Congress has used this
authority in the past to take away controversial cases from judicial consideration. During Civil War
Reconstruction, for example, Congress passed a law taking away the Supreme Court’s jurisdiction to
hear an appeal from a newspaper publisher jailed for publishing articles opposing
Reconstruction. [6] Recently, Congress did the same thing, removing federal court jurisdiction from
hearing appeals involving detainees held at the military prison in Guantanamo Bay. In the recent
past, members of Congress have also introduced legislation prohibiting federal courts from hearing

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cases about the public display of religion and flag burning or from using any foreign law as support
for their decisions.

KEY TAKEAWAYS
The third branch (judicial branch) is the only unelected branch of government. As such, it can sometimes
appear remote or detached from the American public. The judiciary is composed of federal courts, the
Administrative Office, the Federal Judicial Center, and the U.S. Sentencing Commission. The chief justice
has administrative responsibilities over these agencies in addition to his adjudicatory duties. The judiciary
comprises less than two-tenths of 1 percent of the federal budget. In spite of this, judicial pay is very low
compared to pay in the private sector and is a source of tension between the judiciary and the other
branches of government. Marbury v. Madison established the doctrine of judicial review, which allows
courts to determine the final validity of laws as well as the meaning of the Constitution. Judicial review is
an awesome power, and it is used sparingly. The president can check the judiciary through appointments
and the enforcement of judicial decisions. The Congress can check the judiciary through funding,
administrative control of court calendars and funds, and jurisdiction-stripping legislation.

EXERCISES
1.

Do you believe that judicial review is a good thing for American democracy? Why or why not?

2.

How does the Constitution guarantee judicial independence? Do you think judges have enough
independence? Too much?

3.

How much money do you think federal judges should be paid?

4.

Do you believe that Congress should have the ability to remove cases from federal courts? If so, what
types of cases are appropriate for removal?

5.

What options does a president have if he disagrees with a federal court’s opinion?

6.

Should a federal court force desegregation on a community that is overwhelmingly against it?

[1] Marbury v. Madison, 5 U.S. 137 (1803).
[2] Dred Scott v. Sanford, 60 U.S. 393 (1857).
[3] John Fox, “Biographies of the Robes: Earl Warren,” PBS, December
2006,http://www.pbs.org/wnet/supremecourt/democracy/robes_warren.html (accessed August 22, 2010).
[4] Roe v. Wade, 410 U.S. 113 (1973).
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[5] Brown v. Board of Education, 347 U.S. 483 (1954).
[6] Ex parte McCardle, 74 U.S. 506 (1869).

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2.2 Activists and Strict Constructionists
LEARNING OBJECTIVES
1.

Explore the strict constructionist, or originalist, judicial philosophy.

2.

Explore the judicial activist philosophy.

3.

Learn about the modern origin of the divide between these two philosophies.

4.

Examine the evolution of the right to privacy and how it affects judicial philosophy.

5.

Explore the biographies of the current Supreme Court justices.

In the early years of the republic, judges tended to be much more political than they are today. Many
were former statesmen or diplomats and considered being a judge to be a mere extension of their
political activities. Consider, for example, the presidential election of 1800 between John Adams and
Thomas Jefferson. Even by today’s heated standards of presidential politics, the 1800 election was
bitter and partisan. When Jefferson won, he was in a position of being president at a time when not a
single federal judge in the country came from his political party. Jefferson was extremely wary of
judges, and when the Supreme Court handed down the Marbury v. Madison decision in 1803
declaring the Supreme Court the ultimate interpreter of the Constitution’s meaning, Jefferson wrote
that “to consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous
doctrine indeed, and one which would place us under the despotism of an oligarchy.” [1] A few years
later, the first justice to be impeached, Samuel Chase, was accused of being overly political. His
impeachment (and subsequent acquittal) started a trend toward nonpartisanship and political
impartiality among judges. Today, judges continue this tradition by exercising impartiality in cases
before them. Nonetheless, charges of political bias continue to be levied against judges at all levels.
In truth, the majority of a judge’s work has nothing to do with politics. Even at the Supreme Court
level, most of the cases heard involve conflicts among circuit courts of appeals or statutory
interpretation. In a small minority of cases, however, federal judges are called on to interpret a case
involving religion, race, or civil rights. In these cases, judges are guided sometimes by nothing more
than their own interpretation of case law and their own conscience. This has led some activists to
claim that judges are using their positions to advance their own political agendas.

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In general terms, judges are thought to fall into one of two ideological camps. On the politically
conservative right, judges are described as either strict constructionists or originalists. Judges who
adhere to this philosophy believe that social change is best left to the politically elected branches of
government. The role of judges is therefore to strictly interpret the Constitution, and nothing more.
Strict constructionists also believe that the Constitution contains the complete list of rights that
Americans enjoy and that any right not listed in the Constitution does not exist and must be earned
legislatively or through constitutional amendment. Judges do not have the power to “invent” a new
right that does not exist in the Constitution. These judges believe in original meaning, which means
interpreting the Constitution as it was meant when it was written, as opposed to how society would
interpret the Constitution today. Strict constructionists believe that interpreting new rights into the
Constitution is a dangerous exercise because there is nothing to guide the development of new rights
other than a judge’s individual conscience. Justice Antonin Scalia, appointed by Ronald Reagan to
the Supreme Court in 1984, embodies the modern strict constructionist.

Hyperlink: Justice Antonin Scalia
Figure 2.7Justice Antonin Scalia

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Source: Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United
States,http://en.wikipedia.org/wiki/File:Antonin_Scalia,_SCOTUS_photo_portrait.jpg.

http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml
In 2008, Justice Antonin Scalia (Figure 2.7 "Justice Antonin Scalia") sat down with 60 Minutes to discuss
a new book he wrote and his originalist judicial philosophy. Click the link to watch a portion of this
fascinating interview with one of the most powerful judges in the country.

On the politically liberal left are judges who are described as activist. Judicial activists believe that
judges have a role in shaping a “more perfect union” as described in the Constitution and that
therefore judges have the obligation to seek justice whenever possible. They believe that the
Constitution is a “living document” and should be interpreted in light of society’s needs, rather than
its historical meaning. Judicial activists believe that sometimes the political process is flawed and
that majority rule can lead to the baser instincts of humanity becoming the rule of law. They believe
their role is to safeguard the voice of the minority and the oppressed and to deliver the promise of
liberty in the Constitution to all Americans. Judicial activists believe in a broad reading of the
Constitution, preferring to look at the motivation, intent, and implications of the Constitution’s
safeguards rather than merely its words. Judicial activism at the Supreme Court was at its peak in
the 1960s, when Chief Justice Earl Warren led the Court in breaking new ground on civil rights
protections. Although a Republican, and nominated by Republican President Eisenhower, Earl
Warren became a far more activist judge than anyone anticipated once on the Supreme Court. Chief
Justice Warren led the Court in the desegregation cases in the 1950s, including the one affecting the
Little Rock Nine. The “Miranda” [2] warnings—familiar to nearly every American who has ever seen a
police show or movie—come from Chief Justice Warren, as does the fact that anyone who cannot
afford an attorney has the right to publicly funded counsel in most criminal cases.
Figure 2.8 President Franklin Roosevelt

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Source: Photo courtesy of the U.S. Library of Congress,http://loc.gov/pictures/resource/cph.3c17121.

The modern characterization of judges as politically motivated can be traced to the Great Depression.
Against cataclysmic economic upheaval, Americans voted for Franklin D. Roosevelt (Figure 2.8
"President Franklin Roosevelt") in record numbers, and they delivered commanding majorities in
both the Senate and House of Representatives to his Democratic Party. President Roosevelt vowed to
alter the relationship between the people and their government to prevent the sort of destruction and
despair wreaked by the Depression. The centerpiece of his action plan was the New Deal, a legislative
package that rewrote the role of government, vastly increasing its size and its role in private
commercial activity. The New Deal brought maximum working hours, the minimum wage, mortgage
assistance, economic stimulus, and social safety nets such as Social Security and insured bank
deposits. Although the White House and the Congress were in near-complete agreement on the New
Deal, the Supreme Court was controlled by a slim majority known as the “Four Horsemen of the
Apocalypse” because of their dire warnings of the consequences of economic regulation. Three
justices known as the “Three Musketeers”—Justice Brandeis, Justice Cardozo, and Justice Stone—
opposed the Four Horsemen. In the middle sat two swing votes. The Four Horsemen initially
prevailed, and one by one, pieces of President Roosevelt’s New Deal were struck down as
unconstitutional reaches of power by the federal government. Frustrated, President Roosevelt
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devised a plan to alter the makeup of the Supreme Court by increasing the number of judges and
appointing new justices. The “court-packing plan” was never implemented due to the public’s
reaction, but nonetheless, the swing votes on the Supreme Court switched their votes and began
upholding New Deal legislation, leading some historians to label their move the “switch in time that
saved Nine.” During the public debate over the Supreme Court’s decisions on the New Deal, the
justices came under constant attack for being politically motivated. The loudest criticism came from
the White House.

Hyperlink: Fireside Chats
http://millercenter.org/scripps/archive/speeches/detail/3309
One of the hallmarks of FDR’s presidency was his use of the radio to reach millions of Americans across
the country. He regularly broadcast his “fireside chats” to inform and lobby the public. In this link,
President Roosevelt complains bitterly about the Supreme Court, claiming that “the Court has been acting
not as a judicial body, but as a policy-making body.” Do modern politicians make the same accusation?

The abortion debate is a good example of the politically charged atmosphere surrounding modern
judicial politics. Strict constructionists decry Roe v. Wadeas an extremely activist decision and
bemoan the fact that in a democracy, no one has ever had the chance to vote on one of the most
socially controversial and divisive issues of our time. Roe held that a woman has a right to privacy
and that her right to privacy must be balanced against the government’s interest in preserving
human life. Within the first trimester of her pregnancy, her right to privacy outweighs governmental
intrusion. Since there is no right to privacy mentioned in the Constitution, strict constructionists
believe that Roe has no constitutional foundations to stand on.
Roe did not, however, declare that a right to privacy exists in the Constitution. A string of cases

before Roe established that right. In 1965 the Supreme Court overturned a Connecticut law
prohibiting unmarried couples from purchasing any form of birth control or contraceptive. [3] The
Court reasoned that the First Amendment has a “penumbra of privacy” that must include the right
for couples to choose if and when they want to have children. Two years later, the Supreme Court
found a right to privacy in the due process clause when it declared laws prohibiting mixed-race
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marriages to be unconstitutional. [4] As a result of these decisions and others like them, the phrase
“right to privacy” today is widely accepted as a form of litmus test for whether a judge (or judicial
candidate) is a strict constructionist or activist.

Video Clip: A Question of Ethics: The Right to Privacy and Confirmation
Hearings
Since federal judges are appointed for lifetime, the turnover rate for federal judgeships is low.
Recently, the Supreme Court went through an eleven-year period without any changes in
membership. In the last five years, however, four new justices have joined the Court. First, John
Roberts was nominated by George W. Bush in 2005 to replace retiring Justice Sandra Day O’Connor.
President Bush did not have the opportunity to nominate anyone to the Supreme Court during his
first term as president, and John Roberts’s nomination was viewed widely as a smart move to place
on the Court a young, smart, and popular judge with solid Republican credentials. (Roberts began
his legal career as an attorney with the Reagan administration.) Before the Senate could confirm
Roberts, however, Chief Justice Rehnquist died of thyroid cancer while still in office. President Bush
withdrew his nomination and renominated John Roberts as chief justice, which the Senate
confirmed. President Bush then began looking for a nominee to replace Justice O’Connor. His first
nominee was a close personal friend, Harriet Miers. Selecting Miers allowed him to replace a woman
with a woman, something important to First Lady Laura Bush. More importantly, the president felt
that Miers, a born-again Christian, would comfortably establish herself as a solid judicial
conservative. Others in the Republican Party, however, were nervous about her nomination given her
lack of judicial experience. (Miers had never been a judge.) Keen to avoid another situation in which
a conservative president nominated a judge who turned out liberal, as was the case with President
George H. W. Bush’s nomination of David Souter, key lawmakers put enough pressure on Miers that
she withdrew her nomination. For his second nominee, President George W. Bush selected Samuel
Alito, a safe decision given Alito’s prior judicial record. Although he has been on the Court for only a
few years, most legal observers believe Alito’s nomination is critical in moving the Court to the
political right, as Alito has demonstrated himself to be more ideological in his opinions than the
pragmatic O’Connor. In his first term as president, President Barack Obama has had the opportunity

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to name two justices to the Supreme Court: Sonia Sotomayor in 2009 to replace David Souter and
Elena Kagan in 2010 to replace John Stevens. Both nominations are widely regarded as not moving
the Court too much in either direction in terms of activism or originalism. There are now three
women on the Supreme Court, a historical record.

Hyperlink: Biographies of the Current Supreme Court Justices
http://www.supremecourt.gov/about/biographiescurrent.pdf
The Supreme Court today is more diverse than it ever has been throughout its history. The hardworking
men and women of the Court command respect from the legal community both in the United States and
abroad. Click the link to explore their biographies.

KEY TAKEAWAYS
Judicial conservatives, also known as originalists or strict constructionists, believe that the Constitution
should be interpreted strictly, in light of its original meaning when it was written. They believe that
societal change, especially the creation of new civil rights, should come from the political process rather
than the judicial process. Judicial liberals, also known as judicial activists, believe that judges have a role to
play in shaping a more perfect union. They believe that the outcome of a case is paramount over other
considerations, including past precedent. Judicial activists are more likely to find new civil rights in the
Constitution, which they believe should be broadly interpreted in light of modern society’s needs. The
modern fight over judicial conservatives and judicial liberals began with FDR’s New Deal and his courtpacking plan and continues to this day. The right to privacy is a good example of the difference between
judicial conservatives and judicial liberals, and it is seen as a test to determine what philosophy a judge
subscribes to. After a long period of stability, membership in the Supreme Court has changed substantially
in the last three years with three new members. The Court remains closely divided between judicial
conservatives and judicial liberals, with conservatives poised to control the Court’s direction. Justice
Anthony Kennedy, a moderate conservative, remains the key swing vote on the Supreme Court.

EXERCISES
1.

Read Justice Stewart’s dissent in the Griswold case
here:http://www4.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZD1.html. Although he

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believes Connecticut’s law is “uncommonly silly,” he nonetheless believes that it’s not unconstitutional. Do
you think that judges have an obligation to overturn “uncommonly silly” laws?
2.

Modern judicial confirmation hearings have been described as an intricate dance between nominees and
Senators, with the nominees giving broad scripted answers that reveal little about their actual judicial
philosophy. Do you agree with this characterization? Do you think any changes should be made to the
confirmation process?

3.

If you were president, what characteristics would you look for in nominating federal judges?

4.

If an elected legislature refuses to grant citizens a right to privacy, do you believe it is appropriate for the
courts to do so? Why or why not?

5.

If a president believes that the Court has reached the wrong result, should the president be able to change
the Court by increasing its numbers or forcing early retirement?

[1] Thomas Jefferson to William C. Jarvis, 1820, in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb and
Albert Ellery Bergh, Memorial Edition (Washington, DC: Thomas Jefferson Memorial Association of the United
States, 1903–4), 15:277, quoted in Eyler Robert Coates Sr., “18. Judicial Review,” Thomas Jefferson on Politics &
Government: Quotations from the Writings of Thomas Jefferson,
1999,http://etext.virginia.edu/jefferson/quotations/jeff1030.htm (accessed September 24, 2010).
[2] Miranda v. Arizona, 384 U.S. 436 (1969).
[3] Griswold v. Connecticut, 381 U.S. 479 (1965).
[4] Loving v. Virginia, 388 U.S. 1 (1967).

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2.3 Trial and Appellate Courts
LEARNING OBJECTIVES
1.

Learn the differences between the state and federal constitutions.

2.

Understand subject matter jurisdiction.

3.

Explore the state and federal court systems.

4.

Distinguish the work of trial and appellate courts.

In many American cities, you can find both a state and a federal courthouse. These courts hear
different types of cases, involving different laws, different law enforcement agencies, and different
judicial systems. The rules governing the procedures used in these courts are known
as civil procedure or criminal procedure and are sometimes so hard to understand they confound
experienced attorneys and judges. Nonetheless, as future business professionals, it’s important for
you to understand the general boundaries between state and federal courts.
Most people forget that there are actually fifty-one separate legal systems in the United States: one
federal and fifty in the states. Within each legal system is a complex interplay among executive,
legislative, and judicial branches of government. The foundation of each of these systems of
government is a constitution. Some state constitutions are actually older than the federal
Constitution, while others are relatively new. The Massachusetts Constitution, for example, was
ratified in 1780, seven years before the federal Constitution. The Montana Constitution, on the other
hand, was adopted in 1972. In some states, state constitutions remain vibrant and provide civil
protections beyond the federal Constitution. Several state Supreme Courts, for example, have
interpreted their various state constitutions as prohibiting treating gays and lesbians differently
when it comes to marriage under their “equal protection” provisions. Other state supreme courts
have interpreted their state constitutions to grant citizens the right to choose the time and manner of
their own death. Since these decisions are by state supreme courts interpreting their own state
constitutions, they are beyond the reach or review of the federal Congress or federal courts. This
dynamic power sharing between state and federal governments is known as federalism and is a key
feature of our republican form of government.

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To determine which court a case belongs in, lawyers look first to what the case is about. The rules
of subject matter jurisdiction dictate whether a case is heard in federal or state court. Lawsuits
involving state laws are generally heard in state courts. Most criminal laws, for example, are state
laws. There may be wide differences among the states about what behavior constitutes criminal
behavior. Speed limits, for example, are different from state to state. Even serious crimes such as
murder or manslaughter, and possible defenses to those crimes, are defined differently by the states.
Domestic issues such as divorce and family law are also handled at the state level. Some states make
it very easy to marry (Nevada provides an obvious example), while others define marriage
differently. Some states permit same-sex marriage, but most do not. Child custody and adoption laws
are state based. Property and probate laws are also based on state law. Laws related to the transfer of
property (including real estate), vehicle or watercraft ownership registration, and the disposition of
property after death are different depending on what state you live in. The laws surrounding
contracts are also passed at the state level (although most are based on a common law called
the Uniform Commercial Code [UCC]). Finally, the law of torts is state based. Torts are any civil wrong
other than a breach of contract and can cover a vast array of situations in which people and
businesses suffer legal injury. Some states are far friendlier toward torts than others, and the
resulting patchwork of tort laws means that companies that do business across the country need to
bear in mind the different standards they are held to, based on what state their customers live in.
Given the wide array of subject areas regulated by state law, it’s not surprising that for most
individuals and businesses, their experience with courts is with state courts. Nonetheless, cases do
sometimes end up in federal court as well. Federal court subject matter jurisdiction is generally
limited to cases involving a federal question—either the federal Constitution or a federal law. Cases
involving the interpretation of treaties to which the United States is a party are also subject to federal
court jurisdiction. In fact, any case involving the United States as a party is properly litigated in
federal court. Finally, inoriginal jurisdiction cases (so called because the Constitution specifically
grants this jurisdiction), lawsuits between states can be filed directly with the U.S. Supreme Court.
Ongoing disputes between Wyoming and Montana over the use of the Tongue and Powder rivers, for
example, were litigated in the Supreme Court in 2005.

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Sometimes it’s possible for a federal court to hear a case involving a state law. These cases are
called diversity jurisdiction cases, and they arise when all plaintiffs in a civil case are from different
states than all defendants and the amount claimed by the plaintiffs exceeds seventy-five thousand
dollars. Diversity jurisdiction cases allow one party who feels it may not receive a fair trial where its
opponent has a “home court” advantage to seek a more neutral forum to hear its case, a process
called removal.
Within both the federal court and the state court system, there is a hierarchy of higher and lower
courts. The diagram in Figure 2.9 "State and Federal Court Systems" demonstrates this hierarchy.
The U.S. Supreme Court is the highest court in the country, and all courts are bound to follow
precedent established by the U.S. Supreme Court through the doctrine of stare decisis. Keep in mind,
though, that if an issue is exclusively a state matter (such as a state court interpreting its own state’s
Constitution), then the U.S. Supreme Court has no jurisdiction on that matter, leaving the state
supreme court as the highest court on that particular issue.
Figure 2.9 State and Federal Court Systems

On the left-hand side of the diagram is the federal court system. Cases are filed in a U.S. District
Court, the trial court in the federal system. Under the court administration system, there are ninetySaylor URL: http://www.saylor.org/books

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four judicial districts in the country. Some states with low population have only one judicial district,
while more populous states have multiple judicial districts. The districts are named for their
geographical location—the federal court in Manhattan, for example, is the U.S. District Court for the
Southern District of New York. The U.S. Department of Justice, which acts as the prosecutor
representing the federal government in both civil and criminal cases, divides its attorneys among the
ninety-four judicial districts, with each district led by a U.S. attorney appointed by the president
without any Senate confirmation.
As a trial court, the U.S. district courts hear civil and criminal trials. The trials may
be bench trials (heard only by the judge), or they may be jury trials. At the trial, witnesses are called
and their testimonies are recorded, word for word, into a trial record (transcript of what was said in
the courtroom along with supporting documentation). At the conclusion of the trial, if the losing side
is unhappy with the outcome, it is entitled as a matter of right to appeal its case to the U.S. Circuit
Court of Appeals. There are thirteen circuit courts of appeals in the United States, also spread
geographically through the states. A party losing an appeal at the circuit court level can appeal one
more time to the U.S. Supreme Court for review, but given the extremely small odds of that appeal
being granted, most federal litigation ends at the U.S. circuit court level.
On the right side of the diagram is the state court system. In all fifty states, a trial court
of general jurisdiction accepts most types of civil and criminal cases. These courts are called various
names such as superior court, circuit court, or district court. Confusingly, trial courts in New York
State are called supreme courts. There may be other courts of limited jurisdiction at the state level,
such as traffic court, juvenile court, family court, or small claims court. Increasingly, states are also
experimenting with specialized drug courts to treat drug abuse (not distribution or trafficking) as a
health problem rather than a criminal problem. State judges may be either appointed by the
governor or elected by the public. Like their federal counterparts, state trial courts hold trials, and
most preserve a trial record for review by an appellate court. In thirty-nine states, a party that loses
at trial can file an appeal with an intermediate court of appeals. The remaining states are smaller and
therefore don’t maintain this level of appeal, in which case appeals are filed directly with the state
supreme court. In states with an intermediate court of appeals, the party losing the appeal can

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typically file one more time with the state supreme court, although state supreme court rules vary on
whether appeals are a matter of right or discretion. Finally, in certain cases that involve a federal
constitutional right, a party that loses at the state supreme court level can appeal to the U.S. Supreme
Court for review. These cases are typically criminal and involve the application of the Constitution to
criminal procedure, evidence collection, or punishment.
Whenever an appeal is filed, the trial record is forwarded to the appellate court for review. Appellate
courts do not conduct new trials and are unable to recall witnesses or call new witnesses. The trial
court’s duty is to figure out the facts of the case—who did what, when, why, or how. This process of
fact-finding is an important part of the judicial process, and a great deal of deference is placed on the
judgment of the fact finder (trier of fact). The trier of fact is typically the jury, or the judge in the case
of a bench trial. On appeal, the appellate judge cannot substitute his or her interpretation of the facts
for that of the trier of fact, even if the appellate judge believes the trier of fact was wrong. The issues
on appeal are therefore limited to questions of law or legal errors. For example, the appellate court
may disagree with the trial judge’s interpretation of the meaning of a law, or it may disagree with a
ruling the trial judge made about what evidence should be admitted or excluded to the trier of fact.
The deference to the trier of fact (trial court) means that, as a practical matter, appeals are rarely
won. Even if a litigant is successful in persuading a court of appeals that legal error has taken place, it
doesn’t automatically win the case. In most cases, the best remedy a litigant can hope for is for the
court of appeals to send the case back to a trial court (a process called remand) for reconsideration or
perhaps a new trial.

KEY TAKEAWAYS
There are fifty-one separate legal systems in the United States, each with its own executive, legislative,
and judicial functions. State constitutions remain a vibrant source of civil rights protections for many
citizens because state constitutions are permitted to grant more civil rights (but not less) than the federal
Constitution. Subject matter jurisdiction is the authority of a court to hear a case based on its subject
matter. State law claims are generally heard in state courts, while federal question cases are generally
heard in federal court. Federal courts sometimes hear state law claims under diversity jurisdiction. Federal
cases are filed in a U.S. district court and appealed to a U.S. circuit court of appeals. State cases are
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typically filed in a trial court and appealed to an intermediate court of appeals. The U.S. Supreme Court is
the highest court in the country, and all other courts must follow the precedent in Supreme Court
opinions. Trial courts are the triers of fact, and their judgment is not questioned by appellate courts.
Appellate court review is limited to legal errors.

EXERCISES
1.

Do you think that the “home court advantage” that justifies diversity jurisdiction still exists? Why or why
not?

2.

Should states retain the ability to grant more civil rights than the federal Constitution? Can you think of
historical examples of this happening? What implications does this have for the future?

3.

Stare decisis requires courts to respect and follow established precedent. Why do you think stare decisis is
important in our common-law system? What do you think would happen if courts were not bound to stare
decisis?

4.

Under what circumstances do you think the Supreme Court should feel comfortable abandoning a prior
precedent? Do you think the answer differs depending on whether you believe in judicial originalism or
activism?

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2.4 The Certiorari Process
LEARNING OBJECTIVES
1.

Understand the Supreme Court’s jurisdiction, including what kinds of cases are selected for review.

2.

Explore what happens when lower courts of appeal disagree with each other.

3.

Learn about the Supreme Court’s process in hearing and deciding a case.

Video Clip: The U.S. Supreme Court
The Supreme Court’s jurisdiction is discretionary, not mandatory. This means the justices
themselves decide which cases they want to hear. For the justices to hear a case, the losing party
from the appeal below must file a petition for a writ of certiorari. During the 2008 term (a term begins
in October and ends the following June), the Supreme Court received approximately 7,700 petitions.
Of these, about 6,100 were in forma pauperis, leaving only approximately 1,600 paid petitions. In
forma pauperis petitions are filed by indigent litigants who cannot afford to hire a lawyer to write
and file a petition for them. Supreme Court rules permit these petitions to be filed, sometimes
handwritten, without any filing fees. These petitions are typically filed by prisoners protesting a
condition of their detention or a defect in their conviction and are quickly dismissed by the Supreme
Court. Not all in forma pauperis petitions are meritless, however. In the case of Gideon v.
[1]

Wainwright, a poor defendant convicted of burglary without being represented by a lawyer filed a

handwritten in forma pauperis writ of certiorari with the Supreme Court. The Court granted the writ,
heard the case, and ruled that Gideon was entitled to have a lawyer represent him and that if he
could not afford one, then the government had to pay for one. Gideon was retried with a lawyer’s
assistance, and he was acquitted and released.
Of the 7,700 petitions filed in the 2008 term, 87 cases were eventually argued. With such a large
number of petitions filed, and a less than 1 percent acceptance rate, what kind of cases do the justices
typically grant? Remember, the Supreme Court is a court of discretionary jurisdiction. It does not
exist as a court to right every legal wrong, or to correct every social injustice. Typically, the cases fall
into one of three categories. The first category is a case of tremendous national importance, such as
the Bush v. Gore [2] case to decide the outcome of the 2000 presidential election. These cases are rare,

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but they dominate headlines on the Supreme Court. Second, the justices typically take on a case
when they believe that a lower court has misapplied or misinterpreted a prior Supreme Court
precedent. This category is also fairly infrequent. By far, the majority of cases granted by the
Supreme Court fall into the third category, the circuit split.
Recall that there are thirteen circuit courts of appeals in the United States (see Figure 2.10
"Geography of U.S. Federal Courts"). Eleven are divided geographically among the several states and
hear cases coming from district courts within their jurisdiction. Thus, for example, someone who
loses a case in federal district court in Pennsylvania will appeal his or her case to the Third Circuit
Court of Appeals, while a litigant who loses in Florida will appeal his or her case to the Eleventh
Circuit Court of Appeals. In addition to the eleven numbered circuit courts, there are two additional
specialized courts of appeals. They are both seated in the District of Columbia. The U.S. Court of
Appeals for the Federal Circuit is a specialized court that mainly hears appeals involving intellectual
property cases, such as those involving patent law. Decisions by this court on patent law are binding
on all district courts throughout the country, unless overruled by the Supreme Court. The second
specialized court is the U.S. Court of Appeals for the District of Columbia Circuit. Although this
appellate court has the smallest geographical area of any court of appeal, it is a very important court
as it hears cases against the federal government and the myriad federal agencies in Washington, DC.
Chief Justice Roberts, as well as Justices Scalia, Ginsburg, and Thomas, served on this important
court before being appointed to the Supreme Court.
A circuit split arises when the circuit courts of appeals disagree with each other on the meaning of
federal law. Let’s assume that two similar cases are being decided in federal district court at the same
time, one in California and the other in South Carolina. The cases present similar facts and involve
the same federal law passed by Congress. Both cases are appealed—the California case to the Ninth
Circuit and the South Carolina case to the Fourth Circuit. On appeal, it’s possible that the two
appellate courts may come to opposite conclusions on what the law means, especially if Congress has
recently passed the law. Since the circuit court of appeal decision is binding for that circuit, the state
and meaning of federal law is different based on where a citizen lives. The Supreme Court is

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therefore very likely to grant certiorari in this case to resolve the split and decide the meaning of the
law for the entire country.
Figure 2.10 Geography of U.S. Federal Courts

Source: Photo courtesy of the U.S. Department of
Justice,http://en.wikipedia.org/wiki/File:US_Court_of_Appeals_and_District_Court_map.svg.
When a petition for writ of certiorari is filed with the Supreme Court, the party that won the case in
the appeal below (called the respondent) files an opposition. Together, these two documents are
considered by the justices during one of their weekly conferences to decide whether or not the case
should be granted. As previously discussed, cases that fall into one of three categories are generally
granted, while others are dismissed. The conference works on the rule of four—only four justices (a

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minority) need to agree to hear a case for the petition to be granted. The vast majority of cases are
dismissed, which means the decision of the lower court stands.
Each Supreme Court justice is permitted to hire up to four law clerks every term to assist with his or
her work. These law clerks are typically new attorneys from the nation’s best law schools. Being
selected as a clerk is obviously very prestigious, and the job is reserved for the brightest young legal
minds. Many justices rely on their clerks to read the thousands of filed petitions and to make
recommendations on whether or not to grant the case. This arrangement, called a cert pool (the clerk
assigned to the case writes a memo that is circulated to all the justices), has been criticized as giving
too much power to inexperienced lawyers. Participation in the cert pool is voluntary and not all the
justices participate. Justice Alito, for example, does not participate, and his clerks read all the
incoming petitions independently. Until his retirement, Justice Stevens also did not participate in
the cert pool process.
If a petition is granted, the parties are then instructed to file written briefs with the Court, laying out
arguments of why their side should win. At this point, the Court also allows nonparties to file briefs
to inform and persuade the justices. This type of brief, known as an amicus brief, is an important tool
for the justices. Many cases before the Supreme Court are of tremendous importance to a broad array
of citizens and organizations beyond the petitioner and respondent, and the amicus brief procedure
allows all who are interested to have their voice heard. For example, in the 2003 affirmative action
cases from the University of Michigan, more than sixty-five amicus briefs were filed in support of the
university’s policies, from diverse parties such as MTV, General Motors, and retired military leaders.

Hyperlink: Amicus Briefs
http://www.vpcomm.umich.edu/admissions/legal/gru_amicus-ussc/um.html
The University of Michigan affirmative action cases drew national attention to the practice of colleges and
universities using race as a factor in deciding whether or not to admit a college applicant. The Supreme
Court ultimately held that race may be used as a factor but not as a strict numerical quota. The Court was
aided in its decision by numerous amicus briefs urging it to find in favor of the university, including briefs

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filed by many corporations. Click the link to read some of these briefs and to understand why these
companies are strong supporters of affirmative action.

After the justices have read the briefs in the case, they hear oral arguments from both sides. Oral
arguments are scheduled for one hour, in the main courtroom of the Supreme Court building. They
are open to the public but not televised. Members of the press are given special access on one side of
the courtroom, where they are permitted to take handwritten notes; no other electronic aids are
permitted. During the oral arguments, the justices are interested not in the attorneys repeating the
facts in the briefs but rather in probing the weaknesses of their arguments and the implications
should their side win. The justices typically hear two or three cases a day while the Court is in
session. Before each day’s session, the marshall of the court begins with the invocation in Note 2.58
"Hyperlink: Oyez.org".

Hyperlink: Oyez.org
http://www.oyez.org/media/oyezoyezoyez

After the oral arguments, the justices once again meet in conference to decide the outcome of the
case. Unlike the other branches of government, the justices work alone. No aides or clerks are
permitted into their conferences. Once they decide which side should win, they begin the task of
drafting their legal opinions. The opinions are the only way that justices communicate with the
public and the legal community, so a great deal of thought and care is given to opinion drafting. If
the chief justice is with the winning side, he or she decides which justice writes the majority opinion,
which becomes the opinion of the Court. The chief justice can use this assignment power wisely by
assigning the opinion to a swing or wavering member of the Court to ensure that justice’s vote
doesn’t change. If the chief justice is in the minority, then the most senior of the justices in the
majority decides who writes the majority opinion. Dissenting justices are entitled to write their
own dissenting opinions, which they do in hopes that one day their view will become the law.
Occasionally, a justice may agree with the outcome of the case but disagree with the majority’s
reasoning, in which case he or she may write a concurring opinion. After all the opinions are drafted,

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the Court hands down the decision to the public. Except in very rare instances, all cases heard in a
term are decided in the same term, as the Court maintains no backlog.

KEY TAKEAWAYS
The Supreme Court has discretionary jurisdiction to hear any case it wishes to hear. Every year, the chance
of having the Supreme Court hear a particular case is less than 1 percent. The Supreme Court is more likely
to hear a case if it involves an issue of national importance, if the Court believes a lower court has
misinterpreted precedent, or if the case involves a split in the appellate circuits. A circuit split occurs when
two or more federal circuit courts of appeals disagree on the meaning of a federal law, resulting in the law
being different depending on where citizens live. Although it takes a majority of justices to vote together
to win a case, only a minority decides the Court’s docket under the rule of four. The Supreme Court
decides cases every term by reading briefs and amicus briefs and by hearing oral arguments. In any case,
the Court may issue a majority opinion, dissenting opinions, and concurring opinions.

EXERCISES
1.

Do you believe that Supreme Court oral arguments should be televised, as government proceedings are on
C-Span? Why or why not?

2.

Do you think the Supreme Court should act more as a court of last resort, especially in serious cases such
as capital crimes, or should the Supreme Court continue to accept only a very small number of cases?

[1] Gideon v. Wainwright, 372 U.S. 335 (1963).
[2] Bush v. Gore, 531 U.S. 98 (2000).

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2.5 Concluding Thoughts
As the smallest branch of government, and with the shortest founding text in the Constitution among
the three branches, the U.S. judiciary faced uncertainty and political interference in its early days. In
recent decades, however, the judiciary has matured into an independent and transparent institution,
remarkably resilient to political turbulence and attack. It’s also a relative bargain for taxpayers,
considering its role as the primary interpreter and defender of the Constitution.
None of this has prevented political attacks on the judiciary, which continue to this day. You may
recall the Florida case involving Terri Schiavo, a patient in a permanent vegetative state, and what
happened when her husband won judicial relief to stop medical measures to keep her alive.
Prominent pro-life politicians launched vitriolic attacks on the judges involved. Attacks on the
judiciary for politically unpopular decisions have become so toxic that former Supreme Court Justice
Sandra Day O’Connor has made it part of her post-Court retirement to stop these attacks and inject
more civility into political treatment of judges. While citizen frustration with government is not new,
dangerous threats against the judiciary are on the rise and represent a worrying trend.
You may spend your entire life without ever meeting a single judge. If you do have experiences with a
judge, you will likely find him or her to be surprisingly human, honest, and above all, fair. The
judiciary lacks a natural constituency, so the burden of ensuring the continued success of this
American institution falls on all of us, citizens and corporations alike.

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Chapter 3

Litigation
LEARNING OBJECTIVES
In this chapter, you will explore our litigation system in detail. Litigation provides an opportunity for each
side in a dispute, whether criminal or civil, to lay their side of the story to an impartial jury or judge and
ask that jury or judge to decide who wins and loses, and how much the loser should pay or how much time
the defendant should spend in jail. After reading this chapter, you should have a deeper understanding of
how litigation is conducted in the United States. Specifically, you should be able to answer the following
questions:
1.

Who are the parties involved in litigation?

2.

What is standing and how does it impact litigation?

3.

How does a court obtain personal jurisdiction over a defendant?

4.

How does a trial progress from beginning to end?

5.

How does a losing side appeal a case?

Even if you’ve never stepped foot in a courtroom before, you can probably describe what a courtroom
looks like. It’s a large, imposing room with tall ceilings, flags on stands, and wood paneling on the
walls. The majority of the floor space is taken up with seating for the public. The front of the
courtroom is dominated by the bench, behind which the judge sits, above everyone else in the room.
Next to the bench is a solitary chair with a microphone in front of it, where a witness sits. Along one
side of the wall is a separated area with two rows of seats, where the jury sits. Facing the bench, and
always closest to the jury, is one table for the party that is carrying the burden of proof in the case:
the prosecution in a criminal trial and the plaintiff in a civil trial. Across the aisle, there is another
impressive table for the opposite side, the defense. When court is in session, a hush settles into the
room so that everyone can hear the judge, commanding in presence, or the witness, captivating in
detail.

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Many of us have such clear imagery of a courtroom because our experiences are drawn from popular
culture. Whether in movies (A Civil Action, To Kill a Mockingbird, Erin Brockovich), on television
shows (Law & Order, L.A. Law, Boston Legal), or in fictional books (The Firm, Twelve Angry Men),
courtroom scenes capture our imagination and fire our sense of righteousness and justice as good
always prevails over evil. In our collective courtrooms the truth always comes out, our ideals are
always upheld, and the bad guys always lose. Who could forget, for example, the psychological
breakdown on the witness stand in the movie A Few Good Men, as Jack Nicholson plays it out?

Video Clip: You Can’t Handle the Truth
Scenes like these, while providing wonderful imagery, are pure fiction. In a real courtroom, there is
no back-and-forth argument between counsel and witness as examinations proceed through
questioning alone. In a real courtroom, the truth doesn’t always emerge. In a real courtroom, there
are many shades of gray between good and evil. And finally, in a real courtroom, the bad guys don’t
always lose, and the good guys don’t always win.
As future business professionals, your responsibility to your company, to your company’s
stakeholders, and to yourself is to avoid ever seeing the inside of a courtroom. Acting ethically and
legally, and identifying the legal pitfalls that you may encounter by mastering the elements of this
course, will help you achieve this goal. Agreeing to arbitration for parties that you have a preexisting
relationship with, such as your customers, suppliers, or employees, will also help you stay away from
a courtroom. In spite of this planning, however, many companies still find that litigation is
sometimes unavoidable. Whether litigation is initiated against parties you don’t have a contract with
(such as another company that steals your intellectual property rights) or by parties you don’t have a
contract with (such as a customer who is injured by your product or an employee harassed by
another employee), litigation may be the only dispute-resolution mechanism available.
In this chapter we’ll explore the process of litigation from the beginning to the end. You’ll learn about
the parties involved and about preliminary matters such as standing and personal jurisdiction and
then explore the trial and appeal. We’ll also discuss the role of lawyers and juries in our litigation
system. By the end of the chapter, you’ll have an appreciation that while our litigation system is
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cherished for its ability to resolve disputes peacefully and establishes a hallmark for public
accessibility, for businesses it is often a far from satisfactory forum for dispute resolution.

Key Takeaways
Litigation is an inevitable part of a business’s activities. Lawsuits, trials, and appeals can be ruinously
expensive for some companies, especially small- and medium-sized enterprises. Learning about our
litigation system will give you the skills and comfort you need should your company find itself in
litigation.

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3.1 The Parties Involved
LEARNING OBJECTIVES
1.

Identify the parties involved in litigation.

2.

Explore the role of lawyers in our adversarial system.

3.

Understand the roles and obligations of jurors.

The litigation system relies on parties bringing forth and defending their respective claims. As in the
game of chess, each move can take place only if a player makes a decision to move in a particular
direction; the game does not play itself. Courts, jurors, and witnesses are similarly moribund: it is up
to the players, in this case called litigants, to act decisively. Occasionally, a court may act sua sponte,
without a direct request from a party. A judge may decide, for example, to fine a party for bad or
unethical behavior. These actions are fairly rare. More commonly, judges act on a motion filed by
either party asking the judge to make a particular decision.
The party that begins the lawsuit is called the plaintiff in a civil case. The plaintiff is a victim that has
presumably suffered some sort of legal wrong that the law recognizes. The plaintiff brings suit
against the defendant—the alleged wrongdoer or perpetrator. Note that in a criminal trial, the party
that initiates litigation is the prosecution, representing the people of a state or, in federal cases,
representing the people of the United States. In a criminal trial the alleged wrongdoer is also called
the defendant.
Many cases involve multiple plaintiffs and multiple defendants. Civil procedure encourages, and
makes it easy for, parties to air all their grievances against each other at once. All parties, and every
possible claim (each claim is a separate violation of law) arising out of a single incident or series of
related incidents, should be identified and named in a lawsuit. For example, if you go to an offcampus party one night and witness a friend being harassed, you might feel the need to step in to
defend your friend. The harasser may then turn his attention toward you, perhaps taking a swing at
you. Let’s assume that the harasser is drunk and misses, but in return you take a swing and hit him,
knocking him to the ground. The harasser may file a lawsuit against you, alleging assault and battery.
The harasser is the plaintiff, and you are the defendant. The lawsuit filed in court would be
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captioned Harasser v. You. You might decide in return to file a claim against the harasser, alleging
that the harasser started the fight and that you acted in self-defense. This is called a counterclaim,
and you are now the counterplaintiff, making the harasser the counterdefendant. In return, the
harasser may allege that he wasn’t really harassing your friend but trying to defend himself from
your friend’s unwanted advances. The harasser may sue your friend as a third-party defendant
through a process called joinder.
Except in some small-claims courts, parties hire attorneys to litigate most cases. Sometimes
individuals feel like they have a sufficient grasp on the law to proceed in litigation without a lawyer
or that they have sufficient legal training (or even a law degree) that hiring a lawyer would be a waste
of money. Individuals who represent themselves are called pro se litigants and can only proceed pro
se if the judge overseeing the case allows it. Abraham Lincoln once famously said, “He who
represents himself has a fool for a client.” The complexities of litigation require a cool and detached
mind to thread a route to success, and if you are representing yourself it is all too easy to allow
passion to cloud your judgment.
Attorneys are sometimes called members of the bar. The U.S. legal profession is unique in several
respects. In most countries, legal education is an undergraduate program followed by a period of
apprenticeship before an individual is allowed to practice law. Many countries also make a
distinction between attorneys who litigate in court and those who do not. In the United Kingdom, for
example, solicitors are lawyers who deal with ordinary legal matters outside of court, while Queen’s
Counsel (QC) are specially trained lawyers who are permitted to argue in court. In the United States,
lawyers undertake three years of graduate study resulting in the award of the Juris Doctorate degree,
or JD. Every year, more than thirty thousand students graduate from U.S. law schools with their JD.
They then sit for the bar exam in the state where they wish to practice. Since the practice of law in the
United States varies widely by different jurisdictions, lawyers are only permitted to practice in
jurisdictions where they are licensed. Some states permit lawyers from out of state, after a few years
of being in practice, to apply for bar admission without taking the exam through a process called
reciprocity. Other states, notably California and Florida, require attorneys to take the bar exam no
matter how long they have been in practice. If a lawyer is dealing with an issue or matter that takes
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him or her out of state to litigate a case, he or she can ask to be admitted temporarily by a court in
that foreign state through a motion called pro hac vice. Once the lawyer passes the state’s bar exam or
is otherwise admitted, he or she is permitted to practice all aspects of law in that state, from drafting
wills and contracts to arguing a case before the U.S. Supreme Court.
Attorneys in the United States are broadly divided into civil and criminal attorneys; few lawyers excel
in both areas. Civil attorneys generally work in two different categories: in law firms, where they may
represent multiple clients, and as in-house counsel, where they represent only one client, their
employer. Most large corporations have an in-house legal department to control legal costs but may
still hire outside counsel for representation and advice in complex matters.
With the possible exception of politicians, no other profession is subject to more morbid jokes than
lawyering. William Shakespeare famously wrote in Henry VI, through a character speaking of a
utopian world, “The first thing we do, let’s kill all the lawyers.” In spite of this public animosity
toward lawyers, however, if there comes a time when someone needs a lawyer, it’s not uncommon to
hear them wish they had the most aggressive lawyer money can buy.
Perhaps part of the reason the public has a low opinion of lawyers can be traced to the ethical and
legal obligations of attorneys. Lawyers may be the most regulated of all the professional industries,
and they are required to comply with complex and sometimes rigid rules of professional conduct.
Unlike rules for other professions, the rules of professional conduct for lawyers are largely drafted
and enforced by the bar itself (other lawyers and judges) and almost never involve external
enforcement mechanisms. These rules govern virtually every aspect of the practice of law, and a
violation of these rules can result in disciplinary action from the state bar or supreme court of the
state in which the lawyer practices, up to lifetime disbarment. When President Bill Clinton, for
example, lied under oath about certain aspects of his extramarital affairs, he was suspended from
practicing law for five years in Arkansas and ordered to pay a $25,000 fine. These rules of
professional responsibility require attorneys to represent their clients with zealous advocacy.
Ordinarily, we associate the word “zealot” with extremists, but that is the standard by which lawyers
must represent their clients. This might clarify why some lawyers act the way they do.

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One of the most sacrosanct rules of professional responsibility is the obligation to keep a client’s
secrets. The communications between a client and his or her attorney are absolutely confidential
under the attorney-client privilege doctrine. There are many privileges under the law, such as the
spousal privilege, doctor-patient privilege, and priest-penitent privilege. The attorney-client privilege,

however, is arguably the strongest of these privileges. The privilege belongs to the client, and the
attorney is not permitted to reveal any of these communications without the client’s consent. A
narrow exception exists for clients who tell their lawyers they intend to harm others or themselves,
but attorneys must tread very carefully to avoid violating the privilege. Many members of the public
feel that the privilege may be open to abuse and can’t understand, for example, why an attorney can’t
reveal a client’s confession to a heinous crime. Ultimately, the privilege exists for the client’s benefit.
Someone who cannot communicate with his or her attorney freely is unable to help the attorney
prepare the best possible case for litigation. You should note that in-house attorneys represent the
corporations they work for and not individual employees. If you communicate with an in-house
attorney for the company where you work, for example, that communication may not be
automatically protected by the attorney-client privilege.

Hyperlink: The Lynne Stewart Case
http://www.lynnestewart.org
Lynne Stewart, a human rights attorney, was assigned to represent Sheik Omar Abdel-Rahman, the blind
Egyptian cleric convicted of conspiracy in the 1993 World Trade Center bombing in New York City. As
part of her representation, she agreed to abide by certain conditions when communicating with her client,
including not speaking to the media. Ms. Stewart broke those promises and inadvertently passed on a
communication from her client to his followers around the world. She was indicted and convicted of
conspiracy and providing material support to terrorists. She was sentenced to a twenty-eight-month
prison term. Click the link to read more about her case, including the legal documents involved. A very
controversial aspect of the case involved the use of secret cameras and recorders to listen in on her
conversations with her client while he was in prison.
Figure 3.2Lynne Stewart

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Source: Photo courtesy of Robert B. Livingston,http://en.wikipedia.org/wiki/File:Lynne_Stewart.JPG.

In spite of an attorney’s professional obligations to his or her client, it’s important to remember that
ultimately a lawyer’s first duty is to the administration of justice. The rules of professional conduct are
written with this goal in mind. The requirements for lawyers on civility, honesty, and fairness are all
written to ensure that lawyers represent the very best aspects of our judicial system. Let’s say, for
example, a client admits to his lawyer that he is guilty or liable in a case. The client then wants to
testify under oath that he is innocent. Although a lawyer cannot tell anyone what her client has told
her, the lawyer is also prohibited from knowingly suborning perjury. The attorney must either
convince the client to not testify, or withdraw from the case.
In the case in Note 3.31 "Hyperlink: A Question of Ethics", an attorney goes a little too far in her
representation and draws a heavy fine from a judge as a result.

Hyperlink: A Question of Ethics
The Case of the Birther Attorney
Order Hon. Clay D. Land, U.S. District Judge, District Court for the Middle District of Georgia, Case No.
4:09-CV-106, Rhodes v. MacDonald, athttp://www.scribd.com/doc/20996403/Gov-uscourts-gamd77605-28-0.

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Throughout the presidential election campaign in 2008, persistent rumors swirled around whether
Barack Obama was born in the United States, a requirement under the Constitution to serve as president.
After the election, California attorney Orly Taitz launched a campaign to prove that the president was not,
in fact, born in Hawaii. Her bizarre tirades against the media and the courts earned her this unusual
reprimand from a federal judge. Click the link to read the entire order. Do you believe that in their
“zealous” representation of their clients, attorneys have the ethical duty to pursue claims such as these?
Order
Introduction
Commenting on the special privilege granted to lawyers and the corresponding duty imposed on them,
Justice Cardozo once observed, “Membership in the bar is a privilege burdened with conditions. [A lawyer
is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of
the court, and, like the court itself, an instrument or agency to advance the ends of justice.” Competent
and ethical lawyers “are essential to the primary governmental function of administering justice.” For
justice to be administered efficiently and justly, lawyers must understand the conditions that govern their
privilege to practice law. Lawyers who do not understand those conditions are at best woefully
unprepared to practice the profession and at worst a menace to it.
When a lawyer files complaints and motions without a reasonable basis for believing that they are
supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege
to practice law. When a lawyer uses the courts as a platform for a political agenda disconnected from any
legitimate legal cause of action, that lawyer abuses her privilege to practice law. When a lawyer personally
attacks opposing parties and disrespects the integrity of the judiciary, that lawyer abuses her privilege to
practice law. When a lawyer recklessly accuses a judge of violating the Judicial Code of Conduct with no
supporting evidence beyond her dissatisfaction with the judge’s rulings, that lawyer abuses her privilege
to practice law. When a lawyer abuses her privilege to practice law, that lawyer ceases to advance her
cause or the ends of justice.

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It is irrefutable that a lawyer owes her client zealous advocacy, but her zeal must be constrained within the
bounds placed on her as an officer of the Court and under the Court’s rules. Specifically, Rule 11 of the
Federal Rules of Civil Procedure expressly sets forth the outer boundaries of acceptable attorney conduct.
That rule prohibits a lawyer from asserting claims or legal positions that are not well-founded under
existing law or through the modification, extension, or expansion of existing law. Rule 11 also prohibits an
attorney from using the courts for a purpose unrelated to the resolution of a legitimate legal cause of
action.
Regrettably, the conduct of counsel Orly Taitz has crossed these lines, and Ms. Taitz must be sanctioned
for her misconduct. After a full review of the sanctionable conduct, counsel’s conduct leading up to that
conduct, and counsel’s response to the Court’s show cause order, the Court finds that a monetary penalty
of $20,000.00 shall be imposed upon counsel Orly Taitz as punishment for her misconduct, as a deterrent
to prevent future misconduct, and to protect the integrity of the Court. Payment shall be made to the
United States, through the Middle District of Georgia Clerk’s Office, within thirty days of today’s Order. If
counsel fails to pay the sanction due, the U.S. Attorney will be authorized to commence collection
proceedings. The Court does not take this action lightly, and in fact, cannot recall having previously
imposed monetary sanctions upon an attorney sua sponte.

As the Orly Taitz case demonstrates, attorneys must take care to respect a court’s authority at all
times and conduct themselves in a civil manner. Most attorneys have no problem discharging this
obligation to the judge, but it is to the jury that they focus their attention the most. In our legal
system, the jury has a very special role to play in ensuring citizen participation in the administration
of justice. As the trier of fact, the jury has the duty of determining the truth in any given situation:
who said and did what, why, and when?
Do you know when someone is lying to you? Have you ever been lied to so well that you didn’t find
out about the lie until much later? Have your roommates or friends who were involved in a dispute
ever asked you to decide who should win? In essence, being a juror relies on those same human
skills. In every legal proceeding, each of two adversarial sides, absolutely opposed to each other,
claims that it is right and the other side is wrong. Our litigation system is a process by which each

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side gets to present its case to a group of stranger citizens, and then ask them to decide who is lying
and who is telling the truth.
There are two types of juries. A grand jury is a group of citizens convened by the prosecution in
serious criminal cases to simply determine whether there is probable cause to believe that a crime
has occurred and whether it’s more likely than not that the defendant in question committed the
crime. The grand jury serves as a procedural step to prevent prosecutors from abusing their powers
of arrest and indictment, a sort of “sanity check” on the awesome power of government to accuse
citizens of crime. The grand jury requirement exists at the federal level and in some, but not all,
states. A grand jury typically meets for an extended period of time and can hear several different
cases in one day.
The grand jury does not determine guilt or innocence. A petit jury does that. This jury is impaneled
for a specific trial. During the trial, members of the jury listen to the evidence presented and then
deliberate as a group on what they believe the facts of the case are. They then apply the law, as
instructed by the judge, to the facts. There are typically twelve members in a petit jury in criminal
trials and from six to twelve members in civil trials, and generally speaking they must arrive at a
unanimous verdict.
The jury system is a jewel in our litigation system for it involves ordinary citizens in adjudicating all
sorts of disputes, from domestic family issues to complex business and insurance litigation to heartwrenching criminal cases. There are problems with administering this system, however.
Both grand and petit juries are drawn from citizen voter and driver license rolls. In high-profile
cases, it may be difficult to find citizens who have not heard about the case or who can be impartial
about the case, in spite of their promises to be open minded. When Enron collapsed in 2001, for
example, defense attorneys for former CEO Jeff Skilling argued strenuously that the trial should not
be held in Houston, where almost every citizen was affected in some way by the energy giant’s
collapse or knew someone affected. The question of juror bias was so serious that the U.S. Supreme
Court agreed to hear Skilling’s appeal based partially on this argument. Although the Court
eventually found that Skilling’s jury was adequately impartial, Justice Sotomayor noted in a
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dissenting opinion that the “deep seated animosity that pervaded the community at large” caused her
great concern. [1]
Another problem arises from the burdens placed on jurors’ personal lives through their service.
While most states have laws that prevent an employer from firing a worker or taking any negative
work action, such as demotion, against the worker for being on jury duty, there is no legal
requirement that an employer continue to pay a worker on jury duty. The court system does not pay
juries for their services either (although some court systems pay a small amount, typically less than
twenty dollars per day, to cover food and transportation costs). Some citizens, such as those who are
self-employed, are therefore at great risk for losing personal income by serving on juries. Imagine
being on the O. J. Simpson criminal trial jury, for example—that trial lasted ten months. The effects
of jury service on a juror’s personal life can be staggering.
Another potential problem arises in the makeup of the jury itself. To provide a fair jury, courts
attempt to draw from a cross-section of society to reflect the diversity of the surrounding community.
Local court rules typically allow judges to excuse potential jurors for hardship or extreme
inconvenience. If these rules are too generous, then the only citizens left may be those without fulltime employment, such as students or retirees. Such a narrow cross-section of society would tend to
skew the reliability and trust of the jury system, and judges across the country are becoming
increasingly intolerant of attempts to evade jury service. The only professions that automatically
exempt citizens from jury duty are active-duty soldiers, police officers and firefighters, and public
officers.
In spite of these administrative problems, our jury system remains a cornerstone of litigation and is
often openly admired. In South Korea, for example, attempts to create a more open and responsive
democracy resulted in a novel and wholesale revision to the country’s court system: the adoption of
citizen juries.

Hyperlink: Korea Adopts Jury System
http://www.nytimes.com/2008/07/07/world/asia/07iht-jury.2.14299454.html

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In 2007, with little public debate or preparation, South Korea adopted a jury system in certain criminal
and civil trials. For now, the jury’s decision is only advisory, and the court is free to reject it. The result has
been some confusion about the role of citizens in the legal system, some concern about the methodology
employed to implement the jury system, and an increase in transparency and greater citizen participation
in government affairs.

KEY TAKEAWAYS
The federal rules of civil procedure make it easy for parties in a lawsuit to identify and join other relevant
parties and to make legal claims against each other. The goal of civil litigation is to find the truth. Litigants
typically rely on lawyers to assist them in litigation. An attorney’s highest duty is to the administration of
justice. Lawyers are ethically bound to represent their clients with zealous advocacy. A grand jury acts as a
body of citizens to prevent abuse of discretion by prosecutors. A petit jury sits in trials as the trier of fact
to ascertain the truth through their observations of the presented evidence.

EXERCISES
1.

Can you think of a situation where an in-house attorney may advise you to retain your own counsel?

2.

Most rules of legal professional conduct are drafted and enforced by the bar itself, but the Sarbanes-Oxley
Act (passed in reaction to the Enron accounting scandal) imposed a legal duty on lawyers to report acts of
misconduct in publicly traded corporations. Do you believe that the bar does an effective job of policing
itself, or do you think external government agencies should be more involved?

3.

Read the legal documents available for the Lynne Stewart case at Note 3.28 "Hyperlink: The Lynne Stewart
Case". Do you think that the U.S. government should be able to curb the attorney-client privilege when the
client is a convicted terrorist? Or a suspected terrorist?

4.

How aggressive should a lawyer be in representing his or her client “zealously”? Read the rest of Judge
Land’s order in Note 3.31 "Hyperlink: A Question of Ethics". Do you think Orly Taitz’s conduct warranted a
twenty-thousand-dollar fine?

5.

Do you think that juries can be trusted to always arrive at the truth? Why or why not?

6.

Do you think the U.S. jury system should be adopted by other countries? What factors do you think should
affect a country’s decision to adopt a jury system?

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[1] Skilling v. United States, 561 U.S. ___ (2010),http://www.supremecourt.gov/opinions/09pdf/081394.pdf (accessed October 2, 2010).

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3.2 Standing and Personal Jurisdiction
LEARNING OBJECTIVES
1.

Explore the standing requirement.

2.

Understand how a court obtains personal jurisdiction over the parties.

Before a case can be litigated, parties have to demonstrate that they meet two pretrial requirements:
standing and personal jurisdiction.
Standing is a constitutional requirement. Article III of the Constitution grants the judiciary the power

to hear “cases” and “controversies.” This means actual cases and controversies, not merely
hypothetical ones. Unlike some other jurisdictions, the standing requirement means that courts are
unable to give advisory opinions. Let’s say, for example, Congress is considering whether or not to
pass a law and would like to know whether the law is constitutional. Standing prevents this question
from being litigated, because it’s not yet an actual case or controversy. Standing, therefore, is a
doctrine that limits judicial overreach by circumscribing the types of cases that are litigated in our
courts.
To demonstrate standing, a party has to prove first that it has an actual case to proceed. This is a
procedural matter, and it requires the case to be brought at the right time. If a case is brought too
early, it’s not yet ripe. If it’s brought too late, then the case is moot. For example, assume that a state
is debating whether or not to pass a law that would require thirty hours of financial management
classes before anyone is allowed to form his or her own company. If an entrepreneur who wishes to
form her own company but doesn’t want to take the thirty hours of classes sues the state for an
unconstitutional law, that lawsuit would be dismissed for being brought too early—it is not ripe since
the law hasn’t been passed yet. Now let’s assume that the law has been passed, and the entrepreneur,
who has abandoned her plans and is now working for someone else, sues the state anyway. That
lawsuit would also be dismissed since it is now moot. Even if the entrepreneur won the case and the
law was overturned, the remedy would be meaningless to her since she does not plan to take the class
anyway.

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In addition to being brought at the right time, the case has to be brought by the right person. To
show standing, a plaintiff has to demonstrate that he has an actual stake in the litigation, or
something of value that would be lost if he loses the case. Of course, if a plaintiff has lost money in a
contract dispute or has been injured in a tort case, that is sufficient legal injury. Let’s say, for
example, that your roommate is the victim of Internet fraud when she does not receive the goods that
she paid for online. She would rather move on and forget the whole episode, but you are outraged
and decide to sue the perpetrator in court. Even if the perpetrator admitted that it committed fraud,
you would still lose the case because you’re not the right plaintiff here; your roommate is.
Cases that don’t involve monetary damages are sometimes more difficult to call. For example, what if
a constitutional right is at stake? What standing does a citizen have to prove to file a lawsuit? Courts
have generally held that merely being a taxpayer does not give standing to challenge government
expenditures. So, for example, a citizen cannot sue the government to stop the war in Afghanistan
just because he pays his taxes. If taxpayers don’t have standing to challenge government action, then
who does?
In 2007 Massachusetts, along with eleven other states, sued the Environmental Protection Agency
(EPA) to force the agency to regulate carbon dioxide as a pollutant. For years, the EPA had argued
that carbon dioxide is not a pollutant and therefore could not be regulated. In response to the suit,
the EPA argued that the states lacked standing since they couldn’t prove they had been harmed by
excess carbon dioxide in the air. In a major decision, [1] the Supreme Court ruled that the states had
standing because they had suffered environmental degradation as a result of global warming brought
about by excess carbon dioxide and that therefore the EPA has jurisdiction over carbon dioxide as a
pollutant. This decision, along with the election of President Obama, led to a major policy reversal at
the EPA, which is now aggressively pursuing the regulation of carbon pollution to combat global
warming.
Another high-profile case on standing involves the Pledge of Allegiance. In 2000 a California
attorney and physician sued the government because his daughter attended a school where the
Pledge of Allegiance was recited every morning. The plaintiff, Michael Newdow, claimed that the

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pledge is unconstitutional under the First Amendment because it contains the words “under God.” In
2002 the Ninth Circuit Court of Appeals agreed with Newdow, ruling that the pledge is indeed
unconstitutional. On appeal to the Supreme Court, the Court ducked the question of whether the
pledge is unconstitutional.[2] Instead, the Court held that Newdow lacked standing to bring the
lawsuit in the first place since he is a noncustodial parent. Only his wife, who had custody of the
daughter, could bring the lawsuit.
It’s important to note that standing doesn’t have anything to do with the merits of the case. Being
able to prove standing doesn’t mean that you can win the case at hand. It only means that you’ve
been able to clear a procedural bar toward proceeding with litigation.
Another procedural bar before a plaintiff can proceed is personal jurisdiction. Personal jurisdiction is
different from subject matter jurisdiction, which is the power of a court to hear a case. Personal
jurisdiction is the power of a court over specific litigants, and it requires litigants to have some form
of minimum contacts with the state where the case is filed. Personal jurisdiction seeks to avoid
inconvenient litigation, even if the case has actual merit. If you’ve never been to Nebraska, for
example, and don’t have any connections to Nebraska, then you might be very surprised to find that
you’re being sued in a Nebraska state court. In addition to that, you’d have to go to Nebraska to
answer the lawsuit, hire local lawyers to assist you, and spend a lot of time and money in a state you
have nothing to do with.
A court obtains personal jurisdiction over the plaintiff when the plaintiff files its lawsuit. Obtaining
personal jurisdiction over the defendant can be a little trickier. Typically, there has to be some sort of
connection between the defendant and the state where the court is located. For example, living in the
state would create personal jurisdiction. Residency for purposes of personal jurisdiction is different
from residency for other legal requirements such as voting and driving. Even temporary residency,
such as a college student studying out of state, creates residency for personal jurisdiction purposes.
Moreover, merely being in the state temporarily creates personal jurisdiction. If you’re driving
through Nebraska, for example, and you’re speeding on a local highway, Nebraska courts have
jurisdiction to hear a speeding ticket issued against you. Owning property in a state also creates

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jurisdiction. For corporations, courts generally hold that personal jurisdiction is proper in the state
of incorporation as well as in any state the corporation does business.
Personal jurisdiction, like standing, is a constitutional requirement. The due process clause of the
Fourteenth Amendment requires government processes to be carried out fairly. In 1980, the
Supreme Court heard an important case on personal jurisdiction involving a car crash in
Oklahoma. [3] The plaintiff purchased the car in New York and filed a lawsuit against the
manufacturer (Volkswagen) and the distributor and retailer (car dealer). The distributor and the
retailer moved to dismiss the case for lack of personal jurisdiction, arguing that they had no business
in Oklahoma, had no employees or property there, and did not target citizens of Oklahoma to
purchase vehicles from them in New York. The Supreme Court held in favor of the distributor and
car dealer, finding that neither had “purposefully availed” themselves of the privileges that come
from doing business in Oklahoma. The Court noted that for personal jurisdiction to attach,
“substantial notions of fair play and justice” cannot be offended.
Today, most states have written these concepts into laws known as long-arm statutes. These statutes
set forth the procedure by which out-of-state defendants can be required to appear before a local
court. The statutes provide for how service of process can occur. Service of process is the process by
which any defendant (both local and out-of-state) is notified that it is being sued. Service of process
typically requires a copy of the summons (notice to appear before a court) to be personally delivered
to the defendant or the defendant’s agent. In the case of companies and other nonhuman entities,
service of process is usually easy since they are required to have a registered agent as part of the
process of forming an organization. Service can be more challenging with an individual, since some
defendants know that litigation can be held up while service is attempted and therefore choose to
avoid being served at all costs. While the best service is personal delivery of the summons, some
states prescribe alternative methods such as leaving a copy with a family member while also mailing
a copy.
The Internet era has raised some interesting personal jurisdiction issues. Does creating a Web site,
for example, subject you to personal jurisdiction in all states where the Web site is accessible? Courts

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have ruled that the answer depends on what kind of Web site you have created. If it is a general
informational Web site that describes a product, then there are insufficient minimum contacts to
create personal jurisdiction. If, on the other hand, the Web site reaches out to specific customers and
urges them to make a purchase, either through a shopping cart function or by calling the seller, then
there are minimum contacts to justify jurisdiction.

KEY TAKEAWAYS
Standing is a constitutional requirement that requires a plaintiff prove that he or she is the right person to
bring a lawsuit and that he or she is bringing the lawsuit at the right time. Taxpayers lack standing to sue
the government just by being taxpayers. Legal injury does not have to be monetary based; environmental
harm, for example, may be sufficient to demonstrate standing. Standing has nothing to do with the merits
of the underlying case. Courts must have personal jurisdiction over a defendant before litigation can
proceed. Personal jurisdiction, a constitutional requirement, requires minimum contacts with the state
such that substantial notions of fair play and justice are not offended. Once personal jurisdiction is
established, service of process can occur, where a copy of the summons is delivered to the defendant. If
the defendant lives out of state, a long-arm statute prescribes the method for service to occur. A Web site
creates personal jurisdiction in any state where it reaches out for customers through a shopping cart
function.

EXERCISES
1.

When President Obama nominated Hillary Clinton as secretary of state in 2008, several constitutional
scholars observed that it may be unconstitutional for her to assume the post due to an often-ignored
section of the Constitution. What procedural bar stopped citizens from challenging the nomination?

2.

Do you believe the Supreme Court acted properly by finding that states with environmental damage from
global warming had standing to challenge the federal government?

3.

In the Volkswagen car crash case, the manufacturer (Volkswagen, a German company) and the importer
did not contest personal jurisdiction of Oklahoma state courts. Why do you think they submitted to
jurisdiction so readily?

4.

If a car dealer in a neighboring state runs advertisements in your state claiming that its deals are better
than those of in-state dealers, does that out-of-state car dealer create personal jurisdiction in your state?

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5.

If you sell something on eBay, do you create personal jurisdiction in the buyer’s state? Why or why not?

6.

If you commit a tort on the Internet, do you create personal jurisdiction in the victim’s state? For example,
if you defamed someone who lives out of state on Facebook, have you created jurisdiction in that foreign
state?

[1] Massachusetts v. EPA, 549 U.S. 497 (2007).
[2] Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
[3] World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980).

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3.3 Pretrial Procedures
LEARNING OBJECTIVES
1.

Explore pretrial procedures such as pleadings, discovery, and motions.

2.

Find out how class-action lawsuits are organized and prosecuted.

3.

Learn about issues and challenges facing parties during discovery.

After issues related to subject matter jurisdiction, standing, and personal jurisdiction are sorted out
and parties have hired counsel to represent them, then a dispute can proceed to the pretrial stage. In
civil cases, litigation begins with the filing of a complaint by the plaintiff. The complaint is a simple
document setting forth who the parties are, the facts of the case, and what specific laws the
defendant has violated. (Each of these is a claim.) The complaint ends with a prayer for relief. The
plaintiff may be seeking damages (money), specific performance in certain kinds of contract cases, or a
temporary or permanent injunction. It is much easier to get a temporary injunction in the early
stages of litigation, because courts don’t want to see the defendant take some action that may result
in irreparable harm. For example, if a real estate development company wants to tear down an old
shopping mall to build a new skyscraper, and one of the tenants in the old mall claims it still has a
right to be there, the tenant may be able to obtain a temporary injunction stopping the demolition
until the lease issues are sorted out. If the demolition is allowed to continue and the tenant later
turns out to be the winner, it will be too late to grant the tenant any meaningful remedy.
Citizen advocacy groups with an antilitigation public policy agenda often complain
about frivolous lawsuits being filed in court. Most court systems have rules to prevent the filing of
frivolous suits. In the federal system, the rules state that all claims must be signed by a lawyer
certifying that to the “best of the person’s knowledge,” formed after “an inquiry reasonable under the
circumstances,” the claim is not being presented for an unlawful purpose such as harassment and
that the claims are either “warranted by existing law” or a nonfrivolous argument for modifying
existing law. In practice, this standard is quite easy to meet, and it’s hard to think of a factual
scenario—other than the most absurd—that would rise to the level of being legally frivolous.

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The complaint is filed with the clerk of the court where the suit is to be heard. Every court has a
clerk’s office to handle administrative matters relating to litigation. Even though the court system is
a public service, there is usually a fee associated with filing a complaint to cover some of the court’s
costs.
The clerk will next issue a summons to the defendant, along with a copy of the complaint. The
summons is sent to a process server to effect service on the defendant. When the defendant is served,
it is very important for the defendant to respond to the complaint in a timely manner. Ignoring the
complaint, even if the defendant believes the complaint is devoid of any merit, is a fatal error. If the
defendant does not reply to the complaint, the plaintiff can ask the court to issue
a default judgment against the defendant, including granting all the relief the plaintiff is asking for.
In certain types of cases, there may be a large number of plaintiffs injured by a defendant’s actions.
This may happen in a product liability lawsuit where a product is purchased by many thousands of
consumers, all of whom experience the same product failure. The batteries for Apple’s popular iPod,
for example, had a high failure rate, leading to a large number of consumer claims. There also may be
a large number of plaintiffs in financial services cases, where a financial institution or investment
firm defrauds a large number of investors. In these cases, several lead plaintiffs may attempt to form
a class in a class-actionlawsuit against the defendants. Under federal civil procedure rules, class
actions may be granted when there are so many plaintiffs that it is impractical for them to file
separate lawsuits, there are questions of law or fact that are common to members of the class, and
the lead plaintiffs will fairly and adequately protect the interests of the class.
The defendant must file an answer to the complaint within a specified period of time, typically thirty
days. The answer is a paragraph-by-paragraph response to the complaint, admitting certain
paragraphs and denying others. The answer may also contain an affirmative defense (self-defense in
an assault charge, for example) the defendant wishes to pursue. Taken together, the complaint and
answer are known as the pleadings. The answer may admit, for example, noncontroversial claims by
the plaintiff such as the defendant’s name, address, and the nature of the defendant’s relationship
with the plaintiff. Each time the defendant denies a plaintiff’s claim in the complaint, that sets up a

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controversy or argument that must be litigated. Reducing the number of claims to be resolved before
an actual trial begins makes the trial shorter. For example, in many civil cases, the plaintiff will make
claims about liability and damages. A defendant may be willing to admit that it is liable but may
argue about the plaintiff’s claims for damages. This can sometimes lead to bifurcated trials, where
the issues of liability and damages are litigated separately.
At any point in litigation, either party may file motions with the court. The motions are designed to
short-circuit the litigation and lead to an early end to the lawsuit. Litigation is so time consuming
and expensive that either party would be gratified if the judge would simply cut the lawsuit short and
declare a winner. One such motion is the motion to dismiss for failure to state a cause of action. In
this motion, the defendant argues that even if it admits everything in the complaint is factually true,
that doesn’t lead to any legal liability. In other words, the defendant’s conduct has not broken any
laws. A similar motion is the motion for judgment on the pleadings. In this motion, one party asks
the judge to decide the case based simply on the answer and complaint.
If a long period of time has passed since the incident in question and the filing of the lawsuit, a
defendant may file a motion to dismiss based on the statute of limitations. Every civil and criminal
action has a statute of limitations, which states that any claim or prosecution under the statute must
be brought within a specified period of time or it will be dismissed. Only a few crimes are exempt
from the statute of limitations and can be prosecuted at any time: murder (in most states) and rape
(in many states). The statute of limitations exists to encourage aggrieved parties to file their lawsuits
quickly, while evidence is still fresh and relevant people have memories of what occurred. As time
passes, evidence may become stale, witnesses may die or move away, and those that can be located
can’t remember what they saw or heard. In other words, the quicker a suit is filed, the more likely
that the real truth will be discovered by litigation. For businesses, a statute of limitations also allows
it to “close the books” on past liabilities, such as accounts payable or tax payments, knowing that too
much time has passed for anyone to come collecting on those monies. It is possible, though, in many
cases to toll the statute of limitations. If an accountant commits fraud, for example, and a criminal
complaint is filed but the accountant flees overseas for many years, the statute of limitations does not
run while the suspect is hiding.
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In support of any motion, a party may submit an affidavit. Affidavits play an important role in
pretrial procedure because they are an effective way for parties to tell their side of the story to the
judge. They are limited, however, because even though they are given under oath, they may raise
more questions and are not subject to examination by the other side.
After pleadings are filed, the litigation moves into the discovery phase. Discovery is a process in
which each side finds out information about the other’s case. Let’s assume, for example, that you buy
a new car and within a few weeks, a tire falls off suddenly while you’re driving. You would rightly
conclude that there’s something wrong with the car, so you sue the manufacturer. At this point, you
have no idea what’s wrong with the vehicle. Was the design flawed? Was there something wrong with
the manufacturing of your specific vehicle? All you know is that new cars should not experience this
sort of failure. After you file a lawsuit against the manufacturer, discovery allows you to find out
more information about the vehicle so that you can effectively proceed with the lawsuit. You could
find out what engineers did when they designed the vehicle and review records of similar accidents
or factory records from the day your vehicle was produced.
Discovery is designed to prevent trial by surprise, where either side may suddenly produce a
damning piece of evidence that allows it to win the trial. Since trials are based on the discovery of
truth, they should be tried on the merits of the case rather than a party’s deceit. In that spirit, the
rules of discovery are written broadly to cover scope and obligation. In scope, any piece of evidence
that may be relevant to the trial is discoverable. Even if evidence may be ruled later to be
inadmissible for a legal reason, it is discoverable during discovery. In obligation, both parties are
obligated to turn over material that supports their own case, without demand from the other side. If
the material harms their own case, they have to turn it over if the other side asks for it.
There are four types of discovery. The simplest (and least expensive) is aninterrogatory. These are
written questions addressed to the other party. The questions tend to be simple and straightforward,
dealing with uncontroversial matters such as a company’s structure or the names and addresses of
relevant witnesses.

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A second type is a request for production. Using this form of deposition, a party can request the other
party to produce written communications such as internal company reports, e-mails, product
manuals, and engineering specifications. In some cases physical evidence may also be produced. If
you sued a vehicle manufacturer because your tire fell off while driving, for example, the
manufacturer may ask you to produce your vehicle so that its engineers can inspect it. Failure to
preserve and produce key evidence in litigation can lead to charges of spoliation, which may result in
severe sanctions against the offending party.
A third form of discovery is a request for admission. Remember that a complaint contains a series of
claims the plaintiff is making against the defendant, and the answer is mainly a series of denials of
those claims. As each party finds more information about the other’s case in discovery, one party
may ask the other to admit that one of the contested claims is true. Doing so narrows the issues for
trial because it is one less thing that the jury has to decide. Asking a party to give up a contested
claim can be done at any time during litigation. If not done as a formal method of discovery, it may
be done as a stipulation instead. For example, in your trial against the vehicle manufacturer, you may
ask the manufacturer to admit that your specific vehicle was manufactured on a specific date at a
specific factory.
Finally, discovery can take the form of a deposition. A deposition is a sworn oral statement, in
response to questions, given by a potential witness in a trial to the attorneys in the case. A deposition
hearing is attended by the witness being deposed and lawyers from both side, as well as a court
reporter who keeps a written transcript of the entire deposition. In your product liability suit against
your vehicle’s manufacturer, for example, you might want to depose the safety engineer who
designed the car’s tire and braking systems. There is no judge present, so there is great latitude for
parties to ask questions, even if those questions may result in testimony that is later inadmissible in
court. Depositions serve to allow attorneys to prepare for trial by knowing everything a witness may
say in court. They also serve to pin down a witness’s testimony, since a witness who changes
testimony between a deposition and trial can be easily impeached. Depositions are easily the most
expensive form of discovery, sometimes requiring weeks or months of advance planning, travel, extra

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costs, and lost work time from witnesses being deposed. In some cases they can degenerate without
the presence of a judge, as Note 3.72 "Video Clip: A Deposition Goes Awry" shows.

Video Clip: A Deposition Goes Awry
Although the policy behind liberal rules of discovery is to permit both sides to prepare adequately for
trial, in effect discovery is an expensive phase of litigation. With most lawyers charging by the hour,
responding to discovery requests can quickly rack up daunting legal bills. Discovery can also drag out
litigation to many months or years. Most large corporations find they must dedicate entire in-house
staffs of attorneys, paralegals, and support staff to respond exclusively to discovery requests. The
judge assigned to the case is supposed to supervise discovery and ensure that the parties respond in a
timely manner, as well as make rulings on specific discovery requests and objections. Theoretically, a
judge has the power to sanction parties for abusive discovery, up to and including ordering a default
judgment against the offending party. There are, however, few meaningful sanctions that can be
levied against parties that abuse discovery, and plaintiffs in particular have a vested interest in
making discovery last longer than the price of a sought-after settlement. These issues are magnified
in e-discovery, when mountains of electronic data have to be sifted through to find relevant
discoverable material. Objections to turning over material that may be proprietary, privileged, or the
result of thework product doctrine also become more time consuming when parties are engaged in ediscovery.
During or after discovery, parties typically make a motion forsummary judgment. This motion is
designed to cut the trial short by asking the judge to decide based on the information discovered so
far in the case. In essence, the party making the motion is saying, “Why have a trial?” since the
evidence would lead any reasonable jury to the same and inevitable conclusion.

KEY TAKEAWAYS
Litigation commences with the filing of a complaint by the plaintiff. If the plaintiff wishes to represent
many others with the same claim against the same defendants, the plaintiff may try to certify the lawsuit
as a class-action suit. Frivolous cases are prohibited in litigation, but it is relatively easy to argue that a
case is not frivolous. The defendant files an answer to the complaint or risks a default judgment. Most civil

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and criminal cases must be brought within the prescribed statute of limitations. During the discovery
phase of litigation, parties share and exchange information about each other’s cases so that neither side is
surprised during the trial. There are four methods for conducting discovery: interrogatories, requests for
production, requests for admissions, and depositions.

EXERCISES
1.

During the Catholic priest sex scandal, many potential plaintiffs who were abused as children found that
their lawsuits against the church and individual priests were barred by the statute of limitations because
the abuse happened so many years ago. Do you believe that these lawsuits were rightfully barred? Why or
why not? Should the statute be changed in sexual misconduct cases?

2.

Do you think there are too many frivolous cases filed? If you answered yes, how would you revise the
federal rules of civil procedure to raise the standard on what constitutes a frivolous case?

3.

Look at a sample interrogatory at http://www.justice.gov/atr/foia/frito-lay/8-16-96.htm. This
interrogatory was issued by the U.S. Department of Justice in an antitrust investigation against Frito-Lay
for possible violations of the Sherman Antitrust Act. What do you notice about the questions? How long
do you think it would take to compile a response to these questions? If you were the defendant, would
you object to any of them? If so, on what grounds?

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3.4 The Trial and Appeal
LEARNING OBJECTIVES
1.

Learn about jury selection.

2.

Follow a trial from opening statement to closing arguments.

3.

Explore the public policy rationale for the trial system.

After discovery is finally completed, and assuming that neither side has been successful in shortcircuiting litigation through motions, the case is finally scheduled for a trial. In civil litigation, this is
a most unusual development, for well over 90 percent of cases filed are resolved or settled before a
trial. If a case actually goes to trial, it means there are genuine issues of fact that the parties cannot
resolve, and both sides are determined to see their side win. Remember that a trial is a fact-finding
process, through which the trier of fact (the jury in most cases or the judge in a bench trial) attempts
to determine what happened. The trier of fact applies the facts to applicable law as instructed by the
judge and determines guilt or innocence in a criminal case, or liability or no liability in a civil case.
The first step in this process is to seat a jury.
At any given day in a courthouse, several citizens may be called by a judge as potential jurors in a
case. If a jury needs twelve members, it’s not unusual for a judge to begin with a pool of more than
fifty or sixty potential jurors to narrow down to a dozen. The process of selecting a petit jury is
called voir dire.
Voir dire typically begins with the jurors filling out a written questionnaire. The questionnaire asks
the jurors to identify their occupation, any work or occupational conflicts, and any potential conflicts
of interest with the case. The process then continues with attorneys quizzing each potential juror in
turn. During this questioning, attorneys ask each juror if he or she has any biases against upholding
the law and whether he or she can keep an open mind during the trial.
If an attorney does not like a juror’s response, that juror may be excused. There are two types of
challenges to a potential juror: peremptory or for cause. A party can make a for cause challenge if it
can demonstrate to the judge that there is a good reason to excuse the juror, such as the juror’s

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personal relationship with one of the parties, or the juror’s stated unwillingness to be unbiased. Since
these excuses are for a good reason, each side is allowed an unlimited number of for cause
challenges. A party can also make aperemptory challenge against a juror, without giving any reason
for the challenge. Since these challenges are unsupported by rationale or reason, each side is given a
limited number of peremptory challenges. A party may make a peremptory challenge based on a
juror’s perceived bias because of that juror’s occupation or life background but may not make a
peremptory challenge because of the juror’s race [1] or gender.
After a jury has been selected and sworn in, the trial begins. The plaintiff or prosecution begins by
delivering an opening statement. The opening statement is a preview of the trial. In it, the attorneys
explain the facts of the case to the jury and indicate what witnesses they will be calling and what the
witnesses will say. Attorneys do not make any arguments during the opening statement; they simply
lay out what jurors can expect from the trial ahead. In a trial against your vehicle’s manufacturer,
your attorney may begin by telling the jury to expect testimony from you about your car accident,
from your doctor about the injuries you suffered, and perhaps from an expert witness who has
examined your vehicle and believes it was manufactured defectively. Once the plaintiff has delivered
an opening statement, the defendant will deliver the defense opening statement. In a criminal case,
the defense has the right to reserve delivering the opening statement until after the prosecution has
rested its case (concluded presenting all the witnesses).
After opening statements, the trial moves into the examination phase. Jurors are presented with
witnesses, called by each side, to give evidence. The plaintiff begins by calling its witnesses. The
attorney will guide the witness in delivering testimony by a series of short open-ended questions
during thedirect examination. Leading questions (questions that call for a yes or no answer) are not
permitted during direct examination. As the questioning proceeds, a court reporter maintains a
record of all the words spoken in case there is an appeal. The opposing side may raise objections
during the examination, which the judge will rule on. These rulings can also form the basis for a later
appeal.

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All the evidence in a trial must be introduced in this manner (questioning a live witness). If one side
wants to introduce videotape into evidence, for example, it has to call the person who took the
footage or was in charge of running the camera to testify about his or her personal knowledge of
where the camera footage came from before the jury can watch the video. In a criminal case, if the
prosecution wants to introduce the murder weapon into evidence, it must first call the detective or
police officer who found the weapon to testify about where he or she found it and where it has been
since then.

Hyperlink: O. J. Simpson Tries on Gloves
http://video.google.com/videoplay?docid=-7472594685651342793#
O. J. Simpson’s criminal murder trial was probably the most-watched courtroom proceeding in history.
During the trial, the prosecution sought to introduce a pair of gloves into evidence. The prosecution
claimed the gloves contained blood from the victims. In this scene, the defendant, O. J. Simpson, is asked
to try on the gloves so that the jury can see for themselves whether or not the gloves might belong to him.
The fact that the gloves appear too small for his hands later becomes fertile ground for the defense
attorneys to argue that reasonable doubt exists as to his guilt.

After direct examination, the other side has the right to conduct a cross-examination. During the
cross-examination, the attorney will try to discredit the witness to convince the jury that the witness
is not credible. The attorney may probe into any potential biases the witness may have or try to prove
that the witness’s recollection of events may not be as clear or certain as the witness believes. During
cross-examination, attorneys frequently engage in asking leading questions, which is permitted.
Once the prosecution or plaintiff has called all its witnesses, and the witnesses have undergone direct
and cross-examination, then the prosecution or plaintiff will rest its case. The defendant may make a
motion for a directed verdict, arguing that no reasonable juror could possibly find in favor of the
prosecution or plaintiff after hearing the evidence presented so far. This motion can be made
anytime during the trial before the jury returns a verdict. The motion is typically denied, and the trial

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moves on to the defense phase. The defense will then present its witnesses, who are led through
direct and cross-examination.
After the defense has rested its case, the attorneys once again address the jury in closing arguments.
Here, the attorneys summarize the case for the jury. They address what witnesses were called and
what the witnesses said. During closing arguments, the attorneys are permitted to be much more
persuasive and argumentative than during the opening statement. They appeal to the jury’s emotions
and argue how the jury should interpret the evidence before them.

Video Clip: Johnnie Cochran Delivers Closing Arguments
After closing arguments are made, the judge in the case charges the jury by giving the jury its
instructions. The instructions acquaint the jury with the relevant law. The jury then retires to
deliberate. During deliberations, the jury will decide first what facts it believes to be true. Then it will
apply those facts to the law as outlined in the jury instructions. In a trial against your vehicle’s
manufacturer, for example, the judge may explain to the jury what is legally required for a product to
be considered defective so that the jury can make a determination, based on the evidence presented,
whether or not there is any liability.
Central to the jury’s deliberations is the burden of proof applicable to the case. In criminal trials, the
prosecution always carries the burden of proof. That burden is to prove the defendant committed all
the elements required in the crime beyond a reasonable doubt. If any member of the jury has any
reasonable doubts about the defendant’s guilt or innocence, then the only appropriate verdict is not
guilty. Many people confuse the burden with “without a doubt.” Jurors may have doubts, but the only
question for the jurors is whether they have any reasonable doubts. This standard is deliberately set
high because of the severe sanctions and penalties that follow a criminal conviction. In a criminal
trial, the defense only has to prove reasonable doubt exists and has no burden of proof at all. That is
why in criminal trials, the defense may strategically decide to not call any witnesses and to rest its
case strictly on creating doubt by cross-examining the prosecution’s witnesses.

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In civil cases the burden of proof is preponderance of the evidence. This standard requires the scales
of justice to tilt ever so slightly toward one party to declare that party the winner. If the jury believes
one side is 51 percent correct and the other is 49 percent correct, that is enough to declare a winner.
It is a much easier standard to win, because it only requires a party to prove that its side is more
likely than not telling the truth. In a civil liability suit against your vehicle’s manufacturer, your
burden is to convince the jury that more likely than not, your vehicle was somehow defective.
Sometimes it’s possible for a jury in a criminal trial to find the defendant not guilty, while a separate
jury in a civil case applying a lower burden of proof finds the defendant liable for the same act. This
is what happened to O. J. Simpson when he was tried for the murder of his wife.
During jury deliberations, the jurors are permitted to ask the judge for clarification about the law and
to request to see the evidence again. If the jury is unable to come to a verdict, the jury is said to be
deadlocked, and a mistrial results. Since trials are expensive and time consuming, the judge will
usually instruct the jury to try its best before giving up. If the jury does arrive at a decision, it is called
a verdict.
Once the jury delivers its verdict, the losing side typically makes a motion
forjudgment notwithstanding the verdict. In this motion, the party is arguing that the jury arrived at
the wrong verdict and that no reasonable jury could have arrived at that verdict. The judge typically
will not grant this verdict. Even if the judge believes that the jury arrived at the wrong factual
conclusion, the judge is not permitted to substitute his or her judgment for that of the jury. If,
however, the jury clearly ignored the law in arriving at its verdict in a criminal case, the judge may
overrule the jury. This phenomenon is known as jury nullification.
If the judge denies the motion for judgment notwithstanding the verdict, then the judge enters the
jury’s verdict as a judgment. After that, the losing party has the right to file an appeal. Remember that
on appeal, the appellate court is only reviewing the record for legal error and cannot call new
witnesses or substitute its judgment on the facts for the jury’s. In the following excerpt, Supreme
Court Justice Ruth Bader Ginsburg uses the trial record to make a point in her dissenting opinion in
an important employment discrimination case involving gender discrimination. Although hers was a

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dissenting opinion and the plaintiff lost her case, Congress reacted to the decision by passing the Lily
Ledbetter Fair Pay Act, the first law signed by President Obama after he assumed office.

Hyperlink: Justice Ginsburg Reviews an Employment Discrimination Case
http://www.law.cornell.edu/supct/html/05-1074.ZD.html
From 1979 to 1998, Lilly Ledbetter worked as a supervisor at Goodyear’s plant in Gadsden, Alabama. Over
the course of her career, her pay slipped when compared to the pay of men of equal experience and
seniority. She sued the company, alleging pay discrimination on the basis of her gender under Title VII of
the 1964 Civil Rights Act. The law states that any lawsuit must be initiated within 180 days of the unlawful
discriminatory act occurring. Ledbetter argued that each paycheck she received was an unlawful
discriminatory act, so the fact that she filed her lawsuit within 180 days of her last paycheck means her
lawsuit is within the time limit. Goodyear argued that the discriminatory act was the decision to pay her
less, which took place many years ago and that therefore her lawsuit is too late. In a 5–4 decision, the
Supreme Court ruled in Goodyear’s favor. In her dissent, Justice Ginsburg returns to the trial record to
make her point that Ledbetter is the victim of unlawful discrimination. The following is from the
dissenting opinion:
Specifically, Ledbetter’s evidence demonstrated that her current pay was discriminatorily low
due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women
managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example,
admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below
Goodyear’s minimum threshold for her position. Although Goodyear claimed the pay disparity
was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top
Performance Award” in 1996. The jury also heard testimony that another supervisor—who
evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was
openly biased against women. And two women who had previously worked as managers at the
plant told the jury they had been subject to pervasive discrimination and were paid less than their
male counterparts. One was paid less than the men she supervised. Ledbetter herself testified
about the discriminatory animus conveyed to her by plant officials. Toward the end of her career,

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for instance, the plant manager told Ledbetter that the “plant did not need women, that [women]
didn’t help it, [and] caused problems.” After weighing all the evidence, the jury found for
Ledbetter, concluding that the pay disparity was due to intentional discrimination.

Once all appeals are exhausted, the winner in litigation can finally collect whatever damages it is
entitled to. This process is called execution. If the loser is unable or unwilling to pay the judgment,
the winner can petition the court to use its full legal resources, including asking the sheriff to seize
the loser’s assets for sale, to satisfy the judgment. The winner can also ask that the loser’s wages
be garnished until the judgment is satisfied. The loser in litigation cannot refile a civil lawsuit once it
has been decided under the doctrine of res judicata. Just like criminal cases cannot be retried after
acquittal under the double jeopardy clause of the Constitution, res judicata operates as a bar to
relitigation.

KEY TAKEAWAYS
The process of selecting a jury is called voir dire. Each side is permitted to question a potential juror and
excuse that juror for any reason through a peremptory challenge or for a good reason through a for cause
challenge. A trial begins with opening statements where the parties lay out the essential facts of their
case. Next, witnesses are called to provide testimonial evidence. The side calling the witness conducts a
direct examination, while the opposing side conducts a cross-examination. After all witnesses are called,
the parties make closing arguments to the jury, which then deliberates and applies the law as outlined in
the jury instructions. The burden of proof in a criminal case is “beyond a reasonable doubt,” while the
burden of proof in a civil case is “preponderance of evidence.” A jury’s verdict must be converted into a
legal judgment by the trial judge. Once all appeals are settled, res judicata prevents the case from being
tried again.

EXERCISES
1.

Why would a jury engage in jury nullification? If a jury cannot engage in nullification, what are its
alternatives to express a similar view?

2.

One of President Obama’s first acts as president was to sign into law a statute aimed at overturning the
Ledbetter decision. How can Congress overturn the Supreme Court in this instance?

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3.

Although litigation is rightfully criticized as slow and expensive, res judicata means the parties have only
one chance to “get it right.” Do you think relaxing the rules of res judicata would help with the expense
and time involved in litigating cases?

[1] Batson v. Kentucky, 476 U.S. 79 (1986).

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3.5 Concluding Thoughts
The litigation system, publicly financed, is an important dispute-resolution mechanism that
processes millions of cases in both state and federal courts every year. The system permits parties to
air their grievances against each other in an open and transparent manner and is typically very
effective at finding the truth. The jury system, in particular, is largely admired for its ability to
involve ordinary citizens in an important form of civil service. For many businesses, however,
litigation can be a vexing and distracting problem. The extraordinarily high costs associated with
complex litigation, along with pressure from stakeholders to settle cases rather than litigate them
fully, means that most businesses would prefer to avoid litigation whenever possible. These problems
have led many courts to experiment with various levels of reform, from mandatory pretrial
settlement attempts to mandatory mediation to jury selection and management reforms. These
reforms are aimed at maintaining the vitality and usefulness of the litigation system, which can be a
trusted and valuable resource for all citizens and corporations.

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Chapter 4

Alternative Dispute Resolution
LEARNING OBJECTIVES
After reading this chapter, you should understand alternative dispute resolution (ADR) options, including
the benefits and drawbacks to different methods of dispute resolution. You will know the legal basis for
mandatory arbitration, as well as why parties enter into voluntary ADR methods. You will understand
current debates regarding the fairness of ADR. Additionally, you should be able to answer the following
questions:
1.

What are the benefits and drawbacks of ADR as compared to litigation?

2.

What legal basis supports the use of ADR rather than litigation?

3.

What unique challenges exist in ADR efforts among B2B (business to business), B2C (business to
consumer), and B2E (business to employees)?

4.

What are the ethical implications of ADR between parties that are unequal in power?

Imagine that you’ve been wronged by a supplier, by your employer, or by a business where you are a
customer. You’ve correctly determined that you have an actionable legal claim. What are you going to
do? You probably won’t run to the courthouse to file a formal complaint to initiate litigation. This is
because litigation is very expensive and time consuming. Besides, you may wish to continue doing
business with the supplier, employer, or business. Perhaps the matter is of a private nature, and you
do not want to engage in a public process to determine the outcome. You would like the dispute to be
resolved, but you do not want to engage in public, time-consuming, expensive litigation to do it.
A common method of dispute resolution that avoids many of the challenges associated with litigation
is alternative dispute resolution. Alternative dispute resolution (ADR) is a term that encompasses
many different methods of dispute resolution other than litigation. ADR involves resolving disputes
outside of the judicial process, though the judiciary can require parties to participate in specific types
of ADR, such as arbitration, for some types of conflicts. Moreover, some ADR methods vest power to
resolve the dispute in a neutral party, while other strategies vest that power in the parties

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themselves. See Figure 4.1 "A Continuum of Different ADR Methods" for a continuum of different
ADR methods based on where power to solve the dispute is vested.
Figure 4.1 A Continuum of Different ADR Methods

Source: Adapted from New York State Unified Court System
,http://www.nycourts.gov/ip/adr/images/continuum2.jpg.
Common methods of ADR include negotiation, mediation, and arbitration. Lesser used methods of
ADR include minitrials, hybrid forms of mediation-arbitration (with elements of both), and
collaborative goal-oriented processes. ADR is often used to resolve disputes among businesses,
employers and employees, and businesses and consumers. ADR can also be used in many other types
of conflicts. For instance, ADR strategies can be used in domestic law cases, such as divorce, or in
international legal issues, such as issues relating to transboundary pollution. This chapter limits its
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focus to the use of ADR methods in business. Particularly, we will examine the common methods of
ADR, including the benefits and drawbacks to each. We will also examine potential consequences to
parties that have unequal bargaining power. Additionally, we will examine the use of ADR methods
in situations where ADR may not be the most appropriate method of dispute resolution, such as civil
rights violations.
ADR methods are used outside of the courtroom, but that does not mean that they are outside of the
interests of our legal system. Participation in ADR has important legal consequences. For instance,
parties that have agreed by contract to be subject to binding arbitration give up their constitutional
right to bring their complaint to court. The Federal Arbitration Act (FAA) is a federal statute under
which parties are required to participate in arbitration when they have agreed by contract to do so,
even in state court matters. Indeed, the FAA is a national policy favoring
arbitration. [1] The Southland Corp. Court said that “in enacting…[the FAA], Congress declared a
national policy favoring arbitration and withdrew the power of the states to require a judicial forum
for the resolution of claims which the contracting parties agreed to resolve by arbitration.” This is an
example of federal preemption exercised through the Supremacy Clause in the U.S. Constitution.
There is a very good chance that you will—or already have—signed a contract that contains a
mandatory arbitration clause. This means that if a dispute arises under that contract, then you will
be required to arbitrate your claim rather than going straight to court. Under a binding arbitration
clause, you will have waived your constitutional rights to go to court. Even if you have never signed
such a contract and never will, there is still a good likelihood that you will be involved in a
commercial dispute at some point in your life. Because of this, it’s important to understand the ADR
process, situations in which litigation is a better choice than ADR, and special issues that arise when
parties have unequal bargaining power.

Key Takeaways
Alternative dispute resolution (ADR) is a body of dispute-resolution methods outside of the litigation
process. ADR is often faster, less expensive, and more private than litigation. For this reason, ADR can be
the preferred dispute-resolution method, particularly when an ongoing relationship between disputants is

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desired. However, some types of disputes might be best resolved through litigation, such as in cases where
parties have unequal power or resources or in civil rights violations. Common methods of dispute
resolution are negotiation, mediation, and arbitration. Mandatory arbitration clauses are common in
contracts, and such clauses are enforceable against the parties even if they wish to litigate their claims.

[1] Southland Corp. v. Keating, 465 U.S. 1 (1984).

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4.1 Negotiation
LEARNING OBJECTIVES
1.

Understand the role of negotiation in avoiding and settling disputes.

2.

Explore negotiation as it is commonly employed in business.

3.

Understand the implications of bargaining power during negotiation.

4.

Become familiar with the benefits and drawbacks of negotiation as a form of alternative dispute
resolution (ADR).

Imagine that you are a tent manufacturer. Your supplier of tent fabric routinely supplies you with
appropriate water-resistant fabric to construct your tents, so that you can produce your products and
bring them to market. After many years of a good working relationship, your fabric supplier
delivered nonconforming goods. Specifically, the fabric delivered was not water-resistant, despite
your need for water-resistant fabric to produce your tents. However, on your notifying the supplier of
the problem, the supplier denied that the fabric was nonconforming to your order. You refused to
pay for the goods. The fabric supplier insisted on payment before future delivery of any additional
fabric. Without water-resistant fabric, you cannot continue to produce your tents.
This is an example of a business to business (B2B) dispute. Despite the problem, you will likely wish
to continue working with this supplier, since you have a good, long-standing relationship with it.
This problem seems to be a “hiccup” in your regular business relationship. Accordingly, you will
probably want to resolve this dispute quickly and without hard feelings. It is very unlikely that you
will immediately hire an attorney to file a formal complaint against your supplier. However, that
does not change the fact that there is a dispute that needs to be resolved.
One of the first strategies that you and your supplier are likely to employ is negotiation. Negotiation is
a method of alternative dispute resolution (ADR) that retains power to resolve the dispute to the
parties involved. No outside party is vested with authoritative decision-making power concerning the
resolution of the dispute. Negotiation requires the parties to define the conflicts and agree to an
outcome to resolve those conflicts. Often, this can take the form of a compromise. Note that a
compromise does not mean that anyone “loses.” Indeed, if both parties are satisfied with the result of
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the negotiation and the business relationship can continue moving forward, then both parties will be
very likely to consider this as a “winning” situation.
Benefits to negotiation as a method of ADR include its potential for a speedy resolution, the
inexpensive nature of participation, and the fact that parties participate voluntarily. Drawbacks
include the fact that there are no set rules, and either party may bargain badly or even unethically, if
they choose to do so. In a negotiation, there is no neutral party charged with ensuring that rules are
followed, that the negotiation strategy is fair, or that the overall outcome is sound. Moreover, any
party can walk away whenever it wishes. There is no guarantee of resolution through this method.
The result may not be “win-win” or “win-lose,” but no resolution at all. Also, generally speaking,
attorneys are not involved in many negotiations. This last point may be seen as a drawback or a
benefit, depending on the circumstances of the negotiation.
Though our example involves B2B, the parties may or may not have equalbargaining power. If your
business and your supplier are both dependent on each other for roughly equal portions of the
respective businesses, then they are most likely relatively equal with respect to bargaining power.
However, in our example, if your business is a very small business but your supplier is a very large
business—perhaps with a patent protecting the rights to the specialty fabric that you need—then we
might say that the B2B negotiation is potentially unbalanced, since one party has a much more
powerful bargaining position than the other. Specifically, your business needs that particular type of
fabric, which is only available from one supplier. But your supplier does not need your business
because it has a legal monopoly in the form of a patent for its product, and it probably sells to many
manufacturers. This would be an example ofunequal bargaining power.
When the negotiation occurs as a result of a dispute, but not a legal dispute per se, then the party
with the weakest bargaining position may be in a very vulnerable spot. This is illustrated in Note 4.13
"Hyperlink: Rubbermaid’s Unequal Bargaining Power". When Rubbermaid’s raw materials price for
resin increased, it needed to raise its prices. However, Wal-Mart refused to accept the necessary
price increase for Rubbermaid products. This refusal had a substantial negative impact on

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Rubbermaid’s business, since Wal-Mart was its main customer. In short, Rubbermaid needed WalMart, but Wal-Mart did not need Rubbermaid.

Hyperlink: Rubbermaid’s Unequal Bargaining Power
A Question of Ethics
http://www.pbs.org/wgbh/pages/frontline/video/flv/generic.html?s=frol02s48aq71&continuous=1
Watch “Muscling Manufacturers,” a clip from Is Wal-Mart Good for America? to see how unequal
bargaining power can affect the least powerful party in a negotiation.
As economist Brink Lindsey from the Cato Institute commented, “We’ve definitely seen a shift in the
balance of bargaining power between manufacturers and retailers…Back in the old days, manufacturing
was a high-productivity endeavor; retailing and distribution was fairly low-productivity…And so
manufacturers called the shots.”

[1]

That doesn’t appear to be the case anymore.

Negotiation is a skill often developed by people who are charged with settling existing disputes or
with creating new agreements. Since we are focusing on dispute resolution in this chapter, we will
limit our discussion to the resolution of disputes rather than the negotiation of new contract terms,
but keep in mind that these activities essentially draw on the same skills.
In Getting to Yes, written by members of the Harvard Program on Negotiation, the goal of negotiation
is viewed as “win-win.” [2] Note that this is a substantially different goal from litigation. Our
adversarial legal system requires one party to “win” and the other party to “lose.” Getting to
Yes focuses on principled negotiation, and it sets forth specific steps and discusses strategies to allow

participants to achieve the “win-win” goal. This book’s popularity perhaps suggests that people have
a real interest in learning about ADR, avoiding litigation, and ensuring that all parties leave the
resolution process as “winners.” Some concepts common in negotiation include the BATNA,
WATNA, and the bargaining zone. For example, the authors of Getting to Yes encourage negotiators
to know their best alternative to a negotiated agreement (BATNA). This ensures that unfavorable
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terms will not be accepted and terms consistent with a negotiator’s interests won’t be
rejected. [3] Likewise, the worst alternative to a negotiated agreement (WATNA) is a concept used by
some negotiators prior to entering negotiations. The bargaining zone is the area in which parties to a
negotiation are willing to trade, barter, or negotiate their positions, within which parties can find an
acceptable agreement. If you think of a Venn diagram, the bargaining zone would be where the two
ovals overlap. Thereservation point is essentially a party’s “bottom line,” beyond which it will not
agree to terms.
Let’s go back to our example. Imagine that after negotiating with your fabric supplier, the following
facts emerged: The fabric supplier believed that it sent the correct fabric to you, because one of your
new employees inadvertently ordered the wrong fabric. You reviewed your business records and
determined that this allegation was true. This sounds like a misunderstanding that would be easy to
clear up in negotiation, doesn’t it? Imagine the embarrassment and hard feelings that would have
been caused by immediately filing a formal complaint in court, not to mention the great expense that
both parties would have incurred. Through negotiation, chances are very good that this
misunderstanding will be resolved in a win-win outcome and that you will be able to continue your
working relationship with your supplier.

KEY TAKEAWAYS
Negotiation is a method of alternative dispute resolution (ADR) in which the parties retain power to decide
on a resolution of the issue themselves, without relying on a neutral decision maker. Negotiation is also
used between parties entering into agreements, when there is no legal dispute. Negotiation is often the
first method of dispute resolution attempted, because it is inexpensive and relatively fast. Additionally,
parties that wish to continue working together in the future often employ negotiation as a friendly
method to resolve disputes. Negotiation between parties with unequal bargaining power can result in the
stronger party being heavy-handed at the negotiation table, which can result in unfair outcomes for the
weaker party. Since negotiation does not follow an externally imposed set of rules, parties may negotiate
as their conscience dictates. However, negotiation is often considered a dispute-resolution option that can
result in a win-win situation for all parties, as illustrated by the popular book Getting to Yes, in which
negotiation strategies are set forth in detail.

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EXERCISES
1.

Visit http://www.sfhgroup.com/ca/training/online-training/test-your-skills.php and click “Negotiate with
Bill” under “Online Negotiation Course.” This is a free interactive negotiation exercise. After completing
the negotiation, answer the following questions: How far did you get? (If you did not get to level three, go
back and try it again. See if you can get all the way through to level three.) What negotiation strategies did
you learn? In other words, what works? What doesn’t work?

2.

What are the benefits of negotiation as a dispute-resolution method? What are the drawbacks?

3.

How can parties that have unequal bargaining power negotiate meaningfully, without one party taking
advantage of the other? Have you ever negotiated with someone who had more bargaining power than
you? What were your strategies during the negotiation? Did you obtain your goal by the conclusion of the
negotiation?

4.

Watch the video in Note 4.13 "Hyperlink: Rubbermaid’s Unequal Bargaining Power". If you were a
manufacturer and you had to raise prices due to an increase in price for your raw materials, and if WalMart was your most important customer, what strategies would you employ so that both parties would
have a chance to have a “win-win” outcome?

[1] Hedrick Smith, “Who Calls the Shots in the Global Economy?” PBS, November 16,
2004,http://www.pbs.org/wgbh/pages/frontline/shows/walmart/secrets/shots.html (accessed on August 23,
2010).
[2] Roger Fisher, William Ury, and Bruce Patton, Getting to Yes (New York: Penguin Books, 1991).
[3] Roger Fisher, William Ury, and Bruce Patton, Getting to Yes (New York: Penguin Books, 1991), 100.

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4.2 Mediation
LEARNING OBJECTIVES
1.

Learn what mediation is.

2.

Explore the process of mediation as an alternative dispute resolution (ADR) strategy.

3.

Identify disputes suitable to mediation as a form of ADR.

4.

Become familiar with the benefits and drawbacks of mediation as a form of ADR.

Mediation is a method of ADR in which parties work to form a mutually acceptable agreement. Like

negotiation, parties in mediation do not vest authority to decide the dispute in a neutral third party.
Instead, this authority remains with the parties themselves, who are free to terminate mediation if
they believe it is not working. Often, when parties terminate mediation, they pursue another form of
ADR, such as arbitration, or they choose to litigate their claims in court. Mediation is appropriate
only for parties who are willing to participate in the process. Like negotiation, mediation seeks a
“win-win” outcome for the parties involved. Additionally, mediation is confidential, which can be an
attractive attribute for people who wish to avoid the public nature of litigation. The mediation
process is usually much faster than litigation, and the associated costs can be substantially less
expensive than litigation.
Unlike in many negotiations, a third party is involved in mediation. Indeed, a neutral mediator is
crucial to the mediation process. Mediators act as a go-between for the parties, seeking to facilitate
the agreement. Requirements to be a mediator vary by state. See Note 4.23 "Hyperlink:
Mediators" to compare the requirements between states. There are no uniform licensing
requirements, but some states require specific training or qualifications for a person to be certified as
a mediator. Mediators do not provide advice on the subject matter of the dispute. In fact, the
mediators may not possess any subject-matter expertise concerning the nature of the dispute.
However, many mediators are trained in conflict resolution, and this allows them to employ methods
to discover common goals or objectives, set aside issues that are not relevant, and facilitate an
agreement into which the parties will voluntarily enter. Mediators try to find common ground by

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identifying common goals or objectives and by asking parties to set aside the sometimes emotionally
laden obstacles that are not relevant to the sought-after agreement itself.

Hyperlink: Mediators
http://www.mediationworks.com/medcert3/staterequirements.htm
Visit this site to see the various requirements and qualifications to become a mediator in the different
states.

Disputants choose their mediator. This choice is often made based on the mediator’s reputation as a
skilled conflict resolution expert, professional background, training, experience, cost, and
availability. After a mediator is chosen, the parties prepare for mediation. For instance, prior to the
mediation process, the mediator typically asks the parties to sign a mediation agreement. This
agreement may embody the parties’ commitments to proceed in good faith, understanding of the
voluntary nature of the process, commitments to confidentiality, and recognition of the mediator’s
role of neutrality rather than one of legal counsel. At the outset, the mediator typically explains the
process that the mediation will observe. The parties then proceed according to that plan, which may
include opening statements, face-to-face communication, or indirect communication through the
mediator. The mediator may suggest options for resolution and, depending on his or her skill, may
be able to suggest alternatives not previously considered by the disputants.
Mediation is often an option for parties who cannot negotiate with each other but who could reach a
mutually beneficial or mutually acceptable resolution with the assistance of a neutral party to help
sort out the issues to find a resolution that achieves the parties’ objectives. Sometimes parties in
mediation retain attorneys, but this is not required. If parties do retain counsel, their costs for
participating in the mediation will obviously increase.
In business, mediation is often the method of ADR used in disputes between employers and
employees about topics such as workplace conditions, wrongful discharge, or advancement
grievances. Mediation is used in disputes between businesses, such as in contract disputes.

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Mediation is also used for disputes arising between businesses and consumers, such as in medical
malpractice cases or health care disputes.
Like other forms of dispute resolution, mediation has benefits and drawbacks. Benefits are many.
They include the relative expediency of reaching a resolution, the reduced costs as compared to
litigation, the ability for parties that are unable to communicate with each other to resolve their
dispute using a nonadversarial process, the imposition of rules on the process by the mediator to
keep parties “within bounds” of the process, confidentiality, and the voluntary nature of
participation. Of course, the potential for a “win-win” outcome is a benefit. Attorneys may or may not
be involved, and this can be viewed as either a benefit or a drawback, depending on the
circumstances.
Drawbacks to mediation also exist. For example, if disputants are not willing to participate in the
mediation process, the mediation will not work. This is because mediation requires voluntary
participation between willing parties to reach a mutually agreeable resolution. Additionally, even
after considerable effort by the parties in dispute, the mediation may fail. This means that the
resolution of the problem may have to be postponed until another form of ADR is used, or until the
parties litigate their case in court. Since mediators are individuals, they have different levels of
expertise in conflict resolution, and they possess different backgrounds and worldviews that might
influence the manner in which they conduct mediation. Parties may be satisfied with one mediator
but not satisfied in subsequent mediations with a different mediator. Even if an agreement is
reached, the mediation itself is usually not binding. Parties can later become dissatisfied with the
agreement reached during mediation and choose to pursue the dispute through other ADR methods
or through litigation. For this reason, parties often enter into a legally binding contract that
embodies the terms of the resolution of the mediation immediately on conclusion of the successful
mediation. Therefore, the terms of the mediation can become binding if they are reduced to such a
contract, and some parties may find this to be disadvantageous to their interests. Of course, any
party that signs such an agreement would do so voluntarily. However, in some cases, if legal counsel
is not involved, parties may not fully understand the implications of the agreement that they are
signing.
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KEY TAKEAWAYS
Mediation is a method of ADR in which the parties retain power to decide the issue themselves without
vesting that power in an outside decision maker. However, mediation relies on neutral mediators who
facilitate the mediation process to assist the parties in achieving an acceptable, voluntary agreement.
Mediation is more formal than negotiation but less formal than arbitration or litigation. Mediation is
relatively inexpensive, fast, and confidential, unlike litigation. Though nonbinding mediation resolutions
are not binding on the parties, these resolution agreements may be incorporated into a legally binding
contract, which is binding on the parties who execute the contract. Mediation does not follow a uniform
set of rules, though mediators typically set forth rules that the mediation will observe at the outset of the
process. Successful mediation often reflects not only the parties’ willingness to participate but also the
mediator’s skill. There is no uniform set of rules for mediators to become licensed, and rules vary by state
regarding requirements for mediator certification.

EXERCISES
1.

Visit the link in Note 4.23 "Hyperlink: Mediators" and find your state’s requirements and qualifications for
mediators. What would it take for you to become a mediator in your state? Do you think that your state
requirements ensure that only qualified mediators practice? Why or why not?

2.

Identify a situation in which you would choose mediation as your preferred method of dispute resolution.
Why is mediation the best method in this situation? What are the potential benefits and drawbacks of
mediation in this situation?

3.

Should mediators be required to be licensed, like attorneys or physicians, before practicing? Why or why
not?

4.

Visit http://www.sfhgroup.com/ca/training/online-training/test-your-skills.php and scroll down to
Mediation game. Click on “play game” under “The Angry Neighbours.” This is a free interactive mediation
exercise. After completing the mediation, answer the following questions: Were you able to successfully
mediate this dispute? If you did not reach a successful resolution, go back and try it again. See if you can
reach a successful resolution. What mediation strategies did you learn? What works? What doesn’t work?

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4.3 Arbitration
LEARNING OBJECTIVES
1.

Explore the option of arbitration as an alternative dispute resolution (ADR) strategy.

2.

Explore contemporary issues of fairness in arbitration.

3.

Determine when arbitration is a viable option for dispute resolution.

4.

Examine the benefits and drawbacks of arbitration as a form of ADR.

Arbitration is a method of ADR in which parties vest authority in a third-party neutral decision

maker who will hear their case and issue a decision, which is called an arbitration award.
An arbitrator presides over arbitration proceedings. Arbitrators are neutral decision makers who are
often experts in the law and subject matter at issue in the dispute. Their decisions do not form
binding precedent. Arbitrators may be members of the judiciary, but in arbitrations they are not
judges. Arbitrators act in an analogous capacity to judges in trials. For instance, they determine
which evidence can be introduced, hear the parties’ cases, and issue decisions. They may be certified
by the state in which they arbitrate, and they may arbitrate only certain types of claims. For instance,
the Better Business Bureau trains its own arbitrators to hear common complaints between
businesses and consumers (B2C).
Participation in the arbitration proceeding is sometimes mandatory. Mandatory arbitration results
when disputes arise out of a legally binding contract involving commerce in which the parties agreed
to submit to mandatory arbitration. Arbitration is also mandatory when state law requires parties to
enter into mandatory arbitration.
Although perhaps not obvious, federal law lies at the heart of mandatory arbitration clauses in
contracts. Specifically, Congress enacted the Federal Arbitration Act (FAA) [1] through
its Commerce Clause powers. This act requires parties to engage in arbitration when those parties
have entered into legally binding contracts with a mandatory arbitration clause, providing the subject
of those contracts involves commerce. [2] In Southland Park v. Keating, the U.S. Supreme Court
interpreted this federal statute to apply to matters of both federal and state court jurisdiction.

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Indeed, the Court held that the FAA created a national policy in favor of arbitration. It also held that
the FAA preempts state power to create a judicial forum for disputes arising under contracts with
mandatory arbitration clauses. [3] In a later decision, the Court held that the FAA encompasses
transactions within the broadest permissible exercise of congressional power under the Commerce
Clause. [4]This means that the FAA requires mandatory arbitration clauses to be enforceable for
virtually any transaction involving interstate commerce, very broadly construed.
Some states require mandatory arbitration for certain types of disputes. For instance, in Oregon, the
state courts require mandatory arbitration for civil suits where the prayer for damages is less than
$50,000, excluding attorney fees and costs. [5] Many parties accept the arbitration award without
appeal. However, when state law requires mandatory arbitration of certain types of disputes, parties
are permitted to appeal because the arbitration is nonbinding. In nonbinding arbitration, the parties
may choose to resolve their dispute through litigation if the arbitration award is rejected by a party.
However, some states have statutory requirements that, in practice, create a chilling effect on
appealing an arbitration award. For example, in the state of Washington, if the appealing party from
a nonbinding mandatory arbitration does not do better at trial than the original award issued by the
arbitrator, then that party will incur liability not only for its own expenses but also for those of the
opposing side. [6]In nonbinding arbitration, this is a powerful incentive for parties to accept the
arbitration award without appealing to the judicial system.
Voluntary arbitration also exists, and it is frequently used in business disputes. Sometimes parties
simply agree that they do not want to litigate a dispute because they believe that the benefits of
arbitration outweigh the costs of litigation, so they choose voluntary arbitration in hopes of a speedy
and relatively inexpensive outcome. Other times, parties are not certain how strong their case is. In
such cases, arbitration can seem much more attractive than litigation.
Arbitration awards can be binding or nonbinding. Some states, like Washington State, have codified
the rule that arbitration decisions are binding when parties voluntary submit to the arbitration
procedure. [7] In binding arbitration, the arbitration award is final; therefore, appealing an arbitration
award to the judicial system is not available. In many states, an arbitration awards is converted to

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a judgment by the court, thereby creating the legal mechanism through which the judgment holder
can pursue collection activities. This process, called confirmation, is contemplated by the FAA and
often included in arbitration agreements. But even if the FAA does not apply, most states have
enacted versions of either the Uniform Arbitration Act or the Revised Uniform Arbitration Act. These
state laws allow confirmation of arbitration awards into judgments as well.
Like any other form of dispute resolution, arbitration has certain benefits and drawbacks. Arbitration
is an adversarial process like a trial, and it will produce a “winner” and a “loser.” Arbitration is more
formal than negotiation and mediation and, in many ways, it resembles a trial. Parties present their
cases to the arbitrator by introducing evidence. After both sides have presented their cases, the
arbitrator issues an arbitration award.
Rules related to arbitration differ by state. The rules of procedure that apply to litigation in a trial do
not typically apply to arbitration. Specifically, the rules are often less formal or less restrictive on the
presentation of evidence and the arbitration procedure. Arbitrators decide which evidence to allow,
and they are not required to follow precedents or to provide their reasoning in the final award. In
short, arbitrations adhere to rules, but those rules are not the same as rules of procedure for
litigation. Regardless of which rules are followed, arbitrations proceed under a set of external rules
known to all parties involved in any given arbitration.
Arbitration can be more expensive than negotiation or mediation, but it is often less expensive than
litigation. In Circuit City Stores Inc. v. Adams, the U.S. Supreme Court noted that avoiding the cost of
litigation was a real benefit of arbitration. [8] The costly discovery phase of a trial is nonexistent or
sharply reduced in arbitration. However, arbitration is not necessarily inexpensive. Parties must bear
the costs of the arbitrator, and they typically retain counsel to represent them. Additionally, in
mandatory arbitration clause cases, the arbitration may be required to take place in a distant city
from one of the disputants. This means that the party will have to pay travel costs and associated
expenses during the arbitration proceeding. The Circuit City Court also noted that mandatory
arbitration clauses avoid difficult choice-of-law problems that litigants often face, particularly in
employment law cases.

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Arbitration is faster than litigation, but it is not as private as negotiation or mediation. Unlike
mediators, arbitrators are often subject-matter experts in the legal area of dispute. However, as is
true for mediators, much depends on the arbitrator’s skill and judgment.
A common issue that arises is whether mandatory arbitration is fair in certain circumstances. It’s
easy to imagine that arbitration is fair when both parties are equally situated. For example, business
to business (B2B) arbitrations are often perceived as fair, especially if businesses are roughly the
same size or have roughly equal bargaining power. This is because they will be able to devote
approximately the same amount of resources to a dispute resolution, and they both understand the
subject under dispute, whatever the commercial issue may be. Moreover, in B2B disputes, the
subjects of disputes are commercial issues, which may not implicate deeper social and ethical
questions. For example, contract disputes between businesses might involve whether goods are
conforming goods or nonconforming goods under the Uniform Commercial Code (UCC). No powerful

social or ethical questions arise in such disputes. Indeed, resolving such disputes might be seen as
“business as usual” to many commercial enterprises.
However, issues of fairness often arise in business to employee (B2E) and business to consumer
(B2C) situations, particularly where parties with unequal bargaining power have entered into a
contract that contains a mandatory arbitration clause. In such cases, the weaker party has no real
negotiating power to modify or to delete the mandatory arbitration clause, so that party is required
to agree to such a clause if it wants to engage in certain types of transactions. For example, almost all
credit card contracts contain mandatory arbitration clauses. This means that if a consumer wishes to
have a credit card account, he will agree to waive his constitutional rights to a trial by signing the
credit card contract. As we know, the FAA will require parties to adhere to the mandatory arbitration
agreed to in such a contract, in the event that a dispute arises under that contract. In such cases,
questions regarding whether consent was actually given may legitimately be raised. However, the
U.S. Supreme Court has held that in B2E contexts, unequal bargaining power alone is not a sufficient
reason to hold that arbitration agreements are unenforceable, [9] and it is not sufficient to preclude
arbitration. [10]

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Additionally, concerns about fairness do not end at contract formation. If a dispute arises and
mandatory arbitration is commenced, the unequal power between parties will continue to be an
important issue. In the case between a credit card company and an average consumer debtor, the
credit card company would clearly be in a more powerful position vis-à-vis the debtor by virtue of the
company’s financial strength and all that comes with it, such as experienced attorneys on staff,
dispute-resolution experience, and contractual terms that favor it, rather than the consumer debtor.
In such cases, if the consumer debtor is the aggrieved party, he may very well decide to drop the
matter, especially if the arbitration clause requires arbitration proceedings to occur in a distant city.
The credit card company will have vast financial resources as compared to the consumer debtor.
Moreover, in this example the credit card company’s legal counsel will know how to navigate the
arbitration process and will have experience in dispute resolution, processes that often confound
people who are not trained in law. Additionally, the list of arbitrators may include people who are
dependent on repeat business from the credit card company for their own livelihoods, thereby
creating—or at least suggesting—an inherent conflict of interest. Many mandatory arbitration clauses
create binding awards on one party while reserving the right to bring a claim in court to the other
party. That is, a mandatory arbitration clause may allow the credit card company to appeal an
arbitrator’s award but to render an award binding on the consumer debtor. Obviously, this would
allow the credit card company to appeal an unfavorable ruling, while requiring the consumer debtor
to abide by an arbitrator’s unfavorable ruling. To a consumer debtor, the arbitration experience can
seem like a game played on the credit card company’s home court—daunting, feckless, and
intimidating.
Additionally, some types of disputes that have been subjected to mandatory arbitration raise serious
questions about the appropriateness of ADR, due to the nature of the underlying dispute. For
example, in some recent B2E disputes, claims relating to sexual assault have been subjected to
mandatory arbitration when the employee signed an employment contract with a mandatory
arbitration clause. Tracy Barker, for example, was reportedly sexually assaulted by a State
Department employee in Iraq while she was employed as a civilian contractor by KBR Inc., a former
Halliburton subsidiary. When she tried to bring her claim in court, the judge dismissed the claim,

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citing the mandatory arbitration clause in her employment contract. After arbitration, she won a
three-million-dollar arbitration award. As KBR Inc. noted, this “decision validates what KBR has
maintained all along; that the arbitration process is truly neutral and works in the best interest of the
parties involved.” Despite this statement, KBR Inc. has filed a motion to modify the award. [11]
In a similar case, employee Jamie Leigh Jones worked for KBR Inc. in Iraq when she was drugged
and gang raped. She was initially prohibited from suing KBR Inc. in court because her employment
contract contained a mandatory arbitration clause. However, when considering this case, the Fifth
Circuit Court of Appeals ruled that sexual assault cases may, in fact, be brought in court rather than
being subjected to mandatory arbitration, despite the contract language requiring mandatory
arbitration. [12] Jones’s claims were beyond the scope of the arbitration clause, because sexual assault
is not within the scope of employment. Moreover, under Senator Al Franken’s lead, the Senate took
action to prohibit the Department of Defense from contracting with defense contractors that require
mandatory arbitration for sexual assault claims. If such action is passed, it would essentially allow
the Fifth Circuit’s holding to apply in all federal jurisdictions rather than just in the Fifth Circuit.
Check out Note 4.44 "Video Clip: Al Franken" to hear the details of Senator Franken’s work on this
matter. One might think that passing such a law would be a “no brainer” to lawmakers. However,
some Senators voted against the measure, arguing that the federal government should not insert
itself into rewriting contracts. Instead, some argued that the use of arbitration and mediation should
be expanded for such cases.

Video Clip: Al Franken
Watch Senator Al Franken discuss the facts of the Jamie Leigh Jones case here:

In B2C cases, different issues of fairness exist. As noted previously, when the disputants possess
unequal power, these issues can be magnified. Public Citizen, a nonprofit organization that
represents consumer interests in Congress, released a report concerning arbitration in B2C disputes.
Specifically, the report argued that arbitration is unfair to consumers in B2C disputes and that
consumers fare better in litigation than in arbitration. According to the report, incentives exist to
favor businesses over consumers in the arbitration process. It pointed to the lack of appeal rights,
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lack of requirement to follow precedents or established law, limits on consumers’ remedies,
prohibitions against class-action suits, limitations on access to jury trials, limitations on abilities to
collect evidence, and greater expense as additional factors speaking to the unfairness of arbitration
over litigation in B2C disputes. Check out Note 4.45 "Hyperlink: Arbitration" for the full report.

Hyperlink: Arbitration
http://www.citizen.org/documents/ArbitrationDebateTrap(Final).pdf
Check out this Public Citizen report, The Arbitration Debate Trap: How Opponents of Corporate
Accountability Distort the Debate on Arbitration, which argues arbitration is bad for consumers in B2C
disputes.

Importantly, and despite the FAA’s broad interpretation, not all binding arbitration clauses have
been upheld by courts in B2C cases. In 2007, the Ninth Circuit Court of Appeals ruled that AT&T’s
binding arbitration clause for wireless customers is unenforceable under California state law. [13] The
court further noted that the relevant state law is not preempted by the FAA, because the FAA does
not prevent the courts from applying state law. In this case, that law involved unconscionability of
contract terms. As noted previously, the FAA requires parties to submit to mandatory arbitration
when they agree to do so in a legally binding contract, and it preempts state powers to provide a
judicial forum in those matters. However, the Ninth Circuit’s holding in this case underscores the
fact that state contract law is not circumvented by the federal statute.
Arbitration is a widely used form of ADR, but important questions have been raised about its
appropriateness in certain types of disputes. Before signing a mandatory arbitration agreement, it’s
important to realize that under current law, your opportunity to bring your claim in court will be
severely restricted or entirely precluded. Moreover, if you sign such an agreement with a party who
holds inherently greater power than you, such as your employer, then you may find yourself at an
extreme disadvantage in an arbitration proceeding.

KEY TAKEAWAYS

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Arbitration is a form of ADR in which parties vest authority to decide a dispute with a third-party
arbitrator, who hears the evidence and issues an arbitration award. Arbitration may be binding or
nonbinding, and it may be mandatory or voluntary. Arbitration awards issued by arbitrators can be
confirmed to judgments by judges. Issues of fairness arise in arbitration when disputants possess unequal
power, such as arbitration in employment or consumer disputes. Questions concerning the
appropriateness of mandatory arbitration arise in cases involving issues of civil rights violations. The
Federal Arbitration Act requires enforcement of mandatory arbitration clauses in contract disputes
involving commerce where mandatory arbitration clauses exist. The Arbitration Fairness Act of 2009 would
resolve several issues of unfairness, but this act has not yet been passed in to law.

EXERCISES
1.

Check out Jon Stewart’s perspective on Senator Franken’s proposed measure to prevent the Department
of Defense from contracting with defense contractors that require mandatory arbitration for disputes
arising from sexual assaults at http://www.thedailyshow.com/watch/wed-october-14-2009/rape-nuts.
Does the comedian accurately portray this issue? What role does popular culture have in shaping our
opinions and conceptions of our legal system?

2.

In the Barker v. Halliburton Inc. case, does the three-million-dollar arbitration award in favor of the sexual
assault victim prove that arbitration works, even in violations of civil rights disputes? Why or why not?

3.

Choose one argument in The Arbitration Debate Trap: How Opponents of Corporate Accountability Distort
the Debate on Arbitration in Note 4.45 "Hyperlink: Arbitration" and develop a counterargument to support
the contention that arbitration is good in B2C disputes. Compare your argument with the argument in the
report. Which side is the most persuasive? After completing this exercise, do you believe that arbitration is
good or bad for consumers in B2C disputes? Why?

4.

Bank of America announced that it would no longer require mandatory arbitration in disputes arising
between it and consumer credit card account holders. Review the story
here:http://www.reuters.com/article/idUSTRE57D03E20090814. What are the benefits and drawbacks to
Bank of America’s credit card account customers with respect to this change?

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5.

In what contexts have you entered into an arbitration agreement (e.g., home purchase, credit card
agreement, cell phone agreement)? Write a short essay discussing the implications of entering into that
agreement.

[1] 9 U.S.C. §1 et seq.
[2] 9 U.S.C. §2.
[3] Southland Corp. v. Keating, 465 U.S. 1 (1984).
[4] Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003).
[5] ORS 36.405.
[6] Washington State Court Rules of Procedure, Superior Court Mandatory Arbitration Rules 7.3.
[7] Uniform Arbitration Act, RCW 7.04.
[8] Circuit City Stores, Inc., v. Adams, 532 U.S. 105 (2001).
[9] Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
[10] Lozano v. AT & T Wireless, 504 F.3d 718 (9th Cir. 2007).
[11] Juan A. Lozano, “Woman Awarded $3M in Assault Claim against KBR,” AP News, November 19,
2009, http://www.thefreelibrary.com/Woman+awarded+%243M+in+ assault+claim+against+KBRa01612064743 (accessed September 24, 2010).
[12] Jones v. Halliburton Co., 583 F.3d 228 (5th Cir. 2009).
[13] Lozano v. AT & T Wireless, 504 F.3d 718 (9th Cir. 2007).

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4.4 Other Methods of Alternative Dispute Resolution
LEARNING OBJECTIVES
1.

Learn about in-house dispute-resolution methods, med-arb, private judging, minitrials, and summary jury
trials.

2.

Explore the benefits and drawbacks to forms of alternative dispute resolution (ADR) discussed in this
section.

Remember that ADR is a broad term used to denote methods to resolve disputes outside of litigation.
This can really be any method, whether or not it bears a specific label or adheres to a particular
procedure. For instance, negotiation might be a quick meeting in the hallway between disputants, or
it might involve a formal round of negotiations where all parties are represented by legal counsel.
However, when parties are attempting to resolve a dispute, it makes sense for them to agree to a
specific procedure for doing so beforehand, so that each party understands how to proceed.
Negotiation, mediation, and arbitration are the most common forms of ADR. However, these
methods might not be appropriate for every dispute. Other forms of ADR exist, ranging from inhouse programs to very formal external processes. This section briefly discusses commonly used
alternatives to resolving disputes besides negotiation, mediation, arbitration, or litigation.
Some ADR processes or programs are available only to certain groups of people, such as members of
a particular organization. For instance, some organizations, like Boeing, have an
internal ethics hotline. This hotline is available for employees to report perceived ethics violation that
they have observed. Ethics advisors answer employees’ questions and follow up on reports that need
further investigation. One major benefit is that reporting parties generally (but not always) remain
anonymous. Another benefit is that the company has time to redress problems that could give rise to
disputes of much greater magnitude if left unaddressed.
An open-door policy is an in-house program that allows company employees to go directly to any level
of management to file a complaint or grievance, without threat of retaliation for their reporting. In
theory, this policy creates an open atmosphere of trust, and it breaks down class barriers between

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groups of employees. However, many employees may not feel comfortable in making a complaint
about a manager’s decision. Moreover, supervisors may not be comfortable with their employees
bypassing them to file complaints. Open-door policies sound very good in theory, but they may not
work as well in practice.
Another type of in-house program is an ombudsmen’s office. These stations generally hear
complaints from stakeholders, such as employees or customers.Ombudsmen try to troubleshoot these
complaints by investigating and attempting to resolve the issues before they escalate into more
formal complaints.
More formal methods of ADR include mediation-arbitration (med-arb), which is essentially a
mediation followed by an arbitration. If the mediation does not produce a satisfactory outcome, then
the parties submit to arbitration. The neutral party mediating the dispute also serves as the
arbitrator if the dispute-resolution process goes that far. Med-arb has the same benefits and
drawbacks as mediation and arbitration alone, with some important differences. For instance,
parties in a med-arb know that their dispute will be resolved. This is unlike mediation alone, where
parties may walk away if they do not think that the mediation is serving their interests. Moreover, the
parties in med-arb have an opportunity to reach a win-win outcome as in mediation. However, if
they do not reach a satisfactory outcome, then one party will “win” and one party will “lose” during
the arbitration phase. The knowledge that an arbitration will definitely follow a failed mediation can
be a strong incentive to ensure that the mediation phase of a med-arb works.
Private judging, contemplated by many state statutes, is a process in which active or retired judges

may be hired for private trials. Private judging is essentially private litigation. The hired judge can
preside over a private trial that is not truncated by limits on discovery or abbreviated rules of
procedure, as would be the case in arbitration. Additionally, the judge who oversees the process is
highly experienced in such matters as evidence and decision rendering. Moreover, the parties who
can afford to pay for this service have a substantial benefit in not having to wait to have their cases
heard in the public court. The private trial is also private rather than public, which may be important
to parties who require confidentiality. In states where statutes permit hiring a judge for such matters,

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the parties’ ability to appeal is often preserved. Drawbacks include the sometimes questionable
nature of enforceability of judgments rendered, though some state statutes allow enforceability of
those judgments as if they were issued in public court. Moreover, this system may benefit those who
can afford to pay for this service, while others must wait for their case to appear on the docket in
public court. This raises questions of fairness. See Note 4.54 "Hyperlink: Private Judges" for one
state’s frequently asked questions (FAQ) regarding private judges.

Hyperlink: Private Judges
http://www.in.gov/judiciary/admin/private-judges/faq.html
Check out Indiana Courts’ Web page with frequently asked questions about private judges.
Does your state permit private judging?

A minitrial is a procedure that allows the parties to present their case to decision makers on both
sides of the dispute, following discovery. This is a private affair. After the cases are presented, the
parties enter into mediation or negotiation to resolve their dispute.
A summary jury trial is a mock trial presented to a jury whose verdict is nonbinding. The presentation
is brief and succinct, and it follows a discovery period. The jury does not know that its verdict will be
advisory only. This process allows parties to measure the strengths and weaknesses of their cases
prior to engaging in litigation, which presumably saves both time and money. After the minitrial,
parties are in a better position to negotiate or mediate an outcome that fairly represents their
positions.

KEY TAKEAWAYS
Methods of ADR other than negotiation, mediation, and arbitration are available to disputants. For
example, minitrials, med-arb, private judging, and summary jury trials are common alternatives, as are inhouse programs like ombudsmen, anonymous ethics hotlines, and open-door policies. Benefits and
drawbacks to these methods exist relative to other methods of ADR and to litigation.

EXERCISES
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1.

Visit Boeing’s Ethics Line Web page:http://www.boeing.com/companyoffices/aboutus/ethics/hotline.html.
Do you think this program can address all disputes before they get out of hand? Why or why not? What
type of dispute might not be appropriate to bring to an ethics hotline program?

2.

Locate two “ethics hotline” programs from an online search. Compare these programs. What are the
benefits and drawbacks to each?

3.

Check out Note 4.54 "Hyperlink: Private Judges". Do you think that people should be permitted to hire
judges to preside over private trials if they can afford to do so? What benefits to litigants in a private trial
have over litigants in a public trial? What ethical issues exist with respect to private judges?

4.

Why would a party choose med-arb over mediation or arbitration alone?

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4.5 Public Policy, Legislation, and Alternative Dispute
Resolution
LEARNING OBJECTIVES
1.

Explore potential restrictions upon ADR.

2.

Review points of access to government to change public policy.

3.

Examine the Arbitration Fairness Act Bill.

Alternative dispute resolution can be a very useful alternative to litigation. There are many
advantages to disputants, such as expediency, cost savings, and greater privacy than litigation. In
business to business (B2B) disputes, alternative dispute resolution (ADR) often makes sense.
The Federal Arbitration Act (FAA) is a federal statute that the U.S. Supreme Court interpreted as a
national policy favoring arbitration in Southland Corp. v. Keating. [1] According to the Southland
Corp Court, state power to create judicial forums to resolve claims when contracting parties enter

into a mandatory arbitration agreement has been preempted by the FAA. However, not all disputes
are well suited for ADR. This is an area in which Congress could make substantial changes in public
policy through the creation of new law, to ensure fairness between unequal parties and to ensure the
protection of civil rights. Congress could do this by making ADR optional, rather than mandatory, for
some types of disputes. It could exclude certain types of disputes from being bound to arbitration
through mandatory arbitration clauses.
For example, the proposed Arbitration Fairness Act of 2009 (AFA) would invalidate mandatory
arbitration clauses in employment and consumer disputes, as well as in disputes arising from civil
rights violations. See Note 4.63 "Hyperlink: Arbitration Fairness Act Bill". The AFA is a proposed bill
to amend the FAA. Under the Commerce Clause, Congress has the power to limit the use of
mandatory arbitration, just as it has the power to enforce mandatory arbitration clauses under the
Commerce Clause through the existing FAA. By passing a new law that excludes certain types of
disputes from being subjected to mandatory arbitration, Congress could set new policy regarding
fairness in dispute resolution. Likewise, if it fails to act, Congress is also acceding to the U.S.
Supreme Court’s broad interpretation of the FAA as a national policy favoring arbitration. Either
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way, policy regarding mandatory arbitration exists, and Congress has a central role in defining that
policy.

Hyperlink: Arbitration Fairness Act Bill
http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1020
Review the Arbitration Fairness Act Bill, which would amend the Federal Arbitration Act.

In 1925, when the FAA was originally passed, records indicate that Congress intended that
mandatory arbitration clauses be enforced in contracts between merchants, rather than between
businesses and consumers or between employers and employees. In the latter relationships, the
parties have vastly unequal power. Moreover, despite the existence of mandatory arbitration clauses
in contracts, the FAA was not contemplated as a means to preempt state power to provide judicial
forums for certain types of disputes. [2] However, the U.S. Supreme Court has greatly expanded the
FAA’s applicability since then.
If Congress passed the AFA, this would be an example of one branch of government “checking”
another branch’s power as contemplated by the U.S. Constitution. Specifically, the legislative branch
would be checking the judicial branch’s power by passing a law to counteract the U.S. Supreme
Court’s broad interpretation of the FAA in Southland Corp. v. Keating.
This is how our government is supposed to work. One branch checks another branch’s power. This
“checking” of power maintains relative balance among the branches. Because people have different
points of entry into the lawmaking process, this system ultimately balances the many special
interests of the American people. For example, some businesses and employers that do not wish the
AFA to pass may wonder what recourse they have. After all, the U.S. Supreme Court’s interpretation
of the FAA currently favors their interests. Since the AFA has not yet passed, they could lobby
lawmakers against its passage. Note too that if the AFA becomes law, these interest groups are not
simply shut out of the government’s lawmaking process. They continue to have access to lawmaking.
One point of entry is through the legislative branch. For instance, they could return to Congress and
ask it to pass a new law to counteract the AFA, or to repeal the AFA altogether. They also have a
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point of entry to the lawmaking process through the judicial branch. Specifically, once a case or
controversy arose under the AFA in which they had standing, they could ask the courts to interpret
the statute narrowly, or they could ask the courts to strike down the statute altogether.
On the other side of the issue, consumers and employees who do not like the FAA’s current broad
interpretation can work within our government system to change the law. For instance, they can ask
Congress to pass a new law, such as the AFA. They could ask Congress to repeal the FAA. They could
also wait for another case to arise under the FAA to try to get the relevant holding in theSouthland
Corp. case overturned. This is perhaps more difficult than the first two options, because any U.S.

Supreme Court case produces many progeny at the circuit court level. Each decision at the circuit
court level also produces binding precedent within that jurisdiction. It is very difficult to get a case
before the U.S. Supreme Court. Even if that happened, there would be no guarantee that the Court
would overturn a prior opinion. In fact, the opposite is usually true. Precedent is most often followed
rather than overturned.
In the United States, the policy process is open for participation, though changes often take much
work and time. People with special interests tend to coalesce and press for changes in the law to
reflect those positions. This appears to be what is happening in the world of ADR now. After many
years of mandatory arbitration requirements that have yielded perhaps unfair processes or results,
groups that believe they should not be forced into ADR by mandatory arbitration clauses are building
momentum for their position in Congress. If the AFA passes, that will not be the end of the story,
however. New interest groups may form to support the previous law, or a new law altogether.

KEY TAKEAWAYS
Public policy regarding arbitration has been codified in the FAA and expanded by the U.S. Supreme Court.
To change public policy, interest groups can access the government lawmaking power through several
points, including through the legislative branch and through the judicial branch. To change public policy
regarding mandatory arbitration clauses, for instance, Congress could amend or repeal the FAA.
Additionally, given another dispute arising under the FAA concerning its scope, the U.S. Supreme Court
could overturn prior decisions that broadly interpret the FAA’s reach. Our government’s structure allows
several points of access for those who would protect the status quo of public policy and for those who
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seek to change it. The U.S. government is a dynamic system that provides opportunities for special
interests to coalesce and change the law and public policy.

EXERCISES
1.

How many points of entry are there into lawmaking processes? Which point would be the easiest to access
if you wanted to change the law? Why?

2.

Check out Note 4.63 "Hyperlink: Arbitration Fairness Act Bill". Do you think that the AFA will solve the
issue of perceived unfairness in dispute resolution? Why or why not? Are there any additions that you can
make to this bill to make it more likely to achieve the goal of greater fairness in dispute resolution, if
passed?

[1] Southland Corp. v. Keating, 465 U.S. 1 (1984).
[2] Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never
Enacted by Congress, 34 Fla. St. U.L. Rev. 99 (2006).

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4.6 Concluding Thoughts
Alternative dispute resolution (ADR) is a popular and common group of methods to resolve disputes
in many different contexts. In business, ADR is commonly used in business to business (B2B),
business to consumer (B2C), and business to employee (B2E) disputes. Several methods of ADR
exist. The most commonly employed methods include negotiation, mediation, and arbitration. Under
federal law, national policy favors arbitration. Sometimes ADR is perceived as unfair, because parties
have unequal power relative to each other or because the subject matter of the dispute is not
considered suitable for ADR. Like other areas of law and public policy, ADR is dynamic and subject
to change, particularly when special interest groups coalesce successfully and create momentum for
change within our legal system. Currently, there is a nascent movement to exclude certain types of
disputes from ADR by amending the federal law that requires mandatory arbitration when parties
have contractually consented to it.

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Chapter 5

The Constitution
LEARNING OBJECTIVES
In this chapter, we will discuss the federal U.S. Constitution and how it affects businesses. Specifically, you
should be able to answer the following questions:
1.

What are the main purposes of the U.S. Constitution?

2.

How does the Constitution grant authority to the government to regulate business?

3.

How does the Bill of Rights provide basic civil liberties to all persons in the United States?

4.

How do due process and equal protection operate to constrain governments from acting unfairly?

Video Clip: Schoolhouse Rock, the Preamble
The Constitution is not the first constitution adopted by the original thirteen colonies. During the
time of the Revolutionary War against Great Britain, the states were governed by
the Articles of Confederation. The articles granted limited authority to a federal government,
including the power to wage wars, conduct foreign policy, and resolve issues regarding claims by the
states on western lands. Many leading scholars and statesmen at the time, known as Federalists,
thought that the articles created a federal government that was too weak to survive. The lack of
power to tax, for example, meant that the federal government was frequently near bankruptcy in
spite of its repeated requests to the states to put forth more money to the federal government. Larger
states resented the structure under the articles, which gave small states an equal vote to larger states.
Finally, the articles reserved the power to regulate commerce to the states, meaning each pursued its
own trade and tariff policy with other states and with foreign nations. In 1786, work began in a series
of conventions to rewrite the articles, resulting in the adoption of the U.S. Constitution in
Philadelphia in 1787.
In this chapter we explore the Constitution in depth. We’ll examine how the Constitution sought to
rectify the weaknesses in the articles, especially in commerce. We go beyond the meaning of the
words and explain how judicial interpretation of the Constitution, while still evolving, has forever
changed its original place in U.S. political economy. We’ll explore the first ten amendments to the
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Constitution, the Bill of Rights, and look at how many of the key civil liberties contained in the Bill of
Rights also affect businesses. By the end of the chapter, you should have a solid grasp on why the
Constitution remains an enduring document and why it’s important for business professionals to be
able to speak on it with authority.

Key Takeaways
The Articles of Confederation established the United States of America. It provided a central federal
government with limited powers, including the power to wage war. The articles ultimately failed because
the federal government lacked the power to raise its own taxes or to regulate commerce. In 1787, the
Philadelphia Convention adopted a new Constitution to replace the articles.

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5.1 Federalism and Preemption
LEARNING OBJECTIVES
1.

Explore how the Constitution creates a limited government through the separation of powers and
through checks and balances among the three branches of government.

2.

Learn how the Constitution resolves conflicts between state and federal laws.

3.

Understand the rules surrounding preemption.

Have you ever read the Constitution from beginning to end? Look at the text of the Constitution. It’s
remarkably short—shorter than many people realize. Historically, it is the shortest and oldest written
constitution still in force. Ironically, the Constitution’s brevity may be one of the reasons that it
endures to this day, as judicial interpretation has kept its meaning relevant for modern times.
Much of its content deals with the allocation of power among three separate and coequal branches of
government. Substantively, much more attention is paid to the limitations on the power given to
each of the three branches than to any positive grant of rights. Indeed, while many Americans believe
that it is their “constitutional right” to be free, many of those freedoms are actually contained in the
Bill of Rights, which are amendments to the Constitution. In contrast, the main body of the
Constitution is concerned primarily with structure. In other words, the Constitution is a document of
prohibition, outlining what government cannot do as opposed to what government must do.
As a result of this structure, the Constitution is rarely the right place to deal with contemporary
political issues, no matter how important. At the state level, many states permit frequent
amendments to their constitutions to reflect contemporary public policy, from school funding to
gambling to gay marriage. There is often support among many people for constitutional amendments
to ban flag burning, permit prayer in school, ban gay marriage, or ban abortion. At the federal level,
however, these issues are rarely resolved at the constitutional level. There is a practical bar, of
course, given how difficult it is to amend the Constitution. Even if it were easier to amend, however,
the Constitution remains very much a document of structure rather than substantive law.

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During his confirmation hearings, Chief Justice John Roberts spoke of his role as an umpire calling
the balls and strikes and not pitching or batting. If judges are umpires, then the Constitution sets
forth the rules of the game. The biggest rule laid down in the Constitution is the separation of powers.
Fundamentally, the separation of powers requires that each branch of government play its own role
in governing the people. The judicial branch plays a critical role in interpreting the Constitution and
outlining the powers of the legislature and executive branches. The interplay between Article I
(legislative) and Article II (executive) is no less important. Although more than two centuries have
passed since the first Congress and the first president served, the limits of power between these two
branches continue to be redefined, especially in the wake of the September 11 terrorist attacks.
Article I of the Constitution establishes the legislative branch through abicameral legislature. The
lower House of Representatives, with frequent elections (every even-numbered year), has 435
members, with representation spread proportionately to a state’s population as determined by a
census every decade. The most populous state, California, has fifty-three members, while several
states are so small that they have only one representative (Alaska, Delaware, Montana, North
Dakota, South Dakota, Vermont, and Wyoming). The House is led by the Speaker of the House,
typically from the party that holds the majority in the House. The House is generally thought to
represent the most contemporary views of the American public, with its large body of members and
frequent elections.
As a check on the majority will, and on the power of larger states, the Senate is a smaller body with
one hundred members (two from each state) and with less frequent elections (every six years). The
Senate is meant to be a more deliberative body and to ensure a wider level of debate before
impassioned legislation is hastily rushed into law. The makeup of the Senate means that citizens
from smaller states, representing much fewer people, can often frustrate the will of the majority of
Americans. The Constitution places the power to legislate with both chambers, but the House retains
the exclusive right to originate bills raising revenue (taxation), while the Senate maintains the
exclusive right to provide advice and consent to the president, where advice and consent are

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required. Additionally, while the House retains the right toimpeach officials for “high crimes and
misdemeanors,” the Senate tries such impeached officials.
Article II of the Constitution establishes the executive branch of government. While the Constitution
was being drafted, the delegates knew that they wanted George Washington to be president.
Washington was in retirement in Mount Vernon at the time, after successfully leading the colonies in
the Revolutionary War. Since the delegates knew Washington would be president, they spent
remarkably little time in writing Article II, which is very short. Washington was elected to both his
first and second terms with 100 percent of the Electoral College vote, something no other president
has since done. While Article II sets forth some of the mechanisms for becoming president—and is
the only place in the Constitution that prescribes a specific oath of office—when the Constitution was
drafted, little was known about what the president’s role would be.
Article II grants the president an almost total power over foreign affairs, including the power to make
treaties and appoint ambassadors. He is commander-in-chief of the armed forces. The president is
also responsible for executing, or enforcing, the laws of the country. While Congress can pass any
legislation it wants to, ultimately legislation is meaningless unless there are sanctions for violating
the law. Through the prosecutorial and police functions, the president ensures that the will of the
people, as expressed through Congress, is carried out.
The Constitution’s deliberate ambiguity on the powers of the president left much room for debate on
how strong the executive branch should be. After the September 11 attacks, many in the George W.
Bush administration argued for a strong unitary executive theory. Bush administration lawyers
reasoned that only a strong executive could effectively wage war with Al-Qaeda. Under a
congressional authorization, the administration embarked on a program to capture and kill terrorists
around the world and to gather as much information about terrorist activities as possible. Many in
Congress believed, however, that the executive branch overstepped its authority in pursuing these
goals, leaving Congress behind.
For example, to collect intelligence on suspected terrorists in the United States, Congress passed a
law, the Foreign Intelligence Surveillance Act, in 1978. FISA, as the law is known, requires federal
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law enforcement officials to seek a search warrant from a secret court before carrying out
surveillance or wiretapping. The Bush administration routinely carried out surveillance on persons
in the United States without this judicial oversight, arguing that it was part of the unitary executive
theory to do so. In another program, the Bush administration allegedly captured suspected terrorists
abroad and moved them to secret prisons outside the jurisdiction of the United States for
interrogation, a practice known as extraordinary rendition. In late 2009, an Italian court convicted
twenty-three American officials, including members of the Central Intelligence Agency (CIA), of
extraordinary rendition in the case of a Muslim cleric kidnapped from Milan. The officials were
convicted in their absence and have not been extradited to Italy. Extraordinary rendition is likely
illegal under U.S. and international law, but lawsuits attempting to find out more information about
the program have been thwarted by the executive branch’s claim of thestate secrets doctrine.
Congress and the president have also clashed over the treatment of suspected terrorists. Article I,
Section 9 of the Constitution states that “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.” The right
of habeas corpus is a fundamentally important right, appearing first in the Magna Carta and
considered so important by Constitutional delegates that it was inserted into the text of the
Constitution itself, not in the Bill of Rights. When the Bush administration began imprisoning
suspected terrorists at the military base in Guantanamo Bay, Cuba, the administration took a series
of unprecedented positions on the legal status of those detainees, including the position that the
detainees did not have the right to seek habeas relief. Federal courts, including the Supreme Court,
gradually overturned most of these positions, and the detainees are now being tried by either
military tribunals or civilian courts.
Another controversial position adopted by the administration was on the use of enhanced, or
aggressive, interrogation methods. Critics claimed these techniques amounted to torture (which is
banned by U.S. law as passed by Congress) and may be unconstitutional under the Eighth
Amendment, which prohibits cruel or unusual punishment.

Video Clip: “Mancow” Waterboarded

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Another aspect of the separation of powers that is less obvious is the separation of power between
the federal and state governments, known as federalism. You already know that state and federal
governments sometimes share power and that the rules of subject matter jurisdiction determine
which legal system has jurisdiction over a particular matter or controversy. In some areas, such as
family or property law, the states have near exclusive jurisdiction. In other areas, such as negotiating
treaties with foreign countries or operating airports and licensing airlines, the federal government
has near exclusive authority. In the middle, however, is a large area of subject matter where both
state and federal governments may potentially have jurisdiction. What happens if state and federal
laws exist on the same subject matter, or worse, what happens if they directly contradict each other?
Legal rules of preemption seek to provide an answer to these questions. Under the Constitution’s
Supremacy Clause (Article VI, Section 2), the Constitution and federal laws and treaties are the
“supreme law of the land” and judges in every state “shall be bound” by those laws. Let’s say, for
example, that Congress sets the minimum wage at $7.25 an hour. A state that passes a law making
the minimum wage lower than that would immediately see the law challenged in federal court as
unconstitutional under preemption and Supremacy Clause principles, and the state law would be
overturned.

Hyperlink: Medical Marijuana in the States
http://www.npr.org/templates/story/story.php?storyId=113924395
Under the federal Food and Drug Act, marijuana is classified as a Schedule I drug under the Controlled
Substances Act, meaning it is restricted just like cocaine or heroin. Fourteen states have passed laws that
permit marijuana to be grown, sold, and used for medicinal purposes, such as treating nausea and
stimulating hunger in cancer patients. The federal government aggressively prosecuted medicinal use of
marijuana, and in 2005 the Supreme Court ruled that the federal law trumps state laws,

[1]

meaning that

local growers could be arrested and prosecuted under federal law even if what they were doing was
perfectly legal and authorized under state law. In 2009 the Obama administration announced a change in
policy. Listen to this National Public Radio story about what this change means for the medicinal use of
marijuana in the states.

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When there is no direct conflict between state and federal law, then the rules of preemption state
that courts must look to whether or not Congress intended to preempt the state law when it passed
the federal statute. If there is no clear statement by Congress that it wishes to preempt state law, or if
it is unclear what Congress meant to do, then the state law will survive if possible (i.e., there is a
presumption against preemption). Even if there is no statement by Congress on preemption,
however, if Congress so completely regulates a particular subject area that there is “no room” left for
states to regulate, then preemption exists. For example, after September 11, Michigan passed a law
requiring student pilots in Michigan to pass a Federal Bureau of Investigation (FBI) background
check. The Federal Aviation Administration, which sets forth pilot qualifications and licensing, has
no such requirement, and since the federal government regulates the aviation industry completely
(from airports to pilots to airlines to training standards), Michigan’s law is preempted.

Hyperlink: Can States Regulate Car Safety Standards?
http://www.nhtsa.dot.gov/cars/rules/import/fmvss/index.html
Sometimes it’s not clear whether or not a state law is preempted, and the courts must undertake a
searching inquiry to determine congressional intent. In Geier v. Honda,

[2]

for example, a teenager filed a

tort lawsuit against Honda for injuries she suffered during a car accident. Her lawsuit claimed that her
1987 Honda Accord was defective because it didn’t have any airbags. Airbag technology, which existed at
the time but was used primarily in expensive luxury cars, would have minimized her injuries. If she had
won her state lawsuit in the District of Columbia, then in effect all 1987 Honda Accords sold in the District
of Columbia would have to be equipped with airbags to avoid tort liability. Honda’s defense was
preemption. Under a federal regulatory scheme known as the Federal Motor Vehicle Safety Standards
(FMVSS), the federal government sets forth safety standards that cars must meet to be sold in the United
States. FMVSS 208 sets the standard for seat belts, and in 1987 manufacturers were required to install
either airbags or passive (motorized) seat belts. A rule that required manufacturers to install airbags
exclusively would directly contradict FMVSS 208, so the Supreme Court ruled that FMVSS preempted any
state attempts to regulate motor vehicle safety standards.

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When the Supreme Court found preemption in the Honda case, many in the business community
wondered if a new era of preemption might have arrived. Federal regulation would in effect provide a
shield against liability lawsuits. These hopes were short lived, as the Supreme Court continues to
hold a presumption against preemption. The drug industry, in particular, would like preemption to
end tort litigation.

Hyperlink: If the FDA Approves a Drug Label, Can Patients Still Sue Drug
Manufacturers?
http://www.npr.org/templates/story/story.php?storyId=101465350
Wyeth Pharmaceuticals manufacturers an antinausea drug called Phenergan, which was approved by the
U.S. Food and Drug Administration (FDA) in 1955. Under federal law, the FDA must approve the wording
on labels and documentation accompanying regulated drugs. The FDA-approved label contained
warnings against “intra-arterial” injection, which carried the risk of irreversible gangrene. The plaintiff in
the case, Vermont musician Diana Levine, went to a clinic for treatment and ended up losing her arm
when Phenergan was incorrectly administered to her. She sued Wyeth, arguing that the warning label on
the drug didn’t prohibit the type of injection that led to her injuries. A jury awarded her more than six
million dollars in damages. On appeal to the Supreme Court, Wyeth argued that since the FDA approved
the label, lawsuits arguing that the label was inadequate were preempted. The Supreme Court examined
the history of the Food and Drug Act and ruled for Diana Levine, holding that when Congress wrote the
law, it never meant to preempt state laws. In fact, the Supreme Court found that Congress meant for state
lawsuits to work alongside the Food and Drug Act to ensure drug safety for consumers.

KEY TAKEAWAYS
The Constitution is mainly a structural document, setting forth the allocation of power among the three
branches of government and the limitations on that power. It is concerned mainly with what the
government cannot do, as opposed to what the government must do. At the federal level, constitutional
amendments are rarely used to carry out social policy. Article I of the Constitution establishes a bicameral
legislature, with a House of Representatives and a smaller, more deliberative Senate. Both chambers must
agree before legislation can be passed. Article II of the Constitution establishes the executive power in the

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president, who must execute the laws passed by Congress. The balance of power between Congress and
the president is subject to much interpretation and change throughout history, including the post–
September 11 era. Power is also divided between state and federal governments under federalism. The
Supremacy Clause states that when there is a conflict between state and federal law, federal law wins. If
there is no direct conflict, the state law survives unless Congress expressly preempts state law.

EXERCISES
1.

One of the attempts to use the Constitution to achieve a social policy was Prohibition. Review the twentyseven amendments to the Constitution. Other than the Bill of Rights, can you identify other amendments
used to achieve social policy?

2.

Can you name your representatives in the House of Representatives and the Senate? Who is the current
Speaker of the House and the Senate Majority Leader?

3.

Can you think of current examples where legislation that is popular with the majority of Americans is held
up in the Senate, especially by Senators from smaller states?

4.

Do you believe that the United States is better served by a strong or weak unitary executive? Explain your
answer.

5.

Where should the balance of power lie between Congress and the president in prosecuting the war on
terror? If the president believes enhanced interrogation such as waterboarding is necessary to obtain
necessary intelligence, should Congress attempt to intervene?

6.

In 2007 five victims of extraordinary rendition filed suit against Jeppesen Dataplan Inc. (a Boeing
subsidiary), claiming that Jeppesen provided logistical support to the CIA’s extraordinary rendition
program. The government has so far successfully kept the case from going to trial, arguing that doing so
would endanger government secrets. Do you believe that someone who has been subject to extraordinary
rendition should be able to sue the government, or private companies, for what happened to them? Why
or why not?

7.

In the Geier case, the Supreme Court held that states may not regulate motor vehicle safety standards.
How do you think states like California and Massachusetts can impose stricter emission controls on motor
vehicles than the federal standard?

[1] Gonzalez v. Raich, 545 U.S. 1 (2005).
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[2] Geier v. American Honda Motor Company, 529 U.S. 861 (2000).

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5.2 The Commerce, Taxing, and Spending Clauses
LEARNING OBJECTIVES
1.

Explore how the Constitution grants the power to regulate commerce to the federal government.

2.

Understand how the meaning of the Commerce Clause has expanded greatly.

3.

Learn about state police powers and the limitations on those powers.

4.

Learn about the power given to Congress to tax and spend money.

Hyperlink: The Powers of Congress
http://topics.law.cornell.edu/constitution/articlei#section8

Members of the Constitutional Convention were divided about how powerful the new central
government should be. To avoid the rise of tyrannical government, the Constitution carefully grants
certain powers to Congress, reserving all other powers to the states. These powers are listed in Article
I, Section 8. Look at this section in Note 5.25 "Hyperlink: The Powers of Congress"and notice how
detailed these powers are.
The list begins with monetary matters, an issue of great concern at the time because the prior
government was bankrupt and states regulated their own money supply. The Congress therefore has
the power to borrow money, lay and collect taxes, regulate commerce (the Commerce Clause),
establish a uniform law on bankruptcy and naturalization, make money (currency) and establish its
value, punish the counterfeiting of U.S. money, and establish a uniform system of weights and
measures. The list then moves on to aspirational ideals for the young new country to strive toward.
Congress has the power to establish post offices and post roads and to protect intellectual property in
copyrights and patents. Next, the list turns to Congress’s adjudicative powers: to create lower courts
under the Supreme Court created in Article III and to define crimes committed on the “high seas”
and against the “law of nations.” Congress is also given fiscal responsibility over the armed forces
and navy (note there is, of course, no mention of an air force) and the power to provide oversight to
the militia. Then, to help Congress with carrying out these powers, Article I, Section 8 provides that

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the states may cede to Congress a district, not to exceed ten square miles, that will become the seat of
government, and to exercise exclusive legislative authority over this district.
The scope of power granted under Article I, Section 8 is the subject of much debate among legal
scholars. The clause granting Congress the power to regulate commerce is particularly troublesome.
There is very little debate about the power of Congress to regulate foreign trade. This power is
explicit, total, and exclusive. If Congress wanted to ban all imports and exports into and out of the
United States, for example, it could legitimately do so. Indeed, Congress routinely uses economic
trade sanctions against “rogue” nations such as Cuba and North Korea as a means of economic
warfare to try to bring about regime change. Even in the case of friendly allies such as Canada,
Mexico, and the European Union, Congress routinely engages in trade regulations that restrict or
distort foreign trade. Since this power is exclusive to Congress, state attempts to regulate foreign
commerce are invalid. Oregon, for example, cannot ban Oregon companies from exporting to Mexico
or establish a free trade zone with duty-free imports with China.
There is more disagreement about Congress’s power to regulate domestic commerce. Notice how
Article I, Section 8 is structured. Many scholars believe that this list is complete and exhaustive,
since it lists all the powers the Founding Fathers wanted to give Congress at the time. The idea, they
argue, was to create powerful and limited government, leaving the states room to govern in all other
areas. As evidence, these scholars point to the structure of the list and the high level of detail
provided (such as specific crimes to be made punishable and the square mile limitation for the seat
of government). Other scholars believe that the list should be interpreted more broadly and that the
language granting Congress the power to “make all laws necessary and proper” to carry out the
enumerated powers demonstrates the Founding Fathers’ desire for a more flexible interpretation, to
allow Congress the power to react to needs and challenges not foreseeable at the time the clause was
drafted.
In the early part of the country’s history, the first view held firm sway, and together courts and
Congress carefully observed the constitutional limits to the growth of federal government power. If
you consider our modern federal government, however, it’s obvious that the second view is now

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more prevalent. Today, the federal government does a lot more than what is enumerated on the list
in Article I, Section 8. From regulating educational standards, to defining clean air and water, to
outlawing workplace discrimination, to licensing portions of the electromagnetic spectrum for cell
phone and digital television providers to use, it’s clear that if a member of the Constitutional
Convention were to travel forward in time, he would be shocked at both the pace of progress and the
size and power of the federal government. How did our country’s view of congressional power evolve
over time?
The answer can be traced to the Great Depression. In response to unprecedented economic distress,
President Roosevelt sought to redefine the very nature of the employer/employee relationship. He,
along with Congress, enacted legislation that established a minimum hourly wage, set maximum
weekly working hours, established workplace safety rules, outlawed child labor, and provided for a
safety net to protect older and disabled workers. These laws initially ran into stiff opposition at the
Supreme Court. The justices at the time clung to a more formalistic reading of Article I, Section 8
and saw the employer/employee relationship as one governed by freedom of contract. In this view, if
a worker wanted to work and an employer was willing to provide that work, then the government
should not interfere with that contract. Thus, early portions of the New Deal were struck down as
unconstitutional under the Commerce Clause.
After President Roosevelt proposed his court-packing plan, leading one of the swing votes on the
Supreme Court to change his vote to begin upholding the New Deal, the barriers surrounding the
interpretation of the Commerce Clause came crashing down. Courts have now adopted a very flexible
reading of the Commerce Clause. As long as Congress makes reasonable findings that a certain
activity has some sort of effect on interstate commerce, Congress can regulate that activity.
This broad interpretation of the Commerce Clause has been challenged repeatedly. In 1964, for
example, Congress passed a broad and sweeping Civil Rights Act, prohibiting discrimination against
citizens on the basis of race, color, national origin, and sex. Congress relied on its power under the
Commerce Clause to pass this legislation. That same year, the Heart of Atlanta Motel in Georgia
(Figure 5.3 "Heart of Atlanta Motel") filed a federal lawsuit seeking to overturn the Civil Rights Act

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as unconstitutional, arguing that Congress lacked the authority under the Commerce Clause to pass
the law. The Supreme Court held the law to be constitutional, finding that since 75 percent of the
motel’s clients came from out of state and since the motel was located near Interstates 75 and 85, the
business had an “effect” on interstate commerce. [1]Subsequent civil rights legislation, including the
important Americans with Disabilities Act, is also grounded in congressional authority to regulate
interstate commerce.
Figure 5.3 Heart of Atlanta Motel

Source: Photo courtesy of Georgia State University, Special Collections of the University Library,
http://tarlton.law.utexas.edu/clark/heart_long.html.

In the late 1990s, several curious decisions by the conservative wing of the Supreme Court led some
observers to wonder if the days of virtually unfettered authority by Congress to regulate under the
Commerce Clause were coming to an end. Judicial conservatives, especially the late Chief Justice
Rehnquist, have always been somewhat uncomfortable with the broad reading of the Commerce
Clause, worried that it has led to a runaway federal government many times bigger than what the
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Founding Fathers intended. In a 1995 case, the Supreme Court held that the 1990 Gun-Free School
Zones Act was unconstitutional. The law prohibited the possession of weapons in schools and was
based on a congressional finding that possession of firearms in educational settings would lead to
violent crime, which in turn affects general economic conditions by causing damage and raising
insurance costs and by limiting travel to and through unsafe areas. Students intimidated by a violent
educational setting would also be affected, learning less and leading to a weaker educational system
and economy. By a 5–4 margin, the Supreme Court found these arguments unpersuasive and
overturned the law, holding that Congress lacked authority under the Commerce Clause to regulate
the carrying of handguns into schools. [2] Then, five years later, the Supreme Court overturned a
portion of the 1994 Violence Against Women Act, which gave a woman the right to sue her attacker
in federal court for civil damages, holding that the effects of violence against women were too
“attenuated” to be valid under the Commerce Clause. [3] Any expected revolution in the scope of
Congress’s authority failed to materialize, however, and these two cases are probably aberrations
rather than predictors of where the Court is heading on this topic.
While the Constitution limits the federal government’s powers to those enumerated in Article I,
Section 8, the states also have broad lawmaking authority. These powers stem from the
states’ police power, which permits states to regulate broadly to protect and promote the public order,
health, safety, morals, and general welfare. You’ve probably experienced this yourself. Different
states have different speed limits, for example. Some states permit the sale of alcohol on Sundays,
while others prohibit it. Some states permit casino gambling, while others do not. A few states permit
same-sex marriage, while many do not. Some states prohibit smoking in bars and restaurants,
including North Carolina, home to the nation’s tobacco industry. In California, an attempt to rein in
obesity resulted in a state law to require calorie counts on restaurant menus and a ban on the use of
trans fats. In Texas, teenagers must have parental permission to use tanning beds at a salon.
Massachusetts bans dog racing. Many states are implementing bans on texting while driving.

Hyperlink: How Assisted Suicide Ruling Affects Doctors’ Work
http://www.npr.org/templates/story/story.php?storyId=5160904

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In 1994 Oregon voters approved the country’s first physician-assisted suicide law, the Oregon Death with
Dignity Act. The law permits certain patients to voluntarily hasten death by taking a lethal dose of
prescription medication. To meet the law’s requirements, the patient must be terminally ill with less than
six months to live, must be informed and voluntarily request the medication, must be able to consume the
medication by himself or herself, must be referred to counseling, and must have the terminal diagnosis
confirmed by a second doctor. Many patients, fearing a painful or torturous natural death, obtain the
medication and never take it, but some do. In 2001 Attorney General John Ashcroft issued a rule
interpreting the federal Controlled Substances Act as prohibiting any physician from prescribing
medication under the Death with Dignity Act, subjecting any doctor who did so to federal prosecution. In
a 6–3 decision, the Supreme Court decided that the Controlled Substances Act did not grant the attorney
general the authority to override a state standard for regulating medicine.

[4]

In doing so, the Court held

that the state police power is entitled to greater deference, in this case, than Congress’s powers under the
Commerce Clause. Listen to the National Public Radio story for one physician’s account of how the Death
with Dignity Act has affected his practice.

The Oregon Death with Dignity Act case illustrates how a state, in exercising its police power, can
actually grant more civil rights to its citizens than the federal government does or wishes to.
Similarly, states that have legalized same-sex marriage have done so under their police powers,
which is permissible as long as the exercise of police power does not violate the federal Constitution.
Generally, this means the state legislation must be reasonable and applied fairly rather than
arbitrarily. Additionally, a critical limitation on the state police power is that it cannot interfere with
Congress’s power to regulate interstate commerce. This concept is known as
the dormant commerce clause because it restricts the states’ abilities to regulate commerce, rather
than the federal government’s.
A state law that discriminates against out-of-state commerce, or places an undue burden on interstate
commerce, would violate the dormant commerce clause. For example, if a state required out-of-state
corporations to pay a higher tax or fee than an in-state corporation, that would be unconstitutional.
A state that required health and safety inspections of out-of-state, but not in-state, produce or goods
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state wineries from selling directly to consumers in-state was unconstitutional. [5] Federal courts have
repeatedly held that state attempts to regulate Internet content (typically to prevent pornography)
are unduly burdensome on interstate commerce and therefore unconstitutional. Note, however, that
this prohibition against out-of-state discrimination does not prevent a state from exercising its police
power to protect state citizens, as long as the power is exercised evenly and equally. If a state wanted
to weigh trucks on highways to ensure they did not exceed maximum weight rules, for example, that
action would be permissible even if the trucks came from out of state, as long as the requirement
applied equally to all trucks on that state’s highways.
In addition to the power to regulate commerce, the Constitution places two critical powers with
Congress: the taxing power and the power to spend the taxes it collects. The taxing power is a broad
one, and the Supreme Court has not overturned a tax passed by Congress in nearly a century. As long
as the tax bears some reasonable relationship to generating revenue, the tax is valid.
States are also permitted to tax, but only if the activity taxed has a nexus to the state. A transaction
(such as a sale) that takes place inside the state would create a nexus for sales tax to attach. Working
typically creates a nexus for state or local income tax to apply, and owning real property creates a
nexus for real estate tax to apply. What happens, however, if a state’s citizen purchases goods from a
seller out of state? Traditionally, buyers do not pay sales tax to the government directly—rather, they
pay the sales tax to the seller, who collects the tax on behalf of the government and turns it over to
the government at regular intervals. In the past, mail-order catalog sellers from out of state would
not collect sales tax in states where they don’t have a physical presence. As the popularity of ecommerce has skyrocketed, more and more states are reexamining how to tax transactions from outof-state sellers by compelling those sellers to collect the applicable sales tax. Some states are so
desperate they are starting to look for a nexus anywhere they can. In New York, for example, the
legislature passed a law requiring Amazon.com to collect sales tax from New York residents based on
the presence of New York citizens who link to Amazon’s Web site in turn for a commission generated
by those links.

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Congress also has the power to “pay the debts and provide for the common defense and general
welfare.” This spending power is considered very broad. Courts have interpreted this power to mean
that Congress can spend money not only to carry out its powers under Article I, Section 8 but also to
promote any other objective, as long as it does not violate the Constitution or Bill of Rights. For
example, in 1984 Congress passed the National Minimum Drinking Age Act, which required states to
adopt a minimum age of twenty-one for the purchase and possession of alcohol. If a state did not
adopt the age-twenty-one requirement, Congress would withhold federal highway funds from that
state to repair and build new roads. One by one, states began adopting age twenty-one as the
minimum drinking age, even though the age requirement would typically be a matter of state police
power. In a challenge by South Dakota, which wanted to keep nineteen as the minimum drinking
age, the Supreme Court upheld Congress’s use of withholding funds to force the states to raise the
minimum drinking age. [6] Congress has used the spending power to coerce states to adopt a fiftyfive-mile-per-hour speed limit (rescinded by the Clinton administration) and to lower the driving
under the influence (DUI) blood alcohol level limit from 0.10 in most states to 0.08.

KEY TAKEAWAYS
Article I, Section 8 of the Constitution grants certain specific powers to Congress. The power to regulate
commerce is one of these powers, and the power of foreign commerce is explicit, total, and exclusive.
During the Great Depression, the Supreme Court greatly expanded the interpretation of Congress’s ability
to regulate domestic interstate commerce, and this expansion led to congressional authority to regulate
virtually all human activity within the United States, with very few limited exceptions. This authority
extends to civil rights, where Congress has passed several key pieces of legislation, including the Civil
Rights Act of 1964 and the Americans with Disabilities Act, under the Commerce Clause. Attempts by
judicial conservatives to circumscribe the power of the Commerce Clause appear to have failed for now.
Unlike the federal government, states have broad police powers to regulate for the health, safety, and
moral well-being of their citizens. The exercise of these police powers cannot violate the federal
Constitution and, importantly, cannot violate the dormant commerce clause by discriminating against or
placing an undue burden on interstate commerce. The power to tax is broad, and as long as a tax bears a
reasonable relationship to raising revenue, the tax is upheld as constitutional. The power to spend is
similarly broad, and Congress can spend funds to achieve broad objectives beyond its enumerated powers.
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EXERCISES
1.

Article I, Section 8 of the Constitution establishes the seat of government, which today is Washington, DC.
Residents of Washington, DC, have no representation in Congress other than a nonvoting delegate. Should
Washington, DC, residents be granted more representation? What are the legal impediments toward such
a move? What would be the political repercussions?

2.

Today the United States is one of the few remaining countries to refuse the adoption of the metric system
for weights and measures. Would the decision to “go metric” be within the powers of Congress? For more
information on this topic, explore the National Institute of Standards and Technology
athttp://www.nist.gov.

3.

Congressional authority to regulate foreign trade extends to the use of economic sanctions against rogue
foreign nations. How effective have these sanctions been in the past? Do you believe it is more effective
for Congress to ban trade with a foreign nation to encourage its citizens to overthrow hostile governments
or for Congress to encourage trade so that those citizens may prosper economically?

4.

If states are prohibited by the dormant commerce clause from discriminating against out-of-state
commerce, how can state universities charge a lower tuition rate to in-state residents? Can you distinguish
the role the state is playing when it does so, between that of a spender and that of a collector of monies?

5.

Read the New York Times article on Amazon.com and its efforts to avoid a nexus to collect sales tax,
athttp://www.nytimes.com/2009/12/27/business/27digi.html. Amazon.com generates more than twenty
billion dollars in sales annually but only collects sales taxes in five states, where it is headquartered and
where it has facilities. Through a process called “entity isolation,” the company has created methods that
allow it to avoid creating a nexus even in states where it has employees and facilities. What are the
implications of this behavior?

6.

In 2005, in an effort to coerce states to tighten up standards for issuing identity cards and driver licenses in
the fight against terrorism, Congress passed the REAL ID Act stipulating certain requirements for stateissued identification. States that failed to comply would be punished by its citizens being denied access to
federally run facilities including airports. How is this an exercise of the spending power? Do you believe
Congress should have the ability to stipulate who can use federally funded airports?

[1] Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
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[2] United States v. Lopez, 514 U.S. 549 (1995).
[3] United States v. Morris, 529 U.S. 598 (2000).
[4] Gonzalez v. Oregon, 546 U.S. 243 (2006).
[5] Granholm v. Heald, 544 U.S. 460 (2005).
[6] South Dakota v. Dole, 483 U.S. 203 (1987).

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5.3 Business and the Bill of Rights
LEARNING OBJECTIVES
1.

Learn how the Constitution protects the civil liberties of business entities.

2.

Explore how the First Amendment protects a company’s right to speak.

3.

Discuss how the due process clause protects companies from arbitrary government action.

4.

Learn how the equal protection clause protects companies from government discrimination.

The ink on the Constitution was barely dry when the first Congress began turning its attention to
amending it. During the debate surrounding the Constitution, there was much discussion about
whether or not an explicit protection of civil liberty was necessary. Some believed that the British
common-law system implicitly protected civil liberties, so a written declaration of rights wasn’t
necessary. Others believed that the Constitution created a strong federal government and that a
written declaration of rights was therefore critically necessary. In 1789, the same year the
Constitution went into effect, Congress proposed ten amendments to the Constitution, a package that
became known as the Bill of Rights. Within two years, the Bill of Rights had garnered the necessary
votes to become law.
When we speak of civil liberties protected in the Constitution, we often think of how these liberties
apply to people. Although the Constitution does not contain the word “corporation,” corporations
have some characteristics of being a “person,” so various courts have held that several of these civil
rights also apply to business entities. In this section we’ll take a closer look at how these rights apply
to businesses. In particular, we’ll examine the First, Fifth, and Fourteenth amendments.
Before we begin, it’s worth making some observations about civil liberties generally. First, there are
no absolute rights, in spite of the wording of any specific amendment. For example, the First
Amendment states that “Congress shall make no law abridging the freedom of speech.” In fact, there
are many laws that limit the freedom of speech. You aren’t allowed to libel or slander someone, for
example, or incite a crowd into a riot. Instead of absolute rights, courts have to constantly balance
competing interests in deciding where the limits of our rights lie. The right of the public to know

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information about the lives of politicians and other high-profile figures, for example, must often be
balanced by the right those citizens have to their own privacy.
Second, it’s fair to say that while the Constitution sets up a system of government based on principles
of representative democracy, the Bill of Rights exists to protect the minority, not the majority. The
vast majority of Americans will go through life without ever having their constitutional rights
trampled on. It is for the very small minority of Americans that find themselves victims of
constitutional violations that we find the greatest strength of the Bill of Rights. For this reason, many
issues raised by civil liberties generally rise above the political process, where the majority generally
prevails. For example, public opinion polls show that well over 95 percent of Americans feel that
burning the American flag should be illegal. When such an overwhelming majority agrees on
something, in a democracy the majority should prevail. In our democracy, however, the Supreme
Court has stepped in and decided that the First Amendment will protect the very tiny percentage of
the American population that wishes to burn the flag as a display of political opposition.
Additionally, it’s important to note that the only reason those of us in the majority know where the
boundaries of our civil liberties lie is because of that tiny minority. If Americans weren’t willing to
test the boundaries by burning the flag or joining the Communist Party or refusing to take loyalty
oaths or refusing to send their Amish children to public schools, then our civil liberties would remain
theoretical ideals rather than concrete rights. Finally, note that other than the right to vote, the civil
liberties protected by the Constitution extend to all persons physically on U.S. soil, not just citizens
or legal immigrants. Persons visiting the United States temporarily, such as tourists and students, as
well as undocumented aliens, are all entitled to the full protections of the U.S. Constitution while
subject to U.S. law.
Third, the extent of our civil liberties protections vary from time to time. Society evolves with
progress and challenges, and with that evolution, different needs arise in the realm of civil liberties.
The Founding Fathers could not contemplate a digital world where an act of defamation on Facebook
can spread to millions of people in a matter of hours, or imagine a society as pluralistic and diverse
as ours has become. One constitutional amendment, the Eighth, illustrates how time shifts the
meaning and application of civil liberty. The Eighth Amendment prohibits “cruel and unusual”
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punishment. The Supreme Court, in defining what “cruel and unusual” is, looks to “evolving
standards of decency” in making the determination—in other words, what is cruel and unusual today
may have been normal in years past.
Finally, major portions of the Bill of Rights apply equally to the states as they do the federal
government. When adopted, the amendments were meant to restrict the federal government only
(for example, “Congress shall make no law respecting an establishment of religion.”). States were not
similarly restricted, and many states did in fact establish official state churches in the early days of
the United States. After the Civil War, the Constitution was amended to include the Fourteenth
Amendment, which prevents any state from depriving citizens of their rights without “due process of
law.” Gradually, throughout the twentieth century, the Supreme Court developed a doctrine called
incorporation, by which the limitations on government behavior in the Bill of Rights were extended to

apply to the states as well. While many portions of the Bill of Rights apply to the states, not all of it
does. There is no requirement, for example, that states use a grand jury system to indict criminals.
There is also no requirement that states provide juries in civil trials.

Hyperlink: Does the Second Amendment Apply to the States?
http://www.npr.org/templates/story/story.php?storyId=128182208
In 2008 the Supreme Court handed down a major victory for gun owners and gun rights advocates by
declaring that a ban on handguns in the District of Columbia was unconstitutional under the Second
Amendment, which the Court held protected an individual’s right to possess a firearm in private homes in
Washington, DC, and other federal territories.

[1]

Soon after the case was decided, several lawsuits were

filed across the nation, challenging similar bans on handguns in various states. In 2010 the Supreme
Court decided that the Second Amendment is indeed incorporated against the states, meaning that state
laws banning the possession of handguns in private homes are unconstitutional.

[2]

We turn our attention first to the First Amendment. The First Amendment contains several
important clauses pertaining to speech and religion. The two different clauses on religion are
designed to be almost always in conflict with each other. On the one hand, the First Amendment

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prohibits the government from establishing any religion—this is called the Establishment Clause. On
the other hand, the First Amendment prohibits the government from restricting the free exercise of
religion—this is called the Free Exercise Clause. The conflict arises when some segments of society
believe that the Free Exercise Clause means that they can practice their religion freely and openly,
such as in a public school or city hall. Those who believe in what Thomas Jefferson called a
“wall of separation” between church and state, on the other hand, believe that the Free Exercise
Clause must be subservient to the Establishment Clause, which would strictly prohibit such public
displays of religious life.
As is often true in Bill of Rights cases, courts have had to fashion a test to draw the lines between
these two competing visions of the Establishment and Free Exercise clauses. Generally speaking, the
use of public funds for religious purposes and the public display of religious life are generally
acceptable as long as the primary motivation is not to advance a specific religion. A city that wishes
to display a Christmas tree or nativity scene, for example, would be permitted to do so as part of a
general holiday-themed cultural display that also included a menorah and Rudolph, while a public
high school that wished to have a public prayer before a football game would be prohibited. Several
evangelical Christian groups have campaigned hard to de-emphasize teaching evolution in public
high schools, replacing it with an alternative theory called intelligent design, which states that the
universe is so complex that it is impossible to be explained by random nature and, therefore, an
intelligent entity designed it. In one high-profile trial involving a lawsuit against a school board for
adopting intelligent design, a Republican-appointed federal judge found intelligent design to be a
thin disguise for the teaching of Bible-based creationism, a violation of the Establishment
Clause. [3] On the other hand, the Supreme Court has found that the use of public funds to display the
Ten Commandments on public lands such as parks is not automatically an Establishment Clause
violation, depending on the context in which the monument or statue was erected. [4]
The First Amendment also protects the right to freedom of speech. While many nations believe in the
right of citizens to think and speak freely, the United States is fairly unique in enshrining those
principles into constitutional law. As is true in most Bill of Rights cases, the cases that test the limits
of the First Amendment tend to be ones that involve the most unpopular, even heinous, speech. For
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example, after World War II many European nations outlawed the Nazi Party along with any Nazi
propaganda material, as well as neofascist ideology. As a result, many pro-Nazi and white
supremacist Web sites, books, catalogs, and music are hosted in the United States, where the First
Amendment protects even hateful speech.
Not all speech is protected by the First Amendment; the type of speech very much drives the level of
protection afforded it under the First Amendment. Courts generally recognize political speech as
speech most deserving of protection. Political dissent, displeasure with the government, forced
loyalty oaths, restrictions on party membership, and even speech advocating the overthrow of
government, all deserve extraordinary protection under the First Amendment. Political speech isn’t
always written or uttered—it can sometimes take place through symbolic speech. The Supreme Court
has held, for example, that burning the U.S. flag as a form of protest against U.S. government policy
is symbolic speech, and therefore attempts to criminalize flag burning are unconstitutional
restrictions on political speech. [5]
On the other end of the spectrum is speech that deserves no protection under the First Amendment
at all, such as speech that incites a panic (yelling “Fire” in a crowded theater when there is no fire, for
example). Defamation is another type of speech that falls into this category, and
both libel and slander are actionable torts. Obscene speech is also not subject to any protection under
the First Amendment. Defining what is obscene has always vexed courts. The best test courts have
developed is called the Miller test. [6] Under the Miller test, material is considered obscene if when
applying contemporary community standards, the work, taken as a whole, appeals to a prurient
interest in sex; portrays sexual conduct as specifically defined by applicable state law; and lacks
serious literary, artistic, political, or scientific value. It’s important to keep in mind, however, that
even obscene and defamatory speech is subject to the doctrine of prior restraint. Attempts to shut
down the speech before it is uttered are considered unconstitutional.

Hyperlink: Fleeting Expletives
http://www.npr.org/templates/story/story.php?storyId=10741235

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Although the First Amendment generally prevents the U.S. government from engaging in censorship, an
exception exists for broadcast radio and television. Unlike cable and satellite programming, which
requires viewers and listeners to “opt in” with a paid subscription to access content, broadcast radio and
television use the public airwaves to carry transmissions that are readily accessible for free by anyone with
a television or a radio. In 1973, in a case involving comedian George Carlin’s “Dirty Words” monologue,
the Supreme Court held that although the monologue wasn’t obscene, the government (through the
Federal Communications Commission, or FCC) could nonetheless regulate indecent material when
[7]

vulnerable listeners, such as children, may be listening. Under this authority, the FCC enforces the
“fleeting expletives” rule, which fines broadcasters for airing even momentary exclamations of profanity
during live broadcasts. In 2010, after several rounds of litigation, the Second Circuit Court of Appeals held
the FCC’s policy was unconstitutionally vague.

One area of First Amendment law that remains unsettled is what rights corporations have to speak,
also known as commercial speech. In the early part of the twentieth century, the Supreme Court
found that corporations had virtually no protection under the First Amendment. This view gradually
evolved as the role and influence of companies grew. Today, corporations engage not just in purely
commercial speech such as product advertising but also in matters of public policy, from
globalization to human rights to environmental protection and global warming. In 2002 it looked
like the Supreme Court would finally issue some guidance on this issue. [8] In California, Nike Inc.
was under fire from labor activists for allegedly engaging in sweatshop conditions in its foreign
factories, including hiring child labor. In response to these allegations, Nike issued a series of press
releases and denials, the “speech” in this case. Several activists filed lawsuits against Nike, claiming
that these press releases and denials constituted false advertising by a company, which is against
California law. Nike’s defense was that the press releases were more like political speech and were
therefore protected by the First Amendment. Nike lost the argument in California state courts, and
when the U.S. Supreme Court agreed to hear the case, the parties settled before the case could
proceed any further.
In early 2010, however, the Supreme Court handed down another important decision on the rights of
corporations to speak. [9] In striking down federal and twenty-two state restrictions on corporate
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spending on political campaigns, the Supreme Court held that corporations are persons and
therefore entitled to engage in political speech. Since corporations are unable to literally “speak,”
they speak through spending money, and thus restrictions on how corporations may spend money
during political campaigns are unconstitutional. The four dissenting justices worried about the
implications of this ruling. If corporations aren’t allowed to vote, then why should corporations be
allowed to spend freely to drown out the voices of real voters, who have no hopes of matching
corporate spending on issue advertisements? Similarly, foreign persons have the same rights as U.S.
citizens in making speeches on U.S. soil. If corporations are persons for purposes of speech, then it
stands to reason that foreign corporations operating in the United States are entitled to the same
protections and can also spend freely to influence U.S. elections. The implications of this ruling will
likely be felt for many years to come.
Not all protected speech is protected all the time in all places. The government is permitted to place
reasonable time, place, and manner restrictions on speech to maintain important governmental
functions. These restrictions are generally upheld if they further an important or substantial
governmental interest, they are unrelated to the suppression of free expression (in other words, are
content neutral), and any restriction on First Amendment freedoms is no greater than that necessary
to further governmental interests (the restriction is not overbreadth). Thus, for example, courts have
upheld restrictions on posting signs on city-owned utility poles and picketing or protest permit
requirements. On the other hand, when Congress tried to make it illegal for commercial Web sites to
allow minors to access “harmful” content on the Internet in the Child Online Protection Act (COPA),
the Supreme Court held the Act unconstitutional because of the overbreadth doctrine. [10] The Court
found there were less restrictive alternatives than the Act, such as blocking and filtering software,
and therefore the burdens placed by COPA on the First Amendment, by sweeping both legal as well
as illegal behavior, were too heavy to be constitutional.
Figure 5.4 Joseph Frederick and Bong Hits 4 Jesus

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Source: Photo courtesy of Clay Good / Zuma Press,http://en.wikipedia.org/wiki/File:Bh4j.jpg.

Does this doctrine permit school officials to curb the free speech rights of high school students, who
otherwise have rights outside of school hours? In 2002 an eighteen-year-old high school senior was
suspended after he (with help from some friends) unfurled a banner during the Olympic torch relay
through his town. The student, Joseph Frederick, was not in school that day and was standing across
the street from the school when he unfurled the banner (Figure 5.4 "Joseph Frederick and Bong Hits
4 Jesus"). When asked later what the banner meant, Frederick replied that it was a nonsensical
phrase he saw on a sticker while snowboarding. Frederick sued his high school principal for violating
his First Amendment rights and won in the lower courts. On appeal, however, by a 5–4 decision the
Supreme Court held that the school, which has a zero-tolerance policy on drug use, could restrict a
student’s prodrug message even in these circumstances. [11]
Another important restriction on governmental authority actually appears twice in the Constitution.
The due process clause appears in both the Fifth Amendment (“No person shall…be deprived of life,
liberty or property without due process of law”) and the Fourteenth Amendment (“Nor shall any
State deprive any person of life, liberty, or property, without due process of law”). The Fifth
Amendment applies to the federal government, and after the Civil War, the Fourteenth Amendment
made due process applicable to the states as well. At its core, due process means “fundamental
fairness and decency.” The clause requires that all government action that involves the taking of life,
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liberty, or property be done fairly and for fair reasons. Notice that the due process clause applies only
to government action—it does not apply to the actions of private citizens or entities such as
corporations or, for that matter, to actions of private universities and colleges.
As interpreted by the courts, the due process clause contains two components. The first is
called procedural due process. Procedural due process requires that any government action that takes
away life, liberty, or property must be made fairly and using fair procedures. In criminal cases, this
means that before a government can move to take away life, liberty, or property, the defendant is
entitled to at least adequate notice, a hearing, and a neutral judge. For example, in 2009 the
Supreme Court held that a state Supreme Court judge’s refusal to remove himself from a case
involving a big campaign donor violated the procedural due process clause promise for a neutral
judge.

Hyperlink: The Biased Judge
http://www.npr.org/templates/story/story.php?storyId=105143851
Hugh Caperton, a small coal mine operator in West Virginia, sued the giant Massey Coal Company,
alleging that Massey used illegal tactics to force him out of business. A jury awarded Caperton more than
fifty million dollars in damages. When Massey appealed the case to the West Virginia Supreme Court, he
spent more than three million dollars on a campaign to defeat an incumbent judge and promote another
judge, who then refused to excuse himself from the appeal and ended up casting the swing vote in a 3–2
decision to overturn the fifty-million-dollar award. On appeal to the Supreme Court, the Court held that
the judge’s actions violated procedural due process.

The second component of the due process clause is substantive due process. Substantive due process
focuses on the content of government legislation itself. Generally speaking, government regulation is
justified whenever the government can articulate a rational reason for the regulation. In certain
categories, however, the government must articulate a compelling reason for the regulation. This is
the case when the regulation affects a fundamental right, which is a right deeply rooted in American
history and implicit in the concept of ordered liberty. The government must also set forth compelling

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reasons for restricting the right to vote or the right to travel. Since substantive due process is a fairly
amorphous concept, it is often used as a general basis for any lawsuit challenging government
procedures or laws that affect an individual’s or company’s civil liberties.

Hyperlink: A Question of Ethics
When Can a State Force Sterilization?
http://www.usatoday.com/news/health/2009-06-23-eugenics-carrie-buck_N.htm
In the early 1920s, the state of Virginia experimented with a eugenics program in an attempt to improve
the human race by eliminating “defects” from the human gene pool. As part of this program, Virginia
approved a law that would allow the forced sterilization of inmates in state institutions. Eighteen-year-old
Carrie Buck became the first woman sterilized under this program. Buck, who had been raped by a
nephew, was committed to the Virginia State Colony for Epileptics and Feeble-minded in Lynchburg,
Virginia. Her birth mother was also committed, as was her daughter. When Buck challenged Virginia’s law
at the Supreme Court, Justice Oliver Wendell Holmes overruled her due process objections, holding that
“it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them
starve for their imbecility, society can prevent those who are manifestly unfit from continuing their
kind…Three generations of imbeciles are enough.”

[12]

Buck became the first of tens of thousands of

Americans forced to undergo sterilization as part of a general belief in eugenics, a belief apparently shared
by members of the Supreme Court. Read the linked article to learn more about Carrie Buck, including the
total lack of any evidence of mental defect when she was sterilized.

Businesses have used the substantive due process clause to limit the award of punitive damages in
tort cases. They argue that a startlingly high punitive damage award is a state-sanctioned deprivation
of property, which means the due process clause is implicated. Furthermore, if the award is grossly
excessive, then due process is violated. In 1996 the Supreme Court heard an appeal from German
automobile manufacturer BMW arising from a case from Alabama. [13]The plaintiff argued that
although he bought his car new, it had in fact suffered some paint damage while in transit to the
dealer, and the damage was not disclosed to him. When he found out about the prior damage, he

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sued BMW, arguing that BMW’s policy (which is that if damage to new cars can be repaired for 3
percent of the car’s value or less, then the car can be repaired and sold as new) damaged the resale
value of his car. It cost six hundred dollars to fix the actual damage to his car, and the jury awarded
him four thousand dollars in compensatory damages for the lost resale value on his car. The jury
then awarded him four million dollars in punitive damages, which the Alabama Supreme Court
reduced to two million. The Supreme Court found the punitive damages award unconstitutional
under the due process clause. In its holding, the Court said that there are three factors that
determine if a punitive damage award is too high. First is the degree of reprehensibility of the
defendant’s conduct. Second is the ratio between the compensatory and punitive damage award;
generally, this ratio should be less than ten. Finally, courts should compare the punitive damage
award with civil or criminal penalties awarded for similar misconduct. The Court reiterated its
holding again in a case involving a $145 million punitive damage award against State Farm in a case
where the compensatory award was one million dollars. [14] Interestingly, Justices Scalia and Thomas,
both conservative and generally seen as friendly to business interests, dissent from this view, finding
that nothing in the due process clause prevents high punitive damage awards.
The final constitutional protection we’ll consider here is the Equal Protection Clause of the Fourteenth
Amendment. The clause states that “No state shall deny to any person within its jurisdiction the
equal protection of the laws.” As discussed previously, this clause incorporates Constitutional
protections against the states in addition to the federal government. Although drafted and adopted in
response to resistance to efforts at integration of African Americans in the South after the Civil War,
the promise of the Equal Protection Clause (enshrined at the Supreme Court building, Figure 5.5
"U.S. Supreme Court Building") continues to find application in all manner of American public life
where discrimination is an issue.
Figure 5.5 U.S. Supreme Court Building

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Source: Photo courtesy of UpstateNYer,http://en.wikipedia.org/wiki/File:CourtEqualJustice.JPG.

The Equal Protection Clause is implicated anytime a law limits the liberty of some people but not
others. In other words, it operates to scrutinize government-sponsored discrimination. While the
word “discrimination” has a negative connotation, in legal terms not all discrimination is illegal. A
criminal law might discriminate against those who steal, for example, in favor of those who don’t
steal. The Equal Protection Clause seeks to determine what forms of discrimination are permissible.
To establish a guideline for courts to use in answering equal protection cases, the Supreme Court has
established three standards of review when examining statutes that discriminate. The three
standards are known as minimal scrutiny, intermediate scrutiny, and strict scrutiny.
In the minimal scrutiny test, think of the courts turning on a twenty-watt lightbulb to look at the
statute. There’s enough light to see the statute, but the light is so dim that the judges won’t examine
the statute in great detail. Under this standard, government needs to put forth only a rational basis
for the law—the law simply has to be reasonably related to some legitimate government interest. If
the judge is satisfied that the law is based on some rational basis (keeping in mind that with the
twenty-watt lightbulb, the inquiry isn’t very deep), then the law passes equal protection. Thus, a law
that imprisons thieves easily passes minimal scrutiny, since there are many rational reasons to
imprison thieves. As a matter of course, the vast majority of cases that are scrutinized under minimal

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scrutiny easily pass review. Most laws fall into this category of scrutiny by default—courts apply
heightened scrutiny only in special circumstances. Even under this low standard, however,
governments must be able to articulate a rational basis for the law. For example, in 1995 Colorado
approved a state constitutional amendment that would have prevented any city, town, or county in
Colorado from recognizing homosexuals as a protected class of citizens. The Supreme Court struck
down the constitutional amendment, finding there was no rational basis for it and that it was in fact
motivated by a “bare desire to harm a politically unpopular group.”[15]
The intermediate scrutiny test is reserved for cases where the government discriminates on the basis
of sex or gender. Under this test, the government has to prove that the law in question is
substantially related to an important government interest. Think of the courts turning on a sixty-watt
lightbulb in this test, because they’re expecting the government to provide more than just a rational
justification for the law. Using this test, courts have invalidated gender restrictions on admissions to
nursing school, laws that state only wives can receive alimony, and a higher minimum drinking age
for men. In one important case, the Supreme Court held that the system for single-sex education at
the Virginia Military Institute violated the Equal Protection Clause. [16] On the other hand, courts
have been willing to tolerate gender discrimination in the male-only Selective Service (military draft)
system.
The strict scrutiny test is used when the government discriminates against a suspect class. Under this
test, the government has to prove that the law is justified by a compelling governmental interest, that
the law is narrowly tailored to achieve that goal or interest, and that the law is the least restrictive
means to achieve that interest. Here, the courts are turning on a one-hundred-watt lightbulb in
examining the law, so they can examine the law in great detail to find justification. The standard is
reserved for only a few classifications: laws that affect “fundamental rights” such as the rights in the
Bill of Rights and any government discrimination that affects a “suspect classification” such as race
or national origin. In practice, when courts find that strict scrutiny applies, a law is very often struck
down as unconstitutional because it’s so hard for government to pass this standard of review.
Certainly, most laws that discriminate on the basis of race are struck down on this basis. There are a
few exceptions, however, where the Supreme Court has held that racial discrimination may be
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permissible even under strict scrutiny. The first case rose in the height of World War II, when the
federal government sought to intern Japanese Americans into camps on the basis that they may pose
a national security risk. Fred Korematsu sued the federal government under the equal protection
clause, arguing that as an American citizen the government was unfairly discriminating against him
on the basis of race, especially in light of the fact that Americans of Italian and German descent were
not treated similarly. In a 6–3 decision, the Supreme Court sided with the government. [17] Although
that decision has never been overturned, the U.S. government officially apologized for the
internment camps in the 1980s, paid many millions of dollars in reparations, and eventually awarded
Fred Korematsu the Presidential Medal of Freedom.
A second case involving the use of racial discrimination surrounds the issue of affirmative action in
higher education. Many elite colleges and universities would have no problem filling their entire
entering class with stellar academic students with high grade point averages and standardized testing
scores. If they did this, however, their classrooms would generally look quite similar, as these
students tend to come from a largely white, upper-middle-class socioeconomic profile. In a belief
that diversity adds value to the classroom learning experience, the University of Michigan added
“points” to an applicant’s profile if the applicant was a student athlete, from a diverse racial
background, or from a rural area in Michigan. When this practice was challenged, the Supreme Court
found that this point system operated too much like a race quota, which has been illegal since the
1970s, and overturned the system. [18] In a challenge by a law school applicant denied admission,
however, the Supreme Court upheld the law school’s system, which rather than assigning a
mathematical formula, used a system where race was only a “potential plus factor” to be considered
with many other factors. [19] After extensive briefing, including a record number of amicus briefs, the
Court found that diversity in higher education is a compelling enough state interest that schools
could consider race in deciding whether or not to admit students. The Court did caution, however,
that schools should move toward race-neutral systems and that affirmative action should not last
more than twenty-five more years.

KEY TAKEAWAYS

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The Bill of Rights provides key civil liberties to all Americans and persons on U.S. soil. These liberties are
never absolute, subject to competing interests that courts must balance in making their decisions. These
rights also vary from time to time and are generally designed to protect the weakest in society rather than
the strongest. Many, but not all, of the restrictions on government activity found in the Bill of Rights also
apply to the states through incorporation. The First Amendment prohibits the government from
establishing religion and from restricting the free exercise thereof. The First Amendment also prohibits the
government from restricting the freedom of speech. Political speech is protected to the fullest extent by
the First Amendment, while obscene and defamatory speech is not protected at all but subject to the
doctrine of prior restraint. Corporations have some free speech rights under the corporate speech
doctrine. Generally speaking, states may impose reasonable time, place, and manner restrictions on the
delivery of speech. Procedural due process requires that the government use fair procedures anytime it
seeks to deprive a citizen of life, liberty, or property. Substantive due process requires the government to
articulate a rational basis for passing laws or, when fundamental rights are involved, to articulate a
compelling reason to do so. Substantive due process has been used by the Supreme Court to limit punitive
damage amounts. Equal protection requires the government to justify discrimination. In cases of racial
discrimination, courts apply strict scrutiny to the law. In cases involving sex or gender discrimination, the
courts apply an intermediate level of scrutiny, and in all other cases, courts apply a minimal basis of
scrutiny.

EXERCISES
1.

Although the First Amendment prohibits the government from establishing religion, there is no prohibition
on spending money to support religious life generally. For example, the White House Office of Faith-based
and Neighborhood Partnerships provides funding to several religious organizations, including
organizations that maintain discriminatory policies toward gays and lesbians and routinely engage in
proselytizing activity. Do you believe that public money should be used to fund these groups? Why or why
not?

2.

In 2006 Ohio passed a law requiring all public schools that receive a donation of a plaque or poster with
Ohio’s state motto, “In God We Trust,” to display the donation prominently in a school cafeteria or
classroom. Do you believe this law is a violation of the First Amendment? Why or why not?

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3.

During the 2004 Super Bowl halftime show, a performance by Janet Jackson and Justin Timberlake ended
in a “wardrobe malfunction” when Janet Jackson’s breast was exposed for a split second. CBS was fined
more than half a million dollars for this violation after a record number of complaints were filed with the
FCC. Do you believe that the government’s action was fair?

4.

In 1969 the Supreme Court ruled that school officials could not restrict students from wearing black
armbands as a peace sign protesting the U.S. involvement in the Vietnam War, ruling that students do not
shed their constitutional rights at the schoolhouse gates.

[20]

In 2007 the Supreme Court held that school

officials could restrict students from engaging in speech that might undermine the school’s zero-tolerance
policy on drug use. What factors do you think might explain the Court’s decisions in these two cases?
5.

Try to find out if the Supreme Court has ever overturned Buck v. Bell. Do you believe that an attempt by
the state to force sterilization on mentally disabled women would survive a due process challenge today?
If the government is permitted to force sterilization, does that mean that the government also has the
power to force women to have children if it can articulate compelling enough reasons to do so?

6.

Laws discriminating on the basis of age fall into the minimal basis scrutiny category. A state that wishes to
raise the drinking age to twenty-five or the driving age to twenty, for example, needs to put forward only a
rational basis for that law. Do you believe that age should fall into this category or into one of the other
two categories for heightened review??

7.

Do you believe that public universities should be able to consider race as a factor in deciding whether or
not to admit a student? If a university is unable to consider race, how else might it design an admissions
program to achieve a diverse classroom? What would have been the impact if the Grutter case had been
decided in favor of the plaintiff?

[1] District of Columbia v. Heller, 554 U.S. ___ (2008),http://www.law.cornell.edu/supct/html/07290.ZS.html (accessed October 2, 2010).
[2] McDonald v. Chicago, 561 U.S. ___ (2010),http://www.supremecourt.gov/opinions/09pdf/081521.pdf (accessed October 2, 2010).
[3] Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005).
[4] Van Orden v. Perry, 545 U.S. 677 (2005).
[5] Texas v. Johnson, 491 U.S. 397 (1989).

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[6] Miller v. California, 413 U.S. 15 (1973).
[7] F.C.C. v. Pacifica, 438 U.S. 726 (1978).
[8] Nike v. Kasky, 539 U.S. 654 (2003).
[9] Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), http://www.fec.gov/
law/litigation/cu_sc08_opinion.pdf (accessed October 2, 2010).
[10] ACLU v. Ashcroft, 535 U.S. 564 (2002).
[11] Morse v. Frederick, 551 U.S. 393 (2007).
[12] Buck v. Bell, 274 U.S. 200 (1927).
[13] BMW of North America Inc. v. Gore, 517 U.S. 559 (1996).
[14] State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003).
[15] Romer v. Evans, 517 U.S. 620 (1996).
[16] United States v. Virginia, 518 U.S. 515 (1996).
[17] Korematsu v. United States, 323 U.S. 214 (1944).
[18] Gratz v. Bollinger, 539 U.S. 244 (2003).
[19] Grutter v. Bollinger, 539 U.S. 306 (2003).
[20] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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5.4 Concluding Thoughts
For being such a short document, the Constitution can be complex to interpret. The needs of a varied
and diverse nation, as well as corporate enterprises, all demand a constitutional framework that is
rigid enough to provide strict checks against tyranny by the majority, while flexible enough to adapt
to new changing societal values and mores, as well as rapidly changing business conditions.
Understanding the framework of government established by the Constitution, the powers of each
branch of government, and the substantive rights afforded to individuals and companies is a critical
part of being an informed citizen. As our nation faces a new century with both uncertain currents and
a future brighter than the Founding Fathers could have envisioned, the Constitution will continue to
provide bedrock principles to ensure the “blessings of liberty” to all.

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Chapter 6

Contracts
LEARNING OBJECTIVES
After reading this chapter, you should understand what a contract is, how a contract is formed, the types
of law that govern contracts, the elements of common-law contract formation, and defenses to contracts.
You will learn about performance and discharge, breach, and remedies. You will also understand
important differences between common-law contracts and contracts between merchants under the
Uniform Commercial Code (UCC). You will recognize commonly used clauses in contracts and their
importance. You will also learn about assignment, delegation, and parol evidence. At the conclusion of this
chapter, you should be able to answer the following questions:
1.

What is a contract?

2.

How is a contract formed?

3.

When does common law govern contract formation, and when is the UCC relevant?

4.

What are the defenses to performance of a contract?

5.

What does it mean to breach a contract, and what are the consequences of breach?

6.

What are remedies for breach of contract?

7.

What common clauses can be used to accomplish certain goals, such as ensuring expediency, limiting
liability, or restricting assignment?

Clint Eastwood had a long-term relationship with Sondra Locke. Sadly, the relationship deteriorated
and, allegedly, ended on unfriendly terms. The couple never married, but they shared a household
for many years, and they worked on many professional projects together. When the relationship
ended, Locke sued Eastwood for various causes of action. To settle the case, Eastwood proposed,
among other things, that if Locke dropped the lawsuit against him, he would secure a development
deal for Locke at Warner Bros. Inc. Locke was not only an actress; she was also a director. No doubt
assuming that this deal would advance her professional interests and, at the same time, bring a longstanding personal dispute to an end, Locke agreed. Locke entered into a settlement agreement with
Eastwood, and as promised, she contemporaneously entered into an agreement with Warner Bros.

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The agreement with Warner Bros. had two components. First, it required Locke to submit work that
she was interested in developing, before she submitted it elsewhere. Warner Bros. was to accept or
reject the work within thirty days. For this part of the contract, Locke would receive $250,000 per
year for three years. Second, the contract was a $750,000 “pay or play” deal, which gave Warner
Bros. a choice between using Locke’s services as a director and paying Locke a fee. Though Locke did
not know this, Eastwood agreed to reimburse Warner Bros. for the cost of this contract if she did not
have success in developing her projects or using her director services. Warner Bros. paid the $1.5
million contemplated under the contract, but it did not develop any of Locke’s thirty proposed
projects, and it did not hire her to direct any films.
Locke argued that the agreement had been a sham, because Warner Bros. had never intended to
make films with her. She also argued that its only motivation for entering into the contract with her
was to help Eastwood in settling her earlier claims against him. Locke sued Warner Bros. for a
number of claims, including a breach of the implied covenant of good faith and fair dealing, and fraud.
She alleged that she was deprived of the benefit of the bargain and that Warner Bros. had no
intention of honoring its agreement with her. Warner Bros. won at trial, and Locke appealed.
The California Court of Appeals found that while the creative decisions of Warner Bros. were not
appropriate for judicial review, acting in bad faith by refusing to consider the merits of Locke’s
proposals was a matter for the courts. The court also noted that even though the contractual sum of
money was paid, that alone did not constitute performance under the contract. Part of the value of
the contract for Locke was the opportunity to work on projects that would earn additional money and
promote and enhance Locke’s career. Moreover, the appellate court found that if Warner Bros. never
intended to work with Locke but had entered into the contract solely to accommodate Eastwood,
then a lack of good faith might be inferred. [1]
What do you think about this case? After all, Locke was compensated the amount of money explicitly
contemplated under the contract. Should it matter whether one party acts in good faith or not? We
might say that this contract contains all necessary elements to be enforceable, and it looks on its face

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as if it has been performed. However, a lack of good faith by one party could lead to damages. After
the court’s decision, the parties settled for an undisclosed amount.
Contracts are a fundamental part of doing business. A contract is a legally enforceable promise. As
you know, breaking promises is a big deal. Ethical questions arise when promises are broken. For
example, what if you promised to mow your elderly neighbor’s lawn because you wanted to help him,
but then you never got around to doing it? Wouldn’t you feel guilty about watching his grass grow
into tall weeds?
When the promise is a legally enforceable promise, feeling guilty about breaking the promise is not
the only fallout. When a legally enforceable promise is broken, the injured party can seek damages. In
contracts, this usually means that the party who breaches the contract must pay the injured party an
amount that would make that party whole again. Also, some people disagree about whether
breaching a legally enforceable promise—that is, a contract—carries any ethical implications. For
instance, if a company decides that it is less expensive to pay damages than fulfill its promise by
performing under a contract, it might make the decision to breach based on rational decision
making. That is, since it will be less expensive to breach, it makes sense to breach. Others disagree
with this approach, pointing out that reliance on promises is an important part of business that
provides necessary stability, regardless of whether keeping the promise makes economic sense or
not.
If you had a business, would you breach a contract to save money? Why or why not?
Contracts are agreements between two or more parties. Generally speaking, contracts are a form
of private law, because the terms of the contract are binding on those parties but not on everyone. The
contract representsmutual assent to a bargained-for exchange between parties.
Generally speaking, in the United States parties may enter into contracts for whatever they wish and
under any terms that they agree on. In other words, parties may assent to agreements even if those
agreements represent bad bargains. However, there are certain external restrictions on our abilities

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to form contracts. Additionally, certain internal (to the contract) restrictions may exist on our
abilities to exercise rights or to engage in other contracts.
Legal restrictions, external to the contract, limit our ability to bargain. For example, if you wanted to
hire someone to work for your company, you could not contract with that person to work onehundred-hour workweeks at twenty-five cents per hour. Even if you could find someone to work
under those conditions and even if you both agreed to those terms of the contract, our statutory and
regulatory laws prohibit you from entering into a contract with those terms. Such wages would
violate minimum wage laws.
There may also be restrictions that are internal to the contract. Imagine that you entered into an
employment contract with a company to work for $55,000 per year, plus benefits, and for a term of
two years. You might be pretty happy about that. But what if, one month later, another company
offered you the same position at its company, but for a salary of $65,000 per year, plus benefits. The
better offer does not invalidate your first contract. In fact, in such a case, your first contract would
probably contain a noncompete clause that would prohibit you from working in a similar capacity for
a specified length of time and geographic area. So even if you decided to breach your first contract to
enter into the second, you would be prohibited from doing so under the noncompete clause.

Key Takeaways
Contracts are legally enforceable promises that, if breached, result in compensable damages. Contracts
are a fundamental part of doing business, which require not only performance of the terms of the contract
but also good faith in dealing. Parties may enter into a contract for any agreement with terms, providing
the agreement is legal. Also, restrictions on ability to contract may be external, such as those imposed by
law, or they may be internal, such as those imposed by clauses like noncompete agreements.

[1] Locke v. Warner Bros. Inc., 57 Cal. App. 4th 354 (1997).

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6.1 Formation
LEARNING OBJECTIVES
1.

Find out when the Uniform Commercial Code (UCC) is the appropriate law to apply and when the
common law is the appropriate law.

2.

Learn the elements of common-law contracts.

3.

Identify the difference between common-law contracts and contracts between merchants.

A contract is a legally enforceable promise. Therefore, it is important to know whether promises
made are legally enforceable. You certainly have made many promises in your life. You have
probably broken a few promises, too. For example, if you promised your best friend that you would
be best friends forever, but then your relationship changed, we might say that is a broken promise.
However, you would not be held legally liable to pay damages for breaking that promise. On the
other hand, if you promised your bank that you would make payments to it in exchange for the bank
loaning money to you to purchase a car, and if you broke that promise by failing to pay as scheduled,
then you have broken a legally enforceable promise. The bank could seek damages from you to make
itself whole again. What is the difference between these two promises? Why would you have to pay
damages to the bank but not to your former best friend? More specifically, why is one considered a
breach of contract and the other simply a broken promise?
This section explores contract formation. We can examine the elements of formation to determine
whether the contract is valid or whether it suffers some deficiency that renders it not legally
enforceable.
In the United States, two primary sources of law govern our contracts: the common law and the
Uniform Commercial Code. The Uniform Commercial Code (UCC) article 2 governs contracts between
a merchant and the sale of goods. Essentially, the UCC contains two sets of rules for contracts. One
set involves rules for everyone, and the other set involves rules for merchants. In this section, we will
explore the UCC as it applies to merchants. Chiefly, we will examine how the UCC requirements
differ from common law in contract formation

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However, we will first address common-law contracts. Common law governs contracts for services as
well as contracts not otherwise governed by the UCC. It is important to recognize the elements of
common-law contract formation because they are more stringent than the requirements for
formation between merchants under the UCC. If all elements of common-law contract formation do
not exist, then the contract may be void or voidable.
The elements of common-law contract formation include offer, acceptance, and consideration. Offer
and acceptance together form mutual assent. Additionally, to be enforceable, the contract must be
for a legal purpose and parties to the contract must have capacity to enter into the contract.
An offer gives power of acceptance to another party, and it includes the agreement’s essential
elements, which must be definite and certain. For example, if an offeror says to you, “I offer to sell
you my scooter for four hundred dollars,” then that offer is valid. It contains the price, the person to
whom the offer is made, and the object of the offer (i.e., the scooter). It creates a power of acceptance
in you, the offeree.
Importantly, in common-law contracts, the acceptance must be amirror image of the offer to
constitute valid acceptance. This means that the acceptance must be precisely the same as the offer.
If the acceptance is not precisely the same, then it will fail to meet the requirements of an acceptance,
and it will not constitute a valid element of formation in contract. To accept the offer, the offeree
could say something like this: “I agree to buy your scooter for four hundred dollars.” If
a counteroffer is made, then that would not be acceptance, because the counteroffer would not be a
mirror image of the offer itself. So, for example, if the offeree said, “I agree to buy your scooter for
three hundred dollars,” that would not be an acceptance. In fact, a counteroffer is a rejection of the
offer. Once an offeree rejects an offer—either outright (e.g., by declining to accept) or through
counteroffer, the offeror is free to walk away from the failed negotiation. In this example, he no
longer has to sell his scooter at all, not even if the offeree changes his mind and agrees to pay four
hundred dollars. Likewise, if the offeror revokes an offer before the offeree accepts, then the power of
acceptance has been withdrawn by that revocation. The offeror would no longer have to sell the item
originally offered. If the offeror wished to limit the time that an offer was valid, he could do so by

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limiting the time that the offer may be accepted. If the offer is not accepted during that time, then the
offeror is not required to honor any acceptance that is made after expiration of the offer.
What if you saw an advertisement for a scooter for sale at a local shop? Perhaps the advertisement
looked like this:
Do you think that this advertisement should create the power of acceptance in you, a potential
customer? The fact is that an advertisement is not an offer. It is simply an invitation to bargain.
Advertisements are requests for people to make offers. This places the power of acceptance on the
merchant, who is free to reject offers or to choose to whom he sells. Of course, certain statutory
protections exist today to protect consumers against unscrupulous merchants who might engage in
unethical behavior, such as bait-and-switch or false advertising, or race-based denial of services or
refusal to contract. Specifically, consumer protection statutes and civil rights statutes, respectively,
would protect consumers in such circumstances.
If an offer is valid, then the acceptance must be a mirror image, as mentioned previously.
A bilateral contract is a contract in which both parties make a promise. The previous example is an
example of a bilateral contract. The following is a promise for a promise:
The offeror says, “I offer to sell you my scooter for four hundred dollars.”
The offeree replies, “I agree to buy your scooter for four hundred dollars.”

Specifically, it is a promise to sell the scooter in exchange for a promise to buy the scooter for four
hundred dollars. Since this is a promise for a promise, then this is a bilateral contract.
A unilateral contract is one in which the accepting party may only accept through an action. Here is
an example:
The offeror says, “I will sell this scooter to the first person who puts four hundred dollars cash in
my hands.”
The offeree says nothing but places four hundred dollars cash into the offeror’s hands.

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This is a promise for an action. Specifically, it is a promise to sell the scooter in exchange for the
action of placing four hundred dollars cash into the offeror’s hands.
Common-law contracts can be either bilateral or unilateral.
Additionally, all common-law contracts must contain valid consideration. This means that there
must be a bargained-for exchange of acts or promises, and both parties must incur
new legal detriment or obligations as a result of the contract. Imagine that you have accepted a new
position with a company. You have a valid employment contract that you’ve successfully negotiated
prior to beginning work. All terms of the contract are valid, and both parties are bound to the
contract. Basically, this means that you have agreed to work for a specified period of time, and your
employer has agreed to compensate you with a specified salary and benefits in exchange for your
work. So far, so good, right?
Now, imagine that during your first week, your boss appears in your office and asks you to sign a new
contract that, in essence, is a noncompete agreement. This means that your employer now wants you
to sign a new contract agreeing not to compete with the company if you decide to terminate your
employment arrangement. The employer wants you to make this promise, but the employer does not
offer anything additional in return. For the purposes of this example, let’s say that you sign the new
agreement. Is this new agreement valid and binding on you? Probably not. Why? Because the
company has not suffered any new legal detriment or obligation as a result of the contract. You have
agreed to refrain from competing with the company if you leave, but the company itself has not given
you anything in return for your promise. To make this contract binding against you, your employer
should have provided consideration. For example, it could have asked you to sign the noncompete
agreement in consideration of an additional one thousand dollars of salary per year. Then, the
contract would have consideration and it would have a much greater chance of being found to be
valid. Better yet, the company should have negotiated the noncompete agreement along with your
original contract before you assumed your new position.
Let’s continue our example of an offeror who offers to sell his scooter for four hundred dollars. He
says, “I offer to sell you my scooter for four hundred dollars.” If you reply, “I agree to buy your
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scooter for four hundred dollars, if I don’t find one that I like more,” then that does not constitute
valid consideration. This is because you have placed a condition on the consideration. In essence,
you have made what appears to be a promise to do something, but instead of being a promise, it is
only an illusion of a promise. This is called an illusory promise, and it does not constitute valid
consideration. There is no legal detriment to you here, because you might find a scooter that you like
more than the one offered by the offeror. You have a way out. A legal detriment is a detriment (or
burden or obligation) that is legally enforceable. You cannot “get out” of the promise without
suffering legal detriment. The other party must be able to rely on the promise for it to constitute valid
consideration. The thing bargained for can be an act or a promise (either to do something or to
refrain from doing something.)
Additionally, for a contract to be valid, the subject matter of the contract must be for a legal purpose.
If a distributor of illegal drugs hires a pilot to fly his illegal cargo to a particular place in exchange for
payment, this is a contract for an illegal subject matter. If the drug dealer fails to honor his
agreement to pay, or if the pilot fails to honor his agreement to transport the cargo, neither aggrieved
party will find a remedy in our courts, even if the elements of contract are all present and perfectly
formed.
Moreover, the parties to contract must have capacity to enter into the contract for its terms to be
enforceable against them. Adults of sound mind have capacity. Minors lack legal capacity, but they
may enter into contracts that they may cancel at their sole option. In other words, a minor who
enters into a contract with a party who has capacity may void the contract, but the other party may
not. This means that any contract with a minor is voidable by the minor under the infancy doctrine.
Let’s compare common-law contract formation with UCC contract formation. Recall that common
law governs contracts for services and contracts not governed by the UCC. Article 2 of the UCC
governs the sale of goods, which is defined by §2-105 and includes things that are moveable, but not
money or securities. It does not include land or houses. Contracts between merchants are also
governed by article 2 of the UCC. Generally speaking, §2-104 defines a merchant as a person who
deals in goods or holds himself out as having special knowledge or skill regarding the practices or

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goods that are the subject of the transaction. Since contracts law is a state law issue, each state can
have different laws related to contracts. The UCC seeks to provide uniformity to contracts law among
the different states. However, like other uniform laws, the UCC does not become a law until state
legislatures adopt it as law. All fifty states have adopted some version of the UCC.
As you can imagine, contracts between merchants do not always contain offers that include definite
terms, and acceptances are not always mirror images. Merchants typically place a purchase order
when they wish to purchase materials, and the seller often sends an invoice with the order when it
ships. Merchants frequently use boilerplate language in their individual purchase orders and invoices.
Obviously, not every merchant’s contract will contain the same language as those of other merchants.
This can lead to discrepancies between terms that would be fatal in common-law contract formation,
otherwise known as battle of the forms. However, the UCC provides more flexibility in contract
formation than exists in common-law contracts, thereby accommodating the reality of business
practices. The requirements for common-law contract formation would be too burdensome for
merchants. Can you imagine if every merchant had to issue offers with definite terms and receive
mirror image acceptances for every item that it sold or purchased to have valid, enforceable
contracts? Such a burden might cause commerce to come to a screeching halt. Or it might lead to
many contracts disputes.
The UCC also embodies some elements of the Statute of Frauds. The Statute of Frauds requires
certain types of contracts to be in writing to be enforceable. Specifically, it requires contracts to be in
writing for goods priced at five hundred dollars or more and signed by the defendant, for those
contracts to be enforceable. Other important types of contracts relevant to business that must be in
writing and signed by the defendant to be enforceable include contracts for any interest in land,
promises to pay the debts of another, and contracts that cannot be performed within one year. The
types of contracts that are contemplated by the Statute of Frauds but are not captured by the UCC
are often embodied in state statutes. The peculiar name—the Statute of Frauds—is derived from its
early incarnation in seventeenth-century England, when a statute was passed by parliament to
reduce or prevent fraud in property transactions and other important civil matters.

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Of primary concern to students of business are the differences between common-law contracts and
the UCC. When analyzing a contracts issue, identification of the type of law that governs the contract
should be addressed first. This is because you cannot know which rule applies unless you know
which type of law is applicable.
The primary differences between common-law contracts and the UCC are in the UCC’s relaxation of
various common-law contract formation requirements. See Table 6.1 "Differences between Contract
Formations by Type of Law" for a comparison between common-law and UCC contract formation
requirements. When a battle of the forms ensues between merchants, for example, the conflicting
terms are not fatal to the contract. This is a major departure from the mirror image rule required by
common-law contracts. For the UCC, the primary issue is whether the parties intended to enter into
a binding agreement. New or additional terms included in an offer will become part of the contract
on acceptance. Terms that conflict with each other will “fall out” of the contract and be replaced by
UCC gap fillers, which can create the terms of the contract. Likewise, terms that are left open will be
filled in. Gap fillers are terms provided by the UCC, and they can be inserted into a contract when
those terms are not definite. While prices, delivery dates, warranties, and other terms can be “filled
in” by the UCC gap fillers, quantity cannot. Quantity, therefore, is an essential term that must be
specified in the contract for it to be binding.
Table 6.1 Differences between Contract Formations by Type of Law

UCC

Common Law

Any manner that shows agreement to contract (e.g., words,
actions, writing)

Mirror image acceptance required

Quantity term required; other terms may be filled in with gap
fillers

Essential terms must be definite

Contracts between merchants; contracts for sale of goods
priced at $500 or more

Contracts for services and for interest in
real property

KEY TAKEAWAYS
A contract is a legally enforceable promise. Common law and the UCC are different sources of contract
law. Common law is the appropriate type of law for service contracts and contracts that do not fall under
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the UCC, like real estate contracts. The UCC governs contracts involving the sale of goods with a price of
five hundred dollars or more and in contracts between merchants. Common-law contract formation
requires a valid offer, acceptance, and consideration. The parties must have capacity, and the subject
matter must be a legal purpose. The UCC relaxes formation requirements by allowing the use of gap fillers
for undefined or conflicting terms and by allowing a contract to be formed by any manner that shows
agreement to contract. Quantity is a required term for contracts governed by the UCC.

EXERCISES
1.

If a contract was not entered in good faith, do you think that fact alone should matter? Consider Locke v.
Warner Bros. Inc., which was discussed in the introduction to this chapter. All essential elements of the
contract appear to have existed, and the parties performed as required by the wording of the contract.
How can lack of good faith be shown?

2.

Has anyone ever broken a promise to you? Were those promises legally enforceable promises? Why or
why not? Be sure to analyze the agreement by checking to see if all elements of contract formation were
present. Remember to first determine whether the promise was one governed by the UCC or by common
law.

3.

What are the dangers inherent to making a counteroffer? Imagine that you really wanted to sell your
house. You receive an attractive offer, but you wondered whether you might be able to sell the house for
a little more money. What types of things should you think about before submitting a counteroffer?

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6.2 Performance and Discharge, Breach, Defenses, Equitable
Remedies
LEARNING OBJECTIVES
1.

Learn what constitutes performance.

2.

Understand what it means to discharge obligations in a contract.

3.

Explore different standards of performance.

4.

Examine breach.

5.

Explore defenses to breach.

6.

Learn about equitable remedies.

A contract is an enforceable promise. When the promise is fulfilled, then the contract terms have
been satisfied. This means that the parties are discharged from the contract, because they have
already fulfilled their legal duties under it. That is, they have satisfactorily performed their
obligations under the contract. Performance simply means undertaking the legal duties imposed on
us by the terms of the contract. This is certainly what parties hope for when they enter into a
contract—the successful execution of the terms of the contract and subsequent discharge from it.
But how do we know whether the contract terms have been performed? Sometimes it’s easy to
determine. For instance, if I offer to sell you my scooter for four hundred dollars, you agree to buy
my scooter for four hundred dollars, and we exchange those items, then we have fulfilled our
obligations under the terms of the contract. We formed a contract, we fully performed our
obligations under it (known as complete performance), and we are subsequently discharged from
further duties arising under that contract.
In other cases, whether a party has performed can be trickier to determine. For example, imagine
that you hire a builder to construct a new home for you. You specify all dimensions of the home, as
well as your chosen building materials. Certainly this would be a very detailed contract. Imagine that
all essential elements have been determined and that the contract is valid. In short, the builder
agrees to build your specified home, and you agree to pay the builder the agreed on price. Imagine
that everything goes according to plan. When your home has been constructed, you visit it for the
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first time. To your dismay, you see that the foyer has been tiled in red ceramic, even though you
clearly specified—and the contract clearly reflected—that the foyer should be tiled in blue ceramic.
However, on your further inspection, every other item specified in the contract has been completely
performed. Would we say that the builder has performed his duties under this contract? The item at
issue is the problem with the foyer tile. Does this error rise to breach? More importantly, does this
excuse your obligations under the contract to pay the builder for his work?
When a party fails to perform under the terms of the contract without a legally justifiable reason, the
party is said to be in breach of the contract. However, in a service contract—such as a service to build
a house—the standard of performance is substantial performance. This means that the performing
party acted in good faith and conveyed enough benefit of the contract to the other party so that the
other party can use the benefit for its intended purpose, and the defects arising under the contract
may be remedied by money damages. A material breach in a service contract is when a party has not
substantially performed under the terms of the contract. A minor breach is when the party has
substantially performed but has not strictly performed. In our example, installation of the red tile in
the foyer would not rise to material breach, because presumably the builder acted in good faith, he
produced a house that is capable of being used for its intended purpose, and the defects (the red tile)
can be remedied through monetary damages. They simply need to be replaced by blue tiles. This was
a minor breach. If this were your contract, you would have to pay the builder as required under the
contract, less the cost of replacing the tile.
Consider the firing of Texas Tech’s head football coach, Mike Leach, in Note 6.47 "Hyperlink: Coach
Mike Leach" to practice your analytical skills. Try to identify what additional information you would
need to determine whether substantial performance exists, or whether the contract has been
materially breached.
Sometimes, substantial performance is not adequate. Adherence to a strict performance standard
requires express terms in the contract to that effect and circumstances where such a high standard is
reasonable. In our scooter example, if you tried to give the offeror three hundred dollars in cash and
one hundred dollars in postage stamps, then that would most likely not satisfy the terms of the

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contract. You might recall that the contract was a bargain for a scooter in exchange for four hundred
dollars. Here, strict performance makes sense and is reasonable.
Performance to the standard of personal satisfaction can be enforced if the contract expressly requires
it. This means that the performance under the contract is scrutinized subjectively, either by one party
to the contract or by a third-party beneficiary specified in the contract. If the subject of the contract
is something for which approval is dependent on someone’s subjective opinion, like personal taste,
then assessment can be made on a subjective standard providing this standard is clearly specified in
the contract. For example, if you owned a piano bar, and you wished to hire a truly inspired pianist
for entertainment, you might enter into a contract with a pianist subject to a personal satisfaction
standard. Even if that person could tickle the ivory flawlessly, you might decide that his or her music
is technically accurate but not truly inspired. Providing that your contract with the pianist allows for
personal satisfaction to be the standard of performance, you may terminate that contract based on
his or her failure to meet the personal satisfaction standard. This standard is unlike the substantial
performance standard, which requires an objective assessment based on
the reasonable person standard. Referring again to Note 6.47 "Hyperlink: Coach Mike Leach", which
standard appears to be controlling Texas Tech’s decision to terminate Coach Leach’s contract—
personal satisfaction or substantial performance? Which standard is appropriate for a contract for
coaching services?

Hyperlink: Coach Mike Leach
Head football coach Mike Leach of Texas Tech was fired for breach of contract. He had recently signed a
$12.7 million contract for five years, and he had been named by the Associated Press as the Big XII Coach
of the Year in 2008. However, that didn’t stop Texas Tech from firing him, citing breach of performance
as the reason for the termination. Under the terms of his contract, he was to “assure the fair and
responsible treatment of student-athletes in relation to their health, welfare, and discipline.” Allegedly,
Coach Leach forced a student athlete to stand in a shed after the athlete was diagnosed with a mild
concussion. Leach’s supporters argue that the “shed” was a comfortable garage-like room with a cooler
and a fan and that Coach Leach was simply having the player stand inside, out of the sun, in accordance
with medical orders. Others argue that this was a sadistic punishment that was inappropriately levied
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against an injured player. Was Leach being cruel, or was he being protective of his charge in accordance
with his contract terms?
Underlying this controversy are allegations that the firing occurred because Leach interviewed with
another university unbeknownst to Texas Tech and because he has a colorful personality that might
offend some people. For instance, he allegedly blamed his players’ “fat little girlfriends” for distracting
them to their defeat against Texas A&M.
Coach Leach was fired just before receiving an alleged $800,000 contractual bonus.
Check out the story here:
http://www.cnn.com/2009/US/12/31/texas.tech.leach/index.html?iref=allsearch
Check out the video of the story here:
http://sports.espn.go.com/ncf/bowls09/news/story?id=4781981
Watch Coach Leach here:
http://sports.espn.go.com/ncf/bowls09/news/story?id=4781981
Watch speculation about Coach Leach’s likelihood of being hired here:
http://sports.espn.go.com/ncf/bowls09/news/story?id=4781981
See the exercises in this section for related questions and discussion.

As mentioned previously, when the promises in a contract have been fulfilled based on the
appropriate standard—substantial performance, strict performance, or personal satisfaction—then
the parties are discharged. However, when a material breach occurs, the injured party may bring a
claim for damages. But that isn’t necessarily the end of the story. The breaching party may have a
valid reason for breaching the contract. These valid reasons are known as defenses to contract. These
defenses include formation problems, lack of capacity, illegality of subject matter, impossibility,

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duress, unconscionability, undue influence, violation of the Statute of Frauds requirement that
certain types of contracts must be in writing to be enforceable against the defendant, exceeding the
statute of limitations, mistake, misrepresentation, fraud, commercial impracticability, and
frustration of purpose. Bankruptcy discharge is a permanent legal excuse from performance, and it
will discharge obligations that are dischargeable by law if the debtor successful fulfills his obligations
under the bankruptcy. Obligations that are not dischargeable by law will not be permanently
discharged by a bankruptcy. However, during the bankruptcy, the performance of contract terms
requiring payment of debt incurred prior to filing the bankruptcy petition is suspended by the court
until the bankruptcy is terminated either by successful completion of the bankruptcy or by dismissal
of the case.
Formation problems in common-law contracts relate to whether the offer, acceptance, and
consideration were valid. For example, if the offer did not contain the essential terms in definite and
certain form, then that offer will not be valid. If I offered to sell you my house for a fair price, it would
not be a sufficient offer because the price term is an essential element, and in this offer it is vague. To
say that a house will be sold “for a fair price” is not specific. Likewise, in a common-law contract, if
the acceptance is not a mirror image of the offer, then the acceptance will not be valid. Similarly, if
consideration does not firmly commit the parties to the deal, then consideration will fail, as is the
case with an illusory promise. For example, if I offered to sell you my house for $150,000, and you
agreed to buy it “if you like it,” then that is not a firm commitment. Consideration will fail, and the
contract has not formed. As a practical matter, how can this defense be used? The defendant simply
needs to show that the contract was never formed in the first place, due to one or more deficiencies
in formation. Keep in mind, however, that if the Uniform Commercial Code (UCC) is the relevant
type of law, formation is much simpler than in common law. For example, all essential elements do
not need to be stated in definite and certain terms (but quantity must be stated), and acceptance
does not need to be a mirror image of the offer. Accordingly, in contracts in which the UCC is the
relevant type of law, this defense can be more challenging to successfully mount.
Sometimes when all elements of the contract are not present, the court will enforce the promise
through an equitable remedy to avoid a perceived injustice that would occur if the contract failed
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based on a formation defect. Quasi-contract and promissory estoppel are two types of equitable
remedies that a court may impose. When detrimental reliance is found, an equitable remedy can
substitute for consideration. This allows the court to enforce the terms of the “contract,” even
though, technically speaking, there was no contract to begin with.
Quasi-contract is determined when one party will receive a benefit from the other unjustly
(unjust enrichment), and the party who tendered the benefit reasonably expected to be paid for it. The
party who received the benefit knew that the other party reasonably expected to be paid. For
example, imagine that your neighbor hired painters to paint his house, but the painters accidentally
appeared at your house to work. Instead of sending them away, you decided to let them paint your
house, but you did not tell them that they were at the wrong house. At the end of the job, they
demanded payment. You point out that they never had a contract with you. While this would be true
in fact, the issue is that you would be unjustly enriched by their painting of your house if you were
not made to pay. Additionally, you knew that the painters would reasonably expect to be paid for
their services, and you did nothing to stop them. This would be a good case for a court to impose the
equitable remedy of quasi-contract. The damages awarded in such case are called quantum meruit,
which means “as much as is deserved.” The painters will receive the value of their services in
damages. Compare this situation with one in which you were on vacation when the painters painted
your house. You knew nothing of their presence. In such a case, quasi-contract would not be imposed
as an equitable remedy because you were not aware of their presence. In fact, you would have a
potential claim against the painters for interfering with your property and entering your land without
your permission. Promissory estoppel is another equitable remedy. It is imposed on parties when
one party detrimentally relied on another’s promise, and to avoid injustice, the enforcement of the
promise is required. Like quasi-contract, when promissory estoppel is used, there is some formation
problem with the contract so, technically speaking, no contract exists.
The remaining defenses discussed in this chapter are relevant if the contract is valid. That is, there
are no formation problems. For example, if a party lacks capacity to enter into a binding contract,
that can be used as a defense. When people lack the mental ability to understand, they lack capacity.
Sometimes, it may seem that someone understands, even though he or she might actually lack legal
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capacity. This is the case with minors. Though some may certainly understand the terms of a
contract, they lack the legal capacity to be bound to it. That means that they can disaffirm the
contract if they wish. Likewise, someone who suffers from a temporary or permanent cognitive defect
lacks capacity to be bound to a contract. This may be the case with an infant, a person who suffers
from dementia, or a person who has other profound cognitive or mental impairment. Use of alcohol
or drugs may impair capacity, but the courts are reluctant to find this as a convincing defense,
particularly if the person voluntarily imbibed in the alcohol or drug use themselves. If they were
involuntarily drugged, however, then lack of capacity can be a good defense. If someone does not
read or speak the language in which the contract is written, that can also indicate a lack of capacity.
If the subject matter of a contract or the terms of the contract are illegal, then the contract may be
void at the outset, or it may become void if the subject matter or the terms of the contract become
illegal after the contract is formed. The former case can be illustrated by imagining a contract for the
production of illegal drugs. A defense to performance is that the contract itself concerns an illegal
subject matter. A court will not step in to such a contract to enforce its promises.
The latter case of illegality of the terms of the contract is an example of impossibility as a defense.
Impossibility is a defense that can be used when performing the contract has become truly
impossible. For example, if you entered into a contract to do business in a country that was
subsequently placed on a no-trade list by the federal government, then you would be excused from
performing your obligations under that contract, because it would violate federal law for you to
perform as promised. It would be impossible, and impossibility would be a valid defense. Sometimes
impossibility does not involve the legality of the subject matter or the terms of the contract. Instead,
it might simply be a matter of the destruction of the subject matter of the contract. In our scooter
example, imagine that before the transaction was completed, the scooter was crushed by the trash
collector by accident. The subject matter of the contract was destroyed, and so it would be impossible
for the offeror to perform. The offeror would not need to find another scooter to sell to fulfill the
obligations under the contract. Instead, he or she would use the defense of impossibility.

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Another defense to contract performance is duress. If a party suffers from duress when entering the
contract, that party will have a valid defense. Duress means that the party had no other reasonable
alternative but to enter into the contract. The party was coerced into entering into the agreement.
For example, imagine that you entered into a contract for automobile insurance. Part of your
insurance contract requires your insurance company to defend you in the event of a lawsuit arising
from a traffic accident. Imagine that you are involved in a traffic accident and your insurance
company refuses to defend you. This is bad news, because you will still need to mount a defense. You
will probably expend a great deal of money defending yourself, not to mention trying to launch a
complaint against your insurance company for breach of contract. After spending all of your savings
and borrowing just to pay your bills, imagine that your insurance company comes to you with an
offer to pay you fifty thousand dollars if you sign a waiver that it has no liability to you. You will
probably sign that waiver and take the money. Why? Because you have no reasonable alternative.
This is an example of economic duress, and it is likely that no court would enforce the waiver for the
benefit of the insurance company given such facts. The insurance company forced you into signing
an agreement with it that you would not have signed if you had any other reasonable alternative.
Unconscionability is a defense used when the contract contains markedly unfair terms against the
party with less bargaining power or sophistication than the party who created the terms and induced
the other party to sign it. For example, imagine a biotech company discovering a cure for cancer from
a plant growing on the private lands of an indigenous people. Imagine that the indigenous people did
not understand the importance of the discovery, and they did not understand the value of it. If the
biotech company offered to pay for the absolute and complete rights to the plant with ten dollars and
a bag of flour, that contract might be said to be unconscionable.
Undue influence is a defense that can be used when one party ceases to be able to exercise his or her
free will due to the superior power and influence exerted over that party by the other. For example,
imagine an elderly person who is completely isolated from social contact due to poor health and
remote living conditions. That person might be quite lonely and eager for company. Say that an
unscrupulous person entered that elderly person’s life and exerted influence over that person so that
the elderly person really could not exercise his free will any longer. If, consequently, the elderly
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person entered into a contract with the other party to transfer all of his wealth to that person, we
might say that this is a case of undue influence. How might this happen? Maybe the unscrupulous
intruder is the only human contact that the elderly person has, and maybe he or she led the wealthy
elderly person to believe that the only way to salvation is by handing over his assets.
Remember, too, that the Statute of Frauds requires certain contracts to be in writing and signed by
the defendant to be enforceable against the defendant. If those types of contracts are not in writing,
that can be used as a defense to performance. Contracts for any interest in land, in consideration of
marriage, and to pay the debts of another that cannot be performed within one year and contracts for
the sale of goods with a price of five hundred dollars or more are all examples of contracts that are
required to be in writing to be enforceable according to the Statute of Frauds. If a contract exists for
these items, but the contract is not in writing, it may be performed. However, if there is a dispute
arising under the contract, it will not be enforced because it violates the Statute of Frauds
requirement for a writing.
The statute of limitations is an affirmative defense that can be raised by a defendant to argue that the
complaint is being brought too late, by law, to do anything about it. This means that if a dispute
arises under a contract, then the plaintiff must bring a complaint concerning that dispute within a
certain time period. Every state has different statutes of limitations for different types of disputes.
Contracts statutes of limitations range from three to ten years, depending on whether the contract
was oral or written, and depending on the jurisdiction.
Mistake is rarely a successful defense to contract, but it is a defense nonetheless. Mistake does not
mean bad bargaining. After all, we have the freedom to bargain badly, and the courts will not step in
to save us if we do so. For instance, if you agree to buy a house for $170,000, but the house is only
worth $150,000, you may have bargained badly, particularly if the seller did not deceive you in any
way. The court will not step in to rewrite the contract or allow you to use mistake as a defense to
excuse your performance. Indeed, the court will enforce the terms of the contract if it is a valid
contract. Mistake refers to something that is truly a mistake either by one party or by both. If the

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parties to a contract truly make a mistake with respect to essential terms of the contract, then that
can be used as a defense to performance.
Misrepresentation and fraud are also defenses to contract. Misrepresentation is when a party makes
a false statement that induces the other party to enter into the contract. Fraud is a closely related
concept, and it simply means that one party has used deception to acquire money or property. Often,
unscrupulous salespeople will commit fraud or misrepresent the subject matter of the contract in
such a way that the other party will enter into the contract. However, fraud and misrepresentation
both may be used as successful defenses in such circumstances.
Commercial impracticability is a defense that can be used when fulfilling a contract has become
extraordinarily difficult or unfair for one party.
Frustration of purpose is when the contract has become essentially worthless to one party, though
the event giving rise to that state was nonexistent or unknown to both parties to the contract at
formation.
Finally, sometimes a party to a contract files for bankruptcy protection. When that party is required
to pay a debt that was incurred before the bankruptcy was filed, that duty is suspended temporarily
or permanently when the bankruptcy is filed through the court’s automatic stay. In other words, the
debt does not have to be paid during the course of the bankruptcy. At the conclusion of the
bankruptcy, if the debtor is successful in bankruptcy and if the contract obligation is a dischargeable
debt, then the debt will never have to be paid. The debt is, in fact, discharged. Bankruptcy is a
defense to performance of contract for debtors who file for bankruptcy protection.
Remedies for breach of contract are typically monetary damages. Expectation damages, including
compensatory and consequential damages, can be recovered. However, consequential damages may
not be speculative. Indeed, they must be foreseeable to both parties at the time of the contract
formation to constitute damages by breach. Specific performance might be required under certain
types of contracts, such as in contracts for land. For example, in contracts for real property, the
assumption is that land is unique. Therefore, monetary damages are not adequate, because

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“replacement” land cannot be found that would be like the land that is the subject of the contract.
Importantly, specific performance is not an appropriate remedy for service contracts, given the
prohibition against involuntary servitude in the Thirteenth Amendment to the U.S. Constitution.
Finally, it is important to note that on breach, the injured party has a duty to mitigate his damages.
This means that he must avoid damages by making reasonable efforts to do so. If a tenant breaches a
contract by moving out of his apartment before the lease is over, the landlord will be able to recover
damages from that tenant for breaking the lease (i.e., breaching the contract). However, the landlord
also has a duty to mitigate those damages by trying to find another tenant.

KEY TAKEAWAYS
A contract is an enforceable promise. Parties to the contract must perform according to the relevant
standard—substantial performance for most service contracts, personal satisfaction, complete
performance, or strict performance. Once parties have performed, they are discharged from further
obligations under the contract. Failure to perform according to the requisite standard is a breach, which is
a compensable injury. A breach may be minor or major. Several defenses exist to breach of contract.

EXERCISES
1.

Referring to Note 6.47 "Hyperlink: Coach Mike Leach", what additional information would you need to
determine whether Coach Leach’s services fell below substantial performance and were a material breach
or whether he substantially performed his contract so that he did not materially breach it? Should
coaching services be evaluated based on substantial performance or personal satisfaction? Why?

2.

In international business, it is very common for parties to contract not to read or speak the same language.
If someone sought to enter into a contract with you, but that party could not read the language in which
your contract was written, should you enter into that contract with that person? How can this problem be
overcome so that both parties can form a legally binding contract with each other?

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6.3 Assignment, Delegation, and Commonly Used Contracts
Clauses
LEARNING OBJECTIVES
1.

Learn about assignment and delegation.

2.

Examine novation.

3.

Explore restrictions on assignment, exculpatory clauses, noncompete clauses, mandatory arbitration
clauses, acceleration clauses, and liquidated damages clauses.

4.

Explore the parol evidence rule.

What if you formed a contract with a rock ’n’ roll band for its services? Specifically, you wanted the
band to play at your nightclub, because you thought that your customers would enjoy the band
enough to pay to see it perform. You hired this specific band because you heard that it drew large
crowds of paying customers. Imagine your surprise when, as you anticipate the band’s performance,
you discover that another band—one you have never heard of—has come to play instead of the
original contracting band. On inquiry, you learn that the original band transferred its duties to
perform to a lesser known band. Can it do that?
Contract elements—the terms of the contract—are important. They may, among other things,
foreclose your ability to bring a complaint in court, they may render you unable to be hired in your
profession (at least within certain boundaries), or they may limit liability to a party that had a role in
causing injury to you. If you are not aware of these elements, then you may face an unpleasant
surprise if you act in a way contrary to the restrictions imposed by those terms. Likewise, contracts
possess certain qualities that prohibit parties from acting in certain ways, unless those qualities are
expressly waived. This section identifies common properties of contracts, as well as commonly used
elements of contracts. If you are negotiating a contract and you do not like a term, then you should
not agree to it. In law, there is a presumption that you have read, understood, and agreed to each and
every term of any contract to which you are a party. Arguing that you did not understand or that you
did not approve of a particular term in the contract will not be a valid excuse to performance. You
should know what you can expect when you enter into a contract. Are you getting the band that you

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wanted to hire to play in your nightclub, or are you really getting any band that the original band
happens to transfer its duties to?
As a preliminary matter, it is important to realize that contracts are, by law, assignable and
delegable. This means that the rights conveyed by the contract may be transferred to another party
by assignment, unless an express restriction on assignment exists within the contract, or unless an
assignment would violate public policy. Likewise, the duties imposed on a party may be transferred
to another party by delegation, unless the contract expressly restricts delegation, or there is a
substantial interest in personal performance by the original party to the contract, or if delegation
would violate public policy. In the case of a band hired to perform at a nightclub, an argument could
be made that the original band cannot delegate its duties under the contract because there was a
substantial interest in personal performance by the original band. This would render the contract
nondelegable. To be on the safe side, your contract with that band should have had a clause expressly
prohibiting delegation.
Many students have seen restrictions on assignment in the form of no-sublease clauses in leases with
landlords. Do you have a no-sublease clause in your lease? If so, that is a restriction on assignment.
This clause is necessary to prevent you from assigning your rights under the lease—your rights to
inhabit the premises—to another party. It is necessary for the landlord to include that provision
expressly if she wishes to prevent you from subleasing the unit, because there is a presumption in
law that assignment is permitted unless it is expressly prohibited by the contract or unless the
assignment would violate public policy. Since it is unlikely that letting someone else live in your
housing unit in your absence would violate public policy, then the landlord must expressly prohibit
the assignment within the original contract if she wishes to prevent tenants from subleasing. A
landlord may have a very good reason to wish to prevent subleasing; she may wish to ensure that
each tenant is creditworthy prior to allowing the tenant to live in the property.
Note that in delegation and in assignment, the original contracting party is not “off the hook” if it
transfers its duties or rights to another party. For instance, if subleasing was not prohibited, and the
new tenant assumed the rights and duties imposed by the original contract, the original party to the

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contract is still liable for the payment of rent. If the subleasing tenant does not pay the rent, the
original party to the lease is still liable. The way to excuse oneself from this liability is to form a
three-way novation with the original party and the new party, thereby excusing the exiting party from
future liability arising under the contract. A novation is essentially a new contract that transfers all
rights and duties to the new party to the contract and releases the previous party from any further
obligation arising from the original contract.
Restrictions on assignment or delegation are not the only common elements that can be found in
contracts. For example, you have probably encountered exculpatory clauses. An exculpatory clause is
an express limitation on potential or actual liability arising under the subject matter of the contract.
In short, exculpatory clauses are often employed when risk of injury exists. They seek to limit one
party’s liability to another. You most certainly have signed exculpatory agreements or contracts
containing exculpatory clauses if you have participated in any potentially dangerous activity at a club
or with an organized group that could incur liability from injuries suffered by its patrons or
members. For example, if you join a kayaking club, you will most likely be asked to sign such an
agreement to “hold harmless” the club in the event of any accident or injury. However, despite the
existence of an exculpatory clause, liability will not be limited (that is, the liability limitations will be
unenforceable) when the party who would benefit from the limitation on liability acted with gross
negligence, committed an intentional tort, or possessed greatly unequal bargaining power, or if the
limitation on liability violates public policy. Imagine that you signed an agreement to engage in
kayaking activities with a kayaking group, but the leader of the group battered you with her oar
because she was angry with you for mishandling your kayak. Since battery is an intentional tort, the
exculpatory clause will not protect the kayaking organization from liability it incurred through the
actions of its employee.
Another common contract element that you may have encountered is a noncompete clause.
A noncompete clause attempts to restrict competition for a specified period of time, within a certain
geographic region, and for specified activities. Noncomplete clauses are generally valid against the
party who signed it if the time, place, and scope are reasonable. These are very common clauses in

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employment contracts, particularly where the duties involved in employment are likely to involve
trade secrets or other proprietary information that the company wishes to protect.
A mandatory arbitration clause is very common in consumer contracts and employment contracts.
You have certainly subjected yourself to the restrictions imposed by these clauses if you have signed
a contract for a credit card. Mandatory arbitration clauses require parties to a contract that contains
such a clause to submit to mandatory arbitration in the event of a dispute arising under the contract.
Mandatory arbitration clauses frequently foreclose any possibility of appealing arbitration awards in
court.
An acceleration clause commonly exists in contracts where periodic payments are contemplated by
the agreement. For example, if you signed a lease for your housing unit, then you most likely pay rent
on a month-to-month basis. If you breached your lease, you would still owe rent for each subsequent
month contemplated by the lease agreement. This means that your landlord would have new injury
every month that you did not pay. An acceleration clause accelerates all payments due under the
contract on breach. This allows the injured party—in this case, the landlord—to sue for all damages
due for unpaid rent under that contract at once, rather than having to bring a new suit each month to
seek monthly unpaid rent.
A liquidated damages clause allows parties to set the amount of damages in the event of breach.
Agreeing to a damage amount before any breach occurs can save money and time spent litigating.
Providing that the liquidated damages clause does not look like a penalty, the clause will be valid and
enforced by a court that hears a dispute arising under the contract. For example, imagine that you
entered into a contract for the sale of your car. If the liquidated damages clause provided for two
thousand dollars of damages in the event of breach, that will probably be a valid liquidated damages
clause, providing that your car is an “average” car. However, if the liquidated damages clause
provided for one million dollars of damages payable by the breaching party, then that would not be
enforceable by the court because it looks like a penalty. The proposed liquidated damages far exceed
the value of the car that is the subject of the agreement.

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Of course, there are additional common elements to contracts. This is not an exhaustive study of
possible provisions, though it is a list of commonly encountered elements. For example, time of
performance is often included as a separate provision. However, time for performance is an essential
element in common-law contract formation, and without it, the contract may fail due to lack of
definite and certain terms in formation.
A major assumption made about a written contract is that it is integrated, which means that it
contains the entire expression of the parties’ agreement. That means that any statements made
before the parties signed the contract are not part of the contract, unless those statements are
memorialized in the contract itself. In fact, any statements or actions that are not captured within the
four corners of the contract are considered parol evidence, and they will not be used to interpret the
meaning of the contract.

KEY TAKEAWAYS
Parties to contracts must not only take care to form the agreement so that it is legally enforceable, but
they must also be aware of the properties of contracts in general, as well as specific provisions contained
within contracts to which they are a party. Properties of contracts include ability to assign, delegate, and
exclude parol evidence. Several types of contracts clauses are commonly used to restrict rights and limit
liability.

EXERCISES
1.

Think of an example of an exculpatory clause that you have signed. For what type of activity would you be
unwilling to sign an exculpatory clause? If your refusal to sign the exculpatory clause or agreement
prevented you from participating in that activity, would you still refuse to sign it?

2.

Do you think that too many limitations and restrictions can be placed on parties in a contract? Should
there be more government regulation and standardization of contract terms between private parties?
Why or why not?

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6.4 Concluding Thoughts
Contracts are an integral part of business. Without contracts, promises would not be enforceable,
which would wreak havoc on our financial stability, both individually and professionally.
The law presumes that people who sign contracts have read the contract and understood its terms.
Of course, contract language includes many terms of art, and simply reading a contract alone may
not be enough to fully understand its implications. Contracts for important matters should be
reviewed and explained by attorneys, so that parties who enter into contracts do not do so without
understanding the agreement.
It’s important to understand the implications of making promises. If those promises carry legal
duties, then, barring a defense, the promise will need to be performed so that the obligation or duties
arising under that promise can be discharged. If the promise is not performed, and if there are no
defenses, then the contract has been breached. Breach is an actionable claim, with the goal of
recovering the loss and placing the nonbreaching party back to the position that he or she would
have been in if the contract had not been breached.
Recognizing fundamental elements of contracts and how to incorporate considerations important to
you when entering into them can go far toward ensuring business success. Likewise, the failure to
recognize the traps and tricks that can be incorporated into contracts can derail a good business idea.

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Chapter 7

Torts
LEARNING OBJECTIVES
Whenever a company or individual acts unreasonably and causes injury, that person or company may be
liable for a tort. In some cases it doesn’t matter how careful or reasonable the company or individual is—
they may be liable for any injury resulting from their actions. Torts are an integral part of our civil law, and
in this chapter, you’ll learn about what kinds of torts exist and how to defend yourself or your company
from potential tort liability. Specifically, you should be able to answer the following questions:
1.

What are torts?

2.

What are intentional torts, and how does one defend against an accusation of one?

3.

What is negligence and how does it affect virtually all human activity?

4.

What is strict liability and how does it affect businesses engaged in making and selling products?

5.

What are the arguments for and against tort reform?

Figure 7.1 A Typical Construction Site

Look at the picture in Figure 7.1 "A Typical Construction Site". You’ve probably seen a similar picture
of a construction site near where you live, with multiple orange traffic cones (with reflective stripes
so they can be seen at night) and a large sign warning vehicles not to attempt to drive on the road.
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Now imagine the picture without the traffic cones, warning signs, or caution tape. If you were
driving, would you still attempt to drive on this road?
Most of us would probably answer no, since the road is obviously under construction and attempting
to drive on it may result in severe damage to property (our vehicles) and personal injury. Similarly,
pedestrians, skateboarders, and bicyclists will likely steer clear of this road even if it wasn’t clearly
marked or roped off. So if the dangers associated with this construction are obvious, why would the
construction workers go through the time and expense of setting up the traffic cones, sign, and tape?
The answer has to do with tort law. A tort can be broadly defined as a civil wrong, other than breach
of contract. In other words, a tort is any legally recognizable injury arising from the conduct (or
nonconduct, because in some cases failing to act may be a tort) of persons or corporations. The other
area of civil law that corporations have to be concerned about is contract law. There are several key
differences between torts and contracts.
First is the realm of possible plaintiffs. In contract law, only persons that you have a contract with, or
you are a third-party-beneficiary to (such as when you are named the beneficiary to a life insurance
policy and the company refuses to pay the claim), can possibly sue you for breach of contract. In tort
law, just about anyone can sue you, as long as they can establish that you owe them some sort of
legally recognized duty. The second key difference is damages, or remedies. In contract law, damages
are usually not difficult to calculate, as contract law seeks to place the parties in the same position as
if the bargain had been performed (known as compensatory damages). Compensatory damages also
apply in tort law, but they are much more difficult to calculate. Since money cannot bring the dead
back to life or regrow a limb, tort law seeks to find a suitable monetary equivalent to those losses,
which as you can imagine is a very difficult thing to do. Additionally, tort law generally allows for the
award of punitive damages, something never permitted in contract law.
There is also some intersection between tort law and criminal law. Often, the same conduct can be
both a crime and a tort. If Claire punches Charlie in the gut, for example, without provocation and
for no reason, then Claire has committed the tort of battery and the crime of battery. In the tort case,
Charlie could sue Claire in civil court for money damages (typically for his pain, suffering, and
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medical bills). That case would be tried based on the civil burden of proof—preponderance of the
evidence. That same action, however, could also lead Charlie to file a criminal complaint with the
prosecutor’s office. Society is harmed when citizens punch each other in the gut without provocation
or justification, so the prosecutor may file a criminal case against Claire, where the people of the
state would sue her for the crime of battery. If convicted beyond a reasonable doubt, Claire may have
to pay a fine to the people (the government) and may lose her liberty. Charlie gets nothing
specifically from Claire in the criminal case other than the general satisfaction of knowing that his
attacker has been convicted of a crime.
You might recall from Chapter 3 "Litigation" that the standard of proving a criminal case (beyond a
reasonable doubt) is far higher than the standard for proving a civil case (a preponderance of
evidence). Therefore, if someone is convicted of a crime, he or she is also automatically liable in civil
tort law under the negligence per se doctrine. For that reason, criminal defendants who wish to avoid
a criminal trial are permitted to plead “no contest” to the criminal charges, which permits the judge
to sentence them as if they were guilty but preserves the right of the defendant to defend a civil tort
suit.
Perhaps more than any other area of law, tort law is a reflection of American societal values.
Contracts are enforced because they protect our expectation that our promises are enforced.
Criminal law is the result of elected legislatures prohibiting behavior that the community finds
offensive or immoral. Tort law, on the other hand, is generally not the result of legislative debate or
committee reports. Each tort case arises out of different factual situations, and a jury of peers is
asked to decide whether or not the tortfeasor (the person committing the tort) has violated a certain
societal norm. Additionally, we expect that when an employee is working for the employer’s benefit
and commits a tort, the employer should be liable. Under the respondeat superior doctrine, employers
are indeed liable, unless they can demonstrate the employee was on a frolic and detour at the time he
or she committed the tort.
The norms that society protects make up the basis for tort law. For example, we have an expectation
that we have the right to move freely without interference unless detained pursuant to law. If

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someone interferes with that right, he or she commits the tort of false imprisonment. We have an
expectation that if someone spills a jug of milk in a grocery store, the store owners will promptly
warn other customers of a slippery floor and clean up the spill. Failure to do so might constitute the
tort of negligence. Likewise, we expect that the products we purchase for everyday use won’t
suddenly and without explanation injure us, and if that happens then a tort has taken place.
It has been said many times that tort law is a unique feature of American law. In Asian countries that
follow a Buddhist tradition, for example, many people have a belief that change is a constant part of
life and to resist that change is to cause human suffering. Rather than seeking to blame someone else
for change (such as an injury, death, or damage to personal property), a Buddhist may see it as part
of that person’s or thing’s “nature” to change. In countries with an Islamic tradition, virtually all
events are seen as the will of God, so an accident or tragedy that leads to injury or death is accepted
as part of one’s submission to God. In the United States, however, the tradition is one of questioning
and inquiry when accidents happen. Indeed, it can be said with some truth that many Americans
believe there is no such thing as an accident—if someone is injured or killed unexpectedly, we almost
immediately seek to explain what happened (and then often place blame).
Torts can be broadly categorized into three categories, depending on the level of intent demonstrated
by the tortfeasor. If the tortfeasor acted with intent to cause the damage or harm that results from his
or her action, then an intentional tort has occurred. If the tortfeasor didn’t act intentionally but
nonetheless failed to act in a way a reasonable person would have acted, then negligence has taken
place. Finally, if the tortfeasor is engaged in certain activities and someone is injured or killed, then
under strict liability the tortfeasor is held liable no matter how careful or careless he or she may have
been. In this chapter, we’ll explore these three areas of torts carefully so that by the end of the
chapter, you’ll understand the responsibilities tort law imposes on both persons and corporations.
The chapter concludes with a brief discussion of other issues that affect torts, including tort reform.

Key Takeaways
A tort is a civil wrong (other than breach of contract) arising out of conduct or nonconduct that violates
societal norms as determined by the judicial system. Unlike contracts and crimes, torts do not require

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legislative action. Torts protect certain expectations we cherish in a free society, such as the right to travel
freely and to enjoy our property. There are three primary areas of tort law, classified depending on the
level of intent demonstrated by the tortfeasor.

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7.1 Intentional Torts
LEARNING OBJECTIVES
1.

Explore what constitutes an intentional tort.

2.

Study various intentional torts in detail.

3.

Examine the defenses to intentional torts.

Examine Figure 7.2 "A Coworker Attacks". The office worker on the right has grabbed the office worker on
the left and is strangling him. This conduct is clearly criminal, and it is also tortious. Since the tortfeasor
here has acted intentionally by grabbing his colleague’s neck, the tort is considered intentional. (It is, in
fact, likely assault and battery.)
In an intentional tort, the tortfeasor intends the consequences of his or her act, or knew with substantial
certainty that certain consequences would result from the act. This intent can be transferred. For example,
if someone swings a baseball bat at you, you see it coming and duck, and the baseball bat continues to
travel and hits the person standing next to you, then the person hit is the victim of a tort even if the person
swinging the bat had no intention of hitting the victim.
In addition to the physical pain that accompanies being strangled by a coworker, the victim may also feel a
great deal of fear. That fear is something we expect to never have to feel, and that fear creates the basis for
the tort of assault. An assault is an intentional, unexcused act that creates in another person a reasonable
apprehension or fear of immediate harmful or offensive contact. Note that actual fear is not required for
assault—mere apprehension is enough. For example, have you ever gone to sit down on a chair only to
find out that one of your friends has pulled the chair away, and therefore you are about to fall down when
you sit? That sense of apprehension is enough for assault. Similarly, a diminutive ninety-pound woman
who attempts to hit a burly three-hundred-pound police officer with her bare fists is liable for assault if
the police officer feels apprehension, even if fear is unlikely or not present. Physical injuries aren’t
required for assault. It’s also not necessary for the tortfeasor to intend to cause apprehension or fear. For
example, if someone pointed a very realistic-looking toy pistol at a stranger and said “give me all your
money” as a joke, it would still constitute assault if a reasonable person would have perceived fear or

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apprehension in that situation. The intentional element of assault exists here, because the tortfeasor
intended to point the realistic-looking toy pistol at the stranger.
A battery is a completed assault. It is any unconsented touching, even if physical injuries aren’t present. In
battery, the contact or touching doesn’t have to be in person. Grabbing someone’s clothing or cane,
swinging a baseball bat at someone sitting in a car, or shooting a gun (or Nerf ball, for that matter, if it’s
unconsented) at someone is considered battery. Notice that assault and battery aren’t always present
together. Shooting someone in the back usually results in battery but not assault since the victim didn’t
see the bullet coming and therefore did not feel fear or apprehension. Similarly, a surgeon who performs
unwanted surgery or a dentist who molests a patient while the patient is sedated has committed battery
but not assault. Sending someone poisoned brownies in the mail would be battery but not assault. On the
other hand, spitting in someone’s face, or leaning in for an unwanted kiss, would be assault and possibly
battery if the spit hit the victim’s face, or the kiss connected with any part of the victim’s body.
When someone is sued for assault or battery, several defenses are available. The first is consent. For
example, players on a sports team or boxers in a ring are presumed to have consented to being
battered. Self-defense and defense of others are also available defenses, bearing in mind that any selfdefense must be proportionate to the initial force.
A battery must result in some form of physical touching of the plaintiff. When that physical touching is
absent, courts sometimes permit another tort to be claimed instead, the tort of
intentional infliction of emotional distress (IIED). In a sense, IIED can be thought of as battery to
emotions, but a great deal of caution is warranted here. Many people are battered emotionally every day
to varying degrees. Someone may cut you off in traffic, leading you to curse at him or her in anger. A
stranger may cut in line in front of you, leading you to exclaim in indignation. A boyfriend or girlfriend
may decide to break off a relationship with you, leading to hurt feelings and genuine grief or pain. None of
these situations, nor any of the normal everyday stresses of day-to-day living, are meant to be actionable
in tort law. The insults, indignities, annoyances, or even threats that we experience as part of living in
modern society are to be expected. Instead, IIED is meant to protect only against the most extreme of
behaviors. In fact, for a plaintiff to win an IIED case, the plaintiff has to demonstrate that the defendant

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acted in such a manner that if the facts of the case were told to a reasonable member of the community,
that community member would exclaim that the behavior is “outrageous.” Notice that the standard here is
objective; it’s not enough for the plaintiff to feel that the defendant has acted outrageously. In some states,
the concern that this tort could be abused and result in frivolous litigation has led to the additional burden
that the plaintiff must demonstrate some physical manifestation of the psychological harm (such as
sleeplessness or depression) to win any recovery.

Hyperlink: Does Picketing a Fallen Soldier’s Funeral Constitute IIED or
Constitutionally Protected Speech?
http://www.npr.org/templates/story/story.php?storyId=5192571
The Westboro Baptist Church is a small (approximately seventy-member) fundamentalist church based in
Topeka, Kansas. Members of the church, led by their pastor, Fred Phelps, believe that American soldier
deaths in Iraq and Afghanistan are punishment from God for the country’s tolerance of homosexuality.
Church members travel around the country to picket at the funerals of fallen soldiers with large bold
signs. Some of the signs proclaim “Thank God for Dead Soldiers.” In 2006 members of the church
picketed the funeral of Marine Lance Corporal Matthew Snyder, and Snyder’s father sued Phelps and the
church for IIED and other tort claims. The jury awarded Snyder’s family over $5 million in damages, but
on appeal, the U.S. Court of Appeals for the Fourth Circuit overturned the verdict. The court found the
speech “distasteful and repugnant” but pointed out that “judges defending the Constitution must
sometimes share their foxhole with scoundrels of every sort, but to abandon the post because of the poor
company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty
have often been forged in controversies involving not very nice people.”

[1]

Adding insult to injury, the

Court of Appeals ordered Snyder’s family to pay over $16,000 in legal fees to the church, which led to an
[2]

outpouring of support for Snyder on Facebook. The U.S. Supreme Court has accepted the case.
Although the standard for outrageous conduct is objective, the measurement is made against the
particular sensitivities of the plaintiff. Exploiting a known sensitivity in a child, the elderly, or pregnant
women can constitute IIED. A prank telephone call made by someone pretending to be from the army to a
mother whose son was at war, telling the mother her son has been killed, would most certainly be IIED.

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Companies must be careful when handling sensitive employment situations to avoid potential IIED
liability. This is especially true when terminating or laying off employees. Such actions must be taken with
care and civility. Similarly, companies involved in a lot of public interactions should be careful of this tort
as well. Bill collectors and foreclosure agencies must be careful not to harass, intimidate, or threaten the
people they deal with daily. In one foreclosure case, for example, Bank of America was sued by a mortgage
borrower when the bank’s local contractor entered the home of the borrower, cut off utilities, padlocked
the door, and confiscated her pet parrot for more than a week, causing severe emotional distress.

[3]

In

2006, Walgreens was sued for IIED when pharmacists accidentally stapled a form to patient drugs that
was not meant to be seen by patients. The form was supposed to annotate notes about patients, but some
pharmacists filled in the form with comments such as “Crazy! She’s really a psycho! Do not say her name
too loud; never mention her meds by name.”

[4]

Figure 7.3 Russell Christoff

Source: http://www.sfgate.com/c/pictures/2005/02/02/mn_nestle_model2.jpg.

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Another intentional tort is the invasion of privacy. There are several forms of this tort, with the most
common being misappropriation. Misappropriation takes place when a person or company uses someone
else’s name, likeness, or other identifying characteristic without permission. For example, in 1986 model
Russell Christoff posed for a photo shoot for Nestlé Canada for Taster’s Choice coffee. He was paid $250
and promised $2,000 if Nestlé used his photo on its product. In 2002 he discovered Nestlé had indeed
used his photo on Taster’s Choice coffee without his permission (Figure 7.3 "Russell Christoff"), and he
sued Nestlé for misappropriation. A California jury awarded him over $15 million in
[5]

damages. Misappropriation can be a very broad tort because it covers more than just a photograph or
drawing being used without permission—it covers any likeness or identifying characteristic. For example,
in 1988 Ford Motor Company approached Bette Midler to sing a song for a commercial, which she
declined to do. The company then hired someone who sounded just like Midler to sing one of Midler’s
songs, and asked her to sound as much like Midler as possible. The company had legally obtained the
copyright permission to use the song, but Midler sued anyway, claiming that the company had committed
misappropriation by using someone who sounded like her to perform the commercial. An appellate court
held that while Ford did not commit copyright infringement, it had misappropriated Midler’s right to
publicity by hiring the sound-alike,

[6]

and a jury awarded her over $400,000 in damages.

In addition to someone’s voice, an identifying characteristic can be the basis for misappropriation. For
example, Samsung Electronics ran a series of print advertisements to demonstrate how long-lasting their
products can be. The ads featured a common item from popular culture along with a humorous tagline.
One of the ads featured a female robot dressed in a wig, gown, and jewelry posed next to a game show
board that looked exactly like the game show board from Wheel of Fortune (Figure 7.4 "Samsung
Advertisement"). The tagline said, “Longest-running game show. 2012 A.D.” An appellate court held that
Vanna White’s claim for misappropriation was valid, writing “the law protects the celebrity’s sole right to
exploit [their identity] value whether the celebrity has achieved her fame out of rare ability, dumb luck, or
[7]

a combination thereof.” The lesson for companies is that in product marketing, permission must be
carefully obtained from all persons appearing in their marketing materials, as well as any persons who
might have a claim to their likeness or identifying characteristic in the materials.
Figure 7.4 Samsung Advertisement

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Source: Photo courtesy of the U.S. federal government,http://commons.wikimedia.org/wiki/File:White-v-samsungdissent-appendix-2.png.

Video Clip: Is a Single Name a Likeness or Identifying Characteristic?
Invasion of privacy can also take the form of an invasion of physical solitude. Actions such as window
peeping, eavesdropping, and going through someone’s garbage to find confidential information such as
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bank or brokerage statements are all examples of this form of tort. Media that are overly aggressive in
pursuing photos of private citizens may sometimes run afoul of this tort.
Another important intentional tort for businesses is false imprisonment. This tort takes place when
someone intentionally confines or restrains another person’s movement or activities without justification.
The interest being protected here is your right to travel and move about freely without impediment. This
tort requires an actual and present confinement. If your professor locks the doors to the classroom and
declares no one may leave, that is false imprisonment. If the professor leaves the doors unlocked but
declares that anyone who leaves will get an F in the course, that is not false imprisonment. On the other
hand, a threat to detain personal property can be false imprisonment, such as if your professor grabs your
laptop and says, “If you leave, I’ll keep your laptop.” Companies that engage in employee morale-building
activities should bear in mind that forcing employees to do something they don’t want to do raises issues
of false imprisonment. False imprisonment is especially troublesome for retailers and other businesses
that interact regularly with the public, such as hotels and restaurants. If such a business causes a
customer to become arrested by the police, for example, it may lead to the tort of false imprisonment. In
one case, a pharmacist who suspected a customer of forging a prescription deliberately caused the
customer to be detained by the police. When the prescription was later validated, the pharmacist was sued
for false imprisonment. Businesses confronted with potential thieves are permitted to detain suspects
until police arrive at the establishment; this is known as the shopkeeper’s privilege. The detention must be
reasonable, however. Store employees must not use excessive force in detaining the suspect, and the
grounds, manner, and time of the detention must be reasonable or the store may be liable for false
imprisonment.
Intentional torts can also be committed against property. Trespass to land occurs whenever someone
enters onto, above, or below the surface of land owned by someone else without the owner’s permission.
The trespass can be momentary or fleeting. Soot, smoke, noise, odor, or even a flying arrow or bullet can
all become the basis for trespass. A particular trespass problem takes place in suburban neighborhoods
without clearly marked property lines between homes. Children are often regular trespassers in this area,
and even if they are trespassing, homeowners are under a reasonable duty of care to ensure they are not
harmed. When there is an attractive nuisance on the property, homeowners must take care to both warn
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children about the attractive nuisance and protect them from harm posed by the attractive nuisance. This
doctrine can apply to pools, abandoned cars, refrigerators left out for collection, trampolines, piles of sand
or lumber, or anything that might pose a danger to children and that they cannot understand or
appreciate. There may be times, however, when trespass is justified. Obviously, someone invited by the
owner is not a trespasser; such a person is considered an invitee until the owner asks him or her to leave.
Someone may have a license to trespass, such as a meter reader or utility repair technician. There may
also be times when it may be necessary to trespass—for example, to rescue someone in distress.
Trespass to personal property is the unlawful taking or harming of another’s personal property without
the owner’s permission. If your roommate borrowed your vehicle without your permission, for example, it
would be trespass to personal property. The tort of conversion takes place when someone takes your
property permanently; it is the civil equivalent to the crime of theft. If you gave your roommate
permission to borrow your car for a day and he or she stole your car instead, it would be conversion rather
than trespass. An employer who refuses to pay you for your work has committed conversion.
Another intentional tort is defamation, which is the act of wrongfully hurting a living person’s good
reputation. Oral defamation is considered slander, while written defamation is libel. To be liable for
defamation, the words must be published to a third party. There is no liability for defamatory words
written in a secret diary, for example, but there is liability for defamatory remarks left on a Facebook wall.
Issues sometimes arise with regard to celebrities and public figures, who often believe they are defamed
by sensationalist “news” organizations that cover celebrity gossip. The First Amendment provides strong
protection for these news organizations, and courts have held that public figures must show
actual malice before they can win a defamation lawsuit, which means they have to demonstrate the media
outlet knew what it was publishing was false or published the information with reckless disregard for the
truth. This is a much higher standard than that which applies to ordinary citizens, so public figures
typically have a difficult time winning defamation lawsuits. Of course, truth is a complete defense to
defamation.
Defamation can also take place against goods or products instead of people. In most
states, injurious falsehood (or trade disparagement) takes place when someone publishes false

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information about another person’s product. For example, in 1988 the influential product testing
magazine Consumer Reports published a test of the Suzuki Samurai small SUV, claiming that it “easily
rolls over in turns.” Product sales dropped sharply, and Suzuki sued Consumers Union, the publisher, for
trade disparagement. The case was settled nearly a decade later after a long and expensive legal battle.
Businesses often make claims about their products in marketing their products to the public. If these
claims are false, then the business may be liable for the tort of misrepresentation, known in some
states as fraud. Fraud requires the tortfeasor to misrepresent facts (not opinions) with knowledge that
they are false or with reckless disregard for the truth. An “innocent” misrepresentation, such as someone
who lies without knowing he or she is lying, is not enough—the defendant must know he or she is lying.
Fraud can arise in any number of business situations, such as lying on your résumé to gain employment,
lying on a credit application to obtain credit or to rent an apartment, or in product marketing. Here, there
is a fine line between puffery, or seller’s talk, and an actual lie. If an advertisement claims that a particular
car is the “fastest new car you can buy,” then fraud liability arises if there is in fact a car that travels faster.
On the other hand, an advertisement that promises “unparalleled luxury” is only puffery since it is
opinion. Makers of various medicinal supplements and vitamins are often the target of fraud lawsuits for
making false claims about their products.
Finally, an important intentional tort to keep in mind istortious interference. This tort, which varies
widely by state, prohibits the intentional interference with a valid and enforceable contract. If the
defendant knew of the contract and then intentionally caused a party to break the contract, then the
defendant may be liable. In 1983 oil giant Pennzoil made a bid for a smaller oil rival, Getty Oil. A
competitor to Pennzoil, Texaco, found out about the deal and approached Getty with another bid for a
higher amount, which Getty then accepted. Pennzoil sued Texaco, and a jury awarded over $10 billion in
damages.

KEY TAKEAWAYS
Assault is any intentional act that creates in another person a reasonable fear or apprehension of harmful
or offensive contact. A battery is a completed assault, when the harmful or offensive contact occurs. The
intentional infliction of emotional distress (IIED) is extreme and outrageous conduct that intentionally
causes severe emotional distress to another person. In some states, IIED requires a demonstration of
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physical harm such as sleeplessness or depression. This is a difficult tort to win because of its inherent
clash with values embodied by the First Amendment. Misappropriation is the use of another person’s
name, likeness, or other identifying characteristic without permission. False imprisonment occurs when
someone intentionally confines or restrains another person’s movement without justification. Trespass is
the entry onto land without the owner’s permission, while conversion is the civil equivalent of the theft
crime. Defamation is the intentional harm to a living person’s reputation, while trade disparagement takes
place when someone publishes false information about someone else’s product. Fraudulent
misrepresentation is any intentional lie involving facts. Tortious interference is the intentional act of
causing someone to break a valid and enforceable contract.

EXERCISES
1.

Members of the Westboro Baptist Church claim that the First Amendment protects them from IIED
lawsuits since they are expressing a political opinion by picketing at soldier funerals. The pickets take place
on public property and in compliance with local picketing laws. If the plaintiffs win the case, the church is
unlikely to have the money to satisfy the judgment and may seek bankruptcy. Do you believe that this
conduct is extreme and outrageous enough to constitute a tort? Why or why not?

2.

In 1983 Hustler magazine (owned by publisher Larry Flynt) ran a print advertisement patterned after a
Campari liquor ad campaign. The real ad campaign featured celebrities “talking about their first time” in a
question-and-answer interview format, slowly revealing that the celebrities were speaking about their first
time drinking Campari. The Hustler advertisement featured fundamentalist preacher Jerry Falwell, who
was running a campaign against pornography at the time, and insinuated that Falwell had lost his virginity
to his mother. Falwell sued Flynt and the magazine, and a jury awarded Falwell $150,000 in damages. The
Supreme Court overturned the verdict on appeal on grounds of the First Amendment, holding that as a
public figure, Falwell had to endure the advertisement.

[8]

Do you believe that celebrities and public figures

should have a harder time winning IIED lawsuits? Why or why not?
3.

Do you believe that an “identifying characteristic” should be protected by the tort of misappropriation, or
do you believe that society has gone too far in recognizing property rights? A First Amendment exception
exists for comedians who engage in satire and comedy (think of Tina Fey’s impersonation of Sarah Palin

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during the 2008 presidential campaign, for example). Does it make sense to you that comedians like Fey
and John Stewart can make money through misappropriation, but other businesses cannot?
4.

Look at the advertisement featured in Note 7.21 "Video Clip: Is a Single Name a Likeness or Identifying
Characteristic?". Do you think that the ad is referring to Lindsay Lohan? Has the name “Lindsay” become
so linked to Lohan that companies run the risk of being sued if they use the name Lindsay in
advertisements? What if the advertisement had used a name like “Oprah” or “Cher”?

5.

Defamation law only protects the living. Some legal commentators believe that defamation should also
protect the dead. See, for example, law professor Jonathan Turley’s opinion in the Washington
Post here:http://www.washingtonpost.com/wpdyn/content/article/2006/09/15/AR2006091500999_pf.html. Turley points out examples of how the dead
have been defamed, such as the character of William Murdoch in the 1997 movie Titanic, where he was
portrayed as a murderous nut. In reality, survivors reported he took heroic actions to save passengers. Do
you believe defamation should be extended to protect the dead as well as the living?

[1] Snyder v. Phelps, 580 F.3d 206 (4th Cir.
2009),http://pacer.ca4.uscourts.gov/opinion.pdf/081026.P.pdf (accessed September 27, 2010).
[2] “I Support Al Snyder in His Fight against Westboro Baptist Church,”
Facebook.http://www.facebook.com/group.php?v=wall&ref=ts&gid=355406162379 (accessed September 27,
2010).
[3] James Hagerty, “Bank Sorry for Taking Parrot,” Wall Street Journal, March 11, 2010, A1.
[4] “Walgreens Pharmacists Mock You behind Your Back,” The Consumerist, March 8,
2006, http://consumerist.com/2006/03/walgreens-pharmacists-mock-you-behind-your-back.html (accessed
September 27, 2010).
[5] Jaime Holguin, “$15.6M Award for Coffee ‘Mug,’” CBSnews.com, February 2,
2005,http://www.cbsnews.com/stories/2005/02/01/national/main670754.shtml (accessed September 27, 2010).
[6] Midler v. Ford Motor Company, 849 F.3d 460 (9th Cir. 1988).
[7] White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir. 1992).
[8] Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

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7.2 Negligence
LEARNING OBJECTIVES
1.

Learn about whom we owe duties to under the tort of negligence.

2.

Explore how those duties can be legally breached.

3.

Discuss how causation, both actual and proximate, can affect liability.

4.

Examine the requirement to demonstrate damages to win a negligence suit.

5.

Understand various defenses to negligence.

Video Clip: The Crash of Continental Flight 3407
Ordinarily, we don’t expect perfectly good airplanes to fall out of the sky for no reason. When it
happens, and it turns out that the reason was carelessness or a failure to act reasonably, then the tort
of negligence may apply. All persons, as established by state tort law, have the duty to act reasonably
and to exercise a reasonable amount of care in their dealings and interactions with others. Breach of
that duty, which causes injury, is negligence. Negligence is distinguished from intentional torts
because there is a lack of intent to cause harm. If a pilot intentionally crashed an airplane and
harmed others, for example, the tort committed may be assault or battery. When there is no intent to
harm, then negligence may nonetheless apply and hold the pilot or the airline liable, for being
careless or failure to exercise due care.
Note that the definition of negligence is purposefully broad. Negligence is about breaching the duty
we owe others, as determined by state tort law. This duty is often broader than the duties imposed by
law. Colgan Air, for example, may have been fully compliant with applicable laws passed by Congress
while still being negligent. In a way, the law of negligence is an expression of democracy at the
community and local level, because ultimately, citizen juries (as opposed to legislatures) decide what
conduct leads to liability.
To prove negligence, plaintiffs have to demonstrate four elements are present. First, they have to
establish that the defendant owed a duty to the plaintiff. Second, the plaintiff has to demonstrate that
the defendant breached that duty. Third, the plaintiff has to prove that the defendant’s conduct

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caused the injury. Finally, the plaintiff has to demonstrate legally recognizable injuries. We’ll address
each of these elements in turn.
First, the plaintiff has to demonstrate that the defendant owed it a duty of care. The general rule in
our society is that people are free to act any way they want to, as long as they don’t infringe on the
freedoms or interests of others. That means that you don’t owe anyone a special duty to help them in
any way. For example, if you’re driving along a deserted rural highway at night in a snowstorm, and
you see a car ahead of you fishtail and drive into a ditch, you are entitled to keep driving and do
nothing, not even report the accident, because you don’t owe that driver any special duty. On the
other hand, if you ran a stop sign, which then caused the other driver to drive into a ditch, you would
owe that driver a duty of care.
Another way to look at duty is to consider whether or not the plaintiff is a foreseeable plaintiff. In
other words, if the risk of harm is foreseeable, then the duty exists. Take, for instance, the act of
littering with a banana peel. If you carelessly throw away a banana peel, then it is foreseeable that
someone walking along may slip on it and fall, causing injuries. Under tort law, by throwing away the
banana peel you now owe a duty to anyone who may be walking nearby who might walk on that
banana peel, because any of those persons might foreseeably step on the peel and slip.
An emerging area in tort law is whether or not businesses have a duty to warn or protect customers
for random crimes committed by other customers. By definition, crimes are random and therefore
not foreseeable. However, some cases have determined that if a business knows about, or should
know about, a high likelihood of crime occurring, then that business must warn or take steps to
protect its customers. For example, in one case a state supreme court held that when a worker at
Burger King ignored a group of boisterous and loud teenagers, Burger King was liable when those
teenagers then assaulted other customers. [1] In another case, the Las Vegas Hilton was held liable for
sexual assault committed by a group of naval aviators because evidence at trial revealed that the
hotel was aware of a history of sexual misconduct by the group involved.
The concept of duty is broad and extends beyond those in immediate physical proximity. In a famous
case from California, for example, a radio station with a large teenage audience held a contest with a
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mobile DJ announcing clues to his locations as he moved around the city. The first listener to figure
out his location and reach him earned a cash prize. One particular listener, a minor, was rushing
toward the DJ when the listener negligently caused a car accident, killing the other driver. During a
negligence trial, the radio station argued that hindsight is not foreseeability and that the station
therefore did not owe the dead driver a duty of care. The California Supreme Court held that when
the radio station started the contest, it was foreseeable that a young and inexperienced driver may
drive negligently to claim the prize and that therefore a duty of care existed. [2] Radio stations should
therefore be very careful when running promotional contests to ensure that foreseeable deaths or
injuries are prevented. This lesson apparently eluded Sacramento station KDND, which in 2007 held
a contest titled “Hold Your Wee for a Wii” where contestants were asked to drink a large amount of
water without going to the bathroom for the chance of winning a game console. An otherwise healthy
twenty-eight-year-old mother died of water intoxication hours after the contest, which led to a
lawsuit and a $16 million jury verdict.
The general rules surrounding when a duty exists can be modified in special situations. For example,
landowners owe a duty to exercise reasonable care to protect persons on their property from
foreseeable harm, even if those persons are trespassers. If you are aware of a weak step or a faucet
that dispenses only scalding hot water, for example, you must take steps to warn guests about those
known dangers.
Businesses owe a duty to exercise a reasonable degree of care to protect the public from foreseeable
risks that the owner knew or should have known about. There are many foreseeable ways for
customers to be injured in retail stores, from falling objects improperly placed on high shelves, to
light fixtures exploding or falling due to improper installation, to customers being injured by forklifts
in so-called warehouse stores. One particular area of concern for businesses is liquid on walking
surfaces, which can be very dangerous. Spilled product (milk, orange juice, wine, etc.), melted ice or
snow, or rain can cause slick situations, and if a store knows about such a condition, or should have
known about it, then the store must quickly warn customers and remedy the situation.

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Business professionals such as doctors, accountants, dentists, architects, and lawyers owe a special
duty to act as a reasonable person in their profession. Professional negligence by these professionals
is known as malpractice. The government estimates that between forty-four thousand and ninetyeight thousand people die each year in hospitals due to medical mistakes, the vast majority of them
preventable. [3]
Once duty has been established, negligence plaintiffs have to demonstrate that the defendant
breached that duty. A breach is demonstrated by showing the defendant failed to act reasonably,
when compared with a reasonable person. It’s important to keep in mind that this reasonable person
is hypothetical and does not actually exist. This reasonable person is never tired, sleepy, angry, or
intoxicated. He or she is reasonably careful—not taking every single precaution to prevent accidents
but considering his or her actions and consequences carefully before proceeding. In reality, once a
duty has been established, the presence of injury or harm is usually enough to satisfy the “breach of
duty” requirement.
The third element of negligence is causation. In deciding whether there is causation, courts have to
consider two questions. First, courts query as to whether there is causation in fact, also known as
but-for causation. This form of causation is fairly easy to prove. But for the defendant’s actions,
would the plaintiff have been injured? If yes, then but-for causation is proven. For example, if you
are texting while driving and you hit a pedestrian because your attention was diverted, then but-for
causation is easily met, because “but for” your actions of texting while driving, you would not have
hit the pedestrian.
The second question is tougher to establish. It asks whether the defendant’s actions were the
proximate cause of the plaintiff’s injury. In asking this question, courts are expressing a concern that
causation-in-fact can be taken to a logical but extreme conclusion. For example, if a speeding truck
driver crashes his or her rig and causes the interstate highway to be shut down for several hours,
causing you to become stuck in traffic and miss an important interview, you could argue that but for
the truck driver’s negligence, you may have landed a new job. It would not be fair, however, to hold
the truck driver liable for all the missed appointments and meetings caused by a subsequent traffic

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jam after the crash. At some point, the law has to break the chain of causation. The truck driver may
be liable for injuries caused in the crash, but not beyond the crash. This is proximate causation.

Video Clip: Palsgraf v. Long Island Railroad Company
In determining whether proximate cause exists, we once again use the foreseeability test, already
used for determining whether duty exists. If an injury is foreseeable, then proximate cause exists. If it
is unforeseeable, then it does not.
In some cases it can be difficult to pinpoint a particular source for a product, which then makes
proving causation difficult. This is particularly true inmass tort cases where victims may have been
exposed to dangerous substances from multiple sources over a number of years. For example,
assume that you have been taking a vitamin supplement for a number of years, buying the
supplement from different companies that sell it. After a while the government announces that this
supplement can be harmful to health and orders sales to stop. You find out that your health has been
affected by this supplement and decide to file a tort lawsuit. The problem is that you don’t know
which manufacturer’s supplement caused you to fall ill, so you cannot prove any specific
manufacturer caused your illness. Under the doctrine of joint and several liability, however, you don’t
have to identify the specific manufacturer that sold you the drug that made you ill. You can simply
sue one, two, or all manufacturers of the supplement, and any of the defendants are then liable for
the entirety of your damages if they are found liable. This doctrine has been used in cases involving
asbestos production and distribution.
The final element in negligence is legally recognizable injuries. If someone walks on a discarded
banana peel and doesn’t slip or fall, for example, then there is no tort. If someone has been injured,
then damages may be awarded to compensate for those injuries. These damages take the form of
money, as there is nothing tort law can do to bring back the dead or regrow lost limbs, and tort law
does not allow for incarceration. Money is therefore the only appropriate measure of damages, and it
is left to the jury to decide how much money a plaintiff should be awarded.

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There are two types of award damages in tort law. The first, compensatory damages, seeks to
compensate the plaintiff for his or her injuries. Compensatory damages can be awarded for medical
injuries, economic injuries (such as loss of a car, property, or income), and pain and suffering. They
can also be awarded for past, present, and future losses. While medical and economic damages can
be calculated using available standards, pain and suffering is a far more nebulous concept. Juries are
often left to their conscience to decide what amount of money can compensate for pain and suffering,
based on the severity and duration of the pain as well as its impacts on the plaintiff’s life.
The second type of damage award is known as punitive damages. Here, the jury is awarded a sum of
money not to compensate the plaintiff but to deter the defendant from ever engaging in similar
conduct. The idea behind punitive damages is that compensatory damages may be inadequate to
deter future bad conduct, so additional damages are necessary to ensure the defendant corrects its
ways to prevent future injuries. Punitive damages are available in cases where the defendant acted
with willful and wanton negligence, a higher level of negligence than ordinary negligence. Bear in
mind, however, that there are constitutional limits to the award of punitive damages.
A defendant being sued for negligence has three basic affirmative defenses. An affirmative defense is
one that is raised by the defendant essentially admitting that the four elements for negligence are
present, but that the defendant is nonetheless not liable for the tort. The first defense is
assumption of risk. If the plaintiff knowingly and voluntarily assumes the risk of participating in a

dangerous activity, then the defendant is not liable for injuries incurred. For example, if you decide
to bungee jump, you assume the risk that you might be injured during the jump. It’s common for
bungee jumpers to experience burst blood vessels in the eye, soreness in the back and neck region,
and twisted ankles, so these injuries are not compensable. On the other hand, you can only assume
risks that you know about. When a person bungee jumps, one of the first steps is for the jump
operator to weigh the jumper, so that the length of the bungee can be adjusted accordingly. If this is
not done properly, the jumper may overshoot or undershoot the expected bottom of the jump. While
you can assume known risks from bungee jumping, you cannot assume unknown risks, such as the
risk that a jump operator may negligently calculate the length of the bungee rope.

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A related doctrine, the open and obvious doctrine, is used to defend against suits by persons injured
while on someone else’s property. For example, if there is a spill on a store’s floor and the store
owner has put up a sign that says “Caution—Slippery Floor,” yet someone decides to run through the
spill anyway, then that person would lose a negligence lawsuit if he or she slips and falls because the
spill was open and obvious. Use of the open and obvious doctrine varies widely by state, with some
states allowing it to be used in a wide variety of premises liability cases and other states
circumventing its usefulness.
Both the assumption of risk and open and obvious defenses are not available to the defendant who
caused a dangerous situation in the first place. For example, if you negligently start a house fire while
playing with matches and evacuate the house with your roommates, if one of your roommates
decides to reenter the burning house to rescue someone else, you cannot rely on assumption of risk
as a defense since you started the fire.
The second defense to negligence is to allege that the plaintiff’s own negligence contributed to his or
her injuries. In a state that follows the contributory negligence rule, a plaintiff’s own negligence, no
matter how minor, bars the plaintiff from any recovery. This is a fairly harsh rule, so most states
follow the comparative negligence rule instead. Under this rule, the jury is asked to determine to what
extent the plaintiff is at fault, and the plaintiff’s total recovery is then reduced by that percentage. For
example, if you jaywalk across the street during a torrential thunderstorm and a speeding car strikes
you, a jury may determine that you are 20 percent at fault for your injuries. If the jury decides that
your total compensatory damage award is $1 million, then the award will be reduced by $200,000 to
account for your own negligence.
Finally, in some situations, the Good Samaritan law may be a defense in a negligence suit. Good
Samaritan statutes are designed to remove any hesitation a bystander in an accident may have to
providing first aid or other assistance. They vary widely by state, but most provide immunity from
negligent acts that take place while the defendant is rendering emergency medical assistance. Most
states limit Good Samaritan laws to laypersons (i.e., police, emergency medical service providers,
and other first responders are still liable if they act negligently) and to medical actions only.

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KEY TAKEAWAYS
Negligence imposes a duty on all persons to act reasonably and to exercise due care in dealing and
interacting with others. There are four elements to the tort of negligence. First, the plaintiff must
demonstrate the defendant owed the plaintiff a duty. If the risk of injury is foreseeable, then the
defendant owes the plaintiff a duty. Second, there must be a breach of that duty. A breach occurs when
the defendant fails to act like a reasonable person. Professional negligence is known as malpractice. Third,
the plaintiff must demonstrate that the defendant caused the plaintiff’s injuries. Both causation-in-fact
and proximate causation must be proven. Finally, the plaintiff must demonstrate legally recognizable
injuries, which include past, present, and future economic, medical, and pain and suffering damages.
Defendants can raise several affirmative defenses to negligence, including assumption of risk, comparative
or contributory negligence, and in some cases, Good Samaritan statutes.

EXERCISES
1.

Does a private investigator owe a duty of care to potential victims of crime if their clients use information
obtained by the investigator to commit the crime? In 2003 a court held the answer is yes. In that case, an
Internet-based investigative firm charged fees to a client to find out the Social Security number, place of
employment, and home and work addresses of a third party. The client then used the information to stalk
and kill the third party. The court held that since the risk of harm is foreseeable, the company owed the
third party a duty of care. See Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003).

2.

In January 2001 a New York man attended a family birthday party at a Benihana restaurant, where chefs,
while cooking at the table, routinely throw pieces of food for diners to catch with their mouths. The man
wrenched his neck while ducking a piece of flying shrimp, requiring treatment by several doctors. By that
summer, doctors determined surgery was necessary to treat numbness in his arm. Five months after
surgery, he checked into the hospital with a high fever and died. The family sued Benihana for $10 million
in damages, claiming that the fever was the result of surgery, which in turn was the result of the chef’s
actions in throwing food at diners. Do you believe that Benihana should be liable for the man’s death?
Why or why not?

3.

What kind of duty of care do cities that own and operate public transportation systems owe to the paying
and traveling public? On February 4, 2010, Shaun Mills was traveling home on a public bus in Jacksonville
Beach, Florida. He missed his regular stop, so he got off at the next stop. The sidewalk at this bus stop was

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closed, so he crossed the street and was hit by a car. The remarkable accident was captured on video.
Seehttp://today.msnbc.msn.com/id/36310494. Mills survived and is suing the bus company. In this case,
what defenses are available to the defendant bus company?
4.

Medical malpractice claims tens of thousands of lives per year, leaving victims and their families little
recourse except through the tort system. Most doctors purchase medical malpractice insurance policies to
pay a claim in case they are sued, but in some cases these premiums can be exorbitantly high. The fear of
medical malpractice suits also drives some doctors to practice “defensive medicine,” which further
increases the price of health care for everyone. How do you think the legal system can best balance these
two competing interests?

[1] Iannelli v. Burger King Corp., 145 N.H. 190 (2000).
[2] Weirum v. RKO General, 15 Cal.3d 40 (1975).
[3] U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, “Reducing Errors
in Health Care: Translating Research Into Practice,” April 2000,http://www.ahrq.gov/qual/errors.htm (accessed
September 27, 2010).

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7.3 Strict Liability
LEARNING OBJECTIVES
1.

Explore what strict liability is and when it applies.

2.

Understand how a product may be unreasonably dangerous, triggering strict liability.

3.

Learn about how a product’s warnings and labels are a part of a product’s safe design.

4.

Examine defenses available to strict product liability.

Intentional torts require some level of intent to be committed, such as the intent to batter someone.
Negligence torts don’t require intent to harm but require some level of carelessness or
neglect. Strict liability torts require neither intent nor carelessness. In fact, if strict liability applies, it
is irrelevant how carelessly, or how carefully, the defendant acted. It doesn’t matter if the defendant
took every precaution to avoid harm—if someone is harmed in a situation where strict liability
applies, then the defendant is liable.
Since this rule can have harsh consequences, it applies in a only few limited circumstances. One of
those circumstances is when the defendant is engaged in an ultrahazardous activity. An
ultrahazardous activity is one that is so inherently dangerous that the risk to human life is great if
anything wrong happens, so the person carrying out the ultrahazardous activity is held strictly liable
for those activities. Transporting dangerous chemicals or nuclear waste, for example, is inherently
dangerous. If the chemicals spill, it is very difficult, if not impossible, to prevent injury to property or
persons. Similarly, businesses that use dynamite, such as building demolition crews, run the risk that
no matter how careful they are, people or property could be damaged by intentionally igniting
dynamite. Therefore, strict liability applies.
Strict liability also applies when restaurants, bars, and taverns serve alcohol to minors or visibly
intoxicated persons. This activity is dangerous, and there is a high risk of probability that these
patrons, if they drive, will injure others. Many states have dram shop acts that impose strict liability
in this circumstance.

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You might wonder why defendants are held strictly liable if they are acting reasonably or are even
being ultracautious. As with most issues in law, the answer lies in social policy. In essence, strict
liability torts exist because businesses that engage in covered activities (such as transporting
hazardous chemicals or operating bars) profit from those activities. They are also in the best position
to ensure that every precaution can be taken to avoid an unexpected event, which may have
catastrophic consequences. Victims of these events are often innocent members of the public who are
not in any position to avoid being injured and therefore should not be denied a legal remedy simply
because the defendant took prudent precautions. This social policy concern is also expressed in the
most important area of strict liability application, strict product liability.
In strict product liability, any retailer, wholesaler, or manufacturer that sells an unreasonably
dangerous product is strictly liable. For example, Toyota recently disclosed that it had manufactured
and sold several vehicle models with faulty accelerators, leading to several cases of unintended
acceleration and subsequent deaths. Vehicles that accelerate unintentionally are clearly
unreasonably dangerous. In this case, the manufacturer (Toyota Japan), the wholesaler or importer
(Toyota’s U.S. sales company), and the retailer (local dealers) are all strictly liable for injuries caused
by these faulty accelerators. Note, however, that strict liability applies only to commercial sellers. If a
private citizen sold his or her Toyota on Craigslist, for example, he or she would not be strictly liable
for selling an unreasonably dangerous product.
To demonstrate that a product is unreasonably dangerous, plaintiffs have two theories available to
them. First, they might allege that the product was defective because of a flaw in the manufacturing
process. Under this theory, the vast majority of products being produced turn out fine, but due to
some sort of production defect, a few samples or a batch turns out defective. If these defective
samples are sold to the public, the manufacturer or seller is strictly liable. A light bulb factory that
manufactures a million safe light bulbs, for example, and then manufacturers one that explodes
when it is turned on due to some production defect, is strictly liable for the injuries caused. Similarly,
a frozen pizza factory that produces thousands of pizzas without any trouble would be strictly liable if
one frozen pizza is produced that contains foreign contaminants because of a production defect such
as an inattentive worker or machine breakdown.
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Second, a product may be defective because of a design defect. Here, there is nothing wrong with the
manufacturing or production of the product. Rather, the product is defective because it was designed
incorrectly or in a manner that causes the product to be unreasonably dangerous. Engineers
continually work to design products to be as safe as possible, but in some cases the product is
nonetheless dangerous, and the manufacturer or seller is strictly liable. For example, starting in 1991
several Boeing 737 jetliners began experiencing unexpected movement in the rudder, leading to
several high-profile crashes including a USAir flight in Pittsburgh that killed 132 people. [1] During
the course of investigation, the government discovered that the part that controls the rudder gets
very cold in flight, and when it is injected with hot hydraulic fluid, the part can jam and move the
rudder in the opposite direction of what the pilot is calling for. This design defect was eventually
fixed by upgrading the rudder control systems on all existing Boeing 737s worldwide.

Hyperlink: What’s Wrong with the Tire?
http://www.time.com/time/business/article/0,8599,128198,00.html
In 1999 Ford customers in the Middle East began experiencing tread separation problems on Ford
Explorer SUVs. The tires would disintegrate, leading to a loss of control and often a rollover crash. The
company initially believed that the problem was limited to the Middle East because of unique
characteristics there such as extremely hot weather, lowered tire inflation pressures for driving in sand,
and harsh operating environments. Soon, however, vehicles in the United States, especially in hotter
regions of the country, began experiencing the same problems. The death toll mounted to over 170 deaths
and over 700 injuries from these accidents. Ford’s investigation led the company to believe that certain
fifteen-inch tires manufactured by Firestone were to blame; virtually all the accidents involved Firestone
tires manufactured in one plant in Decatur, Illinois (now closed). Similar vehicles equipped with
Goodyear tires rarely experienced tread separation problems. Firestone, on the other hand, blamed the
Ford Explorer for being defectively designed. Firestone argued that the Explorer lacked critical safety
features to lower the center of gravity, reduce the propensity to roll over, and lessen the chance of
underinflating the tires. Firestone pointed out that the same tires did not experience any problems when
installed on GM vehicles. Whether the fault lay with a production defect in Firestone tires or design defect
in Ford Explorers, both companies were strictly liable. Ford spent over $3 billion recalling the tires and
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ended its one-hundred-year relationship with Firestone. Congress also responded, passing a federal law
requiring all vehicles to be equipped with tire pressure monitoring systems.

Many product liability cases arise from the defective design theory because courts have held that the
warning labels on products, as well as accompanying literature, are all part of a product’s design. A
product that might be dangerous if used in a particular way, therefore, must have a warning label or
other caution on it, so that consumers are aware of the risk posed by that product. Manufacturers
must warn against a wide variety of possible dangers from using their products, as long as the injury
is foreseeable. If consumer misuse is foreseeable, manufacturers must warn against that misuse as
well. For these reasons, window blinds come with warnings about choking hazards posed by the rope
used to raise and lower them, and hair dryers come with warnings about operating them in bathtubs
and showers.
While you may think that these warnings are a little silly, keep in mind that products can harm or kill
people who don’t know how to use them correctly. For example, in one case, a woman traveling in
the passenger seat of a GM SUV was killed in a low-speed collision in a parking lot when airbags
deployed in a collision. The woman was killed because her seat was reclined and rather than being
restrained by the seat and seatbelt, she “submarined” underneath the seat belt and hit the deploying
airbag. When her family sued GM, the company argued that seats and seatbelts work only when the
seat is in an upright position and that the owner’s manual warns not to recline the seat when the
vehicle is in motion. The family argued successfully that this warning was not clear and conspicuous
enough, and that as a result many people travel with their seat reclined. Do you believe the lack of a
clear and conspicuous warning about the danger of traveling with the seat reclined makes a vehicle’s
design defective?

Hyperlink: A Near-Fatal Mistake Due to Labeling?
http://www.usatoday.com/life/people/2007-12-04-quaid-lawsuit_N.htm
Figure 7.9

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Should these labels be more distinctive to prevent mistakes?
Source: http://www.steadyhealth.com/articles/What_do_Anticoagulants_do__a667.html.
In November 2007 actor Dennis Quaid and his wife Kimberly were celebrating the birth of their newborn
twins at Cedars-Sinai Medical Center in Los Angeles. The twins suffered a staph infection, and doctors
prescribed a blood thinner to prevent blood clots. The blood thinner, Heparin, comes in two doses, with
the heavier dose one thousand times more potent than the lower dose. However, the two doses come in
similar packaging with blue labels. Nurses at the hospital inadvertently gave the twins the higher dose,
nearly killing the twins. In Indianapolis earlier that year, three premature infants did in fact die from
overdosing on Heparin. The Quaids are suing the manufacturer, arguing that the labels on the drug
represent a design defect because it is too easy to confuse the two doses. The manufacturer, Baxter
Healthcare, has since changed the design to include a red warning label that must be torn off before the
drug can be used.

There are several defenses to strict product liability. Since product liability is strict liability, the
plaintiff’s contributory or comparative negligence is not a defense. However, assumption of risk can
be a defense. As in negligence, the user must know of the risk of harm and voluntarily assume that
risk. For example, someone cutting carrots with a sharp knife voluntarily assumes the risk that the
knife may slip and cut him or her, meaning he or she cannot sue the knife manufacturer. However, if

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the knife blade unexpectedly detaches from the knife handle because of a design or production
defect, and injures the user, then there is no assumption of risk since the user would not have known
about that particular risk.
Product misuse is another defense to strict product liability. If the consumer misuses the product in a
way that is unforeseeable by the manufacturer, then strict liability does not apply. Modifying a lawn
mower to operate as a go-kart, for instance, is product misuse. Note that manufacturers are still
liable for any misuse that is foreseeable, and they must take steps to warn against that misuse. A
related defense is known as the commonly known danger doctrine. If a manufacturer can convince a
jury that the plaintiff’s injury resulted from a commonly known danger, then the defendant may
escape liability.

KEY TAKEAWAYS
In areas where strict liability applies, the defendant is liable no matter how careful the defendant was in
preventing harm. Carrying out ultrahazardous activities results in strict liability for defendants. Another
area where strict liability applies is in the serving of alcohol to minors or visibly intoxicated persons. A
large area of strict liability applies to the manufacture, distribution, and sale of unreasonably dangerous
products. Products can be unreasonably dangerous because of a production defect, design defect, or both.
A product’s warnings and documentation are a part of a product’s design, and therefore inadequate
warnings can be a basis for strict product liability. Assumption of risk, product misuse, and commonly
known dangers are all defenses to strict product liability.

EXERCISES
1.

Is the risk of death from smoking a commonly known danger? It may be today, but in the fifties and sixties,
the tobacco industry undertook an extraordinary campaign to convince the public that there was no harm
in smoking cigarettes, and even suggested that smoking may have health benefits.
See http://tobacco.stanford.edu for a collection of some of the print advertising from this era. Should
older plaintiffs who grew up viewing these advertisements be allowed to sue tobacco companies under
strict product liability? Why or why not?

2.

Is fast food or restaurant food an unreasonably dangerous product? Many nutritionists and doctors
believe that excessive consumption of fast food and restaurant food can lead to obesity, high blood

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pressure, heart disease, diabetes, and other health complications including premature death. You may be
surprised at exactly how bad these food products can be for you.
Seehttp://www.youtube.com/watch?v=MtgOmChwAm4 for an example of how unhealthy eating out at
Italian restaurants can be. Should these food producers therefore take steps to make their product less
dangerous or to warn about the dangers of overconsumption? Should Congress pass legislation such as
the Personal Responsibility in Food Consumption Act to immunize the food industry from product liability
suits?
3.

Stella Liebeck, an elderly grandmother, received third-degree burns when she spilled coffee purchased at a
McDonald’s drive-through. At trial, experts testified that McDonald’s coffee was too hot to be consumed
at the point of purchase, was hotter than any other restaurant’s coffee or coffee brewed at home, and was
so hot that third-degree burns would result within three to five seconds of coming into contact with the
skin. McDonald’s also conceded that the coffee was brewed extremely hot for commercial (profit) reasons,
because most customers wanted coffee to be hot throughout their commute. After finding the company
liable, the jury awarded Mrs. Liebeck two days’ worth of coffee sales at McDonald’s, an amount equivalent
to $2.7 million, in punitive damages. The award, although reduced to much less than that, set off a
firestorm of criticism that has not died down to this day. Do you believe that it’s possible for coffee to be
unreasonably dangerous? Seehttp://www.hotcoffeethemovie.com for one filmmaker’s perspective on this
case.

[1] “When Jets Crash: How Boeing Fights to Limit Liability,” Seattle Times, October 30,
1996, http://seattletimes.nwsource.com/news/local/737/part04 (accessed September 27, 2010).

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7.4 Concluding Thoughts
Tort law is continually changing and adapting to societal expectations about the freedoms and
interests we expect to protect. Although it has endured for many years, recent debates have sought to
recast the viability of tort law in political terms. The Republican Party platform, for example,
maintains that the rule of tort trial lawyers threatens America’s “global competitiveness, denies
Americans access to the quality of justice they deserve, and puts every small business one lawsuit
away from bankruptcy.” [1] Many businesses see tort lawsuits as a nuisance at best and ruinous at
worst, and would like to see them disappear altogether. Consumer rights activists, on the other hand
(and often backed by plaintiff lawyer groups), believe that tort lawsuits are the most effective way to
keep corporations honest and prevent them from putting profits before safety. This debate has led to
several proposals for tort reform among the various states, or by the federal government.
These reforms can take several different forms. One common reform is to impose a statute of repose
on product liability claims. These statutes function like a statute of limitations and bar plaintiffs from
filing tort claims after a certain period of time has lapsed. For example, in 1994 President Clinton
signed the General Aviation Revitalization Act into law, imposing an eighteen-year statute of repose
on product liability claims brought against general aviation aircraft manufacturers such as Cessna
and Piper. The law allowed these manufacturers to once again launch new light aircraft production in
the United States. Another popular tort reform is a cap on punitive damages. President George W.
Bush supported a nationwide punitive damage cap of $250,000 for medical malpractice claims, but
Congress did not pass any such law. Other reforms call for eliminating defective design as a basis for
recovery, barring any claims if a product has been modified by the consumer in any way, and
allowing for the state-of-the-art defense (if something was “state of the art” at the time it was
produced then no strict liability can apply).
Occasionally Congress passes legislation that provides industry-wide tort lawsuit protection for
certain industries. For example, in 2005 President George W. Bush signed the Protection of Lawful
Commerce in Arms Act. The law shields firearm manufacturers and dealers from product liability
lawsuits for crimes committed with their products. Many industries have tried to obtain this form of

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industry-wide protection, either from Congress or from judicial rulings. Most recently, drug
manufacturers hoped for industry-wide protection by arguing that if the Food and Drug
Administration approved drug labels, labeling lawsuits would be preempted by the Constitution. The
Supreme Court rejected this argument in 2009. [2]
In spite of these efforts at tort reform, torts remain an important and viable part of civil law. All
businesses, of all sizes and across all industries, must maintain a keen understanding of the duties
and responsibilities imposed by tort law. Being able to understand, and even embrace, these duties
can help businesses thrive while keeping consumers and customers safe.

[1] Republican National Committee, “2008 Republican Platform,”
2008,http://www.gop.com/2008Platform/Economy.htm#7 (accessed September 27, 2010).
[2] Wyeth v. Levine, 555 U.S. ___ (2009), http://www.law.cornell.edu/supct/html/06-1249.ZS.html (accessed
October 2, 2010).

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Chapter 8

The Property System
LEARNING OBJECTIVES
After reading this chapter, you should understand different classifications of property, including personal
property and real property, as well as different types of interests in real property. You will also learn about
methods of acquisition and transfer of real property. At the conclusion of this chapter, you should be able
to answer the following questions:
1.

What is the difference between real property and personal property?

2.

How is ownership interest in personal property transferred?

3.

What interests in real property exist?

4.

How is real property acquired and transferred?

5.

What legal relationships exist between landlord and tenants?

The concepts of property and ownership are fundamental to any society. Property refers to tangible
and intangible items that can be owned. Ownership is a concept that means the right to exclude
others. Disputes over both have been at the root of conflicts and wars since time immemorial.
Without laws to protect property ownership, the stability of our society would be seriously
undermined. For example, if law did not protect ownership interests in property, then people would
have to protect their property themselves. This means that people would have to hire their own
security forces to protect their property, or they would have to stand guard over their property
personally. It would be difficult to get anything else done. Such a system would likely result in the
development of powerful factions. Those with the greatest power would dominate property
ownership, and weaker members of society would be at their mercy. For example, one of the opening
scenes of the movie Black Hawk Down illustrates a U.N. food distribution point in Mogadishu,
Somalia. As depicted in that scene, people were waiting to receive the distribution of food, but a
powerful, armed faction seized the cargo and opened fire on them. Obviously, such a system of
property ownership would prove to be very unsettling, and it would lead to great instability in our
economic system.

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Our legal system creates a peaceful means to acquire, retain, and divest of property, and to settle
property disputes. It punishes those who operate outside of those rules. Indeed, those who do not
acquire property lawfully or who do not settle property disputes within the confines of our legal
system are subjected to criminal and civil penalties.
In the United States, our legal system ensures the ability to own property to everyone that the system
recognizes can own property. Of course, not everyone has always been able to own property. The
history of the United States is replete with examples of exclusion from the property ownership
system. For example, at various times and in different ways, married women, African Americans, and
people of Chinese and Japanese descent have been subject to restrictions regarding the ownership of
real property. Because property law is a state law issue, those restrictions and exclusions varied from
state to state. Today, no such restrictions exist. Indeed, even a nonhumanlegal person, such as a
corporation, can own property. However, some biological beings cannot own property. For example,
nonhuman animals cannot own real or personal property in our legal system. This is because
nonhuman animals are not legal persons. However, a nonhuman animal can be a beneficiary of
a trust in many states.
Moreover, not everything is subject to ownership. For instance, the human body cannot be owned by
another, though historically, in legal systems that recognized slavery, certain human bodies could be
owned. Today, public policy discourages the treatment of human body as personal property,
rendering “gifts” of body parts to specific individuals largely suspect. For example, organ donees may
have a need for an organ destined for transplant into their own bodies after the donor’s body dies,
but they do not have a legal right to it. [1]Similarly, the question regarding whether human genes may
be owned through patent is a hot topic. Check out Note 8.7 "Hyperlink: When DNA Is Isolated from
the Human Body, Is It Subject to Ownership by Patent?" and consider whether the benefits of
patentability of certain body parts, like genes, might outstrip the concerns surrounding ownership of
the human body.

Hyperlink: When DNA Is Isolated from the Human Body, Is It Subject to
Ownership by Patent?

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http://www.nytimes.com/2010/03/30/business/30gene.html

Before engaging in questions regarding the evolution of property ownership rights, it is necessary to
lay the foundation for studying this fascinating area of law. It is this foundation to which we now
turn. This chapter explores the differences between real and personal property, and the acquisition,
transfer, and protection of real and personal property interests. Additionally, it examines different
interests in real property.

Key Takeaways
The U.S. legal system protects the rights to own, acquire, protect, and divest of real and personal property.
These protections are necessary for peaceful civil society. Historically, different groups of people have
been subjected to discriminatory practices—both legal and illegal—regarding property ownership. Today,
legal persons can own, acquire, transfer, and sell property. However, not everything is subject to property
ownership concepts.

[1] Colavito v. New York Organ Donor Network, 2006 NY Slip Op. 09320 (NY App. Ct. 2006).

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8.1 Personal Property
LEARNING OBJECTIVES
1.

Distinguish between personal property and real property.

2.

Understand classifications of property.

3.

Examine methods of acquisition of personal property.

4.

Understand the concept of bailment, and the legal duties associated with bailment.

Let’s begin with an understanding of the differences between types of property. This is important,
because different laws apply to different types of property. While it might be perfectly legal to destroy
a piece of personal property—like a chair—without obtaining permission from the government,
destruction of real property is a different matter altogether. For example, the owner of an office
building who wishes to demolish it would be subject to many local laws, such as requirements to
obtain the necessary permits. Such an activity might also be subject to further legal scrutiny, if the
building in question holds particular historic value, for example. Let’s compare this to the
destruction of a chair, which is personal property. Even if the chair is the chair that Abraham Lincoln
sat in while drafting the Emancipation Proclamation, as long as the chair is owned by the person who
wishes to destroy it, the owner may simply load it into his or her truck and haul it to the dump. No
special permission is required, because there are few legal restrictions to the destruction of private
property.
As you can see, property can be classified as real or personal. Real property is land, and certain things
that are attached to it or associated with it. Real property is raw land, such as a forest or a field, as
well as buildings, like a house, a condominium, or an office building. Additionally, things that are
associated with land, like mineral rights, are also real property. People often talk about real property
by using the term real estate, which reflects both the concept of real property and the ownership
interest concept of estate.
Many businesses, from grocery stores to coffee shops to hotels, rely on real property for customers or
clients to visit to conduct business. Today, many businesses are also conducted virtually, and have
only virtual shops. Virtual stores, such as those found on eBay, are not forms of real property.
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However, certain virtual real properties, such as those found on Second Life, are traded for real
money. Check out the two links in Note 8.13 "Hyperlink: “Unreal” Property" to read about this
“property” boom, where real business occurs over nonreal property.

Hyperlink: “Unreal” Property
http://realestate.msn.com/article.aspx?cp-documentid=13107800
http://secondlife.com/land
Personal property is property that is not real property. Tangible propertyis something that can be

touched. Moveable, tangible personal property ischattel. Many businesses exist to sell personal
property. For example, the primary purpose of retailers such as Wal-Mart, Amazon.com, and Sears is
to sell personal property. Some property can also be described as fungible property. Property that can
easily be substituted with identical property is said to be fungible. For example, if you bought a
pound of sugar from a container containing ten pounds of sugar, you wouldn’t care which specific
grains of sugar made up your purchase, because all the sugar in the container is fungible. Other types
of fungible goods include juices, oil, metals such as steel or aluminum, and physical monetary
currency.
Some personal property is intangible. Intangible property does not physically exist, but it is still
subject to ownership principles, including acquisition, transfer, and sale. For instance, the right to
payment under a contract, the right to exclude others from a patented product, and the right to
prohibit others from using copyrighted materials are all examples of intangible property.
Sounds simple, right? Your iPod, your flash drive, and your computer are all personal property. Your
dorm room, apartment, or house is real property. So far, so good. But imagine that you found a
Jacuzzi for sale that you loved. You plunked down $5,000 to buy it, and you have it delivered to your
house. You pay for construction of a deck to surround it and plumbing to service it. Is the Jacuzzi
personal property or is it real property? This is an example of personal property that becomes
attached to the land as a fixture. A fixture is something that used to be personal property, but it has
become attached to the land so that it is legally a part of the land. Fixtures are treated like real
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property. Accordingly, when real property is transferred, fixtures are transferred as a part of the real
property. In our example, if you move, you will have to leave your beloved Jacuzzi behind, unless you
make express provisions to remove it. What if you were just renting? Since removing a fixture would
cause substantial harm to the property, that fixture remains with the land. The landlord might be
very happy about that!
Some things that are attached to the land are not fixtures but are part of the real property itself.
Imagine a farm with one thousand acres planted in corn. Is the corn crop personal property, or is it
real property? Or imagine a forest. Maybe the owner has been thinking about timbering the forest for
some extra money. Is the forest personal property, or is it real property? Both the corn crop and trees
are examples of real property that can become personal property, if they are severed from the land.
This means that when an ear of corn is picked from the stalk, the ear of corn becomes personal
property, even though while it was growing and still attached the land, it was real property. Likewise,
when a tree is felled, that tree is transformed from real property to personal property.
Besides property types, property can be classified by ownership, too. Personal property and real
property can be private or public. Private property is owned by someone or something that is not the
government. Individuals, corporations, and partnerships, for instance, can own private property.
Private property can include real property like land or buildings, and personal property, such as
automobiles, furniture, and computers. Property that is owned by the government is public property.
Yellowstone National Park and the Gifford Pinchot National Forest are both examples of public
property that is real property. Public property can also include personal property, such as
automobiles, furniture, and computers owned by state or local governments.

Methods of Acquisition of Personal Property
Personal property may be acquired for ownership in several different ways. For example, if you produce
something, then you may own it, unless you are producing it in the capacity of your work for someone
else. If you buy four yards of wool fabric and sew a coat out of it, then you own that coat by virtue of
having produced it with your own materials. This is ownership by production. However, if you sew a coat
as part of your job while working for your employer, then the employer will own the coat.
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If you are in the business of producing coats to sell, then you may be a merchant, and the rules of
the Uniform Commercial Code (UCC) would govern transactions involving the sale of goods and the
purchase of supplies from other merchants. Regardless of whether someone is a merchant or
not,purchase is a means of acquiring ownership. Indeed, in today’s world, purchase may be the most
common method of acquiring property.
Property may also be gifted. A gift is a voluntary transfer of property. Generally, the donor of the gift must
intend to gift the property, the donor must deliver the gift, and the gift must be accepted by the intended
recipient, known as the donee. A conditional gift is a gift that requires a condition to be met before the gift
will transfer. For example, if your parents said, “You can have a new car, if you graduate from school,”
then that would be an example of a conditional gift. If you do not graduate from school, then you cannot
have the gift of the car.
What if you find something? Dating at least to the Institutes of Justinian in Roman law, the concept of
“finders keepers” is one known to every preschooler: finders keepers, losers weepers. However, in law,
things are not quite so simple. Property that someone finds can be classified in several ways. A finder of
personal property may claim ownership of the property if it is abandoned. The owners of abandoned
property must intend to relinquish ownership in it. For example, if you take your chair to the landfill, you
have abandoned the chair. Someone may come along and take possession of it, which will place ownership
of the chair in that person. If you change your mind later, that’s too bad. The chair now belongs to the new
owner. However, if the property is simply lost or mislaid, then the finder must relinquish it once the
rightful owner demands its return. If the finder refuses to return lost or mislaid property to its rightful
owner, the owner can sue for conversion, which is a tort. Conversion is intentional, substantial
interference with the chattel of another. Another classification of personal property applicable to found
property is treasure trove. A treasure trove is money or precious metals, like gold, for which the concept of
“finders keepers” sometimes is applicable.
Imagine finding the next-generation iPhone just lying on a bar stool. It has not been released yet, but
there you are with an actual prototype in your hands! This is valuable property because it embodies the
cutting-edge intellectual property of Apple, both in utility and design. Brian Hogan found himself in this

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position. Apparently, an Apple software engineer had accidentally left the prototype on a bar stool one
evening. Hogan decided to sell the prototype to Gizmodo, a tech site, which was willing to pay for it so that
it could write an early and exclusive review of this soon-to-be hot item on the market. Gizmodo
subsequently discovered that Apple had lost an iPhone prototype and wanted it returned. Regardless of
that fact, Gizmodo dismantled the prototype and published photos on its Web site. Subsequently, it
returned the property to Apple.

[1]

Was the prototype of the next-generation iPhone abandoned, lost, mislaid, or a treasure trove? If Apple
filed a civil lawsuit against Gizmodo, what would the claim be and who should win? Since we know that
Apple wanted the property back, we know that it had no intention of relinquishing ownership of it.
Therefore, the property was not abandoned. Since a next-generation iPhone is not money or precious
metals—even though it is very valuable and worth a lot of money to Apple—the concept of treasure trove
does not apply. A phone is not actual coin or cash. In this case, the property was either lost or mislaid,
because it was unintentionally relinquished or set down for later retrieval, but the owner had forgotten
where it was placed. In either case, if the phone had not been returned, Apple could have brought a suit
for conversion. A successful conversion claim would have awarded damages to Apple. Just like any
successful conversion claim, damages would not include a requirement to return the property itself.
Incidentally, California has captured the duty to return lost or mislaid property in its criminal statutes,
and the facts of this case are being investigated for possible theft charges. Check out Note 8.32
"Hyperlink: Finders Keepers?" for this story and two additional cautionary tales about claiming found
property.

Hyperlink: Finders Keepers?
Be careful what you wish for. These stories might seem like a miracle to the cash-strapped, but they are
cautionary tales.
Next-Generation iPhone

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Gizmodo published the details of a found iPhone prototype herehttp://gizmodo.com/5520164/this-isapples-next-iphone, but the prototype became the subject of law enforcement and an Apple complaint, as
seen here:http://www.cnn.com/2010/TECH/04/30/wired.iphone.finder/index.html?iref=allsearch
Cold Cash, Hot Lead
This found “money” along an interstate might be abandoned, lost, or mislaid, but it is unlikely to be
claimed by its rightful owner:
http://www.cnn.com/video/#/video/us/2008/12/05/wa.found.money.KING?iref=allsearch
A Renovator’s Fantasy
This found money in the walls of a house might be an example of a treasure trove, but the treasure was
quickly dissipated by legal troubles:
http://www.cbsnews.com/stories/2007/12/13/eveningnews/main3617369.shtml and the
epilogue:http://www.nytimes.com/2008/11/09/us/09house.html

Bailment
Sometimes it is necessary to intentionally leave personal property with someone else. For example,
imagine that you own a cat. If your cat, which is considered to be chattel, needs to have surgery, you will
need to leave her at the veterinary hospital. Clearly, taking your cat to a veterinary hospital does not
constitute abandonment. Likewise, you have not lost or mislaid your cat. And, precious though she may
be, your cat is not subject to the concept of treasure trove. Instead, in this situation you will be known
as bailor, and you will be seeking a bailment with your veterinarian. A bailor is someone in the rightful
possession of personal property who gives the property to someone else to hold. A bailment is the
arrangement in which when the rightful possessor (such as the owner) of personal property gives the
property to someone else to hold. The holding party, known as the bailee, agrees to accept the property
and has the duty to return it. The bailee is someone who is in possession of someone else’s property. In
our example, you rightfully have possession of your cat because she is your personal property. You give
your cat to the veterinarian to hold, who has agreed to accept the cat. You also rightfully expect that the
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cat will be returned to you on demand. Indeed, the veterinarian has a duty, by virtue of the bailment, to
return the cat to you. Consider Note 8.36 "Hyperlink: Lost Dog", where Delta Airlines was the bailee of a
dog, which it lost.

Hyperlink: Lost Dog
Check out this link. Do you think the remedy offered by Delta Airlines is adequate in this case? Why or
why not?
http://www.clickondetroit.com/news/23515167/detail.html
The bailee has certain duties to the bailor. For example, a bailee has a duty to take reasonable care of the
property while the property is in his or her possession. This means different things for different types of
bailment. If the bailee is the only party who benefits from the bailment, then the bailee must take
extraordinary care with the personal property. A common example of a bailee being the only party who
benefits is where the owner of the property loans the property to someone for his or her use. For instance,
if you loan your neighbor a snow shovel without asking for something in return, then your neighbor
receives the sole benefit of the bailment. His or her duty of care is that he or she must take extraordinary
care with the snow shovel. However, when both parties receive benefit from the bailment, such as when
you rent a DVD from Blockbuster, only the duty of ordinary care is imposed on the bailee. The bailee
receives the DVD and Blockbuster receives a rental fee. When the benefit of the bailment exists for the
benefit of the bailor only, then only minimum care is required. Gross negligence will give rise to liability,
but there is no great duty for the bailee to be as careful as he or she would be if he or she were receiving
some benefit. If someone asks you to hold his or her books while he or she jumps into a swimming pool,
you would have a minimum duty of care. If you lost the books, then you would not be liable. However, if
you intentionally threw the books into the pool, then you would be grossly negligent and liable for
damages.
An involuntary bailment is created when someone finds lost or mislaid property. The finder may not
destroy the property, though the duties that he or she owes regarding the property may vary from state to

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state. A voluntary bailment is created when intention exists to create the bailment, as described in the
previous paragraph.
As you can imagine, bailment is common in business. Examples of bailment in business include placing
packages or goods with common carriers for delivery, warehousing goods with a third party prior to sale
or delivery, or taking clients’ or customers’ automobiles in a valet service. Consider whether a business
should be able to disclaim bailment (and the duties that go along with bailment). For example, if a hotel
required its guests to sign a “no bailment created” clause on check-in, should that excuse the hotel from
liability if the guests’ personal property is damaged while the property is left in the hotel?

KEY TAKEAWAYS
Property is classified as real property or personal property, tangible or intangible, and private or public.
Personal property can be transformed into real property when it is affixed to the land. Real property can
be transformed into personal property when it is severed from the land. Personal property can be
acquired for ownership through production, purchase, or gift or, in certain circumstances, by finding it.
Bailments are legal arrangements in which the rightful possessor of personal property leaves the property
with someone else who agrees to hold it and return it on demand.

EXERCISES
1.

Classify the following as (1) personal property or real property, (2) tangible or intangible property,
and (3) fungible property:
a.

A prosthetic device, for example, an artificial leg

b.

An expected inheritance of stock

c.

Draperies hanging in a dining room

d.

A bank account with a five-hundred-dollar balance

e.

A fictional story that you created

f.

A condominium on the thirty-second floor of a building in lower Manhattan

g.

The right to receive payment for your work (e.g., wages, salary)

h.

A wig that someone is wearing

i.

A silo filled with wheat

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j.

The wheat in a silo
Would you be willing to pay real money for nonreal property in a virtual world like Second Life? Why

or why not? What are people buying when they buy virtual real property? How does this differ from
buying actual real property, like land?
If you found a prototype of the next-generation iPhone lying on a bar stool, what would you have
done with it? What would be the consequences of your chosen action?
Think of an example of when you have asked for a bailment. Did you feel confident that you would
receive your personal property when you demanded it? Did you worry that it would be damaged in any
way? If it had been misdelivered, what would your legal remedies be?
Should bailees be permitted to disclaim liability for bailment agreements? Why or why not?
At major league baseball games, who do you think owns the baseball when it is being played, and
who owns it when the ball enters the stands where members of the public sit? Who owns the ball if a
member of the public picks it up?

[1] Edward C. Baig, “Gizmodo: Lost Next-Gen iPhone Returned to Apple,” USA Today, April 21,
2010, http://www.usatoday.com/tech/products/2010-04-20-iphone_N.htm (accessed September 27, 2010).

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8.2 Real Property
LEARNING OBJECTIVES
1.

Understand the concept of real property.

2.

Examine methods of acquisition of real property.

3.

Understand different interests in real property, including ownership interests and scope of interests.

4.

Examine the landlord-tenant relationship.

Real property is land, and certain things that are attached to it or associated with it. Real property

includes undeveloped land, like a forest or a field, and it includes buildings, such as houses,
condominiums, and office buildings. Real property also includes things associated with the land, like
subsurface rights. Fixtures are personal property that have become attached to the land, and they are
transferred with the land. Fixtures in a house include things like the lights affixed to the ceiling, the
furnace, and the bathtub. Plants and trees that grow on the land are real property until they are
severed from the land. For example, farmers’ crops are part of their real property until they are
separated from the land, at which time they become personal property.

Methods of Acquisition
Real property may be acquired for ownership (the title may be obtained) in one of several ways. It may be
purchased, inherited, gifted, or even acquired through adverse possession. Ownership rights are
transferred by title. Ownership of real property means that the owner has the right to possess the
property, as well as the right to exclude others, within the boundaries of the law. If someone substantially
interferes with your use and enjoyment of your real property, you may bring a claim in nuisance (a form of
tort law). For example, if a neighbor decides to start burning tires on his property, the smell of the
burning tires might substantially interfere with your use and enjoyment of your property, so you would
have an actionable claim in nuisance. Similarly, if you own real property, you might rightfully seek
damages against those who enter your land without your consent or permission. This would be a trespass
to land claim. Owners of real property may also sell the real property, in whole or in part.

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The most common way that real property is acquired is through purchase. Property law is a state law
matter, and state laws vary regarding conveyance of property. Typically, someone who is interested in
acquiring real property will ask a third party, such as a real estate agent or a broker, to help locate a
suitable property and to facilitate the terms of the deal. The buyer and seller will negotiate a contract,
which will contain all essential terms of the sale, such as location of the real property, price, fixtures that
will be excluded from sale, and the type of ownership interest that is being transferred. Both parties will
perform their promises under the contract (e.g., the buyer will pay the seller, and the seller will transfer
the title via deed) to close the deal (“closing”), and then the deed will be recorded. A contract for any
interest in property must be in writing to be valid against the defendant according to the
Statute of Frauds.
Different types of deeds convey different types of interests. A quitclaim deed, for instance, conveys
whatever interests in title that the grantor has in the property to the party to whom the quitclaim is given.
Of course, that means if the grantor has no interests in the real property, a conveyance by quitclaim will
not grant any interests in the property. For example, if you grant a quitclaim deed to your friend for the
Empire State Building, then that means that you have transferred your interests in title to that building to
your friend. If you have no interests in the title to the Empire State Building to begin with, then on
conveyance of the quitclaim deed, your friend will not have any interests in the building either. You
cannot convey interests that you do not have. On the other hand, many states allow a warranty deed,
which conveys title and a warranty against defects in title as well as encumbrances. Buyers typically
demand a warranty deed when they purchase property.
After title is transferred by the deed, the deed is typically recorded. Recording the deed is not necessary
for ownership. However, recording a deed to property is important because it places others on notice that
whoever has recorded the deed to the property owns the property. Some states favor the rights of those
who record the deed first (under a race statute), while other states favor the rights of those who acquired
the interest first without notice of other claims to the property (under a notice statute).
A race/notice system, which has a race/notice statute, is one in which priority is given to the first
bona fide purchaser to record when there is a conflict in ownership claim. A bona fide purchaser is simply
a purchaser who takes title in good faith, with no knowledge of competing claims to title.
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Besides outright purchase, another common way in which real property may be obtained is through
inheritance. Real property may be bequeathed through a will or may transfer per state statutes when a
decedent dies intestate. Generally speaking, people have the right to dispose of their property as they wish
when they die, providing that their will or other transfer instrument meets their state’s requirements for
validity. When someone dies intestate, state statutes will determine who among the decedent’s relatives
receives the property. For example, state statutes often specify that property will go to the spouse, and if
there is no spouse, then to the children. If there are no children, then to the parents. If there are no living
parents, then to the siblings, and so on. If no such person exists, the property may finally escheat to the
state.
Real property may also be acquired through a gift. Providing that the person who is giving the property
actually intends to make the gift of title, delivers the deed to the recipient, and the gift is accepted, then
the gift is valid. If one of these elements is not met, for instance, if the deed is not delivered to the
intended party (or to a third party to hold for the intended party), then the gift has not been successfully
made, and the title will not be conveyed.
A less common way to acquire real property is through the doctrine of adverse possession. Colloquially,
this is often referred to as “squatter’s rights.” At its heart, this method of acquiring property captures the
deeply held belief that a land’s value is in its use for profit. If a land sits idle at the owner’s hands but
someone else puts it to use, then the law may—just may—favor the user’s claim to the land over that of the
actual owner.
Adverse possession is when someone who is not the owner of real property has claimed the real property
for his own. To be successful under this doctrine, several elements must be met. These include the
following:


The possessor must be in actual possession.



The possession must be open and notorious, which means that it must be obvious to others (visible).



The possession must be hostile, which means that it is against the actual owner’s interests.



The possession must be continuous, which means that the possessor cannot have been evicted during
the statutory length of time required to obtain title through possession.

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

The possession must be exclusive.



The state statutory length of time must be met, and this time varies from state to state. For example,
some states, like Maine, require a twenty-year period, while other states, like Nevada, require only a
five-year period.

Some states’ adverse possession laws also require that the possessor pay property taxes on the property
during the course of the adverse possession. If all of these elements are met, then the possessor can bring
a claim toquiet title. If successful, the possessor becomes the owner, without any compensation being
made to the former owner.
Adverse possession and claims for quiet title often occur around property lines, where one party has
routinely used another’s property because a fence has been misplaced. Other instances involve claims
concerning land owned by people who do not visit it, such as land owned in a remote area. Still other
examples exist in cases of ouster, when a tenant in common constructively or actually evicts others with
valid ownership interests. Remember that all elements of an adverse possession must occur for the entire
statutory length of time for an action for quiet title to be successful. This means, for instance, if the owner
checks on the property and finds someone there, the owner must interfere with those elements. The
owner should evict the trespasser, and this can be accomplished by summoning the police. Doing so
would break the continuity requirement.
A recent case in Boulder, Colorado, prompted the Colorado legislature to substantially alter the state’s
adverse possession laws. In that case, a married couple, composed of a judge and an attorney, met the
requirements for adverse possession and successfully brought an action for quiet title. In that case, the
adverse possessors were clearly versed in the law. The actual owners of the property had purchased the
land many years before to build a future retirement home. Check out Note 8.59 "Hyperlink: A Question of
Ethics" and see whether you think the Colorado legislature overreacted.

Hyperlink: A Question of Ethics
Is adverse possession a legally sanctioned form of theft?
http://www.denverpost.com/news/ci_7494276
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Interests and Scope
Owning real property carries many responsibilities, as well as the potential for great profit and great
liability. It is important to recognize the duties associated with property ownership, and learn how to
protect yourself against potential liability associated with it. For instance, if a toxic waste site is discovered
on your real property, you may very well be liable for its cleanup, even if you did not realize that such a
site was there when you purchased the land. Each buyer of real property has a duty to
exercise due diligence when purchasing land. The idea is that you should have known about the site, if it
was discoverable on inspection. Knowing this, along with familiarity with the
federalComprehensive Environmental Response, Compensation, and Liability Act (CERCLA), helps us
recognize that we should never agree to buy land “sight unseen,” or at least without a professional
inspector that we trust. But what if an old toxic waste site is located on property that you wish to sell? You
would have a duty to disclose such a defect in the land to prospective buyers before conveying ownership.
Additionally, we must consider duties that landowners have to other people who enter the land. What are
our duties to people who visit our home? Or our retail establishment? What if they are not invited but
instead are trespassers? These duties of landowners will vary depending on the status of the person who
was injured.
What if a gold mine were discovered on land that you used to own? Can you profit from that discovery?
Probably not, if you conveyed full ownership to someone else.
As these examples illustrate, it is important to know about the duties of landowners, how to limit
liability associated with the ownership of land, and when severance of liability occurs. These types of
questions can be considered more fully when we consider ownership interests.
Additionally, it is important to know how an owner of real property may use the property, or the scope of
his or her rights. Consider these questions: If you owned a lot in the middle of a city, can you build an
apartment building that blocks the neighboring landowner’s light? Or if you own a piece of raw land
where you discover oil, can you drill on your land if it siphons oil from underneath your neighbor’s land,
or if it causes your neighbor’s land to collapse due to lack of subsurface support? If you live on a coastline

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and your neighbor builds a dyke that causes your waterfront property line to erode so that over the years
your property is reduced in size, do you have an actionable claim against your neighbor? Conversely, if the
ebb and flow of water along the coastline increases your property due to natural accretion, do you own the
“new” property, even though it wasn’t part of the original purchase? Consider water disputes, which are a
very hot topic in the western states. If you live next to a river, can you divert the entire stream of water,
even if you wanted to divert it for a capricious reason? Imagine that you dreamed of having a very large
private water park for your family, but you needed all the water in a river that adjoined your property to
make that dream a reality. If you diverted all that water, other riparian owners might very well have an
actionable claim. What if it was a drought year and you relied on water from a river to irrigate your
commercial crops, but endangered salmon in the river needed the water for their habitat? Can you take
the water for your crop, or must the water be left in the river for the endangered salmon? These types of
legal questions can be addressed when we consider the scope of rights.
The following sections address duties of landowners, ownership interests, and scope of interest in real
property.

Duties of Landowners
Landowners owe different duties to different types of people who enter their land. These responsibilities
vary, depending on whether the person is a trespasser, a licensee, or an invitee.
A trespasser is a person who voluntarily, intentionally enters the land of another without permission or
privilege. A landowner has a duty not to intentionally injure a trespasser. For instance, booby traps,
pitfalls, or anything of the sort are simply not permitted. Trespassers injured from such a trap have valid
claims against the landowner for injuries.
A licensee is someone who has permission to be on the land. Landowners have a higher duty of care to
such a person. Not only must a landowner not intentionally injure a licensee, but the landowner must also
warn the licensee of known defects. For example, if a landowner knows that the steps to his or her porch
are icy, he or she has a duty to warn a licensee—such as a visiting friend—that those steps are icy. Failure
to do so may result in liability for the landowner.

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An invitee is someone who has entered real property by invitation. Businesses have issued invitations to
the public. Public places have issued invitations to the public. Anyone who arrives at the invitation of an
owner is an invitee. Landowners must inspect their property for defects, correct those defects when found,
and warn invitees about such defects. This is why you will see a “caution” sign on the floor of a grocery
store, after it has been mopped or after a liquid spill.

Ownership Interests in Real Property
Different types of interests may be owned in real property. For example, real property may be owned
without restriction, subject only to local, state, and federal laws. Or ownership interests may be narrower,
subject to conditions, the violation of which can lead to loss of those ownership interests.
The most complete ownership interest is represented by fee simple absolute. The owner of property in fee
simple absolute has the greatest ownership interest recognized by law. Generally, if someone wants to buy
real property, he or she is looking to buy property in fee simple absolute.
Compare that with a defeasible fee. A fee simple defeasible is subject to a condition of ownership or to
some future event. For instance, if you donated land to “the City of Nashville, so long as it is used as a
public greenway,” then the land would be owned in defeasible fee by the City of Nashville, unless it
decided to do something else with the land, besides maintain it as a public greenway. Once the condition
is violated, the land would revert back to either the original owner or whoever owned
the reversion interest, which is a future interest in real property.
Another ownership interest is a life estate. This interest is measured by the life of the owner in the life
estate. If you wished to grant ownership rights in real property to your mother for the length of her life,
but then expected the property to be returned to you upon her death, you might grant a life estate to her.
Similarly, a common investment, known as a reverse mortgage, employs the concept of life estate. A
reverse mortgage is an arrangement where the purchaser of real property agrees to allow the seller of the
property to retain possession of the property for a specified period of time (such as the remainder of his or
her life) in exchange for the ability to purchase the property at today’s price. This can be an attractive
investment, if the investor believes that the value of the property will increase in the future, and if the

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investor does not need immediate possession of the property. These arrangements essentially gamble on
life expectancies of the sellers of real property by granting life estates to them in the property. However,
sometimes this backfires. Check out Note 8.70 "Hyperlink: Reverse Mortgage" for an example of a seller
who outlived her investor in such an arrangement.

Hyperlink: Reverse Mortgage
“In life, one sometimes makes bad deals,” said Jeanne Calment, the oldest living woman in history,
concerning the investor who “reverse mortgaged” her apartment.
http://www.nytimes.com/1995/12/29/world/a-120-year-lease-on-life-outlasts-apartment-heir.html
Sometimes, more than one owner owns the interest in the property. Several types of co-ownership
interests are recognized in law. These ownership interests are important for matters of possession, right to
transfer, right to profits from the land, and liability. For example, tenancy in common describes an
ownership interest in which all owners have an undivided interest in the property, equal rights of
possession, and a devisable interest. Compare this to a joint tenancy, which describes an ownership
interest in which the surviving owner has the right of survivorship. Imagine that you own a gold mine with
your partner, Frank. Would you rather have a tenancy in common or a joint tenancy? You would rather
have a joint tenancy because if Frank dies, then his interest in the gold mine would vest in you, rather
than in his heirs. After all, you may not want to be a partner with Frank’s grandson (or whoever), but that
is exactly what might happen with tenancy in common. Similarly, a tenancy by the entirety includes the
right of survivorship, but it can only occur between a husband and wife. This concept is recognized in
some states, but not all states.
These different interests are created by specific wording in the instrument of conveyance. To create a
tenancy in common, the language would be “To John and Frank,” if John and Frank were to be the coowners. However, if a joint tenancy were intended, the conveyance would have to be more specific, like
this: “To John and Frank, with rights of survivorship.” Note that John and Frank could not benefit from a
tenancy by the entirety unless they lived in a state that recognized same-sex marriages, and unless they

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were, in fact, married. Moreover, such questions have not yet arisen in our courts because the legal
concept of same-sex marriage is still nascent and, in many states, not yet recognized in law.
Note that a tenant in tenancy in common may sell or transfer his or her rights without seeking permission
from his or her cotenant. Imagine that you owned a farm with your best friend. At first, you agree to
engage only in organic farming practices. Later, your friend wants to move to conventional farming
practices. Since you do not want any part in the spraying of pesticides or herbicides on the land, you
decide to sell your interests to someone else. Even if your friend opposes the sale, he or she cannot block
it. This is because cotenants in a tenancy in common have the unilateral right to transfer their interests in
property. Imagine, later, that someone working on that land becomes very sick from a pesticide sprayed
there after you sold your interest. You would not be liable for any damages resulting from such an event,
because your liability would be severed with the sale. Compare this to a joint tenancy, including tenancy
by the entirety. To transfer one’s interests, the consent and approval of the cotenant is required. In the
case that joint tenants disagree about the use of the property or its disposal, the courts can step in to grant
a partition of the land, which essentially results in a separate parcels being granted to the individual
tenants. This recasts the formerly joint tenants into adjacent landowners, and it allows them to dispose of
or use their property as each sees fit, with no rights to the other’s property.

Scope of Interests in Real Property
Scope of ownership matters, because it is determinative of what can (or cannot) be done with the land.
The surface of the land and the buildings that are attached to the land are implicitly included when most
people contemplate the scope of ownership of real property. However, other interests can be parsed and
conveyed separately, including subsurface or mineral rights, and right to light or right to a view.
Moreover, water rights are granted differently, depending on whether the property is in the western or the
eastern United States. Additionally, easements and covenants grant certain rights to nonpossessors of
land.
Subsurface or mineral rights are rights to the substances beneath the actual surface of the land. If you are
interesting in drilling for oil, but you do not want to buy every piece of land where you might wish to

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speculate, then you probably are in the market to purchase or lease mineral rights. This would allow you
the right to extract whatever you find under the surface of the land and sell it.
Water rights are determined in two different ways in the United States. Generally speaking, states east of
the Mississippi River follow ariparian water rights doctrine, which means that those who live next to the
water have a right to use the water. The water is shared among the riparian owners. In a quite different
scheme, most western states use the concept of prior appropriation, which grants rights to those who used
those rights “first in time.” Moreover, under this concept, the use must be beneficial, but the owner of the
right need not be an adjacent landowner. This policy has led to some unnatural uses of land in western
states, where water rights are highly valued due to the scarcity. For example, we see flourishing farmlands
in extremely arid climates because the owners of the water rights want to make sure that they retain their
prior appropriation rights to the water by putting it to beneficial use (e.g., crop irrigation). If water is not
put to beneficial use under a prior appropriation doctrine, then those rights can be lost. Prior
appropriation is basically a “use it or lose it” doctrine. Moreover, adjacent landowners in prior
appropriation states may have no right whatsoever to use the water that runs through their land. Indeed,
such an outcome is very common.
Easements and covenants are nonpossessory interests in real property. An easement is created expressly
or impliedly, and it generally gives people the right to use another’s land for a particular purpose. For
example, an easement for utility companies to enter onto the land of others is common. This allows the
utility companies to maintain poles, power lines, cable lines, and so on. Other examples include a
landlocked property having an easement across another piece of property for the purpose of a driveway,
or an easement granted to the public to walk along the property of another to gain access to the shoreline.
A covenant is a voluntary restriction on the use of land. Common covenants are homeowners associations’
rules, which restrict the rights of the owners to use their land in certain ways, often for aesthetic purposes.
For instance, such covenants might require houses subject to the covenant to be painted only in certain
preapproved colors, or they might contain prohibitions against building swimming pools.

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Some covenants and easements run with the land, which means that the restrictions will apply to
subsequent owners of the real property. Whether a covenant or easement runs with the land depends on
the type of interest granted.

Landlord-Tenant Relationships
A leasehold interest may be created in real property. For example, if you rent an apartment, house, or
dormitory room from campus, you are a tenant with a leasehold interest. In such a relationship, you are
the tenant and the property owner is the landlord. A leasehold is simply a possessory interest with certain
rights and duties, which are typically specified in the lease agreement. For example, a tenant has the right
to exclusive possession of the real property and the duty to follow the rules of occupancy set out by the
landlord, and a landlord in a residential lease agreement has the right to be paid rent and the duty to
ensure that the premises are habitable. If one party does not perform under the lease as required, the
other party may seek legal remedy. For example, if a tenant does not pay rent, then a landlord may
lawfully evict the tenant from the premises, even if the term of the lease has not run. Like other interests
in real property, leases generally must be in writing to be enforceable against the defendant.
Different types of tenancies may be created. The most common tenancies are probably tenancies for years
and periodic tenancies. Tenancy for years is simply a tenancy that lasts for a particular, specified period of
time. When you rent an apartment, you might sign a lease for nine months to reflect the school year. That
would be a tenancy for years, even though the term of the lease is less than one year. A periodic tenancy,
on the other hand, is a tenancy that simply runs for a particular period of time and then automatically
renews if it is not terminated by the landlord or the tenant. For instance, a one-year lease may become a
periodic tenancy if neither party terminates. Imagine that you had a one-year lease but you did not move
out at the end of the year, and the landlord continued to accept rent payments and took no action to
terminate the lease. A new lease—for a one-year period of time—would be created. Less common types of
tenancies are tenancy at will, which is a tenancy for no particular fixed period of time and subject to
termination at will by either the landlord or the tenant, and tenancy at sufferance, which is a tenancy that
occurs when a tenant remains on the property after the right of possession has ended and without the
landlord’s consent.

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Tenancies may be created for residential purposes or commercial purposes. Commercial leases typically
last for longer periods of time than residential leases. For example, it is not uncommon to hear about
commercial leases that last five, ten, twenty-five, or even ninety-nine years. Many of the same
responsibilities and duties exist with commercial leases, but there are some important differences. For
example, a commercial tenant may demand that the landlord refuse to rent to a competitor of the tenant
within the same building. For example, if a golf shop locates in a strip mall, it may require as a term in the
lease that the landlord refrain from renting other retail space to a competitor golf shop within the same
strip mall.
Lease interests are assignable unless those rights are expressly restricted by the lease agreement. This
means that the rights conveyed by the lease, which is a contract, may be transferred to another party
by assignment, unless an express restriction on assignment exists within the lease. You may have seen
restrictions on assignment in your own residential lease in the form of a no-subletting clause. Commercial
leases routinely contain a restriction on assignment without permission from the landlord.
Just as the owner of real property may sell any or all of his or her interests, any ownership interest in real
property may also be leased. For example, someone who owns the subsurface rights of land may lease the
right to drill for oil or gas to another.

KEY TAKEAWAYS
Real property may be acquired by purchase, inheritance, gift, or adverse possession. Owners of property
must know the breadth and limits of their ownership interests to understand their rights to profits derived
from the land and their liability resulting from use of their land. Interests in land may be absolute,
conditional, or for a period of time. Additionally, co-owners may have different rights, depending on their
kind of ownership. The scope of interest in land may include surface and the buildings attached to it, while
other interests may be severed and conveyed separately, such as subsurface rights and water rights.
Easements and covenants in real property convey nonpossessory interests. Leasehold interests are
possessory, nonownership interests.

EXERCISES

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1.

Do you agree that a land’s value is only its profits? If not, what makes land valuable? Does it have an
“inherent” value, which has nothing to do with human profit?

2.

Consider this contemporary take on the tort of nuisance. Some Gulf Coast landowners filed a nuisance suit
against power companies for emitting carbon, arguing that the carbon led to global warming, which then
led to increased sea levels, which then led to hurricane Katrina’s unusual ferocity and strength. The district
court dismissed the case, but a three-judge panel on the Fifth Circuit reversed, saying the landowners had
standing to proceed and that the claim was justiciable. Do you think that this is a valid nuisance claim?
Why or why not?

3.

Do you think that adverse possession should be abolished? Why or why not? If you discovered a squatter
on your land, what should you do to protect your title?

4.

What type of due diligence can be performed to ensure that property does not contain a buried toxic
waste dump?
5.

Classify the following as trespasser, licensee, or invitee to determine the duty owed by a
landowner:
a.

The mailman

b.

A customer in Wal-Mart

c.

A person who cuts across your land to reach the other side, without your permission
Think of a situation in which you would grant a life estate to someone in property that you own. How

does that situation differ from renting property to a tenant?
Find a story in the newspaper about liability resulting from the ownership of real property. Do you
think that landowner should be liable in the case that you located? Why or why not?
What benefits can you see for both the landlord and the tenant for extremely long leases? What are
the risks?

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8.3 Concluding Thoughts
An understanding of the nature of property is imperative, because at the heart of many transactions
is the acquisition, rights to possession or use, or sale of personal or real property. Clearly, these
transactions are central to many businesses and the livelihoods of the people involved in business.
When thinking about acquiring property, it is important to know not only whether the property is
“right” for your or for your business but also about the rights and duties associated with acquiring it,
the protections afforded to you by law as the owner of it, and how to transfer it to another party at
the time of sale, lease, or licensing the right to use it. Additionally, liability often attaches to property,
and limiting one’s liability is at the heart of what your study of law should encourage you to do.

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Chapter 9

Intellectual Property
LEARNING OBJECTIVES
No matter what industry a company operates in, or its size, a company’s intellectual property is often
more valuable than its physical assets. While factories and inventory can be rebuilt after a loss, losing
control of intellectual property can be ruinous for companies. After reading this chapter, you should be
able to apply intellectual property concepts to answer the following questions:
1.

Why is it important for the law to protect intellectual property?

2.

Under what authority does Congress regulate intellectual property?

3.

How can intellectual property be protected?

4.

What are the differences between the major forms of intellectual property protection?

5.

What are some current ethical issues that arise under intellectual property law?

The Apple iPhone 4 is the latest model of Apple’s do-it-all cell phone. Since its introduction in 2007,
the iPhone has redefined the “smart phone” segment of the wireless phone industry and left its
competitors scrambling to catch up. Its sleek lines, gorgeous full-color display, built-in GPS
navigation and camera, visual voice mail, and Web surfing capability (either over Wi-Fi or 3G phone
networks) made it an instant hit, with thousands of consumers lining up for hours to have their
chance to buy one. Its revolutionary business model, where thousands of software programmers
could write small programs called “apps” and sell them on the App Store through Apple’s iTunes
software, created a win-win-win business model for everyone who touched the iPhone. For software
programmers, it was a win because small, untested, and first-time programmers could “strike it rich”
by selling thousands of their apps directly to consumers without having to find a software publisher
first. For Apple, it was a win because thousands of talented programmers, not on Apple’s payroll,
were developing content for their product and enhancing its appeal. Apple also wins because it
collects a percentage fee from every app sold on its iTunes store. And finally, consumers win because
they have access to all sorts of creative programs to help them do more on their iPhones than simply

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make a phone call. The business has been a tremendous success for both Apple and AT&T, the
exclusive service provider of iPhones in the United States.
There are quite a few companies in the industry that aren’t doing as well, from Nokia to Motorola to
Sony Ericsson. If they wanted to see how Apple makes the iPhone, all they’d have to do is buy one
and then take it apart to see its components (a process known as reverse engineering). Or they could
look at the reverse engineering conducted by iSuppli, an independent market intelligence firm.

Hyperlink: iPhone Teardown Analysis
You can see how iSuppli broke down the components in an iPhone 4 by reading this press release:
http://www.isuppli.com/Teardowns-Manufacturing-and-Pricing/News/Pages/iPhone-4-Carries-Bill-ofMaterials-of-187-51-According-to-iSuppli.aspx

iSuppli found out that the bill of material (BOM), or the breakdown of each component Apple
purchased to assemble into an iPhone, is roughly $187.51. The most expensive components are a $27
16GB flash memory module from Samsung, a $28.50 display module that includes the iPhone’s
glossy 3.5-inch screen, and a $10 touch screen assembly that includes the touch-sensitive glass on
top of the screen.
Apple makes a lot of money selling iPhones. Although the $199 retail price of the 16GB iPhone 4
suggests that Apple makes only about $12 profit per phone, in reality the “cost” of the iPhone is much
higher than $199, since each phone is sold with a two-year contract with AT&T service. Industry
analysts estimate that AT&T pays Apple approximately $300 for each iPhone sold with an AT&T
plan, in return for Apple agreeing not sell the iPhone through any other phone network. [1] The result
for Apple is staggering profitability, with a $1.21 billion profit reported in the first three months of
2009, much of which driven by iPhone sales. [2] This chart (Figure 9.1 "Estimated Revenues of the
Top Cell Phone Manufacturers") shows, to scale, how outsized Apple’s profits are compared to those
of the rest of the industry. Apple’s profit margin, at an estimated 40 percent, is nearly double that of
its nearest competitor, Research in Motion, maker of the BlackBerry. [3]

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Figure 9.1 Estimated Revenues of the Top Cell Phone Manufacturers

Source: Courtesy of iSmashPhone, http://www.ismashphone.com/2009/08/a-visualized-look-atthe-estimated-revenues-of-the-top-cell-phone-manufacturers.html.
If you were a competitor in the cell phone industry, you’d be sorely tempted to try to duplicate
Apple’s success. After all, if it only costs $187.51 to make an iPhone, and you could sell it for a $320
profit, why not just make something that looks a lot like an iPhone? Behold the Air Phone No. 4
(Figure 9.2 "Air Phone 4"). Released in 2010, the Air Phone is made by a little-known Chinese

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manufacturer and looks virtually identical to the iPhone 4. It lacks many of the features of the iPhone
4 and does not run on the iPhone’s software platform, but at approximately $150 in online stores, it
is proving to be a popular alternative to the iPhone.
Figure 9.2 Air Phone 4

The reason that companies like Motorola and Nokia don’t simply use the bill of material generated
by iSuppli to make their own iPhones, of course, is that it’s illegal. The BOM only lists the component
costs to Apple; it does not capture the amount of money Apple spent in developing the product
through the R&D process. The years of software and hardware development that Apple undertook to
create the iPhone involve labor, just as building a skyscraper involves labor. In Apple’s case, the
product of its labor is not a skyscraper or other tangible property—it is intangible property known
broadly as intellectual property, or IP. The law protects Apple’s IP just as it protects tangible things
from being stolen, so any attempt by a competitor to make an iPhone clone would fail even if the
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technical ability to do so exists. To be legally sold in the United States, the Air Phone must be
different enough from the iPhone that it doesn’t actually infringe, or step on, any of Apple’s
intellectual property rights in the iPhone.
In this chapter, we’ll discuss how the law protects IP. We’ll begin by examining how IP has been a
part of the country’s foundation from its very beginning. We’ll then discuss the four major types of IP
protected by the law: patents, trade secrets, trademarks, and copyright. By the end of this chapter,
you’ll understand the value that IP plays in a modern economy, the challenges that companies face in
doing business in countries that don’t value IP, and the devastating impact that IP infringement
(including the downloading of music and movies by college students) has on copyright content
holders. You’ll also be able to distinguish among the various types of IP protection and how they are
similar to, and differ from, each other.

Key Takeaways
Companies (such as Apple) invest tremendous resources in developing exciting and innovative new
products and services. Reverse engineering means that it would be easy for competitors to quickly figure
out how these new products are manufactured, and then copy them. Intellectual property law prevents
this from happening and in doing so provides incentive for individuals and companies to create and
innovate.

[1] M. G. Siegler, “AT&T iPhone Deal Extended to 2010. Did Apple Mortgage Its Future for a Subsidy?” Social Beat,
August 1, 2008, http://digital.venturebeat.com/2008/08/01/att-iphone-deal-extended-to-2010-did-applemortgage-its-future-for-a-subsidy (accessed September 27, 2010).
[2] Jim Dalrymple, “Strong iPhone and iPod Sales Drive Apple Profits to $1.21 Billion,”Macworld, April 22,
2009,http://www.macworld.com/article/140162/2009/04/appleearnings.html (accessed September 27, 2010).
[3] “A Visualized Look at the Estimated Revenues of the Top Cell Phone Manufacturers,”iSmashPhone, August 11,
2009, http://www.ismashphone.com/2009/08/a-visualized-look-at-the-estimated-revenues-of-the-top-cell-phonemanufacturers.html (accessed September 27, 2010).

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9.1 Constitutional Roots
LEARNING OBJECTIVES
1.

Understand the constitutional roots for providing legal protection to intellectual property.

2.

Explore the tension between content producers and the public good, and how Congress resolves this
tension.

Anyone alive when the U.S. Constitution was adopted would be surprised at the size and scope of the
U.S. federal government today. What would not surprise them, however, is the existence of the
U.S. Patent and Trademark Office (USPTO), since the establishment of a system to protect patents is

one of those few congressional powers enumerated in Article I, Section 8 of the Constitution. That
clause, known as the Copyright Clause, says that Congress may “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.” Keep the key words of this clause in mind, as we’ll come back
to them later: “promote progress,” “limited times,” and “exclusive.”

Hyperlink: Patent and Trademark Database
The USPTO Web site is a treasure trove of information as it includes a searchable database for trademarks
and patents. See if you can search these databases for well-known trademarks or patents.
http://www.uspto.gov

Although the Constitution addresses only copyrights and patents, modern intellectual property (IP)
law also includes trademarks (probably left out of the Constitution because of the relative
unimportance of corporations and branding at the time) and trade secrets (a relatively new form of
IP protection). Unlike other controversial portions of the Constitution, such as state rights and the
role of the judiciary, the value of laws that protected authors and inventors was well accepted in 1787,
when inventions of new machines were shaping up to be part of the fabric of the new country.
Indeed, the attendees at the Constitutional Convention took a break from their work to watch the
first steamship in the Delaware River. One of the first patents granted was to Abraham Lincoln, who
drew on his experience as a young man making his way from Indiana to New Orleans along the Ohio
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and Mississippi rivers on a flatboat to devise a system to lift and drop boats over shallow water
without dropping off their cargo. A scale model of his invention is on display at the Smithsonian
(Figure 9.3 "President Lincoln’s Patent"). Lincoln, who many historians described as mechanically
inclined and fascinated by engineering, felt that the patent system added “fuel of interest to the fire
of genius.”
Figure 9.3 President Lincoln’s Patent

Source: Photo courtesy of the Smithsonian National Museum of American History,
http://americanhistory.si.edu/collections/object.cfm?key=35&objkey=19.

Essentially, the Copyright Clause permits (even commands) the federal government to protect
certain products of the mind, just as much as it protects personal land or money. If someone
trespasses on your property, you can call the police and have them removed or you can sue them in
court for damages. In either case, the full force and power of government is involved. The same thing
can be said about IP. On the other hand, you know from your economics classes that, in general, our
capitalist economy frowns on monopolies. We believe that monopolies are immune from competitive
pressures and can therefore charge exorbitant prices without any regard to the quality of their
product. Efficiency suffers when monopolies are allowed to exist, and ultimately the consumer loses
in choice and price. If you think about it, though, the Copyright Clause essentially allows the
government to create a special kind of monopoly around IP. Take, for example, a pharmaceutical
company that invents a certain kind of drug and applies for a patent on that drug. If the government

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grants the patent, then the company can charge as much as it wants (some drugs can cost tens of
thousands of dollars per year for consumers) without any regard for competitors, since competitors
are shut out of that drug market by virtue of the patent. If any competitor dares to copy the drug to
compete against the inventing company, the full force and weight of the government will be brought
down on the competitor. Violations of patent law carry extremely stiff penalties.
How can we say that monopolies are bad, and yet grant Constitutional protection to monopolies on
IP? The answer lies in the genius of the Copyright Clause itself. As in all monopolies, there are two
sides: the producer and the consumer. The producer always wants the monopoly to last as long as
possible, while the consumer wants the monopoly to end as quickly as possible. The Copyright Clause
strikes a compromise between the producer and the consumer in two ways.
First, the Clause states that Congress can grant the monopoly only to “promote the progress of
Science and Useful Arts.” In other words, the monopoly exists for a specific purpose. Note that
“making Beyoncé rich” or “allowing Pfizer to make billions of dollars” is not the purpose. Rather, the
purpose is progress. Granting monopolies can encourage progress by providing a financial incentive
to producers. Singers, songwriters, inventors, drug companies, manufacturers—they all invent and
innovate in the hope of making money. If they knew that the law wouldn’t protect what they came up
with, they’d either not invent at all or they’d simply do it for themselves and their families, without
sharing the fruits of their labor with the rest of society.
Second, the clause states whatever monopoly Congress grants has to be for a “limited time.” In other
words, at some point the monopoly will end. When the monopoly ends, science is once again
progressed because then society can freely copy and improve upon the producer’s products. Society
benefits greatly from the expiration of these IP monopolies. Important drugs such as aspirin and
penicillin, for example, can now be purchased for pennies and are accessible to the entire human
population. Grand literary works, such as Shakespeare’s Hamlet or Beethoven’s Fifth Symphony, can
be performed and enjoyed by anyone at any time without seeking permission or paying any fees or
royalties. These inventions and works are in the public domain, to be enjoyed by all of us.

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The Copyright Clause does not state how long the monopoly can last; it leaves that task to Congress.
Congress must make the decision based on what’s best to promote progress. Remember, though, that
producers want monopolies to last as long as possible. For example, consider how long copyrights
last. Since 1976 copyrights have lasted for fifty years after the death of the author. After that,
copyrighted works fall into the public domain (such as works by Shakespeare or Beethoven). In 1998,
however, Congress began considering adding an extra twenty years to that term, for a total of seventy
years after the author’s death. In the early part of the twentieth century, the United States
experienced a cultural renaissance that accompanied the Industrial Revolution. The invention of the
phonograph and cameras allowed the creative genius of Walt Disney, George Gershwin, and Charlie
Chaplin (to name a few) to flourish. Under the 1976 copyright law, though, some of these early works
(including early versions of Winnie the Pooh) were about to fall into the public domain by 1998. The
United States was also under some pressure from international trading partners to increase the
copyright term.

Video Clip: United Airlines Commercial
As a result of these pressures, U.S. Representative Sonny Bono (himself a popular artist together
with his former wife Cher) introduced the Copyright Term Extension Act to add twenty years to
copyrights. During hearings on this bill, Congress heard testimony from Jack Valenti, then president
of the Motion Picture Association of America, an industry group that represents film studios and
corporations. When asked how long he thought copyrights should last, he answered “Forever minus
a day.” Although Sonny Bono’s bill passed, whether or not “forever minus a day” will eventually
become the law as Congress seeks to strike the right balance between protection and access and
whether it satisfies the Constitution’s demand that the monopoly last for a “limited” time remain
unresolved questions.

KEY TAKEAWAYS
The Constitution commands Congress to provide monopoly protection for intellectual property, but only
for purposes of progressing science and useful arts, and only for a limited time. Content producers will
always want legal protection to last as long as possible to maximize profits, while the public good benefits
when content falls into the public domain. Congress is under intense pressure to resolve this tension.
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EXERCISES
1.

Why do you think the Founding Fathers decided to empower Congress to protect intellectual property, but
only for a limited time?

2.

How likely do you think it is that Congress may extend the term for copyright protection again in the
future? Why?

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9.2 Patents
LEARNING OBJECTIVES
1.

Understand what a patent is, as well as the different types of patents that exist.

2.

Learn the criteria required for an item to be patentable.

3.

Explore controversial issues surrounding patents.

4.

Examine patent infringement and its consequences.

5.

Understand boundaries and limitations on patent rights.

Imagine that you invented the Apple iPhone 4. If you invent a patentable item that is useful, new,
and nonobvious, and if you are capable of describing it in clear and definite terms, you may wish to
protect your invention by obtaining a patent. A patent grants property rights to the inventor for a
specified period of time, with a utility patent and a plant patent expiring twenty years following the
original patent application and a design patent expiring fourteen years afterward. A patentee owns a
patent.
However, if you invented the Apple iPhone 4 while employed to perform creative and inventive work,
then any patents obtained with respect to your work would be assigned to your employer. Many
inventors and designers work for employers in creative and inventive capacities. This arrangement
allows innovative ideas to be adequately funded in trade for the property rights resulting from
patents granted to those inventions.
Three patent types exist. Utility patents may be granted for machines, processes, articles of
manufacture, compositions of matter, or for improvements to any of those items. The Apple iPhone 4
certainly is the subject of utility patents. A design patent may be granted for ornamental designs for
an article of manufacture. A plant patent covers inventions or discoveries of asexually reproduced
plants (e.g., plants produced through methods such as grafting).
Not all items are patentable. For instance, an idea alone (without a definite description) cannot be
patented. So even if you dreamed up the idea of something that looked and functioned exactly like
the Apple iPhone 4, you would not have been eligible for a patent on your idea alone. Likewise,

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physical phenomena, the laws of nature, abstract ideas, and artistic works cannot be patented. Note,
however, that artistic works can be copyright protected. Additionally, otherwise patentable subjects
that are not useful, or items that are offensive to public morality, are not patentable.
So what does it mean to have a patent? Just like real property ownership, a patent confers the right
to exclude others. If you owned a parcel of real property, your ownership interest would allow you to
exclude others from your land. The rule of law would protect your right to exclude against the
intrusions of others, which is the very essence of ownership. Likewise, a patent confers the legal right
to exclude others from making, using, or selling the patented product. This is consistent with the
Copyright Clause of the U.S. Constitution, which grants inventors the “exclusive Right to
their…Discoveries.” For others to legally make, use, or sell the patented product, they would have to
be granted permission by the patentee. This is often accomplished through a licensing agreement, in
which the patentee authorizes others to sell, make, or use the product.
For instance, some genetically modified agricultural products are the subjects of utility patents.
Monsanto Company patented Genuity Bollgard II Cotton, designed to resist worm damage, which can
be a devastating problem for cotton farmers. This product reduces the need for farmers to spray
insecticide. Patentees, such as Monsanto Company, hold many patents on agricultural products such
as cotton, soybeans, canola, and corn. In the United States these patents typically protect new plant
breeds as well as parts of the plants. In contrast, some countries, such as Canada, do not permit the
patenting of life forms. In countries where the patenting of whole life forms is prohibited, the patents
typically protect the genetically modified parts of the life form, such as the genes and the cells, as
well as the process for inserting the genes into the cells.
Do genetically modified plants meet the threshold requirements to be the subject of a patent?
Remember that to be a patentable item, the invention must be useful, new, and nonobvious.
Genetically modified plants are useful because they possess some particular quality for which they
were designed. For example, Genuity Bollgard II Cottonresists many types of damaging worms while
reducing the need for farmers to use insecticide, and so this invention can be said to be useful.
Likewise, some patented genetically modified agricultural products are resistant to herbicides, such

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as Monsanto Company’s Roundup Ready line of agricultural products. Roundup Ready products are
resistant to an herbicide known as glyphosate, which is the main active ingredient in the herbicide
line marketed by the Monsanto Company under the Roundup brand. These are also useful
inventions, because farmers that plant those patented herbicide-resistant products do not have to
wait to plant their crops until their fields are cleared of weeds. They can plant their crops before they
spray herbicides because the genetically modified crops will resist the herbicide and continue to
grow. This allows the farmers to put their land to use for longer periods of time and with more
confidence that they can kill weeds without damaging their crops. They can do so using inexpensive
methods such as by spraying herbicides, rather than hand-weeding, which is very labor intensive.
Genetically modified plants are new and entitled to be patented when no one else has applied for a
patent for that particular invention. If, for example, some other company had invented the same
product that eventually became known as Genuity Bollgard II Cotton before the Monsanto Company
had invented that product, then the Monsanto Company would not have been permitted to patent
that product, even if it had independently invented that product with no knowledge of the other
invention. In this way, we can see that patents are granted in the United States by the “first to invent”
rule. Many other countries follow the “first to file” rule, which means that the first applicant to file
for a patent on a particular invention is eligible for the patent, regardless of who first invented it.
There are legal movements to amend the U.S. Patent Act to change from “first to invent” to “first to
file,” but no amendment has yet been passed.
Genetically modified plants are nonobvious inventions if they are different from what has been used
before, so that someone with ordinary skill in genetically modified plant technology would not find
the new invention to be obvious. For example, if the “new” invention only changed the color of one
tiny cell in the entire plant, that would probably not be a patentable invention.
You might be wondering how a patent can be granted over a living thing, like a plant. As mentioned
earlier in this section, in the United States living things are patentable. Living things became the
legal subjects of patents when, in 1980, the U.S. Supreme Court held that a bacterium designed by its
inventor to break down crude oil components was the legitimate object of a patent. [1] Indeed, as the

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Supreme Court noted in that case, congressional intent regarding the U.S. Patent Act was that
“anything under the sun that is made by man” is patentable. Since then, we have seen many living
organisms patented. For example, the OncoMouse was among the first patented mammals. The
OncoMouse is useful in medical research for its extreme propensity to develop cancer.
The patentability of life forms is a contentious issue. While the usefulness of such inventions is
proven (or else they would not be patentable inventions), ethical questions abound. For example,
when considering the OncoMouse, legitimate questions include whether intentionally creating life to
experience pain, sickness, and medical procedures is ethical. Moreover, many people find the idea of
“creating” life in a laboratory morally repugnant, as well as owning the products of that creation.
Many fear a slippery slope: Today a mouse; tomorrow, a human? Of course, humans are not
patentable subjects today, but the slippery slope argument often arises in such discussions. With
respect to genetically modified agricultural products, many people question the wisdom of placing
control and ownership over items essential to life—like staple crop seeds—into the hands of few,
especially when money must be traded for the rights to use those products. This issue is particularly
complicated given the fact that genetically modified agricultural products may cross-pollinate with
nongenetically modified agricultural products, resulting in progeny that contains the genes or cells
that are patented. When this happens, courts routinely recognize that the patentee has the rights to
those progeny by virtue of their patent ownership and that the unwitting possessor of those progeny
has, in fact, committed patent infringement by being in possession of those patented products
without permission.
Another controversial issue surrounds the patents granted to pharmaceutical drugs. Large drug
companies rely on patent law to protect their massive investment in research and development into
new drugs, the vast majority of which never make it to market. For the few drugs that eventually find
government approval and commercial success, manufacturers seek to extract the highest possible
price during the period of patent monopoly. For example, the introduction of antiretroviral drugs has
greatly extended the lives of HIV/AIDS patients, but the drugs cost between $10,000 and $12,000
per year in the United States. In many developing countries in Asia and Africa, the drugs would make
a dramatic impact on human life. Some governments have therefore declared national health
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emergencies, a procedure under international treaties that permits those governments to force drug
companies to license the formula to generic drugmakers (this is called compulsory licensing). Cipla, a
generic drug manufacturer in India, manufactures the same antiretrovirals for about $350 a year, or
less than one dollar a day.
The U.S. Patent and Trademark Office (USPTO) grants property rights to patentees within the
United States, its territories and possessions. Patent law is complicated, and attorneys who wish
to prosecute patents (file and interact with the USPTO) must have an engineering or science
background and pass a separate patent bar exam. When an application is filed, the USPTO assigns a
patent examiner to decide whether the patent application should be approved. While the application
is pending, the applicant is permitted to use the term “patent pending” in marketing the product to
warn others that a patent claim has been filed. Even after a patent has been issued by the USPTO,
however, the patent is merely “presumed” to be valid. If someone challenges a patent in a lawsuit,
final validity rests with the U.S. federal courts. For decades, the U.S. Supreme Court routinely
ignored patent appeals, allowing lower courts to develop patent law. In recent years, under Chief
Justice John Roberts, the Supreme Court has dramatically increased its acceptance of patent
disputes, perhaps as a sign that the Court believes too many patents have been issued.
In the last decade there has been an over 400 percent increase in the number of patents filed,
resulting in a multiyear delay in processing applications. An increase in the number
of business method patents contributed to this dramatic increase in patent applications. A business
method patent seeks to monopolize a new way of conducting a business process. Figure 9.5 "Patent
Filing for One-Click Web Ordering", for example, describes a method of e-commerce by which a
customer can order an item and pay for it immediately with just one click of a mouse button.
This one-click patent was granted to Amazon.com, much to the chagrin of other online retailers such
as Barnes & Noble, who were prohibited from using a similar checkout mechanism. Amazon licensed
the patent to Apple so that it could feature one-click on its Web site.
Figure 9.5 Patent Filing for One-Click Web Ordering

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Source: Courtesy of Free Software Magazine,
http://www.freesoftwaremagazine.com/files/www.freesoftwaremagazine.com/nodes/1250/1A.jp
g.
Outside the United States, a patent granted by the USPTO does not protect the inventor’s interest in
that property. Other steps must be taken by the inventor to protect those rights internationally. If
someone possesses the patented object without permission from the patentee, then the possessor can
be said to have infringed on the patent owner’s rights. Patent infringement is an actionable claim. A
successful action may result in an injunction, treble damages, costs, and attorney’s fees. One defense
to a patent infringement claim is to challenge the validity of the patent.

Hyperlink: Wal-Mart Tries to Produce Shoes
Nike recently sued Wal-Mart stores for selling a shoe that Nike claims infringes on its patents. The shoe
sold by Wal-Mart uses technology similar to Nike’s Shox technology. Look at Nike’s complaint here:
http://online.wsj.com/public/resources/documents/nikepatentsuit.pdf
Do you think that Nike has a good claim? What should Wal-Mart’s defense be?

In recent years several companies that do nothing but sue other companies for patent infringement
have emerged. These patent holding companies, sometimes called patent trolls by critics, specialize in
purchasing patents from companies that are no longer interested in owning them and then finding
potential infringers. One such company, NTP, sued Research in Motion (RIM), the maker of the
BlackBerry device, for a key technology used to deliver the BlackBerry’s push e-mail feature. Faced
with a potential shutdown of the service, RIM decided to settle the case for more than six hundred
million dollars.

EXERCISES
1.

Do you think that life forms should be the subjects of patents? Does your answer change depending on
whether we are talking about bacteria, plants, animals, or humans? What are the most persuasive
arguments in favor of, and against, allowing the patentability of higher life forms?

2.

How do patent rights encourage innovation?

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3.

If patents are protected monopolies, why do you think patent applications are a matter of public record?

4.

Do you agree with compulsory licensing of lifesaving medications in response to national health
emergencies? What are the consequences of compulsory licensing to the patentee? To the people in need
of these medications in wealthy countries? To the people in need of these medications in poor countries?

[1] Diamond v. Chakrabarty, 447 U.S. 303 (1980).

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9.3 Trade Secrets
LEARNING OBJECTIVES
1.

Understand what a trade secret is.

2.

Learn the differences between trade secret and patent protection.

3.

Learn how trade secrets may be lawfully discovered.

4.

Explore the concept of misappropriation and the legal consequences.

Figure 9.6 Dr. Pepper Bottle

Source: http://en.wikipedia.org/wiki/File:Dr_Pepper_bottle.JPG.

Imagine that you are in an antique store and find a nineteenth-century ledger book for sale,
originally from the W. B. Morrison & Co. Old Corner Drug Store in Waco, Texas. Among the recipes
for hair restorers and cough syrups, something in particular catches your eye—a recipe entitled D
Peppers Pepsin Bitters. What if you also knew that Dr. Pepper was first created and served in that

very drugstore? What if you offered to pay two hundred dollars for the old ledger book, even though
if it did contain the recipe for Dr. Pepper, it would be worth far more? After all, according to the
company that manufactures Dr. Pepper, only three people know the recipe to that very closely
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guarded trade secret. Something very similar to this happened to Bill Waters. He found the ledger
book in an antique store, and he paid two hundred dollars for it. However, at the time, he did not
know that the book might date back to the exact time and place from which the popular soda was
created. In fact, he did not even notice the recipe until later, and it took him several more days to
recognize the possibility that it might be an early version of Dr. Pepper.
Unlike patents, a trade secret can last forever. That is, it can last forever if the owner of the secret can,
well, keep it a secret. If someone uses lawful means to uncover the secret, then the secret is no longer
protected by the secret’s owners. Does this include reverse engineering? Yes. Reverse engineering is
an absolutely legal means of discovering a trade secret. What about ferreting out secrets from an
employer’s safekeeping, while employed and under a binding confidentiality agreement? No. That is
an actionable claim for misappropriation, and the secret’s owners can pursue damages.
Trade secrets are unlike patents in another important way. With a patent, the inventor must
specifically disclose the details of the invention when applying for a patent. This means that the
inventor has not protected the secret of the invention. However, in exchange for this disclosure, a
patent owner has a legal monopoly over the property for a specified period of time. So even if others
discover the secret of the invention (not a difficult task since patent applications are public record),
they are prohibited from making, using, or selling it without the patentee’s permission. After the
patent expires, then the patentee no longer has a property right to exclude others.
So what is a trade secret? It is, in short, secret information. This information may include a process,
formula, pattern, program, device, method, technique, or compilation. For many companies, lists of
suppliers, costs, margins, and customers are all trade secrets. Soft drink recipes, KFC’s eleven spices,
the donut mix sent to Krispy Kreme franchisees, the Big Mac’s special sauce, and even the
combination of wood that is used in the burning process to make Budweiser beer are all trade
secrets. Additionally, the information derives actual or potential economic value from being a secret
that is not readily discoverable by others, and the information is the subject of efforts to keep it a
secret. While most states have adopted the Uniform Trade Secrets Act (UTSA), not all have, so the

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definition of trade secret can vary by jurisdiction. Unlike patents, trademarks, and copyrights, there
is no federal law protecting trade secrets.
A claim for misappropriation may be brought when a trade secret has been wrongfully obtained, such
as through corporate espionage or bribery. Generally, according to the UTSA, misappropriation
occurs if the secret was acquired by improper means, or if the secret was disclosed or used without
permission from the secret’s owner. Damages may include actual loss and unjust enrichment not
captured by actual loss. Additionally, in cases of willful or malicious misappropriation, double
damages may be awarded, as well as attorney’s fees.
So what if you are never lucky enough to discover a multimillion-dollar secret recipe hidden away in
an antique shop? As long as the recipe is not patented, you can try to reverse engineer it. If you
succeed, you can use it immediately. However, if you are working for an employer in a creative
capacity, working with others to develop the secret, and if you have agreed not to use trade secrets,
then the right to the trade secret will belong to your employer, at least in most jurisdictions. Ask
Peter Taborsky, an undergraduate student at South Florida University in 1988. According to
Taborsky, while working in the university’s chemical engineering lab, he began conducting
experiments on his own. He discovered a highly effective method for treating sewage. The university
demanded that he hand over his notebooks that contained the secrets of this invention. Taborsky
refused and filed for a patent for his invention, which he received. However, the university pressed
criminal charges for stealing trade secrets. Taborsky lost his case and found himself in a maximumsecurity facility working on a chain gang.
So does Bill Waters need to worry about Dr. Pepper’s owners suing him for misappropriation or
pressing criminal charges for stealing trade secrets? No. He lawfully obtained the ledger book by
purchasing it in the open market. Additionally, according to a company spokesman, the ingredient
list under D Peppers Pepsin Bitters is most likely an old remedy for a stomachache rather than any
version of the recipe for Dr. Pepper. Even if Mr. Waters had accidentally stumbled on the exact Dr.
Pepper recipe, he would have a good argument that the company did not take steps to keep the secret
a secret. If it had, he could argue, the company never would have allowed the recipe out of its sight.

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KEY TAKEAWAYS
Trade secrets last forever if the owner of the secret keeps the secret. However, if someone else discovers
the secret through a lawful method, then the owner of the secret has no right to exclude others from
using the secret. Unlawfully obtaining a trade secret is called misappropriation, which is an actionable
claim. The Uniform Trade Secret Act has been adopted by most (but not all) states, so different
jurisdictions have different rules of law concerning trade secrets.

EXERCISES
1.

If you owned a trade secret, what methods would you employ to protect it?

2.

If you invented something that was patentable or the subject of a trade secret, what types of issues would
you consider when deciding whether or not to apply for a patent?

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9.4 Trademarks
LEARNING OBJECTIVES
1.

Understand what a trademark is.

2.

Learn what can and cannot be trademarked.

3.

Explore how companies protect trademarks from dilution and genericide.

4.

Examine how the Internet poses new challenges to trademark owners.

5.

Explore the tension between trademark protection and free speech.

Figure 9.7McDonald’s, One of the Most Recognized Trademarks in the World

Source: http://commons.wikimedia.org/wiki/File:RiemArcaden.McD.JPG.

Look at Figure 9.7 "McDonald’s, One of the Most Recognized Trademarks in the World". It’s
obviously a McDonald’s restaurant, but can you tell where this restaurant is? Is it in a mall or
airport? Is it in Trenton, Toronto, or Tokyo (or, as it turns out, Messestadt Riem in Germany)?
Without additional information, it may be impossible to tell. And yet, no matter where you are in the
world, if you enter this McDonald’s restaurant, there are certain standards that you expect. You
would expect to find a Big Mac on the menu, perhaps Chicken McNuggets and french fries too. You
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would expect those menu items to taste the same as they do in your local McDonald’s. Perhaps you’d
expect a certain level of service from the employees, a certain value proposition for your money, a
certain look from the uniform and fixtures, or perhaps a clean restroom. If you walked into this
McDonald’s restaurant and found out that it was in fact not McDonald’s, you might be confused. The
ultimate goal of trademark law is to prevent this consumer confusion. To prevent any other
restaurant from using the name McDonald’s, or from using a logo that looks like a stylized “M,”
McDonald’s can trademark both its name and logo (and a lot of other elements of its brand as well).
In this section, we’ll examine how trademark law accomplishes this goal.
A trademark is any kind of name, logo, motto, device, sound, color, or look that identifies the origin
of a particular good or service. Something begins to look like a trademark when a
consumer identifies it with a particular origin. For example, someone buying a Diet Coke knows that
he or she is getting a carbonated beverage from the Coca-Cola Company. If he or she bought a Diet
Cola, on the other hand, there’s no association in the mind with any particular company, so it could
be from Coca-Cola, Pepsi, or any number of other companies. The key is that consumer identification
with a specific origin. If a consumer thinks of a class of goods rather than one specific origin, then it’s
not a trademark. So, for example, when a consumer hears “aspirin,” he or she thinks of a class of
goods with no particular origin because aspirin is not a trademark. But if a consumer hears “Bayer,”
he or she thinks of a specific aspirin from a specific source, making “Bayer” a trademark.

Hyperlink
http://www.uspto.gov/go/kids/kidsound.html
Can sounds be trademarked? Yes! Some sounds are instantly recognizable, such as AOL’s “You’ve Got
Mail” and Twentieth Century Fox’s movie opening scene. Click the link to explore other trademarked
sounds.

A federal law, the Lanham Act, protects trademarks. Unlike copyrights and patents, trademarks can
last forever and are not subject to the Constitution’s “limited time” restriction. Since the objective of
trademark law is to prevent consumer confusion, the public good is best served by allowing

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companies to maintain their trademarks as long as consumers associate a trademark with a specific
origin. The moment they no longer make that association, however, the trademark ceases to exist.
If you are considering marketing as a career, you will become intimately familiar with the concepts
related to branding and the value of branding. At its core, marketing involves the science of relating
to consumers, telling them an authentic story about your product and service, and satisfying their
wants and needs. Having a brand is essential to carrying out this objective, and it can lead to startling
profits. The Apple and iPhone brands, for example, are very strong and yield billions of dollars in
profits for Apple. Luxury brands are particularly aware of this phenomenon, as often their brand
alone can justify pricing far above a similar good. Gucci, such as this store in Hong Kong (Figure 9.8
"Gucci Store in Hong Kong"), trades on the value of its brand to command premium prices (and
margins) in the marketplace. Brands such as Rolex, Hermes, Rolls-Royce, and Bentley have similar
business models. These brands are all trademarks—indeed, all brands are either registered
trademarks or are trademark-able because they share the common feature of consumer
identification. Be careful, though. “Trademark” and “brand” are not interchangeable terms because
not all trademarks are brands.
Figure 9.8 Gucci Store in Hong Kong

Trademark law is especially important for luxury brands such as Gucci.

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Source: Photo courtesy of Maizeam,
http://commons.wikimedia.org/wiki/File:HK_TST_Canton_Road_GUCCI_Shop.JPG.

So what can be a trademark? Obviously, words can be trademarked. When it comes to trademarks,
distinctiveness is good. Therefore, an invented word is the best type of trademark. In 1997, for
example, when Stanford grad students Larry Page and Sergey Brin were brainstorming names for
their new Internet search engine, they settled on the word “Google,” a play on “googol,” which means
1 followed by 100 zeroes. They felt the name reflected their goal to organize the staggering amount of
information available on the Internet. On the other hand, regular words can also become
trademarks, as long as consumers identify them with a particular source. Amazon, for example, is the
name of the world’s longest river, but it’s also the name of an online retailer. Since consumers now
identify Amazon.com as an online retailer, the name can be trademarked. Another example is the
phrase “You’re Fired” when used in a television program. The phrase was made popular by
billionaire Donald Trump and has such lasting recognition now that it’s unlikely any other television
show could use that phrase as a central part of its theme.
Consider what would happen if you tried to trademark your name. If your name happens to be Sam
Smith, you’d probably have a pretty hard time getting a trademark for your name. If, however, you
called your business Sam Smith anyway, and started growing your business so that eventually, over
time, consumers began to identify “Sam Smith” as your business, then your name has acquired
secondary meaning and can be trademarked. Thus, Sam Adams is a trademark for a beer, Ben &
Jerry’s is a trademark for ice cream, and Ford is a trademark for a motor vehicle.

Hyperlink:
http://www.npr.org/templates/story/story.php?storyId=19227066
Can a sportscaster trademark the phrase “Are you ready to rumble”? Can Paris Hilton trademark the
phrase “That’s hot”? As long as the public associates these phrases with a distinctive origin, the answer is
yes. Listen to this National Public Radio broadcast for more examples.

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Note that when you get a trademark, it’s typically granted for a specific category of goods. The same
name can sometimes be used for multiple categories of goods. The name Delta, for example, is a
trademark for both an airline and a brand of faucets. Since there is little chance that a consumer will
be confused by an airline or faucet brand, trademark law allows these dual registrations. On the
other hand, some brands are so strong that they would probably stop registration even for a
completely different category of goods. McDonald’s is a good example of this. The McDonald’s
trademark is one of the strongest in the world, meaning that it is instantly recognizable. In 1988, for
example, hotel chain Quality Inns decided to launch a new line of budget motels called “McSleep.”
McDonald’s sued, claiming trademark infringement. McDonald’s claimed that consumers might be
confused and believe that McDonald’s owned the hotel chain. A federal judge agreed and ordered
Quality Inns to change the name of the chain, which it did, to Sleep Inns.
Trademarks go beyond simply a company’s name or its logo. A color can be trademarked if it’s strong
enough to create consumer identification. Pink, for example, is trademarked when used for building
insulation by Owens Corning. All other insulation manufacturers must use different colors. Sounds
can be trademarked too, such as MGM Studios’ “lion’s roar.” Even a certain “look” can be
trademarked if a consumer identifies it with a certain origin. Thus, the distinctive colors, materials,
textures, and signage of a Starbucks or T.G.I. Friday’s are considered trade dress and cannot be
copied. A bottle shape can be considered trade dress, too, such as the shape of a nail polish bottle
(Figure 9.9 "OPI’s Nail Polish Bottle"). OPI, a nail polish manufacturer, has registered this bottle
shape with the U.S. Patent and Trademark Office (USPTO) and is suing other manufacturers that use
a similarly designed bottle. Interestingly, courts have been reluctant to grant certain smells
trademark protection, even though it can be argued that certain fragrances such as Old Spice or CK
One are distinctive. Imagine the chaos that would ensue if one company claimed trademark
protection for vanilla or strawberry scents—consumers would ultimately be robbed of choice if that
were to happen.
A trademark is not limited to a name or logo used to sell goods. If a company provides a service (as
opposed to selling goods), it too can receive trademark protection. In this case it’s called
a service mark. Facebook, for example, is a service mark. A trademark can also be used to
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demonstrate certification meeting certain standards, such as the Good Housekeeping Seal of
Approval. If you study operations management, you’ll learn about the International Organization for
Standardization (ISO) and its various standards for quality management (ISO 9000) or
environmental quality (ISO 14000). The Forest Stewardship Council (FSC) allows its logo to be used
on paper products that come from sustainable forests, while certain foods can be labeled “Organic”
or “Fair Trade” if they meet certain standards as established by governmental or nongovernmental
organizations. Each of these marks is an example of a certification mark. Finally, a mark can
represent membership in an organization, such as the National Football League, Girl Scouts of
America, Chartered Financial Analyst, or Realtor (Figure 9.10 "“Realtor” Certification Mark"). Each
of these is known as a collective mark. The rules that apply to trademarks apply equally to service
marks, collective marks, and certification marks.
Figure 9.9 OPI’s Nail Polish Bottle

A bottle’s shape can be trademarked if it is distinctive enough.

Source: Photo courtesy Jessica Ta,http://www.flickr.com/photos/blogggles/4288368487.

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If a color or sound can be trademarked, is there anything that cannot be trademarked? The Lanham
Act excludes a few categories from trademark registration, mainly for public policy purposes.
Obviously, trademarks will not be granted if they are similar or identical to a trademark already
granted. If you’re starting a new company, it’s a good idea to make sure that not only is a domain
name available for your company’s name, but that the name isn’t already trademarked by someone
else. Trademarks also cannot contain the U.S. flag, any government symbol (such as the White
House or Capitol buildings), or anything immoral. Trademarks cannot be merely descriptive. (Thus
every restaurant is allowed to offer a “Kid’s Meal,” but only McDonald’s can offer a “Happy Meal.”)
Figure 9.10 “Realtor” Certification Mark

Source:http://upload.wikimedia.org/wikipedia/en/1/16/Realtor_logo.jpg.

Whether or not a region can be trademarked (a geographic indicator, or GI) is the subject of some
controversy, especially with our trading partners. “Maine Lobster,” “Napa Valley Wine,” or “Florida
Orange Juice,” for example, may indicate to some consumers the origin of a particular lobster or
bottle of wine or orange juice, and thus may be of commercial value to distinguish the product from
competitors from other regions. For the time being, these foods must come from Maine, California,
or Florida to avoid liability under consumer protection statutes for fraud (lying) about their origin.

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What happens, though, if consumers lose the association with the region? For years, sparkling wine
manufacturers in Champagne, France, have fought to prevent this from happening by requiring that
only sparkling wine made in the Champagne region be called “champagne.” Now, food producers
(especially in the European Union) are seeking similar protection under international trademark law
for Feta, Parmesan, Gorgonzola, Asiago, and hundreds of other names.
A trademark is valid as long as consumers believe that the mark is associated with a specific producer
or origin. If the mark refers to a class of goods instead, then the trademark can no longer exist. This
process is called genericide. Many words today once started as trademarks: furnace, aspirin,
escalator, thermos, asphalt, zipper, softsoap, cellophane, lite beer, Q-tip, and yo-yo are all examples
of trademarks that are now generic and have therefore lost legal protection. To prevent genericide
from occurring, trademark owners must take active steps, often costing millions of dollars, to
educate consumers on the importance of using their trademarks properly and to prosecute
infringers. For example, when you hear the word “Kleenex,” do you think of a brand of tissue owned
by Kimberly-Clark, or do you think of tissues generally? Does “Rollerblade” refer to a brand of in-line
skates, or to all in-line skates? In Southern states, does “Coke” refer to a Coca-Cola, or to soft drinks
generally? When you run a “Xerox” photocopy, is it on a Xerox photocopier or some other machine?
These trademarks, all currently active and worth billions of dollars to their owners, are in danger of
becoming generic in the United States. If that happens, the companies will lose control of the marks
and the public (and competitors) will be free to use those words just as they use “aspirin” and “yo-yo”
today. Xerox has taken many steps to educate the public about its trademark, including running
print advertisements in business periodicals. In one of these ads, the text says, “When you use
‘Xerox’ the way you use ‘aspirin,’ we get a headache.”
Trademark infringement occurs when someone uses someone else’s mark, either completely or to a
substantial degree, when marketing goods or services, without the permission of the mark’s owner.
Obviously, making your own pair of jeans and slapping a “Levi’s” label on it, or making your own
handbag and sewing a “Coach” label on it, constitutes trademark infringement. When Apple first
released the iPhone, to its embarrassment it found out that “iPhone” was already a registered
trademark belonging to Cisco, another company, for a phone used for placing phone calls over the
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Internet. To avoid trademark infringement liability, Apple had to pay Cisco an undisclosed sum to
purchase the trademark. Ford found itself in a similar situation when it released a supercar called the
“Ford GT.” Ford made a similar racing car in the 1960s called the “GT 40” but lost control of the
trademark after production ceased. Unable to reach agreement with the current trademark owners,
Ford settled for releasing the new car as simply the “GT.”
The law also permits trademark owners to sue infringers who use their marks to a substantial degree.
For example, when Samsung announced its new smart phone, the Black Jack, the makers of the
BlackBerry device sued for trademark infringement. When a software company released a product to
eliminate unwanted e-mails called “Spam Arrest,” it was sued by Hormel, makers of Spam canned
luncheon meat. When a small coffee shop in Syracuse, New York, opened as “Federal Espresso,” the
shipping company FedEx filed a trademark infringement claim.
Even if a trademark owner doesn’t believe a similar use of its mark would lead to any consumer
confusion, it can protect its trademark through a concept called dilution. Such was the case when an
adult novelty store in Kentucky opened as “Victor’s Secret” (the owner’s name was Victor). The
trademark owners of “Victoria’s Secret” filed a dilution suit in response. Traditionally, trademarks
are intended to prevent consumer confusion. Dilution permits a trademark owner to stop usage of a
similar word or phrase even if consumers aren’t confused. Under dilution concepts, the trademark
owner only needs to show that its mark will be diluted or tarnished in some way.
Dilution is controversial in trademark law. When Congress passed the first dilution law in 1995, the
Federal Trademark Dilution Act, many felt that Congress had gone too far in protecting trademarks,
to the detriment of the public and small businesses. For one thing, the Act only protected “famous”
trademarks. It also failed to clearly define “dilution,” and what was required for trademark owners to
win a lawsuit. Finally, when the Victor’s Secret case reached the Supreme Court, [1] the Supreme
Court issued some clarification. The Court ruled that to win a dilution case, a trademark owner had
to show that it had suffered actual economic damage from the dilution, not merely the “likelihood” of
dilution. This is a high standard for trademark owners to meet, because it means that they (1) have to
wait for the diluting mark to hit the market and be used in commerce and (2) must be able to prove

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that they suffered economic damage from the diluting mark. Unhappy with the Court’s decision,
corporations lobbied Congress to pass the Trademark Revision Dilution Act of 2006, which
overturns the Moseley case. Now, trademark owners of famous trademarks only need to show a
likelihood of dilution before filing a dilution lawsuit.
Companies or persons accused of trademark infringement have several defenses to rely on. The most
obvious is arguing that no infringement has occurred because the two marks are sufficiently different
that consumers won’t be misled. For example, in 2002 Jeep sued General Motors for infringing on
what Jeep called its trademark grill. GM’s Hummer division released the H2 that year, with a similar
seven-bar grill. A district court held that there was no trademark infringement because the grills
were too dissimilar to cause consumer confusion. Look at the Hummer H2 grill (Figure 9.11
"Hummer H2 Grill") and the Jeep grill (Figure 9.12 "Jeep Grill"). Do you think there is a chance of
consumer confusion?
Figure 9.11 Hummer H2 Grill

Source: Photo courtesy of Ramchandran Maharajapuram,http://www.flickr.com/photos/me_ram/3157719487.

Figure 9.12 Jeep Grill

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Source: Photo courtesy of 3obryans,http://www.flickr.com/photos/3obryans/1017233.

Another defense is fair use. The Lanham Act prohibits the use of someone else’s trademark when
selling goods. It’s not uncommon to see various items such as laptop computers, telephones, soda
cans, or other foods with their labels covered by stickers or blurred out on television shows and
movies because of the trademark law. On the other hand, what if a company wanted to mention a
competitor’s product to draw a comparison with its own product? This is called comparative
advertising, and it’s considered fair use. Honda, therefore, is free to claim that its “Honda Accord is
better than the Ford Taurus” in its advertising even though Ford and Taurus are both trademarks
owned by Ford Motor Company.
The First Amendment also recognizes the use of parody, comedy, or satire as fair use. Comedy skits
on television that make fun of, or use, company logos are an example of this fair use. Canadian
nonprofit Adbusters, for example, claims to be an organization seeking to advance “a new social
activist movement in the information age.” Part of its work involves making fun of corporations and
consumer spending, sponsoring “Buy Nothing Day” as an antidote to the annual holiday spending
season. Making fun of corporations also involves spoofing their commercial messages, as the ad
in Figure 9.13 "A Parody of the Well-Known Absolut Vodka Print Ads" illustrates. Although the ad

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undoubtedly infringes on a trademark, it is considered fair use because of the social commentary and
satire behind its message.
Figure 9.13 A Parody of the Well-Known Absolut Vodka Print Ads

Source: Photo courtesy of Adbusters,https://www.adbusters.org/gallery/spoofads/alcohol/absolutaa.

An interesting aspect of trademark infringement arises through the use of domain names on the
Internet. The practice of cybersquatting (or domain name squatting)arises when a company registers a
domain name containing a famous trademark in hopes of selling that trademark to its rightful owner
for a large profit. The practice arose in the early days of the Internet, when domain name registration
took place on a first-come, first-served basis. There is nothing wrong with registering a domain name
for a generic word such as “shoes.com,” but incorporating a registered trademark into the domain
name, for purposes of selling it later, is considered cybersquatting. This practice was made illegal in
1999 with the passage of the Anticybersquatting Consumer Protection Act. It is only illegal, however, if
the domain name is registered to make a profit through later sale. It is not illegal if someone registers
the domain name in “good faith.” A good example is the domain name registered by Canadian
teenager Mike Rowe in 2003. An avid computer user, he registered “mikerowesoft.com” as a domain
name. Software giant Microsoft launched legal proceedings against him, claiming violation of the

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cybersquatting statute and trademark infringement. Rowe’s defense was that the Web site merely
reflected his name and his interest in computer programming and software and was being used for
that purpose. After heavy negative publicity, Rowe and Microsoft settled the case with Microsoft
taking control of the domain. Another example surrounds the Nissan.com domain. Uzi Nissan, a
computer storeowner, had owned the domain for years before Nissan Motors attempted to gain
ownership of the domain. Since the domain was registered in good faith, no cybersquatting has
occurred. The First Amendment is also a defense to cybersquatting. Web sites run by consumer
activists who seek to criticize or parody companies, such as “fordreallysucks.com” or
“fordlemon.com” or “peopleofwalmart.com” are not cybersquatting in spite of their use of
trademarks.

KEY TAKEAWAYS
Trademarks are anything that identifies the unique origin or goods or services. Trademarks are granted
under federal law by the U.S Patent and Trademark Office and can last forever. When a trademark is no
longer associated with a specific origin, it becomes generic and loses legal protection. Trademark owners
can take legal action against infringement and dilution of their marks. Fair use of trademarks includes
comparative advertising and parody. Trademark protection extends to the Internet, where mark owners
can prevent bad faith domain name squatting.

EXERCISES
1.

Go to the U.S. Patent and Trademark Office at http://www.uspto.gov. Search the trademark database for
the phrase “Let’s Roll.” Do you think that companies should be able to trademark phrases? Can you find
other examples?

2.

“Netbook” is an example of a term the USPTO recently rejected as being generic, even though it was at
one point a registered trademark. Can you think of other recent examples of genericized trademarks?

3.

Do you think that the rules of cybersquatting should extend beyond Internet domain names to other uses
such as Facebook or Twitter account names? Why or why not?

[1] Moseley v. Secret Catalogue, 537 U.S. 418 (2003)[0].[0]

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9.5 Copyright
LEARNING OBJECTIVES
1.

Understand what a copyright is.

2.

Explore the requirements for copyright protection.

3.

Learn how copyright owners can license their works for use by others.

4.

Understand copyright infringement and the fair use defense.

5.

Understand the Digital Millennium Copyright Act.

The final form of intellectual property (IP) protection is copyright. Like patents and trademarks,
federal law protects copyright. Whereas trade secrets protect confidential company information,
patents protect processes and inventions, and trademarks protect brands and identity, copyright is
designed to protect creativity. It is one of the two types of IP specifically mentioned in the Copyright
Clause of the U.S. Constitution. Of course, back then the only works copyrighted would have been
songs, art, or works in writing. Today, copyright extends to any form of creative expression,
including digital forms.
If asked to write down four numbers from one to fifty in random sequence, most of us would write
four different numbers. The process of picking those numbers requires creativity, so the sequence of
the four numbers you write down is copyrighted. Note that the numbers themselves aren’t
copyrighted, of course. It’s just the unique sequence that you choose, the expression of your
creativity, that is copyrighted. Since computer software is a compilation of binary code expressed in 1
and 0, all software is copyrighted. On the other hand, sequential page numbers or listings in a phone
directory show no creativity and are therefore not copyrightable. Similarly, if a group of students
were given a camera and each was asked to photograph the same subject, each student would come
up with a different photograph. Each student would frame the subject differently, and that is an
expression of creativity. Finally, consider the notes that you take in class for this course. A group of
students could read the same textbook and listen to the same lecture, and come up with different sets
of notes. Each work is unique and demonstrates creativity, so each is copyrighted.

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A work must be original (not copied) and fixed in a durable medium to be copyrighted. Therefore, if
you sing an original song in the shower in the morning and your roommate hears it and records it,
the copyright to the song belongs to your roommate, not you. This requirement exists because it
would be impossible to prove, without a durable medium, who is the original author of a work. Ideas,
by themselves, cannot be copyrighted. If you had an idea for a novel about a boy wizard who goes to a
boarding school with his friends and battles evil monsters while growing up, that would not be
copyrighted. If you wrote a novel featuring such a story line, however, you would run the risk of
violating the copyrighted Harry Potter works. A similar dispute arose in 2006 after the blockbuster
success of Dan Brown’s novel, “The Da Vinci Code.” Two authors, Michael Baigent and Richard
Leigh, claimed the novel infringed on their copyrighted book, “Holy Blood Holy Grail.” In their book,
the authors theorized that Jesus survived his crucifixion, married Mary Magdalene, and had
children. The British judge hearing the case dismissed the claims, holding that the theory was “too
general or too low a level of abstraction to be capable of protection by copyright law.” [1]
A copyrighted work is automatically copyrighted upon its creation. Unlike patents and trademarks,
which must go through an expensive and rigorous application and approval process with the
government, authors do not need to send their work to the government for approval. Although it’s a
good idea to write “Copyright” or place a © symbol on the work, it’s not legally required.
Copyright protection lasts for seventy years after the death of the author. If there is more than one
author, the copyright expires seventy years after the death of the last surviving author. If a company,
such as a publisher, owns a copyrighted work, the copyright expires ninety-five years from the date of
publication, or one hundred twenty years from the date of creation, whichever comes first. After
copyright expires, the work falls into the public domain. The works of Shakespeare, Bach, and
Beethoven, for example, are in the public domain. They may be freely recorded, performed, or
modified without permission. If you were to record yourself reciting Shakespeare’s “To be or not to
be” speech from Hamlet, however, that recording is copyrighted even though the underlying work
(Hamlet) is in the public domain as a new creative expression. Classical music recordings are
similarly copyrighted under the same concept.

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The owner of a copyright may allow members of the public to view or use a copyrighted work, for free
or for a fee. This use is contained in a copyright license, sometimes called
an End User License Agreement (EULA) for software. A license is essentially permission from the
copyright holder to violate the copyright, within the terms of the license. When you purchase a
physical book or CD or DVD, for example, the copyright license allows you to view the movie, listen
to the music, or read the book, in private. The license does not allow you to show the movie in class
to a broad audience, or to record the music into your computer and then modify it, or to run
photocopies of the book to give away or sell. These rights of reproduction, exhibition, and sale are
not part of the license you received and are reserved by the copyright holder. Of course, you may
purchase those rights if you wish, but they will probably cost a lot more than the price of the book or
disc. Some organizations advocate the creation of a common license that authors can easily refer to if
they wish to distribute their work easily. The General Public License (GPL) for software
and Creative Commons (CC) license for text and media are well-known examples. One right that you
do have, however, in spite of any language in the license, is the right of first sale. Essentially this
means that as the owner of the physical work, you can do with it as you please, including resell the
original work.
Licenses in the digital arena can be very restrictive if you purchase digital media. Copyright holders
may use schemes such as Digital Rights Management (DRM) to limit your ownership rights in digital
media. DRM limits the number of copies and devices a digital file can be transferred to, and in some
cases even permits the copyright holder to delete the purchased work. Amazon.com recently deleted
digital George Orwell books from owners who had purchased the works for their Kindle reading
devices (Figure 9.14 "Amazon’s Kindle E-reader"), without any prior notification. This would have
been impossible if the books were in a physical form. Although Amazon.com was within its rights to
do so, the public outcry that followed made Amazon.com promise to not engage in such behavior
again in the future.
Figure 9.14 Amazon’s Kindle E-reader

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Source: Photo courtesy of Larry Page,http://www.flickr.com/photos/igboo/3879913438.

Copyright infringement occurs when someone uses a copyrighted work without permission or
violates the terms of a copyright license. For example, if a classmate takes your class notes without
your permission and makes photocopies of them, the classmate has infringed on your copyright. It’s
also copyright infringement if you take someone else’s work and simply repackage it as your own.
This happened recently to Harry Potter author J. K. Rowling. Her books created a huge fan
following, and many fans gather online to discuss the Potter series. One such site is the Harry Potter
Lexicon, run by Steve Vander Ark, a former school librarian. The site serves as an encyclopedia to the
Harry Potter world, with reference notes on characters, places, spells, and other details. When
Vander Ark announced plans to publish the contents of the Lexicon in a book format, J. K. Rowling
sued, claiming copyright infringement. The judge agreed and ordered the Lexicon rewritten so that it
uses less material from the copyrighted work.

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Copyright infringement also occurs when you assist someone in violating a copyright, or create a
device that assists in violating a copyright. Thus, Web sites such as the former Napster and Grokster,
which existed solely for the purpose of facilitating illegal downloading of music, were held to be
infringers even though the Web sites themselves didn’t violate any copyrights. Similarly, if you make
digital media available for download for others, you are not engaged in illegal downloading but still
liable for contributory copyright infringement. The recording industry, which is battling for its very
survival in a new file-sharing world, pursues these cases aggressively. In June 2009, a court in
Minnesota ordered Jammie Thomas to pay $80,000 per song for making twenty-four songs
available for download, for a total fine of $1.92 million. In September 2009, the industry won a
$675,000 verdict against a college student in Massachusetts for file sharing thirty songs. Devices that
can be used for purposes other than violating copyrights (such as photocopiers, video/DVD burners,
and peer-to-peer networks used for sharing research) are not considered infringing devices.
Copyright law makes a distinction between “fair” use and “infringing” use of a copyrighted work. A
fair use includes copying a work for purposes of commentary, criticism, news reporting, teaching, or
research. Just because a work is used in a news article or in a classroom, however, does not make its
use fair. The law provides four factors that courts must consider in determining whether or not the
use is fair. First, the court must consider the purpose and character of the use. Is it for educational
purpose, or for making a profit? Second, the court must consider the nature of the copyrighted work.
Is the work part of the “core” of the intended protection that copyright provides? Third, the court
must consider the amount and substantiality of the portion used. This is an important factor—it’s
one thing for your professor to copy an excerpt from a journal or book for distribution in class
(probably fair) and another to copy the entire journal or book (probably infringing). Finally, the
court must consider the effect of the use on the potential market for the copyrighted work. If the use
is considered fair, what would it do to the market for the copyrighted work? For example, if copying
an entire textbook is fair, it would probably eliminate the market for new textbooks.
In an attempt to tackle the problem of copyright infringement on the Internet, Congress passed
the Digital Millennium Copyright Act (DMCA) in 1998. One portion of the law helps Internet service
providers by expressly stating that those providers can’t be sued for copyright infringement if others
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use their networks for infringing uses. Another portion of the law helps Web sites by stating that if a
Web site user uploads infringing material and the Web site complies with a copyright holder’s
request to remove the material, the Web site won’t be liable for infringement. For example, if you
upload a portion of a copyrighted song, movie, or television show to YouTube, you may find that
YouTube has removed your clip at the request of the copyright holder. Finally, the DMCA makes it
illegal to attempt to disable a copy protection device. DVD and Blu-ray Discs, for example, are copy
protected to prevent them from being copied easily. Anyone who writes software (even if the
software is distributed for free) that disables this copy protection device is violating the DMCA. In
recent years the DMCA has been used by companies to prevent competitors from making
replacement inkjet cartridges, replacement garage door openers, and other replacement parts on the
grounds that the replacements circumvent a copy protection device.

KEY TAKEAWAYS
Copyright protects any creative work fixed in a tangible medium. Copyright protection is automatic
without any prior government approval and generally lasts for seventy years past the death of the author.
Copyright owners can license others to use their works while retaining full rights of ownership. Digital
works are fully protected by copyright and may be encrypted with digital rights management schemes.
Copyright infringement, both direct and contributory, is a serious civil violation that can result in heavy
monetary penalties. Fair use is a defense to copyright infringement. The Digital Millennium Copyright Act
prohibits any attempts to circumvent a copy protection device or scheme.

EXERCISES
1.

How long do you think copyrights should last?

2.

Do you think the use of copyrighted works in parody is fair use? Consider works by Weird Al Yankovic, or
Mel Brooks movies, for example.

3.

Do you think there is any difference between downloading a song on a peer-to-peer network versus
walking into a store and putting a CD into your jacket and walking out without paying for it? What are
those differences? Should the law treat those two acts differently?

4.

Is downloading music justifiable because recording artists and companies make a lot of money? Can you
think of other industries where this reasoning applies as well?

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[1] Baigent v. Random House Group, http://www.scribd.com/doc/2473519/da-vinci-code-ruling-baigent-v-rhg0406 (accessed October 2, 2010).

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9.6 Concluding Thoughts
The framers of the Constitution recognized the value of intellectual property (IP) by drafting the
Copyright Clause into Article I, Section 8 as part of Congress’s duty to pass laws. As IP law evolved, laws
that govern trade secrets, patents, trademarks, and copyright have emerged to protect different forms of
IP. These legal protections provide a solid foundation for businesses, entrepreneurs, and artists to create
useful, innovative, and inspiring works for society. Our lives are enriched by machines to make tasks
easier, medicines to heal us, and songs and movies to inspire and entertain us. Without the financial
incentives provided by IP law, innovation would grind to a halt and the U.S. economy would become
unrecognizable.
On the other hand, the Constitution is explicit about the primary purpose of providing IP monopolies: to
advance the progress of science and useful arts. This advance can take place when IP owners create IP, but
it can also take place when the IP falls into the public domain at the end of its “limited time.” Many legal
scholars now believe that Congress has gone too far in pleasing copyright holders, mainly large
corporations with billions of dollars in profits at stake. In a case discussed in Chapter 7 "Torts" involving
Samsung’s use of a robot that looked like Vanna White, Judge Alex Kozinski from the Ninth Circuit Court
of Appeals (Figure 9.15 "Judge Alex Kozinski") noted that sometimes the law does go too far in protecting
IP:
Something very dangerous is going on here. Private property, including intellectual property, is
essential to our way of life. It provides an incentive for investment and innovation; it stimulates
the flourishing of our culture; it protects the moral entitlements of people to the fruits of their
labors. But reducing too much to private property can be bad medicine. Private land, for
instance, is far more useful if separated from other private land by public streets, roads and
highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private
hands, but vastly enhance the value of the property that remains.
So too it is with intellectual property. Overprotecting intellectual property is as harmful as
underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely
nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by

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accretion, each new creator building on the works of those who came before. Overprotection
stifles the very creative forces it’s supposed to nurture.

[1]

Figure 9.15 Judge Alex Kozinski

Source: Photo courtesy of the Ninth Circuit Court of Appeals, http://www.ce9.uscourts.gov/chief_judge_bio.html.

Judge Kozinski thinks that overprotecting intellectual property is as harmful as underprotecting it. Do you
agree? The challenge for policymakers and courts is to find the balance between the rights of IP holders,
who would always like more protection, and the rights of the public, which are enhanced when material
falls into the public domain. Corporations, policymakers, and members of the public will all benefit from a
reasoned debate over how to find this balance.

[1] White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993).

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Chapter 10

Criminal Law
LEARNING OBJECTIVES
After reading this chapter, you should understand the nature of criminal law, why it is important to
business, and the potential consequences of committing criminal acts. You will become familiar with
white-collar crimes, blue-collar crimes, and crimes committed by businesses. You will also learn about the
constitutional protections afforded to those accused of committing a crime, and the purpose of
punishments for committing crimes. This chapter will explore corporate liability as well as individual
liability for corporate actions. It also will examine strategies to minimize corporate criminal liability
exposure or losses attributed to criminal activities. At the conclusion of this chapter, you should be able to
answer the following questions:
1.

Why is crime relevant to business?

2.

How does criminal law differ from civil law?

3.

What constitutional protections are afforded to those accused of committing a crime?

4.

What are some relevant defenses to crime?

5.

What are the consequences of committing a crime?

6.

What are the goals of punishment for committing a crime?

7.

Which crimes must businesses be concerned about?

8.

What strategies exist for businesses to minimize exposure to criminal liability or to loss associated with
criminal activities?

Consider the photo in Figure 10.1 "Businessperson in Trouble". It is probably not the usual image
conjured by most business students who dream of success in the business world. Yet it becomes a sad
reality for too many managers and executives who commit crimes in the context of their professional
lives. How can the path from business success lead to a criminal conviction? Click on any credible
news source today, and you will find among the headlines a story in which this photo would fit.
Of course, there are many reasons why something like this happens. People sometimes fall into the
“wrong crowd” at work, and they do not know how to walk away. Sometimes corporate culture and
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leadership can contaminate a work environment, causing people to disregard ethical behavior or to
flagrantly ignore the laws. If “everyone is doing it,” then someone might believe that it’s OK for him
or her to do it, too. Being part of an organization has a way of making someone feel insulated and
“safe” when committing wrongdoings. For example, some members of the Enron workforce seemed
to be swept up in a culture of corporate greed, and they did not know how to walk away. Other people
are opportunists, and their moral compass or ethics do not lead them away from temptation. Bernie
Madoff may be a prime example of such an opportunist in today’s news. Sometimes, criminal
behavior results from the emphasis of profit over ethical behavior. For example, we might think of
corporate environmental crimes, in which corporations decide not to follow regulatory requirements
regarding hazardous waste disposal or storage. In the end, of course, the reasons for the criminal
behavior do not matter. When a crime is committed, others will be injured, and the wrongdoer will
be subject to criminal prosecution.
Everyone must be diligent about crime. Crimes affect businesses both from the inside and from the
outside. Even if individuals are honest in their dealings, that does not relieve them from the necessity
to maintain a vigilant watch to protect not only their good name but also that of their business from
the criminal activities of others. Criminal activity “from the outside” can be costly to businesses. Loss
through property damage, theft, shoplifting, corporate espionage, fraud, and arson are real threats.
Perhaps more insidiously, threats “from the inside” also pose tremendous risk of loss. These
activities include crimes such as embezzlement, computer crimes, and fraud. Such “inside jobs” are
perhaps more unsettling because the perpetrators are often trusted colleagues who would not
ordinarily fall under the suspicion of others. Moreover, a corporation must also protect itself from
the bad judgment or overzealous behavior of its employees. If an employee acting within the scope of
employment commits a crime from which the corporation itself will benefit, then the corporation can
be convicted of the crime, too. Of course, not all corporations that are convicted on criminal charges
are hapless victims of an overzealous employee who commits crimes on their behalf. Other
businesses are actively involved in crime, whether through a corporate culture run amok or through
outright organized crime, such as money laundering.

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Let’s explore criminal law in the business world. Not only do we need to understand basic criminal
law and the nature of crime in business to understand everyday headlines, but we also must ensure
that our own professional dealings and the people associated with our businesses are never the
legitimate focus of such stories. This chapter explores the differences between criminal law and civil
law, the nature of criminal law, the constitutional protections afforded to those accused of
committing a crime, relevant defenses, consequences of committing crimes, and the goals of
punishment. It also examines specific crimes relevant to business, including white-collar crime, bluecollar crime that harms businesses, and crimes committed by businesses. Last, it examines different
strategies to minimize exposure to criminal liability.

Key Takeaways
Criminal law is relevant to business because crime presents real threats. When crimes are committed,
people are injured. Criminal behavior is punishable by law. Risks to business posed by crime arise from
the losses suffered from the criminal activities of those on the outside of the business organization, as well
as those on the inside. Corporations themselves can be liable for crime when an employee working within
the scope of employment commits crime that benefits the corporation, or when the corporation itself
commits crime.

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10.1 The Nature of Criminal Law, Constitutional Rights,
Defenses, and Punishment
LEARNING OBJECTIVES
1.

Understand what crime is.

2.

Compare and contrast the differences between criminal law and civil law.

3.

Understand the constitutional protections afforded to those accused of committing a crime.

4.

Examine some common defenses to crime.

5.

Learn about the consequences of committing a crime.

6.

Explore the goals or purposes of punishment for committing a crime.

Imagine a bookkeeper who works for a physicians group. This bookkeeper’s job is to collect invoices
that are due and payable by the physicians group and to process the payments for those invoices. The
bookkeeper realizes that the physicians themselves are very busy, and they seem to trust the
bookkeeper with the task of figuring out what needs to be paid. She decides to create a fake company,
generate bogus invoices for “services rendered,” and send the invoices to the physicians group for
payment. When she processes payment for those invoices, the fake company deposits the checks in
its bank account—a bank account she secretly owns. This is a fraudulent disbursement, and it is just
one of many ways in which crime occurs in the workplace. Check out Note 10.4 "Hyperlink: Thefts,
Skimming, Fake Invoices, Oh My!" to examine several other common embezzlement schemes easily
perpetrated by trusted employees.

Hyperlink: Thefts, Skimming, Fake Invoices, Oh My!
http://www.acfe.com/resources/view.asp?ArticleID=1
Think it couldn’t happen to you? Check out common schemes perpetrated by trusted employees in this
article posted on the Association of Certified Fraud Examiners’ Web site.

When crime occurs in the workplace or in the context of business, the temptation might be to think
that no one is “really” injured. After all, insurance policies can cover some losses. Sometimes people
think that if the victims of embezzlement do not immediately notice the embezzlement, then they
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must not “need” the money anyhow, so no real crime has been committed. Of course, these excuses
are just smoke screens. When an insurance company has to pay for a claim arising from a crime, the
insurance company is injured, as are the victim and society at large. Similarly, the fact that wealthy
people or businesses do not notice embezzlement immediately does not mean that they are not
entitled to retain their property. Crime undermines confidence in social order and the expectations
that we all have about living in a civil society. No crime is victimless.
A crime is a public injury. At the most basic level, criminal statutes reflect the rules that must be
followed for a civil society to function. Crimes are an offense to civil society and its social order. In
short, crimes are an offense to the public, and someone who commits a crime has committed an
injury to the public.
Criminal law differs from civil law in several important ways. See Figure 10.3 "Comparison between
Criminal Law and Civil Law" for a comparison. For starters, since crimes are public injuries, they are
punishable by the government. It is the government’s responsibility to bring charges against
criminals. In fact, private citizens may not prosecute each other for crimes. When a crime has been
committed—for instance, if someone is the victim of fraud—then the government collects the
evidence and files charges against the defendant. When someone is charged with committing a
crime, he or she is charged by the government in an indictment. The victim of the crime is a witness
for the government but not for the prosecutor of the case. Note that our civil tort system allows a
victim to bring a civil suit against someone for injuries inflicted on the victim by someone else.
Indeed, criminal laws and torts often have parallel causes of action. Sometimes these claims carry the
same or similar names. For instance, a victim of fraud may bring a civil action for fraud and may also
be a witness for the state during the criminal trial for fraud.
Figure 10.3 Comparison between Criminal Law and Civil Law

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In a criminal case, the defendant is presumed to be innocent unless and until he or she is proven
guilty. This presumption of innocence means that the state must prove the case against the defendant
before the government can impose punishment. If the state cannot prove its case, then the person
charged with the crime will be acquitted. This means that the defendant will be released, and he or
she may not be tried for that crime again. The burden of proof in a criminal case is the prosecution’s
burden, and the prosecution must prove its case beyond a reasonable doubt. This means that the
defendant does not have to prove anything, because the burden is on the government to prove its
case. Additionally, the evidence must be so compelling that there is no reasonable doubt as to the
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defendant’s guilt. To be convicted of a crime, someone must possess the required criminal state of
mind, or mens rea. Likewise, the person must have committed a criminal act, known as actus reus.
Compare this to the standard of proof in a civil trial, which requires the plaintiff to prove the case
only by a preponderance of the evidence. This means that the evidence to support the plaintiff’s case is
greater (or weightier) than the evidence that does not. It’s useful to think of the criminal standard of
proof—beyond a reasonable doubt—as something like 99 percent certainty, with 1 percent doubt.
Compare this to preponderance of the evidence, which we might think of as 51 percent in favor of the
plaintiff’s case, but up to 49 percent doubt. This means that it is much more difficult to successfully
prosecute a criminal defendant than it is to bring a successful civil claim. Since a criminal action and
a civil action may be brought against a defendant for the same incident, these differences in burdens
of proof can result in verdicts that seem, at first glance, to contradict each other. Perhaps the most
well-known cases in recent history in which this very outcome happened were the O. J. Simpson
trials. Simpson was acquitted of murder in a criminal trial, but he was found liable for wrongful
death in a subsequent civil action. Check out Note 10.14 "Hyperlink: Not Guilty Might Not Mean
Innocent" for a similar result in the business context.

Hyperlink: Not Guilty Might Not Mean Innocent
http://www.bloomberg.com/apps/news?pid=20601103&sid=a89tFKR4OevM
Richard Scrushy of HealthSouth was acquitted of several criminal charges relating to accounting fraud but
was found civilly liable for billions. He was subsequently found guilty in a later criminal case for different
crimes committed.

This extra burden reflects the fact that the defendant in a criminal case stands to lose much more
than a defendant in a civil case. Even though it may seem like a very bad thing to lose one’s assets in
a civil case, the loss of liberty is considered to be a more serious loss. Therefore, more protections are
afforded to the criminal defendant than are afforded to defendants in a civil proceeding. Because so
much is at stake in a criminal case, our due process requirements are very high for anyone who is a
defendant in criminal proceedings. Due process procedures are not specifically set out by the

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Constitution, and they vary depending on the type of penalty that can be levied against someone. For
example, in a civil case, the due process requirements might simply be notice and an opportunity to
be heard. If the government intends to revoke a professional license, then the defendant might
receive notice by way of a letter, and the opportunity to be heard might exist by way of written
appeal. In a criminal case, however, the due process requirements are higher. This is because a
criminal case carries the potential for the most serious penalties.

Constitutional Rights Relevant to Criminal Proceedings
A person accused of a crime has several rights, which are guaranteed by the U.S. Constitution. Many
crimes are state law issues. However, many provisions of the U.S. Constitution’s Bill of Rights, which
contains the rights of concern to criminal defendants, have been incorporated as applicable to the states.
This is known as the incorporation doctrine.
The Sixth Amendment guarantees that criminal defendants are entitled to an attorney during any phase of
a criminal proceeding where there is a possibility of incarceration. This means that if a defendant cannot
afford an attorney, then one is appointed for him or her at the state’s expense.
The Fifth Amendment guarantees the right to avoid self-incrimination. This right means that the
government cannot torture someone accused of committing a crime. Obviously, someone under the
physical and psychological pain of torture will admit to anything, and this might be a strong incentive to
allow torture if the government wanted someone to confess to a crime. However, the Fifth Amendment
guarantees that people can choose to remain silent. No one is compelled to testify against himself or
herself to make self-incriminating statements.
The Eighth Amendment prohibits cruel and unusual punishment. We do not employ many techniques
that were once used to punish people who committed crimes. For instance, we do not draw and quarter
people, which was a practice in England during the Middle Ages. Recently, however, the question of the
use of torture by the United States against aliens on foreign soil has been a hot topic. Many people believe
that our Eighth Amendment protections should be extended to everyone held by U.S. authorities, whether
they are on U.S. soil or not.

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The Fourth Amendment provides a prohibition against illegal searches and seizures. This means that if
evidence were obtained in violation of the Fourth Amendment, then it cannot be used against the
defendant in a court of law. For Fourth Amendment requirements to be met, the government must first
obtain a search warrant to search a particular area for particular items if there is a reasonable expectation
of privacy in the area to be searched. The search warrant is issued only on probable cause. Probable cause
arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the
belief that someone has committed a crime.
If a valid search warrant is issued, then the government may search in the area specified by the warrant
for the item that is the subject of the warrant. If a search occurs without a warrant, the search might still
be legal, however. This is because there are several exceptions to the requirements for a search warrant.
These include the plain view doctrine, exigent circumstances, consent, the automobile exception, lawful
arrest, and stop and frisk. The plain view doctrine means that no warrant is required to conduct a search
or to seize evidence if it appears in the plain view of a government agent, like a police officer.
Exigent circumstances mean that no warrant is required in the event of an emergency. For instance, if
someone is cruelly beating his dog, the state can remove the dog without a warrant to seize the dog. The
exigent circumstances exception to the warrant requirement is used in hot pursuit cases. For example, if
the police are in hot pursuit of a suspect who flees into a house, the police can enter the house to continue
the pursuit without having to stop to first obtain a warrant to enter the house. Consent means that the
person who has the authority to grant consent for a search or seizure has granted the consent. This does
not necessarily have to be the owner of the location to be searched. For example, if your roommate
consents to a search of your living room, which is a common area shared by you and your roommate, then
that is valid consent, even if the police find something incriminating against you and you or your landlord
did not consent to the search. The automobile exception means that an automobile may be searched if it
has been lawfully stopped. When a police officer approaches a stopped car at night and shines a light into
the interior of the car, the car has been searched. No warrant is required. If the police officer spots
something that is incriminating, it may be seized without a warrant. Additionally, no warrant is required
to search someone who is subject to lawful arrest. This exception exists to protect the police officer. For
instance, if the police could not search someone who was just arrested, they would be in peril of injury

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from any weapon that the person in custody might have possession of. Similarly, if someone is stopped
lawfully, that person may be frisked without a warrant. This is the stop and frisk exception to the warrant
requirement.
In the business context, it is also important to note that administrative agencies in certain limited
circumstances may conduct warrantless searches of closely regulated businesses, such as junkyards,
where many stolen cars are disassembled for parts that can be sold.

Defenses
If the government violates a defendant’s constitutional rights when collecting evidence, then the evidence
gathered in violation of those rights may be suppressed at trial. In other words, it may not be used against
the defendant in trial. This is because evidence obtained through an illegal search is “fruit of the
poisonous tree.” The fruit of the poisonous tree doctrine is known as the exclusionary rule. You should
know, however, that lying to the defendant, or using forms of trickery and deceit, are not constitutional
violations.
Another common defense arises under the exclusionary rule regarding confessions. This is when the
government, while holding someone in a custodial interrogation, questions that person without first
reading the Miranda warnings. If someone is subjected to a custodial interrogation, he or she must first be
read the Miranda warnings, which you have probably heard in the movies. Though the U.S. Supreme
Court did not script the warnings specifically, the warnings are usually delivered in language close to this:
“You have the right to remain silent. Anything that you say can and will be used against you in a court of
law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you by the
state. Do you understand your rights?”
The purpose of the Miranda warnings is to ensure that people understand that they have the right not to
make self-incriminating statements and that they have the right to have counsel. If someone wants to
invoke his or her rights, he or she has to do so unequivocally. “Don’t I need a lawyer?” is not enough.
The Miranda warnings are not required unless someone is in custody and subject to interrogation.
Someone in custody is not free to leave. So if a police officer casually strikes up a conversation with you
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while you are shopping in the grocery store and you happen to confess to a crime, that confession will be
admissible as evidence against you even though you were not Mirandized. Why? Because you were not in
custody and you were free to leave at any time. Likewise, if the police are not interrogating a person, then
any statement made can also be used against that person, even if he or she is not Mirandized. Someone is
being interrogated when the statements or actions by the police (or other government agent) are likely to
give rise to a response.
Another defense provided by the U.S. Constitution is the prohibition against double jeopardy. The Fifth
Amendment prohibits the government from prosecuting the same defendant for the same crime after he
or she has already stood trial for it. This means that the government must do a very thorough job in
collecting evidence prior to bringing a charge against a defendant, because unless the trial results in a
hung jury, the prosecution will get only that one chance to prosecute the defendant.
Other defenses to crime are those involving lack of capacity, including insanity and infancy. Insanity is a
lack of capacity defense, specifically applicable when the defendant lacks the capacity to understand that
his actions were wrong. Infancy is a defense that may be used by persons who have not yet reached the age
of majority, typically eighteen years of age. Those to which the infancy defense applies are not “off the
hook” for their criminal actions, however. Juvenile offenders may be sentenced to juvenile detention
centers for crimes they commit, with common goals including things like education and rehabilitation. In
certain circumstances, juvenile offenders can be tried as adults, too.
Last, the state may not induce someone to commit a crime that he or she did not already have the
propensity to commit. If the state does this, then the defendant will have the defense of entrapment.

Punishment
If convicted in a criminal case, the defendant will be punished by the government, rather than by the
victim. Once a defendant is convicted of a crime, he or she is a criminal. Punishment for criminal offenses
can include fines, restitution, forfeiture, probation, civil disabilities, and a loss of liberty. Loss of liberty
means that the convicted criminal may be forced to do community service, may be subject to house arrest,
may be incarcerated or, in some states that have the death penalty, may even lose his or her life.

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Length of incarceration varies depending on whether the conviction was for amisdemeanor or a felony. A
misdemeanor is a less serious offense than a felony, as determined by the legislative body and reflected in
the relevant statutes. Even an infraction, such as a parking ticket, is a criminal offense, typically carrying a
penalty of a fine. An infraction is considered less serious than a misdemeanor.
When someone is convicted of violating a state criminal statute—a felony, misdemeanor, or infraction—
the penalty will be set by the statute. For instance, the statute might state that the punishment will be “up
to $5,000” or “up to one year in jail.” Often, the possible punishments are given in a range, which allows
the judge leeway to take other matters into consideration when sentencing the offender. For example, if
someone is convicted of a misdemeanor that carries a penalty of up to one year in jail, but that person is a
first-time offender with no prior criminal history, the judge might impose a sentence of some lesser time
in jail, such as thirty days, or no jail time whatsoever.
Historically, all judges had the leeway to use their judgment when sentencing convicted criminals.
However, disparities in sentences gave rise to concern about unequal treatment for similar offenses. In
the 1980s the U.S. Sentencing Commission established the Federal Sentencing Guidelines, which were
understood to be mandatory guidelines that federal judges were expected to use when sentencing
offenders. The mandatory nature of these guidelines led some to observe that extremely harsh penalties
were mandated for relatively minor offenses, given certain circumstances. Today, however, the federal
guidelines are only advisory, due to the U.S. Supreme Court’s decision in United States v. Booker, which
held that a wide range of factors should be taken into consideration when sentencing offenders.

[1]

This

opinion restored to federal district court judges the power to exercise their judgment when sentencing
federal offenders. Several states, however, passed their own versions of sentencing guidelines, and state
trial court judges in those states must rely on those guidelines when sentencing state offenders. This has
led to controversial “three strikes” laws, which can also carry extremely harsh penalties—such as
incarceration for twenty-five years to life—for relatively minor offenses.
Often, the convicted criminal will be subject to various civil disabilities, depending on the state in which
he or she lives. For instance, a felon, which is a criminal that has been convicted of a felony, may be

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prohibited from possessing firearms, running for public office, sitting on a jury, holding a professional
license, or voting. A felon may be subject to deportation if he or she is an illegal immigrant.
Besides loss of liberty and civil disabilities, other forms of punishment exist. Some of these are also
appropriate in civil cases. Punishment for crimes also includes a fine, which is a monetary penalty for
committing an offense. Fines can also be levied in civil cases. Restitution, which is repayment for damage
done by the criminal act, is a common punishment for property damage crimes such as vandalism.
Restitution can also be an appropriate remedy in civil law, particularly in contracts disputes. Forfeiture,
which means involuntarily losing ownership of property, is also a punishment, and it is commonly used in
illegal drug trafficking cases to seize property used during the commission of a crime. Check out Note
10.39 "Hyperlink: Shopping, Anyone?", which is the U.S. Marshall’s Assets Forfeiture page, to see
forfeited property currently available for sale. Finally, probation is a common penalty for committing
crime. Probation is when the criminal is under the supervision of the court but is not confined. Typically,
the terms of the probation require the criminal to periodically report to a state agent, such as a probation
officer.

Hyperlink: Shopping, Anyone?
http://www.usmarshals.gov/assets/assets.html

Purpose of Punishment
Conviction of a crime carries criminal penalties, such as incarceration. But what is the purpose of
punishment? We do not have a vigilante system, where victims may bring their own form of justice to an
offender. If we had such a system we would have never-ending feuds, such as the infamous and longstanding nineteenth-century dispute between the Hatfields and McCoys from the borderlands of West
Virginia and Kentucky.
Several goals could be the focus of a criminal justice system. These could include retribution, punishment,
rehabilitation, the protection of society, or deterrence from future acts of crime. Our criminal justice
system’s penalties ostensibly do not exist for the purpose of retribution. Rather, rehabilitation,
punishment, the protection of society, and deterrence from committing future crimes are the oft-cited
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goals. The Federal Bureau of Prisons captures some of these concepts in its mission statement.

[2]

Sadly,

rehabilitation programs are not always available or, when they are, they are not always considered
appropriate—or, when appropriate, they do not always work. Additionally, the goal of deterrence is not
always achieved, as reflected in high recidivism rates in the United States.

Punishment of Business-Related Crime
Punishments committed by “white-collar criminals” are the same as those committed by any
criminal. White-collar crime is a term used to describe nonviolent crimes committed by people in their
professional capacity or by organizations. Individuals involved in white-collar crime are criminally liable
for their own actions.
Additionally, since a corporation is a legal person, then the corporation can be convicted of committing
crimes, too. Accordingly, corporations can be punished. However, not all constitutional protections
afforded to individuals are available to corporations. For instance, a corporation does not have the right
against self-incrimination.
One difficulty that arises is the question of how to punish a corporation for engaging in criminal activity.
After all, as they say, a corporation does not have a soul to rehabilitate or a body to incarcerate.

[3]

This is

very different from a human being, who will stand to lose his or her liberty or who might be subject to
mandatory counseling.
We might argue that a criminal corporation should have its corporate charter revoked, which would be
equivalent to a corporate death penalty. However, if that happened, a lot of innocent people who were not
involved in the criminal activity would be harmed. For instance, employees would lose their jobs, and
suppliers and customers would lose the goods or services of the corporate criminal. Entire communities
could suffer the consequences of a few bad actors.
On the other hand, corporations must be punished to respect the goal of deterrence of future crimes. One
way that corporations are deterred is by the imposition of hefty fines. It is not uncommon to base such
penalties on some percentage of profits, or all profits derived from the ill-gotten gains of criminal activity.

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Corporations that are criminals also lose much in the way of reputation. Of course, reputational damage
can be very difficult to repair.

KEY TAKEAWAYS
Crime is a public injury. Criminal law differs from civil law in important ways, including who brings the
claim, the burden of proof, due process, postconviction civil disabilities, and penalties. Those who are
accused of committing a crime are afforded a high level of due process, including constitutional
protections against illegal searches and seizures, and self-incrimination; guarantee of an attorney; and
prohibition against cruel and unusual punishment. Several common defenses to crimes exist. If convicted,
criminals can face loss of liberty, with sentencing structures based on statutory language and, in the
federal system, guided by the U.S. Federal Sentencing Guidelines. The goals of imposing penalties for
violating criminal laws include protecting society, punishing the offender, rehabilitating the offender, and
deterrence from future acts of crime. Corporations can also be convicted of crimes, though unique
questions relating to appropriate means of punishment arise in that context.

EXERCISES
1.

Imagine a woman who suffers from dementia and lives in an assisted living facility. One day, she wanders
into another resident’s room and picks up an antique vase from the other resident’s bureau. As she holds
the vase, she forgets that it belongs to someone else and walks out of the room with it. Later, she places it
on her own nightstand, where she admires it greatly. Has there been a crime here? Why or why not?

2.

Consider the case of O. J. Simpson, in which a criminal jury acquitted him of murder, but a civil court found
him liable for wrongful death. Both trials arose out of the same incident. Do you think that the burden of
proof should be the same for a civil case as it is for a criminal case? Why?

3.

What should be the goal of penalties or punishments for criminal offenses? Compare and contrast how
our criminal justice system would differ if the goal of punishment was each of the following: retribution,
rehabilitation, protection of society, or deterrence from future acts of crime.

4.

Consider the difference between minimum security federal prison camps and medium or high-level
securities facilities, described here:http://www.bop.gov/locations/institutions/index.jsp. Should whitecollar criminals receive the same punishment as those convicted of committing a violent crime? Why or
why not?

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5.

Before listening to the link in this assignment, write down your perceptions of “federal prison camp.”
Then, listen to an interview with a convicted white-collar criminal
here: http://discover.npr.org/features/feature.jhtml?wfId=1149174. Compare your initial perceptions
with what you have learned from this interview. How are they the same? How do they differ?

6.

How should a corporation be punished for committing a crime? Find an example of a corporation that was
convicted of a crime. Do you believe that the punishment was appropriate? Discuss.

7.

What kinds of crimes do college students commit? While the vast majority of college students wouldn’t
even think of committing a violent crime, many students do engage in crimes they believe to be victimless,
such as downloading movies or buying and selling prescription drugs like Adderall or Ritalin. Are these
crimes actually victimless?

8.

The exclusionary rule was created by the Supreme Court as a means of punishing the police for violating a
defendant’s constitutional rights. Some legal commentators, including several members of the Supreme
Court, believe the exclusionary rule should be abolished. Without it, how do you think society can ensure
the police will not violate a citizen’s constitutional rights?

[1] United States v. Booker, 543 U.S. 220 (2005).
[2] Federal Bureau of Prisons, “Mission and Vision of the Bureau of Prisons,”
http://www.bop.gov/about/mission.jsp (accessed September 27, 2010).
[3] Albert W. Alschuler, “Two Ways to Think about the Punishment of Corporations,” American Criminal Law
Review, Public Law and Legal Theory Series, No. 09-19, 2009, p.
13,http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1491263 (accessed September 27, 2010).This is a
paraphrase of a remark first uttered by Lord Chancellor Thurlow between 1778 and 1792: “No soul to damn, no
body to kick.”

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10.2 Crime
LEARNING OBJECTIVES
1.

Examine white-collar crimes.

2.

Examine blue-collar crimes that harm businesses.

3.

Examine the crimes committed by businesses.

Imagine that you work in a publicly traded corporation as an accountant. One day, your manager calls
you. You sense desperation in his voice as he whispers, “Quick! Shred the paper copies of the financial
records!” Will you do it? After all, how can shredding paper be a crime? Not so fast. It may be a crime
under the Sarbanes-Oxley Act, specifically if you destroy documents before the statutory length of time
required to hold them. After studying this section, you should be able to recognize when the answer to
such questions should be a resounding “No!” Indeed, after reading this section, you should be able to spot
criminal activity, which may lead to tough decisions, such as whether you should be a whistleblower or
not.
This section addresses crimes relevant to business concerns. A business must be concerned about criminal
activity from the inside, from the outside, and through its own actions.

White-Collar Crime
White-collar crime is a term used to describe nonviolent crimes committed by people in their professional
capacity, or by organizations. These crimes are committed for financial gain, often through deception.
Historically, this term derives from a reference to the “white collars” that managers, executives, or
professionals who committed these crimes wore as their everyday attire, rather than the “blue collars” of
the factory workers and laborers. White-collar crimes are not typical street crimes, like burglary or
robbery, and they are not person crimes, like murder or rape. Rather, the term is used to describe crime
committed in the professional work environment, for the purpose of obtaining a financial reward through
the use of deception. White-collar criminals frequently commit their crimes on the job, in broad daylight,
while sitting at a desk.

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But what leads an otherwise successful businessperson or organization to commit a white-collar crime?
After all, if someone is earning a good salary, or if a business is financially healthy, why would he or she
choose to violate the law? While names like Kenneth Lay of Enron and Bernie Ebbers of WorldCom are
virtually synonymous with corporate greed, lack of ethical decision making, and fraudulent behavior,
these examples do not provide satisfactory answers to this question. Indeed, businesses must be vigilant
against white-collar crime, because there is no absolute way to identify those who might turn to criminal
behavior in the workplace. White-collar crime can involve fraud or larceny, organized crime, cybercrime,
and environmental crime.

Fraud and Larceny
White-collar crimes generally involve the use of deception to acquire money or property. This is the very
definition of fraud. Many white-collar crimes are versions of fraud. Sometimes, white-collar crime
involves outright larceny, which is the trespassory taking of property with the intent to deprive the owner
of the property. In both types of white-collar crime, the criminal is trying to take property for his or her
own financial gain.
Fraud is found in many contexts. For instance, many regulatory violations, like insider trading, are forms
of fraud. Specifically, these are securities fraud. Securities fraud is when someone uses deception to
circumvent the regulations or statutes interpreted by the U.S. Securities and Exchange Commission (SEC)
to acquire money or property. Goldman Sachs was recently charged by the SEC for securities fraud,
because it allegedly misrepresented material facts to investors to gain financially. Check out Note 10.49
"Hyperlink: SEC v. Goldman Sachs" to review the complaint.

Hyperlink: SEC v. Goldman Sachs
One of Goldman Sachs’s employees, Fabrice Tourre, self-named the “Fabulous Fab,” was also named as a
defendant in the complaint. Do you think that the Fabulous Fab should bear criminal liability for
misleading investors, even if he did mislead investors?
http://www.sec.gov/litigation/complaints/2010/comp21489.pdf

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The Fabulous Fab’s testimony before Congress:
http://www.cbsnews.com/video/watch/?id=6436867n&tag=related;photovideo
Health care fraud is also a common type of white-collar crime. A physician who submits false claims to
health insurance companies to receive money is a common example. Check out Note 10.51 "Hyperlink:
Health Care Fraud’s Epidemic" to see the U.S. Department of Justice’s comments regarding health care
fraud.

Hyperlink: Health Care Fraud’s Epidemic
http://www.fbi.gov/news/videos/mp4/heat062409.mp4/view
This link is a video of the U.S. Department of Justice’s comments concerning recent indictments against
several individuals accused of creating “straw patients” to submit claims to Medicaid to receive money.
You can see how someone who creates fake patients to receive money has committed fraud, because he or
she is using deception (fake patients) to acquire money (Medicaid payments).
Insurance fraud is the use of deception to receive insurance funds. For instance, if someone falsely reports
that her office was burglarized and her computer equipment was stolen, and asks her insurance company
to cover the loss, then this constitutes insurance fraud. This is because the person is lying (using
deception) to acquire an insurance payment (acquiring money). A common context for insurance fraud is
arson. If someone intentionally burns down his office building because he wishes to collect under his fire
insurance policy, then he has committed insurance fraud by arson. Arson is the act of intentionally setting
fire to property.
Financial institution fraud is fraud against banks and other similar institutions, such as credit unions. The
IRS investigates financial institution fraud. Cases of financial institution fraud can involve people who
falsify tax documents, or profit and loss statements to gain funding from banks, as well as those who
commit money laundering. Check out Note 10.56 "Hyperlink: Financial Institution Fraud" for several
financial institution fraud cases, most of which are excellent examples of white-collar crime.

Hyperlink: Financial Institution Fraud
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http://www.irs.gov/compliance/enforcement/article/0,,id=213770,00.html
Consider another type of fraud, where the deception is perhaps better hidden. Bernie Madoff committed
massive fraud in a scheme known as a Ponzi scheme. A Ponzi scheme is a pyramid scheme, where people
pay in. Those at the top of the pyramid may receive something that appears to be a return on their
investment, but those at the bottom do not. This is because the funds paid in by those at the bottom are
used to pay the people at the top. Those who operate Ponzi schemes generally solicit investors, and those
who invest in such schemes are expecting a legitimate return on investment (ROI). However, the master
of the Ponzi scheme does not really invest the funds. He simply takes them, and keeps his early
“investors” happy by bringing in new investors, whose money he gives to the old investors as their ROI.
This allows the Ponzi scheme to continue, because it appears from the outside that investors are receiving
a legitimate ROI. The problem is that the capital contributions eventually disappear, since they are never
invested but are simply used by the criminal for his own purposes, including covering his tracks for as
long as possible by paying investors with fake ROI payments as necessary. To continue, the pyramid must
get bigger and bigger. That is because new investors must be attracted to keep the cash flow going.
Eventually, of course, pyramids will eventually collapse under their own unsustainable structure. Check
out Note 10.58 "Hyperlink: The Mechanics of a Pyramid Scheme" for an illustration of a pyramid scheme
from the SEC.

Hyperlink: The Mechanics of a Pyramid Scheme
http://www.sec.gov/answers/pyramid.htm
Madoff was a wealth manager who defrauded investors out of billions of dollars. How does someone get
away with this? Interestingly, Harry Markopolos, a financial analyst, flagged Madoff’s actions to the SEC
as statistically impossible long before Madoff was caught. Check out Note 10.59 "Hyperlink: Too Good to
Be True? Statistically Impossible Returns" to watch Mr. Markopolos explain this by using sports
analogies. This raises interesting legal questions regarding whether the SEC is proactive enough. The SEC
actions are often reactive, responding to a situation after it happened.

Hyperlink: Too Good to Be True? Statistically Impossible Returns

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http://www.cbsnews.com/video/watch/?id=4834874n&tag=related;photovideo
Investors aren’t the only potential victims of white-collar crime. Owners of businesses are also potential
victims. For example, embezzlement is a common crime, and it occurs when someone takes property that
was in his or her possession lawfully and then converts it to his or her own use. As you can see, Bernie
Madoff was an embezzler because he lawfully had possession of his clients’ money, but then he wrongfully
converted those funds to his own use, rather than exercising his fiduciary duty to his clients.
Embezzlement differs from larceny, because larceny requires the trespassory taking of property with the
intent to deprive the owner of the property. In other words, in a larceny, the thief is not supposed to have
possession of the property to begin with. Someone who embezzles something, however, has the right to be
in possession of the property to start with but then wrongfully converts it (steals it) for his or her own use.
Embezzlement strategies can involve forgery, which is counterfeiting someone else’s signature or other
document. It can also involve wire fraud if the embezzlement uses electronic communications.

[1]

Refer

again to Note 10.4 "Hyperlink: Thefts, Skimming, Fake Invoices, Oh My!" to learn about many different
embezzlement schemes.
Corporate espionage and misappropriation are crimes in which a competitor or would-be competitor has
acted illegally to obtain trade secrets of another. The Economic Espionage Act is a federal statute that
criminalizes the theft of trade secrets. In a recent case of corporate espionage, Starwood Hotels sued
Hilton, claiming that Hilton, along with some of its executives, stole millions of dollars in confidential
trade secrets that were used to compete with Starwood’s successful chain of hotels.

Organized Crime
While the term “organized crime” often summons images of the mafia, that is not the only type of
organized criminal activity in this country. Consider the recent case against Pfizer, which settled with the
U.S. Department of Justice in 2009. Pfizer’s subsidiaries, Pharmacia and Upjohn, had been selling
pharmaceuticals “off-label” in doses and for uses not approved by the Food and Drug Administration
(FDA), and it had been providing kickbacks to physicians to prescribe those drugs. The subsidiaries
agreed to plead guilty to misbranding with the intent to defraud or mislead. They paid a criminal fine of
more than one billion dollars and forfeited their profits from their illegal activities. Not only did they
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plead guilty to a criminal violation, but they also had to pay a hefty penalty for violating civil law,
particularly related to paying kickbacks to physicians.

[2]

Kickbacks are incentive payments that are given

to someone who makes decisions to encourage others to pay for something. The repercussions of this
conviction are certainly felt by those who were without knowledge of these acts, such as the shareholders
and many employees, not to mention the patients who were subjected to off-label marketing in the
contexts of what otherwise should have been trusting relationships with their physicians.
The Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal statute that, if violated, can
add substantial prison time to a convicted criminal’s sentence. Even if someone is not per se involved with
organized crime, RICO charges can be brought against a defendant who has violated the statute. This
statute punishes those engaged in a pattern (at least two) of racketeering activities—which include a wide
range of activities typically associated with organized crime—over a ten-year period,

[3]

when funds from

those activities were used to maintain, operate, or acquire a legitimate business. Racketeering activities
include crimes such as loan-sharking, bookmaking, money laundering, counterfeiting, smuggling,
blackmailing, human trafficking, and other similar crimes. Although RICO was written to target
traditional organized crime, less than 10 percent of RICO cases filed have been against the mafia. RICO is
now used against insurance companies, stock brokerages, tobacco companies, banks, and other large
commercial enterprises. RICO also has a civil provision allowing a competitor to file RICO charges, which
come with triple damages if the suit is successful.
Bribery occurs when someone pays a government official to influence the official’s decision or actions in
his or her official capacity for the benefit of the person paying the bribe.
The Foreign Corrupt Practices Act (FCPA)outlaws bribery by U.S. companies doing business in foreign
lands, though grease payments are permitted. Grease payments are payments given to speed up a process
that will occur, rather than to influence a decision. However, companies should be very careful in relying
on the grease payment exception, since such payments are legal under the FCPA only if they are also legal
under the laws of the country where the grease payments take place, and there are very few jurisdictions
(if any) where they are indeed legal. States also have statutes against bribery.

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Money laundering occurs when funds gained from illegal activities are processed through a seemingly
legitimate business to “clean” the source of those funds. For example, someone who received $10,000 for
criminal activities will need to “clean” the money to be able to use it legitimately. One way this can be
done is by setting up a business that handles a lot of cash, which appears to be a legitimate business. This
business can overstate its earnings by $10,000 over time by running the money through its books, thereby
“cleaning” the funds. For example, if the business was a tavern, and the tavern grossed $12,000 per
month, the ill-gotten $10,000 could be spread out over ten months by having the business claim that it
grossed $13,000 each month. In that way, the ten thousand would eventually be “laundered” or “cleaned,”
because it will appear to be money received by the legitimate business itself.
In that example, if someone found out about this money laundering operation and threatened to go to the
authorities unless a payment was given to him to keep quiet, then that would be a form of extortion
known as blackmail. Blackmail occurs when someone threatens to reveal a harmful truth, such as
involvement in criminal activity, but agrees to remain silent if paid. Extortionis when someone obtains
property through coercion. Another example of extortion is when a neighborhood gang extracts
“protection payments” from local businesses. Essentially, the gang requires payment from local
businesses periodically, and if the business refuses to pay, then the gang injures the business or its owner
in some way, such as through vandalism or battery.
In organized crime cases, there can be strong incentives for people not to do the right thing. Maybe they
are afraid of punishment by the government. But they may also fear punishment from their organized
crime communities. In such cases, sometimes people do not tell the truth when they should. Someone
who lies under oath, even if he or she thinks there’s a good reason to do so, has committed the crime
of perjury. Additionally, such a person might be charged with obstruction of justice, which is acting in a
manner that creates obstacles to the administration of justice.
Antitrust laws seek to prevent activities that reduce or eliminate economic competition. Agreements “in
restraint of trade” are prohibited.

[4]

These crimes involve things like collusion, allocating markets, price-

fixing, and bid-rigging. Criminal convictions have been obtained for bid-rigging contracts for milk for
school children, price-fixing for residential doors, and price-fixing for steel wool scouring pads.

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out Note 10.76 "Video Clip: Who Said Antitrust Is Boring? Not Hollywood!" for the movie trailer of The
Informant!, which is based on an actual antitrust case involving illegal price-fixing.

Video Clip: Who Said Antitrust Is Boring? Not Hollywood!
Check out the movie trailer for The Informant!, which portrays the criminal price-fixing activities of
senior executives at ADM Co., which is a major agribusiness. Which commodity was being price fixed?
Lysine! Here is part of the trailer:
Congress has addressed antitrust activities through the passage of several major pieces of legislation,
though not all carry criminal penalties. Specifically, the Sherman Anti-Trust Act carries criminal penalties
for antitrust violations, but other antitrust laws do not.

Cybercrime
Cybercrimes are crimes that are committed virtually from a computer or over the Internet. These crimes
are on the rise, and they include activities like hacking and identity theft. Cybercrime is a broad term that
includes many white-collar crimes. Cybercrime is ubiquitous these days, because virtually every desk has
a computer on it. These crimes can range from non-white-collar crimes (like possession of child
pornography) to traditional white-collar crime, involving the use of deception to acquire money.
The Computer Fraud and Abuse Act is a federal statute that carries punishments for compromising
computers used in interstate commerce or communication. It punishes those who access a computer to
commit fraud, among other things. See Table 10.1 "Summary of Computer Fraud and Abuse Act
Compromising Confidentiality Provisions"

[6]

for a summary of the provisions that carry criminal

punishments, as well as the statutory sentences.
Table 10.1 Summary of Computer Fraud and Abuse Act Compromising Confidentiality Provisions

Offense

Section

Sentence (Years)*

Obtaining national security information

(a)(1)

10 (20)

Compromising the confidentiality of a computer

(a)(2)

1 or 5

Trespassing in a government computer

(a)(3)

1 (10)

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Offense

Section

Sentence (Years)*

Accessing a computer to defraud and obtain value (a)(4)

5 (10)

Knowing transmission and intentional damage

(a)(5)(A)(i)

10 (20 or life)

Intentional access and reckless damage

(a)(5)(A)(ii) 5 (20)

Intentional access and damage

(a)(5)(A)(iii) 1 (10)

Trafficking in passwords

(a)(6)

1 (10)

Extortion involving threats to damage computer

(a)(7)

5 (10)

* The maximum prison sentences for second convictions are noted in parentheses.

The Unauthorized Access to Stored Communications Act is a federal statute to protect the confidentiality
of e-mail and voicemail. However, this act does not have as broad of a sweep as it might appear from its
name. Courts have held that home computers, business computers, and Internet service providers (ISPs)
are not “electronic communications devices” that are covered by this act. So hacking into an e-mail
account provider
computer.

[9]

[7]

would be prohibited by this act, but not hacking into a home computer

[8]

or a business

Due to the narrow reading of the statute by the courts, few prosecutions have occurred under

this Act since its enactment.

[10]

Identity theft is also now codified into federal statute as a federal criminal violation.

[11]

This crime is

rampant. Identity thieves obtain credit in an otherwise creditworthy person’s name. The victim of these
crimes can spend hundreds of hours repairing the damage. This is one of the primary reasons why it is
very important not to reveal personal information on the Internet.
Finally, spamming is now subject to federal regulations, the violations of which are now a federal crime by
virtue of the CAN-SPAM Act. This law serves as the vehicle to prosecute senders of large quantities of
unsolicited e-mails if those e-mails do not meet the federal requirements.

[12]

Marketers, beware!

Environmental Crimes
Environmental crimes are actions that violate federal or state statutes relating to the environment, which
carry criminal sanctions. The Environmental Protection Agency enforces federal environmental statutes,
including those that carry a criminal penalty. Many corporations have been convicted of environmental
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crimes. For instance, corporations that illegally dump toxic substances into waterways, illegally harm
endangered species or those species’ habitats, or trade in illegal substances that have been banned due to
their propensity to cause great harm to the environment are all engaged in environmental crimes. U.S.
federal environmental statutes that carry criminal penalties include the Clean Air Act; the Clean Water
Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response,
Compensation, and Liability Act; and the Endangered Species Act. Additionally, state environmental law
statutes frequently carry criminal penalties as well.
Recent examples of corporate convictions for environmental crimes can be found in Note 10.84
"Hyperlink: Federal Environmental Criminal Convictions".

Hyperlink: Federal Environmental Criminal Convictions
http://www.epa.gov/compliance/resources/cases/criminal/highlights/2010/index.html
Check out this link to explore recent environmental crime convictions. Corporate convictions are not
uncommon. For example, the Tulip Corporation of New York was convicted for illegally storing lead
contaminated materials without a permit. Penalties included a $100,000 fine and a $25,000 to Buffalo
Niagara Riverkeepers.
In another case, Mar-Cone Appliance Part Co. was convicted of purchasing and selling ozone depleting
refrigerant gas, which was illegally smuggled into the United States in violation of the Clean Air Act. The
sentence included a five-year probation for the business, a half-million-dollar criminal fine, and a fourhundred-thousand-dollar payment to a nonprofit organization. The company distributed this illegal
substance throughout the United States, which was an action condemned as undermining global
environmental efforts to reduce ozone damage for personal gain.

Blue-Collar Crime
Blue-collar crime is a generic term used to describe crimes that are not white-collar crimes. In business,
property crimes (rather than person crimes) are a primary concern. A property crime is a crime involving
damage to property, while a person crime is a crime involving the injury to a person’s body. Larceny is a

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major concern for many businesses. White-collar criminals are not the only ones who commit larceny. In
retail, for instance, primary loss prevention concerns include shoplifting. Shoplifting is a serious and
prevalent crime. Additionally, in any type of business, employee theft is a serious problem.
Last, vandalism is unauthorized property damage, and any business with a physical presence can become
the target of vandals.

KEY TAKEAWAYS
Crime is a very important consideration in the business world. White-collar crimes are particularly
insidious because white-collar criminals work from the inside, can be difficult to spot since they often hold
positions of trust, and use deception as their primary tool. Blue-collar crimes also pose substantial risk of
loss for businesses. Fraud, cybercrime, environmental crime, organized crime, and various forms of
property crimes are all serious threats to businesses. Crime carries high personal costs not only to the
individuals involved in the misconduct but also to society at large, including the corporations and others
who depend on those corporations.

EXERCISES
1.

Consider the video in Note 10.59 "Hyperlink: Too Good to Be True? Statistically Impossible
Returns" concerning Harry Markopolos’s use of statistical modeling to identify Bernie Madoff’s Ponzi
scheme. What role should statistical analysis and probability modeling have played in the regulatory
environment that could have identified the Madoff Ponzi scheme disaster earlier?

2.

How can businesses protect themselves from embezzlement? What are some specific strategies that could
be devised to ensure that bookkeepers or accountants do not skim money from the business?

3.

If you caught an employee stealing one dollar’s worth of office supplies, what would you do? What about
twenty five dollars’ worth of supplies? One hundred dollars’? One thousand? Should employees be trained
not to even take a pencil home? Would that type of training be worth the cost of the training itself?

4.

Check out Note 10.76 "Video Clip: Who Said Antitrust Is Boring? Not Hollywood!" to review some of the
convictions against corporations. Are penalties payable to nonprofit environmental organizations
appropriate penalties for corporate convictions for environmental crimes? Why or why not?

[1] 18 U.S.C. §1343.

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[2] FBI Press Release, “The Case Against Pfizer: A Record $2.3 Billion Settlement,” September 2,
2009, http://www.fbi.gov/page2/sept09/pfizer_settlement_090209.html(accessed September 27, 2010).
[3] 18 U.S.C. §1961(5).
[4] Sherman Act, 15 U.S.C. §1.
[5] Anne K. Bingeman and Gary R. Spratling, “Criminal Antitrust Enforcement” (joint address, Criminal Antitrust
Law and Procedure Workshop, American Bar Association Section of Antitrust Law, Dallas, TX, February 23,
1995),http://www.justice.gov/atr/public/speeches/0103.htm (accessed September 27, 2010).
[6] Computer Crime and Intellectual Property Section, United States Department of Justice, “Computer Fraud and
Abuse Act,”http://www.justice.gov/criminal/cybercrime/ccmanual/01ccma.html (accessed September 27, 2010).
[7] FTC v. Netscape Communications Corp., 196 F.R.D. 559, 560 (N.D. Cal. 2000).
[8] United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).
[9] United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).
[10] Computer Crime and Intellectual Property Section, United States Department of Justice, “Other Network
Crime Statutes, Unlawful Access to Stored Communications, 18 U.S.C. §2701, 8. Historical
Notes,”http://www.justice.gov/criminal/cybercrime/ccmanual/03ccma.html (accessed September 27, 2010).
[11] 18 U.S.C. §1028(a)(7) and 18 U.S.C. §1028A.
[12] 18 U.S.C. §1037.

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10.3 Minimizing Corporate Criminal Liability and Losses
Attributed to Crime
LEARNING OBJECTIVES
1.

Explore strategies for businesses to minimize criminal liability.

2.

Examine whistleblower protections.

Businesses can engage in affirmative actions to reduce criminal liability. Likewise, individuals do not
have to sit by passively if they know that criminal activity is afoot. This section addresses specific
strategies and laws that can help combat crime in the business world.
Businesses should conduct annual training sessions, such as ethics training, to help ensure good
workplace ethics. They should develop company-wide codes of ethics, which serve as the
organizational commitment to ethical behavior. This can go far toward developing a corporate
culture that values ethical behavior and condemns unethical actions, by providing leadership that
serves as positive role models for all employees. Some companies, such as Boeing, have instituted an
ethics hotline, which allows employees to anonymously report unethical behavior so that it can be
investigated. Additionally, federal sentencing guidelines in place for organizations state that
organizations that maintain a rigorous compliance program to detect and report violations of the
law, and voluntarily disclose those violations when they occur, are eligible for significantly reduced
sentences and fines.
Sometimes, of course, things still go wrong. A person who observes illegal behavior in the workplace
may choose not to participate in that illegal behavior. Such a person can even choose to become a
whistleblower. Whistleblowers are people who report the illegal activity of their employers or of their
organization to authorities. Typically, the whistleblowers have observed some wrongdoing that may
harm others, and they decide to “blow the whistle” to protect the potential victims or to simply stop
the wrongdoing.
Whistleblowers face many challenges in the workplace, not the least of which is the stigma associated
with blowing the whistle. Paradoxically, even though the whistleblower may be preventing harm to

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innocent people, other employees may view the whistleblower as someone who has betrayed the
organization. Because of this, whistleblowers are often placed in a terrible ethical dilemma, because
while they may observe wrongdoing, they may not feel comfortable in reporting the illegal activity.
They may fear losing their job or not being able to find a new job. Prospects of losing one’s status,
friends, or reputation can prevent many people from blowing the whistle, even though they may wish
the behavior to stop.
Whistleblower protection laws prohibit retaliatory action against whistleblowers. Some statutes
contain whistleblower protection provisions. For example, the Sarbanes-Oxley Act contains
whistleblower protection, but the statute is not entirely devoted to whistleblower protection. The
False Claims Act provides that anyone who blows the whistle on a federal contractor committing
fraud on the government can personally receive a portion of any amount recovered, up to 25 percent.
Despite these protections, many real-world whistleblowers have discovered that the laws are cold
comfort for the realities that face them after whistle is blown. Check out Note 10.93 "Hyperlink:
Whistleblower Law Blog", which lists many of the statutes under which whistleblower protections are
offered.

Hyperlink: Whistleblower Law Blog
Check out the links on the right side of the Web page below. These are categories of blog entries, but they
also represent a list of many federal whistleblower protections:
http://employmentlawgroupblog.com
Corporations can also avail themselves of safe harbor provisions in certain statutes. If they see criminal
behavior and realize that they may be implicated in the criminal behavior, they can report certain actions
to authorities, which will allow them to receive a lesser penalty, or no penalty at all. Only a few criminal
statutes have safe harbor provisions, however.

KEY TAKEAWAYS
Businesses can encourage ethical behavior in the workplace to help employees avoid illegal behavior
through training seminars, ethical leadership, and codes of ethics. Whistleblower protection laws and

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provisions prohibit retaliation against whistleblowers. However, whistleblowers often experience negative
consequences when they report the illegal activities of their organization to the authorities.

EXERCISES
1.

Find a corporate code of ethics by searching for “code of ethics” in your Internet browser. Is this a good
code of ethics? How could it be changed? Do you think the employees pay attention to it? How would you
ensure that your employees believed in and adopted your company’s code of ethics? Should employees
who do not follow the code of ethics, but who do not break any laws or company polices, be terminated?
Why or why not?

2.

Should whistleblowing be encouraged by businesses? Why or why not?

3.

Imagine a scenario in which you would choose to blow the whistle. How does that differ from a situation in
which you would not blow the whistle?

4.

Develop an outline of topics that you would present to employees to train them to be vigilant against
criminal behavior in your organization. How could you ensure that employees understood the training?

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10.4 Concluding Thoughts
Crime statistics in the United States illustrate the sobering reality that businesses must maintain
vigilance against criminal activities. Threats arise from the inside—from employees, officers,
directors, and employees—as well as from the outside, from professional or opportunistic criminals.
It makes good business sense to practice both offensive and defensive strategies to stave off these
threats. This can best be accomplished through proactive policies that encourage ethical behavior,
encourage whistleblowing, and create disincentives for violating the law in the form of company
policies, training programs, and codes of ethics.

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Chapter 11

Business Organizations
LEARNING OBJECTIVES
Businesses must be organized in order to effectively conduct their operations. This organization can run
from simple to complex and depends greatly on the needs of the business owners to structure their
liability and taxes. In this chapter, you’ll learn about the factors that go into organizing a business.
Specifically, you should be able to answer the following questions:
1.

What are the available entity choices when conducting business?

2.

What are the factors that determine entity selection?

3.

What are the traditional entity choices, and how are they different from each other?

Figure 11.1 Apple’s Headquarters in Cupertino, California

Source: Photo courtesy of kalleboo,http://www.flickr.com/photos/kalleboo/3614939469/sizes/o.

Many of you may be reading this chapter on a laptop or desktop designed and manufactured by
Apple Inc. You may own a phone from Apple, or perhaps a portable music device. The company’s
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innovation, product development process, marketing capabilities in creating new and unthought-of
markets, and ability to financially reward its owners are well known. While you might enjoy Apple
products as a consumer, have you ever thought about Apple as a corporation? Its corporate
headquarters in Cupertino, California (Figure 11.1 "Apple’s Headquarters in Cupertino, California"),
is the physical embodiment of this entity we call a corporation, but what does that mean? It might
surprise you to learn that this building, or rather the legal concept of the entity that occupies it, is
more like you than you realize. For example, just like you, this entity can own property. This entity
can enter into contracts to buy and sell goods. This entity can hire and fire employees. This entity can
open bank accounts and engage in complex financial transactions. This entity can sue others, and
can be sued in court. This entity even has constitutional rights, just like you. Unlike you, however,
this entity does not breathe, does not bleed, and in fact may be immortal. And most unlike you, this
entity has no independent judgment of its own, no moral compass or conscience to tell it the
difference between right and wrong. In this chapter we’ll explore corporate entities such as Apple
Inc. in detail. We’ll examine why human beings choose to organize into corporate entities in the first
place, and why the law recognizes these entities for public policy purposes. We’ll start by looking at
the factors that go into making a decision about entity choice, and then examine the available choices
in detail.
Try to recall the basic function of a business. At its most fundamental level, a business exists to make
a profit for its owners. In a capitalist market-driven economy, a business that fails to make a profit
ultimately ceases to exist, overtaken by creditors and competitors. The need to make a profit is one
truism that binds all businesses together, but beyond that, it’s hard to draw generalizations about
business operations. The world of business is as varied as human experience itself, ranging from the
neighborhood kids who shovel snow in the winter and sell lemonade in the summer, to the
neighborhood pizza restaurant, to the small tool-and-die factory on the outskirts of town making
machine tools, to the multinational corporation with hundreds of thousands of employees scattered
throughout the globe. Some businesses make things in factories (manufacturers), other businesses
sell things that other businesses make (retailers or franchisees), and still other businesses exist to
help both the makers and sellers make and sell better (business consultants). Some businesses don’t

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make things at all, and instead profit by selling their services (think of an accounting or law firm, a
house painting company, or a hotel) or by lending money at a higher rate of interest than it can
borrow.
With this breadth and diversity, it’s not surprising that there is no “one size fits all” approach to
choosing a business organization. When choosing what form of entity is best, business professionals
must consider several factors. First, they have to consider how much it costs to create the entity and
how hard it is to create. Some entities are easy to create, while others are more complicated and have
ongoing maintenance requirements that are important to consider. Second, they have to consider
how easy it is for the business to continue if the founder dies, decides to retire, or decides to enter a
new business altogether. Third, they have to consider how difficult it might be to raise money to grow
or expand the business. Fourth, they have to consider what sort of managerial control they wish to
keep on the business, and whether they are willing to cede control to outsiders. Fifth, they have to
consider whether or not they wish to eventually expand ownership to members of the public. Sixth,
they must give some thought to tax planning to minimize the taxes paid on earnings and income.
Finally, and most importantly, they have to consider whether or not they wish to protect their
personal assets from claims, a feature known as limited liability.
It’s important to remember that choosing a business organization is different from what kind of
business you run. For example, some businesses are known as franchises because they operate under
a license agreement (contract) whereby they agree to follow certain standards set by the franchisor,
purchase their goods from the franchisor, and maybe share either a royalty fee or percentage of
profits with the franchisor. Franchises are a very common type of business (especially in the food and
services industries), but there is no typical form of business for a franchise. Depending on the needs
of the franchise owners, a franchise could be a sole proprietorship, a limited liability company (LLC),
or a corporation. Similarly, we sometimes refer to “nonprofit organizations” such as universities or
charities as separate legal entities. Although they are nonprofit, some of these enterprises can be very
large, with complex operations that spread across borders (for example, the Red Cross or Doctors
Without Borders). For tax purposes, nonprofits do not have to pay any taxes if they meet strict
qualifications under IRS guidelines to become a “501(c)(3)” organization (named for the section of
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the Internal Revenue Code that grants nonprofit status), but from a legal perspective, these entities
can also take on any number of forms, from sole proprietorships to corporations.
If you are ever in a position to start a new business venture, your focus is typically on growing
revenue and cutting costs so that you can maximize profit. You may not be very concerned with
entity choice at the outset, since so many other considerations are competing for your attention.
Once an entity choice is made, however, it is difficult (but not impossible) to change to another
selection. Since entity choice can have a profound effect on these considerations, it is important to
gain a basic understanding of the available choices so that you, the business professional, can focus
on the business fundamentals rather than legal or accounting details.

Key Takeaways
Business organizations are an important part of a business’s structure. Different organizations provide
different advantages and disadvantages in creation cost and simplicity, ongoing maintenance
requirements, dissolution and continuity, fundraising, managerial control, public ownership, tax
planning, and limited liability. The type of business being conducted (for-profit, nonprofit, franchise) has
little to do with the business organization in which the business is conducted. Many business
organizations take the form of separate legal entities, which the law recognizes as nearly like persons for
purposes of legal rights.

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11.1 Sole Proprietorships
LEARNING OBJECTIVES
1.

Understand the importance of sole proprietorships in our economy.

2.

Explore the advantages presented by doing business as a sole proprietorship.

3.

Assess the disadvantages and dangers of doing business as a sole proprietorship.

Lily, a college sophomore, is home for the summer. Unable to find even part-time work in a tough
economy, she begins to help her parents by cleaning up their overgrown garden. After a few days of
this work, Lily discovers that she enjoys doing this and is good at it. The neighbors see the work Lily
is doing, and they ask her to help their gardens too. Within a week, Lily has scheduled appointments
and jobs throughout the neighborhood. Using the money she has earned, she places orders for
additional landscaping equipment and materials with a local retailer. Within a month, she is so busy
that she has to hire workers to do some of the more routine tasks, such as mulching and lawn
mowing, for her. By the middle of summer, Lily has applied knowledge she picked up in her business
classes by developing a name for her business (Lily’s Landscaping) and developing marketing
materials such as a Facebook fan page, flyers to be posted at local stores, business cards, and a
YouTube video showing her projects. By the end of the summer, Lily has earned a healthy profit for
all her work and developed valuable know-how on how to run her business. She has to stop working
when the weather gets cooler and she returns to school, but promises herself to restart the business
next summer.
Lily is a sole proprietor, the most common form of doing business in the United States. From a legal
perspective, there is absolutely no difference between Lily and Lily’s Landscaping—they are one and
the same, and completely interchangeable with each other. If Lily’s Landscaping makes a profit, that
money belongs exclusively to Lily. If Lily’s Landscaping needs to pay a bill to a supplier or creditor,
and Lily’s Landscaping doesn’t have the money, then Lily has to pay the bill. When Lily’s
Landscaping enters into a contract to plant a new flower garden, it is actually Lily that is entering
into the contract. If Lily’s Landscaping wants to open a bank account to accept customer payments or
to pay bills, then Lily will actually own the account. When Lily’s Landscaping enters into a contract
promising to pay a worker to mow lawns or lay mulch, it is actually Lily that is entering into that
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contract. Lily can even apply for a “doing business as” or d.b.a. filing in her state, so that her business
can carry on under the fictitious name “Lily’s Landscaping.” Note, however, that legally Lily’s
Landscaping is still no different from Lily herself. Any fictitious name therefore cannot have any
words in it that suggest a separate entity, such as “Corp.” or “Inc.”

Hyperlink: Doing Business As
http://www.business.gov/register/business-name/dba.html
The legal name for a sole proprietorship is the owner’s name. Some business owners are happy to use
their own names for their business, but for marketing and branding reasons many business owners prefer
to use a fictitious name. Using a fictitious name is permitted under state laws where the business operates,
using a filing known as a d.b.a. filing. Explore this Web site to find out how to file a d.b.a. filing in your
state.

There are many advantages to doing business as a sole proprietor, advantages that make this form of
doing business extremely popular. First, it’s easy to create a sole proprietorship. In effect, there is no
creation cost or time, since there is nothing to create. The entrepreneur in charge of the business
simply starts doing business, charging money, and providing goods or services. Depending on the
business, some sole proprietors may need to obtain permits or licenses before they can begin
operating. A pizza restaurant, for example, may need to obtain a food service license, while a bar or
tavern may need to obtain a liquor license. A small grocery store may need a license to collect sales
tax. Do not confuse these governmental permits with legal approval for a business organization; in a
sole proprietorship, the license is granted to the individual owner.
Another key advantage to sole proprietorships is autonomy. Since the owner is the business, Lily can
decide for herself what she wants to do to Lily’s Landscaping. She could set her own hours, grow as
quickly or slowly as she wants, expand into new lines of businesses, take a vacation, or wind down
the business, all at her own whim and direction. That autonomy also comes with total ownership of
the business’s finances. All the money that Lily’s Landscaping takes in, even if it is in a separate bank
account, belongs to Lily, and she can do with that money whatever she wants.

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These advantages must be weighed against some very important disadvantages. First, since a sole
proprietorship can have only one owner, it is impossible to bring in others to the business. Lily
cannot bring in her college roommate to work on Web site design as a partner in the business, for
example. In addition, since the business and the owner are identical, it is impossible to pass on the
business from Lily. If Lily dies, the business dies with her. Of course, she can always sell or give away
the business assets (equipment, inventory, as well as intangible assets such as customer lists and
goodwill).
Raising working capital can be a problem for sole proprietors, especially those early in their business
ventures. Many entrepreneurial ventures are built on great ideas but need capital to flourish and
develop. If the entrepreneur lacks individual wealth, then he or she must seek those funds from other
sources. For example, if Lily decides to expand her business and asks her wealthy uncle to invest
money in Lily’s Landscaping, there is no way for her uncle to participate as a profit-sharing owner in
the business. He can make a loan to her, or enter into a profit-sharing contract with her, but there is
no way for him to own any part of Lily’s Landscaping. Traditionally, most sole proprietors seek
funding from banks. Banks approach these loans just like any other personal loan to an individual,
such as a car loan or mortgage. Down payment requirements may be high, and typically the banks
require some form of personal collateral to guarantee the loan, even though the loan is to be used to
grow the business. Many sole proprietors resort to running their personal credit cards to the
maximum limit, or transferring balances between credit cards, in the early stage of their business.

Hyperlink: Small Businesses Squeezed as Banks Limit Lending
http://www.npr.org/templates/story/story.php?storyId=113816657
During the Great Recession, many banks faced a liquidity crisis as loans they made performed poorly.
Lending tightened, interest rates went up, credit lines went down, and standards became higher. The
effect on many sole proprietors, including those featured in this National Public Radio story, has been
very challenging.

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In certain industries, entrepreneurs may be able to find financing through venture capital. Venture
capital firms combine funds from institutional investors and high net-worth individuals (known
as angel investors) to identify promising start-ups, and to fund them in a private placement offering
until the start-up has developed its technology to a commercially feasible stage. At that point the
venture capital firm seeks an exit strategy, typically through offering sale of the business to the public
in an initial public offering (IPO).
Tax planning can also be challenging for the sole proprietor. Since there is no legal distinction
between the owner and the business, all the income generated by the business is treated as ordinary
personal income to the owner. The United States has several income tax rates depending on the type
of income being taxed, and ordinary personal income typically suffers the highest rate of taxation.
Being able to plan effectively to take advantage of lower income tax rates is very difficult for the sole
proprietor.
Finally, sole proprietors suffer from one hugely unattractive feature: unlimited liability. Since there is
no difference between the owner and the business, the owner is personally liable for all the business’s
debts and obligations. For example, let’s say that Lily’s Landscaping runs into some financial trouble
and is unable to generate planned revenue in a given month due to unexpectedly bad weather.
Creditors of the business include landscaping supply stores, employees, and outside contractors such
as the company that prints business cards and maintains the business Web site. Lily is personally
liable to pay these bills, and if she doesn’t she can be sued for breach of contract. Some proprietors
are very successful and can generate many hundreds of thousands of dollars in profit every year.
Unlimited liability puts all the personal assets of the sole proprietor reachable by creditors. Personal
homes, automobiles, boats, bank accounts, retirement accounts, and college funds—all are within
reach of creditors. With unlimited liability, all it takes is one successful personal injury lawsuit, not
covered by insurance or exceeding insurance limits, to wipe out years of hard work by an individual
business owner.

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For these reasons, while sole proprietors are still the most common way of doing business in the
United States, they are in many ways the most unattractive. Thankfully, modern business law creates
real and viable alternatives for sole proprietors, as we’ll discuss shortly.

KEY TAKEAWAYS
Sole proprietorships are the most common way of doing business in the United States. Legally, there is no
difference or distinction between the owner and the business. The legal name of the business is the
owner’s name, but owners may carry on business operations under a fictitious name by filing a d.b.a.
filing. Sole proprietors enjoy ease of start-up, autonomy, and flexibility in managing their business
operations. On the downside, they have to pay ordinary income tax on their business profits, cannot bring
in partners, may have a hard time raising working capital, and have unlimited liability for business debts.

EXERCISES
1.

Many household services professionals such as carpenters, plumbers, and electricians do business as sole
proprietors. If they make a promise to their customers that their work (not the products themselves) will
be free from defects for a certain period of time (i.e., a warranty), and then subsequently sell their
business assets to another individual, is the buyer bound by the promises made by the seller? Why or why
not?

2.

D.b.a. statutes prohibit sole proprietors from using certain words such as “company,” “Corp.” or “Inc.” in
their fictitious names. Why do you think this rule exists?

3.

If a sole proprietor dies suddenly, what do you think happens to the business run by the sole proprietor?

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11.2 Partnerships
LEARNING OBJECTIVES
1.

Learn about how general and limited partnerships are formed.

2.

Explore the major differences between general and limited partnerships.

3.

Understand major advantages and disadvantages to doing business as general or limited partnerships.

Let’s assume that after her first summer running Lily’s Landscaping, Lily decides that it’s time to
take her business to the next level. She has gathered a lot of expertise in running the operations in
her business, from placing orders with suppliers to scheduling workers for client projects. She
realizes, however, that she’s not very good at marketing or accounting, and that if her business is to
grow, she needs to bring someone on board who can create a strong brand and strategy for growth,
as well as keep good records of her accounts so that she can plan for the future. Fortunately, her good
friend Adam is a double major in accounting and marketing, and after a series of discussions, Adam
and Lily decide to run Lily’s Landscaping together.
Lily and Adam have formed ageneral partnership. The moment they agreed to run Lily’s Landscaping
together, and to share in the profits and losses of the business together, the partnership was formed.
Although they formed their partnership verbally, most general partnerships are formed formally,
with partners writing down their agreement in a special type of contract known as
the articles of partnership. The articles can set forth anything the partners wish to include about how
the partnership will be run. Normally, all general partners have an equal voice in management, but
as a creation of contract, the partners can modify this if they wish. As in a sole proprietorship, there
is no state involvement in creating a general partnership because there is no separation from the
business and the partners—they are legally the same.
General partnerships are dissolved as easily as they are formed. Since the central feature of a general
partnership is an agreement to share profits and losses, once that agreement ends, the general
partnership ends with it. In a general partnership with more than two persons, the remaining
partners can reconstitute the partnership if they wish, without the old partner. A common issue that
arises in this situation is how to value the withdrawing partner’s share of the business. Articles of
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partnership therefore typically include abuy/sell agreement, setting forth the agreement of the
partners on how to account for a withdrawing partner’s share, which the remaining partners then
agree to pay to the withdrawing partner (or the spouse or heir if the partner dies).

Hyperlink: A Law Firm Partner Is Fired
http://www.law.cornell.edu/nyctap/I96_0191.htm
After a nearly twenty-year career, Evan Dawson was a partner at a major New York City law firm, White &
Case. In 1988 the firm tried to persuade him to withdraw as a partner, but he refused. In July 1988 the
other partners in the firm voted to dissolve the partnership and then immediately re-formed again,
without Dawson as a partner. He had effectively been fired as a partner from a general partnership.
Dawson filed a suit against White & Case for an “accounting,” claiming that the “goodwill” of the law firm
should be part of the valuation of the partnership. The common law in New York at the time was that
professional partnerships like law firms have no goodwill. The reasoning behind the rule is that as
professionals, law firm partners develop and cultivate their own goodwill with clients, and if a partner
leaves the firm then the goodwill leaves with that partner. The New York Court of Appeals, in its opinion
on this case, held that unless the partnership agreement states otherwise, goodwill is indeed an asset of
the partnership and has to be distributed when the partnership is dissolved.

A general partnership is taxed just like a sole proprietorship. The partnership is considered
a disregarded entity for tax purposes, so income “flows through” the business to the partners, who
then pay ordinary income tax on the business income. The partnership may file
an information return, reporting total income and losses for the partnership, and how those profits
and losses are allocated among the general partners. As is the case for sole proprietors, tax planning
opportunities are limited for general partners.
General partnerships are also similar to sole proprietorships in unlimited liability. Every partner in
the partnership is jointly and severally liable for the partnership’s debts and obligations. This is a very
unattractive feature of general partnerships. One partner may be completely innocent of any
wrongdoing and still be liable for another partner’s malpractice or bad acts.

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Let’s assume that the general partnership formed by Lily and Adam flourishes and becomes
profitable. To grow the landscaping business, they want to bring in Lily’s wealthy uncle as a partner.
The uncle, however, is worried about maintaining limited liability. In most states, they can form
alimited partnership. A limited partnership has both general partners and limited partners. In this
case, Lily and Adam will remain as general partners in the business, but the uncle can become
a limited partner and enjoy limited liability. As a limited partner, the most he can lose is the amount
of his investment into the business, nothing more. Limited partnerships have to be formed in
compliance with state law, and limited partners are generally prohibited from participating in dayto-day management of the business.

KEY TAKEAWAYS
A general partnership is formed when two or more persons agree to share profits and losses in a joint
business venture. A general partnership is not a separate legal entity, and partners are jointly and severally
liable for the partnership’s debts, including acts of malpractice by other partners. Income from a general
partnership flows through to the partners, who pay tax at the ordinary personal income tax rate. In most
states general partners can also bring in limited partners, creating a limited partnership. Limited
partnerships must be formed in compliance with state statutes. Limited partners enjoy limited liability but
generally cannot participate in day-to-day management of the business.

EXERCISES
1.

John approaches his friend Kevin and offers Kevin 50 percent of the profits from his new online venture if
Kevin designs the Web site for the venture. Kevin says nothing, and later that night begins work on the
Web site, which he then sends to John for his approval. Have John and Kevin formed a general
partnership? Why or why not?

2.

Do you think it’s ethical for a general partnership to fire a partner by dissolving the partnership and then
re-forming without the dismissed partner? Why or why not?

3.

Do modern professional firms such as law firms or accounting firms face the same problems as White &
Case did in Note 11.24 "Hyperlink: A Law Firm Partner Is Fired"? Why or why not?

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11.3 Corporations
LEARNING OBJECTIVES
1.

Learn about the advantages and disadvantages of corporations.

2.

Study roles and duties of shareholders, directors, and officers in corporations.

3.

Explore issues surrounding corporate governance.

4.

Understand how corporations are taxed.

Figure 11.4 Apple Cofounder Steve Jobs

Source: Photo courtesy of acaben, http://www.flickr.com/photos/acaben/541334636/sizes/o.

So far in this chapter, we have explored sole proprietorships and partnerships, two common and
relatively painless ways for persons to conduct business operations. Both these forms of business
come with significant disadvantages, however, especially in the area of liability. The idea that
personal assets may be placed at risk by business debts and obligations is rightfully scary to most
people. Businesses therefore need a form of business organization that provides limited liability to
owners and is also flexible and easy to manage. That is where the modern corporation comes in.

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Consider, for example, tech entrepreneur and Apple cofounder Steve Jobs (Figure 11.4 "Apple
Cofounder Steve Jobs"). As a young man, he was a college dropout without much ability for
computer engineering. If doing business as a sole proprietor was his only option, Apple would not
exist today. However, Jobs met a talented computer engineer named Steve Wozniak, and the two
decided to pool their talents to form Apple Computer in1976. A year later, the company
was incorporated and in 1980 went public in an initial public offering (IPO). Incorporation allowed
Jobs much more flexibility in carrying out business operations than a mere sole proprietorship
could. It allowed him to bring in other individuals with distinct skills and capabilities, raise money in
the early stage of operations by promising shares in the new company, and eventually become very
wealthy by selling stock, or securities, in the company.

Hyperlink: Great Things in Business
http://cnettv.cnet.com/60-minutes-steve-jobs/9742-1_53-50004696.html
Sole proprietorships are limiting not just in a legal sense but also in a business sense. As Steve Jobs points
out in this video, great things in business are never accomplished with just one person; they are
accomplished with a team of people. While Jobs may have had the vision to found Apple Inc. and
maintains overall strategic leadership for the company, the products the company releases today are very
much the result of the corporation, not any single individual.

Unlike a sole proprietorship or general partnership, a corporation is a separate legal entity, separate
and distinct from its owners. It can be created for a limited duration, or it can have perpetual
existence. Since it is a separate legal entity, a corporation has continuity regardless of its owners.
Entrepreneurs who are now dead founded many modern companies, and their companies are still
thriving. Similarly, in a publicly traded company, the identity of shareholders can change many times
per hour, but the corporation as a separate entity is undisturbed by these changes and continues its
business operations.
Since corporations have a separate legal existence and have many legal and constitutional rights,
they must be formed in compliance with corporate law. Corporate law is state law, and corporations

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are incorporated by the states; there is no such thing as a “U.S. corporation.” Most corporations
incorporate where their principal place of business is located, but not all do. Many companies choose
to incorporate in the tiny state of Delaware even though they have no business presence there, not
even an office cubicle. Delaware chancery courts have developed a reputation for fairly and quickly
applying a very well-developed body of corporate law in Delaware. The courts also operate without a
jury, meaning that disputes heard in Delaware courts are usually predictable and transparent, with
well-written opinions explaining how the judges came to their conclusions.

Hyperlink: How to Incorporate in Your State
http://www.business.gov/register/incorporation
Since corporations are created, or chartered, under state law, business founders must apply to their
respective state agencies to start their companies. These agencies are typically located within the Secretary
of State. Click the link to explore how to fill out the forms for your state to start a company. You may be
surprised at how quickly, easily, and inexpensively you can form your own company! Don’t forget that
your company name must not be the same as another company’s name. (Most states allow you to do a
name search first to ensure that name is available.)

To start a corporation, the corporate founders must file the articles of incorporation with the state
agency charged with managing business entities. These articles of incorporation may vary from state
to state but typically include a common set of questions. First, the founders must state the name of
the company and whether the company is for-profit or nonprofit. The name has to be unique and
distinctive, and must typically include some form of the words “Incorporated,” “Company,”
“Corporation,” or “Limited.” The founders must state their identity, how long they wish the company
to exist, and the company’s purpose. Under older common law, shareholders could sue a company
that conducted business beyond the scope of its articles (these actions are called ultra vires), but most
modern statutes permit the articles to simply state the corporation can carry out “any lawful actions,”
effectively rendering ultra vires lawsuits obsolete in the United States. The founders must also state
how many shares the corporation will issue initially, and the par value of those shares. (Of course, the
company can issue more shares in the future or buy them back from shareholders.)
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Unlike sole proprietorships, corporations can be quite complicated to manage and typically require
attorneys and accountants to maintain corporate books in good order. In addition to the foundation
requirements, corporate law requires ongoing annual maintenance of corporations. In addition to
filing fees due at the time of incorporation, there are typically annual license fees, franchise fees and
taxes, attorney fees, and fees related to maintaining minute books, corporate seals, stock certificates
and registries, as well as out-of-state registration. A domestic corporation is entitled to operate in its
state of incorporation but must register as a foreign corporation to do business out of state. Imagine
filing as a foreign corporation in all fifty states, and you can see why maintaining corporations can
become expensive and unwieldy.

Video Clip: Monstrous Obligations
Video Clip: The Pathology of Commerce
Owners of companies are called shareholders. Corporations can have as few as one shareholder or as
many as millions of shareholders, and those shareholders can hold as few as one share or as many as
millions of shares. In aclosely held corporation, the number of shareholders tends to be small, while in
a publicly traded corporation, the body of shareholders tends to be large. In a publicly traded
corporation, the value of a share is determined by the laws of supply and demand, with various
markets or exchanges providing trading space for buyers and sellers of certain shares to be traded.
It’s important to note that shareholders own the share or stock in the company but have no legal
right to the company’s assets whatsoever. As a separate legal entity, the company owns the property.
Shareholders of a corporation enjoy limited liability. The most they can lose is the amount of their
investment, whatever amount they paid for the shares of the company. If a company is unable to pay
its debts or obligations, it may seek protection from creditors in bankruptcy court, in which case
shareholders lose the value of their stock. Shareholders’ personal assets, however, such as their own
homes or bank accounts, are not reachable by those creditors.
Shareholders can be human beings or can be other corporate entities, such as partnerships or
corporations. If one corporation owns all the stock of another corporation, the owner is said to be a
parent company, while the company being owned is a wholly owned subsidiary. A parent company
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that doesn’t own all the stock of another company might call that other company an affiliate instead
of a subsidiary. Many times, large corporations may form subsidiaries for specific purposes, so that
the parent company can have limited liability or advantageous tax treatment. For example, large
companies may form subsidiaries to hold real property so that premises liability is limited to that real
estate subsidiary only, shielding the parent company and its assets from tort lawsuits. Companies
that deal in a lot of intellectual property may form subsidiaries to hold their intellectual property,
which is then licensed back to the parent company so that the parent company can deduct royalty
payments for those licenses from its taxes. This type of sophisticated liability and tax planning makes
the corporate form very attractive for larger business in the United States.
Corporate law is very flexible in the United States and can lead to creative solutions to business
problems. Take, for example, the case of General Motors Corporation. General Motors Corporation
was a well-known American company that built a global automotive empire that reached virtually
every corner of the world. In 2009 the General Motors Corporation faced an unprecedented threat
from a collapsing auto market and a dramatic recession, and could no longer pay its suppliers and
other creditors. The U.S. government agreed to inject funds into the operation but wanted the
company to restructure its balance sheet at the same time so that those funds could one day be
repaid to taxpayers. The solution? Form a new company, General Motors Company, the “new GM.”
The old GM was brought into bankruptcy court, where a judge permitted the wholesale cancellations
of many key contracts with suppliers, dealers, and employees that were costing GM a lot of money.
Stock in the old GM became worthless. The old GM transferred all of GM’s best assets to new GM,
including the surviving brands of Cadillac, Chevrolet, Buick, and GMC; the plants and assets those
brands rely on; and the shares in domestic and foreign subsidiaries that new GM wanted to keep. Old
GM (subsequently renamed as “Motors Liquidation Company”) kept all the liabilities that no one
wanted, including obsolete assets such as shuttered plants, as well as unpaid claims from creditors.
The U.S. federal government became the majority shareholder of General Motors Company, and may
one day recoup its investment after shares of General Motors Company are sold to the public. To the
public, there is very little difference in the old and new GM. From a legal perspective, however, they
are totally separate and distinct from each other.

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One exception to the rule of limited liability arises in certain cases mainly involving closely held
corporations. Many sole proprietors incorporate their businesses to gain limited liability but fail to
realize when they do so that they are creating a separate legal entity that must be respected as such.
If sole proprietors fail to respect the legal corporation with an arm’s-length transaction, then creditors
can ask a court to pierce the corporate veil. If a court agrees, then limited liability disappears and
those creditors can reach the shareholder’s personal assets. Essentially, creditors are arguing that the
corporate form is a sham to create limited liability and that the shareholder and the corporation are
indistinguishable from each other, just like a sole proprietorship. For example, if a business owner
incorporates the business and then opens a bank account in the business name, the funds in that
account must be used for business purposes only. If the business owner routinely “dips into” the
bank account to fund personal expenses, then an argument for piercing the corporate veil can be
easily made.
Not all shareholders in a corporation are necessarily equal. U.S. corporate law allows for the creation
of different types, or classes, of shareholders. Shareholders in different classes may be given
preferential treatment when it comes to corporate actions such as paying dividends or voting at
shareholder meetings. For example, founders of a corporation may reserve a special class of stock for
themselves with preemptive rights. These rights give the shareholders the right of first refusal if the
company decides to issue more stock in the future, so that the shareholders maintain the same
percentage ownership of the company and thus preventing dilution of their stock.
A good example of different classes of shareholders is in Ford Motor Company stock. The global
automaker has hundreds of thousands of shareholders, but issues two types of stock: Class A for
members of the public and Class B for members of the Ford family. By proportion, Class B stock is
far outnumbered by Class A stock, representing less than 10 percent of the total issued stock of the
company. However, Class B stock is given 40 percent voting rights at any shareholder meeting,
effectively allowing holders of Class B stock (the Ford family) to block any shareholder resolution
that requires two-thirds approval to pass. In other words, by creating two classes of shareholders, the
Ford family continues to have a strong and decisive voice on the future direction of the company
even though it is a publicly traded company.
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Shareholder rights are generally outlined in a company’s articles of incorporation or bylaws. Some of
these rights may include the right to obtain a dividend, but only if the board of directors approves
one. They may also include the right to vote in shareholder meetings, typically held annually. It is
common in large companies with thousands of shareholders for shareholders to not attend these
meetings and instead cast their votes on shareholder resolutions through the use of a proxy.

Video Clip: Activist Shareholders at Wal-Mart
Under most state laws, including Delaware’s business laws, shareholders are also given a unique
right to sue a third party on behalf of the corporation. This is called
a shareholder derivative lawsuit (so called because the shareholder is suing on behalf of the
corporation, having “derived” that right by virtue of being a shareholder). In essence, a shareholder
is alleging in a derivative lawsuit that the people who are ordinarily charged with acting in the
corporation’s best interests (the officers and directors) are failing to do so, and therefore the
shareholder must step in to protect the corporation. These lawsuits are very controversial because
they are typically litigated by plaintiffs’ lawyers working on contingency fees and can be very
expensive for the corporation to litigate. Executives also disfavor them because oftentimes,
shareholders sue the corporate officers or directors themselves for failing to act in the company’s
best interest.
One of the most important functions for shareholders is to elect the board of directors for a
corporation. Shareholders always elect a director; there is no other way to become a director. The
board is responsible for making major decisions that affect a corporation, such as declaring and
paying a corporate dividend to shareholders; authorizing major new decisions such as a new plant or
factory or entry into a new foreign market; appointing and removing corporate officers; determining
employee compensation, especially bonus and incentive plans; and issuing new shares
and corporate bonds. Since the board doesn’t meet that often, the board can delegate these tasks to
committees, which then report to the board during board meetings.
Shareholders can elect anyone they want to a board of directors, up to the number of authorized
board members as set forth in the corporate documents. Most large corporations have board
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members drawn from both inside and outside the company. Outside board members can be drawn
from other private companies (but not competitors), former government officials, or academe. It’s
not unusual for the chief executive officer (CEO) of the company to also serve as chair of the board of
directors, although the recent trend has been toward appointing different persons to these functions.
Many shareholders now actively vie for at least one board seat to represent the interests of
shareholders, and some corporations with large labor forces reserve a board seat for a union
representative.
Board members are given wide latitude to make business decisions that they believe are in the best
interest of the company. Under the business judgment rule, board members are generally immune
from second-guessing for their decisions as long as they act in good faith and in the corporation’s
best interests. Board members owe a fiduciary duty to the corporation and its shareholders, and
therefore are presumed to be using their best business judgment when making decisions for the
company.
Shareholders in derivative litigation can overcome the business judgment rule, however. Another
fallout from recent corporate scandals has been increased attention to board members and holding
them accountable for actually managing the corporation. For example, when WorldCom fell into
bankruptcy as a result of profligate spending by its chief executive, board members were accused of
negligently allowing the CEO to plunder corporate funds. Corporations pay for insurance for board
members (known as D&O insurance, for directors and officers), but in some cases D&O insurance
doesn’t apply, leaving board members to pay directly out of their own pockets when they are sued. In
2005 ten former outside directors for WorldCom agreed to pay $18 million out of their own pockets
to settle shareholder lawsuits.
One critical function for boards of directors is to appoint corporate officers. These officers are also
known as “C-level” executives and typically hold titles such as chief executive officer, chief operating
officer, chief of staff, chief marketing officer, and so on. Officers are involved in everyday decision
making for the company and implementing the board’s strategy into action. As officers of the
company, they have legal authority to sign contracts on behalf of the corporation, binding the

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corporation to legal obligations. Officers are employees of the company and work full-time for the
company, but can be removed by the board, typically without cause.
In addition to being somewhat cumbersome to manage, corporations possess one very unattractive
feature for business owners: double taxation. Since corporations are separate legal entities, taxing
authorities consider them as taxable persons, just like ordinary human beings. A corporation doesn’t
have a Social Security number, but it does have an Employer Identification Numbers (EIN), which
serves the same purpose of identifying the company to tax authorities. As a separate legal entity,
corporations must pay federal, state, and local tax on net income (although the effective tax rate for
most U.S. corporations is much lower than the top 35 percent income tax rate). That same pile of
profit is then subject to tax again when it is returned to shareholders as a dividend, in the form of a
dividend tax.

One way for closely held corporations (such as small family-run businesses) to avoid the double
taxation feature is to elect to be treated as an S corporation. An S corporation (the name comes from
the applicable subsection of the tax law) can choose to be taxed like a partnership or sole
proprietorship. In other words, it is taxed only once, at the shareholder level when a dividend is
declared, and not at the corporate level. Shareholders then pay personal income tax when they
receive their share of the corporate profits. An S corporation is formed and treated just like any other
corporation; the only difference is in tax treatment. S corporations provide the limited liability
feature of corporations but the single-level taxation benefits of sole proprietorships by not paying
any corporate taxes. There are some important restrictions on S corporations, however. They cannot
have more than one hundred shareholders, all of whom must be U.S. citizens or resident aliens; can
have only one class of stock; and cannot be members of an affiliated group of companies. These
restrictions ensure that “S” tax treatment is reserved only for small businesses.

KEY TAKEAWAYS
A corporation is a separate legal entity. Owners of corporations are known as shareholders and can range
from a few in closely held corporations to millions in publicly held corporations. Shareholders of
corporations have limited liability, but most are subject to double taxation of corporate profits. Certain
small businesses can avoid double taxation by electing to be treated as S corporations under the tax laws.
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State law charters corporations. Shareholders elect a board of directors, who in turn appoint corporate
officers to manage the company.

EXERCISES
1.

Henry Ford (Ford Motor Company), Ray Croc (McDonald’s), and Levi Strauss (Levi’s) were all entrepreneurs
who decided to incorporate their businesses and in doing so created long-lasting legacies that outlive
them. Why do you think these entrepreneurs were motivated to incorporate when incorporation meant
giving up control of their companies?

2.

Some corporations are created for just a limited time. Can you think of any strategic reasons why founders
would create a corporation for just a limited time?

3.

Recently some companies have come under fire for moving their corporate headquarters out of the
country to tax havens such as Bermuda or Barbados. Which duty do you believe is higher, the duty of
corporations to pay tax to government or the duty of corporations to pay dividends to shareholders?
Why?

4.

Some critics believe that the corporate tax code is a form of welfare, since many U.S. corporations make
billions of dollars and don’t pay any tax. Do you believe this criticism is fair? Why or why not?

5.

It is very easy to start a corporation in the United States. Take a look at how easy it is to start a corporation
in China or India. Do you believe there is a link between ease of starting businesses and overall economic
efficiency?

6.

Do you agree with filmmaker Achbar that a corporation might be psychopathic? What do you think the
ethical obligations of corporations are? Discuss.

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11.4 Limited Liability Entities
LEARNING OBJECTIVES
1.

Learn about the development of limited liability entities.

2.

Explore how limited liability entities are created.

3.

Understand why limited liability entities are now heavily favored.

By now you should understand how easy yet dangerous it is to do business as a sole proprietor, and
why many business organizations are drawn to the corporation as a form for doing business. As
flexible as the corporation is, however, it is probably best suited for larger businesses. Annual
meeting requirements, the need for directors and officers, and the unattractive taxation features
make corporations unwieldy and expensive for smaller businesses. A form of business organization
that provides the ease and simplicity of sole proprietorships, but the limited liability of corporations,
would be much better suited for a wide range of business operations.
A limited liability company (LLC) is a good solution to this problem. LLCs are a “hybrid” form of
business organization that offer the limited liability feature of corporations but the tax benefits of
partnerships. Owners of LLCs are called members. Just like a sole proprietorship, it is possible to
create an LLC with only one member. LLC members can be real persons or they can be other LLCs,
corporations, or partnerships. Compared to limited partnerships, LLC members can participate in
day-to-day management of the business. Compared to S corporations, LLC members can be other
corporations or partnerships, are not restricted in number, and may be residents of other countries.
Taxation of LLCs is very flexible. Essentially, every tax year the LLC can choose how it wishes to be
taxed. It may want to be taxed as a corporation, for example, and pay corporate income tax on net
income. Or it may choose instead to have income “flow through” the corporate form to the membershareholders, who then pay personal income tax just as in a partnership. Sophisticated tax planning
becomes possible with LLCs because tax treatment can vary by year.
LLCs are formed by filing the articles of organization with the state agency charged with chartering
business entities, typically the Secretary of State. Starting an LLC is often easier than starting a

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corporation. In fact, you might be startled at how easy it is to start an LLC; typical LLC statutes
require only the name of the LLC and the contact information for the LLC’s legal agent (in case
someone decides to file a lawsuit against the LLC). In most states, forming an LLC can be done by
any competent business professional without any legal assistance, for minimal time and cost. Unlike
corporations, there is no requirement for an LLC to issue stock certificates, maintain annual filings,
elect a board of directors, hold shareholder meetings, appoint officers, or engage in any regular
maintenance of the entity. Most states require LLCs to have the letters “LLC” or words “Limited
Liability Company” in the official business name. Of course, LLCs can also file d.b.a. filings to
assume another name.
Although the articles of organization are all that is necessary to start an LLC, it is advisable for the
LLC members to enter into a written LLCoperating agreement. The operating agreement typically sets
forth how the business will be managed and operated. It may also contain a buy/sell agreement just
like a partnership agreement. The operating agreement allows members to run their LLCs any way
they wish to, but it can also be a trap for the unwary. LLC law is relatively new compared to
corporation law, so the absence of an operating agreement can make it very difficult to resolve
disputes among members.
LLCs are not without disadvantages. Since they are a separate legal entity from their members,
members must take care to interact with LLCs at arm’s length, because the risk of piercing the veil
exists with LLCs as much as it does with corporations. Fundraising for an LLC can be as difficult as it
is for a sole proprietorship, especially in the early stages of an LLC’s business operations. Most
lenders require LLC members to personally guarantee any loans the LLC may take out. Finally, LLCs
are not the right form for taking a company public and selling stock. Fortunately, it is not difficult to
convert an LLC into a corporation, so many start-up business begin as LLCs and eventually convert
into corporations prior to their initial public offering (IPO).
A related entity to the LLC is the limited liability partnership, or LLP. Be careful not to confuse
limited liability partnerships with limited partnerships. LLPs are just like LLCs but are designed for
professionals who do business as partners. They allow the partnership to pass through income for tax

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purposes, but retain limited liability for all partners. LLPs are especially popular with doctors,
architects, accountants, and lawyers. Most of the major accounting firms have now converted their
corporate forms into LLPs.

KEY TAKEAWAYS
The limited liability company (LLC) represents a new trend toward business organization. It allows owners,
called members, to have limited liability just like corporations. Unlike corporations, however, LLCs can
avoid double taxation by choosing to be taxed like a partnership or sole proprietorship. Unless a business
wishes to become publicly traded on a stock exchange, the LLC is probably the most flexible, most
affordable, and most compatible form for doing business today. The limited liability partnership (LLP) is
similar to the LLC, except it is designed for professionals such as accountants or lawyers who do business
as partners.

EXERCISES
1.

Most small businesses in the United States are still run as sole proprietorships. Why do you think these
businesses have not converted to the LLC form?

2.

Take a look at some of the brands and businesses you are most familiar with. How many of them do
business as an LLC?

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11.5 Concluding Thoughts
Most economists and public policy officials believe that the American economy is a key anchor to
American society and values. Private enterprise and the profit motive allow innovation and
entrepreneurship to flourish, leading to prosperity and peace. Underlying the strength of American
business enterprises is a flexible and easy-to-manage legal system that allows business owners many
options in choosing how to organize their operations. The sole proprietorship, which provides
autonomy and ease in creation, is a dangerous form to do business because of unlimited liability. The
general partnership allows business partners to do business together but similarly carries unlimited
liability. The corporation provides limited liability for its owners but can be unwieldy and
cumbersome to manage, with numerous technical requirements in creation and ongoing
management. Limited liability entities, such as the limited liability company and limited liability
partnership, provide the most flexible choice for doing business, multiple options for tax planning,
and limited liability for owners.

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Chapter 12

Employment Discrimination
LEARNING OBJECTIVES
Great strides have been made in recent decades in eliminating the smears of discrimination from many
facets of society such as voting rights, property ownership, and education. In the workplace, however,
systematic discrimination continues to take its toll on many. This chapter explores workplace
discrimination and examines the legal remedies available to those who believe they may be victims of
discrimination. After reading this chapter, you should be able to answer the following questions:
1.

What are the various civil rights statutes that govern employment discrimination?

2.

What legal theories govern recovery discrimination lawsuits?

3.

How can businesses steer clear of liability for discrimination?

Figure 12.1 An Abercrombie & Fitch Billboard in New York City

Source: Photo courtesy of FaceMePLS,http://www.flickr.com/photos/faceme/2536281153.

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Figure 12.1 "An Abercrombie & Fitch Billboard in New York City" shows a billboard for Abercrombie
& Fitch (or A&F, as it’s sometimes known), a clothing retailer. The Columbus, Ohio–based company
generates nearly $2 billion in sales annually by selling clothes in retail locations throughout North
America, Europe, and Asia. As the billboard suggests, A&F’s marketing concept (which it calls
“Casual Luxury”) is based heavily on portraying a certain image. How would you characterize that
image? If you used adjectives like athletic, young, all-American, sexy, or attractive, you would be
correctly identifying the company’s strategy. The strategy works as it has helped the company
generate hundreds of millions in profits for its shareholders.
A&F relies on a message that boils down to convincing its young consumers that by wearing A&F
clothing, they will also be young, athletic, and attractive. If consumers don’t believe that message,
they will likely abandon the brand for another in this hugely competitive segment. To maintain the
authenticity of that marketing message, A&F rigorously hires only models that fit a certain image in
print and Web advertising. It extends this practice to store workers so that any time a customer
interacts with A&F, that brand image is reinforced.
Is it illegal for A&F to hire only “attractive” people to work in its stores? The answer is no, just as it’s
not illegal for Vogue magazine to hire only attractive models, or for a cosmetics company to hire only
salespeople with clear skin. Under the employment-at-will doctrine, workers in the United States are
free to work for whomever they want to (or not work at all), and employers are free to hire whomever
they want to, and fire them at will. The vast majority of workers in the United States are covered by
the at-will doctrine.
If you came in to work with green hair, you could be fired. If you came in to work with a visible body
piercing or tattoo, you could be fired. If you get into an argument with your boss about whether
baseball or basketball is a better sport, you could get fired. Companies can fire workers for smoking
cigarettes, even at home. Companies can fire employees who say anything disparaging or negative
about their bosses or the company, even on a private Facebook page. Narrow exceptions lie in the
law, such as a company that enters into a written contract to hire a worker for a specified period of
time. (Even then, many employment contracts specify at-will status for the worker.) If A&F wishes to

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engage in “looks-based” discrimination and refuses to hire workers who are overweight, ugly, or have
pimples, then it is free to do so under U.S. law.
A problem arises, however, if “all-American casual luxury” starts to suspiciously become another way
to say “all-white.” Many of A&F’s competitors, such as Gap, Aéropostale, American Eagle, and J.
Crew, market their clothes on a similar “all-American” theme, but their models and store workers
tend to look more diverse than those at A&F. If A&F is using its “beautiful people only” marketing to
hide a more sinister plan to discriminate against racial minorities, then A&F is breaking the law.

Hyperlink: Abercrombie & Fitch Settles Discrimination Suit
http://www.npr.org/templates/story/story.php?storyId=4174147
In 2004 several former workers at A&F as well as job applicants denied employment filed a lawsuit
against A&F for racial discrimination. The company paid $50 million to settle the claim and hired a vice
president for diversity.

Discrimination, then, is not always illegal. A&F can discriminate against ugly people and Vogue can
discriminate against fat people. When is discrimination illegal? Under what circumstances can
employers draw lines of classification within the general population? When does a person fall into
a protected class that the law recognizes? What must a disappointed worker be able to prove to
demonstrate illegal discrimination? In this chapter we’ll explore these issues so that as future
business professionals, you’ll have a sense of what you can and cannot do when it comes to hiring,
managing, and firing employees.

Key Takeaways
Workers in the United States are hired and fired at will, meaning they can be hired or fired for any reason
and at any time. Workers in a protected class may be protected if they can demonstrate that they were
discriminated against because they were members of a protected class.

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12.1 Overview of Title VII of the Civil Rights Act of 1964
LEARNING OBJECTIVES
1.

Learn about the history of the Civil Rights Act.

2.

Understand who has to comply with the Civil Rights Act.

3.

Explore what employment practices are protected by the Civil Rights Act.

4.

Study the procedures involved with the Equal Employment Opportunity Commission.

Hyperlink: Kennedy Calls for Legislative Action on Civil Rights
http://www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Speeches/JFK/003POF03Ci
vilRights06111963.htm
On June 11, 1963, President John F. Kennedy delivered a speech to the nation describing the peaceful
resolution to a tense standoff in Alabama after a federal court ordered the admission of two black students
to the University of Alabama. He used the occasion to rail against continued discrimination against
African Americans a century after the Civil War. “Next week I shall ask the Congress to act, to make a
commitment it has not fully made in this century to the proposition that race has no place in American life
or law…I am asking Congress to enact legislation giving all Americans the right to be served in facilities
which are open to the public—hotels, restaurants, retail stores, and similar establishments. This seems to
me to be an elementary right. Its denial is an arbitrary indignity that no American in 1963 should have to
endure, but many do.” You can listen to the entire speech, and read the transcript of the speech, through
the hyperlink.
Figure 12.2

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President John F. Kennedy made passage of the Civil Rights Act a key part of his presidency.

Source: Photo courtesy of Abbie Rowe, National Park
Service,http://www.jfklibrary.org/Asset+Tree/Asset+Viewers/Image+Asset+Viewer.htm?guid={0AFA0FD79DBA-4467- B051-44A6DD69C48A}&type=Image.

In 1963 President Kennedy called for the passage of a sweeping civil rights bill in response to
intransigent racial segregation. The bill was vehemently opposed by many in Congress, including
avowed segregationists who saw the bill as an intrusion on states’ rights. Kennedy was assassinated
before he could see the bill passed into law, but his successor President Johnson carried Kennedy’s
wish forward through aggressive lobbying of Congress to pass the bill. At its core, the bill was
designed to integrate African Americans into the mainstream of American society. Today, the Civil

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Rights Act of 1964 has broad significance for all racial minorities, religious organizations, and
women.
The bill has several provisions, but the most important for businesses is known widely as “Title VII.”
It applies to employers with more than fifteen employees. It eliminates job discrimination on the
basis of


race,



color,



religion,



sex,



national origin.

Any act of discrimination on any of these bases is illegal. These acts may be a refusal to hire, a
discharge or termination, a temporary layoff or retrenchment, compensation, an opportunity for
advancement, or any other term or condition of employment. For example, employers are not
permitted to maintain all-white or all-black work crews even if they can demonstrate that doing so is
good for business or morale. Title VII also prohibits acts of retaliation against anyone who complains
about, or participates in, any employment discrimination complaint. Employers need to be very
careful about this provision, because while the employer may be innocent of the first charge of
discrimination, taking any subsequent action after an employee has complained can be a separate
charge of discrimination. Once an employee has made a complaint of discrimination, it is very
important that the employer not alter any condition of his or her employment until the complaint
has been resolved.
The law does, however, allow discrimination on religion, sex, and national origin if there is
a bona fide occupational qualification (BFOQ)reasonably necessary for normal business operations.
For example, a Jewish synagogue may restrict hiring of rabbis to Jewish people only, and a Catholic
church can restrict hiring priests to Catholic men only. A nursing home that caters exclusively to
elderly women and is hiring personal assistants to help the patients with personal hygiene and
dressing may restrict hiring to women only as a BFOQ. Victoria’s Secret can legally discriminate
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against men in finding models to advertise and market their products. A movie producer can legally
discriminate between men and women when casting for certain roles such as a woman to play Bella
and a man to play Edward in the popular Twilight series. Since BFOQ discrimination extends to
national origin, a play producer casting for a role that specifically calls for a Filipino can legally
restrict hiring to Filipinos only. A gentlemen’s club can hire women only as a BFOQ.
Managers should be very careful in applying BFOQ discrimination. It is an exception that is very
much based on individual cases and subject to strict interpretation. The BFOQ must be directly
related to an essential job function to be “bona fide.” Customer preference is not a basis for BFOQ.
For example, a taxi company cannot refuse to hire women as taxi drivers even if the company claims
that customers overwhelmingly prefer male drivers, and airlines cannot refuse to hire men even if
surveys show customers prefer female flight attendants.

Hyperlink: Men and Hooters
http://www.time.com/time/magazine/article/0,9171,987169,00.html
The Hooters restaurant chain hires scantily clad women exclusively as servers, refusing to hire men for
that role. Men are hired for other roles such as kitchen staff and hosts. In 1997 a group of men sued
Hooters for sex discrimination. Without admitting any wrongdoing, Hooters settled the claim. Hooters
says that its policy of hiring only women to act as servers is a bona fide occupational qualification. What
do you think?
Hooters has also been accused by women’s groups of only hiring women who fit a certain profile that
discriminates against anyone who management deems to be unattractive or overweight. Do you believe
Hooters should be able to take these factors into account when making hiring decisions?

Note that race and color are not on the list of acceptable BFOQs. This means that in passing the law,
Congress made a determination that there is no job in the United States where race or color is a bona
fide occupational qualification. A country-and-western-themed restaurant, for example, may not hire
only white people as wait staff.

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Title VII creates only five protected classes. Various other federal and state laws, discussed
in Chapter 12 "Employment Discrimination", Section 12.3 "Other Federal Antidiscrimination Laws",
create other protected classes. Many other classes, such as weight, attractiveness, and height, are not
on the list of protected classes. Contrary to popular belief, there is also no federal law that protects
against discrimination on the basis of sexual orientation. National restaurant chain Cracker Barrel,
for example, for many years maintained an open policy of not hiring homosexuals and dismissing
any person who came out at work. It was only under pressure from shareholder activists that the
company finally rescinded its discriminatory policy.

Hyperlink: The Employment Non-Discrimination Act
http://www.npr.org/templates/story/story.php?storyId=113719460
Since 2007 Congress has been debating the Employment Non-Discrimination Act (ENDA). The law would
specifically prohibit employment discrimination on the basis of sexual orientation. The House passed the
bill in 2007, but it died in the Senate. In 2009 new attempts were made at passing the law, but strident
partisanship once again ended chances of passage, as this NPR story explains. Do you believe this law
should be passed? If it passes, do you see an inconsistency with the Defense of Marriage Act, which
prohibits federal recognition of same-sex marriage?

Note too that Title VII does not prohibit all discrimination. Employers are free to consider factors
such as experience, business acumen, personality characteristics, and even seniority, as long as those
factors are related to the job in question. Title VII requires employers to treat employees equally, but
not identically.
Title VII is a federal law, but it does not give victims of discrimination the immediate right to file a
federal lawsuit. Instead, Title VII created a federal agency,
the Equal Employment Opportunity Commission (EEOC) to enforce civil rights in the workplace. The
EEOC publishes guidelines and interpretations for the private sector to assist businesses in deciding
what employment practices are lawful or unlawful. The EEOC also investigates complaints filed by
workers who believe they are victims of unlawful discrimination. If the EEOC believes that unlawful

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discrimination has taken place, the EEOC can file charges against the employer. Even if the employee
has signed a predispute arbitration clause with the employer agreeing to send employment disputes
to arbitration, the Supreme Court has ruled that the predispute arbitration clause does not extend to
the EEOC, which can still file a lawsuit on the employee’s behalf in federal court. [1]
Figure 12.3 Lilly Ledbetter

A jury found Lilly Ledbetter was the victim of regular pay discrimination at Goodyear because of her gender.

Source: Photo courtesy of aflcio, http://www.flickr.com/photos/labor2008/2928072316/sizes/o/in/photostream.

Employees must file Title VII charges with the EEOC first before going to court. If the EEOC
investigates and decides not to pursue the case any further, the EEOC can issue a “right to sue” letter.
With that letter, the employee can then file a case in federal court within 90 days of the date of the
letter. Any EEOC complaint must be filed within 180 days of the alleged discriminatory act taking
place. This deadline is generally extended to 300 days if there is a state agency that enforces a state
law prohibiting discrimination on the same basis. If employees wait beyond 180 or 300 days, their
claims will be dismissed. The question of when the clock begins was the subject of much debate
recently when a female manager at Goodyear, Lilly Ledbetter (Figure 12.3 "Lilly Ledbetter"),
discovered she had been paid unequally compared to males for many years. She filed a Title VII

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lawsuit in federal court and won several million dollars in damages. At the Supreme Court, however,
a narrow 5–4 majority opinion authored by Justice Alito held that she had to file her claim within
180 days of any decision to pay her unequally, which had happened many years ago. [2] She therefore
lost her case and her damages award. In response, Congress passed
the Lily Ledbetter Fair Pay Act of 2009, which gives victims the right to file a complaint within 180
days of their last discriminatory paycheck.
The EEOC has the authority to award several remedies to victims of discrimination. These include
the award of back pay for any lost wages, the issuance of an injunction to stop the employer from
making any continuing acts or policies of discrimination, ordering a terminated or demoted
employee reinstated to his or her prior position, and the award of compensatory damages for out-ofpocket costs resulting from the discrimination as well as emotional harm. Attorneys’ fees may also be
recoverable. In cases of severe or reckless discrimination, punitive damages are also available.
Punitive damages are capped by amendments to Title VII passed in 1991. These caps start at
$50,000 for employers with less than one hundred employees and rise to $300,000 for employers
with more than five hundred employees.
Anyone who files a Title VII claim in federal court must prove his or her claim using one of two
possible theories. The first theory, known as disparate treatment, alleges that the defendant employer
acted intentionally to discriminate against the victim because of the victim’s membership in a
protected class. Winning a disparate treatment case is very hard because it essentially requires proof
that the defendant acted intentionally, such as a statement by the defendant that it is not hiring
someone because of that person’s race, an e-mail to the same effect, or some other sort of “smoking
gun” evidence. If a defendant wants to discriminate against someone illegally in the workplace, it is
very unusual for it to say so explicitly since under the at-will doctrine, it is easy for an employer to
find a lawful reason to discriminate.
Under Supreme Court precedent, a plaintiff wishing to demonstrate disparate treatment has to first
make out a prima facie case of discrimination, which involves demonstrating that he or she is a
member of a protected class of workers. [3] He or she applied for a job that he or she is qualified for,

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and the employer chose someone else outside of the plaintiff’s class. Once that demonstration has
been made, the employer can rebut the presumption of discrimination by arguing that a legitimate,
nondiscriminatory reason existed for taking the adverse action against the plaintiff. If the employer
can state such a legitimate reason, then the burden of proof shifts back to the employee again, who
must then prove by a preponderance of evidence that the employer’s explanation is insufficient and
only a pretext for discrimination. This last step is very difficult for most victims of intentional
discrimination.
If a victim is unable to find proof of disparate treatment, he or she may instead use a theory
called disparate impact, where the discrimination is unintentional. Most Title VII cases fall into this
category because it is so rare to find proof of the intentional discrimination required in disparate
treatment cases. In a disparate impact case, the victim alleges that the defendant has adopted some
form of race-neutral policy or employment practice that, when applied, has a disproportionate
impact on certain protected classes. If a victim successfully demonstrates a disparate impact, then
the employer must articulate a nondiscriminatory business necessity for the policy or practice. The
Supreme Court first articulated this theory in 1971 in a case involving a power company that
implemented an IQ test and high school diploma requirement for any position outside its labor
department, resulting in very few African Americans working at the power company other than in
manual labor. The Court held that the Civil Rights Act “proscribes not only overt discrimination, but
also practices that are fair in form, but discriminatory in operation. The touchstone is business
necessity.” [4] In that case, the Court found that the power company could not prove a business
necessity for having the IQ tests or high school diploma requirement, so those practices were ruled
illegal.
Business policies that raise suspicions for disparate impact include educational qualifications,
written tests, intelligence or aptitude tests, height and weight requirements, credit checks, nepotism
in hiring, and subjective procedures such as interviews. Businesses that have these sorts of policies
need to be very careful that the policies are directly related to and necessary for the job function
under consideration. In one recent case, the city of Chicago received more than twenty-six thousand
applications for firefighters in 1995 for only several hundred positions. The city required all the
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applicants to take a test, and it used that test to categorize applicants as failing, qualified, or wellqualified. Faced with so many applicants, the city decided to hire only candidates who received a
well-qualified score. African Americans made up 45 percent of the qualified group, but only 11.5
percent of the well-qualified group, so the decision had an adverse and disparate impact on a
protected class. More than ten years later and after an appeal all the way to the Supreme Court on
the question of timeliness of their lawsuit, the plaintiffs are still waiting for a trial on whether the city
acted illegally. [5]
Proving a disparate impact case is not easy for victims of discrimination. It is not enough for the
employee to use statistics alone to point out that a job policy or practice has a disparate impact on
the victim’s protected class. In addition, the 1991 amendments to the Civil Rights Act prohibited the
use of race norming in employment testing.

KEY TAKEAWAYS
The 1964 Civil Rights Act is a major piece of legislation that affects virtually all employers in the United
States. Originally created to ensure the integration of African Americans into mainstream society, the law
prohibits discrimination on the basis of race, color, religion, sex, and national origin. Some forms of
discrimination on the basis of religion, sex, or national origin are permitted if they are bona fide
occupational qualifications. Federal law does not prohibit discrimination on the basis of sexual orientation.
The Equal Employment Opportunity Commission investigates charges of illegal workplace discrimination.
These charges must be filed by workers within 180 days of the alleged discriminatory act taking place. If a
worker believes intentional discrimination has taken place, he or she may pursue a theory of disparate
treatment in his or her lawsuit. If the discrimination is unintentional, the worker may pursue a theory of
disparate impact. Employment practices that have a disparate impact on members of a protected class are
permissible, however, if they are job-related and qualify as a business necessity.

EXERCISES
1.

More than four decades after the passage of the 1964 Civil Rights Act, many libertarians and conservatives
continue to believe that the law is a violation of states’ rights. Do you agree? Why or why not?

2.

In listening to President Kennedy’s speech, do you believe that the promise held by the Civil Rights Act has
been met? Why or why not?

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3.

Businesses sometimes discriminate against their customers on the basis of sex. A bar may charge females
a reduced or waived cover charge in a “Ladies Night” promotion, for example, to increase the female ratio
in their audience. Hair salons routinely charge more for services to women, and even dry cleaners charge
higher prices for cleaning women’s clothes. Do you believe these forms of discrimination should be illegal?
Why or why not?

4.

Research demonstrates that taller, more athletic, and more attractive people earn more in the workplace
than shorter, less fit, or less attractive people. Do you believe this is unfair, and if so, do you believe the
law should be amended to protect these classes?

5.

Race and color can never be BFOQs. Does that mean that an African American actor could play Abraham
Lincoln in a movie reenactment of Lincoln’s life? Why or why not?

[1] EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).
[2] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
[3] McDonnell Douglas v. Green, 411 U.S. 792 (1973).
[4] Griggs v. Duke Power Co., 401 U.S. 424 (1971).
[5] Lewis v. Chicago, 560 U.S. ___ (2010), http://www.law.cornell.edu/supct/html/08-974.ZS.html (accessed
September 27, 2010).

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12.2 Enforcement of Title VII
LEARNING OBJECTIVES
1.

Explore what the protections of the Civil Rights Act mean.

2.

Understand implications of the Civil Rights Act for employers and employment practices.

3.

Examine how businesses can protect themselves against claim of discrimination.

Many times in the business world, it pays to be exceptional and different. Standing out from the
crowd allows an employee to be noticed for exceptional performance and can lead to faster and
greater advancement. In some other respects, however, standing out for being a racial or ethnic
minority, or for being a woman, can be incredibly uncomfortable for employees. Learning to
celebrate differences appropriately remains a challenge for many human resource professionals.
The main purpose of Title VII was to integrate African Americans into the mainstream of society, so
it’s no surprise that charges of race-based discrimination continue to generate the highest number of
complaints to the Equal Employment Opportunity Commission (EEOC). In 2009 the EEOC received
nearly thirty-four thousand complaints of race-based discrimination in the workplace, representing
36 percent of the total number of complaints filed. [1] Intentional discrimination against racial
minorities is illegal, but as discussed earlier in this section, proving intentional discrimination is
exceedingly difficult. That means the EEOC pays close attention to disparate impact cases in this
area.

Hyperlink: Diversity Day at The Office
http://www.nbc.com/The_Office/video/diversity-day/116137
In NBC’s hit sitcom The Office, Michael Scott is the hapless and often clueless manager of a paper
company’s branch office in Pennsylvania. In this clip, he decides to celebrate Diversity Day by having the
employees engage in an exercise. He has written certain ethnicities and nationalities on index cards and
taped them to employees’ foreheads. The employee does not know what his or her card says and is
supposed to figure it out through interactions with other employees. The results are a less-than-stellar

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breakthrough in an understanding of diversity. Does your school or university celebrate in diversity
celebrations? Do you believe these celebrations are helpful or unhelpful in the workplace?

For example, an employer policy to examine the credit background of employees might be suspect.
Statistically, African Americans have poorer credit than white Americans do, so this policy will
necessarily reduce the number of African Americans who can qualify for the position. While a credit
check may be a business necessity for a job requiring a high level of trustworthiness, it is hardly
necessary for all positions. Similarly, sickle-cell anemia is a blood disease that primarily affects
African Americans. An employer policy that excludes persons with sickle-cell anemia must be job
related and a business necessity to be legal. A “no-beard” employment policy may also be
problematic for African Americans. Many African American men suffer from a medical skin
condition that causes severe and painful bumps if they shave too closely, requiring them to keep a
beard. A no-beard policy will therefore have to be justified by business necessity. For example, a
firefighter may be required to be beard-free if a beard interferes with the proper functioning of an
oxygen mask, a critical piece of equipment when fighting fires. White persons can be victims of race
or color discrimination as well. A tanning salon cannot refuse to hire a very light-skinned person of
Irish descent, for example, if its refusal is based on color appearance of the job candidate.
To correct past mistakes in treatment of women and minorities, many companies go beyond being
equal opportunity employers by adopting affirmative action programs. Companies are not required to
undertake affirmative action programs, but many do. In some instances, they do so to qualify as a
federal contractor or subcontractor. Under Executive Order 11246, most federal contractors or
subcontractors must develop an annual affirmative action plan and take “affirmative steps” to
recruit, hire, and train females and minorities in the workforce. Even companies that do not seek to
sell to the federal government may voluntarily undertake affirmative action programs, as long as
those programs are meant to correct an imbalance in the workforce, are temporary, and do not
unnecessarily infringe on the rights of nonbeneficiaries.
Affirmative action plans can be tricky to administer because white Americans can also be the victims
of race discrimination or so-called reverse discrimination. The provisions of Title VII are meant to

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protect all Americans from race discrimination. One of the earliest cases of reverse discrimination
took place in 1981, when a white air traffic controller successfully sued the Federal Aviation
Administration (FAA), claiming the FAA had hired women and racial minorities over him. In one
recent case, the fire department in the city of New Haven conducted a management test to decide
which firefighters to promote. When no black firefighters passed the test, the city decided to
invalidate the test. Nineteen firefighters who did pass the test (all white or Hispanic) filed suit,
alleging the city’s actions violated Title VII. The Supreme Court found in favor of the firefighters,
holding that the city’s fear of a discrimination lawsuit from minorities if it went forward with the test
was not enough justification to discriminate against the white firefighters. [2]
A related form of discrimination is discrimination on the basis of national origin, which is also
prohibited by Title VII. This involves treating workers unfavorably because of where they are from
(specific country or region) or ethnicity. It is illegal to discriminate against a worker because of his or
her foreign accent unless it seriously interferes with work performance. Workplace “English-only”
rules are also illegal unless they are required for the job being performed. While English-only rules
might be a business necessity for police officers, they would not be for late-night office cleaners.

Hyperlink: Sikhs Regain Right to Wear Turbans in U.S. Army
http://www.npr.org/templates/story/story.php?storyId=125142736
Members of one of the world’s oldest religions, Sikhism, do not cut their hair and wear their hair in a
turban. Since 1984 this has been prohibited by the U.S. Army, which has standards for both hair and facial
hair for recruits. In 2010 the army lifted this prohibition, resulting in the first Sikh Army officer, Captain
Tejdeep Singh Rattan (Figure 12.5 "Captain Tejdeep Singh Rattan, the First Sikh Army Officer"), in more
than twenty-five years, as this NPR story explains.
Figure 12.5Captain Tejdeep Singh Rattan, the First Sikh Army Officer

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Source: Photo courtesy of the U.S. Army,http://www.flickr.com/photos/soldiersmediacenter/4464653659/sizes/o.

Title VII’s prohibition on religious discrimination has raised some interesting workplace issues. The
law makes it illegal to treat an employee unfavorably because of his or her religious beliefs.
Furthermore, employees cannot be required to participate in any religious activity as a condition of
employment. It extends protection not just to major religions such as Buddhism, Christianity,
Hinduism, Islam, and Judaism but also to anyone who has sincerely held religious or moral beliefs.
Additionally, employers must reasonably accommodate an employee’s religious beliefs or practices
as long as it does not cause an undue hardship on the employer’s operation of its business. Typically,
this would involve being flexible in schedule changes or leaves. A Muslim worker who asked for a few
short breaks a day to pray, for example, might be reasonable for an administrative assistant but not
for a police officer or air traffic controller. Issues of dress and appearance are often grounds for
charges of religious discrimination. For example, if a Muslim woman wished to wear a hijab, or
traditional headscarf, then she should be permitted to do so unless it places an undue hardship on
operations. In 2010, UPS agreed to settle a case with the EEOC, paying $46,000 in damages for
firing a driver who refused to cut his hair or shave his beard, which the driver believes would violate
tenets of his Rastafarian religion. [3]
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A very interesting recent development of workplace discrimination arises when a worker refuses to
carry out his or her job duties because of a sincerely held moral belief that doing so would promote
immoral activity. For example, after the Food and Drug Administration approved sale of the socalled morning after pill to prevent unwanted pregnancy, some pharmacists refused to fill
prescriptions for the drug, claiming it was against their religious beliefs to do so. Another example
arose in Minnesota in 2006 when a bus driver refused to drive a bus carrying an advertisement for a
gay-themed newspaper. Courts and legislatures continue to struggle with where to draw the line
between respecting employees’ religious beliefs and the rights of employers to insist their workers
perform essential job functions.
Finally, Title VII prohibits discrimination on the basis of sex. Interestingly, the inclusion of sex as a
protected class in Title VII was a legislative maneuver designed to kill the bill while it was being
debated in Congress. Howard Smith, a Democrat from Virginia, strongly opposed the 1964 Civil
Rights Act and thought that by adding the word “sex” to the list of protected classes, the bill would
become so poisonous that it would fail passage. In fact, the bill quickly passed, and it led former
Chief Justice Rehnquist to complain that courts were therefore “left with little legislative history to
guide us in interpreting the Act’s prohibition against discrimination based on sex.” [4]
Figure 12.7 An Advertisement for PSA Airlines

Source:http://gulfnews.com/polopoly_fs/an-airline-advertisement-of-the-1960s1.564441!image/4155641854.jpg_gen/derivatives/box_475/4155641854.jpg.

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The prohibition on sex discrimination means that employers cannot categorize certain jobs as singlesex only unless a bona fide occupational qualification (BFOQ) applies. Customer preferences or
market realities are not the basis for BFOQ. For example, a job that requires heavy lifting cannot be
categorized as male-only since a woman may qualify after passing a physical test. As society has
changed, much progress has been made in this area of equal employment opportunity. Airlines, for
example, used to routinely hire predominantly single young women as flight attendants (Figure 12.7
"An Advertisement for PSA Airlines"). Male cabin crew could marry, but women could not. Those
distinctions have now been erased, partially because of Title VII, and partially because of societal
attitudes.
The prohibition against sex discrimination also includes making stereotypical assumptions about
women simply because they might be the primary caregiver to children at home. If there are two job
applicants, for example, and both have young children at home, it would be illegal to give preference
to the male candidate over the female candidate. Once a female employee has children, it would be
illegal to assume that she is less committed to her job, or would like to work fewer hours. It’s
important to note that these protections extend to men as well. If an employer voluntarily provides
time off to new mothers, for example, it must extend identical benefits to new fathers.
Discrimination on the basis of sex can also take the form of workplace sexual harassment. Contrary
to popular belief, there isn’t an actual statute that makes sexual harassment illegal. Instead, sexual
harassment is the product of judicial interpretation of what it means to discriminate on the basis of
sex. Courts have generally recognized two forms of sexual harassment. The first, known as
quid pro quo, involves asking for sexual favors in return for job opportunities or advancement. Courts

reason that if a male worker asks a female worker for sex in return for favorable treatment, it is
because that worker is female, and therefore a Title VII violation has occurred. If a supervisor fires a
subordinate for breaking up with him or her, then quid pro quo harassment has taken place.
Another type of sexual harassment is known as the hostile work environment. First recognized by the
Supreme Court in 1986, a hostile work environment is one where hostile conditions in the workplace
are severe and pervasive, unwelcome, and based on the victim’s gender. [5] Courts are careful not to

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impose manners on workplaces, so an offhand remark or dirty joke is unlikely to be sexual
harassment. To be considered sexual harassment, the harassment must be so severe or pervasive that
it alters the conditions of the victim’s employment. In one recent case, the EEOC collected $471,000
for thirteen female telemarketers from a firm providing basement waterproofing services. The
harassment by male managers and coworkers at the firm included repeated requests for sex,
frequent groping, sexual jokes, and constant comments about the bodies of women
employees. [6] Similar cases involve workplace atmospheres where women are heckled with sexual
comments, propositioned for sex, made to listen to crude sexual comments or comments about their
bodies, subject to pornography in the workplace, or invited to after-work outings to strip clubs.
Under traditional tort doctrines, employers can be held liable for an employee’s sexual harassment of
another person. The Supreme Court has held that employers can overcome this liability by
demonstrating that they conduct workplace training about sexual harassment and have implemented
policies, including methods for employees to report suspected cases of harassment, and that they
take prompt action against any employee found to be engaging in sexual harassment. [7] The Supreme
Court has also held that men can be the victims of sexual harassment and that same-sex sexual
harassment is also illegal under Title VII. [8] The hostile work environment theory is not limited to
discrimination on the basis of sex; a hostile work environment can also be motivated by
discrimination on the basis of race, color, national origin, religion, age, and disability.

KEY TAKEAWAYS
Racial discrimination charges are the most common form of complaint filed with the EEOC. Discrimination
on the basis of race or color prohibits employers from adopting any policy or practice that has a disparate
impact on persons because of their race or color. To be legal, job policies or practices that have a disparate
impact on protected classes must be related to the job function and qualify as a business necessity.
Discrimination on the basis of national origin (ethnicity, accent, or language) is illegal. Discrimination on
the basis of religion is also illegal. Employers must reasonably accommodate an employee’s religious
beliefs unless doing so would pose an undue hardship on the employer’s operation of business.
Discriminating against someone because of his or her sex is illegal. It is also illegal to treat primary

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caregivers differently because they are male or female. Finally, workplace harassment is illegal if it is
severe and pervasive and alters the conditions of an employee’s employment.

EXERCISES
1.

If a Jewish or Muslim worker asked for halal or kosher food in the employee cafeteria, should an employer
accommodate this request? Why or why not? What factors do you think the employer should consider
before making a decision?

2.

In many countries it is common for résumés to contain photos of the job applicants. It is also common to
classify jobs by sex (i.e., a job posting for a female secretary or male forklift driver). What do you believe
the United States has gained or lost by moving away from this system of job applicant screening?

3.

Do you believe that the school bus driver in Minnesota should be permitted to refuse driving a bus if it
carries an advertisement that the driver believes promotes immoral lifestyles? Why or why not? Should a
vegetarian driver be permitted to refuse to drive a bus with an advertisement for hamburgers? Should a
Post Office delivery person be permitted to refuse to deliver copies of Playboy magazine on the same
grounds?

4.

Can you think of any jobs where speaking English without an accent may be very important or essential?

[1] U.S. Equal Employment Opportunity Commission, “Charge Statistics FY 1997 through FY
2009,” http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed September 27, 2010).
[2] Ricci v. DeStefano, 557 U.S. ___ (2009), http://www.law.cornell.edu/supct/html/07-1428.ZS.html (accessed
October 2, 2010).
[3] U.S. Equal Employment Opportunity Commission, “UPS Freight to Pay $46,000 to Settle EEOC Religious
Discrimination Lawsuit,” February, 17, 2010,http://eeoc.gov/eeoc/newsroom/release/2-17-10.cfm (accessed
September 27, 2010).
[4] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
[5] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
[6] U.S. Equal Employment Opportunity Commission, “EEOC Collects $471,000 Jury Award after Winning Appeal
from Waterproofing Company in Sex Harassment Case,” May 5,
2010, http://www.eeoc.gov/eeoc/newsroom/release/5-5-10.cfm (accessed September 27, 2010).
[7] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
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[8] Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

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12.3 Other Federal Antidiscrimination Laws
LEARNING OBJECTIVES
1.

Explore the 1866 Civil Rights Act.

2.

Learn about the Equal Pay Act.

3.

Understand the Age Discrimination in Employment Act.

4.

Study the Americans with Disabilities Act.

While the 1964 Civil Rights Act is the most important federal civil rights law, it isn’t the only basis for
employment discrimination. Protections also exist to protect women against unequal pay, pregnant
women, workers older than forty, and people with disabilities. In this section we’ll examine these
other statutes.
The first statute is the 1866 Civil Rights Act. It was passed after the Civil War to guarantee freed slaves
the rights of citizenship, and it is still in force today. It prohibits discrimination on the basis of race,
including private discrimination. The 1866 Civil Rights Act provides victims of race discrimination
several advantages over Title VII. Unlike Title VII, victims do not need to file a complaint with the
Equal Employment Opportunity Commission (EEOC) first—they can go straight to federal court to
file a complaint. In addition, the strict filing deadlines under Title VII do not apply. Finally, the
statutory limits on punitive damages under Title VII do not apply, so higher damages are possible
under the 1866 Civil Rights Act. Unlike Title VII, however, the 1866 Civil Rights Act only prohibits
racial discrimination. In most race discrimination cases, plaintiffs file both Title VII claims and
claims under the 1866 Civil Rights Act. These are commonly known as Section 1983 claims, named
after the section of the U.S. statute that allows victims of race discrimination to file their complaints
in federal court.
Figure 12.9 Median Weekly Earnings of Women and Men in Management, Professional, and

Related Occupational Groups, 2008

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Women still make less than their male counterparts across all industries.
Source: Adapted from U.S. Bureau of Labor Statistics, “Women and Men in Management,
Professional, and Related Occupations, 2008,” August 7,
2009,http://bls.gov/opub/ted/2009/ted_20090807.htm (accessed September 27, 2010).
The Equal Pay Act of 1963 seeks to eliminate the wage gap between women and men. In 1970 women
earned roughly sixty-two cents for every dollar men earned. In 2004 that number had climbed to
eighty cents. In 2008 women still earn less than their male counterparts in all sectors of the
economy, as the chart from the Bureau of Labor Statistics demonstrates (Figure 12.9 "Median
Weekly Earnings of Women and Men in Management, Professional, and Related Occupational
Groups, 2008"). The Equal Pay Act demands that employers provide equal pay for equal work, and it
applies to all employers. All forms of compensation are covered by the act, including benefits such as

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vacation and compensation such as salary and bonus. Victims do not need to file a complaint with
the EEOC under the Equal Pay Act, but may instead go straight to federal court, as long as they do so
within two years of the alleged unlawful employment practice. Victims typically also pursue Title VII
claims at the same time they pursue Equal Pay Act claims.
The Equal Pay Act is very difficult to enforce. Since demanding identical pay is virtually impossible
due to differences in jobs and job performance, courts have essentially interpreted the law as
requiring substantially equal pay for substantially equal work. Courts are extremely reluctant to get
into the business of telling employers what they should pay their workers. In 2009 the EEOC
received fewer than one thousand complaints about unequal pay nationwide, or less than 1 percent of
the charges filed. [1]

Hyperlink: Despite New Law, Gender Salary Gap Persists
http://www.npr.org/templates/story/story.php?storyId=125998232
In some part, women make less money than men because they voluntarily leave the workforce to raise
children, or because women are directed to occupations with traditionally less pay. Even if these factors
are eliminated, however, there is still a pay gap between women and men. This gap grows over time,
leaving women with hundreds of thousands less at the end of a career when compared with a male’s
comparable career. Now, Congress is considering new legislation to address the problem in the
Paycheck Fairness Act, as this NPR story explains.

The Pregnancy Discrimination Act of 1978 amended Title VII to make it illegal to discriminate on the
basis of pregnancy, childbirth, or related medical conditions. This means employers cannot refuse to
hire a woman because she is pregnant or is considering becoming pregnant, or because of prejudices
held by coworkers or customers about pregnant women. A female worker who becomes pregnant is
entitled to work as long as she can perform her tasks, and her job must be held open for her while
she is on maternity leave. Furthermore, pregnancy-related benefits cannot be limited only to married
employees.

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The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discriminate against
workers over the age of forty. It does not protect younger workers, who are of course subject to a
form of discrimination every time they are told an employer is looking for someone with more
experience. The ADEA applies to any employer with over twenty workers, including state
governments. Partnerships such as law firms and accounting firms are also covered under the ADEA.
In 2007 a major law firm, Sidley Austin, agreed to pay $27.5 million to former partners the firm had
terminated because of their age, resulting in a median payout of over $875,000 per terminated
partner. [2]The ADEA prohibits employers from treating any covered person unfavorably in any term
or condition of employment, including the hiring decision. It is illegal, for example, to hire an
inexperienced twenty-five-year-old for a job when a fifty-year-old is better qualified and willing to
work for the same conditions. An employer may, however, favor an older worker over a younger
worker even if the younger worker is over forty years of age. Mandatory retirement age is illegal
under the ADEA, except for very high-level executives over the age of sixty-five who are entitled to a
pension.
Employers should be very careful about asking for a job applicant’s date of birth during the
application process, as this might be a sign of possible discriminatory intent. Employers may
discriminate against older workers if there is a bona fide occupational qualification (BFOQ), such as
a production company casting for a young actor to play a young character, or airlines setting a
mandatory retirement age for pilots.
Of course, older workers can still be dismissed for good cause, such as poor job performance or
employee misconduct. Companies may also administer a layoff plan or early retirement plan that is
evenly applied across all workers, and can offer early retirement incentives to induce workers to
retire. Typically when companies ask a worker to retire early or take an incentive to leave the
company, the worker is asked to sign an ADEA waiver, giving up any claims the worker may have
under the ADEA. These waivers are fully enforceable under the ADEA as long as they are “knowing
and voluntary,” in writing, and provide the worker with at least twenty-one days to consider the
waiver and seven days to revoke it after signing it.

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Although it was passed around the same time as Title VII, for decades courts held that only disparate
treatment cases under the ADEA were viable. That meant plaintiffs had to find proof of intentional
discrimination to recover, so there were relatively few successful age discrimination cases. To make
matters even harder for older workers, in 2009 the Supreme Court held that older workers suing
under the ADEA had to prove that their age was a “but-for” reason for their termination, or the sole
cause for termination. [3] This makes age discrimination much harder to prove than discrimination
because of sex or race, where illegal discrimination only has to be one of several factors that
motivated the employer. In fact, the 2009 decision made it all but impossible for older workers to
prove intentional discrimination, and congressional efforts to overturn the decision in the form of
the Protecting Older Workers Against Discrimination Act are pending.
In 2005 the Supreme Court held that the disparate impact theory can apply to age discrimination
cases. [4] For example, an employer cannot require office workers to undertake strenuous physical
tests if those tests are not related to the job being performed and would have a disparate impact on
older workers. Rather than open the floodgates to ADEA litigation, however, the ensuing years saw
relatively little increase in ADEA-related litigation. One reason may be that the Court emphasized
that the ADEA contains a unique defense for employers not present in Title VII: employers are
allowed to take unfavorable action against older workers for “reasonable factors other than age”
(RFOA). In the 2005 case, a city had decided to give larger pay increases to younger workers
compared to older workers, for the stated reason that the city wanted to make pay for younger
workers competitive with the market. The Supreme Court found this explanation reasonable. In 2010
the EEOC published a proposed rule to clarify the meaning of “reasonable factors.” The proposed
rule would allow neutral policies that negatively affect older workers only if the policy is “objectively
reasonable when viewed from the perspective of a reasonable employer under like
circumstances.” [5] If the proposed rule is adopted, it would make it much more difficult for
employers to rely on “reasonable factors” as a defense to an age discrimination claim.
After the major laws of the 1960s were passed, Congress did very little to protect civil rights in the
workplace for many years. This changed in 1990, when Congress passed a major new piece of
legislation known as the Americans with Disabilities Act of 1990 (ADA), signed into law by President
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George H. W. Bush. With passage of the ADA, Congress sought to expand the promise of equal
opportunity in the workplace to cover persons with disabilities. Unfortunately, the ADA was less than
clear in many critical aspects when it was written, leaving courts to interpret what Congress may
have meant with specific ADA language. An increasingly conservative judiciary, including the
Supreme Court, began interpreting the ADA fairly narrowly, making it harder for people with
disabilities to win their court cases. Congress responded with the
Americans with Disabilities Amendments Act of 2008 (ADAA), signed into law by President George W.

Bush, which specifically overturned several key Supreme Court decisions to broaden the scope of the
ADA.
The ADA is broken down into several titles. Title III, for example, deals with requirements for public
accommodations such as wheelchair ramps, elevators, and accessible restrooms for new facilities.
Title II deals with the ADA’s applicability to state and local governments. For employees, the most
important provisions are located in Title I, which makes it illegal for employers with fifteen or more
employees to discriminate against “qualified individuals with disabilities.”
It is a common misconception that the ADA requires employers to hire disabled workers over ablebodied workers. This is simply not true because the ADA only applies to the qualified disabled. To be
qualified, the individual must meet the legitimate skill, experience, education, or other requirements
for the position he or she is seeking and be able to perform the “essential functions” of the job
without reasonable accommodation. In other words, the first step an employer must take is to define
what the essential functions of the job are, and then see if a disabled individual who has applied for
the job meets the requirements for the job and can perform those essential functions. Obviously,
someone who is legally blind will not be permitted to be a bus driver or airline pilot under this test.
Similarly, a paraplegic will not be qualified to work as a forklift operator since that person will be
unable to perform the essential functions of that job without reasonable accommodation. On the
other hand, the “essential functions” test means that employers must be very careful in denying
employment to someone who is disabled. If the reason for denying employment is the disabled
person’s inability to perform some incidental task (rather than an essential function), then that is
illegal discrimination. The ADA also permits employers to exclude any disabled individual who poses
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a direct threat to the health or safety to the individual or of others, if the risk of substantial harm
cannot be reduced below the level of “direct threat” through reasonable accommodation.
The ADA makes it illegal for an employer to require a job applicant take a medical exam before an
employment offer is made. However, after a job offer has been made, applicants can be asked to take
medical and drug exams. Tests for illegal use of drugs, any time during employment, are permitted
under the ADA.
One of the most vexing questions faced by employers is in defining who is disabled. The ADA states
that an individual is disabled if he or she has a “physical or mental impairment that substantially
limits one or more major life activities,” has a record of such impairment, or is regarded as having
such an impairment. Major life activities include seeing, hearing, speaking, walking, running,
breathing, learning, and caring for oneself. For example, consider a person being actively treated for
cancer. During the treatment, many major life activities may be substantially limited, so the person is
disabled. However, if a major life activity is not limited but the person loses his or her hair as a result
of chemotherapy, he or she may be “regarded” as having an impairment, which makes him or her
disabled under the ADA. An employer who purposefully refuses to hire a qualified job applicant with
no hair because the employer believes the applicant has cancer (regardless of whether the cancer is
active or in remission) is therefore violating the ADA. Finally, if the cancer patient recovers fully and
has no physical sign of cancer, that patient is still considered protected by the ADA because he has a
“record” of a qualifying disability.
After the ADA’s passage in 1990, the Supreme Court began confronting the meaning of these terms
in a series of cases. In one case, the Court held that anyone with a disability that could be mitigated
or corrected was no longer disabled under the ADA. [6] This decision led to uproar and controversy.
By narrowing the definition of who was disabled, the Court made it very hard for disabled persons to
prove discrimination. A diabetic who can control the disease with insulin, for example, was not
disabled under this definition. Therefore, an employer who fired a diabetic for taking breaks to inject
insulin was not violating the ADA. The ADAA specifically overturns this case, and now employers are
prohibited from considering mitigating measures such as medication or technology when

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determining whether or not a major life activity is substantially limited. The ADAA does carve out
one exception: anyone with poor vision that is correctable with glasses or contact lenses is not
disabled under the ADA.
In another case limiting the definition of who is disabled, the Court held that a physical or mental
impairment must have a substantial effect on an employee’s daily life, not just that person’s ability to
perform his or her specific job. [7] This case has also been overruled by the ADAA, which directs the
EEOC to issue new guidelines that are much more liberal in interpreting the meaning of what it
means to substantially limit a major life activity.
Under the new ADAA and EEOC guidelines, a list of impairments that substantially limit a major life
activity that will “consistently” result in a disability determination might include blindness, deafness,
intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism,
cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major
depression, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, and
schizophrenia. [8] Other impairments that may require more analysis to determine if they
substantially limit an individual’s major life activities include asthma, high blood pressure, back and
leg impairments, learning disabilities, panic or anxiety disorders, some forms of depression, carpal
tunnel syndrome, and hyperthyroidism. The impairment cannot be temporary or nonchronic (such
as the common cold, seasonal influenza, sprained joint, minor gastrointestinal disorders, seasonal
allergies, broken bones, and appendicitis). However, an impairment that is episodic such as epilepsy
or cancer would qualify if it limits a major life activity while it is active. Pregnant women are
generally not considered disabled, although of course other civil rights statutes, such as Title VII,
may protect them. Note that while current illegal drug users are not considered disabled, alcoholics
may be considered disabled if the disease substantially limits a major life activity.
Although an employer is not required to hire the unqualified disabled, if it does hire a disabled
individual it must provide reasonable accommodation to any disabled worker who asks for it.
Reasonable accommodation is any change or adjustment to the work environment that would allow
the disabled worker to perform the essential functions of the job or to allow the disabled worker to

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enjoy the benefits and privileges of employment equal to employees without disabilities. Reasonable
accommodation might include allowing the worker to work part-time or modified work schedules;
reassigning the worker to a vacant position; purchasing special equipment or software; providing
readers or interpreters; or adjusting or modifying exams, training materials, and policies. Employers
do not have to undertake reasonable accommodation if doing so would cause them undue hardship,
meaning it would require significant difficulty or expense, or significantly alter the nature or
operation of the business. Among factors to be considered in whether an accommodation would pose
an undue hardship are the cost of the accommodation as well as the employer’s size and financial
resources.

KEY TAKEAWAYS
The 1866 Civil Rights Act prevents private discrimination on the basis of race, and provides a quick route
for victims of racial discrimination to federal court without following procedural gateways established by
the EEOC. The Equal Pay Act requires employers to pay men and women substantially equal pay for
substantially equal work, but it is very difficult to enforce. Title VII also protects pregnant women from
workplace discrimination. The Age Discrimination in Employment Act prohibits discrimination against
workers over the age of forty. The BFOQ defense is available for age discrimination claims, as well as
taking adverse action for a reasonable factor other than age. The Americans with Disabilities Act prohibits
employment discrimination against the qualified disabled and prohibits preemployment medical testing.
To be considered disabled, an individual must demonstrate a mental or physical impairment that
substantially limits a major life activity. Disabled persons are entitled to reasonable accommodation in the
workplace, as long as reasonable accommodation does not place any undue hardship on the employer.

EXERCISES
1.

The Equal Pay Act of 1963 is decades old, but women have still not closed the gap with men when it comes
to pay. Why do you think this is? Do you believe Congress can play a role in closing this gap?

2.

The number of age-related claims filed with the EEOC has increased steadily, from 19.6 percent of cases
filed in 1997 to 24.4 percent of cases filed in 2009. Why do you think this number is increasing?

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3.

Think about the job that you would like most to have when you graduate college. What do you think the
“essential functions” of that job are? What sorts of disabilities do you think would disqualify you or
someone else from performing those essential functions?

4.

Do you believe that alcoholics should be considered disabled under the ADA? Why or why not?

5.

A person with a lifetime allergy to peanuts is probably disabled under the ADA, but a person with seasonal
allergies to pollen is not. Does this distinction make sense to you? Why or why not?

[1] U.S. Equal Employment Opportunity Commission, “Charge Statistics FY 1997 through FY
2009,” http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed September 27, 2010).
[2] U.S. Equal Employment Opportunity Commission, “$27.5 Million Consent Decree Resolves EEOC Age Bias Suit
against Sidley Austin,” October 5, 2007,http://www.eeoc.gov/eeoc/newsroom/release/10-5-07.cfm (accessed
September 27, 2010).
[3] Gross v. FBL Financial Services, 557 U.S. ___ (2009),http://www.law.cornell.edu/supct/html/08441.ZS.html (accessed October 2, 2010).
[4] Smith v. City of Jackson, 544 U.S. 228 (2005).
[5] U.S. Equal Employment Opportunity Commission, “EEOC Solicits Comments on Proposed Rule concerning
‘Reasonable Factors other than Age’ under the ADEA,” February 18,
2010, http://www.eeoc.gov/eeoc/newsroom/release/2-18-10.cfm (accessed September 27, 2010).
[6] Sutton v. United Airlines, 527 U.S. 471 (1999).
[7] Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).
[8] U.S. Equal Employment Opportunity Commission, “Summary of Key Provisions: EEOC’s Notice of Proposed
Rulemaking (NPRM) to Implement the ADA Amendments Act of 2008
(ADAA),” http://www.eeoc.gov/laws/regulations/adaaa-summary.cfm (accessed September 27, 2010).

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12.4 Concluding Thoughts
Most people find the idea of being judged based on the basis of an “immutable” characteristic such as
race, color, or sex grossly unfair. We wish to be judged on the basis of our merit and character, things
that we can control. The same is true in the workplace, where most people hold firm to the belief that
the hardest working, smartest, and most business-savvy should succeed. Employment discrimination
law is meant to address this ideal, but like all laws, it can be a blunt instrument where sometimes a
finer approach is called for.

Hyperlink: A Class Divided
http://www.pbs.org/wgbh/pages/frontline/shows/divided
On the morning after Martin Luther King Jr. was assassinated, Jane Elliott, a third-grade teacher in an
all-white elementary school in Iowa, divided her class into two groups: those with brown eyes and those
with blue eyes. It was 1968, four years after Title VII, and the country was still torn by racial
discrimination. What Jane Elliott found out that day about the nature of discrimination and the lessons
her students took with them after the experiment was over are the subject of this Frontline documentary.

In many ways, the debates surrounding what kind of protections against discrimination Americans
should enjoy in the workplace mirror larger debates about the role of government in ensuring the
equal protection of the laws for its citizens. Since the laws in this area are notoriously difficult to
interpret, it falls on judges and juries to decide when illegal discrimination has taken place.
Unfortunately for plaintiffs, the result is often less than justice.
It is hard to prove an employment discrimination case, under either disparate treatment or disparate
impact cases. For example, the Equal Employment Opportunity Commission (EEOC) collects
statistics for each type of charge filed with the commission and how the case is resolved. In 2009, for
race-based charges, 66 percent resulted in a finding of “no reasonable cause,” meaning the EEOC
found no evidence of discrimination. [1] For religion-based charges, 61 percent resulted in a finding of
“no reasonable cause.” [2] The proof necessary to win these cases, as well as the reluctance of plaintiffs
to come forward when they might be reliant on the employer for a continuing paycheck, mean that
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many instances of illegal discrimination go unreported. Often, those being discriminated against are
among vulnerable populations with no independent means of living if they lose their jobs. To top it
off, the low success rates mean that attorneys in employment discrimination cases rarely take their
cases on contingency, so victims have to pay expensive hourly fees. The rise of predispute arbitration
clauses in the employment setting also means that workers facing illegal discrimination face a huge
chasm between the promise of equality under the law and the reality of pursuing that promise.
As we move into the twenty-first century, new workplace discrimination issues will continue to
surface. There is already widespread concern about the use of genetic information found in DNA to
discriminate against employees because of the chances they might get a certain disease. This concern
led to the passage of the Genetic Information Nondiscrimination Act of 2008. In spite of legislative
action, however, too many cases of illegal discrimination are still taking place in the workplace.
Adequately addressing this injustice will ultimately fall on a new generation of business leaders, such
as you.

[1] U.S. Equal Employment Opportunity Commission, “Race-Based Charges FY 1997–FY
2009,” http://eeoc.gov/eeoc/statistics/enforcement/race.cfm (accessed September 27, 2010).
[2] U.S. Equal Employment Opportunity Commission, “Religion-Based Charges FY 1997–FY
2009,” http://eeoc.gov/eeoc/statistics/enforcement/religion.cfm (accessed September 27, 2010).

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Chapter 13

Business in the Global Legal Environment
LEARNING OBJECTIVES
After reading this chapter, you should understand the foundational concepts of business in the global
environment. You will learn about why it is important to understand the global legal environment, as well
as some of the sources of international law that pertain to business. You will examine the concept of
sovereignty and the unique challenges that concept poses, specifically in relation to ethical questions
arising in the international business context. You will explore concepts critical to conducting business in
the international environment, including trade regulations, international contract formation, and
prohibited activities. At the conclusion of this chapter, you should be able to answer the following
questions:
1.

Why is the global legal environment important to all businesses?

2.

What is international law?

3.

What laws are relevant to businesses operating internationally?

4.

What are some current ethical issues associated with the global environment of business?

5.

What legal considerations exist with respect to trade regulations, international contract formation,
employment and human rights issues, and prohibited activities in the international environment?

It’s a globalizing world. If you are considering starting a small business, it may not occur to you to
consider exporting your product. However, according to the Small Business Association, 96 percent
of the world’s potential customers live outside of the United States. [1] So what’s stopping you? Maybe
you are not sure how to negotiate a contract with a supplier or manufacturer overseas. Or maybe you
are uncertain about U.S. laws relating to importing and exporting. The international market is
lucrative, though the legal environment for operating in that forum is different from that for a
business that operates exclusively within the borders of the United States. For this reason, it is
important to be familiar with some of the basic concepts of doing business in the global economy.
You may be acquainted with challenges faced by U.S. businesses and workers when considering the
questions associated with this new business environment. When we shop for food, computers,
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clothing, pet food, automobiles, or just about anything produced for the global market, we might very
well purchase a final product from a different country, or a product composed of components or
labor from many different parts of the world. Economists tell us that this represents the most
efficient method of production and labor. After all, if a business can pay $1 per hour to a worker
overseas, why would it choose instead to pay $12 per hour to a U.S. worker?
Of course, it’s not necessarily a sunny picture for people whose jobs have been outsourced.
Additionally, businesses operating in the international environment face unique questions. For
instance, if the new labor force that is being paid $1 per hour is composed of workers who are forced
into sweatshop conditions, then there may be serious consumer backlash against the company that
has chosen to do business with that particular manufacturer. Check outNote 13.2 "Hyperlink:
National Labor Committee" to view current stories about modern sweatshops that produce goods
that you may own.

Hyperlink: National Labor Committee
http://www.nlcnet.org
Click on Alerts or Reports at the top of the page. Do you recognize any products that you own or
companies that you enjoy shopping with?

Even if the consumers do not respond negatively to business decisions that result in the use of child
labor or sweatshop conditions for the production of goods, the question of ethics still remains. For
instance, does a company wish to place profit over concerns that it might have about human rights?
And, does a company have any long-lasting duties to its U.S. workforce, or is it all right to simply
outsource jobs if it makes economic sense to do so?
Besides human rights issues, other concerns about doing business in the international environment
exist. For example, it is not uncommon for polluting industries to locate to countries that have laxer
environmental regulations than they would face at home. Environmental degradation, such as the
overuse of natural resources, generation of pollution, and improper disposal of waste products, is a
common by-product of global businesses.
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International business includes not only trade in new goods but also the disposal of old ones. For
example, the U.S. Government Accounting Office found, after an undercover investigation, that
many U.S. companies were willing to export old electronic products that contain cathode-ray tubes
(CRTs), each composed of several pounds of lead, to countries where unsafe recycling practices
occur, without following U.S. regulatory law. Unsafe recycling of toxic electronic waste, known as ewaste, has serious effects on the environment and on human health. Additionally, some of the

companies that were willing to do this have publically proclaimed their commitments to
environmentally safe practices. [2] Check out Note 13.4 "Hyperlink: E-waste: From the United States
to China" for a video concerning U.S. exporting of toxic waste.

Hyperlink: E-waste: From the United States to China
http://www.cbsnews.com/video/watch/?id=5274959n&tag=related;photovideo

Environmental degradation is much like sweatshop labor in the sense that some companies that
engage in harmful practices will pay the price by suffering the fallout from consumer protests. Again,
regardless of consumer reaction, the question of whether to engage in such practices is not only a
legal question but also a question of ethics.
This chapter explores the nature of international law. Additionally, it reviews considerations that are
relevant to businesses operating internationally, such as trade regulations, contract formation
between international parties, and prohibited activities. It also examines some current ethical issues
associated with the global environment of business.

Exercises
1.

Check out Note 13.2 "Hyperlink: National Labor Committee", the Web site for the National Labor
Committee. Click on Alerts or Reports at the top of the page. Do you recognize any products that you
own or companies that you do business with? Pick a story concerning a company that you do business
with, or that you have considered doing business with. After reading the report, would you consider
boycotting that company’s products? Why or why not?

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2. View the video in Note 13.4 "Hyperlink: E-waste: From the United States to China". What types of ewaste do you produce? Where does it go? For example, how did you dispose of your last cell phone?
Your last computer? Your last iPod?

[1] U.S. Small Business Administration, “Take Your Business Global,” June
2010,http://www.sba.gov/idc/groups/public/documents/sba_program_office/oit_sba_fast_facts.pdf (accessed
September 27, 2010).
[2] U.S. Government Accountability Office, “Electronic Waste: EPA Needs to Better Control Harmful U.S. Exports
through Stronger Enforcement and More Comprehensive Regulation,” GAO 08-1044, August
2008, http://www.gao.gov/new.items/d081044.pdf (accessed September 27, 2010).

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13.1 The Nature of International Law
LEARNING OBJECTIVES
1.

Compare and contrast the structure of international law with that of domestic law.

2.

Understand the difference between international law between states and law as it applies to businesses
operating internationally.

Imagine hearing allegations that your company’s products are being assembled overseas in working
conditions that have resulted in extreme despondency among workers, including several suicides.
This is precisely the situation that Apple, Dell, Hewlett-Packard, and others find themselves in.
Foxconn, which is part of the Taiwan-based Hon Hai Precision Industry Co., operates a large
electronics assembly complex in China. Allegations have arisen that harsh working conditions have
led to a string of suicides. If true, should these U.S. companies find another electronics manufacturer
to assemble their products? Do consumers have any voice in this matter?
From your seat, it may seem like an obvious point that businesses should follow the laws and behave
ethically in their business dealings if they wish to be successful for the long haul. However, when we
look at the question of how a company might “follow the law,” we need to consider which laws we are
referring to. When a U.S. company conducts business in another country, it must comply with
applicable U.S. law, and with the law of the foreign nation where it is located. Several U.S. laws apply
to the business activities of U.S. companies operating on foreign soil. However, it is perfectly legal for
a U.S. company to contract with an overseas manufacturer for labor, without insisting that those
workers are paid a wage equal to the U.S. federal minimum wage. In the case of Hon Hai and
Foxconn, none of the U.S. companies can get into legal trouble regarding the fact that, until very
recently, the average worker there made the equivalent of $132 per week, which is, of course, far
below the U.S. federal minimum wage. [1] There are several reasons for this.
Imagine that Apple alleged that labor conditions were not contractually satisfied and, therefore,
Foxconn and Hon Hai Precision Industry Co. breached the agreement that they had made with
Apple. If this were the case, Apple may wish to terminate its relationship with these companies.
However, it is unlikely that the Asian companies would agree. This means that a dispute could arise
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under a contract between international parties. If Foxconn and Hon Hai disputed this allegation,
which rule of law should govern the dispute? In the United States, contracts laws are state law rather
than federal law, so should the laws of a particular state, like California, be applied to this dispute?
Or should Chinese law apply? This can be a complicated question for several reasons. However, it is
necessary to first examine of the nature of international law to understand this complexity. Try to
make a distinction between the nature of international law between nation-states and the nature of
law as it applies to businesses operating in the international arena. In the next section, we will return
to the question of which type of law should apply to disputes in international contracts.

The Basics of International Law between Nation-States
We are all subject to domestic laws, because we all live in a sovereign state. A sovereign state is a political
entity that governs the affairs of its own territory without being subjected to an outside authority.
Countries are sovereign states. The United States, Mexico, Japan, Cambodia, Chile, and Finland are all
examples of sovereign states. In domestic law, or law that is applicable within the nation where it is
created, some legitimate authority has the power to create, apply, and enforce a rule of law system. There
is a legitimate law-creating authority at the “top,” and the people to be governed at the “bottom.” The law
might be conceived of as being “handed down” to the people within its jurisdiction. This is a vertical
structure of law, because there is some “higher” authority that imposes a rule of law on the people. In the
United States, laws are handed down by the legislative branch in the form of statutory law, by the judicial
branch in the form of common law, and by the executive branch in the form of executive orders, rules, and
regulations. These government branches have legitimate authority to create a rule of law system, and this
authority is derived from the U.S. Constitution. See Figure 13.3 "The Vertical Nature of U.S. Domestic
Law" for a simple illustration of the vertical nature of domestic law in the United States. Of course, people
can influence who become members of the branches of government through elections and which issues
are brought before government to consider and possibly legislate, but that does not change the fact that
people are subjected to laws that are handed down in a vertical nature.
Figure 13.3 The Vertical Nature of U.S. Domestic Law

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It’s important to note, however, that not all law can be conceived as a vertical structure. Some laws, such
as international law, or law between sovereign states, are best thought of in a horizontal structure. For
example, treaties have a horizontal structure. This is because the parties to international treaties are
sovereign states. Since each state is sovereign, that means that one sovereign state is not in a legally
dominant or authoritative position over the other. SeeFigure 13.4 "An Illustration of the Horizontal
Nature of International Law between Nation-States" for an illustration of the horizontal nature of
international law between nation-states, using the North American Free Trade Agreement as an example.
Figure 13.4 An Illustration of the Horizontal Nature of International Law between Nation-States

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An obvious challenge to laws created in horizontal power structures that lie outside of any legitimate
lawmaking authority “above” the parties is that enforcement of violations can be difficult. For this reason,
many horizontal laws, like treaties, contain provisions that require the parties to the treaty to submit to a
treaty-created dispute resolution panel or other neutral tribunal, such as
the International Court of Justice (ICJ). Though it is common for treaties to set forth expectations that
disputes will be heard before some predesignated tribunal, some international relations experts believe
that the state of international law is one of persistent anarchy.
Examine the differences between vertical structure and horizontal structures of law. Consider the case of a
criminal in the United States. The criminal can be prosecuted by the laws of the United States (federal or
state, depending on the jurisdiction of the offence) and, if convicted, will have to submit to the authority
of the United States for punishment. This is because we recognize that there is some legitimate authority
in domestic law that allows the U.S. government to exact punishment against convicted criminals.
Compare this to a sovereign state that violates a treaty agreement. For example, perhaps a member of a
treaty has broken its treaty promise to refrain from fishing in a certain fishery. Since in the international
arena there is no overarching power “above” the parties to a treaty, enforcement of treaty agreements can
be difficult.
Another common challenge in international law is that the laws are applicable only to parties who
voluntarily choose to participate in them. This means that a sovereign state cannot generally be compelled
to submit to the authority of the international law if it chooses not to participate. Compare this with
domestic law. Everyone within the United States, for example, is subject to the jurisdiction of certain state
and federal courts, whether they voluntarily choose to submit to jurisdiction or not. This is why fleeing
criminals can legitimately be caught and brought to justice in domestic law through extradition.

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The Nature of Law as It Applies to Businesses Operating in the International
Arena
Businesses are not involved in signing treaties or in creating law that applies between sovereign states.
Indeed, the sovereign states themselves have the only power to conduct foreign affairs. In the United
States, that power rests with the president, though Congress also has important roles. For example, the
Senate must ratify a treaty before the treaty binds the United States and before its provisions become law
for the people within the United States.
However, businesses are required to abide by their own applicable domestic laws as well as the laws of the
foreign country in which they are conducting business. When domestic laws apply to businesses operating
internationally, that is a vertical legal structure, such as is illustrated in Figure 13.3 "The Vertical Nature
of U.S. Domestic Law". This is because there is a legitimate authority over the business that governs its
behavior.
As noted in the example concerning U.S. companies doing business with Foxconn and Hon Hai Precision
Industry Co., international business can involve creating contracts between parties from different nations.
These contracts are horizontal in nature, much like a treaty. However, they are also subject to a vertical
legal structure, because the parties to the contact will have chosen which laws will apply to resolve
disputes arising under the contract. For example, if Microsoft, a U.S. company, has a contract with KYE
Systems Corp., a Chinese manufacturer, to assemble its products, the contract might very well include a
choice of law clause that would require any contract dispute to be settled in accordance with Washington
State law. A choice of law clause is a contractual provision that specifies which law and jurisdiction will
apply to disputes arising under the contract. The contract might contain such a clause because Microsoft’s
headquarters are in Washington State, and it would be more convenient for Microsoft to settle any
disputes arising under a contract by using the laws in the state where it is located. This probably would be
terribly inconvenient for KYE Systems Corp., but the benefits of obtaining a Microsoft contract probably
outweigh the potential inconvenience of resolving disputes in the Washington State court system.
Additionally, a well-established United Nations treaty,
theConvention on the Recognition and Enforcement of Foreign Arbitral Awards, provides for the

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enforcement of arbitral awards among member states. That means Microsoft and KYE Systems Corp.
could agree in a predispute arbitration clause, perhaps in a purchase order or invoice, to arbitrate their
disputes in Washington, using Washington contract law, and in English. The prevailing party in the
arbitration could take the award to court in either Washington or China and convert it into a legally
binding judgment under the treaty. Choice of law clauses have consequences regarding the way the
contract will be interpreted in the event of a dispute, costs associated with defending a complaint arising
under a contract, and convenience. See Figure 13.5 "The Horizontal and Vertical Nature of Contract
Relationships in the Global Legal Environment" for an illustration of the horizontal and vertical nature of
contract law in international business.
Figure 13.5 The Horizontal and Vertical Nature of Contract Relationships in the Global Legal

Environment

KEY TAKEAWAYS
While international law between sovereign states is relevant to business in many ways—for instance, it
would be illegal for a company to ignore the terms of a treaty that its own country had ratified—the types
of law that are relevant to businesses operating in the international environment are domestic laws. A

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choice of law clause within the contract designates which country’s law will apply to a dispute arising
under an international contract.

EXERCISES
1.

If you were creating a contract with a supplier in a different country, what types of things would you
consider when deciding on the choice of law clause?

2.

Check out http://www.ustr.gov/trade-agreements/free-trade-agreements/north-american-free-tradeagreement-nafta. How might this international law present opportunities for businesses in the United
States that might wish to export or import products to or from Canada or Mexico?

3.

Could a U.S. state enter into a treaty with a sovereign nation outside the United States? Why or why not?

[1] Ting-I Tsai, “Hon Hai Gives Workers a Raise,” Wall Street Journal, May 29,
2010,http://online.wsj.com/article/SB10001424052748703957604575272454248180106.html?mod=WSJ_hpp_sec
tions_tech (accessed September 27, 2010).

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13.2 Trade Regulations, Contracts, and Prohibited Activities in
International Business
LEARNING OBJECTIVES
1.

Examine U.S. trade regulations.

2.

Explore considerations for contracts in the international environment.

3.

Examine prohibitions of certain business activities in the international context.

Several U.S. laws apply to U.S. companies conducting business internationally. For example, trade
regulations are relevant to importers and exporters of products. Also, some activities are prohibited
to U.S. businesses, such as doing business with a terrorist organization. It is important for all
companies contemplating doing business in the international environment to understand the laws
that apply to their activities so that they can avoid criminal and civil liability, and maintain a
commitment to ethics.

Trade Regulations
The removal or reduction of trade barriers in accordance with the former
General Agreement on Tariffs and Trade (GATT) and most recently the
World Trade Organization presents opportunities for businesses. Likewise, multinational agreements that
remove trade barriers to create largely duty-free and tariff-free trading zones, such as the
North American Free Trade Agreement, allow for freer flow of goods and services between specific
countries. These agreements create tremendous opportunities for businesses because they lower the costs
associated with importing and exporting, which is a primary consideration for many companies.
Companies wishing to export or import products are subject to federal trade
regulations. Export controls prohibit or restrict the export of certain types of products while limiting or
restricting specific products from entering a country, perhaps by way of tariffs or quotas. The U.S.
government views exporting as a privilege and not as a right and has the authority to impose a total ban

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on exporting on U.S. companies for export control violations. Try to imagine what an export ban would do
to companies such as Microsoft, Boeing, or Apple.
The activities of companies that ship products overseas are subject to federal export controls.
To export simply means to transport products to another country. Export controls are regulated by several
departments of the federal government. For example, the Export Administration Regulations are
administered by the U.S. Department of Commerce Bureau of Industry and Security, and they regulate
items that may have a dual commercial or military use, such as computers and electronics. The U.S.
Department of the Treasury Office of Foreign Assets Control regulates and enforces trade sanctions. The
U.S. Department of State International Traffic in Arms Regulation prohibits certain types of trade, such as
the unlicensed export of weaponry and certain chemicals.
Other federal agencies and programs exist in a supportive capacity, to assist U.S. businesses in their
export endeavors rather than to regulate and enforce export controls. For example, the U.S. Department
of Commerce’s International Trade Administration supports U.S. exports and competitiveness abroad.
Check out Note 13.21 "Hyperlink: Exporting?" for several short videos designed to teach companies how
to engage in this lucrative and large marketplace.

Hyperlink: Exporting?
http://www.census.gov/foreign-trade/aes/exporttraining/videos
Check out these short training videos to learn about regulatory compliance.
Similarly, the National Export Initiative was created by the Obama administration, and it assists U.S.
businesses to operate in the global market. Check out President Obama discussing the need to boost
exports at a recent import/export conference.

Hyperlink: President Obama Discussing the Importance of Export and the
Creation of the National Export Initiative
http://www.export.gov/nei/index.asp

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Companies wishing to import products are also subject to import controls. Import controls take many
forms including tariffs, quotas, and bans or restrictions. The U.S. Department of Homeland Security
Customs and Border Protection Agency (CBA) has a primary role in import control administration and
regulation. For example, it inspects imports to classify them to establish their tariff schedule.
A tariff applies to certain goods imported from other countries. Tariffs are import taxes. They are imposed
to render the imported product more expensive and to keep the cost of nonimported products (domestic
products) attractive to consumers. CBA customs officers classify the imported goods, which determines
the applicable tariff. However, the Customs Modernization and Informed Compliance Act places
responsibility for compliance with import laws on the importer.
Quotas apply to certain goods. Quotas are simply limits on quantity. No absolute quotas exist, but certain
tariff rate quotas apply to certain items, such as specific types of textiles and dairy products.
A tariff rate quota simply provides favorable tariffs on certain quantities of particular types of imports.
Bans apply to goods that are prohibited by law to import, because they are dangerous to public safety,
health, the environment, or national interests. Other items are restricted from import. For example, it is
illegal to import items of cultural heritage from other countries without permission. Check out Note 13.28
"Hyperlink: What? These Old Rocks?" to see a recent story about 525-million-year-old fossils that were
illegally imported into the United States and have been returned to China.

Hyperlink: What? These Old Rocks?
http://www.cbp.gov/xp/cgov/newsroom/highlights/chinese_fossils.xml
Along with the CBA, the U.S. International Trade Commission investigates import injuries to the United
States, such as dumping and subsidized imports, and the need for safeguards. Dumping is when a foreign
producer exports products to sell at prices less than its cost of manufacturing. Subsidized imports are
products produced overseas for which a government has provided financial assistance for the production.
When dumping or subsidized imports materially injure or threaten to injure domestic producers, the
United States may impose a countervailing duty for subsidized products or an antidumping duty for
dumped products. These duties, which are particular types of tariffs, reduce the negative impact that such
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practices could have on U.S. companies. Safeguards are limited duration growth restrictions that are
imposed when domestic markets are threatened or injured from imports. This allows for domestic
markets to adjust to the surge from the import market. For example, the United States imposed
safeguards on Chinese textiles in response to actual or threatened market disruption of the U.S. textile
industry.

[1]

Contracts
The U.N. Convention on Contracts for the International Sale of Goods(CISG) applies to the sale of goods
between parties from countries that are signatories to this treaty. Like
the Uniform Commercial Code (UCC), it creates a uniform law for the parties that adopt it. Specifically,
the CISG applies to contracts for international sale of commercial goods. Additionally, like the UCC, it
provides gap-fillers for terms that may not be expressly stated in the contract. However, important
differences between the UCC and the CISG exist, particularly with respect to revocability of an offer,
acceptance, the requirement for a writing to be enforceable, and essential terms. See Figure 13.7 "A
Comparison of Differences between the CISG and the UCC" for a comparison between the CISG and the
UCC.

[2]

The contracting parties may opt out of the CISG, providing that they do it expressly.

Figure 13.7 A Comparison of Differences between the CISG and the UCC

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The CISG does not limit the parties to a particular forum to resolve disputes, and it does not limit the
terms of the contract itself. It is important for parties to choose which forum will apply to disputes arising
under the contract. Choice of forum clauses specify where complaints will be heard. If parties opt out of
the CISG, then they must choose which law will apply to their contract by a choice of law clause. The
parties will also need to agree on the official language of the contract. Given the precise language
necessary for contractual agreements to be interpreted, this choice clearly matters to the interests of the
contracting parties.

Employment Law and Human Rights
U.S. citizens that are working for U.S. companies overseas are protected by U.S. federal employment laws,
such as Title VII of the Civil Rights Act and the Americans with Disabilities Act. This means that U.S.
companies may not illegally discriminate against U.S. employees with a protected characteristic simply
because those employees happen to report to work for the company on foreign soil.
Additionally, the Alien Torts Claims Act allows noncitizens to bring suit in U.S. federal court against U.S.
businesses or citizens that have committed torts or human rights violations in foreign lands.

Prohibited Activities
Those engaged in international business must be aware of prohibited activities, because severe criminal
penalties are possible. For example, paying bribes to get things done is not permitted. The
Foreign Corrupt Practices Act (FCPA) prohibits the payment of bribes by U.S. companies and the
employees of those companies. Violation of this law is a criminal offense. It does, however,
permit grease payments, or facilitating payments, if such payments are permitted by the local government
where the payments occurred. Since it is extremely rare to find a jurisdiction that legally permits grease
payments (even in countries where corruption is rampant, it’s probably still illegal), the grease payments
exception provides false comfort to those who undertake to use it.
U.S. citizens and companies must refrain from doing business with prohibited people or entities. The U.S.
Department of the Treasury Office of Foreign Assets Control (OFAC) maintains a list of Specially
Designated Nationals and Blocked Persons, which is a list of persons, businesses, and entities with which
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U.S. citizens are forbidden from conducting business. Similarly, U.S. citizens are not permitted to engage
in trade or business dealings with those in countries in which a U.S. embargo or U.S. imposed economic
sanctions exists. Check out Note 13.42 "Hyperlink: Prohibited Parties" for these lists.

Hyperlink: Prohibited Parties
Specially Designated Nationals and Blocked Persons List
http://www.treas.gov/offices/enforcement/ofac/sdn
Economic Sanctions
http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml
U.S. citizens are also blocked from conducting transactions with terrorists or terrorist
organizations.

[3]

Conducting transactions with prohibited persons, entities, or businesses can result in

serious criminal violations, which carry financial penalties and long prison sentences.
Finally, while the United States maintains economic boycotts against several countries, under
U.S. antiboycott laws it is illegal for U.S. persons and companies to comply with any unsanctioned foreign
boycott. The most important unsanctioned foreign boycott is the long-standing Arab League boycott of
Israel. If a U.S. person or company receives a request to comply with the boycott of Israel (such as a
request from a buyer in Saudi Arabia not to ship goods via Israel, or not to ship on an Israeli flag ship, or
even to state whether the seller has any operations in Israel or to state the religious affiliations of each
employee in the company), then the U.S. person or company must refuse to comply with the request and
report it to the appropriate U.S. government agency within a specified period of time.

KEY TAKEAWAYS
International business opportunities are lucrative, and the global marketplace provides vast opportunities
for growth. However, U.S. companies that engage in international business are subject to trade
regulations, must be cognizant of the challenges inherent when forming international contracts, and are
prohibited from engaging in certain activities.

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EXERCISES
1.

Look at the clothing labels of the clothes you are wearing. Was anything that you are wearing produced in
the United States? Besides garment appeal, what types of considerations might consumers weigh when
deciding to buy apparel?

2.

What are the benefits and drawbacks of import controls for domestic industries? Do you favor stronger
controls? More lax controls? Why?

3.

Several U.S. sanctions programs are limited to U.S. companies only. The decades-old sanctions program
against Cuba, for example, has meant that Asian and European companies can do as much business as
they wish in Cuba. How effective do you think a sanctions program like this can be? Who are the winners,
and who are the losers?

4.

Wal-Mart, as a U.S. company, does not do any business in Cuba and does not purchase from any Cuban
suppliers. Wal-Mart Canada, a Canadian company, found out several years ago that a supplier outsourced
the manufacture of pajamas to Cuba, and that these Cuban-made pajamas were being sold in Wal-Mart’s
Canadian stores. The U.S. parent company ordered the Canadian subsidiary to pull the product, but the
Canadian subsidiary reported that doing so would violate Canadian law, which prohibits Canadian
companies from complying with the U.S. boycott of Cuba. What should Wal-Mart U.S. do? What should
Wal-Mart Canada do?

[1] U.S. Government Accountability Office, “U.S.-China Trade: Textile Safeguards Should Be Improved,” GAO-05296, April 2005, http://www.gao.gov/new.items/d05296.pdf (accessed September 27, 2010).
[2] U.S. Department of Commerce, Office of the Chief Counsel for International Commerce, “The U.N. Convention
on Contracts for the International Sale of Goods,” August
2002,http://www.osec.doc.gov/ogc/occic/cisg.htm (accessed September 27, 2010).
[3] U.S. Department of the Treasury, Office of Foreign Assets Control, “Terrorism: What You Need to Know about
U.S. Sanctions,” Executive Order 13224 §2(a), September 23,
2001,http://www.treasury.gov/offices/enforcement/ofac/programs/terror/terror.pdf (accessed September 27,
2010).

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13.3 Concluding Thoughts
Tremendous opportunities exist for companies that wish to operate in the international markets.
However, the international legal environment requires careful planning to avoid costly mistakes
associated with violations of trade regulations, the formation of international contracts, and criminal
prohibitions. Additionally, ethical considerations involving human rights and the natural
environment are ever present.

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