Deck 4: The American Legal System

Question 1

Why did the court consider Florida to be the more "convenient" location for the case
b. Explain the dissenting opinion.

Answer 1

a.The court said that "all of the causes of action occurred in Florida. Furthermore, 25 nonparty witnesses that Kia and Emerald plan to call on the issue of liability reside in Florida and cannot be subpoenaed and made to personally appear in the Houston Circuit Court. The inability to have live testimony in Alabama from these nonparty witnesses in the liability phase of this action, we believe, clearly favors dismissal." b.The dissent argues that Kia and Emerald failed to show that the breach of warranty claim against Emerald arose outside of Alabama. "The act giving rise to the breach-of-warranty claim against Emerald was Emerald's delivery of an allegedly defective car at its dealership in Houston County, not the accident in Florida."

Question 2

In your view, does rape occur if permission is withdrawn and sexual intercourse continues Explain.

Answer 2

Thus far, the clear majority of the small number of states that have directly addressed the issue have found that continued sex after withdrawal of consent does constitute rape.  A women's sexual autonomy seeks to be a  key consideration among those who support this position.  They also point to America's cultural and intellectual evolution from our earlier social and legal view of women as property.

Question 3

University of Chicago law professor Richard Epstein pointed out how quickly Americans turn to legal remedies rather than relying on informal social customs (negotiation, neighborhood groups, simply accepting small losses and disturbances rather than fighting about them) to resolve conflicts. In your view, why are social customs increasingly ineffective in settling disputes in this country

Answer 3

Epstein suggests that the causes include the existence of a plethora of government regulations on an infinite variety of topics, relationships that are more impersonal, inability to directly observe all relevant members of our society and diminishing trust. Paul Reidinger, "Six Decrees of Regulation," ABA Journal , May 1995,

Question 4

Do you expect to see greater reliance on law as our society becomes increasingly complex
b. Can you think of any meaningful substitutes for law as we now practice it Explain.

Question 5

In your judgment, are Americans too willing to file lawsuits Explain.

Question 6

Judicial reform advocates often argue that the United States should adopt the English rule providing that the winner in a lawsuit is entitled to recover its reasonable litigation expenses from the loser.
a. In brief, what are the strengths and weaknesses of the English rule
b. Would you favor it Explain. See Herbert Kritzer, "Searching for Winners in the Loser Pays Rule," ABA Journal, November 1992,

Question 7

Why did this appeals court reverse the decision of the lower court
b. Why was the case remanded to "a different justice"

Question 8

Crowley, who became intoxicated at a postrace party on McRoberts's boat, was driving after the party and caused a multicar accident that resulted in serious injuries to Culver, who was driving one of the other vehicles. Culver's passenger was killed, and
Crowley was later convicted of reckless homicide. Culver sued McRoberts for negligence. Crowley's drinking took place in the galley of McRoberts's 40-foot boat. McRoberts did not provide the liquor and McRoberts, who was busy with recording race results, was not aware of how much drinking Crowley had done. The Indiana
Dram Shop statute provided that "it is unlawful for a person to sell, barter, deliver, or give away an alcoholic beverage to another person who is in a state of intoxication if the person knows that the other person is intoxicated." Expert testimony and a blood alcohol reading suggested that Crowley may have been visibly drunk, but several witnesses on the boat said they did not observe visible signs of intoxication. Did McRoberts violate the Indiana Dram Shop law, and was McRoberts negligent in failing to properly supervise Crowley Explain. See Culver v. McRoberts, 192 F.3d 1095 (7th Cir. 1999).

Question 9

Plaintiff Jonathan Gold was hired to work at defendant Deutsche Bank after completing his MBA degree at New York University. Before beginning employment, Gold signed various documents, including Form U-4 that the National Association of Securities Dealers (NASD) requires all registered representatives to sign. Form U-4 provides for arbitration for all employment disputes. Gold was fired after working about one year. He then filed suit claiming sexual harassment based on his sexual orientation. Deutsche Bank moved to compel arbitration. Gold resisted arbitration arguing, among other things, that Form U-4 was too difficult to understand and that it raised questions in his mind. Gold also showed that Deutsche Bank had certified that it provided Gold with the relevant NASD rules when it had not. Must Gold submit his claim to arbitration Explain. See Gold v. Deutsche Aktiengesellschaft , 365 F.3d 144 (2d Cir. 2004).

Question 10

In general under the Federal Arbitration Act, are arbitration clauses in contracts considered enforceable Explain. b. In approving the FAA, what message was Congress sending about the general enforceability of arbitration clauses

Question 11

The police found three marijuana plants in an Iowa man's home. The man admitted smoking marijuana with his six-year-old son and was sentenced to 27 years in prison on various drug and child endangerment charges. He was to be eligible for parole in five years. 6
a. Does the sentence seem fair and just Explain.
b. Would you legalize marijuana Explain.

Question 12

Jonathan Rauch argues that America is making a mistake in allowing what he calls Hidden Law to be replaced by what he calls Bureaucratic Legalism. Hidden Law refers to unwritten social codes, whereas Bureaucratic Legalism refers to state-provided due process for every problem. Thus universities formerly expected insults and epithets among students to be resolved via informal modes such as apologies, while today many universities have written codes forbidding offensive or discriminatory verbal conduct. Similarly, four kindergarten students in New Jersey were suspended from school for three days because they were observed "shooting" each other with their fingers serving as guns.
a. Would we be better off leaving campus insults and school-yard finger "shootings" to the Hidden Law Explain.
b. Can you think of other examples where we have gradually replaced Hidden Law with Bureaucratic Legalism
c. Rauch argues that the breakdown of one Hidden Law, the rule that a man must marry a woman whom he has impregnated, may be "the most far-reaching social change of our era." Do you agree Explain. See George Will, "Penalizing These Kids Is Zero Tolerance at a Ridiculous Extreme," Des Moines Register, December 27, 2000,

Question 13

What were Nickles's objections to the expert, Boldus's, testimony

Question 14

According to this appeals court, what errors were made by the judge at trial

Question 15

A Rhode Island man pleaded guilty to child molestation. As an alternative to imprisonment and as a condition of his probation, the judge ordered him to purchase a newspaper ad displaying his picture, identifying himself as a sex offender, and encouraging others to seek assistance. A number of courts across the country have required apologies or other forms of humiliation in criminal cases.
a. What objections would a defendant's lawyer raise to that method of punishment
b. Would you impose a "humiliation sentence" if you were the judge in a case like that in Rhode Island Explain.

Question 16

Explain Schwarzenegger's complaint.

Question 17

Flanagan's, a New Jersey general contractor, ordered an irrigation pumping station from Wise, a Pennsylvania sales representative for Watertronics products. Watertronics, a Wisconsin manufacturer, completed about 15 percent of the pumping station and sent an invoice to Flanagan's seeking partial payment. When payment was not forthcoming, Watertronics asked Flanagan's to submit a credit application. Flanagan's did so and then sent a check for the agreed-upon amount. In the course of their transactions, Flanagan's had a four- to five-minute phone conversation with Watertronics. After the pump was installed problems arose, and Flanagan's made no further payments. Watertronics sued in Wisconsin to collect the balance due. Flanagan's moved to dismiss for lack of jurisdiction. Rule on that motion. See Watertronics v. Flanagan's, 635 N.W.2d 27 (Wis. App. 2001).

Question 18

What are the purposes and uses of the concept of jurisdiction Why do we limit the courts to which a claim can be taken

Question 19

The law aside, was J.L. morally wronged by Baby Explain.

Question 20

Nichols, age 26, and Dobler, a minor, were guests at Maldonado's party. Dobler was served alcohol and, while intoxicated, repeatedly hit Nichols with a hammer. Nichols sued Maldanado for negligence in serving alcohol to a minor. The jury found for Nichols. Maldanado appealed. How would you rule on that appeal Explain. See Nichols v. Dobler , 655 N.W. 2d 787 (Mich. Ct. App. 2002).

Question 21

Law cases often read like soap operas even as they reveal important truths. A woman and man, each married to others, had engaged in a long-term love affair.
The woman's husband died, and she pleaded with her paramour to leave his New York home to visit her in Florida. She affirmed her love for the man. They made arrangements to meet in Miami, but on his arrival at the airport he was served a summons informing him that he was being sued. His Florida "lover" sought $500,000 for money allegedly loaned to him and for seduction inspired by a promise of marriage.
a. Does the Florida court have proper jurisdiction over him
b. What if he had voluntarily come to Florida on vacation See Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1937).

Question 22

Does the pursuit of justice require the legal system to hear Marquis' complaint Explain.
b. How would you rule Explain.
c. Should your answers be influenced by the fact that Marquis intended to apply for admission to law school

Question 23

Dodge slipped leaving work and claimed that she suffered knee, ankle, and back injuries. Dodge sued the workplace cleaning service, but she provided no expert testimony to establish that the fall caused the injuries. Rather Dodge provided her own explanation of the fall and resulting injuries. Did the trial court err in admitting Dodge's lay person testimony Explain, See Dodge-Farrar v. American Cleaning Services Co., 54

Question 24

Sea Pines, a privately owned suburban community on Hilton Head Island, South Carolina, was designated a wildlife sanctuary by the state legislature. After study, the state Department of Natural Resources decided to issue permits to allow limited deer hunting on the land to reduce overpopulation. Various environmental groups challenged the issuance of the permits. What defense would you expect the state to offer in court Explain. See Sea Pines Ass'n for Protection of Wildlife v. South Carolina Dept. of Natural Resources, 550 S.E. 2d 287 (S. C. S. Ct. 2001).

Question 25

Professor and criminal justice expert Morgan O. Reynolds argues that sterner punishment has led to reduced crime in the United States:
This reflects a broader pattern: As our crime rates have fallen, serious crime rates in England have risen substantially, as a recent study from the U.S. Bureau of Justice Statistics found. For example, victim surveys show that
• The English robbery rate was about half the U.S. rate in 1981 but was 40 percent higher than America's in 1995.
• The English assault rate was slightly higher than America's in 1981 but more than double by 1995.
• The English burglary rate was half America's in 1981 but nearly double by 1995.
Why these dramatic increases in English crime rates, while Americans' lives and property grew safer The obvious explanation has been too often downplayed or ignored: The United States has instituted tougher, more predictable punishment for crime. The study's authors attribute the trends they note to the increasing conviction rates and longer sentences meted out in the United States versus the decreasing conviction rates and softer sentences in England and Wales. English conviction rates for rape, burglary, assault, and auto theft have plunged by half or more since 1981, while the likelihood of serving prison time for committing a serious violent crime or a burglary has increased sustantially in the United States. 48
a. Do you agree that harsher and more certain punishment will reduce criminal behavior
b. Do "root causes" such as being born out of wedlock affect criminal behavior Explain.

Question 26

After drinking at the Elks Lodge, Dionne was escorted to a taxi where the driver, Grader, was told to take Dionne home because he had too much to drink. Dionne would not give Grader directions to his home and then told Grader to take him to another bar. Dionne paid his fare and went into the second bar, and later that bar summoned the same cab to take Dionne home. On this occasion, Dionne told Grader to take him to a convenience store. Dionne conducted his business there with no overt signs of intoxication. He then returned to the cab and asked to be driven back to the Elks Lodge. Grader deposited Dionne at the Elks Lodge and watched as Dionne passed by his own car in the parking lot. Grader heard other voices in the lot, assumed Dionne would be fine, and resumed his work. Later that evening Dionne died in a single-car accident. His blood-alcohol level was.25. The facts are not clear as to whether Dionne drank more after leaving Grader's cab. The taxi service was sued for negligence for not taking Dionne home. How would you rule on that negligence claim Explain. See Mastriano v. Blyer, 779 A.2d 951 (Sup. Jud. Ct. Maine 2001).

Question 27

What do the dissenting justices mean by saying "the majority confuses issues of proof with issues of whether to recognize the tort duty"

Question 28

Richard Paul Dube suffered serious injuries when the vehicle he was driving was struck head-on by a vehicle being driven in the wrong direction on a Massachusetts highway by Ravindra Bhoge. Bhoge had earlier in the evening consumed a number of drinks with three friends at a bar. Bhoge and his friends met regularly on Fridays after work to drink at local bars. Each person took turns paying the bill, or on some occasions, payment would be equally divided. On the night of the accident Bhoge drank enough that the trial judge inferred that Bhoge's intoxication would have been apparent. Bhoge's three friends said they saw nothing to indicate that Bhoge was impaired, although Bhoge had left his coat behind in the bar on a particularly cold evening, and he was outside the bar for 45 minutes prior to his departure. Bhoge indicated to his friends that he was "okay" as they all prepared to leave in their vehicles. Dube sued Bhoge's three friends claiming they were social hosts and were negligent in permitting Bhoge to continue drinking. How would you rule on Dube's claim Explain. See Dube v. Lanphear Others , 868 N.E.2d 619 (2007).
[For the National Center for State Courts, see http://www.ncsconline.org]

Question 29

Why do you think the plaintiffs/respondents wanted the case heard in Alabama rather than in Florida

Question 30

Peremptory challenges may not constitutionally be used to exclude a potential juror from a trial on racial or gender grounds.
a. Must a criminal jury reflect the ethnic or racial diversity of the community Explain. See Powers v. Ohio, 111 S.Ct. 1364 (1991).
b. Could potential jurors lawfully be rejected on the basis of their place of residence Explain. See U.S. v. Bishop, 959 F.2d 820 (9th Cir. 1992).

Question 31

A 2001 study concludes that girls are punished more harshly than boys for minor criminal conduct. Girls arrested for more serious crimes receive fewer services and placement opportunities than boys. Girls are less likely than boys to engage in violence, and girls are less likely to be repeat offenders. 5 Why does our criminal justice system apparently treat girls more harshly than boys

Question 32

French journalist Alain Clement offered a partial explanation for Americans' increasing reliance on lawsuits to resolve conflicts:
Diverse causes explain the growth of the contentious mood in America. One could be called the devaluing of the future. In 1911, the Russian political scientist Moise Ostrgorski wrote, "Confident of the future, Americans manifest a remarkable endurance to an unhappy present, a submissive patience that is willing to bargain about not only civic rights, but even the rights of man." 51
a. What does Clement mean
b. How do you explain our increased reliance on litigation

Question 33

Did this decision conclude that the plaintiff had not been a victim of sexual harassment, wrongful dismissal, or the like Explain.

Question 34

In 1982, a security guard was murdered during a robbery of a south Chicago McDonald's. Alton Logan was sentenced to life in prison for that murder. At the same time, two Chicago public defenders, Dale Coventry and Jamie Kunz, were representing Andrew Wilson, who was accused of murdering two police officers. Based on a tip, Coventry and Kunz suspected that Wilson was the actual murderer in the McDonald's case. They questioned Wilson who admitted that he, not Logan, was the murderer. Because of their duties under the attorney-client privilege, Coventry and Kunz felt they could not reveal what they knew. Logan, therefore, went to prison an innocent man, they believed. The public defenders decided to write the story in a notarized affidavit and lock it in a box in case something should happen that would allow them to reveal what they knew. When Wilson died in prison of natural causes in 2008, Coventry and Kunz revealed their client's confession. After 26 years, Logan was released from prison. At this writing, he is awaiting a decision by prosecutors about re-trying him for the McDonald's murder. 52
a. Why does the legal profession expect lawyers to keep secret their clients' confidential communications
b. Had you been Coventry and Kunz, would you have revealed what you knew in order to immediately secure justice for Logan Explain.

Question 35

The U.S. Supreme Court ended its first full term under new Chief Justice John Roberts in June 2007 with a series of decisions that appeared to represent a shift toward a more conservative stance; including decisions upholding abortion restrictions, cutting back on free speech rights in schools, and limiting the use of race as a consideration in school integration efforts. 45 Perhaps the most notable feature of the Court's alleged shift to the right is a philosophy that Chief Justice Roberts has called "judicial selfrestraint." 46 The conservative majority on the Court repeatedly concluded that many cases simply did not belong in court at all. The Wall Street Journal described that change in the Court's direction as follows:
Taken as a whole, the Supreme Court term that ended last week reflected conservatives'antipathy to what they label judicial activism-courts making decisions they believe are best left to an elected executive, a legislature or the rough and tumble of the free market. That runs counter to much of the past 50 years, during which the nation's highest court saw litigation as a way to reshape American society, leading to rulings that outlawed racial segregation, recognized individual privacy rights, and curbed police misconduct. 47
Are you most supportive of the current judicial restraint approach championed by Chief Justice Roberts, or would you prefer the judicial activism that was more characteristic of the Court in previous decades Explain.

Question 36

Why did the court deny James' argument that she had not entered into a valid agreement to arbitrate her claims b. Why did the court deny James' argument that she could not afford the costs of arbitration
C) Why did the court deny James' argument that the game contract, including the arbitration clause, was invalid because it was induced by fraud

Question 37

On July 5, 1884, four sailors were cast away from their ship in a storm 1,600 miles from the Cape of Good Hope. Their lifeboat contained neither water nor much food. On the 20th day of their ordeal, Dudley and Stevens, without the assistance or agreement of Brooks, cut the throat of the fourth sailor, a 17- or 18-year-old boy. They had not eaten since day 12. Water had been available only occasionally. At the time of the death, the men were probably about 1,000 miles from land. Prior to his death, the boy was lying helplessly in the bottom of the boat. The three surviving sailors ate the boy's remains for four days, at which point they were rescued by a passing boat. They were in a seriously weakened condition.
a. Were Dudley and Stevens guilty of murder Explain.
b. Should Brooks have been charged with a crime for eating the boy's flesh Explain. See The Queen v. Dudley and Stephens, 14 Queen's Bench Division 273 (1884).

Question 38

At [ http://www.instituteforlegalreform.org/issues/issue.cfmissue=TLI ] study the criticismof trial lawyers. Do you agree that trial lawyers "abuse and misuse" the legal systemExplain.

Question 39

What objection was raised by the dissenting Justice Sabers

Question 40

Tompkins was a citizen of Pennsylvania. While walking on a railroad footpath in that state, he was struck by an object protruding from a passing freight train owned by the Erie Railroad Company, a New York corporation. Tompkins, by virtue of diversity of citizenship, filed a negligence suit against Erie in a New York federal court. Erie argued for the application of Pennsylvania common law, in which case Tompkins would have been treated as a trespasser. Tompkins argued that the absence of a Pennsylvania statute addressing the topic meant that federal common law had to be applied to the case. Should the federal court apply the relevant Pennsylvania state law, or should the court be free to exercise its independent judgment about what the common law of the state is or should be See Erie Railroad v. Tompkins, 304 U.S. 64 (1938).

Question 41

Who won this case and why

Question 42

Why was Schwarzenegger unable to sue Fred Martin in California

Question 43

Landis was employed by FINOVA. FINOVA later concluded that Landis had misrepresented certain elements of his experience that had been important in the decision to hire him. FINOVA then dismissed Landis and declared the employment contract void. That contract contained a clause requiring all employment-related disputes to be decided by arbitration. Landis sued FINOVA claiming breach of contract and defamation. FINOVA moved to compel arbitration. Landis argued that the arbitration clause was unenforceable because FINOVA had declared the agreement void. Rule on FINOVA's motion to compel arbitration. Explain. See Landis v. FINOVA, 2000 U.S. Dist. LEXIS 5835 (S.D.N.Y. 2000).