INSTUCTOR MANUAL FOR kk kk
Law for Business 15e Barnes
kk kk kk kk
Chapter 1-47 kk
CHAPTER 1: LAW AND LEGAL REASONING
kk kk kk kk kk
LECTURE OUTLINE kk
1. Discuss the Twisdale case that opens this chapter. It provides an interesting
kk kk kk kk kk kk kk kk kk kk kk
vehicle for discussing the functions of law and legal interpretation.
kk kk kk kk kk kk kk kk kk kk
a. Have your students identify the various functions of the law and then discuss
kk kk kk kk kk kk kk kk kk kk kk kk
which specific functions are furthered by this antiretaliation aspects of the Civil
kk kk kk kk kk kk kk kk kk kk kk kk
Rights statute.
kk kk
b. In the context of legal interpretation, the court found that Twisdale did seem to be
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
protected based on the literal language of the statute. However, it looked beyond
kk kk kk kk kk kk kk kk kk kk kk kk kk
the plain meaning to reject his claim. Specifically, the court believed that
kk kk kk kk kk kk kk kk kk kk kk kk
interpreting the law in a manner that would protect him from retaliation would
kk kk kk kk kk kk kk kk kk kk kk kk kk
undermine the purpose of the statute. It is conceivable that the court is motivated
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
by public policy concerns as well.
kk kk kk kk kk k k
c. What do your students think of courts who do look at intent and public policy?
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
Use this as a lead-in for a discussion of legal jurisprudence.
kk kk kk kk kk kk kk kk kk kk kk
2. Question students about their definitions of ―law.‖ Make certain they understand
kk kk kk kk kk kk kk kk kk kk
the importance of law in all aspects of our lives.
kk kk kk kk kk kk kk kk kk kk
3. Discuss the various functions that law serves in society. You might do this by
kk kk kk kk kk kk kk kk kk kk kk kk kk
having the students identify some of them.
kk kk kk kk kk kk kk
a. Discuss the conflicts that arise between and among the various functions of law.
kk kk kk kk kk kk kk kk kk kk kk kk
For example, there often are conflicts between the goals of individual freedom and
kk kk kk kk kk kk kk kk kk kk kk kk kk
achieving social justice. Note the problems that arise when there is no clear
kk kk kk kk kk kk kk kk kk kk kk kk kk
consensus on what is just.
kk kk kk kk kk
b. Ask the students if they think that law ever is ―overused.‖ They are likely to cite
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
numerous examples. For instance, this might be a time to talk about the product
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
liability cases that are regularly in the headlines. Perhaps the case involving the
kk kk kk kk kk kk kk kk kk kk kk kk kk
woman who burned herself with coffee from McDonald’s would be appropriate
kk kk kk kk kk kk kk kk kk kk kk
here. kk
1-1
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
, c. Have the students discuss what it means to have the law maintain order. You
kk kk kk kk kk kk kk kk kk kk kk kk kk
might ask students if maintaining order means maintaining the status quo. This
kk kk kk kk kk kk kk kk kk kk kk kk
can lead to a discussion of legal realism and views that law is used by those in
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
power to retain their power.
kk kk kk kk kk
4. There is a tendency for people to think of law as imposing duties without considering
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
how it establishes and preserves rights. Talk about how our system tries to match
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
rights with corresponding duties.
kk kk kk kk
a. Explain how duties, rights, and privileges make up substantive law.
kk kk kk kk kk kk kk kk kk
b. Explain that procedural law provides the framework within which substantive laws
kk kk kk kk kk kk kk kk kk kk
are created and enforced. Point out that Chapters 2 and 4 offer a more detailed
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
discussion of procedural law.
kk kk kk kk
5. Ask the students to think of an example of a duty imposed by substantive law that
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
might violate some moral or ethical belief. This might be a good time to talk about
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
the various schools of legal jurisprudence. Have them speculate how a legal positivist
kk kk kk kk kk kk kk kk kk kk kk kk kk
would differ from a legal sociologist or natural law theorist in handling such
kk kk kk kk kk kk kk kk kk kk kk kk kk
situations.
kk
6. Contrast criminal law with civil law.
kk kk kk kk kk
a. Point out that society considers it much worse to be convicted of a crime than to
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
be held civilly liable. Explain how, as a result, there are more exacting procedural
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
safeguards to protect a defendant in a criminal trial than in a civil trial.
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
b. Note the difference between compensatory damages and punitive damages. Discuss
kk kk kk kk kk kk kk kk kk
the current uproar over punitive damages and the Supreme Court’s attempt to rein
kk kk kk kk kk kk kk kk kk kk kk kk kk
them in. See State Farm Mutual Automobile Insurance v. Campbell, 123 S.Ct.
kk kk kk kk kk kk kk kk kk kk kk kk
1513 (U.S. Sup. Ct. 2003) (establishing guideposts for calculating punitive
kk kk kk kk kk kk kk kk kk kk
damages). Punitive damages are discussed further in Chapter 6.
kk kk kk kk kk kk kk kk kk
c. Point out that often one can be subject to sanctions under both criminal and civil
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
laws without violating the proscription against ―double jeopardy.‖ Find out if
kk kk kk kk kk kk kk kk kk kk kk
the students think that punitive damages in a civil trial, coupled with fines in a
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
criminal trial, constitute a type of double jeopardy.
kk kk kk kk kk kk kk kk
Marinello v. United States
kk kk kk
Marinello was charged with the crime of corruptly impeding the due administration of the
kk kk kk kk kk kk kk kk kk kk kk kk kk
Tax Code after he engaged in several activities that underreported his taxable income.
kk kk kk kk kk kk kk kk kk kk kk kk kk
However, the
kk kk
U.S. Supreme Court overturned his criminal conviction because Marinello was unaware that
kk kk kk kk kk kk kk kk kk kk kk
1-2
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
, he was under IRS investigation at the time of his activities. Citing the need to construe
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
criminal
kk
1-3
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC.
kk kk kk kk kk
, statutes narrowly, the Court ruled that the particular statute—the Omnibus Clause—did not
kk kk kk kk kk kk kk kk kk kk kk
cover all activities that underreported income. The Court believed that the statute covered
kk kk kk kk kk kk kk kk kk kk kk kk kk
a narrower range of activities aimed directly at thwarting the activities of investigations
kk kk kk kk kk kk kk kk kk kk kk kk kk
when the taxpayer knew or should have known an investigation was underway.
kk kk kk kk kk kk kk kk kk kk kk kk
Points for Discussion: This case is placed in the text as an example of the general rules
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
underlying criminal law. Specifically, a person generally cannot be convicted of a crime
kk kk kk kk kk kk kk kk kk kk kk kk kk
unless he or she violates a statute. However, such statutes must be objectively clear to a
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
reasonable person. This Government’s interpretation of this statute was believed to grant
kk kk kk kk kk kk kk kk kk kk kk kk
the Government too much discretion in determining what constituted a crime.
kk kk kk kk kk kk kk kk kk kk kk
7. The brief introduction to our legal system should be a review for most students.
kk kk kk kk kk kk kk kk kk kk kk kk kk
a. The constitutional law material is more heavily discussed in Chapter 4. An argument
kk kk kk kk kk kk kk kk kk kk kk kk
can be made for it to be presented immediately following this chapter. However,
kk kk kk kk kk kk kk kk kk kk kk kk kk
we believe students should first review Chapter 2’s discussion of the dispute
kk kk kk kk kk kk kk kk kk kk kk kk
resolution system.
kk kk
b. Talk about the role of the courts in determining the constitutionality of
kk kk kk kk kk kk kk kk kk kk kk
legislation. Do they believe this gives the courts too much power?
kk kk kk kk kk kk kk kk kk kk kk
c. Explain the relationship between state laws and federal laws. Make certain the
kk kk kk kk kk kk kk kk kk kk kk
students understand that state laws may not violate the federal constitution and must
kk kk kk kk kk kk kk kk kk kk kk kk kk
be consistent with federal statutes.
kk kk kk kk kk
Henry Schein v. Archer & White Sales
kk kk kk kk kk kk
The Federal Arbitration Act provides that parties may, through their power to contract, agree
kk kk kk kk kk kk kk kk kk kk kk kk kk
that their disputes will be arbitrated. In addition, the Act allows those same parties to
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
agree that an arbitrator, rather than a court, will determine whether that arbitration clause
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
applies to any particular dispute they may have. However, several federal appellate courts
kk kk kk kk kk kk kk kk kk kk kk kk kk
carved out a ―wholly groundless‖ exception to the latter rule by which they allowed courts
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
to conclude that arbitration was not appropriate when the court believed the claim of
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
arbitrability was groundless. In this case, the U.S. Supreme Court, citing both the statute
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
and Supreme Court precedent, ruled that the
kk kk kk kk kk kk kk
―wholly groundless‖ exception was impermissible because it contradicted the statute.
kk kk kk kk kk kk kk kk kk
Points for Discussion: This case is an example of the limits on the judiciary’s discretion
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
under the common law. It illustrates that in the hierarchy of laws, legislative law is
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
superior to judge- made law. It also illustrates the role of precedent in interpreting
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
statutes.
kk
8. The material on statutory interpretation can be extremely important in laying the
kk kk kk kk kk kk kk kk kk kk kk
foundation for how lawyers think. More importantly, it teaches students valuable
kk kk kk kk kk kk kk kk kk kk kk
1-4
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
Law for Business 15e Barnes
kk kk kk kk
Chapter 1-47 kk
CHAPTER 1: LAW AND LEGAL REASONING
kk kk kk kk kk
LECTURE OUTLINE kk
1. Discuss the Twisdale case that opens this chapter. It provides an interesting
kk kk kk kk kk kk kk kk kk kk kk
vehicle for discussing the functions of law and legal interpretation.
kk kk kk kk kk kk kk kk kk kk
a. Have your students identify the various functions of the law and then discuss
kk kk kk kk kk kk kk kk kk kk kk kk
which specific functions are furthered by this antiretaliation aspects of the Civil
kk kk kk kk kk kk kk kk kk kk kk kk
Rights statute.
kk kk
b. In the context of legal interpretation, the court found that Twisdale did seem to be
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
protected based on the literal language of the statute. However, it looked beyond
kk kk kk kk kk kk kk kk kk kk kk kk kk
the plain meaning to reject his claim. Specifically, the court believed that
kk kk kk kk kk kk kk kk kk kk kk kk
interpreting the law in a manner that would protect him from retaliation would
kk kk kk kk kk kk kk kk kk kk kk kk kk
undermine the purpose of the statute. It is conceivable that the court is motivated
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
by public policy concerns as well.
kk kk kk kk kk k k
c. What do your students think of courts who do look at intent and public policy?
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
Use this as a lead-in for a discussion of legal jurisprudence.
kk kk kk kk kk kk kk kk kk kk kk
2. Question students about their definitions of ―law.‖ Make certain they understand
kk kk kk kk kk kk kk kk kk kk
the importance of law in all aspects of our lives.
kk kk kk kk kk kk kk kk kk kk
3. Discuss the various functions that law serves in society. You might do this by
kk kk kk kk kk kk kk kk kk kk kk kk kk
having the students identify some of them.
kk kk kk kk kk kk kk
a. Discuss the conflicts that arise between and among the various functions of law.
kk kk kk kk kk kk kk kk kk kk kk kk
For example, there often are conflicts between the goals of individual freedom and
kk kk kk kk kk kk kk kk kk kk kk kk kk
achieving social justice. Note the problems that arise when there is no clear
kk kk kk kk kk kk kk kk kk kk kk kk kk
consensus on what is just.
kk kk kk kk kk
b. Ask the students if they think that law ever is ―overused.‖ They are likely to cite
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
numerous examples. For instance, this might be a time to talk about the product
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
liability cases that are regularly in the headlines. Perhaps the case involving the
kk kk kk kk kk kk kk kk kk kk kk kk kk
woman who burned herself with coffee from McDonald’s would be appropriate
kk kk kk kk kk kk kk kk kk kk kk
here. kk
1-1
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
, c. Have the students discuss what it means to have the law maintain order. You
kk kk kk kk kk kk kk kk kk kk kk kk kk
might ask students if maintaining order means maintaining the status quo. This
kk kk kk kk kk kk kk kk kk kk kk kk
can lead to a discussion of legal realism and views that law is used by those in
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
power to retain their power.
kk kk kk kk kk
4. There is a tendency for people to think of law as imposing duties without considering
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
how it establishes and preserves rights. Talk about how our system tries to match
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
rights with corresponding duties.
kk kk kk kk
a. Explain how duties, rights, and privileges make up substantive law.
kk kk kk kk kk kk kk kk kk
b. Explain that procedural law provides the framework within which substantive laws
kk kk kk kk kk kk kk kk kk kk
are created and enforced. Point out that Chapters 2 and 4 offer a more detailed
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
discussion of procedural law.
kk kk kk kk
5. Ask the students to think of an example of a duty imposed by substantive law that
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
might violate some moral or ethical belief. This might be a good time to talk about
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
the various schools of legal jurisprudence. Have them speculate how a legal positivist
kk kk kk kk kk kk kk kk kk kk kk kk kk
would differ from a legal sociologist or natural law theorist in handling such
kk kk kk kk kk kk kk kk kk kk kk kk kk
situations.
kk
6. Contrast criminal law with civil law.
kk kk kk kk kk
a. Point out that society considers it much worse to be convicted of a crime than to
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
be held civilly liable. Explain how, as a result, there are more exacting procedural
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
safeguards to protect a defendant in a criminal trial than in a civil trial.
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
b. Note the difference between compensatory damages and punitive damages. Discuss
kk kk kk kk kk kk kk kk kk
the current uproar over punitive damages and the Supreme Court’s attempt to rein
kk kk kk kk kk kk kk kk kk kk kk kk kk
them in. See State Farm Mutual Automobile Insurance v. Campbell, 123 S.Ct.
kk kk kk kk kk kk kk kk kk kk kk kk
1513 (U.S. Sup. Ct. 2003) (establishing guideposts for calculating punitive
kk kk kk kk kk kk kk kk kk kk
damages). Punitive damages are discussed further in Chapter 6.
kk kk kk kk kk kk kk kk kk
c. Point out that often one can be subject to sanctions under both criminal and civil
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
laws without violating the proscription against ―double jeopardy.‖ Find out if
kk kk kk kk kk kk kk kk kk kk kk
the students think that punitive damages in a civil trial, coupled with fines in a
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
criminal trial, constitute a type of double jeopardy.
kk kk kk kk kk kk kk kk
Marinello v. United States
kk kk kk
Marinello was charged with the crime of corruptly impeding the due administration of the
kk kk kk kk kk kk kk kk kk kk kk kk kk
Tax Code after he engaged in several activities that underreported his taxable income.
kk kk kk kk kk kk kk kk kk kk kk kk kk
However, the
kk kk
U.S. Supreme Court overturned his criminal conviction because Marinello was unaware that
kk kk kk kk kk kk kk kk kk kk kk
1-2
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
, he was under IRS investigation at the time of his activities. Citing the need to construe
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
criminal
kk
1-3
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC.
kk kk kk kk kk
, statutes narrowly, the Court ruled that the particular statute—the Omnibus Clause—did not
kk kk kk kk kk kk kk kk kk kk kk
cover all activities that underreported income. The Court believed that the statute covered
kk kk kk kk kk kk kk kk kk kk kk kk kk
a narrower range of activities aimed directly at thwarting the activities of investigations
kk kk kk kk kk kk kk kk kk kk kk kk kk
when the taxpayer knew or should have known an investigation was underway.
kk kk kk kk kk kk kk kk kk kk kk kk
Points for Discussion: This case is placed in the text as an example of the general rules
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
underlying criminal law. Specifically, a person generally cannot be convicted of a crime
kk kk kk kk kk kk kk kk kk kk kk kk kk
unless he or she violates a statute. However, such statutes must be objectively clear to a
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
reasonable person. This Government’s interpretation of this statute was believed to grant
kk kk kk kk kk kk kk kk kk kk kk kk
the Government too much discretion in determining what constituted a crime.
kk kk kk kk kk kk kk kk kk kk kk
7. The brief introduction to our legal system should be a review for most students.
kk kk kk kk kk kk kk kk kk kk kk kk kk
a. The constitutional law material is more heavily discussed in Chapter 4. An argument
kk kk kk kk kk kk kk kk kk kk kk kk
can be made for it to be presented immediately following this chapter. However,
kk kk kk kk kk kk kk kk kk kk kk kk kk
we believe students should first review Chapter 2’s discussion of the dispute
kk kk kk kk kk kk kk kk kk kk kk kk
resolution system.
kk kk
b. Talk about the role of the courts in determining the constitutionality of
kk kk kk kk kk kk kk kk kk kk kk
legislation. Do they believe this gives the courts too much power?
kk kk kk kk kk kk kk kk kk kk kk
c. Explain the relationship between state laws and federal laws. Make certain the
kk kk kk kk kk kk kk kk kk kk kk
students understand that state laws may not violate the federal constitution and must
kk kk kk kk kk kk kk kk kk kk kk kk kk
be consistent with federal statutes.
kk kk kk kk kk
Henry Schein v. Archer & White Sales
kk kk kk kk kk kk
The Federal Arbitration Act provides that parties may, through their power to contract, agree
kk kk kk kk kk kk kk kk kk kk kk kk kk
that their disputes will be arbitrated. In addition, the Act allows those same parties to
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
agree that an arbitrator, rather than a court, will determine whether that arbitration clause
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
applies to any particular dispute they may have. However, several federal appellate courts
kk kk kk kk kk kk kk kk kk kk kk kk kk
carved out a ―wholly groundless‖ exception to the latter rule by which they allowed courts
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
to conclude that arbitration was not appropriate when the court believed the claim of
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
arbitrability was groundless. In this case, the U.S. Supreme Court, citing both the statute
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
and Supreme Court precedent, ruled that the
kk kk kk kk kk kk kk
―wholly groundless‖ exception was impermissible because it contradicted the statute.
kk kk kk kk kk kk kk kk kk
Points for Discussion: This case is an example of the limits on the judiciary’s discretion
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
under the common law. It illustrates that in the hierarchy of laws, legislative law is
kk kk kk kk kk kk kk kk kk kk kk kk kk kk kk
superior to judge- made law. It also illustrates the role of precedent in interpreting
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
statutes.
kk
8. The material on statutory interpretation can be extremely important in laying the
kk kk kk kk kk kk kk kk kk kk kk
foundation for how lawyers think. More importantly, it teaches students valuable
kk kk kk kk kk kk kk kk kk kk kk
1-4
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written
kk kk kk kk kk kk kk kk kk kk kk kk kk kk
consent of McGraw Hill LLC. kk kk kk kk kk
