UNIT I: THE LEGAL SYSTEM AND
BASIC PRINCIPLES OF LAW
1
INTRODUCTION TO LAW
GENERAL COMMENTS
This chapter is designed to stimulate the interest of your students in learning about law. To do
so, we provide comparisons to the past and give examples of the evolution of rules and
requirements. The goal is to prompt the student to consider the role of the law in resolving
conflicts within a society that has changed so much in such little time. We try to show that our
legal system has not changed very much; only that the rules of law have changed and continue to
evolve. Thus, we paint a brief picture of society at the beginning of the twentieth century with which
students can compare their own lives and the lives of their families. Hopefully, the picture painted
will stimulate interest in the role of law in a diverse and changing society, and how our legal
system will be expected to cope with the dynamic changes that most assuredly will occur in the
early years of this century.
We discuss a garden variety of societal issues in 1900 to call student’s attention to how
completely different life is now. Our legal system coped well with the changes of the twentieth
century and has empowered itself in the process. We attempt to make students think about the
role of the essentially unelected legal branch in shaping our society. To the extent legislatures and
executives avoid the controversial issues existing in the 1900s as well as now, people look
elsewhere, including to the judicial branch for answers. We define the judicial branch of
government to include members of the legal profession, and thereby expand the dimensions of its
role in everyday life. There are no cases and controversies, and no judicial proceedings and new rules
of law, without the involvement and influence of lawyers. The conclusion is compelling: our society
ultimately may depend upon the judicial branch for most of the significant decisions in the new
century. How the legal system works ought to be of interest to students who are concerned with
their careers, families and opportunities in general, and whose own careers likely will be at their
peak within the next twenty-five years.
, Next, we present a thumbnail sketch of the history of U.S. common law in sufficient detail to give
the student a perspective of the ancient and medieval sources of our legal system. We also begin a
discussion on legal reasoning by introducing the common-law principle of stare decisis. This
section of Chapter 1 may or may not excite the average student, but an understanding of our common
law is dependent upon at least a sketchy understanding of its origins including a discussion of the
alternatives presented to a court when applying the doctrine of stare decisis.
We follow the ancient sources with modern sources of law, dramatizing the evolution of the law
we inherited from England to the modern law of our nation. Classifications, modern definitions,
and legal terms are introduced, as well as the distinction between law and ethics, as exampled when
David Cash, Jr. refused to render aid to a small child being assaulted by another person in the
bathroom of a gambling casino. We believe these kinds of examples, some already known in a
general way to students, can be used to rivet the attention of students in the first week of classes.
We provide a brief introduction to ethics and ethical reasoning to allow those professors who
wish a dialog on the relationship or law and ethics to first clearly make the distinction, and then
continue a discussion of this relationship throughout the book.
The case of Eric J. v. Betty M. raises a troubling topical issue — the duty to act. The law is clear and
largely uniform throughout the states, but troubling to many. The case allows a discussion on the
limits of the law and the importance of ethics. Hopefully you can blend in a discussion of the
introductory legal concepts, and also use ethical reasoning to test student reaction to the legal rule
regarding duty to act. Compared to cases we have used in the past, this is a not a case we expect
you have seen before. The issue in this case is, of course, one that was very important to the
parties to the case, but not one that directly touches the lives of many of the students. Our intent is
to raise important ethical issues without tripping student hot buttons the first week of class.
We have also used the case of Eric J. v. Betty M. to provide an exercise in case briefing. In
Appendix A of the text you will find a discussion of the importance of a brief, and suggestions on
how to brief a case as well as a sample brief. Our book has always depended more on examples
than actual court cases but we encourage professors to add or use their own favorite cases.
CHAPTER SUGGESTIONS
1.This chapter is introduced during the first day of class when students are acclimating to the
professor, the course syllabus, and to each other. The first week, before any variety of
collaborative teaching methodology can be established, is an effective time to reach back to
the beginning of the 20th century, painting a picture of relative simplicity of society
compared to now. Females could not vote nor obtain a legal abortion in 1900 — today they
can. Cocaine could be purchased in a drug store in New York City in the early 1900s. Times
change and the laws change. Can our students see females winning the legal right to
, comparable pay in employment or do they expect females will fall further behind? Do new
changes in affirmative action portend a change in civil rights generally? Should society
discriminate against older workers by replacing them with less costly new employees?
Should the government encourage or discourage the use of off country job centers for
American companies? Should pornography be banned from the Internet? Less grand:
should spam or pop up ads be banned? Can the law be effective in any such ban? Shall we
permit web sites that advocate, promote, and provide kits for murder? Should access to
dangerous chemicals and biological agents as well as instructions on how to use them to kill
be allowed? Should gene alteration to produce only thin people be endorsed by law, or
alteration to allow for choice of a fetus’s gender? Virtually any question beginning with “Should
the law change... (insert some simplified issue)?” is excellent. The goal in the first or second
meeting of the semester is, of course, to stimulate the students to anticipate learning more
about the law and legal system. The earlier our students begin sharing their opinions in class on
controversial issues, the easier it becomes for their classmates to realize that a standard of
objectivity is essential. That standard is, of course, a law.
2. (1) In addition to, or as an alternative to, the broad questions suggested above, we assign
designated specific legal terms for subsequent oral definition. (2) Our experience suggests
that all students assigned terms have become involved with the content of the chapter. (3)
Answers are shorter, and directly from the textbook. (4) We have had success in forwarding
questions (with page references) to a number of students via e-mail a day or two before
class. The effect is very positive. It circumvents a phenomenon that some students
experience: becoming speechless when they hear their name called in class. (5) A definition
question could be: define X term. Distinguish it from a related concept. Provide an example of
the definition as it would be used differently than in the text.
3. Finally, we have found that relating current events to issues under discussion is very helpful.
Appellate court opinions lag behind current events by many years, and lose some of their vitality
to students. We never fail to find current events that relate to the subjects in the chapter and
topics under discussion.
4. One method to begin class is to give the student a 10 or 20 question multiple choice test
using questions that you might give them on a final. This pre-test will give both the students
and the professor some idea of what they know and what they will learn. Discussing the
correct answers immediately after having given the examination explores the variety of topics
and learning the will occur over the academic term.
FOR CRITICAL ANALYSIS
Eric J. v. Betty M.
, 1. This question asks students to apply the chapter discussion of ethics to an actual problem. Try
to encourage the analysis before the students make a value judgment.
2. The duty to act is a substantive rule and a necessary requirement to prove the tort of
negligence. The case is one of civil law, as the mother is suing on the child’s behalf. The case is a
California or state rather than federal case.
3. No contest means the person is not contesting the charges. In a criminal proceeding it has the
same effect as a guilty plea, except that the plea cannot be used to prove responsibility in a
later civil proceeding.
ANSWERS TO QUESTIONS AND PROBLEMS
1. You do not have to predict many years into the future before your predictions get risky. It will be
interesting to hear what students think will happen regarding current terrorist threats and
the variety of existing ways to harm large numbers of people. More mundane topics such as
spam and even identify theft should be interesting to speculate about.
2. Statutory law is prospective and can be broadly created. Common law is specific and
retroactive. Jeremy Bentham’s famous criticism of the common law helps illustrate this
contrast. He referred to the common law as “Dog Law” because it was after the fact.
Something is done and then a person may well be punished for it and told they should have
behaved differently. Some strengths of common law are flexibility, adaptability, and its usual
connection with community values. Weaknesses of common law are that it is often incomplete,
vague and finding the rules requires reading cases.Strengths of statutory law include the
ability to be comprehensive, prospective, and democratic. In theory, statutes are easier to read.
Weaknesses include poorly written statutes, influence of vested interests in statute drafting,
and failure to anticipate problems.
The term “common-law marriage” suggests that the marriage is one recognized by the
court law or common law rather than statutory law. Modernly, many common law doctrines
have statutory recognition. Texas common-law marriage is such an example; §2.401 of the
Texas Family Code provides the current standard for the Texas common-law marriage
referred to as an informal marriage.
3.This question gives the student the opportunity to apply some of the classifications and definitions
mentioned in the chapter.
Civil law deals with the duties that exist between persons or between persons and
the government (excluding the duty to refrain from committing crimes).
BASIC PRINCIPLES OF LAW
1
INTRODUCTION TO LAW
GENERAL COMMENTS
This chapter is designed to stimulate the interest of your students in learning about law. To do
so, we provide comparisons to the past and give examples of the evolution of rules and
requirements. The goal is to prompt the student to consider the role of the law in resolving
conflicts within a society that has changed so much in such little time. We try to show that our
legal system has not changed very much; only that the rules of law have changed and continue to
evolve. Thus, we paint a brief picture of society at the beginning of the twentieth century with which
students can compare their own lives and the lives of their families. Hopefully, the picture painted
will stimulate interest in the role of law in a diverse and changing society, and how our legal
system will be expected to cope with the dynamic changes that most assuredly will occur in the
early years of this century.
We discuss a garden variety of societal issues in 1900 to call student’s attention to how
completely different life is now. Our legal system coped well with the changes of the twentieth
century and has empowered itself in the process. We attempt to make students think about the
role of the essentially unelected legal branch in shaping our society. To the extent legislatures and
executives avoid the controversial issues existing in the 1900s as well as now, people look
elsewhere, including to the judicial branch for answers. We define the judicial branch of
government to include members of the legal profession, and thereby expand the dimensions of its
role in everyday life. There are no cases and controversies, and no judicial proceedings and new rules
of law, without the involvement and influence of lawyers. The conclusion is compelling: our society
ultimately may depend upon the judicial branch for most of the significant decisions in the new
century. How the legal system works ought to be of interest to students who are concerned with
their careers, families and opportunities in general, and whose own careers likely will be at their
peak within the next twenty-five years.
, Next, we present a thumbnail sketch of the history of U.S. common law in sufficient detail to give
the student a perspective of the ancient and medieval sources of our legal system. We also begin a
discussion on legal reasoning by introducing the common-law principle of stare decisis. This
section of Chapter 1 may or may not excite the average student, but an understanding of our common
law is dependent upon at least a sketchy understanding of its origins including a discussion of the
alternatives presented to a court when applying the doctrine of stare decisis.
We follow the ancient sources with modern sources of law, dramatizing the evolution of the law
we inherited from England to the modern law of our nation. Classifications, modern definitions,
and legal terms are introduced, as well as the distinction between law and ethics, as exampled when
David Cash, Jr. refused to render aid to a small child being assaulted by another person in the
bathroom of a gambling casino. We believe these kinds of examples, some already known in a
general way to students, can be used to rivet the attention of students in the first week of classes.
We provide a brief introduction to ethics and ethical reasoning to allow those professors who
wish a dialog on the relationship or law and ethics to first clearly make the distinction, and then
continue a discussion of this relationship throughout the book.
The case of Eric J. v. Betty M. raises a troubling topical issue — the duty to act. The law is clear and
largely uniform throughout the states, but troubling to many. The case allows a discussion on the
limits of the law and the importance of ethics. Hopefully you can blend in a discussion of the
introductory legal concepts, and also use ethical reasoning to test student reaction to the legal rule
regarding duty to act. Compared to cases we have used in the past, this is a not a case we expect
you have seen before. The issue in this case is, of course, one that was very important to the
parties to the case, but not one that directly touches the lives of many of the students. Our intent is
to raise important ethical issues without tripping student hot buttons the first week of class.
We have also used the case of Eric J. v. Betty M. to provide an exercise in case briefing. In
Appendix A of the text you will find a discussion of the importance of a brief, and suggestions on
how to brief a case as well as a sample brief. Our book has always depended more on examples
than actual court cases but we encourage professors to add or use their own favorite cases.
CHAPTER SUGGESTIONS
1.This chapter is introduced during the first day of class when students are acclimating to the
professor, the course syllabus, and to each other. The first week, before any variety of
collaborative teaching methodology can be established, is an effective time to reach back to
the beginning of the 20th century, painting a picture of relative simplicity of society
compared to now. Females could not vote nor obtain a legal abortion in 1900 — today they
can. Cocaine could be purchased in a drug store in New York City in the early 1900s. Times
change and the laws change. Can our students see females winning the legal right to
, comparable pay in employment or do they expect females will fall further behind? Do new
changes in affirmative action portend a change in civil rights generally? Should society
discriminate against older workers by replacing them with less costly new employees?
Should the government encourage or discourage the use of off country job centers for
American companies? Should pornography be banned from the Internet? Less grand:
should spam or pop up ads be banned? Can the law be effective in any such ban? Shall we
permit web sites that advocate, promote, and provide kits for murder? Should access to
dangerous chemicals and biological agents as well as instructions on how to use them to kill
be allowed? Should gene alteration to produce only thin people be endorsed by law, or
alteration to allow for choice of a fetus’s gender? Virtually any question beginning with “Should
the law change... (insert some simplified issue)?” is excellent. The goal in the first or second
meeting of the semester is, of course, to stimulate the students to anticipate learning more
about the law and legal system. The earlier our students begin sharing their opinions in class on
controversial issues, the easier it becomes for their classmates to realize that a standard of
objectivity is essential. That standard is, of course, a law.
2. (1) In addition to, or as an alternative to, the broad questions suggested above, we assign
designated specific legal terms for subsequent oral definition. (2) Our experience suggests
that all students assigned terms have become involved with the content of the chapter. (3)
Answers are shorter, and directly from the textbook. (4) We have had success in forwarding
questions (with page references) to a number of students via e-mail a day or two before
class. The effect is very positive. It circumvents a phenomenon that some students
experience: becoming speechless when they hear their name called in class. (5) A definition
question could be: define X term. Distinguish it from a related concept. Provide an example of
the definition as it would be used differently than in the text.
3. Finally, we have found that relating current events to issues under discussion is very helpful.
Appellate court opinions lag behind current events by many years, and lose some of their vitality
to students. We never fail to find current events that relate to the subjects in the chapter and
topics under discussion.
4. One method to begin class is to give the student a 10 or 20 question multiple choice test
using questions that you might give them on a final. This pre-test will give both the students
and the professor some idea of what they know and what they will learn. Discussing the
correct answers immediately after having given the examination explores the variety of topics
and learning the will occur over the academic term.
FOR CRITICAL ANALYSIS
Eric J. v. Betty M.
, 1. This question asks students to apply the chapter discussion of ethics to an actual problem. Try
to encourage the analysis before the students make a value judgment.
2. The duty to act is a substantive rule and a necessary requirement to prove the tort of
negligence. The case is one of civil law, as the mother is suing on the child’s behalf. The case is a
California or state rather than federal case.
3. No contest means the person is not contesting the charges. In a criminal proceeding it has the
same effect as a guilty plea, except that the plea cannot be used to prove responsibility in a
later civil proceeding.
ANSWERS TO QUESTIONS AND PROBLEMS
1. You do not have to predict many years into the future before your predictions get risky. It will be
interesting to hear what students think will happen regarding current terrorist threats and
the variety of existing ways to harm large numbers of people. More mundane topics such as
spam and even identify theft should be interesting to speculate about.
2. Statutory law is prospective and can be broadly created. Common law is specific and
retroactive. Jeremy Bentham’s famous criticism of the common law helps illustrate this
contrast. He referred to the common law as “Dog Law” because it was after the fact.
Something is done and then a person may well be punished for it and told they should have
behaved differently. Some strengths of common law are flexibility, adaptability, and its usual
connection with community values. Weaknesses of common law are that it is often incomplete,
vague and finding the rules requires reading cases.Strengths of statutory law include the
ability to be comprehensive, prospective, and democratic. In theory, statutes are easier to read.
Weaknesses include poorly written statutes, influence of vested interests in statute drafting,
and failure to anticipate problems.
The term “common-law marriage” suggests that the marriage is one recognized by the
court law or common law rather than statutory law. Modernly, many common law doctrines
have statutory recognition. Texas common-law marriage is such an example; §2.401 of the
Texas Family Code provides the current standard for the Texas common-law marriage
referred to as an informal marriage.
3.This question gives the student the opportunity to apply some of the classifications and definitions
mentioned in the chapter.
Civil law deals with the duties that exist between persons or between persons and
the government (excluding the duty to refrain from committing crimes).
