CHAPTER 01
THE NATURE OF LAW
I. OBJECTIVES:
As its title suggests, this chapter seeks to acquaint students with the general nature of law. (See also the Learning
Objectives added to the text for the 16th edition.) The chapter does this by: (1) describing the different types of law
(2) examining legal philosophy or jurisprudence; (3) sketching some of law's functions; and (4) discussing legal
reasoning. The chapter’s content maximizes instructor discretion by keeping these four subjects as distinct from e
other as possible. As a result, you may feel you do not need to teach or assign certain parts of the chapter. The
material on the types of law, however, is basic material that any instructor probably would want to present or assig
II. ANSWERS TO INTRODUCTORY PROBLEM:
A. See the major types of law discussed in Chapter 1 (especially constitutions, statutes, common law, administra
regulations and decisions, and treaties).
B. See the schools of jurisprudence discussed in Chapter 1.
C. See the "Legal Reasoning" section of Chapter 1 for discussion of the role courts play in making and interpreti
law. That section also discusses two important methods of legal reasoning: case law reasoning and statutory
interpretation.
D. The question about the relationship between legal standards of behavior and notions of ethical conduct is larg
rhetorical at this point. It will be explored more fully at later points.
III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Types of Law
1. The material in this section can be viewed as one response to the question: "What is law?" The section
answers this question by listing and describing the kinds of rules that commonly are regarded as law in th
United States. What unites most of them is their issuance by a legitimate political authority. Remind
students that he first question in the chapter’s opening vignette concerns types of law.
2. We do not use the term "sources of law" to identify this material because in ordinary language the things
described are law rather than sources of law. A statute, for instance, is colloquially referred to as a law, a
the legislature is ordinarily regarded as its source.
3. Provide students an overview (including examples) of each of the types of law outlined in the text. Keep
mind the following:
,a. The text's description of the functions served by constitutions and of separation of powers and
federalism is traditional and somewhat limited. You might want to add that, as Chapter 3 suggests, th
political and legal reality often differs from the accepted homilies in these areas.
,b. Note the role played by courts—most notably the Supreme Court—in interpreting the U.S. Constituti
Comment on Presidents’ attempts to shape the judiciary through appointments (subject to Senate
confirmation) to the federal district courts, courts of appeal, and the Supreme Court. Mention
confirmation fights that have occurred through the years (e.g., regarding Bork and Thomas; perhaps
Alito, Sotomayor, and Kagan in more recent years, though the fights in those instances were less
intense). Provide examples of Supreme Court justices who proved to be consistent with the probable
expectations of the Presidents who appointed them and of justices who most likely were
disappointments to the appointing President. Burger, Rehnquist, Scalia, Thomas, and Ginsburg would
be examples of the former. Warren, Brennan, Blackmun, Stevens, and Souter would be examples of t
latter.
c. The material on uniform acts is included here because students will so often encounter uniform acts
throughout the text. Of course, you should emphasize that uniform acts are not law until enacted in
whole or in part by a legislature, and that state-by-state variations from the original text are common.
d. Emphasize that common law applies only when there is no other applicable type of law and that statu
have a controlling effect with regard to the common law. Therefore, Congress or a state legislature m
enact a statute that abolishes or modifies a common law rule. Advance Dental Care, Inc. v. SunTrust
Bank, which appears somewhat later in the chapter, illustrates this point. (See the later discussion of t
case.) A portion of the Cyberlaw in Action box (p.16) does as well. In addition, see Problem #4. Not
also, that a legislature may choose to enact a statute that codifies what formerly was only a common l
rule.
e. Price v. High Pointe Oil Company, Inc. (p. 4): High Pointe Oil Company erroneously filled Beckie
Price’s basement with 400 gallons of oil, which destroyed her house and all of her personal belonging
The oil came in through an “oil fill pipe” that used to lead to an oil furnace in Price’s basement. A ye
prior, however, Price had replaced the oil furnace with a propane model and had cancelled her contrac
with High Pointe to keep oil in the furnace. High Pointe somehow included her address on a “keep fu
list, leading to the contamination. Although Price’s land was remediated, her house rebuilt, and her
belongings cleaned or replaced, she sued High Pointe for negligence seeking noneconomic damages.
After a jury awarded her $100,000 and the appellate court affirmed, the Michigan Supreme Court had
decide whether to adopt a new common law rule to allow the recovery of noneconomic damages for t
negligent destruction of real property. It declined to do so.
Points for Discussion: Have a student summarize the basic facts and the procedural history of the
case. Ask the students why the court begins its discussion with the following statement: “[a]bsent any
relevant statute, the answer to that question [whether noneconomic damages are recoverable for the
negligent destruction of real property] is a matter of common law.” (This may be a good way to
highlight the doctrine in point d. above.) Ask the students to describe the longstanding common law
rule at issue. (Negligent destruction of property is remedied by awarding damages equal to the fair
market value of destroyed property or the repair cost of damaged property.) Note that simply because
the law has been static and consistent for a long time does not mean that it cannot be altered. Thus, th
Michigan Supreme Court must determine whether it would be appropriate to modify the common law
rule. Ask the students to summarize the arguments for why the Court refused to do so in this case. (T
policy arguments upon which the court relies are summarized in the sample case brief on page 23 of t
text.)
For instructors who cover the common law and case law reasoning in the same session, be sure to
note that the first half of the Price case is a prototypical example of case law reasoning. The approach
, the Price court to that process can be compared and contrasted to the approach of the Hagan court lat
in the chapter.
f. The text's statement that, as a general mater, common law exists only at the state level implicitly
recognizes the Supreme Court's decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), which
supposedly eliminated the "federal common law" that the federal courts had previously used in some
diversity cases. Erie's progeny--and the related question whether there still is a federal common law
despite Erie--are well beyond the scope of this text.
g. Some discussion of the Restatements is included in Chapter 1 for the same reason that the chapter
discusses uniform acts. References to the Restatements appear frequently in the torts, contracts, and
agency chapters of this text. Emphasize that Restatement rules are not law unless adopted by a court
a rule of decision. Also, you might want to add that the Restatements have been subjected to conflicti
criticisms. Sometimes, they are criticized for "leading" the courts in the fashion suggested in the text.
And sometimes they are criticized as misguided attempts to rigidly state rules that are always changin
with circumstances.
h. Note that equity isn’t really a separate body of law any longer but that equitable remedies (injunctions
etc.) remain very important instruments that courts frequently employ.
i. In the text, the term delegation is used to refer only to transfers of power made by a legislature. Unde
this usage, for example, a constitution's grant of power to a legislature is not an example of delegation
j. In discussing administrative regulations and decisions, note the political debates that often arise
regarding whether we have too much, too little, or about the right amount of, regulation of business b
administrative agencies. Mention that the level of regulatory activity on the part of agencies tends to
vary with the prevailing political winds.
k. Note the priority rules that apply only when the different types of law conflict. Further note, as
illustrated by the following Advance Dental Care case, that courts will avoid interpreting the law to
create such conflicts when possible.
l. Advance Dental Care, Inc. v. SunTrust Bank (p. 8): The Federal District Court for the District of
Maryland determined that the Maryland U.C.C. section 3-420, which defines and provides a remedy f
conversion, displaces the Maryland common-law negligence claim when a payee sues a bank for
negligently accepting unauthorized and fraudulently endorsed checks. Michelle Rampersad had
deposited in her personal account at SunTrust Bank more than $400,000 worth of insurance
reimbursement checks that she had fraudulently endorsed to herself instead of intended payee Advanc
Dental Care. Advance Dental Care sued SunTrust under the U.C.C. and for common law negligence.
One U.C.C. claim was dismissed, but the court had to decide whether the remaining claim, dealing wi
conversion, displaced the common law claim.
Points for Discussion: Students may need a bit of coaching on the language in this case, includin
who is the payee (Advance Dental) and drawer (the insurance company), as well as what it means to
endorse a check (i.e., to sign over the right to receive payment to someone else). There’s no need to g
deeply into the law of negotiable instruments for the purposes of this case, but the text elaborates on t
topic in Chapter 31.
THE NATURE OF LAW
I. OBJECTIVES:
As its title suggests, this chapter seeks to acquaint students with the general nature of law. (See also the Learning
Objectives added to the text for the 16th edition.) The chapter does this by: (1) describing the different types of law
(2) examining legal philosophy or jurisprudence; (3) sketching some of law's functions; and (4) discussing legal
reasoning. The chapter’s content maximizes instructor discretion by keeping these four subjects as distinct from e
other as possible. As a result, you may feel you do not need to teach or assign certain parts of the chapter. The
material on the types of law, however, is basic material that any instructor probably would want to present or assig
II. ANSWERS TO INTRODUCTORY PROBLEM:
A. See the major types of law discussed in Chapter 1 (especially constitutions, statutes, common law, administra
regulations and decisions, and treaties).
B. See the schools of jurisprudence discussed in Chapter 1.
C. See the "Legal Reasoning" section of Chapter 1 for discussion of the role courts play in making and interpreti
law. That section also discusses two important methods of legal reasoning: case law reasoning and statutory
interpretation.
D. The question about the relationship between legal standards of behavior and notions of ethical conduct is larg
rhetorical at this point. It will be explored more fully at later points.
III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Types of Law
1. The material in this section can be viewed as one response to the question: "What is law?" The section
answers this question by listing and describing the kinds of rules that commonly are regarded as law in th
United States. What unites most of them is their issuance by a legitimate political authority. Remind
students that he first question in the chapter’s opening vignette concerns types of law.
2. We do not use the term "sources of law" to identify this material because in ordinary language the things
described are law rather than sources of law. A statute, for instance, is colloquially referred to as a law, a
the legislature is ordinarily regarded as its source.
3. Provide students an overview (including examples) of each of the types of law outlined in the text. Keep
mind the following:
,a. The text's description of the functions served by constitutions and of separation of powers and
federalism is traditional and somewhat limited. You might want to add that, as Chapter 3 suggests, th
political and legal reality often differs from the accepted homilies in these areas.
,b. Note the role played by courts—most notably the Supreme Court—in interpreting the U.S. Constituti
Comment on Presidents’ attempts to shape the judiciary through appointments (subject to Senate
confirmation) to the federal district courts, courts of appeal, and the Supreme Court. Mention
confirmation fights that have occurred through the years (e.g., regarding Bork and Thomas; perhaps
Alito, Sotomayor, and Kagan in more recent years, though the fights in those instances were less
intense). Provide examples of Supreme Court justices who proved to be consistent with the probable
expectations of the Presidents who appointed them and of justices who most likely were
disappointments to the appointing President. Burger, Rehnquist, Scalia, Thomas, and Ginsburg would
be examples of the former. Warren, Brennan, Blackmun, Stevens, and Souter would be examples of t
latter.
c. The material on uniform acts is included here because students will so often encounter uniform acts
throughout the text. Of course, you should emphasize that uniform acts are not law until enacted in
whole or in part by a legislature, and that state-by-state variations from the original text are common.
d. Emphasize that common law applies only when there is no other applicable type of law and that statu
have a controlling effect with regard to the common law. Therefore, Congress or a state legislature m
enact a statute that abolishes or modifies a common law rule. Advance Dental Care, Inc. v. SunTrust
Bank, which appears somewhat later in the chapter, illustrates this point. (See the later discussion of t
case.) A portion of the Cyberlaw in Action box (p.16) does as well. In addition, see Problem #4. Not
also, that a legislature may choose to enact a statute that codifies what formerly was only a common l
rule.
e. Price v. High Pointe Oil Company, Inc. (p. 4): High Pointe Oil Company erroneously filled Beckie
Price’s basement with 400 gallons of oil, which destroyed her house and all of her personal belonging
The oil came in through an “oil fill pipe” that used to lead to an oil furnace in Price’s basement. A ye
prior, however, Price had replaced the oil furnace with a propane model and had cancelled her contrac
with High Pointe to keep oil in the furnace. High Pointe somehow included her address on a “keep fu
list, leading to the contamination. Although Price’s land was remediated, her house rebuilt, and her
belongings cleaned or replaced, she sued High Pointe for negligence seeking noneconomic damages.
After a jury awarded her $100,000 and the appellate court affirmed, the Michigan Supreme Court had
decide whether to adopt a new common law rule to allow the recovery of noneconomic damages for t
negligent destruction of real property. It declined to do so.
Points for Discussion: Have a student summarize the basic facts and the procedural history of the
case. Ask the students why the court begins its discussion with the following statement: “[a]bsent any
relevant statute, the answer to that question [whether noneconomic damages are recoverable for the
negligent destruction of real property] is a matter of common law.” (This may be a good way to
highlight the doctrine in point d. above.) Ask the students to describe the longstanding common law
rule at issue. (Negligent destruction of property is remedied by awarding damages equal to the fair
market value of destroyed property or the repair cost of damaged property.) Note that simply because
the law has been static and consistent for a long time does not mean that it cannot be altered. Thus, th
Michigan Supreme Court must determine whether it would be appropriate to modify the common law
rule. Ask the students to summarize the arguments for why the Court refused to do so in this case. (T
policy arguments upon which the court relies are summarized in the sample case brief on page 23 of t
text.)
For instructors who cover the common law and case law reasoning in the same session, be sure to
note that the first half of the Price case is a prototypical example of case law reasoning. The approach
, the Price court to that process can be compared and contrasted to the approach of the Hagan court lat
in the chapter.
f. The text's statement that, as a general mater, common law exists only at the state level implicitly
recognizes the Supreme Court's decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), which
supposedly eliminated the "federal common law" that the federal courts had previously used in some
diversity cases. Erie's progeny--and the related question whether there still is a federal common law
despite Erie--are well beyond the scope of this text.
g. Some discussion of the Restatements is included in Chapter 1 for the same reason that the chapter
discusses uniform acts. References to the Restatements appear frequently in the torts, contracts, and
agency chapters of this text. Emphasize that Restatement rules are not law unless adopted by a court
a rule of decision. Also, you might want to add that the Restatements have been subjected to conflicti
criticisms. Sometimes, they are criticized for "leading" the courts in the fashion suggested in the text.
And sometimes they are criticized as misguided attempts to rigidly state rules that are always changin
with circumstances.
h. Note that equity isn’t really a separate body of law any longer but that equitable remedies (injunctions
etc.) remain very important instruments that courts frequently employ.
i. In the text, the term delegation is used to refer only to transfers of power made by a legislature. Unde
this usage, for example, a constitution's grant of power to a legislature is not an example of delegation
j. In discussing administrative regulations and decisions, note the political debates that often arise
regarding whether we have too much, too little, or about the right amount of, regulation of business b
administrative agencies. Mention that the level of regulatory activity on the part of agencies tends to
vary with the prevailing political winds.
k. Note the priority rules that apply only when the different types of law conflict. Further note, as
illustrated by the following Advance Dental Care case, that courts will avoid interpreting the law to
create such conflicts when possible.
l. Advance Dental Care, Inc. v. SunTrust Bank (p. 8): The Federal District Court for the District of
Maryland determined that the Maryland U.C.C. section 3-420, which defines and provides a remedy f
conversion, displaces the Maryland common-law negligence claim when a payee sues a bank for
negligently accepting unauthorized and fraudulently endorsed checks. Michelle Rampersad had
deposited in her personal account at SunTrust Bank more than $400,000 worth of insurance
reimbursement checks that she had fraudulently endorsed to herself instead of intended payee Advanc
Dental Care. Advance Dental Care sued SunTrust under the U.C.C. and for common law negligence.
One U.C.C. claim was dismissed, but the court had to decide whether the remaining claim, dealing wi
conversion, displaced the common law claim.
Points for Discussion: Students may need a bit of coaching on the language in this case, includin
who is the payee (Advance Dental) and drawer (the insurance company), as well as what it means to
endorse a check (i.e., to sign over the right to receive payment to someone else). There’s no need to g
deeply into the law of negotiable instruments for the purposes of this case, but the text elaborates on t
topic in Chapter 31.
