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NANCY K.
KUBASEK M. NEIL
BROWNE BARTLEY A.
BRENNAN
Boston Columbus Indianapolis New York San Francisco Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montreal Toronto
Delhi Mexico City São Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo
The LEGAL ENVIRONMENT
of BUSINESS
EIGHTH EDITION
A CRITICAL THINKING APPROACH
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Library of Congress Cataloging-in-Publication Data Kubasek, Nancy K., author. The legal environment of business : a critical thinking approach / Nancy K. Kubasek, Bartley A. Brennan, M. Neil Browne. — Eight edition.
pages cm ISBN 978-0-13-407403-0 (alk. paper)
1. Industrial laws and legislation—United States. 2. Trade regulation—United States. 3. Commercial law—United States. 4. Critical thinking. I. Brennan, Bartley A., author. II. Browne, M. Neil, author. III. Title. KF1600.K83 2015a 346.7307—dc23
2015036209
10 9 8 7 6 5 4 3 2 1 ISBN 10: 0-13-407403-3 ISBN 13: 978-0-13-407403-0
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http://www.pearsoned.com/permissions/
To the numerous students who appreciate the importance of developing their critical thinking skills for their personal growth
and development.
NANCY K. KUBASEK AND M. NEIL BROWNE
To Sandra for everything.
BARTLEY A. BRENNAN
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iv
Brief Contents
P A R T O N E
Introduction to the Law and the Legal Environment of Business 1
1 Critical Thinking and Legal Reasoning 2
2 Introduction to Law and the Legal Environment of Business 17
3 The American Legal System 35
4 Alternative Tools of Dispute Resolution 76
5 Constitutional Principles 105
6 White-Collar Crime and the Business Community 145
7 Ethics, Social Responsibility, and the Business Manager 188
8 The International Legal Environment of Business 213
P A R T T W O
Private Law and the Legal Environment of Business 249 9 The Law of Contracts and Sales—I 250
10 The Law of Contracts and Sales—II 279
11 The Law of Torts 299
12 Product and Service Liability Law 332
13 Law of Property: Real and Personal 360
14 Intellectual Property 385
15 Agency Law 408
16 Law and Business Associations—I 432
17 Law and Business Associations—II 453
P A R T T H R E E
Public Law and the Legal Environment of Business 481 18 The Law of Administrative Agencies 482
19 The Employment Relationship and Immigration Laws 503
20 Laws Governing Labor–Management Relations 538
21 Employment Discrimination 569
22 Environmental Law 617
23 Rules Governing the Issuance and Trading of Securities 647
24 Antitrust Laws 699
25 Laws of Debtor–Creditor Relations and Consumer Protection 741
APPENDIX A The Constitution of the United States 788
GLOSSARY 794
INDEX 808
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v
Contents
v
PREFACE xvii
ACKNOWLEDGMENTS xxi
ABOUT THE AUTHORS xxiii
P A R T O N E
Introduction to the Law and the Legal Environment of Business 1
1 Critical Thinking and Legal Reasoning 2 The Importance of Critical Thinking 2
A Critical Thinking Model 4
United States of America v. Martha Stewart and Peter Bacanovic 5
The Critical Thinking Steps 7 Facts 7 Issue 7 Reasons and Conclusion 7 Rules of Law 8 Ambiguity 8 Ethical Norms 9 Analogies 10 Missing Information 10
Using Critical Thinking to Make Legal Reasoning Come Alive 11
Legal Reasoning 11
Applying the Critical Thinking Approach 15
Assignment on the Internet 16
On the Internet 16
For Future Reading 16
2 Introduction to Law and the Legal Environment of Business 17 Definition of the Legal Environment of Business 18
Definition of Law and Jurisprudence 19 Natural Law School 20 Positivist School 21 Sociological School 21 American Realist School 22 Critical Legal Studies School 22 Feminist School 22
Law and Economics School 23
Sources of Law 23 The Legislature as a Source of Statutory Law 23 The Judicial Branch as a Source of Case Law 25 The Executive Branch as a Source of Law 27 Administrative Agencies as a Source of Law 27
Classifications of Law 27 Criminal Law and Civil Law 28 Public and Private Law 28 Substantive and Procedural Law 29 Cyberlaw 29
Global Dimensions of the Legal Environment of Business 30
Summary 30
Review Questions 30
Review Problems 31
Case Problems 31
Thinking Critically about Relevant Legal Issues 33
Assignment on the Internet 33
On the Internet 34
For Future Reading 34
3 The American Legal System 35 Jurisdiction 35
Original versus Appellate Jurisdiction 35 Jurisdiction over Persons and Property 36
World-Wide Volkswagen Corp. v. Woodson, District Judge of Cook County 37
Subject Matter Jurisdiction 40
Hertz Corporation v. Friend 41
Venue 44
The Structure of the Court System 46 The Federal Court System 46 State Court Systems 46
The Actors in the Legal System and Their Relationship to the Business Community 49
The Attorney 49 The Jury 52
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The Adversary Process 52 Criticisms of the Adversary System 53
Steps in Civil Litigation and the Role of Businesspersons 53
The Pretrial Stage 53 The Trial 59
J.E.B. v. Alabama, ex rel. T.B. 60 Appellate Procedure 64 Class Actions 66
Wal-Mart Stores Inc. v. Dukes 67
Global Dimensions of the American Legal System 69
Summary 71
Review Questions 71
Review Problems 71
Case Problems 72
Thinking Critically about Relevant Legal Issues 73
Assignment on the Internet 74
On the Internet 74
For Future Reading 75
4 Alternative Tools of Dispute Resolution 76 Negotiation and Settlement 78
Mediation 78 Selection of a Mediator 78 Common Uses of Mediation 79 Advantages of Mediation 79 Criticisms of Mediation 80
Arbitration 80
Hall Street Associates, L.L.C. v. Mattel, Inc. 82 Methods of Securing Arbitration 83
Ignazio v. Clear Channel Broadcasting, Inc. et al. 84
American Express Co. vs. Italian Colors Restaurant 89
Selection of an Arbitrator 91 Common Uses of Arbitration 92 Problems with Arbitration 92
Minitrials 93
Early Neutral Case Evaluation 94
Private Trials 95
Summary Jury Trials 95
Court-Annexed Alternative Dispute Resolution 95
Use of Court-Annexed ADR in the State and Federal Systems 95 Differences between Court-Annexed and Voluntary ADR 97
The Future of Alternative Dispute Resolution 98
Global Dimensions of Alternative Dispute Resolution 98
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth 99
Summary 100
Review Questions 100
Review Problems 100
Case Problems 101
Thinking Critically about Relevant Legal Issues 102
Assignment on the Internet 103
On the Internet 103
For Future Reading 104
5 Constitutional Principles 105 The Constitution 105
Federalism 105 Supremacy Clause 106 Federal Preemption 106
Separation of Powers 107
William Jefferson Clinton v. Paula Corbin Jones 107
The Impact of the Commerce Clause on Business 110
The Commerce Clause as a Source of Federal Authority 110
Gonzales v. Raich 112 The Commerce Clause as a Restriction on State Authority 116
Nat’l Ass’n of Optometrists & Opticians v. Brown 116
The Taxing and Spending Powers of the Federal Government 119
Taxation of the Internet? 120
The Impact of the Amendments on Business 121
The First Amendment 121
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York 123
The Fourth Amendment 128
Florida v. Jardines 129 The Fifth Amendment 132
United States v. Windsor 134 The Fourteenth Amendment 139
Summary 140
Review Questions 140
Review Problems 140
vi C O N T E N T S
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C O N T E N T S vii
Case Problems 141
Thinking Critically about Relevant Legal Issues 143
Assignment on the Internet 143
On the Internet 144
For Future Reading 144
6 White-Collar Crime and the Business Community 145 Crime and Criminal Procedure 148
Crime 148 Criminal Procedure 149
Distinguishing Features of White-Collar Crime 154
The Corporation as a Criminal 154 Arguments in Support of Corporate Liability 155 Arguments in Opposition to Corporate Liability 156 Imposition of Liability on Corporate Executives 157
United States v. Park 157 Imposition of Liability on Lower-Level Corporate Criminals 160 Factors Encouraging the Commission of White-Collar Crime 160 Sentencing of White-Collar Criminals 162
Common White-Collar Crimes 164
Sekhar v. United States 164 Bribery 165 Violations of Federal Regulations 166 Criminal Fraud 167
United States v. Gray 167 Larceny 169 Embezzlement 170 Computer Crimes 170
Prevention of White-Collar Crime 173
Federal Laws Used in the Fight against White-Collar Crime 175
The Racketeer Influenced and Corrupt Organizations Act (RICO) 175 False Claims Act 177 Sarbanes-Oxley Act 178 Whistleblower Protection Act 179
State Laws Used in the Fight against White- Collar Crime 180
Global Dimensions of White-Collar Crime 181
Summary 182
Review Questions 182
Review Problems 182
Case Problems 183
Thinking Critically about Relevant Legal Issues 186
Assignment on the Internet 186
On the Internet 187
For Future Reading 187
7 Ethics, Social Responsibility, and the Business Manager 188 Definition of Business Ethics and the Social Responsibility of Business 190
Business Ethics 190 The Social Responsibility of Business 191
In re Exxon Valdez 191
Theories of Ethical Thought 193 Consequential Theories 193 Deontological Theories 194 Humanist Theories 195
Codes of Ethics 195 Individual Codes of Ethics 195 Corporate Codes of Ethics 197 Industry Codes of Ethics 198 Professional Codes of Ethics 198
Schools of Social Responsibility 201 Profit-Oriented School 201 Managerial School 204 Institutional School 204
Cooper Industries v. Leatherman Tool Group, Inc. 205
Professional Obligation School 205 Regulation School 206
Johnson Construction Co. v. Shaffer 206
Global Dimensions of Ethics and Social Responsibility 207
Code of Conduct for Transnational Corporations 207
Summary 207
Review Questions 208
Review Problems 208
Case Problems 209
Thinking Critically about Relevant Legal Issues 210
Assignment on the Internet 211
On the Internet 211
For Future Reading 211
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8 The International Legal Environment of Business 213 Dimensions of the International Environment of Business 214
Political Dimensions 214 Economic Dimensions 215 Cultural Dimensions 215 Corruption and Trade 216
United States v. Kay 216 Legal Dimensions 219 Selected National Legal Systems 221
Crosby v. National Foreign Trade Council 222
Methods of Engaging in International Business 223
Trade 223 International Licensing and Franchising 224
Russian Entertainment Wholesale, Inc. v. Close-Up International, Inc. 225
Foreign Direct Investment 226
In re Union Carbide Corp. Gas Plant Disaster v. Union Carbide Corp. 227
Risks of Engaging in International Business 229
Expropriation of Private Property 229 Sovereign Immunity Doctrine 230
Keller v. Central Bank of Nigeria 230
Act-of-State Doctrine 231
Linde v. Arab Bank, PLC 231 Export and Import Controls 232
Legal and Economic Integration as a Means of Encouraging International Business Activity 233
The World Trade Organization 233 The European Union 236 North American Free Trade Agreement 240
Global Dispute Resolution 242 Arbitration 243 Litigation 243 Globalization: Hurts or Helps 243
Summary 244
Review Questions 244
Review Problems 245
Case Problems 245
Thinking Critically about Relevant Legal Issues 246
Assignment on the Internet 246
On the Internet 247
For Future Reading 247
P A R T T W O
Private Law and the Legal Environment of Business 249
9 The Law of Contracts and Sales—I 250 Definition, Sources, and Classifications of Contract Law 251
Definition 251 Sources of Contract Law 251
Paramount Contracting Co. v. DPS Industries, Inc. 252
Classifications of Contracts 253
Pan Handle Realty, LLC v. Olins 254
Audito v. City of Providence 255
Elements of a Legal Contract 257 Legal Offer 257
Beer v. Chase 258 Legal Acceptance 260
The Private Movie Company, Inc. v. Pamela Lee Anderson et al. 260
Consideration 263 Genuine Assent 264
Stambovsky v. Ackley and Ellis Realty 265 Competent Parties 267 Legal Object 269
Brown & Brown, Inc. v. Johnson 270
Contracts That Must Be in Writing 271 Contracts for the Sale of an Interest in Land 271 Contracts to Pay the Debts of Another 271 Contracts Not Performable in One Year 271 Sale of Goods of $500 or More 272
Iacono v. Lyons 272 Nonbusiness Contracts 273
Parol Evidence Rule 273
Third-Party Beneficiary Contracts and Assignment of Rights 274
Types of Third-Party Beneficiary Contracts 274 Assignment of Rights 274
Summary 275
Review Questions 276
Review Problems 276
Case Problems 277
Thinking Critically about Relevant Legal Issues 278
On the Internet 278
For Future Reading 278
viii C O N T E N T S
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10 The Law of Contracts and Sales—II 279 Methods of Discharging a Contract 280
Discharge by Performance 280
Kohel v. Bergen Auto Enterprises, L.L.C. 280
Performance to Satisfaction of Another 281 Material Breach of Contract 281 Discharge by Mutual Agreement 282 Discharge by Conditions Precedent and Subsequent 282
Architectural Systems, Inc. v. Gilbane Building Co. 283
Discharge by Impossibility of Performance 283 Discharge by Commercial Impracticability 284 Contracts with the Government and the Sovereign Acts Doctrine 284
Facto v. Pantagis 285
Remedies for a Breach of Contract 286 Monetary Damages (“Legal” Remedies) 286
Hallmark Cards, Inc. v. Murley 287
Arrowhead School District No. 75, Park County, Montana v. James A. Klyap, Jr. 288
Equitable Remedies 289 Remedies for Breach of a Sales Contract (Goods) 290
Fitl v. Strek 290
E-Contracts 291 E-Signatures 292 The Uniform Computer Information Transaction Act 292
Global Dimensions of Contract and Sales Law 293
Summary 294
Review Questions 295
Review Problems 295
Case Problems 296
Thinking Critically about Relevant Legal Issues 297
Assignment on the Internet 297
On the Internet 297
For Future Reading 298
11 The Law of Torts 299 The Goals of Tort Law 299
Damages Available in Tort Cases 300 Compensatory Damages 300 Nominal Damages 301 Punitive Damages 301
Young v. Becker & Poliakoff 303
Classifications of Torts 307
Intentional Torts 307 Intentional Torts against Persons 307
Nemet Chevrolet, Ltd. v. Consumeraffairs .com, Inc. 310
Intentional Torts against Property 317 Intentional Torts against Economic Interests 318
Negligent Torts 319 Elements of Negligence 319 Defenses to Negligence 322
Coomer v. Kansas City Royals 323
Venkateswarlu Thota and North Texas Cardiology Center v. Margaret Young 324
Strict Liability Torts 326
Global Dimensions of Tort Law 326
Summary 327
Review Questions 327
Review Problems 328
Case Problems 328
Thinking Critically about Relevant Legal Issues 330
Assignment on the Internet 331
On the Internet 331
For Future Reading 331
12 Product and Service Liability Law 332 Theories of Recovery in Product Liability Cases 333
Negligence 333
Mutual Pharmaceutical Company, Inc. v. Bartlett 340
Strict Liability in Contract for Breach of Warranty 341
Williams v. Braum Ice Cream Store, Inc. 343 Strict Liability in Tort 346
Welge v. Planters Lifesavers Co. 347 Liability to Bystanders 351
Market Share Liability 351
Service Liability 352 Accountants’ Liability 353
Global Dimensions of Product Liability Law 353
Summary 355
Review Questions 355
Review Problems 356
Case Problems 356
C O N T E N T S ix
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Thinking Critically about Relevant Legal Issues 357
Assignment on the Internet 358
On the Internet 358
For Future Reading 359
13 Law of Property: Real and Personal 360 Real Property 361
Definition of Real Property 362 Extent of Ownership 362
Interests in Real Property 362 Fee Simple Absolute 362 Conditional Estate 362 Life Estate 363 Future Interest 363 Leasehold Estates 364 Easements 364 License 364 Co-Ownership 364 Condominiums and Cooperatives 365
Plum Creek C.A. v. Oleg Borman 365
Voluntary Transfer of Real Property 368 Execution 368 Delivery 370 Acceptance 370 Recording 370
Involuntary Transfer of Real Property 370 Adverse Possession 370 Condemnation 371
Susette Kelo et al. Petitioners, v. City of New London, Connecticut et al. 372
Restrictions on Land Use 374 Restrictive Covenants 374 Zoning 374
Emine Bayram v. City of Binghamton and City of Binghamton Zoning Board of Appeals 375
Other Statutory Restrictions on Land Use 377
Personal Property 378 Voluntary Transfer of Personal Property 378 Involuntary Transfers of Personal Property 378 Bailments 379
Global Dimensions of Property Law 379
Summary 380
Review Questions 380
Review Problems 381
Case Problems 381
Thinking Critically about Relevant Legal Issues 382
Assignment on the Internet 383
On the Internet 383
For Future Reading 383
14 Intellectual Property 385 Introduction to Intellectual Property 385
Trademarks 385
Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc. 386
Trade Dress 389 Federal Trademark Dilution Act of 1995 391
Victor Moseley and Cathy Moseley et al., dba Victor’s Little Secret v. V Secret Catalogue, Inc. et al. 391
Patents 393
Bilski v. Kappos 393
Trade Secrets 396 Economic Espionage Act 397
Copyrights 397 Fair Use Doctrine 398 Copyrights in the Digital Age 398
American Broadcasting Company, Inc. et. al. v. Aereo, Inc. 399
RealNetworks, Inc. v. DVD Control Copy Association, Inc. et al. 402
Global Dimensions of Intellectual Property Law 402
Summary 403
Review Questions 404
Review Problems 404
Case Problems 404
Thinking Critically about Relevant Legal Issues 406
Assignment on the Internet 407
On the Internet 407
For Future Reading 407
15 Agency Law 408 Definition and Types of Agency Relationships 409
Definition of Agency 409 Types of Agency Relationships 409
Coker v. Pershad 411
Creation of an Agency Relationship 412 Expressed Agency or Agency by Agreement 413 Agency by Implied Authority 413
x C O N T E N T S
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Penthouse International v. Barnes 414 Agency through Ratification by Principal 415 Agency by Estoppel or Apparent Authority 415
Motorsport Marketing, Inc. v. Wiedmaier, Inc. 416
Duties of Agents and Principals 416 Principal’s Duties to Agent 416 Agent’s Duties to Principal 417
Cousins v. Realty Ventures, Inc. 417
Gossels v. Fleet National Bank 419
Principal’s and Agent’s Liability to Third Parties 420
Contractual Liability 420
McBride v. Taxman Corp. 421 E-Commerce: Intelligent Agents 421 Liability of Disclosed, Partially Disclosed and Undisclosed Principals 422 Liability of Undisclosed Principal 422 Tort Liability 422 Tort Liability and Negligence 423
Auer v. Paliath 423 Criminal Liability 424
Termination of the Principal–Agent Relationship 424
Termination by Agreement 424 Termination by Operation of Law 425
Gaddy v. Douglass 425
Global Dimensions of Agency Law 426 Japan 427 European Union 427 U.S. Agents Abroad 427
Summary 428
Review Questions 428
Review Problems 428
Case Problems 429
Thinking Critically about Relevant Legal Issues 430
Assignment on the Internet 431
On the Internet 431
For Future Reading 431
16 Law and Business Associations—I 432 Factors Influencing a Business Manager’s Choice of Organizational Form 434
Some Common Forms of Business Organization in the United States 434
Sole Proprietorships 434
Quality Car & Truck Leasing, Inc. v. Sark 435
General Partnerships 436
In re KeyTronics 438
Enea v. Superior Court of Monterey County 439
Limited Partnerships and Limited Liability Limited Partnerships 443
Specialized Forms of Business Associations 444
Joint Stock Company 444 Syndicate 445 Joint Venture 445 Franchising 445
Holiday Inn Franchising, Inc. v. Hotel Associates, Inc. 446
Global Dimensions of Business Associations 447
Outsourcing 448
Summary 449
Review Questions 449
Review Problems 449
Case Problems 450
Thinking Critically about Relevant Legal Issues 451
Assignment on the Internet 451
On the Internet 452
For Future Reading 452
17 Law and Business Associations— II 453 The Corporation 453
Classification of Corporations 454 Closely Held Corporation 454 Publicly Held Corporation 455 Multinational or Transnational Corporation 455 Subchapter S Corporation 455 ROBS Corporation 455 Professional Corporation 455 Nonprofit Corporation 456
Creation of Corporations 456
Brennan’s Inc. v. Colbert 457
Financing of Corporations 458 Debt Financing 458 Equity Financing 459 Consideration 461
Operation of Corporations 462 The Role of the Shareholders 462 The Role of the Board of Directors 464
C O N T E N T S xi
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In re Abbott Laboratories Derivative Shareholders Litigation 465
The Role of the Officers and Managers 466 Fiduciary Obligations of Directors, Officers, and Managers 466
Beam v. Stewart 467
Smith v. Van Gorkom 469
Limited Liability Companies 473 The Uniform Limited Liability Act 473 LLC Characteristics 473 Creating a Limited Liability Company 473 Duration of the LLC 474 Financing of the LLC 474 Control Considerations 474 Tax Ramifications 474
Gatz Properties, LLC v. Auriga Capital Corporation 474
Global Dimensions of Corporations: A “Big Fat Greek” Bailout II and III 476
Summary 476
Review Questions 477
Review Problems 477
Case Problems 478
Thinking Critically about Relevant Legal Issues 478
Assignment on the Internet 479
On the Internet 479
For Future Reading 480
P A R T T H R E E
Public Law and the Legal Environment of Business 481
18 The Law of Administrative Agencies 482 Introduction to Administrative Law and Administrative Agencies 483
Administrative Law 483 Administrative Agencies 484
Creation of Administrative Agencies 485
Functions of Administrative Agencies 486 Rulemaking 486
City of Arlington v. Federal Communications Commission 488
Adjudication 489
Fox Television Stations, Inc. v. Federal Communications Commission 493
Administrative Activities 494
Limitations on Administrative Agencies’ Powers 494
Statutory Limitations 494 Institutional Limitations 494
State and Local Administrative Agencies 496
Vonage Holdings Corp. v. Minnesota Public Utilities Commission 497
Global Dimensions of Administrative Agencies 498
Summary 498
Review Questions 498
Review Problems 498
Case Problems 499
Thinking Critically about Relevant Legal Issues 501
Assignment on the Internet 501
On the Internet 501
For Future Reading 502
19 The Employment Relationship and Immigration Laws 503 Wage and Hour Laws 504
Unemployment Compensation 506
Cassandra Jenkins v. American Express Financial Corp. 509
Consolidated Omnibus Budget Reconciliation Act of 1985 510
Workers’ Compensation Laws 510 Coverage 510 Recoverable Benefits 512 The Claims Process 12 Benefits of the Workers’ Compensation System 512
The Family and Medical Leave Act of 1993 513
Major Provisions 513
Jeffrey Bonkowski v. Oberg Industries, Inc. 514
Remedies for Violations of the FMLA 516 The Future of the FMLA 517
The Occupational Safety and Health Act of 1970 518
Occupational Safety and Health Administration 518 Occupational Safety and Health Review Commission 521 National Institute for Occupational Safety and Health 521 Implementation of the OSH Act 523
xii C O N T E N T S
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Employee Privacy Rights 523 Electronic Monitoring and Communication 523
Brian Pietrylo and Doreen Marino, Plaintiffs v. Hillstone Restaurant Group d/b/a Houston’s, Defendant 524
Drug Testing 527 Other Testing 528
Immigration Law 529 Immigration Reform and Control Act of 1986 529 Authorized Noncitizen Workers 530
Global Dimensions of the Employment Relationship 532
Summary 533
Review Questions 533
Review Problems 533
Case Problems 534
Thinking Critically about Relevant Legal Issues 535
Assignment on the Internet 536
On the Internet 536
For Future Reading 537
20 Laws Governing Labor– Management Relations 538 Structure of the Primary U.S. Labor Legislation and the Mechanisms for Its Enforcement 540
The Wagner Act of 1935 540 The Taft–Hartley Act of 1947 541 The Landrum–Griffin Act of 1959 542 The National Labor Relations Board 542
Labor Organizing 548 Board Rules 548 Unfair Labor Practices by Employers 549
Gaetano & Associates, Inc. v. National Labor Relations Board 553
Unfair Labor Practices by Employees 554
Laborers’ International Union of North America, Local 872, AFL–CIO, and Stephanie Shelby 554
Organizing the Appropriate Unit 556
Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Petitioner 557
The Collective Bargaining Process 559 Subjects of Bargaining 560
Strikes, Boycotts, and Picketing 560 Strikes 561
Boycotts 563 Picketing 563
Global Dimensions of Labor–Management Relations 564
Summary 564
Review Questions 564
Review Problems 565
Case Problems 565
Thinking Critically about Relevant Legal Issues 567
Assignment on the Internet 568
On the Internet 568
For Future Reading 568
21 Employment Discrimination 569 The Employment-at-Will Doctrine 570
Constitutional Provisions 572
The Civil Rights Acts of 1866 and 1871 572 Applicability of the Acts 572
The Equal Pay Act of 1963 573 Equal Work 574 Defenses 574 Remedies 575
The Civil Rights Act of 1964, as Amended (Title VII), and the Civil Rights Act of 1991 575
Applicability of the Act 575 Proof in Employment Discrimination Cases 576
Teresa Harris v. Forklift Systems, Inc. 580
Vance v. Ball State University 583 Retaliation 583
Reya C. Boyer-Liberto v. Fontainbleu Corporation 584
Statutory Defenses 586 Protected Classes 588 Enforcement Procedures 592 Remedies 595 Lilly Ledbetter Fair Pay Act of 2009 595
The Age Discrimination in Employment Act of 1967 596
Applicability of the Statute 597 Proving Age Discrimination 597
Jones v. National American University 598 Statutory Defenses 599 Enforcement Procedures 600 Remedies under ADEA 601
The Rehabilitation Act of 1973 601
The Americans with Disabilities Act of 1991 602
Covered Individuals 602
C O N T E N T S xiii
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McMillan v. City of New York 604 Enforcement Procedures 606 Remedies 606
Affirmative Action 606
Global Dimensions of Employment Discrimination Legislation 610
Summary 611
Review Questions 612
Review Problems 612
Case Problems 613
Thinking Critically about Relevant Legal Issues 615
Assignment on the Internet 615
On the Internet 616
For Future Reading 616
22 Environmental Law 617 Alternative Approaches to Environmental Protection 618
Tort Law 618
Boomer et al. v. Atlantic Cement Co. 618 Government Subsidies Approach 620 Emission Charges Approach 620 Marketable Discharge Permits Approach 620 Direct Regulation Approach 621
The Environmental Protection Agency 621
The National Environmental Policy Act of 1970 623
Threshold Considerations 623 Content of the EIS 623
Brodsky v. United States Nuclear Regulatory Commission 624
Effectiveness of the EIS Process 625
Regulating Water Quality 625 The Federal Water Pollution Control Act 625
Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. et al. 626
The Safe Drinking Water Act 627
Regulating Air Quality 627 The National Ambient Air Quality Standards 628 New Source Review 629 The Acid Rain Control Program 629 Climate Change 630
Regulating Hazardous Waste and Toxic Substances 631
The Resource Conservation and Recovery Act of 1976 633
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as Amended by the Superfund Amendment and Reauthorization Act of 1986 635 The Toxic Substances Control Act of 1979 636 The Federal Insecticide, Fungicide, and Rodenticide Act of 1972 637
The Pollution Prevention Act of 1990 638 Business Aspects of Voluntary Pollution Prevention 639 Sustainable Development 639
Global Dimensions of Environmental Regulation 639
The Need for International Cooperation 639 The Transnational Nature of Pollution 639 The Global Commons 641 Primary Responses of the United States 641
Summary 642
Review Questions 643
Review Problems 643
Case Problems 643
Thinking Critically about Relevant Legal Issues 645
Assignment on the Internet 645
On the Internet 646
For Future Reading 646
23 Rules Governing the Issuance and Trading of Securities 647 Introduction to the Regulation of Securities 648
Summary of Federal Securities Legislation 649 The Securities and Exchange Commission 652
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 655
Oversight of Financial Problems by Regulatory Agencies 656 Risk Taking by Large Banks and Nonbanks 656 Executive Compensation 656 Too Big to Fail 657 Credit Rating Agencies 657 Derivatives 657 Consumer Protection 658 Exemptions 658
xiv C O N T E N T S
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Regulation of the Regulators by a Court of Law 659
The Sarbanes-Oxley Act of 2002 659 Corporate Accountability 660 New Accounting Regulations 660 Criminal Penalties 660
The Securities Act of 1933 660 Definition of a Security 661
Securities and Exchange Commission v. Edwards 662
Registration of Securities under the 1933 Act 662 Securities and Transactions Exempt from Registration under the 1933 Act 666 Resale Restrictions 668 Liability, Remedies, and Defenses under the 1933 Securities Act 669
Litwin v. Blackstone Group, LP 670
The Securities Exchange Act of 1934 673 Registration of Securities Issuers, Brokers, and Dealers 673 Disclosure: Compensation 675 Securities Markets 676 Proxy Solicitations 677 Tender Offers and Takeover Bids 678 Remedies and Defensive Strategies 679
Barbara Schreiber v. Burlington Northern, Inc. 680
Securities Fraud 682
Siracusano v. Matrixx Initiatives, Inc. 683
Securities and Exchange Commission v. Texas Gulf Sulphur Co. 687
Liability and Remedies under the 1934 Exchange Act 689
The Wharf (Holdings) Limited v. United International Holdings, Inc. 690
Short-Swing Profits 691
State Securities Laws 692
E-Commerce, Online Securities Disclosure, and Fraud Regulation 692
Marketplace of Securities 692 E-Commerce and Fraud in the Marketplace 692
Global Dimensions of Rules Governing the Issuance and Trading of Securities 693
Legislation Prohibiting Bribery and Money Laundering Overseas 693 Legislation Governing Foreign Securities Sold in the United States 694 Regulations and Offshore Transactions 695
Summary 695
Review Questions 695
Review Problems 696
Case Problems 697
Thinking Critically about Relevant Legal Issues 697
Assignment on the Internet 698
On the Internet 698
For Future Reading 698
24 Antitrust Laws 699 Introduction to Antitrust Law 700
A Definition of Antitrust 700 Law and Economics: Setting and Enforcing Antitrust Policy 700
American Needle, Inc. v. National Football League 702
Goals of the Antitrust Statutes 703
Enforcement of and Exemptions from the Antitrust Laws 705
Enforcement 705 Exemptions 707
The Sherman Act of 1890 708 Section 1: Combinations and Restraints of Trade 708
Williamson Oil Co. v. Philip Morris, USA 710
Leegin Creative Leather Products, Inc. v. PSKS, Inc., dba Kay’s Kloset, Kay’s Shoes 714
Continental TV, Inc. v. GTE Sylvania 716 Section 2: Monopolies 718
E.I. DuPont de Nemours and Co. v. Kolon Industries 719
Newcal Industries, Inc. v. Ikon Office Solutions 721
United States v. Microsoft Corporation 723
The Clayton Act of 1914 725 Section 2: Price Discrimination 725 Section 3: Tying Arrangements and Exclusive-Dealing Contracts 727 Section 7: Mergers and Acquisitions 727 Section 8: Interlocking Directorates 732
Other Antitrust Statutes 732 Federal Trade Commission Act of 1914 732
California Dental Association v. Federal Trade Commission 732
Bank Merger Act 733
C O N T E N T S xv
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Global Dimensions of Antitrust Statutes 734 Transnational Reach of U.S. Antitrust Legislation 734
Carrier Corp. v. Outokumpu Oyj 735 Global Dimensions of U.S. Antitrust Laws 735 Enforcement 736
Summary 738
Review Questions 738
Review Problems 738
Case Problems 739
Thinking Critically about Relevant Legal Issues 740
Assignment on the Internet 740
On the Internet 740
For Future Reading 740
25 Laws of Debtor–Creditor Relations and Consumer Protection 741 Debtor–Creditor Relations 742
Rights of and Remedies for Creditors 743 Rights and Remedies for Debtors 744
The Federal Bankruptcy Code and the Incorporation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 745
History and Background 745 Bankruptcy Management and Proceedings 746 Chapter 7 749
In re Savage v. United States Bankruptcy 750
Chapter 13 752 Chapter 11 753
RadLAX Gateway Hotel, LLC v. Amalgamated Bank 754
Chapter 12 756 The New Bankruptcy Law—2011 757
The Evolution of Consumer Law 758 Economics 758
Federal Regulation of Business Trade Practices and Consumer–Business Relationships 759
The Federal Trade Commission: Functions, Structure, and Enforcement Powers 759 Deceptive and Unfair Advertising 760
Federal Trade Commission v. Verity International, Ltd. 761
Federal Trade Commission v. QT, Inc. 763
Paduano v. American Honda Motor Co. 765 Consumer Legislation 765
Federal Laws Regulating Consumer Credit and Business Debt-Collection Practices 769
Truth-in-Lending Act 769
Household Credit Services, Inc. v. Pfenning 771
Credit Card Accountability, Responsibility and Disclosure Act of 2009 772 The Electronic Fund Transfer Act 773 A Plastic Society 773 The Fair Credit Reporting Act 774
Safeco Insurance Co. v. Burr 775 Identity Theft and Credit Ratings 776 Equal Credit Opportunity Act 777 The Fair Credit Billing Act 778 The Fair Debt Collection Practices Act 778
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA 779
Dodd-Frank Act and Consumer Protection 781
Credit and Debit Cards 781 Consumer Loans 781 Credit Scores 781 Residential Mortgages 782
State Consumer Legislation 782 Uniform Consumer Credit Code 782 Unfair and Deceptive Practices Statutes 782 Arbitration of Disputes 783
Global Dimensions of Consumer Protection Laws 783
Summary 783
Review Questions 784
Review Problems 784
Case Problems 785
Thinking Critically about Relevant Legal Issues 786
Assignment on the Internet 787
On the Internet 787
For Future Reading 787
APPENDIX A THE CONSTITUTION OF THE UNITED STATES 788
GLOSSARY 794
INDEX 808
xvi C O N T E N T S
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xvii
Preface The Legal Environment of Business: A Critical Thinking Approach, 8th Edition, is exactly what its name implies: a comprehensive textbook that not only helps students develop a thorough understanding of the legal environment of business but also enhances their ability to engage in critical thinking and ethical analysis. Students thus develop the knowledge and skills necessary to survive in an increasingly competitive global environment.
The initial motivation for this book was the authors’ perceptions that there was no legal environment book available that explicitly and adequately facili- tated the development of students’ critical thinking skills. Nor was there a book that really integrated ethical analysis throughout the text.
Some people may argue that the traditional method of case analysis allows students to develop their critical thinking skills. The problem with this approach, however, is that it focuses only on the analytical skills, while ignoring the evalu- ative component that is the essence of critical thinking; it also lacks an ethics component. To engage in critical thinking necessarily includes consideration of the impact of values on the outcome being considered.
The use of cases in the legal environment of a business classroom, however, can provide an excellent opportunity for the development of students’ critical thinking abilities when the traditional case method is modified to emphasize development of these critical thinking skills. In addition, as students enhance their critical thinking skills, their understanding of the substance of the law also improves.
The following components of The Legal Environment of Business: A Criti- cal Thinking Approach ensure that the textbook’s goal of developing critically thinking students who understand the important concepts of business law and the legal environment of business is attained.
• An explicit critical thinking model, set forth in the first chapter, developed by the author of the best-selling critical thinking text- book. An eight-step model has as its base the traditional method of case analysis, but adds crucial critical thinking questions that also incorporate ethical analysis. The steps are clearly explained, and students are encour- aged to apply the steps to every case in the text.
• Additional critical thinking and ethical analysis questions incorpo- rated at the beginning of each chapter and after selected cases. These additional questions help to reinforce the skills emphasized in the model.
• “Thinking Critically about Relevant Legal Issues” essays at the end of each chapter, which give students additional opportunities to develop their critical thinking skills. These essays, found at the end of each chapter, allow students to extend their use of their newly developed critical thinking skills beyond cases to the kinds of arguments they will encounter in their daily lives.
Other Points of Distinction • Explicit links connecting the law to other disciplines. This text is the
only legal environment book to respond to the call for more integration among courses in colleges of business. “Linking Law and Business” boxes explicitly state how the law in an area directly affects or is affected by a con- cept in one of the core areas of business, such as accounting, management, and marketing. These boxes appear in every chapter.
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xviii P R E F A C E
• A balanced mix of classic and current cases. This book contains many of the most significant classic and contemporary cases, including key U.S. Supreme Court decisions handed down as recently as 2015. Whenever pos- sible, cases were chosen that not only demonstrate important concepts but also contain fact situations that interest students.
• Applying the Law to the Facts. This pedagogical feature appears in every chapter beginning with Chapter 4. It provides periodic hypothetical situa- tions to which students apply legal concepts they just learned. This feature allows students to continually check their understanding of new legal con- cepts as they read the material.
• Emphasis on the global environment. Many students will be working in countries other than the United States, and U.S. companies will have many dealings with foreign companies. Thus, an understanding of the global envi- ronment is essential for today’s business student. This text emphasizes the importance of the global environment by using both the stand-alone and infusion approaches. Chapter 9 focuses explicitly on the global environment of business, and global considerations are integrated into every chapter with the global dimensions sections and the “Comparative Law Corner,” which allows students to see how U.S. law compares to that of other nations around the world. The feature can also sensitize students to the idea that if something is not working well in the United States, it might make sense to see how other countries address similar issues. Examples include:
• Eminent domain in Germany
• The judicial system in Germany
• Corporate speech in Canada
• Unions in Sweden
• Pollution controls in Japan
• For Future Reading feature. It is important that students become lifelong learners and that they continue learning about the law. But how do they know where to go? This feature, found at the end of each chapter, provides a short list of books and articles related to the material in each chapter that interested students may read to learn more about the new areas of law they just discovered.
New to This Edition • America Invents Act—Discussion of the America Invents Act, which had a
significant impact on patent law, has been added to Chapter 12.
• Immigration law—A new section about immigration law has been added to Chapter 19.
• New procedures in Representation Cases—New procedures in Repre- sentation Cases that went into effect in 2015 have been added to Chapter 19.
• Updated cases—Cases in this edition have been significantly updated. The classic cases from the previous edition have been retained, as have those that students find especially interesting or that do an exceptional job of illus- trating an important point of law. All of the other cases have been replaced by more current cases that will be of greater interest to students and that capture the most current changes in the law. A few examples of new cases include:
• American Express Co. v. Italian Colors Restaurant (United States Supreme Court, 2013) (Chapter 4)
• Plum Creek C.A. v. Oleg Borman (Illinois State Court of Appeals, 2013) (Chapter 8)
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• Mutual Pharmaceutical Company, Inc. v. Bartlett (United States Supreme Court, 2013) (Chapter 12)
• American Broadcasting Company, Inc. et al. v. Aereo, Inc. (United States Supreme Court, 2014) (Chapter 14)
• Quality Car & Truck Leasing, Inc. v. Sark (Ohio Court of Appeals, 2013) (Chapter 16)
• Reya C. Boyer-Liberto v. Fontainebleau Corporation (Fourth Circuit Court of Appeals, 2015) (Chapter 21)
• Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. et al. (United States Supreme Court, 2013) (Chapter 22)
• Case problems—Approximately one-third of the case problems from the seventh edition have been replaced with more current case problems.
• Revised “For Future Reading” sections—Suggested readings at the end of each chapter have been updated to emphasize more current legal issues.
For Instructors At the Instructor Resource Center, www.pearsonhighered.com/irc, instructors can easily register to gain access to a variety of instructor resources available with this text in downloadable format.
If assistance is needed, our dedicated technical support team is ready to help with the media supplements that accompany this text. Visit http://247.pearsoned.com for answers to frequently asked questions and toll-free user support phone numbers.
The following supplements are available with this text:
• Instructor’s Resource Manual
• Test Bank
• TestGen® Computerized Test Bank
• PowerPoint Presentation
P R E F A C E xix
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Acknowledgments The authors would like to acknowledge, with thanks, the following reviewers of the current and past editions of this text:
Robert Aalberts, University of Nevada, Las Vegas Victor Alicea, Normandale Community College Carlos Alsua, University of Alaska, Anchorage S. Catherine Anderson, Queens University of Charlotte Teddy Jack Armstrong, Carl Albert State College Janie Blankenship, Del Mar College William Bockanic, John Carroll University Heidi Bulich, College of Business, Michigan State University Kimble Byrd, Rowan University Greg Cermignano, Widener University Glenn Chappell, Coker College William Christian, College of Santa Fe Linda Christiansen, Indiana University Southeast Patrick Cihon, Whitman School of Management, Syracuse University Michael Costello, University of Missouri–St. Louis Robert Cox, Salt Lake Community College Jamey Darnell, Barton College Regina Davenport, Pearl River Community College Kevin Derr, Pennsylvania College of Technology Julia Derrick, Brevard Community College David F. Dieteman, Penn State Erie, The Behrend College Joseph Dworak, San Jose State University Bruce Elder, University of Nebraska, Kearney Gail Evans, University of Houston, Downtown David Forsyth, ASU Polytechnic Lucky Franks, Bellevue University Samuel B. Garber, DePaul University Rosario Girasa, Pace University Van Graham, Gardner-Webb University John Gray, Loyola College in Maryland David Griffis, University of San Francisco Jason Harris, Augustana College Norman Hawker, Haworth College of Business, Western Michigan University Richard Hunter, Seton Hall University Marilyn Johnson, Mississippi Delta Community College Nancy Johnson, Mt. San Jacinto Community College Catherine Jones-Rikkers, Grand Valley State University James Kelley, Notre Dame de Namur University Lara Kessler, Grand Valley State University Ernest King, University of Southern Mississippi Audrey Wolfson Latourette, Richard Stockton College of New Jersey Larry Laurent, McCoy College of Business, Texas State University Marty Ludlum, Oklahoma City Community College Leslie S. Lukasik, Skagit Valley College Vicki Luoma, Minnesota State University Daniel Lykins, Oregon State University Bryan Jon Maciewski, Fond du Lac Tribal and Community College Maurice McCann, Southern Illinois University George McNary, College of Business Administration, Creighton University Don Miller-Kermani, Brevard Community College
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David Missirian, Bentley College Odell Moon, Victor Valley College Henry Moore, University of Pittsburgh, Greensburg Mark Muhich, Mesabi Range Community & Technical College Kimber Palmer, Texas A&M International University Steve Palmer, Eastern New Mexico University Darka Powers, Northeastern Illinois University Charles Radeline, St. Petersburg College Linda Reid, University of Wisconsin–Whitewater Bruce Rockwood, College of Business, Bloomsburg University Robert Rowlands, Harrisburg Area Community College Kenneth J. Sanney, Central Michigan University Ira Selkowitz, University of Colorado at Denver and Health Sciences Center Mary Sessom, Cuyamaca College James Smith, Bellevue University Craig Stilwell, Michigan State University Pamela Stokes, Texas A&M–Corpus Christi Keith Swim, Jr., Mays Business School, Texas A&M University Harold Tepool, Vincennes University Daphyne Saunders Thomas, James Madison University David Torres, Angelo State University Kyle Usre, Whitworth College Deborah Walsh, Middlesex Community College Joe Walsh, Lees-McRae College Dalph Watson, Madonna University Mary Ellen Wells, Alvernia College John Whitehead, Kilgore College John Williams, Northwestern State University Levon Wilson, Georgia Southern University Rob Wilson, Whitworth College Andrew Yee, University of San Francisco
xxii A C K N O W L E D G M E N T S
The authors would also like to acknowledge Tami Thomas and Meghan Moore for their assistance in typing the manuscript.
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About the Authors NANCY KUBASEK is a Professor of Legal Studies at Bowling Green State Uni- versity, where she teaches the Legal Environment of Business and Environmen- tal Law courses. For eight years, she team-taught a freshman honors seminar on critical thinking and values analysis. She has published another undergraduate textbook with Pearson Education, Environmental Law (8th ed., 2012) and more than 75 articles. Professor Kubasek’s articles have appeared in such journals as the American Business Law Journal, the Journal of Legal Studies Education, the Harvard Women’s Law Journal, the Georgetown Journal of Legal Ethics, and the Harvard Journal on Legislation. She received her J.D. from the University of Toledo College of Law and her B.A. from Bowling Green State University.
Active in her professional associations, Professor Kubasek has served as pres- ident of the TriState Regional Academy of Legal Studies in Business and president of the national professional association of undergraduate professors of law, the Academy of Legal Studies in Business (ALSB). Committed to helping students be- come excited about legal research, she organized the first Undergraduate Student Paper Competition of the ALSB’s Annual Meeting, an event that now provides an annual opportunity for students to present their original legal research at a na- tional convention. She has also published several articles with students and has received her university’s highest award for faculty–student research. She states:
The most important thing that a teacher can do is to help his or her students develop the skills and attitudes necessary to become lifelong learners. Professors should help their students learn the types of ques- tions to ask to analyze complex legal issues and to develop a set of criteria to apply when evaluating reasons. If we are successful, students will leave our legal environment of business classroom with a basic understanding of important legal concepts, a set of evaluative criteria to apply when evaluating arguments that includes an ethical component, and a desire to continue learning.
To attain these goals, the classroom must be an interactive one, where students learn to ask important questions, define contexts, generate sound reasons, point out the flaws in erroneous reasoning, recognize alternative perspectives, and consider the impacts that their decisions (both now and in the future) have on the broader community beyond themselves.
BARTLEY A. BRENNAN is an Emeritus Professor of Legal Studies at Bowling Green State University. He is a graduate of the School of Foreign Service, Georgetown University (B.S. International Economics); the College of Law, State University of New York at Buffalo ( J.D.); and Memphis State University (M.A. Economics). He was a volunteer in the U.S. Peace Corps, was employed by the Office of Opinions and Review of the Federal Communications Commission, and worked in the general counsel’s office of a private international corporation. Professor Brennan has received appointments as a visiting associate professor at the Wharton School, University of Pennsylvania, and as a Research Fellow at the Ethics Resource Center, Washington, DC. He is the author of articles dealing with the Foreign Corrupt Practices Act of 1977, as amended; the business judgment rule; law and economics; and business ethics. He has published numerous arti- cles in such journals as the American Business Law Journal, University of North Carolina Journal of International Law, and the Notre Dame University Journal of Legislation. He is a coauthor of Modern Business Law (3rd ed.). He has testi- fied on amending the Foreign Corrupt Practices Act before the Subcommittee on International Economics and Finance of the House Commerce, Energy, and Telecommunications Committee.
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M. NEIL BROWNE is a Distinguished Teaching Professor of Economics; direc- tor of IMPACT, an Honors Residential Learning Community Centered around the Principles of Intellectual Discovery and Moral Commitment; and coach of the Mock Trial Team at Bowling Green State University. He received a J.D. from the University of Toledo and a Ph.D. from the University of Texas. He is the coauthor of seven books and more than a hundred research articles in profes- sional journals. One of his books, Asking the Right Questions: A Guide to Critical Thinking (6th ed.), is a leading text in the field of critical thinking. His most recent book, Striving for Excellence in College: Tips for Active Learning, provides learners with practical ideas for expanding the power and effectiveness of their thinking. Professor Browne has been asked by dozens of colleges and universi- ties to aid their faculty in developing critical thinking skills on their campuses. He also serves on the editorial board of the Korean Journal of Critical Thinking. In 1989, he was a silver medalist for the Council for the Advancement and Sup- port of Education’s National Professor of the Year award. Also, in 1989, he was named the Ohio Professor of the Year. He has won numerous teaching awards on both local and national levels. He states:
When students come into contact with conflicting claims, they can react in several fashions; my task is to enable them to evaluate these persua- sive attempts. I try to provide them with a broad range of criteria and attitudes that reasonable people tend to use as they think their way through a conversation. In addition, I urge them to use productive ques- tions as a stimulus to deep discussion, a looking below the surface of an argument for the assumptions underlying the visible component of the reasoning. The eventual objectives are to enable them to be highly selective in their choice of beliefs and to provide them with the greater sense of meaning that stems from knowing that they have used their own minds to separate sense from relative nonsense.
xxiv A B O U T T H E A U T H O R S
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1
Introduction to the Law and the Legal
Environment of Business
Part One introduces the concept of critical thinking. A business
manager needs to learn and practice asking questions that ensure the
selection of the best advice and subsequent strategy. In addition, we
provide an overview of how the American legal system works. This
overview requires us to understand alternative philosophies of law,
alternative approaches to ethics, the constitutional foundations of our
legal system, and alternative methods of resolving disputes. Part One
concludes with a discussion of white-collar crime, a major problem in
the legal environment of business.
P A R T O N E
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Critical Thinking and Legal Reasoning
THE IMPORTANCE OF CRITICAL THINKING
A CRITICAL THINKING MODEL
THE CRITICAL THINKING STEPS
USING CRITICAL THINKING TO MAKE LEGAL REASONING COME ALIVE
APPLYING THE CRITICAL THINKING APPROACH
The Importance of Critical Thinking Success in business requires the development of critical thinking skills. Busi- ness leaders regularly list these skills as the first set of competencies needed in business. A simple Google search for “critical thinking in business” produces more than 80 million suggested URLs.
Critical thinking refers to the ability to understand what someone is saying and then to ask specific questions enabling you to evaluate the quality of the reasoning offered to support whatever advice someone has given you. Because firms are under increasing competitive pressure, business and industry need managers with advanced thinking skills.1 Highlighting this need, a report by the U.S. secretary of education states that because “one of the major goals of business education is preparing students for the workforce, students and their professors must respond to this need for enhancing critical thinking skills.”2
Calls for improvements in critical thinking skills also come from those concerned about business leadership. David A. Garvin of the Harvard Busi- ness School argues that there is a general feeling in the business community that business leaders need to sharpen their critical thinking skills.3 As a future business manager, you will experience many leadership dilemmas: All such questions require legal analysis and business leadership, guided by critical thinking.
A business leader must listen to many sources of information and many advisors. They are not all going to give advice that leads in a single direc- tion. Critical thinking skills enable you to weigh the relative worth of alterna- tive courses of action. For example, there will always be reasons you should encourage the growth of your labor force, but there will also be reasons you should not. You do not want these options to paralyze you, nor do you want to latch onto one approach for insubstantial reasons and then pay the price later.
C H A P T E R O N E
22
critical thinking skills The ability to understand the structure of an argument and apply a set of evaluative criteria to assess its merits.
1C. Sormunen and M. Chalupa, “Critical Thinking Skills Research: Developing Evaluation Techniques,” Journal of Education for Business 69: 172 (1994). 2 Id. 3 John Baldon, “How Leaders Should Think Critically,” HBR Blog Network, January 20, 2010.
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C H A P T E R 1 Critical Thinking and Legal Reasoning 3
Courtesy Holly Barnes
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4 P A R T O N E Introduction to the Law and the Legal Environment of Business
The message is clear: Success in business today requires critical thinking skills, and there is no better context in which to develop them than in the study of business law. Critical thinking skills learned in the Legal Environment of Business course will be easily transferred to your eventual role as a manager, entrepre- neur, or other business professional. The law develops through argument among various parties. Critical thinking facilitates the development of more effective law.
Legal reasoning is like other reasoning in some ways and different in others. When people, including lawyers and judges, reason, they do so for a purpose. Some problem or dilemma bothers them. The stimulus that gets them thinking is the issue. It is stated as a question because it is a call for action. It requires them to do something, to think about answers.
For instance, in our Legal Environment of Business course, we are inter- ested in such issues as:
1. Under the National Labor Relations Act, when are union organizers permit- ted to enter an employer’s property?
2. When do petroleum firms have liability for the environmental and economic effects of oil spills?
3. Must a business fulfill a contract when the contract is made with an unli- censed contractor in a state requiring that all contractors be licensed?
Such questions have several possible answers. Which one should you choose? Critical thinking and ethical reasoning moves us toward better choices, more thoughtful decisions reflecting knowledge of specific skills for weighing and selecting productive approaches. Issues or business dilemmas require an- swers. Business leaders often do not have the luxury of waiting around until perfect information floats by. They have to respond effectively or risk business failure. Some answers could get you into trouble; others could advance your purpose. Each answer is called a conclusion. A conclusion is a position or stance on an issue, the takeaway that the person giving you advice wants you to believe.
Business firms encounter legal conclusions in the form of laws or court decisions and in the advice they receive from people with formal legal train- ing. As businesses learn about and react to decisions or conclusions made by courts, they have two primary methods of response:
1. Memorize the conclusions or rules of law as a guide for future business decisions.
2. Make judgments about the quality of the conclusions. When legal rules fail to reflect understanding of the practicalities of doing business, business leaders play an important civic role in trying to modify those laws.
This book encourages you to do both. What is unique about this text is its prac- tical approach to evaluating legal reasoning. This approach is based on using critical thinking skills to understand and evaluate the law as it affects business.
There are many forms of critical thinking, but they all share one charac- teristic: They focus on the quality of someone’s reasoning. Critical thinking is active; it challenges each of us to form judgments about the quality of the link between someone’s reasons and conclusions. In particular, we will be focusing on the link between a court’s reasons and its conclusions.
A Critical Thinking Model You will learn critical thinking by practicing it. This text will tutor you, but your efforts are the key to your skill as a critical thinker. Because people often learn best by example, we will introduce you to critical thinking by demonstrating it in a model that you can easily follow.
conclusion A position or stance on an issue; the goal toward which reasoning pushes us.
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C H A P T E R 1 Critical Thinking and Legal Reasoning 5
EXHIBIT 1-1
THE EIGHT STEPS TO LEGAL REASONING
8. Is there relevant missing information? 7. How appropriate are the legal analogies?
6. What ethical norms are fundamental to the court’s reasoning? 5. Does the legal argument contain significant ambiguity?
4. What are the relevant rules of law? 3. What are the reasons and conclusion?
2. What is the issue? 1. What are the facts?
We now turn to a sample of critical thinking in practice. The eight critical thinking questions listed in Exhibit 1-1 and applied in the sample case that follows illustrate the approach you should use when reading cases to develop your critical thinking abilities.
As a citizen, entrepreneur, or manager, you will encounter cases like the one that follows. How would you respond? What do you think about the qual- ity of Judge Cedarbaum’s reasoning?
D efendants Martha Stewart and Peter Bacanovic were both convicted of conspiracy, making false statements, and obstruction of an agency proceeding, following Stewart’s sale of 3,928 shares of ImClone stock on December 27, 2001. Stewart sold all of her ImClone stock after Bacanovic, Stewart’s stockbroker at Merrill Lynch, informed Stewart that the CEO of Im- Clone, Samuel Waksal, was trying to sell his company stock. On December 28, 2001, ImClone announced that the Food and Drug Administration (FDA) had not approved the company’s cancer-fighting drug Erbitux. Thereafter, the Securities and Exchange Commission (SEC) and the United States Attorney’s Office for the Southern District of New York began investigations into the trading of ImClone stock, including investigations of Stewart and Bacanovic.
Following Stewart’s and Bacanovic’s criminal convic- tions, the defendants filed a motion for a new trial, al- leging that expert witness Lawrence F. Stewart, director of the Forensic Services Division of the United States Secret Service, had committed perjury in his testimony on behalf of the prosecution. As the “national expert for ink analysis,” Lawrence Stewart testified about the reliability of defendant Bacanovic’s personal documents that contained information about Martha Stewart’s in- vestments in ImClone.
Judge Cedarbaum Rule 33 provides: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”* However, “in the interest of according finality to a jury’s verdict, a motion for a new trial based on previously-undiscovered evidence is ordinarily ‘not favored and should be granted only with great caution.’” In most situations, therefore, “relief is justified under Rule 33 only if the newly-discovered evidence could not have been discov- ered, exercising due diligence, before or during trial, and that evidence ‘is so material and non-cumulative that its admission would probably lead to an acquittal.’”
But the mere fact that a witness committed perjury is insufficient, standing alone, to warrant relief under Rule 33. “Whether the introduction of perjured testi- mony requires a new trial initially depends on the ex- tent to which the prosecution was aware of the alleged perjury. To prevent prosecutorial misconduct, a convic- tion obtained when the prosecution’s case includes tes- timony that was known or should have been known to be perjured must be reversed if there is any reasonable likelihood that the perjured testimony influenced the jury.” When the Government is unaware of the perjury at the time of trial, “a new trial is warranted only if the
CASE 1-1
United States of America v. Martha Stewart and Peter Bacanovic United States District Court for the Southern District of New York, 2004 U.S. Dist. LEXIS 12538
*Excerpt from United States District Court-Southern District of New York.
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6 P A R T O N E Introduction to the Law and the Legal Environment of Business
testimony was material and ‘the court [is left] with a firm belief that but for the perjured testimony, the de- fendant would most likely not have been convicted.’”
Defendants have failed to demonstrate that the pros- ecution knew or should have known of Lawrence’s perjury. However, even under the stricter prejudice stan- dard applicable when the Government is aware of a witness’s perjury, defendants’ motions fail. There is no reasonable likelihood that knowledge by the jury that Lawrence lied about his participation in the ink tests and whether he was aware of a book proposal could have affected the verdict.
The verdict, the nature of Lawrence’s perjury, and the corroboration that Lawrence’s substantive testimony re- ceived from the defense’s expert demonstrate that Law- rence’s misrepresentations could have had no effect on defendants’ convictions.
First, the jury found that the Government did not satisfy its burden of proof on the charges to which Lawrence’s testimony was relevant. Defendants do not dispute that Bacanovic was acquitted of the charge of making and using a false document, and that none of the false statement and perjury specifications concern- ing the existence of the $60 agreement were found by the jury to have been proved beyond a reasonable doubt. . . . In other words, the jury convicted defendants of lies that had nothing to do with the $60 agreement. The outcome would have been no different had Law- rence’s entire testimony been rejected by the jury, or had Lawrence not testified at all.
Defendants argue that acquittal on some charges does not establish that the jury completely disregarded Lawrence’s testimony. They contend that the $60 agree- ment constituted Stewart and Bacanovic’s core defense and that the “@60” notation was evidence which sup- ported that defense.
This argument is wholly speculative and logically flawed. The existence of the $60 agreement would not have exonerated defendants. It would not have been in- consistent for the jury to find that defendants did make the $60 agreement, but that the agreement was not the reason for the sale. In addition to the substantial basis for concluding that the jury’s decision could not have been affected by the revelation of Lawrence’s misrepresenta- tions, ample evidence unrelated to the $60 agreement or to Lawrence’s testimony supports defendants’ convictions.
The testimony of Faneuil, Perret, and Pasternak sup- ports the jury’s determinations that Stewart lied when she told investigators that she did not recall being in- formed of Waksal’s trading on December 27. . . .
Finally, Faneuil’s testimony supports the jury’s de- termination that Stewart lied when she claimed not to have spoken with Bacanovic about the Government in- vestigation into ImClone trading or Stewart’s ImClone trade (Specifications Six and Seven of Count Three). Faneuil stated that Bacanovic repeatedly told him in January 2002 and afterward that Bacanovic had spoken to Stewart and that everyone was “on the same page.”
Motion for a new trial denied.
Before we apply critical thinking to this case, notice that the law is a place where people actively disagree. They are fighting over responsibilities, rights, and fairness. Business law provides a scenario in which parties can peacefully settle the disputes they will inevitably have. Law is and always has been an alternative to war and physical fights. It is a human invention that should make us proud that we can do better than use physical force to settle disagreements.
Now let’s get to work, learning how to use the law optimally in business. First, review the eight steps of a critical thinking approach to legal rea-
soning in Exhibit 1-1. Throughout the book, we will call these the critical thinking questions. They are questions we are asking of those who have par- ticular legal conclusions. Notice the primary importance of the first four steps; their purpose is to discover the vital elements in the case and the reasoning behind the decision. Failure to consider these four foundational steps might result in our reacting too quickly to what a court or legislature has said. The rule here is: We should never evaluate until we first understand the argument being made.
The answers to these four questions enable us to understand how the court’s argument fits together and to make intelligent use of legal decisions. These answers are the necessary first stage of a critical thinking approach to legal analysis. The final four questions are the critical thinking component of legal reasoning. They are questions that permit us to evaluate the reasoning and to form our reaction to what the court decided.
You will develop your own workable strategies for legal reasoning, but we urge you to start by following our structure. Every time you read a case, ask your- self these eight questions. The remainder of this section will demonstrate the use
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of each of the eight steps. Notice that the order makes sense. The first four follow the path that best allows you to discover the basis of a particular legal decision; the next four assist you in deciding what you think about the worth of that decision.
The Critical Thinking Steps FACTS First we look for the most basic building blocks in a legal decision or argument. These facts provide the context in which the legal issue is to be resolved. Alter those facts, and the legal conclusion might be very different. Certain events oc- curred; certain actions were or were not taken; particular persons behaved or failed to behave in specific ways. We always wonder, what happened in this case? Let’s now turn our attention to the Stewart case:
1. Martha Stewart sold 3,928 shares of her ImClone stock on December 27, 2001.
2. On December 28, 2001, ImClone announced the FDA’s rejection of its new cancer-fighting drug, which caused the company’s stock to lose value.
3. Stewart and Bacanovic were convicted of conspiracy, making false state- ments, and obstruction of an agency proceeding.
4. Expert witness Lawrence Stewart was accused of perjuring himself in the testimony he gave prior to the defendants’ conviction.
5. According to a federal rule and case law, perjury of a witness could consti- tute grounds for a new trial.
ISSUE In almost any legal conflict, finding and expressing the issue is an important step in forming a reaction. So important is the definition of the issue, that many times the lawyers in a legal suit spend considerable effort trying to get the judge or jury to see the issue a particular way so that they have a better chance of winning the case. The issue is the question that caused the lawyers and their clients to enter the legal system. Usually, there are several reasonable perspectives concerning the correct way to word the issue in dispute.
1. In what instances may a court grant a new trial?
2. Does perjury of a witness mean that defendants should have a new trial?
3. Do the regulations in Rule 33 and relevant case law permit the defendants to have a new trial?
Do not let the possibility of multiple useful ways to word the issue cause you any confusion. The issue is certainly not just anything that we say it is. If we claim something is an issue, our suggestion must fulfill the definition of an issue in this particular factual situation.
REASONS AND CONCLUSION Judge Cedarbaum held that the defendants should not have a new trial. This finding by Judge Cedarbaum is her conclusion; it serves as her answer to the legal issue. Why did she answer this way? Here we are calling for the reasons, explanations or justifications provided as support for a conclusion.
1. Under Rule 33 and relevant case law, perjury is not sufficient to justify a new trial, unless (a) the government knew about the perjury or (b) the perjured testimony was so material that without it the verdict would probably have resulted in acquittal of the defendants.
reason An explanation or justification provided as support for a conclusion.
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2. The defendants did not demonstrate that the government knew or should have known about the perjured testimony.
3. The jury would still have convicted the defendants apart from Lawrence’s testimony.
4. Defense experts agreed with Lawrence on the “most critical aspects of his scientific analysis.”
Let’s not pass too quickly over this very important critical thinking step. When we ask why of any opinion, we are showing our respect for reasons as the proper basis for any assertion. The judge did not rely on astrology or palm readers to guide her. Instead, she relied on our special ability to identify and sort through reasons and evidence.
We want a world rich with opinions so we can have a broad field of choice. We should, however, agree with only those legal opinions that have convincing reasons supporting the conclusion. Thus, asking why is our way of saying, “I want to believe you, but you have an obligation to help me by sharing the reasons for your conclusion.”
RULES OF LAW Judges cannot offer just any reasoning they please. They must always look back over their shoulders at the laws and previous court decisions that together pro- vide a foundation for current and future decisions. They must follow precedents, the decisions in past cases with similar facts.
This particular case is an attempt to match the words of the Federal Rules of Criminal Procedure, specifically Rule 33, and its regulations with the facts in this particular case. The court also references case law. What makes legal rea- soning so complex is that statutes and findings are never crystal clear. Judges and businesspeople have room for interpretive flexibility in their reasoning.
AMBIGUITY The starting point for thinking about this important critical thinking standard is recognizing that a word does not have just one meaning. Thus, when I say a par- ticular word to you, there is no reason I should presume that the meaning I had in mind is transferred into your mind in exactly the same form as it left my mouth. As soon as we realize the flexibility of words, a huge responsibility falls onto our shoulders. We have to seek clarity in what people say to us, or we risk reacting to what they said in a manner they never intended to encourage. Exploring the meaning of what people say is only fair to them.
The court’s reasoning must rest on its implied assumptions about the meaning of several ambiguous words or phrases. (An ambiguous word is one capable of having more than one meaning in the context of these facts.) For instance, Judge Cedarbaum stated that Rule 33 permits the court to grant a new trial if the “interest of justice so requires.” But what is the “interest of justice”?
Does the interest of justice entail strict conformity to legal precedents? Or could the court’s reliance on certain precedents result in some form of injus- tice in the Stewart case? If we adopt the former definition, we would be more inclined to conclude that the judge’s denying the defendants’ motion for a new trial was consistent with the “interest of justice.” However, if the legislators who created Rule 33 intended a definition of “justice” that placed a stronger emphasis on judicial fairness, for example, perhaps we would be less support- ive of Judge Cedarbaum’s decision.
Another illustration of important ambiguity in the decision is the court’s use of the term reasonable likelihood, referring to the probability that Lawrence’s alleged perjury could not have affected the jury’s verdict—but what degree of
ambiguous Possessing two or more possible interpretations.
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probability is a “reasonable likelihood”? Does this level of probability suggest that knowledge of Lawrence’s testimony could have affected the jury’s verdict? If we interpret “reasonable likelihood” as still including the possibility that knowledge of Lawrence’s perjury could have affected the jury, we might reach a conclusion that differs from the court’s decision. If we assume a definition of “reasonable likelihood” similar to “beyond a reasonable doubt,” however, we would be more inclined to agree with the judge’s decision. Hence, until we know what “reasonable likelihood” means, we cannot fairly decide whether the judge made the appropriate decision.
ETHICAL NORMS The primary ethical norms that influence judges’ decisions are justice, stability, freedom, and efficiency. Notice that each of these words is an abstraction, some- thing we cannot touch, smell, hear, or see. As important as these ethical norms are, they are simply an invitation to a conversation—a conversation focusing on the meaning being used in this particular instance. Judge Cedarbaum expresses herself as a defender of stability or order. (Here is a good place to turn to Exhibit 1-2 to check alternative definitions of stability.) She is unwilling to grant a new
Ethical Norms Forms
1. Freedom To act without restriction from rules imposed by others To possess the capacity or resources to act as one wishes
2. Security To provide the order in business relationships that permits predictable plans to be effective To be safe from those wishing to interfere with your property rights To achieve the psychological condition of self-confidence such that risks are welcomed
3. Justice To receive the product of your labor To provide resources in proportion to need To treat all humans identically, regardless of class, race, gender, age, and so on To possess anything that someone else was willing to grant you
4. Efficiency To maximize the amount of wealth in our society To get the most from a particular input To minimize costs
A judge’s allegiance to a particular ethical norm focuses our attention on a specific category of desired conduct. We have, or think we have, an understanding of what is meant by freedom and other ethical norms. But do we? Ethical norms are, without exception, complex and subject to multiple interpretations. Consequently, to identify the importance of one of the ethical norms in a piece of legal reasoning, we must look at the context to figure out which form of the ethical norm is being used. The types of conduct called for by the term freedom not only differ depending on the form of freedom being assumed, but at times they can contradict each other. As a future business manager, your task is to be aware that there are alternative forms of each ethical norm. Then a natural next step is to search for the form used by the legal reasoning so you can understand and later evaluate that reasoning. The following alternative forms of the four primary ethical norms can aid you in that search.
EXHIBIT 1-2
CLARIFYING THE PRIMARY ETHICAL NORMS
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trial simply on the fact that one of the witnesses allegedly committed perjury. In- stead of granting the defendants’ motion, Judge Cedarbaum elevates the “interest of according finality to a jury’s verdict,” even if the prosecution knew or should have known about the alleged perjury. Citing previous case law, she is able to grant new trials only in rare instances.
ANALOGIES Ordinarily, our examination of legal analogies will require us to compare legal precedents cited by the parties with the facts of the case we are examining. Those precedents are the analogies on which legal decision making depends. In this case, Judge Cedarbaum relies on several legal precedents as analogies for her ruling.
In United States v. Wallach, the Second Circuit held that even if the prose- cution knew of a witness’s perjury, the court should not grant a new trial when other “independent” evidence is sufficient to convict a defendant. The worth of this analogy depends on a greater understanding of independent evidence. In other words, what constitutes independent evidence? And is the strength of independent evidence in the Stewart case comparable to the independent ev- idence in Wallach? Or are there significant differences between the two cases such that the court’s reliance on Wallach is unwarranted in this case?
To feel comfortable with the analogy, we would need to be persuaded that the independent evidence in the Stewart case is basically similar to the independent evidence in the precedent, United States v. Wallach. Law is an in- terpretive practice. Each of us brings a different set of experiences, aspirations, and perspectives to our interpretations. We move forward in the midst of our differences by assembling reasonable arguments for why our understanding of the analogy makes sense.
MISSING INFORMATION When any of us makes a decision, we always do so with less information than we would love to have. In the search for relevant missing information, it is im- portant not to say just anything that comes to mind. For example, where did the defendants eat Thanksgiving dinner? Anyone hearing that question would under- standably wonder why it was asked. Ask only questions that would be helpful in understanding the reasoning in this particular case.
To focus on only relevant missing information, we should include an expla- nation of why we want it with any request for additional information. We have listed a few examples here for the Stewart case. You can probably identify others.
1. How well informed is Judge Cedarbaum with respect to the deliberations of the jury? If her understanding of the jurors’ preverdict discussions is very limited, the defendants’ request for a new trial might be more convincing, because Judge Cedarbaum repeatedly contends that jurors’ knowledge of Lawrence’s alleged perjury would not have affected the jurors’ decision.
2. Congress, as it does with any legislation, discussed the Rules of Criminal Procedure before passing them. Does that discussion contain any clues as to congressional intent with respect to the various conditions required for a defendant to receive a new trial? The answer would conceivably clarify the manner in which the court should apply Rule 33.
3. Are there examples of cases in which courts have examined fact patterns similar to those in the Stewart case but reached different conclusions about a new trial? The answer to this question would provide greater clarity about the appropriateness of using certain case precedents, thereby corroborating or undermining Judge Cedarbaum’s decision.
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Many other critical thinking skills could be applied to this and other cases. In this book, we focus on the ones especially valuable for legal reasoning. Consistently applying this critical thinking approach will enable you to un- derstand the reasoning in legal cases and increase your awareness of alterna- tive approaches our laws could take to many legal environment of business problems. The remaining portion of this chapter examines each of the critical thinking questions in greater depth to help you better understand the function of each.
Using Critical Thinking to Make Legal Reasoning Come Alive Our response to an issue is a conclusion. It is what we want others to believe about the issue. For example, a court might conclude that an employee, allegedly fired for her political views, was actually a victim of employment discrimina- tion and is entitled to a damage award. Conclusions are reached by following a path produced by reasoning. Hence, examining reasoning is especially important when we are trying to understand and evaluate a conclusion.
There are many paths by which we may reach conclusions. For instance, I might settle all issues in my life by listening to voices in the night, asking my uncle, studying astrological signs, or just playing hunches. Each method could produce conclusions. Each could yield results.
But our intellectual and legal tradition demands a different type of support for conclusions. In this tradition, the basis for our conclusions is supposed to consist of reasons. When someone has no apparent reasons, or the reasons don’t match the conclusion, we feel entitled to say, “But that makes no sense.” We aren’t impressed by claims that we should accept someone’s conclusion “just because.”
This requirement that we all provide reasons for our conclusions is what we mean, in large part, when we say we are going to think. We will ponder what the reasons and conclusion are and whether they fit together logically. This intense study of how a certain conclusion follows from a particular set of reasons occupies much of the time needed for careful decision making.
Persons trained to reason about court cases have uncommon appreciation for the unique facts that provoked a legal action. Those facts, and no others, provide the context for our reasoning. If an issue arises because environmen- talists want to prevent an interstate highway from extending through a wilder- ness area, we want to know right away: What are the facts? Tell us more about this wilderness area. What procedures were followed before approving the route for this highway? What evidence was presented to project the possible harm to the ecological system?
Legal reasoning encourages unusual and necessary respect for the par- ticular factual situation that stimulated disagreement between parties. These fact patterns, as we call them, bring the issue to our attention and limit the extent to which the court’s conclusion can be applied to other situations. Small wonder that the first step in legal reasoning is to ask and answer the question: What are the facts?
LEGAL REASONING Step 1: What Are the Facts? The call for the facts is not a request for all facts, but only those that have a bearing on the dispute at hand. The precise nature of the dispute tells us whether a certain fact is pertinent. In some cases, the plain- tiff’s age may be a key point; in another, it may be irrelevant.
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Only after we have familiarized ourselves with the relevant legal facts do we begin the familiar pattern of reasoning that thoughtful people use. We then ask and answer the following question: What is the issue?
Step 2: What Is the Issue? The issue is the question that the court is being asked to answer. For example, courts face groups of facts relevant to issues such as the following:
1. Does Title VII apply to sexual harassment situations when the accused and the alleged victim are members of the same sex?
2. Does a particular merger between two companies violate the Sherman Act?
3. When does a governmental regulation require compensation to the property owner affected by the regulation?
As we pointed out earlier, the way we express the issue guides the legal reason- ing in the case. Hence, forming an issue in a very broad or an extremely narrow manner has implications for the scope of the effect stemming from the eventual decision. You can appreciate now why parties to a dispute work very hard to get the court to see the issue in a particular way.
You will read many legal decisions in this book. No element of your analysis of those cases is more important than careful consideration of the issue. The key to issue spotting is asking yourself: What question do the parties want the court to answer? The next logical step in legal analysis is to ask: What are the reasons and conclusion?
Step 3: What Are the Reasons and Conclusion? The issue is the stimulus for thought. The facts and the issue in a particular case get us to start thinking critically about legal reasoning, but the conclusion and the reasons for that con- clusion put flesh on the bones of the court’s reaction to the legal issue. They tell us how the court has responded to the issue.
To find the conclusion, use the issue as a helper. Ask yourself: How did the court react to the issue? The answer is the conclusion. The reasons for that conclusion provide the answer to the question: Why did the court prefer this response to the issue rather than any alternative? One part of the answer to that question is the answer to another question: What are the relevant rules of law?
Step 4: What Are the Relevant Rules of Law? The fourth step in legal reason- ing reveals another difference from general nonlegal reasoning. The issue arises in a context of existing legal rules. We do not treat each legal dispute as if it were the first such dispute in human history. A court has already responded to situations much like the ones now before it. The historical record of pertinent judicial decisions provides a rich source of reasons on which to base the con- clusions of courts.
These prior decisions, or legal precedents, provide legal rules to which those in a legal dispute must defer. Thus, the fourth step in legal reasoning requires a focus on those rules. These legal rules are what the parties to a dispute must use as the framework for their legal claims. How those rules and the reasoning and conclusions built on them are expressed, however, is not always crystal clear. Hence, another question—one that starts the critical thinking evaluation of the conclusion—is: Does the legal argument contain significant ambiguity?
Step 5: Does the Legal Argument Contain Significant Ambiguity? Legal arguments are expressed in words, and words rarely have the clarity we pre- sume. Whenever we are tempted to think that our words speak for themselves, we should remind ourselves of Emerson’s observation that “to be understood is a rare luxury.” Because legal reasoning is couched in words, it possesses
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elasticity. It can be stretched and reduced to fit the purpose of the attorney or judge.
As an illustration, a rule of law may contain the phrase public safety. At first glance, as with any term, some interpretation arises in our minds; however, as we continue to consider the extent and limits of public safety, we realize it is not so clear. To be more certain about the meaning, we must study the intent of the person making the legal argument. Just how safe must the public be before an action provides sufficient threat to public safety to justify public intervention?
As a strategy for critical thinking, the request for clarification is a form of evaluation. The point of the question is that we cannot agree with a person’s reasoning until we have determined what we are being asked to embrace.
What we are being asked to embrace usually involves an ethical component. Therefore, an important question to ask is: What ethical norms are fundamental to the court’s reasoning?
Step 6: What Ethical Norms Are Fundamental to the Court’s Reasoning? The legal environment of business is established and modified according to ethical norms. A norm is a standard of conduct, a set of expectations that we bring to social encounters. For example, one norm we collectively understand and obey is that our departures are ordinarily punctuated by “good-bye.” We may presume rudeness or preoccupation on the part of someone who leaves our presence without bidding us some form of farewell.
Ethical norms are special because they are steps toward achieving what we consider good or virtuous. Goodness and virtue are universally preferred to their opposites, but the preference has little meaning until we look more deeply into the meaning of these noble aims.
Conversations about ethics compare the relative merit of human behavior guided by one ethical norm or another. Ethical norms represent the abstractions we hold out to others as the most fundamental standards defining our self-worth and value to the community. For example, any of us would be proud to know that others see us as meeting the ethical norms we know as honesty, depend- ability, and compassion. Ethical norms are the standards of conduct we most want to see observed by our children and our neighbors.
The legal environment of business receives ethical guidance from many norms. Certain norms, however, play a particularly large role in legal reasoning. Consequently, we highlight what we will refer to as the four primary ethical norms: freedom, stability, justice, and efficiency. (See Exhibit 1-2 for clarification of these norms.) As you examine the cases in this text, you may identify other ethical norms that influence judicial opinions. To discover the relevant ethical norm, we must infer it from the court’s reasoning. Courts often do not announce their preferred pattern of ethical norms, but the norms are there anyway, having their way with the legal reasoning. As critical thinkers, we want to use the ethical norms, once we find them, as a basis for evaluating the reasoning.
We do so by thinking about the business effects from relying on a different ethical norm. Would a different ethical norm lead the law in a direction that would be more consistent with the goals of our community?
Another element used in arriving at legal conclusions is the device of rea- soning by analogy. Part of the critical thinking process in the evaluation of a legal conclusion is another question: How appropriate are the legal analogies?
Step 7: How Appropriate Are the Legal Analogies? A major difference be- tween legal reasoning and other forms of analysis is the heavy reliance on analogies. Our legal system places great emphasis on the law, as it has evolved from previous decisions. This evolutionary process is our heritage, the collective judgments of our historical mothers and fathers. We give them and their intel- lects our respect by using legal precedents as the major support structure for
norm An expected standard of conduct.
ethical norms Standards of conduct that we consider good or virtuous.
primary ethical norms The four norms that provide the major ethical direction for the laws governing business behavior: freedom, stability, justice, and efficiency.
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judicial decisions. By doing so, we do not have to approach each fact pattern with entirely new eyes; instead, we are guided by similar experiences that our predecessors have already resolved.
The use of precedent to reach legal conclusions is so common that legal reasoning can be characterized as little but analogical reasoning. An analogy is a verbal device for transferring meaning from something we understand quite well to something we have just discovered and have, as yet, not understood satisfactorily. What we already understand in the case of legal reasoning is the precedent; what we hope to understand better is the current legal dispute. We call on precedent for enlightenment.
To visualize the choice of legal analogy, imagine that we are trying to decide whether a waitress or waiter can be required to smile for hours as a condition of employment. (What is artificial about such an illustration, as we hope you already recognize, is the absence of a more complete factual picture to provide context.) The employer in question asks the legal staff to find appropriate legal precedents. They discover the following list of prior decisions:
1. Professional cheerleaders can be required to smile within reason, if that ac- tivity is clearly specified at the time of employment.
2. Employees who interact regularly with customers can be required as a con- dition of employment to wear clothing consistent with practice in the trade.
3. Employers may not require employees to lift boxes over 120 pounds with- out the aid of a mechanical device, under the guidelines of the Employee Health Act.
Notice that each precedent has similarities to, but also major differences from, the situation of the waiter or waitress. To mention only a few:
• Is a smile more natural to what we can expect from a cheerleader than from a waiter or waitress?
• Were the restaurant employees told in advance that smiling is an integral part of the job?
• Is a smile more personal than clothing? Are smiles private, as opposed to clothing, which is more external to our identity?
• Is a plastered-on smile, held in place for hours, a serious risk to mental health?
• Is a potential risk from smiling as real a danger as the one resulting from physically hoisting huge objects?
The actual selection of precedent and, consequently, the search for appropriate analogies are channeled by the theory of logic that we find most revealing in this case. For example, if you see the requirement to smile as an invasion of privacy, you will likely see the second precedent as especially appropriate. Both the precedent and the case in question involve employment situations with close customer contact.
The differences, however, could be significant enough to reject that analogy. Do you see your clothing as part of your essence, in the same fashion as you surely see the facial form you decide to show at any given moment? Further- more, the second precedent contains the phrase consistent with practice in the trade. Would not a simple field trip to restaurants demonstrate that a broad smile is a pleasant exception?
As you practice looking for similarities and differences in legal precedents and the legal problem you are studying, you will experience some of the fun and frustration of legal reasoning within a business context. The excitement comes when you stumble on just the perfect, matching fact pattern; then, after taking a closer look, you are brought back to earth by those annoying analogical differences that your experience warns you are always present.
analogy A comparison based on the assumption that if two things are alike in some respect, they must be alike in other respects.
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Ambiguity, ethical norms, and legal analogies are all areas in which legal arguments may be deficient; but even if you are satisfied that all those consider- ations meet your standards, there is a final question that must not be overlooked in your critical analysis of a conclusion: Is there relevant missing information?
Step 8: Is There Relevant Missing Information? When we ask about the facts of a case, we mean the information presented in the legal proceedings. We are, however, all quite aware that the stated facts are just a subset of the complete factual picture responsible for the dispute. We know we could use more facts than we have, but at some point we have to stop gathering information and settle the dispute.
You might not be convinced that the facts we know about a situation are in- evitably incomplete; however, consider how we acquire facts. If we gather them ourselves, we run into the limits of our own experience and perceptions. We often see what we want to see, and we consequently select certain facts to file in our consciousness. Other facts may be highly relevant, but we ignore them. We can neither see nor process all the facts.
Our other major source of information is other people. We implicitly trust their intentions, abilities, and perspective when we take the facts they give us and make them our own. No one, however, gives us a complete version of the facts. For several reasons, we can be sure that the facts shared with us are only partial.
Armed with your awareness of the incompleteness of facts, what can you do as a future businessperson or employee to effectively resolve disagreements and apply legal precedents?
You can seek a more complete portrayal of the facts. Keep asking for detail and context to aid your thinking. For example, once you learn that a statute re- quires a firm to use the standard of conduct in the industry, you should not be satisfied with the following fact:
On 14 occasions, our firm attempted to contact other firms to determine the industry standards. We have bent over backwards to comply with the ethical norms of our direct competitors.
Instead, you will persist in asking probing questions designed to generate a more revealing pattern of facts. Among the pieces of missing information you might ask for would be the extent and content of actual conversations about in- dustry standards, as well as some convincing evidence that “direct” competitors are an adequate voice, representing “the industry.”
Applying the Critical Thinking Approach Now that you have an understanding of the critical thinking approach, you are ready to begin your study of the legal environment of business. Remember to apply each of the questions to the cases as you read them. As an incentive to do the work associated with careful thinking, imagine what it would be like to NOT apply critical thinking in your business careers. You would receive advice, and you would always believe it, as long as the person speaking seemed nice and authoritative. As soon as someone told you what “the law” is, you would, like a sponge, simply proceed to do business as if that single statement about the con- tent of the law is the one and only possible understanding of the law. You would be the mental puppet of the last clever person with whom you spoke. You will agree that this portrait of a businessperson who does not use critical thinking is a recipe for disaster.
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