perspectives lecture

8/4/2019 Perspectives Lecture

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Perspectives in Business Law : Unit 1: Legal Ethical and Digital

Environment

Chapter 1: Legal Heritage and The Information Age

Chapter 2: Constitutional Law for Business and E-Commerce

Words that still resound:

"If I were to try to read, much less answer, all the attacks madeon me, this shop might as well be closed for any other business.

I do the very best I know how - the very best I can; and I mean

to keep doing so until the end. If the end brings me out all right,

what's said against me won't amount to anything. If the end

brings me out wrong, ten angels swearing I was right would

make no difference." [Abraham Lincoln, Sixteenth President of the United

States]

Introduction: The Constitution: Who we are and what we stand for.

There are many different issues covered in your textbook in Chapters 1 and 2. In this

Perspectives lecture and all of the lectures yet to come, I will not restate the points

raised in the chapters of your text.

We live in a complex world where our success in life and business depends on having

a keen understanding of our legal environment. Federal, state and local statutes,

cases, administrative regulations, rules, notices, executive orders, etc. comprise the

legal landscape that we live in. Each day new laws are enacted and new cases

handed down from various courts of jurisdiction.

Although our text begins with a general discussion of the nature of law, I don't thinkof things "that way." For me, the law begins and, to a degree, ends with the United

States Constitution. Our supreme law of the land is the United States Constitution, a

brilliantly conceived document. It is without a doubt one of the world's greatest

"legal documents."

Politics and the Law

At the Democratic Convention in Denver concerning the nomination of Barack

Obama, President Clinton noted that the 'world is impressed not by the example of

our power, but by the power of our example.' Although the former President wasn't

Home11/FA.ACCTG.351B.C1Resources Perspectives Lecture

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talking about the Constitution, I believe he'd agree that the Constitution, as

amended, is more than the supreme law of the land. It's an example of who we are

and what we stand for. It's not just a statement of mind, not merely about checks

and balances, not merely about courts and jurisdiction. It's also a statement of the

collective heart of brilliant men of goodwill who well knew about tyranny and

tyrants, and of famine and fear. They traveled in carriages and on horseback

hundreds of miles to craft what I believe to be a document that is as much about the

heart and soul of America, as it is about its mind. And how many times in the last

230 years has our democracy been challenged to the core? It's a constant challenge

to understand, appreciate, continue and enforce the spirit and letter of the

Constitution.

The Civil War, the Vietnam War, and yes, the wars in Iraq and Afghanistan are just a

few examples of the challenges we must confront in light of our most basic

understanding of the Constitution and the nature of our democratic nation. We

construct and deconstruct. Some Constitutional experts are strict constructionists

seeking to limit constitutional freedoms, rights and duties conceived by our Founding

Fathers.

Others take different views. Some believe the supreme law of the land is a 'living

and breathing' document that challenges jurists, historians and all of us each day to

come to grips with the balance between personal freedoms and public protection,

privacy and privilege.

Who is right when it comes down to issues requiring balance?

To balance freedom of religion and the freedom to reject it entirely. To be a

servant of god or to remain godless.

To balance the freedom of speech with protections from fighting words, child

pornography, defamation of character and other obscenities.To grant U.S. citizens a right ofhabeas corpus while denying such rights to

those captured on the battle front or those suspected of being a direct threat to

United States National security interests. These issues are the subject of recent

Supreme Court decisions that we'll consider in some of the Open Forums.

Our Constitution provides for a system ofchecks and balances in Articles I-III. And it

is a truly amazing system on paper. But isn't it more of a balancing act that has

gotten a bit out of balance in light of the political stranglehold that the two-party

system, the moneyed interests, lobbyists and others have exerted on our system of

government?

Are we truly a democracy?

Is the paper Constitution merely a "paper tiger"?

Many have questioned the development in the Bush presidency of "unitary powers"--

powers conferred in the Constitution that arguably are not subject to legislative

oversight. These matters have involved executive branch exercise of wiretapping and

online invasions of privacy on the basis that the President is authorized under the

Constitution to unilaterally pursue 'protecting and preserving' our national security

without legislative branch oversight.


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Check out the following Senate hearing concerning privacy on C-Span video:

Department of Justice Oversight (07/09/2008 Richard J. Durbin, Joseph R. Biden,

Orrin Hatch, Arlen Specter, Charles E. Grassley, Jon Kyl, Patrick J. Leahy, Russell

Feingold, Dianne Feinstein, Charles E. Schumer, Herbert H. Kohl, Benjamin L. Cardin,

Sheldon Whitehouse, Michael B. Mukasey: Attorney General Mukasey testified about

Justice Department operations. Among the topics he addressed were national

security issues, privacy concerns surrounding investigation techniques...)

These are difficult issues that drive many to fierce debate. But where does the legal

system step in to balance societal needs, preservation of health and safety, etc?

As has been stated, particularly in times of war, "...the Constitution is not a suicide

pact."

Who decides what is right?

I know that interpreting and applying our supreme law of the land to the new issues

that confront the courts each day is no less a balancing act than the one engaged in

by the high-wire circus performer. And we, the citizens, visitors, holders of greencards, illegals..and the future generations are the beneficiaries or prey of the nine

jurists on the United Supreme Court. These nine people are the ultimate trapeze

artists, balancing and adjudging many things that some of them have no personal

experience or knowledge of. Are they a "star chamber" enforcing unfair laws or are

they legal scriveners merely rubber-stamping executive decisions? Although the 'new

Court' headed by Chief Justice Roberts has a conservative bent, they have made

clear in recent decisions rejecting Bush Administration positions and actions that they

are not a ruibber stamp. We'll see what rulings are issued in future.

Are the 9 Justices of the Supreme Court the last vanguard standing as a bulwark

between freedom and fear? You decide, but it's helpful to do so on an informed

basis. I believe in the viscera, our gut senses. However, a person schooled in the

law does not act or react on mere visceral feelings. Lawyers must act appropriately

based on using a well-reasoned analysis of applicable law. We must frame issues

properly and apply the law to a specific fact pattern or transaction. In other words,

we can't merely do whatever we like. Business decision makers, including

accountants, should recognize that there are remedies that may be sought that are

not realistic.

For example, the parents of RonGoldman and Nicole Simpson Brown

may have preferred another remedy

than an uncollectible civil judgment

against O.J. Simpson as regards the

wrongful death action they pursued

after the Los Angeles Districtrict

Attorney's Office fai led to convict

Simpson of double homicide.

Is a monetar remed enou h of a


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private remedy?

Although the state has the authority to

bring a criminal prosecution forward,

private parties may only sue for

monetary damages, or in some

instances, seek equitable relief. Of

course, in the wrongful death action,

the Goldman's have yet to collect on the

judgment. Now that O.J. is in a Nevada

prison for his unlawful actions in trying

to take back certain sports memorabilia

at the point of guns in a Nevada hotel

room, any potential collection is

remote.

Our Constitution is an amazing document.

But it all begins with our Constitution. And yet, it has been amended

many times, including by the first 10 amendments thereto commonly

called the Bill of Rights. I have put in bold text my own summary--the

actual text is presented in italics. These rights are:

Amendment I: The Establishment Clause, Freedom of Religion, Right of

Assembly, Freedom of the Press, Right of Redress

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or theright of the people peaceably to assemble, and to petition the Government for a

redress of grievances.

Amendment II: The Right to Bear Arms

A well regulated Militia, being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed.

Amendment III:

No Soldier shall, in time of peace be quartered in any house, without the consent of

the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV: No Unreasonable Searches and Seizures, and no arrest or

search warrants except on probable cause

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.


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Amendment V: Right to Appear before a Grand Jury on Indictment for Capital

Crimes; No Double Jeopardy; Right to Avoid Self-Incrimination; Right of Due

Process; No "takings" of property without Just Compensation

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

Amendment VI: Right to speedy trial; Right to confront witrnesses; Right to

bring own witnesses; Right to counsel

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

Amendment VII: Right to Trial By Jury

In suits at common law, where the value in controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any Court of the United States, than according to the rules

of the common law.

Amendment VIII: No Excessive Bail or Cruel and Unusual Punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

Amendment IX: No denial of rights of others

The enumeration in the Constitution, of certain rights, shall not be construed to deny

or disparage others retained by the people.

Amendment X: Delegation of Powers to Federal Government and Reservation

of Powers to States

The powers not delegated to the United States by the Constitution, nor prohibited by

it to the States, are reserved to the States respectively, or to the people.

EnumeratedPowers, Precedentand Stare Decisis

The Constituition leaves many things for others to decide. Only certain enumerated

powers are delegated to the federal government by the states. And subject to limits,

states are free to adopt their own laws. With the exception of Louisiana, U.S. state

laws are based on English common law ofprecedentandstare decisis.

'


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,

the Bill of Rights comprising the first 10 Amendments to the Constitution, the

Declaration of Independence, and information regarding our Founding Fathers.

Jefferson, Adams, Hamilton, Franklin, Washington, Mason and our other

founding Fathers

I continue to be amazed at the elegance of writing, and the brilliance of

the men who met to create a "more perfect union." And yet, brilliant men,

like Jefferson and Washington, were also flawed. They were human, notstatues. And some engaged in one of the world's great abominations--

slavery.

In the Declaration of Independence written by Jefferson, a slave owner, what was he

thinking when he wrote the words

We hold these truths to be self-evident, that all men are created equal, that

they are endowed by their Creator with certain unalienable Rights, that among

these are Life, Liberty and the pursuit of Happiness.

Did he mean only white men? Didn't he

not think others (blacks, Indians, women)

were deserving of the dignity, equality...

"Life, Liberty and the pursuit of

Happiness?" Weren't these matters self-

evident?

WHAT DO YOU THINK?

The "Bright Constellation"

At Jefferson's first inaugural address in 18012 he said:

Equal and exact justice to all men, of whatever state or persuasion, religious

or political; peace, commerce, and honest friendship with all nations,

entangling alliances with none...Freedom of rel igion; freedom of the press, and

freedom of person under the protection of the habeas corpus, and trial by

juries impartially selected. These principles form the bright constellation which

has gone before us, and guided our steps through an age of revolution and

reformation. The wisdom of our sages and the blood of our heroes have been

devoted to their attainment. They should be the creed of our political faith, the

text of civi l instruction, the touchstone by which to try the services of those we

trust; and should we wander from them in moments of error or alarm, let us

hasten to retrace our steps and to regain the road which alone leads to peace,

liberty, and safety.

(Thomas Jefferson First Inaugural Address [March 4, 1801])


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Did Jefferson mean it? I think he did, and before we tear down the

Jefferson Memorial, maybe we owe it to him to consider him in the

context of his time, his era, his world.

But 80 years later President Lincoln said it differently:

As I would not be a slave, so I would not be a master. This

expresses my idea of democracy. Whatever differs from this, to the extent of

the difference, is no democracy.(Abraham Lincoln, 1858)

Yes, the United States Constitution is the supreme law of the United States. More

than that, it is a model for all countries displaying the vision and sheer brilliance of

our Founding Fathers, their grace and true elegance in crafting words ultimately

giving rise to such fundamental freedoms of speech, religion, travel, free commerce,

equal protection, right to due process, r ight to bear arms, r ight to a jury trial, right

to be free from unreasonable searches and seizures, etc.

Can you list other fundamental rights I have not listed?

Have we forgotten the very rights that millions of Americans have died for in

order to protect and defend our Constitution and the Amendments thereto?)

Although we recognize that many of these freedoms were not, in truth, available at

the time the Constitution was written to the multitudes of disenfranchised persons

throughout our nation's history (after all, the most heinous crime of all, slavery,

remained a reality for almost another 100 years from the signing of the

Constitution), we can still applaud the beauty and decency of the basic goals

embodied by our Supreme Law of the Land. Can't we?

Our textbook only scratches the surface in Chapters 1 and 2 of a few "inalienable

rights" that we have been granted, and you may wish to read and discuss with the

rest of us the "Constitution of the United States" which is viewable as a separate

document in this learning module. Please skim the Constitution. In law school, we

spend at least a full year studying the freedoms and interplay of the Constitution

with other laws, even though almost no one in my peer group has ever, to my

knowledge, done battle in the relatively limited practice arena of Constitutional law.

But constitutional law issues often define the very basis of our society:

Is flag burning a freedom of speech right?Is the display of a Christmas manger in a public square a violation of the

"establishment" clause prohibiting the government from interfering with or

establishing a religion?

Is a Nazi parade in a primarily Jewish neighborhood a legally protected right

permitting the invalidation of local ordinances prohibiting such matters?

Is a young Cuban refugee required to be returned to a father who resides in a

totalitarian state, or should the best interests of the child be considered, or

does the child have his own right to asylum, or do such rights, if any, override

federal immigration laws?

Do we have a constitutional ri ht to rivac on the Internet?


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Does the executive branch have the freedom to wiretap, to incarcerate, to

detain and yes, to torture without approval or knowledge of Congress?

The questions arrive faster than the answers, and the law usually lags behind.

It is important to remember that individual states also have state

constitutions and their own laws. While states may provide additional

rights and protections for citizens through state laws, the states

cannot provide less protection or rights. Just as the United StatesConstitution is the supreme law of all of the United States, the state

constitutions are the supreme laws of the land within the individual

states, providing they do not conflict with otherwise valid federal law. All valid

powers not given to the federal government as so-called enumerated powers by the

Constitution are reserved to the states. To understand the system of laws in the

United States it is important to understand both the Supremacy Clause and the

Preemption Doctrine as explained in the text.

One example of a state being able to provide more protection (but not less) lies in

the right to privacyinterpreted by the courts as to both the United States

Constitution and the California State Constitution. The State of California mustrecognize the right to privacy at least to the extent determined by the United States

Supreme Court decisions in its interpretations of the Constitution. However, the

California Supreme Court has often expanded these rights by its interpretation of the

California State Constitution. This is also true in the area of the Equal Protection

Clause, which guaranties that all citizens will be equally protected under the law.

The Commerce Clause of the United States Constitution allows the

federal government to foster the development of a national market

and free trade among the states. These broad regulatory powers

have been important in developing a national and international

market. Otherwise the laws of some individual states might

promote an ideal of protecting their business from competition by

business located in other states. While such laws would benefit an individual state's

own private businesses, there would likely be a negative impact on interstate

commerce. In such cases, the United States Supreme Court is likely to find that the

practice is unconstitutional.

At times, the United States Supreme Court has interpreted the

Commerce Clause to require not only to the promotion of interstate

or international business, but also the promotion of social justice

and shaping of moral standards. Interestingly enough, early United

States Supreme Court decisions making segregation in restaurants

and lodging unconstitutional were based on the Commerce Clause

and the negative impact such segregation had on interstate commerce. These cases

were the precursors to later cases and laws based on the Equal Protection Clause.

What's the point?

An obvious reason that this portion of the course is titled "perspectives" is

intentional--these discussions are intended to provoke (not offend) each of you to

critically analyze our laws and the statements made in the text. As an experienced


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business lawyer, I have learned that sometimes what the law "says" has little to do

with solving real life problems. The law may, in fact, provide no solution at all to

many disenfranchised persons. How many people who are wronged continue to

suffer because they lack the funds necessary to "buy justice"? Lawyers generally do

not work for free, and the costs of obtaining justice are a significant (but often

ignored) failure (injustice) of our justice system.

As each of us continually grows and evolves as individuals, the law also evolves, and

each one of us brings our own perspective to how the law applies (or should apply).

As a result, these lectures often reflect my perspectives gained over many years of

practice, but you should feel free to appropriately dispute these perspectives and

those of others stated in the conference room. Without meaningful dialogue, there is

no evolution of thought, no learning, only stagnation. Cybercourse distance learning

is a new and terrific educational tool, but you must interact--the computer is not

your television set, so use the tools you have to expand your way of thinking and

gain knowledge. Your opinions, your perspectives, are important.

So please feel free to exercise your First Amendment Right of Freedom of Speech to

vigorously (but appropriately) express yourself in our conference room "Let's Talk"discussions!

What is the "Law"?

Law is a 'body of rules of action or conduct prescribed by

controlling authority, and having binding legal force.' That which

must be obeyed and followed by citizens subject to sanctions or

legal consequences is a "law".

This definition of the law states little or nothing about ethics, culpability or fairness.

In fact, there are many regulatory laws that have nothing to do with fairness but aredesigned to allow individuals and businesses to go about their activities in an orderly

fashion or that require such persons to maintain standards that they might not

otherwise adhere to. There are also many "strict liability" laws in which a person or

business could be sanctioned with a fine or imprisoned even if the "wrongdoer"

meant no wrong or had no knowledge of the law. Take for example, the

manufacturer of a so-called "ultra hazardous" substance, like gunpowder. If a

gunpowder factory explodes and injures others, strict liability laws may hold the

manufacturing company liable even if the manufacturer was not negligent in its

processing or handling of the explosives. In such cases, the issue of culpability or

fairness is not necessarily even brought before the court as a core issue. If acompany wants to engage in the business of making gunpowder, then it is

responsible for any harm that directly arises from its manufacturing facility. (We will

discuss theories of strict liability later in the course. What is relevant here is that a

societal need to ensure that the public is safe is elevated in importance over the

lesser need of a gunpowder manufacturer to operate its business under the same

standards applicable to other companies generally.)

The text also describes different functions of law, many of which deal with the

underlying ethics, customs, morals or theories of social responsibility of a particular

society. Some do not. The eight listed functions or purposes are: keeping the peace,


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shaping moral standards, promoting social justice, maintaining the status quo,

facilitating orderly change, facilitating planning, providing a basis for compromise,

and maximizing individual freedom. I suspect that each of you may also be able to

add to the list of these functions by posing an additional function or two of your own;

however, it is important to remember that different laws may have different

purposes or a combinations of purposes, some of which may conflict with other

functions, or other laws, or ethics, morals or customs of our society and other

societies.

The order of importance one places on these different purposes will often control

where people might choose to stand on a particular issue. For example, on many

issues or sets of facts involving the criminal laws applicable to search and seizure, it

is not uncommon for one person to believe that keeping the peace is the more

important factor while another believes that maximizing individual freedom is more

important, even if the result is to permit a clearly guilty crime doer to be set free in

order to uphold the greater good of preserving the sanctity of individual rights.

Today, we are discussing the possible repeal of the Supreme Court holding in the

landmark Miranda case, wherein those placed under criminal arrest must be apprised

of their rights to remain silent without any negative inference to be legally drawn,

and the right to be provided with counsel (without charge for indigent defendants).

Do you believe that a fai lure to give a proper Miranda warning should defeat an

otherwise valid confession? See

Miranda v. Arizona, 384 U.S. 436, 86 S, Ct. 1602 (1966).

When an individual is taken into custody or otherwise deprived of his freedom by the

authorities and subjected to questioning...he must be warned prior to any questioning

that he has the right to remain silent, that anything he says can be used against him

in a court of law, that he has the right to the presence of an attorney, and that if hecannot afford an attorney one will be appointed for him prior to any questioning if he

so desires.

U.S. Chief Justice Earl Warren in Miranda v. Arizona, 384 U.S. 436 (1965)

Another example is whether social justice should dictate rules about truth in

advertising or whether freedom of speech should control. Concepts of social justice

would tend to allow stricter regulations protecting the consumer (like the Federal

"lemon laws" protecting purchasers of new cars), while concepts of maximizing

personal freedom would lean more towards a "buyer beware" attitude(called "caveat

emptor" by lawyers) allowing greater freedom of speech. This issue has, of course,

also been raised in terms of "indecency laws" and "obscene speech".

Identifying the Applicable Standards.

When discussing the topic of law, it may be useful for you to, first, identify which

societal needs and purposes apply to certain circumstances and, second, determine

which are most important, in your view. By listing out all of the societal needs, you

may better understand the challenges faced day to day by judges, legislators,

lawyers and the rest of us. What societal need should take precedence in a given

situation? This may help you to understand your reasons and to better explain your

position. It also may help you to better understand another's viewpoint, particularly


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"We are not fighting for integration, norare we fighting for separation. We are

fighting for recognition as human beings.

We are fighting for ...human rights."

Malcolm X [El-Hajj Malik El-Shabazz

(1964 Speech, Black Revolution, New

York City)

the views of the underclass or the minority.

I had felt for a long time, that if I was ever to to get up so a white person could sit,

that I would refuse to do so.

(Rosa Parks, recalling her refusal to give up a seat on a Montgomery, Alabama bus

on 12/1/1955)

I know what every colored woman in this

country is doing....Dying.. Just like me.

Toni Morrison Sula (1973)

And, on a lighter note: "It's not easy

bein' green."

From the song "Green" sung by Kermit the

Frog

What a long, strange trip it's been.

Truckin' byJerry Garcia, The Grateful Dead)

The Supreme Law of the Land--Critical Legal Studies--Focus

on Specific Theories of Law

I can sometimes deal with men as equals and therefore can

afford to like them...

Gloria Steinem, Speech at Yale University, September, 1981

Feminist legal theory is a body of scholarship that urges judges

and legislators to take into account female perspectives when

they interpret and apply the law. Like many specific theories of

law, I'm not sure where such a theory would logically lead in all instances. Feminist

legal theory is generally categorized as one of the schools of thought within the field

of critical legal studies. But is it practical to expect that judges, mostly male, when

confronted with specific issues in trial and laws governing them, can take feminist or

other legal theories espousing particular viewpoints into account? In practice, does

this mean that a judge should be biased in favor of a particular legal theory.

(Certainly, in the history of our country, the laws were very biased in favor of male

property ownership, male voting, etc.) Of course, the promotion of any bias as a

basis for a legal theory would seem to be wrong, but is it wrong to demand that

those in positions of power or in the majority be sensitive to issues confronting those

in the underclass, those historically discriminated against or disenfranchised? Is

affirmative action a reflection of a legally required bias or an attempt at rectifying

past wrongs? Notwithstanding, obviously everyone possesses biases, whether

knowingly or unknowingly, and there is no question that legal, enforceable biases

have caused women, children, people of color and other disenfranchised persons to

suffer terrible injustices under various legal systems, including our own.

Our Rights versus The rights of others--Does the preservation of our

fundamental freedoms or pursuit of our national interests require unlawful,

immoral or unethical conduct overseas?

The intersection of law and olitics or securit . Americans have man ri hts but


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it could certainly be asserted that we assist in restraining the rights of others.

Currently, we continue to use a Puerto Rican island as a U.S. Military bomb site--

what right should citizens of another country or protectorate have vis a vis our laws

or actions?

Our troops are scattered all over the planet. Our navy keeps the sea-lanes clear in

the Persian Gulf. We are in Korea, Germany, Iraq, Qatar, Afghanistan...and so many

more places. Are we engaged in lawful behavior in these countries? During the many

years of our military actions in Iraq, U.S. personnel were not subject to Iraqi laws

(although the recently enacted Status of Forces Agreement does render U.S.

personnel subject to Iraqi law, (SOFA) is "in the works." Even if lawful, is our

conduct consistent with your ethical, moral or religious beliefs? Although Americans

possess many fundamental rights and freedoms, through our government and

corporate actions across the globe one may argue that we assist in the suppression

of the freedoms of others.

For example, consider the assistance that Google and Yahoo, two U.S. companies,

have provided the Chinese government in limiting access of the Chinese to various

sources on the internet. Is this moral or ethical behavior of these companies? I

express no views.

But see the following video of a recent Congressional hearing: Internet Privacy in

China (11/06/2007)

People: Robert Wexler, Mike Pence, Christopher H. Smith, Tom Lantos, Dana

Rohrabacher, Brad Sherman, Steve Chabot, Will iam D. Delahunt, Michael Callahan,

Jerry Yang Yahoo officials testified about their company's role in the transfer of

private information and disclosure of identity to Chinese authorities that resulted in

the trial and imprisonment of journalist Shi Tao. Yahoo...)

Right of Privacy?

I might have been a goldfish in a glass bowl for all the privacy I got. (Saki [Hector

Hugh Munro] "The Innocence of Reginald."

I want to be alone.

(Greta Garbo)

The calls just keep coming. "They" just don't leave us alone. Heck,

freedom of speech includes freedom to advertise,m freedom to

annoy and freedom to solicit. Doesn't it?

We live in an era where we must register our phone numbers with

the Federal Trade Commission on a Do Not Call list in order to

escape unwanted solicitations at home or at work. And, you can't

escape the political solicitations. Can you? And you get called by folks you did

business with in past that you can't remember anymore. At least I can't. And so it

goes. I have 7 different phone lines and they never stop ringing. And now, I get

hundreds of unwanted e-mails. Don't even get me started on the "pop-ups." And, to

my knowledge, the Do Not Callrules do not protect us from unwanted text

messages.


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I had to turn off my fax machine in order to avoid getting unsolicited faxes from

people who thought it was just fine to use my ink cartridges to solicit me.

Unbelievable! And, now I get unwanted text messages on my phone.

In the early stages of the post 9-11 fears the administration was empowered to

check on the library books we took out from the public library. As if I planned to go

to the library to build a nuclear bomb? Please! As if! Well, you decide what is right.

But where do we, as a society draw the line on our right of privacy. Is it just a right

from unlawful governmental intrusion or can we also get rid of and protect ourselves

from unwanted solicitations and snoops. And worse, who is watching when we move

from site to site on the internet.

Nowadays, employees have no right of privacy while using company computers. And,

forensics have come a long way in tracking the location of folks accused of crimes.

From tracking the use of FastTrack, ATM, and credit and global positioning of cars

and phones, etc. "they" know where we are even if we don't. And telephone

companies provided thousands of pages of phone data to intelligence sources in our

executive branch in an unprecedented way.

And, isn't the internet great. With a simple Google query, we can find out every bit

of dirt on everyone else. So much for privacy.

Who decides, the Courts or the Legislature?

We often expect our courts to resolve issues regarding our fundamental freedoms,

but a court merely considers a particular case before it. Perhaps the appropriate

venue for assuring fairness to those traditionally treated unfairly is to utilize the

legislative process which enacts laws partly based on societal views and needs,

rather the court system which is charged with an interpretative job of reviewing the

law and its application to a particular set of facts presented by the litigants. Witness

the Civil Rights Act and other statutes passed, such as the Clean Air Act, to ensure

preservation of fundamental rights not clearly enunciated by our founding laws.

Finally, how can a particular theory of law be administered in the judicial system

without the legislation to authorize it and the executive power to enforce it? Theories

are important, but I believe they should give rise to realistic outcomes and

enforcement to be viable. Although the law is often "behind the curve" of society in

respect of pursuing change and so-called fairness to all, sometimes law leads the

way where society in unwilling to change. Just think about the significance of the

Brown v. Board of Education decision. The 9 Justices on the U.S. Supreme Courtclearly knew, that by eliminating the "separate but equal" doctrine, among other

things, forced-busing would be required, shuttling children of different races into

each other's neighborhood school. Who would enforce the forced-busing

requirementsa local sheriff in disagreement with the Brown holding? The Supreme

Court Justices surely recognized the violence and racial hatred that would ensue

from their holding in Brown, and that they, at the Supreme Court, had no police

power vested in the court to enforce their decision. Nor was there the will in many

communities to change. The Justices must have known that the Brown decision would

cause terrific harm, even the death of many African Americans and others as a

result of racial backlash. But the court nonetheless had the determination and


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courage to push the country forward, not only because it was the right thing to do,

but also because the Constitution demanded nothing less. It took a while, but there is

no such thing as "separate but equal" in our country today.

To separate [black children] from others of similar age and qualifications solely

because of their race generates a feeling of inferiority as to their status in the

community that may affect their hearts and minds in a way unlikely ever to be

undone...We conclude that in the field of public education the doctrine of "separate

but equal" has no place. Separate educational facilities are inherently unequal.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 347

"Biggest damn fool mistake I ever made."

President Dwight Eisenhower's later comment on his "mistake"

made in his decision to appoint Earl Warren as Chief Justice of

the U.S. Supreme Court

So, where do we go from here? In sum, from my perspective,

the law is not a subject that should be viewed within the

context of any particular theory. Our laws must continue to

evolve to serve society's highest altruistic goals and principles.

Otherwise, we may find ourselves trapped in the mire of mere dogma. Finally, while

law may be studied in the law books and discussed in law school classes, in my

years of experience, the actual practice of law is part coffee breaks, strategizing,

role playing, negotiation, document drafting, travel, trials, sleepless nights, anger,

elation, intellectual challenge and rewarding, but hard work. Real people do battle in

the courtrooms of our country, and vast sums of money and energy are consumed.

As a business lawyer, I have spent most of my career working with trial lawyers,

state governments, accountants and other professionals, and I believe their

experience is similar. My point here is that the law breathes, it changes with society,

it has a human face, it sometimes leads the way and sometimes hopelessly lags

behinds our dreams of a better world. Today we have the Internet, and now my

clients worry about computer laws, telecommunications, genome studies, rights of

Internet privacy, securities offerings conducted via e-mail, etc. As the world

changes, so does the law and I suggest to each of you that no single theory can work

over the long term unless it takes into account all constituencies in a fair way.

Defining "fair" is what it's all about. What do you think? Are there new and

fundamental rights that we should have? Or are we losing our rights more and more

each day by society's continuing data collection efforts and limits on our continuing

freedoms?

Returning to our key concepts consider your views of our system of

government and its constitutional separation of powers? Do you have a better

idea

As to feminist theories suggesting that the law be viewed from the female

perspective, are there or should there be other types of legal theory based on

other historically disadvantaged groups or ethnically, racially or religiously

distinct groups? Consider the year 2000 census which was conducted by the

federal overnment. To m knowled e this census included matters re uired


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by law to be answered regarding whether Americans fit within a variety of

very specific categories, including a variety of specific ethnic or racial

categories. At the time of the census, I found it interesting and perhaps,

somewhat unclear and troubling that only certain ethnic groups were broken up

into specific categories, to the exclusion of others. Should the government

need to receive this highly personal information and to what use wil l the

information be put? Is it paranoid for us to believe that "big brother" may be

watching us. The FBI has yet to uncover the details of its relatively new"Carnivore" software surveillance program that the ACLU protested as an

invasion of privacy...

In the aftermath of the Wall Trade Center disaster and subsequent terrorist

acts, is it appropriate for the United States law enforcement agencies to use

ethnic and racial profiling?

What would be the impact of applying a theory based upon race, ethnicity or

religion in the courts as a rule of law? For example, should an American court

adjudge innocent a Christian Scientist who withholds medical care from a child,

thereby potentially causing him/her serious illness, based on the notion that a

Christian Scientist does not generally seek medical care in the traditionalsense, or should the parent be judged on the standards applicable to other

parents?

In the not so long ago case arising during the Clinton Administration concerning

Elian Gonzales, a case involving a Cuban child's flight to the United States from

Cuba (which occurred under the Clinton Administration), which issues are

paramount-- the child's right to seek freedom, the father's right to be reunited

with his child, strict enforcement of the Federal Immigration Laws, state

interests in protecting juveniles based upon state notions of the "best interests"

of the child, rights of "asylum" from a totalitarian state, or community

demands in Miami for "justice"? I have no answers here, except to suggest thatsociety faces a fairly slippery slope if it is forced to consider each person

separately based upon his or her own separate views, beliefs or

circumstances. Ultimately, our system of justice results in laws which seek to

establish a compromise as to the exercise of individual freedoms such as the

First Amendment rights of free speech and religious practice without

governmental interference. Although ironic, sometimes compromise of theories

and values' systems is the best result the law can provide. Compromise is

certainly arguably better than the end of spectrum alternatives of

totalitarianism or anarchy. What do you think?

In Search of More Perfect Unions: John McCain, Barack Obama, Hillary Clinton

and the future

And now, as we have recently watched our former First Lady, the junior senator from

New York, Hillary Clinton, reach the unprecedented penultimate stage in the

Democratic Party of becoming runner-up as a presidential candidate, our new

President is a relatively young man of mixed race. Did our Founding Fathers imagine

such a possibility?

It's true there is no slaver in America but I su est that man remain enslaved in


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the world. And others in this country are metaphorically "enslaved" by economic

circumstances and a lack of meaningful access to the power and freedoms that our

society offers its more favored sons and daughters. As Ralph Ellison wrote in his

scathing and brilliant book:

I am an invisible man...I am a man of substance, of flesh and bone, fiber and

liquids--and I might even be said to possess a mind. I am invisible,

understand, simply because people refuse to see me.Ralph Ellison (The Invisible Man (1952), prologue)

Do people see you? Does the Constitution provide a right to be seen, to be tangible,

to be treated humanely above and beyond what a statute or court decision might

suggest? I don't have the answers to these questions that cross the boundaries of law

and become intertwined with our own rel igious, moral ethical and social standards.

As a lawyer and officer of the court I must consider the laws that I must counsel my

clients to adhere to. But as an individual I am much more consumed by finding the

recipe for 'a more perfect union.'

Ethics, Morality and Law: A Delicate Balance?

Differing standards in our society.

I know only that what is moral is what you feel good after and

what is immoral is what you feel bad after."

Ernest Hemingway, Death in the Afternoon [1932], ch 1.)

Chapters 1 & 2 present many difficult, but fundamental questions

involving ethics, morality, social responsibility and, to some

degree, certain instances where these core matters intersect withthe law. Presumably, it would be hard to argue with the notion that

"proper" standards of ethics and morals would include an

endorsement that persons be honest with one another in their

business dealings. Yes, it is true that in many instances the law also requires

honesty. For example, federal securities' laws require that prospectuses endorsing

securities offered for sale must be truthful. Failures to be truthful can lead to civil

and criminal penalties. On the other hand, there is often no legal requirement that

parties entering into contracts always be truthful to one another. For example, if a

parcel of real estate is sold to an individual buyer who knows that the land to-be-

purchased will dramatical ly increase in value shortly (because he/she, the buyer hasjust read a Wall Street Journal Article disclosing significant commercial interest in

the locale), the buyer is under no duty to tell the seller about it. It is up to the seller

to figure out what he/she believes the property to be worth.

Conflicts of Legal, Ethical and Moral Principles

Sometimes a person may violate what may be argued to constitute an ethical or

moral standard, but nonetheless be perfectly within the law as to their behavior.

And, sometimes a moral standard may also be upheld by law, or the reverse may

true. Witness the great debate over rights of abortion set forth in Roe v. Wade.

'


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c r g s ou preva , a woman s r g o c oose or e r g s o an un orn c

to be born? I suspect that each of you may have strong emotions regarding this

issue. Imagine the struggle faced by members of the Supreme Court in endeavoring

to decide this question? Currently, the right to choose is the law of our land, but this

may change during this presidency now that George Bush, Jr. is President and the

makeup of the Supreme Court is changing. We certainly now have a solid majority of

"conservative" Justices on the Supreme Court, a marked contrast to the makeup of

the court when the holding in Roe v. Wade was issued. Consequently, laws change to

reflect the positions of the majority

Further, if it is difficult to determine the proper points of intersection, if any, of

ethics, morality and the law, it is near impossible to come to any societal conclusion

when each of these matters relating to one's ethics, morality and views of social

responsibility clearly involve matters that are often highly personal, subjective and

perhaps subject to significant racial, cultural or ethnic variations.

Business Responsibilities

What is a business supposed to do in conducting its affairs? Is it the sole obligation

of businesses to merely maximize profits for the benefit of their owners? If yousubscribe to this argument, then should the laws be written to support this sole goal

of profit maximization? Or, is there something more that businesses should be

required to do in and for our society? We clearly recognize that there are many

times that the self-interested actions of businesses and their owners may cause

harm to others. For example, a business may certainly increase its profits by causing

its competitor's manufacturing plant to be destroyed by arson. Surely we can agree

that it would be ethically and morally wrong to commit such a heinous act. If so, is it

the function of the law to require that certain behavior occur (or not occur), or is a

mere ethical or moral imperative alone sufficient to deal with a perceived societal

harm? In the case of arson, severe criminal penalties apply to the arsonist. In thisregard, the law appears to support ethical and moral imperatives. But, if we change

the facts, so that residents of a neighborhood burn down a crack house, is there now

a divergence of the law with what others might argue involve moral or ethical

imperatives. The burning of the crack house is still arson, despite the good intentions

of the fire starters. I would suggest to all of you that the function of the law is often

to support our society's views as to moral or ethical standards while, at the same

time, resolve ethical and moral divergent "dilemmas" by simply requiring that a

particular behavior occur or not occur.

Do We Really Need All These Laws?

A threshold question often asked is whether we need a law

at all to deal with certain situations? Many cultures rely upon

local customs and handed-down standards of conduct. For

example, how many of us choose not to throw garbage in

the streets because it is against the law to litter? I choose

not to litter because I believe it is wrong. Simply wrong! How many of you believe

that graffiti spraying is a crime? There are many who would argue that graffiti is an

art form, a legally protected First Amendment right of expression. I doubt the owner

of the apartment house covered with orange and green "gang" graffiti shares that


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view. He/she may view it as vandalism and property destruction, needlessly

devaluing his/her property and often resulting in a deterioration of the neighborhood

and a perception that lawlessness is in control.

Consequently, where members of our society are in disagreement, a law can be

useful in resolving the matter with some degree of certainty. We may disagree as to

moral or ethical values, but a law clearly written and enforced is final and

presumably reflective of the majority view (at least until the law is changed).

Perhaps those of you who believe that either littering or graffiti should be a crimerecognize the cost to society to clean up the mess. As to costs, New York City alone

spends tens of millions of dollars annually to clean up litter and graffiti. But if there

is to be a law forbidding littering and graffiti, what is the appropriate legal remedy

for these "crimes"? Should an offender be required to personally clean up the mess,

go to jail, pay a fine, attend a class on littering, etc.? A number of years ago there

was a "caning" incident in Singapore. A American was whipped with a cane for

littering. For those who believe littering should not be criminal, what is your

justification for invading the property of another or for l ittering?

Clearly, we expect that an oil corporation owned by public investors should maximize

its profitability for the benefit of its shareholders. Chapter 1 starts the exploration of

some of the fundamental concepts of ethics, moral theories and theories of social

responsibility which underpin many of the concepts of "justice" resulting in modern

United States common and statutory laws. For instance, is it "right" to separate a

child from a sole surviving parent, when a court determines it is in the "best

interests of the child?"

Let's Get Realistic

As you read through Chapters 1 & 2, and the specific types of ethical and social

responsibility theories, consider how you apply these theories to different real-lifefact patterns. I would suggest to you that, although the theories are interesting, they

often provide little aid when you are required to make a tough decision. For instance,

imagine you are a senior officer in the sales group of a publicly traded corporation

listed on the New York Stock Exchange. Recently, your company has been having

trouble meeting its estimated revenue targets, resulting in lower share prices and

employee layoffs. Further, it appears that the company will suffer a much greater

than anticipated loss this quarter. The quarter will end in two days and it doesn't look

too positive on the earnings front. However, the president of your organization has

met with you privately and requested that you "juice up" this quarter's income by e-

mailing the company accounting department the "exciting news" that the new clientyou are pursuing has just agreed to make a significant purchase from the company.

You are fairly sure that you will be able to sell the product to the new client, but no

agreements have been reached. What do you do?

The president understands that the sale may be illusory, but suggests that the sale

can be "reversed" right after the quarter (in the next quarter) if it needs to be,

because there's "no harm, no foul...". You believe that the president is a good person

who realizes that another bad quarter will result in significant layoffs. What's the

right answer?


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,

here, under the law, is clear--the potential sales cannot be included in this quarter's

income unless a sale is definitively made. Legally, the sales executive's fiduciary

duty is to the shareholders to, on the one hand, work hard to maximize profits, but

on the other hand, do so in good faith and lawfully. Incorrectly stating earnings, even

if well-intentioned is illegal. Although you may or may not agree with this result, it is

the law which our society adheres to.

Sometimes, following the correct economic path for a company may put it into hotwater legally. Consider what happened to Microsoft in its litigation with the

Department of Justice. In any event, as you read through the Case Problems and

Ethics Issues (collectively, the "Case Studies") in Chapters 1 & 2 and later chapters

in the textbook, consider the varied responses that companies and others take in

response to difficult legal, ethical, moral or economic issues faced by them. For

example, when General Motors closes manufacturing plants and lays off thousands

of workers, does it owe a duty to the community?

Continental Can Company tried to break a collective bargaining agreement

secretly. Is this ethical?

Years ago, Sears engaged in a scheme to "bait and rip off" customers on auto

repairs. Boeing and others engaged in making foreign bribes. Exxon recklessly

caused the greatest oil spill in history, single-handedly destroying the fishing

industry in formerly pristine Prince William Sound and was faced with how to deal

with the economic fallout from it. These highlighted cases are but a few of

thousands. What strikes me as almost terrifying is that they involve some of the

largest, most respected companies in the world, the same companies that have been

significantly responsible for the economic well-being of the United States.

In any event, in the course of posting your assigned case studies or reviewing thoseposted by your colleagues, let us know what you think in the Ch. 1 & 2 Let's Talk

room about the ethical, legal or social responsibility of businesses and their

employees and directors.

Assessing Legal Responsibilities

Finally, what about the ethical or legal responsibilities of those who

are either harmed by the actions of businesses or those who are in

a position to mitigate the harm? Does a victim bear some

responsibility? Recall the true story embodied by the book/movie

"A Civil Action." Did other persons, including some of those harmed bear

responsibility for the toxic spill off? For example, why didn't the local citizenry pro

actively review its local businesses' use of the land, etc.? Well, I think that it is a

fairly harsh and unrealistic expectation to assume that citizens will be in a position to

understand complex toxic spill issues when they weren't even made aware of it

and/or they are struggling to continue dealing with their own families and problems.

And what should justice demand as the result in "A Civil Action"? Merely an ultimate

money award? Merely a cleanup? It seems the legal system's potential remedies are

limited? Do you think that company directors and senior officers should go to jail,

based upon the notion that they are ultimately responsible for corporate actions?


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company's profits through substantial compensation arrangements.

Whistleblowers?

What about "whistleblowers" like the one in the fact-based story,

"The Insider"? After watching this man go through all the travails he

went through, is it worth it to stand up and be counted as a truth

teller? Isn't a person's primary duty to his/her own family? These

ethical/moral dilemmas do not translate very well to many of the

laws, remedies and legal results that we face in real-life situations.

Let's discuss it some more in the Let's Talk conference rooms and Open Forums. Let

us know what you think our society's laws should require. If you are from another

country or are familiar with another country's laws, how does that other country deal

with similar issues?

The Slide Show Presentations

Slide over, let me take a look!

Hey, You Want To See the Cool Slides? The slide shows

throughout the course summarize key learning concepts.

You do not need to have Power Point on your computer to view the

online slide shows for Chapter 1 and 2 materials (or any other

slide shows on this website).

Check them out!

On The Web:

Check out some of the terrific useful and informative governmental and other

Internet sites dealing with a variety of fundamental or constitutional legal issues.

(Please note: If you discover any "broken links", please let me know in the Office or

the Let's Talk room so we can fix them or remove them.) Some of them include

The White House

United States House of Representatives

United States Senate

The United States Supreme Court

Critical Thinking Community Resource Center

Center For Democracy and Technology


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American Civil Liberties Union

The New York Times

Law News

Our shameful history of slavery

The Federalist Papers

The Articles of Confederation

Current Supreme Court Cases

Words That Changed Our World:

Click here to review the history and documents that changed our world in setting

forth the initial and inalienable freedoms of individuals.

From the British Magna Carta to the Bill of Rights, from civil rights to gay marriage,

it has taken a long time for us to procure the freedoms we enjoy and take for

granted today.

The Magna Carta

U.S. Library of Congress

This website is "chock full" of terrific materials regarding our nation's current

legislation and documentary history. The site includes direct links to:

The U.S. Constitution,Bill of Rights,

Declaration of Independence,

Federalist Papers,

Thomas Jefferson Papers,

Continental Congress materials, and

"wealth" of other historical documents.

Stop and read some of our nation's landmark United States Supreme Court cases

dealing with our many constitutionally guaranteed freedoms:

Brown v. Board of Education 347 U.S. 483, 74 S, Ct. 686, 98 L.Ed. 873 (1954)

Landmark case repealing Plessy v. Ferguson "Separate But Equal" (below:

"To separate [black children] from others of similar age and qualifications solely

because of their race generates a feeling of inferiority as to their status in the

community that may affect their hearts and minds in a way unlikely ever to be

undone...We conclude that in the field of public education the doctrine of "separate

but equal" has no place. Separate educational facilities are inherently unequal."Chief

Justice Earl Warren (1891-1974)


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. . .

April 11-14, 1955. Opinion and judgments announced May 31, 1955.

("Separate But Equal" Doctrine overruled by Brown New York Times v.

Sullivan(Freedom of the Press)

Roe v. Wade(Does a woman have a Constitutional Right To Choose To

terminate a pregnancy?)

Printz, Sheriff/Coroner, Ravalli County, Montana v. United States(The "Brady

Law" versus the Right to Bear Arms under the Second Amendment)

Furman v. Georgia, 408 U.S. 238 (1972)(Is the Death Penalty "Cruel and

Unusual" Punishment under the Eighth Amendment?)

Clinton v. Jones No. 95-1853.

(Separation of Powers: Is a serving President, for

separation of powers reasons, entitled to absolute

immunity from civil litigation arising out of events

which transpired prior to his taking office?)

United States v. Nixon, 418 U.S. 683 (1974), 418 U.S.

683(Separation of Powers: Is the President's right to safeguard certaininformation, using his "executive privilege" confidentiality power,

entirely immune from judicial review?)

Korematsu v. United States, 323 U.S. 214 (1944), 323 U.S. 214 (War

Powers Act: Did the President and Congress go beyond their war powers by

implementing exclusion and restricting the rights of Americans of Japanese

descent?)

The Federal Court System

In 1803, Chief Justice John Marshall, writing in the landmark case of Marbury v.

Madison, declared the Supreme Court to be the supreme arbitrator of the U.S.

Constitution, the final authority on what the document meant. Since that time, this

weighty position of the United States Supreme Court has not been disputed, not even

by Democratic candidate Al Gore in his lost bid against George W. Bush for the

Presidency of the United States.

How did it all begin? Article III, Section 1, of the Constitution vested the Judicial

Power of the United States in "one Supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish." That's all. It was up to

Congress to decide on a system of federal courts that would allow cases to make

their way to the Supreme Court. They did this in the Judiciary Act of 1789, which

established a set of lower courts (United States District Courts), where trials would

be held, and a set of intermediate courts (United States Courts of Appeals), which

hears appeals on errors of law from the trial courts.

Currently, the country is divided into 96 districts. States like Connecticut, with small

populations, have one district court. In contrast, Texas, with its large population, has

four. The country is also divided into eleven geographical "circuits," establishing

jurisdiction for the Courts of Appeal. For example, the Court of Appeals for the 8th

Circuit hear a eals from all district courts in the states of Arkansas Missouri Iowa


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Minnesota, North Dakota, South Dakota, and Nebraska. A 12th circuit Court of

Appeals hears only cases originating in the district court of Washington, D. C. This

court is extremely powerful, in that a number of suits in this district involve federal

statutes.

Courts hear cases based on jurisdiction. Federal courts have jurisdiction over cases

involving the Constitution and federal questions. These include cases interpreting the

Constitution and federal laws and treaties, cases affecting ambassadors and similar

foreign officials, disputes between states, admiralty and maritime cases, and

controversies to which the United States is a party. In disputes between citizens of

different states, when the parties seek monetary damages, federal courts hear only

cases that involve claims of $75,000 or more. However, the parties are given the

option of filing in federal or state court. Federal courts also hear cases dealing with

Treason against the United States.

As set out in the Constitution, federal "Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behavior." What does this mean? Federal

judges are nominated by the President of the United States and confirmed by the

Senate. Generally, the senator of the state in which the nominee lives has the powerto "block" the nomination, if, in the Senator's opinion, the nominee is not qualified.

DIGGING DEEPER

The federal court system is also made up of Courts of Special Jurisdiction. These

include U.S. Tax Court, Bankruptcy Court, United States Court of International Trade,

U.S. Patent & Trademark Office, U.S. Court of Veteran Appeals, U.S. Court of

Military Appeals, and the United States Claims Court. Appeals from these courts are

sent to the United States Court of Appeals for the Federal Circuit, a 13th circuit

court. For more information on these courts go to the FindLaw Web site or theFirstGov Web site.

- John McCormack

Respectfully submitted,

Jeffrey H. Karlin, J.D., LLM, CPA (inactive)

Distinguished Lecturer

This lecture was written on 8/28/08 and updated for Summer

2011.-jhk

Perspectives:

A view or vista.

A mental view or outlook:

The relationship of aspects of a subject to each other and to a whole.

Subjective evaluation of relative significance; a point of view.

The ability to perceive things in their actual interrelations or comparative


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.

From American Heritage Dictionary.

Copyrighted Jeffrey H. Karlin 2004-2011. Subject to the qualifications stated in the

next paragraph, these Perspectives lectures represent the author's copyrighted work.

In order to offer the author's experience and outlook as a law professor and

practicing attorney, the Perspectives lectures may reflect the author's unique, and

occasionally "offbeat" views that are not necessarily supported or endorsed by the

University. Consequently, the lectures are not, nor are they intended to be "the last

word" on the law. Some statements in the lectures are made to draw attention to an

issue in a jocular or exaggerated way that, in a sense, corresponds to the approach

sometimes used by composers in a classical music piece, where a loud gong is used

to arouse the napping music aficionado. Accordingly, these lectures may overstate a

point that might otherwise be more quietly made in person. As there are many

"voices" to be heard in the law, these lectures are, in essence, reflective of just one

voice. Students should strive to use our text, the website materials and other

sources to listen and learn from other voices from many "rooms." It is in that spirit

that these perspectives are offered.

Certain images or other data may represent the copyrighted materials of others,

including the use of Professor Cheeseman's Chapter Tables of Contents in order that

our online content be appropriately integrated with textbook readings. Hence, stated

Learning Objectives and other correlative Key listings are copyrighted materials of

Pearson Education, Inc. Professor Cheeseman or other affil iated persons, and

Professor Karlin is using these materials pursuant to an express or implied license to

use such materials solely for educational purposes in conjunction with the fair use of

our adopted text. Again, these materials are to be used for educational purposes

only. Any copying, distribution, quotation, dissemination or other use of these

materials is strictly forbidden absent the express written consent of Jeffrey H. Karlinand/or those persons in possession of valid copyrights or other intellectual property

rights. Access to this website is limited to currently matriculating Golden Gate

University students of this course. No legal advice is given by Professor Karlin or

Golden Gate University by virtue of any statements made in this memorandum.

Since each legal problem is unique in its facts and textual characteristics, each legal

matter must be reviewed carefully by appropriate professionals engaged to do so.

Professor Karlin does not accept or undertake any engagement by these lectures

Copyright and other Intellectual Property Protections and Reservations of Rights:

Videos on this online, password-protected website link our online materials to othervoices from other rooms and are merely an endeavor to furher the University's

nonprofit mission and to provide students with easy access to interesting materials

through links. These other materials are not the property of the University and are

merely linked herein FOR EDUCATIONAL USE only. No distribution, dissemination,

quotation or other use is appropriate except pursuant to permission from the holders

of valid copyrights. Some of the msaterials are used based on unrestricted

permission from C-Span through their archive libraries of public records,

Congressional hearings, etc..

Other materials provided in this and other modules are the copyrighted material of


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Professor Karlin or others, including the University and third party entities as to

which Professor Karlin uses the materials based on an express license to utilize them

for strictly nonprofit purposes in the manner provided herein. No materials on this

website may be distributed, disseminated, quoted or otherwise used except pursuant

to permission from the holders of valid copyrights.

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