Category:Business Law

Law 211/LAW 211

This page is a compilation of information for a college Law 211 Course (Business Law)

Some colleges may classify Business Law by a different course number!

'Do not use this page as legal advice; consult a lawyer for any of your legal questions. There are no guarantees that the information on this page is accurate!'

Pretrial conference
Could you imagine what would happen if lawyers went to the trial and did not know what to expect? Could you imagine a prosecuting attorney going to court to claim that someone was guilty of a theft or murder only to find that the defendant has evidence that he was on a plane trip to Chicago at the time? Waiting for these surprises would be very inefficient and very costly. The members of the jury typically do not like being there any longer than they have to be (jury duty pay is pathetic compared to other occupations), and the courts are already seriously backlogged (Clarkson, Miller, Jentz, & Cross, 2009, p. 41). To help reduce this backlog, attorneys and judges try to find ways to get the process done in a swifter manner. One of these ways is the pretrial conference; at the pretrial conference, the main points of both sides are evaluated to see whether there is real reason to even take the matter to trial (Clarkson et al., 2009, p. 64). If they find that one side will obviously lose, they do not need to even bother taking it to trial (Clarkson et al., 2009, p. 64).

Checking others' emails
A boyfriend does not have the authority to check his girlfriend's email, particularly if he was checking her email for the sake of curiosity and not because he actually thought she was engaging in a criminal activity. Invasion of privacy is a crime; this includes going into the email account of someone else without authorization (Clarkson, Miller, Jentz, & Cross, 2009, p. 128).

Juries' knowledge of the law
The juries are instructed in the law before reaching a decision. After the closing arguments by the attorneys, the judge tells the jury which laws apply to the situation before he sends them off to deliberate (Clarkson, Miller, Jentz, & Cross, 2009, p. 70). Furthermore, if the jury did not get the instructions right and misunderstood the law when it issued its verdict, the judge can require that another trial be held to do it right (Clarkson et al., 2009, p. 71). In some courtrooms they actually give jury members little books that say how to act and what they are supposed to do.

The rebuttal
From what I understand, it sounds like the evidence provided during the rebuttal is meant specifically for refuting claims made by the defendant (Clarkson, Miller, Jentz, & Cross, 2009, p. 69). The bulk of the evidence is supposed to be provided after the opening statements (Clarkson et al., 2009, p. 66). New evidence is typically not found during the trial; some evidence, however, might not be presented initially because it would distract the jury from the obvious evidence. If new evidence is found after the trial, it is permissible to request another trial that considers the new evidence, however (Clarkson et al., 2009, p. 71).

Selecting juries
From what I have heard, lawyers tend to be extremely selective of their juries. At the same time, however, picking people one hopes to persuade while sorting out those who might disagree is a very difficult process. As our textbook explains, lawyers have to first sort out people who might be biased against their clients (Clarkson, Miller, Jentz, & Cross, 2009, pp. 64-65). Normally they do this by asking questions of the possible jurors to see who might be safe and who might not be safe (Clarkson et al., 2009, pp. 64-65).

Fog Cutter Capital Group, Inc., v. Securities and Exchange Commission
It did not matter that Fog Cutter itself was not convicted of a violation of the law. The National Association of Securities Dealers had ample reason to suspect that the public would be worried about fraud on Wall Street if Fog Cutter was allowed to remain on the NASDAQ (Clarkson, Miller, Jentz, & Cross, 2009, p. 106). Furthermore, the National Association of Securities Dealers does not have to list companies if it does not want to do so; in this case, there were legitimate reasons for barring Fog Cutter from the NASDAQ even if it had not broken the law (Clarkson et al., 2009, p. 106). This case helps show foreign investors who might be considering investments in securities listed in U.S. exchanges that the United States does try to keep its stock exchanges free from fraud and will take precautionary measures to ensure that investors are safe.

Bans on advertising
Several groups benefit from bans on advertising. First, it helps the groups who specifically want the advertising banned for publicly stated reasons (such as activist and beautification groups) (Clarkson et al., 2009, p. 86). Second, it helps businesses which are unaffected by the bans; these bans help make their advertising more effective. Third, it benefits providers of advertising services that are not affected by the ban; it gives them a better competitive edge.

Serving notice
In most cases, a plaintiff should not be required to serve a defendant with a summons and a copy of a complaint more than once. If there were legitimate reasons why someone might not receive the notice through no fault of their own (such as when letters do not reach their destination due to issues with the Post Office), there would be an adequate reason to require additional notices. However, in most cases, notice is served personally, placed at the residence or place of business, or delivered by certified mail; asking for more on the plaintiff’s part is unfair to the plaintiff (Clarkson et al., 2009, pp. 57-58). When using less reliable means of communication (such as newspapers), however, more than one notice would be appropriate (Clarkson et al., 2009, p. 57).

Unethical business behaviours
People engage in unethical business behaviors for several reasons. First, some people are determined to make large profits, and they will do this whether it is illegal or not (Clarkson, Miller, Jentz, & Cross, 2009, p. 99). Second, some will act unethically because they want large profits and the actions they will take to accomplish this, though unethical, are nonetheless legal (Clarkson et al., 2009, p. 111). Third, some will engage in unethical activity because it is certain that they will lose their jobs if they do not (Clarkson et al., 2009, p. 118). Fourth, some will engage in unethical activity because they see management and other coworkers engaging in it and they assume that they will not get in trouble if they engage in it as well (Clarkson et al., 2009, p. 100).

Business ethics and social responsibility
The term business ethics refers to the moral standards individuals involved in business believe they need to follow (Clarkson, Miller, Jentz, & Cross, 2009, p. 99). The term social responsibility, however, refers to the belief that companies should promote and support community and social initiatives to improve citizens’ well-being (Clarkson et al., 2009, p. 104). To a certain extent, social responsibility is a specific aspect and focus of business ethics; it pertains specifically to communities and does not encompass the whole spectrum of topics covered by business ethics.

Incriminating oneself on YouTube and Facebook
The Founding Fathers thought people would not want to provide self-incriminating evidence; that is why they created the Fifth Amendment (Clarkson, Miller, Jentz, & Cross, 2009, p. 92). If they reveal their activities on YouTube or Facebook, however, their statements can certainly be used as evidence against them. They will also serve as strong evidence against them in court. When the plaintiff shows this evidence to the jury, what will the defendant's attorney say for the rejoinder (Clarkson et al., 2009, p. 70)? A claim that a statement was just a joke will not be easy to defend.

Organization of a trial
I guess none of us three have experienced a live trial. When you look at the way a trial is organized, however, it is merely a highly efficient way of arguing for or against a claim. The first party (plaintiff) gives a brief overview of the first party's argument; the second party (defendant) then gives a brief argument overview too (Clarkson, Miller, Jentz, & Cross, 2009, p. 70). The first party presents proof; this proof is then examined thoroughly (Clarkson et al., 2009, p. 70). The second party then presents proof; this proof is then examined thoroughly (Clarkson et al., 2009, p. 70). The first party then makes a refutation of the second party (Clarkson et al., 2009, p. 70). The second party then makes a refutation of the first party (Clarkson et al., 2009, p. 70). The first party then makes a closing statement (Clarkson et al., 2009, p. 70). The second party then makes a closing statement (Clarkson et al., 2009, p. 70). The jury gets instructed and then issues a decision (Clarkson et al., 2009, p. 70). Overall, there is not really a more efficient way of organizing it.

Multiple examinations of witnesses
The details of the order of a trial can get a little confusing; the concept summary on page 70 might make it a bit easier to understand. There are basically two sets of evidence and witnesses: the first set is presented by the plaintiff and the second is presented by the defendant (Clarkson, Miller, Jentz, & Cross, 2009, p. 70). When a party is done examining witnesses (direct examination), the other party has the option of examining them too (cross-examination) (Clarkson et al., 2009, p. 70). If the witnesses say something that the first party is worried about, the first party will examine them again (redirect examination) (Clarkson et al., 2009, p. 70). If the witnesses then say something that makes the second party suspicious, they will examine the witnesses again too (recross examination) (Clarkson et al., 2009, p. 70).

Doctrine of separation of powers
The doctrine of the separation of powers declares that splitting a government’s powers among several governmental bodies will help prevent a government from easily becoming abusive (Clarkson, Miller, Jentz, & Cross, 2009, p. 79). In the United States, this is done by splitting the government into three branches: the legislative branch, the executive branch, and the judicial branch (Clarkson et al., 2009, p. 79). Using what is known as the system of checks and balances, the governmental system in the United States effectively ensures no particular force takes full control of the government (Clarkson et al., 2009, p. 79). Laws passed by the legislative branch can be vetoed by the executive branch and rendered unconstitutional by the judicial branch; significant actions taken by the executive branch must receive the approval of the legislative branch and conform to the judicial branch’s interpretation of federal law and the Constitution (Clarkson et al., 2009, p. 79).

Steps in a trial
The trial starts with the opening statements of the two parties’ attorneys; they give an overview of their positions and what they believe they can prove (Clarkson, Miller, Jentz, & Cross, 2009, p. 66). The plaintiff’s attorney then provides evidence and witnesses to prove the plaintiff’s claim (Clarkson et al., 2009, p. 69). The defendant’s attorney will then perform a cross-examination of the witnesses if necessary, and, if necessary, the plaintiff’s attorney performs a redirect examination of the witnesses which (sometimes) is also followed by a recross-examination by the defendant’s attorney (Clarkson et al., 2009, p. 69). The defendant’s attorney then provides evidence and witnesses to prove the defendant’s claim (Clarkson et al., 2009, p. 69). The plaintiff’s attorney will then perform a cross-examination of the witnesses if necessary, and, if necessary, the defendant’s attorney performs a redirect examination of the witnesses which (sometimes) is also followed by a recross-examination by the plaintiff’s attorney (Clarkson et al., 2009, p. 69). Once the defendant’s attorney is done, the plaintiff can make a rebuttal of the defendant’s argument; this is sometimes followed the defendant’s attorney giving a response known as a rejoinder (Clarkson et al., 2009, p. 69). Each attorney makes a closing argument; after informing the jury about their legal responsibilities, the judge sends the jury away to make a decision (Clarkson et al., 2009, p. 70). After the jury comes back and announces its decision, the jury is dismissed and the trial ends (Clarkson et al., 2009, p. 70).

Relationship between arbitration and court trails
Our textbook appears to be describing three relationships between arbitration and a court trial. The first relationship between the two is that sometimes certain states requires that a form of alternative dispute resolution be used before a court case (to reduce the number of cases that actually come to court); arbitration is one of these dispute resolution methods (Clarkson, Miller, Jentz, & Cross, 2009, p. 42). The second relationship between the two is that arbitration may be freely considered before a court case; before arriving at a decision, the parties may decide whether the decision from the arbitration will be legally binding or not (Clarkson et al., 2009, p. 43). The third relationship between the two is when an arbitration clause is contained in a contract between the two parties; because they already agreed to arbitration, the court may tell them that they must go to arbitration first (Clarkson et al., 2009, p. 45).

Mediation
As our textbook explains, mediation is typically much less expensive than a standard court case (Clarkson, Miller, Jentz, & Cross, 2009, p. 41). Furthermore, the parties themselves decide on what they want to do; they both basically choose the decision (Clarkson et al., 2009, p. 42). At the same time, another third party individual is present to (a) moderate the discussion, (b) ensure that the matter remains civil, and (c) provide a realistic analysis of claims and evidence. This might also work out well for legitimate personal injury claims (depending on insurance situations). Both sides can look at the legitimate claims and expenses they have, and both sides can also get realistic feedback about what they could expect in an actual trial. At the same time, however, it requires that both sides will be willing to compromise and think rationally; if the injured person thinks one deserves a ridiculously large payout or the company involved absolutely refuses to pay anything, there is no real point in mediation. It will just be another expense before they get a reality check in the courtroom.

Arbitration and mediation
Mediation is a form of alternative dispute resolution where a third party individual listens to both sides of the argument, sometimes suggests or proposes a resolution, and seeks to get both sides to come to an agreement on their own (Clarkson, Miller, Jentz, & Cross, 2009, p. 42). Arbitration is a form of alternative dispute resolution where both parties submit claims and evidence to a third party individual and the third party individual makes a decision based on the merits of the claims (Clarkson et al., 2009, p. 43). Both mediation and arbitration require the presence of a third party individual and both have the ability of letting the third party individual render a legally binding or nonbinding decision (Clarkson et al., 2009, pp. 42-43). On the other hand, mediation attempts to get two sides to come to an agreement or compromise, whereas arbitration does not try to foster this agreement but merely renders a decision based upon the merits of the claims (Clarkson et al., 2009, pp. 42-43). Furthermore, a concrete third party decision is required in arbitration; it is a matter of last resort in mediation (Clarkson et al., 2009, pp. 42-43). Mediation closely resembles negotiation, whereas arbitration closely resembles a court case (Clarkson et al., 2009, pp. 42-43).

Discovery
Discovery is the pre-trial process used by a party to find evidence in support of the party’s claims (Clarkson, Miller, Jentz, & Cross, 2009, pp. 61-62). Discovery takes place after the initial pleadings have been filed with the court; it takes place before the trial, however (Clarkson et al., 2009, p. 54). During the process of discovery, parties are allowed to request information from witnesses and the other parties that might help prove their claims (Clarkson et al., 2009, pp. 61-62). Although parties are expected to comply with most requests for information, the court grants exemptions in the cases of information that might result in (a) breaches of privacy or (b) financial harm to the parties involved due to the release of trade secrets or client information (Clarkson et al., 2009, pp. 61-62).

There are several devices used during the discovery process to obtain information. In the first, deposition, a lawyer places a witness under oath and verbally asks questions; after writing down the answers given, the witness is asked to sign under oath that the written answers are true (Clarkson et al., 2009, p. 62). In the second device, interrogatories, a written list of questions is submitted to the other party; the other party must provide accurate answers and certify the answers under penalty of perjury (Clarkson et al., 2009, p. 62). The third, requess for admission, asks the opposing party to issue a declarative statement regarding an aspect or circumstance; this can be used as evidence at the trial. The fourth, request for documents, objects, and entry upon land, either (a) requests specific documents and items that can be used as evidence or (b) requests access to specific properties or locations (Clarkson et al., 2009, p. 64). The fifth, request for examination, is used to conduct an examination to verify whether a specific person is physically or mentally capable (Clarkson et al., 2009, p. 64). The sixth, electronic discovery, is a request for copies of hard drives or other collections of files which can be scanned for files and data (including deleted data) that might serve as evidence (Clarkson et al., 2009, p. 64).

The process of discovery provides several advantages. First, it helps parties and the court get all the facts together in an organized manner before the trial (Clarkson et al., 2009, p. 62). Second, it provides opposing parties with an opportunity to see whether there is adequate evidence to prove their points in court; if there is not, they may be more willing to settle outside of court (Clarkson et al., 2009, p. 62). Third, it provides the opportunity for a party to examine whether witnesses and evidence are trustworthy before the trial (Clarkson et al., 2009, p. 62). Fourth, it provides the court with a way to make parties prove that they will cooperate in the administration of justice; if they do not cooperate, they can be penalized (Clarkson et al., 2009, p. 63). Finally, the evidence acquired during the discovery process can be compared to evidence provided during the trial to see whether the statements of witnesses or parties show consistency (Clarkson et al., 2009, p. 62).

Origin or rights
Rights are indeed designated and created by law, and the existence of the law assures that these rights can be enforced consistently (Clarkson, Miller, Jentz, & Cross, 2009). In fact, some rights the law creates (such as those bestowed through copyrights, patents, and affirmative action) would not always be considered rights bestowed by justice itself, but they are enforceable rights nonetheless. At the same time, however, the argument of the positivist school of thought has one fatal flaw: what about the situations where the law says certain people have no rights or only paltry rights? Consider, for instance, the lack of rights provided to the slaves before the Civil War and the Jews during the Holocaust. The law accorded them few or no rights, but we know that the law was not correct. In that case, we know that rights, even if not enforceable, do not come solely from the law.

Difference between law and justice
According to the definition of justice provided, justice and law would not be considered the same thing. The law is merely a set of "enforceable rules"; these do not have to be parallel to the administration of justice (Clarkson, Miller, Jentz, & Cross, 2009, p. 2). Although direct conflicts between justice and the law are uncommon in the modern United States, they certainly existed in the past. Consider, for instance, the Plessy v. Ferguson decision by the Supreme Court (163 U.S. 537, 16 S.Ct. 1138). In this case, laws in favor of segregation were upheld; as we know, this would not be considered a manifestation of justice ("Plessy v. Ferguson," n.d.). Likewise, consider the laws that prohibited slaves from learning how to read before the Civil War (Altman, 2000). These could not be considered manifestations of justice under any circumstances.

(In response to a fellow student...) Donald, I do not believe I fully understand what you are saying. Are you saying that people favor the law because they want justice, or are you saying that judges are ignoring the law and trying to enforce justice instead? (I suspect the former is the case). If it is the former, I must agree with you on that; most people want a sense of fairness, and the law provides a way to enforce fairness in a consistent manner (Clarkson, Miller, Jentz, & Cross, 2009). Furthermore, few really have any real love for mere law, especially if it is unjust! How many citizens are enthralled with low speed limits on freeways? How many citizens enjoy the complication of the income tax laws? (We all like tax deductions and tax credits, but most would like to get their taxes reduced with less of a hassle.) As for courts disregarding the law in favor of justice, that is definitely a possibility also. The sociological school of jurisprudence advocates this; thanks to the relative ambiguity of the amendments to the Constitution, they can often use the amendments to support what they want (Clarkson et al., 2009).

Although there are certainly cases of unjust laws in (a) America's past and (b) other countries' current governments, America's current law system does seem to be rather trustworthy and just. As always, there is room for argument about what is the most just solution, but the current American law system's conclusions usually have at least some form of justice (Clarkson, Miller, Jentz, & Cross, 2009). One can argue that rich people should pay more in taxes because they can afford it; conversely, one can argue that the poor should pay higher taxes because they frequently cost the system more than the rich. One can argue that religious organizations should be exempt from property taxes because they provide many free public benefits; conversely, one can argue that they should still pay taxes because they use public services. This is where the positivist school of thought has a rather valid argument: if people said they would not pay their taxes because they did not feel the system was totally fair, no one would be paying taxes (Clarkson et al., 2009).

Although justice and law may be interrelated, justice is not the mere implementation of law either. As our textbook explains, law is determined by the values of the ruling class; fairness and justice are not always embraced by the ruling class (Clarkson, Miller, Jentz, & Cross, 2009). In the 1850s, the law dictated that no one could help slaves escape from their owners; those who helped them escape to Canada knew justice demanded otherwise. Even after the Civil War, unjust segregation laws restricted African-Americans to the flood-prone areas in New Orleans (Katel, 2006). The only reason there is correlation between law and justice is because most lawmakers try to implement laws that can be considered just.

Jurisdiction
Jurisdiction refers to the authority a government agency, authority, or court has over a certain person, place, thing, action, or circumstance (Clarkson, Miller, Jentz, & Cross, 2009). A governmental body that has authority to require that something is done in a specific instance has jurisdiction over that specific instance; a governmental body that does not have the authority to require that something is done in a specific instance does not have jurisdiction over that specific instance (Clarkson et al., 2009). This authority is typically allocated according to geographic boundaries, citizenship status of the individuals involved, size of the claims involved, nature of the issues involved, and government entities creating the applicable laws (Clarkson et al., 2009). Jurisdiction over persons or property is allocated according to geographic boundaries; to have jurisdiction over a specific person or property, it must be shown that the person or property (a) is within the geographic boundaries of the entity's jurisdiction, (b) came into the geographical boundaries of the entity's jurisdiction while staying there long enough and creating a significant enough impact (such as a crime) to warrant jurisdiction over this person or property, or (c) actively conducted business in the entity's jurisdiction (Clarkson et al., 2009). Subject matter jurisdiction, however, is determined by the nature of the issue, the size of the claim, or the governmental body responsible for the laws regarding the claim (Clarkson et al., 2009). Certain governmental bodies will be limited to only bankruptcy cases; some will be limited to only cases involving a specific dollar value (Clarkson et al., 2009). Some will only have jurisdiction over environmental cases; others will only be granted jurisdiction over the payment of taxes. Governmental entities that do not have jurisdiction in certain aspects do not have the authority to make any enforceable demands (Clarkson et al., 2009).

Stare decisis
Stare decisis is the doctrine that courts should follow the precedent of preceding court decisions (Clarkson et al., 2009). This helps provide stability to the law and helps establish a uniform approach to the law (Clarkson et al., 2009). When determining which court cases set precedent, judges will look at the decisions of higher courts and previous court cases settled by the same court (Clarkson et al., 2009).

Positivist school of thought
Although individuals may insist that the law be followed, most will still acknowledge that some laws are indeed unjust. For instance, the positivist school of thought believes that the law should always be followed (Clarkson, Miller, Jentz, & Cross, 2009). At the same time, they acknowledge that not all laws are indeed just (Clarkson et al., 2009). As our textbook explains, the positivist school of thought believes that "[l]aws must be obeyed, even if they are unjust, to prevent anarchy" (Clarkson et al., 2009, p. 4). If they did not recognize that they were indeed unjust, they would not have to defend themselves against claims of injustice; they could argue instead that people merely have bad perceptions of otherwise acceptable laws. It could be that they have limits on how unjust laws may be before they should be disregarded (such as in Nazi Germany), but I have not read enough of the textbook to find out. Of course, if there was a limit on how unjust a law could be before it should be disregarded, it would indirectly admit that the natural law school of thought has a valid argument!

The design of law
Interestingly enough, not everyone agrees with the belief that the law was designed to set standards and rules for humanity. As our textbook explains, the natural law school of thought believes that the law already exists; humans just need to find it (Clarkson, Miller, Jentz, & Cross, 2009). Legal realism does not really stand behind the statement either; it makes the claim that laws should conform to society, not the other way around (Clarkson et al., 2009). Although I agree that law should indeed set standards for humanity, not all the authorities on the topic agree with it.

Business invitees
Business establishments are expected to provide a certain level of protection from hazards on their premises, and these expectations are often extended to establishments that do not sell to individuals (Clarkson, Miller, Jentz, & Cross, 2009, p. 145). Although the question asks about clarifying the definition of invitees, maybe the term business needs to be clarified also. In this case, a person is doing business with a company, library, nonprofit organization, religious institution, house of worship, or government agency. Maybe business should be defined as “intentional professional physical interaction with the public”? This definition seems rather broad, but it seems to mostly fit the situation since it excludes unintentional, amateur, and virtual interaction.

Business property liability
If business owners or property owners have taken reasonable precautions to ensure that the premises are reasonably safe, they are typically not found liable if there is a liability claim (Clarkson, Miller, Jentz, & Cross, 2009, p. 145). Furthermore, individuals themselves are also expected to act reasonably; if they do not, they are frequently not granted remedies (Clarkson et al., 2009, p. 145). The only significant exception to this, however, is in cases where strict liability is imposed (Clarkson et al., 2009, p. 153). Strict liability is imposed for situations where there is a significant likelihood that there will still be injury to individuals or property no matter how reasonable both parties are (Clarkson et al., 2009, p. 153).

Business owners are expected to take reasonable precautions and ensure that the premises are reasonably safe (Clarkson, Miller, Jentz, & Cross, 2009, p. 145). If they have taken the appropriate precautions (such as both shoveling and salting sidewalks), there is not any real argument that a person can make; the business owners have done what is expected of them (Clarkson et al., 2009, p. 145). If a person fakes a fall or is naturally clumsy and the business owner has already ensured that the appropriate safety precautions have been taken, the person cannot make a valid claim against the business owner (Clarkson et al., 2009, p. 145). If, however, someone fakes a fall or is naturally clumsy and the business owner has not ensured that the appropriate safety precautions have been taken, there will be little the business owner can do to refute the claim without the help of witnesses or video surveillance footage (Clarkson et al., 2009, p. 145).

Are shoplifters protected by liability laws?
(In response to a statement by a fellow student asking whether shoplifters would be able to sue for injuries if they slipped while fleeing the store...) Considering the willingness of the courts to let criminals go free on technicalities like that, there is probably reason to argue that the business would be held liable (Clarkson, Miller, Jentz, & Cross, 2009, p. 201). Furthermore, trespassers are afforded a certain level of protection by the law in some jurisdictions; if the shoplifter experienced serious injuries, it might be difficult to defend against a lawsuit from the shoplifter (Clarkson et al., 2009, p. 133). At the same time, however, if the establishment had placed a “wet floor” sign by the spot, the establishment would be exempt from liability for the situation because the establishment had taken reasonable precautions to ensure that individuals were warned of a potential danger (Clarkson et al., 2009, p. 145).

Fellers v. United States
Fellers argued on appeal that his “jailhouse statements” should have been excluded from trial because his confession of wrongdoing was based upon the self-incriminating statements he had made at his home before he was notified of his Sixth Amendment rights (Clarkson, Miller, Jentz, & Cross, 2009, pp. 198-199). In the Supreme Court’s eyes, the “jailhouse statements” should have been excluded from his trial (Clarkson et al., 2009, p. 199). The argument the Supreme Court uses to support this claim is that the confession was “tainted” by the statements Fellers made while he was in his own home and unaware of his Sixth Amendment rights (Clarkson et al., 2009, pp. 198-199).

Sony BMG Music Entertainment v. Villarreal
The general public does not have any direct or immediate interest in upholding copyright law or granting the sort of relief that was awarded in this case (Clarkson, Miller, Jentz, & Cross, 2009, p. 157). Nonetheless, the general public will benefit indirectly in the long term by providing an environment where authors are willing to spend the funds and talent necessary to create additional high-quality works; strict enforcement of copyrights ensures their investments will get reimbursed (Clarkson, Miller, Jentz, & Cross, 2009, p. 157). Rights should not be redistributed merely as a result of new technology. If new technologies are created, the economic benefits of the new technologies themselves go to their creators; this is enforced through patents (Clarkson et al., 2009, p. 167). Authored works continue to belong to the authors; authors retain full rights over their creations no matter what new technologies become available (Clarkson et al., 2009, p. 171).

Sutton v. Eastern New York Youth Soccer Association, Inc.
The basis underlying the assumption of risk is that the individual (a) understands the risk entailed and (b) chooses to assume the risk voluntarily (Clarkson, Miller, Jentz, & Cross, 2009, p. 149). This basis supports the court’s decision in the Sutton case because (a) the man had been watching soccer for 14 years and had reason to know what risks accompanied the sport, (b) he had already been observing the tournament for several hours and had reason to understand what was happening on the field, and (c) he freely chose to leave the area designated for spectators and go to an area for team members (Clarkson et al., 2009, pp. 150-151). If the plaintiffs had prevailed, sites for soccer matches would probably (a) install fences across all areas for team players and spectators, (b) cease placing tents or other fixtures where people could potentially be hit by a stray ball, and (c) require that all activities on the field cease when people are entering or exiting the field (Clarkson et al., 2009, p. 151).

Anderson v. Mergenhagen
Since Paul was observing from a public place, his surveillance would have been considered acceptable if he was doing it for a legitimate purpose (such as ensuring that Maureen was fit to care for the children), not as an attempt to harass Maureen (Clarkson, Miller, Jentz, & Cross, 2009, p. 129). The reason why the case was decided in Maureen’s favor was only because Paul was intentionally harassing her (Clarkson et al., 2009, p. 129). A plaintiff should not be required to prove a physical intrusion into an individual’s affairs or seclusion. Other methods of intrusion (such as wiretapping, computer hacking, and email communication interception) are also forms of intrusion into an individual’s affairs or seclusion; although the intrusion may not be physical, it is still intrusion into the private matters of the individual (Clarkson et al., 2009, p. 128).

Electronic copyrights
Computer software is protected by copyright law in several ways. The Computer Software Copyright Act of 1980 gives computer programs the status of “literary works”; it protects both the original authorship present in computer programs and any derivative works of this original authorship in binary or hexadecimal code (Clarkson, Miller, Jentz, & Cross, 2009, p. 172). The No Electronic Theft Act of 1997 protects computer software from being copied and distributed by individuals who are not authorized to do so, even if they distribute it without charge (Clarkson et al., 2009, p. 173). The Digital Millennium Copyright Act of 1998 protects software encryption technologies from being bypassed by those attempting copyright violation (Clarkson et al., 2009, p. 173).

Several factors make copyright the most important form of intellectual property protection on the Internet. First, it is very easy to violate copyright on the Internet; thanks to many file-sharing technologies, individuals can quickly disseminate copyrighted intellectual property to thousands or millions of users (Clarkson et al., 2009, p. 174). Second, the financial damages that result from copyright violation on the Internet are extensive and hurt many artists’ and developers’ revenues severely (Clarkson et al., 2009, p. 175). Third, a large number of individuals worldwide are participating in copyright infringement on a regular basis; in spite of efforts to curb copyright infringement, it continues unabated nonetheless (Clarkson et al., 2009, p. 173).

Children and business property liability
(In response to a student who said that if a child ran inside a building and got hurt the business could be held liable...) There is room to argue to the contrary if the business is not typically open to individuals with children or if the child and parent go into an area where they are not invited. To be a business invitee, one must still be invited, directly or indirectly (Clarkson, Miller, Jentz, & Cross, 2009, p. 145). If the store is a wholesale-only establishment, the child and parent have not been invited. If it is only for contractors, the child and parent have not been invited. If the store is officially closed for business but the door has not been locked yet, the child and parent have not been invited. If the child runs into an area in an auto mechanic’s shop that is not open to the public (even though the front office is), the child and parent have not been invited to that area.

Inviting customers
As our textbook explains, advertising is a way of indirectly inviting customers to come to one’s establishment (Clarkson, Miller, Jentz, & Cross, 2009, p. 145). Merely displaying an “Open” sign qualifies as an invitation. What I am trying to note, however, is that a company is only expected to hold itself to a high business standard because it is expected that it is catering to revenue-generating visitors. The primary consideration here is that “business invitees” should not include thieves or competitors. Furthermore, suppliers and non-client contractors should not be considered as part of this either. Only certain areas of an establishment are open to business invitees, and these areas are only open to them for a specific period of time.

Using product pictures from other websites
(In response to a student's question about whether it was acceptable to use pictures from a manufacturer's website to sell products on eBay...) Asking permission is definitely the route to go. In the perspective of our law course, however, this is one of the most harmless infringements of copyright on the internet. The manufacturer is typically unlikely to complain and probably will not complain because its products (new or used) are getting sold one way or the other. If, however, one took pictures from Walmart or Amazon and used them, it would be an entirely different story. This would be not only a copyright infringement but also a way of hurting their sales. They could sue not only for statutory copyright damages but also actual damages in the form of lost sales (Clarkson, Miller, Jentz, & Cross, 2009, p. 172).

Constitutional protection of individuals' rights
There are several constitutional protections of individuals’ rights that apply in the area of criminal law. The Fourth Amendment protects citizens from searches that are unreasonable and from the issuance of warrants when it is not likely that they were involved in crimes (Clarkson, Miller, Jentz, & Cross, 2009, p. 198). The Fifth Amendment ensures that citizens are not required to submit to more than one criminal trial, be barred from the due process of the law, or testify against themselves (Clarkson et al., 2009, p. 198). The Sixth Amendment guarantees a right to trial by jury (Clarkson et al., 2009, p. 198). The Eighth Amendment prohibits unreasonable bail, fines, and punishments (Clarkson et al., 2009, p. 198).

Liability for publication
Newspapers, television stations, and radio stations are held liable for publications because they choose what they want to publish. It is not a matter of whether they can choose what to include; the matter is that they must choose what to include. If I want something to appear on television, I cannot just submit it to my television somehow and make it show up across the state of Michigan. I have to send it to a television station, and the television station will not show it unless it feels like doing it and manually includes it. The same applies with newspapers and radio stations. With the internet, however, I can just go online and post something for everyone to see; I do not have to beg anyone to do it for me. The same applies to the telephone: I just pick up the phone, dial, and talk. At the same time, though, newspapers like the New York Times are not held liable for user-generated content posted on their websites because they did not select the content (Clarkson, Miller, Jentz, & Cross, 2009, p. 137).

There is a difference between an internet service provider and a website. An internet service provider provides internet service, much like a telephone company provides telephone services and the Post Office provides mail services. Their job is to get the call to you or get the mail to you; it is not their job to create calls or create mail. If Comcast (a corporation) creates anti-war propaganda for its website, however, it is not acting in its capacity as an internet service provider; it is acting in its capacity as an editor. The law protects Comcast when it acts in its capacity as an internet service provider that merely moves data from Point A to Point B, but it does not protect it if it creates data (Clarkson, Miller, Jentz, & Cross, 2009, p. 137). The same applies to any individual person who opens up a sole proprietorship to sell internet services (Clarkson et al., 2009, p. 137). If the individual also owns a website and creates defamatory content, however, the individual is not protected in the capacity of being an author of the defamatory content (Clarkson et al., 2009, p. 137).

Internet service provider monitoring
Internet service providers can monitor their content if they choose to do so through either manual or automated means. However, it can be very tedious and not particularly worthwhile. It should be noted, however, that internet service providers would not be taking anyone’s rights away by filtering their content; defamation is punishable by law and no one has a right to do it (Clarkson, Miller, Jentz, & Cross, 2009, p. 137). As our textbook explains, sometimes internet service providers do not remove libel in a timely manner, but they are not required to do so either (Clarkson et al., 2009, p. 137). At the same time, if they react too fast, people who wrongly think users have the right to post libel will start complaining or file frivolous lawsuits.

Crimes in foreign countries
(In response to a fellow student's question about a theft in Indonesia that was authorized by an American importer...) For a court to exercise authority over someone, it must have jurisdiction over the individual (Clarkson, Miller, Jentz, & Cross, 2009, p. 31). In the case of the theft by the contact in Indonesia, the contact is probably not a U.S. citizen and the owners of the goods are probably not U.S. citizens. Furthermore, the crime took place in Indonesia, not the United States. American courts have neither in personam jurisdiction nor in rem jurisdiction over the matter (Clarkson et al., 2009, p. 31). Unless the matter is brought to an Indonesian court, the matter will not be brought to justice.

Copyright and the internet
There are several reasons why copyright is the most important form of intellectual property protection on the Internet. First, it is extremely easy to violate copyright on the Internet by copying, uploading, or downloading files (Clarkson, Miller, Jentz, & Cross, 2009, p. 173). Second, the usefulness of the Internet relies highly on copyrightable intellectual property like pictures, music, videos, and written works (Clarkson et al., 2009, pp. 172-173). Third, authors and publishers lose a large amount of sales to unauthorized electronic copies of copyrighted works (Clarkson et al., 2009, p. 175). Finally, due to the large number of average people involved in copyright infringement, it is very time-consuming to track down enough copyright infringers to end the trend (Clarkson et al., 2009, pp. 173, 176).

Threats to post libel online
(In response to a fellow student's mention that some customers will falsely threaten to post bad feedback if they do not get discounts...) A company may have a no-returns policy or a buying as-is policy; even if the terms are stated clearly, the average customer will still be upset if defective merchandise is received or the wrong merchandise is received. I do not know the exact situation your employer faces, but if they are dissatisfied customers, it is legal for them to complain freely about it. If they are lying about their service, however, then yes, they are doing something illegal; this qualifies as libel (Clarkson, Miller, Jentz, & Cross, 2009, p. 126). If they are making false statements about the company in a way that makes these false statements sound like actual facts (and not mere opinions), your employer can drag these individuals into court and receive payment for damages (Clarkson et al., 2009, p. 127). Your employer does not even need to prove that these false postings hurt the company’s business; if they are false and in a permanently published form, they will have to pay anyhow (Clarkson et al., 2009, p. 127).

The CAN-SPAM Act
The federal CAN-SPAM Act does not prohibit anonymity in any shape or form (Clarkson, Miller, Jentz, & Cross, 2009, p. 139). The CAN-SPAM law merely prohibits the use of a false return address, false header information, and false statements in emails (Clarkson et al., 2009, p. 139). This is not anonymity; this is fraud and falsehood (Clarkson et al., 2009, p. 139). If I sent someone a letter with your name on the return address, would it be fraud or anonymity? If someone wants to send something anonymously, they have the ability to do so; they can open up a new account with Yahoo, Hotmail, or Gmail and send their email from that account. If they do not load their personal information into their account, they will remain anonymous.

Defenses in negligence actions
The defenses available in an action in negligence are assumption of risk, superseding cause, and contributory and comparative negligence (Clarkson, Miller, Jentz, & Cross, 2009, p. 149). Assumption of risk is when the plaintiff knew that a particular situation or product was dangerous and decided to act in a certain manner or use it anyhow (Clarkson et al., 2009, p. 149). Superseding cause is when an unforeseeable matter other than that caused by the defendant intervenes and causes the damage (Clarkson et al., 2009, p. 151). Contributory and comparative negligence is when the plaintiff is also at fault for the damage; the defendant is either exempted from paying damages or only required to pay the percentage of damages attributable to the defendant (Clarkson et al., 2009, pp. 151-152).

Strict liability
Strict liability is imposed on three public policy grounds. First, public policy recognizes that those who engage in abnormally dangerous activities or create abnormally dangerous products cannot fully control the potential for serious damage even if they and potential plaintiffs exercise reasonable caution (Clarkson et al., 2009, pp. 153-154). Second, it recognizes that producers and providers of abnormally dangerous goods and services can sustain financial losses more easily than the potential plaintiffs (Clarkson et al., 2009, p. 154). Finally, it recognizes that producers and providers of abnormally dangerous goods and services, unlike the potential plaintiffs, can increase their prices or fees to compensate for damages caused by these potential hazards (Clarkson et al., 2009, p. 154).

Definition of business invitees
Our textbook defines business invitees as individuals who are “invited onto business premises by the owner of those premises for business purposes” (Clarkson, Miller, Jentz, & Cross, 2009, p. G-5). Our textbook also explains that business invitees must be invited in order to meet the criteria for being business invitees (Clarkson et al., 2009, p. 145). There are additional restrictions that are placed on a business if it allows business invitees to enter its premises and additional expectations of safety as well (Clarkson et al., 2009, p. 145). The primary focus in this matter is that the premises must be made safe for purchasing customers, but customers who are returning items, exchanging items, getting items repaired, evaluating potential purchases, or comparing prices need to be covered also (Clarkson et al., 2009, p. 145). In that case, the definition needs to be broader than merely "those planning to make a purchase" and encompass individuals conducting business with the company who might not be making a purchase at that time or might be returning their products.

Breaching anonymity
Although there is indeed a high degree of anonymity with online interaction, it is not invincible. An internet service provider has access to the necessary information regarding the interaction and the individuals involved; this information is easily accessible to them (Clarkson, Miller, Jentz, & Cross, 2009, p. 139). The main factor, however, is the right to privacy that users have; unless internet service providers are forced to reveal information in response to legitimate court orders, internet service providers cannot provide information about the individuals in question (Clarkson et al., 2009, p. 139). Furthermore, the court system limits its requests for information; it holds that this privacy should not be breached without due reason (Clarkson et al., 2009, p. 139).

ISP exemption from liability
Internet service providers (ISPs) are exempt from liability (under some statutes) for the actions of their customers because they do not take an active role in the publication of their customers’ content; their roles as service providers are merely passive (Clarkson, Miller, Jentz, & Cross, 2009, p. 138). A good comparison would be the Post Office or local telephone company; customers may publish content using their services, but these entities do not take active roles in deciding what is published and what is not published. At the same time, however, Internet service providers (ISPs) can be found to be liable for the actions of their customers if they take active roles in deciding what content is published (Clarkson et al., 2009, p. 138).

The law protects internet service providers and many online websites that have user-generated content, but it does not provide liability protection for all their actions, however (Clarkson, Miller, Jentz, & Cross, 2009, pp. 137-138). In cases where an internet service provider merely provides internet access services or a website merely allows users to access and use its services, they are basically immune to torts (Clarkson et al., 2009, pp. 137-138). When a website attempts to shape the user-generated content or brings attention to it in a manner similar to a traditional publisher, however, it can become liable to tort action (Clarkson et al., 2009, p. 138).