Making the Case : An Argument Reader / Edition 1

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Overview

Focusing on legal issues, this book promotes the skills of written argument by stimulating readers to think and write about actual, compelling court cases. Its application of general rules to specific disputes provides an ideal approach to the development of logical thought and argument. Each chapter features broad and narrow issues of conflict to help explore the roles of jury members, prosecutors, and defense attorneys—and explain how to make claims (i.e., arrive at verdicts), based on support (the facts and evidence of the case itself), applying standards (the relevant laws). General issues include law and society, arguing effectively, emotional distress, homicide, freedom of speech, search and seizure, and sexual harassment. Sub-issues cover law and engagement rings, hot coffee spills, parental failure to control children, skiing accidents, barroom brawls, and high school sports injuries. For individuals interested but untrained in the law, fascinated by human drama, and curious about our duties and responsibilities to other people and our society at large.

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Product Details

  • ISBN-13: 9780130154002
  • Publisher: Longman
  • Publication date: 11/1/2000
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 563
  • Product dimensions: 6.00 (w) x 8.90 (h) x 1.40 (d)

Read an Excerpt

Preface

Making the Case is a composition reader focused on legal issues. It aims to help you develop your skills in written argument by stimulating you to think and write about compelling cases that have actually appeared before the courts.

You may have an image of the law as impossibly complex, musty, and boring, and—let's face it—much of it is, even to lawyers. But if you peer beneath the sometimes intimidating language-here reduced to a bare minimum-you can often discern the outlines of intense human drama. Viewed in one way, legal cases are stories. They are morality tales. A has done something wrong to B. B claims injury. A denies the charge. A may be a person or a company. B may be a person, or a company, or the government—speaking for "the people." A and B hire champions to argue their cases. An impartial judge and jury hear the opposing arguments. They take account of the facts. They take account of the law that applies to these facts. And they make a decision. Using the material in this book, you will be called on to make these decisions—and to explain why you decided as you did.

Legal cases are rooted in conflicts, and most conflicts are inherently dramatic and interesting. These conflicts often raise questions about our duties and responsibilities to other people and to society at large. Writing about legal disputes is an ideal approach to developing your skills at logical thought and argument. Roleplaying as jury members, as prosecutors, or as defense attorneys, you make claims (that is, arrive at verdicts) based on support (the facts and evidence of thecase itself), and apply standards (the relevant laws). Writing about cases tends to be purposeful—in terms of arguing for a particular verdict—even as it implies larger ethical questions. And, usually, writing essays about particular cases is more enjoyable than writing about more general or theoretical issues.

Each chapter in this book focuses on a particular issue and comprises groups of related readings. While the main chapters focus on broad issues such as homicide, freedom of speech, and sexual harassment, a series of brief segments at the end of the book focuses on narrower issues: high school athletic injuries, hot coffee spills, parental responsibility for the destructive acts of their children. Each group of readings and cases focuses on a particular aspect of the issue in question. By reading and discussing such related cases, you may see how judgments on aspects of an issue (for instance, harsh and insulting language in emotional distress cases or the particular conditions of a claimed hostile work environment) are affected by the specific circumstances of the case, and you can compare and contrast such cases—in effect, using your judgments about one case as precedent for your judgments on another.

More general reading selections in each major chapter provide social, psychological, or historical contexts for the issue in question. For example, a chapter dealing with sexual harassment includes not only cases of sexual harassment that have been taken up by courts, and sections from the relevant statutes and the judge's instructions to the jury, but also passages from books or articles on the matter. Beginning with Chapter 3, each group of reading selections is preceded by an introductory headnote and is followed by a set of discussion and writing assignments: "For Deliberation and Argument."

Making the Case therefore allows you to practice the essential college-level and professional skills of analysis (applying one or more general principles or rules to one or more specific cases), comparison-contrast (examining key similarities and differences), summary (summarizing the relevant case or cases and the legal principles that apply), narration (relating the key events), definition (defining key legal concepts, such as negligence or malice), and evaluation (examining the evidence and determining how well it supports the conclusion being argued).

The texts of cases treated in Making the Case are drawn largely from primary sources on the law. The facts of each case derive from the narrative—and generally highly readable and interesting—sections of court decisions. These narratives are followed by extracts of the law that apply to that case, drawn from relevant codes and statutes and from the judge's instructions to the jury—instructions designed to explain key terms and concepts to people untrained in the law.

To encourage you to compose logical, well-supported, and well-written essays, Making the Case will introduce you to the IRAC (Issue, Rule, Application, Conclusion) approach to composing arguments. A typical writing assignment asks you to render a verdict on the case, explaining your reasoning in IRAC format. Often you will be asked to role-play—sometimes as a member of a jury, sometimes as a prosecutor or defense attorney faced with the task of writing a memo to your superiors or a closing argument to a jury. Other assignments are less structured, allowing you to explore the moral or personal dimensions of the case.

The opening chapter on law and society sets the law into the context of larger social concerns; selections explain how the American court system operates and how a variety of people view the world of law and lawyers. The second chapter focuses on composing arguments and provides a number of practical strategies for organizing your ideas and making your points effectively. A glossary of legal terms concludes the book.

In their readability and inherent interest, the cases presented in this book are not representative of those typically found in legal casebooks. But that is intentional. Someone once defined drama as life without the boring parts. You are about to plunge into the world of law—without the boring parts. A Note on the Appeals Process and the Case Descriptions in this Book

Most of the cases that appear in this book are culled from appellate court decisions—also called opinions—published in legal volumes called reporters.

Civil and criminal trials are conducted in lower courts, such as municipal courts, small claims courts, family courts, district courts, or superior courts. The party that sues is called the plaintiff; the party being sued is called the defendant. In some cases a trial court judge will, upon petition by the defendant, dismiss the case without trying it or hearing testimony. This summary judgment is handed down if the judge agrees with the defendant that the plaintiff does not have a cause of action—that is, cannot offer facts that, assuming they are true, show that the defendant has breached a legal duty. (For a fuller description of the American legal process, see Hricik, pp. 2-11).

A defendant who loses in a civil case is found liable and is subject to payment of monetary damages to the plaintiff. Examples of civil offences include assault, battery, infliction of emotional distress, trespass, negligence, invasion of privacy, defamation, violation of civil rights, fraud, breach of contract, and wrongful death. A defendant who loses in a criminal case is found guilty and is subject (depending on the seriousness of the offense) to payment of a fine, imprisonment, or in extreme cases, death. Examples of criminal offenses include burglary, robbery, extortion, rape, arson, kidnapping, and homicide.

Generally, the proceedings of lower court trials are not published, although transcripts are available from the court clerk. The losing party in the trial— the plaintiff or the defendant—may appeal the verdict, or a summary judgment, to the next higher level court, the appellate court. (The first name in a case—as in Smith v. Jones—is the name of either the original plaintiff, or, in some jurisdictions, if the case has been appealed, the petitioner for appeal. Thus, if Smith sues Jones, and Jones then loses and subsequently appeals, the appellate case may be called Jones v. Smith. If the appeals court reverses the trial court and finds for Jones, and then Smith appeals to a still higher court, the case once again may become Smith v. Jones.) If the court accepts the appeal—and it may not—the panel of judges constituting the appellate court will review the record of the case, as conducted in the trial court, along with the associated evidence, and will render a decision (representing the judgment of a majority of its members), either affirming the verdict of the trial court or reversing it. Appellate judges do not hear additional testimony from witnesses or gather additional evidence. The appeals court has none of the traditional "courtroom drama" of the trial court. The judges on the court render their judgment on the basis of briefs and oral arguments by the attorneys for the plaintiffs) and the defendant(s), as well as amicus curiae briefs (those submitted by interested parties) and of course the transcript of the trial itself. They base their legal analysis on both sstatutory law (passed by legislatures) and case law (legal opinions by judges that serve as precedent for future cases).

An appellate court may reverse a verdict if it believes that the trial judge has erred in interpreting or applying the law, or if it decides that there is a compelling reason to overturn precedent established by lower courts. If the trial court verdict is partially or entirely reversed, the appeals court may remand the case back to the lower court for retrial. In such a case, the trial court judge is bound to follow the rulings of the appellate court. This may result in a different verdict, though of course the jury is free to render whatever verdict it thinks right.

Appellate court rulings are generally published in legal journals called reporters (such as the Federal Reporter, the Pacific Reporter, or the Northwestern Reporter), which are available at any law library. (When you see rows and rows of uniform-looking legal volumes behind a judge or attorney on TV or in the movies, you're generally looking at bound collections of reporters.) Judgments of intermediate appeals courts may be appealed to the state supreme court or (if the case has been tried in federal courts) to the U.S. Supreme Court. At any point in the trial or appeal process, the parties in a civil case may decide by mutual agreement to reach a settlement. Settlements avoid the time and expense of further court action. The fact that so many cases are either remanded back to trial court or settled out of court (in which case the results are not readily available) sometimes makes it difficult to determine the ultimate outcome of a case.

The case descriptions in this book are excerpted from those sections of the opinions, generally near the beginning, in which the judge or judges hearing the appeal summarize the facts of the case before beginning their legal analyses. In these legal analyses, the judges apply the law to the facts of the case—generally in modified IRAC format (see Charrow, Erhardt, and Charrow, pp. 59-72) before arriving at their conclusions and their decisions. These analyses have been omitted from the case descriptions in the text, although sections of them show up in the case law accompanying a set of readings in a group. Case Outcomes

Also omitted from the case descriptions are accounts of how the cases turned out—or at least (since, as noted earlier, ultimate case outcomes are sometimes difficult to determine) how the appellate courts ruled. This is an intentional omission made to avoid biasing your responses to the facts of a given case. If you know in advance what the appellate court decided, there is a strong possibility that you might adopt that conclusion as your own and tailor your reasoning to support the court's decision. If, on the other hand, you don't know how the court ruled, then the question of whether the plaintiff or the defendant has a stronger case becomes a much more open one. For the purpose of this text, it's much less important that you come to the "right" decision or predict the winner than that you undertake to argue logically—to systematically apply general principles to specific facts in order to arrive at logical conclusions.

If, at the end of this process, your curiosity about a given case simply must be satisfied, ask your instructor, who can then consult the Instructor's Manual and tell you how the appellate court ruled. Note to Instructors

The Instructor's Manual may also be accessed through the Prentice Hall Web site: www.prenhall.com/english. For a passcode to the Instructor's section, contact your Prentice Hall Representative. Citing Sources

In writing about the cases in this book, credit your sources as follows:

Give the full citation only once, the first time you mention the case. (On subsequent mention, you can give an abbreviated reference, such as People v. Markham or simply Markham and the appropriate page number.) After the case name (in italics or underlined) insert the legal volume citation and the date of the case, which is provided in this book at the bottom of the first page on which the case is reprinted. Example: Lawrence v. Stanford, 655 S.W 2d 927 (1983) or Commonwealth v. Carroll, 194 A.2d 911 (1963). The first citation means that the case appears in volume 655 of the Southwestern Reporter, Second Series, beginning on page 927, and was decided by the court in 1983. The court that wrote the opinion is indicated in the case heading; so in your discussion you can refer to the fact that the case is being heard by a particular mid-level appellate court or supreme court (state or federal). (See Hricik, p. 3, for more on citing legal sources.)

Full legal citation requires reference to both the "official" and "unofficial" printings, as well as the appellate court that wrote the opinion; for example 2d Cir. (the U.S. Court of Appeals for the Second Circuit), or Ariz. (the Arizona Supreme Court). But because your essays are being written to develop your skills in argument, rather than to stand up in court, you can dispense with such full citations here.

For sources other than cases, cite by providing their titles in the text of your discussion ("According to the 'Jury Instructions on Homicide' . . ." or "The Restatement of Torts, 2d specifies that..." or "We were guided in our deliberations by the judge's instructions on emotional distress...") and give the page number in parentheses. Because you probably won't have access to the document as originally reprinted, give page references for this book. If you don't mention the source in the body of your own text, cite it in parenthesis. Examples: (Restatement (Second) of Torts, 2d, 116 (1965)) or ("Jury Instructions on Emotional Distress" 23).

Your instructor may prefer citations to appear in footnotes. If you have a wordprocessing program that can handle footnotes (such as Microsoft Word), pull down the "Insert" menu at the point you want to insert a footnote. Select "footnote" from the menu. The screen will split, a footnote number will automatically appear in both the upper screen (the text section) and the lower screen (the footnote section, which will appear at the bottom of the page). Type your footnote in the lower screen. The program will automatically number footnotes consecutively and keep them on the same page as their numbered references in the text. (Note: in MS Word, you must be in "Page Layout" or "Print Layout" view to see footnotes.) Acknowledgments

To the many people who have encouraged and assisted me throughout the development of this project I extend my grateful thanks. Those who reviewed the early and later stages of the manuscript and offered numerous insightful suggestions include Beverly Brand, Southwest Texas State University; John C. Briggs, University of California, Riverside; Kim Donehower, University of Maryland; George Gadda, UCLA; Richard Grande, Pennsylvania State University; John F Jebb, University of Delaware; Susan L. Hoffman, Indiana State University; Catherine Metcalf, California State University, Fullerton; Joan Latchaw, University of Nebraska at Omaha; Troy Nordman, Butler County Community College; Elizabeth Roeger, Shawnee Community College; Daniel Scripture, University of California, Santa Cruz; and Paul J. Voss, Georgia State University. My thanks also to the staff of the Ventura County Law Library, in Ventura, California, where most of the research for Making the Case was conducted.

Amy Atchison, law librarian at the University of Southern California and currently at the Rand Corporation in Santa Monica, California, directed me to numerous legal reference materials and was always cheerfully available to assist me in locating obscure and yet unpublished cases and to suggest additional sources. She also reviewed the draft manuscript. Thanks also to my friend and colleague in the University of California, Santa Barbara, Writing Program, Leonard Tourney, who allowed me to sit in on his legal writing course in preparation for teaching the course myself, who provided me with numerous ideas for this project at various stages in its preparation, who reviewed the entire manuscript, and who created and generously provided some of the essay topics that appear in Chapter 2. My students Alyssa Mellott and Mark Tseselsky worked exceptionally hard and diligently under tight deadlines to compose and revise the model student papers that appear in Chapters 3 through 7. These papers clearly illustrate how to do many of the typical writing assignments accompanying the cases in this book. Their commentary upon their own processes of writing and rewriting is a particular highlight of their work.

My gratitude to my editors at Prentice Hall, Leah Jewell and Corey Good, who enthusiastically supported this project and offered expert editorial guidance and suggestions, and to project manager Alison Gnerre and editorial assistant Jennifer Collins at Prentice Hall. Finally, my thanks to my wife, Bonnie, who suggested the psychological material in Chapter 3, who helped me make some tough decisions about which cases to keep and which to drop, and who endured numerous phone calls assuring her that I'd be home from the library as soon as I checked out "one last batch" of cases.

Laurence Behrens
University of California, Santa Barbara

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Table of Contents

A Note on the Appeals Process and the Case Descriptions in this Book.

Case Outcomes. Note to Instructors. Citing Sources. Acknowledgments.

1. Law and Society.

The American Legal System, David Hricik. A Crumbling Hive of Humanity Fit for Dickens, David Ferrell. Gulliver on Lawyers, Jonathan Swift. About Real Lawyers, Victor A. Fleming. The Great Perini, Scott Turow. The Memo, Cameron Stracher. A Young Corporate Lawyer Burns Out, William R. Keates. The Imperfection of Law and the Death of Lilly, Ji-Zhou Zhou. To Work for Social Change, Robert C. Johnson, Jr., and Richard W. Moll. Mr. Havlena's Verdict, Karek Capek.

2. Arguing Effectively.

C: How to Argue Your Case Systematically and Logically, Veda R. Charrow, Myra K. Erhardt, and Robert P. Charrow. Plain English, Richard C. Wydick. Ways to Know If Your Story Is Ready to Tell in Court, Joel ben Izzy.

Stories and Exercises I.

Three Quick Writes, Charlie and Jack, Red and Sue, Roman Round, George and Mabel, Jones and Green, Baker and Abba, Mrs. Trueblue, Eel O'Brien, Abner and Judy, Sample Answer: Abner and Judy, Chris the Cocktail Waitress, Norman Brand and John O. White.

Stories and Exercises II.

A Short Guide to Writing Effective Issue Statements, Incident at the Airport, Sample Student Response: Incident at the Airport, Once in a Blue Moon, Jail Bird, Leonard Tourney. Models for the Opening Statement and the Closing Argument, Sheldon J. Stark, B. Henry Allgood

3. Emotional Distress.
Group 1 Readings: Introductory.

Take $2,000 and Call Me in the Morning, Howie Carr. The Case of the Tardy Rabbi. David Margolick. The Spelling Bee, McDonald v. Scripps Newspaper. Photojournalism, Ethics, and the Law, Mike Sherer. The Cat in the Casket, Corso v. Crawford Dog and Cat Hospital. Shunned by Jehovah's Witnesses, Paul v. Watchtower Bible and Tract Society of New York.

Judge's Instructions to the Jury: Intentional Infliction of Emotional Distress. For Deliberation and Argument.

Group 2 Readings: Insults and Financial Harassments.

Model Student Paper: Pay Up or We'll Kill Your Dog.

Lawrence v. Stanford and Ashland Terrace Animal Hospital.

Paper Topic. Commentary, Rough Draft. Commentary, Final Draft.

The Law on Intentional Infliction of Mental Distress.

The Abusive Motorman, Knoxville Traction Co. v. Lane.

The Law on Liability of Public Utility for Insults by Employees.

A Department Store Billing Nightmare, Moorhead v. J. C. Penney Co.

For Deliberation and Argument.

Group 3 Readings: Distress Caused by Sexual Predators.

Sexual Harassment, O'Connell v. Chasdi. Covert Videotaping, Boyles v. Kerr. A Case of Stalking, Troncalli v. Jones. The Reasonable Person, W. Paige Keaton. Arguing Pain and Suffering Damages in Summation: How to Inspire Jurors, Larry S. Stewart.

For Deliberation and Argument.

Group 4 Readings: Witnesses to Disaster.

Accident 1, Dillon v. Legg. Accident 2, Barnhill v. Davis. Accident 3, Portee v. Jaffee, Watson Elevator Company and Atlantic Elevator Company. Accident 4, Dunphy v. Gregor.

The Law on Unintentional and Negligent Infliction of Emotional Distress (NIED). Judge's Instructions to the Jury: Unintentional and Negligent Infliction of Emotional Distress (NIED). The "Thing Test" for NIED. The Psychology of Emotional Distress. For Deliberation and Argument.

4. Homicide.
Group 1 Readings: Introductory.

Model Student Paper: Domestic Tragedy, Commonwealth v. Carroll.

Paper Topic. Commentary, Final Draft.

Killing in a San Francisco Bar, People v. Dewberry. Teenagers and "Russian Poker," Commonwealth v. Malone. Chicago Gang Shooting, Toney v. Peters. A Mercy Killing?, State v. Forrest.

Jury Instructions on Murder and Manslaughter. For Deliberation and Argument.

Group 2 Readings: Vehicular Homicide.

Death on Highway 6, People v. Markham. Drunk Driving, Pears v. State. Teenage Jealousy, People v. Madison. The Epileptic Driver, People v. Spragney.

For Deliberation and Argument.

Group 3 Readings: Crimes of Passion.

The Deluded Doctor, Davis v. State. Sexual Escapades and Murder, People v. Spurlin. Two Men and a Woman, Whitsett v. State. The Desperate Law Student, State v. Thornton.

For Deliberation and Argument.

Group 4 Readings: Battered-Woman Syndrome.

"I Didn't Think I Would Do It," People v. Reeves. Defending the Battered Wife: A Challange for Defense Attorneys, B. Carter Thompson. Susan and Dwayne, State v. Daws.

Judge's Instruction to the Jury: Battered-Woman Syndrome.

The Abusive Doctor, Ibn-Tamas v. United States. "It Was Time to Get Out, Time to Leave," Lentz v. State. "Hit Him Again. Kill Him. Hit Him Again," State v. Smith.

For Deliberation and Argument.

Group 5 Readings: Felony Murder.

A Prison Breakout and the Death of a Family, Tison v. Arizona. Killing in a Gas Station, People v. Washington. Murder by Heart Attack, People v. Stamp. Burglary and Death, People v. Hickman.

For Deliberation and Argument.

5: Sexual Harassment.
Group 1 Readings: What Is Sexual Harassment?

Quid Pro Quo, Catherine A. MacKinnon. What Is Sexual Harassment?, Tracy O'Shea and Jane LaLonde. But Is It Harassment?, Monica E. McFadden.

For Deliberation and Argument.

Group 2 Readings: Two Hypothetical Scenarios.

Keeping a Sexual Harassment Journal. Courtroom Testimony: Hostile Work Environment at School.

Model Jury Instructions for Hostile Work Environment Harassment Case, B. Henry Allgood.

For Deliberation and Argument.

Group 3 Readings: Hostile Work Environment.

Model Student Paper: Abusive Words, Offensive Pictures, Zabkowicz v. West Bend Company.

Paper Topic. Commentary, Rough Draft. Commentary, Final Draft.

A Case of Male Sexual Harassment, Hopkins v. Baltimore Gas and Electric. The Abusive Cardiologist, Kopp v. Samaritan Health System. The Love Letters, Ellison v. Brady. The Aftermath of Love, Carter v. Caring for the Homeless of Peekskill, Inc. and Foy. Statutory Law on Sexual Harassment, Title VII, Civil Rights Act of 1964; Code of Federal Regulations.

For Deliberation and Argument.

Group 4 Readings: Quid Pro Quo.

The Casting Couch, Stockett v. Tolin. Harassment at a Brokerage House?, Dockter v. Rudolf Wolff Futures. Female Manager Harasses Male Worker, EEOC v. Domino's Pizza. Retaliatory Discharge?, Tunis v. Corning Glass Works. A Case of Soured Love, Keppler v. Hinsdale Township High School. Model Jury Instructions for Quid Pro Quo Harassment Case, B. Henry Allgood.

For Deliberation and Argument.

6. Freedom of Speech.
Group 1 Readings: The Flag as Symbolic Speech.

"He Soaked it, Ignited it, and the Flag Burned," (Texas v. Johnson) Randall P. Bezanson. Oh, Say Can You See . . . the Point?, John Leo. Here's a Thought: Flag Amendment Is a Bad Idea, Benjamin Zycher. Georgia Governor Wants to Lower Confederate Flag, Eric Harrison and Edith Stanley. A Symbol of White Supremacy on the Georgia Flag?, Coleman v. Miller, Gov. of Georgia.

For Deliberation and Argument.

Group 2 Readings: Student Speech.

The Obscene Election Speech, Bethel School District v. Fraser (a minor). High Court to Test Student Free-Speech Rights, Philip Hager. Model Student Paper: The Censored High School Newspaper, Hazelwood School District v. Kuhlmeier.

Paper Topic. Commentary, Rough Draft. Second Draft. Commentary, Final Draft.

Cissy Lacks: A Teacher Who Didn't Play Safe, James Nicholson. "The Profanity Queen," Lacks v. Ferguson Reorganized School District.

For Deliberation and Argument.

Group 3 Readings: Student Dress and Hair Codes.

Illegal Arm Bands, Tinker v. Des Moines Independent Community School District. Coed Naked Band: Do It to the Rhythm T-Shirts, Pyle v. South Hadley School Committee. The Hostility of Long Hair, Brownlee v. Bradley County Board of Education. Hair and the War, Church v. Board of Education of Saline Area School District.

For Deliberation and Argument.

7. Search and Seizure.
Group 1 Readings: A Hypothetical Scenario of Arrest and Excessive Force.

Courtroom Testimony. Statutory Law. Jury Instructions. Case Law. For Deliberation and Argument.

Group 2 Readings: Police Brutality.

Shoot to Kill!, Palmer v. Hall. Death in the Dredge Pond, Franklin v. City of Boise. "An Inflammable Situation," Lewis v. Downs. "You're Going to Have to Kill Me," Wyche v. City of Franklinton. Detained and Abandoned, Courson v. McMillian.

For Deliberation and Argument.

Group 3 Readings: Searches of Students.

Case Law.

Model Student Paper: Search the Locker, State v. Engerud.

Paper Topic. Commentary, Final Draft.

"You Lied to Me," New Jersey v. T.L.O. "Truancy. That's What I Was Trying to Establish," Coronado v. State. Athletes and Drug Testing, Vernonia School District v. Acton. Illegal Strip Search?, Williams v. Ellington. Cocaine in the Flashlight, People v. Dilworth. Of Guns and Metal Detectors, People v. Pruitt, Cheatham, and Brooks.

For Deliberation and Argument.

8. A Legal Grab Bag.

Broken Engagements.

White v. Finch. Coconis v. Christakis. Lyle v. Durhham.

For Deliberation and Argument. Hot Coffee Spills.

Harris v. Black. Pasela v. Brown Derby, Inc. Rudees v. Delta Airlines. Nadel v. Burger King.

Statutory Law. Jury Instructions on Negligence. For Deliberation and Argument. Parental Responsibility for Destructive Acts by Children.

When the Sins of the Child Point to Parents, Law's Grip is Tenuous, Kim Murphy and Melissa Healy.

The Law on the Duty of Parent to Control Conduct of Child.

Costa v. Hicks. Moore v. Crumpton. Reida v. Lund.

California Civil Code.

Robertson v. Wentz.

For Deliberation and Argument. Aborted Crimes.

Commonwealth v. Perry.

Case Law.

Commonwealth v. Mangula. May v. State. People v. Staples.

California Penal Code. For Deliberation and Argument. High School Sports Injuries.

Whipple v. Salvation Army.

Statements of Law on Assumption of Risk, Negligence.

Grant v. Lake Oswego School District. Clary v. Alexander County Board of Education. Lynch v. Board of Education of Collinsville Community Unit.

School District. For Deliberation and Argument.

Glossary of Legal Terms.Credits.Index.

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Preface

Preface

Making the Case is a composition reader focused on legal issues. It aims to help you develop your skills in written argument by stimulating you to think and write about compelling cases that have actually appeared before the courts.

You may have an image of the law as impossibly complex, musty, and boring, and—let's face it—much of it is, even to lawyers. But if you peer beneath the sometimes intimidating language-here reduced to a bare minimum-you can often discern the outlines of intense human drama. Viewed in one way, legal cases are stories. They are morality tales. A has done something wrong to B. B claims injury. A denies the charge. A may be a person or a company. B may be a person, or a company, or the government—speaking for "the people." A and B hire champions to argue their cases. An impartial judge and jury hear the opposing arguments. They take account of the facts. They take account of the law that applies to these facts. And they make a decision. Using the material in this book, you will be called on to make these decisions—and to explain why you decided as you did.

Legal cases are rooted in conflicts, and most conflicts are inherently dramatic and interesting. These conflicts often raise questions about our duties and responsibilities to other people and to society at large. Writing about legal disputes is an ideal approach to developing your skills at logical thought and argument. Roleplaying as jury members, as prosecutors, or as defense attorneys, you make claims (that is, arrive at verdicts) based on support (the facts and evidence of the case itself), and apply standards (the relevant laws). Writing about cases tends to be purposeful—in terms of arguing for a particular verdict—even as it implies larger ethical questions. And, usually, writing essays about particular cases is more enjoyable than writing about more general or theoretical issues.

Each chapter in this book focuses on a particular issue and comprises groups of related readings. While the main chapters focus on broad issues such as homicide, freedom of speech, and sexual harassment, a series of brief segments at the end of the book focuses on narrower issues: high school athletic injuries, hot coffee spills, parental responsibility for the destructive acts of their children. Each group of readings and cases focuses on a particular aspect of the issue in question. By reading and discussing such related cases, you may see how judgments on aspects of an issue (for instance, harsh and insulting language in emotional distress cases or the particular conditions of a claimed hostile work environment) are affected by the specific circumstances of the case, and you can compare and contrast such cases—in effect, using your judgments about one case as precedent for your judgments on another.

More general reading selections in each major chapter provide social, psychological, or historical contexts for the issue in question. For example, a chapter dealing with sexual harassment includes not only cases of sexual harassment that have been taken up by courts, and sections from the relevant statutes and the judge's instructions to the jury, but also passages from books or articles on the matter. Beginning with Chapter 3, each group of reading selections is preceded by an introductory headnote and is followed by a set of discussion and writing assignments: "For Deliberation and Argument."

Making the Case therefore allows you to practice the essential college-level and professional skills of analysis (applying one or more general principles or rules to one or more specific cases), comparison-contrast (examining key similarities and differences), summary (summarizing the relevant case or cases and the legal principles that apply), narration (relating the key events), definition (defining key legal concepts, such as negligence or malice), and evaluation (examining the evidence and determining how well it supports the conclusion being argued).

The texts of cases treated in Making the Case are drawn largely from primary sources on the law. The facts of each case derive from the narrative—and generally highly readable and interesting—sections of court decisions. These narratives are followed by extracts of the law that apply to that case, drawn from relevant codes and statutes and from the judge's instructions to the jury—instructions designed to explain key terms and concepts to people untrained in the law.

To encourage you to compose logical, well-supported, and well-written essays, Making the Case will introduce you to the IRAC (Issue, Rule, Application, Conclusion) approach to composing arguments. A typical writing assignment asks you to render a verdict on the case, explaining your reasoning in IRAC format. Often you will be asked to role-play—sometimes as a member of a jury, sometimes as a prosecutor or defense attorney faced with the task of writing a memo to your superiors or a closing argument to a jury. Other assignments are less structured, allowing you to explore the moral or personal dimensions of the case.

The opening chapter on law and society sets the law into the context of larger social concerns; selections explain how the American court system operates and how a variety of people view the world of law and lawyers. The second chapter focuses on composing arguments and provides a number of practical strategies for organizing your ideas and making your points effectively. A glossary of legal terms concludes the book.

In their readability and inherent interest, the cases presented in this book are not representative of those typically found in legal casebooks. But that is intentional. Someone once defined drama as life without the boring parts. You are about to plunge into the world of law—without the boring parts.

A Note on the Appeals Process and the Case Descriptions in this Book

Most of the cases that appear in this book are culled from appellate court decisions—also called opinions—published in legal volumes called reporters.

Civil and criminal trials are conducted in lower courts, such as municipal courts, small claims courts, family courts, district courts, or superior courts. The party that sues is called the plaintiff; the party being sued is called the defendant. In some cases a trial court judge will, upon petition by the defendant, dismiss the case without trying it or hearing testimony. This summary judgment is handed down if the judge agrees with the defendant that the plaintiff does not have a cause of action—that is, cannot offer facts that, assuming they are true, show that the defendant has breached a legal duty. (For a fuller description of the American legal process, see Hricik, pp. 2-11).

A defendant who loses in a civil case is found liable and is subject to payment of monetary damages to the plaintiff. Examples of civil offences include assault, battery, infliction of emotional distress, trespass, negligence, invasion of privacy, defamation, violation of civil rights, fraud, breach of contract, and wrongful death. A defendant who loses in a criminal case is found guilty and is subject (depending on the seriousness of the offense) to payment of a fine, imprisonment, or in extreme cases, death. Examples of criminal offenses include burglary, robbery, extortion, rape, arson, kidnapping, and homicide.

Generally, the proceedings of lower court trials are not published, although transcripts are available from the court clerk. The losing party in the trial— the plaintiff or the defendant—may appeal the verdict, or a summary judgment, to the next higher level court, the appellate court. (The first name in a case—as in Smith v. Jones—is the name of either the original plaintiff, or, in some jurisdictions, if the case has been appealed, the petitioner for appeal. Thus, if Smith sues Jones, and Jones then loses and subsequently appeals, the appellate case may be called Jones v. Smith. If the appeals court reverses the trial court and finds for Jones, and then Smith appeals to a still higher court, the case once again may become Smith v. Jones.) If the court accepts the appeal—and it may not—the panel of judges constituting the appellate court will review the record of the case, as conducted in the trial court, along with the associated evidence, and will render a decision (representing the judgment of a majority of its members), either affirming the verdict of the trial court or reversing it. Appellate judges do not hear additional testimony from witnesses or gather additional evidence. The appeals court has none of the traditional "courtroom drama" of the trial court. The judges on the court render their judgment on the basis of briefs and oral arguments by the attorneys for the plaintiffs) and the defendant(s), as well as amicus curiae briefs (those submitted by interested parties) and of course the transcript of the trial itself. They base their legal analysis on both sstatutory law (passed by legislatures) and case law (legal opinions by judges that serve as precedent for future cases).

An appellate court may reverse a verdict if it believes that the trial judge has erred in interpreting or applying the law, or if it decides that there is a compelling reason to overturn precedent established by lower courts. If the trial court verdict is partially or entirely reversed, the appeals court may remand the case back to the lower court for retrial. In such a case, the trial court judge is bound to follow the rulings of the appellate court. This may result in a different verdict, though of course the jury is free to render whatever verdict it thinks right.

Appellate court rulings are generally published in legal journals called reporters (such as the Federal Reporter, the Pacific Reporter, or the Northwestern Reporter), which are available at any law library. (When you see rows and rows of uniform-looking legal volumes behind a judge or attorney on TV or in the movies, you're generally looking at bound collections of reporters.) Judgments of intermediate appeals courts may be appealed to the state supreme court or (if the case has been tried in federal courts) to the U.S. Supreme Court. At any point in the trial or appeal process, the parties in a civil case may decide by mutual agreement to reach a settlement. Settlements avoid the time and expense of further court action. The fact that so many cases are either remanded back to trial court or settled out of court (in which case the results are not readily available) sometimes makes it difficult to determine the ultimate outcome of a case.

The case descriptions in this book are excerpted from those sections of the opinions, generally near the beginning, in which the judge or judges hearing the appeal summarize the facts of the case before beginning their legal analyses. In these legal analyses, the judges apply the law to the facts of the case—generally in modified IRAC format (see Charrow, Erhardt, and Charrow, pp. 59-72) before arriving at their conclusions and their decisions. These analyses have been omitted from the case descriptions in the text, although sections of them show up in the case law accompanying a set of readings in a group.

Case Outcomes

Also omitted from the case descriptions are accounts of how the cases turned out—or at least (since, as noted earlier, ultimate case outcomes are sometimes difficult to determine) how the appellate courts ruled. This is an intentional omission made to avoid biasing your responses to the facts of a given case. If you know in advance what the appellate court decided, there is a strong possibility that you might adopt that conclusion as your own and tailor your reasoning to support the court's decision. If, on the other hand, you don't know how the court ruled, then the question of whether the plaintiff or the defendant has a stronger case becomes a much more open one. For the purpose of this text, it's much less important that you come to the "right" decision or predict the winner than that you undertake to argue logically—to systematically apply general principles to specific facts in order to arrive at logical conclusions.

If, at the end of this process, your curiosity about a given case simply must be satisfied, ask your instructor, who can then consult the Instructor's Manual and tell you how the appellate court ruled.

Note to Instructors

The Instructor's Manual may also be accessed through the Prentice Hall Web site: www.prenhall.com/english. For a passcode to the Instructor's section, contact your Prentice Hall Representative.

Citing Sources

In writing about the cases in this book, credit your sources as follows:

Give the full citation only once, the first time you mention the case. (On subsequent mention, you can give an abbreviated reference, such as People v. Markham or simply Markham and the appropriate page number.) After the case name (in italics or underlined) insert the legal volume citation and the date of the case, which is provided in this book at the bottom of the first page on which the case is reprinted. Example: Lawrence v. Stanford, 655 S.W 2d 927 (1983) or Commonwealth v. Carroll, 194 A.2d 911 (1963). The first citation means that the case appears in volume 655 of the Southwestern Reporter, Second Series, beginning on page 927, and was decided by the court in 1983. The court that wrote the opinion is indicated in the case heading; so in your discussion you can refer to the fact that the case is being heard by a particular mid-level appellate court or supreme court (state or federal). (See Hricik, p. 3, for more on citing legal sources.)

Full legal citation requires reference to both the "official" and "unofficial" printings, as well as the appellate court that wrote the opinion; for example 2d Cir. (the U.S. Court of Appeals for the Second Circuit), or Ariz. (the Arizona Supreme Court). But because your essays are being written to develop your skills in argument, rather than to stand up in court, you can dispense with such full citations here.

For sources other than cases, cite by providing their titles in the text of your discussion ("According to the 'Jury Instructions on Homicide' . . ." or "The Restatement of Torts, 2d specifies that..." or "We were guided in our deliberations by the judge's instructions on emotional distress...") and give the page number in parentheses. Because you probably won't have access to the document as originally reprinted, give page references for this book. If you don't mention the source in the body of your own text, cite it in parenthesis. Examples: (Restatement (Second) of Torts, 2d, 116 (1965)) or ("Jury Instructions on Emotional Distress" 23).

Your instructor may prefer citations to appear in footnotes. If you have a wordprocessing program that can handle footnotes (such as Microsoft Word), pull down the "Insert" menu at the point you want to insert a footnote. Select "footnote" from the menu. The screen will split, a footnote number will automatically appear in both the upper screen (the text section) and the lower screen (the footnote section, which will appear at the bottom of the page). Type your footnote in the lower screen. The program will automatically number footnotes consecutively and keep them on the same page as their numbered references in the text. (Note: in MS Word, you must be in "Page Layout" or "Print Layout" view to see footnotes.)

Acknowledgments

To the many people who have encouraged and assisted me throughout the development of this project I extend my grateful thanks. Those who reviewed the early and later stages of the manuscript and offered numerous insightful suggestions include Beverly Brand, Southwest Texas State University; John C. Briggs, University of California, Riverside; Kim Donehower, University of Maryland; George Gadda, UCLA; Richard Grande, Pennsylvania State University; John F Jebb, University of Delaware; Susan L. Hoffman, Indiana State University; Catherine Metcalf, California State University, Fullerton; Joan Latchaw, University of Nebraska at Omaha; Troy Nordman, Butler County Community College; Elizabeth Roeger, Shawnee Community College; Daniel Scripture, University of California, Santa Cruz; and Paul J. Voss, Georgia State University. My thanks also to the staff of the Ventura County Law Library, in Ventura, California, where most of the research for Making the Case was conducted.

Amy Atchison, law librarian at the University of Southern California and currently at the Rand Corporation in Santa Monica, California, directed me to numerous legal reference materials and was always cheerfully available to assist me in locating obscure and yet unpublished cases and to suggest additional sources. She also reviewed the draft manuscript. Thanks also to my friend and colleague in the University of California, Santa Barbara, Writing Program, Leonard Tourney, who allowed me to sit in on his legal writing course in preparation for teaching the course myself, who provided me with numerous ideas for this project at various stages in its preparation, who reviewed the entire manuscript, and who created and generously provided some of the essay topics that appear in Chapter 2. My students Alyssa Mellott and Mark Tseselsky worked exceptionally hard and diligently under tight deadlines to compose and revise the model student papers that appear in Chapters 3 through 7. These papers clearly illustrate how to do many of the typical writing assignments accompanying the cases in this book. Their commentary upon their own processes of writing and rewriting is a particular highlight of their work.

My gratitude to my editors at Prentice Hall, Leah Jewell and Corey Good, who enthusiastically supported this project and offered expert editorial guidance and suggestions, and to project manager Alison Gnerre and editorial assistant Jennifer Collins at Prentice Hall. Finally, my thanks to my wife, Bonnie, who suggested the psychological material in Chapter 3, who helped me make some tough decisions about which cases to keep and which to drop, and who endured numerous phone calls assuring her that I'd be home from the library as soon as I checked out "one last batch" of cases.

Laurence Behrens
University of California, Santa Barbara

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