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About the Authors vii
firm that provides negotiation, ethics, and team training Professor Barkacs currently spends her time teach-
for the private sector. Professor Barkacs has published ing, publishing, consulting for The Barkacs Group,
numerous journal articles in the areas of law, ethics, and doing volunteer work for various civic causes. She
and negotiation. She and her husband are coauthoring enjoys walking, weight lifting, and spending her free
a book on negotiation. She has been the president, vice time with her husband Craig and their three cats, Phoe-
president, conference chair, and treasurer of the Pacific nix, Violet, and Vanessa.
Southwest Academy of Legal Studies in Business
(www.pswalsb.net).
A Guided Tour
We are full of gratitude to the reviewers, adopters, and students who have stimulated us to
create this fresh and improved 4th edition of Dynamic Business Law. Any book is a work in
progress, and certainly this one is no exception. It is humbling indeed to check and proof-
read and study, but still omit things that should be included and fail to adequately explain
what we do include. But with your assistance, we feel we have a much better book now.
We have constructed a book that is both comprehensive and readable. But the features
integrated into the chapters provide its distinctive worth. Each feature stands by itself as an
aid to the kind of learning we hope to encourage. Yet the features are also a cohesive unit,
Confirming Pages
contributing both to the liberal education of the students who use this book and to their
skills as decision makers in a market economy.
Specifically, we provide a comprehensive examination of all the relevant questions,
concepts, and legal rules of business law. Our text addresses the power and authority
8 Part 1 The Legal Environment of Business
of constitutions, statutes, case law, and treaties as sources of law. Together the various
elements of what we call “the law” make up the foundation and structure of the market
3. The arbitrator refused to postpone the hearing despite sufficient cause, refused to hear
relevant evidence, orexchange process.to prejudice the rights of one of the parties.
otherwise misbehaved
4. The arbitrator exceeded Decisions to trade
his or her authority andtoproduce
or failed requireto trust—trust
use that authority make a that consumers, firms, workers,
mutual, final, and definite award.
financial institutions, and asset owners will do as they promise and that violations of such
The U.S. Supreme Court has held that these four grounds are the exclusive grounds
promises will be unacceptable in the marketplace. Without guarantees that promises will
for vacating, modifying, or correcting an arbitrator’s award, and parties cannot expand
be kept,
on these grounds in contract. 10 market exchanges
Consequently, in the United would
States, grind to adecisions
arbitration halt. Business law provides these guarantees
are generally upheld. Other
andcountries are taking actions
the boundaries withinto which
increase certain
the number of arbitra-can be made and enforced.
promises
tions, while reducing the need to appeal the arbitration decisions. For example, Brazilian
lawmakers reformed severalMarket
articles indecisions
the Brazilianare
Civilmade
Code to inincrease
a context—a
the practicepersistently
of changing context. The law, in
arbitration. These reformsturn, is dynamic
mandate insign
that parties response. New commitment”
an “arbitration technologies and business practices bring new disputes
during
arbitration proceedings. This commitment states the disputed issue, the venue of the arbi-
over rights and responsibilities in a business setting. Future business leaders need knowl-
tration, and the parties involved. The arbitration commitment renders the outcome of the
arbitration comparable toedge of existing
a decision business
handed down by thelaw, as well
judiciary asConsequently,
branch. a set of skills permitting them to adjust efficiently
parties no longer need toand
appeal to the judiciary branch after an arbitration hearing.
effectively to new legal issues that arise over the course of their careers.
We are excited
Legal Principle: An arbitration award can about
be setthe contents
aside for onlyoffour
ourreasons:
features and want to explain the function of
(1) the award resulted from fraud or corruption; (2) the arbitrator is biased or
corrupt; (3) the arbitrator misbehaved in a way that prejudiced the rights of a party; in business.
each of them in preparing our students for leadership
and (4) the arbitrator misused his authority in the making of the award.
A. BUT WHAT IF. . .

B U T W H AT I F . . . The “But What If” feature is
WHAT IF THE FACTS OF THE CASE OPENER WERE DIFFERENT?
designed to promote critical think-
Let’s say, in the Case Opener, that Hooters and Phillips had settled through arbitra-
tion. The arbitrator awarded Hooters a sum of money yet did not give any reasons or ing by providing students with
hypothetical variations on the fact
cite any laws to support the decision. Is the lack of justification legal? What could Phillips
do in response to the decision?
patterns outlined in real cases. This
feature takes advantage of what we
Advantages and Disadvantages of Arbitration. Arbitration may be preferable to
were taught so regularly in law school: Change the factual context and the legal conclu-
litigation for several reasons. First, arbitration is more efficient and less expensive than
sion
litigation. For example, on Maymay wellGoogle
11, 2005, shiftfiled
along with the
a complaint withfact pattern.
the National The “But What If” hypotheticals should
Arbi-
tration Forum because another partystudents’
heighten had registered the following
sensitivity to Internet
the domain names:
importance of details in legal reasoning.
11
googkle.com, ghoogle.com, gfoogle.com, and gooigle.com. Less than two months later,
an arbitration panel concluded that these domain names were confusingly similar to the
google.com trademark and that they had been registered in bad faith. Consequently, the
panel determined that the googkle.com, ghoogle.com, gfoogle.com, and gooigle.com
domain names be transferred to Google.
Second, parties have more control over the process of dispute resolution through arbi-
tration. They choose the arbitrator and determine how formal the process will be. Third,
the parties can choose someone to serve as the arbitrator who has expertise in the specific
viii subject matter. Because the arbitrator has expertise, the parties believe that the arbitra-
tor will be able to make a better decision. Fourth, the arbitrator has greater flexibility in
decision making than a judge has. Unlike judges, who are bound by precedent, arbitrators
generally do not have to offer reasons for their decisions.
A Guided Tour ix
Confirming Pages
B. COMPARING THE LAW OF

OTHER COUNTRIES BOXES
This feature highlights the emerging, C O M PA R I N G T H E L AW O F O T H E R C O U N T R I E S
interconnected global market. Each ADR IN JAPAN
chapter contains multiple “Comparing Some judges, lawyers, and politicians in the United States advo- intervention, has been a part of Japanese culture for hundreds
cate the adoption of Japan’s ADR techniques into the U.S. judiciary of years. In modern times, conciliation committees consist of one
system. The techniques come in three forms: compromise, concili- judge and two appointed members of the community. Acceptance
the Law of Other Countries” boxes. ation, and arbitration. of the committee’s recommendation is not necessary, but if the
Compromise (wakai) is defined as a contractual agreement parties wish to concede, the recommendation has the force of a
Because so many market decisions are between parties that becomes the basis for a voluntary settlement. Due judgment.
to the voluntary nature, no compromise is possible if one party does not The final type of ADR is arbitration (chusai). The arbitration
made in an international context, future wish to settle. Compromise may be proposed at three distinct times. procedure in Japan is markedly similar to that in the United States.
First, a simple compromise may be reached before the initiation of a A two- or three-judge panel reaches a recommendation that is a
business leaders need to familiarize suit. Second, after initiation, but before litigation, the parties may appear binding decision.
in court and present a compromise. Such a compromise is legally bind- The success and popularity of all three types of ADR in Japan
ing on both parties. Third, parties may compromise during litigation, are attributed to the attitudes of the citizens. People in Japan are
themselves with the likelihood that a which is when most compromises occur. It has been estimated that reluctant to bring a lawsuit against a fellow citizen. To them, using
nearly one-third of all disputes are settled using compromise. ADR is a less brash way to resolve a dispute than suing someone
particular legal principle essential to The second ADR technique used in Japan is conciliation outright. Obviously, this attitude is quite distinct from that of the
(chotei). Conciliation, reaching compromise through a third party’s American legal culture.
doing business in one country may not
be appropriate in other countries. The “Comparing the Law of Other Countries” boxes
have settlement authority. Third, the procedures of the minitrial can be modified to meet
provide heightened awareness of this likelihood by illustrating how more preciselyunique the needs the
of thelaw
parties.in a
For example, parties may give the neutral adviser
the authority to settle the case if the representatives cannot come to a settlement agreement
certain country often is. After reading dozens of these “stories ofafter difference,”
a certain period of time. readers will
certainly better understand the need to discover relevant law in all EAR jurisdictions
LY NEU TR AL EVALUATI where their ON
market decisions have legal implications. With early neutral evaluation, sometimes called early neutral case evaluation, the parties
select a neutral third party and explain their respective positions to this neutral, who then
We believe that students learn innumerable valuable lessons about U.S. business law by in the Northern District of California,
evaluates the strengths and weaknesses of the case. The parties use this evaluation to reach
a settlement. Early neutral evaluation was pioneered
20
contrasting the concepts of our business law system with those of our primary trading part-
and is now used in a number of other federal courts.
ners. We typically use Canada, Japan, China, Russia, Mexico, andPSeveral thestates European
R I VATE TR I ALS
Union for
now allow private trials, an ADR method in which a referee is selected and
our comparisons because modern business managers will more likely paid by thebe interacting
disputing parties to offer awith
legally binding judgment in a dispute. The referees
do not have to have any specific training; however, because retired judges often serve as
the law in those particular jurisdictions. referees, this method is often referred to as “rent-a-judge.”
Generally, a private trial occurs after a case has been filed in district or state court.
After the parties have engaged in discovery and developed their positions, the parties may
choose to participate in a private trial. The parties would typically notify the trialPages
Confirming judge
overseeing their case that they are participating in a private trial. The disputing parties
C. E-COMMERCE BOXES determine the time and place of the trial and conduct the trial in private to ensure confi-
dentiality. The referee writes a report stating the findings of fact and the conclusions of the
A central feature of modern business law. This report is filed with the trial judge; however, if any party is dissatisfied with the
resolution of the case, the party can request a trial before a trial court judge. If this request
decisions is new technology, specifi- E-COMMER Cis E
denied,
A NtheDpartyT can
H Eappeal
L AtheWdecision of the referee.
cally the rapid spread of electronic TORT LAW VERSUS CRIMINAL LAW TO IMPROVE THE ONLINE
PERSONALS INDUSTRY
20
Neutral Evaluation: A Technique Whose Time has C, available at: http://corporate.findlaw.com/litigation-disputes/neutral-
evaluation-an-adr-technique-whose-time-has-come.htmlome
commerce. This development has cre- Suppose your ex-boyfriend posed as you on a number of online per- You might be able to pursue the creator of the website,
88 sites, such as iwantu.com. He posted what he described as your depending on how the facts play out and on your state’s law.
sonals
ated new challenges and opportuni- rape fantasies and listed your name and address. He then encouraged You might be able to sue for defamation, false-light invasion
men to act out your fantasies in person. Would you be afraid? How of privacy, negligence, and/or intentional infliction of emo-
ties that were unforeseeable until very might criminal law respond? Could tort law also help you? In a real tional distress. You will face an uphill battle, though, in meeting
case in 1992, Gary Dellapenta, the ex-boyfriend, was sentenced to six your burden of proof. In the mid-1990s, Ken Zeran brought tort
recently. With each edition, we are years in prison for violating California’s then new cyberstalking law. claims against a radio station that broadcast untrue information
If someone were threatening you as Dellapenta threatened his suggesting he was selling T-shirts and other items with insen-
kub23585_ch04_0070-0095.indd 88 08/25/16 04:14 AM
enhancing our coverage of technology ex-girlfriend, you might want the creator of the website and/or an sitive remarks about the Oklahoma City bombing of a federal
Internet service provider to assist you in pulling the posts before building. Zeran was unable to prove any of the torts he alleged.
related changes in the law.

harm occurs. Unfortunately, Internet service providers are exempt Perhaps as cyberstalking becomes more prevalent, and more
from liability under tort law if they fail to respond to your concerns. frightening, tort law will change to provide more protection
The Communications Decency Act of 1996 outlined this exemption. to victims.
Our initial approach was to construct an e-commerce chapter that stood by itself. But
the more we thought about that approach and listened to our reviewers, we decided to place
Legal Principle: When a person temporarily deprives another of the use and
E-Commerce boxes in most of our chapters, as well as to integrate the ofe-commerce
enjoyment his personal property, mate-
a trespass to property occurs; if that deprivation
becomes permanent, conversion has occurred.
rial throughout relevant chapters. By this infusion approach, we think we can best convince
I NTENTI O NAL TO RTS AGAI NST ECO NO M I C I NTERESTS
students of the pervasive influence of this new, complicating aspect of business
All businesspersons should be decisions.
familiar with the torts against economic interest. The five
most common torts against economic interests, frequently referred to as “business torts,”
are disparagement, intentional interference with contract, unfair competition, misappro-
priation, and fraudulent misrepresentation. The first, disparagement, is similar to defama-
tion, because both torts involve the making of a false statement, but it is different because
it is a tort designed to protect one’s property interests, whereas defamation is designed to
protect one’s reputational interests.
The plaintiff in a disparagement case must prove that the defendant published a false
statement of a material fact about the plaintiff’s product or service that resulted in a loss
of sales. When such statements are criticisms of the quality, honesty, or reputation of the
business or product, the tort is sometimes called slander of quality (if spoken) or trade libel
(if printed). If the statements relate to ownership of the business property, it is slander of title.
Damages for disparagement are ordinarily based on a decrease in profits linked to the
publication of the false statement. A less common method is to demonstrate that the plain-
tiff had been negotiating a contract with a third party who lost interest shortly after publi-
cation of the false statement. The profits the plaintiff would have made on the contract are
the damages.
Some interesting variations of the tort of disparagement have developed. For example,
in 2007, California became the 13th state to recognize the tort of food disparagement,
which critics call “veggie libel.” Such laws provide ranchers and farmers with a cause of
action when someone knowingly makes false, damaging statements about a food product.
The California law was drafted in response to an incident during 2006 in which Taco Bell
executives wrongly identified green onions grown at Boskovich Farms in Oxnard as the
source of an E. coli outbreak that sickened 70 of the fast-food chain’s customers.
The most famous veggie-libel lawsuit was filed by a cattle rancher against talk-show
host Oprah Winfrey and one of her guests. During the broadcast at issue, Oprah said the
74 Part 1 The Legal Environment of Business
x A Guided Tour
relationship, mediation is popular because it allows parties to preserve their relation-
ship throughout the dispute. Mediation helps parties work together to reach a consensus.
Because parties are encouraged to communicate openly, they usually do not experience
bitterness toward the opposing party. Furthermore, each party typically leaves mediation
with a better understanding of the opposing party; consequently, this understanding may
actually facilitate a better working relationship between the parties. Therefore, the first D. CONNECTING TO THE CORE
advantage of mediation is that it helps disputing parties preserve their relationships.
The second advantage to mediation is the potential for creative solutions. The parties The business curriculum, as experienced by
are responsible for offering alternatives to solve problems. A party to mediation is often
not necessarily looking for a money award. Instead, that party may be trying to find a solu- students, can easily be seen as a collection
tion so that both parties can benefit from the resolution of the dispute.
In addition, parties to mediation have a high level of autonomy. Unlike liti-
of silos, with each silo, or academic depart-
To see how ADR relates to
gation or arbitration, where a neutral third party makes a decision that resolves
the dispute, mediation allows parties to take control of the process and resolve
ment, walled off from the others with its
resolving conflicts that arise in
the workplace, please see the
the dispute together. The parties generally have more dedication to the agree-
ment because they helped make the decision. Finally, mediation, like other
own special language and issues. But suc-
Connecting to the Core activity
in Connect.
methods of alternative dispute resolution, is less costly, less time-consuming,
and less complicated than litigation.
cessful business decisions start with the rec-
These benefits can obviously be very worthwhile. However, critics of medi-
ation argue that its informal process improperly creates an image of equality
ognition that decision makers should take
between the parties. Consequently, we improperly assume that the resulting agreement advantage of the interrelatedness of the vari-
between the parties is also equal. However, if one party has more power than the other, the
agreement is not necessarily fair or equal. Thus, the image of equality in mediation can be ous subject areas.
misleading. Furthermore, a party who knows that he or she has no chance of winning a
case could enter the mediation process in bad faith, with no intention of making an agree- The purpose of the Connecting to the
ment. Therefore, some people may abuse the mediation process in an attempt to simply
draw out the dispute. Core feature is to drive home the point that
Uses of Mediation. Mediation is used to resolve collective bargaining disputes. Because concepts from finance, accounting, market-
workers and employers must continue to work together, mediation typically helps preserve
the relationship between the workers and the employers. Under the National Labor Rela- ing, management, and economics are closely
tions Act (NLRA), a union must contact the Federal Mediation and Conciliation Services
to attempt to mediate its demands before beginning a strike to achieve higher wages or linked to concepts and dilemmas in business
better working hours.
Similarly, the law. The study
Equal Employment of business
Opportunity Commission law
(EEOC)isencourages
best seen the as a foundational component of the larger study
mediation of employment discrimination claims. The EEOC has a mediation program that
of business
uses mediators employed administration.
by the EEOC, This
as well as external mediators feature
trained in media-for the fourth edition has been placed on the web-
181,734 mediations.siteApproximately
assigned71to
tion and discrimination law. Between 1999 and 2014, the EEOC mediation program held
7 Dynamic
percent Business
of these mediations (129,924Law.
charges)
were successfully resolved.
Mediation is also commonly used in environmental disputes. For example, Japan has
created a committee, the Environmental Pollution Disputes Committee, devoted solely to
E. CRITICAL THINKING
the resolution of environmental disputes. This committee may use mediation or arbitra-
tion. Why is mediation particularly useful for environmental disputes? First, mediation
After each case in the book, we have provided critical-thinking questions to highlight the
allows for creative solutions and compromises, which are often needed in environmental
disputes. Suppose an endangered species makes its home on land that an entrepreneur
need to think critically about the reasoning used by the court. In addition, we include
recently purchased with the intention of building a bed-and-breakfast facility. Because the
7
in every chapter a Point / Counterpoint problem that encourages the reader to evaluate
“History of the EEOC Mediation Program,” www.eeoc.gov/mediate/history.html.
the conflicting reasoning surrounding a key issue in the chapter. Legal evolution occurs
through a process of curiosity, an awareness of new problems in the marketplace, and sen-
sitivity to rights and responsibilities that havePages
Confirming not been given proper attention.
But we do much more than just ask a lot of critical-thinking questions at particular
kub23585_ch04_0070-0095.indd 74
locations throughout the chapters. We encourage the use of a step-by-step critical-thinking
08/25/16 04:14 AM
approach that[continued] has been developed and used in classrooms in many countries. We do not
just
Variyam argues, and the court of repeatedly
appeals agreed, that urge
having a reputation for untruthfulness would “affect his
students
whereas the other doestoso “think critically.”
affect it.” Accordingly,
allegations that Variyam lacked veracity and dealt in half-
the Instead, we describe for them what is
meant by that phrase
relationship with other physicians that might send him
business or work.” The court of appeals noted that “[l]ike
in the context of business law. We include this step-by-step approach
truths do not adversely affect his fitness for proper conduct
as a physician.
in Appendix 1A attorythe
lawyers and bankers, a physician such as Variyam, by defi-
nition, depends greatly on his reputation.” But the inquiry
end of Chapter 1. Instructors who want to emphasize critical think-
In sum, Hancock’s statements . . . were not defama-
per se because they did not injure Variyam in his profes-
is not whether a reputation is necessary for a profession. If
that were true—because all professions require reputations
sion as a physician by ascribing that he lacked a necessary
skill peculiar or unique to the profession. Specifically, the ing can use that appendix as a struc-
of some sort—all statements defaming professionals would statements here regarded Variyam’s truthfulness, not the
be defamatory per se. Rather, the proper inquiry is whether lack of a necessary, peculiar skill which would render Vari- tured approach for learning how to
a defamatory statement accuses a professional of lacking yam unfit for proper conduct as a physician. Accordingly,
a peculiar or unique skill that is necessary for the proper to recover for defamation, Variyam was required to prove evaluate legal reasoning.
conduct of the profession. The specific trait of truthful- actual damages, which he did not do. There is no evidence
ness is not peculiar or unique to being a physician. As the of mental anguish because evidence that Variyam experi-
comments to the Restatement illustrate, “a charge that a enced some sleeplessness and other anxiety does not rise to
physician is dishonest in his fees is actionable, although the level of a substantial disruption in his daily routine or a
an imputation of dishonesty in other respects does not
affect his character or reputation as a physician.” . . . Like-
high degree of mental pain and distress. . . . Finally, because
Variyam did not establish actual damages, he cannot recover
F. ETHICAL REASONING
wise, “a statement that a physician consorts with harlots
is not actionable per se, although a charge that he makes
exemplary damages. Accordingly, we reverse the judgment
of the court of appeals and render judgment that Variyam
After each case in the book, we have
improper advances to his patients is actionable; the one
statement does not affect his reputation as a physician
take nothing.
Reversed in favor of Defendant
provided ethical reasoning questions
to highlight the need to think ethi-
cally about the reasoning used by the
CRITICAL THINKING ETHICAL DECISION MAKING
court. Throughout, our book empha-
What potential stakeholders are adversely affected? Which set of stakeholders would you weigh the heaviest
in deciding a case of this type? Why would you raise their sizes consideration of all stakeholder
interests above those of other relevant parties?
interests in every market decision.
If you say your boss is a tyrant or your roommate is a slob, are you in danger of being
sued for defamation? Probably not, because such statements are really subjective opinions
not capable of being proved. As such they are generally not actionable.
One of the important elements of defamation is that the defamatory statement must be
damaging to someone’s reputation, as the nearby Case Nugget illustrates.
The increase in communication over the Internet has presented new questions for the
law of defamation to answer. First, does a false statement made over the Internet constitute
defamation? Second, if it does, who can be held liable?
The court first attempted to answer these issues in the case of Cubby v. CompuServ,7
in which CompuServ was sued because of defamatory statements published on one of the
A Guided Tour xi
Business ethics should never be an afterthought or something firms consider because they
think they must.
Instead, business ethics is what provides the social legitimacy for markets, what dis-
tinguishes markets from the life of the jungle. While market decisions are calculating and
purposeful, they must at the same time reflect awareness that the good and the right pro-
vide social borders that elevate those decisions above simple greed and egoism.
Ethical discussion focuses on the basic observation that we are socially and globally
interdependent as entrepreneurs, asset owners, workers, businesspeople, and consumers.
Our inescapable contact with one another requires that our aspirations be defined, at least
in part, by their impact on others.
Our text has several ethical reasoning possibilities in each chapter. But for the reader
to make use of this emphasis requires a practical step-by-step approach. In other words,
students need more than just a discussion about values or ethics. They need to have some
sense that the discussion is headed somewhere. They want to know, “How will my behav-
ior be any more ethical after I have read the chapter and participated in the class discus-
sions?” Our text answers their question.
Chapter 2 provides a clear explanation of our approach—an approach that students can
use on a regular basis. The language and organization of our model of ethical reasoning
leans implicitly on standard ethical theories. But it meets the challenge of a fast-paced busi-
ness world. It pushes stakeholders to the forefront of market decisions, where they belong,
and does so in a manner that is both powerful and doable without becoming tedious.
Business ethics are the guidelines we use to shape the world we want to create. As
such, they provide guidance for the kind of business behavior we want to reinforce. After
each case excerpt, under the heading “Ethical Decision Making,” we pause to think about
the ethics of business law by asking a question or questions derived from the practical
approach to business ethics developed in Chapter 2. Because we want students to see stake-
holder interests as having numerous ethical dimensions, we have included frequent refer-
ences to the ethical questions arising in modern business enterprises throughout Dynamic
Business Law.
G. NEW TOPICAL AREAS

Reviewers have urged us to address immigration law and privacy issues in greater
detail. The fourth edition responds to that advice by expanded coverage of both those areas
of law. In the section in the the front matter where changes to the text for the fourth edition
are enumerated, readers can see several specific chapters where these topics have been
introduced and explained.
What’s New in the Fourth Edition?
New Topical Coverage
Reviewers have urged us to address immigration law and privacy issues in greater detail.
The fourth edition responds to that advice by expanded coverage of both those areas of law.
In the section in the front matter where changes to the text for the fourth edition are enu-
merated, readers can see several specific chapters where these topics have been introduced
and explained.
Changes to the Chapters

We received an incredible amount of feedback prior to writing the fourth edition of
Dynamic Business Law. The following list of changes and improvements is a testament to
our users and their commitment to making Dynamic Business Law the best content of its
kind.
Every chapter has new cases in the Questions & Problems section in response to sug-
gestions from adopters and reviewers of the third edition.
Chapter 1 An Introduction to Dynamic Business Law

∙ Updated the example of civil damages from a 1996 example to a 2009 example.
∙ In the section about Global and Comparative Law, a discussion of WTO was added to
the discussion of GATT.
∙ Changed an example of Administrative Law from a 1990s case to a 2015 Walmart case.
In this case, Walmart did not prevent employees from being crushed by a crowd of
2,000 shoppers.
Chapter 2 Business Ethics

∙ Provided the trial results for the case opener. In 2014, a New Jersey jury awarded Ken-
dall more than $1.5 million for medical expenses and punitive damages.
∙ Added an explanation of the similarity and difference between “ethical” and “legal.”
∙ Added United States of America et al. ex rel. Andrew Hagerty v. Cyberonics, Inc.
∙ Added “The Complexity of Business Ethics: The Story of Two Biotech CEOs.”
∙ Added new Point/Counterpoint “Do a firm’s ethical responsibilities extend beyond
maximization of profits?”
Chapter 3 The U.S. Legal System

∙ Added Case Nugget “Does a Statutory Violation Constitute an Injury to Satisfy the
Standing Requirement?”
∙ Added a section called “Forum Selection and Choice of Law.”
∙ Added new Supreme Court case Atlantic Marine Construction Company, Inc. v. United
States District Court for the Western District of Texas et al.
xii
What’s New in the Fourth Edition? xiii
Chapter 4 Alternative Dispute Resolution

∙ Added new Supreme Court case Nitro-Lift Technologies, L.L.C v. Howard.
∙ Added new Case Nugget “A Defeat for Consumers: DirecTV v. Imburgia.”
Chapter 5 Constitutional Principles

∙ Inserted new Supreme Court Fourth Amendment case David Leon Riley v. California
and United States v. Wurie, which involves privacy and discusses “balancing the right
to privacy with respect to data on one’s cell phone with security of police officers.”
∙ Added new Case Nugget Obergefell et al. v. Hodges, which is a case that required all
states to recognize same sex marriages.
Chapter 6 International and Comparative Law

∙ Replaced Exhibit 6-1 with “Summary of the ‘FCPA Top Ten’ List.”
∙ Updated membership in the WTO.
∙ Added new case Fallhowe v. Hilton Worldwide, Inc.
∙ Added new Case Nugget Forum Non Conveniens in Canada, Club Resorts v. Van Breda.
Chapter 7 Crime and the Business Community

∙ Changed Case Opener to “A Questionable Stock Investment.”
∙ Added new Case, United States of America v. Thomas Tanke.
∙ Added new Point/Counterpoint “Should Fraud Penalties be Based on a Doctrine of
‘Harm That the Defendant Purposefully Sought to Inflict?’”
Chapter 8 Tort Law

∙ Added new case Joseph E. Hanock, Petitioner v. Easwaran P. Variyam, Respondent.
∙ Added new invasion of privacy case involving television broadcaster Erin Andrews.
∙ Added new Point/Counterpoint “Should Medical Malpractice Awards be Capped?”
Chapter 9 Negligence and Strict Liability

∙ Added new case Swoboda v. Fontanetta.
∙ Added new Point/Counterpoint “Should the Creators of Violent Media Owe a Duty of
Care to Victims of Crimes Based on Violent Media?”
Chapter 10 Product Liability

∙ Added new case Kesner v. Pneumo Abex LLC.
Chapter 11 Liability of Accountants and Other Professionals

∙ Added new E-Commerce and the Law content, “Potential Liability of Professionals for
Data Stored on the Cloud.”
xiv What’s New in the Fourth Edition?
∙ Created new section called “Extending the Attorney-Client Privilege to Accountants.”

∙ Added new case United States of America v. Louis Kovel.
∙ Inserted new Point/Counterpoint “Should Lawyers be Required to Disclose Whether
They Possess Malpractice Insurance?”
Chapter 12 Intellectual Property

∙ Included new case In Re Simon Shiao Tam.
∙ Created new discussion of efforts by Taylor Swift, Donald Trump, Tim Tebow, and
Jeremy Lin to seek trademark protection for what some see as marks that might not
really serve the purpose of identifying a product with its producer.
∙ Inserted new E-Commerce content called “Changes to Copyright Law as Technology
Evolves.”
Chapter 13 Introduction to Contracts

∙ Added new case Wrench, LLC., Shields, and Rinks, LLC. v. Taco Bell.
∙ Inserted new Point/Counterpoint “Should Contract Law be Used to Enforce Surrogacy
Agreements?”
Chapter 14 Agreement
∙ Added new case, Paul Ehlen v. John M. and LynnDee Melvin.
∙ Created new E-Commerce and the Law content called “E-Signatures.”
Chapter 15 Consideration
∙ Added new Case Nugget about lack of consideration in an option contract.
∙ Added new case about promissory estoppel Bouton v. Byers.
Chapter 16 Capacity and Legality

∙ Added new case Adrian Lopez v. Kmart Corporation.
∙ Created new Point/Counterpoint “Should Employer-Employee Covenants Not to Com-
pete be Eliminated?”
Chapter 17 Legal Assent

∙ Added new case Fantastic Sams Salons Corp. v. Pstevo, LLC and Jeremy Baker.
∙ Included a second new case Tommy E. Porter v. Domtar Paper Company, LLC.
∙ Created new Point/Counterpoint “Should Contracts Made through Tweets be Legally
Binding?”
What’s New in the Fourth Edition? xv
Chapter 18 Contracts in Writing

∙ Added new case Heritage Constructors, Inc. v. Chrietzberg Electric, Inc., and Richard
Marc Chrietzberg.
∙ Inserted new Case Nugget “What is an ‘Interest in Land?’” Richard Sewing v. Steven
Wayne Bowman.
Chapter 19 Third-Party Rights to Contracts

∙ Added discussion of high interest topic, third-party beneficiaries and agreements to
arbitrate, and added a new case in which the court addresses that issue, Case 19-3, Juan
Mendez, Jr., as guardian of Juan Mendez, Sr. v. Hampton Court Nursing Center, LLC.
∙ Added new Point/Counterpoint “Should Obligors Have a Say in Who Becomes an
Assignee?”
Chapter 20 Discharge and Remedies

∙ Inserted new case Mind & Motion Utah Investments, LLC, Appellee v. Celtic Bank
Corporation.
∙ Transformed classic case of Hadley v. Baxendale into in-chapter case description.
Chapter 21 Introduction to Sales and Lease Contracts

∙ Created new case opener “Can You See the Forest for the Trees?”
∙ Added three new exhibits, clarifying some fundamental and subtle differences between
the UCC and the CISG.
∙ Changed Point/Counterpoint and tied it in to the case opener “Are ‘Writing Require-
ments’ Really Necessary Anymore for Contracts?”
Chapter 22 Title, Risk of Loss, and Insurable Interest

∙ Created new case opener and Wrap-Up “Anyone for a Bar-B-Que?”
∙ Added new Case Nugget under final section of risk of loss when a breach is alleged.
Chapter 23 Performance and Obligations under Sales and Leases

∙ Added new case Levista, Inc. v. Ranbaxy Pharmaceuticals, Inc.
∙ Created new Point/Counterpoint “Should Previous Dealings of the Parties Control the
Contractual Relationship?”
Chapter 24 Remedies for Breach of Sales and Lease Contracts

∙ Added new case Badilla v. Wal-Mart Stores East Inc.
∙ Created new Point/Counterpoint “Should the Statute of Limitations Be the Same for
All Causes of Action?”
xvi What’s New in the Fourth Edition?
Chapter 25 Warranties
∙ Added new Case Nugget under Warranty Disclaimers and Waivers Old Mexican Foods,
Inc. v. Hanson Staple Company.
∙ Added new Point/Counterpoint “Do the Implied Warranties Diminish the Fundamental
Free Market and the Right to Contract?”
Chapter 26 Negotiable Instruments: Negotiability and Transferability

∙ Added new case Athanasios Valsamis v. Nestor Gonzales-Romero.
∙ Created new Point/Counterpoint “Should the Consumer Financial Protection Board
(CFPB) Tighten Regulations on Payday Lenders?”
Chapter 27 Negotiation, Holder in Due Course, and Defenses

∙ Swapped Point/Counterpoint for “Does the Shelter Principle Violate Basic Rules of
Fairness?”
∙ Replaced Case 27-1 with Jones v. Wells Fargo Bank.
Chapter 28 Liability, Defenses, and Discharge

∙ Revised E-Commerce and the Law with new information concerning electronic
signatures.
∙ Updated Case 28-3 with John A. Colfax v. JPMorgan Chase Bank, N.A.
Chapter 29 Checks and Electronic Fund Transfers

∙ Inserted new case Aliaga Medical Center, S.C. v. Harris Bank N.A., A/K/A BMO Har-
ris Bank, N.A.
∙ Inserted new Case Nugget Alan Fambrough et al. v. Wal-Mart Stores, Inc., illustrating
the application of the Safe Harbor defense.
Chapter 30 Secured Transactions

∙ Added new Case Opener and Case Opener Wrap-Up addressing commercially reason-
able sales of collateral.
∙ Replaced existing Case Nugget with Helms v. Certified Packaging Corp., addressing
the definition of the term “proceeds of collateral.”
∙ Replaced Case 30-3 with Price Auto Sales, Inc. v. Sanders, which addresses breach of
the peace in the repossession of collateral.
∙ Revised Questions & Problems to include new cases concerning commercially reason-
able sales, classification of collateral, deficiency judgments, and repossession.
Chapter 31 Other Creditors’ Remedies and Suretyship

∙ Added new Case Opener and Case Opener Wrap-Up addressing compliance with mort-
gage foreclosure procedures.
What’s New in the Fourth Edition? xvii
∙ Replaced Case 31-1 with In re Enron Corp., regarding artisan’s liens.

∙ Replaced Case 31-3 with Beal Bank v. Biggers, regarding modification of guaranty
agreements.
∙ Updated statistics in Point/Counterpoint regarding homestead exemptions and median
home prices.
∙ Revised Questions & Problems to include new cases concerning modification of guar-
anty agreements and foreclosure of mechanic’s liens.
Chapter 32 Bankruptcy and Reorganization

∙ Updated GM Case Opener and Case Opener Wrap-Up.
∙ Updated bankruptcy filing statistics.
∙ Replaced Case 32-1 with In re Arkuszewski on the credit counseling requirement con-
tained within the bankruptcy code.
∙ Added new Case Nugget addressing In re Miller, which discusses the accuracy of state-
ments made in bankruptcy petitions.
∙ Updated the requirements for Chapter 13 bankruptcy.
∙ Revised Questions & Problems to include new cases concerning the credit counseling
requirement, the dischargeability of damage awards based upon intentional conduct,
and fraudulent prepetition transfers of property.
Chapter 33 Agency Formation and Duties

∙ Added a recent California case involving Uber to clarify the importance and implications
of determining whether an employee is actually an independent contractor.
∙ Revamped Point/Counterpoint to address the topic “Should a Business Owner Hire
Independent Contractors Instead of Employees?” Responses are also updated.
Chapter 34 Liability to Third Parties and Termination

∙ Revised Point/Counterpoint, replacing the question with “Should the U.S. Adopt the
European Union’s Post-Termination Compensation Policies?”
Chapter 35 Forms of Business Organization

∙ Added new development of the law related to the issue of whether a franchisor stands
in an employment or agency position in relation to a franchise and its employees for the
purposes of vicarious liability.
∙ Added the new case of Patterson v. Domino’s Pizza, LLC.
∙ Revised Exhibit 35-8, updating the list of “The Top 10 Global Franchises, 2016.”
∙ Improved Point/Counterpoint by addressing the question “Should Aspiring Business
Owners Form an LLC Instead of a Corporation?”
xviii What’s New in the Fourth Edition?
Chapter 36 Partnerships: Nature, Formation, and Operation

∙ Revised the reference to the Uniform Partnership Act to correct the claim that it is the
governing statute in partnership law.
∙ Inserted new Case 36-3 Robert Law, On Behalf of the Robert M. Law Profit Sharing
Plan v. Ronald Zemp, illustrating how a partnership can be negatively affected by the
negligence of a partner.
∙ Added a new Point/Counterpoint “Should Partners Always Be Held Liable for the
Actions of Other Partners?”
Chapter 37 Partnerships: Termination and Limited Partnerships

∙ Replaced Case 37-1 with Urbain v. Beierling.
∙ Revised Point/Counterpoint by addressing a new issue concerning partnership breach
and its fiduciary duty by firing partners to become more profitable.
Chapter 38 Corporations: Formation and Financing

∙ Updated Case 38-3 with Wachovia Securities, LLC v. Banco Panamericano to illustrate
when courts may pierce the corporate veil.
∙ Added new Point/Counterpoint “Should Corporations Receive the Full First Amend-
ment Rights that a Normal Citizen Would be Entitled to?”
Chapter 39 Corporations: Directors, Officers, and Shareholders

∙ Replaced Case 39-1 Frieda H. Rabkin v. Philip A. Hunt Chemical Corp., with McCann
v. McCann to illustrate the duties of majority shareholders.
∙ Revamped Comparing the Law of Other Countries, including “Criminal Liability in
France” to contrast the criminal liability in France with that in the United States.
∙ Refurbished Point/Counterpoint, replacing the question with “Should Shareholders
Have More Power to Influence a Corporation’s Business Decisions?”
∙ Improved Questions & Problems, including recent cases and issues relating to corporations.
Chapter 40 Corporations: Mergers, Consolidations, Terminations

∙ Added new Point/Counterpoint “Are Mergers a Good Strategy to Grow a Business?”
∙ Added new case: Germain v. A.O. Smith Water Prods. Co.
∙ Added three new case problems.
Chapter 41 Corporations: Securities and Investor Protection

∙ Inserted new Case 41-3, United States of America v. Matthew Kluger, to illustrate the
harshness of the treatment the tipper and tippee can receive.
What’s New in the Fourth Edition? xix
Chapter 42 Employment and Labor Law

∙ Added new Learning Objective “What are the rights and responsibilities when hiring
foreign workers?”
∙ Added new case concerned with privacy issues and the Internet regarding MySpace
post and subsequent lawsuit for invasion of privacy, Moreno v. Hanford Sentinel, Inc.
∙ Added new Case Nugget regarding wrongful termination in violation of public policy
regarding the use of medical marijuana.
∙ Added new section and discussion regarding immigration law entitled “Employer
Rights and Responsibilities When Hiring Foreign Workers.”
Chapter 43 Employment Discrimination

∙ Added new Learning Objective, new section, and discussion entitled “May Employers
Use Social Media in Employment Decisions?” This section also focuses on the issue of
privacy of social media.
∙ Revised section on Same-Sex Harassment, including a discussion of Oncale v.
Sundowner.
∙ Added new case on sexual orientation discrimination (first time that EEOC decision
holds that a claim of sexual orientation discrimination is by definition also a claim of
sex discrimination as defined by Title VII).
∙ Added new Case Nugget on bona fide occupational qualification.
∙ Updated discussion of discrimination based on sexual orientation, including discussion
of the historic 2015 U.S. Supreme Court decision on same-sex marriage.
Chapter 44 Administrative Law

∙ Added new case about broad discovery powers of administrative agencies (involving
ECPA request for Google to identify the person behind an email address who was post-
ing anonymously).
∙ Added new Case Nugget about notice-and-comment rule making under the Adminis-
trative Procedures Act (APA).
Chapter 45 Consumer Law

∙ Added new Point/Counterpoint “Should Prescription Drugs be Allowed to be Adver-
tised Directly to Consumers?”
∙ Added new case: Crawford v. LVNV Funding, which provides a legal discussion of the
application of the FDCPA.
∙ New section about data mining, illustrating a new privacy concern.
xx What’s New in the Fourth Edition?
Chapter 46 Environmental Law

∙ Changed Case 46-2 to Consolidation Coal Company v. Georgia Power Company et al.
∙ Revised Point/Counterpoint to discuss “Should Individuals Convicted for Violating
Environmental Laws be Punished More Harshly than Violent Criminals?”
Chapter 47 Antitrust Law

∙ Inserted a new case, United States v. Apple Inc., providing a more current illustration of
an alleged per se violation.
∙ Added a new Point/Counterpoint “Should Monopolies Remain Heavily Regulated?
Chapter 48 The Nature of Property, Personal Property, and Bailments

∙ Revamped Case 48-1 and added new case J & L Jewelry v. EPK Management, illustrat-
ing whether a bailment exists.
∙ New Point/Counterpoint called “Should Personal Property Taxes on Business Items be
Abolished?”
Chapter 49 Real Property

∙ Replaced Case 49-3 with The Spur at Williams Brice Owners Association, Inc. v. Sunil
V. Lalla and Sharan W. Lalla.
∙ Inserted new Point/Counterpoint entitled “Should Open Range Laws be Abolished?”
Chapter 50 Landlord-Tenant Law

∙ Updated Case 50-3 with Iowa Supreme Court case Leonara Caruso v. Apts. Down-
town, Inc.
∙ Revamped Point/Counterpoint to provide a debate of the issue of whether courts should
make greater use of constructive trusts to benefit tenants.
Chapter 51 Insurance Law

∙ Updated “Examples of Interesting Insurance Policies.”
∙ Inserted new Case 51-3 from the New Hampshire Supreme Court, Mellin v. Northern
Security Insurance Company.
∙ Updated E-Commerce and the Law to “Cyber and Data Protection Insurance.”
What’s New in the Fourth Edition? xxi
Chapter 52 Wills and Trusts

∙ Updated discussion of Legacy Locker.
∙ Inserted new Case 52-3 In re Estate of Duke.
∙ Updated E-Commerce and the Law feature.
∙ Replaced Case Nugget with “Interesting Probate Disputes.”
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Acknowledgments
This element of the Preface contains a palpable tone of gratitude and humility. Any project
the scope of Dynamic Business Law is a collective activity; the authors are but the visible
component of a remarkably large joint effort. We want to thank several contributors by
name, but there are doubtlessly many other students, colleagues, and friends who made
essential contributions to these pages.
Our largest gratitude goes to the dozens of business law colleagues who saved us from
many embarrassing errors, while tolerating our stubborn reluctance to adhere to certain of
their suggestions. Many thanks go to our manuscript reviewers and focus group participants:
Patricia Sanchez Abril Wade Chumney Dale Arrison Grossman

University of Miami Georgia Institute of Technology Cornell University
Joan P. Alexander Mark Conrad Francine Guice
Nassau Community College Fordham University Indiana Purdue University—
Fort Wayne
Ross Allen Angelo J. Corpora
Rutgers University—Camden Palomar College Cheryl Harwick
Wayne Anderson Mark A. Crawford William Harwood

Missouri State University Charleston Southern Dutchess Community
University College
Cheryl Arflin
Florida Atlantic University Richard E. Custin Norman Hawker
University of San Diego Western Michigan University
Curtis J. Bell
Western Michigan University Dr. Raven Davenport Lynda F. Hodge
Houston Community College Guilford Technical Community
Cyril Benichou College
System
Thomas Edison State College
Howard Davidoff Karen A. Holmes
Dr. Jon D. Bible Hudson Valley Community
Brooklyn College
Texas State University—San College
Marcos Peter Dawson
Collin County Community Russell Holmes
Robert W. Bing Des Moines Area Community
College—Plano
William Patterson College
University Mary Elena Ellison
Florida Atlantic University Jennifer Barger Johnson
Joyce Birdoff University of Central
Nassau Community College Joseph L. Flack. Jr. Oklahoma
Washentaw Community
Bonnie Bolinger Catherine Jones-Rikkers
College
Ivy Tech Community College Grand Valley State
of Indiana Darrell G. Ford University
University of Central Oklahoma
Eli Bortman Steve Kaber
Babson College Joan Gabel Baldwin-Wallace College
Florida State University
Daniel R. Cahoy Brian Keliher
Pennsylvania State University Gary S. Gaffney Grossmont College
Florida Atlantic University
Anita Cava Cheryl Kirschner
University of Miami—Coral Christopher Giles Babson College
Gables Virginia Tech
Gordon Klein
Michael Chikeleze, JD Robert Gonzalez University of California—Los
Cincinnati State College American River College Angeles
xxiv
Another random document with
no related content on Scribd:
Country people laugh at a person because they never saw him before.
Any one dressed in the height of the fashion, or quite out of it, is
equally an object of ridicule. One rich source of the ludicrous is
distress with which we cannot sympathize from its absurdity or
insignificance. It is hard to hinder children from laughing at a
stammerer, at a negro, at a drunken man, or even at a madman. We
laugh at mischief. We laugh at what we do not believe. We say that an
argument or an assertion that is very absurd, is quite ludicrous. We
laugh to show our satisfaction with ourselves, or our contempt for
those about us, or to conceal our envy or our ignorance. We laugh at
fools, and at those who pretend to be wise—at extreme simplicity,
awkwardness, hypocrisy, and affectation.”
A beautiful definition of the Disappointment Theory is Max
Eastman’s, “The experience of a forward motion of interest
sufficiently definite so that its ‘coming to nothing’ can be felt.”
Mr. Eastman says further:
“It is more like a reflex action than a mental result. It arises in the
very act of perception, when that act is brought to nothing by two
conflicting qualities of fact or feeling. It arises when some numb
habitual activity, suddenly obstructed, first appears in consciousness
with an announcement of its own failure. The blockage of an instinct, a
collision between two instincts, the interruption of a habit, a ‘conflict of
habit systems,’ a disturbed or misapplied reflex—all these
catastrophes, as well as the coming to nothing of an effort at
conceptual thought, must enter into the meaning of the word
disappointment, if it is to explain the whole field of practical humor.
The ‘strain’ in that expectation is what makes it capable of humorous
collapse. It is an active expectation. The feelings are involved.”
The point of the Disappointment Theory, that of frustrating a
carefully built up expectation is exemplified in jests like these.
“Is your wife entertaining this winter?” asks one society man of
another. “Not very,” is the reply.
“I have to go to Brooklyn—” says a perplexed-looking old lady to a
traffic policeman. “Are you asking directions, ma’am, or just telling
me your troubles?”
The incongruity may be merely a collocution of words.
Mark Twain described Turner’s Slave Ship as “A tortoise-shell cat
having a fit in a platter of tomatoes.”
In a newspaper cartoon, a wife says to her husband, “Even if it is
Sunday morning and a terribly hot day, that’s no reason you should
go around looking like the dog’s breakfast!”
So we see the element of surprise must be combined with the
element of appropriate inappropriateness to gain the desired result.
In this story expectation is aroused for a human tragedy. The
incongruity and disappointment make its humor.
As Mr. Caveman was gnawing at a bone in his cave one morning,
Mrs. Caveman rushed in, exclaiming, “Quick! get your club! Oh,
quick!”
“What’s the matter?” growled Mr. Caveman.
“A sabre-toothed tiger is chasing mother!” gasped his wife.
Mr. Caveman uttered an expression of annoyance.
“And what the deuce do I care,” he said, “what happens to a
sabre-toothed tiger?”
It must be admitted that a hard and fast line cannot be drawn
between the two theories given us by the Greek philosophers.
Cicero subscribed to the Derision theory, and said the ridiculous
rested on a certain meanness and deformity, and a joke to be
pleasing must be on somebody. But he declared, also, that the most
eminent kind of the ridiculous is that in which we expect to hear one
thing and hear another said.
Several other Greek and Roman philosophers tackled the subject
without adding anything of importance, and some of them, as well as
later writers declared that the comic could never be defined, but is to
be appreciated only by taste and natural discernment; while many
moderns agree that all theories are inadequate and contradictory,
however useful they may be for convenience in discussion.
Perhaps the trouble may be that only serious-minded people
attempt a definition of humor, and they are not the ones best fitted
for the work.
For the discussion goes on still, and is as fascinating to some
types of mentality as is the question of perpetual motion or the
Fountain of Immortal Youth.
A useful commentary on the matter, and one appropriate at this
juncture is the following extract from the works of the celebrated
theologian, Dr. Isaac Barrow, an Englishman of the Seventeenth
century.
“It may be demanded,” says he, “what the thing we speak of is, and
what this facetiousness doth import; to which question I might reply,
as Democritus did to him that asked the definition of a man—’Tis that
which we all see and know! and one better apprehends what it is by
acquaintance, than I can inform him by description. It is indeed a thing
so versatile and multiform, appearing in so many shapes, so many
postures, so many garbs, so variously apprehended by several eyes
and judgments, that it seemeth no less hard to settle a clear and
certain notice thereof, than to make a portrait of Proteus, or to define
the figure of fleeting air. Sometimes it lieth in pat allusion to a known
story, or in seasonable application of a trivial saying, or in forging an
apposite tale; sometimes it playeth in words and phrases, taking
advantage from the ambiguity of their sense, or the affinity of their
sound; sometimes it is wrapped in a dress of luminous expression;
sometimes it lurketh under an odd similitude. Sometimes it is lodged
in a sly question; in a smart answer; in a quirkish reason; in a shrewd
intimation; in cunningly diverting or cleverly restoring an objection;
sometimes it is couched in a bold scheme of speech; in a tart irony; in
a lusty hyperbole; in a startling metaphor; in a plausible reconciling of
contradictions; or in acute nonsense. Sometimes a scenical
representation of persons or things, a counterfeit speech, a mimical
look or gesture, passeth for it. Sometimes an affected simplicity,
sometimes a presumptuous bluntness, gives it being. Sometimes it
riseth only from a lucky hitting upon what is strange; sometimes from
a crafty wresting obvious matter to the purpose. Often it consisteth in
one knows not what, and springeth up one can hardly tell how. Its
ways are unaccountable and inexplicable, being answerable to the
numberless rovings of fancy and windings of language. It is, in short, a
manner of speaking out of the simple and plain way (such as reason
teacheth and knoweth things by), which by a pretty surprising
uncouthness in conceit or expression doth affect and amuse the fancy,
showing in it some wonder, and breathing some delight thereto. It
raiseth admiration, as signifying a nimble sagacity of apprehension, a
special felicity of invention, a vivacity of spirit, and reach of wit more
than vulgar; it seeming to argue a rare quickness of parts, that one
can fetch in remote conceits applicable; a notable skill that he can
dexterously accommodate them to a purpose before him; together
with a lively briskness of humour not apt to damp those sportful
flashes of imagination. Whence in Aristotle such persons are termed
επιδéξιοι, dexterous men, and ευτροποι, men of facile and versatile
manners, who can easily turn themselves to all things, or turn all
things to themselves. It also procureth delight, by gratifying curiosity
with its rareness or semblance of difficulty (as monsters, not for their
beauty but their rarity—as juggling tricks, not for their use but their
abstruseness—are beheld with pleasure); by diverting the mind from
its road of serious thoughts; by instilling gaiety and airiness of spirit;
by provoking to such dispositions of spirit in way of emulation or
compliance; and by seasoning matter, otherwise distasteful or insipid,
with an unusual and thence grateful tang.”—Barrow’s Works, Sermon
14.
Also in the Seventeenth century there sprang into being a
definition that has lived, possibly because of the apt wording of its
phrase.
It is by Thomas Hobbes, who declared for the Derision Theory, but
with less sweetness and light than it had hitherto enjoyed.
“Sudden glory is the passion which maketh those Grimaces called
Laughter,” said Hobbes in the “Leviathan,” “and is caused either by
some sudden act of their own, that pleaseth them; or by the
apprehension of some deformed thing in another, by comparison
whereof they suddenly applaud themselves. And it is incident most to
them, that are conscious of the fewest abilities in themselves; who are
forced to keep themselves in their own favour, by observing the
imperfections of other men. And therefore much laughter at the
defects of others, is a signe of Pusillanimity. For of great minds, one of
the proper workes is, to help and free others from scorn; and compare
themselves onely with the most able.”
and, also from Hobbes:
“The passion of laughter is nothing else but sudden glory arising
from a sudden conception of some eminency in ourselves by
comparison with the infirmity of others, or with our own formerly: for
men laugh at the follies of themselves past, when they come suddenly
to remembrance, except they bring with them any present
dishonour.”—Treatise on Human Nature, chap. ix.
There is small doubt that the vogue of Hobbes’ definition of this
theory rests on the delightfully expressive, “Sudden Glory,” for those
two words beautifully picture the emotion caused by the unexpected
opportunity to laugh at the discomfiture of another.
Locke followed with a dry and meaningless dissertation, and
Coleridge wrote his discerning but all too brief remarks.
Many German writers gave profound if unimportant opinions.
Addison wrote pleasantly about it, and George Meredith, while
accepting the Derision Theory, modified its harshness thus:
“If you believe that our civilization is founded in common-sense
(and it is the first condition of sanity to believe it), you will, when
contemplating men, discern a Spirit overhead; not more heavenly than
the light flashed upward from glassy surfaces, but luminous and
watchful; never shooting beyond them, nor lagging in the rear; so
closely attached to them that it may be taken for a slavish reflex, until
its features are studied. It has the sage’s brows, and the sunny malice
of a faun lurks at the corners of the half-closed lips drawn in an idle
wariness of half tension. That slim feasting smile, shaped like the
long-bow, was once a big round satyr’s laugh, that flung up the brows
like a fortress lifted by gunpowder. The laugh will come again, but it
will be of the order of the smile, finely tempered, showing sunlight of
the mind, mental richness rather than noisy enormity. Its common
aspect is one of unsolicitous observation, as if surveying a full field
and having leisure to dart on its chosen morsels without any fluttering
eagerness. Men’s future upon earth does not attract it; their honesty
and shapeliness in the present does; and whenever they wax out of
proportion, overblown, affected, pretentious, bombastical, hypocritical,
pedantic, fantastically delicate; whenever it sees them self-deceived
or hoodwinked, given to run riot in idolatries, drifting into vanities,
congregating in absurdities, planning shortsightedly, plotting
dementedly; whenever they are at variance with their professions, and
violate the unwritten but perceptible laws binding them in
consideration one to another; whenever they offend sound reason, fair
justice; are false in humility or mined with conceit, individually, or in
the bulk—the Spirit overhead will look humanely malign and cast an
oblique light on them, followed by volleys of silvery laughter. That is
the Comic Spirit.”
With Kant, however, the other theory of Aristotle came into notice.
Kant declared, “Laughter is the affection arising from the sudden
transformation of a strained expectation into nothing.”
This was dubbed by Emerson, “Frustrated Expectation,” and
describes the Disappointment Theory as Sudden Glory describes the
Derision Theory.
On these two commandments hang all the law and the prophets
of the World of Humor.
There are many other theories and sub-theories, there are long
and prosy books written about them, but are outside our Outline.
A general understanding of the humorous element is all we are
after and that has now been set forth.
A question closely akin to What is Humor? is What is a Sense of

Humor?
The phrase seems self-explanatory, and is by no means identical
with the thing itself. Nor are the two inseparable. Humor and the
sense of humor need not necessarily lie in the same brain.
Two erudite writers on this subject have chosen to consider the
phrase as a unique bit of terminology.
Mr. Max Eastman says; “The creation of that name is the most
original and the most profound contribution of modern thought to the
problem of the comic.”
While Professor Brander Matthews says; “Ample as the English
vocabulary is today, it is sometimes strangely deficient in needful
terms. Thus it is that we have nothing but the inadequate phrase
sense of humor to denominate a quality which is often confounded
with humor itself, and which should always be sharply discriminated
from it.”
Now it would seem that the phrase was simply a matter of
evolution, coming along when the time was ripe. Surely it is no
stroke of genius, nor yet is it hopelessly inadequate.
It must be granted that a sense of the humorous is as logical a
thought as a sensitive ear for music, or, to be more strictly
analogous, a sense of moderation or that very definite thing, card
sense.
Sense, used thus, is almost synonymous with taste, and a taste
for literature or for the Fine Arts in no way implies a productive
faculty in those fields. A taste for humor would mean precisely the
same thing as a sense of humor, and the taste or the sense may be
more or less natural and more or less cultivated, as in the matter of
books or pictures.
A taste for music is a sense of music, and one may appreciate
and enjoy music and its rendition to the utmost without being able to
sing a note or play upon any instrument whatever.
One may be a music critic or an art critic, or even a critic of
literature, without being able to create any of these things.
Why, then, put forth as a discovery that one may have a sense of
humor without being humorous and vice versa?
Humor is creative, while the sense of humor is merely receptive
and appreciative.
Many great humorists have little or no sense of humor. Try to tell a
joke to an accredited joker and note his blank expression of
uncomprehension. It is because he has no sense of humor that he
takes himself seriously.
Such was the case with Dickens, with Carlyle, with many
renowned wits. The humorist without the sense of humor is a bore.
He tells long, detailed yarns, proud of himself, and not seeing his
hearers’ lack of interest.
The man with a sense of humor is a joy to know and to be with.
The man who possesses both is already an immortal.
Now as the sense of humor is negative, recipient, while humor is
positive and creative, it follows that a sense of humor alone cannot
produce humorous literature.
These mute, inglorious Miltons, therefore, have no place in our
Outline, but they deserve a passing word of recognition for the
assistance they have been to the humorists, by way of being
applauding audiences.
For humor, like beauty is in the eye of the beholder. One with an
acute sense of humor will see comic in stones, wit in the running
brooks,—while a dull or absent sense of humor can see no fun save
in the obvious jest.
The lines,
“A jest’s prosperity lies in the ear
Of him who hears it. Never in the tongue
Of him who makes it.”
in Love’s Labour’s Lost proves that Shakespeare understood the

meaning and value of a sense of humor.
Although it was at a much later date that the word humor came to
be used as now, to mean a gentle, good-natured sort of fun.
All types of humor are universal and of all time. But the first
definitions were arrived at by the men of Greece and Rome, who
were scholarly and analytical, hence the hair-splitting and meticulous
efforts to treat it metaphysically.
Humor today rarely is used in a caustic or biting sense,—that is
reserved for wit.
Which brings us to another great and futile question,—the
distinction between wit and humor.
There is not time or space to take up this subject fully here. But
we can sum up the decisions and opinions of some few of the
thinking minds that have been bent upon it.
As the best and most comprehensive is the dissertation by
William Hazlitt, most of this is here given.
“Humour is the describing the ludicrous as it is in itself; wit is the
exposing it, by comparing or contrasting it with something else.
Humour is, as it were, the growth of nature and accident; wit is the
product of art and fancy. Humour, as it is shown in books, is an
imitation of the natural or acquired absurdities of mankind, or of the
ludicrous in accident, situation, and character; wit is the illustrating
and heightening the sense of that absurdity by some sudden and
unexpected likeness or opposition of one thing to another, which sets
off the quality we laugh at or despise in a still more contemptible or
striking point of view. Wit, as distinguished from poetry, is the
imagination or fancy inverted and so applied to given objects, as to
make the little look less, the mean more light and worthless; or to
divert our admiration or wean our affections from that which is lofty
and impressive, instead of producing a more intense admiration and
exalted passion, as poetry does. Wit may sometimes, indeed, be
shown in compliments as well as satire; as in the common epigram—
“‘Accept a miracle, instead of wit:

See two dull lines with Stanhope’s pencil writ.’
But then the mode of paying it is playful and ironical, and

contradicts itself in the very act of making its own performance an
humble foil to another’s. Wit hovers round the borders of the light and
trifling, whether in matters of pleasure or pain; for as soon as it
describes the serious seriously, it ceases to be wit, and passes into a
different form. Wit is, in fact, the eloquence of indifference, or an
ingenious and striking exposition of those evanescent and glancing
impressions of objects which affect us more from surprise or contrast
to the train of our ordinary and literal preconceptions, than from
anything in the objects themselves exciting our necessary sympathy
or lasting hatred.
“That wit is the most refined and effectual, which is founded on the
detection of unexpected likeness or distinction in things, rather than in
words.
“Wit is, in fact, a voluntary act of the mind, or exercise of the
invention, showing the absurd and ludicrous consciously, whether in
ourselves or another. Cross-readings, where the blunders are
designed, are wit; but if any one were to light upon them through
ignorance or accident, they would be merely ludicrous.
“Lastly, there is a wit of sense and observation, which consists in
the acute illustration of good sense and practical wisdom by means of
some far-fetched conceit or quaint imagery. The matter is sense, but
the form is wit. Thus the lines in Pope—
“’Tis with our judgments as our watches, none

Go just alike; yet each believes his own—’
are witty rather than poetical; because the truth they convey is a mere
dry observation on human life, without elevation or enthusiasm, and
the illustration of it is of that quaint and familiar kind that is merely
curious and fanciful.”
Thus Hazlitt: yet it is not necessary to be so verbose in the matter
of discriminating wit from humor.
They are intrinsically different though often outwardly alike.
Wit is intensive or incisive, while humor is expansive. Wit is rapid,
humor is slow. Wit is sharp, humor is gentle. Wit is intentional, humor
is fortuitous.
But to my mind the great difference lies in the fact that wit is
subjective while humor is objective.
Wit is the invention of the mind of its creator; humor lies in the
object that he observes. Wit originates in one’s self, humor outside
one’s self.
Again, wit is art, humor is nature. Wit is creative fancy, more or
less educated and skilled. Humor is found in a simple object, and is
unintentional.
Yet in these, as in all definitions, we must stretch a point when
necessary; we must make allowances for viewpoints and opinions,
and we must agree that the question is not one that may be
answered by the card.
Nor is it necessary in the present undertaking.
An Outline of Humor is planned to include all sorts and conditions
of fun, all types and distinctions of wit and humor from the earliest
available records, or deductions from records, down to the dawn of
the Twentieth Century.
Man has been defined as the animal capable of laughter.
Although this definition has been attacked by lovers of quadrupeds, it
has held in the minds of thinkers and students. Aristotle, Milton,
Hazlitt, Voltaire, Schopenhauer, Bergson and many other
distinguished scholars hold that the playfulness seen in animals is in
no way an indication of their sense of humor.
The Laughing Hyena and the Laughing Jackass are so called only
because their cry has a likeness to the sound of raucous human
laughter, but it is no result of mirthful feeling.
Hazlitt says man is the only animal that laughs and weeps, for he
is the only animal that is struck with the difference between what
things are and what they ought to be.
The playfulness of dogs or kittens is often assumed to be humor,
when it is mere imitative sagacity. The stolid, imperturbable gravity of
animals’ faces shows no appreciation of mirth.
Oliver Wendell Holmes speaks of the large brown eyes of oxen as
imperfect organisms, because they may show no sign of fun.
Yet it is, in a way, a matter of opinion, for the instinct of humor was
among the latest to evolve in the human race, and rudimentary hints
of it may be present in other animals as in our own children. A
monkey or a baby will show amusement when tickled, but this is
mere physical reflex action, and cannot be called a true sense of
humor.
Many animal lovers assume intelligences in their pets that are
mere reflections of their own mental processes or are thoughts
fathered by their own wishes.
It is, however, of little importance, for however appreciative of fun
an animal may be, it cannot create or impart wit or humor, and most
certainly it cannot laugh.
Bergson goes even farther. He declares the comic does not exist
outside the pale of what is strictly human.
He states: You may laugh at an animal, but only because you
have detected in it some human attitude or expression.
This is easily proved by the recollection of the fun of Puss In
Boots or The Three Bears, and the gravity of a Natural History.
Therefore, Bergson argues, man is not only the only animal that
laughs, he is the only animal which is laughed at, for if any other
animal or any lifeless object provokes mirth, it is only because of
some resemblance to man in appearance or intent.
So, with such minor exceptions as to be doubtful or negligible, we
must accept man as the only exponent or possessor of humor.
And it is one of the latest achievements of humanity.
First, we assent, was the survival of the fittest. Followed a sense
of hunger, a sense of safety, a sense of warfare, a sense of Tribal
Rights,—through all these stages there was no time or need for
humor.
Among the earliest fossilized remains no funny bone has been
found.
Doubtless, too, a sense of sorrow came before the sense of
humor dawned. Death came, and early man wept long before it
occurred to him to laugh and have the world laugh with him.
Gregariousness and leisure were necessary before mirth could
ensue. All life was subjective; dawning intelligence learned first to
look out for Number One.
Yet it was early in the game that our primordial ancestors began to
see a lighter side of life.
Indeed, as Mr. Wells tells us, they mimicked very cleverly,
gestured, danced and laughed before they could talk!
And the consideration of the development of this almost innate
human sense is our present undertaking.
The matter falls easily,—almost too easily,—into three divisions.
Let us call them, Ancient, Middle and Modern.
This is perhaps not an original idea of division, but it is certainly
the best for a preliminary arrangement. And it may not be convenient
to stick religiously to consecutive dates; our progress may become
logical rather than chronological.
As to a general division, then, let us consider Ancient Humor as a
period from the very beginning down to the time of the Greeks. The
Middle Division to continue until about the time of Chaucer. And the
Modern Period from that time to the present.
ANCIENT HUMOR
After careful consideration of all available facts and theories of the

earliest mental processes of our race, we must come to the
conclusion that mirth had its origin in sorrow; that laughter was the
direct product of tears.
Nor are they even yet completely dissevered. Who has not
laughed till he cried? Who has not cried herself into hysterical
laughter? All theories of humor include an element of unhappiness;
all joy has its hint of pain.
And so, when our archæologists hold the mirror up to prehistoric
nature, we see among the earliest reflected pictures, a procession or
group of evolving humanity about to sacrifice human victims to their
monstrous superstitions and, withal, showing a certain festival
cheerfulness. Moreover, we note that they are fantastically dressed,
and wear horns and painted masks. Surely, the first glimmerings of a
horrid mirth are indubitably the adjunct of such celebrations.
Since we have reason to believe that man mimicked before he
could talk,—and, observing a baby, we have no difficulty in believing
this,—we readily believe that his earliest mimicries aroused a feeling
of amusement in his auditors, and as their applause stimulated him
to fresh effort, the ball was set rolling and the fun began.
From mimicry was born exaggeration and the horns and painted
masks were grotesque and mirth-provoking.
Yet were they also used to inculcate fear, and moreover had
significance as expressions of sorrow and woe.
Thus the emotions, at first, were rather inextricably intermingled,
nor are they yet entirely untangled and straightened out.
Not to inquire too closely into the vague stories of these
prehistoric men, not to differentiate too exactly between Cro-
Magnards and Grimaldis, we at least know a few things about the
late Palæolithic people, and one indicative fact is that they had a
leaning toward paint.
They buried their dead after painting the body, and they also
painted the weapons and ornaments that were interred with him.
It is owing to this addiction to paint that scientists have been
enabled to learn so much of primordial life, for the pigments of black,
brown, red, yellow and white still endure in the caves of France and
Spain.
And, since it is known that they painted their own faces and
bodies we can scarce help deducing that they presented grotesque
appearances and moved their fellows to laughter.
But any earnest thinker or student is very likely to get out of his
subject what he brings to it, at least, in kind. And so, archæologists
and antiquarians, being of grave and serious nature, have found no
fun or humor in these early peoples,—perhaps, because they
brought none to their search.
It remains, therefore, for us to sift their findings, and see, if by a
good chance we may discover some traces of mirth among the
evidential remains of prehistoric man.
It would not be, of course, creative or even intentional humor, but
since we know he was a clever mimic, we must assume the
appreciation of his mimicry by his fellows.
Moreover, he was deeply impressed by his dreams, and it must
have been that some of those dreams were of a humorous nature.
We are told his mentality was similar to that of a bright little
contemporary boy of five. This theory would give him the power of
laughter at simple things and it seems only fair to assume that he
possessed it.
In the beginnings of humanity there was very close connection
between man and the animals. Not only did man kill and eat the
other animals, but he cultivated and bred them, he watched them
and studied their habits.
It is, therefore, not surprising that man’s earliest efforts at drawing
should represent animals.
The earliest known drawings, those of the Palæolithic men show
the bison, horse, ibex, cave bear and reindeer. The drawing at first
was primitive, but later it became astonishingly clever and life-like.
Also, among these primitive peoples, there was some attempt at
sculpture, in the way of little stone or ivory statuettes. These incline
to caricature, and are probably the first dawning of that tendency of
the human brain.
Yet the accounts of these earliest men show little that can be
definitely styled humorous, and while we cannot doubt they
possessed a sense of mirth, they have left us scant traces of it, or
else the solemn archæologists have overlooked such.
The latter may be the case, for a scholar with a sense of humor,
Thomas Wright, declares as follows:
“A tendency to burlesque and caricature appears, indeed, to be a
feeling deeply implanted in human nature, and it is one of the earliest
talents displayed by people in a rude state of society. An appreciation
of, and sensitiveness to, ridicule, and a love of that which is
humorous, are found even among savages, and enter largely into their
relations with their fellow men. When, before people cultivated either
literature or art, the chieftain sat in his rude hall surrounded by his
warriors, they amused themselves by turning their enemies and
opponents into mockery, by laughing at their weaknesses, joking on
their defects, whether physical or mental, and giving them nicknames
in accordance therewith,—in fact, caricaturing them in words, or by
telling stories which were calculated to excite laughter. When the
agricultural slaves (for the tillers of the land were then slaves) were
indulged with a day of relief from their labours, they spent it in
unrestrained mirth. And when these same people began to erect
permanent buildings, and to ornament them, the favourite subjects of
their ornamentation were such as presented ludicrous ideas. The
warrior, too, who caricatured his enemy in his speeches over the
festive board, soon sought to give a more permanent form to his
ridicule, which he endeavoured to do by rude delineations on the bare
rock, or on any other convenient surface which presented itself to his
hand. Thus originated caricature and the grotesque in art. In fact, art
itself, in its earliest forms, is caricature; for it is only by that
exaggeration of features which belongs to caricature, that unskilful
draughtsmen could make themselves understood.”
An early development of humor was seen in the recognition of the
fool or buffoon.
It is not impossible that this arose because of the discovery or
invention of intoxicating drinks.
This important date is set, not very definitely, somewhere between
10,000 b.c. and 2,000 b.c. Its noticeable results were merriment and
feast-making. At these feasts the fool, who was not yet a wit, won
the laughter of the guests by his idiocy, or, often by his deformity.
The wise fool is a later development.
But at these feasts also appeared the bards or rhapsodists, who
entertained the company by chanting or reciting stories and jokes.
These are called the artists of the ear as the rock painters are
called the artists of the eye. And with them language grew in beauty
and power. They were living books, the only books then extant. For
writing came slowly and was a clumsy affair at best for a long period.
The Bards sang and recited and so kept alive folk-tales and jests
that remain to this day.
Writing, like most of the inventions of man served every other
purpose before that of humor.
At first it was only for accounts and matters of fact. In Egypt it was
used for medical recipes and magic formulas. Accounts, letters,
name lists and itineraries followed; but for the preservation of
humorous thought writing was not used. That was left to the bards,
and of course, to the caricaturists.
Therefore, Egyptian art usually presents itself in solemn and
dignified effects with no lightness or gayety implied.
Yet we are told by Sir Gardner Wilkinson, the early Egyptian
artists cannot always conceal their natural tendency to the
humorous, which creeps out in a variety of little incidents. Thus, in a
series of grave historical pictures on one of the great monuments at
Thebes, we find a representation of a wine party, where the
company consists of both sexes, and which evidently shows that the
ladies were not restricted in the use of the juice of the grape in their
entertainments; and, as he adds, “the painters, in illustrating this fact,
have sometimes sacrificed their gallantry to a love of caricature.”
Among the females, evidently of rank, represented in this scene,
“some call the servants to support them as they sit, others with
difficulty prevent themselves from falling on those behind them, and
the faded flower, which is ready to drop from their heated hands, is
intended to be characteristic of their own sensations.” Sir Gardner
observes that “many instances of a talent for caricature, are
observable in the compositions of the Egyptian artists, who executed
the paintings of the tombs at Thebes, which belong to a very early
period of the Egyptian annals. Nor is the application of this talent
restricted always to secular subjects, but we see it at times intruding
into the most sacred mysteries of their religion.”
A class of caricatures which dates from a very remote period,
shows comparisons between men and the particular animals whose
qualities they possess.
As brave as a lion, as faithful as a dog, as sly as a fox or as
swinish as a pig,—these things are all represented in these ancient
caricatures.
More than a thousand years b.c. there was drawn on an Egyptian
papyrus a cat carrying a shepherd’s crook and driving a flock of
geese. This is but one section of a long picture, in which the animals
are often shown treating their human tyrants in the manner they are
usually treated by them.
All sorts of animals are shown, in odd contortions and grotesque
attitudes, and not infrequently the scene or episode depicted refers
to the state or condition of the human soul after death.
It is deduced that from these animal pictures arose the class of
stories called fables, in which animals are endued with human
attributes.
And also connected with them is the belief in metempsychosis or
the transmission of the human soul into the body of an animal after
death, which is a strong factor in the primitive religions.
Indeed, the intermingling of humans and animals is inherent in all
art and literature, as, instance the calling of Our Lord a Lamb, or the
Holy Ghost, a Dove.
Or, as to this day we call our children lambs or kittens, or, slangily,
kids. As we still call a man an ass or a puppy; or a woman, a cat.
An argument for evolution can perhaps be seen in the inevitable
turning back to the animals for a description or representation of
human types.
At any rate, early man used this sort of humor almost exclusively,
and so combined it with his serious thought, even his religions, that it
was a permanently interwoven thread.
And the exaggeration of this mimicry of animals resulted in the
grotesque and from that to the monstrous, as the mind grew with
what it fed on, and caricature developed and progressed.
Also, a subtler demonstration of dawning wit and humor is seen in
the deliberate and intentional burlesque of one picture by another.
In the British Museum is an Egyptian papyrus showing a lion and
a unicorn playing chess, which is a caricature of a picture frequently
seen on ancient monuments. And in the Egyptian collection of the
New York Historical Society there is a slab of limestone, dating back
three thousand years, which depicts a lion, seated upon a throne as
king. To him, a fox, caricaturing a High Priest, offers a goose and a
fan. This, too, is a burlesque of a serious picture.
Again, a lion is engaged in laying out the dead body of another
animal, and a hippopotamus is washing his hands in a water jar.
One of these burlesque pictures shows a soul doomed to return to
its earthly home in the form of a pig. This picture, of such antiquity
that it deeply impressed the Greeks and Romans, is part of the
decoration of a king’s tomb.
The ancient Egyptians, it may be gathered from their humorous
pictures, were not averse to looking on the wine when it was red.
Several delineations of Egyptian servants carrying home their
masters after a carouse, are graphic and convincing; while others,
equally so, show the convivial ones dancing, standing on their heads
or belligerently wrestling.

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A. BUT WHAT IF. . .

B. COMPARING THE LAW OF

interconnected global market. Each ADR IN JAPAN

related changes in the law.

G. NEW TOPICAL AREAS

Changes to the Chapters

Chapter 1 An Introduction to Dynamic Business Law

Chapter 2 Business Ethics

Chapter 3 The U.S. Legal System

Chapter 4 Alternative Dispute Resolution

Chapter 5 Constitutional Principles

Chapter 6 International and Comparative Law

Chapter 7 Crime and the Business Community

Chapter 8 Tort Law

Chapter 9 Negligence and Strict Liability

Chapter 10 Product Liability

Chapter 11 Liability of Accountants and Other Professionals

∙ Created new section called “Extending the Attorney-Client Privilege to Accountants.”

Chapter 12 Intellectual Property

Chapter 13 Introduction to Contracts

Chapter 16 Capacity and Legality

Chapter 17 Legal Assent

Chapter 18 Contracts in Writing

Chapter 19 Third-Party Rights to Contracts

Chapter 20 Discharge and Remedies

Chapter 21 Introduction to Sales and Lease Contracts

Chapter 22 Title, Risk of Loss, and Insurable Interest

Chapter 23 Performance and Obligations under Sales and Leases

Chapter 24 Remedies for Breach of Sales and Lease Contracts

Chapter 26 Negotiable Instruments: Negotiability and Transferability

Chapter 27 Negotiation, Holder in Due Course, and Defenses

Chapter 28 Liability, Defenses, and Discharge

Chapter 29 Checks and Electronic Fund Transfers

Chapter 30 Secured Transactions

Chapter 31 Other Creditors’ Remedies and Suretyship

∙ Replaced Case 31-1 with In re Enron Corp., regarding artisan’s liens.

Chapter 32 Bankruptcy and Reorganization

Chapter 33 Agency Formation and Duties

Chapter 34 Liability to Third Parties and Termination

Chapter 35 Forms of Business Organization

Chapter 36 Partnerships: Nature, Formation, and Operation

Chapter 37 Partnerships: Termination and Limited Partnerships

Chapter 38 Corporations: Formation and Financing

Chapter 39 Corporations: Directors, Officers, and Shareholders

Chapter 40 Corporations: Mergers, Consolidations, Terminations

Chapter 41 Corporations: Securities and Investor Protection

Chapter 42 Employment and Labor Law

Chapter 43 Employment Discrimination