Introduction to Law

David Horton
Introduction Week, Fall 2021

Table of Contents
Class Notes..............................................................................................................................3
August 16, 2021.................................................................................................................................3
August 17, 2021.................................................................................................................................5
August 18, 2021.................................................................................................................................9
August 19, 2021................................................................................................................................10
Book Notes............................................................................................................................13
Introduction.....................................................................................................................................13
Chapter 1: Reading Facts; The Background of Beastie Boys v. Monster Energy Company................13
Chapter 2: Procedure; Filing and Responding to a Civil Action.........................................................14
Chapter 3: Substantive Law; Constitutions, Statutes, Regulations, and the Common Law................18
Chapter 5: Z-Trip’s Motion for Summary Judgment: A Case Study in Reading and Briefing Opinions,
Outlining, and Other Essential Law School Skills..............................................................................22
Chapter 6: Reading and Using Cases in Practice...............................................................................26
Chapter 7: Statutory Interpretation.................................................................................................28
Chapter 8: Pre-Trial and Trial............................................................................................................30
Chapter 9: Post-Trial.........................................................................................................................32
Chapter 10: The Road Ahead; Law School, the Bar Exam, and Practice............................................33

Assigned Reading
August 16: Introduction, Chapter 10, Chapter 1, Chapter 2
August 17: Chapter 3, Chapter 4 (optional)
August 18: Chapter 5, Chapter 6
August 19: Chapter 7, Chapter 8, Chapter 9

My Exam Numbers
Fall Semester 2021 
Midterms: 1818738
Finals: 3294772
 Class Notes
August 16, 2021

Legal Analysis
 Analyzing cases, finding similarities and differences, how they relate
 What’s the objective of the rule?
o Punish bad behavior?
o Maintain status quo?
 Owner v. Thief holds that a thief who steals a necklace must either return the necklace
or pay the owner its market value
o Thief steals an uncut diamond and later sells it to another person, Fence, who
knows it has been stolen. Who wins in Owner v. Fence?

Reading Facts
 Facts of Beastie Boys case
o Refused to license their music t companies that produced commercial goods
o In 2011, the BB asked Z-Trip to create the Megamix
o In 2012, Z-Trip entered into a contract with Monster Energy to DJ the after-party
of Ruckus in the Rockies. Paragraph 8 of the contract prohibited recording of Z-
Trip’s performance w/out his consent
o On May 4, 2012 Adam Yauch (MCA), one of the BB, died
o On May 5, 2012, the Ruckus took place. After even, Nelson Philips (Monster’s
director of Canadian marketing) asked Z-Trip whether he had any music for a
recap video. Z-Trip mentioned the Megamix. Philips used the Megamix as the
video’s soundtrack. In addition, the credits of the video say: “MUSIC/ALL-
ACCESS BEASTIE BOYS MEGAMIX/COURTESY OF Z-TRIP/DOWNLOAD
THE LINK FOR FREE AT…”
o On May 8, 2012, Phillips emailed Z-Trip about video
o Z-Trip replied “dope”
o Monster posted the video on its YouTube channel
 When you’re reading a case make you know understand exactly what happened
o Cases are so rich, this is tough

Procedure
 Filing and responding to civil action
 Usually when you sue someone, you start with a letter, detailing what they did wrong
 First thing you need to figure out is where, what state, what court
o Jurisdiction
 Generally if you are a plaintiff, you want to be in a state court
 Systems in federal and state courts are roughly the same
 “Circuit split”
o Circuits have different rules/views from each other
Traditional Areas of State Law
 Property
 Torts
 Contracts
 State courts are the most authoritative source for state laws

Federal Subject Matter Jurisdiction

 2 basic kinds of subject matter jurisdiction

Federal Question Jurisdiction: Diversity Jurisdiction:

“The district courts shall have original Occurs when an amount in controversy
jurisdiction of all civil actions arising that exceeds $75,000 and includes parties
under the Constitution, laws, or treaties of that are from different states.
the United States”
Ex: Beastie Boys are in NY, Monster in
CA. Beastie Boys are seeking more than
$75,000. (But the BB qualify for federal
jurisdiction anyways)

Removal:
Federal courts have exclusive jurisdiction
over copyright claims. You can’t file a If you have a case that could have been
copyright claim in state courts. You have filed in federal court, the defendant can
to go to federal court. choose to remove it from state court, into
federal court, within 30 days.

Anytime the defendant can remove from

state court, it almost always does.

Defendants like being in state courts.

Plaintiffs like being in federal court

The perception is that state juries are

really sympathetic to plaintiffs, especially
if they are from that state. Federal states
are stingier than state courts.

 How to determine the value of a case

o You usually go with whatever the attorney says
Personal Jurisdiction
 We know we’re in federal court. We’re deciding which federal court (California,
Delaware, or New York?)
 General Specific Jurisdiction
Where the defendant lives, where the Exists if the plaintiff’s injuries stem from the
company has its place of business defendant’s contact with the state.

Can’t be too inconvenient for you because If you breach a contract within a particular
you live there. You won’t be a hostile outsider state, it doesn’t matter if you don’t live there.
because you live there. Because it occurred there, you can be sued
there under the theory of specific jurisdiction.

 The theory of jurisdiction relates to the plaintiff’s injuries in a particular state

o BB is an international band, performed in Canada, and they filed in NY

Responding to a Complaint
 BB example
o Establish that they have a right to be in federal court
o The defendant can move to dismiss the complaint that even if everything the
plaintiff says is true, the plaintiff loses
o Most common response is to file an answer
 Responds to all the allegations of the complaint
 Will say in response the allegation that X, Monster denies that allegation
 And then will say affirmative defenses
o What Monster did is it answered and then also did something more unusual: it
filed a 3rd party complaint, against Z-Trip
 Monster alleges that Z-Trip breached a contract and committed fraud

August 17, 2021

U.S. Constitution
Federal Statutes and Regulations

 Federal law is supreme and state law must yield if its inconsistent with federal law
State Constitutions

 Sometimes provide more protection for individual rights than federal law allows, and
that’s actually permissible
State Statutes and Regulations
The Common Law

 Judge made law

o Property, Contracts, Torts
 Judges just one day chose to recognize these
o Civil law systems v. common law systems
 Civil law: Europe, Louisiana
 Very different than common law
 Most of the law system is statutory
o Long, complex codes governing each statutory code
 Judge takes an active and inquisitorial role
 Common law: U.S., Great Britain
 Extensive body of judge made law
 Cases are litigated in an adversarial posture
 Interstitial common law: Judge made rule that interprets a
constitution or statute

The U.S. Constitution

 Establishes 3 branches that check each other’s power
o Executive Branch
o Judicial Branch
o Legislative Branch
 Arms Congress with certain enumerated powers
o When Congress wants to pass a law it needs to show that it has been given the
authority to do so
 Most laws passed under the Commerce Clause
 The law regulates interstate commerce
 Originally, Supreme Court took position that few laws affected
interstate commerce
o Over 21st century, court expanded definition of commerce
clause so now almost every state impacts interstate
commerce
 The Copyright and Patent Clause
o Congress has authority to regulate all copyrights and patents
o BB case
o Trademarks don’t fall under this
 Need to find authority for Congress to regulate trademarks and it can’t be
the Copyright and Patent Clause
 Any trademark violation under the Lanham act has to be connected with
the use of interstate commerce, which means that Congress has the
authority to regulate it
 This is them checking their own power
 Bill of Rights
o 1st: Free speech, press, assembly
o 2nd: Bear arms
o 4th: Unreasonable searches and seizures
o 5th: Due process
o 14th (after civil war): states can’t deprive life, liberty process, or equal protection
under the law

Federal Statutes and Regulations

 So many statues that we don’t how many there are
 Federal statutes preempt inconsistent state laws
o Expressly
 By Congress simply stating it
 Called express preemption, ex: airline preemption act says no state law
can invalidate federal rule about airline tickets
o By occupying the field
 Called field preemption
 There are so many federal statutes about an issue that there isn’t any room
for states
 Ex: Immigration
o When state law thwarts Congress’s purposes objectives
 Called purposes and objectives preemption or implied preemption
 Whether or not state law stands as an obstacle to federal law
 Some federal statues contain fee-shifting provisions
o “American Rule”
 Each party of a lawsuit pays its lawyers
 Only America does it. Everyone else says the winner gets their attorney
fees reimbursed
 Sometimes Congress will change that in a federal statute in a fee-shifting
provision
 There are dozens of federal agencies
o Congress sometimes delegates them the power to fill in the gaps in statutes
o Ex: EPA
 Copyright act
o In some circumstances if you use someone’s copyrighted material you could be
liable for damages
o The moment you take an original piece of authorship, and you fix it in a tangible
form of expression that can be perceived, reproduced, or otherwise
communicated, you enjoy all the rights that copyright law affords you
o If you write a paper for class, you are a copyright holder
o You have the copyright to your artistic expression
 You get to say whether or not someone can use your song
o “Fair Use” lets you use and change copyrighted work in a meaningful way
 (In BB it’s not considered fair use)
o Monster did NOT contest copyright
 Did Monster sell more drinks because of this ad?
 Liable for actual damages AND any additional profits
o The big hidden issue in many cases is damages
 Where the money is
 The copyright says plaintiffs can get between $750-$30,000 and then if the
copyright owner shows that the infringement was committed willfully, the
court can increase the award to up to $150,000 (which is statutory
damages)
 Have to pay the amount you would have to pay the rights to buy
the music
  Also have to pay them the profits you made
 BB went after statutory damages
o They are trying to get the maximum amount of statutory
damages
 The maximum for any copyright case is $150,000 if you go down
the statutory route
o BB is pursuing 10 charges of $150,000
o If you want more and can prove you deserve more, you
should go down the actual damages route
 Remedies for Infringement: Costs and Attorney’s Fees
o Fee-shifting provision
o American Rule says all parties pay their own litigation fees
o If a civil action is under this title the winner has their costs covered
 The Lanham Act
o Protects trademarks
 (distinctive figures that businesses use)
 McDonalds
 Starbucks
o Prevent people from misappropriating trademarks
o Recognizes a specific claim for celebrities
 A false endorsement
 T shirt with Bruce Lee’s face

State Statutes and Regulations

 State legislature is higher than the state courts
o Think Flour/photo example
o Legislature creates a new civil code for right to privacy
 Criminal law
o Whether to incarcerate someone or make them pay a fine
o Beyond a reasonable doubt
 Civil law
o Injunctions
o Mere preponderance of the evidence: more likely than not that the defendant did
the thing that is illegal
o OJ Example
 OJ wasn’t convicted in criminal law trial and was convicted in civil law
trial
 In criminal trial, the legal standard was beyond a reasonable doubt
 In civil trial it was only if he more likely than not caused the deaths

The Common Law

 General
 Interstitial
 Delan and Lohan are examples of interstitial common law
August 18, 2021
 Section 51
o Gives rise to civil liability
 Private plaintiff recovering damages or getting an injunction to stop what
someone is doing
 A case should be dismissed if it’s based on a technicality, like checking a box
 Dismissed with prejudice- can no longer amend case

Reading Cases in Law School

 Looking at BB case
o Z trip filed a motion for summary judgement
 MSJ comes at the end of the discovery phase in litigation
 MSJ argues to the judge based on all the evidence that is in the record,
no reasonable jury could find in the plaintiff’s favor
 Therefore this case needs to be dismissed now
 An MSJ short circuits a file
 MSJs are often granted
o Motion to dismiss = there is no legal basis for this claim
o MSJ = maybe this could be a viable legal claim, but this particular legal claim is
not viable because now we are past the discovery phase where we learn about
the facts of the case. The evidence that’s admissible for trial isn’t enough for any
reasonable jury
o Usually a defendant brings an MSJ
o A summary judgement is often a source of precedent
 They generate reported opinions, which means it’s precedent
 That’s an example of common law (judge made law)
o There is no offer between Philipps and Z Trip
 When you look at the conversations and emails, there’s a total lack of
sufficient clarity
 An offer has to spell out the terms of a contract CLEARLY
 There’s just no detail
 Would have to specify many things: what songs, price, etc.
o Rule: An offer is a display of willingness to enter into an agreement on specified
terms, made in a way that would lead a reasonable person to understand that
the offeror intends to be bound if the offeree accepts
o Holding: Phillips’s conversation and email with Z-Trip wasn’t an offer on behalf
on Monster to acquire the right to use the Beastie Bous’ songs in the Megamix
o Reasoning: An offer must spell out the terms of the proposed contract with
sufficient clarity, but Philips’s conversation and email contained no details
whatsoever about Monster acquiring the rights to the Beastie Boys’ music
o Rule: An acceptance can be made in any way invited or permitted by the offer.
However, an acceptance must be clear, unambiguous and unequivocal
 o Holding: Z-Trip’s replay email saying Dope was not an acceptance
 Look for the relevant rules in the cases you’re studying
 A holding is how a court uses a rule to resolve a dispute
 When reading a case, look for the rule, look for the holding (was there an offer), look for
the reasoning
 Look at the questions at the end of the case! They are your friend. Try to answer them.
They’ll focus on what’s most important. They’re points.

Outlines
 Point is to internalize the info as you make the outline
 Spend one hour outlining for every 3 hours of other law school work you do by the
middle of the semester
 A big picture view of the class is necessary

Exams
 Like the bar
 Might have multiple choice questions
 Almost certainly will have essays
o Issue spotters
 Story (1-2 pages) that ends with an open-ended prompt
 So your professor will have an answer key with issues on it, that awards a
certain number of points for each issue
 Curved
 Use IRAC
o Issue
o Rule
o Analysis
 Discuss how the case is different from/similar to a case you read in class
 This is the most important part
o Conclusion
 Every issue gets its own IRAC
o Ex: Acceptance gets its own IRAC, offer gets its own IRAC
 The only thing on the answer key is each individual issue

August 19, 2021

 Positive authority vs. negative authority
o Whether it supports or doesn’t support your case
 Mandatory vs. persuasive authority
o Binding in the court you’re in vs. just persuasive
o Federal district court/federal trial court is persuasive authority, even if it’s in the
same district
o If you can show there is mandatory positive authority, your odds of winning are
50-90%
  Holding vs. Dicta
o Holding: 2 definitions
 1) How the court uses the rule of the case in a different case
 2) How it relates to the part of the case that is logically necessary to
decide the case
 This contrasts with dicta
o Dicta
 The part of the case that isn’t logically necessary to define the case
 Dicta is not binding, even if it’s from the U.S. Supreme Court/ only
holding is binding
 Two forms
 1) A judge just starts pontificating
 2)
 You can use dicta to persuade a judge
 When you take an exam, you can use anything
o Nominative Fair Use
 Doctrine for violations of Lanham Act
 Trademark laws protect brand names, but there are some things that you
can’t talk about unless you use the brand name. Ex: Chicago Bulls
 Qualifiers
 1) You can’t talk about the product unless you use the brand
name
 2) use of trademark name wasn’t excessive
 3) there was no suggestion by the defendant that the plaintiff had
endorsed the defendant’s services
 Tiffany case
o Sued Ebay for advertising they are selling Tiffany products, which is trademarked
 Oleomargine Regulations case

Pre-Trial and Trial

Trial: Evidence
 Common objections
o Relevance
 You can only offer evidence that relates to some contested issue in the
case
 Evidence that relates to other issues is excluded
 “Evidence doesn’t make the existence of any fact that is of consequence
to the determination of the action more probable or less probable”
o Rule 403
 Even if evidence is relevant, it can be excluded if it’s probative value/the
importance of what is proved is substantially outweighed by the danger
of prejudice to one of the parties
o Hearsay
  Complicated rule
 Takes several weeks in evidence class to go over
 You can’t use an out of court statement to prove the truth of the matter
asserted
 If someone is testifying at trial, the jury can observe them and decide if
they are telling the truth and if they seem credible. So testimony in court
by a witness is testimony that the jury can really assess in a significant
fashion.
 Hearsay says you can’t offer out of court statements to prove that what
the person is saying is true
 Ex: If Jane says the light is red, you can’t use her statement to say
the light is red
o

Statutory Interpretation
 The most important source of legal arguments are the text of the statute itself
o Textualism: Courts can only look at the text in the statute
 Has become a force in the legal system
 Almost anything is supposed to be relevant to help the court understand a text
o Legislative history
 What people said while debating
 If text is clear on its face, the text governs
 If the text is unclear, you can look to legislative history
 Ex: No vehicles allowed in the park
o But what does this really apply to
o

 Book Notes
A Primer on Law School and the U.S. Legal System (David Horton)
ISBN: 9781543821147
---------------------------------------------------------------------------------------
Introduction

A. 3 goals of book
o Survey core legal concepts
o Demystify what we’ll be doing every day
o Get us excited

Chapter 1: Reading Facts; The Background of Beastie Boys v. Monster Energy Company
 Statement of Facts:
o Almost always the first substantive section in an opinion
o 1) Skim the entire opinion once, and then slowly work your way through it again
(who, what, when)
o Look up any terms you don’t know in Black’s Law Dictionary or Google
o Use charts, diagrams, and lists to organize information chronologically
 The Beastie Boys
o Careful about who they struck deals with
 Monster Energy Drink Company
o Sciacca “Z-Trip” enters contract to perform at Monster event, part of contract is
that no one can record his performance
 Events in the Spring of 2012
o Adam Yauch dies and in his will says that his music/artistic property can’t be
used for ads
o Ruckus in the Rockies releases video of Z-Trip with Z-Trip’s consent
 The Video

Problem 1-1
1. False
2. False
3. False

 Using Facts to Persuade

o Present facts as a narrative in which their client is the protagonist

Problem 1-2
1. Z Trip
2. Monster Energy
3. Beastie Boys
Problem 1-3

Estate of Duke
Date Event
Before 1984 Irving Duke marries Beatrice. He has a
brother Harry. His sister, Rose, has died,
leaving two sons, Robert and Seymour
Radin (the Radins).
1984 Irving executes a will leaving $1 to Harry,
the rest of his property to Beatrice, and
everything to two charities — the City of
Hope (COH) and the Jewish National Fund
(JNF) — if he and Beatrice “die at the
same moment.”
1997 Irving amends will to clarify that his and
Beatrice’s assets are community property.
2002 Beatrice Dies
2007 Irving Dies
March 2008 COH and JNF petition for probate and for
letters of administration.
October 2008 The Radins file a petition for
determination of entitlement to estate
distribution. They claim that they are
entitled to the Irving’s entire estate as his
sole intestate heirs.
After October 2008 COH and JNF argue that Irving meant for
them to inherit if Beatrice died before him
(not just if he and Beatrice died at the
same time).

Chapter 2: Procedure; Filing and Responding to a Civil Action

A. The Start of a Lawsuit
o Beastie Boys meat with counsel
1. Client Intake
2. Research
1. Factual
2. Legal
1. You need strong legal research skills
a. Westlaw
b. Lexis
3. Practical
3. Demand Letters
 1. Summarizes the client’s position and requests relief from the other side
B. Filing a Complaint
1. Plaintiffs begin cases by filing a complaint
1. A complaint is a pleading (a formal legal document presented to the
court)
2. The complaint must list the plaintiff’s causes of actions
1. What the defendant did/didn’t do and which legal rules were
violated
3. The complaint must demonstrate that the court has jurisdiction
1. Power to decide a case
2. Involves subject matter and personal jurisdiction
C. The Structure of the U.S. Legal System
o Federalism
1. Federal and state governments
share power
1. The Structure of the U.S. Court System
1. Federal and state courts run
parallel to each other
2. Most cases begin at the trial
court level
a. Federal trial courts are
called district courts
b. State trial courts can
have various names
(CA: Superior Courts,
NY: Supreme Court)
3. Trial courts specialize in fact-
finding
a. Hearing witnesses,
deciding who’s
credible, examining
documents, resolving
conflicts in the evident, ruling in a party’s favor
i. Appellate Courts
4. Appellate process similar in federal and state systems
a. Going to a higher court to challenge a lower court’s
decision
5. After the trial court issues a judgement parties have an automatic
right to appeal that decision to a higher court (usually called the
court of appeals)
6. Each federal district court sits within one of the 13 circuits, based
on geography
ii. Supreme Courts
a. Appealing from an appellate court ruling is completely different than appealing a
trial court ruling
i. The U.S. Supreme Court (often called Court) and state supreme courts
can pick which disputes to hear
1. Trial courts and courts of appeal can’t refuse to resolve a dispute
2. Usually pick cases that are novel, high profile, or are necessary to
settle a split in authority among lower courts (like if different
circuits have different rules)
2. Federal and State Law
i. Federal law stems from
1. The U.S. Constitution
2. Federal statues and regulations
3. Judicial opinions that interpret these sources
ii. State law stems from
1. State constitutions
2. State statutes and regulations
3. Judicial opinions that interpret these sources
4. Common law
a. Represents entire fields of law that have been shapes over
centuries by courts announcing rules and applying them
 Usually, federal court interpretations of federal law are more
authoritative that state court interpretations of federal law
 A judge must give more deference to
state court interpretations of state law
 A federal court’s interpretation of a
federal law can be binding in a way
that a state court’s reading of
federal law can’t be
 States have the last word on their
own law
3. Subject Matter Jurisdiction
i. The court’s authority to hear a
dispute
ii. Federal courts have limited
subject matter jurisdiction
1. Federal Courts: Federal
Question Jurisdiction
a. Arises from a statute, 28 U.S.C. § 1331, that gives federal
courts “jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
2. Federal Courts: Diversity Jurisdiction
a. Stems from 28 U.S.C. § 1332, which states that federal
courts possess “jurisdiction of all civil actions where the
 matter in controversy exceeds the sum or value of
$75,000, and is between … citizens of different States.”
b. Parties must be from different states (diverse)
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
3.
State Courts: General Subject Matter Jurisdiction
a. State courts hear almost any kind of lawsuit
4. Applying and Understanding Subject Matter Jurisdiction
4. Personal Jurisdiction
 The court’s power over the defendant
i. General Jurisdiction
1. The defendant can be sued in that court for any kind of claim
2. A defendant is subject to general jurisdiction in her domicile (the
jurisdiction in which she resides, or where the corporation
maintains business)
ii. Specific Jurisdiction
1. Court has specific jurisdiction if the damage to the plaintiff stems
from the defendant’s contacts with that state
5. Jury or Bench Trial
i. Jury
 1. 12 randomly selected people decide legal and factual issues
ii. Bench
1. Judge performs these functions
iii. Conventional wisdom: juries are more generous when awarding damages
than judges
6. Responding to a Complaint
i. Answers
1. Addresses each of the plaintiff’s factual assertions, usually by
denying them or by saying that the defendant doesn’t have
enough information to respond
2. Include the defendant’s affirmative defenses
a. Legal theories that if proven would defeat the plaintiff’s
recovery, or reduce their damages
b. Common affirmative defense: plaintiff has violated the
statute of limitations
ii. Motions to Dismiss
1. Instead of an answer, defendants can file a motion to dismiss
(AKA a demurrer)
2. Tries to convince the court that even if all the facts alleged in the
complain are true, the plaintiff still can’t recover because the law
doesn’t actually prohibit the defendant’s actions
iii. Other Options When Responding to a Complaint
1. Monster sought to shift the blame by filing its own lawsuit again
Z-Trip
a. Indemnification
Chapter 3: Substantive Law; Constitutions, Statutes, Regulations, and the Common Law
 Procedural law consists of rules that guide disputes through the court system
o Such as a requirement that a party must file a particular
motion on a particular day U.S. Constitution
 Substantive law “creates, defines, and regulates the rights, Federal statutes
duties, and powers of the parties” and regulations
 Various sources of substantive law are best understood as a State
pyramid > constitutions
A. The United States Constitution State statutes
o The Constitution Establishes the Structure of the Federal and regulations
Government Common law
 Articles I, II, and III set forth the key features of the
federal government
 Article 1: The Congress
 Article 2: The President
 Article 3: The Judiciary
A. Separation of Powers
 Legislative branch makes laws
  Executive branch enforces laws
 Judicial branch interprets laws
B. Checks and Balances
 Bicameralism
 Legislature consisting of two chambers (Senate v. House of
Reps)
 The Presentment Clause
o Outlines procedure by which bills originating in Congress
become federal laws
 Congress passes legislation with majority vote in
both chambers
 President signs or vetos
 If president vetos Congress can override veto by a
2/3 vote in the House and a 2/3 vote in the Senate
 Selection of judges
o President appoints, subject to confirmation by the Senate
 Judicial review
o Courts can invalidate statues and executive orders they
view as unconstitutional
 Impeachment
o House can impeach
o Then Senate can vote in a 2/3 supermajority to convict
president on the grounds for impeachment
B. The Enumerated Powers of Congress
o Congress can only use the specific powers granted to it
as listed in the Constitution
o When Congress makes substantive law, it must be able to
point to the specific section of the
Constitution that authorizes each and every
act of legislation
 If Congress can’t, the
legislation is
unconstitutional
(1) The Commerce Clause
a. Authorizes federal lawmakers to “regulate Commerce among the
several States”
b. Congress gets to govern interstate commerce
c. Congress can only pass laws that relate to activities that have
financial consequences across state boundaries
(2) The Patent and Copyright Clause
a. Protects authors and inventors from those who would
appropriate their work without payment or consent
C. Constitutional Protection of Individual Liberties
  In 1791, the states ratified the Bill of Rights, which are the first ten amendments
of the Constitution
 First Amendment
 Freedom of the press
 Fourth Amendment
 No unreasonable searches and seizures
 Fifth Amendment
 Due process
 After the Civil War, Congress passed the Reconstruction Amendments
 13th Amendment
 Abolishes slavery
 14th Amendment
 Life, liberty, process, equal protection
B. Federal Statues and Regulations
 Statues regulate the fabric of our lives
A. Federal Preemption of Inconsistent State Laws
a. Express Preemption
i. A federal statute preempts state laws if the state laws are
inconsistent with the federal statute
ii. Flows from the Supremacy Clause of the Constitution
iii. An Express Preemption clause in a federal statute leaves no doubt
that the statute eclipses state rules on the same topic
b. Implied Preemption
i. Field preemption
1. Occurs when Congress has legislated so extensively that
there’s no room for states to regulate in a particular area
a. Think immigration laws
ii. Obstacle preemption
1. When state law thwarts the purposes and objectives of a
particular federal statute
B. Federal Statues in Beastie Boys: Copyright and Trademark
a. The Copyright Act
i. Monster admitted that it had infringed the Beastie Boys’
copyrights by using the Megamix Video
ii. The question was how to measure the Beastie Boys’ damages
1. Actual damages
a. Money they would have received if they had
licenses the infringed work to monster
2. Profits
a. Calculate their damages as the sum of Monster’s
profits as a result of the infringement
b. This can be difficult to prove at trial
3. Statutory damages
 a. Entitles the Beastie Boys to an award between
$750-$30,000
b. If the BB prove the infringement was willful, then
the court can increase the award to up to $150,000
b. The Lanham Act
i. The BB also sued under the Lanham Act
ii. Prohibits trademark infringement
iii. Protects distinctiveness of trademarks by preventing a competitor
from using a similar mark in a way that might confuse consumers
iv. The part of the Lanham Act that relates to the BB is false
endorsement
1. BB alleged that Monster’s use of their music in
promotional videos falsely implied the band’s
endorsement of Monster Energy Drinks
c. The Administrative State and its Agencies
i. Administrative Agencies were created to regulate sectors
1. Agencies and Separation of Powers
a. Agencies raise separation of power concerns
b. They perform functions that the Constitution
commits to other branches
c. When congress passes a statute, it delegates
authority to the appropriate administrative agency
to fill in the details
2. The Administrative Procedures Act
a. Permits courts to invalidate agency actions
b. The standard of review depends on the procedures
that the agency followed when it promulgated a
rule
i. If the agency engaged in informal
rulemaking (might involve floating a
proposal and then soliciting input from the
public), judges can nullify rules that are
“arbitrary and capricious”
ii. If that agency used formal, trial-like
procedures, its action will stand if it’s
supported by “substantial evidence”
C. State Constitutions
a. Tend to be longer and more detailed than the U.S. Constitution
b. Any state statute or common law rule that violates that stat’es
constitution isn’t enforceable
c. Things get trickier when there’s friction between a state constitution and
federal law
d. State constitutions are below federal statutes in pecking order
 e. The Supremacy Clause doesn’t stop state constitutions with providing
more protection for individual rights than federal law
D. State Statutes and Regulations
a. If a state legislature passes a law or a state agency issues a rule, it must
comply with both the U.S. Constitution and the state constitution
b. New York Civil Rights Law Section 51
i. BB sued Monster under this state statute
1. Provides a cause of action against a defendant who
exploits a person’s image without their consent
c. A Note on Civil and Criminal Statutes
i. The choice to initiate criminal proceedings rests with the
government, not private citizens
ii. To convict a defendant, prosecutors must prove guilt beyond a
reasonable doubt.
iii. In contrast, a civil plaintiff only needs to establish the defendant’s
liability by a preponderance of the evidence
E. The Common Law
a. Inherited from England
b. 1) General Common Law
i. Consist of purely judge-made rules
c. 2) Interstitial Common Law
i. When a court interprets a constitution, statute, or regulation, it
fills in the gaps or decides how they relate to each other
ii. Interstitial common law provides greater nuance and specificity
than the bare text of a constitution, statute, or regulation
d. 3) Precedent
i. Judicial decisions generate precedent
ii. Judges follow decisions made by other judges
1. Following Precedent
a. Makes the law predictable
2. A Note About Common Law Systems
a. Much of Europe have civil law regimes
i. Rely heavily on statutes and regulations
ii. Courts don’t ate binding precedent the way
common law courts do
iii. Trials are inquisitorial, so the judge actively
questions the parties and witnesses
iv. Common law trials are adversarial, the
judge is passive and lawyers offer evidence
and arguments
3. Common Law in Action
a. Delan v. CBS
b. Lohan v. Perez
Chapter 5: Z-Trip’s Motion for Summary Judgment: A Case Study in Reading and
Briefing Opinions, Outlining, and Other Essential Law School Skills

 Z Trip files a motion for summary judgement

o MSJ
A. Filing a Motion for Summary Judgment
a. An MSJ asks the judge to reject one of more cause of action before trial
b. The moving party must show that allowing the dispute to go further would waste
time and money because no reasonable jury could find in the non-moving party’s
favor
1. MSJs and Evidence
 An MSJ involves a preliminary mini trial
 Litigants support their factual assertions with admissible
evidence
 Their Memorandum of points and authorities (doc with
their legal argument) must support any factual claims by
citing relevant documents, affidavits, and transcripts of
depositions
2. Factual Disputes
 The party seeking summary judgment is only entitled to
use undisputed facts to prove that its opponent can’t
prevail at trial
i. Ex: Everyone agrees that the BB asked Z-Trip to
post the Megamix in 2011
 To defeat an MSJ, the non-moving party will try to reveal
that there are disputed issues of material fact
i. The non moving party must demonstrate that the
parties disagree about facts that could affect the
ultimate outcome of a claim
B. How to Read a Case: Judge Engelmayer’s Ruling on Z-Trip’s MSJ
 Reading part of Judge Engelmayer’s ruling
 LOL @ “Z-Trip’s locution, although memorable, was
entirely too enigmatic and elliptical to constitute the “clear
[and] unambiguous” acceptance necessary for contract
formation.”
1. Finding the Rules in a Case
 First thing to find in a case is the relevant black-letter rule (or rules)
o Rules are generalized statements about the law
o Judge Engelmayer’s opinion informs us:
 A contract requires offer, acceptance, and consideration. 4
 An offer is “a display of willingness to enter into an agreement on
specified terms, made in a way that would lead a reasonable person to
understand that the offeror intends to be bound if the offeree accepts.”
  An acceptance can be made in “any way invited or permitted by the
offer.” However, an acceptance must be “clear, unambiguous and
unequivocal.”
 A) Rules with Elements
o Rules often contain multiple elements (subparts of the rule)
o Try to break rules down into these discrete parts
o “offer” as in offer and acceptance has two elements
 1) the person making the offer must signal their “willingness to enter into
a contract on specified terms” &
 2) they must signal that willingness in a way that would lead a reasonable
person to understand that the offeror intends to be bound if the offeree
accepts
o So even if someone proposes an agreement with specific terms, it’s not an offer
if, for some reason, an ordinary person wouldn’t think that acceptance would
seal the deal
 Like if the proposer uses a sarcastic tone
 B) Rules with Factors
o Other rules consist of factors that a court must weigh in reaching a decision
 Ex: Lanham Act issue in BB is false endorsement (whether Monster’s use
of the Megamix and its mention of the BB would confuse consumers
about whether the band supported the company)
 Determining whether false endorsement occurred includes considering:
 1) level of recognition BB has among Monster’s customers
 2) Similarity between the group’s name and music and the music
and names Monster used
 3) Evidence that Monster consumers truly were confused
 4) Monster’s intentions in selecting the BB
 5) The sophistication of Monster’s customers
o Factor-based rules ask the court to weigh and balance these considerations
(factors)
 Not every factor needs to be proven
 For factor-based rules, it’s possible that a strong showing on one factor
could satisfy the legal test even if other factors aren’t met
 C) Tips for Understanding Rules
o It’s easy to memorize a rule, but harder to figure out how to use a rule
o To master rules you need to be able to use them and try them out
o You need to analyze each distinct part of the rule
2. Identifying a Case’s Holding and Reasoning
 Holding is how the court applies the rule to the facts of the case in order to reach an
outcome
 Reasoning is the logic that the court employs during this process
 So you want to flag the rule, figure out how the court applies the rule to the facts of the
case, and the reasoning the court uses
  A) Discussion Questions Point You in the Right Direction
o Pay attention to the questions that follow the decision in your casebook
o They are often a way of highlighting what’s most important about the case
C. Briefing a Case
 Briefs are short summaries of each major opinion
1. The Anatomy of a Brief
 Facts
 Procedural Posture (quick summary of what any lower court has already decided in a
case)
 Issue(s)
 Holding(s)
 Reasoning

Problem 5-1
 Dispositive Facts
o Those that actually affect the resolution of a legal issue
o The contents of the email are dispositive facts because they’re front and center
in the court’s analysis
Facts: The BB allowed Zach Sciacca, a DJ known as “Z-Trip” to create a megamix of their music.
In 2012, Phillips at Monster hired Z-Trip to DJ the after-party of a snowboarding competition
called Ruckus in the Rockies. Phillips attended one semester of college, worked in the forestry
and ski industry, and then worked as the director of marketing for Monster in Canada. Philips
asked Z-Trip if he had any music that Monster could use to make a video recapping the event.
Z-Trip responded by saying that he’d made a Megamix and that Philips could download it for
free from Z-Trip’s website. Philips then used the Megamix as the soundtrack for Monster’s
recap video. Philips emailed Z-Trip a link and asked him to “have a lok at the video… and let me
know if you approve” Z-Trip replied “Dope!” Monster posted the video on its YouTube page.
The BB sued Monster for copyright infringement and false endorsement. Monster filed a third
party complaint against Z-Trip arguing that he had breached a contract by not giving Monster
the rights to the Megamix. Monster asserts that Z-Trip defrauded Monster when after Philips
asked Z-Trip if he had any music that Monster coule use as the soundtrack to the Video, Z-Trip
told Philips that Monster could use his Megamix.

Procedural Posture: Z-Trip moves for summary judgment on Monster’s breach of contract
allegations.

Issues: 1) Did Z-Trip falsely represent to Monster that it had the rights to Megamix and was
giving those rights to Monster for free? 2) Did Z-Trip intend to trick Monster in this way? 3) Did
Monster reasonably believe that Z-Trip was giving Monster the rights to the Megamix? 4) Did
Monster suffer damages as a result of this misrepresentation?
Holdings: Monster could not rely on Z-Trip’s vague statements to believe they had obtained the
necessary licenses to use the BB’s original recordings. Monster’s case of fraud to Z-Trip is
dismissed with prejudice. Z-Trip’s motion for summary judgment is granted.

Reasoning: Monster is a major corporation and Z-Trip is a disk jockey. Monster didn’t make a
credible argument why it could conclude that Z-Trip’s “Dope!” gave Monster the necessary
licenses. Monster did not investigate these matters. Philips did not ask Z-Trip whether he had
any authority to use BB’s original works.

3. Outlining Timing
 It’s best not to outline a discrete section of a class until you’ve finished it
o Like after you’ve fully gone over the concepts of offer and acceptance
o DON’T START TOO LATE
 Take practice tests
 Start outlining anywhere from around one month to halfway through the term

E. Exams

^ This is an issue-spotter
 It tells a story and then asks you an open-ended question
 Your job is to identify all the relevant legal topics and analyze them
 Real issue-spotters tend to be a page or two of dense facts

IRAC
 You must write exam answers in a rigid format called IRAC
 Start by listing the Issue
 Then state the Rule
 Use the facts to Analyze whether the rule is or isn’t fulfilled
 Then briefly Conclude

Know Your Rules

Analogizing to and Distinguishing Precedent is an Essential Skill

Chapter 6: Reading and Using Cases in Practice
 Captions and citatons help you locate and identify particular opinions

How Lawyers Read a Case

1. The Case Caption and Citation
 A good place to start discussing the use of cases in the real world is the caption
 The caption tells you where the case is from, when it was decided, and who the parties
were

 The least intuitive part of the caption is the citation

o This is a kind of address that helps you find the decision
o “606 F. Supp. 554” means that you can find a hard copy of the opinion in the
606th volume of West Federal Supplement starting on page 554
 You’ll find this by tying citations into legal databases like Westlaw or Lexis
o (W.D.N.Y. 1985) tells you the case was decided by the United States District
Court for Western District of New York in the year 1985
2. Positive and Negative Authority
 You need to know whether a case helps or hurts your case
o This determines whether the case is positive authority or negative authority
3. Analogizing and Distinguishing Cases
 As a lawyer, you’ll analogize to positive authority and distinguish negative authority
 Analogizing means highlighting the factual similarities between the previous case and
the current dispute
4. Mandatory and Persuasive Precedent
 Authority is mandatory or persuasive
 A judge can’t ignore mandatory rule
 A judge can disagree with a rule that’s merely persuasive and adopt a different rule
 Federal Law
o U.S. Supreme Court rules: Mandatory authority for all courts
 o Opinion by a federal circuit court: mandatory in any district court within that
region
4a. Stare Decisis
 Latin for “to stand by things decided”
 All supreme and appellate courts are bound by their own prior opinions
 Ex: If the U.S. Supreme Court holds that willful copyright infringement occurs
when a defendant acts with mere negligence, then future Justices are bound by
that ruling
 Sometime the U.S. Supreme Court and state supreme courts deviate from stare
decisis
o Judges are likely to overrule an older opinion that reflects an outmoded
view of the world
4b. Persuasive Authority
 Generally comes from lower courts or judges in different geographical areas
 Opinions from sister circuits or states can be informative
 But no matter what they say, the judge is free to disagree
 District courts aren’t bound by decisions from other district courts
4c. Precedential Value
 Whether a case is mandatory or persuasive
 The Erie doctrine oversimplified:
o Erie = the proposition federal courts follow for federal procedural law,
but must defer to states on issues of state substantive law
5. Holding and Dicta
 Even if a decision comes from a court at the top of the precedential ladder, such as the
U.S. Supreme Court, it might contain non-binding passages called dicta
 Dicta = any portion of an opinion that’s not necessary to decide the case
 Just adds to the decision but doesn’t affect it
 BB Ex:
o Judge Engelmayer first holds that neither party made an offer. With no offer,
there’s no contract. Game. Over. However, thep. 109p. 110opinion then goes on
to explain that even if Monster had made an offer, Z-Trip didn’t accept it. This
superfluous analysis is dicta.6
Case Analysis
 Some courts have recognized a defense to Lanham Act liability called nominative fair
use
o Permits someone to use a trademarked word, name, or brand when “the only
practical way to refer to something is to use that term”

Chapter 7: Statutory Interpretation

 There are various sources of the law:
o The U.S. Constitution
o State constitutions
o Federal statutes and regulations
 o State statutes and regulations
o Common law (court opinion)
 This chapter looks at how states interpret statutes
 All BB’s allegations against Monster arise from state and federal statutes

A. The Primacy of Statutory Text

 The prime directive in statutory interpretation is for the courts to implement the intent
of the legislature
o Courts begin my examining the statute’s text
o This is usually pretty ambiguous
 To help with ambiguity:
o Legislators may include definitions of terms in the statute
o Courts may rely on dictionaries to clarify the meaning of statutory language
o Courts use canons of construction, a system of presumptions and maxims
o Courts refer back to legislative history

1 (A) Defined Terms

 The defined terms may only bear passing resemblance to the definitions of the same
words in a standard English dictionary
 It’s common for separate statutes to define the same word differently

2 (A) Dictionaries
 The U.S. Supreme Court relies heavily on dictionaries to clarify ambiguous terms

3 (A) Canons of Construction

 = Revered presumptions and principles that (supposedly) reflect the will of the
legislature
 Include
o Expressio unius est exclusion alterius
 “The expression of one thing excludes another”
 Ex: Each citizen has a right to vote suggests that non citizen may not have
the right to vote
o Statutes in derogation of the common law should be interpreted narrowly
 Derogation = to repeal
 So statutes that change common law
o Ejusdem generis “I just am generous”
 General words that follow specific words only apply to things of the same
kind or class as the specific words
 Ex: a law regulates “cattle, sheep, horses, goats, pigs, or any other farm
animals” This excludes chickens because chickens are not four legged
mammals, although they are farm animals
o The rule against surplusage
 “Courts must give effect to each word the drafters use”
  You can get caught in a loophole with wording

B. Falling Back on Legislative History

 When defined terms, dictionaries, canons, and other text-based interpretive tools fail to
clarify ambiguity
 Look at legislative history
o Bill’s drafting history
o Declarations of intent by the legislature
o Transcripts of floor debates
o Reports issued by committees
o General thrust of the legislation

Chapter 8: Pre-Trial and Trial

 Trials are exceedingly rare
 98% of civil complaints in federal court are dismissed, withdrawn, settled or resolved
through alternative dispute resolution techniques such as arbitration
 BB went to a jury trial

A. Pre-Trial
 There is so much time and work that goes into a trial that plaintiffs often narrow the
range of contested issues
 BB dropped their New York Civil Rights Law section 51 claim
 So it boiled down to the Copyright and Lanham Acts

1 (A) Evidence
 Federal Rules of Evidence are the most important body of law in pre-trial planning and
litigation

1 (A) a. Relevance
 To be admissible, evidence must be relevant
o Must “make” the existence of any fact that is of consequence to the
determination of action more probably or less probable”
o Evidence must help to substantiate or disprove a fact that has direct bearing on
the case
o BB could submit RELEVANT evidence that Monster didn’t have any internal
system to clear intellectual property rights for ads because this suggests that
Monster’s infringement was wilful

1 (A) b. Federal Rule 403

 Closely related to relevance
 Excludes evidence when its probative value (the amount of its relevance) “is
substantially outweighed by the danger of [the evidence resulting in] unfair prejudice,
confusion of the issues, or misleading the jury…”
  Rule 403 would prevent evidence of lewd and offensive BB lyrics from trial because they
might sway the jury for the wrong reasons

1 (A) c. Hearsay
 Bars litigants from using out-of-court statement to prove the truth of the matter
asserted
 Ex: Philips’s colleague Jane says that Philips told her in May 2012 that he had obtained
BB’s consent to use the Megamix
o This is hearsay because this is a conversation that happened outside of court

2. Expert Testimony
 Expert witnesses inform the fact-finder (jury, judge) about industry norms, scientific
concepts, and complex calculations (like damages)
 Challenges by the opposing counsel to the admissibility of expert testimony are all but
guaranteed

3. Jury Selection
 1) A pool of potential jurors (the venire) gather in the courtroom
 2) Through a written survey or through oral questioning (voir dire), the prospective
jurors describe their education, job history, hobbies, previous jury service, and
participation in social, civil, or professional organizations
 3) The lawyers can move to strike any prospective juror for cause if they have reason to
suspect that the prospective juror can’t be impartial toward their client
 4) The lawyers have a limited number of peremptory challenges for which challenges
they don’t need to give any reason for striking a prospective juror

B. Trial
 The opening statement is a trial lawyer’s first chance to sway the factfinder
o Like a preview at the movies
o Effective attorneys craft opening statements that revolve around a particular
theme or catchword that resonate with the jury

2. Direct Examination and Cross Examination

 Testimony: the sworn oral statement of a witness
o Form of evidence
 A witness who intentionally conceals or misstates the facts is punishable under the law
of perjury

2 a Direct Examination
 Attorney representing a party is the first to question the witness through direct
examination
 Purpose is to introduce certain facts into evidence and to humanize people in a case
 Also address any potentially damaging information head on
  Pleasant conversational tone

2 b Cross-Examination
 Witness faces the lawyer for the opposing party
 Pointed “yes or no” questions

3. Closing Arguments
 Closing arguments is the trial lawyer’s last chance to speak directly to the jury
 Trials begin with opening statements
 Trials end with closing arguments
o Can be argumentative

4. Jury Instructions
 Before jury deliberations begin, attorneys for each side submit proposed instructions to
the judge
 The judge often selects one of the two competing proposal to charge the jury

5. The Verdict in Beastie Boys

 Beastie Boys wins
 Can’t recover both actual and statutory damages on their copyright claims
 Took home $1.7 million ($1.2 in statutory damages under the Copyright Act ad $500,000
under the Lanham Act)

Chapter 9: Post-Trial
 The jury’s decision didn’t end the dispute between BB and Monster
 BB filed two post-trial motions and Monster filed a notice of appeal

A. Post-Trial Motions in Beastie Boys

1. The Beastie Boys’ Motion for a Permanent Injunction Against Monster
 In late 2014, the Beastie Boys filed a motion for a permanent injunction against Monster
 Injunction: A form of equitable relief in which the court commands a defendant to do
(or not to do a specific act)
 An Injunction is “an extraordinary remedy, which should be granted only in limited
circumstances
 To obtain an injunction a plaintiff must demonstrate:
o That is has suffered or will suffer an “irreparable injury” that can’t be
compensated through money damages and
o That the injunction won’t impose too much hardship on the defendant
 BB asked Judge Engelmayer to order Monster to refrain from:
o “using, distributing, or promoting” the Ruckus video
o “using their music, voices, names and trademarks in any advertisement or other
trade-related content”
2. The Beastie Boys’ Motion for Attorneys’ Fees
 In January 2015, BB filed a motion for attorney’s fees under the fee-shifting provisions of
the Copyright and Lanham Acts
 Judge Engelmayer granted the motion in part and denied it in part, awarding the BB
$66,849.14 of the $2,385,175.50 they sought

3. Monster Files a Notice of Appeal

 A Notice of appeal alerts the opposing party and the trial court that you intend to
challenge the judgement
 Next the parties need to compile the appellate record, which contains all the
information that the appellate court needs to review the decision below
 So each side needs to comb through all of the evidence introduced at trial, the
transcripts and proceedings, and the parties’ briefs for relevant material
 Each party files appellate briefs and sometimes conducts oral arguments before a three
judge appellate panel

B. The Beastie Boys and Monster Reach a Post-Verdict Settlement

 In early 2016, the parties settled
 The terms were confidential

Chapter 10: The Road Ahead; Law School, the Bar Exam, and Practice
A. A Brief History of Legal Education
1. The Apprenticeship Model of Legal Education
i. Used to be the norm and still exists in several states
2. Christopher Columbus Langdell, Architect of the Law School Model
1. Dean of Harvard from 1870-1895
ii. The Case Method
1. Reading and analyzing judicial opinions
iii. The Socratic Method
1. Cold calling students
3. Law School Today
i. “soft Socratic” method
ii. The First Year of Law School
1. Scared to death
2. Bar classes
3. Law school exams require you to spot legal issues that are hidden
in fact patterns and write a clear analysis
iii. The Second Year of Law School
1. Worked to death
2. Less homework and can take electives and seminars
3. The Law Review
iv. The Third Year of Law School
1. Bored to death
B. The Bar Exam
1. A Brief History of the Bar
i. 1763: Delaware becomes first colony to require attorneys to pass an oral
test by a judge
ii. Originally was very individualized by examiners
1. Abe Lincoln taking a bath example
2. Today’s Bar
i. Usually 2 days
ii. Issue-spotting essays that are simplified versions of law school finals
iii. Topics: Business Associations, Civil Procedure, Constitutional Law,
Contracts, Criminal Law, Evidence, Professional Responsibility, Real
Property, Remedies, Torts, Wills and Trusts
iv. Sometimes a performance test
3. Bar Review Classes
i. The goal is passing, not perfection
4. Taking the Bar
5. Law Practice
i. Clerking
ii. “BigLaw”
iii. Practicing Law in Mid-Size and Small Firms
iv. Practicing Law in Government
1.