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Assignment module 1.

C.5 p.26
First and foremost it should be noted that in this case we should refer to the process
of legal interpretation. This is one of the legal reasoning`s elements that helps us
understand how lawyers and judges interpret the words in different legal rules and
statutes. Legal interpretation contains different ways which we can use (textbook
p.13):

looking at the plain meaning of the word;


referring to the legislative history of the statue;
determining the purpose of the law;
trying to accommodate public policy.

We have to comprehend does the RealNetworks License Agreement correspond a


writing or not. In my opinion, User License Agreement constitutes a writing form.
First, we need refer to the plain meaning of the word written. In explanatory
dictionaries we can find following definitions of the word write: 1) mark or trace
on a surface [WordNet: http://wordnetweb.princeton.edu/perl/webwn]; 2) set down
in

writing

in

any

of

various

ways

[WordNet:

http://wordnetweb.princeton.edu/perl/webwn] 3) to put letters, numbers or symbols


on a piece of paper or a computer screen, using a pen, pencil or keyboard [Cambridge
Business English Dictionary: http://dictionary.cambridge.org/dictionary/businessenglish] Looking through the definitions, especially third meaning, we can consider
License Agreement as the written one. Moreover, we can assume that someone wrote
down this agreement before it was published on the RealNetworks`s website. That is
why, plaintiff was wrong believing that electronic document is not appropriate for the
value of the written form. Besides, there is the similar conflict situation with
electronic documents (e-mail messages) and

Federal Arbitration Act (FAA) in

Campbell v. General Dynamics case. In this case, the court decided that FAA would
not preclude from giving legal effect to an agreement solely on the basis that it was in
electronic form. Also, if we address to history of the law we will take into account

that Federal Arbitration Act was enacted in 1925 before computer was invented and it
had left out the emergence of electronic documents. To sum up, I consider this
License Agreement complies with the written agreements provisions of the Federal
Arbitration Act.
C.7 p.26
In this case we should refer to stare decisis concept (textbook p.16) which consist of
three steps:
1. finding earlier precedents with similar facts;
2. finding out a rule of law;
3. applying that rule to the case at hand.
Stare decisis doctrine emphasizes court should follow main ideas and rulings of
previous cases in making-decision process. As for me, I consider that the
MacPherson`s suit to the Buick Motor Company was absolutely legal. So,
MacPherson had the right to recover from the Buick as manufacturer could not avoid
liability based upon the fact that it sold the car to automobile dealer, because it had
the duties to make inspection of the car and its various parts, which it failed to do.
Nevertheless, in our task we have previous similar cases Thomas v. Winchester and
Delvin v. Smith which help us to find similar facts and make decision. First, there are
no contractual legal relationship between manufacturer and buyer in our case and
previous ones. So, it is difficult for the court to prove the legitimacy of the
prosecution for Buick Motor. However, we cannot deny that in all cases people were
at risk, injured and there was a threat of the death. That is why, in all cases was the
same level of risk. Secondly, in all cases we can tell about manufacturer`s negligence.
Manufacturer falsely labeled a poison in Thomas v. Winchester case, built scaffold
carelessly in Delvin v. Smith case and did not make the necessary inspection of
wheels. Later negligence failure of manufacturers caused damage to buyers. What is
more, in both cases, Thomas v. Winchester and Delvin v. Smith, defendants were
determined by court to make amends to plaintiffs. From these facts, we may derive
rule that manufacturer can be responsible for the negligent construction of a product

regardless of the lack of contractual relationship. According to all this fact, court
could establish MacPherson will able to recover against the Buick Motor Company.
Q.2 p.51
First of all, referring to the definition, diversity jurisdiction is a federal court's power
to hear any case where the amount in controversy exceeds $75,000 and no plaintiff
shares
a
state
of
citizenship
with
any
defendant.
[http://www.law.cornell.edu/wex/diversity_jurisdiction] Diversity jurisdiction appears
in several cases (U.S. Code: Title 28, Part IV, Chapter 85, 1332):
trial between citizens of different states (For example, diversity jurisdiction
exits when a citizen of Minnesota is suing a citizen of New York and claiming
$75,000 or more in damages);
lawsuit between United States citizens and those of another country;
trial between citizens of different States and in which citizens or subjects of a
foreign state are additional parties.
Q.6 p.51
According to the text book (p.41), the basic requirements for a class action lawsuit
are:
1. More than one member of plaintiff side. There are no limitations in the number
of claimants, but the average number of plaintiffs is about 50 - 300 people.
2. One or more members of class may sue if the class is so numerous that joinder
of all members is impracticable.
3. There are questions of law or fact common to the class. The defendant can be
charged in violation of the law, breaking of which led to problems in the entire
class.
4. The claims or defenses of the representative parties are typical of the claims or
defenses of the class. The claims of the whole class have to express exactly the
same idea when the plaintiff represents the interests of the class during the
trial.
5. The representative parties will fairly and adequately protest the interests of the
class.

An example of class action lawsuit would be Wal-Mart v. Dukes case in which the
number of plaintiffs was 1.6 million women who currently work or have worked for
Wal-Mart stores, including main plaintiff Betty Dukes. Women have alleged gender
discrimination in pay and promotion policies and practices in Wal-Mart stores.
Q.7 p.51
The pretrial conference is a procedural device that is designed to narrow issues to be
proved at trial or to facilitate a settlement. (Text book p.47) The main purpose of
pretrial conference include finding out what facts or legal issues are in dispute, decide
if any evidence can be proved, fully explore the possibility of dealing with the charge
other than by way of trial. The judge tries to get the parties attorneys to stipulate to
as many of the material facts as possible. Also, the judge endeavour to settle case
before the trail. By the way, it makes the court work easier.