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What indicated that the terms in the agreement at issue in this case were accepted? What were the appellant’s arguments in support of her claim? Which of those contentions did the court imply was irrelevant? Why? How did the court distinguish its conclusion in this case from its decision in Beck-Hummel?

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Hinkal v. Pardoe

Melinda Hinkal filed a suit in a Pennsylvania state court against personal trainer Gavin Pardoe and Gold’s Gym, Inc., alleging that] she sustained a serious neck injury while using a piece of exercise equipment under * * * Pardoe’s direction [at Gold’s Gym. Hinkal] alleges that she suffered a rupture of the C5 disc in her neck requiring two separate surgeries. [Gold’s and Pardoe] filed a Motion for Summary Judgment [asserting] that as a member of Gold’s Gym
[Hinkal] signed * * * a Membership Agreement [that] contains legally valid “waiver of liability” provisions, which in turn, bar [her] claims.The trial court concluded that the waiver language set forth in Gold’s Membership Agreement was valid and enforceable.[Hinkal] filed a timely appeal to this [state intermediate appellate] Court.* * * *
* * * Appellant [Hinkal] questions whether the waiver on the back page of her membership agreement is valid and enforceable. The language on the back page of the agreement reads in pertinent part as follows:WAIVER OF LIABILITY; ASSUMPTION OF RISK:
Member acknowledges that the use of Gold’s Gym’s facilities, equipment, services and programs involves an inherent risk of personal injury to Member. * * * Member voluntarily agrees to assume all risks of personal injury to Member * * * and waives any and all claims or actions that Member may have against Gold’s Gym * * * and any * * * employees * * * for * **
injuries arising from use of any exer–cise equipment * * * in supervised or unsupervised activities.The Gold’s Gym Membership Agreement signed by Appellant further instructs:Do not sign this Agreement until you have read both sides. The terms on each side of this form are a part of this Agree–ment. * * * By signing this Agreement, Member acknowledges that This Agreement is a contract that will become legally binding upon its acceptance.The signature line follows immediately and the words “Notice: See other side for important information” appear in bold typeface below the signature line.


* * * Appellant * * * asserts that her claim is not barred by the “exclusion clause” on the back of the membership agreement. * * * Appellant contends the waiver is invalid because the waiver language appeared on the back of the agreement, she never read or was told to read the back of the agreement, and the clause was not “brought home” to her in a way that could suggest she was aware of the clause and its contents. However,
* * * Appellant admitted she did not read the agreement prior to signing it. * * * Her failure to read her agreement does not render it either invalid or unenforceable. The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first. * * * It is well established that, in the absence of fraud, the failure to read a contract before signing it is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract. [Emphasis added.]
[To support her claim, Appellant cites Beck-Hummel v. Ski Shawnee, Inc., a previous case before this court, but] the
signed Gold’s Gym membership agreement cannot be compared in any way to the unread and unsigned disclaimer on a ski facility ticket in [Beck-Hummel.]* * * *

* * * In [Beck-Hummel,] the release provision was contained on the face of an entry ticket purchased for use of a ski facility. The ticket did not require a signature or an express acknowledgment that its terms were read and accepted
before using the facility. Nothing about the ticket ensured that a purchaser would be aware of its release provision. The purchasers were mere recipients of the document. In short, there was not sufficient evidence to find conclusively that there was a meeting of the minds that part of the consideration for use of the facility was acceptance of a release provision. In stark contrast, here there is a written, signed and acknowledged agreement between the parties.* * * *

Here, without reading it, Appellant signed the membership agreement, which included an unambiguous directive not to sign before reading both sides, a clear pronouncement that the terms on both sides of the form are part of the agreement, and a straightforward statement that the agreement constitutes the entire agreement between the parties. * * * We find no genuine issue as to any material fact or any error in the lower court’s determination that the waiver was valid and enforceable. Appellant is not entitled to relief based on [this] issue.* * * Order affirmed.

Legal Reasoning Questions

1. What indicated that the terms in the agreement at issue in this case were accepted?

2. What were the appellant’s arguments in support of her claim? Which of those contentions did the court imply was irrelevant? Why?

3. How did the court distinguish its conclusion in this case from its decision in Beck-Hummel?

Suppose that prior to this lawsuit, the new government of Honduras had enacted a law making it illegal to purchase weapons from foreign arms dealers. What doctrine of deference might lead a U.S. court to dismiss Robco’s case in that situation?

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International and Space Law


Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco
over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought
to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract
and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal
district court in the United States to recover damages for this breach of contract by the government of Honduras. Using
the information presented in the chapter, answer the following questions.

1. Should the Foreign Sovereign Immunities Act (FSIA) preclude this lawsuit? Why or why not?

2. Does the act of state doctrine bar Robco from seeking to enforce the contract? Explain.

3. Suppose that prior to this lawsuit, the new government of Honduras had enacted a law making it illegal to purchase
weapons from foreign arms dealers. What doctrine of deference might lead a U.S. court to dismiss Robco’s case in
that situation?

4. Now suppose that the U.S. court hears the case and awards damages to Robco. The government of Honduras,
however, has no assets in the United States that can be used to satisfy the judgment. Under which doctrine might
Robco be able to collect the damages by asking another nation’s court to enforce the U.S. judgment?

Identify the stakeholders and their obligations. Identify and consider all of the people affected by a decision – the stakeholders. Identify the accounting and auditing issues.

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Ethical dilemma

1. what is the primary ethical issue in this case?
2. Gather all the facts. Specify the relevant facts, disagreement, and other conflicts situations.
3. Identify the stakeholders and their obligations. Identify and consider all of the people affected by a decision – the stakeholders.
4. Identify the relevant accounting ethics standards involved in the situation. Identify the most ethical values of the accounting profession that should be considered in evaluating the facts and alternative courses of action.
5. identify the operational issues
6. Identify the accounting and auditing issues.
7. List all the possible alternatives that you can or cannot do.
8. compare and weigh the alternatives. Is it legal ( in conformity with Laws PCAOB rules)? is it consistent with professional standards AICPA principles, IMA ethics standards; GAAP, and GAAS? Is it consistent with in-house rules
(firm’s policies and its own code of ethics), is it right?
what are the potential harms and benefits to the stakeholders? is it fair to the stakeholders? Is it consistent with virtue considerations?
9. Decide on a course of action. After evaluating the ethics of the alternatives, select the one that best meets the ethical requirements of the situation.
!0. Reflect on your decision.

Did Hanousek have the required mental state (mens rea) to be convicted of a crime? Why or why not? Which theory discussed in the chapter would enable a court to hold Hanousek criminally liable for violating the statute if he participated in, directed, or merely knew about the specific violation?

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Criminal Law and Cyber Crime

Edward Hanousek worked for Pacific & Arctic Railway and Navigation Company (P&A) as a roadmaster of the White
Pass & Yukon Railroad in Alaska. Hanousek was responsible “for every detail of the safe and efficient maintenance and
construction of track, structures and marine facilities of the entire railroad,” including special projects. One project
was a rock quarry, known as “6-mile,” above the Skagway River. Next to the quarry, and just beneath the surface, ran a
high-pressure oil pipeline owned by Pacific & Arctic Pipeline, Inc., P&A’s sister company. When the quarry’s backhoe
operator punctured the pipeline, an estimated 1,000 to 5,000 gallons of oil were discharged into the river. Hanousek
was charged with negligently discharging a harmful quantity of oil into a navigable water of the United States in viola-
tion of the criminal provisions of the Clean Water Act (CWA). Using the information presented in the chapter, answer
the following questions.

1. Did Hanousek have the required mental state (mens rea) to be convicted of a crime? Why or why not?

2. Which theory discussed in the chapter would enable a court to hold Hanousek criminally liable for violating the
statute if he participated in, directed, or merely knew about the specific violation?

3. Could the backhoe operator who punctured the pipeline also be charged with a crime in this situation? Explain.

4. Suppose that at trial, Hanousek argued that he should not be convicted because he was not aware of the require-
ments of the CWA. Would this defense be successful? Why or why not?

Explain: (a) How imprisonment adds to societal inequality . (b) how ignoring the victimization of black people being labeled criminals contributes to perpetuating negative stereotypes.

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An image of blacks as presumptively criminal.

1) In the article “Slavery gave America a fear of Black people and a taste for violent punishment. Both still define our criminal justice system” by Byron Stevenson from the New York Times 1619 Project, a compelling argument is made that systemically this nation has fostered an image of blacks as presumptively criminal.

Considering this reading, course content, and discussion throughout the semester, explain: (a) How imprisonment adds to societal inequality and (b) how ignoring the victimization of black people being labeled criminals contributes to perpetuating negative stereotypes. (BE SPECIFIC and indicate each response by identifying and highlighting A and B)

Why might a corporation’s managers agree to pay a large fine rather than to be indicted and proceed to trial? How does a manager determine the optimal amount of legal research to undertake to prevent her or his company from violating the many thousands of federal regulations?

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The Criminalization of American Business


What do Bank of America, Citigroup, JPMorgan Chase, and Goldman Sachs have in common? All paid hefty fines for purportedly misleading investors about mortgage-backed securities. In fact, these companies paid the government a total of $50 billion in fines. The payments were made in lieu of criminal prosecutions.Today, several hundred thousand federal rules that apply to businesses carry some form of criminal penalty. That is in addition to more than four thousand federal laws, many of which carry criminal sanctions for their violation. From 2000 to the beginning of 2017, about 2,200 corporations either were convicted or pleaded guilty to violating federal statutes or rules.

Criminal Convictions
The first successful criminal conviction in a federal court against a company—the New York Central and Hudson River Railroad—was upheld by the Supreme Court in 1909 (the violation: cutting prices) Many other successful convictions followed.One landmark case developed the aggregation test, now called the Doctrine of Collective Knowledge.b This
test aggregates the omissions and acts of two or more persons in a corporation, thereby constructing an actusreus and areus and are us men srea out of the conduct and knowledge mens rea out of the conduct and knowledge mens rea
of several individuals.Not all government attempts at applying criminal law to corporations survive. In 2013, for example, Sentinel Offender Services, LLC, prevailed on appeal. There was no actual evidence to show that the company had acted with specific intent to commit theft by deception.c In 2014, FedEx Corporation was indicted for purportedly illegally shipping prescription drugs ordered through Web sites. FedEx has chosen to proceed to trial in the U.S. District Court for the Northern District of California in San Francisco.d Many companies, however, choose to reach settlement agreements with the government rather than fight criminal indictments.

Many Pay Substantial Fines in Lieu of Prosecution

More than three hundred corporations reached so-called non-prosecution agreements with the government from 2000 to the beginning of 2017. These agreements typically involve multimillion- or multibillion-dollar fines. This number does not include fines paid to the Environmental Protection Agency or to the Fish and Wildlife Service.According to law professors Margaret Lemos and Max Minzner, “Public enforcers often seek large monetary awards for self-interested reasons divorced from the public interest and deterrents. The incentives are strongest when enforcement agencies are permitted to retain all or some of the proceeds of enforcement.”

Business Questions

1. Why might a corporation’s managers agree to pay a large fine rather than to be indicted and proceed to trial?

2. How does a manager determine the optimal amount of legal research to undertake to prevent her or his company from violating the many thousands of federal regulations?

Do problems that Professor Kerr has identified with the current Electronic Communications Privacy Act (ECPA) ring true to you? What about his four basic proposals for a new law?

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Critiquing Professor Kerr’s Proposal For A “Next Generation Computer Privacy Act”

The paper should be as long as you feel necessary to make your points.

Kerr makes 4 basic proposals for a new ECPA in the last half of his article. I think the best way to do it would be to summarize Professor Kerr’s proposal , then write your critique below it. Then, summarize another of his proposals and write your critique below etc. And so on…

You all have a unique perspective that most lawyers don’t have. Do problems that Professor Kerr has identified with the current Electronic Communications Privacy Act (ECPA) ring true to you? What about his four basic proposals for a new law?

Should any use of FRT by law enforcement be barred until the FRT is demonstrably more accurate? Or, should FRT be used only when law enforcement officers have a search warrant, backed by a finding of probable cause?

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Facial recognition technology

Should federal , state, and local governments impose on the use of “facial recognition technology” (FRT) by law enforcement?

For instance, given FRT’s demonstrated accuracy problems – at least three people have been falsely arrested because of faulty FRT identifications- should any use of FRT by law enforcement be barred until the FRT is demonstrably more accurate? Or, should FRT be used only when law enforcement officers have a search warrant, backed by a finding of probable cause? Should there be an exception to any warrant requirement for use of FRT by DHS officers at the borders? Or should DHS officers at least be required to document “reasonable suspicion” when they use FRT at the borders? Should the FRT databases be limited to mugshots of those who have been arrested, or to photos from motor vehicle databases?

Should use of FRT from companies such as Clearview AI be barred altogether because their databases are developed through “web-scraping” (II, below) which allegedly violates state “biometric information privacy laws” and the Federal Computer Fraud and Abuse Act (CFAA)? Would such a bar unlawfully infringe on Clearview’s First Amendment to Free Speech ?

The use of FRT by law enforcement obviously raises important legal and public policy issues. Please write a paper (10-15 pages) in which you analyze the issues and explain your view of how FRT use by law enforcement should be regulated.

Would the name Hallowed receive protection as a trademark or as trade dress? Explain.Hallowed receive protection as a trademark or as trade dress? Explain.Hallowed. If Trent and Xavier had obtained a patent on Hallowed, would the release of Halo 2 have infringed on their patent? Why or why not?

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Intellectual Property Rights


Two computer science majors, Trent and Xavier, have an idea for a new video game, which they propose to call Hal–
lowed. They form a business and begin developing their idea. Several months later, Trent and Xavier run into a problem
with their design and consult a friend, Brad, who is an expert in designing computer source codes. After the software
is completed but before Hallowed is marketed, a video game called Halo 2 is released for both the Xbox and the Play–
station systems. Halo 2 uses source codes similar to those of Hallowed and imitates Hallowed’s overall look and feel,
although not all the features are alike. Using the information presented in the chapter, answer the following questions.

1. Would the name Hallowed receive protection as a trademark or as trade dress? Explain.Hallowed receive protection as a trademark or as trade dress? Explain.Hallowed

2. If Trent and Xavier had obtained a patent on Hallowed, would the release of Halo 2 have infringed on their patent?
Why or why not?

3. Based only on the facts described above, could Trent and Xavier sue the makers of Halo 2 for copyright infringement? Why or why not?

4. Suppose that Trent and Xavier discover that Brad took the idea of Hallowed and sold it to the company that produced Halo 2. Which type of intellectual property issue does this raise?

Does the proposal strike an appropriate balance ? For instance , will the benefit to law enforcement outweigh the increased risk to the security of data of innocent users? Are the questions proposed for Apple and Google in the Manhattan DA’s report relevant?

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Critiquing Proposals That Would Compel Decryption of Data Stored On Computer Devices

As you know from this week’s lecture, there is a proposal in the Senate for a statute (Sources 3- Lawful Access to Encrypted Data Act) which would require companies like Apple to comply with court orders which, in turn, requires these companies to provide law enforcement with data in “intelligible form” if “such data has been made unintelligible by a feature, product or service owned, controlled, created or provided by” the company.

The legislation appears to be designed to address situations where police are authorized to access the contents of particular documents on the phone because: (1) they have a search warrant backed by probable cause; (2) a court has issued a “decryption order” after a judge has determined that ordering the suspect to “decrypt” (e.g. unlock the phone) does not violate the suspect’s 5th Amendment rights; (3) the suspect still refuses to unlock despite the judges order to do so and(4) the phone’s manufacturer (e.g. Apple) says it cannot unlock the phone.

As you probably know, there has been almost universal resistance to efforts by local, state and national law enforcement officials to reach some compromise on the encryption issue. (e.g Sources “3- “Experts – Hands Off Encryption”)

A “report” from the Manhattan DA in November, 2015 is part of the reading for Week 3. This report says, for instance, that in the period between September 17, 2014 and October 1, 2015, the Manhattan DA’s office “was unable to execute approximately 111 search warrants for smartphones because because Apple, which had assisted in the past, now says it is literally unable unlock the phones. The warrants command officers to search for evidence of the crimes of “homicide, attempted murder, sexual abuse of a child, sex trafficking, assault, and robbery.” Manhattan DA Report p.9

Write a paper critiquing the Manhattan DA’s report (including 2016 -2019 “updates”). Does the proposal strike an appropriate balance ? For instance , will the benefit to law enforcement outweigh the increased risk to the security of data of innocent users? Are the questions proposed for Apple and Google in the Manhattan DA’s report relevant? Does the DA’s proposal meet the concerns of the scientists in the MIT paper that I loaded as “Experts Say Hands Off Encryption” (please focus on the relatively brief section on “data at rest”) Sources – 3? Is the Lawful Access to Encrypted Data Act a better solution (Sources 3)? https://www.manhattanda.org/our-work/smartphone-encryption-and-public-safety/