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This page intentionally left blank
 Jeffrey F. Beatty
Boston University

Susan S. Samuelson
Boston University
 Legal Environment, Third Edition
Jeffrey F. Beatty and Susan S. Samuelson

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COPYRIGHT © 2008, 2005 ALL RIGHTS RESERVED. Library of Congress Control Number:
West Legal Studies in Business, an No part of this work covered by the 2006940876
imprint of Thomson/South-Western, copyright hereon may be reproduced or
a part of The Thomson Corporation. used in any form or by any means— For more information about our
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Instructor’s Edition ISBN-10:
0-324-65049-3
Contents: Overview
Preface xvi
Unit 4
Business Organizations 429

Chapters 17 Starting a Business 430

Unit 1 18 Corporations 457
19 Securities Regulation 487
The Legal Environment 1

Chapters 1 Introduction to Law 2

2 Business Ethics and Social
Responsibility 24
3 Dispute Resolution 43 Unit 5
4 Common Law, Statutory Law,
and Administrative Law 73
Government Regulation and
5 Constitutional Law 99
Property 517
6 Torts 126 Chapters 20 Antitrust 518
7 Crime 152 21 Cyberlaw 541
8 International Law 182 22 Intellectual Property 562
23 Property 586
24 Consumer Law 612
25 Environmental Law 636

Unit 2
Contracts & the UCC 209 Appendix A
Chapters 9 Introduction to Contracts 210 The Constitution of the
10 Legality, Consent, and United States A 1
Writing 230
11 Conclusion to Contracts 252 Appendix B
12 Sales, Product Liability, and
Negotiable Instruments 275 Uniform Commercial Code
13 Secured Transactions and (Selected Provisions) B 1
Bankruptcy 304
Glossary G 1
Table of Cases T1
Index I 1
Unit 3
Agency & Employment 339

Chapters 14 Agency 340

15 Employment Law 369
16 Labor Law 401

v
Contents
Preface xvi
CHAPTER 2
Business Ethics and Social
Responsibility 24

Unit 1 Why Bother with Ethics? 25

Society as a Whole Benefits from
The Legal Environment 1 Ethical Behavior 26
People Feel Better When They Behave
CHAPTER 1 Ethically 26
Unethical Behavior Can Be Very Costly 27
Introduction to Law 2
What Is Ethical Behavior? 27
Three Important Ideas about Law 3
Analyzing the Ethics Checklist 28
Power 3
Applying the Ethics Checklist:
Importance 3
Making Decisions 32
Fascination 4
Organization’s Responsibility to Its Customers 33
Origins of Our Law 5 Organization’s Responsibility to Its Employees 34
English Roots 5 Organization’s Responsibility to
THE OCULIST’S CASE (1329) 7 Its Shareholders 36
Law in the United States 8 Organization’s Responsibility Overseas 37
Employee’s Responsibility to Their
Sources of Contemporary Law 9 Organization 38
Constitutions 9
Statutes 9
Common Law 10 CHAPTER 3
Administrative Law 10 Dispute Resolution 43
Other Sources of Law 10
Three Fundamental Areas of Law 44
Classifications of Law 12 Dispute Prevention 44
Criminal and Civil Law 12 Litigation versus Alternative Dispute
Substantive and Procedural Law 12 Resolution 44
Public and Private Law 12
Alternative Dispute Resolution 44
Jurisprudence 13
Negotiation 45
Law and Morality 13 Mediation 45
Legal Positivism 13 Arbitration 46
Natural Law 14
Legal Realism 15 Court Systems 47
Working with the Book’s Features 16 State Courts 47
Federal Courts 49
Analyzing a Case 16
KUEHN V. PUB ZONE 16 Litigation 52
You Be the Judge 19 Pleadings 52
YOU BE THE JUDGE MCCOLLUM V. AMERICAN CASH CARD CORP. V.
CBS, INC. 19 AT&T CORP. 58
vi
 Contents vii

JONES V. CLINTON 60 Statutory Control 92

Political Control 92
Trial 62
Judicial Review 93
Adversary System 62
AMADOR-PALOMARES V.
Right to Jury Trial 62
ASHCROFT 94
Voir Dire 63
Informational Control and the Public 95
Opening Statements 63
Burden of Proof 63
Plaintiff’s Case 64 CHAPTER 5
Rules of Evidence 64 Constitutional Law 99
Motion for Directed Verdict 65
Defendant’s Case 65 Government Power 100
Closing Argument 66 One in a Million 100
Jury Instructions 66
Overview 100
Verdict 66
Motions after the Verdict 66 Separation of Powers 101
Federalism 101
Appeals 66 Individual Rights 101
HERNANDEZ V. MONTVILLE Power Granted 102
TOWNSHIP BOARD OF
Congressional Power 102
EDUCATION 67
Appeals Court Options 68 GRANHOLM V. HEALD 104
Executive Power 105
Judicial Power 106
CHAPTER 4 YOUNGSTOWN SHEET & TUBE
Common Law, Statutory Law, and CO.V. SAWYER 107
Administrative Law 73
Protected Rights 108
Common Law 74 Incorporation 109
Stare Decisis 74 First Amendment: Free Speech 110
Bystander Cases 74 TEXAS V. JOHNSON 110
TARASOFF V. REGENTS OF THE YOU BE THE JUDGE BARNES V. GLEN
UNIVERSITY OF CALIFORNIA 75 THEATRE, INC. 112
Statutory Law 77 LORILLARD TOBACCO CO.V.
Bills 78 REILLY 114
Discrimination: Congress and the Courts 78 Fifth Amendment: Due Process and the Takings
Debate 79 Clause 115
Statutory Interpretation 82 PALAZZOLO V. RHODE
GRIGGS V. DUKE POWER CO. 82 ISLAND 118
Voters’ Role 84 Fourteenth Amendment: Equal Protection
Congressional Override 84 Clause 120
The Other Player: Money 85 Private Regulations 122

Administrative Law 86
CHAPTER 6
Background 87
Classification of Agencies 87
Torts 126
Power of Agencies 88 Intentional Torts 128
DOE V. MARYLAND BOARD Defamation 128
OF SOCIAL WORKERS 91
YOU BE THE JUDGE KNIEVEL
Limits on Agency Power 92 V. ESPN 129
viii Contents

False Imprisonment 131 WISCONSIN V. KNUTSON,

Intentional Infliction of Emotional Distress 131 INC. 164
JANE DOE AND NANCY ROE V. Punishing a Corporation 165
LYNN MILLS 132 Selected Crimes Committed by Business 166
Additional Intentional Torts 133 RICO 167
UNITED STATES V.
Damages 133
BIEGANOWSKI 168
Compensatory Damages 133
Punitive Damages 135 Constitutional Protections 170
WILLIAMS V. PHILIP MORRIS The Criminal Process 170
INCORPORATED 135 The Fourth Amendment 173
The Fifth Amendment 175
Business Torts 137 The Sixth Amendment 177
Tortious Interference with Business Relations 137 The Eighth Amendment 177
Privacy and Publicity 138 EWING V. CALIFORNIA 177
Negligence 138
Duty of Due Care 139
HERNANDEZ V. ARIZONA BOARD CHAPTER 8
OF REGENTS 139 International Law 182
WIENER V. SOUTHCOAST
MNEs and Power 183
CHILDCARE CENTERS, INC. 141
Breach of Duty 142 Trade Regulation 184
Factual Cause and Foreseeable Harm 143
Export Controls 184
Injury 145
Import Controls 185
COLE V. QUIRK 145
RUBIE’S COSTUME COMPANY V.
Defenses 146
UNITED STATES 186
Strict Liability 147 General Agreement on Tariffs and Trade
Ultrahazardous Activity 148 (GATT) 188
UNITED STATES—IMPORT
PROHIBITION OF CERTAIN
CHAPTER 7 SHRIMP AND SHRIMP
PRODUCTS 189
Crime 152
Regional Agreements 192
Crime, Society, and Law 153 International Sales Agreements 193
Civil Law/Criminal Law 153 Direct Sales 193
Punishment 154
CENTRIFUGAL CASTING
The Prosecution’s Case 156
MACHINE CO., INC. V. AMERICAN
Defenses 157
BANK & TRUST CO. 197
YOU BE THE JUDGE BIEBER V. Indirect Sales through a Distributor 198
PEOPLE 158
YOU BE THE JUDGE HARTFORD FIRE
Crimes That Harm Business 159 INSURANCE CO.V. CALIFORNIA 199
Larceny 160 Licensing a Foreign Manufacturer 200
Fraud 160 Investing Abroad 201
Embezzlement 161
Repatriation of Profits 201
Computer Crime 161
Expropriation 201
UNITED STATES V. AMURE 163 Foreign Corrupt Practices Act 203
Crimes Committed by Business 164 UNITED STATES V. KING 204
 Contents ix

Exculpatory Clauses 234

Unit 2 RANSBURG V. RICHARDS 235
Contracts & the UCC 209 Unconscionable Contracts 236

Capacity and Consent 236

Capacity 237
CHAPTER 9 Reality of Consent 238
Introduction to Contracts 210 FIMBEL V. DECLARK 241
The Purpose of a Contract 211 Contracts in Writing 242
Judicial Activism versus Judicial Restraint 211
Written Contracts 243
Issues (and Answers) 212
Contracts Defined 212 Unenforceable (Sorry, Oliver.) 243
Contracts That Must Be in Writing 244
Types of Contracts 212 BAKER V. DAVES 244
Bilateral and Unilateral Contracts 212 What the Writing Must Contain 246
Express and Implied Contracts 213 Sale of Goods 247
YOU BE THE JUDGE DEMASSE V. ITT Parol Evidence 248
CORPORATION 213
Executory and Executed Contracts 214
Valid, Unenforceable, Voidable, and Void
CHAPTER 11
Agreements 214
Conclusion to Contracts 252
Remedies Created by Judicial Activism 215
Third Party Beneficiary 253
Promissory Estoppel 215
Quasi-Contract 216 SCHAUER V. MANDARIN GEMS
OF CALIFORNIA, INC. 254
Sources of Contract Law 216
Assignment and Delegation 255
Common Law 216
Uniform Commercial Code 217 Assignment 256
Restatement (Second) of Contracts 217 Delegation of Duties 257
YOU BE THE JUDGE ROSENBURG V.
Agreement 218 SON, INC. 258
Meeting of the Minds 218
Performance and Discharge 259
Offer 218
Performance 259
BAER V. CHASE 220
Acceptance 222 BRUNSWICK HILLS RACQUET
SPECHT V. NETSCAPE CLUB INC.V. ROUTE 18
COMMUNICATIONS SHOPPING CENTER
CORPORATION 224 ASSOCIATES 261
Breach 263
Consideration 225 Impossibility 263
HAMER V. SIDWAY 226 Remedies 264
Expectation Interest 265
CHAPTER 10 HADLEY V. BAXENDALE 266
Legality, Consent, and Writing 230 Reliance Interest 268
Restitution Interest 268
Legality 231 Other Equitable Interests 269
Restraint of Trade 231 MILICIC V. BASKETBALL
KING V. HEAD START FAMILY MARKETING COMPANY, INC. 270
HAIR SALONS, INC. 232 Special Issues of Damages 271
x Contents

Perfection 311
CHAPTER 12
Nothing Less Than Perfection 311
Sales, Product Liability, and Perfection by Filing 311
Negotiable Instruments 275 Perfection by Possession or Control 313
Sales 276 LAYNE V. BANK ONE 313
Development of the UCC 276 Perfection of Consumer Goods 314
Contract Formation 278 Protection of Buyers 316
RAPOCA ENERGY COMPANY, Buyers in Ordinary Course of
L.P. V. AMCI EXPORT Business 316
CORPORATION 280
YOU BE THE JUDGE CONSECO
Performance and Remedies 282
FINANCE SERVICING CORP. V.
Warranties and Product Liability 283 LEE 317
Express Warranties 284 Buyers of Chattel Paper, Instruments, and
Implied Warranties 284 Documents 317
GOODMAN V. WENCO FOODS, Priorities among Creditors 318
INC. 285 Priority Exceptions 318
Negligence 287
Strict Liability 288 Default and Termination 319
UNIROYAL GOODRICH TIRE Default 319
COMPANY V. MARTINEZ 290 Termination 320

Negotiable Instruments 292 Overview of Bankruptcy 321

Commercial Paper 292 Chapter 7 Liquidation 322
Types of Negotiable Instruments 292
Filing a Petition 322
The Fundamental “Rule” of Commercial
Trustee 324
Paper 293
Creditors 324
YOU BE THE JUDGE YYY
Automatic Stay 324
CORPORATION V. GAZDA 295
JACKSON V. HOLIDAY
SCOTT V. MAYFLOWER HOME
FURNITURE 324
IMPROVEMENT CORP. 299
Bankruptcy Estate 326
Payment of Claims 327
Discharge 328
CHAPTER 13 IN RE STERN 329
Secured Transactions and
Bankruptcy 304 Chapter 11 Reorganization 330
Debtor in Possession 330
Secured Transactions and Bankruptcy: Creditors’ Committee 331
Introduction 305 Plan of Reorganization 331
Article 9 Revisions 307 Confirmation of the Plan 331
Scope of Revised Article 9 307 Discharge 331
Small Business Bankruptcy 332
Attachment of a Security Interest 308
Agreement 308 Chapter 13 Consumer Reorganizations 332
Control and Possession 309 Beginning a Chapter 13 Case 332
IN RE CFLC, INC. 309 Plan of Payment 333
Value 310 IN RE LEMAIRE 333
Attachment to Future Property 310 Discharge 334
 Contents xi

National Labor Relations Act 371

Unit 3 Family and Medical Leave Act 371
COBRA 371
Agency & Employment 339
Wrongful Discharge 372
WELLS V. ORMET CORP. 374
CHAPTER 14 Safety and Privacy in the Workplace 380
Agency 340 Workplace Safety 380
Employee Privacy 380
Creating an Agency Relationship 341
Consent 342 Financial Protection 381
Control 342 Fair Labor Standards Act 382
Fiduciary Relationship 343 Workers’ Compensation 382
Elements Not Required for an Agency Social Security 382
Relationship 343 Pension Benefits 383
KAVANAGH V. TRUSTEES Employment Discrimination 383
OF BOSTON UNIVERSITY 343 Equal Pay Act of 1963 383
Title VII 384
Duties of Agents to Principals 344
YOU BE THE JUDGE JESPERSEN V.
Duty of Loyalty 345 HARRAH’S 385
ABKCO MUSIC, INC.V. TERESA HARRIS V. FORKLIFT
HARRISONGS MUSIC, LTD. 346 SYSTEMS, INC. 390
Other Duties of an Agent 348 Age Discrimination 392
Principal’s Remedies when the Agent Breaches
SMITH V. CITY OF JACKSON 393
a Duty 349
Americans with Disabilities Act 394
Duties of Principals to Agents 349 TOYOTA V. WILLIAMS 395
Duty to Cooperate 350
Terminating an Agency Relationship 351 CHAPTER 16
Termination by Agent or Principal 351 Labor Law 401
Principal or Agent Can No Longer Perform
Required Duties 352
Unions Develop . . . and the Law Responds 402
Change in Circumstances 352 State Labor Law 405
YOU BE THE JUDGE GAGNON V. Labor Unions Today 405
COOMBS 353 Organizing a Union 406
Effect of Termination 354
Exclusivity 406
Liability 354 YOU BE THE JUDGE EMPORIUM
Principal’s Liability for Contracts 354 CAPWELL CO. V. WESTERN ADDITIONAL
Agent’s Liability for Contracts 357 COMMUNITY ORGANIZATION 407
Principal’s Liability for Torts 360 Organizing 408
DURAN V. FURR’S What Workers May Do 409
SUPERMARKETS, INC. 361 What Employers May Do 410
Agent’s Liability for Torts 365 GARVEY MARINE, INC.V.
NATIONAL LABOR RELATIONS
BOARD 410
CHAPTER 15
HOFFMAN PLASTIC
Employment Law 369 COMPOUNDS, INC.V. NATIONAL
Introduction 370 LABOR RELATIONS BOARD 411
Employment Security 371 Collective Bargaining 414
xii Contents

Subjects of Bargaining 414 Management 441

Duty to Bargain 416 Transfer of Ownership 441
Enforcement 418 Duration 441
BRENTWOOD MEDICAL Corporations 441
ASSOCIATES V. UNITED MINE
Corporations in General 442
WORKERS OF AMERICA 418
Close Corporations 443
Concerted Action 419
S Corporations 444
Strikes 420
Replacement Workers 421 Limited Liability Companies 445
CITIZENS PUBLISHING AND Formation 445
PRINTING COMPANY V. Limited Liability 445
NATIONAL LABOR RELATIONS YOU BE THE JUDGE RIDGAWAY V.
BOARD 422 SILK 446
Picketing 423 Tax Status 446
Lockouts 423 Flexibility 446
Regulating Union Affairs 424 Standard Forms 446
Transferability of Interests 447
Duration 447
Going Public 447
Changing Forms 447
Unit 4 Joint Ventures 447
Business Organizations 429
Other Forms of Organization 448
Business Trusts 448
CHAPTER 17 Cooperatives 449
Franchises 449
Starting a Business 430
BIXBY’S FOOD SYSTEMS, INC.V.
Sole Proprietorships 431 MCKAY 452

General Partnerships 432

Formation 433 CHAPTER 18
Taxes 433 Corporations 457
Liability 434
Management 435 Promoter’s Liability 458
MARSH V. GENTRY 436 HARDY V. SOUTHWESTERN
Terminating a Partnership 436 BELL YELLOW PAGES, INC. 458
Dissociation 437
Incorporation Process 459
Limited Liability Partnerships 438 Where to Incorporate? 459
APCAR V. GAUS 438 The Charter 460

Professional Corporations 439 After Incorporation 462

Directors and Officers 462
Limited Partnerships and Limited Liability Bylaws 463
Limited Partnerships 440 Issuing Debt 463
Structure 440
Liability 440
Death of the Corporation 464
Taxes 440 Piercing the Corporate Veil 464
Formation 441 BROOKS V. BECKER 465
 Contents xiii

Termination 465 Securities Exchange Act of 1934 501

The Role of Corporate Management 466 General Provisions of the 1934 Act 501
Liability 503
The Business Judgment Rule 467 DURA PHARMACEUTICALS, INC.
Duty of Loyalty 467 V. BROUDO 505
Duty of Care 469 Insider Trading 506
YOU BE THE JUDGE SMITH V. UNITED STATES V. O’HAGAN 509
VAN GORKOM 470 Foreign Corrupt Practices Act 510

Takeovers 472 Blue Sky Laws 512

Federal Regulation of Tender Offers: The Exemption from State Regulation 512
Williams Act 473 State Regulation 512
State Regulation of Takeovers 473 Facilitating State Regulation 512

The Role of Shareholders 475

Rights of Shareholders 475
Right to Information 475
Right to Vote 475 Unit 5
IN RE THE WALT DISNEY Government Regulation
COMPANY DERIVATIVE and Property 517
LITIGATION 480
Right to Dissent 481
Right to Protection from Other Shareholders 481 CHAPTER 20
Corporate Governance in Publicly Traded
Antitrust 518
Companies: Sarbanes-Oxley and Stock Exchange
Rules 481 In the Beginning 519
Enforcing Shareholder Rights 482 Sherman Act 519
Chicago School 520
Derivative Lawsuits 482
Direct Lawsuits 483 Overview of Antitrust Laws 520
Class Action Lawsuits 483
Cooperative Strategies 521
Horizontal Cooperative Strategies 522
CHAPTER 19 FEARS V.WILHELMINA MODEL
Securities Regulation 487 AGENCY, INC. 523
Vertical Cooperative Strategies 525
Introduction 488 Mergers and Joint Ventures 526
The Securities and Exchange Commission 488 UNITED STATES V. WASTE
What Is a Security? 489 MANAGEMENT, INC. 527
Securities Act of 1933 489 Aggressive Strategies 528
General Exemption 490 Monopolization 528
Exempt Securities 490 CUPP V. ALBERTO-CULVER USA,
Exempt Transactions 490 INC. 529
Public Offerings 494 Predatory Pricing 532
YOU BE THE JUDGE EBCI, INC.V. Tying Arrangements 533
GOLDMAN SACHS & CO. 497 Controlling Distributors and Retailers 534
Sales of Restricted Securities 498 Resale Price Maintenance 535
Liability 498 YOU BE THE JUDGE EUROMODAS,
ROMBACH V. CHANG 500 INC.V. ZANELLA, LTD. 536
xiv Contents

Types of Marks 575

CHAPTER 21 Ownership and Registration 575
Cyberlaw 541 Valid Trademarks 576
Infringement 577
Privacy 542
Federal Trademark Dilution Act of 1995 578
Of Cookies and Caches 543
YOU BE THE JUDGE VICTOR
Self-Regulation of Online Privacy 544
MOSELEY V. V SECRET CATALOGUE,
Government Regulation of Online Privacy 544
INC. 578
YOU BE THE JUDGE IN RE Domain Names 579
PHARMATRAK, INC. PRIVACY International Trademark Treaties 581
LITIGATION 546
Your Hard Drive as Witness (Against You) 549 Trade Secrets 581
UNITED STATES OF AMERICA V. POLLACK V. SKINSMART
ANGEVINE 549 DERMATOLOGY AND AESTHETIC
CENTER P.C. 582
Spam 551
INTEL CORPORATION V.
HAMIDI 551 CHAPTER 23
Internet Service Providers and Web Hosts: Property 586
Communications Decency Act of 1996 553
Real Property 587
CARAFANO V. Nature of Real Property 587
METROSPLASH.COM, INC. 553 Estates in Real Property 587
Crime on the Internet 555 WALTON V. CITY OF RED
Hacking 555 BLUFF 588
Fraud 556 Nonpossessory Interests 589
Auctions 556 Easements 590
CARVIN V. ARKANSAS POWER
AND LIGHT 590
CHAPTER 22 Sale of Real Property 591
Intellectual Property 562 Land Use Regulation 593
Introduction 563 Landlord-Tenant Law 594
Patents 564 Types of Tenancy 595

Types of Patents 564 Landlord’s Duties 596

STATE STREET BANK & TRUST Duty to Deliver Possession 596
CO.V. SIGNATURE FINANCIAL HARRIS V. SOLEY 598
GROUP, INC. 565 Tenant’s Duties 599
Requirements for a Patent 566 Injuries 600
Patent Application and Issuance 566 DICKINSON ARMS-REO, L.P. V.
Copyrights 569 CAMPBELL 601
Infringement 569 Personal Property 602
Fair Use 569 Gifts 602
METRO-GOLDWYN-MAYER YOU BE THE JUDGE ALBINGER V.
STUDIOS INC.V. GROKSTER, HARRIS 604
LTD. 572 Bailment 605
International Copyright Treaties 575
MITCHELL V. BANK OF AMERICA
Trademarks 575 NATIONAL ASSOCIATION 607
 Contents xv

Automobile Pollution 641

CHAPTER 24 Soot Particles 642
Consumer Law 612 Air Toxics 642
Global Warming 642
Introduction 613
Federal Trade Commission 613 Water Pollution 643
Clean Water Act 644
Sales 614
SOUTH FLORIDA WATER
Deceptive Acts or Practices 614
MANAGEMENT DISTRICT V.
YOU BE THE JUDGE FEDERAL TRADE MICCOSUKEE TRIBE
COMMISSION V. TASHMAN 615 OF INDIANS 644
Unfair Practices 616 Wetlands 646
Other Sales Practices 616 Other Water Pollution Statutes 647
Consumer Credit 619 Waste Disposal 648
Truth in Lending Act 619 Resource Conservation and Recovery Act 649
Fair Credit Billing Act 624 Superfund 650
GRAY V. AMERICAN COOPER INDUSTRIES, INC.V.
EXPRESS CO. 624 AVIALL SERVICES, INC. 652
Fair Credit Reporting Act 625
Fair and Accurate Credit Transactions Act 626 Chemicals 653
Fair Debt Collection Practices Act 627 Federal Insecticide, Fungicide, and Rodenticide
GRADISHER V. CHECK Act 653
ENFORCEMENT UNIT, INC. 628 Federal Food, Drug, and Cosmetic Act 653
Equal Credit Opportunity Act 629 Food Quality Protection Act of 1996 654
TREADWAY V. GATEWAY Toxic Substances Control Act 654
CHEVROLET OLDSMOBILE Natural Resources 654
INC. 629 National Environmental Policy Act 654
Consumer Leasing Act 630
Endangered Species Act 655
Magnuson-Moss Warranty Act 631 GIBBS V. BABBITT 656

Consumer Product Safety 631

Appendix A
CHAPTER 25 The Constitution of the United
Environmental Law 636
States A 1
Introduction 637
Environmental Protection Agency 637
Appendix B
Air Pollution 638 Uniform Commercial Code
Clean Air Act 638 (Selected Provisions) B 1
YOU BE THE JUDGE CENTRAL
Glossary G 1
ARIZONA WATER CONSERVATION
DISTRICT V. EPA 639 Table of Cases T1
New Sources of Pollution 640 Index I 1
Acid Rain 640
Preface
When we began work on the first edition of this textbook, our publisher warned us
that our undertaking was risky because there were already so many Legal Environment
texts. Despite these warnings, we were convinced that there was a market for a Legal
Environment book that was different from all the others. Our goal was to capture the
passion and excitement—the sheer enjoyment—of the law. Business law is notoriously
complex, and as authors we are obsessed with accuracy.Yet this intriguing subject also
abounds with human conflict and hard-earned wisdom, forces that can make a law
book sparkle.
Now, as the third edition goes to press, we think of the students who have said to
us, “This is the best textbook I have ever read,” and “I had no idea business law could
be so interesting.” We recall the faculty who have told us, “Until I read your book I
never really understood UCC 2-207” and “With your book, we have great class dis-
cussions.” Comments such as these never cease to thrill us and to make us grateful
that we persisted in writing a Legal Environment text like no other—a book that is
precise and authoritative yet a pleasure to read.

Comprehensive
Staying comprehensive means staying current. This third edition contains over 50 new
cases. Almost all were reported within the last two or three years. We never include a
new court opinion merely because it is recent, but the law evolves continually, and our
willingness to toss out old cases and add important new ones ensures that this book—
and its readers—remain on the frontier of legal developments.
Look, for example, at the important field of corporate governance. All texts cover
par value, and so do we. Yet a future executive is far likelier to face conflicts over
Sarbanes-Oxley, executive compensation, and shareholder proposals. We present a clear
path through this thicket of new issues. We want tomorrow’s business leaders to antic-
ipate the challenges that await them and then use their knowledge to avert problems.
We have greatly rewritten many chapters for this third edition to ensure full cov-
erage of rapidly evolving issues, such as cyberlaw, securities law, UCC revisions, and
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. However, we
have kept the strong narrative flow from the earlier edition. Like you, we are here to
teach. We do not use boxes because, in our experience, they disrupt the flow of the
text. Students inform us that a box indicates peripheral material, that is, material they
routinely skip; we prefer to give them an uncluttered whole. Each chapter also con-
tains several Internet addresses, offering students a quick link to additional knowledge.
xvi
 Preface xvii

These addresses, however, are woven into the body of the text to reinforce the point
that new technology and research methods are an integral part of a lively discipline.
For example, page 371 in Chapter 15 on employment law contains the address of the
Website where the Labor Department answers questions about the Family and
Medical Leave Act. We believe that a well-written chapter is seamless and cohesive.

Strong Narrative
The law is full of great stories, and we use them. Your students and ours should come
to class excited. In Chapter 3 on dispute resolution (page 43), we explain litigation by
tracking a double-indemnity lawsuit. An executive is dead. Did he drown accidentally,
obligating the insurance company to pay? Or did the businessman commit suicide,
voiding the policy? The student follows the action from the discovery of the body,
through each step of the lawsuit, to the final appeal. The chapter offers a detailed dis-
cussion of dispute resolution, but it does so by exploiting the human drama that
underlies litigation.
Students read stories and remember them. Strong narratives provide a rich con-
text for the remarkable quantity of legal material presented. When students care about
the material they are reading, they persevere. We have been delighted to find that they
also arrive in class eager to question, discuss, and learn.

Precise
The great joy of using English accurately is the power it gives us to attack and dissect
difficult issues, rendering them comprehensible to any lay reader. This text takes on
the most complex legal topics of the day, yet it is appropriate for all college and gradu-
ate level students. Accessible prose goes hand in hand with legal precision. We take
great pride in walking our readers through the most serpentine mazes this tough sub-
ject can offer. UCC section 2-207, on “battle of forms” conflicts, is hardly sexy mate-
rial, but it is important. We spotlight the real-world need for section 2-207, and then
use pinpoint directions to guide our readers through its many switchbacks, arriving at
a full understanding with sanity and good humor intact. (See page 223.)
As we explore this extraordinary discipline, we lure readers along with quirky
anecdotes and colorful diagrams. (Notice that the color display on page 470 clarifies
the complex rules of the duty of care in the business judgment rule.) However, before
the trip is over we insist that students:
• gauge policy and political considerations,
• grapple with legal and social history,
• spot the nexus between disparate doctrines, and
• confront tough moral choices.
Beyond that, we ask students to figure out how to avoid the very problems that
have generated our law.

Authoritative
We insist, as you do, on a lawbook that is indisputably accurate. A professor must teach
with assurance, confident that every paragraph is the result of exhaustive research and
meticulous presentation. Dozens of tough-minded people spent thousands of hours
reviewing this book, and we are delighted with the stamp of approval we have received
from trial and appellate judges, working attorneys, scholars, and teachers.
xviii Preface

We reject the cloudy definitions and fuzzy explanations that can invade judicial
opinions and legal scholarship. To highlight the most important rules, we use bold
print, and then follow with vivacious examples written in clear, forceful English. (See,
for example, the discussion of factual cause on page 143.) We cheerfully venture into
contentious areas, relying on very recent appellate decisions. (Can computer software
be patented? See page 565.) Where there is doubt about the current (or future) status
of a doctrine, we say so. In areas of particularly heated debate, we footnote our work:
we want you to have absolute trust in this book.

A Book for Students

We have written this book as if we were speaking directly to our students. We provide
black letter law, but we also explain concepts in terms that hook students. Over the
years, we have learned how much more successfully we can teach when our students
are intrigued. No matter what kind of a show we put on in class, they are only learning
when they want to learn.
Every chapter begins with a story, either fictional or real, to illustrate the issues
in the chapter and provide context. Chapter 21 on cyberlaw begins with the true
story of a college student who discovers nude pictures of himself online. These
photos had been taken in the locker room without his knowledge. What privacy
rights do any of us have? Does the Internet jeopardize them? Students want to
know—right away.
Most of today’s undergraduates were not yet born when Jimmy Carter was pres-
ident. They come to college with varying levels of preparation; many now arrive
from other countries. We have found that to teach business law most effectively we
must provide its context. Chapter 19 on securities regulation begins with a brief
but graphic description of the 1929 stock market crash and the Great Depression
(page 487). Only with this background do students grasp the importance and impact
of our securities laws.
At the same time, we enjoy offering “nuts and bolts” information that grabs stu-
dents: how much money corporate directors earn or how scam artists create car acci-
dents in order to file fraudulent insurance claims. In Chapter 24 on consumer law, we
bring home the issue of credit history by providing Websites that students can use to
check their own credit reports (page 627).
Students respond enthusiastically to this approach. One professor asked a student
to compare our book with the one that the class was then using. This was the student’s
reaction: “I really enjoy reading the [Beatty & Samuelson] textbook and I have decided
that I will give you this memo ASAP, but I am keeping the book until Wednesday so
that I may continue reading. Thanks! :-)”
Along with other professors, we have used this text in courses for undergraduates,
MBAs, and executive MBAs, with the students ranging in age from 18 to 55. The book
works, as some unsolicited comments indicate:
• An undergraduate wrote, “This is the best textbook I have had in college, on any
subject.”
• A business law professor stated that the “clarity of presentation is superlative. I
have never seen the complexity of contract law made this readable.”
• An MBA student commented, “I think the textbook is great. The book is rele-
vant, easy to understand and interesting.”
• A state supreme court justice wrote that the book is “a valuable blend of rich
scholarship and easy readability. Students and professors should rejoice with this
publication.”
 Preface xix

• A Fortune 500 vice president, enrolled in an Executive MBA program, com-

mented, “I really liked the chapters. They were crisp, organized and current. The
information was easy to understand and enjoyable.”
• An undergraduate wrote, “The textbook is awesome. A lot of the time I read
more than what is assigned—I just don’t want to stop.”

Humor
Throughout the text we use humor—judiciously—to lighten and enlighten. Not sur-
prisingly, students have applauded—but is wit appropriate? How dare we employ
levity in this venerable discipline? We offer humor because we take law seriously. We
revere the law for its ancient traditions; its dazzling intricacy; its relentless, though
imperfect, attempt to give order and decency to our world. Because we are confident
of our respect for the law, we are not afraid to employ some levity. Leaden prose mas-
querading as legal scholarship does no honor to the field.
Humor also helps retention. We have found that students remember a contract
problem described in a fanciful setting, and from that setting recall the underlying
principle. By contrast, one widget is hard to distinguish from another.

Features
We chose the features for our book with great care. As mentioned above, all features
are considered an essential part of the text and are woven into its body. Also, each fea-
ture responds to an essential pedagogical goal. Here are some of those goals and the
matching feature.

New Feature: Devil’s Advocate

GOAL: Challenge the court’s conclusions. In this feature we provide short critical
commentary on the decision just reported. We are reminding students that the court’s
holding is the work of mortals. There is generally a very respectable counter-argument,
which at least some people will find more persuasive. Students should consider the
opposing view, and should practice formulating their own positions, independent
of the judges’ reasoning. A student who concludes, after analyzing alternative views,
that the court got it right understands the holding more comprehensively than one
who never considered the other side.
For example, in Chapter 7 on criminal law, we include the famous Ewing case
(pages 177–178) on cruel and unusual punishment, but follow it with a Devil’s
Advocate feature arguing against a sentence of 25 years to life in a recidivist shoplift-
ing case.

New Feature: Public Policy

GOAL: Provide context for understanding the law. What are the policies under-
lying this case or statute? Why is the law this way? What is the impact of the law? In
Chapter 13 on secured transactions and bankruptcy, we discuss Congress’s goals in
passing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 and
then ask students to consider whether the statute is likely to be effective in achieving
these goals (page 322).
xx Preface

For cases, we consider the impact of the court’s decision on the rest of us who
were not parties to the litigation. This feature reminds students that a decision
prompted by one dispute between two litigants may have dramatic consequences for
local communities, companies, families, employees, voters, and many others. What are
the financial implications of the holding? Will business costs be passed on to unsus-
pecting citizens? Who is harmed, who is helped? Is this the best possible decision?
How would you improve it?

You Be the Judge

GOAL: Get students to think independently. When reading case opinions, stu-
dents tend to accept the court’s “answer.” Judges, of course, try to reach decisions that
appear indisputable, when in reality they may be controversial—or wrong. From time
to time we want students to think through the problem and reach their own answer.
Virtually every chapter contains a You Be the Judge feature, providing the facts of the
case and conflicting appellate arguments. The court’s decision, however, appears only
in the Instructor’s Manual.
Because students do not know the result, discussions tend to be more free-flowing.
For instance, many commentators feel that Smith v. Van Gorkom, the landmark case on
the business judgment rule, was wrongly decided. However, when students read the
court’s opinion, they rarely consider the opposing side. Now, with the case presented
as You Be the Judge in Chapter 18 (page 470), the students disagree with the court at
least half the time. They are thinking.

Economics & the Law

GOAL: Understand the economic impact of the law. This feature helps students
understand how laws do (or, in some cases, do not) make economic sense. For exam-
ple, in Chapter 19 on securities (page 507), we explain why insider trading causes harm
and therefore why the law prohibits it. Conversely, Chapter 25 on environmental law
(page 649) explains why political considerations often interfere with the most rational
environmental decisions.

Newsworthy
GOAL: Prove that the law touches each of us every day. Students are intrigued to
see the relevancy of what they are learning. Each chapter contains at least one
Newsworthy feature—a newspaper or magazine article illustrating the legal issue
under discussion. Thus, in Chapter 14 on agency law (page 342), an article about an
American diplomat killed by terrorists demonstrates that an agency relationship exists
only when the principal has control over its agent.

Cyberlaw
GOAL: Master the present and anticipate the future. The computer has
changed all of our lives forever, and the courts and statute books are full of fasci-
nating cyberlaw issues. Do employers have the right to read workers’ e-mail? When
does an electronic signature satisfy the statute of frauds? Can a company hold its
shareholder meetings in cyberspace? Cyberlaw is fully discussed in Chapter 21:
Cyberlaw and Chapter 22: Intellectual Property. Finally, throughout the text we dis-
cuss still more cyberlaw issues as they relate to the particular topic; icons highlight
those sections.
 Preface xxi

At Risk
GOAL: Help managers stay out of court. As every lawyer knows, the best lawsuit
is the one that never happens. Some of our students are already in the workforce, and
the rest soon will be, so we offer ideas on avoiding legal disputes. Sometimes we pro-
vide detailed methods to avoid the particular problem; other times we challenge the
students to formulate their own approach to dispute prevention. For example, this fea-
ture in Chapter 14 on agency law (page 357) explains what an agent must do to avoid
personal liability when signing a contract on behalf of a principal.

Ethics
GOAL: Make ethics real. We ask ethical questions about cases, legal issues, and
commercial practices. Is it fair for one party to void a contract by arguing, months
after the fact, that there was no consideration? Do managers have ethical obligations
to older workers for whom employment opportunities may be limited? What is wrong
with bribery? What is the ethical obligation of developed nations to dispose of toxic
waste from computers? We do not have definitive answers but believe that asking the
questions and encouraging discussion reminds students that ethics is an essential ele-
ment of justice and of a satisfying life.

Update
GOAL: To keep students current. As we go to press, this book is accurate and up-
to-date. Inevitably, however, during the book’s three-year life span some laws will
change. Courts will decide cases; legislatures will pass statutes. When we can foresee
that the law is likely to change in a particular area, we ask the students to research the
latest developments. For example, in Chapter 21 on cyberlaw, we reported that
Congress was considering legislation to require companies to notify customers if their
personal information was stolen and ask students to research the status of this law. (See
page 558.)

Cases
GOAL: Let the judges speak. Each case begins with a summary of the facts and a
statement of the issue. Next comes a tightly edited version of the decision, in the
court’s own language, so that students “hear” the law developing in the diverse voices
of our many judges. We cite cases using a modified bluebook form. In the principal
cases in each chapter, we provide the state or federal citation, the regional citation, and
the LEXIS or Westlaw citation. We also give students a brief description of the court.
Because many of our cases are so recent, some will have only a regional reporter and
a LEXIS or Westlaw citation.

Practice Tests
GOAL: Encourage students to practice! At the end of the chapters we challenge
the students with ten or more problems, including the following:
• Internet Research Problem. This question sends students to an Internet address
where they can explore issues from the chapter.
• You Be the Judge Writing Problem. The students are given appellate arguments on
both sides of the question and must prepare a written opinion.
xxii Preface

• Ethics. This question highlights the ethical issues of a dispute and calls upon the
student to formulate a specific, reasoned response.
• CPA Questions. For topics covered by the CPA exam administered by the
American Institute of Certified Public Accountants; the practice tests include
questions from previous CPA exams.
• Role Reversal. Students are asked to formulate their own test questions. Crafting
questions is a good way to reinforce what they already understand and recognize
areas that they need to review.

Teaching Materials
For more information about any of these ancillaries, contact your Thomson
Learning/West Legal Studies in Business sales representative for more details, or visit
the Beatty Legal Environment Website at www.thomsonedu.com/westbuslaw/beatty.

Instructor’s Resource CD (IRCD)

The IRCD contains the Instructor’s Manual in Microsoft Word files. This manual
includes special features to enhance class discussion and student progress:
• Dialogues. These are a series of questions-and-answers on pivotal cases and
topics. The questions provide enough material to teach a full session. In a pinch,
you could walk into class with nothing but the manual and use the Dialogues to
conduct an exciting class.
• Action learning ideas: interviews, quick research projects, drafting exercises, class-
room activities, commercial analyses, and other suggested assignments that get
students out of their chairs and into the diverse settings of business law.
• Skits. Various chapters have lively skits that students can perform in class, with no
rehearsal, to put legal doctrine in a real-life context.
• A chapter theme and a quote of the day.
• Updates of text material.
• New cases and examples.
• Answers to You Be the Judge cases from the text and to the Practice Test ques-
tions found at the end of each chapter.
The IRCD also includes the ExamView testing software files, the test bank in
Microsoft Word files, and the Microsoft PowerPoint lecture slides.

ExamView Testing Software—Computerized Testing Software

This testing software contains all of the questions in the printed test bank. This easy-
to-use test creation software program is compatible with Microsoft Windows.
Instructors can add or edit questions, instructions, and answers and select questions by
previewing them on the screen, selecting them randomly, or selecting them by
number. Instructors can also create and administer quizzes online, whether over the
Internet, a local area network (LAN), or a wide area network (WAN). The ExamView
testing software is available on the Instructor’s Resource CD.
 Preface xxiii

Test Bank
The test bank offers hundreds of essay, short answer, and multiple choice problems
and may be obtained on the IRCD.

Microsoft PowerPoint® Lecture Review Slides

PowerPoint slides are available for use by students as an aid to note-taking and by instruc-
tors for enhancing their lectures. Download these slides at www.thomsonedu.com/
westbuslaw/beatty.

West’s Digital Video Library

Featuring 60+ segments on the most important topics in Business Law, West’s Digital
Video Library helps students make the connection between their textbook and the
business world. Access to West’s Digital Video Library is free when bundled with a new
text, and students with used books can purchase access to the video clips online. New
to this edition are LawFlix, twelve scenes from Hollywood movies with instructor
materials for each film clip. The accompanying instructor materials include ele-
ments such as goals for the clips, questions for students (with answers for the
instructor), background on the film and the scene, and fascinating trivia about the
film, its actors, and its history. For more information about West’s Digital Video
Library, visit http://digitalvideolibrary.westbuslaw.com.

West Legal Studies in Business Resource Center

This Website offers a unique, rich, and robust online resource for instructors and stu-
dents. The address www.thomsonedu.com/westbuslaw provides customer service and
product information, links to all text-supporting Websites, and other cutting-edge
resources such as NewsEdge and Court Case Updates.

Thomson Custom Solutions

Whether you need print, digital, or hybrid course materials, Thomson Custom
Solutions can help you create your perfect learning solution. Draw from Thomson’s
extensive library of texts and collections, add or create your own original work, and
create customized media and technology to match your learning and course objectives.
Our editorial team will work with you through each step, allowing you to concentrate
on the most important thing—your students. Learn more about all our services at
www.thomsoncustom.com.

CaseNet
CaseNet is Thomson’s legal and business case collection featuring selections from the
West Legal Studies in Business case database and other prestigious partners. Using
TextChoice you can search, preview, arrange cases, and add your original material or
legal cases from your state to create the perfect case resource for your course. To start
building your casebook, visit CaseNet at http://www.textchoice.com/casenet or con-
tact your local Thomson Learning/West Legal Studies sales representative.
xxiv Preface

Interaction with the Authors

This is our standard: Every professor who adopts this book must have a superior expe-
rience. We are available to help in any way we can. Adopters of this text often call or
e-mail us to ask questions, obtain a syllabus, offer suggestions, share pedagogical con-
cerns, or inquire about ancillaries. One of the pleasures of working on this project has
been our discovery that the text provides a link to so many colleagues around the
country. We value those connections, are eager to respond, and would be happy to
hear from you.

To the Student
Each Practice Test contains one Role Reversal feature in which we challenge you to
create your own exam question. Your professor may ask you to submit the questions
in writing or electronically or to prepare an overhead slide. The goal is to think cre-
atively and accurately. The question should be challenging enough that the average
student will need to stop and think, but clear enough that there is only one answer.
Questions can be formatted as essay, short answer, or multiple choice.
For a multiple choice question, the first step is to isolate the single issue that you
want to test. For example, in the unit on contract law, you do not want to ask a ques-
tion that concerns five different aspects of forming an agreement. A good question will
focus exclusively on one issue, for example, whether a job offer has to be in writing
(some do, others do not). Create a realistic fact pattern that raises the issue. Provide
one answer that is clearly correct. Add additional answers that might seem plausible
but are definitely incorrect.
Some exam questions are very direct and test whether a student knows a defini-
tion. Other questions require deeper analysis. Here are two multiple choice questions.
The first is direct.
Question: Which contract is governed by the Uniform Commercial Code?
a. An agreement for an actor to appear in a movie for a $600,000 fee.
b. An agreement for an actor to appear in a movie for a fee of $600,000 plus 2%
of box office.
c. An agreement for the sale of a house.
d. An agreement for the sale of 22,000 picture frames.
e. An agreement for the rental of an apartment.
As you will learn later on, the correct answer is (d), because the Code applies to
the sale of goods, not to employment contracts or real estate deals.
The next question is more difficult, requiring the student to spot the issue of law
involved (product liability), remember how damages are awarded in such cases (gen-
erally, without regard to fault), and make a simple calculation.
Question: Lightweight Corp. manufactures strings of Christmas tree lights
and sells 3.5 million sets per year. Every year, between 10 and 20 of the com-
pany’s strings have a manufacturing defect that causes a consumer injury.
Maxine receives a severe shock from a Lightweight string of lights. She sues.
The evidence at trial is that: 1) Lightweight’s safety record is the best in the
industry; 2) all competing companies have a higher rate of injuries; 3) the
lights that injured Maxine arrived at her house in the factory box, untouched
by anyone outside of Lightweight; 4) Maxine operated the lights properly.
Random documents with unrelated
content Scribd suggests to you:
in charge of a man, floats slowly down a river. The bees are thus
continuously changing their pasture-ground, and yet do not lose
their locomotive hives.
It may be here worth while to add, parenthetically, as the only
authentic observation with which I am acquainted concerning the
distance that bees are accustomed to forage, the following
statement of Prof. Hugh Blackburn. Writing from Glasgow University
to 'Nature,'[48] he says that bees are found in a certain peach-house
every spring at the time of blossom, although, so far as he can
ascertain, the beehives nearest to the peach-house in question are
his own, and these are at a distance of ten miles.
On the whole, then, and in the absence of further experiments,
we must conclude it to be probable that the sense of direction with
which hymenopterous insects are, as shown by some of Sir John
Lubbock's experiments, unquestionably endowed, is of no small use
to them in finding their way from home to food and vice versâ;
although it appears certain, from other of his experiments, that this
sense of direction is not in all cases a sufficient guide, and therefore
requires to be supplemented by the definite observation of
landmarks.
But the most conclusive evidence on this latter point is afforded
by a highly interesting observation of Mr. Bates on the sand-wasps at
Santurem, which may here be suitably introduced, as the insects are
not distantly allied. He describes these animals as always taking a
few turns in the air round the hole they had made in the sand before
leaving to seek for flies in the forest, apparently in order to mark
well the position of the burrow, so that on their return they might
find it without difficulty. This observation has been since confirmed
in a striking manner by Mr. Belt, who found that the sand-wasp takes
the most precise bearings of an object the position of which she
desires to remember. This observation is so interesting that it
deserves to be rendered in extenso:—
 A specimen of Polistes carnifex (i.e. the sand-wasp
noticed by Mr. Bates) was hunting about for caterpillars in
my garden. I found one about an inch long, and held it
out towards it on the point of a stick. It seized it
immediately, and commenced biting it from head to tail,
soon reducing the soft body to a mass of pulp. It rolled up
about one-half of it into a ball, and prepared to carry it
off. Being at the time amidst a thick mass of a fine-leaved
climbing plant, it proceeded, before flying away, to take
note of the place where it was leaving the other half. To
do this, it hovered in front of it for a few seconds, then
took small circles in front of it, then larger ones round the
whole plant. I thought it had gone, but it returned again,
and had another look at the opening in the dense foliage
down which the other half of the caterpillar lay. It then
flew away, but must have left its burden for distribution
with its comrades at the nest, for it returned in less than
two minutes, and making one circle around the bush,
descended to the opening, alighted on a leaf, and ran
inside. The green remnant of the caterpillar was lying on
another leaf inside, but not connected with the one on
which the wasp alighted, so that in running in it missed it,
and soon got hopelessly lost in the thick foliage. Coming
out again, it took another circle, and pounced down on
the same spot again, as soon as it came opposite to it.
Three small seed-pods, which here grew close together,
formed the marks that I had myself taken to note the
place, and these the wasp seemed also to have taken as
its guide, for it flew directly down to them, and ran inside;
but the small leaf on which the fragment of caterpillar lay
not being directly connected with any on the outside, it
again missed it, and again got far away from the object of
its search. It then flew out again, and the same process
was repeated again and again. Always when in circling
round it came in sight of the seed-pods down it pounced,
alighted near them, and recommenced its quest on foot. I
 was surprised at its perseverance, and thought it would
have given up the search; but not so, it returned at least
half-a-dozen times, and seemed to get angry, hurrying
about with buzzing wings. At last it stumbled across its
prey, seized it eagerly, and as there was nothing more to
come back for, flew straight off to its nest, without taking
any further note of the locality. Such an action is not the
result of blind instinct, but of a thinking mind; and it is
wonderful to see an insect so differently constructed using
a mental process similar to that of man.

Memory.
We may here first allude to an observation of Sir John Lubbock
already quoted in another connexion (see p. 147). It is here evident
that the wasp, after finding the store of honey in the room, and after
finding the window closed in the 'wasp-line' direction to its nest,
required three repeated lessons from Sir John before she learnt that
the window on the other side of the room, and away from the
direction of her nest, afforded no obstacle to her exit. Having learnt
this, the fourth time she came she again flew to the closed window
as before, and then, as if but dimly remembering that there was
another opening somewhere that offered no such mysterious
resistance to her passage, 'she took two or three turns round the
room, and then flew out through the open window.' Having now
taken the bearings of all the room upon her own wings, and having
again found the difference between the two windows in respect of
resistance, although in all other respects so much alike, the next
time she came she made in the first instance as it were an
experimental flight towards the closed window, but clearly had the
alternative of going to the open one in her memory; for on finding
the window closed as before, she did not alight, but flew straight
from the closed to the open window. The same thing happened once
again, but now, with the distinction between the two windows thus
fully learnt, and with it the perception that in this case 'the shortest
cut was the longest way round,' she never again flew to the closed
window; in the forty successive visits which she paid through the
remainder of that day, and the hundred visits or so which she made
during the two following days, she seems to have uniformly flown to
the open window.
As evidence of forgetfulness, it will be enough to refer to the case
of another wasp which, under precisely similar circumstances to
those just detailed, learnt her way out of the open window one day,
having made fifty passages through it in five hours. Yet Sir John
remarks,—
It struck me as curious that on the following day this
wasp seemed by no means so sure of her way, but over
and over again went to the closed window.
It is further of interest to note, as showing the similarity of the
memory displayed by these insects with that of the higher animals,
that there are considerable individual differences to be found in the
degree of its manifestation.
In this respect they certainly differ considerably. Some
of the bees which came out of the little postern door
(already described) were able to find their way back after
it had been shown to them a few times. Others were
much more stupid; thus one bee came out on the 9th,
10th, 11th, 12th, 14th, 15th, 16th, 17th, 18th, and 19th,
and came to the honey; but though I repeatedly put her
back through the postern, she was never able to find her
way for herself.
I often found that if bees which were brought to honey
did not return at once, still they would do so a day or two
afterwards. For instance, on July 11, 1874, a hot thundery
day, and when the bees were much out of humour, I
brought twelve bees to some honey; only one came back,
 and that one only twice; but on the following day several
of them returned.
This latter observation is important, as proving that bees can
remember for at least a whole day the locality where they have
found honey only once before, and that they so far think about their
past experiences as to return to that locality when foraging.
As the association of ideas by contiguity is the principle which
forms the basis of all psychology, it is desirable to consider still more
attentively this the earliest manifestation that we have of it in the
memory of the Hymenoptera. That it is not exercised with exclusive
reference to locality is proved by the following observation of Sir
John Lubbock:—
I kept a specimen of Polistes Gallica for no less than
nine months.[49] . . . . I had no difficulty in inducing her to
feed on my hand; but at first she was shy and nervous.
She kept her sting in constant readiness. . . . . Gradually
she became quite used to me, and when I took her on my
hand apparently expected to be fed. She even allowed me
to stroke her without any appearance of fear, and for
some months I never saw her sting.
One other observation which goes to prove that other things
besides locality are noted and remembered by bees may here be
quoted. Sir John placed a bee in a bell jar, the closed end of which
he held towards a window. The bee buzzed about at that end trying
to make for the open air. He then showed her the way out of the
open end of the jar, and after having thus learnt it, she was able to
find the way out herself. This seems to show that the bee, like the
wasp on the closed window-pane, was able to appreciate and to
remember the difference between the quality of glass as resisting
and air as permeable, although to her sense of vision the difference
must have been very slight. In other words, the bee must have
remembered that by first flying away from the window, round the
edge of the jar, and then towards the window, she could surmount
the transparent obstacle; and this implies a somewhat different act
of memory from that of associating a particular object—such as
honey—with a particular locality. It is noteworthy that a fly under
similar circumstances did not require to be taught to find its way out
of the jar, but spontaneously found its own way out. This, however,
may be explained by the fact that flies do not always direct their
flight towards windows, and therefore the escape of this one was
probably not due to any act of intelligence.
While upon the subject of memory in the Hymenoptera, it is
indispensable that we should again refer to the observation of
Messrs. Belt and Bates already alluded to on pages 150-51. For it is
from that observation rendered evident that these sand-wasps took
definite pains, as it were, to teach themselves the localities to which
they desired to return. Mr. Bates further observed that after thus
taking a careful mental note of the place, they would return to it
without a moment's hesitation after an absence of an hour. The
observation of Mr. Belt, already quoted in extenso, proves that these
mental notes may be taken with the utmost minuteness, so that
even in the most intricate places the insect, on its return, is perfectly
confident that it has not made a mistake.
With regard to the duration of memory, Stickney relates a case in
which some bees took possession of a hollow place beneath a roof,
and having been then removed into a hive, continued for several
years to return and occupy the same hole with their successive
swarms.[50]
Similarly Huber relates an observation of his own showing the
duration of memory in bees. One autumn he put some honey in a
window, which the bees visited in large numbers. During the winter
the honey was taken away and the shutters shut. When they were
again opened in the spring the bees returned, although there was no
honey in the window.
These two cases amply prove that the memory of bees is
comparable with that of ants, which, as we have seen from
analogous facts, also extends at least over a period of many months.

Emotions.
Sir John Lubbock's experiments on this head go to show that the
social sympathies of bees are even less developed than he found
them to be in certain species of ants. Thus he says:—
I have already mentioned with reference to the
attachment which bees have been said to show for one
another, that though I have repeatedly seen them lick a
bee which had smeared herself in honey, I never observed
them show the slightest attention to any of their comrades
who had been drowned in water. Far, indeed, from having
been able to discover any evidence of affection among
them, they appear to be thoroughly callous and utterly
indifferent to one another. As already mentioned, it was
necessary for me occasionally to kill a bee; but I never
found that the others took the slightest notice. Thus on
the 11th of October I crushed a bee close to one which
was feeding—in fact, so close that their wings touched;
yet the survivor took no notice whatever of the death of
her sister, but went on feeding with every appearance of
composure and enjoyment, just as if nothing had
happened. When the pressure was removed, she
remained by the side of the corpse without the slightest
appearance of apprehension, sorrow, or recognition. It
was, of course, impossible for her to understand my
reason for killing her companion; yet neither did she feel
the slightest emotion at her sister's death, nor did she
show any alarm lest the same fate should befall her also.
In a second case exactly the same occurred. Again, I have
several times, while a bee has been feeding, held a
second bee by the leg close to her; the prisoner, of
course, struggled to escape, and buzzed as loudly as she
 could; yet the selfish eater took no notice whatever. So
far, therefore, from being at all affectionate, I doubt
whether bees are in the least fond of one another.
Réaumur, however ('Insects,' vol. v., p. 265), narrates a case in
which a hive-bee was partly drowned and so rendered insensible;
the others in the hive carefully licked and otherwise tended her till
she recovered. This seems to show that bees, like ants, are more apt
to have their sympathies aroused by the sight of ailing or injured
companions than by that of healthy companions in distress; but Sir
John Lubbock's observations above quoted go to prove that even in
this case display of sympathy is certainly not the rule.

Powers of Communication.
Huber says that when one wasp finds a store of honey 'it returns
to its nest, and brings off in a short time a hundred other wasps;'
and this statement is confirmed by Dujardin, who witnessed a
somewhat similar performance in the case of bees—the individual
which first found a concealed store informing other individuals of the
fact, and so on till numberless individuals had found it.
Although the systematic experiments of Sir John Lubbock have
not tended to confirm these observations with regard to bees and
wasps, we must not too readily allow his negative results to discredit
these positive observations—more especially as we have seen that
his later experiments have fully confirmed the opinion of these
previous authors with respect to ants. His experiments on bees and
wasps consisted in exposing honey in a hidden situation, marking a
bee or wasp that came to it, and observing whether it afterwards
brought any companions to share the booty. He found that although
the same insect would return over and over again, strangers came
so rarely that their visits could only be attributed to accidental and
independent discovery. Only if the honey were in an exposed
situation, where the insects could see one another feeding, would
one follow the other to the food.
 But we have the more reason not to accept unreservedly the
conclusion to which these experiments in themselves might lead,
because the very able observer F. Müller states an observation of his
own which must be considered as alone sufficient to prove that bees
are able to communicate information to one another:—
Once (he says[51]) I assisted at a curious contest,
which took place between the queen and the other bees
in one of my hives, which throws some light on the
intellectual faculties of these animals. A set of forty-seven
cells have been filled, eight on a newly completed comb,
thirty-five on the following, and four around the first cell
of a new comb. When the queen had laid eggs in all the
cells of the two older combs she went several times round
their circumference (as she always does, in order to
ascertain whether she has not forgotten any cell), and
then prepared to retreat into the lower part of the
breeding-room. But as she had overlooked the four cells
of the new comb, the workers ran impatiently from this
part to the queen, pushing her, in an odd manner, with
their heads, as they did also other workers they met with.
In consequence the queen began again to go around on
the two older combs; but as she did not find any cell
wanting an egg she tried to descend, but everywhere she
was pushed back by the workers. This contest lasted for a
rather long while, till the queen escaped without having
completed her work. Thus the workers knew how to
advise the queen that something was as yet to be done,
but they knew not how to show her where it had to be
done.
Again, Mr. Josiah Emery, writing to 'Nature,'[52] with reference to
Sir John Lubbock's experiments, says that the faculty of
communication which bees possess is so well and generally known
to the 'bee-hunters' of America, that the recognised method of
finding a bees' nest is to act upon the faculty in question:—
 Going to a field or wood at a distance from tame bees,
with their box of honey they gather up from the flowers
and imprison one or more bees, and after they have
become sufficiently gorged, let them out to return to their
home with their easily gotten load. Waiting patiently a
longer or shorter time, according to the distance of the
bee-tree, the hunter scarcely ever fails to see the bee or
bees return accompanied with other bees, which are in
like manner imprisoned till they in turn are filled, when
one or more are let out at places distant from each other,
and the direction in each case in which the bee flies
noted, and thus, by a kind of triangulation, the position of
the bee-tree proximately ascertained.
Those who have stored honey in their houses
understand very well how important it is to prevent a
single bee from discovering its location. Such discovery is
sure to be followed by a general onslaught from the hive
unless all means of access is prevented. It is possible that
our American are more intelligent than European bees,
but hardly probable; and I certainly shall not ask an
Englishman to admit it. Those in America who are in the
habit of playing first, second, and third fiddle to instinct
will probably attribute this seeming intelligence to that
principle.
According to De Fravière, bees have a number of different notes
or tones which they emit from the stigmata of the thorax and
abdomen, and by which they communicate information. He says:—
As soon as a bee arrives with important news, it is at
once surrounded, emits two or three shrill notes, and taps
a comrade with its long, flexible, and very slender feelers,
or antennæ. The friend passes on the news in similar
fashion, and the intelligence soon traverses the whole
hive. If it is of an agreeable kind—if, for instance, it
concerns the discovery of a store of sugar or of honey, or
 of a flowering meadow—all remains orderly. But, on the
other hand, great excitement arises if the news presages
some threatened danger, or if strange animals are
threatening invasion of the hive. It seems that such
intelligence is conveyed first to the queen, as the most
important person in the state.
This account, which is quoted from Büchner, no doubt bears
indications of imaginative colouring; but if the observation as to the
emission of sounds is correct—and, as we shall see, this point is well
confirmed by other observers—it is most likely concerned in
communicating by tone a general idea of good or harm: probably in
the former case it acts as a sign, 'follow me;' and in the latter as a
signal of danger. Büchner further says that, according to Landois, if a
saucer of honey is placed before a hive, a few bees come out, which
emit a cry of tut, tut, tut. This note is rather shrill, and resembles
the cry of an attacked bee. Hereupon a large number of bees come
out of the hive to collect the offered honey.
Again,—
The best way to observe the power of communication
possessed by bees by means of their interchange of
touches, is to take away the queen from a hive. In a little
time, about an hour afterwards, the sad event will be
noticed by a small part of the community, and these will
stop working and run hastily about over the comb. But
this only concerns part of the hive, and the side of a single
comb. The excited bees, however, soon leave the little
circle in which they at first revolved, and when they meet
their comrades they cross their antennæ and lightly touch
the others with them. The bees which have received some
impression from this touch now become uneasy in their
turn, and convey their uneasiness and distress in the
same way to the other parts of the dwelling. The disorder
increases rapidly, spreads to the other side of the comb,
 and at last to all the people. Then arises the general
confusion before described.
Huber tested this communication by the antennæ by a
striking experiment. He divided a hive into two quite
separate parts by a partition wall, whereupon great
excitement arose in the division in which there was no
queen, and this was only quieted when some workers
began to build royal cells.
He then divided a hive in similar fashion by a trellis,
through which the bees could pass their feelers. In this
case all remained quiet, and no attempt was made to
build royal cells: the queen could also be clearly seen
crossing her antennæ with the workers on the other side
of the trellis.
Apparently the feelers are also connected with the
exceedingly fine scent of the bees, which enables them,
wonderful as it may seem, to distinguish friend and foe,
and to recognise the members of their own hive among
the thousands and thousands of bees swarming around,
and to drive back from the entrance stranger or robber
bees. The bee-masters, therefore, when they want two
separate colonies or the members of them to unite in one
hive, sprinkle water over the bees, or stupefy them with
some fumigating substance, so as to make them to a
certain extent insensible to smell, in order to attain their
object. It is always possible to unite colonies by making
the bees smell of some strong-smelling stuff, such as
musk.[53]
Lastly, under the present heading I shall quote one other
observation, for which I am also indebted to Büchner's very
admirable collection of facts relating to the psychology of
Hymenoptera:—
 Herr L. Brofft relates, in 'der Zoologische Garten' (XVIII.
Year, No. 1, p. 67), that a poor and a rich hive stood next
each other on his father's bee stand, and the latter
suddenly lost its queen. Before the owner had come to a
decision thereupon the bees of the two hives came to a
mutual understanding as to the condition of their two
states. The dwellers in the queenless hive, with their
stores of provisions, went over into the less populous or
poorer hive, after they had assured themselves, by many
influential deputations, as to the state of the interior of
the poor hive, and, as appeared, especially as to the
presence of an egg-laying queen!

General Habits.
The active life of bees is divided between collecting food and
rearing young. We shall therefore consider these two functions
separately.
The food collected consists of two kinds, honey (which, although
stored in the 'crop' for the purpose of carriage from the flowers to
the cells, appears to be but the condensed nectar of flowers) and
so-called 'bee-bread.' This consists of the pollen of flowers, which is
worked into a kind of paste by the bees and stored in their cells till it
is required to serve as food for their larvæ. It is then partly digested
by the nurses with honey, so that a sort of chyle is formed. It is
observable that in each flight the 'carrier bees' collect only one kind
of pollen, so that it is possible for the 'house bees' (which, by the
way, are the younger bees left at home to discharge domestic duties
with only a small proportion of older ones, left probably to direct the
more inexperienced young) to sort it for storage in different cells. In
the result there are several different kinds of bee-bread, some being
more stimulating or nutritious than others. The most nutritious has
the effect, when given to any female larva, of developing that larva
into a queen or fertile female. This fact is well known to the bees,
who only feed a small number of larvæ in this manner, and the
larvæ which they select so to feed they place in larger or 'royal' cells,
with an obvious foreknowledge of the increased dimensions to which
the animal will grow under the influence of this food. Only one
queen is required for a single hive; but the bees always raise
several, so that if any mishap should occur to one, other larvæ may
be ready to fall back upon.
Besides honey and bee-bread two other substances are found in
beehives. These are propolis and beeswax. The former is a kind of
sticky resin collected for the most part from coniferous trees. This is
used as mortar in building, &c. It adheres so strongly to the legs of
the bee which has gathered it, that it can only be detached by the
help of comrades. For this purpose the loaded bee presents her legs
to her fellow-workers, who clean it off with their jaws, and while it is
still ductile, apply it round the inside of the hive. According to Huber,
who made this observation, the propolis is applied also to the insides
of the cells. The workers first planed the surfaces with their
mandibles, and one of them then pulled out a thread of propolis
from the heap deposited by the carrier bees, severed it by a sudden
throwing back of the head, and returned with it to the cell which it
had previously been planing. It then laid the thread between the two
walls which it had planed; but, proving too long, a portion of the
thread was bitten off. The properly measured portion was then
forced into the angle of the cell by the fore-feet and mandibles. The
thread, now converted into a narrow ribbon, was next found to be
too broad. It was therefore gnawed down to the proper width. Other
bees then completed the work which this one had begun, till all the
walls of the cells were framed with bands of propolis. The object of
the propolis here seems to be that of giving strength to the cells.
The wax is a secretion which proceeds from between the
segments of the abdomen. Having ingested a large meal of honey,
the bees hang in a thick cluster from the top of their hive in order to
secrete the wax. When it begins to exude, the bees, assisted by
their companions, rub it off into heaps, and when a sufficient
quantity of the material has been thus collected, the work begins of
building the cells. As the cells are used both for storing food and
rearing young, I shall consider them later on. Now we have to pass
to the labours incidental to propagation.
All the eggs are laid by one queen, who requires during this
season a large amount of nourishment, so much, indeed, that ten or
twelve working bees (i.e. sterile females) are set apart as her
feeders. Leaving the 'royal cell,' she walks over the nursery-combs
attended by a retinue of workers, and drops a single egg into each
open cell. It is a highly remarkable fact that the queen is able to
control the sex of the eggs which she lays, and only deposits drone
or male eggs in the drone cells, and worker or female eggs in the
worker cells—the cells prepared for the reception of drone larvæ
being larger than those required for the worker larvæ. Young queens
lay more worker eggs than old queens, and when a queen, from
increasing age or any other cause, lays too large a proportion of
drone eggs, she is expelled from the community or put to death. It
is remarkable, also, under these circumstances, that the queen
herself seems to know that she has become useless, for she loses
her propensity to attack other queens, and so does not run the risk
of making the hive virtually queenless. There is now no doubt at all
that the determining cause of an egg turning out male or female is
that which Dzierzon has shown, namely, the absence or presence of
fertilisation—unfertilised eggs always developing into males, and
fertilised ones into females. The manner, therefore, in which a queen
controls the sex of her eggs must depend on some power that she
has of controlling their fertilisation.
The eggs hatch out into larvæ, which require constant attention
from the workers, who feed them with the chyle or bee-bread
already mentioned. In three weeks from the time that the egg is
deposited, the white worm-like larva has passed through its last
metamorphosis. When it has emancipated itself its nurses assemble
round it to wash and caress it, as well as to supply it with food. They
then clean out the cell which it has left.
 When so large a number of the larvæ hatch out as to overcrowd
the hive, it is the function of the queen to lead forth a swarm.
Meanwhile several larval queens have been in course of
development, and matters are so arranged by the foresight of the
bees, that one or more young queens are ready to emerge at a time
when otherwise the hive would be left queenless. But the young
queen or queens, although perfectly formed, must not escape from
their royal prison-houses until the swarm has fairly taken place; the
worker bees will even strengthen the coverings of these prison-
houses if, owing to bad weather or other causes, swarming is
delayed. The prisoner queens, which are fed through a small hole in
the roof of their cells, now continually give vent to a plaintive cry,
called by the bee-keepers 'piping,' and this is answered by the
mother queen. The tones of the piping vary. The reason why the
young queens are kept such close prisoners till after the departure of
the mother queen with her swarm, is simply that the mother queen
would destroy all the younger ones, could she get the chance, by
stinging them. The workers, therefore, never allow the old queen to
approach the prisons of the younger ones. They establish a guard all
round these prisons or royal cells, and beat off the old queen
whenever she endeavours to approach. But if the swarming season
is over, or anything should prevent a further swarm from being sent
out, the worker bees offer no further resistance to the jealousy of
the mother queen, but allow her in cold blood to sting to death all
the young queens in their nursery prisons. As soon as the old queen
leaves with a swarm, the young queens are liberated in succession,
but at intervals of a few days; for if they were all liberated at once
they would fall upon and destroy one another. Each young queen as
it is liberated goes off with another swarm, and those which remain
unliberated are as carefully guarded from the liberated sister queen
as they were previously guarded from the mother queen. When the
season is too late for swarming the remaining young queens are
liberated simultaneously, and are then allowed to fight to the death,
the survivor being received as sovereign.
 The bees, far from seeking to prevent these battles,
appear to excite the combatants against each other,
surrounding and bringing them back to the charge when
they are disposed to recede from each other; and when
either of the queens shows a disposition to approach her
antagonist, all the bees forming the cluster instantly give
way to allow her full liberty of attack. The first use which
the conquering queen makes of her victory is to secure
herself against fresh dangers by destroying all her future
rivals in the royal cells; while the other bees, which are
spectators of the carnage, share in the spoil, greedily
devouring any food which may be found at the bottom of
the cells, and even sucking the fluid from the abdomen of
the pupæ before they toss out the carcasses.[54]
Similarly, when a strange queen is put into a hive already
provided with a queen—
A circle of bees instinctively crowd around the invader,
not, however, to attack her—for a worker never assaults a
queen—but to respectfully prevent her escape, in order
that a combat may take place between her and their
reigning monarch. The lawful possessor then advances
towards the part of the comb where the invader has
established herself, the attendant workers clear a space
for the encounter, and, without interfering, wait the result.
A fearful encounter then ensues, in which one is stung to
death, the survivor mounting the throne. Although the
workers of a de facto monarch will not fight for her
defence, yet, if they perceive a strange queen attempting
to enter the hive, they will surround her, and hold her until
she is starved to death; but such is their respect for
royalty that they never attempt to sting her.[55]
All these facts display a wonderful amount of apparently
sagacious purpose on the part of the workers, although they may
not seem to reflect much credit on the intelligence of the queens.
But in this connection we must remember the observation of F.
Huber, who saw two queens, which were the only ones left in the
hive, engaged in mortal combat; and when an opportunity arose for
each to sting the other simultaneously, they simultaneously released
each other's grasp, as if in horror of a situation that might have
ended in leaving the hive queenless. This, then, is the calamity to
avert which all the instincts both of workers and queens are
directed. And that these instincts are controlled by intelligence is
suggested, if not proved, by the adaptations which they show to
special circumstances. Thus, for instance, F. Huber smoked a hive so
that the queen and older bees effected their escape, and took up
their quarters a short distance away. The bees which remained
behind set about constructing three royal cells for the purpose of
rearing a new queen. Huber now carried back the old queen and
ensconced her in the hive. Immediately the bees set about carrying
away all the food from the royal cells, in order to prevent the larvæ
contained therein from developing into queens. Again, if a strange
queen is presented to a hive already provided with one, the workers
do not wait for their own queen to destroy the pretender, but
themselves sting or smother her to death. When, on the other hand,
a queen is presented to a hive which is without one, the bees adopt
her, although it is often necessary for the bee-master to protect her
for a day or two in a trellis cage, until her subjects have become
acquainted with her. When a hive is queenless, the bees stop all
work, become restless, and make a dull complaining noise. This,
however, is only the case if there is likewise a total absence of royal
pupæ, and of ordinary pupæ under three days of age—i.e. the age
during which it is possible to rear an ordinary larva into a queen.
As soon as the queen has been fertilised, and the services of the
drones therefore no longer required, the worker bees fall upon their
unfortunate and defenceless brothers to kill them, either by direct
stinging or by throwing them out of the hive to perish in the cold.
The drones' cells are then torn down, and any remaining drone eggs
or pupæ destroyed. Generally all the drones—which may number
more than a thousand—are slaughtered in the course of a single
day. Evidently the object of this massacre is that of getting rid of
useless mouths; but there is a more difficult question as to why
these useless mouths ever came into existence. It has been
suggested that the enormous disproportion between the present
number of males and the single fertile female refers to a time before
the social instincts became so complex or consolidated, and when,
therefore, bees lived in lesser communities. Probably this is the
explanation, although I think we might still have expected that
before this period in their evolution had arrived bees might have
developed a compensating instinct, either not to allow the queen to
lay so many drone eggs, or else to massacre the drones while still in
the larval state. But here we must remember that among the wasps
the males do work (chiefly domestic work, for which they are fed by
their foraging sisters); so it is possible that in the hive-bee the
drones were originally useful members of the community, and that
they have lost their primitively useful instincts. But whatever the
explanation, it is very curious that here, among the animals which
are justly regarded as exhibiting the highest perfection of instinct,
we meet with perhaps the most flagrant instance in the animal
kingdom of instinct unperfected. It is the more remarkable that the
drone-killing instinct should not have been better developed in the
direction of killing the drones at the most profitable time—namely, in
their larval or oval state—from the fact that in many respects it
seems to have been advanced to a high degree of discriminative
refinement. Thus, to quote Büchner,—
 That the massacre of the drones is not performed
entirely from an instinctive impulse, but in full
consciousness of the object to be gained, is proved by the
circumstance that it is carried out the more completely
and mercilessly the more fertile the queen shows herself
to be. But in cases where this fertility is subject to serious
doubt, or when the queen has been fertilised too late or
not at all, and therefore only lays drones' eggs, or when
the queen is barren, and new queens, to be fertilised later,
have to be brought up from working-bee larvæ, then all or
some of the drones are left alive, in the clear prevision
that their services will be required later. . . . . This wise
calculation of consequences is further exemplified in that
sometimes the massacre of the drones takes place before
the time for swarming, as, for instance, when long-
continued unfavourable weather succeeds a favourable
beginning of spring, and makes the bees anxious for their
own welfare. If, however, the weather breaks, and work
again becomes possible, so that the bees take courage
anew, they then bring up new drones, and prepare them
in time for the swarming. This killing of drones is
distinguished from the regular drone massacre by the fact
that the bees then only kill the developed drones, and
leave the drone larvæ, save when absolute hunger
compels their destruction. Not less can it be regarded as a
prudent calculation of circumstances when the bees of a
hive, brought from our temperate climate to a more
southern country, where the time of collecting lasts longer,
do not kill the drones in August, as usual, but at a later
period, suitable to the new conditions.
But the philosophy of drone-killing is, I think, even more difficult
in the case of the wasps than in that of the bees. For, unlike the
bees, whose communities live from year to year, the wasps all perish
at the end of autumn, with the exception of a very few fertilised
females. As this season of universal calamity approaches, the
workers destroy all the larval grubs—a proceeding which, in the
opinion of some writers, strikingly exemplifies the beneficence of the
Deity! Now, it does not appear to me easy to understand how the
presence of such an instinct in this case is to be explained. For, on
the one hand, the individual females which are destined to live
through the winter cannot be conspicuously benefited by this
slaughter of grubs; and, on the other hand, the rest of the
community is so soon about to perish, that one fails to see of what
advantage it can be to it to get rid of the grubs. If the whole human
race, with the exception of a few women, were to perish periodically
once in a thousand years, the race would profit nothing by
destroying, a few months before the end of each millennium, all sick
persons, lunatics, and other 'useless mouths.' I have not seen this
difficulty with regard to the massacring instinct in wasps mentioned
before, and I only mention it now in order to draw attention to the
fact that there seems to be a more puzzling problem presented here
than in the case of the analogous instinct as exhibited by bees. The
only solution which has suggested itself to my mind is the possibility
that in earlier times, or in other climates, wasps may have resembled
bees in living through the winter, and that the grub-slaying instinct is
in them a survival of one which was then, as in the case of the bees
now, a clearly beneficial instinct.
For some days before swarming begins, there is a great
excitement and buzzing in the hive, the temperature of which rises
from 92° to 104°. Scouts having been previously sent out to explore
for suitable quarters wherein to plant the new colony, these now act
as guides. The swarm leaves the hive with their queen. The bees
which remain behind busy themselves in rearing out the pupæ,
which soon arriving at maturity, also quit the hive in successive
swarms. According to Büchner, 'secondary swarms with young
queens send out no scouts, but fly at random through the air. They
clearly lack the experience and prudence of the older bees.' And,
regarding the behaviour of the scouts sent out by primary swarms,
this author says:—
 M. de Fravière had the opportunity of observing the
manner in which such an examination is carried on, and
with what prudence and accuracy. He placed an empty
beehive, made in a new style, in front of his house, so
that he could exactly watch from his own window what
went on inside and out without disturbance to himself or
to the bees. A single bee came and examined the building,
flying all round it and touching it. It then let itself down on
the board, and walked carefully and thoroughly over the
interior, touching it continually with its antennæ so as to
subject it on all sides to a thorough investigation. The
result of its examination must have been satisfactory, for
after it had gone away it returned accompanied by a
crowd of some fifty friends, which now together went
through the same process as their guide. This new trial
must also have had a good result, for soon a whole swarm
came, evidently from a distant spot, and took possession.
Still more remarkable is the behaviour of the scouts when
they take possession of a satisfactory hive or box for an
imminent or approaching swarm. Although it is not yet
inhabited they regard it as their property, watch it and
guard it against stranger bees or other assailants, and
busy themselves earnestly in the most careful cleansing of
it, so far as this cleansing is impossible to the setter up of
the hive. Such a taking possession sometimes occurs eight
days before the entrance of the swarm.
Wars.—As with ants, so with bees, the great cause of war is
plunder; and facts now well substantiated by numberless observers
concerning 'robber-bees' indicate a large measure of intelligence.
These aim at lessening their labour in collecting honey by plundering
the store of other hives. The robberies may be conducted singly or
in concert. When the thieving propensity is developed only in
individual cases, the thieves cannot rely on force in plundering a
foreign state, and so resort to cautious stealth. 'They show by their
whole behaviour—creeping into the hive with careful vigilance—that
they are perfectly conscious of their bad conduct; whereas the
workers belonging to the hive fly in quickly and openly, and in full
consciousness of their right.' If such solitary burglars are successful
in obtaining plunder, their bad example leads other members of their
own community to imitate them; thus it is that the whole bee-nation
may develop marauding habits, and when they do this they act in
concert to rob by force. In this case an army of bees precipitates
itself upon the foreign hive, a battle ensues, and if successful in
overcoming resistance, the invaders first of all search out the queen-
bee and put her to death, whereby they disorganise their enemies
and plunder the hive with ease. It is observed that when this policy
is once successful, the spirit of aggrandisement is encouraged, so
that the robber-bees 'find more pleasure in robbery than in their
own work, and become at last formidable robber-states.' When an
invaded hive is fairly overcome by the invaders killing the queen, the
owners of the hive, finding that all is lost, not only abandon further
resistance, but very often reverse their policy and join the ranks of
their conquerors. They assist in the tearing down of their cells, and
in the conveyance of the honey to the hive of their invaders. 'When
the assailed hive is emptied, the next ones are attacked, and if no
effective resistance is offered, are robbed in similar fashion, so that
in this way a whole bee-stand may be gradually destroyed.' Siebold
observed the same facts in the case of wasps (Polistes gallica). If,
however, the battle turns in favour of the defenders, they pursue the
flying legions of their enemies to a distance from their home. It
sometimes happens that the plundered hive offers no resistance at
all, owing to the robbers having visited the same flowers as the
robbed, and so probably (having much the same smell) not being
recognised as belonging to a different community. The thieves, when
they find such to be the case, may become so bold as to stop the
bees that are returning to the hive with their loads, of which they
deprive them at the entrance of the hive. This is done by a process
which one observer, Weygandt,[56] calls 'milking,' and it seems that
the milking bee attains the double advantage of securing the honey
from the milked one and disarming suspicion of the other bees by
contracting its smell and entering the hive loaded, into which it is
admitted without opposition to continue its plunder.
Sometimes robber-bees attack their victims in the fields at a
distance from the hives. This sort of highway robbery is generally
conducted by a gang of four or five robber-bees which set upon a
single honest bee, 'hold him by the legs, and pinch him until he
unfolds his tongue, which is sucked in succession by his assailants,
who then suffer him to depart in peace.'
It is strange that hive-bees of dishonest temperaments seem able
to coax or wheedle humble-bees into the voluntary yielding of
honey. 'Humble-bees have been known to permit hive-bees to take
the whole honey that they have collected, and to go on gathering
more, and handing it over, for three weeks, although they refuse to
part with it, or seek refuge in flight, when wasps make similar
overtures.'[57]
Besides theft and plunder, there are other causes of warfare
among bees, which, however, are only apparent in their effects.
Thus, for some undiscernible reason, duels are not infrequent, which
generally end in the death of one or both combatants. At other
times, equally without apparent reason, civil war breaks out in a
hive, which is sometimes attended with much slaughter.
Architecture.—Coming now to the construction of the cells and
combs, there is no doubt that here we meet with the most
astonishing products of instinct that are presented in the animal
kingdom. A great deal has been written on the practical exhibition of
high mathematical principles which bees display in constructing their
combs in the form that secures the utmost capacity for storage of
honey with the smallest expenditure of building material. The
shortest and clearest statement of the subject that I have met with
is the following, which has been given by Dr. Reid:—
There are only three possible figures of the cells which
can make them all equal and similar, without any useless
 interstices. These are the equilateral triangle, the square,
and the regular hexagon. Mathematicians know that there
is not a fourth way possible in which a plane may be cut
into little spaces that shall be equal, similar, and regular,
without useless spaces. Of the three figures, the hexagon
is the most proper for convenience and strength. Bees, as
if they knew this, make their cells regular hexagons.
Again, it has been demonstrated that, by making the
bottoms of the cells to consist of three planes meeting in
a point, there is a saving of material and labour in no way
inconsiderable. The bees, as if acquainted with these
principles of solid geometry, follow them most accurately.
It is a curious mathematical problem, at what precise
angle the three planes which compose the bottom of a cell
ought to meet, in order to make the greatest possible
saving, or the least expense of material and labour. This is
one of the problems which belong to the higher parts of
mathematics. It has accordingly been resolved by some
mathematicians, particularly by the ingenious Maclaurin,
by a fluctionary calculation, which is to be found in the
Transactions of the Royal Society of London. He has
determined precisely the angle required, and he found, by
the most exact mensuration the subject would admit, that
it is the very angle in which the three planes in the bottom
of the cell of a honeycomb do actually meet.[58]
Marvellous as these facts undoubtedly are, they may now be
regarded as having been satisfactorily explained. Long ago Buffon
sought to account for the hexagonal form of the cells by an
hypothesis of mutual pressure. Supposing the bees to have a
tendency to build tubular cells, if a greater number of bees were to
build in a given space than could admit of all the parallel tubes being
completed, tubes with flat sides and sharp angles might result, and
if the mutual pressure were exactly equal in all directions, these
sides and angles would assume the form of hexagons. This
hypothesis of Buffon was sustained by such physical analogies as the
blowing of a crowd of soap-bubbles in a cup, the swelling of
moistened peas in a confined space, &c. The hypothesis, however,
as thus presented was clearly inadequate; for no reason is assigned
why the mutual pressure, even if conceded to exist, should always
be so exactly equal in all directions as to convert all the cylinders
into perfect hexagons—even the analogy of the soap-bubbles and
the moistened peas failing, as pointed out by Brougham and others,
to sustain it, seeing that as a matter of fact bubbles and peas under
circumstances of mutual pressure do not assume the form of
hexagons, but, on the contrary, forms which are conspicuously
irregular. Moreover, the hypothesis fails to account for the particular
prismatic shape presented by the cell base. Therefore it is not
surprising that this hypothesis should have gained but small
acceptance. Kirby and Spence dispose of it thus:—'He (Buffon)
gravely tells us that the boasted hexagonal cells of the bee are
produced by the reciprocal pressure of the cylindrical bodies of these
insects against each other!!'[59] The double note of admiration here
may be taken to express the feelings with which this hypothesis of
Buffon was regarded by all the more sober-minded naturalists. Yet it
turns out to have been not very wide of the mark. As is often the
case with the gropings of a great mind, the idea contains the true
principle of the explanation, although it fails as an explanation from
not being in a position to take sufficient cognizance of all the facts.
Safer it is for lesser minds to restrain their notes of exclamation
while considering the theories of a greater; however crude or absurd
the latter may appear, the place of their birth renders it not
impossible that some day they may prove to have been prophetic of
truth revealed by fuller knowledge. Usually in such cases the final
explanation is eventually reached by the working of a yet greater
mind, and in this case the undivided credit of solving the problem is
to be assigned to the genius of Darwin.
Mr. Waterhouse pointed out 'that the form of the cell stands in
close relation to the presence of adjoining cells.' Starting from this
fact, Mr. Darwin says,—
 Let us look to the great principle of gradation, and see
whether Nature does not reveal to us her method of work.
At one end of a short series we have humble-bees, which
use their old cocoons to hold honey, sometimes adding to
them short tubes of wax, and likewise making separate
and very irregular rounded cells of wax. At the other end
of the series we have the cells of the hive-bee, placed in a
double layer. . . . . In the series between the extreme
perfection of the cells of the hive-bee and the simplicity of
those of the humble-bee we have the cells of the Mexican
Melipona domestica, carefully described and figured by
Pierre Huber. . . . . It forms a nearly regular waxen comb
of cylindrical cells, in which the young are hatched, and, in
addition, some large cells of wax for holding honey. These
latter cells are nearly spherical and of nearly equal sizes,
and are aggregated into an irregular mass. But the
important thing to notice is, that these cells are always
made at that degree of nearness to each other that they
would have intersected or broken into each other if the
spheres had been completed; but this is never permitted,
the bees building perfectly flat cells of wax between the
spheres which thus tend to intersect. Hence each cell
consists of an outer spherical portion; and of two, three,
or more flat surfaces, according as the cell adjoins two,
three, or more other cells. When one cell rests on three
other cells, which, from the spheres being nearly of the
same size, is very frequently and necessarily the case, the
three flat surfaces are united into a pyramid; and this
pyramid, as Huber has remarked, is manifestly a gross
imitation of the three-sided pyramidal base of the cell of
the hive-bee. . . . .
Reflecting on this case, it occurred to me that if the
Melipona had made its spheres at some given distance
from each other, and had made them of equal sizes, and
had arranged them symmetrically in a double layer, the
 resulting structure would have been as perfect as the
comb of the hive-bee. Accordingly I wrote to Prof. Miller of
Cambridge, and this geometer has kindly read over the
following statement, drawn up from his information, and
tells me that it is strictly correct.
This statement having fully borne out his theory, Mr. Darwin
continues:—
Hence we may safely conclude that, if we could slightly
modify the instincts already possessed by the Melipona,
and in themselves not very wonderful, this bee would
make a structure as wonderfully perfect as that of the
hive-bee. We must suppose the Melipona to have the
power of forming her cells truly spherical, and of equal
sizes; and this would not be very surprising, seeing that
she already does so to a certain extent, and seeing what
perfectly cylindrical burrows many insects make in wood,
apparently by turning round on a fixed point. We must
suppose the Melipona to arrange her cells in level layers,
as she already does her cylindrical cells; and we must
further suppose—and this is the greatest difficulty—that
she can somehow judge accurately at what distance to
stand from her fellow-labourers when several are making
their spheres; but she is already so far able to judge of
distance that she always describes her spheres so as to
intersect to a certain extent; and then she unites the
points of intersection by perfectly flat surfaces. By such
modifications of instinct, which in themselves are not very
wonderful—hardly more wonderful than those which guide
a bird to make its nest,—I believe that the hive-bee has
acquired through natural selection her inimitable
architectural powers.[60]
Mr. Darwin next tested this theory by the experiment of
introducing into beehives plates of wax, and observing that the bees
worked upon these plates just as the theory required. That is to say,
they made their cells by excavating a number of little circular pits at
equal distances from one another, so that by the time the pits had
acquired the width of an ordinary cell, the sides of the pits
intersected. As soon as this occurred the bees ceased to excavate,
and instead began to build up flat walls of wax on the lines of
intersection. Other experiments with very thin plates of vermilion-
coloured wax showed that the bees all worked at about the same
rate, and on opposite sides of the plates, so that the common
bottoms of any two opposite pits were flat. These flat bottoms 'were
situated, as far as the eye could judge, exactly along the planes of
imaginary intersection between the basins on the opposite sides of
the ridge of wax;' so that if the plate of wax had been thick enough
to admit of the opposite basins being deepened (and widened) into
cells, the mutual intersection of adjacent as well as opposite bottoms
would have given rise, as in the first experiment with the thick plate
of wax, to the pyramidal bottoms. Experiments with the vermilion
wax also showed, as Huber had previously stated, that a number of
individual bees work by turns at the same cell; for by covering parts
of growing cells with vermilion wax, Mr. Darwin—
Invariably found that the colour was most delicately
diffused by the bees—as delicately as a painter could have
done it with his brush—by atoms of the coloured wax
having been taken from the spot on which it had been
placed, and worked into the growing edges of the cells all
round.
Such, omitting details, is the substance of Mr. Darwin's theory. In
summary he concludes,—
The work of construction seems to be a sort of balance
struck between many bees, all instinctively standing at the
same relative distance from each other, all trying to sweep
equal spheres, and then building up, or leaving
ungnawed, the planes of intersection between these
spheres.
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