Outline - Criminal Law - V - Death Penalty

Criminal Law (2005 Fall)

V. DEATH PENALTY

1. Constitutionality
   1. Furman (1972) – Death penalty violated 8th Amendment. Holding gave two alternatives to states:
      1. Legislatively mandate death penalty in certain cases.
      2. Establish guidelines to determine who gets death penalty.
   2. Gregg (1976) – Bifurcated proceedings imposing death penalty constitutional.
   3. Woodson (1976) – Mandatory death sentence for any 1st degree murder violates 8th Amendment.
2. Non-Murder Liability
   1. Enmund – Defendant drove getaway car. Death penalty may not be applied.
   2. Tison – Defendants helped their father, a known convict, to escape and take hostages. Father then killed four hostages. Death penalty upheld because of “major participation ... combined with reckless indifference to human life”.
3. McCleskey v. Kemp
   1. Baldus Report showed statistical likelihood death penalty would be imposed on black defendant when victim is white.
   2. Supreme Court upheld conviction.
   3. Statistical discrimination is not intentional abuse.
   4. Jury discretion is not abuse.

Outline - Criminal Law - IV - Homicide

Criminal Law (2005 Fall)

IV. HOMICIDE

1. Overview

   Because different levels of homicide all involve the unlawful killing of another human being, we’re most concerned with the level of intent, which separates homicide into “murder” and “manslaughter”.

   	Mens Rea	Type of Homicide	Cases/Notes
   Murder	Premeditated or intentional (express malice)	1st Degree Murder or Intentional Murder	Carroll, Guthrie
   	Recklessness “plus” depraved indifference to human life (implied malice)	2nd Degree Murder or All Other Murder	Girouard, Malone, Fleming
   Manslaughter	“Provocation” or EED (MPC)	Voluntary Manslaughter
   	Recklessness	Involuntary Manslaughter	Welansky
   	Criminal gross negligence	Negligent Homicide (MPC)	Welansky
   	Civil negligence (rare)	Negligent Homicide (rare)	Williams

   Of the many intent factors, we’ll concern ourselves primarily with premeditation and provocation, which distinguish 1st and 2nd degree murders. We’ll then explore manslaughter as a group.

2. Premeditation
   1. Time factor
      1. Carroll – Defendant remembered gun, guilty of premeditated murder. No time is too short.
      2. Guthrie – Defendant killed victim after being insulted. Court rejects Carroll. Some period of time required to form intent. Intent is not the same as premeditation.
   2. Anderson – Defendant killed 10-year-old daughter of girlfriend. Explosion of violence inconsistent with premeditation and deliberation.
   3. Pillbury – Premeditation a bad measure of culpability.

3. Provocation

   Because provocation implies impaired intent and thus can be used to reduce murder to manslaughter, the question we ask here is, “What’s enough to incite a ‘reasonable person’?”

   1. Elements
      1. Actual heat of passion
      2. Legally adequate provocation [Girouard]
      3. Absence of cooling time [Maher]
   2. Girouard – Defendant killed wife after being taunted. Words alone are not enough as a matter of law.
   3. Maher – Defendant shot at wife’s suspected lover. Objective standard of ordinary human nature in judging whether provocation was sufficient or reasonable (including reasonableness of cooling time).
   4. Excuse (frailty of human nature) vs. justification (victim contributed)
4. MPC § 210.3 - Manslaughter
   1. Reckless; or
   2. Committed under extreme emotional disturbance (EED) with reasonable explanation or excuse.
      1. Defendant was under EED (jury question).
      2. Defendant’s behavior was reasonable under EED (objective).

   Cassassa - Defendant broke into former love interest’s home several times, finally killing her with a steak knife. Court found he was under EED, but that his actions were not reasonable even under EED.

5. Recklessness and Negligence
   1. Recklessness in Murder
      1. Malone – Defendant killed victim while playing Russian Roulette. Court found recklessness and “callous disregard” for human life, upheld 2nd degree murder conviction.
      2. Fleming – Defendant killed victim while driving in oncoming traffic, with 0.315% blood alcohol, in high-speed police chase. Driving drunk, and driving recklessly while drunk, is “recklessness ‘plus’”, conviction for 2nd degree murder upheld.
   2. Recklessness and Negligence in Manslaughter
      1. Welansky – Night club owner knew of facts that would have given reasonable awareness of danger, which court held the same as knowing of danger. Defendant held liable for involuntary manslaughter due to recklessness.
      2. Williams – Defendants did not give their baby reasonable access to medical care. Although not criminally negligent, court held them civilly negligent, and imposed liability for negligent homicide under statutory manslaughter.

Outline - Criminal Law - III - Liability

Criminal Law (2005 Fall)

III. LIABILITY

1. Proportionality
   1. 8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ...”
   2. Harmelin – Life in prison without possibility of parole for possession of <700g of cocaine not “cruel and unusual”.
      1. Majority – Narrow holding that diversity in policy and implementation is heart and soul of federal system; but “death is different”.
      2. Kennedy concurrence – No strict proportionality; 8th Amendment only forbids extreme sentences “grossly disproportionate” to offense.
2. Legality - Limits on what acts the state can criminalize
   1. Role of public morality [Lawrence - Statutes criminalizing sodomy unconstitutional for punishing homosexual status]
   2. Role of courts [Shaw – Court creates offense of “conspiracy to corrupt public morals”]
      1. Viscount Simonds – power in the courts
      2. Lord Morris – power to the jury
      3. Lord Reid (dissent) – power to Parliament
   3. Role of legislature [Keeler – Court declines to define unborn fetus as “human being”, reverses conviction of defendant who kneed his pregnant ex-wife, killing the fetus]
   4. Vagueness [Morales – Statute criminalizing loitering unconstitutionally vague]
      1. Lack of notice
      2. Arbitrary and discriminatory enforcement

Outline - Criminal Law - II - Intent

Criminal Law (2005 Fall)

II. INTENT

1. General Rule - Every element of every offense has a requisite intent, which must be proven before the defendant can be found guilty.
   1. Cunningham - Ripping out gas meter does not establish intent to release gas which put another in danger.
   2. Morissette - Statutory silence does not eliminate intent requirement for common law crimes.
2. MPC § 2.02
   1. Purpose
      1. Conduct – Conscious object to engage in the conduct
      2. Circumstances – Awareness of circumstances, or believes or hopes such circumstances exist
   2. Knowledge
      1. Conduct or Circumstances – Awareness
      2. Result – Awareness that result is practically certain
   3. Recklessness (default requisite intent when statutes are silent) – Consciously disregards substantial and unjustifiable risk, gross deviation from law-abiding person
   4. Negligence – Should be aware of substantial and unjustifiable risk, gross deviation from reasonable person [Santillanes - Criminal negligence different from civil negligence]
3. Motive - Irrelevant to criminal liability, important in sentencing
4. Subjective vs. Objective Standards
   1. Subjective – What did the defendant actually intend or know? (purpose, knowledge, recklessness)
   2. Objective – What should the defendant have reasonably known? (negligence)
5. Specific Intent vs. General Intent
   1. Generally speaking, a specific intent crime requires the defendant to have a specified further purpose.
   2. Intoxication can be a defense to a specific intent crime.
6. Conditional Intent
   1. Statutes need to be worded carefully. [Holloway – Carjacking defendant intended only to take car, and intention to cause death or serious bodily harm was conditioned on not getting the car]
   2. Addressed case-by-case
7. Willful Blindness
   1. General Rule – Deliberate ignorance = willful blindness = positive knowledge. [Jewell, narcotics middleman]
   2. MPC § 2.02(7) - Willful blindness same as knowledge
   3. Luban Objection – A drug dealer hires 3 couriers, tells them not to look in the trunk, and that 2 carry only clothes. Each now knows of 1/3 probability of drugs, and may believe himself carrying clothes.
8. Strict Liability
   1. General Rule
      1. Strict liability is used for regulation.
      2. Early uses in labeling [Balint; Dotterweich]
   2. Parameters [Morissette - Stealing bomb casings]
      1. Public welfare health/safety offenses
      2. New regulatory rather than old “bad” offenses
      3. Controls a dangerous thing
      4. Defendant has care and control over potential harm (shifting burden of care to person in control away from public/consumer)
      5. Small penalties
      6. Low reputational harms
   3. Staples – Conviction reversed for defendant who violated firearms statute which would “criminalize a broad range of apparently innocent conduct.”
   4. X-Citement Video – Conviction reversed for defendant who used underage actress because of grammatical usage separating distribution and age elements.
   5. Guminga – Criminal penalties based on vicarious liability for employer whose employee served alcohol to minor violate due process; civil penalties better.
   6. Baker – Speeding defendant with stuck cruise control strictly liable because of voluntary act of engaging cruise control.
9. Mistake of Fact
   1. General Rule – MOF is a defense when it “negatives” the intent requirement.
   2. MPC § 2.04 – Ignorance or mistake is a defense when it negatives the existence of a state of mind that is essential to the commission of an offense, or when it establishes a state of mind that constitutes a defense under a rule of law relating to defenses.
   3. Intent Levels
      1. Purpose – defense
      2. Knowledge – defense
      3. Recklessness – defense
      4. Negligence – defense if “reasonable”
      5. Strict liability – no defense
         1. Prince – Defendant’s reasonable mistake of girl’s age no defense against strict liability.
         2. Olsen – Defendant’s reasonable mistake of girl’s age no defense when act is most serious of degrees established by statute.
   4. Reading statutory elements
      1. Bramwell (“lesser wrong”) – Mens rea not required when act is wrong in itself [Prince, majority]
      2. Brett (“lesser crime”) – No conviction in absence of criminal mind [Prince, dissent]
      3. Dan-Cohen – Decision rules vs. conduct rules
         1. Conduct rules speak to general public
         2. Decision rules speak to legal officials
         3. Problem of notice
      4. Kahan – MOF excused only if it negates inference that defendant has failed to internalize social norms.
10. Mistake of Law
    1. General Rule - Mistake of law is no defense. [Marrerro – Federal corrections officer brought handgun to club.]
    2. When mistake of law acts like mistake of fact:
       1. If statute makes legal awareness of a fact an element, mistake of law functions like MOF.
       2. Smith (David) – Defendant who tore up property he thought belonged to him did not have requisite intent for the offense.
       3. Cheek – Defendant’s honest belief that wages are not income is a defense; but opinion that income taxes are unconstitutional is no defense.
    3. “Willfully” and “knowingly”
       1. Should “willfully violate” or “knowingly violate” mean knowledge of existence of law, or normal “knowledge” intent?
       2. International Minerals – Normal knowledge where defendant transports corrosive liquids
       3. Liparota – Knowledge of existence of law in food stamp fraud; no criminalizing “broad range of apparently innocent conduct”
       4. Ratzlaf – Knowledge of existence of law in insufficient funds; writing a check is normally an innocent act
       5. Bryan – Knowledge of unlawfulness of act sufficient to convict unlicensed firearms dealer
    4. Reliance
       1. Reliance on official statement of law is defense
       2. Recognized sources of reliance:
          1. Judicial decisions [Albertini - Defendant relied on 9th Circuit decision that his participation in protests was lawful]
          2. Statutes
          3. Administrative orders
       3. Advice of counsel not reliable [Hopkins]
    5. Limits
       1. Lambert – Statute requiring registration of out-of-state felons unconstitutional for imposing strict liability without giving notice.
       2. Cultural Defense – Different cultures have different social norms and may imply different intents.

Outline - Criminal Law - I - Act

Criminal Law (2005 Fall)

I. ACT

1. Involuntariness
   1. General Rule - Involuntariness is a defense to the act requirement. [Martin - No liability because defendant was not in public voluntarily, thus does not satisfy element requiring him to “appear in public”.]
   2. Unconsciousness – Where not self-induced, unconsciousness is a complete defense. [Newton, defendant was not conscious of shooting police officer, corroborated by expert testimony.]
   3. MPC § 2.01(2)
      1. Reflex or convulsion
      2. Unconsciousness movement or sleepwalking
      3. Hypnosis
      4. Movement not a result of conscious or habitual effort
   4. Exceptions
      1. Where statute does not require volition [Winzar – No defense when statute reads “found drunk”]
      2. Where defendant was aware of probability of acting involuntarily [Decina – Epileptic seizure no defense]
2. Omissions
   1. General rule – No liability for failure to act unless law imposes a duty
   2. Duties [Jones]
      1. Statute – Statute imposing duty on “any person” who lets an elderly person suffer pain fails to provide clear standard, not enforceable. [Heitzman, non-resident daughter did nothing to stop siblings’ abuse of parent.]
      2. Relationship
         1. Pope – Defendant not liable for death of child whose mother killed him.
         2. Jones – Defendant not liable for not feeding child of family friend.
         3. Beardsley – Defendant not liable for death of woman, not his wife, who overdosed in his house.
      3. Contract [Stone and Dobinson - defendant and his housekeeper had duty to his rent-paying sister]
      4. Assumption of Care and Seclusion [Oliver - Defendant had duty to man she brought home from club, in effect secluding him from others]
   3. Euthanasia – Terminating Treatment vs. Assisted Suicide
      1. Barber – Doctors lacked duty to provide heroic life sustaining measures after they are deemed futile; treats terminating treatment as an omission.
      2. Cruzan – State may require clear evidence of patient’s constitutionally protected refusal of unwanted medical treatment; Scalia rejects distinction between “active” suicide and “passive” declining treatment.

Outline - Criminal Law

Criminal Law (2005 Fall)

INTRODUCTION - From Bowers v. Hardwick to Lawrence v. Texas, the law continues to evolve and change. Criminal law is best encapsulated thus:

ACT + INTENT = LIABILITY

In Latin, this is expressed as actus non facit reum nisi mens sit rea (“an act does not make guilt unless the mind be guilty”).

1. ACT
2. INTENT
3. LIABILITY
4. HOMICIDE
5. DEATH PENALTY
6. RAPE
7. CAUSATION
8. DEFENSES
9. ATTEMPT
10. GROUP CRIMINALITY
11. TRIAL PROCESS
12. PUNISHMENT

Property Midterm

The Property midterm was on Thursday. It seemed fairly straightforward, although I was slightly thrown off by the lack of need to cite case names. Then again, Property has always been a fairly straightforward class, although sometimes, Professor Petherbridge's interpretation of the Socratic method leaves students a little confused. Still, his answers to e-mail questions helped straighten us out as to what rules he expects us to apply.

There were 15 multiple choice questions, and an essay. The multiple choice section actually took me close to 50 minutes to do. I would have finished sooner, but I ended up spending a good 10 minutes erasing my scantron. (The way I take multiple choice tests, I would circle the correct answer on the exam itself, and fill it out later. When I came up across a question I should skip, I absent-mindedly failed to skip it on the scantron. Grr.)

The most memorable question involved a triangle of privity. The question was very humorously worded, but the principle was pretty straightforward. The fact patter was as follows (minus the humor):

Superman leases out the Hall of Justice to Batman for 5 years. Batman meets Robin, and a year into the lease, the Dynamic Duo move out together to Gotham city. Batman contracts with Wonder Woman, who assumes all the covenants of the master lease. A year later, Wonder Woman assigns the remainder of the lease to Aquaman. A year after that, Aquaman assigns to Wolverine for one year. Wolverine fails to pay rent. Whom can Superman collect from?

The answer was Wonder Woman (privity of contract) and Aquaman (privity of estate). There is no privity of estate between Superman and Wolverine because, although Aquaman "assigns to Wolverine" for one year, there is another year left, so what Wolverine has is a sublease, and not an assignment, and there is no privity of estate between the landlord and a sublessee.

The essay was also fairly straightforward, and stuffed full of issues. It's too long to repeat here, but suffice it to say that everybody seemed to have addressed the same issues. One thing that I noticed I missed, after talking with classmates during the Criminal Law review session yesterday, was the rule against perpetuities (RAP) in the essay. The original landowner devised the following on her death:

To Henry husband to my wife Wilhelmina [for life], but there is agriculture, or if the prairie dogs on the land are harmed, then to my son Udo and his heirs.

I don't remember if the words "for life" were there (Shirley doesn't remember seeing those words), but I think they were, because I called Henry's interest a life estate, which would only work if the words "for life" were there. In either case, Udo has a shifting executory interest. That alone should have triggered thoughts of RAP in my mind. I missed that.

All in all, I'm glad I had enough time to type the essay. I could have squeezed out more issues if there had been more time, but at least I wasn't caught in the middle of a sentence when time was called. In fact, I had just typed the last period only a second before time was called. Talk about close!

It's time now to cram for Criminal Law and Torts. Fighting procrastination is hard, though, especially since my outlines for both classes are mostly done.

[lawschool] [exam] [property]

Saturation Point

There's a point, I think, after which it just doesn't help to study anymore. I believe I've reached that point with Property. I've had a whole week to work on the outline, and I got it done last night. In fact, most of it had been done by Monday night, except for landlord-tenant law. Since that material is more recent, I'm more comfortable with it.

I went to the law library today with the full intention of studying. After Tuesday's review session, during which we went over possessory estates, future interests, and especially focused on the rule against perpetuitites, I've reached a certain saturation point. I honestly think there's not much more I can study for this exam. So I spent my time in the law library playing spider solitaire.

Mind, this is not to say that I think I will ace the exam. It is merely to say that I feel comfortable enough that I don't think I will do poorly. It's part and parcel, I suppose, of an overall feeling of listlessness, and an inability so far this semester to get really excited about course material. Despite the rumors from other sections that my section (which has the lion's share of older students and students with more real-world experience) studies assiduously, I am an exception. Having discovered too late that simply doing the reading isn't enough, and that briefing matters both more and less than I had thought before the beginning of the semester, it seems that it's just too much work to relearn an entire semester's worth of material. Besides, I'd already reviewed it by dint of creating the outline.

The Property exam begins in 12 hours. Next week, we will face finals for Criminal Law and Torts, both of which are far more intimidating. I guess there's not much more to say, except a fond good luck to my classmates. Just don't outscore me by too much, okay?

[lawschool] [exam]

Outline - Property - VI - Landlord-Tenant

Property (2005-2006)

VI. LANDLORD-TENANT

1. Leasehold Estates
   1. Term of Years – No notice of termination required.
   2. Periodic Tenancy
      1. Year-to-year – Half year notice
      2. Periods less than a year – Notice requires one period, no more than half year
   3. Tenancy at Will
      1. No fixed period
      2. Endures as long as both landlord and tenant want
      3. Termination
         1. Common Law – A lease giving tenant power to terminate also gives landlord same power.
         2. Minority – A lease terminable at lessee’s will creates life tenancy determinable. [Garner v. Gerrish, NY]
      4. Can be grafted onto term of years or periodic tenancy, making them determinable
   4. Tenancy at Sufferance: Holdovers
      1. Eviction (plus damages)
      2. Express or implied consent to creation of new tenancy
         1. Implied periodicity based on when rent due
         2. Implied periodicity not to exceed one year
      3. Crechale & Polles v. Smith – Refusal to extend lease negated by acceptance of rent checks and failure to eject.

2. Statute of Frauds - Certain sorts of contracts must be written down. Here’s a helpful mnemonic:

   Marriage (such as pre-nuptials) Year - Anything that involves more than one year (relevant here) Land Executor Goods greater than $500 Surety

3. Selection of Tenants – Fair Housing Act
   1. Class protected
      1. Race
      2. Color
      3. Religion
      4. Sex
      5. Familial status
      6. National origin
   2. Actions prohibited
      1. Refusal to sell or rent after bona fide offer
      2. Refusal to negotiate for sale or rental
      3. Otherwise making unavailable or denying
      4. Discrimination in terms, conditions, or privileges
      5. Discrimination in provision of services or facilities
      6. Making, printing, or publishing indications of preference, limitation, or discrimination
      7. Misrepresenting availability
   3. Exemptions
      1. Any single family home if the owner does not own more than three such homes.
      2. A room or unit in a dwelling meant for no more than four independent families if the owner lives in one.
   4. Prosecution and burden shifting [Soules]
      1. Prima facie case
         1. Plaintiff is member of class
         2. Plaintiff qualified for rent
         3. Plaintiff was denied or rejected
         4. Apartment/dwelling still available
      2. Defense
         1. Legitimate reason for denial unrelated to status
         2. Plaintiff had bad attitude
         3. Consideration of other tenants
      3. Rebuttal – Plaintiff now must show defense was pretextual rather than legitimate.
4. Delivery of Possession
   1. English Rule (majority) – There is an implied covenant requiring the lessor to put the lessee in possession.
      1. More likely to get possession
      2. Landlord better positioned to prosecute evictions
   2. American Rule (minority) – There is no implied duty upon the lessor as against wrongdoers to lessee’s right of possession. [Hannan v. Dusch]
      1. Unfair to hold landlords liable
      2. Incentives well-aligned
5. Assignments and Subleases
   1. Assignment – Transfer of all remaining interests
   2. Sublease – Transfer of less than all remaining interests
   3. Privity
      1. Privity of contract remains between landlord and first tenant unless specified (e.g., assignee or sublessee assumes all covenants or agrees to be bound by terms and conditions of master lease, making landlord third-party beneficiary of subcontract) [Ernst v. Conditt]
      2. Privity of estate between landlord and assignee
      3. No privity at all between landlord and sublessee
      4. Landlord may recover from those in privity, either of estate or of contract
   4. Consent (minority) – Where commercial lease requires prior consent, consent may be withheld only for commercial objections. [Kendall v. Ernest Pestana – Contractual nature, obligation to “good faith” and “fair dealing”]
      1. Financial responsibility of proposed assignee
      2. Suitability of use for particular property
      3. Legality of proposed use
      4. Need for alteration of premises
      5. Nature of occupancy (e.g., office, factory, clinic)
      6. Protection of landlord in ownership and operation of the particular property [Krieger v. Helmsely-Spear]
6. Tenants in Default
   1. Default
      1. Tenant fails to pay rent.
      2. Tenant fails to observe some other lease obligation.
   2. Tenant in possession [Berg v. Wiley]
      1. Where tenant has not abandoned, forcible reentry is wrongful eviction.
      2. Self-help repossession is wrongful eviction.
   3. Tenant who has abandoned possession [Sommer v. Kridel]
      1. Majority – Duty to make reasonable effort to mitigate damages
      2. Minority – No duty to mitigate damages

Outline - Property - V - Co-ownership and Marital Interests

Property (2005-2006)

V. CO-OWNERSHIP and MARITAL INTERESTS

1. Common Law Concurrent Interests
   1. Tenancy in Common
      1. Separate and undivided interests
      2. Each interest is descendible and conveyable
   2. Joint Tenancy
      1. All joint tenants together = single owner
      2. Right of survivorship
      3. Four unities
         1. Time – Acquired or vest at the same time
         2. Title – Same instrument or joint adverse possession; never by intestate succession or other act of law
         3. Interest – Equal undivided shares and identical interests
         4. Possession – Each has right to possession of whole
   3. Tenancy by the Entirety
      1. Similar to joint tenancy
      2. Only between husband and wife
      3. May not be severed unilaterally
   4. Severance
      1. Any joint tenant can convert into tenancy in common by conveying interests to third party, which severs joint tenancy between the third party and cotenants. [Riddle v. Harmon – Joint tenant can sever joint tenancy by conveying to self as tenant in common.]
      2. Creditors cannot reach deceased joint tenant’s interest, which disappears at death. [Harms v. Sprague – Under lien theory of mortgage (American rule), mortgagee cannot reach mortgage after mortgagor’s death; even under title theory, mortgage temporary interest similar to a lien.]
      3. Surviving joint tenant can eject the lessee on the death of the lessor joint tenant.
   5. Joint Tenancy Bank Accounts - Surviving account holder has right of survivorship unless challengers can show the depositor intended otherwise. (Majority rule)
   6. Partition
      1. Available to tenants in common and joint tenants
      2. Partition in kind – Divide property into equal shares.
      3. Partition by sale
      4. CT rule – Where property can practicably be physically divided, partition in kind is preferable to partition by sale. [Delfino v. Valeancis]
   7. Rights of Co-owners
      1. Tenancy in common – Absent agreement to pay rent or ouster, a cotenant in possession not liable to other cotenants for value of use, occupation of property. [Spiller v. Mackereth]
      2. Toint Tenancy – Joint tenant’s lessee vested only with lessor joint tenant’s share of property. [Swartzbaugh v. Sampson]
      3. In general – Non-ousted cotenant only entitled to portion of rent received; ousted cotenant entitled to portion of fair market value of share.
2. Common Law Marital Interests
   1. During marriage
      1. Creditors of one spouse cannot reach an estate by the entireties during the joint lives of the tenants. [Sawada v. Endo]
      2. Government may deprive convicted spouse of interest and take ownership if he survives innocent spouse. [1500 Lincoln Avenue]
   2. Termination by divorce
      1. Equal distribution (equal shares) vs. equitable distribution (account for other factors)
      2. Separate vs. community property (earnings or property acquired by earnings of either spouse during the marriage)
      3. In re Marriage of Graham – Educational degree (MBA) not property. (majority rule)
      4. Mahoney v. Mahoney – Compensation for financial contribution to professional degree can take the form of “reimbursement alimony”, but not for future value.
      5. Elkus v. Elkus (NY, minority) – Where one spouse’s contributions and efforts led to an increase in the value of the other’s career, the appreciation is marital property.
   3. Termination by death
      1. Common Law
         1. Dower - Widow takes 1/3 if issue survive, 1/2 otherwise
         2. Curtsey - Widower takes full title unless issue born
      2. Modern Law - Elective Share
3. Community Property
   1. Earnings of each spouse owned equally.
   2. Separate property
      1. Acquired before marriage
      2. Acquired during marriage by gift, devise, or descent
   3. No tenancy by the entirety.
   4. No unilateral conveyances.
   5. No survivorship.
   6. "Stepped-up" tax basis after death of one spouse.
   7. Can be conveyed to third person only as an undivided whole.
4. Migrating Couples
   1. Character of property determined by law of state of marital domicile at time of acquisition.
   2. Property doesn’t change character when moving between common law and community property states.
   3. Disposition of personal property governed by law of state of marital domicile at time of death.
   4. Disposition of land governed by law of state land is in.
   5. Surviving spouse in CP state (other than CA) may not take personal property of decedent spouse acquired in CL state.
   6. CA is quasi-CP and treats property as if couple had been domiciled in CA all along.
5. Domestic Partners [Baker]

Outline - Property - IV - Future Interests

Property (2005-2006)

IV. FUTURE INTERESTS

1. Transferor
   1. Reversion - Follows life estate or term of years
   2. Possibility of Reverter - Follows fee simple determinable
   3. Right of Entry - Follows fee simple subject to condition subsequent
2. Transferee
   1. Vested Remainder
      1. Remainderman is born
      2. Remainderman is ascertainable
      3. No express condition precedent in clause creating the remainder or the preceding clause
   2. Contingent Remainder
      1. Remainderman cannot be identified by name
      2. There is a condition precedent in the clause creating the remainder
   3. Shifting Executory Interest
      1. Like a defeasible fee, but future interest not in grantor
      2. Divests right to possession of a transferee
   4. Springing Executory Interest
      1. Most commonly seen in “future interest only” or “gap” conveyance
      2. Divests right to possession of grantor
3. Grantor vs. State
   1. If an entire estate fails to vest, there is a reversion to the grantor; but
   2. If there is simply no heir, the property escheats to the state.
4. Rule Against Perpetuities

   1. Common Law Rule

      "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."

      1. Contingent remainders must vest or fail to vest.
      2. Executory interests must become possessory.
      3. Vested remainders subject to open must close or completely vest.
      4. Not applicable to other future interests.
   2. Create, Kill, Count Method
      1. Create, after the conveyance, someone who will be eligible to claim the interest, starting as far back in the chain of title as possible.
      2. Kill everyone who was alive at the time of the conveyance
      3. Count for 21 years to see if the interest has vested. If not, the interest violates the RAP and is stricken.
   3. Wait-and-See Doctrine
      1. Arose to deal with legal fictions arising from RAP
         1. Fertile octogenarian (assume that a person of any age can have a child)
         2. Unborn widow
      2. Period
         1. Common Law (21 yrs)
         2. USRAP (avg. lifespan 69 + 21 yrs = 90 yrs)

Outline - Property - III - Possessory Estates

Property (2005-2006)

III. POSSESSORY ESTATES

1. Fee Simple Absolute
   1. Largest estate; includes all rights to property
   2. Creation – "to 'A' and heirs"
   3. Heirs
      1. Issue (children and direct descendants)
      2. Ancestors (parents and direct ancestors)
      3. Collaterals (siblings, cousins, uncles, aunts, nieces, nephews)
      4. Escheat - If no heirs, property escheats to state.
2. Finite Estates
   1. Types
      1. Life Estate
      2. Term of Years
   2. Creation
      1. Life estate - "to 'A' for life"
      2. Term of years - "to 'A' for 25 years"
      3. Term of years - "to 'A' from October 5, 2005 to October 5, 2030"
   3. Future Interest
      1. Reversion (grantor)
      2. Remainder (anyone else)
3. Defeasible Estates
   1. Fee Simple Determinable
      1. Automatically ends upon satisfaction of condition
      2. Created by durational language
         1. "so long as"
         2. "while"
         3. "until"
         4. "during"
         5. "unless"
      3. Future interest - "possibility of reverter" (to grantor)
   2. Fee Simple Subject to Condition Subsequent
      1. May end upon satisfaction of condition; transferor's discretion, not automatic
      2. Created by limiting language
         1. "but if"
         2. "provided that"
         3. "on the condition that"
      3. Future interest – "right of reentry" (to grantor)
   3. Fee Simple Subject to Executory Limitation
      1. Looks like either of the other defeasible estates, but future interest is in a third party
      2. Springing - cuts off grantor
      3. Shifting - cuts off anyone else
4. Cases
   1. White v. Brown – Where language unclear as to life estate or fee simple with restraint on alienation, policy is to avoid limits on alienation, and prefer fee simple absolute.
   2. Baker v. Weedon – Where the identity of remaindermen is clear, law of waste implies life tenant may not sell property without consulting remaindermen. (Note similarity to joint tenancy.)
   3. Mahrenholz – Conveyance to transferee "to be used for school purposes only" creates fee simple determinable, not fee simple subject to condition subsequent; future interests transferable.
   4. Toscano - A conditional restriction on a conveyance creates a defeasible fee instead of a simple fee with restraint on alienation.

Outline - Property - II - Rights of Owners

Property (2005-2006)

II. RIGHTS OF OWNERS

1. Finders
   1. Terms

      Owner	A person who owns property
      Finder	A person who takes ownership of unclaimed property
      Property owner	A person who owns real property (locus in quo)
      Bailor	One who entrusts care of property to another
      Bailee	One to whom the property is entrusted (voluntary and involuntary)
      Bailment	Property that is entrusted by one to another

   2. Elements of control
      1. Intent to control
      2. Actual control
   3. Among finders The first person in time to find has first claim. [Armory v. Delamirie]
   4. Bailment - True owner may not recover from present possessor if voluntary bailee has already recovered.
   5. Finder vs. Property Owner (who is not the true owner)
      1. If attached to the land, or under the land, land owner gets it; but
      2. If on the surface of the land, finder gets it; unless
         1. Finder is trespasser; or
         2. Finder is employee or independent contractor.
      3. Note: True owner still gets preference if present.
   6. Cases
      1. Hannah v. Peel - Hannah entitled to jewelry he found on Peel’s property which Peel hadn’t known about.
      2. McAvoy v. Medina – Wallet left on table in barber shop not to be treated as “lost” so cannot be “found”. Barber now involuntary bailee.
2. Gift
   1. Elements [Newman v. Bost]
      1. Intention to make the gift (may be inferred)
      2. Delivery
         1. Symbolic – Some other article delivered in the name and stead of the thing meant to be given
         2. Constructive – Delivery of a key to a locked house, trunk, or other receptacle
         3. Actual
      3. Acceptance [Gruen]
   2. Irrevocable once made
   3. No conditions (i.e., “if”)
   4. No future (i.e., “later”)
3. Adverse Possession
   1. Terms

      Color of title	Claim founded on a written instrument or judgment or decree that is defective and invalid
      Constructive possession	Adverse possession under color of title

   2. Act
      1. Actual [Van Valkenburgh v. Lutz – Traveled path]
      2. Open and Notorious [Mannillo v. Gorski - Where true owner unaware of minor encroachment, not open and notorious]
      3. Continuous [Howard v. Kunto - Occupancy for intended seasons, and continued existence of improvements, is continuous.]
      4. Exclusive
      5. Adverse/Hostile
   3. Intent
      1. Irrelevant (Connecticut, majority) [Mannillo v. Gorski – Staircase extension]
      2. Good faith mistake
      3. Aggressive trespasser (Maine, minority)
   4. Statutes of Limitations
      1. CA = 5 yrs.
      2. NY = 15 yrs. [Van Valkenburgh v. Lutz]
   5. Tacking On – Permitted if successive occupants are in privity. [Howard v. Kunto]
   6. Disabilitites – 21-year limitation unless disability, which extends for 10 years after removal of disability.
   7. Exception: No adverse possession against federal government.
   8. Chattels - Cause of action accrues when injured party discovers, or reasonably should have discovered, the conversion.
4. Right of Exclusion
   1. Punitive damages may exceed nominal damages. [Jacque v. Steenberg Homes - $100,000 punitive damages over $1 nominal upheld to enforce right to exclude.]
   2. Right of exclusion does not extend to excluding members of governmental services, charities, and press as long as there is no behavior hurtful to others. [State v. Shack]

Outline - Property - I - Acquisition

Property (2005-2006)

I. ACQUISITION

1. Capture
   1. First in Time [Pierson v. Post]
      1. Majority - First to capture
      2. Minority - First "reasonable prospect"
   2. When custom establishes procedures for settling disputes, use custom. [Ghen v. Rich]
   3. Constructive Possession - A wild animal that frequents a property is part of that property by animus revertendi, and one who chases it off is maliciously interfering with trade. [Keeble v. Hickeringill]
   4. Rule of Increase - Possession of the offspring belongs to whoever owns the mother.
   5. Demsetz
      1. Externalities
      2. Tragedy of the commons – Nobody has an exclusive right.
      3. Tragedy of the anti-commons - Everyone has an exclusive right to common property.
      4. Freeriding problem
      5. Transaction costs
      6. Bundle of rights
2. Creation
   Physical Property
   
   1. Property in one’s person [Moore v. Regents – Plaintiff has no property right in his excised body part]
   Intellectual Property
   
   2. Trademark
      1. Anticybersquatting Consumer Protection Act (ACPA) – Cybersquatter is liable to owner of a protected mark if that person had a bad faith intent to profit from that mark. [Virtual Works v. Volkswagen]
      2. Celebrity "right of publicity" (widely recognized) – Property interest, assignable during life, descendible at death. Posner: Rooted in right of privacy.
   3. Patents
      1. 35 U.S.C. § 101 - Inventions patentable: Any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.
      2. Chemical extracts – Process for purifying naturally occurring chemical, as well as purified chemical, both patentable. [Parke-Davis (1911)]
      3. Laws of nature – Mathematical formulae not patentable; implementing or applying a formula in a process otherwise patentable is protected. [Diehr]
      4. Composition of matter – Simply rearranging bacteria is not patentable. [Funk Bros.]
      5. Living things are not patentable. [Chakrabarty – Process for producing and for disseminating bacteria is patentable; bacteria themselves are not.]
   4. Copyright
      Subject Matter
      
      1. Originality
         1. Independent
         2. Modicum of creativity
      2. Facts are not copyrightable; compilations of facts may be, if presented in an original way. [Feist v. Rural – Phone book not original compilation.]
      3. Ideas are not copyrightable. [Baker v. Selden – Text on bookkeeping methods not copyrightable.]
      4. Subject matter with limited forms of expression not copyrightable. [Morrissey – Sweepstakes rules]
      5. Where form and function inseparable, no copyright. [Brandir v. Cascade – Bike rack as minimalist art]
      Imitation
      
      6. News is not copyrightable; but there is quasi-property interest in gathered news, so interference where business profits from transmission constitutes unfair competition. [International News Service v. AP]
      7. Copyright gives right to exclude others from enjoyment, but not imitation. Right to exclude imitation is monopoly. [Cheney Brothers – Imitation of silk patterns okay.]
      8. Baird – Balance right to information and promotion of market economy.

Outline - Property

Property (2005-2006)

1. ACQUISITION
2. RIGHTS OF OWNERS
3. POSSESSORY ESTATES
4. FUTURE INTERESTS
5. CO-OWNERSHIP and MARITAL INTERESTS
6. LANDLORD-TENANT

Civil Procedure Midterm

The Civil Procedure midterm was today, and, while not nearly as stressful as the Torts midtern, it was still quite a bit of stress. There were so many rules to remember for personal procedure alone that I pretty much threw up my hands and decided to wing it.

We were given a fact pattern, and were asked to do both the PJ and SMJ analyses. The PJ analysis took me quite a while, so that I ended up with only 5-7 minutes to write up the SMJ analysis. In the end, I was short of finishing that by two words: "establish SMJ". I'm a little nervous about that, although I'm sure Professor Willis will be able to see what I was driving at.

What I am more concerned about, however, is whether or not I stated the rules well enough. It is all too easy for a law student, particularly a first year, and particularly where, as here, the statutes are laid out in an exam supplement, to forget that to tell the reader about the rule. What I ended up doing, I think, was mostly comparing and contrasting fact patterns between precedents and the case at hand.

I found it somehow amusing that the "6 Step Analysis" which we formally learned in Legal Writing was now flowing from my keyboard very naturally. I would, in essence, discuss the precedent, maybe paraphrase the rule that governs that portion of the facts, and do a compare and contrast. I think it's safe to say that I'm still a weak on stating the rule, but I think I did okay with the analysis.

Anyway, it was nice to be done. I ended up coming home and watching the Les Misérables 10th Anniversay DVD, since I've been finding myself singing songs from that musical lately. I didn't get much else done. Oh well.

[lawschool] [exam] [civil_procedure]

Outline - Civil Procedure - IV - Venue

Civil Procedure (2005-2006)

IV. VENUE

Venue is not constitutionally mandated or designated. It is a tool within the federal system for allocating the business of the federal courts. Thus, it is waivable.

1. Generally [28 U.S.C. §§ 1391(a)-(d), 1446(a)]
   1. If all defendants "reside" in the same State, where any defendant "resides" [§ 1391(a)]; or
   2. Where substantial part of events/omissions creating the case occurred, or substantial part of property that is subject of case is located [§ 1391(b)]; or
   3. If neither (1) nor (2) exists in the U.S. [§ 1391(c)]:
      1. In diversity cases, any district with PJ over any defendant
      2. In federal question or "other" cases, any district where any defendant is "found".
   4. An alien may be sued in any district. [§ 1391(d)]
   5. For removed actions, federal court in district and division embracing state court case came from. [§ 1446(a)]
2. Residence
   1. Individuals – Where domiciled, place intends to permanently live. (Some courts include place currently lives even if not permanent.)
   2. Corporations – All districts where, treating districts as states, district court would have PJ over the corporation.
   3. Do not confuse the following:
      1. "Dwelling or place of abode" (service of process)
      2. "Citizenship" (diversity SMJ)
      3. "Residence" (venue)
3. Dismissing for Improper Venue
   1. Defendant must use it or lose it [Rule 12(b)(3)]; and/or
   2. Court may dismiss or transfer to any proper venue. [28 U.S.C. § 1406]
4. Changing Venue
   1. By motion or sua sponte, transfer to any proper and better venue [§ 1406(a)]
      1. Bolivia - Sua sponte transfer to more appropriate venue.
      2. Goldlawr v. Heiman – Transfer under § 1406(a) saves claims from statues of limitations.
   2. Transfer to any division within district by consent motion of all parties.
5. Forum Non Conveniens [Piper v. Reyno]

Outline - Civil Procedure - III - Subject Matter Jurisdiction

Civil Procedure (2005-2006)

III. SUBJECT MATTER JURISDICTION

SMJ is not waivable.

1. State Courts - General Jurisdiction vs. Limited Jurisdiction
   1. State - General Jurisdiction (criminal, civil/tort, family/probate)
   2. Federal - Limited Jurisdiction
2. Federal Question
   1. Subjects
      1. U.S. Constitution, Article III, Section 2
         1. Admiralty
         2. U.S. is a party
         3. Treaties
      2. Federal laws (e.g., anti-trust, patent, copyright, bankruptcy)
   2. Created by U.S.C. § 1331
   3. Well-pleaded complaint - Plaintiff may not anticipate federal question in defense or counterclaim. [Mottley – Anticipating federal question defense from defendant railroad corrupted complaint.]
3. Diversity
   1. Complete Diversity
      1. All plaintiffs diverse from all defendants unless statutory or decisional exception.
      2. Citizenship
         1. U.S. citizen – Primary permanent domicile, with intent to return [Mas v. Perry, Tanzymore]
         2. Permanent Resident alien – State where domiciled [Mas v. Perry]
         3. Corporation – Where incorporated and principal place of business
         4. Partnership/LLC – Where partners/members are citizens [Belleville]
         5. Normal class action – Where class representative plaintiffs are citizens
         6. Mass class action – Where any member is citizen (minimal diversity)
         7. Executor – Where deceased was citizen
         8. Insurer – If insured not defendant, where insured is citizen, and where insurer incorporated and principal place of business

         Cannot change citizenship after filing by moving or by changes in membership for partnership [Dataflux]

   2. Amount in Controversy > $75,000
      1. "Exclusive of interests and costs" [28 U.S.C. §§ 1332(a), 1332(d)(6)]
         1. American rule – Each side pays its own costs
         2. Civil rights exceptions
         3. Winners awarded costs (but not attorney’s fees)
      2. "Legal certainty" at time filed/removed [Red Cab - Subsequent events reducing amount below statutory limit do not oust jurisdiction]
         1. Plaintiff cannot reduce amount to take away right of defendant to remove to federal court
         2. Good faith representation
      3. Injunctive Relief
         1. Value to plaintiff;
         2. Value to defendant; or
         3. Either viewpoint [McCarty v. Amoco]
      4. Aggregation
         1. One plaintiff can sum all claims against one defendant
         2. One plaintiff cannot sum claims against separate defendants
         3. Multiple plaintiffs cannot sum separate and distinct individual claims
         4. Exception for mass class action (>$5 million) [§ 1332(d)]
4. Supplemental Jurisdiction
   1. Facts that would be presented would be the same on both the state and federal levels.
   2. State law to be applied.
   3. Federal court can decline to have jurisdiction over a novel state claim.
5. Removal
   1. What - Notice of removal automatically removes entire case; in federal question case, court may remand claims in state law [§ 1441(c)]
   2. Where - Federal District and Division embracing state court [§ 1441(a)]
   3. Who - All defendants must join unless separate federal question; except for federal question, may remove only if no defendant resides in state [§ 1441(b)]
   4. When [§ 1446(b)]
      1. Within 30 days of formal receipt of complaint or of first later paper showing removability; and
      2. No later than 1 year after action for diversity SMJ begins
   5. Why - Federal questions, diversity, or other SMJ exists in federal court.
   6. Improper removal not fatal if jurisdictional requirements satisfied at time of judgment [Caterpillar]
   7. Artful pleading - Plaintiff may not avoid SMJ by omitting federal questions from plea.
6. Remand
   1. Where - Back to state court case came from [§ 1447(d)]
   2. Who - Any party or sua sponte
   3. When [§ 1447(c)]
      1. Lack of SMJ
      2. Upon joinder of nondiverse defendants
      3. Within 30 days of removal for any other reason
   4. Why
   5. Joinder of nondiverse defendants granted [§ 1447(e)];
   6. State law predominates (discretionary);
   7. Error in removal; or
   8. No SMJ in federal court

Outline - Civil Procedure - II - Personal Jurisdiction

Civil Procedure (2005-2006)

II. PERSONAL JURISDICTION

Jurisdiction over the person (body and all property); court can only seize defendant’s property over which the court has jurisdiction, but in personam judgment is valid in jurisdiction where the property is located, and enforceable through Full Faith and Credit Clause.

1. Waiver
   1. Procedural
      1. Direct attack - Raise lack of jurisdiction at the outset to prevent court from proceeding to judgment.
         1. Federal - Rule 12(b) (denial of motion can appealed after trial with certification)
         2. California - Motion to quash (immediate appeal available through writ of mandamus)
      2. Collateral attack - Raise lack of jurisdiction after case is tried on merits; risky because no way to re-try merits.
   2. Contractual - forum selection
      1. Burger King - Defendant who negotiated contract with choice of law clause has purposefully availed himself of the forum’s laws.
      2. Carnival Cruise - Forum selection clause on cruise ticket enforceable.
      3. Szukhent - Prompt acceptance and transmittal of summons to purchaser, pursuant to contract, sufficient to validate agency in stranger.
   3. If PJ not waived, apply Rule 4(k) for federal court, long-arm statute for state court.
2. Rule 4(k) - Territorial Limits (federal court only)
   1. Defendants over which PJ can be established:
      1. Those subject to state court jurisdiction
      2. Third parties within 100 miles of court (bulge rule)
      3. Those under federal interpleader
      4. By federal statute
   2. Federal question cases have PJ over:
      1. Those not subject to PJ in any state court (aliens)
      2. Those with minimum contacts with entire US
   3. Analysis
      1. If (1)(B), (C), (D), or (2), apply constitutional analysis
      2. If (1)(A), apply statutory analysis
   4. Aerogroup v. Marlboro - Plaintiff claimed that under Rule 4(k), defendant not subject to jurisdiction of any one state but with contact with entire US subject to federal jurisdiction; court ruled minimum contacts too weak.
3. Long-Arm Statute
   1. McGee - PJ exists over insurance company with no other contact with state besides beneficiary due to knowledge.
   2. Gray - PJ exists over seller of defective valves to maker of heaters due to stream of commerce.
   3. Asahi - California’s long-arm statute is so expansive, may skip to constitutional analysis.
4. Constitution
   1. General PJ
      1. Service - If defendant not served in forum, apply nature of contacts test. [Burnham – Defendant tagged out of state while visiting children and ex-wife]
      2. Nature of contacts - If contacts with forum are substantial or systematic and continuous, and purposeful, apply reasonableness test; otherwise, apply specific PJ test.
         1. International Shoe - Employment of salesmen in forum state sufficient for minimum contacts.
         2. Aerogroup v. Marlboro - Foreign manufacturer distributing through US group has minimum contacts with entire US.
         3. Kulko - Father who let child move to California with ex-wife had no purposeful availment.
   2. Specific PJ - If cause of action arises from contacts with forum, apply purposeful contacts test.
      1. In rem - Case arises from property; jurisdiction over property to determine ownership and control rights.
      2. Quasi in rem - Case unrelated to property; jurisdiction only to determine right to property; outdated legal concept.
         1. Harris v. Balk - Harris owed Balk who owed Epstein. Harris paid Epstein. Debt is intangible property. Epstein arrested Harris’ debt to Balk when Harris paid Epstein.
         2. Shaffer - Even if court attaches stock of foreign defendant, no PJ over defendant.
      3. Relatedness - “But for” or “proximate cause” test
         1. Nowak v. Tak How - Defendant’s solicitation of forum state customers increased likelihood one would respond favorably.
         2. Carnival Cruise - Customer would not have been hurt but for Carnival Cruise doing business in forum state.
         3. Cornelison v. Chaney - Accident with forum state resident would not have occurred but for defendant being en route to forum state.
   3. Purposeful contacts - If minimum contacts, apply reasonableness test.
   4. Reasonableness
      1. Burden on defendant
      2. Forum State’s interest
      3. Plaintiff’s interest in convenience and effective relief
      4. Interstate interest in efficiency
      5. Interstate interest in substantive social policies

   Stream of commerce alone and reasonableness alone aren’t enough; they must both exist.

5. Another View [Wikipedia]
   1. Presence
      1. Territorial formalism (outdated) - Pennoyer
      2. Minimum contacts sufficient - International Shoe
      3. Modern interpretation - Burnham
         1. Scalia - Tradition upholds PJ over tagged defendant
         2. Brennan - Purpose availment upholds PJ over defendant tagged out-of-state
   2. Commercial Activities
      1. Placing products in “stream of commerce” helps establish minimum contacts [Gray]
      2. No PJ where extent of stream of commerce unforeseeable [World-Wide Volkswagen]
      3. Mere awareness of “stream of commerce” not enough without more [Asahi]
   3. Internet Activities
      1. Passive sites not subject to PJ unless a source of slander or defamation aimed at forum.
      2. Interactive sites may be subject to PJ depending on amount of contacts established as result of presence.
      3. Commercial sites subject to PJ.
   4. Property
      1. Ownership of property alone not sufficient minimum contacts for PJ in cases unrelated to property. [Shaffer]
      2. Property is sufficient contact for court having geographic jurisdiction to adjudicate case related to ownership of property, or arising from events occurring there. [Pennoyer]

Outline - Civil Procedure - I - Due Process

Civil Procedure (2005-2006)

I. DUE PROCESS

1. Consitution
   1. U.S. Constitution, Amendment V – “No person shall be … deprived of life, liberty, or property, without due process of law.”
   2. U.S. Constitution, Amendment XIV – “[N]or shall any State deprive any person of life, liberty, or property without due process of law.”
   3. California Constitution, Article I, Section 7 – “A person may not be deprived of life, liberty, or property without due process of law.”
2. Mathews Test - Weigh:
   1. Private interest that will be affected by government action
   2. Risk of erroneous deprivation (including probable value if any of additional safeguards)
   3. Government interest that would be impaired by additional safeguards
3. Notice
   1. Rule 3 - Action commences with filing of complaint.
   2. Rule 4 - Summons
      1. Service
         1. Summons with copy of complaint
         2. Disinterested party at least 18; at request of plaintiff, may direct service by US marshal
      2. Waiver of service
         1. Waiving service does not waive other objections
         2. Duty to avoid unnecessary costs; notice and request must be/include:
            1. Addressed directly to defendant, or an officer or agent of a corporation
            2. First-class mail
            3. Copy of complaint
            4. Consequences of compliance and failure to comply
            5. Date of request
            6. Allow 30/60 days to respond
            7. Extra copy for defendant
         3. Waiver extends response time to 60/90 days
      3. Defendants in the U.S.:
         1. Personally at individual’s “dwelling house or usual place of abode” with some person of suitable age and discretion living there, or
         2. By delivering copies of summons and complaint to authorized agent
   3. Mullane Test - 3 kinds of beneficiaries:
      1. Known beneficiaries – entitled to notice by mail
      2. Known beneficiaries that are hard to find – notice by publication sufficient
      3. Unknown beneficiaries (e.g., future generations)
   4. Cases
      1. Greene v. Lindsey - Posting alone not sufficient for actual notice; service by mail may complement.
      2. Khashoggi - Defendant who has multiple homes had notice when served at a home that has indicia of permanency.
      3. Mid-Continent - Knowledge of existence of suit does not obviate need for service and actual notice.
      4. Wyman v. Newhouse - Notice may not be served on someone induced to enter a jurisdiction through fraud.
4. Opportunity to be Heard
   1. Tenured public employees - Loudermill majority recognized these rights:
      1. Oral or written notice of charges
      2. Explanation of employer’s evidence; and
      3. Some opportunity to be heard to respond to charges and evidence
   2. Gilbert exceptions to Loudermill - Tenured public employees do not have right to pre-termination notice and opportunity to be heard when:
      1. Risk of erroneous deprivation is low (e.g., 3rd party determination, such as by arrest)
      2. State interest is high (e.g., employee in position of high public trust)
      3. Private interest is outweighed by state interest (e.g., suspension vs. termination)
5. Right to an Attorney
   1. Apply the Mathews test, except where physical liberty is at risk.
   2. Lassiter - In child welfare case, the interests of the state and the individual are the same, and the risk of error is low because the issue wasn’t that complicated.
   3. Walters - In non-adversarial proceedings such as VA benefits, no right to attorney.
6. Injunctions
   1. Types
      1. Temporary restraining orders (TRO)
      2. Preliminary injunctions (PI)
      3. Final/permanent injunctions
   2. Substantive requirements [Sullivan – homeless shelters]
      1. Applicant likely to be successful on the merits
      2. Applicant will suffer irreparable harm without injunction
      3. Harm to enjoined party from injunction outweighed by harm to applicant in absence of injunction
      4. Public interest favors injunction
   3. Procedural requirements – Rule 65 [Microsoft]
      1. For PI
         1. must give notice
         2. can consolidate with trial, or use evidence from PI hearing at trial
      2. For TRO
         1. affidavit or verified complaint must clearly show immediate and irreparable injury will result to applicant before adverse party can receive notice
         2. applicant must certify in writing efforts to give notice, or why notice should not be required; expires after no more than 10 days unless extended
         3. adverse party may move for dissolution or modification on 2 days’ notice to applicant
      3. Security (court's discretion)
      4. Proposed order
         1. reasons for issuance
         2. specific terms
         3. reasonable detail without self-reference
         4. binding only on parties to the action, agents

Outline - Civil Procedure

Civil Procedure (2005-2006)

1. DUE PROCESS
2. PERSONAL JURISDICTION
3. SUBJECT MATTER JURISDICTION
4. VENUE
5. CHOICE OF LAW
6. PLEADINGS
7. JOINDER
8. SUPPLEMENTAL JURISDICTION – 28 U.S.C. § 1367
9. DISCOVERY
10. TRIAL PROCESS

Outlines 2005-2006

It's exam season, and everyone's working on outlines. I will be dividing my outlines into sections, each of which will have a unique link. A list of subjects will be listed below the blogroll, and will be updated as I create the outlines. Each subject will contain links to new sections. Check often, and don't be too shy to post comments!

Outlining Marathon

I haven't done so much outlining since about a month ago, when I was preparing for the Torts midterm. Somehow, though, the going is much harder for Criminal Law. I spent a good four hours today taking a whack at it, and yet I don't feel that I've gotten very far. I managed to finally get causation, defenses, and attempt out of the way. I had no idea it would be so long! I'm also working off skeletal outlines Professor Natapoff gave us, and trying to re-arrange it in my own mind to fit how I understood the class.

Unfortunately, those four hours haven't been solid hours. I keep checking e-mail and surfing a couple of sites. I'm also trying to keep an eye on a friend who's going through a breakup. She's obsessing about it, but insists she's not, lashes out at me, and when I nudge back she accuses me of being bitter and lashing out at her when she's down, and of giving her recent paramour bad advice (even though she sent him my way). Not the easiest to deal with.

Maybe it'll be a good idea to go to the library tomorrow.

[lawschool] [outlines]

Law Exam Advice

Prawfblawg has some exam advice for law students. The comments section contains the meat. It doesn't really say anything new, but is a very good refresher for students, particularly first years, as to what to focus on for written portions of exams.

[lawschool] [exams]

Professorial View

I had lunch with a friend on Thursday between the end of class and waiting for the last Turf Club of the semester. We went up to the patio on the fourth floor of the building where all the faculty offices are located. This is their view.

Bizarre Lease Triangle

We're discussing landlord-tenant relationships today in Property. One of the problems we tackled yesterday (and are tackling today) has the following fact pattern:

L leases to T for a term of three years at a monthly rent of $1,000; in the lease T covenants to pay the rent in advance on the first of each month and also covenants to keep the leased premises in good repair. Six months later T assigns her entire interest to T1, who agrees in the instrument of assignment to "assume all the covenants in the lease" between L and T; three months later T1 assigns his entire interest to T2, and three months after that T2 assigns his entire interest to T3. T3 defaults on rent payments and fails to keep the premises in good repair.

Our class discussion focused on the concepts of privity of contract and privity of estate. We found that there was a privity of contract between L and T1 because T had assigned not only his possessory interest, but also his covenants, to T1 by contract. The sort of privity of contract between L and T1 arise out of L's status as a third party beneficiary of the contract between T and T1. There is also a privity of estate between L and T3. Thus, T1 and T3 are liable to L.

In further discussion, we drew some diagrams of triangular relationships between a landlord, and tenant, and a tenant's assignee. So I decided to get creative, and substituted a few words in the lyrics to New Order's Bizarre Love Triangle:

Every time I think of you
I feel shot right through with a bolt of blue
It's no problem of mine but it's a problem I find
Having a lease that I can't leave behind
There's no sense in telling me
The wisdom of a fool won't set you free
But that's the way that it goes
And it's what nobody knows
While every day my confusion grows
Every time I see you leasing
I get down on my knees and pray
I'm waiting for that final moment
You'll say the words that I can't say

I feel fine and I feel good
I'm feeling like I never should
Whenever I get estate, I just don't know what to say
Why can't we have a contract like we did yesterday
I'm not sure what this could mean
I don't think it's what it seems
I do admit to myself
That if I sue someone else
Then I'll never see this kind of privity
Every time I see you leasing
I get down on my knees and pray
I'm waiting for that final moment
You'll say the words that I can't say

Happy Friday!

[lawschool] [property] [parody] [lyrics]

Turf Club - Part I

Tonight was Turf Club, a tradition here at LLS where the Student Bar Association brings some beer on campus for the hard-working students. For me, it's reminiscent of Beer Garden Wednesdays at IBM's Santa Teresa Labs (now called the Silicon Valley Labs). It was quite timely, too, considering that we got our grades back from the Torts midterm. (I scored right in the middle -- not bad for starting my outline the night before the midterm.)

The turnout was particularly high this time, and Professor Nockleby turned out to chat with some of us for a bit. I had a lot of fun, and actually managed to stay until almost 7pm (the party had started just past 4pm). Heck, even Shirley managed to stay on campus for this. Between Criminal Law and Turf Club, we had about four hours. We watched part of a presentation on Hurricane Katrina relief efforts, then spent the rest of the afternoon reading our case books. Well, I did. Shirley was playing Spider Solitaire, her new hobby, after she did a good deal of reading (about 20 pages) in Criminal Law. (I barely managed to get 33 pages done in Torts.)

Bobby, the Section 2 Representative to the Student Bar Association, was on hand, and hooked Section 2 members up with beer above the ration of 2 cups each. Around 5:30pm or so, the library disgorged about ten Section 2 members or so, who merrily joined in the feast. It was good!

And now that I've had some coffee, the beer buzz is wearing off. Now, to watch Batman Begins!

Volokh on Alito

Professor Volokh has an article out discussing Judge Alito's First Amendment record, a topic that many bloggers left and right care deeply about. Professor Volokh rates Judge Alito at somewhere in between, but it's worth reading the article to see where Judge Alito stands on each of the freedoms enshrined in the First Amendment.

[First Amendment] [Volokh] [Alito] [Supreme Court]

Strict Liability or Negligence?

In Torts, we're currently working on Indiana Harbor Belt Railraod Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:

Essentially, Professor Nockleby's position is as follows:

1. The real issue in the case is, "In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitirle, while in rail transit be cast?"

2. The shipment of acrylonitirle is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)

3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.

[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I'm not sure that's so clear); and
2) In the instant case, isn't the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn't the fact that a government agency can clean up the spill an argument that "the people" have resources which are just as corporate as "big business"? Isn't the government a sunk transaction cost, and what we're doing then is simply doing the indemnification?]

4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.

5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O'Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.

I don't expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you're familiar with this case and its interpretations and arguments. Thank you!

[lawschool] [torts] [strict liability] [negligence] [Posner]

New Links

Added: Raymond Nimmer's IP Blog; and the Becker-Posner Blog.

[blogs]

Busby's

After the midterm, I lounged around at home first. The fridge was kind of empty, but I scrounted up four sausages and Napa cabbage, and added two cloves' worth of chopped garlic, and made a meal out of that. In the evening, I joined Dad and Eddie and Ben in Cerritos to watch Jarhead, which I rather liked.

After the movie, I joined my classmates at Busby's, a place over in Santa Monica. When I got there it must have been almost half past eleven, and there was a line that didn't move for quite some time. I eventually got in, though, and found a bunch of my classmates there. The place was so packed that you're bound to rub up against somebody; and the people were friendly. I was generally pretty happy because I'd gotten a big weight off my mind, I was finally in a place with a nice ambience, and I was surrounded by classmates. The thing about classmates in law school is that, ever more so than college classmates (especially at a big campus like Berkeley), or even high school, these people were like trench buddies, comrades-in-arms. You might not even share that much in common with them outside of school, but having had to go through the same trials (haha) together tends to breed a certain bond.

Anyway, so I had a content if not completely shit-eating grin on my face. And people, whether they knew me or not, smiled back. Put that together with the packed place and I found myself in a situation where gorgeous women would graze me with their breasts as they tried to squeeze by. The fact that the men weren't doing the same with any part of their anatomy other than the usual arms, elbows, and shoulders) meant it wasn't only because it was packed.

I did see a rather pretty Asian girl there. Her face looks ethnic Chinese. I thought she was rather pretty, but she wasn't smiling. Sure, it added to her mystiqute and what not, but I can't help but feel that a smile would have made her face radiate with even more beauty.

Anyway, someone was already hitting on her, and since Derek wasn't there to prod me I wasn't getting any return smiles anyway, I decided to pay attention to my classmates instead.

I even ended up meeting some students from section 3, Eddie's section. One of them turned out to have been one of the guys I was standing in line with. We chatted up about as much of a storm as could be expected given the music.

Now on to Busby's itself:

• Cover: Cover charge was $10. Not bad for Southern California.
  
• Alcohol: I went with hard drinks this time. A red bull and cognac in a rather small glass cost $12. Ouch. A rum and coke in a similarly small glass cost $6. Not a bad price until you realize the size of the drink. Oh, and Armen got me a shot of Jägermeister to start off, and Jose got me a Pellegrino toward the end of the night (a nice alternative to a glass of water!). So the drinks are on the steep side, but it's Westside, so it's sort of expected.
  
• Music: I thought the DJ wasn't great. The choice of music was fine, but I'm generally easy to please; but the transitions left a little something to be desired. It reminded me of the DJ over at Rudy's in Palo Alto. Still, I'd say Busby's is better.

So to wrap up, I had a good time, and look forward to future outings with my classmates!

Torts Midterm

There were 60 multiple-choice questions, and two cases to read for which we had to write an outline. All this in a span of two and a half hours. I won't go into the particulars of the questions or cases (because I effectively had to sign a non-disclosure agreement just to take the test); but I'll discuss other things about it.

It was a very challenging test. I had prepared myself to take about a minute and a half on each multiple-choice question, giving me a good half hour to bubble in the answers on the Scantron sheet and review before going on to the issues. A quarter of the way in, I was already starting to fall behind in pace, and I hadn't even bubbled anything in yet! About halfway through and another quarter past that, I was still ahead, in that even if each of the remaining questions occupied me for the two minutes allotted by the professor, I would still have ten minutes left to bubble in the answers and review before going on to the issues.

But the last fifteen questions killed me, and I found myself with barely enough time to bubble in and review. I ended up with less than half an hour to do the issues. It took me some time to read the first case and write out the issue, so that I had maybe ten minutes left to read the last case and write the issue.

After the test, I hung out with some of my classmates. At least two classmates from my exam room (about a third of the class chose to write their issues by pen rather than by computer and were thus in another room) seemed seriously shaken. One seemed not to have even gotten to the second case.

Finally, a few of the stragglers, including myself, got to talk to the professor, whom I almost didn't recognize because he was unshaven and was wearing normal slacks with a button-up shirt unbuttoned and untucked, and a baseball cap. This is the first year that Loyola Law School students have had to take closed book exams, and also the first year that LLS mandated 5-unit semester classes (as opposed to 4-unit semester classes and year-long classes) to have a midterm, so professor Nockleby wanted to gauge our experience so he could prepare for next year's first-year torts class.

The general consensus among all the students was that it was a very challenging, but generally fair test, and almost everyone now wished that we had taken an essay-based exam instead, as it would have given us a better way to explain ourselves (there's obviously no partial credit in a multiple choice question). However, that would have been too much work for the professor to read 90 exams critically while having to teach and worry about his obligations to committees and publishers and what not, and he wouldn't have been able to get our tests back to us before the final, in effect defeating the purpose of an midterm exam, which is to get some feedback.

Unfortunately, even though we'll be getting our exams back by Thanksgiving, it doesn't seem we'll be able to compare our answers with the actual answers. Still, there was some feedback as we went through the questions as to which areas we needed to work on, as we had to rack our brains for any memory of the rules and argument techniques we had been learning.

Outline? What Outline?

One of the things I've heard most constantly at school is the commandment that thou shalt make thy outline! Several students resort to commercial outlines, in addition to guides and what not. I have not as of yet done so.

Today, I went to the law library to do the sample multiple-choice questions Professor Nockleby distributed. I did not do very well, but I had no trouble, once I compared my answers to the answer key, figuring out why my answers were wrong. As expected, the results proved that I need to bone up and do some reviewing. I commented in passing to Lily and Alisa that I should do my outline.

"No! You don't have time! Just do more questions!"

Where do I find more questions?

"Use the PMBR!"

Huh?

The guy at the reserve desk was very helpful. The PMBR was not. It covered way too many subjects that we hadn't even touched yet, particularly product liability.

Then I remembered something. My definition of "outline" is substantially different from everybody else's. For my method of learning it is not so important to write what would amount to a minor novella to qualify as an "outline" (Shirley's outline runs to more than 30 pages just for intentional torts). The way I learn, it's more important to capture the main points, and note cases that make those points. Since I've already got a compilation of cases anyway (and that compilation for Torts runs to about 68 pages, but that's including a table of contents, and for many cases includes full briefs), it really shouldn't take me more than a good half day to come up with an outline Bruce-style.

Guess what I'll be doing Friday night?

Alito Justice

I hadn't commented on either Roberts or Miers due to the hubbub of starting school, and because there really wasn't much to know. As for Alito, from my very limited knowledge, it seems that he's a pretty reasonable guy. But don't take my word for it. Michael Barone has a nice long article covering Judge Alito, and why Democrats might be ill-advised to pull out the stops in opposing him. Barone correctly notes that several Democrats are caught between a rock and a hard place: The need to be reasonable versus the need to satisfy constituents. Red-state Democrats, then, have the easiest job: They won't face recrimination for being reasonable. What I find interesting is that some blue-state Democrats, like the Senators from Massachusetts, who would be virtually uncontested at election no matter what positions they took, nevertheless feel the need to excoriate a nominee simply because Bush made the nomination. Unsurprisingly, Pennsylvania Democrats are less likely to spit on their native son.

Andrew Sullivan notes that there's a liberal for Alito: Kate Pringle, a liberal Democrat who once clerked for Alito.

Captain Ed adds to that list a certain Jeff Wasserstein, who characterizes himself as "a Democrat who always voted Democratic, except when I vote for a Green candidate" but is neverthless on board. Captain Ed tips his hat to the Los Angeles Times, which surprised me somewhat.

Meanwhile, James Taranto notes that the New York Times is still on the same old saw. The Tuesday column item led to some sleuthing by reader Chris Bartony (which James has posted). The best part is Chris' conclusion:

I think that they have a Screed-O-Matic somewhere at the New York Times. They just insert the name and hit the Republican Judicial Nominee button and the thing churns out the copy. I know that Maureen Dowd and Bob Herbert use it all the time.

That seems about right.

Speaking of which, it is important to remember that there's a difference between a judicial conservative and a social conservative; that Judge Alito, on the face of his published opinions, hardly seems an extremist in either sense; and that maybe getting things done "just about right" is more important than having your party "win". That's the only way American will have Alito Justice (apologies for the punnery).