Summer Law+ for High School Students

Summer Law+ is a unique program for thoughtful high school students interested in a realistic introduction to the world of legal thought and the role that actual attorneys play in our legal system and society.

Classes are taught by talented law students from around the country and overseen by practicing attorneys with each week devoted to one of the 6 first year law school core classes: Contracts, Torts, Property, Constitutional Law, Criminal Law, and Civil Procedure.

Teaching is done in small 10 person discussion classes which use the Socratic method to draw students into the dialogue. Classes run from 8am to lunch, followed by Beach Time in the afternoons, and legal speakers in the evenings.  

This is not moot court. Summer Law+ will interest thinkers as much or more than talkers, and is committed to providing a realistic introduction to legal thought and the 99% of law that happens outside the courtroom. Summer Law+ is unique in the world of legal education for young people.     

We are also committed to leaving the "Summer" in summer school so every afternoon, our Summer Law+ students learn water safety and enjoy the fun and exhilaration of engaging with the saltwater marine environment in a wide range of fun and environmentally sustainable activities from beach combing, to sea kayaks, paddleboards, sailboats, wind surfers, skim boards, zodiacs, beach bikes, and more.

Our location on Puget Sound directly across from its entrance to the Pacific Ocean, is home to porpoises, seals, seal lions, sea otters, and even passing pods of Orca whales. Sumer Law+ students learn about and encounter marine mammals on a daily basis. 

Summer Law+ Program Overview

Summer Law+ consists of 6 separate one week sessions starting on the second Sunday after the Fourth of July and continuing to the end of August. Summer Law+ is limited to high school students entering 10th grade and above in the fall. Students stay overnight in separate gender Tiki and Flipper law dorms and eat meals with their classmates in the Wharf picnic areas.

Each of the 6 Summer Law+ week long session consists of a separate legal subject and functions as a stand alone unit. It is intended that students who can only do a week or two per summer can return each year to complete a different unit and thus have comple all six L1 subject matter classes by the time of graduation.   

While mornings are devoted to the world of thought, afternoons are devoted to action, with  Beach Time activities structured to build confidence, teamwork, water and boating safety, and knowledge and respect for marine mammals and the saltwater marine ecosystem. There is a wide variety of of activities which frequently are gamified around various marine science learning projects such as taking water quality and acoustic measurements from our various monitoring buoys in our bay. Summer Law+ students may also receive Save Our Shorelines service learning credit hours for their contributions on afternoon environmental projects.  

After dinner speakers include practicing attorneys, judges, and elected representatives interested in helping the next generation understand our legal system and the role played in it by attorneys and the legal thought process. 


Week 1: Constitutional Law

-If you want to play the game, you need to know the rules, and Constitutional Law is the study of the rule book and the referees who maintain our system of government. 

Week 2: Property (Who owns what and why)

-Everything is owned by someone or something. And almost everything that is owned can be bought, sold, rented, lost, found, stolen, given away, pledged as collateral, or destroyed. In property law we learn why and how this all happens, and how it forms the basis of modern society. 

Week 3: Torts (Accidents)

-Accidents don't just happen. Every accident has a cause, and unraveling the causes and legal responsibility is what Tort law is all about.   

Week 4: Contracts (Enforcement of Promises)

-Contract law concerns how and to what extent promises made between people and organizations are to be enforced.  

Week 5: Criminal Law

-Why can't we all just get along? Sometimes we can, but when we can't, the criminal law system provides incentives for civil behavior and penalties for violations of societal norms.

Week 6: Civil Procedure (Functioning of the Legal System) 

-I know the law, but how to I actually do something with it? Civil Procedure is the study of the actual nuts and bolts of righting wrongs through the use of the legal system.

Curriculum Subject Matter Overview:

The following copyrighted materials being prepared by our public interest law firm Bayside Law are a work in progress with formatting and typos still being worked out and with asterisks **** representing areas for future additions.

These materials are intended to impart a general understanding of the various legal subject areas and are not designed to set forth the law of any given state including Washington. They are not to be considered legal advice and do not create an attorney client relationship.

Parent attorneys and judges interested in helping with Summer Law+ or adding to our thinking as to what aspects of these subjects areas are most important for young people's understanding of the legal system, please look us up...   

Week 1: Constitutional Law


Why Study Constitutional Law?

If you want to play the game you have to know the rules. Constitutional law forms the rule book for our society and system of government. It focuses on the extent of government authority over individuals and the economy, and on how this authority is divided up between the federal and state governments, and between each of the 3 branches; Legislative, Executive, and Judicial.     

Because the US Constitution was written long ago, it is rarely obvious how the original language and intent should apply to the circumstances of modern life. We therefore look to US Supreme Court decisions for how the Constitution applies today. The Constitutional rule book therefore includes both the text of the Constitution itself, as well as a much larger body of decisions by the US Supreme Court and lower federal courts.


How much the 200 year old language and mindset of the Constitution’s drafters should influence decisions today is one of the primary questions of judicial philosophy which divides the 9 sitting Supreme Court Justices. Their views on this fundamental question influences how they decide a wide variety of cases, and largely determines which new Justices are nominated and approved by the political branches of government. These are difficult questions with no right or wrong answer, and fortunately for the student of Constitutional Law, almost every case includes a written dissent setting forth the other side of the argument. Frequently the dissents provide a clearer explanation of the decision than the majority opinion itself and no thoughtful lawyer or student of the law will form any opinion about a decision without reading the dissents.   


Why Study Old Supreme Court Cases – Stare Decisis


One fundamental principle that all Supreme Court Justices agree on, is that Supreme Court interpretations of how old rules apply to new situations should remain as consistent as possible over time so that citizens and the branches of government can rely on them to order their affairs, and predict how the Court will rule. In this way, Supreme Court decisions are presumed to apply to similar situations into the future, thus eliminating the need to litigate every new circumstance that comes up.

This principle, known as Stare Decisis, means that when a case comes before the court, the Justices look first to similar cases which the Court has previously decided, and that they will follow that prior line of cases unless there is good reason to depart from it. What constitutes a good enough reason to depart from prior precedent, however, is a subject of much disagreement among the Justices. Although it can be difficult to predict whether the Justices will follow Stare Decisis in a given case, a review of the prior cases (known as “existing precedent”) allows forming the best possible guess on the outcome, and making such predictions is one of the primary jobs of the legal profession.       


Not every Supreme Court decision is something that lawyers use every day. But certain lines of cases that deal with recurring or controversial subjects, or are the first to adopt new points of view, can become well know and essential to an understanding of Constitutional Law.  Marbury v. Madison, the Enumerated Powers and Federalism, the Commerce Clause, the Bill of Rights, the 14th Amendment, and Separation of Powers are 5 main areas of constitutional legal knowledge, that if you understand them and carry it around with you, it gets you into the club.


-Marbury v. Madison is the Supreme Court decision where the Court determined that the Supreme Court itself is the referee who enforces the rules set forth in the Constitution, and that the Court has the authority to invalidate laws passed by congress if they violate these Constitutional rules.  


-Enumerated Powers refers to the rules in the Constitution that give authority to the federal government, and Federalism is the name for this general concept that federal government power is limited to those powers specifically enumerated in the Constitution.   


-Commerce Clause and Necessary and Proper Clause are specific rules in the text of the Constitution that the Supreme Court has found gives the federal government broad authority to regulate matters involving individuals, states, and the economy.

-Bill of Rights is the name given to the first 10 Amendments added to the original Constitution shortly after it was enacted. They were added due to worries among the original 13 Colonies that the first draft of the Constitution went too far in granting power to the federal government. The Bill or Rights therefore guaranteed various individual civil rights against infringement by the federal government.


 -14th Amendment is arguably the most important Amendment to the Constitution. It was added after the Civil War to protect the rights of freed slaves against discrimination in the state by guaranteeing the rights of “equal protection” and “due process” of law against infringement by the States. The Supreme Court has relied on the 14th Amendment to make guarantees in the Bill of Rights binding on the states. This process is known as “incorporating” the Bill of Rights into the 14th Amendment and it is the subject of many of the most important and well known Supreme Court decision.


-Separation of Powers is the concept that the 3 branches of government (Legislative, Executive, and Judicial) each have certain intrinsic powers which cannot be given to or taken by another branch. Many of the most contentions political issues in the news today concern the line between Executive, Legislative, and Judicial authority and to what extend each branch can tell the others what to do, and keep the others out of their Constitutional territory. 


- Marbury v. Madison


-The Supreme Court was asked to decide whether President Thomas Jefferson had to hire a new judge as directed by Congress in a new law called the Judiciary Act of 1812. The Act also gave the Supreme Court authority to review such cases even though the text of the Constitution did not included this power within the Court’s jurisdiction. President Jefferson did not like the judge because he was from the other political party, so Jefferson refused to let his Secretary of State James Madison seat Judge Marbury.   

-The Supreme Court heard the case, but decided that it didn’t have authority to render a decision one way or the other because the Judiciary Act of 1812 passed by Congress was unconstitutional in that it expanded the jurisdiction of the Supreme Court to hear cases beyond that set forth in the Constitution.


-By declaring the Act unconstitutional, the Supreme Court established itself as the ultimate authority for determining whether laws passed by Congress conform to the Constitution, and the Court gave itself authority to invalidate such laws if the Court determined the laws go beyond what is authorized by the Constitution. As a result of the Court basing its decision on lack of constitutional authority to decide the dispute, the Court avoided getting in the middle of a political power struggle between Congress and the President, while at the same time establishing for the first time that the Supreme Court has the authority to invalidate laws passed by Congress. This concept of binding judicial review over acts of the legislative branch provided the underlying basis for development of the US legal system.  

[Note: The strategy used by the Court in Marbury v. Madison of avoiding taking sides in a contentious fight while at the same time preserving and expanding your power has become a meme or sorts in the legal world, so when someone says “Marbury v Madison” smart lawyers always know what they are talking about].

-Enumerated Powers, Federalism, the Commerce Clause

-To encourage the original 13 Colonies to join together under a single national government, the Colonies had to be promised that the power of the new federal government would be limited solely to the powers specifically set forth in the new US Constitution, and that the state governments would retain power over everything else.

This concept of limited federal governmental power is called Federalism, and those powers specifically given to the federal government in the Constitution are called the Enumerated Powers.   


In the early days, the only Enumerated Powers the Supreme Court found in the Constitution were the Commerce Clause and the Necessary and Proper Clause in Article I, Section 8. The Commerce Clause states that the national Congress shall have the power to regulate commerce “among the several states”, and the Necessary and Proper Clause adds teeth to this power by giving Congress power to make laws “necessary and proper” for executing the Commerce Clause.     


For many years the Supreme Court felt that these two Clauses provided substantial limits on the authority of Congress and the federal government to regulate economic activities within the states.  Later on, however, in response to changing times and increased popular demands for federal government regulation of business, Supreme Court decisions steadily expanded the amount of federal regulation allowed by the Commerce Clause to the point where it is now difficult to find an aspect of the US economy which is not subject to regulation by federal law.


-Prig v. Pennsylvania (1842). In early cases like Prig the Supreme Court relied on the Commerce Clause to allow agents from slave states to cross into free states (over the free state’s objections) in order to capture fugitive slaves.

-Laughlin Steel (1937), and Darby (1941).  Upheld federal New Deal regulations on business based on the test of whether the business activity has “substantial effects” on interstate commerce. This subjective standard of what constitutes “substantial effects” allowed broad federal authority over business activities within the states.

-Heart of Atlanta Hotel (1964). Upheld the Federal Civil Rights Act of 1964 which banned hotel discrimination. Case allowed federal regulation of local hotels based on the Commerce Clause due to the impact hotel discrimination has on interstate travel for blacks.

-Katzenbach (1964). Upheld the Federal Civil Rights Act of 1964 banning restaurant discrimination. Case allowed federal regulation of local restaurants based on the Commerce Clause due to some food items served in the restaurant having traveled in interstate commerce.

Cases like Katzenbach which allowed federal government regulation of business activity which involves anything from interstate commerce nearly eliminated the Commerce Clause as a limit on federal government power, since almost every business uses something which has or will cross state lines. This expansion of the Court’s view of the extent of federal authority allowed by the Commerce Clause in the 1960s ushered in a new era of federal government economic regulations covering most aspects of the US economy.

By the 1990s, however, members of the Supreme Court lead by Chief Justice William Rehnquist began to see Commerce Clause jurisdiction as having gone too far by having effectively eliminated a fundamental purpose of the US Constitution which was to limit federal power over in-state activities. Because the Commerce Clause had been relied on to allow enforcement against the states of the federal 1964 Civil Rights laws, this shift in the Rehnquist Court’s Commerce Clause interpretation caused great worry for many.   


-US vs Lopez was the first case in over 50 years to put limits on the Commerce Clause and begin reducing rather than increasing the power of the federal government to regulate in-state economic activities. In US vs Lopez the federal Gun Free School Zone Act was struck down due to the law not requiring the prohibited guns from having traveled in interstate commerce.

In this 5-4 decision, Chief Justice Rehnquist went through the history of why federal powers were limited in the Constitution (i.e. the 13 Colonies would never have agreed to the Union if the new Federal Government had total power over the states). Rehnquist set down a limiting principal saying that the Commerce Clause allowed the federal government to regulate things inside of states only in order to protect 3 things (later known to law students as CIA):

-The flow of interstate commerce (Heart of Atlanta Hotel) “Channels”

-Things involved in interstate commerce i.e. (Ports or Railroads) “Instrumentalities”

-Activities that have a “substantial effect” on interstate commerce, however this “substantial effects” test only applies to federal laws that regulate economic activity

This new economic activity limit on the authority of the Commerce Clause to allow federal regulation ushered in the current era in which we now live, where the court will scrutinize whether the Commerce Clause grants sufficient authority to uphold federal government regulation of non-economic in-state activities.


For Example:

-US vs Morrison (2000). The Supreme Court struck down the federal Violence against Women Act based on the federal law going beyond the authority provided by the Commerce Clause because the Act attempted to regulate non-economic activity which did not affect either the Channels or Instrumentalities of interstate commerce.  


But a majority on the Rehnquist Court soon became nervous about the Court’s new found limitation on use of the Commerce Clause to justify federal regulations.


For Example:

-Gonzales v Raich (2005). Supreme Court upheld federal law against homegrown marijuana, even though it was never sold to anyone and nothing involved in its production had traveled across state lines.  The Court based its decision on a strained reading of dictionary definitions finding that plants=crops and crops=commodities and commodities=economic. Thus homegrown marijuana is economic activity subject to federal regulation pursuant to the Commerce Clause.


The majority in the Gonzales v Raich decision also added an important new item to Renquist’s C I A list, stating that the Commerce Clause also allows federal government regulation in state activities when “necessary to implement a comprehensive national regulatory program” such as nationwide illegal drug laws.


In recent years the Supreme Court has gone back and forth on Commerce Clause jurisprudence sometimes allowing and sometimes restricting (on bare 5-4 majorities) federal power to regulate in-state economic activities. Most recently this issue has come to a head in Roberts Court decisions over the constitutionality of the Affordable Care Act aka “Obama Care”. The Act required people to carry health insurance, and also required states to start paying for more of their senior citizen healthcare costs.


-SFIB vs Sebelius. Upheld Obama Care’s individual mandate calling the fine for not having insurance permissible as a tax. But the Court struck down the part of Act that forced states to pay for more senior citizen medical costs (Medicare expansion) saying it was beyond the federal government’s power under the Commerce Clause to force states to provide this coverage.


-Bill of Rights and the 14th Amendment

At the same time the Supreme Court was expanding its interpretation of the Commerce Clause to allow increased federal economic regulation of state activities,  the Court was also expanding its interpretation the 14th Amendment to require increase respect at the state level for the individual rights guaranteed in the Bill of Rights.


Although the individual rights guaranteed by the Bill of Rights by their text only apply to the federal government, the guarantee of rights in the 14th Amendment specifically apply to the states. The 14th Amendment, however, only includes two individual rights, “equal protection” and “due process of law”.  In order to bridge this gap, the Supreme Court began to expand its interpretation of what is meant by “equal protection” and “due process of law” to include the individual rights contained in the Bill of Rights.

The Court’s thinking was that the individual rights of “equal protection” and “due process of law” guaranteed in the 14th Amendment guarantees must be shorthand expressions for a list of individual rights that are so fundamental it is hard to envision a system of justice without them. Under this new thinking, Supreme Court decisions began to examine the list of individual rights contained in the Bill of Rights to determine which of them should be considered so fundamental they are included in the 14th Amendment’s promise of  “Due Process” and “Equal Protection”. 


Thus began a several decade process where case by case and right by right, the Supreme Court began “incorporating” the Bill of Rights guarantees into the 14th Amendment.  As of today, all 8 of the Bill of Rights Amendments which contain individual rights are considered binding on the states by virtue of the Supreme Court incorporating them into the 14th Amendment’s “Due Process” and “Equal Protection” guarantees.


Cases Applying the Bill of Rights to the States by Incorporation into the 14th Amendment


First Amendment

-No state establishment of religion:  Everson v Board of Education, 330 U.S. 1 (1947)

-Free Exercise of Religion:  Hamilton v. Regents of the University of California, 293 U.S. 245 (1934), Cantwell v. Connecticut, 310 U.S. 296 (1940)

-Freedom of Speech:  Gitlow v. New York 268 U.S. 652 (1925)

-Freedom of the Press:  Near v. Minnesota 283 U.S. 697 (1931)

-Right of Assembly and Petition:  DeJonge v. Oregon 299 U.S. 353 (1937)

-Freedom of association: Roberts v. United States Jaycees 468 U.S. 609 (1984)


Second Amendment

-Right to bear arms:  McDonald v. Chicago, 561 U.S. 742 (2010).​ 


Fourth Amendment

-Freedom from unreasonable search and seizure:  Mapp v. Ohio, 367 U.S. 643 (1961)

-Requirements in a warrant:  Aguilar v. Texas, 378 U.S. 108 (1964)


Fifth Amendment

-Right to indictment by a grand jury (not incorporated): Hurtado v. California, 110 US 516 (1884);

-Right against Double Jeopardy: Benton v. Maryland, 395 US 784 (1969)

-Right against Self-Incrimination: Malloy v. Hogan, 378 US 1 (1964)

-Protection against taking property without due compensation: Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).


Sixth Amendment 

-Speedy Trial: Klopfer v. North Carolina, 386 U.S. 213 (1967)

-Public Trial: In re Oliver, 333 U.S. 257 (1948)

-Impartial Jury: Parker v. Gladden, 385 U.S. 363 (1966)

-Notice of accusations: In re Oliver 333, U.S. 257 (1948)

-Confront Hostile Witnesses: Pointer v. Texas, 380 U.S. 400 (1965)

-Obtain witness testimony: Washington v. Texas, 388 U.S. 400 (1965)

-Confront Favorable Witnesses: Washington v. Texas, 388 U.S. 14 (1967)

-Right to Counsel: Gideon v. Wainwright, 372 U.S. 335 (1963)


Eight Amendment

-Protection against excessive bail: Schilb v Kuebel, 404 U.S. 357 (1971)

-Protection against excessive fine: Timbs v. Indiana, 586 U.S. ___ (2019)

-Protection against cruel and unusual punishments: Robinson v California, 370 U.S. 660 (1962).


In addition to the process of finding that individual rights listed in Bill of Rights apply against the states, the Supreme Court also began a decades long process of determining what additional rights may be inferred as logical extensions to the listed Bill of Rights, and also what additional rights must be included in the concepts of “Due Process” and “Equal Protection” whether or not the exact concepts are present in the Bill of Rights text.



-Separation of Powers and Power of the Executive

At the time of the founding, the British government divided power between the Monarch (King), the Aristocrats (House of Lords), and the Commoners (House of Commons). This system of separating government power into 3 parts was handed down from Sparta in ancient Greece (lasting 1000 years), to the Roman Republic (lasting 400 years), and to the Venetian Republic (lasting 1000 years). It was based on the idea that there are 3 distinct classes of society (aka “estates”) which must be represented in any fair system of government, the Monarch, the Aristocrats, and the Commoners. It was based on the presumption that none of the 3 Estates could rule on their own because rule by Monarch tends toward tyranny, rule by Aristocrats tends toward self-interest and corruption, and rule by the Masses tends toward mob rule against minorities and unpopular ideas of the day. Providing offsetting power to each of the 3 parts of society, had shown itself to provide fairness and government stability by curbing the destructive tendencies inherent in the human nature of leadership and exercise of power over others.

The US Constitution adopts a hybrid form of this ancient 3 part system of checks and balances with the Legislative Branch representing the Commoners, Executive Branch replacing the King, and the Judicial Branch representing the learned Aristocrats. Although this comparison between the US and prior three estate systems is not exact, appreciating the historic basis of the 3 part separation of powers system can be helpful in understanding the behavior of judges and politicians.


As we learned in 5th Grade, the Legislative Branch makes the laws, the Executive Branch enforces them, and the Judicial Branch decides disagreements between them. In practice, however, most activities of government do not fit discretely into one of the 3 categories. This is particularly so with government Administrative Agencies created by Acts of Congress to administer important government programs such as Environmental Protection. These agencies handle legislative, executive, and judicial functions within their area of expertise, and are a subject of continuing controversy as to how or if they conform to our 3 part Constitutional system.   


The study of Constitutional Law concerns in large part where the lines of authority between the 3 branches of government should be drawn. For example, Article I gives the power to declare war to the Legislative Branch, but Article II makes the President Commander in Chief of the military. So how large of a military response can the President direct before needing a Congressional declaration? What if the Congress decides the modern world is simply too complex for a group of elected representatives to decide when to declare war? Can the Legislative Branch pass a law transferring this war declaring power to the President? Or what if Congress passed a law transferring this power to a 10 member commission made up of experts on war? How about a law setting up an administrative agency composed of several thousand war experts who decide whether to declare war based on the outcome of a mini trial within the agency? What if the President, doesn’t like the war agency’s decision, or doesn’t like the agency director? Can the President ignore the war agency decision or fire the director?


Constitutional Law is the field which explores how these types of questions have been dealt with in the past, and seeks to provide principled guidance on how to address them in future cases.      


-Power of the Executive

There was much disagreement among the founders of the Constitution as to how powerful the leader of the new Republic should be. The Declaration of Independence which led to the drafting of the Constitution, consists largely of grievances against King George in England. But the founders also recognized the need for a strong executive in enforcing the laws, running the country, and dealing with emergencies and foreign adversaries.  This tension between democracy and expediency was never fully resolved by the founders. Instead they settled on a short and imprecise description of executive power stating simply:


“The executive Power shall be vested in a President of the United States…”


“…shall take care that the Laws be faithfully executed…”

Other than the handful of enumerated Article II powers such as issuing pardons and leading the military, Presidential power today comes from evolving practice and federal court decisions based on these two short and vague clauses. Although never imagined by the framers, Presidential administrations today oversee 15 Executive Departments and hundreds of federal agencies employing millions of people and enacting vast amounts of regulations and orders which carry the force of law without ever having a vote by the Legislative Branch.


To understand why so much power has gravitated to the Executive branch consider one example. In 1965 Congress passed the Social Security Act which guarantees a level of income and medical care for millions of retirees and the disabled. Congress exercised its Article I power in passing this law and making the necessary funds available. However, to actually carry out (i.e. “execute”) the law’s requirements it takes an army of administrative workers to determine who is eligible for what benefits, to hand out the money, to provide the required healthcare, and to resolve disputes and problems that arise with the millions of aid recipients. Passing of a law therefore can be considered the easy part. The hard part, and the part which requires lots and lots of people, is executing the law. And this is the job of the Executive Branch pursuant to nothing more than the Article II “vesting” and “take care” clauses.   

For our purposes in understanding how Constitutional Law affects current events today, we focus on Supreme Court cases in 7 recurring areas of disagreement between the President, Congress, and the Judiciary over how the 3 part Separation of Powers structure is to be applied.

1) Presidential power to order military action which may infringe on Congressional power to declare war


2) Executive orders by the President which may infringe on Congressional power to make laws


3) Congress power to delay or overrule Presidential decisions executing laws passed by Congress

   -Dept of Homeland Security v. Regents of California (Trump withdrawing DACA protections)

   -Ramos v. Wolf (Trump denial of asylum from designated countries in turmoil)

  -Dept of Homeland Security v Thuraissigiam (Trump denial of asylum claims without hearing)

  -Trump v. Hawaii (Travel ban from Muslim nations)

4) Administrative agencies which may infringe on Legislative, Executive, and Judicial branch powers by enacting regulations, administering government programs, and holding their own trials to resolve disputes over benefits or penalties.

   -Schechter Poultry v US (Delegation of congressional power to administrative agency)

   -Whitman v American Trucking (Delegation of congressional power to administrative agency)

   -Humphreys’s Exeuctor vs. US (Congress authority to set up administrative agencies exercising quasi legislative and quasi judicial      functions and keep them from control by the President)

   -Free Enterprise vs. Public Company Oversight Board (Congress restricting President right to fire executive officers)

   -Dept of Transportation vs Association of American Railroad (Constitutional status of Amtrack) (Noted Thomas Dissent)

5) Presidential refusal to enforce laws which may infringe on the Legislative branch law making power.


6) Congressional subpoenas to Executive Branch infringing on Executive power.

   -Trump v Mazaurs (Congress subpoena of Trump tax records)

7) Voting Rights

    -DNC v Wisconsin (Court infringement of legislative authority by changing voting deadlines)

     -Ruco v Common Cause (Gerrymandering)


-Individual Constitutional Rights

In addition to upholding the structure of our Constitutional system by maintaining the lines between the 3 branches of government, much of remaining work of the Supreme Court is devoted to the ongoing work of determining the scope of Constitutionally protected rights in our everchanging world. The following recurring questions require the Supreme Court to draw the boundaries between government power and individual rights guaranteed by the Constitution:




-Right to have an Abortion

Roe v. Wade, 1973 *Abortion held to be included in the “fundamental right” of “privacy” saying that abortions prior to feeling movement were generally allowed in history, and that this new fundamental right is enforceable against the states (without specifying 14th Amm Due Process clause or incorporated Bill of Rights) and that states lack the required “compelling interest” to prevent first trimester abortions. Stewart concurrence specifies that this new right must belong in the 14th Amm Due Process clause (and that the Court had made a mistake when is said  it was going to stop using the 14th Amm Due Process clause i.e. “substantive due process” to find new rights). Rehnquist dissent says abortion can’t be a fundamental right under the 14th Amm because the anti-abortion law was already on the books when the 14th Amm was enacted in 1868, and nobody at the time thought it overruled abortion laws, and that since abortion is really a  “liberty” not “privacy” right, the 14th Amm allows restricting liberty so long as there is due process of law, so the Court’s decision is really more like judicial law making than just interpreting the Constitution.

June v Russo, 2020 (State law requiring abortion doctors to have admitting privileges in nearby hospital)

*Admitting privilege requirement held unconstitutional due to substantial obstacle and undue burden it places on women’s right to abortion in that law had little or no impact on safety, and reduces or eliminates access to abortions because hospitals in many areas are against abortions and unwilling to provide admitting privileges to abortion doctors.  

Alito + 4 dissent, saying case needs to be brought by women whose abortion rights are being infringed not by abortion doctors, that case was brought too soon to determine if law actually would substantially reduce access to abortions, and that legislature enacting the law thought it might increase abortion safety and the Court must defer to legislative findings.        

Capital Punishment


-Who decides judge or jury


Hurst v Florida, 2016 *Invalidated Florida’s death penalty law citing prior holding in Ring v. Arizona that right to jury trial (in 6th Amendment and 14th Amm Due Process Clause) require all facts which subject an accused to the death penalty must be found by the jury beyond a reasonable doubt, not by a judge as allowed by Florida law. Alito dissent, says stare decisis requires following 2 prior cases from the 80’s where Court had upheld the Florida statute, and that this Florida law which allows jury to make death penalty recommendation to judge does not violate the 6th Amendment right to jury trial, and that even if the Florida law were unconstitutional, it is harmless error in this case since the jury recommend death after looking at all the facts and judge just followed the jury’s recommendation.


Mckinney v. Arizona, 2020 *Held that although the jury must determine all the facts which make an accused eligible for the death penalty, a judge can be the one to weight the positive and negative facts (aggravating and mitigating circumstances) and the judge can make the final decision on imposing the death penalty. Dissent by Ginsberg, Breyer, Sotomayor, Kagan, saying that when convicted in 1993 the old Arizona statute violated the current rule requiring juries instead of judges to find death penalty facts, and that the Court’s new jury rule should apply retroactively to this 20+ year old case because even though the current challenge was brought in a new separate lawsuit filed long after the original case was closed (i.e. collateral review), here it is basically the same as appeal of the original case (i.e. direct review) because it involves reviewing a decision made during direct review.             


-Can jurors be disqualified if they’re against capital punishment


White v Wheeler, 2015 *Per curiam decision citing Uttecht v Brown 2007 saying juror can be disqualified if trial judge is left with the “definite impression” that juror would be unable to faithfully and impartially apply the law. And that under the Antiterrorism and Effective Death Penalty Act of 1996 the trial judge’s decision must be afforded great deference and can only be overturned by an appellate court on collateral habeous corpus review if there was an error “beyond any possibility of fair minded disagreement”. No dissenting opinion was filed.     

-Can jurors be disqualified based on race


Flowers v Mississippi, 2019 *Citing Baston v Kentucky 1986, held that the 14th Amendment  Equal Protection Clause prohibits prosecutors from discriminating based on race in the use of preemptory challenges, that prosecutors may not rely on an assumption that black jurors may favor black defendants, that courts may look past the reasons given by prosecutors and infer a raced based motive based on factors such as the prosecutor’s  demeanor and credibility, differences between how black and white jurors are questioned and investigated, the proportion of preemptory challenges used against backs compared to whites, and use of race based peremptory challenges in prior cases. Dissent by Thomas joined in part by Gorsuch, saying the Court improperly granted review based on media attention to the case which only encourages criminal pre-trial publicity which seeks to titillate rather than educate and has long been recognized to endanger ability of defendants to receive a fair trial, and that in this case the issue of improper juror exclusion had nothing to do with the guilt of the defendant, and that prosecutor had given credible race neutral reasons for use of peremptory challenges against blacks, and that the defense had an obligation to object to the reasons given by prosecutors at time of trial if they disputed them, and that the Baston remedy of letting convicted criminals go free because black juror(s) deprived of their right to serve on a jury is improper because the defendant in a criminal trial is the wrong party to assert the denial of jury duty claim (it should be brought by the excluded juror), and that the proper role for the Court in criminal trials is concern about the fairness to defendants, not fairness to jurors.  

-Is it unconstitutional cruel & unusual punishment

Bucklew v Missouri, 2019 *Citing Blaze v Rees 2008, that methods of administering the death penalty violate the 8th Amendment’s “cruel and unusual punishment” prohibition only if intended to add elements of terror, pain, or disgrace or presents a significant risk of unnecessary suffering, and that to challenge an execution method the accused must offer a feasible and readily implementable alternative procedure which would significantly reduce a substantial risk of pain. Held that death the 8th Amendment does not guarantee a painless death penalty, that death by hanging was the standard penalty for serious crime at the founding, that the Judicial Branch has no authority to end the death penalty which is specifically authorized by the 5th Amendment’s reference to Capital Crimes, that it is up to the states which method they choose for administering capital punishment unless the method’s risk of severe pain is substantial compared to a known and available alternative and that the reduction in pain must be clear and considerable, that the main issue is whether the method “superadds” pain well beyond what is needed to effectuate the death sentence, that the accused did not present evidence that nitrogen gas would be less painful, and that it is not an available alternative as it had never been used to carry out an execution and thus had no track record of successful use.  The decision ends with an unusual rebuke to the lower federal courts which have granted numerous appeals and stays of execution in a case where the legal questions presented are really nothing more than an attack on settled precedent which should not have made it past dismissal on summary judgment. Dissent by Breyer, Ginsberg, Sotomayor, Kagen saying expert testimony established that lethal injection in this case would result in same type of pain as torture, that there should have been a trial resolving this factual dispute over the level of pain which would be caused, that scientific articles show that death by nitrogen is painless, that reports from other states show that it is a simple procedure to carry out, that the proposal of a less painful alternative does not need to include every possible detail, that the intent to cause additional pain is not a proper standard for determining an 8th Amendment violation as it turns on what is in someone’s mind which makes no difference to the accused, that the 8th Amendment is not a static prohibition prohibiting only what was prohibited 200 years ago, that the 8th Amendment test should be whether today we consider the punishment to cause “excessive suffering”, that ending delays in capital cases would come at too high a constitutional price, and that it may be that although capital punishment is itself allowed by the Constitution, there may in certain circumstances be no constitutional way of actually carrying out the execution on a particular accused.    

-Can it be imposed on those with mental illness (insanity defense)


-Can it be imposed on those who can’t remember the crime


-Who decides how it is done, states or federal government


Right of those accused of Crimes



Search and Seizure



Racial Discrimination


LGBQ Rights


Corona Virus Lockdowns


First Amendment


Religious Displays



Right to Bear Arms




Week 2: Property Law

Why Study Property Law?

Almost everything on earth is owned by someone or something. And almost everything that is owned can be bought, sold, rented, lost, found, stolen, given away, pledged as collateral for a loan, or destroyed. In property law we learn why and how this all happens. The rules governing use and ownership of property between nations, governments, and private entities form the basis of modern civilization.


Communal ownership of property was the norm in early societies and has a basis in the family unit and human nature itself. As civilizations advanced, however, rules allowing individual ownership of land and possessions were also found to satisfy some deep seated human desire, and to result in decreased conflicts as well as increased productivity and wealth.

Both early American settlements in Jamestown and Plymouth in fact started as communes, but soon devolved to private ownership due do conflicts over unequal effort and production. As put by the chronicler of Jamestown “…even the most honest and industrious would scarcely take so much pains in a week as they would have done for themselves in a day”. And at Plymouth      “…the introduction of exclusive property immediately produced the most comfortable change in the colony by engaging the affections and invigorating the pursuits of its inhabitants”. [From the Law Lectures of James Wilson 1787, one of the only 6 signers of both the Declaration of Independence and the US Constitution.]


This tension between the ideals of community togetherness, individual fairness, and economic productivity, have never left us and continue to form the basis of almost every issue and disagreement in the field of Property Law today.

Ownership of Property


The idea of “Ownership” is generally taken as a shorthand expression for the bundle of right consisting of the right to; Use something, Exclude it use by others, and Transfer it. One who possesses all 3 rights under the law is generally considered the property “Owner” and is also said to have “Title” to the property.

Property can be owned by private parties (people and businesses) or by federal, state, local, or even foreign governments.  With some types of property, the law provides for physical evidence of ownership. This can be in the form of a title document and/or a listing in some public database. Cars and real estate are two main examples, and are thus referred to as “titled” property.  Although the title document is evidence of ownership, it fortunately is not ownership itself so that a lost title found by someone does not transfer ownership to the finder.

Tangible Personal Property

The type of property we are most familiar with is called Tangible "Personal Property". This includes objects which have a physical presence and location.  For Personal Property ownership is determined by tracing back the item's chain of custody.

Gifted Property


For young people probably the most common way to come into possession of valuable personal property is by gift from a parent or relative. A gift only transfers title and ownership if it is a present transfer intended to take effect at the time the gift is made. Promises to give you something in the future, do not transfer ownership, and as you will see in the Contract Law section, cannot be enforced in the legal system.

A gift once made is considered a transfer of ownership and cannot be revoked by the giver. This requires that the gift was both delivered, and accepted by the recipient. For example, if someone gives you a surfboard, its not yours until you take it home or at least load it on your car. This manual delivery and acceptance requirement is generally considered essential in order to prevent courts from being flooded with false gift claims supported by nothing more than unverifiable “he said/she said” testimony. However, for things which by their nature are difficult to deliver, handing over keys or some other means of access or symbol has been found to satisfy the required delivery/acceptance element.

The one exception to the rule that completed gifts cannot be revoked is in the circumstance known as “causa mortis” gifts where the giver makes the gift because they believe their death is imminent. For example, if grandpa in the hospital hands you his car keys before surgery saying he doesn’t think he’s going to make it and wants you to have the car, he can get the keys and car back if he recovers, even if you’ve been driving it around for a week.


Purchased Property


The most common way obtaining ownership of personal property of course is to purchase it. Although someone who acquires property generally cannot receive better title to it than held by the person they got it from, paying fair value for property provides additional protections for the new owner not generally present with property obtained by gift or found. This is known as the “good faith” or “bonified purchaser for value” doctrine. Under this rule, the purchaser is protected from having to return purchased property in a variety of circumstances where the seller might have obtained the property by fraudulent or dishonest means.

Liens and Security Interests:


The good faith purchaser doctrine, however, does not protect the new owner from claims by those with valid “security interests” in the property. The presence of “security interests” depends on whether the person selling the property “owns it free and clear” or whether they are still making payments on it. Determining the presence of security interests is a simple matter with motor vehicles because the lenders are listed directly on vehicle title. But for other types of tangible property there is more to it.  Many types of tangible property such as construction and restaurant equipment are sold primarily on payment plans rather than sold outright for lump sum payment. When this occurs, the seller will retain what is known as a “security interest” in the sold property. The security interest is part of the contract made at time of sale which allows the seller to repossess the property if the initial buyer misses their payments. But a security interest not only allows repossession from the original buyer, it allows repossession from anyone who has actual or “constructive notice” of the security interest.  Sellers provide “Constructive notice” by simply filing their sale agreement in the online “Article 9” database maintained by the Secretary of State. In this way sellers protect themselves against dishonest or insolvent purchasers, but also put as risk those who may naively buy property from others without first checking the Article 9 database.


In addition to security interests made consensually as part of a sale or refinance transactions, security interests in tangible property can arise from “liens” which may attach to the property. Liens are the legal remedy provided to allow collection of an unpaid debt. If a contractor or restaurant for example has paid off all their equipment, but is sued for something else, their equipment could still become subject to an Article 9 security interest if the judgment is filed in the online Article 9 data base. As such, purchasers of expensive items from private parties always check the Secretary of State database, and paying off liens and prior security interests which show up is a routine part of purchasing many types of tangible property                

Found Property:


Finders of property lost by others are considered to hold the property in trust for the true owner if they appear.  Although finders can be forced to relinquish found property to its rightful owner, the finder’s right to the property is superior to all others. In this way one who finds lost property can still protect it against theft by others even if they might someday have to return it to its original owner should they appear.


Finders, however, must do more than just locate lost property in order to obtain rights in it. They must actually take possession of it. So for example the discoverer of an underwater shipwreck must typically do more than just put a buoy on it in order to assert ownership rights.


Difficulties arise when lost tangible property is found on real estate owned by another. For example a bag of cash found in a grocery store or amusement park, or on the property of someone being visited. Frequently no clear rules exist in these situations and they resolve based on the feeling of overall fairness in the eyes of court.  


Stolen Property:


The most common way to become owner of personal property is of course to buy it. But sometimes this is not the end of the story. As a general matter, a person receiving tangible personal property does not receive a better ownership interest than the person had who sold it to them. So for example if someone rents or steals a party tent and then sells it to you on Craigslist, you may well have to return the tent to AAA Rentals (or pay them for it) even though you thought you had bought it when you paid the Cragslist scammer.  




Another way for someone to be in possession of personal property owned by another is though a bailment, for example when you check your coat or car at a restaurant. Although it is counterintuitive, those holding property in a bailment situation are not considered insurers of the property’s wellbeing.  They are simply required to utilize ordinary care. So when the valet drops off your car with a big dent in the hood, it might be your problem rather than theirs if they can show the dent was caused by another customer or some other cause outside of their control.


Statutes of Limitations to Recover Tangible Property

The rights of losers of tangible property to recover it from the finder does not last forever. Every state has a statute of limitations governing how long owners have to assert their rights. So after a year or two or whatever the statue of limitations is the jurisdiction, the finder will be considered to have clear title to the property. However, the statutes of limitations have exceptions. They do not protect the stealers of property, and might not protect recipients of gifts, or finders of property held in such a way that the loser could not find it. For example, an expensive work of art hidden away on a private estate might not have the benefit of the statute of limitations to cut off rights of the original owner or their heirs should the painting eventually be discovered. For this reason, finders of lost property sometimes place advertisements to publicize their find and thus start the running of the statute of limitations against the owner.


Statutes on Lost, Found, Stolen Property   

Every state has statutory exceptions to the common law rules governing lost, found and stolen property. These “estray” statutes may apply broadly, or have specific rules for different circumstances and types of property such as for property left it storage units, repair shops, buried treasures or special protections for those purchasing property in good faith with no reason to suspect it may have been stolen or found by others.

Community Property (married persons)  

Every state has Community Property statutes which determine when and to what extent property acquired by married person is considered owned by both as "Community Property". As a general rule, all property (including money) earned, purchased, won, or acquired by whatever means during marriage is considered Community Property if not subject to an exception to the rule such as:

-Separate Property owned before marriage, and anything purchased during marriage with that separate property.

-Inheritances received during marriage.

-Prenuptial Agreements signed prior to marriage which agree on which property will be Community and Separate, provided that the disadvantaged spouse was represented by legal counsel during the negations, that all assets were disclosed at the time, and that it wasn't sprung on the disadvantaged spouse at the last minute before the wedding.              


Intangible Personal Property (Intellectual Property) IP

As peoples’ interests and employment have shifted to the online world, the focus of Property Law has also shifted to the virtual world. Just as a boat can be bought, sold, owned, gifted and legally protected against theft, so can property of the mind such as software, videos, songs, books, and inventions. The legal rules governing these types of “intangible” “intellectual property” comprise the field known as Intellectual Property Law or “IP” for short. This area of law touches so many aspects of our online world that it is the rare attorney who does not deal with IP issues on a daily basis.

Although IP laws are one of the more recent additions to the legal system, there is something deep seated in the notion that people who create important things should be well compensated, and that “stealing someone’s idea” is an afront to our fundamental sense of justice. It has traditionally been thought that allowing people to profit from their inventions is necessary to encourage innovation, and that the best way to accomplish this is to protect new creations from being copied for a sufficient period of time to allow the creator to profit from their exclusive use and sale. This principle is enshrined in Article I of the US Constitution where it states that Congress shall have the power to “…Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors the Inventors the exclusive Right to their respective Writings and Discoveries.”

The legal framework for protection of Intellectual Property has been divided into two areas, with Patent Law focusing on useful inventions, and Copyright Law broadly speaking on creative works such as writing, video, and art. One of the more difficult issues in IP law today is where and how software (i.e. computer programs) fit into this two part system when the programs contain elements of both but fit neatly into neither.


Like most areas of law, there are fundamental and unresolved philosophical disagreements in the IP field about how this area of law should apply to modern society. Critics of the current state of affairs believe the IP name itself is a misnomer, and should instead be referred to as “Intellectual Monopoly” to highlight what IP laws actually do, and to remove the premise that stealing someone’s property is similar to simply using an idea. These criticisms most frequently arise in areas such as pharmaceuticals, software, agriculture, and genetic engineering where IP controlled by large corporations price important products beyond the means of most of the world’s population.


Copyright Law

The best list of what Copyright law protects is in the federal law itself which was enacted by Congress pursuant the grant of authority in Article I of the US Constitution. Title 17 of the United States Code Sec. 102 states as follows:

102. Subject matter of copyright: In general28

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.


Paragraph “b” at the end servers the very important purpose of drawing the line between where Copyright Law ends and Patent Law begins, making it overt that Copyright does not apply to things generally considered inventions as opposed to art.


Trademark/Service Mark (Lanham Act)

One area of Copyright Law which is subject to its own special statute known as the Lanham Act. This field is known as the law of “Unfair Competition” and deals with works of art which are used to identify a product or business (i.e. Service).    

If a word or design comes to symbolize a product or service in the mind of the public, the use of this mark by other is prohibited if the public will be misled. For example if Joe’s Burgers were to start putting golden arches on their restaurants, Joe would clearly be subject to suit under the Lanham Act. The idea being that not only will this misrepresentation unfairly “draw away” business from McDonalds, it will also “dilute” McDonalds’ Trademark by associating it with a less worthy product. Cases determining whether a Trademark infringement has occurred frequently base their decisions on whether use of the similar mark results in the harms of “drawing away” of “dilution”.      


Right to Publicity and Privacy

Another distinct area frequently included in the study of Copyright Law concerns an individual’s right to control how their image, voice, or persona will be used commercially.  For example, if Joe’s Burgers finds themselves unable to use the Golden Arches to bring in business, the right to Publicity would prevent them from simply replacing them with life sized cutouts of Taylor Swift. Interestingly, legal protections against unauthorized commercial use of someone’s likeness apply not just to celebrities, and not just to images. They apply with equal force to distinctive voices, and even to iconic buildings if they become linked in the public’s mind to a particular business.

Just what constitutes someone’s likeness is a frequent source of litigation. For this reason movies often run disclaimers at the end saying the movie characters are not intended to depict real persons, but such disclaimers may or may not be effective depending upon how close the depiction actually is. This unfortunately is one of the reasons why movies about true events often depart wholesale from the actual facts so they do not have to track down and get releases from everyone involved in the real life event.  

There are also exceptions to the prohibitions on using someone’s likeness if the likeness is used for news, parody, or informational purposes rather than commercial gain. But these lines are hard to draw and frequently result in litigation. See,


Related the Right of Publicity is a similar legal protection for the right of privacy.  Portraying someone in a False Light, Disclosure of private facts w/o a public purpose, and Defamation for false statements injuring someone’s reputation, can all bring legal repercussions. Exception to these privacy protections exist for disclosures about people who are subject to public controversy, politicians, and celebrities.


Permission to use

Central to the idea of Copyright Protection is the right of Copyright holders to give, sell, or license the use of their Copyrighted works to others.


A License agreement with a rights holder allows use the protected work under specific circumstances for a specified period of time.  If the agreement allows unrestricted use of the Copyrighted work, it is generally called a “Release” rather than a license.

In addition to obtaining permission from the rights holder themselves, built into Copyright law is permission to use Copyrighted works on the limited bases. This statutorily created permission is called the “Fair Use” exception to Copyright protection. See, Fair Use (


The concept of Fair Use seeks to allow “transformative purpose” uses such as to comment, criticize, or parody Copyright protected works. The outcome of Fair Use lawsuits are typically difficult to predict as they require the courts to weigh a variety of subjective factors including overall fairness, the purpose and character of use, nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon future sales of the copyrighted work.


In some areas of frequent dispute the Federal Copyright Office seeks to provide some guidance by issuing Circulars. The most well known of these is Circular 21 dealing with copying sections of Copyrighted book for use in schools.  

Users of Copyrights works sometimes try to bolster their Fair Use argument by adding disclaimer language saying “No copyright claimed…” and/or “Subject to fair use doctrine…” and/or “Not associated with or endorsed by…”  But as with all unilateral disclaimers, the effectiveness is a question for the courts.

Not Protected by Copyright Law

-Public Domain

-Dedication by author

-Expiration (pre 1924 or non renewed)


-Short Phrases

Interesting Copyright Issues

-Works make for hire (Applies to W-2 employees. Need written agreement to apply to outside vendors

-Multi layered works (Video, plot, sound, music)

-Celebrity photos, publicity, privacy

-Rights to real life story

-Plot Lines (unique vs stock)

-Merger of idea and expression (deleted item trash can)

-Music with similar riffs

-Music sampling and parodies

-Online videos and mems

-Atty fee infringement shakedowns, jury questions

-Fan Fiction

-Historic photos

-History accounts



Patent Law

Patent law provides inventors with the right to exclusive use of their inventions for a specific period of time, in exchange for advancing public knowledge by publicly disclosing all essential attributes of the invention. Patents prevent others from making, using, selling or importing the invention without paying license or royalty fee for 20 years. The “Patent Pending” moniker is used to put potential competitors on notice that a patent application has been filed, are such filings are frequently used as bargaining chips in negotiations between competitors making or desiring to make or advance similar tech products.


Requirements for a Utility Patent 

-Product or process

-New, Useful, Non-obvious

-New - not in use or sale

-Not Publicly Disclosed in printed material prior to filing

       -Need non-disclosure agreement from anyone you show to prevent it being a public disclosure, or file “Provisional”

       application which allows public disclosure without violating public disclosure prong

-Non obvious – not obvious mod to existing thing (heavily debated distinction)

-Sufficiently describe so others can make use of it

-After issuance must mark as “Patented” with link or patent number


-What actually is covered by a Patent depends entirely on what is set forth in the “Claims” section of the patent application. The fewer the elements in a claim, the easier it will be to show infringement (because don’t need to prove as much) and thus the "stronger" the Patent. But the fewer claims there are the harder it will generally be to get the Patent granted in the first place because it will be easier for PTO Examiner to find prior inventions (i.e "prior art") making the same or similar claims

-Can and must file internationally for protection outside of US.

-File via Patent Cooperation Treaty to protect invention internationally (holds place for 30 months w/o filing everywhere) Foreign jurisdictions require patent filing prior to public disclosure (no 1 year grace period)

-US provisional patent application also recognized by most countries as establishing date and avoiding public disclosure trap

-With 2 entities patenting same thing, first to file wins

-Mean time to US patent issuance by PTO is 3 years but can pay extra for expedited review which brings it down to 1 year. Some other countries have much more expedited review available (3 months for Japan) so for critical item might be smart to seek expedited review in foreign jurisdiction.


Post Grant Review

-Interested parties can now petition the PTO office to challenge a recently granted            patent (within 9 months) in an administrative review process, requiring only preponderance of evidence standard.  New process intended to weed out weak patents.



-Willful Infringement allows treble damages plus attorney’s fees

     -Attorney legal opinion can shield against “willfull” finding

     -Such draconian penalties give rise to “Patent Trolls”

-Patent searches usually accompany product development so designers can design around infringement issues

-Cease and Desist Letter

     -Sent to make violation “willful” and thus subject to treble damages and attorney fees but, recipient can blunt this effect by obtaining legal opinion saying there is not infringement. Also, recipient can use threats contained in letter to file declaratory judgment action in home court legal jurisdiction.

-Damages, Injunction, Mandatory license

     -Court has discretion on remedy. Might direct mandatory license if infringer has improved the product or if patent holder is not trying to sell patented product or licenses i.e. just sitting on patent to keep others from using it.  Also appellate courts can review willful prong de novo and are reluctant to award treble damages if infringer has plan to transition away from use of infringing item.




Trade Secrets (Protect invention simply by keeping it secret)

-Uniform Trade Secret Act in 47 states provides protection if has economic value, not generally known, and reasonable measures    observed to keep it secret

-Economic Espionage Act provides federal protection and criminal penalties        


When to rely on trade secret protection rather than patent

-Reality of unpreventable infringement by unaccountable foreign competitors

-Lack of funds to obtain or enforce patent protection

-Trade Secret protection is forever, patent is 20 years

-Unlikely competitors will figure it out and need to be dissuaded from using

-Easy/inexpensive to keep secret i.e not many people need to know

-Competitors can’t derive process from end product i.e. manufacturing process.

-Can still obtain revenue by licensing/selling trade secret to others

-Can always file a patent application (which stays secret until patent issues), and then withdraw application prior to patent issuance if decide that trade secret approach offers adequate protection.  

Downside of relying on Trade Secret Protection rather than patent

-If secret gets out all protection may be lost if party disclosing it cannot be identified or is judgment proof

-Competitors could stumble upon the idea, patent it, and prevent you from using your own invention

-Can’t use threat of patent infringement suit to keep competitors out or obtain licensing revenue

-One way ticket, have forever given up right to patent after end product of invention in public use/sale for > 1 year.

-Secrecy Requirement – to invoke trade secrecy statutes must:

     -Written policy, restrict access to those with need to know, nondisclosure agreements

      with those needing to know, noncompete agreements with employees who may depart, mark as “confidential proprietary 

      information”, prevent disclosure by government entities through FOI Act requests.



Real Estate and Land (Real Property)

-Real Property 

      -Fee Simple Ownership

      -Land vs removable fixtures attached to land vs personal property and why does it matter


      -Who and What can own real estate

             -Trusts/Partnerships/Tenants in Common

-Title/Evidence of Ownership

      -Deeds (written, legal description, signed, notarized, delivered, capacity)


            -Quit claim

     -Recording Statutes

     -Legal Description/surveys

     -Disclosure/buyer beware

     -Title insurance

-Mortgages/Deed of Trust

      -Serve as collateral for loans



       -Mechanics Liens

       -Property Tax Liens

       -Condo assessments

-Adverse Possession     

      -Historical basis to prevent first comers from just staking off land and not using it

      -Modern scenarios, survey and boundary line mistakes 


      -Lease Contracts (insurance, taxes, utilities, repairs “triple net”)

      -Residential vs commercial

      -Sublease (non-assignment clause, assignor remains liable)

-Landlord Tenant Laws

       -Required provisions (utilities, rent increases, habitability, entry)

       -Eviction restrictions

-Limited Estates

        -Rarely used anymore (life estates etc) except

        -Condos (Hawaii condos in particular)


       -What if the property line is a river and it changes course

       -Who owns extra land formed when sandbars grow

       -Can kayakers paddle through someone's property without trespassing

       -Can you take water out of streams and rivers and if so how much

-Air Rights

      -How high in the air do land owners own

      -Can someone hover a drone over your property without trespassing

-Mineral Rights

      -Who owns the right to place underground mines

      -Can a neighbor's well draw oil or water from under your property 

-Who Owns the Arctic and Antarctic

      -Permanent floating ice, ice over land, floating ice attached to land

-Who Owns the Ocean

      -How far from land do a given country's rights extend

      -What law applies beyond that

      -What if manmade islands are placed in the open ocean

      -What if you find an abandoned ship floating around   

-Who Owns Space

      -Can someone build anywhere they want on the moon

      -Can someone use whatever obit they want around the earth

      -What if one satellite (or debris from a satellite) run into another

      -What if someone destroys another's satellite on purpose 

-Government Restrictions on Land Use, Takings, and Eminent Domain 

-US and State Constitutions

      -Prohibit Government taking private property for public use without just compensation.  

      -Government taking rights also limited by

             -Substantive Due Process (taking 14th amm)

             -Procedural Due Process (fair process) 

-Affordable Housing/Racial Discrimination


      -Restrictions on use, height, density, setbacks, parking

      -SF Residential, MF Residential, Commercial, Industrial, Agriculture

      -Aesthetic Design Review

-Subdivision Requirements

      -Sidewalks, utilities, street widths, fire hydrants

      -Off site improvements

-Environmental Regulations

      -Wetlands, Critical Areas

      -Statewide Growth Management Act

      -Shoreline Management Act

      -Environmental Impact Statements/Determinations of Nonsignificance

      -Federal Floodplain building restrictions

      -Toxic Waste/Brownfields/Superfund/CERCLA

      -Army Corps of Engineers Section 404 Permits

-Exceptions to Land Use Requirements to Avoid Unconstitutional Takings

      -Vested rights and nonconforming uses (“grandfathered”)

      -Zoning Variance (individual hardship)

      -Conditional use Permit (schools, hospitals, etc),


-Eminent Domain

      -Public Purpose Requirement

      -Compensation Requirement

-Public Nuisance           


-Private Restrictions on Land Use

-Restrictive Covenants


-Condominium CC&Rs





Property Insurance


Real and personal property make up the the bulk of the assets and wealth held by individuals and many non-tech businesses. These assets can take years or lifetimes to accumulate and frequently if not usually are purchased with loans that must be repaid even if the property itself were to be destroyed or lost. As a result there is a tremendous need for Property Insurance to protect the financial interests of property owners, and no prudent person would go a single day without property insurance for their home or expensive autos.

The law of Property Insurance fits comfortably as a separate subject matter, so it will not be covered in this Unit. However, students of Property Law should at the outset know the following about the law of Property Insurance: 

1) Property insurance is purchased by property owners to reimburse them for lost or damaged property in the event of fire, wind, theft, building collapse, collision, or other covered perils listed in the policy which cause fortuitous physical damage. For business owners it also pays for lost business income during the period of restoration while buildings are repaired or rebuilt. 

2) Disasters are generally excluded from coverage. For example, coverage for earthquake, flood, pandemic, war, and terrorism if available at all must generally be purchased though expensive (and sometimes government backed programs) because it is thought there would be too many claims of these types at one time for the private insurance industry to afford to pay.  

3) For unique properties, Property Insurance can be prohibitively expensive or not available at all (which you would want to know prior to purchase). This can also be the case where prior large insurance claims or repeated claims that have been entered into an insurance industry database. 

4) There are two main types of Property Insurance. Actual Cash Value and Replacement Cost which is the more expensive type that pays whatever a brand new replacement would cost regardless of how much the damaged property was worth.

5) There are two main types of Property Insurance Companies. Admitted companies which are closely regulated by the State Department of Insurance, and Surplus Lines companies which are subject to few regulations either as to payment of claims, cancellations, or financial strength.     
6) Commercial Real Estate Property Insurance policies are notoriously complicated, subject to differing interpretations, subject to frequent mistakes in purchasing, and subject to frequent mistakes in acceptance or denial of claims by insurance companies.

7) The correct application of Property Insurance exclusions depends on the originating cause of loss (known as "efficient proximate cause") not the end cause. So for example an otherwise excluded landslide claim might actually be covered if the originating cause of the landslide were rain or some other non-excluded peril.

8) When determining coverage, any ambiguities or uncertainties in the policy language are interpreted in favor of the insured customer not the insurance company. 

9) Property Insurance is a completely separate type of insurance and a totally different concept from Liability Insurance, even though these two separate types of insurance are frequently sold together as a package or even included on the same form.

10) State specific insurance laws generally provided that failure of a Property insurance company to pay claims as required by the policy language, or to process claims in accordance to State Department of Insurance regulations is subject to Tort Law damages even though it otherwise would be considered simply a breach of contract. 


Week 3 - Tort Law


Tort Law is the law of accidents. Unlike criminal law which can result in prison or worse, Tort law is about money. It seeks to penalize wrongdoers and compensate victims by making people financially responsible for harm caused by their carelessness. Tort Law forms a fundamental building block of modern civilization by encouraging thoughtful behavior, valuing life, and preventing revenge violence.

The fundamental basis of Tort Law is the belief that every person has an obligation to conduct themselves as a “reasonable person”. If they fail to live up to this “reasonable person” standard, they are considered “negligent” and must compensate anyone harmed as a result.

Determining whether someone acted “reasonably” is a subjective and in many ways a moral judgment. Although there are many cases at the extremes where everyone would agree, there is also a vast grey area in the middle where determining negligence is a matter of opinion. Based on this, the determination of reasonableness and therefore negligence in out system of justice is a question for the jury. In this way, evolving community and cultural standards for morality, fairness, carefulness, and empathy form a fundamental basis for the Tort Law system.

It is not possible to understand the Tort Law system without also understanding the role played by insurance. Tort Law developed long before liability insurance. In fact the adoption of insurance was considerably delayed by the view that insurance was immoral and a danger to society because it allowed careless people to escape financial responsibility for their negligence. However, as society became more urbanized and interconnected, and particularly with the advent of motor vehicles, increased opportunities for momentary carelessness to cause serious injuries made even the most careful people accept the need for insurance. So for the past century and a half, the Tort Law and Insurance Law systems have grown hand in hand, two sides of the same coin seeking deterrence against careless behavior and compensation for its consequences.


What makes our society, and our system of government stable is respect for longstanding legal principles regarding fairness and justice. But what makes law interesting, is that there are unresolved philosophical questions over how these fundamental principles should apply to modern life. Tort Law and its intersection with Insurance Law is no exception, and in many ways is on the forefront of this need for continual reexamination.

At the center of the Tort/Insurance Law debate are these fundamental questions: If the main purpose of Tort Law is to compensate victims, why does it even matter who or how much someone was at fault for an accident? Maybe proving negligence should be made much easier in order to increase the chance and amount of compensation going to victims? Do we even need a Tort Law system where half the resources go to proving negligence in an age where everyone has insurance and thus the main purpose served by litigation is just dividing responsibility between insurance companies with little or no deterrent effect on the wrongdoers? But what if the tremendous effort the current Tort Law system devotes to placing legal and moral responsibility for carelessness turns out to be the glue that holds civil society together? Would removing that glue be a one-way ticket to some dystopian future, or could it be put back together if the experiment turned out to be a failure?

The presence of these unresolved and unresolvable questions are the reason the Tort and Insurance Law systems exist as they do today, and are the reasons there are ample opportunities for thoughtful attorneys to help explore and advance this area of the law.

Intentional Torts

Prior to the adoption of insurance and the modern age of criminal law, persons suffering intentional injuries or property damage at the hands of willful aggressors sometimes had no recourse other than to sue the wrongdoer in Tort. Cases alleging  “intentional torts”, however, are rarely seen today and in many cases would be considered attorney malpractice to assert. This is so because alleging an intentional tort generally complicates the prospect of insurance recovery which is the primary if not sole source of compensation for most injured persons. Although counterintuitive, the strategic posture of almost all intentional act cases in the modern era is for both plaintiff and defendant to characterize the act or result as a mistake in some way so as to best preserve the insurance company’s obligation to pay the eventual judgment or settlement.

Strict Liability

Most Tort Law cases involve the concept of "Negligence" which requires proof of some level of carelessness by a defendant. "Strict Liability", however, is an important area of Tort Law where defendants are held liable for harm no matter how careful they may have been. This legal concept is based on the premise that for certain activities the risk of harm is so inherent that fairness dictates holding defendants financially liable for accidents without forcing injured parties to delve into exactly how careless the inherently dangerous activity may have been carried out in the particular instance.

Early examples of such inherently dangerous activities include damage from escaping livestock, dam breaks, and handling of explosives. More recently the Strict Liability rule has been expanded to apply to any unusual activity which presents a high degree of serious injury risk to others which is inherent in the activity and thus cannot be completely eliminated. Examples include transport of gasoline, pipelines and water mains, exterminators, and nuclear reactors. 

In cases of Strict Liability injured parties do not need to prove negligence, but they must still show that the harm resulted from the same feature of the activity which subjected it to the Strict Liability standard. For example an explosives company would not be subject to strict liability for dropping a crate of explosives on someone if it never exploded.

Vicarious Liability

Vicarious Liability is similar to Strict Liability in that public policy and the interests of justice require holding defendants liable in Tort but without a showing of actual negligence. This occurs when the Vicariously Liable party is seen to control or have the right to control another, such as employer-employee and parent-child. When a party is held Vicariously Liable for the acts of another, it means they assume the legal liability for whatever acts were performed by the actual wrongdoer. Although a Vicariously Liable party can defend the suit by arguing that the wrongdoer was not at fault, they cannot protect themselves by claiming they themselves were not at fault.    


Products Liability

Another area of Tort Law where the normal rules of proving negligence do not apply is the area of Products Liability. Under Products Liability Law those who make and sell products putting them into the "stream of commerce" are liable for injuries is the product is found to be "unreasonably dangerous". This term has been taken to mean the product is more dangerous than would be expected by a reasonable consumer. Manufacturers seeking to avoid this liability therefore apply warning labels in an effort defeat the argument of unexpected danger. Most states have Product Liability Acts which set forth in detail how these claims are prosecuted, the level of proof required, and allowed damages.


As a general matter, these statutes typically include a subjective balancing of the need and usefulness of a product compared to its dangerousness and the ability of a reasonable user to protect themselves. Modern product liability have made our activities of daily life vastly safer than they were a generation ago. But many argue that the lack of predictability in this area of law requires designers to error on the side of banality thus stifling innovation in many areas of consumer products and personal transportation.     


Tort Law Cases at Trial

Before proceeding with the main area of Tort Law which is the law of Negligence, it is helpful to know a bit about the actual procedures involved when a Tort Law case goes to trial.


Legal Questions: There are two kinds of questions decided at trial, “legal” which are decided by the judge, and “factual” which are decided by the jury. “Legal” means the legal rules governing how the trial is conducted, as well as the legal rules governing how citizens in our society must conduct themselves, such as drivers stopping at red lights. Legal rules come from laws passed by state and local legislative bodies, but they also come from the “Common Law” which means previous cases where appellate courts have issued rulings on questions of law.

Factual Questions: “Factual” questions for the jury refer to finding out what actually happened, and whether or not what happened violates whatever “Legal” rules apply to the case. Legal rules, however, require that the jury’s factual decisions to be based only on the evidence presented at trial. Judges can only overrule jury decisions on factual questions if the judge finds that “no reasonable person” could think what the jury thought, or if the judge finds the jury decision was based on facts not allowed into evidence.


Rules of Evidence: As everyone knows who has seen a courtroom drama on TV, attorneys raise lots of objections to evidence that is presented at trial. Jurors frequently see this as attempts to keep them from finding out what actually happened, but it is actually the opposite. Though literally hundreds of years of practice, the legal system has learned that ordinary citizens who serve as jurors can be led to make erroneous decisions on what actually happened if lawyers are allowed to appeal to the jurors’ passions, prejudices, and things jurors might have heard through the grapevine rather than seen for themselves. Based on this experience, the legal system has formulated a set of rules known as the “Rules of Evidence”. These rules govern what information can be presented to the jury at trial, and what assumptions jurors are allowed to make about it. In this way both parties are given the best possible chance of receiving a fair and accurate jury decision on questions of fact. 

Some of the most important Rules of Evidence in Tort Law cases include:

-Hearsay. Since the main job of jurors is to determine what happened, they need to hear first hand from the persons who saw it. In this way jurors can judge for themselves the truth of the witnesses and their story. The rule against Hearsay preserves this opportunity for jurors by preventing witnesses from presenting second hand information outside of their own personal knowledge. There are numerous exceptions to the Hearsay rule which attempt to limit it to this original purpose. But it is fair to note that the Hearsay rule is still probably the most mistakenly applied of all the Rules of Evidence when attorneys and judges frequently forget it original purpose and mistakenly extend the Rule to matters where witnesses are in fact presenting testimony as to what they observed, but what they observed was someone saying something. For example, if a witness testifies "Fred told me the car rolled over" the Hearsay rule requires the jury to hear this directly from Fred to determine whether Fred is telling the truth about the car rolling. However, if everyone knows the car rolled, this witness testimony as to what Fred said, should be allowed into evidence because it is presented for the purpose of just proving that Fred said it, not that what Fred said was true. This scenario where second hand statements are needed at trial to show just that something was said, not that what was said was true, is an extremely common situation, and it is a source of continual consternation for attorneys that erroneous Hearsay objections frequently prevent admission of this helpful information.             

-In Person Testimony. Based on this same principle that jurors need to personally evaluate witness credibility. It is generally not admissible to attempt to present sworn statements or deposition testimony from fact witnesses in lieu of producing the live witness at trial. One of the main attributes of effective trial lawyers is the ability to find and form relationships with key witnesses so they appear, and appear willingly at trial.      

-Spoliation of Evidence. In the modern era with security and dash cameras everywhere, what actually happened can often be definitively resolved if the video evidence is preserved for review at trial. The Rules of Evidence therefore provide that if a defendant fails to preserve video or other evidence after being formally placed on notice of the need to keep it by attorneys for an injured party, then they jury at trial is allowed to presume the lost evidence would have implicated the defendant who failed to preserve it. In the typical accident case without good eye witnesses, this presumption can be extremely powerful and frequently determines the outcome of the case. As such, it is a controversial rule and frequently challenged on fundamental fairness when it is alleged that fault free defendants were guilty only of carelessness in preserving the evidence, not in the accident itself.

-Exhibits. A large part of the evidence presented at trial is not people talking, but is rather documents, photos, and physical objects. For such items to be admitted as evidence for consideration of the jury the Rules of Evidence provide that item must be "authenticated" by lawyers presenting evidence as to how exactly they know that the thing actually is what they are saying it is. Disputes over such issues are heard in hearings normally held prior to trial and always outside the presence of the jury.      


Burden of Proof. Everyone has heard the phrase “beyond a reasonable doubt” which refers to the standard of proof required to convict an accused in “Criminal Law” cases. In “Civil Law Cases” which includes Tort Law and everything else, the standard of proof is “a preponderance of the evidence”. This is a lower standard of proof than required for criminal matters and has been seen as meaning simply “more likely than not” or a “51% chance”. To Tort defendants accused of wrongdoing, this standard may seem scandalously insufficient to justify reliving them of all their earthly possessions for a single mistake. In practice, however, the presence of insurance and jurors’ natural inclinations toward fairness cause most observes to regard the Tort Law system as achieving fundamental fairness to injured parties and defendants overall.

Discovery. Historically, injured persons were at the most disadvantage in bringing Tort Law suits because they did not have access to the information necessary to prove that a defendant acted carelessly. Under modern Rules of Discovery, defendants are now required to disclose any matter or information sought by the plaintiff if the requested information is admissible as evidence in trial, or if it might just lead to the discovery of admissible evidence. Based on this, large portions if not the bulk of the actual legal work by litigation lawyers involves making, reviewing, and resolving disputes over document requests.


Res Ipsa Loquitur is another rule designed to address the problem of plaintiffs’ lack of access to information necessary to prove their case. Res Ipsa for short is a “Common Law” doctrine which means it came from judicial decisions rather than legislation. The first case cited for this proposition is Byrne v Boadle (1863) where a keg of flour rolled out of a two story warehouse crushing an innocent pedestrian below. Since the plaintiff had no access to and no way to prove how the barrel actually came to roll out the door, the court decision created the rule of “Res Ipsa Loquitur” which means “the thing speaks for itself”. This Common Law doctrine is recognized in every state for situations where fault free plaintiffs can show the accident seldom occurs without negligence, and was within an area of exclusive control by the defendant. Res Ipsa is an important feature of modern tort law and is applied in a wide variety of circumstances from airplane crashes, to defective products, to injuries to unconscious patients in hospitals.

Res Ipsa is sometimes seen as having the effect of shifting the burden of proof from plaintiff to defendant by allowing the jury to start with the presumption that the defendant was negligent based simply on the facts of the accident.  The defendant then can only escape liability if they can show the accident resulted from a different or non-negligent cause.

Jury Instructions. When jurors retire to the jury room to deliberate, they are provided with a list of Jury Instructions which set forth the legal rules covering the various findings of fact to be made by the Jury. For example, Tort Law cases always include an instruction on what is meant by the burden of proof standard "preponderance of evidence", on the required level of Duty (i.e. carefulness) owed to the defendant to the plaintiff, and on what all present and future costs are to be included in their calculation of Damages. These instructions generally contain language straight out of appellate decisions on the issue and frequently are part of "Pattern Jury Instructions" adopted in a given jurisdiction. But since the facts of each case are different, attorneys frequently if not usually attempt to customize the instructions for a given case in order to influence the jury decision in their favor. Jury decisions which clearly did not follow the provided jury instructions are subject to being overturned by the judge of the case or on appeal. For example, a jury award leaving the amount for lost wages blank can be set aside if other aspects of the verdict made it clear that the jury found lost wages to have occurred.              

Liability Insurance

Before proceeding with the law of Negligence, it is also helpful to know a little about the structure of the Insurance System which funds almost all Tort Law litigation and trials.

The insurance system is divided into 3 parts: “Liability Insurance” pays for damage you do to someone else or to their property; “Property Insurance” pays for damage to your own property caused by fires or other perils; and “Surety Insurance” pays for damage you cause by failing to hold up your end of a bargain in a contract.

Tort Law is concerned only with Liability Insurance. Liability Insurance is essential to the modern Tort Law system because Liablity Insurance not only pays the ultimate jury awards and settlements, but it also pays for the attorneys fees on both sides of the case. Liability Insurance makes payments by the hour directly to lawyers representing insured defendants, and it pays attorneys representing settling or prevailing victims in a lump sum at the end of the case.

Policy Exclusions. Liability insurance policies appear complicated because they include page after page and list after list of exclusions for various types of claims that insurance companies desire not to pay. The most important thing to understand about Liability Insurance exclusions, however, is that in practice these exclusions rarely come into play, except for the most basic provisions dealing with who and what is being insured, and in the rare case where intentional acts are alleged.

Triggering Duty to Defense. The reason it is unusual for the lengthy list of Lability Insurance policy exclusions to have any bearing on the litigated Tort case is because Liability Insurance policies are required to pay the attorneys fees necessary to defend a tort suit regardless of how expensive it becomes, and regardless of whether policy exclusions would prevent payment of the ultimate the jury award. This is so because the liability policy's Duty to Defend is based on what is alleged in the lawsuit rather than what might have actually happened, and lawyers for injured parties almost universally include at least one non-excluded claim in order to trigger the Liability Insurance policy's duty provide a legal defense.

Unlimited Defense Obligation. 

It of course seems counterintuitive that injured parties would want to provide free lawyers for the defendants they are suing. However, this strategy by plaintiff attorneys representing injured persons in reality creates powerful incentives for Liability Insurance companies to pay and resolve Tort claims. This is due to the unlimited nature of the Liability Insurance defense obligation.     

The more policy exclusions there are, and the more likely they are to prevent coverage for a jury award at the end of the day, then the more tenaciously and expensively defense lawyers (paid by the insurance company) must defend their client to avoid the possibility of an uncovered judgment. As a result, cases with the "thinnest" coverage can give rise to the largest defense costs. And these defense costs are in addition to, not part of, the liability insurance policy limit. In this way, an insurance company with a $1 million limit policy, can be forced to spend another $1 million+ defending the suit, and still be subject to the possibility of paying the $1 million judgment if their policy exclusions are found inapplicable.

Declaratory Relief Actions.

Making it even more difficult for insurance companies to assert policy exclusions, is the fact that disputes with insureds over exclusions must be heard in a completely separate lawsuit (known as a Declaratory Relief Action “dec action” ) which normally cannot even start until after the jury verdict in the underlying injury case is in. If the insurance company bets wrong and loses their eventual dec action case, they will be found to have breached the insurance contract and held liable not only for the jury award in the underlying injury case, but also for the attorneys fees expended on both sides in the dec action, plus whatever additional damages the insured might have suffered from having the judgment left unpaid, plus possibly punitive damages to punish the company for its wrongdoing.

Covenant Judgments.

This is not the only unhappy scenario for insurance companies attempting to assert liability insurance exclusions. Rather than waiting for the entire case to play out as set forth above, a shorthand version occurs with what is known as a “covenant judgment”. This occurs where insurance companies are defending their policyholders against a tort suit, but at the same time the insurance company is reserving its right to assert policy exclusions at a later date and refuse pay the eventual jury award.

Since the insured defendants are not being protected by the insurance company in this scenario, they may seek to protect themselves by settling the case directly with the injured party. In this scenario the insured defendant will admit liability and even agree (i.e. stipulate) to a dollar amount for the injured plaintiff's damages. This is done in exchange for the plaintiff attorneys agreeing to collect only from the insurance company rather than from the defendant's own personal or business assets.


The injured plaintiff then sues the insurance company demanding payment for the admitted negligence and stipulated judgment amount. This scenario places the insurance company in an extremely vulnerable position. Unlike the normal dec action insurance exclusion lawsuit where the party opposite the insurance company in the case is the wrongdoing insured who caused the accident, here the opposing party in front of the jury is now the innocent injured plaintiff who is suing the wrongdoing insurance company for refusing to pay for negligence their own insured has already admitted to.

Incentive to Waive Exclusion.

Most insurance companies are sophisticated enough to try and prevent these unhappy scenarios from unfolding, and they do so by settling the case and paying the injured parties before their defense costs run out of control. If they decide not to settle the case right away, they will typically agree to waive the applicability of policy exclusions (and even waive the policy limits in many cases) in serious injury cases where liability for the insured defendant could exceed the insurance policy limits.

In this way as a general matter, injured plaintiffs solidify access to the proceeds of liability insurance, and cases either settle or proceed through the litigation process financed by the insurance system, and without regard to the minutiae contained in liability policy exclusions.


As a general matter, Tort Law takes cultural norms of justice and fairness deeply rooted in human nature and it breaks them down into component parts which can be analyzed one by one and step by step. In this way, it encourages legal conclusions to be based on logic and reason rather than feelings and emotion. The sought after result being consistency and predictability as opposed to arbitrary and capriciousness which inevitably creeps into decision making based on overall impressions and gut instinct.

Tort Law divides the Negligence (i.e. carelessness) cause of action into 4 distinct elements, all of which must be proven at trial in order to hold a defendant legally responsible for an accident:

-Duty. Duty means the level of carefulness expected of all members of society to avoid harm to others.

-Breach of Duty. Once a standard of conduct or level of carefulness is established for a given activity or circumstance, the next inquiry is whether the defendant breached this duty by failing to conform to the standard.

-Causation. A defendant of course is only liable for accidents caused by their breach of duty. But “causation” as used in Tort Law requires something more than cause-in-fact. It requires what is known as “Proximate Cause” which means the harm must be a reasonably  “foreseeability” result of the breached duty.

-Damages. No matter how careless someone might be, it is only a Tort if the result is actual harm i.e. “Actual Damages” to person or property. 


What level of carefulness is owed by a defendant in a given circumstance is well defined in some circumstances, for example when motor vehicle statutes prohibit or require certain conduct. In other cases the presence or extent of Tort Law Duty and to who it is owned is based on the Common Law (i.e. prior case decisions). As a general matter, Duty is considered a legal question for the decision of the trial judge, whereas the question of whether the Duty has been Breached is a factual question for the discretion of the jury based.

Although the level of Duty required by Tort Law is generally based on what a "reasonable person" would do, there are a number of recurring scenarios where case law and statutes have created specific rules reducing or increasing the level of carefulness required to satisfy the Duty element of a Tort Law Negligence claim.

Rules Reducing Duty of Care

Rescue Doctrine. Strange as it may seem, although Tort Law imposes extreme penalties sometimes for minimal amounts of carelessness, there is no legal duty at all to help save a person or property from harm caused by someone or something else. And this rule applies no matter how easy it is or how little risk is involved for the rescuer. This distinction between the duty to avoid harm by carefulness vs avoiding harm by rescuing someone in need can be difficult to justify morally. It is a principle of personal autonomy, however, with deep roots in American and British law and has been found implied in many state constitutions so that efforts to add “duty to rescue” laws have frequently been found unconstitutional.

One important exception to the no rescue doctrine comes into play once a rescue is begun. So although ordinary citizens generally have no duty to rescue or warn others of danger, once they have voluntarily undertaken this responsibility, they have a Tort Law obligation to act reasonably. However, due to public  interest in encouraging people to render assistance to others, many states have enacted “Good Samaritan” laws which protect civilian rescuers from legal liability even if it is found that an ineptly performed rescue attempt cause or increased the victims’ harm.       

Sudden and Unexpected Doctrine is another recurring area where Tort Law has created specific rules reducing the required duty of care. This principle is based on the understanding that ordinary people confronted by a sudden and unexpected event may react in ways which in hindsight would appear extremely negligent. Probably the most common situation where this occurs is when drivers are unexpectedly confronted with debris or unexpected objects in the roadway. Large numbers of death and serious injury accidents occur when drivers inexplicably swerve onto sidewalks or into oncoming traffic to avoid the most benign objects in the roadway such as flat pieces of wood or cardboard, or where drivers swerve much further than warranted when unexpectedly encountering bikers or pedestrians. Although application of this rule reducing the level of care can be hotly contested depending upon the egregiousness of the driver's act, the frequency of such inappropriate reactions is itself powerful evidence that the rule should apply to protect ordinarily reasonable people from this human shortcoming.

Open & Obvious/Trivial Defect Doctrine. Cases where pedestrians are injured by slips, trips, and falls while shopping or otherwise on the property of another make up a significant portion of litigated Tort Law Cases. In an effort to protect landowners from what was seen as frivolous lawsuits, the courts in most states adopted rules which reduce the duty that property owners owe to those visiting their property. The Open and Obvious Doctrine holds that some dangers are obvious enough that the presence of the danger itself constitutes a sufficient enough warning to satisfy the landowners' duty of care to others. Similarly the Trivial Defect Doctrine holds that some defects in walking surfaces a minor enough that a judge may dismiss the case the case outright as matter of law finding that the defect does not rise to the level breaching the property owner's duty of care. With the advent of Comparative Fault where juries now assign percentages of fault between defendants and injured plaintiffs, these doctrines rarely result in dismissal of cases by the judge, and instead merely allow juries to assign fault to the injured party based on their assessment of how open and obvious or how trivial the defect may have been.


Trespassers. The traditional rule on trespassers is that a landowner owes them no duty of care whatsoever, and that the only duty owned by landowners is to not injure them on purpose by for example laying traps for them. However, current cases are more likely to find the level of care owed to trespassers depends upon how foreseeable the trespassing is compared with how easy it is to prevent harm to them. This is particularly so with regard to young people where the courts have long held that dangerous unattended property which attracts children is an "Attractive Nuisance" which landowners have an affirmative duty to avoid.    


Rules Increasing Duty of Care                

Special Relationship Doctrine. Tort Law increases the required duty of care beyond the mere "reasonableness of an ordinary  person standard" to what is sometimes referred to as the “utmost care" standard in circumstances where a “Special Relationship” is deemed to exist. Such "Special Relationships" generally mean the defendant has some level of connection or responsibility for the wellbeing of the victim. Examples include Schools, Common Carriers (i.e. planes, trains, busses), Hotels, and other service business where physically control is exerted over the customer.

Alternatively, the increased duty of care required in these situations is sometimes explained as still using the “reasonableness” standard, but substituting the ordinary service provider or professional for the ordinary person. In any event, it is important to understand that a wide variety of persons and organizations are held to increased duties of carefulness well beyond what is expected of an ordinary person.

Professional Malpractice is closely related to and may be considered a subset of the Special Relationship Doctrine. Doctors, Lawyers, Accountants, Architects, Engineers, Surveyors and other professions with regulatory bodies and established standards of conduct are held to the "standard of care" for their particular field. Proving a departure from these standards requires expert testimony from a professional in the same field, and in some jurisdictions requires a sworn statement from such an expert before a professional negligence suit can be filed.


Construction Contractors. Also related to the Special Relationship doctrine is the increased duty of care required of general contractors who oversee or have the right to oversee activities on construction sites. In Washington State particularly, general contractors are held to have "expansive duties to ensure worker safety" and these duties extend to all workers at the site not just those working for the general contractor.


Visitors. Another area related to the Special Relationship Doctrine concerns increased duties owed to those visiting a landowner's property. This level of care is generally held to be highest for business "invitees" where the property owner is making money from the customer and thus in fairness can be expected to take affirmative steps to seek out and discover dangers, keep the property safe, and protect customers from harm.                                 



Breach of Duty

What the defendant did, and whether this act or omission fell below the duty of carefulness owed under Tort Law is the primary issue to be decided in most Tort Law litigation. In most cases this is considered a question of fact for the jury to be determined based on the testimony of witnesses and other evidence presented at trial. For example whether a store used a certain type of floor  wax and breached their duty of care owned to customers by making the floor too slippery when wet.


However, an important exception to the rule of leaving this determination to the discretion of the jury arises in the situations involving statutory violations by defendants. This Doctrine known as "Negligence Per Se" is a big issue in Tort Law and gets bigger every year as more and more statutes and safety regulations are enacted. It is almost the rare case now days that does not involve attempts to invoke the Negligence Per Se doctrine based on alleged violations of some law or regulation.    

Negligence Per Se. Breach of duty under Tort Law is found as a matter of law when an accident results from a defendant violating a statute which was enacted for the purpose of avoiding that type of accident. Such statutory violations resulting in accidents are called "Negligence Per Se". Although defendants can attempt to argue they did not violate the statute, once the violation has been established, the Negligence Per Se doctrine conclusively presumes that the defendant violated their Duty of carefulness. 

-Legislative Enactment vs Ordinance or Regulation.

Based on the thicket of safety regulations involved with such things as driving and building construction, many courts have found regulatory violations to be merely evidence of negligence rather than Negligence Per Se. Frequently application of Negligence Per Se turns on whether the law in question was enacted by a state legislature (which have constitutional authority to modify the Common Law) or by County or City governments or administrative agencies lacking such power.

-Class of persons and type of harm the law is designed to address.

If the Negligence Per Se doctrine is found applicable to particular law, it is still necessary to show that the accident itself was of the type the law was designed to prevent. For example, laws simply limiting hours of operation for various businesses would generally not give rise to Negligence Per Se on a slip and fall case against a business that stayed open late. Similarly, laws against leaving keys in a running car would not create Negligence Per Se liability if the person taking the car had permission.           


It of course is also necessary to show that violation of the law in question is what actually caused the harm. For example, Negligence Per Se would not apply to someone driving a stolen vehicle involved in an accident if the fact that the vehicle was stolen had nothing to do with the cause of the collision.

-Other issues of Fairness.

Questions about the fair application of Negligence Per Se arise in a number of situations such as insensible or obsolete laws, laws generally ignored,  momentary or inadvertent violations, and laws impossible or difficult to follow. In summary, there is always room to argue in Negligence Per Se situations that it is fundamentally unfair to equate violation of a law with unreasonable carelessness.             

Causation and Contributory Negligence

-Cause in Fact. Separate and apart from the question of duty and its breach, defendants are of course never liable for accidents they in fact did not cause. There are many many circumstances where persons suffer injuries at the same time and place where careless conduct is occurring, but the accident was caused by something else. For example, our store's use of the slippery wax would be a clear "cause in fact" of an accident is someone slipped on it. But what if they had tripped instead of slipped and the slippery floor had nothing to do with it? In this case the store's breach of duty in using the slippery wax would not be a "cause-in-fact" of the accident and no liability would arise for the store regardless of its breach of duty over the slippery wax. 

-Proximate Cause. But “causation” as used in Tort Law requires something even more than "cause-in-fact". It also requires what is known as “Proximate Cause” which means the harm must be a reasonably  “foreseeable” result of the breached duty, in addition to it being a cause-in-fact. For example, let’s say the slippery store wax was so shiny that a reflection off the floor temporarily blinded another shopper resulting in a fall. Here although our store's breach of duty clearly was the cause-in-fact of the accident (i.e. it would not otherwise have happened), it would likely not be considered a foreseeable enough result of the breach of duty to be considered a legal cause i.e. "proximate cause" of the accident.

-Contributory Negligence. The last question which must be resolved before a negligent defendant can be found legally responsible, is whether or to what extent the victim themselves were at fault. This area of the law, is undergoing significant change based on evolving societal standards, legislation, and the presence of insurance. There was a time when Tort Law recovery on the theory of Negligence was only allowed if the victim was entirely free of fault. Since accidents in hindsight can usually be seen as avoidable if the victims exercised sufficient caution and attentiveness, this bar to recovery for contributory negligence had profound effects on the ability of injured persons to be fairly compensated for their injuries. In most states today, proportionate fault statutes have removed this obstacle to recovery by requiring juries to assign percentages of fault and damages to each defendant and victim. This effort at increased fairness to victims, however, has presented difficulties of its own where defendants with a minimal % of fault are sometimes held liable beyond the limits of their insurance in cases where catastrophic injuries result in very large damages.                


Close calls are of course much more common than serious injury accidents. But under Tort Law, no matter careless someone might have been, the careless conduct only creates legal Tort liability if the result of the carelessness is actual harm i.e. “Actual Damages” to persons or their property. It is a fundamental aspect of Tort Law that although egregious acts of carelessness or worse happen by the minute across our society, they entirely escape the reach of Tort Law if they do not result in any or sufficient "Actual Damages" to support a lawsuit.

The amount of damages awarded at trial is a question for the jury and is regarded as the jury's most important role. As a general matter, there is no upper or lower limit on the level of damages a jury may award. The extreme uncertainty presented by this wide latitude given to juries in our system of justice is what drives most Tort Law cases to settle prior to the rendering of a jury's verdict. For serious injury cases which do in fact make it to a jury for decision, large sums and extreme effort is expended by both attorneys on both sides attempting to predict and influence they jury's damage award.

Tort Law damages are divided between Punitive Damages and Compensatory Damages.

Punitive Damages. Under the laws of most states, some types of harmful conduct by defendants is regarded as so egregious as to warrant punishment to deter future conduct in addition to simply compensating the injured person for harm done. The types of conduct which is subject to punitive damages varies by state, with many states having very few if any circumstances where punitive damages are allowed. One factor which in practice limits the use of punitive damage claims by attorneys is that most Liability Insurance policies exclude coverage for Punitive Damages. Based on this lawyers frequently if not usually avoid complicating their prospects of insurance recovery by requesting Punitive Damages except in cases against large corporate defendants with substantial assets beyond Liability Insurance.      

Compensatory Damages. 

It is a fundamental aspect of Tort Law that (except for Punitive Damage situations) Damages are intended to compensate for harm rather than punish defendants. Compensatory Damages consist of Economic DamagesNon-Economic Damages, and in some cases Attorneys fees. Most elements of damages cannot be determined mathematically and are instead simply estimates by the jury of the amount in their minds necessary to reasonably compensate the injured person for their loss.  

-Economic Damages include past and future medical expenses, past and future lost wages, the cost of doing things the injured plaintiff can no longer do (need for an Uber for example), and the value of lost years of Life Expectancy

-Non-Economic Damages include compensation for past and future Pain and Suffering consisting of physical pain, and past and future Emotional Distress which includes such things as fright and shock from the accident itself, humiliation due to disfigurement or disability, depression and unhappiness from being unable to engage in former activities, and anxiety about the future.    

Medical Bills Covered by Medical Insurance.

On of the most contentious issues in Economic Damages is whether jury awards to injured person should include medical expenses if they were paid for by medical insurance rather than by the injured person. Although intuition might suggest otherwise, the law of most states does require or allow juries to pay injured persons for medical care they received whether or not they actually paid for it. This counterintuitive result is called the "Collateral Source Rule", and it is based on two main premises; 1) The injured person did in fact pay for medical care, albeit indirectly, through medical insurance premiums they had paid, so it would be unfair to let the wrongdoer rather than the injured person benefit from these payments. The analogy usually cited to support this view is that no one would think that a wrongdoing who's carelessness kills someone should escape Tort liability because the person they killed had life insurance. It is argued the medical insurance is exactly the same, and the wrongdoers should not escape liability to victim who are responsible enough to carry medical insurance. 2) The second main reason supporting the Collateral Source Rule is that the injured person might in fact end up having to pay back the medical expenses and it would create too much complexity and uncertainty to have to get into the weeds of complex medical insurance subrogation reimbursement issues in every accident case.

There are of course counterarguments to the Collateral Source Rule which have prevailed in a some states based on the premise that; 1) It is a simple matter in most cases to find out if medical costs must be paid back from a jury award (Medicare=Yes, HMOs=Yes, Everything else=No) and 2) Allowing injured persons to receive payment for large medical expenses they never owe creates an undeserved windfall which drives tort litigation and deceives juries who believed these expenses are paid by the plaintff.    

Recovery from Joint Tortfeasors

It is common if not usual in serious injury cases for there to be Negligence allegations against more than one Defendant. When injured Plaintiff's allege the carelessness of more than one party resulted in their injuries, the Defendants are referred to as "Joint Tortfeasors" and special rules apply to recovery of Damages including the rule of Joint and Several Liability.

-Joint and Several Liability is based on the concept that frequently there will be multiple parties at fault in an accident, and also frequently there will be some Defendants with little or no insurance or assets from which to pay an award. This course occurs with small entities operating without insurance, but it is also seen with larger defendants who are winding down their business and whose insurance has be exhausted in prior lawsuits. Defendants without assets or insurance are frequently referred to as "Judgement Proof" in that a judgement against them is worthless since it cannot be collected.  Under Joint and Several Liability defendants with assets or insurance are forced to pay not only their own percentage of the Damages, but they also must pay the percentage of fault the jury assigns to Defendants found to be Judgment Proof. This rule is based on the concept that it is more fair to make defendants with some measure of fault completely liable, than it is to make completely innocent plaintiffs bear uncompensated harm. The rough justice of this thinking, however, began to breakdown in with the adoption of comparative fault where a 1% liable defendant with assets could be held responsible for 99% of the harm caused by others. Although the harshness of this result for minimally liable Defendants was ameliorated by insurance, it was exacerbated by the fact that juries determining damages and percentages of fault were not told, and thus frequently felt deceived when they found that a defendant they intended to release with a minimal finding of fault were in fact responsible for the entire award. 


Tort Reform

Due to public concerns about excessive Tort Law awards and the rising cost of Liability Insurance, many states have enacted Legislation which changes the previous Common Law rules for Joint and Several Liability and Non Economic Damage awards. These groups of Statutes are frequently referred to by the moniker "Tort Reform" although their scope and applicability vary quite substantially from state to state.

-Washington. In Washington the most important statute for Tort lawyers is RCW 4.22.070 which limits Joint and Several liability to situations where the injured person is fault free, or when those causing the injury were acting together in some way. This eliminates Joint and Several liability in the most common multi-car accident cases where the victim receives a percentage of fault. But it preserves it in the common situation where accidents are caused by different companies, or employees of different companies working together on construction sites. Another important aspect of Tort Reform in Washington is the addition of "Reasonableness Hearings" when injured persons settle with some defendants but proceed to trial against other joint tortfeasors. Under RCW 4.22.060 these settlements can be approved by the court after a hearing on the fairness of the settlement amount, and once approved, the settling defendant is no longer at risk of being sued for contribution by remaining defendants who feel the settling defendant should have paid more and received a higher percentage of fault.            

-Oregon. In Oregon, an interesting aspect of Tort reform that takes the unwary by surprise are provisions which make Joint and Several Liability in many circumstances available only after the injured party prevailing at trial  tries for a year to collect the judgment from the judgment proof defendants. Only after that can the injured party come back to court and ask that the unsatisfied portion of the judgment be assigned to the lower fault but higher resourced defendants.    

-Constitutional Challenge to Damage Caps. A fundamental feature of our adversary system of Tort Law justice, is that an initiative by one side seldom goes long without a response by the other, and in the case of Tort Reform this response came quickly with challenges to the constitutionality of the Legislative Branch of government's authority to limit the amount of compensation awarded to injured persons. These challenges were brought under the Constitutions of individual states so the results varied by state. But by and large, the State Supreme Courts of most populous states have invalidated to various extents Tort Reform efforts to limit the amounts of allowable Pain and Suffering awards. As a result, there are many Tort Reform laws on the books, but which in fact have no legal force or effect because they have been invalidated by decisions of the States' Supreme Court.       

"Reptile" Theories of Jury Deliberations

Another important response to Tort Reform efforts has been plaintiff attorneys increased use of social and neuro science based techniques to persuade the jury. At bottom was the discovery or maybe rediscovery of a somewhat obvious condition, which is that people have a very hard time placing a dollar value on life and life's enjoyment, and if placed in an angry right mood, and asked questions in the right way, the numbers arrived at can be extraordinarily large. Psychosocially based jury techniques are sometimes referred to informally as "heart strings" or "Reptile" based approaches based on the teachings of famed jury consultant David Ball. Some of the most common techniques are:

-Pain by the Minute where jurors are asked how much they would charge to let someone hit them on the thumb with a hammer for example, and then to multiply whatever that dollar amount is for one second of pain by the number of seconds left in the injured persons life.

-Lottery Ticket where jurors are told a story about a mysterious specter who wants to hand them a winning lottery ticket worth millions but in exchange they must give up all the things in life they enjoy, and then asked as a group who wants the ticket.

-Stop the Wrongdoer where jurors are convinced that unless they arrive at an extraordinarily large award, the defendant will repeat the negligent behavior and could do the same thing to them or their loved ones, and it is the jury's duty to stop them.    

-Last Years Worth the Most where at one time juries rarely made large awards to elderly plaintiffs with limited life expectancies, attorneys now reframe the question  by asking who of them would not give up all the money in the world for one more year of life with their family.



Wrongful Death

One counterintuitive aspects of Tort Law is that no matter how egregious the negligence ,or how bad the harm, there is no Tort Law liability if there is no one left to file suit who had suffered harm in the accident. This scenario occurs with some regularity when adult transients or others without jobs or family relationships are killed in motorist-pedestrian accidents. Whether the pedestrian was in the middle of the cross walk with a green arrow, and the driver was speeding, drunk, and texting at the same time, the driver has no Tort Liability for the death if there is no one left to file suit. Because of this unfairness under the Common Law in Wrongful Death situations, most states have adopted Wrongful Death Statutes which expend the group of people who can claim damages from a wrongful death of file suit on behalf of he deceased.  


Statute of Limitations

Another fundamental aspect of Tort Law is the historic recognition a fair trial can only be held, if it is recent enough in time for the witness to accurately remember what happened. Because Tort Law accident cases usually depend upon evidence from eye witnesses accounts rather than documents, Tort Law statutes of limitations have historically been kept in the short 2 to 3 year range. This historic thinking on the need for relatively fresh witness recollections has been turned on its head in recent years in the area of sexual molestation where it has been recognized that those who prey on women and children can entirely escape Tort Law justice due to the natural reluctance of sexual assault victims to report it. As a result, many states have enacted exceptions to the normal Tort Law Statutes of Limitations for offences of this type. 


-Family, Goverment,


Employment Law Wrongful Dismissal Cases


Police Misconduct 1983 Cases


Workers Compensation

It has long been recognized that different standards for accident liability and compensation should exist in the area of employment. This based on the goals of encouraging job creation and providing quick and certain compensation to injured workers. Under Workers Comp systems, workers trade the opportunity for eventual full Tort Law compensation, for the ease and certainty of compensation under and administrative benefits program. Workers Comp systems are created under the laws of each individual state, but typically all have the following features: 

-Simple claim filing with short check box form

-No lawyers or lawsuit needed

-Claims are presumed to be covered. No need to show employer fault, only that it happened at work.

-No contributory fault against injured worker regardless of how much worker was at fault

-“Exclusive remedy” No right to file tort suits, even by workers injured by other employees.

Various problems have developed in Workers Compensation systems of the various states, with some of the most recurring ones being: 

-Medical fee schedule pays below market rates to doctors (so best doctors won’t see them).

-Incentive to malinger, exaggerate minor injuries, and claim surgeries were unsuccessful.

-Low compensation for scheduled injuries (lost limbs etc) compensation is typically a small fraction of what would be awarded by a jury a Tort Law jury.


Week 4 - Criminal Law & Procedure

Although the Summer Law+ Curriculum is committed to not descending into the rabbit hole of Critical Legal Studies, a partial exception needs to be made for the introduction to Criminal Law and Procedure. 

No other area of law has been subject to so much derision, and yet so few legitimate ideas on how to improve it. Nor has any core area of legal study come close to Criminal Law for the amount of change, and yet the failure of change to have the intended effect. It is a quip familiar to all criminal attorneys, that we have "...the worst possible criminal justice system - except for anything else".

One thing that most Criminal Law attorneys can agree on, is that many of the System’s problems were caused or worsened by well meaning but ultimately misguided legislative efforts at fixing problems of the past. Although one might hope a history of impulsive failures would give rise to circumspection, it instead has arguably created a feedback loop with each new failure increasing the clamber for impulsive legislative fixes destined to fail again and perpetuate the dysfunctional cycle.

So where do we start in studying a system all agree has gone off the rails, but few agree on the repair? One helpful place, which may not excuse it, but might at least help explain it, is remembering that a big part of the "America Experiment" as the founding of our nation is sometimes called, also consisted of leaving behind the English system of criminal punishment. During colonial times when the laws of England still prevailed, the Criminal Law system was based entirely on deterrence. Serious crimes were punishable by death, lessor crimes by flogging and stocks. And the crimes themselves were based on the biblical texts of Deuteronomy and the Pentateuch handed down through the judge made Common Law rather than enacted by elected representatives. As the Colonies became independent, corporal punishment and criminal laws not voted on by elected representatives became seen as a cruel vestiges of Monarch rule with no place in democracies governed by the People. 

Little, however, did our enlightened forefathers imagine, that the cruelty of corporal punishment and an age old criminal code, could be replaced by something as self-perpetuating and self-defeating as the current system of criminalization and incarceration affecting and afflicting substantial portions of the US population.

It is against this backdrop that we begin our study of Criminal Law and Procedure. Not for the purpose of accepting the status quo, but with the hope that understanding how we came to be where we are is the only way to avoid repeating the mistakes of the past.  

Scope of Criminal Law and Procedure

The criminal justice system can be seen as divided between Criminal laws describing punishable acts, and Criminal Procedures describing rules governments must follow in enforcing them. Criminal Procedure includes rules on Detection & Investigation (police practices), Adjudication (charging and trials), Sentencing (determining punishment), Appeal and Collateral Review (fixing mistakes), and Incarceration (prison system).


Criminal Law

Felony, Misdemeanor, Gross Misdemeanor

Crimes are classified based on the length of confinement provided for in the penalties. Although these timeline distinctions may seem arbitrary, they have major impacts on societal rights and opportunities for those convicted. Felony Convictions foreclose many types of employment and housing opportunities, and government benefits sometimes including even the right to vote.    

-Felony, > 1 year

-Gross Misdemeanor 90 days to 1 year

-Misdemeanor < 90 days


Elements of a Crime

Criminal Laws set forth the various elements which the government must prove to obtain a conviction for a crime, which include both physical and mental state requirements. 

Actus Reus (Voluntary Act)




-Involuntary acts


Mens Reus (State of Mind)

-Purposely - Purpose to achieve result

-Knowingly - Aware or should be aware

-Recklessly - Disregard of known substantial risk

-Negligently - Fails to be aware of substantial risk


-Substantial Factor

-Unintended victims

-Mistaken victims

Justification and Excuse

Various situations arise where all the elements of a crime may be present, but fairness dictates that the conduct be excused.

-Lawful Use of Force

      -Police, Citizens arrest 

      -Self defense, Defense of others, Defense of Property     

      -Maintaining Authority

      -Expelling unruly customers

      -Shoplifting detention

      -Discipline of a Child

-Duress (acts coerced by others)

-Necessity (acts compelled by circumstances

-Mistake (as to person or property)

-Consent (sexual assault)

-Entrapment (police set up the crime)

Attempted Crimes

Criminal Law punishes attempted as well as successful crimes. No could of course argue that being a bad aim should be a defense to a shooting crime. But what if the shooter started to get ready but changed their mind before firing the shot? What if they merely told someone they were thinking about doing it? What if they merely thought about doing it privately? What if instead of a shooting, the attempt was merely to purchase stolen property? What if it turns out the property was not actually stolen? Can a just society possibly think that merely thinking about buying drugs or stolen property could be punishable as a felony crime? This is the slippery slope of the Law of Attempt where all agree on the starting point, but no one agrees where it should end. For most criminal charges presented to a jury, the jury may find the completed crime or the lesser charge of attempt.

-Mental state requirement, how specific the intent

-Act requirement

-Proof by circumstantial evidence

-Level of preparation; internet search, possession of materials, reconnoitering, unlawful entry, soliciting,  

-Impossibility, known or unknown

-Mistake of legal fact

-Abandonment and Renunciation

-Postponement, different victim

-Dissuasion by victim

-Inchoate Crimes, where the attempt itself is the crime - can there be an attempt to attempt

-Constitutional Limitations, vagrancy laws against remaining somewhere without lawful purpose



Conspiracy is the crime of agreeing with others to commit a crime. Unlike other attempt crimes, the crime of Conspiracy is completed with the agreement itself, without any need to show affirmative steps taken to carry it out.


-Required Mens rea 

-Implied Agreement

-Knowledge that it was illegal

-Proof by circumstantial evidence

-Feigned agreement (boasting, no intent to go through with it)

-Duration of Conspiracy  

-Unfairness to defendants

Accomplice Crimes

Under the concept of Accomplice Liability, a person who aids, abets, encourages, or assists in the carrying out of a crime is guilty of the crime along with the person who instigates it. As with Attempt and Conspiracy crimes, Accomplice Liability presents a slippery slope for the criminal justice system. Although someone serving as a robbery lookout is clearly an accomplice, what about someone who's only connection is saying "cool" when told of the plan? What if they were present during the street mugging but took no role in it? What if they could have easily intervened to stop the mugging but failed to do so? What if it is an adult family member who fails to intervene to stop the abuse of a child?


-Accessory before or after the fact

-Mental state, mere knowledge vs purpose to furthering the crime.

-Presence in the vehicle and unwitting getaway drivers

-Withdrawal by accomplice

-Victims as accomplices assisting or present during further crimes

-Crime of Solicitation vs Accomplice

-Rendering Criminal Assistence 


Inflicting harm against persons has traditionally been divided between Assault which is an attempt to inflict harm and Battery which is the actual infliction. With the introduction of the Model Penal Code adopted by many states, the two concepts are now combined into various Degrees of Assault. Under this new formulation for Assault, each degree contains an element of intent, result, and instrumentality .

-1st Degree Assault; Intends and causes great bodily harm

-2nd Degree Assault; Intends pain or substantial bodily harm, and causes substantial bodily harm, and/or committed during felony

-3rd Degree Assault; Criminally negligent in causing substantial pain, or any Assault on a public employee

-4th Degree Assault; Any assault without weapon and without causing substantial pain & suffering

-Vehicular Assault; Causing injury while driving recklessly or under the influence of intoxicants

-Sexual Assault; ***

-Resisting Arrest;****

-Interference with a Police Officer; ****

Kidnapping, Unlawful Imprisonment, Custodial Interference 

Kidnapping is the unlawful confinement of another combined with moving the victim or secreting them. Notably, since the modern definition of Kidnapping does not specify how far the victim must be moved or how well they must be hidden, kidnapping charges are frequently brought in situations well outside those envisioned by non-lawyers.

-1st Degree Kidnapping - Abduction using threat of deadly force, and for felonious reason such as to ransom, kill, or terrorize  

-2nd Degree Kidnapping - Abduction without felonious reason

-Unlawful Imprisonment - Restraint without moving victim

-1st Degree Custodial Interference - Taking child out of state or for long period of time

-2nd Degree Custodial Interference - Taking child in violation of custody order

Arson, Reckless Burning, Malicious Mischief


Burglary and Trespass 


Robbery and Theft


Controlled Substances


Motor Vehicle Offenses

For most persons, driving offenses are the most likely and indeed only contact they have with the criminal justice system. For many, however, these generally benign laws designed as much to raise revenue as to promote public safety begin a slippery slope to criminality where Unpaid Tickets, lead to Suspended Licenses, leading to Driving without a License, leading to Arrest Warrants, leading to Felony Eluding, Reckless Driving, Vehicular Assaults, Resisting Arrest, Drug Possession charges, Assault 2 against arresting officers, and multi year Incarceration.     

-Parking tickets

-Red light & speed camera tickets

-License tab infractions

-Traffic Infractions

-Failure to pay Tickets

-Driving without Insurance

-Driving with a Suspended License

-Felony Eluding

-Negligent Driving

-Reckless Driving

-Driving Under the Influence

-Vehicular Assault

-Vehicular Homicide

Criminal Procedure

Detection & Investigation (police practices)

-Exclusionary Rule

-Search and Seizure


    -Motor Vehicles


-Witness Identification

-Right to Remain Silent

-Right to Counsel

-Police Interviews

Adjudication (charging and trials)


-Grand Jury

-Double Jeopardy

-Probation and Pretrial deferment 

-Speedy Trial

-Jury Trial

-Disclosure of Exculpatory Evidence by Prosecutor

-Bail and Pretrial Detention



Sentencing (determining punishment)

-Plea Bargaining

-Sentencing Ranges

-Mandatory Minimums

-Recidivist Statutes


Incarceration (prison system).   

-Prison Conditions

-Solitary Confinement



Appeal and Collateral Review (fixing mistakes)

-Harmless Error

-Habeous Corpus

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