***Six Weekly Seminars at the Beach***
Starting Monday July 24th
Summer Law Seminar Series for High School Students
The Summer Law Seminar Series provides an opportunity for high school students to understand the why and why not behind things they see everyday in the world around them. The small group discussion format is focused on developing critical thinking skills and helping young people be more informed consumers of civics information in our connected world.
Each week's class is a stand alone seminar which does not require students to attend prior or subsequent weeks. Subjects are selected and classes taught by our team of attorney law moms and dads who's children attend Beach Camp, and are taught in small discussion groups with lots of exercises, role playing, and staging of accidents to keep things interesting.
Five separate Monday - Friday half day weekly sessions start Monday July 24th with class times set by that week's instructor. Classes are held in-person in the Sunset Bay Wharf conservatory or canopy tents in the big field on sunny days. Scholarships liberally granted upon request, tuition receipts donated to cause chosen by instructors.
2023 Summer Law Seminar Series Line Up
Week 3 (July 24 - 28) (Closed/full)
Experts and the Law – Everyone thinks they’re an expert, but who really decides disputes over medicine and science in our system of justice?
Would it surprise you if the answer were lawyers with history and english degrees? Or what if it were the vote of 12 randomly selected people on questions that divide even Ph.D scientists? Week 3 of the Summer Law seminar series explores these questions, and the answers may come as a surprise. Led by Beach Camp Executive Director and corporate insurance attorney Jeffery Thomas, our class will stage accidents, interview witnesses, and role play Ph.Ds providing expert opinions on issues such as cause of accidents, eye witness recollection, and medical injuries. Participating students will leave with tools to thoughtfully evaluate competing expert opinions, and to understand the limits of relying on experts that are inherent in our system of justice and form of government. (Afternoons 2:00-5:30).
Week 4 (July 31 - Aug 4) (Closed/full)
Women, Sports, and Title IX - It all Started Here
It seems hard to imagine a time without womens’ sports in high school and college, but it was not so long ago. Title IX is the federal law which ushered in the age of womens’ athletics that we all take for granted today. In Week 4 of the Summer Law seminar series, attorney Cornelia Brandfield takes students through the history of Title IX and how it continues to evolve and affect opportunities for women in sports and elsewhere in higher education today. (Afternoons 1:30-5:00).
Week 5 (Aug 7 - 11) (Closed/full)
Negotiation – Practical Skills for Resolving Conflicts and Advancing your Goals
Every young person wants it their way, but getting there while preserving and even strengthening relationships requires negotiation. In Week 5 of the Summer Law seminar series, attorney Nicholas Larson will share experiences as a practicing attorney, mediator, and teacher of negotiation, guiding students through a week of hands on skill training in the art of negotiation. The week will include mock negotiation sessions, and explore the basic elements of empathy, creativity, problem solving, and concessions in successful negotiations. Participating students will leave with practical skills and important insights into how negotiation is an essential part of both law and everyday life (Afternoons 1:00-4:30).
Week 6 (Aug 14 -18) (Closed/full)
Current Events & the Juvenile Justice System.
“It was just a joke!” But in school, jokes that result in a public safety response can land students in a lot of trouble. Week 6 of the Summer Law seminar series explores how criminal cases get off the ground and make their way through the criminal justice system. It focuses on the juvenile justice system in Washington which has its own set of rules and punishments that are often not well understood by students and educators. This Week features appearances by current prosecutors, a criminal defense attorney and, if we are lucky, a sitting Judge! (Mornings 9:00-12:30).
Week 7 (Aug 21 - 25) (Closed/full)
Big Business, Big Decisions - Legal Decision Making in a Complex World
Teenagers feel overwhelmed at times by all the laws they need to follow when driving. So imagine legal decision making inside tech and consumer products giants with operations in multiple states and countries and applicable laws numbering in the millions. This seemingly impossible task is the job of corporate legal departments and the in-house lawyers who work there. In Week 7 of the Summer Law seminar series, Starbucks attorney Brittany Johnson introduces students to the world of in-house lawyers representing some of the most influential companies in the Pacific Northwest. Through daily hands-on projects students practice problem solving skills and learn how company lawyers get their start and use legal knowledge to inform, support, and balance legal decision making, corporate growth, and regulatory compliance. (Midday 9:30-1:30).
Week 8 (Aug 28 - Sept 1)
Accidents and the Law – Accidents don’t just happen
Accidents don't just happen. All accidents have a legal cause, and unraveling the causes and legal responsibility for injuries in accidents large and small is one of the most important functions of our legal system. In Week 3 of the Summer Law seminar series, attorney Paul Rosner leads students on a random walk through the world of accident law. Students role play various characters in the tort law system while staging and investigating mock accidents to determine their cause and learn how eyewitnesses can see the same events very differently. (Mornings 8:30-12:00).
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Subject Matter Overview and Background Reading:
Our goal for Summer Law+ is to impart a general introduction into topics of interest to our students and the legal thought process behind things they see everyday in their news feeds. By way of background resources, the following materials from prior Summer Law+ years may be of interest. These materials are not to be considered legal advice or the opinion of any Summer Law+ instructor, and do not create an attorney client relationship with any reader or Summer Law+ student. Parent attorneys, judges, and law professors interested in helping with Summer Law+ or adding to our thinking on these subjects or to what aspects should be most relevant for young people, please look us up!
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 language and intent of the original document should apply today. We therefore look to US Supreme Court decisions for how the Constitution applies to the circumstances of modern life. The Constitutional "rule book" therefore includes both the text of the Constitution itself, as well as a much larger body of judicial 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. Fortunately for the student of Constitutional Law, almost every decision includes one or more written dissent opinions setting forth the other side of the argument. Frequently the dissents provide a more clear and concise explanation of the majority decision than the majority opinion itself and no thoughtful lawyer or student of the law forms an 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. In this way, citizens and the branches of government can rely on them to govern their conduct, and to predict how the Court will rule in the future. Past Supreme Court decisions are therefore presumed to apply to similar situations in 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 seek to follow rules from similar cases which the Court has decided, unless there is good reason to depart from them. 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 as to the outcome of the current case. Making such predictions is one of the primary jobs of the legal profession.
Not every Supreme Court decision is something that lawyers use everyday. 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 understanding Constitutional Law. Marbury v. Madison, Separation of Powers, Enumerated Powers and the Commerce Clause, the Bill of Rights and the 14th Amendment, and Stare Decisis and Entrenchment are the basic areas of constitutional legal knowledge that if you understand it 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.
-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
-Enumerated Powers refers to the rules in the Constitution that give authority to the federal government over the states, and the Commerce Clause is the main constitutional rule that the Supreme Court has found gives the federal government broad authority to regulate matters within the states.
-The 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. The 14th Amendment was added after the Civil War to protect the rights of freed slaves against discrimination in the states. It did so by guaranteeing the rights of “equal protection” and “due process” of law. Over time, the Supreme Court has relied on the 14th Amendment to make all individual right guarantees in the Bill of Rights binding on the states.
-Stare Decisis and Entrenchments are mirror image concepts which form the basis of our legal system. Stare Decisis is the rule which says that judges must follow the reasoning of judicial decisions which came before them. Entrenchments on the other hand is the principle that elected representatives do not have to follow the thinking or guidance of prior congresses and have the inherent power to repeal or change whatever laws were passed by their predecessors. In this way Congress is not bound by the "dead hand of the past" and each election furnishes the people with an opportunity to pursue new ideas and approaches to the challenges of the day. Students will learn how the rule against Entrenchments by the legislative branch and in favor of Stare Decisis for the judicial branch reflects a fundamental aspect of our form of government.
-Marbury v. Madison
(Who decides if new laws are following the Constitutional rule book)
-In the Marbury vs Madison case, the US Supreme Court was asked to resolve a political dispute between a democratic Congress and republican President, where President Thomas Jefferson had refused to allow appointment of Judge Marbury as required by a law passed by Congress (Judiciary Act of 1812).
-Rather than take sides in this power struggle between President and Congress, the Supreme Court instead ruled that the Law itself was invalid and unenforceable because in it, Congress had taken it upon itself to expand the power of the Supreme Court to review cases outside of those set forth in the US Constitution.
-By declaring the Law unconstitutional, the Supreme Court established itself as the 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 they go beyond what the Constitution authorizes.
-Because the Supreme Court couched its decision as being based on its own lack of Constitutional authority, the Court avoided accusations of a judicial power grab, and also avoided getting in the middle of an intense political power struggle between Congress and the President. But what it did do was establish for the first time that the Supreme Court has the authority to invalidate laws passed by Congress. This new concept of "binding judicial review" over laws passed by the legislative branch provided the underlying basis for the US system of Constitutional Law where the Supreme Court has the ultimate authority to decide whether laws or acts by the legislature and president conform to the Constitution.
[Note: The strategy used by the Court in Marbury v. Madison of avoiding taking sides in a contentious fight while at the same time expanding your own power while pretending the opposite has become a meme or sorts in the legal world. So when someone alludes to “Marbury v Madison” everyone knows what they are talking about].
-Separation of Powers and Power of the Executive
(Who does what - and does the Constitution allow substitutions)
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 today.
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)
-Enumerated Powers, Federalism, the Commerce Clause
(When can the national government tell state government and businesses what to do)
-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 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 over the states recognized by the Supreme Court were the Commerce Clause and the Necessary and Proper Clause in Article I, Section 8 of the Constitution. 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 bright line limits preventing Congress and the federal government from regulating economic activity within the states. As the decades passed, however, in response to increased public demands for regulation of business, Supreme Court decisions steadily expanded the areas where federal regulation is allowed by the Commerce Clause. Today in fact, it is difficult to find any aspect of the US economy where federal regulatory law has not been approved by the Supreme Court. This changing of Supreme Court interpretation of the text of the Commerce Clause in response to changing times is a recurring theme in all areas of Constitutional Law.
The Expanding Commerce Clause
-Prig v. Pennsylvania (1842). In early cases like Prig the Supreme Court used the Commerce Clause to uphold federal laws allowing slave states to cross into free states to apprehend fugitive slaves.
-Laughlin Steel (1937), and Darby (1941). Held that the Commerce Clause allows regulation of anything with “substantial effects” on interstate commerce. This subjective standard of what constitutes “substantial effects” allowed broad federal regulatory authority over business activities within the states starting with FDR's New Deal regulations following the Great Depression.
-Heart of Atlanta Hotel (1964). Held that the Civil Rights Act of 1964 which banned race discrimination in hotels was allowed by the Commerce Clause due to the impact on interstate travel by blacks.
-Katzenbach (1964). Held that the Civil Rights Act of 1964 banning restaurant discrimination was allowed by the Commerce Clause because food items served in restaurants traveled across state lines.
Cases like Katzenbach which allowed federal regulation of anything which uses anything that crossed state lines, 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 federal Commerce Clause authority in the 1960s ushered in a new era of federal government economic regulations covering most aspects of the US economy.
The Contracting Commerce Clause
By the 1990s, however, members of the Supreme Court lead by Chief Justice William Rehnquist began to see the Court's expansive Commerce Clause interpretation as having gone too far, and 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 used to justify enforcement of federal Civil Rights laws against the states, this shift in the Rehnquist Court’s Commerce Clause interpretation caused great worry for many.
-US vs Lopez (1995) was the first case in over 50 years to put limits on the Commerce Clause and begin reducing rather than expanding the power of the federal government to regulate in-state economic activities. In US vs Lopez the Supreme Court ruled as unconstitutional the federal Gun Free School Zone Act because the Act applied whether or not the guns 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 3 areas:
-Channels i.e. the actual flow of interstate commerce (Heart of Atlanta Hotel)
-Instrumentalities i.e. the things involved in interstate commerce (Ports or Railroads)
-Economic Activities if they have a “substantial effect” on interstate commerce
These new limits set forth in US v Lopez ushered in the current era where the Supreme Court will scrutinize federal laws to determine whether the Commerce Clause grants sufficient authority to allow federal government regulation.
-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.
-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
(When can the government tell people what to do)
After enactment of the original Constitution, buyers remorse set in among the 13 new states who worried they had gone too far in granting power to the federal government over citizens of the states. The states therefore agreed to add 10 Amendments to the original Constitution which guaranteed various individual rights against infringement by the federal government. These first 10 Amendments are known as the Bill of Rights.
Much of day to day the work of the US Supreme Court is devoted to determining the scope of these constitutionally protected individual rights in our everchanging world, and also whether they apply to limit state government power over individuals.
The 14th Amendment
Because the individual rights guaranteed by the Bill of Rights only applied to acts of the federal government, a new amendment was needed following the Civil War to assure that the rights of newly freed slaves would be protected against infringement by State Governments. The 14th Amendment did so by guaranteeing the rights of “equal protection” and “due process of law” to all citizens.
Since these terms were not defined in the 14th Amendment, the Supreme Court adopted the view that the individual rights of “equal protection” and “due process of law” in the 14th Amendment are just shorthand expressions for the individual rights contained in the Bill of Rights because these rights that are so fundamental it is hard to envision a system of justice without them.
This "incorporation of the Bill of Rights into the 14th Amendment" did not happen all at once. Since the Supreme Court must decide cases one at a time as they come before the Court, it took several decades. 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
-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)
-Right to bear arms: McDonald v. Chicago, 561 U.S. 742 (2010).
-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)
-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).
-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)
-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).
Expansion of Individual Constitutional Rights
In addition to the decades long process of incorporating the Bill of Rights into the 14th Amendment, the Supreme Court has also engaged in a decades long process of expanding the scope of the rights listed in the 10 Bill of Rights Amendments to account for changes in society in our modern world. In doing so, the Justices seek to determine which additional rights should be inferred as included in or logical extensions to those specifically listed in the text Bill of Rights.
Many of the individual rights contained in the Bill of Rights involve controversial subjects with longstanding disagreements among both the citizenry and the Supreme Court justices. As justices on the court change, litigants on both sides seek to bring new cases before the court which may result in overturning prior precedent. The following are examples of recurring questions which come before the federal courts and which involve fundamental boundaries between government power and the rights of individuals guaranteed by the Bill of Rights and 14th Amendment:
-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.
-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
Corona Virus Lockdowns
Right to Bear Arms
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 found to satisfy another deep seated human desire, and to result in decreased conflict and 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 [for a commune] 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 equality and community togetherness one one hand, and the need for economic productivity and encouragement of individual effort on the other, have never left us. And these competing aspects of human nature continue to form the basis of almost every issue and disagreement in the field of Property Law today.
Ownership of Property
In the legal world, to "Own" something is a shorthand expression for the bundle of rights consisting of the right to; Use something, Exclude its use by others, and Transfer it to others at the owner's discretion. When someone possesses all 3 of these rights they are considered the property “Owner” under the law and can also be 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 and requires some special type of written evidence of ownership. This can be in the form of a title document or a listing in some public database. Cars and real estate are two main examples, and are referred to as “Titled property". Although a paper title document is evidence of ownership, it fortunately is not ownership itself in that a lost title documents can be replaced, and found title documents do 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 of this type, ownership is determined by tracing back the item's chain of custody.
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 the gift is intended to happen at the time it is made. A promise to give you something in the future, does not transfer ownership, and as you will see in the Contract Law section, generally cannot be enforced in the US legal system.
A gift once made transfers ownership of the property and cannot be revoked by the giver. This requires that the gift be 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.
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
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.
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 affront 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 simply using someone's idea is somehow similar to stealing someone’s property. 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.
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 general
(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 serves 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, https://fairuse.stanford.edu/overview/releases/when/.
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 (https://fairuse.stanford.edu/overview/fair-use/cases/)
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
-Dedication by author
-Expiration (pre 1924 or non renewed)
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
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)
-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)
-Mortgages/Deed of Trust
-Serve as collateral for loans
-Property Tax Liens
-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)
-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
-How high in the air do land owners own
-Can someone hover a drone over your property without trespassing
-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
-Sidewalks, utilities, street widths, fire hydrants
-Off site improvements
-Wetlands, Critical Areas
-Statewide Growth Management Act
-Shoreline Management Act
-Environmental Impact Statements/Determinations of Nonsignificance
-Federal Floodplain building restrictions
-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),
-Public Purpose Requirement
-Private Restrictions on Land Use
Real and personal property make up the the bulk of the assets and wealth held by individuals and 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 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 least 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) insurance programs because it is thought that if a disaster strikes, there would be too many claims of these types for private insurance companies to afford to pay them.
3) For unique properties, Property Insurance can be prohibitively expensive or not available at all (which you would of course want to know prior to purchasing the property). This can also be the case where otherwise normal appearing properties have been subject to prior large insurance claims or large numbers of prior claims, and these claims have been entered into an insurance industry wide database.
4) There are two main types of Property Insurance coverage. Actual Cash Value and Replacement Cost. Replacement Cost is the more expensive type and it pays whatever brand new replacement property would cost regardless of how much the old damaged or destroyed insured property was actually 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.
Tort Law - The Law of Accidents
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 those 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 our 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 as it exists today without also understanding the role played by insurance. Tort Law developed long before liability insurance. In fact the adoption of insurance was delayed for generations 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 everyone has insurance and the main purpose of Tort Law is to compensate victims, why does it even matter who was at fault for causing an accident or how much at fault they are? Maybe negligence should be made a lot easier to prove so that accident victims almost always receive compensation from someone? And if this were the case do we even need a Tort Law system where the main purpose served by litigation is dividing responsibility between insurance companies with little deterrent effect on the wrongdoers? But what if the tremendous effort the current Tort Law system devotes to placing legal and moral responsibility on wrongdoers 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.
Prior to the modern age of criminal law and insurance, persons willfully attacked by wrongdoers frequently had no recourse other than to sue the wrongdoer for Intentional Tort. These cases now days are prosecuted primarily in the Criminal Law system, and where there is a Tort Law case asserted, it is usually postured as negligence rather than an intentional act. This is so because alleging an intentional tort 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 for the "accident".
Most Tort Law cases involve the concept of "Negligence" which requires proving 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 some 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 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 generally cannot protect themselves by claiming they themselves were not at fault.
Liability for Negligent Selection of Independent Contractors
Related to the concept of Vicarious Liability, is the more recent legal concept that those who hire independent contractors should be liable if they are careless in how they select them. This concept was popularized by Section 411 of the Restatement Second of Torts, and is in conflict with an earlier Tort Law principle which held that persons were immune from liability for the acts by contractors they hire but do not control. Section 411 addresses the concern that large sophisticated corporations were endangering the public and shielding themselves from liability by hiring unsafe and underinsured fly-by-night contractors to perform their core business functions. The trucking and construction industries are two primary areas where this has been known to occurs and where most law suits include efforts to hold accountable those who hire small independent contractors. Defending negligent hiring claims requires showing that sound procedures were followed by the large companies to assure the small contractors would operate safely.
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 by putting them into the "stream of commerce" are liable for injuries if the product is found to be "unreasonably dangerous". This term has been taken to mean the product is more dangerous than necessary and more dangerous than would be expected by a reasonable consumer. Manufacturers seeking to avoid Products Liability exposure use warning labels in an effort to counter arguments that the danger was unexpected. Most states have Product Liability Acts which set forth in detail how these claims are prosecuted, the level of proof required, and how damages are calculated.
As a general matter, these statutes 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 laws have made our activities of daily life vastly safer than they were a generation ago. But many argue that the lack of predictability in the subjective nature of this area of law causes product makers 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 and disputes decided at trial, “legal” which are decided by the judge, and “factual” which are decided by the jury. “Legal” questions include disputes between the parties over the legal rules governing how the trial is conducted. They also include disputes over the meaning of the text of everyday laws governing how citizens must conduct themselves, such as not speeding or running 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 court case decisions by appellate courts.
Factual Questions: “Factual” questions for the jury refer to deciding disputes between the parties over what events actually happened. They also include deciding whether or not what happened violates the “Legal” rules decided upon by the judge. On of these legal rules governing how trials are conducted requires that factual decisions by jurors must only be based only on the evidence presented to them at trial. Juror decisions on questions of fact are considered sacrosanct, and they can only be overruled by Judges in rare situation where the judge finds that “no reasonable person” could think what the jury thought, or if the judge finds that 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 presented during trial. Jurors frequently see these objections as attempts to keep them from finding out what actually happened, but it is actually just 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, lawyers are generally not allowed to present eye witness testimony using signed or recorded statements as opposed to having the witness appear in parson. As such, one of the main real world attributes of effective trial lawyers is the ability to find and form relationships with key witnesses so they will appear, and appear willingly at the actual 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 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 observers 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 produce potential witness for pretrial deposition, and to disclose any matter or information sought by the plaintiff if the requested information might lead to discovery of admissible evidence. Based on this, the bulk of the actual legal work by litigation lawyers involves pretrial witness depositions, and the making, reviewing, and resolving disputes over discovery 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.
Daubert Hearings – Allowing Testimony by Experts
Until recently it was rare for courts to allow expert testimony other than by doctors. This was based on a faith in juror common sense, and a concern that arguments between competing experts would be more likely to confuse than to enlighten the jury. This mindset is now largely reversed with competing experts explaining their side’s position on technical matters in almost every case, and with judges frequently requiring expert testimony before allowing cases to go to trial. The reason behind this inversion can be seen as twofold. Scientific research and study advances daily into new areas, and with the ever expanding online world, jurors have fewer common experiences in the physical world from which to develop what was formerly regarded as juror common sense. As a result, an expert witness industry has developed with paid Ph.D witnesses available to testify on almost any conceivable side of any conceivable issue, and with expert witness fees reaching well into 6 figures and constituting a major portion of the cost of tort law litigation. Almost every case now includes a pretrial “Daubert Hearing” where each side characterizes their own expert testimony as essential to jury understanding, and seeks to disqualify the expert testimony of their opponent by characterizing it as unhelpful, confusing and unqualified. Court rulings on Daubert hearing issues can be outcome determinative, and result in case dismissals or in low or high value settlements depending upon whose expert witnesses are allowed to testify and as to what.
Voir Dire is the process at the start of trial where individual jurors are selected to sit on the jury panel for a particular case. Each case has its own Voir Dire proceeding where attorneys for each side question potential jurors in an effort to determine if they have any preexisting biases which would affect their deliberations. Attorneys for each side have a limited number of "preemptory challenges" where they can excluded jurors without providing a reason. However, if it appears that lawyers are using preemptory challenges to exclude jurors of color, the opposing party can raise a "Batson" objection based on a recent Supreme Court case and request a hearing on whether the challenge was based on race. Most juror challenges are not "preemptory" but are considered "for cause" where lawyers seek to exclude a juror based on their answers showing evidence of bias. Sophisticated trial lawyers generally seek to have jurors disqualify themselves by admitting leanings one way or the other in response to sometimes elaborately described scenarios and analogies to such things as food and other subjective preferences. Attorneys representing injured persons devote substantial resources to the Voir Dire process and frequently if not usually run mock Voir Dire and focus group sessions to better understand which juror mindset is good and bad for their case and which Voir Dire questions are most likely to expose it. Although subject to controversy, the law in most states allows lawyers to excluded tort case jurors "for cause" if they admit skepticism about the ability of large money awards to compensate for non-economic pain and suffering damages.
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.
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 harm 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 the bargain in a contract.
Tort Law is concerned only with Liability Insurance. Liability Insurance is essential to the modern Tort Law system because Liability 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 their lawsuit in order to trigger the Liability Insurance policy's duty provide a legal defense.
Unlimited Defense Obligation.
It may seem counterintuitive that injured parties would want to see free lawyers provided to the defendants they are suing. However, this strategy in reality creates powerful incentives for Liability Insurance companies to pay injured parties and resolve Tort claims early in the process. This is because litigation of serious injury cases can be extraordinarily expensive, and the dollar about of the Liability Insurance company's defense obligation is unlimited.
As matter of lawyer ethics, the more policy exclusions there are (and thus the greater likelihood of no insurance coverage for an eventual jury award) 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 policy 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.
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 benign objects in the roadway such as flat pieces of wood, cardboard or birds, or where drivers swerve much further than warranted when encountering bikers or pedestrians. Although the fairness of this rule reducing the required level of care is subject to much dispute depending upon the egregiousness of the driver's act and the resulting injuries, the frequency of such inappropriate reactions to sudden and unexpected events 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 duty to trespassers is that a landowner owes them no duty of care whatsoever, and that the only duty owned is to not injure them on purpose by for example laying traps for them. However, current case law and statutes are more likely to find the level of care owed to trespassers is variable depending upon how foreseeable the trespassing is compared with how easy it would be for the landowner to reduce or prevent the risk of harm. 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 how 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 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 make it to a jury for decision, extreme effort is expended by 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, and some states have an outright bar to allowing insurance for punitive damages. Based on this, lawyers frequently avoid complicating their prospects of insurance recovery by requesting Punitive Damages except in cases against large corporate defendants with substantial assets beyond Liability Insurance.
It is a fundamental aspect of Tort Law (except where Punitive Damages are allowed) that Damages Awards are intended to compensate injured plaintiffs for their harm, not punish defendants for causing it. Compensatory Damages consist of Economic Damages, Non-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.
Due to concerns about excessive Tort Law awards and the rising cost of Liability Insurance, most states have enacted or have attempted to enact Legislation which changes the original 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 widely from state to state.
-Washington. In Washington, one important tort reform change has been 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 legislation are provisions which make Joint and Several Liability in many circumstances available only after the injured party who has prevailed at trial has tried for a year to collect the judgment from the judgment proof defendants. Only after this effort can the injured party come back to court and ask that the unsatisfied portion of the judgment be assessed against 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 increased use by plaintiff attorneys of social and neuro science based techniques to persuade the jury. This approach was based on discovery or rediscovery of the fact that people are subject to peer pressure, that they have a hard time placing a dollar value on pain and life, and if placed in a fearful or angry mood, a mentality to exact revenge on the wrongdoer can takeover. Psycho-social based jury techniques are sometimes referred to as "Reptile" techniques based on the teachings of famed jury consultant David Ball and others. Some of the more common psycho-social approaches are:
-Creating a Jury Tribe where lawyers during jury selection instead of asking questions designed to weed out jurors with bias, instead cause jurors to interact with one and other and create psychological bonds designed to increase peer pressure on jurors who might oppose large awards. To accomplish this, jurors are encouraged to look at fellow jurors and comment favorably on their remarks. The process has been compared to a host at a dinner party going around the room introducing people to each other and facilitating group interaction.
-Getting jurors to disqualify themselves where instead of rejecting jurors for cause based on their answers, prospective jurors are told stories. For example, that they are like judges at a pie eating contest and if they harbor feelings against personal injury lawyers or people who sue for large damage awards, they have an obligation to forgo jury duty because it is the same as if they were a pie contest judge but came in disliking cherry pie.
-Pain by the Minute where jurors are asked for example how much they would charge to let someone crush their thumb with a hammer, and then to multiply whatever the dollar amount is for one second of intense pain by the number of seconds left in the injured persons life.
-Last Years Worth the Most whereas juries traditionally have not been willing to give large damage awards to elderly victims 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.
-Professional Football Players where jurors are told about all the professional football players who have given up $10 or $20 million per year by retiring early due to pain, and that the pain suffered by the injured person in this case is as bad or worse than that.
-Lottery Ticket where jurors are told an elaborate story about a mysterious stranger 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 the jury is asked who among them want the ticket.
-Protect your Family where jurors are convinced that unless they arrive at a large award, the defendant will repeat the negligent behavior and could do the same thing to their own loved ones, and it is the jury's duty to stop them in order to protect their own families.
-Metaphor where projected or poster board images are displayed to jurors equating the accident victim's circumstance to something with visceral appeal, for example images of a prisoner in a cell might be used to express how a victim's injuries from the accident keep them imprisoned in their own home or in a walker or wheelchair.
-Anchoring where is was once thought that asking juries for multimillion dollar damage awards would cause jury backlash and the requesting lawyer to lose credibility, psychosocial studies have now demonstrated the opposite effect, with the larger the request the higher the anchor point for jury deliberations.
-Focus Groups and Mock Trials regardless of which psychosocial messaging techniques are employed in a given case, no major cases are tried to a jury today without testing various approaches on focus groups or mock juries to determine how actual potential jurors will react. Virtual focus grouping over the web now allow attorneys to try a wide array of different approaches on dozens or even hundreds of different mock jurors in order to select the best messaging approach as well as predicting the amount of damages a jury may award.
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 alive to file suit. This scenario occurs with some regularity when adult transients or others without jobs or family relationships who are killed in motorist-pedestrian accidents. Whether the pedestrian was in the middle of a 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, most states have adopted Wrongful Death Statutes which expend the group of people who can claim damages from a wrongful death and file suit on behalf of he deceased.
Statute of Limitations
Another fundamental aspect of Tort Law is the historic recognition that 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.
Employment Law Wrongful Dismissal Cases
Police Misconduct 1983 Cases
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.
Criminal Law & Procedure
Although the Summer Law+ Curriculum is committed to not falling into the rabbit hole of Critical Legal Studies, an exception needs to be made for the introduction to Criminal Law and Procedure.
No other area of law has been subject to so much criticism, and yet so few workable 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 result. It is a familiar quip of criminal law attorneys that we have the worst criminal justice system - except for anything else.
One thing that most Criminal Law attorneys agree on, is that many of the System’s problems were caused or worsened by well meaning but ultimately unsuccessful efforts at fixing problems of the past. Although one might hope that a history of disappointing or counterproductive results would give rise to circumspection, it instead has arguably created a feedback loop with each new misstep increasing the clamber for impulsive fixes which fail again and perpetuate the cycle of dysfunction.
So where do we start in studying a system most noted for its problems but with little consensus on how to fix it? One helpful place is simply remembering that a big part of the "America Experiment" as our nations founding is sometimes called, consisted of leaving behind the English system of criminal punishment and coming up with something new that had never been tried before. 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, and lessor crimes by flogging, stocks, and public humiliation. And the criminal laws themselves were based on biblical texts like Deuteronomy and the Pentateuch which were handed down through Common Law made by judges. As the Colonies became independent, corporal punishment and criminal laws not subject to a democratic vote, became seen as a cruel vestiges of Monarch rule with no place in a government "for the People and by the People".
Little however did our enlightened forefathers imagine, that the cruelty of corporal punishment and judge made criminal law, could be replaced by something as self-perpetuating and self-defeating as the system we find ourselves with today, with legislated criminalization and incarceration affecting substantial and ever increasing proportions of this country's population.
As we begin the study of Criminal Law and Procedure, we start with some of the big questions vexing criminal law attorneys and thoughtful legislators. Although there are few clear cut answers to these problems, this does not mean that progress cannot be made, it just means that it takes thoughtful people willing to actually do the hard work of understanding all sides of an issue before taking action. This commitment to "look first leap second" or "first do no harm" or should we say "if we do nothing else - lets not make the problem worse" is the key to breaking the cycle of criminal law reform dysfunction.
Ever Increasing Criminal Laws and Sentences:
The first question that needs to be asked before all the others is whether there are simply too many criminal laws carrying too harsh of punishments? One thing the founders never envisioned when replacing judge made criminal law with criminal statutes passed by elected representatives, is just how popular increasing criminal laws and punishment would become. Responding to public opinion stoked by sensational news of the day, elected representatives have historically been incapable of resisting the urge to compete with each other on how "tough on crime" they can be. Although recent reform movements have called this practice into question, law professors still estimate that the average New Yorker has probably 10 years of incarceration hanging over their heads if they were prosecuted for every applicable state and federal crime. So the first question to ask when starting to think about criminal law, is just what kind of justice system is it where police and prosecutors can in theory pick any random person, and be assured that with sufficient investigation they can have them incarcerated for the better part of a decade? But what is the answer? Illegal drugs are cited as one of the main drivers of incarceration rates, but would legalization be the solution? Or would the propensity for drug addiction to sap people’s interest in life’s legal pleasures simply increase criminality in other more harmful area?
Making laws is easy, enforcing laws is hard, which is why most criminal laws go unenforced against most people most of the time. But when there are too many criminal laws to be enforced against everyone, who decides who gets arrested? You guessed it, which is why police practices have been at the center of a national debate over racial discrimination in law enforcement. But what is the solution? Would it make sense to have a system where there is sufficient police presence to enforce every law against every person? But if we accept that individual police officers must have discretion over who to arrest, how can race neutral policing ever be achieved or verified? What if police officers were hired based on the racial makeup of their city? But what if it were found that officers of color are more likely to interact with racial minorities and thus more likely to be in situations where they have them arrested? It is easy to say that having criminal laws out of step with societal norms is the original sin, but if everything is legalized just because people are doing it, isn't that a guaranteed race to the bottom? Is it ever ok, or to what extent is it ok, to have criminal laws that are aspirational and thinly enforced?
Model Penal Code:
Although most criminal law comes from individual state legislatures, there is uniformity to a large degree based on states looking to the Model Penal Code for guidance. The Model Penal Code was a law professor project started in the 1960s with the goal of increasing uniformity and streamlining the organization of state criminal laws. The problem is, it did so by replacing largely understood names for crimes, with numbers and degrees which although convenient for prosecutors and law professors, departed from the fundamental principle of the public needing and wanting to understand the criminal code. Things like Assault & Battery, Breaking & Entering, Burglary, Armed Robbery, Statutory Rape, Contributing to the Delinquency of a Minor, and Grand Theft Auto, which convey important intuitive information about the nature and seriousness of a crime, were changed in such a way that few lay persons or non-criminal attorneys would understand or remember. Some maintain that if you can't say what a criminal law is and does in a short intuitive title, that is a good indication of a criminal law that should not be on the books. But is this a realistic view in our modern times? Has society simply gotten too complex for people to expect to have an intuitive understanding of what is or is not a crime? Most criminal law experts admit yes, that we passed that point long ago, and that more important than lay public understanding, is that the system is workable for lawyers, judges, and law professors who deal with it every day. But is there ever such a thing as something too important to be left to the experts? Or is the public's delegation of authority to experts on criminal law and punishment an inescapable attribute of living in a modern complex society?
Political Control of Prosecutors and Police:
Most serious crime in this country is charged and prosecuted at the County level where the positions of head prosecutor and head law enforcement officer are generally elected offices. It is up to the County Prosecutor and County Sheriff who and what types of crimes are targeted, and who is charged and who works up the cases. County Prosecutor and County Sheriff positions also enjoy high levels of protection against legal liability for their official acts. But what if these elected officials in some jurisdictions have found that the best way to assure reelection is to appear tough on crime by focusing on minor street crimes while ignoring wrongdoing by corporations and the wealthy campaign contributors? What if in other jurisdictions these elected officials have found the best way to assure election is to appear "one-with-the-people" and target criminal enforcement against wealthy persons and corporations? But what if the the only wealthy persons and corporations targeted are those who supported their political opponents? But what if County Prosecutors and Sheriffs were appointed in some way and not subject to political control at the ballot box? What if these unelected officials could charge whoever they want, with whatever crime they want, anytime they want, as many times as they want, and with never any public accountability at the ballot box for their actions?
User Fees, Fines and Civil Asset Forfeiture:
Lots of poor people owe and have paid lots of money to the criminal justice system even if they have never been convicted of a crime. This comes about when governments attempt to make local criminal justice systems financially self supporting. "Policing for profit" as it has sometimes been called involves extracting revenue from those charged with crimes in a number of different ways. One common scenario is when drugs or unregistered firearms are found during a police search of a residence or vehicle. When no one admits ownership, as is typically the case, police feel compelled to charge everyone present to avoid granting impunity for drug possession. But when prosecutors eventually agree to drop charges due to lack of evidence against people individually, all those charged can end up with four figure or higher user fees and fines. In addition to fees and fines, Civil Asset Forfeiture laws in most jurisdictions allow police to confiscate money, cars, or other property they allege was involved in a crime. So what if police and prosecutors know from experience that most cars pulled over, or people patted down, or residences searched, in a low income/high crime area will yield something which could support criminal charges and thus criminal justice user fees and asset forfeitures which keep the system operating? What if elected city mayors and city councils force police departments and prosecutors to raise revenue in this way? Is targeting "high crime" areas for criminal enforcement (and criminal justice fee generation) good government and common sense policing? Or is it inherently unfair and discriminatory? And what about our recurring scenario of contraband being found where multiple people have access and thus multiple people are charged, fined, and fee'd before charges are dropped? Isn't this inherently unfair? But would stopping this charging practice essentially legalize most instances of illegal drug and gun possession except in the rare case where someone in the home or auto actually admits ownership?
Homelessness and Vagrancy:
Could "remaining in a public place with no lawful purpose" be a criminal offense resulting in incarceration? It used to be. As did panhandling and a variety of other loitering and "up to no good" type offenses. Where homelessness used to mean sleeping on a friend's couch, it now encompasses the right to pitch a tent on public greenspaces and sidewalks without criminal consequence. Has the recognition of this right to shelter in public places been a positive development in criminal law for the homeless? Few think so, but what are the alternatives? Would renewed enforcement or enactment of public vagrancy laws turn the clock back and send city campers back to family, friends, or mental hospitals? Or would it simply move homeless camps into the jails? Should every city be required to have a designated homeless camping area if they seek to criminalize camping on the sidewalks and greenspaces? Or does accommodating homeless campsites just encourage homelessness and make it more difficult to obtain employment, avoid drug use, receive mental health treatment, and reenter productive society?
Police use of Deadly Force:
Although all would agree that police use of deadly force is less common than news coverage might suggest, it is also the case that circumstances surrounding many police shootings are deeply disturbing and represent fundamental injustice. There is big difference in the minds of the public between a police shooting and a police execution. This distinction, however, is entirely missing from the laws covering use of deadly force and police training which actually encourage use of military type sidearms and shooting deadly force suspects multiple times. But with drug and alcohol intoxication and mental illness being the main drivers behind police shootings, would limiting the circumstances justifying deadly force, or returning to revolver type sidearms, or requiring legal justification for each shot fired actually safe lives, or would it result in more injury and death to police and innocent bystanders?
Confessions in Police Custody:
What could possibly be more certain evidence of guilt than someone saying "I did it"? But is this still the case when the law in most jurisdictions allows confessions obtained through trickery or mild forms of duress? What if a confession comes after the suspect is falsely told they had been identified by eye witnesses and DNA evidence but if they confess right now the police will make sure the judge gives him probation? What if the confession came after hours of interrogation without a bathroom break? What if a young suspect was exhausted and would say anything just just to get some sleep and felt safe to assume since he had nothing to do with it, that the police would eventually figure it out? What if the confession came in exchange for the police agreeing not to charge the suspect’s best friend or spouse? But what about the equally large number of confessions that are truthful and voluntary? What would be the effect on our criminal justice system and the number of police investigators needed if suspects could later withdraw any confession made without an attorney?
A half century ago the US Supreme Court created a rule that evidence obtained by the police in violation of a suspect’s constitutional rights could not be used against them. The premise of this “exclusionary rule” was that it was the only way to get police to respect the Court’s rulings as to individuals’ 4th Amendment Constitutional Rights against unreasonable search and seizure. But what if in the modern world there are now better ways to enforce police department respect for the Court’s 4th Amendment rules? What if the Court’s 4th Amendment rules have become so complicated that it takes lawyers rather than police to administer them? What if a 4th Amendment violation was an honest mistake? What if violent criminals are allowed to go free and victimize others? What if the feelings of arbitrary injustice in allowing violent criminals to go free creates cynicism in police and prosecutors which causes them to feel justified in breaking other rules in order to obtain convictions?
Everyone has seen CSI shows where such things as bite marks, polygraphs, blood splatter, photo enhancement, gunpowder, and repressed memory analysis solves the crime and puts the murderer behind bars. But what if in real life the supposed scientific basis behind a crime scene investigation technique turns out to be completely unfounded? Unfortunately, some have, and inevitably more will be found unreliable in the future. So what do we do with people who have been convicted and incarcerated after trials that were based on discredited scientific evidence? What if instead of being convicted at trial, they had plead guilty after being told that a 99.9% certain scientific test implicated them in the crime. What if there are many thousands of these individuals currently incarcerated? But what if in most of these cases the junk science evidence was just a throw-in by the prosecutor and the jury would have convicted them without it? How could any of this possibly happen in the first place? Don't courts follow the science? How is it possible that scientists with Ph.Ds, and tenured professorships, and published papers, could be so wrong? The answer of course lies in human nature. People group together, and people make mistakes. And judges, lawyers, jurors, and scientists are all people. It starts with a mistake in some basic assumption that has intuitive appeal so everyone assumes it to be true but nobody checks, or checks much, or checks thoroughly, or relies on the first person who checked it but who had made a mistake. Once this happens, its garbage in and garbage out for everyone relying on the castles of commentary and research based on the original mistaken premise. The fortunate part is that even the most widespread mistakes in fundamental medical and scientific assumptions of the day can and usually are uncovered eventually when smart lawyers are willing to put their client's interests ahead of the dogma of the day and carefully examine the logical basis underlying every expert's testimony. This important principle has been embodied in the US Supreme Court's Daubert decision and the revised FRE (Federal Rule of Evidence) 702 which requires judges and lawyers to look beyond the herd mentality of the day before accepting expert testimony. Many states, however, have yet to adopt the Daubert standard for reviewing expert testimony and continue to adhere to the 1920s era Frye standard allowing admission of science evidence based simply on a critical mass of experts thinking something to be so.
Bail and Pre-trial detention:
Everyone is innocent until proven guilty. But does that mean those charged with violent crimes should be left at large pending trial? What if they commit more crimes or track down and intimidate or kill their victims or witnesses? But what if they are completely innocent and how would we know since they haven't been tried yet? And what about the not so serious crimes, or the vast majority of criminal suspects where the only real risk is that they won't show up for trial? The historic system of Cash Bail creates financial incentives for suspects to appear at trial and be found by others if they don't, but what about the large number of suspects with no assets to post for bail? Should they receive pretrial release anyway based on equality and fairness? But what if they have nothing to lose and thus no reason to appear, or a history of not showing up for trial? Is there a technology solution like ankle bracelets, but what if suspects just cut them off? What if an enlightened system of Pretrial Release Services was created whereby judges would refer suspects to an administrative agency which would decide whether they were entitled to no bail release by weighing a variety of factors? Is it fair for such decisions on personal liberty and public safety to be made by agencies where no one person is accountable rather than by judges?
The explosion in criminal punishment over the last half century has been made possible by the practice of Plea Bargaining where prosecutors offer reduced punishment in exchange for avoiding trial. This practice which accounts for over 90% of criminal prosecutions, allows for large numbers of crimes to be prosecuted, but with a fraction of the courtroom, attorney, and prison cell resources otherwise necessary. But what if prosecutors knowing they lack the resources for trials and incarceration, in essence force suspects to plead guilty by threatening such severe punishment that no rational accused would take the risk of trial?
Witness Immunity in exchange for testimony:
Although it is a fundamental affront to our system of justice for prosecutors to pay witnesses in exchange for favorable testimony, the practice of paying witnesses by dropping or reducing criminal charges against them is widespread. But if the former is considered the worst of the worst in terms of justice for the accused, how is it possible that the latter is accepted without question? How realistic is it to expect truthful testimony under these circumstances? But what are the alternatives when in the usual case the only witnesses are others involved in the crime?
Eyewitnesses and False Memories:
One of the most baffling aspects of criminal justice is how frequently eyewitnesses simply get it wrong. And how the more serious the crime and upsetting the circumstances, the more likely it is for witnesses to misremember, and the more likely it is for juries to accept these false memories a true in order to prevent the presumed wrongdoer from going free. Should witnesses who provide what turns out to be false eyewitness testimony be severely punished? Or is it simply inherent in human nature that our memory system can go haywire in stressful situations? But what if as frequently happens, the eyewitness looks the jurors in the eye and testifies they are “absolutely certain”, and they go to great lengths to convince the jury that there is no possible way they could be mistaken? What if as a result of this compelling but mistaken testimony, an innocent person spends years in prison? What if the innocent person is executed? But if witnesses were held criminally accountable for mistaken testimony, would the already difficult task of getting violent crime witnesses to testify at trial become next to impossible? And what would it do to criminal trials if every eyewitness case had to also include testimony from some brain science Ph.D telling jurors that you can never really believe for sure anything anyone says they've seen or heard? In the overall scheme of things are juries still the least worst option for evaluating the credibility and reliability of eyewitness testimony?
Double Jeopardy/Unanimous Acquittal:
It is recognized as a fundamental right under the US Constitution that conviction for a crime requires a unanimous vote by all jurors hearing the case, and that once acquitted, the accused cannot be put on trial again. But what if the jury's vote was 11 to 1 in favor of acquittal? Can the prosecutor try the defendant again? The answer is yes, and again, and again, until either getting a unanimous vote for conviction or unanimous vote for acquittal. This right of prosecutors to continue retrying defendants until obtaining a conviction is used infrequently, but it is not prohibited and is limited only by political considerations within the prosecutors office. What if a defendant is unanimously acquitted by all 12 jurors for example in a self-defense shooting case, is that the end of the prosecution? Only at the state level. The defendant can still be charged by federal prosecutors for violation of a federal criminal laws such as violating the shooting victim's civil rights or a federal gun control law. This rule allowing a second prosecution under federal law has been heavily criticized by legal scholars, but there is currently only a single member of the US Supreme Court who has advocated for baring these federal law double jeopardy prosecutions.
Deterrence, Reformation, and Removal from the community are considered the primary purposes served by incarcerating those convicted of violating criminal laws. But what if instead of reforming offenders, prison actually serves as a school for criminality? What if the temporary safety achieved by removing violent offenders from the community is more than outweighed by an increased propensity for violence when they return? What if instead of deterring offenders, a prison sentence becomes viewed as a right of passage, an education in street smarts, and even a source of power and prestige after returning to the community? But even if all this were the case, what would be the alternative? Could violent offenders be left in the community under supervision? Could mental health treatment eliminate the need for most prison sentences? Could sentences be radically shortened but served in solitary to prevent criminal indoctrination and increase deterrence? Is there any hope in increased prison resources actually resulting in reformed prisoners?
Mandatory Minimum Sentences:
Under the Common Law, judges had wide discretion to sentence offenders to a sentence they deemed appropriate. The unfairness of inconsistent results led legislators to establish sentencing rangers for crimes which could then only be departed from by a showing of extenuating circumstances. The continued unfairness of inconsistent results resulting from the range of sentences and judges being able to find extenuating circumstances whenever they want led to legislated mandatory minimum sentences for various crimes. Most notoriously were federal minimums of 5 years imprisonment for 5 grams of crack cocaine, and state level "3 strikes" laws where offenders receive mandatory life sentences after the 3rd felony conviction. But what if the 3 felony convictions all came during the same crime What if they were separated by decades? What if they were for things people today don't even consider serious crimes? What kind of leverage does that give prosecutors and police in plea bargain, and testimony in exchange for leniency negotiations if they can threaten long prison terms or even life in prison for a minor crime?
Jurors not told of Punishment for Crime:
Because Common Law judges had such wide discretion in imposing sentences, jurors generally didn't know what the punishment would be for the crime they were deciding. But is keeping jurors in the dark like this fair in the modern era of mandatory minimum sentences and a vastly expanded criminal code? Should jurors who think they are convicting someone of a minor crime (and therefore might be inclined not to insist upon strict proof) be told the conviction actually carriers a multi year or even a life sentence? But what if society (through its elected representatives) has determined based on a big picture view of things that harsh sentences are justified for crimes that ordinary people might think are minor? Should 12 members of a jury panel be able to override the collective judgment of society at large? But are harsh criminal penalties enacted by legislators just pandering to the public and more akin to mob rule than justice? What actually is justice when it comes to criminal penalties? Its it equality and uniformity in punishment for the same crime, or is it mercy in the form of taking into account the individual circumstances of each offender and criminal act?
Probation and Parole
A fundamental aspect of the criminal justice system is the the idea that incarcerated offenders should receive early release if they behave well in prison, and that early released offenders should be placed under supervision and required to abide by various conditions of their parole such as being employed, abstaining from illegal drugs, observing a nighttime curfew, and staying away from criminals and locations or activities known to be frequented by criminals. The idea of course is to help offenders transition back into lawful society and reduce the likelihood that they will reoffend. But what if almost half the people admitted to prison are there because of violations of the terms of their parole or probation rather than for a new crime? And what if most of these violations were for minor things such as failing a drug test or curfew violations? Does it make sense to impose prison for a curfew violation? How often do parolees fleeing law enforcement to avoid reincarceration for a minor parole violation end up committing much more serious crimes in the process? Is it productive or realistic to expect released parolees to avoid contact with almost everyone they have ever known? What if probation terms can last for a decade or more? And what about decisions on who gets parole and when. Are the standards fair and consistent? What if it were found that offenders at parole hearings held before noon had a 40% chance of release but those after lunch had 5%? Is it possible to have fair and consistent standards for who is most deserving of early parole release? If not, would that be a reason to curtail the practice altogether, or should inconsistencies be accepted as a necessary evil? But if accepted, does administering an admittedly arbitrary process turn it into a joke in the eyes of offenders, and fundamentally undermine their respect for the justice system and as a result end up increasing parole noncompliance and criminality overall?
Is it fair for the government to execute people? It depends on who you ask. Knowing the inherent flaws in witness recollection and a system administered by fallible humans, how often can we be certain enough to impose the irrevocable sentence of death? But even in circumstances of absolute certainty, is it still fair? Is it right? Is it moral? These are hard questions. Is it fair, right and moral to allow people to murder their spouses and fellow citizens and then be supported for a life of leisurable confinement by the government? Is it fair to deprive victims’ families of the visceral gratification of retribution against the murderer of a loved one? But what if the murder victim's family is against the death penalty? Should this matter? What if the actual murder victim was known to be in favor of capital punishment? Is it fair for dying victims to know their killer immune from the same fate? Could capital punishment be thought of as an extension of the right to self-defense? What about murders killing people in prison? But even if some people believe Capital Punishment is fair punishment for some crimes, is it fair to execute someone for something they did a very long time ago? How about 20+ years ago when they were a teenager and they can now barely remember it? Can we even say we are executing the same person when its 20 years later and they have lived more than half their life since a single drunken or drug induced moment of the crime?
It is against this backdrop of difficult questions 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 the current state of the law and how it came to be is best way to reform the reformation and break the cycle of criminal law reform dysfunction.
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).
Substantive Criminal Laws
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)
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
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
-Expelling unruly customers
-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)
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? What if instead of a shooting, the attempt was to purchase property they thought had been stolen? What if it turns out the property was not actually stolen? Can a just society think that merely wanting to buy drugs or stolen property is 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
-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
-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
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 Assistance; Degree depends on level of crime being assisted
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; ***
-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
-1st Degree Arson; Danger to people or insurance fraud
-2nd Degree Arson; Malicious intent but no danger to people
-1st Degree Reckless Burning; No Malice, just property damage
-2nd Degree Reckless Burning; No Malice, not property damage
Burglary and Trespass
Burglary and Trespass involve entering the property of another for an unlawful purpose. Traditionally Burglary required ph How the property was entered and how unlawful the purpose will determine the level of offense and punishment. Burglary requires an intent to commit a crime while trespass simply requires the illegal entry, but a jury is allowed to infer criminal intent from the circumstances.
1st Degree Burglary; Enters dwelling armed with a deadly weapon, or commits assault
Residential Burglary; Enters dwelling but not armed
2nd Degree Burglary; Non-dwelling burglary
1st Degree Criminal Trespass; Entering building
2nd Degree Criminal Trespass; Non-building trespass
1st Degree Vehicle Prowling; Enters motorhome with intent to commit crime
2nd Degree Vehicle Prowling; Enters other vehicle with intent to commit crime
Robbery and Theft
-Theft; Taking unauthorized control of property with intent to deprive owner. Degree depends on value of property taken. Includes theft of vehicles and appropriating lost property unless done openly w/o claim of right
-Robbery; Taking property from a person with threat of immediate harm. Degree depends on whether armed or incl. assault
-Taking Motor Vehicle w/o Permission; Would be theft except no intent to keep it
-Possessing Stolen Property; Req's knowledge it is stolen
-1st Degree Extortion; Obtaining property by threat of physical harm
-2nd Degree Extortion; Obtaining property by threat to reveal information
-Forgery; Passing false instrument with intent to injure or defraud
Controlled Substances/Possession of Illegal Drugs
Criminal laws against possession and sale of illegal drugs are the most contentious of all areas of criminal law. It has been argued persuasively that this area of the law is the classic situation of the cure being far worse than the disease. That it is based on nothing more than puritanical sentimentality, and that it has resulted almost single handedly in destroying respect for law enforcement and the breakdown of law and order in major cities of both the US and Mexico. The problem of course is that drug overuse and addiction destroys lives and minds over time, and it is a cruel and painful descent both for victims and for their friends and families forced who witness and be drawn into it. Although marijuana legalization is sweeping the nation and is regarded as a special case in controlled substance acceptance, Oregon is the only jurisdiction taking significant steps toward criminal law acceptance of "hard drugs". The reason for this lack of movement in these enlightened times, is the deeply held fear by many on both sides of the policy debate that this is a "one way ticket" issue, where if we are wrong on hard drug legalization we could be sentencing future generations to a dystopian future where the lives of significant portions of society revolve around drug consumption and public support. There is no solving this question today, but all who study the Criminal Law of Controlled Substances should recognize that it is an area of extremely high stakes.
Criminal Laws on Controlled Substances cover a vast array of activities, many which are common sense, but many which are counterintuitive, and most which have penalties far in excess of what most people including prosecutors and law enforcement consider reasonable. As such, criminal drug laws tend to go under enforced except in circumstances where individuals are targeted for prosecution based on some other reason or aspect of criminality. This discretionary and uneven enforcement of drug laws is one of the main drivers behind that narrative of racial bias in police practices and prosecution.
To get a feeling for the scope of criminal drug laws the following is a very partial list of some of the proscribed conduct; Possessing, Selling or Giving, Selling or Giving Drug Paraphernalia, Manufacturing, Distribution, Manufacturing Counterfeit Drugs, Involving a Person under 18, Transporting, Cultivating, Harvesting, Compounding, Converting, Testing, Packing, Storing, Containing, and Concealing. Most of these activities if they involve a Schedule 1 drug, carry Class C Felony penalties of up to 5 years imprisonment for a first offense.
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.
-Red light & speed camera tickets
-License tab infractions
-Failure to pay Tickets
-Driving without Insurance
-Driving with a Suspended License
-Driving Under the Influence
Criminal Procedure/Enforcement of Criminal Law
Police Practices (Detection & Investigation)
-Search and Seizure
-Right to Remain Silent
-Right to Counsel
Adjudication (charging and trials)
-Probation and Pretrial deferment
-Disclosure of Exculpatory Evidence by Prosecutor
-Bail and Pretrial Detention
Sentencing (determining punishment)
Incarceration (prison system).
Appeal and Collateral Review (fixing mistakes)
Contract Law concerns the enforcement of promises. This belief that promises should be kept is innate in human nature and is found in all human societies from the most primitive to the most advanced. In fact, enforcement of promises is generally regarded as the most important element enabling advancement of human civilizations through specialization of labor. What cave person for example would devote themselves to perfecting the making of spear points if they could not enforce the promise by spear users to share the resulting meat? This simple scenario of specialized labor turning out superior products in a fraction of the time, when multiplied across society forms the basis of civilization and the modern world. But some things never change, and the need for the modern day maker and service provider to enforce the repayment promises from modern day consumers is as important today or more so than it was at the dawn of civilization.
Not all type of Promises will be Enforced by the Courts
-Requirement of an exchange
-Mutual Manifestation of Asset
-Oral vs written vs part performance
-Expiration/revocation of Offer
Defects Rendering Contracts Unenforceable
-Lack of Capacity
-Mistake, who bears risk of mistake
-Fraud and Misrepresentation
-Lack of writing/Statute of Frauds
Rules for Resolving Disputes over Contract terms
-Intent of parties (at the time)
-Implied good faith
-Who drafted writings
-Course of performance
-Prior course of dealing
-Usage of trade
-Boiler plate and fine print
Format of Written Contracts
-Covenants "Now therefore in consideration of the forgoing..."
Contract Conditions and Waranties
Many contractual agreements require one party to perform their promise before the other party's obligation arises. The first party's promise is then referred to as a Condition of the Contract or a Condition to the second party's performance.
-Condition vs promise vs warranty
-Express or implied
-Failure to cooperate
It is the rare contact covering any period of time where something doesn't come up causing the parties to modify or renegotiate parts of their original agreement
-Written addendums or change orders
-Course of Conduct/waiver of obligations
Breach of Contract
-Impossibility/Frustration of Purpose
-Notification and opportunity to cure
-First material breach relieves obligation to continue performance
Remedies for Breach of Contract
-Benefit of the Bargain (Expectation Interest)
-Specific Performance/Injunction/Irrepreable harm
It takes a lot of trouble and expense to sue someone for breach of contract. So what do I do if I'm contracting with someone I don't know enough to trust or who has a history of breaking promises in the past? You take collateral, which you can then keep to compensate yourself for breach of contract damages if your contracting partner fails to perform
-Mortgages and Deeds of Trust
-Letters of Credit
-Anti assignment clauses
Third Party Beneficiaries
-Ability to sue buy non-party
-Requirement of intended beneficiary
-Requirement of material reliance
Uniform Commercial Code (UCC Article II)
-Transactions in goods
-Right to Cover
-Special rules on damage calculation
-Efficient breach vs moral obligation to perform contract
-Personal Service Contracts
Civil Procedure is the study of the legal process and rules which govern court cases. Although the Rules of Civil Procedure are sometimes viewed as a vast array of "legal technicalities" by non-lawyers, in many ways these rules are as important as the underlying laws themselves in protecting fundamental rights and satisfying society's desire for fairness. For example, how fair would it be if someone you've never met could sue you in a court on the other side of the country in a state where you've never been? In another example, what if you had an altercation with a fellow passenger on a cross country flight and were served with a criminal summons to appear in North Dakota where the plane was flying over when the incident took place? The legal technicality of Jurisdiction doesn't seem so technical in these cases does it? This and the many other Rules of Civil Procedure that we will study are the legal system's best effort to make sure that cases are decided based on their actual merits rather than by unfair tactics by one side or the other. But as with other areas of law, how things are is not necessarily how things should be, and there is are ample opportunities for thoughtful lawyers to bring about positive change in this are, provided they first understand the how's and why's of the current system.
Jurisdiction/Where can a suit be Brought
-Subject Matter Jurisdiction
-Choice of law
-Service of Process
Former Adjudication/Collateral Estoppel
-Full faith and credit
-3rd Party Claims
-Amendments to Pleadings
Parties and Joiner
-Work product and expert information
-Requests for Documents
-Requests for admissions
Pre Trial Disposition
-Failure to prosecute
-Bench vs Jury
-Motions in limine
-Case in chief
-Jury Verdict Form
-Polling the Jury
-Post trial juror interviews
-Issue raised/preserved at trial
-Standard of appellate review