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Introduction:
Common law is purely decided by judicial decisions. This system recognizes two very
important points:
o
Precedent: Factually similar prior case law that lawyers and judges can draw on.
1. Similarly treated people should be treated similarly.
You must remove prejudices and biases before making a
judgment.
Jurisdiction:
A prior decision is binding only in that jurisdiction.
A precedent is a Binding Precedent if it is made by a court higher up in the
hierarchical ladder in that judicial system.
II.
CASE PROCEDURE:
Case Headings:
For example in the heading Brown v. Board of Education, 347 US 483 (1954).
347 is the volume; 483 is the page in the volume; 1954 is the year the case was decided.
Steps in Getting a Case Started:
Lawyers Evaluation: Can the law provide the plaintiff with a remedy for his cause of
action? Problem Situations: The defendant does not exist. The victim has experienced an
act that cant be legally compensated. Cost/benefit analysis.
Forum: Which court has jurisdiction over the people involved and the issues involved.
Subject/Personal Jurisdiction. Which court has better procedural norms or offers the
promise of a better outcome for the client.
1. Motion to dismiss is more likely granted for frivolous lawsuits.
2. Plaintiff lawyers are hardwired to get to a jury while defense lawyers want to get it
done and over with.
The process is summary and is done on affidavits and summaries alone. There is no
live legal proceeding.
Differences between motions for dismissal and summary judgment:
o
o
For dismissal, the motion often occurs early on. Summary judgment usually
occurs after the discovery stage since more facts are required.
Motions to dismiss are often a simple case of subject matter or personal
jurisdiction. Motions for a summary judgment involves a decision on the fact and
application of the law to the fact by a judge.
Trial:
Only about 2% or less of filed claims actually go to trial.
Voir Dire: the question and answer session among the judges, attorneys and potential
jurors. Its the process of picking the jury.
Both parties may waive their right to a jury trial. Why?
o
It could take longer to empanel a jury.
o
Sympathy for the defendant like in a case against the police.
o
The technical facts surrounding the case are too complex for a random sampling
of the community to understand.
o
Bench trials can be scheduled for non-consecutive days which might work better
for a corporate trial. You cant empanel a jury and then have them sit on nonconsecutive days.
o
If a judge may disallow evidence from appearing before a jury, but the judge
himself has seen it. Therefore, in a bench trial, the judge has to first see the evidence
to disallow it, which might work in the favor of the plaintiff in the case of gory pictures
involving personal injury.
o
jury consultants
Plaintiff must establish a prima facie case which is a case which has facts that the
burden of proof lies on the plaintiff.
o
The burden of production: In a civil proceeding the P must convince the jury that
its case is more likely than not. Its a question of quantity- there is a sufficient
quantity of facts that would convince the jury that
o
The burden of proof in a criminal case requires convincing a jury beyond a
reasonable doubt, whereas civil courts only require the Ps version of the story to be
more likely than not. The reason for this is that the criminal cases deprive the
defendant of liberty/life which is more valuable than the usually
Judgment as a matter of law is a motion by the D.
D presents evidence that would present counter claims.
o
This is the only point in legal proceedings where there are live witnesses
brought before the court.
Next, the judge instructs or charges the jury. The judge reads the instructions to
the jury, stating the law and rules. The P and D lawyers give their instructions to the judge
for the jury. The judge may use his own charge.
Appeals:
The appellant brings the appeal alleging a prejudicial or reversible error.
Questions of fact or the determinations of questions of fact are not appeal-able. Only
questions of law or procedure which led the jury to make a wrong decision.
1. Appellate courts do not retry the case. They just try the trial court, no witnesses
and maybe a small amount of talking by the lawyers.
1. You cannot appeal the jury decision. You have to appeal different things.
Should have granted a motion or allowed certain things. Didnt sustain
objections or changes jury instructions. These changed the outcome of
the case.
2. You want the higher court to reverse the decision. You may sometimes
have to remand it back to a lower court.
The appellate court has the authority to change the law more than the trial court does,
therefore appeals that are presidential in nature are usually allowed?
The next motion is a motion for the new trial. This motion can be appealed by the other
side that won the ruling. The motion for a new trial involves the live witnesses and the whole
trial being run again.
An appellate court can remand a trial back down to the trial court if a motion for
summary judgment or something like that is being appealed. If a verdict is being appealed,
the appellate court can reverse the verdict, remand the case, affirm the verdict, etc.
III.
MOTIONS:
Motion to Dismiss:
Discovery: This is the stage in the litigation where there is a pre-trial exchange of
information.
o
Interrogatories: Written questions served on the opposing party to which a
written response is required to be produced by that party with the aid of a lawyer.
o
Depositions: Oral Examinations of witness and parties conducted by the
opposing party before a court reporter.
o
Production of Documents: Relating to the opposing party, witness, the event
itself, insurance coverage and related information.
Jury: The jury is picked through a question and answer session between the judge, attorney
and potential jurors known as voir dire.
Trial:
o
After the opening statement, there is a direct examination and a cross
examination. If anything is done in a manner which violated the rules of evidence, the
opposing lawyer can object. After this, the plaintiff rests.
o
This is when only the defendant can motion for a directed verdict, saying that
even if the court accepts the evidence as the plaintiff has presented, it must still direct
a verdict for the defendant as a matter of law because in light of the proof, no rational
jury could render a verdict for the plaintiff. This can happen before the defendant even
presents, and the case is taken away from the jury.
o
To establish a prima facie case, the plaintiff's lawyer must present evidence
which tends to prove the facts as alleged by the plaintiff. A prima facie case is, on the
face of it, sufficient to establish whatever you seek to prove.
o
On motion for summary judgment, the judge could reserve judgment, sending
the claim to the jury along with the rest of the case, but the judge has 'reserved' the
right to change his mind after the jury deliberations.
o
After the defendant's case, both parties can move for a directed verdict. The
plaintiff would argue that the defendant's version of the events if no defense.
Judge's 'Charge':
o
The judge issues instructions to the jury which states the law which the jury will
apply in reaching its ultimate conclusion.
o
Lawyers on both sides submit, before the closing arguments, proposed jury
instructions which present the law in a manner most favorable to their clients.
JNOV:
o
The defendant can renew his motion for judgment after trial. The judge can
choose to take the claim away from the jury and direct the entry of a judgment for
the defendant.
Appeal:
o
Appeals can only be based on errors that the trial court committed with regards to
questions of law. The fact finding of the jury cannot be questioned.
The trial court needs to have committed a reversible error because of which the
appellant has experienced some prejudice.
IV.
Kelly v. Gwinell
This case questions the possible tort liability of a social host who serves his or
her adult guest alcoholic beverages beyond the point of visible intoxication while
knowing that his or her guest will drive shortly after consumption, in a situation
where the guest inflicts personal injuries on a third parties.
The Zaks were granted a motion for summary judgment by the trial court. The
Appellate Division confirmed this. The Supreme Court of New Jersey reversed
and remanded this decision.
HOLDING - A social host is responsible for the actions of his or her guest if the
guest inflicts personal injuries upon a third party if the host serves alcohol to the
guest while the guest is visibly intoxicated and the host is aware of the fact that
the guest will be driving shortly after consuming alcoholic beverages. There was
no precedent in most other jurisdictions that did not address an issue similar to
this. Previous cases only applied to negligence on the part of a licensee.
Conventional negligence law does not apply to social hosts, an oversight that the
Court sought to correct. While the legislature could address this issue, the courts
are an equally viable means to remedy the dangers that drunk driving poses.
Justice Garibaldi dissented. He argues that the matter of deciding a social policy,
such as the dangers of drunk driving, should fall upon the legislatures and not the
courts.
Common Law Maxim - One must so use and enjoy his property as to interfere
with the comfort and safety of others as little as possible consistently with its
proper use.
In a case like this one always argues on the basis of law rather than fact in a case
like this. If one wins on the matter of the law then they can always file for a motion to
dismiss.
In this specific case, however, the judge dismisses on the notion of children not
knowing any better. The landlord actually has the knowledge to protect injury. The
Can a landowner be liable for a death occurring with a naturally occurring phenomenon
or body of water on his property?
Water is natural and ordinary, and its dangers are visible and obvious even if it is
dangerous. Here, the pond was open and apparent. This case is distinguished from
Barrett because the pond was natural. The defendant/landowner did not build it and had
no control over it. Landowners are under no duty to enclose or otherwise protect or
destroy naturally occurring bodies of water on their land to safeguard them against
injuring trespassers.
The exceptions to the general rule that landowners owe no duty to trespassers do not
apply in this case because a) bodies of water are natural dangers that are open and
obvious; and b) the turntable cases exception only applies where the defendant erected
the dangerous machinery on his property, not where the landowner had no control over
the situation.
For the court to hold the landowner responsible for the danger of naturally occurring
water on property would create an impossible burden on members of society to protect
all children. The responsibility for protecting children falls to their parents.
Very similar to the previous case. This was a naturally occurring pit that filled with water
but was decided in the same way as before. Still duty for the parents, Barrett remains the
only exception. Owner's liability depends on character of the dangerous and attractive
thing.
The courts sets a standard for gratings and others so that there are less exceptions
made to the rule.
This resulted from a petition for a rehearing en banc, which was denied.
Attractive Nuisance: Liability is based on:
o
Character of the thing
o
Comparative ease of preventing the danger without impairing the usefulness
o
Reasonableness and propriety of his conduct in the circumstances
Copfer v. Golden(1955)
One who maintains upon his property a condition or piece of machinery or
instrumentatlity which is dangerous to children of tender years by reason of their
inability to appreciate the peril therin, and which is realizes or should realize involves
an unreasonable risk of death or serious bodily harm to such children, and which he
knows is a place where tresspassing children are likely to resort or do resort, than
he is under a duty to exercise reasonable care to protect them against the dangers
of the agency.
Because property owner knew that children played on the machinery and because
he knew or should have known that materials and machines on that property would
present a danger to children of tender years who trespassed onto his property, and
who may not fully realize their danger, the trial court was warranted in calling the
duty of reasonable care into play.
'One who maintains upon his property a condition, instrumentality, machine or other
agency which is dangerous to children of tender years by reason of their inability to
appreciate the peril therein and which is one he knows or should know and which he
realizes or should realize involves an unreasonable risk of death or serious bodily harm to
such children'
A very similar case to Peters, except in this case its a pool. Pool was constructed
that it was hard to hold onto the sides of the pool. The boy and his companions were too
young to appreciate the dangers of playing on the diving board and pool.
The defendant filed for demurrer and it was granted. The plaintiff amends
three times. Copfer and Wilford are being litigated at the same time as this
case. This is very similar to Copfer because the junkyard is more like the
sand pile.
However the court states a sand pile is more like a body of water.
Shenk, Shauer, McComb, and Spence in the majority.
Court finds that a sand pile does not constitute an attractive nuisance
rule.
General demurrer to the complaint was sustained with no leave to amend, prompting
appeal.
From Coutrell it is up to a trier of fact to determine whether the child was injured by a
risk not obvious to her.
1.
2.
3.
4.
Contemplative Note:
Did the law take too long to form and result in too many deaths due in part to the unclear
laws?
Even if there were statutory laws, would people have acted on them unless they were
forced to by kids actually dying.
If there was a statute, you cant really point to it and expect your neighbor to follow it.
How do you enforce it without a violation?
The swimming pool common law evolved in 3 years. A statute probably wouldnt get
enacted any sooner.
A statute wouldnt really get enacted unless there were deaths and if these were
brought to the judicial level. Would the statute that was implemented (pg 225-226) really
have resolved the cases we went over or does the statute just look like ordinary negligence
law elements?
Wrap-Up of Case Series:
Emphasized precedent. Lends consistency and credibility to the system. Helps judges be
bound by rules so judges are bound by rules.
How binding should binding precedent be? Giving judges more active role in
distinguishing and disapproving precedents might make sense in evolving the law and doing
away with bad law, but might also make the system less consistent.
Most important thing is to see what a prior court said on the issue, not just what it did.
Chapter 3:
o
Rules of relevance: identifying rules of precedents. Relevance depends on how we
characterize the facts in the prior cases. What makes Barrett the precedent for Peters and
Peters the precedent for Knight.
V.
STATUTES:
On the other hand, a statute can cover a broad range of hypothetical which need not
have been adjudicated on and need not be confined to one class of cases.
VI.
1.
a.
o
o
o
o
b.
o
Traditional Intentionalism:
The intent of the statute is the law. Courts should 'advance the will of Congress'.
The 5 cases in chapter 5 purported to carry out the will of congress through
legislative intent, disagreeing only over what the intent was and how to determine it.
Intentionalism attempts to curb judicial policy making.
Sources of Statutory interpretation: legislative history, reports of congress,
language, structure, etc: gives judges a better handle on intent.
Doubts about legislative intent:
Fictional Intent: This is a theory advanced by legal realists who attacked the
idea that judges are apolitical and a legislature with multiple people can have a single
intent.
An example of this is in Deem where the court could not have thought
about murderous devisees taking under the 'statute of descents'.
Public Choice Theory:
Strategic choices and logrolling: 'you vote for my bill I'll vote for
yours' is more of an influence than any sincere pursuit of sound policy or
the public interest.
These theories view the judiciary as a subordinate to the policymaking authority of the
legislature, but move away from the preocupation with 'legislative intent'
Broadening Intentionalism: The court might still defer to legislative authority by
Imaginative Reconstruction:
Put yourself in the legislator's shoes and decide how they would
have wanted the statute applied to the case.
Posner says (For step 1): The judge's role is not to keep a
statute up to date in the sense of making it reflect contemporary values but
to imagine as best be can how the legislators who enacted the statute
would have wanted it applied to situations they did not foresee.
Attribution of Purpose:
Narrowing Intentionalism:
Textualism:
As Scalia has said, the court's task is 'not to enter the minds of
the members of congress- who have nothing in mind in order for their votes
to be both lawful and effective- but rather to give fair and reasonable
meaning to the text of the United States Code'.
Beady Eyes:
Under the Public Choice Theory a statute had no intent, only and
outcome and a court's duty is to respect that stopping point.
Statutory Interpretation should be a creative act. This concept says that judges
can advance progressive social policy without imposing their own values onto
statutes.
The court in Riggs used this approach. It refused to be bound by a literal reading
of the text. It invoked what is reasonable and the claim that all statutes can be
controlled in the application by maxims of the common law.
Professor William Eskridge's description of dynamic statutory interpretation.
As the societal, legal and constitutional context of the statute changes, its
interpretation changes. It involves the reconciliation of the 3 perspectives:
VII.
Church of the Holy Trinity v. United States 143 U.S 457 (1892)
Statement:
This is an appeal by Church of the Holy Trinity to the Supreme Court over the
interpretation of a statute that stood in the way of them paying for and bringing a pastor
from England to the US.
Facts:
The Church of the Holy Trinity was a corporation incorporated as a religious society and
made a contract with Warren from England to come to NYC as a pastor. He did so.
The state says that this contract was forbidden by an 1885 statute.
The statute says that no one is to prepay for transportation or encourage the immigration
of foreigners into the US to perform labor or service of any kind under a contract
decided before them immigrate.
Procedural History and Outcome:
The US claimed that the contract was forbidden under the statute. ?
Customs office through the Solicitor General
Issue (Questions Presented):
Whether a contract signed with a religious pastor to assist with his immigration to the US
is prohibited by a statute that forbids such assistance to foreigners coming to the US to
perform 'labor or services of any kind'.
Holding:
No. The statute is interpreted to only cover assistance to manual laborers and not white
collar workers.
Reasoning:
Precedents:
o
US v. Kirby: The sheriff wasn't found to be obstructing the mail by arresting a
mail carrier who had been indicted for murder.
o
Bolognian Law: The surgeon who opened the vein of someone who had a fit in
the streets was not found guilty of 'drawing blood on the streets'.
1.
2.
3.
4.
Statute of 1st Edward II: Prisoner not guilty of prison break when fleeing a prison
fire.
Court uses different aspects of the statute to interpret it:
1
The Title of the act: ' under contract or agreement to perform labor'. The
court says that in this case the common understanding of the word 'labor' as work
being performed by a manual laborer is what Congress meant.
2
The Wrong being remedied: This requires looking at the historical context and
the situation as it existed. Court reads an excerpt from US v. Craig which shows that is
had become practice for capitalists to ship in large numbers of ignorant and servile
foreigner laborers. The act was enacted to enhance the quality of immigrants and
prevent the importation of immigrants who didn't have the necessary means to pay
their own passage.
3
In this case, the court also had access to the 'Report of the Committee of the
House' which recommended the passage of the bill. This recommendation states that
the phrase 'labor and service' should be replaced with 'manual labor' which, while
recommended to help in passage, shows the intent of the bill. It also describes that the
bill is to prohibit the importation of low-wage manual laborers.
Religious Considerations: Justice Brewer cites numerous examples of how this country
was founded on religious lines. He says no legislation can go against religion.
Blair seems receptive of Morgan's argument that the bill is too broad and he says that it
could be amended that if there.
The bill does get amended to include artists, which seems to go against Brewer's
argument.
It's hard to use legislative history in a meaningful way.
iii.
iv.
4.
5.
6.
1.
We see every possible approach taken in this one case. Is it a legitimate exercise of
statutory interpretation when only one of the sources (title/legislative history/etc) doesn't
support the conclusion. On the other hand, is looking at the big picture like this the only
legitimate way of statutory interpretation
Filmore (1910):
Man who was indicted and convicted of killing his wife cannot collect on the Life
Insurance even though the statute of descents doesn't specifically prohibit it.
Reading into statutory silence: Since the statute doesn't specifically cover it, we revert
to a common law question and perhaps a question of legislative and judicial intent.
Common Law Maxim: One should not profit from one's wrong.
Deem (1892):
Let the lending companies take on Elmer's mortgage of his mother's house even
though he had killed her- he still inherited under the statute of descents.
Reading into statutory silence: When the legislature speaks in clear terms the courts
remain silent 'index animi sermo': language determines intent.
Possible notion of him not being punished twice: he was already hanged.
Riggs ( 1889):
Grandson who poisons grandfather does not take under the will.
'It could not have been the enacting legislatures intent'
Reading into statutory silence: They assume that the legislature was silent because
they just didn't think about a situation like this.
The case has a heavy dose of Posner's approach to legislative imaginative
reconstruction.
Wadsworth (1970):
Man who pled guilty to and is convicted of 'voluntary manslaughter' in killing his wife is
entitled to take under the slayer statute that only prohibits him taking if it was 1st or 2nd
degree murder.
The statute was later changed, but it was only proactive not retroactive.
Shrader (1985):
Man who has NOT been convicted of killing his wife in a criminal court is still barred
from collecting because the civil court, acting as fact finder, decided he did it.
"A statute should not be construed to impair pre-existing law in the absence of an
explicit legislative statement to the contrary. "
o
Issues:
1
Covered by Statute? No, since the Statute only cover those who are
'guilty' and he hasn't been convicted in a criminal court.
Barred by Common Law? Yes. Under the Filmore precedent which bars
someone who has intentionally and feloniously killed someone from taking.
3
Killer's Identity established by Civil Court? Yes, because the common
law rule 'one cannot profit from one's wrong' is a civil concept, the civil courts
are the proper forum to determine the identity of one who has intentionally and
feloniously caused the death of another.
2
IX.
For all statutory interpretation, start with a careful reading of the text.
Backpay:
Under 44940 (b) the possession and use of cocaine is an optional leave of absence
offense.
He could post a bond if he wants to, it covers
1.
Must look at each offense individually to see if the 924 (c) applies to it.
The Larceny:
a.
Was the gun 'used' in the theft of the gun? The statute says nothing about him
needing to have used it to shoot someone.
b.
Definition of a 'crime of violence' in section (3) A and B. Does it apply to larceny?
When you take a firearm, there is a substantial risk that it will be used, which under
3B is a 'substantial risk' of physical force against someone else while the crime is
being committed.
2.
3.
4.
5.
c.
Should he be able to prove that the gun was not loaded?
The Robbery Conviction for the mugging of the soldier:
a.
He did not actually display the gun. For all practical purposes was he an unarmed
mugger?
The 'assault': This is definitely 'using' the gun. Is this a crime of violence? By the
definition in section 3, it appears to be? Congress didn't want 924 to be applied for gun
crimes that were not crimes of violence.
Sale of a Controlled Substance: He never mentions the gun during the drug deal, so was
he 'using' it?
Possession with intent to distribute:
X.
CANONS OF CONSTRUCTION:
TYPE OF CANONS:
1.
Linguistic Canons:
a.
These reflect basic rules of grammar and construction.
b.
They help identify legislative intent and help the courts in their roles as agents of
the legislature.
2.
3.
Expressio Unius est exlusio alterius: Expression of one thing means the exclusion of
the other. Holy Trinity seemed to go against this by saying that though the statute had
mentioned some exceptions, ministers were still included.
a.
When a legislature expressly provides some information it creates a setting
where other information of the same type is expected to be conveyed. The
legislature is obviously capable of stating other areas in which the statute applies.
4.
Substantive Canons:
These involve two problematic steps:
(1) The premise that the statute is ambiguous enough to need to resort to the
application of a substantive canons, and
(2) The locations from which the court finds the substantive canon.
Eg: The 'clear statement rule' which is a strong presumption that Congress has or
hasn't done something.
Facts:
The statutes does not apply to an 'appointee on the policymaking level'
The governor contends that this includes judges since they are appointed by an elected
official and they make policy, therefore they are 'appointees on the policymaking level'.
The judge claims that judges merely resolve factual disputes and decide questions of
law.
Issue:
Whether a judge is an 'appointee on the policymaking level' for the purposes of a statute
that doesn't apply to such people.
Holding:
Yes.
Reasoning:
Court decides that it must be 'plain to anyone reading the act that it covers judges'. It is
not plain to see, therefore it does not cover judges.
'Appointees on the policymaking level' is sufficiently broad that it would include state
judges. Therefore, they are excluded from the statute.
Dissent:
This ruling imposes a 'plain statement' requirement on Congress. The plain statement
approach has never been extended this far and it is odd that it is being extended that far
now.
Congress has specified that 'individuals employed by any employer' are exempt, unless
they are expressly excluded. However, the majority opinion seems to require them to be
expressly included instead of it being sufficient that they are not specifically or clearly
excluded.
Substantive Canons are different because they are promoting policy preferences rather than act
as neutral guides to legislative meaning.
Justice O'Connor was an advocate of state's rights.
The court finds that the provision is unclear. We see an application of the clear statement rule.
Therefore, it is pretty much enough for the court to just say that the statute is 'unclear'. Holy
Trinity was a kind of application of the clear statement rule. Brewer wasn't going to read that the
statute excluded ministers without a clear statement to that effect.
The Clear Statement Rule is derived from the Tenth Amendment. The constitutional source
lends it legitimacy.
If it had been semi-clearly stated, why should the principle of federalism, as promoted by
O'Connor, trump legislative supremacy.
The clear statement rule makes Congress' job harder. The rule is either superfluous since it
confirms a result that would have been true anyway or its just wrong because it cannot be
practically implemented in a statue.
Watered-down version of the absurdity rule. (Cross Reference This).
REVIEW: How common law deals with ambiguous statute and what sources are available
How legitimate are these approaches to statutory interpretation?
How qualified as judges to find and employ the sources that are required to engage
As advocates dealing with statutory cases arguing that a statue does or doesnt apply, how to do
we approach or apply those arguments to courts? What is the advocate's role and how do we
apply those arguments?
Facts:
Guy made false material declarations before a grand jury then reappeared and said they
were false.
He is being prosecuted under a statute that says that he would be exempt is 'the
declaration has not substantially affected the proceeding or is has become manifest that
such falsity has been or will be exposed'.
Principle of Strict Construction: A federal criminal statute must be contructed so
narrowly in order to only encompass what congress seeks to criminalize.
Procedural History and Outcome:
Question:
Whether a man is guilty of perjury even is he fulfills only one clause of an 'or' construction in
a statute.
Holding:
Yes
Reasoning:
Legislative Intent takes priority over statutory language. A court must construe a federal
statute so as to give effect to the intent of Congress.
Since Congress intended for this man to be guilty, the 'or' is considered a conjunctive.
Read
Interpret
Cite to the state for language you're basing your argument off of.
Start with the text. Dont just straight to intent. The problem will become clear through
focusing on the test. Cite a quote from the statutory provisions.
She doesn't need to treatise on what approach you'd be using. Just mention what
approach you are using in each part: 'an intentionalist would say'. Use as many
approaches as you can and as many as the statute can bear. Even if the approached
don't support what you're trying to say.