legal writing: march 30 2010 class notes.

briefs. 

current events, such as the bombings in russia, change the framing of the issues... last week, we would have probably written this argument very differently!

issue statement: try to create a framework that tells the court "what's happening? where are we going?" reference the 4th amendment!
picks and frames and describes facts with a careful eye to the persuasive effect

statement of facts:
1. bring in facts about the mass transit system
from reyes' point of view, the scale of the transit system is important to make the point that this program was not effective because it was conducted in the wrong place, etc. 

defined term: is it to our advantage to use them or not?
*** do not use them in the issue statement! it creates clutter

the search officers. for reyes', call them "officers"
dog -- call it a "dog" because it sounds a lot less formal and scientific

avoid statements that are sarcastic (such as "the drug-sniffing dog was a ruse)
avoid any "purple prose" that proses or praises or incorrectly trumps our constitutional rights: the court is aware of these things and is really just interested in what the case law on this matter will permit.

oral argument. you gotta know which case did what.
dog is a limit to the search. since the explosives are so hard to find, the amount of search that you would have to do on everyone that someone sniffed/barked at then
there is case law holding that much longer cases have been upheld.
they may hold you longer at the airport if you pass through a magnometer at the airport
, but the difference is that there are no heightened steps for scrutiny.
we can't question the means used by the government
REYES: the dog is searching continuously, and thereby the officers are using their discretion in who they want to search how. the search is no longer non-discretionary
is this kind of discretion overly intrusive?
why don't we want officers to be able to use discretion? because it is prejudicial and discriminatory
if the dog is exercising discretion, is this the same issue?

why is notice important?
is notice as important as it used to be?

notice:
the notice was not reasonable. use edwards, mc wade,
notice should have been enough to reasonably notify persons who regularly take public transportation that these searches would begin and they would need to make different travel arrangements?
rely on a combination of common sense and case law arguments to support your side: collect the cases that show greater notice, and then be prepared to show cases where there was equal/less notice where notice was deemed to be sufficient.
temporary flyers only: no audio, no big signs, no other methods for disseminating the information.
ambiguity of the search: a conflict to the messages of the program (one says take another method, one says it's voluntary. and so you argue that this is then not sufficient because it's not at all clear)

the court will be troubled with both side's needs. be ready to think through

e.g. in support of propositions of law. for example, factors courts look... "courts look at sufficiency of notice etc. DON'T USE E.G. because what you're communicating is that this is an established point of law and this is a case that cites it.

use e.g. if the message is "courts have done this all the time"
don't use e.g. if it's "this is the law"
if at the beginning: E.g.... if using See, e.g. (lower case)....
See id (lower case after see)

con law: march 30 2010 class notes

us railroad v. fritz.
1. current and 25 years
2. 25+ years
3. less than 25 years

analysis:
if this is to be something other than just "no review" then it should matter what congress is up to when they did the review/ enacted the act. the reasoning is of a pattern in sorts: rational basis review is pretty low and generalized in this case. when congress enacted this

plyer v. doe
there are immigrant kids who are denied funding for public education in TX.
the classes status is that they're illegal immigrants.
seems morally troubling for the state to hammer these kids for the sins of the father. to allow the gov't to do something cruel for rational basis doesn't seem right. additionally, education, though not a fundamental right, is mentioned in the 14th amd't and it is historically and traditionally a factor of our ideas of equality.... education is an american sorting system.

is this in furtherance of the federal gov't policies? absolutely not - in fact, the gov't gives special statuses to kids brought over as illegal immigrants

TX says "we're saving money". US says "keeping the kids out of the classroom does cost less to educate but eventually will cost more to have adults who are illiterate."


romer v. evans

washington v. davis

all of this is about rational basis review. at the end you can point to certain "blips" but until there is a new kind of review created, that is not as severe as strict scrutiny.

con law: march 29 2010 class notes

in UT, a man and woman can gain a marriage license but a man and man cannot. 
advocate for these clients, through DPC. 

property interest?
liberty interest? strict scrutiny. the state interest to prevent this would be

(1) naked
(2) bedroom
(3) justice of the peace

criminalizing is the same issue as not allowing marriage license. advocate for this.

1. there is no right to homosexual marriage or explicit right to privacy to this right under the 14th amendment.... don't forget to say the basic, obvious things to a trial judge: there is no doctrine at this point, and so why should we stretch the doctrine now? 
2. arguments on the gov't side: rational relationships (lawrence v. texas); historical basis (glucksberg); traditional values; interests in procreation of future citizens (increase the taxpayer base);

$$ to race: a step row of classifications... which are subject to strict scrutiny?

step 1. rational basis (economics)
step 2. intermediate scrutiny ("quasi-suspect" classes, mainly gender)
step 3. strict scrutiny ("suspect" classes, like race and alienage - FRs)

what's rational basis for the demise of econ claims (lochner)?

usda v. moreno
company wants to sell advertising on the side of the truck. nyc says that they don't want that for safety reasons, etc.
court has a self-restraint assumption on the truck owners.
justice black in his opinion is writing in the quality of a dissent: the court won't read in an economic right in regards to post-lochner. but this law is under-inclusive.
justice jackson says that EPC is all or nothing: the EPC does not have a problem of disabling/precluding the gov't the way that DPC does.
what does the EPC do? for a successful EPC claim, the court will just ensure that the gov't is regulating in the correct way.... in this case, don't under-include, just reform the statute so that it regulates more fairly.

usrr v. fritz
union self-protection scam that congress is not aware of until the legislation is passed.
the plaintiff's say that the inbalance denies them equal protection.
moving from actual to theoretical motivation: congress may have wanted to ensure that people who really applied themselves to the railroad profession are compensated, as opposed to people whose lives brought them through some railroad employment at some time.

crim law: march 29 2010 class notes

facts matter. this is not traviata, per se...

forcible rape. 

nypl 130.05 sex offenses; lack of consent
1. whether or not specifically stated, it is an element of every offense defined in this article hat the sexual act was committed without consent of the victim.
2. lack of consent (n.b. - term of art) results from:
(a) forcible compulsion; or
(b) incapacity to consent; or

nypl 130.00 sex offenses; definitions of terms
8. "forcible compulsion" means to compel be either:
(a) use of physical force; or
(b) a threat, express or implied, which places a person in fear of immediate death or physical injury....

nypl 130.35: rape in the 1st degree. a person is guilt of rape in the first degree when s/he engages in sexual intercourse with another person:
1. by forcible compulsion;

berkowitz.
backrub? NO
bed? NO; floor
pushed, straddled, kissed.... I GOTTA GO
fondled... NO
attempted oral sex.... NO (anyone who's ever fed a baby knows the universal NO symbol)
locks door, and D says that it was for privacy; the ct did not characterize this as a threat to P
"puts" P on the bed, D straddles and and undresses P

18 Pa. C.S.A. s. 3121 (at this time) requires and doesn't require resistance, but does require "forcible compulsion". and the forcible compulsion must be by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution

common social conduct.
is this non/violent social conduct (for a rape it must be considered violent): is it good or bad social conduct, and should it be criminalized?

utilitarian argument: harm

to what extent should the law shape social norms?

crim law: march 26 2010 class notes

forcible rape.
1. sex
2. by force
3. without consent.

rape is a reeeeeeeally serious crime.

we will be discussing doctrinal changes and procedural changes

state v. alston.
the question is whether or not the facts meet the requirements of the crime.
there's a lot of unclarity about the consensual nature of their prior relationship.
brown moves out, and alston comes to her school and threatens him to come with him.
alston says that brown's mother is the problem, and that she has to have sex with him or he will "fix her face"
they went to his friend's house.
alston asks "are you ready" and brown says "no"
brown lays on the bed, alston pushes her legs apart and they have sex.

is that rape?
where there has been consensual sex in the past, we have to have something affirmative to show that there was no consent. that is difficult at this point
how do we establish force?
1. grabs arm
2. afraid
3. "fix her face" (control)
4. brown didn't feel like she could leave the house
5. he asked if she's ready, and she says "no"
6. pushed legs apart

not a lot of force, but no consent.
alston won because there wasn't enough physical evidence of force.

what about points 4 - 6?

time number 2:
1. alston says, "let me in" brown says no
2. alston says i'll kick in the door, brown says no
3. alston kisses and brown resists
4. alston picks her up and puts her on the bed
5. brown says yes

see note #6.
if brown is enough force to make non-consensual sex rape, then almost all relationships would be rape.

rusk v. state.
eddie rusk told the victim "come up" and she said no.
he took her keys and she said she was scared.
they are alone in the apartment and she doesn't leave.
the victim cries, and says if i give you a bj will you please not kill me
victim is afraid
rusk puts his hands around the victim's neck

rule under hazel v. state is that force is an essential element and the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.

resistance requirement: did the victim resist?
hands on throat and look in the eyes that victim was afraid of = Q for the jury

the court distinguishes that "she must follow the natural insticut of every proud female to resist, by more than mere words, the violation of her person... she must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. she must resist unless the defendant has objectively maifested his intent to use physical force to accomplish his purpose... in the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, i find it difficult to understand how a victim could participate in these secual activiites and not be willing.

objective standard: threats must have a reasonable response.
was the victim's responses to the physical contact a reasonable resistance?

what about the mens rea? what does it matter that rusk's mentality was not to rape her?

we want to encourage people to not have uncertain sex. however, whether or not we should punish someone for not doing that is a different

should we deter creepiness?
should we punish rusk's behavior with a five-year term?
does no sometimes mean yes?

property law: march 25 2010 class notes.

implied warrranty of habitability. 

hilder v. st. peter.
NY RPL 235-b

the conditions were heinous. but not heinous enough for the tenants to leave.
all of the issues were brought to the landlord's attention. why didn't she just leave considering the deplorable conditions? we just talked about a case on tuesday where the conditions were so grave that they were rendered unfit for use and she would have been released if vacating.

what is the tenant seeking?

expectation damages: the difference between what the tenant paid and what the tenant got... do we go through each condition the landlord promised? if there's a breach of contract there must be a contractual duty. what is the duty here? the landlord covenanted to an implied warranty of habitability.

caveat lessee: why does the court abandon this doctrine? because we are in an urban rather than an agrian culture. why does this matter? because in modern society, we would expect for there to be a disparity in the capabilities of the landlord and lessee in the maintenance of a property:

the landlord is in a better position to fix the property because he has a reversion interest; because

but the cost of the property is almost nill... in part because the place is a shithole. if the landlord makes the improvements, he may have to raise the rent. is this ok? we think that it's ok to make the improvements so long as (a) the housing is still affordable, (b) the improvements are made and (c) the landlord is making a profit.

why is constructive eviction not applicable here? the family probably doesn't have another place to go.

"fit for human habitation" = safety and health of the tenant

this is very different from restee, because these types of conditions and defects of fitness can't be waived.


how do we know what is fitness for habitation and what will qualify for safety? building codes, which present what is/not fit for habitability. the court should inquire what is the safety or health of the tenants: it is a context-dependent standard (for example, a lightbulb going out is not necessarily a

for the doctrine to apply, the tenant must put the landlord on notice that the potential breach exists and give the landlord a reasonable opportunity to . if the landlord does not fix the problem, the there is a contractual relationship between the parties for which the landlord would be liable to the tenant for damages.

the damages may be remedied by allowing the tenant to COMPLETELY withhold rent, and the tenant does not have to vacate during this period and the tenant does not have to prorate the rent during this period.... this is a difference from restee: under constructive eviction, the tenant had to vacate but here the tenant can remain in possession and not pay rent. why? to empower tenants and place the risk on the landlord! why do we do this in residential situations? to keep the residential market safe, sanitary and comfortable in urban environment.

the tenant can also have the repairs made herself and then deduct the cost of repairs from her rent.

problem. 

a property $1000/month has a problem that makes the value of the property $800. the tenant sets up a defense that the landlord breached the warrant of habitability. does this mean that the landlord cannot recover anything from the tenant? NO -- the ability to withhold rent is not a release from liability, such as in constructive eviction. it is instead an obligation but the tenant can withhold rent as a procedural tool for enforcing its rights.

retaliatory eviction. 
NY RPL 223-b
forbidden landlord actions: acts that might substantially alter the terms of the tenancy
such as refusal to continue or renew a lease considering a term of years lease, 
and other retaliatory alterations of terms

remedies can be injunctive relief or damages. 

how do we prove retaliatory effect? if it's not retaliatory it's not wrongful. there is a statutory presumption under 223-b(5) that certain actions (serving notice to quit, ending tenancy, or taking to court) taken within six months will be considered proof of retaliatory eviction unless the landlord can in good faith show that he took these actions.

... basically, just read and understand this statute.

tenant's duties.
waste: tenants may not use the land in a way that will permanently destroy/ disrupt use of the land. the tenant will exercise ordinary care to use of the property, and not do any damage beyond ordinary wear and tear.
fixtures and improvements.
duty to repair. who has the duty to conduct needed repairs during a lease? implied warranty of habitability for residential properties. with respect to commercial properties, the parties are generally still free to contract for this and absent any allocations, the commercial tenant has the responsibility to keep the property in good care.
destruction of premises. if there's an act of god, or a fire/ flood, etc... where the tenant isn't at fault then the tenant may surrender and terminate the lease and the landlord must accept unless the parties agree otherwise, which the parties are free to do.

conveyancing: p. 451-463, 479-484, 513-521

legal writing: march 24 2010 class notes.

"reading as an adversary"

pronouns, modifiers, punctuation.

ex. 27.3-A: s/v agreement.
1. all of the justices were in favor of reviewing the case.
    all of the members of the court were in favor of reviewing the case.
    all of the court was in favor of reviewing the case.

2. there were no further unexecuted acts to be performed by the landlord.
    this sentence is passive and the subject is weak. 

3. the finch case, as well as the nellington case, is distinguishable from sullivan's situation.

4. not at issue in this case are those parts of section 16-6-2 criminalizing sodomy by force.
    we would find this type of sentence in the introductory section of the memo/brief.     

5. a majority of the panel has found that smith possessed sufficient standing to pursue the action.
   
6. all of the evidence in this case is circumstantial.

7. the respondent, in seeking declaratory and injunctive relief, claims that the statute violates his right to privacy under the first, third, fourth, fifth, ninth and fourteenth amendments to the constitution.

8. your problem is seven employees who want a cost of living adjustment added to their retirement benefits.

9. "known and unknown, foreseen and unforeseen bodily and personal injuries" was added to the updated version of the medical release form.

in legal writing we are usually writing about individuals. but more often we are writing about institutions (new arcadia, 9th circuit), and about corporations/ business entities. these figures are collective and act as a single unit. additionally, in the generic antecedent (a person who files a tax return...), the modern solution in lay, spoken english is to say "they/their" but we don't do that in legal writing...

exercise 27.4: pronoun agreement
1. the appellate court upheald the trial court's verdict, stating that they found no manifest abuse of discretion.
2. under cross-examination, a witness may suddenly realize that his or her earlier testimony was inaccurate.
3. someone who makes an obscene telephone call is unlikely to use his or her real name.
10. in snowadzki, the IRS successfully argued that it had nothing to do with where or how the records were going to be created.

exercise 27.5-A: ambiguous pronouns.
1. howard davis claims that the apartment manager yelled, "stop!" but never made an effort to interfere.
10. clyde reeves and his son, daryl, were both injured in two automobile accidents that occured within two months of each other. the first accident occurred on october 8, 2003, when clyde was injured in a rear-end collision with a vehicle driven by melvin made. clyde immediately received medical care for the injuries from dr. santino, his family physician. later, clyde was still involved

write a sentence that's clear and then a sentence that uses "this" to summarize:

the rain in spain stays mainly in the plains. this is a good rhyme, which makes me happy. 

exercise 27.6-B: misplaced modifiers
1. the deputy marshal testified on march 12, 2004, that a copy of the complaint was served on the defendant at his chicago residence.

dangling modifiers: modify thoughts in the writers head, but not on paper.
1. in order to answer this question, the rule that governs service of process must be examined.

commas.
use a comma for anything that is supplementary to the main sentence, and without which the sentence would still make sense.

phrases:
the white house, well for its hospitality, is hosting a dinner for ambassadors.
well known for its hospitality, the white house is hosting a dinner for ambassadors.
the white house is hosting a dinner for ambassadors, where really tasty food will be served.

coordinating conjunctions of the caribbean (FAB SOY)
we searched for treasure; we searched high and low.
we would find the treasure, or we would die trying.
we found no gold, but we found silver.
it wasn't much, yet it weighed a ton.
we hauled it to our ship, for we were worried that others would take it.
we had found what we came for, so we sailed away.

green gables is the house i grew up in, and green gables is old.
i grew up at green gables, but it is not where i currently live.
i decided to stay in green gables, or i would move to manhattan. 
i love manhattan, and yet, sometimes i miss green gables.

property law: march 23 2010 class notes.

does a landlord have an affirmative duty to mitigate damages towards rent due under a lease?

what is the scope of the duty to mitigate the damages?

what are the consequences if the landlord fails to meet his duty to mitigate?
the landlord is barred from recovery if he doesn't use reasonably diligent efforts to try to mitigate the damages

is there anything the tenant can do to mitigate damages?
he can find a new tenant

where the tenant abandons, the landlord has a duty to try to find a new tenant. the landlord has the burden of proving that he was reasonably diligent in trying to find a substitute tenant (this is *opposite* the common burden in contract law: because the landlord is in the best position to prove he tried to mitigate the damages) 
the landlord must prove that he treated the rental as he did any other vacant stock, even if they didn't prove effective. 

holy properties v. kenneth cole 
kenneth cole vacated on a 10 year lease, and the landlord brought him to court after 7 years vacancy. 
the court says that there's no duty to mitigate in NYS. 
the issue is whether, on these facts, the landlord had a duty to mitigate its damages after the tenant's abandonment of the premises and subsequent eviction. 


what can the landlord do? (i) the landlord can continue to sit on the property, (ii) he can accept the tenant's surrender and mitigate the damages, or (iii) put the tenant on notice that he is not released, but to take possession to try to relet for the tenant's benefit.
what does it mean to be "for the tenant's benefit?" any rent coming in will be to mitigate the abandoning tenant's damages -- it will pay off expenses that the original breach caused, and any new wins will be in mitigation of the damages.
why would the landlord select option (ii)? because the value of the property has increased (for the benefit of the landlord option)

there is no penalty to the landlord for not choosing one option over the other, whereas there would have been in sommer v. kridel (NJS law)... why is there no duty to mitigate in NYS where as there is in NJS?

maybe the correct rule is not a sufficient reason to adopt the rule. historically, there was no duty to mitigate in the event of a breach by a tenant. this is a modern trend, rising from idea of lease as a contract rather than transfer of interest in property. however, lots of people in NYS have been planning their affairs in reliance of the old rule. changing the rule would upset all of those expectations and business transactions: that would not be good.

why couldn't the court just say that the law should change moving forward? that would be a legislative approach, and the court only has the power to adjudicate on this issue before them.

rios v. carrillo
as of 2008, the courts read that there is no duty to mitigate for a residential landlord, unless the lease says otherwise.
how do we handle this argument?

covenant of quiet enjoyment and the doctrine of constructive eviction. leases are mutually dependent on these principles: if the lease does not meet these requirements, then the agreement may be nullifed.

reste realty v. cooper
effects on the property that will influence how the tenant may use the property...

when it rains, it is really hard to use the space for meetings with clients, etc. the landlord argued that the tenant signed away her rights of quiet enjoyment, and that the rain does not make a permanent uninhabitable problem interfering with her use of the land: the way that the tenant entered the lease, with the issues of the water entering the property.

when the landlord constructively evicts: any act or omission of the landlord which renders the property substandard of the lease agreement or

one off problem that happens a day or two is possibly not enough to create a disruption to the covenant of quiet enjoyment. but if it regularly happens, then it will likely be considered a disruption.

the landlord argues that the tenant remained longer than reasonable.

let's say the landlord had made a promise to fix the leak and did not, but that the water was just a nuissance. would the landlord have breached the convenant of quiet enjoyment?

considering the doctrine of consideration... what is the tenant's injury?

problems.
see note 1 on 427. the value of the expectation of the promise would be due to the tenant. however, the lease is independent of that promise. most
problems.

partial constructive eviction.

in most jurisdictions you must vacate. but you don't have to in NYS. this problem is acute in residential leases, particularly for low-income housing.

implied warranty of habitability:
see hilder v. st. peter
NY RPL 235-b

retaliatory eviction: NY RPL 223-b

tenant's duties:

• the doctrine of waste
• duty to repair

crim law: march 22 2010 class notes

• depraved
• intent to kill - heat of passion
• intent to inflict grevious bodily harm
• reckless
• negligent

depraved heart... abandoned heart...

is "depravity" a mental state? this question has plagued the NYS courts for years.


NYPL 125.25 (2):
- under circumstances evincing a depraved indifference to human life, (?? - 
          is this circumstance element of actus reus or is this mens rea?)
- he recklessly (mens rea)
- engages in conduct which creates a grave risk of death to another person, (actus reus: conduct)
- and thereby causes the death of another person. (actus reus: result)

people v. register: D - while drunk - inexplicably shoots a friend
                             it's hard to prove recklessness when the act is very
                             removed from the result....
                             we can remove "while" drunk
                             see 15.05 = *can't say not reckless because you're drunk!*
                                                  but it is a defense to depraved indifference


people v. gomez: D drives at high rate of speed on a crowded sidewalk
                            jury picked murder

people v. france: D kills V while fleeing police in a stolen car at 4am
                            TOF found it to be reckless (manslaughter)

people v. sanchez: sudden point-blank shooting (claimed self-defense)
people v. suarez: D stabs girlfriend three times (claimed self-defense)

what's the defense? SD. which means that the defendant had intent. 
in both of these cases, the result was murder-2 (depraved indifference).
why? most likely compromise... 
"twin indictments": lawyers would plead both SD and depraved indifference
self-defense + depraved indifference = mutually exclusive!

currently, depraved indifference cannot be for one-on-one crimes, only for things where the defendant shows that his recklessness was aimed at a group or class but not at a specific person.

mental state.
one-on-one killings: (1) abandonment of a vulnerable victim to likely death under circumstances of "utter callousness to the victim's mortal plight"; or (2) brutal or prolonged course of conduct that "intensify or prolong a victim's suffering."

people v. feingold: D, attempting suicide, blew up the apt...

danger to the public: the court said that depraved indifference is a mental state. "utter disregard for the value of human life -- a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not."

the one-on-one definition is recklessness, the danger to the public mental state is depraved heart murder even without intent to kill.

these come down to subjective judgment: is the person who fires in a crowded bar as bad as the guy who points a gun and says i want *you* to die....




unintentional killings: unjustified risk-taking.... 

state v. williams.
14 day period: if the burden is on the prosecution to show when the williams were negligent, the best gauge is the smell from gangrene. this happens about day 4-5. the doctor says that at day 7, the kid could not have been saved.
does the williams' inaction during days 7-14 have any impact on the death? NO (it's like oxendine)
the prosecutor has to find the omission in day 1-7 + mental state required.

negligence in this case: "not what a reasonable person would do in the current situation."

at what point is it criminal to make the wrong call about the child's symptoms?

the parents didn't take the child because they were afraid of being wrongfully accused of mistreatment of their child.

utilitarian argument.
what behavior can we deter? we don't need a utilitarian issue for deterring behavior that's not deterrable cause there's already enough incentives for parents to take care of their kids
this punishment can send a message to parents to err on the side of caution.

felony murder.

the unlimited rule: "one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony."

in NYS, felony murder is murder - 2 (unintentional), along with depraved indifference

the mental state is the mental state of the felony.

the jury will decide.
1. dean simmons chases rich to steal his wallet. rich trips and dies. felony murder.
2. dean simmons is chasing rich down the street. rich trips and hits his head. he dies from the injury.
    we would ask "was dean simmons reckless? did he have depraved intent?
3. dean simmons picks rich's pocket. rich is looking for his pocket, falls on the track and gets hit by a
    train....

MPC doesn't really have felony murder because they think the rule is doctrinally consistent but not analytically valid.
utilitarian: we want to deter people from committing felonies.  is there a better/more direct way of stopping felonies? increase the penalty for felonies in the first place. what's the real motive? encourage careful felonies...

retributive: you want to blame somebody for the person who got killed. you don't have a lot of sympathy for a felon when you have a dead innocent, so the retributive desire is very powerful.

next class: limitations on felony murder...
(a) inherently dangerous felony
(b) independent felonious purpose

crim law: new schedule and exam info.

housekeeping
new schedule:

(homicide assignments #13/14)
M 3/22
W 3/24

(rape assignments #16/17/18)
F 3/26
M 3/28

no more friday classes.

(self-defense)
M 4/5
W 4/7
M 4/12

(insanity)
W 4/14

(attempt)
M 4/19
W 4/21

end of classes.

EXAM

exam is closed book but will have all MPC and NYPL. study with those in hand.

crim law: march 19 2010 class notes

common law: manslaughter has four elements
1. adequate provocation (matter of law)
2. done in the "heat of passion"
3. no time to cool off (fairly factual)
4. causal link

adequate provocation.
old common law                                                        
1. adultery                                          
2. mutual combat                                                  

3. serious assault

4. serious injury to a close relative              
5. unlawful arrest                                               

                                   modern common law
           D's passion must be reasonable given the provocation
                             OBJ                              SUB
              "reasonable to ordinary"   "reasonable for D"
                            words alone are not enough

                    
                   MPC manslaughter -
 EED (extreme emo disturbance, culpability)

  1. D acted under influence of EED (SUB)              

      2. for which there was a "reasonable 

      explanation or excuse," determined

  MPC has a more friendly "post-freudian"
         approach to D's decision making  
and words alone may satisfy provocation under MPC

NYS homicide laws
murder - 1                                 intent to kill, premeditated         grade A+
murder - 2                                 intent to kill, not premed            grade A
        ask at murder - 2 "is there a factor that would make this murder - 1, or is there a 
                                     mitigating factor that would make this man - 1 (such as EED)?"


unintentional killings.
if the D kills someone by accident:

the first thing to ask is "was the D acting with criminal negligence? was this a substantial risk, and should the D have known about that risk?" 

if so, criminally negligent homicide.

if not, then no crim neg, and ask "was the D reckless? was there a risk and did D know of the risk?" 

if yes, then manslaughter - 2.

then ask, "is this killing so bad, that it is as bad as murder? does it fall doctrinally under 'deprave indifference/ extreme/ abandoned heart?"

common law approach:
malice aforethought
1. intent to kill

second degree murder
1. intent to kill, not premeditated
2. intent to inflict g.b.h.
3. depraved heart

voluntary manslaughter = intent to kill/ heat of passion
involuntary manslaughter = reckless/negligent

people v. knoller

if you're the prosecutor, did knoller intend to kill whipple? no.

step 1: reckless
a. keeping two combat dogs in an apt building was a substantial and unjustifiable risk (memorize this!).
   best evidence: the vet's letter
   what if the D was to say, "i think that the vet is wrong?"
   supporting evidence: 30 incidents of the dogs threatening people

it's not easy to set the standard
(be sure to review the full case on LN) 

trial court says the difference is between the knowledge of
"high probablity of death"

and the court of appeal says that
"conscious disregard of the risk of serious bodily injury"

if consciousness is just about bodily injury, it will be very low, objectively.

supreme court says that it's a
"conscious disregard of the danger of human life."

so the court says not guilty of murder, unless the defendant was aware that she created the high probability of death (n.b., because the CA court considers the standards of 'base antisocial purpose' and 'high probability of harm' are the same).... and it makes sense, because there are people who are making the conscious choice to kill appearing before the court all the time. on the other hand, this is pretty bad. the death was awful. the victim was appealing and the defendants are weird and unsympathetic.

what if she were a dog whisperer? would knoller still fit the bill for a reckless regard for human life, for keeping dogs but with motives for doing good for the animals? the higher the degree of risk and the more despicable the reasons, the more it reflects badly on the defendant's motives.

NYPL 125.25 (2)
* under circumstances evincing a depraved indifference to human life,
* recklessly (recklessly = substantial)
* engages in conduct which creates a grave risk of death to another person (grave = more than
   substantial)
* and thereby causes the death of another person

people v. heidgen
russian roulette of drunk driving.
getting drunk instigates possibility of recklessness which you know or should have known could ensue if you chose to drink.
but depravedness? can you prove that he intentionally drove the wrong way on the parkway?

property law: march 18 2010 class notes.

privity.
duty will arise out of property law (estate) or contract.

assignment with novation.

sublease... a "daisy chain"...

the landlord remains in privity of contract, and the tenant comes into privity of contract with the subleasee, with no agreement to the landlord unless the subleasee agrees to take on the responsibilities to the landlord

versus an assignment...
the property relationship between the parties has changed, and the assignee is taking all of the property interests of the original party and thereby taking the relationship of privity of estate from the assignor, such that the landlord and tenant no longer have a property interest left, instead the assignee takes the interest. but as to the contract, the original tenant is still in privity with the landlord and will also be in privity with the assignee. unless the assignee agrees to be bound, there is no privity of contract between the assignee and the landlord.

novation = the landlord is specifically agreeing to release the first tenant and take on the new tenant

these relationships are only relevant so long as there is a breach of contract. if there's a breach (such as not paying rent) you can only recover if there is a privity relationship.

ernst v. conditt: was the transferee a sublease (no remedy against the subleasee) or assignment (remedy available). let's say that this had been an assignment, and ernst then had an argument against rogers. what could rogers do?

yeah, if you contract for it, you can have a XXX but in CA the landlord's right to reject leases is subject to a reasonableness clause. there is a duty of good faith, and not allowing the sublease for arbitrary reasons is not acting in good faith.

in NY, commercial leases are silent: if you bargain for it, a commercial landlord can withhold un/reasonably. but for residential, consent to assignment can't be unreasonably withheld and consent to sublease cannot be unreasonably withheld. AND if it is unreasonably held (risk of adverse determination is on the tenant, however).

limits to occupancy in sublease/ roommate

what happens if a tenant breaches under a lease? such as failure to pay rent, or what if the tenant has abandoned the property?


berg v. wiley
berg is claiming loss of property
intentional infliction of emotional distress
damage to chattel (personal property that was taken/damaged)
wrongful eviction

what is the court addressing?
1. was the finding on abandonment/ surrender correct?
2. was wiley's retaking possession held correctly as a matter of law?

abandonment surrender is a factual one, not a legal one: the court would have needed to consider if the tenant's frame of mind was that she wanted to abandon the property. and if there was evidence in the record for the reasonable fact finder to know then there is abandonment? in this case there was enough evidence to know that the tenant did not surrender.

now do we know whether or not the eviction was wrongful.
the test:
1. landlord must operate under legal entitlement (must have the right to it)
2. the landlord must enter "peaceably"

this test comes from the common law of landlord tenant.

does the landlord have right of entry for repossession here? yes -- forfeiture of possession clause
wiley contends that a non-peaceable entry would have had a confrontation. since he retook when she wasn't there, obviously it was peaceable (considering the events that had already transpired between the parties).

the court doesn't buy this: just because she wasn't there, there was still tension between the parties and that the landlord was taking the law into his own hands, which makes the retaking non-peaceable. the only peaceable way is to go through the courts.

why?

because the tenant who finds him/herself in breach, the tenant can act unpeaceably.
see the article about mr. bryce
going through the courts takes time and cost tax-payer money, but it does involve an additional element of reason will help to temper the emotions that flare under real property

summary proceedings to recover possession can take a year (often does, in new york)... is this right or wrong?


sommer v. kridel, 74 NJ 446 
when the tenant does abandon, are the landlord's rights different?

duty to mitigate. does sommer have one? this court says yes: because taken the facts of

next class:
holy properties v. kenneth cole
rios v. carrillo

con law: march 16 2010 class notes

substantive due process.

lochner has two problems.
1. the court choosing any substantive argument and favoring it (the whole enterprise is illigit)
2. the court choosing economic over health (or any specific, narrow value objection)

is there a more modest critique of lochner?

 meyer v. nebraska.
meyer was convicted of teaching german to school children. if nebraska had offered a convincing justification for its necessity (the reason was "we don't want the hun language taught"), the court would have upheld the ruling. the court revered the conviction, opining that the substantive "liberty" protected by DPC included the right to acquire useful knowledge, to marry, establish a home and bring up children and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

where are they getting the info about german language from "liberty"? is this a correct asseessment of the "fundamentals"? is there any basis for omitting some of these rights once others are listed? is it the court's place to promulgate this kind of list, as this raised in the childrearing questions of meyer? should we draw a line at the "ridiculous"? what is ridiculous?

the court's standard for violation is pretty light -- if it "materially interferes with the liberty and interest of the individual"

pierce v. society of sisters.
why require children to attend public school?standardization and melting pot of education, especially after income tax is constitutionalized and formalized.
who's rights does it impose on? parents -- there's nothing in the constitution that says our children must be standardized.

skinner v. OK
OK mandated sterilization of three-time felons involving "moral perpetude"... basically felons non-white collar crime.
the court voided the law because sterilization of three-time chicken thieves but not three-time embezzles failed the strict scrutiny test. 
what's the right at issue? the right to procreate. it's a big deal because it's intrinsic biologically, socially, morally, etc... most people would find this
the court emphasized that the law "involves one of the basic civil rights of man" and application of the law would have forever deprived skinner his basic liberty.

griswold v. CT
this law had been repealed in most states, but not CT. why? the politicians don't want to take on the church, in the final battle ground over contraceptives.

but oh, those yale rabblerowsers...

the right to privacy becomes an issue.
3d amendment argument -- it's not been incorporated.

but the court is not saying "lochnerism!"

stewart's dissent: this is assenine.

if you're not scared of lochner, then harlan is the justice for you!
there is substantive stuff as to DPC towards "liberty" even beyond the BOR.
how do we figure it out? how do we know that contraception is in and cannibalism is out?
harlan says that DPC is about history, tradition, striking a balance. therefore, marital contraception fits in the catergory because it

property law: march 16 2010 class notes.

recap.
holdover
american rule v. english rule
NYS has adopted the english rule over the american rule
tenancy at sufferance

sublease and assignment
various remedies for holdover tenants
1. accept rent for a new term. however, it's clear that this acceptance is not for a new lease on same original terms, but instead for a periodic tenancy (for example, if the payment of rent is one month's, a month-to-month may be created OR a term of years may be created... there is statutory authority but in terms of its application, there's no clear test on this because not really a current issue)

ernst v. conditt.
we saw what happens when a tenant purports to transfer some of his interest in a property to a third party. we have to determine what we will call this transference.

1. does the transferee retain any interest after giving over to 3d party? such as some interest in the remaining term of the lease? the traditional common law test would find a sublease
2. does the transferee give all interest over to 3d party? under common law, this is an assignment.

n.b. -- the title doesn't matter in assignment

not clear that these test really gives different results!!

in ernst v. conditt the appellant said it was a sublease however, the court said that all the interest was conveyed... what do we call this? it's an assignment, because the original tenant did not have any interest left over in the property, though it was called a sublease. what does this idea of "intent" do, in this case? does it actually serve any purpose? what would their actions do that may have some inconsistency with their words or with their writing?

who cares whether its a sublease or an assignment?
privity of contract versus privity of estate!
privity creates legal duties that parties can enforce against each other. 
privity of contract is created by the voluntary agreements and relationships between people.

landlord and t1: estate and contract
t1 and t2: estate and contract.
landlord and t2: no privity!!

third party beneficiary: contract law will acknowledge a contract between 3d party if one party is explicitly agreeing to take on obligations that are of benefit to the 3d party.
most juris recognize 3d party beneficiaries. that would create

so to review:
in a sublease
L privity of estate and contract T1 privity of estate and contract T2
and between L and T2 any covenant explicitly assumed will convey a 3d party beneficiary contract

so what happens in default? what happens if there's waste?

in an assignment where the tenant has transferred all of his interest to the second tenant, are the landlord and T1 in privity of estate? no -- because the tenant had assigned all of the rights away
are they in privity of contract? yes -- because absent the landlord's consent, the tenant can't destroy the relationship

in an assignment where the tenant has transferred all of his interest to the second tenant, is there a privity of estate between them? no -- because T1 does not have property interest beyond the lease. T1 assigned the leasehold to T2. the other property interest is the landlord's in reversion.

assignment with novation!

n.b. -- see the powerpoint slides: the arrows indicate who can sue who ^__^

so back to ernst...
L contracted to T1 contracted to T2 which created an assignment of the estate interest between L and T2.
but rogers said, "i will stay responsible for the execution of the lease." is that consistent with an assignment? yes -- why? because rogers can still remain liable in privity of estate with ernst.

now, is there a privity of contract between ernst and conditt? no -- there is question of whether or not conditt explicitly assumed the obligations of rogers

there's an assignment between ernst and conditt. but it is questionable if there is a contract of 3d party beneficiary between them! therefore, the difference between assignment and sublease...

landlord's right to control tenant's disposition of leasehold interest:
ny RPL 235-f (the roommate law) -- the landlord has no right to restrict 1 roommate + his/her dependants per tenant on the lease, and any attempt to do so is unreasonable and unenforceable. must give the landlord 30 days notice.

kendall v. ernest pestana, inc
ny RPL 226-b (the sublet law)

issue of extortion...
the landlord
restraint on alienation (white v. lied, mountain lodge v. toscano) -- common and stat laws do not support restraint on alienation

what would be a problem with allowing the landlord to withhold consent? the landlord can extort more than he would have gotten from the original agreement

what about the reasonableness argument? isn't it reasonable that kendall is saying, if you want to make the assignment, the land is worth more? the court says that reasonableness here is that it's reasonable that the land is kept in use rather than held unused until there's a better offer

what about the clause in the lease contract saying that the landlord has full right to arbitrarily deny assignment?
the landlord should have the opportunity to vett any assignment that comes because of his right to protect his interest in reversion and his interest in economic efficiency. why should he still be held to a reasonableness scrutiny? because if the interest that the landlord has in denying assignment or sublease, it has to be based in these two interests and any other interests would be assumed to be exterior to the commercially and contractually valid interests

where you have leases that extend over a period of time, it's possible that the value of the property could

parties interested in creating rules to contract over time will probably want those agreements and interests to be retained. why? bargaining power

if you bargain for it, the landlord's restrictions under a residential lease

bird v. wiley
summer v. ridell
reyos

p. 421-449 and NY PRL 235-b, 223-b

crim law: march 12 2010 class notes

murder. 

(n.b. -- avoid the word "punishment" when describing utilitarian arguments)
(n.b. -- murder and homicide are two different things.)

common law homicide: malice aforethought.
mpc 210.3

this came to just be the "mental marker" for the states at which homicide happens.
1. intent to kill
           knowledge that your act will result in death
 is it premeditated?  YES -- then 1st degree
 is it premeditated?  NO   -- then 2nd degree

2. intent to cause
           grevious bodily harm... if you stab someone, you definitely intend to inflict grievous bodily harm,
           though you may not necessarily intend to kill
3. depraved heart
           a reckless killing, done in circumstances where we want to say that it's as bad as murder.
           rideout: does that strike us as bad as murder in regina v. blaue? what about state v. heidgen?
4. felony murder
           is it a felony murder? YES -- than 1st degree
           is it a felony murder? NO  -- than 2nd degree

manslaughter: unlawful killing of a human being without malice
is either volutary or involuntary (where involuntary does not amount to a felony)
1. intent to kill (heat of passion upon adequate provocation, voluntary/1st degree)
2. killing during an unlawful act that is a misdeameanor may be manslaughter (involuntary)
3. reckless/negligent (involuntary/2nd degree)

murder has always been wrong. why do we also allow manslaughter? because it's an original anti-death penalty development (intro to article that is similar to simons' recap)

malice aforethought: premeditated v. nonpremeditated -- it makes all the difference, particularly in common law states like cali

state v. guthrie
guthrie has a slew of psychiatric problems and the deceased (who was his friend) was trying to cheer him up during a panic attack, and he killed the guy.

intent to kill -- stabbed him in the neck
but was this in the heat of passion? friend did not give sufficient provocation
under VA law, is this premeditated and deliberate?

court quotes schrader (which cites cardozo) that "knowing and intentional" and "twinkling of an eye" is premeditation...
but if premeditated and deliberate is 1st degree, and not premeditated is 2nd degree, what's the distinction here?
culpability: there's a retributive argument that premeditation and deliberation is choice and exercise of free will and is therefore higher culpability than killing on purpose but without giving yourself a chance to think. additionally, premeditation is more deterable.

under WV law as defined by schrader, is it possible to kill someone intentionally, without premeditation??? NO... so what the hell is the distinction between 1st and 2nd?
a choice for the jury to be more lenient and merciful.... that can be good but it is also arbitrary in an unguided discretionary decision

guthrie court at least realizes this and overrules the schrader opinion. 
"any interval of time... which is of sufficient duration for the accused to be fully conscious of what he intended"

morrin: "not all murders reflected the same quantum of culpability on the part of the wrongdoer"
             "to premeditate is to think about beforehand"
             "to deliberate is to measure and evaluate"

morrin does a better job of delineating the policy and textual distinction between premeditation and intentionality without real forethought. however, is this a *good* distinction to separate the worst from ordinary murders?

midgett.
the best part of this case is the gene tierney-like moment where he rushes rodney, jr. to the hospital...

on appeal, the conviction is affirmed for 2nd degree murder because the court says the intent was not there to kill him, but instead was only intent to inflict grievous bodily harm.

under common law, intoxication a defense to 1st degree murder but not to 2nd degree. it really helps midgett to be drunk.
it really helps midgett to have been continuously beating his son.

what's wrong with this case?
culpability (with and without link to premeditation...)
           (1) prior abuse: thought
           (2) size: obvious risk
           (3) parental duty
           (4) child is victim

forrest.
what's the common law mental state? 
but forrest took a gun to the hospital... which is something we don't want people to do anyway.

is the harm the same or different as in the midgett case?
gut reaction is that the culpability is lower
          (1) mercy (motive)
          (2) father was going to die anyway
          (3) forrest knows he did something wrong and he did it anyway

the courts in forrest and midgett accurately applied the distinction between 1st and 2nd degree murder. so do we just live with it, or do we want to change these laws?

should premeditated/deliberate or heat of passion be the distiction? HA HA -- not even the NYS distinctions...

nypl 125. 
nb. physical injury is something that inflicts pain. serious physical injury is something that is permanent and/or creates a risk of death
criminally negligent homicide is negligence (unintentional) at grade E
manslaughter 1 is intent to inflict specific physical injury OR intent to kill under extreme emotional disturbance at grade B
manslaughter 2 is recklessness (unintentional) at grade C

125.25
murder 2: class A1 felony, basic intentional killing or depraved intent (unintentional, but still murder), or accompaniment of another murder (felony murder)
murder 1: PREMED and DELIBERATE does not appear in nypl
how do we get to murder 1?
murder 1 has a lot to do with who the victim is:
          (a) defendant must be over 18
          (b) victim is a cop
          (c) victim is a peace officer
          (d) victim is a prison guard at state facility, on duty and D knew/should have known
          (e) defendant is serving at least 15 to life
          (f) witness tampering
          (g) murder for hire
          (h) during serious felony
          (i) multiple killings
          (j) d has prior murder conviction
          (k) torture
          (l) serial murders
          (m) v is judge
          (n) terrorism

property law: march 11 2010 class notes.

landlords and tenants. 

leasehold estates.

periodic tenancy.

tenancy at will.

tenancy in sufferance. 

check out how we do in NYC.

garner v. gerrish
there are many complexities that can arise from leases being both property and contracts. the bodies of law are different. contract is almost exclusively about intent of the parties (benefits of hte bargain). property has other interests -- stability, efficiency, reliability, etc. those interests can be in conflict, and must be reconciled.

one party wants a tenancy at will.
the payment of rent is the only thing that has some understanding of the duration of the lease.
the court looks at the terms of the lease to know beyond "a period of years" what the tenancy period should be.
the parties didn't intend to create a tenancy at will.
the question could be so what: if you are purporting to put limits on property that the law doesn't recognize, too bad -- if it's not compatible with our system of property rights, the court will not allow it.
why do we treat a lease differently than a will, or than estate? because it is a contract (covenant to pay rent) with terms in addition to a conveyance
common law of property (where there is one option for one party to terminate at will, the other party will be assumed to also terminate at will)
default rules for contract interpretation (certain terms will be implied, such as duty of good faith and warranty of merchantability... however, some of these rules can be contracted around)
there is an "untrumpable" common law rule here, so why is it not being read into the contract, even if not the intentions of the parties?
what reason to keep that common law relationship? landlord-tenant power disproportionality

life tenancy is usually a free-hold interest. but here the life tenants have to pay rent to enjoy the possession interests.
the landlord's interest in a lease property is a reversion.

only leasehold interests create landlord tenant relationships. freehold interests do not.

crechale & polles v. smith:

see NY RPL 232-c

If a T whose term is longer that one month holds over, LL
     does not have automatic right to hold T for a new term. If
     LL accepts rent, absent contrary express or implied
     agreement, T is deemed a month-to-month tenant.

the parties begin with a tenancy term of years/year to year. the tenants are expected to move to another property, but the property won't be ready until after the current lease is up. they are willing to pay for this extension. but there is a disagreement of the material fact of whether or not there was an agreement to the extended month to month. but the first month, when the payment is received, the landlord cashes the check!

the landlord is sckitzo and takes four positions:
(1) find somewhere else
(2) i won't take your rent and you're a hold over
(3) ok, you've renewed your lease for the next five years
(4) now you've renewed your lease for the following year
(5) now you're a periodic year to year tenant

what are the rights of a landlord when a tenant holds over?
3 Thompson on Real Property s 1024, at 65-66 (1959), wherein it is said:

‘As a general rule, a tenancy from year to year is created by the tenant's holding over after the expiration of a term for years and the continued payment of the yearly rent reserved. * * * By remaining in possession of leased premises after the expiration of his lease, a tenant gives the landlord the option of treating him as a trespasser or as a tenant for another year, . . .’

by accepting the first check, the landlord agreed to the month-to-month tenancy. the landlord didn't have to accept. when he first found out that the tenant intended to stay, the landlord had the option to either treat the tenant as a trespasser or as a month-to-month tenant. the landlord decided to treat them as a trespasser. he cannot change that position later. the tenants stayed knowing that the landlord would treat them as a trespasser.

why month-to-month? because the landlord cashed the check that was for one month. thereby, we can infer from the facts some semblance of a tenancy period.

not a tenancy at will.
not a term of years: since we must consider the assent and intentions of the party, statute of frauds, and the agreement of the parties. nothing about the facts, circumstances, and reactions give no date certain of when the tenancy would end.

landlord is informed
landlord exercises right to treat tenant as a trespasser.
tenancy at sufferance - wrongful possession, which entitles the landlord to double rent.
BUT -- knowing that these were his rights, the landlord accepts the rent for one month from the tenant.
thereby, the landlord has created a month-to-month tenancy, against the rights he would have had against a tenancy in sufferance

what other rights could the landlord have exercised? see thompson
did the landlord exercise these rights? NO - he accepted the tenants position, by cashing the check

hannan v. dusch
see NY RPL 223-a

what is a landlord obligated to deliver? the right or the actual possession of property?
in england, you must actually deliver the property.
in US, the tenant does not have any claim against landlord for giving the right but not the property. why would

who is in the best position of knowledge to avoid any problems with the holdover?

american rule... english rule... neither is mandatory, and they can be chosen to the terms of the agreement of the contract

ernst v. conditt
there are a couple of issues at play, the issue of privity and the issue of assignment
privity of estate and privity of contract
sublease v. assignment
language said sublease, but for all intents and purposes, this is an assignment... is this really a different test than the traditional one (whether in the title transfer the landlord has retained any interest)?

con law: march 10/15 2010 class notes

due process.
there are two DP amendments and two types of DP.
5th amd't bars the fed gov't from depriving "life, liberty or props without due process of law."
14th amd't prohibits the states from gov't invasion without due process of law

procedural due process.
the purpose of procedural due process is to identify substantive rights -- life, lib and props -- to assess whether the gov't procedures for taking them away are constitutionally adequate.
(1) what constitutes "life, liberty or property" interests that cannot be taken away by gov't without "due process of law"?
(2) once due process is required, what sort of notice and opportunity to be heard constitutes due process?

notice and opportunity will be the two biggest issues.

defining the interests protected by due process.
three different approaches have been taken by the court
(1) treating gov't benefits as privileges rather than rights
(2) treating gov't benefits as entitlements rather than privileges
(3) deriving the content of property and liberty from cont. external sources, such as K and stats

mcauliffe v. mayor of new bedford: "he may have a const. right to talk politics, but he has no cont right to be a policeman...

you may hae a right to due process if the gov't tretaens to take your car but not if the gov't threatens to fire you. see bailey v. richardson, where gov't employment was considered a privilege (gov't may suspend at its pleasure) rather than a right (may be divested only after an indiv has been afforded DP)

property...

goldberg v. kelly 397 us 254.
facts:
rule (the goldberg principle):"any gov't benefit that was extremely important to its recipient was a form of liberty or prop to which DP attached. the importance of the itnereste was determined a sa matter of const law.
holding: a welfare recipient was entitled to an "envidentiary hearing before the termination of benefits" because "beefits are a matter of stat entitlement for persons qualified to receive them"

bell v. burson.
facts: GA law autmatically suspended the vehicle regis and driver's license of any uninsured motorist who failed to post a security bond to cover the claimed damages in accidents to which he was a party.
holding: DP attached b/c driver's licenses are essential for pursuit of livelihood, and there was no deprivation hearing given

board of regents v. roth

argument that nowadays connection between the gov't and individuals where there is some distinct benefits that have come to be expected

cause requirement question.
cleveland v. loudermill
there's a law in OH that you can only be terminated if you are able to be admin reviewed first.

facts: loudermill was hired as a security job and on his application he said he was never conficted as a felon. but he lied. he was dismissed because of the lie, and not given a 10 day period chance to reply to the charge.
issue: what pretermination process must be accorded a public employee who can be discharged only for cause?
procedure: the trial court dismissed because statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, loudermill was, by def, afforded all the process due. US says that the legislature's choice of procedures for its deprivation, and stresses that in addition to specifying the grounds for termination, the statute states out procedures by which termination may take place.
rationale: the right to DP is conferred, not by legis grace, but by const guarantee.... legis may not const authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. the litigant must take "the bitter with the sweet"
arnett (cited in loudermill): US agreed that a public employee could be dismissed for misconduct without a full hearing prior to termination.
rule:

castlerock v. gonzales
facts: gonzalez had obtained an order from a CO court restraining her estranged husband from contact, but her husband abducted their daugthers. the police failed to act and the husband murdered the girls. gonzales pled a 1983 that she was deprived DP because the police never heard or seriously entertained her request to protect her/ her children or enforce the US ruled that "a benefit is not a protected entitlement if gov't officials may grant or deny it in their discretion"
procedural due process as to property interests:

as to substantive and legal status: does this equate to a loss of liberty in terms of due process? does the gov't have to give you something to change/ do this?

gov't actions taht alter one's legal status under positive law implicate a liberty interest, but some government actions that may not do so are nevertheless such assive invations of liberty that due process attaches.

paul v. davis
facts:
davis was arrested for shoplifting

vitek v. jones: how much of substance is there left in the liberty interest before due process kicks in?

mathews v. eldridge
economics weight: we can't pay for everybody
erroneous deprivation: fairness and reliability of

substantive due process.
an "ungainly concept" is a sort of non sequitur phrase.

procedures that are suitable, fitting or appropriate -- the procedures that are minially required for fairness.... to identify certain liberties or rights that are not specifically mentioned in the const. and to raise a presumption that gov't interference with those rights is void.

the court is wrestling with how we get from the enumerated first eight amendments to this modern era.

barron v. baltimore
5th amendment was about getting away from the tyranny of britain and protecting the individual from that kind of activity. the court is saying that US is limited by 1-8 amendments, not the states.

the slaughter house cases.
states are named and limited in terms of their due process tasks in amendments 13-15. 
LA gave the slaughter houses a 25 year monopoly around new orleans. otehr butchers contended that their 14th amendments rights to be a butcher were violated by LA (the freedom to work).
US rejected this argument. BOR does not talk about your freedom to work.
so before any questions of incorporation, we must consider that we're talking about something sort of beyond the
human chattel bondage is very much beyond your right to butcher. it's not a 13th amd't issue.
your right to butcher is not a sufferage issue, so not 15th amd't.
but as far as DP and P&I... the court has more concern about the citizenship rights
citizenship rights as us citizens: "free men are citizens of the us and of the states where they reside"

the 14th amendment was about without further protection, slaves would be as bad off as they were before abolition.

in terms of incorporation, substantive parts of 14th amend. P&I become right to travel. 

bill of rights: what's special about free speech -- the us can't wrap you up and the states

total incorporation v. selective incorporation. 
black for total incorporation: all the states should have the BOR because historically, that's what the point was
frankfurther, cardozo for selective incorporation: judicial discretion, which can be good and bad

getting closer to moving the full list of BOR to the states... almost total incorporation. but not exactly. the 2nd amend. is not incorp'd

lochner.
criminally sanctioned statute that bakers can only work 60 hours a week. this is for their safety and public safety.
a combination of the inhaled flour, the long hours

resonable exercise of police power, or a violation of 14th amend DPC
state says that this is protection of labor laws in addition to the health concerns, which is another
the baker argue that the

legal writing: march 10 2010 class notes.

.... um.... i have no book today. 

LL-03 questions and answers session for legal writing tomo, 3:30 - 5:30.
questions by email will be taken through the day on friday.

oral arguments will be discussed next class.

formatting template assignment.

you will have to create a 4 digit anonymous number.

class notes, chapter 18.

we are using existing rules. and we are using a de novo review.

see p. 485 -- option 6 is the best for our organization.

assertions.
does the rule favor your position, or does the rule maybe favor the position though the facts are good? would it be better to put the facts out first then the rule, or the rule first and then the facts?

the test.
stating it favorably though accurately. the fourth amendment can only be said one way, but different interpretations over the years can be given in different ways (see p. 489)


"seizure is unlawful when..."
technique of not emphasizing the burden of proof is favorable context -- start with a vantage point to put in a positive response to paint an image of the resultant circumstance...


we have wiggle room because 1. rules of law are not soooo black and white and 2. balancing tests are built on ambiguity

see p. 413 for examples of how to use the language

under the main categories of the tests, there are additional factors the court would likely look at:

notice
             opportunity to decline: not taking the mode of transport, declining

methods/scope
             discretion of officers in deciding who to search
             how intrusive were the methods and did they become more intrusive?
             did the scope meet what the officers were supposed to be looking for?

duration -- how long did the whole process take?

we have flexibility in how many factors we break out and how we order them!!
you can also meld factors that are less favorable, but logically related.

see p.493 for analogous cases.
use general terms for similar cases, and specific terms for unsupportive cases
avoid beginning a paragraph with citation to a case: use the position of emphasis and take advantage of the reader's heightened attention.

don't give airtime to the opposition! 

signals in citation.

crim law: march 10 2010 class notes

causation: proximate cause.

prox cause is about policy. when prox cause arises, it is because there is something between the harm and the defendant's act that we feel should have some reason to be linked as a cause. there's no easy answer, but the basis standard is whether the defendant's act is a natural and probable consequence of the defendant's conduct (see rideout)

six factors of prox cause.

(1) foreseeability (the most important factor)

     (a) responsive? ... if so, then was the resulting harm highly abnormal?

     (b) was it coincidental?... if it was coincidental, then was it unforeseeable?

(2) de minimus

(3) intended consequences

(4) omissions

(5) apparent safety

(6) voluntary human intervention/ free, deliberate and informed decisions

drunk driving is a conduct crime. if you're drunk driving, then it's always foreseeable that someone could die from the conduct. but if the death happens in a really weird way, then for policy reasons, we may not want to hold the driver responsible... rideout had no control over welch, no control over certain events BUT if the coincidental event was foreseeable, then rideout will still have a weak argument

causation, culpability and harm -- utilitarian and retributive: in drunk driving, it's bad but when you're drunk and don't hurt anybody (get pulled over by a cop and get a ticket or your license suspended) but then the culpability changes when you hit someone

was the victim's resultant death foreseeable?

not foreseeable:

the victim knowingly put himself in danger of walking in the street on a dark night on a street with no lights.

apparent safety

made a decision to put himself into danger by walking into the street

was the resultant death forseeable?

chain of events were put into place starting with the accident. it is forseeable that someone can die from a car accident resulting from impact of a party who is drunk-driving.

the victim made a decision to go into the road and turn the flashers on. he "wanted to be a hero". does his voluntary action have a superceding or intervening result to rideout's culpability? 

was it forseeable or unforseeable that welch, as an intervening cause, would come along and hit the victim in the road, or was it highly abnormal? 

was it coincidental and unforeseeable that welch would come along and hit the victim in the middle of the road? 

does it make it easier or harder to break the chain of causation since it was highly abnormal that welch would come along and hit the victim while he was in the street? 

what if the victim hadn't gotten out of the car and turned the flashers on, welch came down the road, hit the cars, and was killed. would keiser (the victim) have been culpable? 

if the driver has a legal duty because he is a responsible cause of the accident, and doesn't, then maybe we can establish that it was a crime for him to not do so. however, it would not break the chain of causation because it would be an omission 

example.

drunk driver hits dean simons' car. dean gets out of the car. lightning hits him. is the drunk driver the cause of the death? the driver is a cause but he is not a prox cause

state v. preslar
see the case on google books, starting page 421


mpc 2.03: Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Ac-tual Result or Between Probable and Actual Result.

§ 2.03(1)	Conduct is the cause of a result when:
§ 2.03(1)(a)	it is an antecedent but for which the result in question would not have occurred; and
§ 2.03(1)(b)	the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.
§ 2.03(2)	When purposely or knowingly causing a result is an element: not established if the actual result is not within the purpose or the contemplation of the actor unless:(a)actual result differs only in the respect that different person / property is injured or affected or injury or harm designed would have been more serious; or (b) actual result involves same kind of harm as that designed and is not too remote to have [just] bearing on the actor's liability or on gravity of offense.

basically, mpc 2.03 asks is the result so accidental and remote that it would be unjust to hold the defendant responsible? 

regina v. michael: mom wanted to kill her child and put poison in the milk.
omissions: negligence on the nurses' part and could be expected by the kid
voluntary human intervention/ free deliberate and informed decision: the nurse and the kid are making their own decisions that absolve the defendant of responsiblity

velazquez v. state
the issue: is velazquez guilty of vehicular homicide when the sole basis for imposing liability is his participation in an illegal drag race that resulted in the death of another participant in the race?

even where a defendant's conduct is the cause-in-fact of a prohibited result, criminal liability should not be imposed where hte prohibeted result of the defendant's conduct is beyond the scope of any fair assessment of the danger created by his conduct OR where it would otherwise be unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibted result.

people often join together in reckless conduct, but if all participants do so knowingly and voluntarily, there is no point in holding a survivor guilty of manslaughter if the reckless conduct results in death. velazquez's only contribution to alvarez's death was their mutual agreement to participate in the illegal activity. alvarez's parcipation was an independent, intervening and superceding act of wrongful conduct that resulted in his death.

from state v. petersen: "the question is whether the defendant's reckless conduct caused the death of the victim -- but not legal causation,... responsibility"

foreseeability analysis is about breaking the chain of causation...

problem 1. 

B shoots V, with the intent to kill. V's wound is non-fatal but he requires hospitalization. V is treated by a doctor recovering from scarlet fever. V contracts the disease and dies. is B the prox cause of death? see bush v. commonwealth, 78 Ky. 268

so highly abnormal that it is unforeseeable. the resultant death was not the intended death. however, bad medical practice is not enough to break the chain of causation (and that's a rule: ordinary subsequent med mal does not break the chain)

problem 2.

R stabs X fatally and then drops the knife and flees. X is in shock from his wound and grabs the knife and runs after R. X encounters V who tries to take the knife. X stabs and kills V. is R the prox cause of V's death? see people v. roberts, 2 cal. 4th 271, 6

problem 3. 

B stabs V, a jehovah's witness. her lung is pierced and she needs a blood transfusion to survive. she realizes she will die without blood, but refuses on her religious beliefs. is B the prox cause of her death? see regina v. blaue

eggshell victim: her religion must be taken as she's found. however, if assuming that the defendant didn't intend to kill her, then voluntary human intervention is his best defense.

problem. 

D is standing outside of his car and X fires at him. D picks up V, a two year old, to protect himself. X's shots wound V. D escapes unscathed. X is never found. D is prosecuted for aggravated battery, for the wound. is D the prox cause? see people v. hall, 273 ill. app.3d 838

concurrence of the elements

(1) crimes of recklessness or negligence.

(2) manslaughter

state v. rose
rose left the scene of the accident that he knows he caused.
we have an act
we have a mental state
we have a harm
we have causation
but things don't match up in time... 

rose did two acts: (1) drove down the street and hit a guy. did not mean to so no sufficient mental state
                             (2) hit and run. did mean to do this, but did it cause the resultant death?

issue: for a manslaughter conviction, must a defendant's negligence precede the death?

things don't match up in time. if the impact caused the death, that was not negligence and it was not manslaughter and it was not murder.

to be liable for manslaughter, the defendant's negligence must have caused the victim's death: in this case, it must be found that the defendant was alive immediately after impact and that the defendant's conduct after impact constituted culpable negligence. up to the time that the victim was hit, there is no evidence of the defendant's negligence.

rose left the scene of the accident, and that is not copacetic. but because the testimony of the medical witness lacked reasonable medical certainty as to the time of death, it cannot be concluded that the defendant was guilty of manslaughter.