4.28.11
Assignment 2- DUE MAY 19TH
AT&T Ruling- Arbitration Clause is NOT against public policy and is enforceable.
S.C.O.T.U.S.- http://www.scotusblog.com/
Agency Law
Agency is a fiduciary relationship
Agent has right to make decisions, enter into contracts, and commit torts which the principal will be held responsible for.
There must be:
-Principal
-Agent
-Consent by both
-Control by the principal of the Agent
-Fiduciary relationship- Must act in Principal's interest, not their own.
1. Competent performance
2. Notice of important info
3. Loyalty and accountability
-Agent has duty
1.To obey instructions
2.Act with reasonable care
3.To provide information that the Principal should or would want to know
-Principal must
1. Cooperate with agent
2. Compensate the agent for services
3. Indemnify agent for expenses, liability
EX of Agents: Power of Attorney, Partner, Employee.
Agent IS liable on contract only if Principal's existence is disclosed but not identity, or neither the existence nor identity of the Principal is disclosed.
Employment Setting
Employee vs. Independent Contractors (act on behalf of themselves, not agent)
Contractors- Perform specific service for a set fee, decide how to do the work, use own tools.
Employee- Employer pays taxes, workers compensation, maintains control over how the task is accomplished.
Respondeat Superior
Business responsible for torts of employee, if employee was acting within the scope of employment at time of injury.
-Ramen case- has been overruled- will go into effect 90 days after.
Basic Business Organization
Forms of Business
-Sole Proprietorship
-Partnership
-Limited Liability Company
-Corporation
Assignment 2- DUE MAY 19TH
Consider:
-Formation Issues
-Liability Protection
-Management Structure
-Taxation considerations
-Exit Strategies/Tranferability of interests
The American Business Entity Landscape (on class website)
Sole Proprietorship
-Most common form
~Does not have to be registered with the secretary of the state
~Profits and losses are personal and taxed as such
~May require business license
~Personal assets are available to satisfy the debts of the business
~Owner has full control over management of business
~If sole owner dies, the business ends.
Advantages- complete control, flexibility, ease of creation and maintenance.
Disadvantage- personal liability, lacks continuity after death, difficult to finance.
EX Child Care Provider- Legal Process- State of WA Start a Business Website and SBA.gov
Partnerships
~Revised Uniform Partnership Act- governs whether partnership exists and fill sin missing terms of agreement.
~Association of 2 or more persons to carry on as co-owners of a business for profit
~Governed by contract
~No state filing
~Equal management rights and profit sharing
~Transferability- may have buy/sell agreement, usually requires agreement of all partners.
Adv.- Easy to create and maintain.
Disadv.-Personal liability, difficult to raise financing.
Partners have fiduciary duty to each other and the partnership.
-Joint liability
~Termination by Dissolution by Act (agreement or withdrawal), Operation of Law (death), or Judicial Decree
Limited Partnership
~ At least one of the partners does not share in the right to manage the business
~Required to file with state
~Limited partner invests money, but does not make decisions
~Limited partner liable only up to amount invested
~Limited partner can assign interest to someone else
Limited Liability Partnership
~Clients or customers must be informed of limited liability
~Registration requirement
Limited Liability Company- RCW 25.15
~Permits small business owners to limit their liability to the amount of their investments
~May form as single individual or as group
~No banking or insurance
~Registration required
~Members liable for own torts, but not others.
~Very flexible
~Can choose from different tax options
~Operating agreement analogous to corp. bylaws
~Agreements may be oral
~Generally if operating agreement is silent, partnership will apply
Corporation
~Business entity formed by shareholders
~Person for the purpose of conducting a business- Constitutional rights
~Can own property, enter into contracts, sue and be sued.
~Shield shareholders from liability, only liable for the amount of the investment
~Complex formation- requires ongoing efforts- reporting, meetings etc.
~Double taxation
Thursday, April 28, 2011
Wednesday, April 27, 2011
4.27.11 Criminal & Family Law
Fundamental Question
-Is the Statute Constitutional?
-By what measure do we evaluate? By language of the statute itself.
-Facially overbroad- If statute itself sweeps within it many behaviors not intended to be targeted.
-Mixed question of law and fact.
-Laws must be content neutral to be constitutional. (Cannot apply to one situation and not another.)
Motion to Suppress
Common Issues
-Case Number- was provided in the Complaint
-Margins/Typeface/Font size- check local rules
-Details-Spell names correctly, spelling, correct court, etc.
-IRAC
-I- Header
-R-Concept, principle from case law (Probable Cause- state in affirmative (Police officer has PC when... In this case...)) (Terry Stop-Officer has authority to stop when... In this case...)
-A-Integrate Each Principle as useful, before moving on
-C-
Until you've been writing for a few years, you will need to rewrite.
Step back and look at your papers without attachment-does it say what you want it to say, and is each sentence necessary?
-LSF- Legally significant facts
For Pre-sentence Report
-Accuracy to facts
-Form and spelling
Trials
Trial Notebooks
-Charge Documents
-Voir Dire
-Pre Trial Motions Resolved
-Limine (limitational) & Motions Pending
-Opening statement
-Complete set of police reports
-Witnesses- with individual police reports or statements
-1/2 Time- Once state has rested, if not all elements have been established you may ask for dismissal.
-Closing
-Exhibits- Impeachment- undermining facts or logic presented by witnesses
-Jury Instructions
Posner & Dodd- "Chaptering"
Element Tracking
-To keep track of which elements have been covered at trial
Notebook should be put together 2week to a month before trial
Evidence Rules
Evidentiary Foundation- Edward Imwinkleried (goldmine of info-creates script)
Must be:
-Relevant
-Probative
-And fall under applicable rule
Hearsay
-Out of court
-Assertion (non-verbal communication is included)
-Offered to prove the truth of the assertion (if offered for another purpose, not hearsay)
Key is that there can be no cross examination
-Is the Statute Constitutional?
-By what measure do we evaluate? By language of the statute itself.
-Facially overbroad- If statute itself sweeps within it many behaviors not intended to be targeted.
-Mixed question of law and fact.
-Laws must be content neutral to be constitutional. (Cannot apply to one situation and not another.)
Motion to Suppress
Common Issues
-Case Number- was provided in the Complaint
-Margins/Typeface/Font size- check local rules
-Details-Spell names correctly, spelling, correct court, etc.
-IRAC
-I- Header
-R-Concept, principle from case law (Probable Cause- state in affirmative (Police officer has PC when... In this case...)) (Terry Stop-Officer has authority to stop when... In this case...)
-A-Integrate Each Principle as useful, before moving on
-C-
Until you've been writing for a few years, you will need to rewrite.
Step back and look at your papers without attachment-does it say what you want it to say, and is each sentence necessary?
-LSF- Legally significant facts
For Pre-sentence Report
-Accuracy to facts
-Form and spelling
Trials
Trial Notebooks
-Charge Documents
-Voir Dire
-Pre Trial Motions Resolved
-Limine (limitational) & Motions Pending
-Opening statement
-Complete set of police reports
-Witnesses- with individual police reports or statements
-1/2 Time- Once state has rested, if not all elements have been established you may ask for dismissal.
-Closing
-Exhibits- Impeachment- undermining facts or logic presented by witnesses
-Jury Instructions
Posner & Dodd- "Chaptering"
Element Tracking
-To keep track of which elements have been covered at trial
Notebook should be put together 2week to a month before trial
Evidence Rules
Evidentiary Foundation- Edward Imwinkleried (goldmine of info-creates script)
Must be:
-Relevant
-Probative
-And fall under applicable rule
Hearsay
-Out of court
-Assertion (non-verbal communication is included)
-Offered to prove the truth of the assertion (if offered for another purpose, not hearsay)
Key is that there can be no cross examination
4.26.11 Complex Litigation
NEXT WEEK- Midterm will be handed out
Advanced Tort Theory
Direct Liability- 1.Solo EX I run over you in my car.
- 2.Concurrent (two or more acting in concert) EX Two people racing their cars kill third.
EX Dad leaves gun on the kitchen table, Mom leaves bullets out, Junior loads gun and kills someone.
- 3.Derivative (doing something negligent that enables someone else to do something negligent) EX Giving a drunk person car keys, they run someone else over.
-In all three- I was AFFIRMATIVELY negligent
Vicarious- You didn't do anything wrong, but we are holding you responsible because of your relationship to the person who did. (Social policy)
Direct/Vicarious both =liable (Negligence is negligence)
Respondeat Superior- "Let the higher-up answer"
-Why? The employer is in a better financial position to make the losses of the plaintiff whole.
-Must be within the COURSE and SCOPE of duties.
-FROLIC and DETOUR (on own recognizance)
-Can even apply to employees who commit intentional torts
Joint and Several Liability
- Should be Joint OR Several
- SEVERAL- Each Defendant being held responsible only for their share of the harm.
- JOINT- 100% of the judgment can be obtained from ANY Defendant.
-Problem- Pocket Targeting EX car accident, prove City 1% at fault, can collect all from them. Municipalities couldn't get insurance and went bankrupt.
-As a result, the law of Joint liability has been greatly restricted.
-Pure Joint Liability- DC, Alabama, Maine, Maryland, Massachusetts, Rhode Is.
-Abolished Joint Liability- Georgia, Wyoming, Florida(?)
-WA- Tort Reform Act of 1986
We ONLY have Joint liability if:
1. Agency (Principle/Agent)
2. Employment (Respondeat Superior, Employer/Employee)
3. Defendants Acting in Concert EX Drag racing, must act TOGETHER (NOT separate acts)
4. Multiple Defendants (& Fault Free Plaintiff (If P is even 1% at fault, fail)) against whom a judgment is taken.
EXAMPLE
A- 20% Severally 200k Jointly 900k (10% is not part of judgment)
B- 30% Severally 300k
C- 40% Severally 400k
D- 10% (but settles out)
$1,000,000.
If Plaintiff is even 1% liable, then joint liability does not exist.
EXAMPLE
A- 10% Severally 100k Jointly 250k
B- 10%
C- 5%
D- 75% (settles out)
$1,000,000.
Juries consistently find the settled party to be the most liability, usually because the remaining parties point at that party.
EXAMPLE
A 10%
B 20%
C 30%
D 40%
If A pays full $1,000,000. can A recover from co-defendant? Yes, contribution.
EXAMPLE
Plaintiff
-A - $2,000 settlement and gets released
-B - $20,000 judgment, 10% liable
Can B get 90% of judgment from A. Traditionally, yes. Problem, why would you settle, if co-defendant can come after you anyway?
-A- Settled are released in full.
-B- Reduced by 50% as a compromise.
CA- Must hold good faith hearing to determine whether the settlement is a "fair approximation" of liability.
-Remaining party gets credit/offset of amount settled.
-WA- Never jointly liable for the settling party's percentage of liability.
Contribution- Defendant recovering from co-Defendant anything they paid that was above and beyond their liability. Liability does not change, only financial responsibility.
Indemnification- Shifting liability. Allows you to recover 100% back even if you were 100% liable.
-General/Sub-Contractors Contract clause says Sub-C agree to indemnify General-C. Agree to pay any judgment, regardless of liability.
-Principle/Agent Legally required to indemnify agent.
(Insurance Co. Duties- to Defend & Indemnify)
Advanced Tort Theory
Direct Liability- 1.Solo EX I run over you in my car.
- 2.Concurrent (two or more acting in concert) EX Two people racing their cars kill third.
EX Dad leaves gun on the kitchen table, Mom leaves bullets out, Junior loads gun and kills someone.
- 3.Derivative (doing something negligent that enables someone else to do something negligent) EX Giving a drunk person car keys, they run someone else over.
-In all three- I was AFFIRMATIVELY negligent
Vicarious- You didn't do anything wrong, but we are holding you responsible because of your relationship to the person who did. (Social policy)
Direct/Vicarious both =liable (Negligence is negligence)
Respondeat Superior- "Let the higher-up answer"
-Why? The employer is in a better financial position to make the losses of the plaintiff whole.
-Must be within the COURSE and SCOPE of duties.
-FROLIC and DETOUR (on own recognizance)
-Can even apply to employees who commit intentional torts
Joint and Several Liability
- Should be Joint OR Several
- SEVERAL- Each Defendant being held responsible only for their share of the harm.
- JOINT- 100% of the judgment can be obtained from ANY Defendant.
-Problem- Pocket Targeting EX car accident, prove City 1% at fault, can collect all from them. Municipalities couldn't get insurance and went bankrupt.
-As a result, the law of Joint liability has been greatly restricted.
-Pure Joint Liability- DC, Alabama, Maine, Maryland, Massachusetts, Rhode Is.
-Abolished Joint Liability- Georgia, Wyoming, Florida(?)
-WA- Tort Reform Act of 1986
We ONLY have Joint liability if:
1. Agency (Principle/Agent)
2. Employment (Respondeat Superior, Employer/Employee)
3. Defendants Acting in Concert EX Drag racing, must act TOGETHER (NOT separate acts)
4. Multiple Defendants (& Fault Free Plaintiff (If P is even 1% at fault, fail)) against whom a judgment is taken.
EXAMPLE
A- 20% Severally 200k Jointly 900k (10% is not part of judgment)
B- 30% Severally 300k
C- 40% Severally 400k
D- 10% (but settles out)
$1,000,000.
If Plaintiff is even 1% liable, then joint liability does not exist.
EXAMPLE
A- 10% Severally 100k Jointly 250k
B- 10%
C- 5%
D- 75% (settles out)
$1,000,000.
Juries consistently find the settled party to be the most liability, usually because the remaining parties point at that party.
EXAMPLE
A 10%
B 20%
C 30%
D 40%
If A pays full $1,000,000. can A recover from co-defendant? Yes, contribution.
EXAMPLE
Plaintiff
-A - $2,000 settlement and gets released
-B - $20,000 judgment, 10% liable
Can B get 90% of judgment from A. Traditionally, yes. Problem, why would you settle, if co-defendant can come after you anyway?
-A- Settled are released in full.
-B- Reduced by 50% as a compromise.
CA- Must hold good faith hearing to determine whether the settlement is a "fair approximation" of liability.
-Remaining party gets credit/offset of amount settled.
-WA- Never jointly liable for the settling party's percentage of liability.
Contribution- Defendant recovering from co-Defendant anything they paid that was above and beyond their liability. Liability does not change, only financial responsibility.
Indemnification- Shifting liability. Allows you to recover 100% back even if you were 100% liable.
-General/Sub-Contractors Contract clause says Sub-C agree to indemnify General-C. Agree to pay any judgment, regardless of liability.
-Principle/Agent Legally required to indemnify agent.
(Insurance Co. Duties- to Defend & Indemnify)
Thursday, April 21, 2011
4.20.11 Criminal & Family Law
MIDTERM- NOT DUE NEXT WEEK
Week after next- Midterm-Pre-Sentence Report- From perspective of her attorney to judge, asking for lightest sentence possible. Look at presumptive charge (without terrorism charge), seriousness level, what are the factors that mitigate the seriousness of the offense. Do not take the stance that the charges are ridiculous. Judge wants to know that the person has learned something, has been rehabilitated. 3-5 pages.
LSF- Legally Significant Fact
Make sure that facts you use in applying law to facts are included in the statement of facts section.
Don't be afraid to reject what you've written, even if the sentences are good, if they don't accomplish what you're trying to do, set them aside and start again.
Ethics in Criminal Law
RPC-3.1
Fundamental difference between civil and criminal representation. Non-frivolous vs. establish every element.
RPC-3.8
Prosecutor has obligation to only follow allegations supported by probable cause.
Resources- RPC's, find ethical mentor, Attorney General issues published opinions, WA State Bar Hotline.
Confidentiality
RPC 1.4- Communication
Settlements/Pleas- Even if offer is ridiculous, the client must be informed.
RPC 1.2- Attorney determines methods.
Client determines objectives.
RPC 1.6- Disclosure obligations. (You should know this by heart.)
Criminal Law Process
Investigation (can run up to and into trial) > Charging > Arrest (bail, PC) > Arraignment (notice) > Pre-Trial Hearing (Case Scheduling Hearing) > Omnibus Hearing
PTH- motions to suppress or produce
State must turn over exculpatory (tends to negate guilt) evidence CrR 4.7
Not always clear cut.
OH- Last stop before trial, to determine if settlement can be made, or if an alternative to trial exists.
-What resolves a criminal case? Plea bargains- address underlying issue (drugs, etc.)
-Rehabilitation is expectation, although system is not set up to rehabilitate.
-Pleas- usually reduction in charge
--Low grade felony- judges hands are tied by sentence reform act, judge is required to sentence based on chart which calculates previous charges= Presumptive standard range- Non-exclusive, there may be other factors relevant to determination. Certainty but no leniency
Guilty Plea- I did it (no appeal)
Stipulation- You may read and decide (give up right to trial, presumption of innocence, may appeal)
Threat- Mandatory Minimums- strong motivation to make a deal
Stipulated Order of Continuance-SOC- Defendant will do A,B,C over a set period of time, and if completed, the charges will be dropped. (keeps it off the record, and hopefully addresses underlying issues)
Deferred Sentences- If Defendant agrees to deal, sentence will be pushed back set period of time, and at end of period if Defendant has acted accordingly, then sentence is eliminated. Record of conviction exists.
Appeal- Sitting en banc (the entire court sitting together, greater authority)
Commissioner- the dismissors of appeal requests
Harmless Evidentiary Error > Rule > Statute > Constitution
Week after next- Midterm-Pre-Sentence Report- From perspective of her attorney to judge, asking for lightest sentence possible. Look at presumptive charge (without terrorism charge), seriousness level, what are the factors that mitigate the seriousness of the offense. Do not take the stance that the charges are ridiculous. Judge wants to know that the person has learned something, has been rehabilitated. 3-5 pages.
LSF- Legally Significant Fact
Make sure that facts you use in applying law to facts are included in the statement of facts section.
Don't be afraid to reject what you've written, even if the sentences are good, if they don't accomplish what you're trying to do, set them aside and start again.
Ethics in Criminal Law
RPC-3.1
Fundamental difference between civil and criminal representation. Non-frivolous vs. establish every element.
RPC-3.8
Prosecutor has obligation to only follow allegations supported by probable cause.
Resources- RPC's, find ethical mentor, Attorney General issues published opinions, WA State Bar Hotline.
Confidentiality
RPC 1.4- Communication
Settlements/Pleas- Even if offer is ridiculous, the client must be informed.
RPC 1.2- Attorney determines methods.
Client determines objectives.
RPC 1.6- Disclosure obligations. (You should know this by heart.)
Criminal Law Process
Investigation (can run up to and into trial) > Charging > Arrest (bail, PC) > Arraignment (notice) > Pre-Trial Hearing (Case Scheduling Hearing) > Omnibus Hearing
PTH- motions to suppress or produce
State must turn over exculpatory (tends to negate guilt) evidence CrR 4.7
Not always clear cut.
OH- Last stop before trial, to determine if settlement can be made, or if an alternative to trial exists.
-What resolves a criminal case? Plea bargains- address underlying issue (drugs, etc.)
-Rehabilitation is expectation, although system is not set up to rehabilitate.
-Pleas- usually reduction in charge
--Low grade felony- judges hands are tied by sentence reform act, judge is required to sentence based on chart which calculates previous charges= Presumptive standard range- Non-exclusive, there may be other factors relevant to determination. Certainty but no leniency
Guilty Plea- I did it (no appeal)
Stipulation- You may read and decide (give up right to trial, presumption of innocence, may appeal)
Threat- Mandatory Minimums- strong motivation to make a deal
Stipulated Order of Continuance-SOC- Defendant will do A,B,C over a set period of time, and if completed, the charges will be dropped. (keeps it off the record, and hopefully addresses underlying issues)
Deferred Sentences- If Defendant agrees to deal, sentence will be pushed back set period of time, and at end of period if Defendant has acted accordingly, then sentence is eliminated. Record of conviction exists.
Appeal- Sitting en banc (the entire court sitting together, greater authority)
Commissioner- the dismissors of appeal requests
Harmless Evidentiary Error > Rule > Statute > Constitution
Wednesday, April 20, 2011
4.19.11 Complex Litigation
Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
-Form Groups
Lead Counsel will form policy and direction
Liaison counsel will communicate between attorneys and court
Trial counsel will try the case
Committees/steering committees will determine details of depositions, etc.
2. Less reliance on formal discovery
3. More active judicial activism- judge participation
-Courts establish schedule- deadline for all pleadings
-12b challenges not generally allowed
-Strict limitations on length of pleadings
-Motions for summary judgment popular, but not generally granted
-"Pivotal" test, no exploratory discovery, must be pithy
-Depository- common holding of documents
-Conference depositions- multiple people deposed at once
-Court may limit who can attend depositions and who can ask questions (to limit time)
-Geographical Haphazard Scheduling of Depositions-
-Multi-Track Depositions- simultaneous depositions in different locations
-Interrogatories- nearly unlimited as long as pivotal. Encourage "master" Rogs.
-Informal exchange of information encouraged- without use of rogs
Trial
-Long- can be difficult to find jurors that can sit throughout- Judge will "Time Qualify"
-6 days a week not uncommon
-Exhibits- all identified automatically moved into evidence
-Objections entertained only after hours to separate magistrate
-Juror notes- allowed due to length of trial, but do not leave courtroom
Most Common Types of Complex Litigation:
Class Actions-Rule 23 - Lots of small claims brought together
4 Hallmarks- must meet them all
1. Numerosity- sufficient number of people "so many as to cause impracticality of joinder under CR 19". In CA you are in unless you opt out. If possible the court would prefer to hear from each party (due process). Minimum contacts do not apply.
2. Common Question of Law or Fact- among claims
3. Class Representative- with claim Typical of Class
4. Class Representative- Fair and Adequate Representation of class
-Court must approve settlement
-Must make reasonable effort to inform all parties- TV ads
Multiple Litigation- many people suing for the same harm, but couldn't pass class action test
-One judge handles all suits
-Or all claims transferred to same jurisdiction
Criminal - NOT complex, but may become so if you have unusual publicity or unusual facts
(serial killers, organized crime- electronic surveillance admissibility, multiple victims, multiple jurisdictions)
-Bifurcation- Judges have power to severe parts and/or parties
-Sequestration of Jury- to avoid outside influence
-Jury Anonymity- for safety
Antitrust- Illegal Business Practice
-Having a monopoly is not illegal and never has been. Intent to monopolize is illegal.
-Sherman Act
-Counter Claim to patents
-Must show impact on interstate commerce
-Must show harm to self and to business in general
-Immunities and Exemptions- Organized Labor, Professional Baseball, Insurance, Rail Roads.
-Market Share definitions- once you control 70%
Mass Torts
-Mass disaster- happens at one time, but set number of plaintiffs
-Product Liability- Asbestos, breast implants- happen over time
-Often results in Bankruptcy
-Limited Funds Declared- to address future claims
-Scientific Evidence - critical
-May try issue by issue, etc.
Securities
-Interest in the work of another- Stocks, bonds, etc.
-Personal- misled as to value of stock, etc.
-SEC (Federal) can bring
-State Blue Sky Laws- "people would sell a piece of the sky if they could"
-As part of fraud, must be plead with specificity
-Complex definitions
-Damages vary widely- different stock purchase price, different remedies requested
Employment Discrimination
-Few fall into Complex Lit.
-Pattern or Practice-
-Damages- back pay, pain and suffering, lost wages. Usually split damages to separate hearings.
Patents- Title 35 (50 total) Complex in the traditional sense.
-Protect things, tangible things, for 20 years. (Shorter time span encourages innovation)
-Copyrights- protects creative endeavors- plays, etc. for life of author and 50 years after.
-Trademarks- logos, etc. for 10 years, but renewable in 10 year increments forever.
-Special Bar exam for Patent law
-Usually Bench Trials- no jury
-13th Circuit Court or Federal Supreme Court
CERCLA- Comprehensive Environmental Response Compensation & Liability Act (42 USC 9601 et. seq 1980)
-Created in effort to clean up toxic dumps
-Individual, EPA, state or local gov't, can all be plaintiffs.
-Personal Injury- not necessarily present
-PRP Potentially Responsible Party-Past (no time limit)/Current Owner/Operator/Arranged for disposal/Generatory/Transporters
-Strict Liability- must prove that co-defendant was the sole-cause/Or that discharge was an act of god
-If what you did was legal at the time that you did it- No excuse
-Problems- Generations and multiple levels of insurance, cross claims, counter claims- $ went to sorting out claims instead of cleaning sites.
RICO Racketeer Influenced & Corrupt Organization Act (18 USC 1961 et seq 1970)
-Designed to target organized crime business fronts- used to launder money, etc.
-If caught, could encounter triple damages
-Became an addition to every business claim- and a joke to judges
-Complex definitions
-Must show pattern of violations
1. More cooperation between parties (joint submissions, etc.)
-Form Groups
Lead Counsel will form policy and direction
Liaison counsel will communicate between attorneys and court
Trial counsel will try the case
Committees/steering committees will determine details of depositions, etc.
2. Less reliance on formal discovery
3. More active judicial activism- judge participation
-Courts establish schedule- deadline for all pleadings
-12b challenges not generally allowed
-Strict limitations on length of pleadings
-Motions for summary judgment popular, but not generally granted
-"Pivotal" test, no exploratory discovery, must be pithy
-Depository- common holding of documents
-Conference depositions- multiple people deposed at once
-Court may limit who can attend depositions and who can ask questions (to limit time)
-Geographical Haphazard Scheduling of Depositions-
-Multi-Track Depositions- simultaneous depositions in different locations
-Interrogatories- nearly unlimited as long as pivotal. Encourage "master" Rogs.
-Informal exchange of information encouraged- without use of rogs
Trial
-Long- can be difficult to find jurors that can sit throughout- Judge will "Time Qualify"
-6 days a week not uncommon
-Exhibits- all identified automatically moved into evidence
-Objections entertained only after hours to separate magistrate
-Juror notes- allowed due to length of trial, but do not leave courtroom
Most Common Types of Complex Litigation:
Class Actions-Rule 23 - Lots of small claims brought together
4 Hallmarks- must meet them all
1. Numerosity- sufficient number of people "so many as to cause impracticality of joinder under CR 19". In CA you are in unless you opt out. If possible the court would prefer to hear from each party (due process). Minimum contacts do not apply.
2. Common Question of Law or Fact- among claims
3. Class Representative- with claim Typical of Class
4. Class Representative- Fair and Adequate Representation of class
-Court must approve settlement
-Must make reasonable effort to inform all parties- TV ads
Multiple Litigation- many people suing for the same harm, but couldn't pass class action test
-One judge handles all suits
-Or all claims transferred to same jurisdiction
Criminal - NOT complex, but may become so if you have unusual publicity or unusual facts
(serial killers, organized crime- electronic surveillance admissibility, multiple victims, multiple jurisdictions)
-Bifurcation- Judges have power to severe parts and/or parties
-Sequestration of Jury- to avoid outside influence
-Jury Anonymity- for safety
Antitrust- Illegal Business Practice
-Having a monopoly is not illegal and never has been. Intent to monopolize is illegal.
-Sherman Act
-Counter Claim to patents
-Must show impact on interstate commerce
-Must show harm to self and to business in general
-Immunities and Exemptions- Organized Labor, Professional Baseball, Insurance, Rail Roads.
-Market Share definitions- once you control 70%
Mass Torts
-Mass disaster- happens at one time, but set number of plaintiffs
-Product Liability- Asbestos, breast implants- happen over time
-Often results in Bankruptcy
-Limited Funds Declared- to address future claims
-Scientific Evidence - critical
-May try issue by issue, etc.
Securities
-Interest in the work of another- Stocks, bonds, etc.
-Personal- misled as to value of stock, etc.
-SEC (Federal) can bring
-State Blue Sky Laws- "people would sell a piece of the sky if they could"
-As part of fraud, must be plead with specificity
-Complex definitions
-Damages vary widely- different stock purchase price, different remedies requested
Employment Discrimination
-Few fall into Complex Lit.
-Pattern or Practice-
-Damages- back pay, pain and suffering, lost wages. Usually split damages to separate hearings.
Patents- Title 35 (50 total) Complex in the traditional sense.
-Protect things, tangible things, for 20 years. (Shorter time span encourages innovation)
-Copyrights- protects creative endeavors- plays, etc. for life of author and 50 years after.
-Trademarks- logos, etc. for 10 years, but renewable in 10 year increments forever.
-Special Bar exam for Patent law
-Usually Bench Trials- no jury
-13th Circuit Court or Federal Supreme Court
CERCLA- Comprehensive Environmental Response Compensation & Liability Act (42 USC 9601 et. seq 1980)
-Created in effort to clean up toxic dumps
-Individual, EPA, state or local gov't, can all be plaintiffs.
-Personal Injury- not necessarily present
-PRP Potentially Responsible Party-Past (no time limit)/Current Owner/Operator/Arranged for disposal/Generatory/Transporters
-Strict Liability- must prove that co-defendant was the sole-cause/Or that discharge was an act of god
-If what you did was legal at the time that you did it- No excuse
-Problems- Generations and multiple levels of insurance, cross claims, counter claims- $ went to sorting out claims instead of cleaning sites.
RICO Racketeer Influenced & Corrupt Organization Act (18 USC 1961 et seq 1970)
-Designed to target organized crime business fronts- used to launder money, etc.
-If caught, could encounter triple damages
-Became an addition to every business claim- and a joke to judges
-Complex definitions
-Must show pattern of violations
Thursday, April 14, 2011
4.14.11 Business Law
Westlaw- Review finding a case
Find & Print- by party name- Rippe v. Doran- Citation history
Cannot cite to unpublished cases in WA court
Genuine Consent
A court also may refuse to enforce a contract if the agreement was not genuine- not made with a true understanding of the facts or not voluntary.
-Fraud/Misrepresentation- intentional/material fact/intent to deceive/justifiable reliance
-Innocent Misrepresentation (voidable)- material fact/exclusive knowledge of person making rep./not reasonably available to party deceived
-Mistake- Mutual- both parties make mistake of material fact. Sherwood v. Walker- Rosie the Cow Allows for rescind of contract
& Unilateral- contract stands
-Undue Influence- confidential or fiduciary duty to other party. Position of trust abused-Voidable
-Duress- Involuntary, coercion.
Contracts
-Statute of Frauds RCW 19.36.010
Required to be in writing to be enforceable
-Land
-Executor
-Payment of debt of another
-cannot performed within one year
-made in consideration of marriage
-goods worth more than $500
Must be signed and state parties and terms.
Statutory Construction
Parol Evidence Rule
Once the contract is written, parol or extrinsic evidence to contradict, vary or add to its terms.
Unless:
-the court determines the written agreement is incomplete or ambiguous
-The contract was modified or,
-the evidence is used to prove a defense
Court will only consider evidence outside the four corners of the document if there is ambiguity.
Plain Meaning vs. Context view
Negotiations
Know
-Business goals
-How contract can further goals
-Risks, what could go wrong?
-Issues raised by terms
-Balance of Control
-Remedies?
Meeting with the other party
-not litigation, adversarial
-work to achieve an agreement acceptable and clear to all parties
Drafting
-USE language that works. Plagiarism is encouraged.
-Use plain english.
-Be precise
Contract Parts
-Preamble- ID contract
-Recitals- Background
-Words of Agreement- Accordingly, the parties agree.
-Definition of important terms- for any complex concepts
-Endgame Provisions- what happens if there is a default? Give 30days written notice, etc.
-General Provisions- dictate what law governs.
-Signature Lines
-Substantive Provisions- See handout (given out in class and available on website)
Representations
-Statement of Fact
-Moment in time
-Intended to induce reliance
Warranty- promise that a certain fact exists
-the maker of the statement will pay damages if the statement is false and the recipient is injured as a result.
Innocent Misrepresentation
-Remedy- avoidance and restitution
Breach of Warranty
-No req. to show intent
-No req. reliance
-Remedy is damages- benefit of the bargain
Covenants
-Promise to perform
-Creates duty/obligation to perform
Right
-The flip side of covenant
Conditions
-Set of facts that must exist before a party is obligated to perform
Walk away- Absolute
Ongoing-
What is the law?
Contract itself creates a private law.
Enemies of Contract
-Ambiguity
-Use of unnecessary words
-Vagueness
-Inconsistencies
FOR NEXT WEEK:
Draft non-compete clause based on handout.
No page requirement. 1-2 pages suggested.
Find & Print- by party name- Rippe v. Doran- Citation history
Cannot cite to unpublished cases in WA court
Genuine Consent
A court also may refuse to enforce a contract if the agreement was not genuine- not made with a true understanding of the facts or not voluntary.
-Fraud/Misrepresentation- intentional/material fact/intent to deceive/justifiable reliance
-Innocent Misrepresentation (voidable)- material fact/exclusive knowledge of person making rep./not reasonably available to party deceived
-Mistake- Mutual- both parties make mistake of material fact. Sherwood v. Walker- Rosie the Cow Allows for rescind of contract
& Unilateral- contract stands
-Undue Influence- confidential or fiduciary duty to other party. Position of trust abused-Voidable
-Duress- Involuntary, coercion.
Contracts
-Statute of Frauds RCW 19.36.010
Required to be in writing to be enforceable
-Land
-Executor
-Payment of debt of another
-cannot performed within one year
-made in consideration of marriage
-goods worth more than $500
Must be signed and state parties and terms.
Statutory Construction
Parol Evidence Rule
Once the contract is written, parol or extrinsic evidence to contradict, vary or add to its terms.
Unless:
-the court determines the written agreement is incomplete or ambiguous
-The contract was modified or,
-the evidence is used to prove a defense
Court will only consider evidence outside the four corners of the document if there is ambiguity.
Plain Meaning vs. Context view
Negotiations
Know
-Business goals
-How contract can further goals
-Risks, what could go wrong?
-Issues raised by terms
-Balance of Control
-Remedies?
Meeting with the other party
-not litigation, adversarial
-work to achieve an agreement acceptable and clear to all parties
Drafting
-USE language that works. Plagiarism is encouraged.
-Use plain english.
-Be precise
Contract Parts
-Preamble- ID contract
-Recitals- Background
-Words of Agreement- Accordingly, the parties agree.
-Definition of important terms- for any complex concepts
-Endgame Provisions- what happens if there is a default? Give 30days written notice, etc.
-General Provisions- dictate what law governs.
-Signature Lines
-Substantive Provisions- See handout (given out in class and available on website)
Representations
-Statement of Fact
-Moment in time
-Intended to induce reliance
Warranty- promise that a certain fact exists
-the maker of the statement will pay damages if the statement is false and the recipient is injured as a result.
Innocent Misrepresentation
-Remedy- avoidance and restitution
Breach of Warranty
-No req. to show intent
-No req. reliance
-Remedy is damages- benefit of the bargain
Covenants
-Promise to perform
-Creates duty/obligation to perform
Right
-The flip side of covenant
Conditions
-Set of facts that must exist before a party is obligated to perform
Walk away- Absolute
Ongoing-
What is the law?
Contract itself creates a private law.
Enemies of Contract
-Ambiguity
-Use of unnecessary words
-Vagueness
-Inconsistencies
FOR NEXT WEEK:
Draft non-compete clause based on handout.
No page requirement. 1-2 pages suggested.
Wednesday, April 13, 2011
4.13.11 Criminal & Family Law
Common Issues with Bail Memo
- Strict adherence to IRAC format may not be best voice for advocacy.
- What is the call of the question? Clarify who you're writing for and to what end.
- Short and tight sentences that link the law to the facts.
- Outline everything before you write.
- Or write as you would normally and then go back and remove unnecessary language.
- Precision. Be very, very careful in summarizing.
-IRAC- Doesn't necessarily need a separate paragraph for each. IRAC can be accomplished in a single sentence.
- Use headers in place of introductory sentences. Not a Danger, Not a Flight Risk, etc.
- Prosecutorial misconduct
-Warrants-
Const. 4th Amend. & Art. 1, sec. 7
Exceptions- Time
Detective must present probable cause to Objective Fact Finder (Judge)
- Search - Scope? Whole house? One room only?
- Arrest - Who? Whole family? Carpenter who is there working?
Even where authority exists (warrant) there is always a question of scope.
Investigator must present reviewable evidence, which must be preserved. Affidavit.
Must define scope, time, and particularities of those involved. If it does not then it is invalid.
If the facts support an innocent explanation there is not probable cause.
Facts do not have to add up to certainty, only reasonable conclusion.
Facts look different in a law office than they do to a police officer in the field.
Warrant and crime must revolve around safe nexus of facts.
Contraband- something you're not permitted to have.
- Motion -
Request of court. Tell what you want and why.
Format
-Plea -Comes now the Defendant/Plaintiff and requests that...
-Authority - this motion is based on rule/law/files of this case
-Facts - As you see them. Be careful not to lose the judge here. Either by Affidavit or as will be presented at hearing. Include only legally significant facts. If the fact does not fit into a crucial legal argument, then it should not be included (unless there is an ulterior motive, emotionally significant, etc.).
-Law -"In a similar situation involving --- the Supreme Court said, (quote)." Quotes allow you to use stronger language then you would be permitted personally.
-Analysis -Logical and unavoidable conclusion. Law and analysis should always be linked.
Motion to Suppress
1. Basis for Stop
2. Littering
3. Arrest
4. SIA
5. Possession
Is there an alternative theory?
1. Suspicious VW "No WTO" written on side of car
2. Big protest
3. Reasonable Suspicion
4. Investigation
1. Erratic driving
2. Contact justified
3. Plain view (smell)
I. Motion
II. Facts
III. Argument/Authority
a. Officer lacked PC
b. Officer Exceeded Legitimate Scope
c. Legitimate Purpose Ended
List legally significant facts for each scenario
Evaluate which argument is strongest? Justify order.
Outline of motion we will draft for next week.
- Strict adherence to IRAC format may not be best voice for advocacy.
- What is the call of the question? Clarify who you're writing for and to what end.
- Short and tight sentences that link the law to the facts.
- Outline everything before you write.
- Or write as you would normally and then go back and remove unnecessary language.
- Precision. Be very, very careful in summarizing.
-IRAC- Doesn't necessarily need a separate paragraph for each. IRAC can be accomplished in a single sentence.
- Use headers in place of introductory sentences. Not a Danger, Not a Flight Risk, etc.
- Prosecutorial misconduct
-Warrants-
Const. 4th Amend. & Art. 1, sec. 7
Exceptions- Time
Detective must present probable cause to Objective Fact Finder (Judge)
- Search - Scope? Whole house? One room only?
- Arrest - Who? Whole family? Carpenter who is there working?
Even where authority exists (warrant) there is always a question of scope.
Investigator must present reviewable evidence, which must be preserved. Affidavit.
Must define scope, time, and particularities of those involved. If it does not then it is invalid.
If the facts support an innocent explanation there is not probable cause.
Facts do not have to add up to certainty, only reasonable conclusion.
Facts look different in a law office than they do to a police officer in the field.
Warrant and crime must revolve around safe nexus of facts.
Contraband- something you're not permitted to have.
- Motion -
Request of court. Tell what you want and why.
Format
-Plea -Comes now the Defendant/Plaintiff and requests that...
-Authority - this motion is based on rule/law/files of this case
-Facts - As you see them. Be careful not to lose the judge here. Either by Affidavit or as will be presented at hearing. Include only legally significant facts. If the fact does not fit into a crucial legal argument, then it should not be included (unless there is an ulterior motive, emotionally significant, etc.).
-Law -"In a similar situation involving --- the Supreme Court said, (quote)." Quotes allow you to use stronger language then you would be permitted personally.
-Analysis -Logical and unavoidable conclusion. Law and analysis should always be linked.
Motion to Suppress
1. Basis for Stop
2. Littering
3. Arrest
4. SIA
5. Possession
Is there an alternative theory?
1. Suspicious VW "No WTO" written on side of car
2. Big protest
3. Reasonable Suspicion
4. Investigation
1. Erratic driving
2. Contact justified
3. Plain view (smell)
I. Motion
II. Facts
III. Argument/Authority
a. Officer lacked PC
b. Officer Exceeded Legitimate Scope
c. Legitimate Purpose Ended
List legally significant facts for each scenario
Evaluate which argument is strongest? Justify order.
Outline of motion we will draft for next week.
Tuesday, April 12, 2011
4.12.11 Complex Litigation
Insurance (Contract Law)
I. Terminology
II. Coverage Issues
III. Types of Insurance
IV. Insurer's Duties/Bad Faith
Insured/Assured- the person who shifts the risk to the insurance company
Insurer/Assurer- the party that bears the risk
Premium- consideration (payment)
Deductible- the amount of risk the insured retains
Proceeds- when an insured has a loss and is reimbursed by the insurer
Beneficiary- the person to whom the loss proceeds are paid
Occurrence- the risk that the insurer is insuring against (car accident, etc.)
- Must be:
- Sudden -occurring all at once, and
- Accidental -non-intentional (intentional acts are never insurable)
Claim -when you demand that the insurer pay
Insurable Interest -you must have an insurable interest in order to insure
(You can take out a life insurance policy on someone who owes you money, as long as it does not exceed the amount owed.)
Cancellation -either you or the insurance company discontinue your coverage
Lapse -allow policy to run out or fail to make payment (can be reported to credit profile, always cancel.)
FICO score- how much money you owe 30%, mostly defaults, and lapse of insurance, and amount of credit/how much you owe, age of account, etc.
Knowing what's covered- READ YOUR POLICY!
Fire Insurance-
Hostile - one which originates in a place it's not supposed to be
Friendly- one which originates in a place it IS supposed to be (not covered)
Home Owners Insurance
Hurricanes, rainstorms, tornados, police action, riots, vandalism & theft -covered
Floods, earthquakes, soldier action, insurrection, nuclear disaster, termites, mold -not covered
Top Calamities- 1.Non-flood water damage 2. Wind 3. Hail, Combined =81%
Types of Insurance -Infinite
Pet insurance, divorce insurance, etc.
Auto Insurance- Combo Property/Liability
-Liability - the only insurance that WA requires, pays other driver if you are at fault
-UIM/UM - UnInsured/UnderInsured pays you if the other driver is at fault
-Comprehensive -covers your vehicle from non-operational losses (trees, theft, storms, etc.)
-Collision -covers damage to vehicle if you have a collision
-PIP/Med Pay -pay your medical bills and your passengers medical bills, whether or not you're at fault
-Single/Limits/Aggregate -25/50/10 how much insurance will pay to any one player/how much insurance will pay for entire accident/property damage maximum
(Auto insurance does not cover the contents of the vehicle)
How to save money-
If your car isn't worth much you may not need comprehensive/collision.
Always have liability and UIM/UM. The less insurance you carry the lower your premium. Don't drop coverage amount. Increase your deductible to save money. You probably won't turn in a smaller loss anyway, since your rates would go up. Typically if you increase your deductible to $1000 your decrease your premium 40%, without sacrificing coverage.
Personal Property -Home Owner/Renters
Covers the personal property, not the location of the property (doesn't matter where)
5 Things Most Likely to be Stolen out of your car (and NOT covered)
1. Jewelry
2. Furs
3. Cash/Coins
4. Guns
5. Silver
-Indemnity Contract -Insurer gives value of claim, not face value of policy (except Life) you must establish value of loss (through receipts, etc.)
-Replacement/ACV (Actual Cash Value) -sufficient money to buy item of like kind and value/actual cash value
Marine -covers losses in shipping of goods and expectation profit
Title -insures title of property
Inland Marine/CGL (Comprehensive General Liability) -covers building and equipment for businesses
Subrogation Clause -once insurance company pays your loss they step into your shoes and assume all rights that you had (gives them the right to sue party at fault)
Increase of Hazard Clause - allows for adjustment based on reevaluation of risk
PUP (personal umbrella policy) -(Bruce says they're wonderful) adds coverage on top of your other policies
Professional Liability/E&O- Errors and omissions -malpractice insurance
Life
Difference is how you make payments:
-Whole/Ordinary/Straight -premium is set and never changes (can be expensive) Build up a cash surrender value (can borrow against the policy)
-Term -Year/5yr/10yr increment periods, cheap while you're young, but gets expensive as you age.
Do you need life insurance? Does anybody care financially if you die?
If so, usually 7-10X your income to replace you.
Disability -pays you if you are injured or disabled. Tip to save $- you only need 65% of income because it is not taxable.
Grace Period -periods of time after the expiration date of the policy wherein the insured may reinstate the policy without penalty- but during the grace period you are UNinsured
Duty to Defend/Indemnify -insurance company will defend claim/make loss right
Reservation of Rights - issued in non-covered occurrences (insurers owe their clients a FIDUCIARY duty) reserve right to not proceed in insured's defense
"Insurers are in inherent conflict with their insured."
Insurers only make money by increasing premiums or denying claims
Bad Faith -denying claims out of hand
Law in WA says that if the insurance company has the opportunity to settle within the policy limits and doesn't, and goes to trial instead, they face the entire settlement.
Your FICO scores go down if you are named in a lawsuit. (Farmers, Allstate, State Farm- majority of lawsuits.) (Bruce has Metlife, would recommend Progressive, Pemco.)
--Complex Litigation--
One or more related cases which present unusual problems and require extraordinary measures or special treatment.
-Multiple related cases, multiple parties, multiple jurisdiction or all three.
-FRCP 16, 26, 37, 42, and 83. Additional grants of authority to court to handle complex lit.
-Chambers v. NASCO, 111 S.G. 2123, 2132-37 (1991)
Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
2. Less reliance on formal discovery
3. More active judicial participation
I. Terminology
II. Coverage Issues
III. Types of Insurance
IV. Insurer's Duties/Bad Faith
Insured/Assured- the person who shifts the risk to the insurance company
Insurer/Assurer- the party that bears the risk
Premium- consideration (payment)
Deductible- the amount of risk the insured retains
Proceeds- when an insured has a loss and is reimbursed by the insurer
Beneficiary- the person to whom the loss proceeds are paid
Occurrence- the risk that the insurer is insuring against (car accident, etc.)
- Must be:
- Sudden -occurring all at once, and
- Accidental -non-intentional (intentional acts are never insurable)
Claim -when you demand that the insurer pay
Insurable Interest -you must have an insurable interest in order to insure
(You can take out a life insurance policy on someone who owes you money, as long as it does not exceed the amount owed.)
Cancellation -either you or the insurance company discontinue your coverage
Lapse -allow policy to run out or fail to make payment (can be reported to credit profile, always cancel.)
FICO score- how much money you owe 30%, mostly defaults, and lapse of insurance, and amount of credit/how much you owe, age of account, etc.
Knowing what's covered- READ YOUR POLICY!
Fire Insurance-
Hostile - one which originates in a place it's not supposed to be
Friendly- one which originates in a place it IS supposed to be (not covered)
Home Owners Insurance
Hurricanes, rainstorms, tornados, police action, riots, vandalism & theft -covered
Floods, earthquakes, soldier action, insurrection, nuclear disaster, termites, mold -not covered
Top Calamities- 1.Non-flood water damage 2. Wind 3. Hail, Combined =81%
Types of Insurance -Infinite
Pet insurance, divorce insurance, etc.
Auto Insurance- Combo Property/Liability
-Liability - the only insurance that WA requires, pays other driver if you are at fault
-UIM/UM - UnInsured/UnderInsured pays you if the other driver is at fault
-Comprehensive -covers your vehicle from non-operational losses (trees, theft, storms, etc.)
-Collision -covers damage to vehicle if you have a collision
-PIP/Med Pay -pay your medical bills and your passengers medical bills, whether or not you're at fault
-Single/Limits/Aggregate -25/50/10 how much insurance will pay to any one player/how much insurance will pay for entire accident/property damage maximum
(Auto insurance does not cover the contents of the vehicle)
How to save money-
If your car isn't worth much you may not need comprehensive/collision.
Always have liability and UIM/UM. The less insurance you carry the lower your premium. Don't drop coverage amount. Increase your deductible to save money. You probably won't turn in a smaller loss anyway, since your rates would go up. Typically if you increase your deductible to $1000 your decrease your premium 40%, without sacrificing coverage.
Personal Property -Home Owner/Renters
Covers the personal property, not the location of the property (doesn't matter where)
5 Things Most Likely to be Stolen out of your car (and NOT covered)
1. Jewelry
2. Furs
3. Cash/Coins
4. Guns
5. Silver
-Indemnity Contract -Insurer gives value of claim, not face value of policy (except Life) you must establish value of loss (through receipts, etc.)
-Replacement/ACV (Actual Cash Value) -sufficient money to buy item of like kind and value/actual cash value
Marine -covers losses in shipping of goods and expectation profit
Title -insures title of property
Inland Marine/CGL (Comprehensive General Liability) -covers building and equipment for businesses
Subrogation Clause -once insurance company pays your loss they step into your shoes and assume all rights that you had (gives them the right to sue party at fault)
Increase of Hazard Clause - allows for adjustment based on reevaluation of risk
PUP (personal umbrella policy) -(Bruce says they're wonderful) adds coverage on top of your other policies
Professional Liability/E&O- Errors and omissions -malpractice insurance
Life
Difference is how you make payments:
-Whole/Ordinary/Straight -premium is set and never changes (can be expensive) Build up a cash surrender value (can borrow against the policy)
-Term -Year/5yr/10yr increment periods, cheap while you're young, but gets expensive as you age.
Do you need life insurance? Does anybody care financially if you die?
If so, usually 7-10X your income to replace you.
Disability -pays you if you are injured or disabled. Tip to save $- you only need 65% of income because it is not taxable.
Grace Period -periods of time after the expiration date of the policy wherein the insured may reinstate the policy without penalty- but during the grace period you are UNinsured
Duty to Defend/Indemnify -insurance company will defend claim/make loss right
Reservation of Rights - issued in non-covered occurrences (insurers owe their clients a FIDUCIARY duty) reserve right to not proceed in insured's defense
"Insurers are in inherent conflict with their insured."
Insurers only make money by increasing premiums or denying claims
Bad Faith -denying claims out of hand
Law in WA says that if the insurance company has the opportunity to settle within the policy limits and doesn't, and goes to trial instead, they face the entire settlement.
Your FICO scores go down if you are named in a lawsuit. (Farmers, Allstate, State Farm- majority of lawsuits.) (Bruce has Metlife, would recommend Progressive, Pemco.)
--Complex Litigation--
One or more related cases which present unusual problems and require extraordinary measures or special treatment.
-Multiple related cases, multiple parties, multiple jurisdiction or all three.
-FRCP 16, 26, 37, 42, and 83. Additional grants of authority to court to handle complex lit.
-Chambers v. NASCO, 111 S.G. 2123, 2132-37 (1991)
Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
2. Less reliance on formal discovery
3. More active judicial participation
Thursday, April 7, 2011
4.7.11 Business Law
Elements of a crime
-Mens rea
-&-
-Bad act
Business owners form intent.
Criminal Law
Businesses as offenders and as victims
Victim- Theft, retail theft (shoplifting), fraud, embezzlement, arson.
How does a business commit a crime?
Who forms the intent?
Who commits the act?
RICO
Prohibits two or more "racketeering acts"
-Investing in or acquiring a legitimate business with criminal money
-Maintaining or acquiring a business through criminal activity
-Operating a business through criminal activity
-Used against tobacco companies
Honest Fraud Theory
No crime if done not for own benefit but for companies benefit? Thrown out.
Contracts
Formation and Legality
Eventual Assignment (due week AFTER next) -Draft a contract term
Damages from breach of contract are dissimilar from tort damages.
-Only damages under the breach are considered in remedy.
"The whole duty of government is to prevent crime and to preserve contracts."
Sources of Contract Law
Constitution
-Fundamental right recognized in both state and federal constitutions
Common Law- Most contract law
-Importance of the Restatement
- Treatises give detailed explanation of minute details
- Look for Restatement in Westlaw to see if state has adopted a particular section
-To research contract law issues start with Washington Digest
Uniform Commercial Code
- ARticle 2 RCW 62A
-For ease of commerce across states
What is a contract?
A contract is a promise that the law will enforce.
-Contract is "private law" between parties
Questions in a contract case
-Is there an agreement?
--Is there consideration?
--Is it legal?
--Did the parties have the capacity to contract?
-What are the terms?
-What does those terms mean?
Four Essential Elements
1. Agreement
Meeting of minds/bargain?
Valid offer- promise to do or not do something
-intent to make offer, not a joke, must be definite
-must state: 1. parties, 2. subject matter, 3. consideration and 4. time for performance
-Communication to offeree- may be oral, but much more difficult to enforce.
Termination of an Offer
-An offer may be terminated before it is accepted
--By action of either party
--By operation of law- if it becomes illegal, etc.
Acceptance
And offer invites the offeree to
-Accept
-Reject or
-Make a counteroffer (in which case the offeree becomes offeror)
-Time must be reasonable
-Offeror may set terms of acceptance
Mirror Image Rule
If the offer is presented in one way, the acceptance must be done in same way.
Bilateral- Promise for promise
Unilateral- Promise for action
Consideration
A bargained for exchange- each side is inducing the other to agree.
-The thing bargained for can be a promise or action.
-The thing bargained for can be a benefit to the promisor or a detriment to the promisee.
-Gifts do not apply
Adequacy
-Court will generally not weigh the value of the promise.
-If the parties are satisfied with the bargain initially, then a court will not consider the value of the bargain.
Exceptions- Not enforceable
1. Past considerations
2. Pre-existing duty
3. Accord in satisfaction of liquidated debt (cannot settle for less than total amount if total amount is known.)
4. Illusory Promises
EX p. 142 Real estate deal. Ernest money agreement- $5000 check held in escrow for 60 days by bank.
Seller gives up time and other offers. Getting nothing.
Buyer gets time to inspect and decide. Giving up nothing.
Equitable Remedies
-Non-monetary solutions
1. Promissory Estoppel/Detrimental Reliance
Must show statement was made knowing that it would be relied upon, it was relied upon, to their detriment, and they law should remedy.
2. Quasi Contracts
A. Plaintiff gave some benefit to the defendant
B. Reasonably expected to be paid
C. Defendant would be unjustly enriched if plaintiff is not paid
Is the Agreement Legal?
If not it is VOID
Gambling in WA
Authorized or criminalized by RCW 9.46
Tribal Gaming - allows state to contract with tribes for gambling.
Tribal Law
Individual law and courts. Semi-sovereign states. Some federally recognized and some not.
Insurance - a wager?
Life Insurance
-Requires insured to have an insurable interest in the subject of the policy
-The objection to these policies "was not the temptation to murder but the fact that such wagers came to be regarded as mischievous kind of gaming."
Usurious Contracts
Excess interest in generally defined in the statute. RCW 19.52
(Most consumer contracts not governed by such statutes. EX credit cards, payday loans.)
Licensing Statutes
Limit right of someone to receive money under contract that requires a license but does not actually have one.
EX Public Protection- Construction work performed without a license may not collect for work.
Public Policy Violations
A court may refuse to enforce a contract if, based on common law principles, it violates "public policy"
How the Supreme Court decides cases- video on tvw.org
Restraint of Trade
Free trade is the basis of the American Economy and any bargain not to compete is suspect and, generally, unenforceable. There are two common exceptions:
1. Sale of a business
The buyer of an existing business may ask the seller to agree not to compete with the business. This agreement is enforceable if it is reasonable:
-In time
-Geographic place
-Scope of Activity
Court may change these terms in contract based on reasonableness.
2. Employment
Non-competition clause
-Time
-Geographic limits
-Scope of activity
Exculpatory Clauses
Release one of the parties from liability if the other party is injured.
Unenforceable only if:
-Attempts to avoid liability for intentional torts or gross negligence
-Parties have greatly disparate bargaining power
-Clause is not clearly written or visible
Parent cannot release liability on behalf of child. Parent cannot settle claim of minor.
Unconscionable Contracts
One that the court refuses to enforce because of fundamental unfairness.
"No man in his sense and not under delusion would make... and no honest and fair man would accept."
Seller/Buyer Negotiation
Read handout and think about what terms and conditions you want.
Did the parties have the capacity to agree?
Lack capacity:
-Minority
-Intoxication
-Mental incompetence
at the time the contract is formed
Contracts with minors
In WA the age of majority for contracting is 18.
Contract with minor is not void, only voidable. And may be
-Disaffirmed
Only if: the disaffirmance is timely
AND the minor returns the consideration received-to the extent possible.
Necessaries (food, clothing, shelter) may not be disaffirmed.
-Ratified
After becoming an adult, the minor may ratify the contract If the contract is ratified, it is enforceable.
Mental Impairment
The court must have determined impairment.
A contract with a person who has a mental impairment is governed by the same principles that apply to a contract with a minor- the incapacitated person may either disaffirm or ratify.
Intoxication
General rule is that intoxication is not a defense to enforcement of a contract.
However, if intoxication results in an inability to have the requisite mental capacity to make a contract then the contract is voidable.
-This is a very high burden.
-Mens rea
-&-
-Bad act
Business owners form intent.
Criminal Law
Businesses as offenders and as victims
Victim- Theft, retail theft (shoplifting), fraud, embezzlement, arson.
How does a business commit a crime?
Who forms the intent?
Who commits the act?
RICO
Prohibits two or more "racketeering acts"
-Investing in or acquiring a legitimate business with criminal money
-Maintaining or acquiring a business through criminal activity
-Operating a business through criminal activity
-Used against tobacco companies
Honest Fraud Theory
No crime if done not for own benefit but for companies benefit? Thrown out.
Contracts
Formation and Legality
Eventual Assignment (due week AFTER next) -Draft a contract term
Damages from breach of contract are dissimilar from tort damages.
-Only damages under the breach are considered in remedy.
"The whole duty of government is to prevent crime and to preserve contracts."
Sources of Contract Law
Constitution
-Fundamental right recognized in both state and federal constitutions
Common Law- Most contract law
-Importance of the Restatement
- Treatises give detailed explanation of minute details
- Look for Restatement in Westlaw to see if state has adopted a particular section
-To research contract law issues start with Washington Digest
Uniform Commercial Code
- ARticle 2 RCW 62A
-For ease of commerce across states
What is a contract?
A contract is a promise that the law will enforce.
-Contract is "private law" between parties
Questions in a contract case
-Is there an agreement?
--Is there consideration?
--Is it legal?
--Did the parties have the capacity to contract?
-What are the terms?
-What does those terms mean?
Four Essential Elements
1. Agreement
Meeting of minds/bargain?
Valid offer- promise to do or not do something
-intent to make offer, not a joke, must be definite
-must state: 1. parties, 2. subject matter, 3. consideration and 4. time for performance
-Communication to offeree- may be oral, but much more difficult to enforce.
Termination of an Offer
-An offer may be terminated before it is accepted
--By action of either party
--By operation of law- if it becomes illegal, etc.
Acceptance
And offer invites the offeree to
-Accept
-Reject or
-Make a counteroffer (in which case the offeree becomes offeror)
-Time must be reasonable
-Offeror may set terms of acceptance
Mirror Image Rule
If the offer is presented in one way, the acceptance must be done in same way.
Bilateral- Promise for promise
Unilateral- Promise for action
Consideration
A bargained for exchange- each side is inducing the other to agree.
-The thing bargained for can be a promise or action.
-The thing bargained for can be a benefit to the promisor or a detriment to the promisee.
-Gifts do not apply
Adequacy
-Court will generally not weigh the value of the promise.
-If the parties are satisfied with the bargain initially, then a court will not consider the value of the bargain.
Exceptions- Not enforceable
1. Past considerations
2. Pre-existing duty
3. Accord in satisfaction of liquidated debt (cannot settle for less than total amount if total amount is known.)
4. Illusory Promises
EX p. 142 Real estate deal. Ernest money agreement- $5000 check held in escrow for 60 days by bank.
Seller gives up time and other offers. Getting nothing.
Buyer gets time to inspect and decide. Giving up nothing.
Equitable Remedies
-Non-monetary solutions
1. Promissory Estoppel/Detrimental Reliance
Must show statement was made knowing that it would be relied upon, it was relied upon, to their detriment, and they law should remedy.
2. Quasi Contracts
A. Plaintiff gave some benefit to the defendant
B. Reasonably expected to be paid
C. Defendant would be unjustly enriched if plaintiff is not paid
Is the Agreement Legal?
If not it is VOID
Gambling in WA
Authorized or criminalized by RCW 9.46
Tribal Gaming - allows state to contract with tribes for gambling.
Tribal Law
Individual law and courts. Semi-sovereign states. Some federally recognized and some not.
Insurance - a wager?
Life Insurance
-Requires insured to have an insurable interest in the subject of the policy
-The objection to these policies "was not the temptation to murder but the fact that such wagers came to be regarded as mischievous kind of gaming."
Usurious Contracts
Excess interest in generally defined in the statute. RCW 19.52
(Most consumer contracts not governed by such statutes. EX credit cards, payday loans.)
Licensing Statutes
Limit right of someone to receive money under contract that requires a license but does not actually have one.
EX Public Protection- Construction work performed without a license may not collect for work.
Public Policy Violations
A court may refuse to enforce a contract if, based on common law principles, it violates "public policy"
How the Supreme Court decides cases- video on tvw.org
Restraint of Trade
Free trade is the basis of the American Economy and any bargain not to compete is suspect and, generally, unenforceable. There are two common exceptions:
1. Sale of a business
The buyer of an existing business may ask the seller to agree not to compete with the business. This agreement is enforceable if it is reasonable:
-In time
-Geographic place
-Scope of Activity
Court may change these terms in contract based on reasonableness.
2. Employment
Non-competition clause
-Time
-Geographic limits
-Scope of activity
Exculpatory Clauses
Release one of the parties from liability if the other party is injured.
Unenforceable only if:
-Attempts to avoid liability for intentional torts or gross negligence
-Parties have greatly disparate bargaining power
-Clause is not clearly written or visible
Parent cannot release liability on behalf of child. Parent cannot settle claim of minor.
Unconscionable Contracts
One that the court refuses to enforce because of fundamental unfairness.
"No man in his sense and not under delusion would make... and no honest and fair man would accept."
Seller/Buyer Negotiation
Read handout and think about what terms and conditions you want.
Did the parties have the capacity to agree?
Lack capacity:
-Minority
-Intoxication
-Mental incompetence
at the time the contract is formed
Contracts with minors
In WA the age of majority for contracting is 18.
Contract with minor is not void, only voidable. And may be
-Disaffirmed
Only if: the disaffirmance is timely
AND the minor returns the consideration received-to the extent possible.
Necessaries (food, clothing, shelter) may not be disaffirmed.
-Ratified
After becoming an adult, the minor may ratify the contract If the contract is ratified, it is enforceable.
Mental Impairment
The court must have determined impairment.
A contract with a person who has a mental impairment is governed by the same principles that apply to a contract with a minor- the incapacitated person may either disaffirm or ratify.
Intoxication
General rule is that intoxication is not a defense to enforcement of a contract.
However, if intoxication results in an inability to have the requisite mental capacity to make a contract then the contract is voidable.
-This is a very high burden.
4.6.11 Criminal & Family Law
CrR 1.1
Local rules actually supersede state rules.
Cultivating relationships with court clerks, etc., can be invaluable.
Constitution always prevails over court rules.
CrR 8.1 and 8.2- criminal crosses over in to CR 6 and CR 7(b) govern.
Motions
-Request that courts issue an order.
-Issue on 3.5 hearing is always a confession.
-Issue on 3.6 hearing may be physical evidence or statements by those other than the accused.
Search without Warrant
-WA Const Art. 1 Sec 7- search done without warrant is invalid, unless one of the rare exceptions is applied.
-Search incident to arrest-
Basis for Police Action Without Warrant:
Probable Cause- Reasonable belief, based on facts, that a crime occurred and suspect has been pinpointed. Gives officer the right to arrest and further search.
Reasonable Suspicion- Specific articulable facts (more than a hunch) that criminality is afoot. (More general, no suspect.) Gives officer the right to investigate.
Terry v. Ohio - "a Terry stop" when officer can identify specific facts that lead to reasonable suspicion, gives right to limited investigative stop to flesh out whether or not there is probable cause.
Motions
-Can be used to create a negotiating position
-Can be used to develop evidence- motion to compel. Motion to compel production of evidence based on CrR 4.7.
-Also consider what it is that you are trying to say to the court. Purpose. Impression.
-Consider how likely the court is to actually read your motion. When writing to busy court make important information easy to find. Always use bold face on subheadings.
Analysis of Search- "Can the cop do what he did?"
Point by point, what alerted officer? What did the officer do and was it justifiable? There must be a justifiable reason for every officer action. What officer had, knew, and scope based facts at that time. Was every new act justifiable based what was known or discovered based on the previous point? Then move to next point and analyze again.
EX Weaving in lane. Is it illegal? No. Officer turns on lights. Driver is seized. But if articulable fact is explained away (driver is looking for address, etc.), then fact ceases to be an articulable fact in support of reasonable suspicion. DUI squad cops all have video cameras in their cars. Always compel the video if not produced.
Consent
A person can consent to waive their constitutional right.
"Do you have any drugs or weapons in the car?" Is that question justifiable based on a speeding car? No. You can ignore the question and the officer should move on. But if you answer they can act on that. Your statement adds to the facts upon which he is acting.
Was an arrest made?
How do you know if you are under arrest? Handcuffs? Not always. Can be a temporary detention for officer safety.
Miranda=Arrest
State v. Stroud
SIA Search Incident to Arrest -Exception
1. Arrest
2. Possible weapons -must be within reach
3. Possibility of evidence being destroyed -must be within reach
4. Reasonable time
Trunk (or other locked container) always off limits in this case, never within reach.
Plain View Doctrine
If officer sees something illegal they have the right to investigate.
Is a search permitted with an arrest?
Trunk is generally off limits. Even if search dog alerts on trunk, officer must get warrant to search.
Exigent circumstances- those that warrant action that does not confirm to procedure.
Analysis of Homework Assignment
1. Identify Rule - CrR 3.2
2. Significant Release Factors
- No criminal record
- Signed a lease
- Law school student
- Married with a child
3. Order those factors - Strong to Weak
4. Diffuse worst facts
"My client is at a distinct disadvantage because she has recently moved to town."
-It is important not to overstate the facts. The judge will learn more about the case eventually.
-Miranda protects against self-incrimination. Miranda is NOT a requirement for arrest.
-Police CAN lie to you.
-How to plead is always the client's decision.
CrR 3.2 Intro "probable cause"
If there are insufficient facts to believe that a crime occurred, or insufficient facts to believe that this person committed that crime, there is no probable cause.
FOR NEXT WEEK- Memo to Attorney
Using alternative facts in handout, write memo to the attorney applying the analysis that we discussed in class today. Find and read the case in the handout. Analyze for attorney whether motion to suppress is warranted using cases cited in handout. Logical flow and organization. Use headers and subheaders. Apply facts to rules and come to conclusion. "We should/not file a motion to suppress because..." 2 pages max. Don't try to address every issue, but do fully analyze all issues addressed.
Local rules actually supersede state rules.
Cultivating relationships with court clerks, etc., can be invaluable.
Constitution always prevails over court rules.
CrR 8.1 and 8.2- criminal crosses over in to CR 6 and CR 7(b) govern.
Motions
-Request that courts issue an order.
-Issue on 3.5 hearing is always a confession.
-Issue on 3.6 hearing may be physical evidence or statements by those other than the accused.
Search without Warrant
-WA Const Art. 1 Sec 7- search done without warrant is invalid, unless one of the rare exceptions is applied.
-Search incident to arrest-
Basis for Police Action Without Warrant:
Probable Cause- Reasonable belief, based on facts, that a crime occurred and suspect has been pinpointed. Gives officer the right to arrest and further search.
Reasonable Suspicion- Specific articulable facts (more than a hunch) that criminality is afoot. (More general, no suspect.) Gives officer the right to investigate.
Terry v. Ohio - "a Terry stop" when officer can identify specific facts that lead to reasonable suspicion, gives right to limited investigative stop to flesh out whether or not there is probable cause.
Motions
-Can be used to create a negotiating position
-Can be used to develop evidence- motion to compel. Motion to compel production of evidence based on CrR 4.7.
-Also consider what it is that you are trying to say to the court. Purpose. Impression.
-Consider how likely the court is to actually read your motion. When writing to busy court make important information easy to find. Always use bold face on subheadings.
Analysis of Search- "Can the cop do what he did?"
Point by point, what alerted officer? What did the officer do and was it justifiable? There must be a justifiable reason for every officer action. What officer had, knew, and scope based facts at that time. Was every new act justifiable based what was known or discovered based on the previous point? Then move to next point and analyze again.
EX Weaving in lane. Is it illegal? No. Officer turns on lights. Driver is seized. But if articulable fact is explained away (driver is looking for address, etc.), then fact ceases to be an articulable fact in support of reasonable suspicion. DUI squad cops all have video cameras in their cars. Always compel the video if not produced.
Consent
A person can consent to waive their constitutional right.
"Do you have any drugs or weapons in the car?" Is that question justifiable based on a speeding car? No. You can ignore the question and the officer should move on. But if you answer they can act on that. Your statement adds to the facts upon which he is acting.
Was an arrest made?
How do you know if you are under arrest? Handcuffs? Not always. Can be a temporary detention for officer safety.
Miranda=Arrest
State v. Stroud
SIA Search Incident to Arrest -Exception
1. Arrest
2. Possible weapons -must be within reach
3. Possibility of evidence being destroyed -must be within reach
4. Reasonable time
Trunk (or other locked container) always off limits in this case, never within reach.
Plain View Doctrine
If officer sees something illegal they have the right to investigate.
Is a search permitted with an arrest?
Trunk is generally off limits. Even if search dog alerts on trunk, officer must get warrant to search.
Exigent circumstances- those that warrant action that does not confirm to procedure.
Analysis of Homework Assignment
1. Identify Rule - CrR 3.2
2. Significant Release Factors
- No criminal record
- Signed a lease
- Law school student
- Married with a child
3. Order those factors - Strong to Weak
4. Diffuse worst facts
"My client is at a distinct disadvantage because she has recently moved to town."
-It is important not to overstate the facts. The judge will learn more about the case eventually.
-Miranda protects against self-incrimination. Miranda is NOT a requirement for arrest.
-Police CAN lie to you.
-How to plead is always the client's decision.
CrR 3.2 Intro "probable cause"
If there are insufficient facts to believe that a crime occurred, or insufficient facts to believe that this person committed that crime, there is no probable cause.
FOR NEXT WEEK- Memo to Attorney
Using alternative facts in handout, write memo to the attorney applying the analysis that we discussed in class today. Find and read the case in the handout. Analyze for attorney whether motion to suppress is warranted using cases cited in handout. Logical flow and organization. Use headers and subheaders. Apply facts to rules and come to conclusion. "We should/not file a motion to suppress because..." 2 pages max. Don't try to address every issue, but do fully analyze all issues addressed.
Tuesday, April 5, 2011
4.5.11 Complex Litigation
2 Handouts
-Constitution
-"cheat sheet" on EP Clause
No book for class.
Different subject will be covered each week. Be sure to ask questions and clarifications AS WE GO ALONG.
Constitution- Controls how government treats us.
Amendments-
13th- Eliminated slavery
14th- 1. Due process clause 2. Privileges and Immunity Clause 3. Equal Protection clause
(only one of the three that apply to ALL persons
15th- Allowed freed slaves to vote (women did not get right to vote until 19th Amend. 50 years later)
The Equal Protection Clause- does not say that it must treat everyone equally.
"...does not require absolute equality."
Equal Protection Clause:
EX "All commercial pilots must have 20/20 vision." Does that law impact everyone equally?
Facially neutral? Yes. Disparate impact? Yes. Eldery. Does NOT violate EPC
Even if it is discriminatory it may still survive EPC test.
If government can give a compelling reason for discrimination the law stands.
Laws which descriminate on the basis of race and are upheld are rare.
EX Attica riots. After which races were segregated for SAFETY. Upheld.
Arbitrary, capricious or unreasonable discrimination or facially neutral with merely a disparate impact? Is discrimination among similarly situated citizens?
I. Strict scrutiny for "Compelling" government interest ("microscope")
II. Medium scrutiny for "important" government interest
III. Reasonable relationship to "legitimate" government interest ("sniff")
I. Suspect class (race, religion, national origin)
-or-
Fundamental right (1st Amend. rights, 4-8th Amend. criminal procedure rights, privacy, voting, interstate travel, education (minority view.))
II. Age, legitimacy, gender, sexual preference. (Many states have elevated gender and sexual preference to suspect class level.)
III. Everybody else.
Answering EPC essay questions:
1. Why was the person denied?
2.State the law
3. Similarly situated? -If not similarly situated then EPC does not apply.
4. Is it facially neutral? or discriminatory?
5. Is there a disparate impact?
6. Discuss- Apply appropriate level of scrutiny. Does the government have a Compelling/Important/or Legitimate interest?
Case List
San Antonio v. Rodriguez (1973)
Washington v. Davis (1976)
Village of Arlington Heights v. Metropolitan Dev. Corp. (1977)
Personnel Admin of Mass v. Feeney (1979)
Craig v. Boren (1976)
Brown v. Bd. of Education (1954) -"Segregation may effect their hearts and minds in a way unlikely to ever be undone." "Separate educational facilities are inherently unequal."
Plessy v. Ferguson (1896) - Railroad segregation, "separate but equal".
Dred Scott v. Sanford (1857) -Slave taken from slave state to free state, does "property" change its nature?
Korematsu v. U.S. (1944) -Internment camps for American citizens of Japanese descent upheld.
Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) -Bussing to desegregate. Lead to "white flight" to suburbs.
Milliken v. Bradley (1974) -Gov't cannot segregate, but may self-segregate. "De facto" v. "de jure (govt)" segregation. Supreme court has a duty to "remove root and branch" of discrimination.
Regents of University of California v. Bakke (1978) -reverse discrimination, med school. 1. Quota systems? NO 2. Race can never be considered at all? YES Judges split down the middle. Justice Lewis Powell deciding vote. Use EPC to correct violation of EPC? "Benign discrimination". "Traditional indicia of suspectness", not denied benefit, only the number of people is effected.
Bradwell v. Illinois (1873)
Reed v. Reed (1971) - Idaho, men over women for administration of probate estates. Did not stand.
Women
"Romantic Paternalism". Not discrimination- protection!
-Constitution
-"cheat sheet" on EP Clause
No book for class.
Different subject will be covered each week. Be sure to ask questions and clarifications AS WE GO ALONG.
Constitution- Controls how government treats us.
Amendments-
13th- Eliminated slavery
14th- 1. Due process clause 2. Privileges and Immunity Clause 3. Equal Protection clause
(only one of the three that apply to ALL persons
15th- Allowed freed slaves to vote (women did not get right to vote until 19th Amend. 50 years later)
The Equal Protection Clause- does not say that it must treat everyone equally.
"...does not require absolute equality."
Equal Protection Clause:
EX "All commercial pilots must have 20/20 vision." Does that law impact everyone equally?
Facially neutral? Yes. Disparate impact? Yes. Eldery. Does NOT violate EPC
Even if it is discriminatory it may still survive EPC test.
If government can give a compelling reason for discrimination the law stands.
Laws which descriminate on the basis of race and are upheld are rare.
EX Attica riots. After which races were segregated for SAFETY. Upheld.
Arbitrary, capricious or unreasonable discrimination or facially neutral with merely a disparate impact? Is discrimination among similarly situated citizens?
I. Strict scrutiny for "Compelling" government interest ("microscope")
II. Medium scrutiny for "important" government interest
III. Reasonable relationship to "legitimate" government interest ("sniff")
I. Suspect class (race, religion, national origin)
-or-
Fundamental right (1st Amend. rights, 4-8th Amend. criminal procedure rights, privacy, voting, interstate travel, education (minority view.))
II. Age, legitimacy, gender, sexual preference. (Many states have elevated gender and sexual preference to suspect class level.)
III. Everybody else.
Answering EPC essay questions:
1. Why was the person denied?
2.State the law
3. Similarly situated? -If not similarly situated then EPC does not apply.
4. Is it facially neutral? or discriminatory?
5. Is there a disparate impact?
6. Discuss- Apply appropriate level of scrutiny. Does the government have a Compelling/Important/or Legitimate interest?
Case List
San Antonio v. Rodriguez (1973)
Washington v. Davis (1976)
Village of Arlington Heights v. Metropolitan Dev. Corp. (1977)
Personnel Admin of Mass v. Feeney (1979)
Craig v. Boren (1976)
Brown v. Bd. of Education (1954) -"Segregation may effect their hearts and minds in a way unlikely to ever be undone." "Separate educational facilities are inherently unequal."
Plessy v. Ferguson (1896) - Railroad segregation, "separate but equal".
Dred Scott v. Sanford (1857) -Slave taken from slave state to free state, does "property" change its nature?
Korematsu v. U.S. (1944) -Internment camps for American citizens of Japanese descent upheld.
Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) -Bussing to desegregate. Lead to "white flight" to suburbs.
Milliken v. Bradley (1974) -Gov't cannot segregate, but may self-segregate. "De facto" v. "de jure (govt)" segregation. Supreme court has a duty to "remove root and branch" of discrimination.
Regents of University of California v. Bakke (1978) -reverse discrimination, med school. 1. Quota systems? NO 2. Race can never be considered at all? YES Judges split down the middle. Justice Lewis Powell deciding vote. Use EPC to correct violation of EPC? "Benign discrimination". "Traditional indicia of suspectness", not denied benefit, only the number of people is effected.
Bradwell v. Illinois (1873)
Reed v. Reed (1971) - Idaho, men over women for administration of probate estates. Did not stand.
Women
"Romantic Paternalism". Not discrimination- protection!
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