kaplan_foundation_questions_copy_20190724170349 Flashcards
Liability for Battery
A person is subject to liability for battery if she acts intending to cause a harmful or offensive contact with the person of the other and an offensive or harmful contact directly or indirectly results. An act which is not done with such an intention does not make the actor liable for mere offensive contact
Injuries while engaged in sporting activities
According to Restatement of Torts 2d, Section 50, taking part in a game manifests a willingness to submit to such bodily contacts that are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by the rules of the game
Define contacts for a tort of assault and battery
Remember that protection against unpermitted contacts extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus, Prosser states, “Contact with the plaintiff’s clothing, or with a cane, a paper, or any object held in his hand will be sufficient; and the same is true of the chair in which he sits, the horse or the car which he is riding or driving,” Law of Torts, pg. 34.
What is a valid defense for the intentional tort of battery
Thus, consent would be a valid defense for the intentional tort of battery
A consensual sexual relationship would have what type of claim under invasion of right to privacy.
None. A consensual sexual relationship would not result in an invasion of right to privacy.
what kind of relationship can be liable for intentional infliction of emotional distress
extreme and outrageous nature of conduct may arise from the abuse by the defendant of a relation or position which gives the defendant actual or apparent authority over the victim. In particular, police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position.
in order to recover for negligent infliction of emotional distress
the plaintiff must suffer bodily harm or injury.
Distinguish between “intentional” infliction of emotional distress and “negligent” infliction of emotional distress
in order to recover for negligent infliction of emotional distress, the plaintiff must suffer bodily harm or injury, and intentional infliction of emotion distress is the extreme and outrageous nature of conduct may arise from the abuse by the defendant of a relation or position which gives the defendant actual or apparent authority over the victim.
What is one of the most popular Multistate testing areas deals with civil suits brought by third parties
for intentional (or reckless) infliction of emotional distress.
As a general rule, in order for a third party to recover for intentional (or reckless) infliction of emotional distress there are two requirements must be satisfied:
(1) the third party must be a close family member of the person to whom the defendant is directing his (extreme and outrageous) conduct and (2) the defendant should be aware of the presence of the third person. If the third person is not a close family member, then he must suffer bodily harm in order to prevail.
As a general rule, private necessity will excuse
tortious conduct aimed at property. However, according to Restatement of Torts, 2d, Section 263, which specifically addresses the privilege of private necessity as applied to trespass to chattels or conversion, “Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
When is a defendant liable for conversion of a chattel
According to Restatement of Torts 2d, Section 244, “An actor is not relieved of liability to another for conversion (or for trespass to chattels) by his belief, because of a mistake of law or fact not induced by the other, that he has possession of the chattel.”
Multistate example in which students are required to distinguish between crimes and torts for chattels is defined by
The type of recovery, and if the plaintiff is seeking the value of the chattel, which are civil damages
One is subject to liability for trespass irrespective of whether
he causes harm to any legally protected interest of the other, if he intentionally enters the land in possession of the other.
A defendant can still be liable for damages to another persons land when
did not intentionally drive his vehicle onto the homeowner’s property may be liable for trespass because he was operating his car in a reckless manner.
If a defendant does not “intentionally” enter another person’s land, what elements are required for the defendant to be liable for trespass
However, where a person enters the land of another through negligence, recklessness, or as a result of an abnormally dangerous activity, in order to be liable for trespass he must cause damage to the land.
According to the “shopkeeper’s privilege,”
a businessman who reasonably suspects a customer of theft or of failure to pay may detain the suspected individual for a short time in order to investigate. The privilege is, however, a very restricted one, confined to what is reasonably necessary for its limited purpose of enabling the defendant to do what is possible on the spot to discover the facts. There will be liability if the detention is for a length of time beyond that which is reasonably necessary for such a short investigation.
Landowners duty regarding trees, and scope of that duty
Prosser states, “When the tree is in an urban area, the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe.” Law of Torts, pg. 390. Moreover, recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.Homeowner owes a reasonable duty to persons outside the premises.
What is a reasonable person required to know in regard to a duty owed.
According to Prosser, one of the most difficult questions in connection with negligence is with regard to “what a person is required to know” in order to warn another of unreasonable risks of harm. Obviously, an individual will not be responsible for risks that he is unaware of.
What is the duty owed to an invitee
People who enter public buildings (such as churches, airports, museums) are classified as invitees. A hotel would fall under the category of a building open to members of the general public. Therefore, the friend is viewed as an invitee. The duty owed to an invitee is twofold: (1) duty to make reasonable inspections and (2) duty to make safe for the protection of invitees who enter. Here, since the hotel breached its duty to inspect and make safe, the friend will be entitled to recover.
In order to recover under negligence per se or violation of a statute
n order to recover for negligence per se, most courts require that: (1) the plaintiff be a member of the class of persons intended to be protected by the statute, and (2) the harm suffered must be of a type that the statute was designed to protect against.
Question dealing with res ipsa loquitur and directed verdicts on the MBE
A trap that is frequently tested on the Multistate is to present a negligence question and then indicate in the facts that the plaintiff has failed to present any evidence supporting the cause of action. When a plaintiff fails to satisfy her burden of production (by presenting a preponderance of evidence to prove the elements of her claim), the court may grant defendant’s motion to dismiss. However, inres ipsa loquitur situations there is an inference of negligence on the part of the defendant. As a result, the plaintiff has made a prima facie case and no directed verdict may be given to the defendant.Res ipsa loquitur simply establishes an inference of negligence. Basically, it allows the plaintiff to escape a nonsuit, or a dismissal of his action. However, the inference of negligence to be drawn from the circumstances is left to the jury, which may very well find against him. Certainly, the defendant in rebuttal may present a preponderance of evidence to avoid liability.
What are the instructions on the MBE for Torts
It is important to note that the MBE instructions for Torts state as follows, “Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated.” Therefore, you must assume that pure comparative negligence applies to this fact pattern because you are not told otherwise.
What is the general rule about comparative negligence statutes
As a general rule, comparative negligence statutes have the effect of apportioning damages based on the parties’ respective degrees of fault. For example, if the defendant’s fault is found to be twice as great as that of the plaintiff, the latter will recover two-thirds of his damages, and himself bear the remainder of his loss. As a consequence, plaintiff’s recovery will be diminished in proportion to his negligence.
last clear chance” doctrine is applied
in contributory, not comparative, negligence jurisdictions.
Where two or more causes combine to produce such a single result, incapable of any logical division
According to Prosser, certain results, by their very nature, are obviously incapable of any logical, reasonable, or practical division. Death may be such a result, and so may be a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge. Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. In this situation, most courts place the burden of proof on the issue of causation upon the two defendants. Unless the innocent defendant can prove that he is not culpable, liability will be imposed. This is the rule enunciated in the case of Summers v. Tice [1999 P.2d 1 (1948)]
On all standardized examinations (whether it be the MBE, SAT, LSAT, GRE) the Examiner’s main goal is “to hide the correct answer,” HOW
The Examiners try to accomplish this by employing “distracters” and “red herrings”.
A comparative negligence statute only applies
A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.
When a non-liable plaintiff was injured by joint tortfeasors, comparative negligence plays what role?
NONE. A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.When a plaintiff who was injured by the combined negligent acts of both the fan and the truck driver. The defendants are joint tortfeasors who would be jointly and severally liable for the full amount of the friend’s damages. Plaintiff may recover full damages from one of the defendants, who could then seek contribution from the other defendant
Explain a valid release and the effects
Restatement of Torts 2d, Section 885(1) provides: “A valid release by one tortfeasor from liability for harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them.” However, subsection (3) states, “A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”
A public landowner is, generally, not liable for the intentional torts committed by third persons
In order to answer this question, it is necessary to determine what duty is owed to the plaintiff. Since the facts indicate those entering the premises will be viewed as invitees (or “business” visitors). A person may be classified as an invitee even though she does not actually confer an economic benefit to the possessor. The important consideration is whether there is a potential pecuniary profit to be gained. This same issue is often tested where a person enters a business with no intention of buying anything but to change a $1 bill for the parking meter. He nonetheless was an invite
Defendant’s failure to guard against the possibility of a known danger can be liable when
Prosser states, “If the intervening cause is one in which ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Furthermore, Prosser notes, “Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless his conduct has created or increased an unreasonable risk of harm through its intervention.” Thus, “there may be an appreciable danger that the plaintiff will be struck by lightning, or by an automobile in the street, or a mail sack thrown from a train, or that a kerosene lamp will explode in his face, but there is no liability unless what the defendant has done has increased the risk.”
A defendant’s negligent acts that cause an injury can extend to what other injuries
It is well established that a defendant is held liable for foreseeable intervening causes. Examples of foreseeable intervening causes include: 1) subsequent medical malpractice; 2) negligence of rescuers; 3) subsequent disease; and 4) subsequent accident. Where the defendant suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually held liable for damages arising from the second accident.
Nonfeasance
Is the failure to act where action is required - willfully or in neglect.
Malfeasance
Is the willful and intentional action that injures a party.
Misfeasance
Is the willful inappropriate action or intentional incorrect action or advice.
Transporting a large quantity of highly flammable chemicals is an abnormally dangerous activity.
Consequently, some transporting products that are considered abnormally dangerous is subject to strict liability based upon Restatement section 519, which states: “One who carries on an abnormally dangerous activity is subject to (strict) liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.”
Strict liability for wild animals foreseeability extends to
According to Restatement of Torts, 2d, Section 507, “A possessor of a wild animal is subject to (strict) liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, otherwise to prevent it from doing harm.”
Question involves strict products liability for a product that is “defective” and “unreasonably dangerous”–the required elements for strict products liability when
If such an accident was foreseeable and the manufacturer and it failed to warn purchasers of the danger then the manufacturer is strictly liable
As a general rule, the only defense in strict liability is assumption of risk, not contributory negligence, explain the difference
Always remember the main difference between assumption of risk and contributory negligence is that assumption of risk is a subjective standard. The plaintiff must subjectively be aware of the danger and knowingly expose himself to the danger. On the other hand, contributory negligence is an objective standard where the plaintiff’s conduct falls below the applicable standard of care necessary for his own protection.
Most Multistate questions will test a fine line distinction or nuance. In the area of Torts, it is imperative to distinguish between strict liability and negligence actions.
Strict liability claims must include necessary that the auction company be engaged in the business of selling automobiles to be held strictly liable. Negligence claims include the failure to inspect
There are five elements required to establish a claim for misrepresentation
1) there must be a material misrepresentation, 2) the defendant must act with scienter, 3) the defendant must intend to induce reliance, 4) the plaintiff must justifiably rely on the misrepresentation, and 5) the plaintiff must suffer pecuniary damages. The key to this question is understanding the element of scienter. This element is satisfied in two situations: 1) when the defendant lies, or 2) when the defendant makes a statement of fact not knowing whether it is true or false.
An action brought for nuisance will not be recoverable when
Prosser states, “The plaintiff cannot, by devoting his own land to an unusually sensitive use,” recover for nuisance. Law of Torts,
to prove an action for defamation, the teacher will have to show that:
1) A false, defamatory statement of fact was made; 2) Reasonably understood as relating to the teacher; 3) Intentionally or negligently published to a third party; 4) Causing her damage; 5) Made with the requisite degree of fault as to the truth or falsity of the statement. Under Gertz v. Welch [418 U.S. 323 (1974)], A private person suing a media defendant for defamation must show that the defendant was at least negligent with regard to the truth or falsity of the printed statement, where the statement involves a matter of public concern
Recovery under Slander Per Se
Sections 571-574 of the Restatement 2d, Torts provides that “an action for slander will lie without proof of special harm only where (1) the words impute a criminal offense which, if committed in the place of publication (a) would be punishable by death or imprisonment, or (b) regarded by public opinion as involving moral turpitude; (2) the words impute to the plaintiff a presently existing venereal or other loathsome and communicable disease; (3) the words impute to the plaintiff conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, profession, or with his public or private office, whether honorary or for profit; and (4) the words impute to a woman unchastity.Slander per se, wherein the plaintiff can recover damages without proving that he has suffered any special harm at all. The cause of action is complete when the plaintiff proves that such a type of slander has been published about him and that he has suffered “actual injury” as a result of the defamatory statement. It is important for students to note the four per se categories for either slander or libel.
Defamation claim requires
It is important to remember that the defamatory meaning of a statement must be communicated. Thus, the utterance must be understood by the third person. Accordingly, Prosser notes that “words spoken in a foreign tongue are not actionable unless they are heard by one who understands the language.
Remember that invasion of right of privacy is not a single tort but comprises the following four distinct causes of action: 1) appropriation, 2) false light, 3) public disclosure of private facts, and 4) intrusions on one’s seclusion and solitude. In order to recover for public disclosure, the facts disclosed must be private facts, not public ones.
Remember that invasion of right of privacy is not a single tort but comprises the following four distinct causes of action: 1) appropriation, 2) false light, 3) public disclosure of private facts, and 4) intrusions on one’s seclusion and solitude. In order to recover for public disclosure, the facts disclosed must be private facts, not public ones.
Define “Appropriation”
Appropriation is defined as the unauthorized use by defendant of plaintiff’s picture or name for defendant’s commercial advantage.
Whether a party has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of the issues” is “the gist of the question of federal standing” [Baker v. Carr, 369 U.S. 186 (1962)]
Under the constitutional standard imposed by the “case and controversy” requirement of Article III, personal standing requires a minimum concrete “personal stake” in the outcome by a two-fold showing of, first, “distinct and palpable injury” and, second, a “fairly traceable” causal connection between the claimed injury and the challenged conduct.
Under Article III, Section 2 of the Constitution, the “case or controversy” requirement establishes the concept that
federal court jurisdiction will not be exercised absent an actual and definite dispute between parties having adverse legal interests.
Protected classes include, male and females, which is protected, so the suit will
Is tested under “intermediate scrutiny” to satisfy this the requirement of Standing because the unequal treatment by an ordinance deals with males versus females might adversely affect the legal interests of all males who wish to engage in certain conduct afforded to females, thereby constituting an actual and definite dispute.
The President can only grant pardons or reprieves for
federal offenses. The President is not empowered to grant pardons for state offenses.
A treaty or act of Congress will supersede and take precedence over
An inconsistent executive agreement or order. President’s actions, Restatement of Foreign Relations Law, 3d, takes the position that an executive agreement is effective and binding as long as it “does not supersede inconsistent provisions of earlier acts of Congress.”
As a general rule, matters involving foreign affairs involving Executive treaties are subject to what kind of judicial review are non-justiciable and immune from judicial review.
As a general rule, matters involving foreign affairs are non-justiciable and immune from judicial review. The decided cases relate to foreign policy or international affairs (e.g., Cambodian bombing and legality of Vietnam War non-justiciable).
The executive agreement is constitutional as within the powers of the executive branch for matters involving foreign affairs, generally not subject to the judicial review, EXCEPT when
However, executive agreements relating to economic matters are generally subject to judicial review. For example, in United States v. Guy W. Capps, Inc. [348 U.S. 296 (1955)], a corporation had standing to challenge an executive agreement between Canada and the United States regulating potato exports by Canada. By the same token, private litigants were given standing to challenge President Carter’s executive order freezing Iranian assets.
Is the President (Executive Branch) permitted to have a limited administrative power to implement a statute.
Congress may delegate its power to do so to the President. First, the President has no authority to set regulatory standards. This is a legislative action. Congress has the power to legislate under its power to regulate interstate commerce. Second, Congress may delegate certain of its enumerated powers to the President, the courts, or other administrative agencies.
When Congress attempts to delegate power under the constitution to the President, two general requirements must be met:
(1) the power must be one which Congress may delegate. Certain powers are constitutionally stated such that a delegation would be invalid (i.e., the power to declare war, to ratify treaties, to try cases of impeachment, etc.); and (2) the delegation must contain at least some general guidelines such that a court could determine whether the delegatee had exceeded the authority granted by Congress. This would be a limited delegation of a small portion of Congress’s power to regulate interstate commerce. Moreover, the President’s determination of the proper percentage is subject to “specific standards” and “detailed procedures,” which would ensure that a court could determine if the President overstepped the authority granted by Congress.
Can an administrative order of a federal agency supersedes a conflicting state law.
As a general rule, the actions of federal agencies may preempt state law. “Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to preempt state law, the court’s inquiry is similarly limited” [Fidelity Federal Savings & Loan Association v. De la Cuesta, 458 U.S. 141 (1982)].
The Supremacy Clause
The Supremacy Clause provides that when Congress intends to occupy a given field (preemption) or where an actual, direct conflict between a federal law and a state law exists, the state law will generally be invalidated.
Exception to the Supremacy Clause
However, if the subject matter has traditionally been left to the states, it is less likely to be found to be the subject of federal preemption. This is especially true in cases involving health and safety regulations.
The exercise of the state’s police power to provide for the health, safety, and welfare of its citizenry
The U.S. Supreme Court held that there was no preemption to Federal Law because the regulation of health and safety matters is primarily and historically a matter of local concern.
Intergovernmental immunity does not prevent
federal property used for proprietary purposes is not immune from nondiscriminatory state taxation.
While the Supremacy Clause prohibits state or local governments from directly regulating or taxing the federal government without its consent, a Tax that is not upon the federal government, but upon a private concessionaire using federal property, then
Such “property interest taxes” tax the user’s right to the use and enjoyment of federal property, although the property itself is exempt from the state taxation. As long as the property interest tax is nondiscriminatory, it is not constitutionally prohibited. Note that if the state attempted to tax the federal government directly (e.g., a state tax on rental receipts, including the federal government’s receipts from its concession lease to the plaintiff), would not be permittedDetermine if the tax is on the user leasing federal land in a state, or the federal government itself
Article IV, Section 3 of the Constitution provides that Congress shall have the power to dispose of and make “all needful Rules and Regulations respecting the Territory or other Property of the United States….
Use of this broad federal property power is subject to congressional discretion and not subject to state regulation. The federal property power is plenary and has been applied to the following areas: the establishment of legislative courts with powers not derived from Article III; and regulation of (1) wild animals on federal lands, (2) federal buildings and enclaves, (3) military ships and airplanes, and (4) Indian reservations. In light of the federal property power, Congress may validly convey the 1,000 acres of federal land to one group and not another.
If Congress conveys land to one group, and not another, the court should treat the action of Congress as (Constitutional or Unconstitutional)?
The court should treat the action of Congress as presumptively valid because the Constitution expressly gives Congress power to dispose of the territory or other property belonging to the United States.
Under Article I, Section 8 of the Constitution, Congress is granted the exclusive power to coin money, which has what affect on State actions
Any attempt by the state or local governments to create a substitute or competitive currency will be struck down as violative of the exclusive federal power. Such as vouchers being used as a substitute for U.S. currency in the state. Thus, the state is substituting its own currency for legal U.S. tender in violation of the exclusive federal power to coin money.
Any state or local law that either directly or indirectly conflicts with federal law will be
Struck down as violative of the Supremacy Clause of Article VI.
The federal government has virtually unlimited power to regulate immigration policy and the conduct of U.S. foreign affairs with other nations. Therefore, a state government regulation seeking to
Penalizing, restricting or excluding the citizens of nations hostile to the US have been held could seriously undermine the efforts of the federal government to negotiate with these nations. Even when the federal government has not directly prohibited the states from acting in a particular area of regulation, state laws that act as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” have been struck down [Hines v. Davidowitz 312 U.S. 52 (1941)].
The right to attend a state university should not be considered a
Fundamental right worthy of substantive due process protection. The Supreme Court has held in an analogous situation that public education is not a fundamental right [San Antonio v. Rodriguez, 411 U.S. 1 (1973)]. In addition, denial of admission to the state university would be unlikely to warrant procedural due process protection either because there is nothing for a hearing to resolve.(1) attending a state university is not a “privilege or immunity” of the Fourteenth Amendment; and (2) only U.S. citizens are protected under this clause of the Fourteenth Amendment. Students should recognize that the Privileges and Immunities Clause of the Fourteenth Amendment is extremely limited.
Under Article I, Section 9, Clause 7, Congress has plenary power to tax and spend for the general welfare, which means that
Congress has the power to appropriate funds for the general welfare, even though disparate treatment is given to different groups.In United States v. Butler [297 U.S. 1 (1936)], the court held that Congress is not limited to spending only to achieve the specific powers granted in Article I of the Constitution. Congress may spend in any way it believes would serve the general welfare, as long as it does not violate another constitutional provision. An aid bill to subsidize one group over another for economic loss is clearly constitutional under Congress’s spending power.
If Congress requires the states to enact legislation using state agents or agencies, is in all likelihood to be deemed
Unconstitutional because Congress cannot “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program” [New York v. United States, 505 U.S. 144 (1992)]. In New York, the court held that there are limits to Congress’s right to interfere with the states’ lawmaking processes, and Congress will violate the Tenth Amendment if it exceeds those limits.Congress cannot commandeer the states to enact and enforce legislation.
Under Article I, Section 8, Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This plenary federal commerce power is held concurrently with the states, which
may freely govern matters that do not require uniform national regulation.
For a state regulation affecting interstate commerce to pass judicial scrutiny,
The State statute must be found reasonable and nondiscriminatory upon balancing the benefit to the state against the burden imposed on interstate commerce, such that no less restrictive alternative means of regulation is available. Where a state statute may pose a discriminatory or undue burden on out-of-state interests, the USSC applies a “balancing test” [Pike v. Bruce Church, 397 U.S. 137 (1970)].
The Fourteenth Amendment’s Equal Protection Clause applies
only to actions by state and local governments, not to private companies, even where licensed by the state.
Insurance rate-setting policies of the private insurance company
do not involve state action. The state laws regulate only the licensing and solvency of insurance companies, not the premiums charged. State licensing of a private entity is not sufficient to render the discriminatory practices of the private entity state action within the meaning of the Fourteenth Amendment [Moose Lodge v. Irvis, 407 U.S. 163 (1972)]
Congress has, by federal statute, authorized the states to regulate the policies and practices of insurance companies operating within the state’s boundaries, which means
This has been interpreted by the U.S. Supreme Court to allow the state to regulate in a discriminatory manner, which would, absent the authorization of Congress, violate the negative implications of the Commerce Clause. However, this conferral of discriminatory power does not allow the states to discriminate in a manner that would be so arbitrary, capricious, or irrational as to violate the Equal Protection Clause
Is the power of the states to regulate the insurance companies plenary
NO. There is has to be state action present requiring the insurance company to justify its discriminatory premium in order to have an equal protection claimBecause a company is only a private company that has not engaged in “state action,” it does not need a good reason to discriminate.
A claimant challenging under the Equal Protection Clause must demonstrate
that state action exists, which discriminates and treats one group different than another
Classifications based on gender are subject
to intermediate scrutiny whereby the government bears the burden to show that the action being challenged is substantially related to an important interest. In fact, based on the holding in United States v. Virginia [518 U.S. 515 (1996)
Classification based on gender after 1996
gender discrimination cases now require the government to show an “exceedingly persuasive justification,” a more vigorous test that is closer to strict scrutiny than to the “substantial relation to important governmental objectives (intermediate scrutiny)” analysis. This test applies where the statute is intended to classify on the basis of gender.
Before jumping to the conclusion that this question involves gender discrimination just because a woman or man was denied something because of gender
focus on the government conduct itself. Such as was the state law neutral on its face, not intended to discriminate based on gender. Second, the state action for rejecting the male/female was based on failure to conform to the local building code or something, not based on intentional gender discrimination
In gender-discrimination cases
the plaintiff is required to show a discriminatory purpose, not merely a discriminatory effect
If a city’s action does not trigger intermediate scrutiny because there was no gender-motivated purpose behind the permit rejection then
the Rational basis analysis applies instead, and the woman will have the burden of persuasion.
One of the most striking expansions of the substantive Due Process Doctrine in recent years has been in the area of family relations. As a general rule, the Supreme Court has found that a person’s decision about how to conduct her family relationships (e.g., marriage, childbirth, child rearing, and cohabitation with one’s relatives) often rises to the level of a “fundamental right.” Consequently,
the state may interfere with such a decision only when it shows the regulation is necessary for the fulfillment of a compelling public interest. Here, we are dealing with a state law regulating childbirth, which will be subject to a “strict scrutiny” standard of review. Because the facts indicate that the regulation was enacted because of public health concerns, it does further a compelling state interest.
A city or state ordinance that defines “family” is
Unconstitutional. The ordinance would deny her substantive due process. Under the Supreme Court decision in Moore v. City of East Cleveland [431 U.S. 494 (1977)], a city may not define a “family” to include only certain categories of related individuals. In Moore, the court struck down an ordinance that would have precluded a grandmother and grandson from living together, holding that the Fourteenth Amendment Due Process Clause protects freedom of choice in matters of marriage and family life
Even though a municipality cannot define “family,” it can prohibit what classes of people from living together
However, that municipalities may validly prohibit unmarried, unrelated individuals from sharing the same residence [Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)].
When will an abortion statute be struck down?
When the statute imposes an undue burden on the right to obtain an abortion.
With respect to abortion, the trimester test of Roe has been partially overruled by Planned Parenthood of Southeastern Pennsylvania v. Casey [505 U.S. 833 (1992)]
As a result of Casey, the states may restrict abortion as long as they do not place any “undue burden” on the woman’s right to choose. When the state statute does place an “undue burden” on the right to abortion because after the first three months, a woman can only have an abortion to protect her health and life
The right to be a candidate is related to the fundamental right to vote. In general, the state’s interest in limiting ballot access is twofold, as follows:
The state must demonstrate that the law is necessary to further a compelling state interest. (1) to reduce voter confusion, and (2) to maximize the probability that the winning candidate will have received a majority of the popular vote. In Storer v. Brown [415 U.S. 724 (1974)]The court determined that the “disaffiliation” statute furthered the state’s compelling interest in the stability of the political system, and its interest in having “intraparty feuds” resolved in primaries, rather than in the general election.
What is the State test for independent candidates and minor political parties to get on a ballet for the upcoming elections
The court noted further in Storer that the state must adopt reasonable alternative means for independent candidates and minor political parties to get a ballot position, and the alternative means must not place too heavy a burden on the right to vote and the right to associate.
Age classification statutes are
Are not a fundamental right. The petitioner must show that the age restriction is not rationally related to a legitimate government interest.the Supreme Court has consistently applied the rational basis test for government classifications based on age. Under this “soft” test, the Supreme Court has never struck down an age classification as unconstitutional. See, e.g., Vance v. Bradley [440 U.S. 93 (1979)] (federal law requiring retirement at age 60 for employees in the Foreign Service Retirement System, held constitutional); Gregory v. Ashcroft [501 U.S. 452 (1991)] (Missouri mandatory retirement age of 70, for most state judges, held constitutional).
The city is discriminating against non-residents with respect to one of the privileges and immunities of state citizenship is
a violation, and out of state citizens are protected by Article IV, Section 2–the right to pursue a livelihood
Article IV, Section 2–the right to pursue a livelihood clause
This clause protects non-residents from being discriminated against by state or local governments with respect to certain “basic rights” and “essential activities” of state citizenship. Among these are the right to own property, equal access to medical care and the courts, and the right to earn a living.
What are examples of a non-citizens rights being violated under Article IV, Section 2–the right to pursue a livelihood clause
City’s commuter tax discriminates against non-resident workers. Where discrimination against the employment rights of non-residents is found to exist, the law will be struck down unless the responsible state or local government can show such discrimination is closely related to a substantial government interest.
In cases of discrimination against non-residents in employment contexts,
The Supreme Court has required the government to show that the non-residents are a “peculiar source of the evil the law was designed to redress.” Here, if the city businesses are not making enough money, the court is not likely to allow the city to tax non-residents who (quite conveniently, are not able to vote in the city elections) are not shown under the facts to be the sole cause of poor business revenues of local merchants.
The city must prove, under what test, that its exercise of eminent domain is
rationally related to a conceivable public purpose.
The government satisfies the Public Use Clause if it can demonstrate
If the government satisfies the Public Use Clause if it can demonstrate that the “exercise of the eminent domain power is rationally related to a conceivable public purpose.” The Supreme Court reaffirmed that the courts must give broad deference to a legislature’s judgment as to what constitutes a public use. In Kelo, a divided Supreme Court ruled that a broad economic redevelopment plan by a city to eradicate economic blight and high unemployment is a legitimate public use under the Fifth Amendment.
A law that applies to named individuals or an easily ascertainable group in a manner that inflicts a punishment without a judicial trial is an
Unconstitutional bill of attainder. When a state legislature passed a licensing law that expressly revoked the practitioner’s license without the benefit of a trial. Because he was singled out by name in the law and punished without a trial, the state law is an unconstitutional bill of attainder. There is no discrimination against non-residents of the state, which would be required for an effective Article IV, Section 2, privileges and immunity challenge.
The Ex Post Facto Clause forbids
both the states and the federal government from enacting retroactive criminal laws. The most common sort of an Ex Post Facto law is one which creates a new crime and applies it retroactively to conduct not criminal at the time committed. the Ex Post Facto Clause prohibits the retroactive application of an increase in the punishment for a crime that carried a lesser penalty when committed.Another aspect of the ex post facto prohibition is concerned with retroactive changes in evidence and procedure that operate to the disadvantage of the criminal defendant by making conviction easier. Thus, a statute that changes the burden of proof on the prosecution from the usual rule of “beyond a reasonable doubt” to one of “preponderance of the evidence” is ex post facto, if retroactive.
An ordinance will be found unconstitutional that deprives a person of their liberty of speech or singing when
The ordinance deprives persons of their liberty without due process of law because the ordinance is not related to any legitimate community interest.
A city ordinance that prohibits certain conduct during hours are are generally viewed as public forums may be
attacked as a violation of protected First Amendment freedom of expression because it prohibits all singing and chanting for 12 hours every day in areas which are traditionally viewed as public forums.
Time, place, and manner limitations on speech-related conduct are permitted
When achieved by reasonable content-neutral regulations that further a significant governmental purpose. Such an ordinance must be narrowly drawn so as not to establish a total ban on protected rights of free speech. Because a city ordinance does not appear to satisfy this standard, a First Amendment free-speech attack by the students will be a strong challenge.
What are two strong challenges to the language in a city ordinance that prohibits speech in a public forum
A strong challenge in the form of the vagueness and overbreadth doctrines. By proscribing protected as well as prohibited speech for half of each day everywhere in the city, the ordinance is clearly overbroad on its face. Similarly, due to the uncertainty as to what conduct is restricted by the words “singing and chanting of songs” and “audible (to whom?) off the premises,” a vagueness challenge should be successful
Non-religious songs–
Are certainly areas of protected speech–are when being treated differently than religious songs, thereby raising an equal protection challenge to be reviewed using the strict scrutiny standard.
What are consider public forums for speech-related activities
Government-owned property is a public forum that the government is constitutionally required to make available for speech-related activities. Parks, sidewalks, and city streets are traditional classic public forums.
When can a valid time, place, and manner regulation related to a significant government interest be constitutional
The government may regulate speech thereon if the following standards are met: (1) the regulation must be content neutral (unless strict scrutiny is met); (2) the regulation must be a reasonable time, place, manner restriction that serves a significant governmental interest; (3) the regulation must leave open adequate alternative places for speech; and (4) the regulation must give clear guidelines to the licensing official that leaves no room for arbitrary discretion
The billboard advertising regulation may not single out
Constitutionally protected non-commercial speech. A regulation of speech may not prefer commercial speech over protected non-commercial speech.The Supreme Court invalidated a similar San Diego ordinance because of impermissible content regulation, but expressly left open the question of whether all billboards could be prohibited in a content-neutral fashion.
The power to zone does not include
the power to violate the First Amendment’s freedom of expression. A government regulation of the time, place, or manner of outdoor signs cannot make content-based distinctions that disfavor constitutionally protected speech.
When the ordinance prohibits political speech while allowing commercial speech
This distinction is based upon the content of the expression and is an unconstitutional distinction according to the Supreme Court
Laws that prohibit the posting of signs on public property
are constitutional
What is the exception to the laws that prohibit posting of signs on public property
Once the government voluntarily decides to open public property to some forms of speech, it creates a “limited or designated public forum”; and any “restriction must not discriminate against speech on the basis of viewpoint and must be reasonable in light of the purpose served by the forum.” In addition, any licensing or permit system that leaves significant discretion to the licensing official or “unfettered discretion” to award or deny permits is facially unconstitutional
A ordinance that required a permit for demonstrations and allowed the permit official unlimited discretion to charge a fee up to $1,000, was held
unconstitutional because of a lack of articulated standards or objective factors.
Quite often, Multistate constitutional law questions are based upon case precedent, which held that a law which is narrowly tailored
as valid because regulations of commercial speech must be “narrowly tailored” and should be no more extensive than is necessary. When the state is attempting to regulate unprotected commercial speech (i.e., vice advertising). A state will not be permitted to completely ban commercial advertising, but must use a means narrowly tailored to achieve the desired objective.
With regard to questions involving the free exercise clause, it is necessary to determine whether the law is
(1) religiously neutral, and (2) of general applicability.
A law failing to satisfy these requirements (i.e., the neutrality and general applicability requirements) must be justified
By a compelling governmental interest and must be narrowly tailored to advance that interest. When a law meets the neutrality and general applicability standard, the rational basis test applies.
Authorized the use of (public) school property, when it was not otherwise being used for school purposes, for social, civic, or recreational uses and for uses by political organizations is
Permitted
Authorized the use of (public) school property that denied a religious congregation the ability to use the school property at a time when classes were not in session and the school was not being used for previously scheduled activities was held to be
The Supreme Court unanimously ruled that the school board’s regulation violated the Free Speech Clause of the First Amendment because it constituted viewpoint discrimination.
What is the general common law rule when a defendant in a criminal drug case transports a package for someone else, but does not intentionally look in the package
it can be said that despite having intentionally avoided looking to see what was in the package, the acquaintance did indeed know. In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable. The Ninth Circuit Court of Appeals concluded that the defendant’s “willful blindness” was sufficiently culpable to “where it can almost be said that he actually knew” that drugs were present.
The mens rea requirement of knowledge can sometimes be satisfied when
In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable
What defense does “willful intoxication” for a general intent crime is
that voluntary intoxication is no defense: As a general rule, voluntary intoxication is not a defense for a “general intent” crime.
Define Arson
Arson is a “general intent” crime because it does not require a specific mental state of intent. As a general rule, voluntary intoxication is not a defense for a “general intent” crime.
What are the requirements for a criminal charge of Larceny
Larceny at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with the intent to permanently deprive the owner thereof. The crime of larceny requires an intent to steal, that is, an intent to deprive the owner of the possession of his property permanently or for an unreasonable length of time.
What is a valid defense to a criminal charge of Larceny
The defendant lacked the requisite state of mind.
When dealing with a criminal law question dealing with self-defense, determine
As a general rule, if the defendant is not the aggressor, then he is justified in using a reasonable amount of force against his adversary when he reasonably believes (1) that he is in immediate danger of unlawful bodily harm from his adversary, and (2) that the use of such force is necessary to avoid this danger.
When is deadly force justified
Deadly force is justified when an individual is threatened with serious bodily injury or death
Under the M’Naghten Rule
A person is considered “insane“ if “at the time of committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.“ A man who is mentally retarded and did not understand what he was doing would satisfy the test.
Generally, if a defendant has the legal duty to act and his or her failure to do so results in a death,
the defendant will be guilty of involuntary manslaughter
A person with a legal duty to act may be found guilty of murder for failing to act if
that failure to act is accompanied by the requisite mens rea for murder.
Generally, there is no affirmative duty to act, unless there is a special relationship that gives rise to a duty to aid or protect. For Example:
Common carriers, innkeepers, possessors of land, custody keepers, parents, and spouses have a special or higher duty of care to act for the protection of those persons with whom they have a special relationship. The typical example is the duty of a parent to rescue her imperiled infant who is drowning face down in the bathtub. Failure to rescue the infant would be murder if the parent intends to kill the child, either by desiring the death or by failing to act, despite knowing that death is substantially sure to result from failure to rescue. Similarly, the common law imposes an affirmative duty upon spouses to aid one another.
Not intending to kill, a defendant hits a person over the head with a baseball bat. As a result, the person dies from head injuries, the defendant will be charged with
Is an example of intent-to-inflict serious bodily injury murder
Not intending to kill, a defendant throws a baseball off the top of a four-story apartment building onto a busy public street below. The baseball strikes a pedestrian, killing her.
Is an example of “depraved-heart” murder.
Not intending to kill, a defendant rapes a victim in a remote area of the desert. The defendant then drives off leaving victim alone in the sweltering heat. The next day, the victim dies from exposure, because she’s unable to reach the nearest town eight miles away.
Is an example of felony murder.
Not intending to kill, a defendant, at a party, pushes a nine-year-old child into a swimming pool and the youngster drowns.
Is characteristic of involuntary manslaughter or misdemeanor manslaughter. Note that the defendant committed a battery (which at common law was a misdemeanor) by pushing the victim into the pool.
Malice aforethought does not require an intent to kill. “Malice” at common law may consist of any of four states of mind:
(1) felony-murder; (2) intent to kill; (3) extreme reckless conduct likely to cause death or serious injury; or (4) intent to cause serious bodily injury that results in death.
A defendant intended to cause serious injury to the victim, which resulted in his death. T
he defendant may properly be convicted of second degree murder.
The heat of passion killing, to qualify as manslaughter
Requires that the provocation be adequate, i.e., cause a reasonable person to lose self-control under the circumstances.
The provocation by a victim required for voluntary manslaughter must be that which will arouse a heat of passion in a reasonable sober (defendant) man. A defendant’s voluntary intoxication, which unreasonably provokes him to lose his self-control
Will not reduce homicide to manslaughter
What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.
Modernly, however, the strictly objective reasonable man test for determining adequacy of provocation has been considerably broadened. Under the Model Penal Code, “at least some individual peculiarities should be taken into account because they bear upon the inference as to the actor’s character that is fair to draw upon as the basis of his act” [Model Penal Code, Section 20.3 Comment].Therefore, such a physical condition should be considered by the court
What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.
Traditionally, an objective standard is applied to the question of whether there is adequate provocation. The provocation must be adequate enough to excite uncontrollable passion in a reasonable person. The fact that the defendant possessed some peculiar physical or mental characteristic was uniformly held not to be considered in determining provocation (i.e., head injury, sunstroke, and sexual impotence). The test was how the victim’s conduct affected a reasonable man, not how it affected a man with the defendant’s physical characteristics (LaFave and Scott, Criminal Law, p. 578).
The felony murder rule requires
Intent to commit a felony crime is a sufficient substantial step that creates liability under the felony murder doctrine. The felony murder rule encompasses both completed and attempted dangerous felonies.
If a defendant is found not guilty under the felony murder rule, the reason is
The jury did not believe that the defendant was engaged in the commission of a felony crime, and the felony-murder rule would not apply.
Depraved-heart murder,
which is usually codified as second degree murder. In accordance with the statutory definition, second degree murder “covers all other unlawful killings with express or implied malice aforethought.
Modern courts and legislatures still frequently define murder in terms of “malice aforethought, express or implied,
which now covers all four types of murder: (1) intent to kill murder; (2) felony-murder; (3) depraved-heart murder; and (4) intent-to-do-serious-bodily-injury murder.
Under the depraved heart doctrine for a murder charge, the defendant
may not have acted with express malice, butt his conduct involved implied malice
Mens Rea- “Knowingly”
A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “willful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation.
For the crime of solicitation to be completed,
The crime solicited need not be committed. It is only necessary that the actor, with the intent that another person commit a crime, has enticed, advised, incited, ordered, or otherwise encouraged that person to commit a crime.
What is not a defense to a criminal charge for solicitation of a crime
That it is not a defense to a solicitation charge that, unknown to the solicitor, the person solicited could not commit the crime. Similarly, it is also no defense that the person solicited is an undercover agent and under no circumstances would have committed the crime solicited.
A defendant is not guilty of conspiracy when
An essential element of the crime is an agreement (for an unlawful purpose) between two or more persons. There is no conspiracy when one of the defendants does not have the required intent-to-commit the crime’s mental state. Therefore, if one defendant has the intent but the other defendant lacks the intent, then neither one can be charged
The crime of attempt murder consists of
(1) an intent to do an act or to bring about certain consequences, which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. As such, attempt is a specific intent crime.
If a defendant did not have the (specific) intent to kill the girl, in an attempted murder charge, the outcome is
he would be found not guilty of the incohate crime of attempted murder.
The traditional definition of conspiracy requires the following two elements:
(1) an agreement between two or more persons (which constitutes the act); and (2) an intent to achieve a criminal or unlawful objective.
To constitute conspiracy at common law,
there must be a combination of two or more guilty persons.
when does the crime of conspiracy fail in regard to larceny and/or burglary
The “plurality” requirement is not satisfied because a defendant is an innocent party who believed that he was the true owner of the chattel being taken. In addition, if each defendant never entered into an agreement with the others, but rather intended individually to commit a theft inside a home, there is no conspiracy
MPC states, “Guilt as a conspirator is measured by the situation as the actor views it; he must have the purpose of promoting or facilitating a criminal offense, and with that purpose must agree (or believe that he is agreeing) with another that they will engage in the criminal offense or in solicitation to commit it.” Therefore, under the MPC you do NOT need
Under the MPC, agreement between “two or more” persons is not required. Only agreement by a single actor agreeing with another is needed. Furthermore, a mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words that expressly communicates agreement.
An agreement for conspiracy under the MPC does not have to be
“The agreement need not be shown to have been explicit. It (agreement) can instead be inferred from the facts and circumstances of the case.” “It is possible for various persons to be parties to a single agreement (and thus one conspiracy), even though they have no direct dealings with one another, or even though they do not know the identity of one another, and even though they are not all aware of the details of the plan of operation or were not all in on the scheme from the beginning
Pinkerton Rule
All co-conspirators are liable for all crimes committed by any conspirator in furtherance of the original agreement
The defendant is guilty of all the crimes in a conspiracy, even if he is arrested after the conspiracy was created, but did not participate in the later crimes because
The defendant is guilty of the crimes or “attempting the same crimes” because he took a substantial step toward the commission of the robbery, even if he was prevented from participating on crime day
In order to be guilty as an accomplice,
generally two requirements must be met: (1) the individual must have the intent to promote or facilitate commission of the crime; and (2) he must “aid” and “abet” or give encouragement in the commission or attempted commission of the crime.
