PARA 94 FINAL EXAM STUDY GUIDE

Lawo **set of rules and procedures usually intended to regulate some

aspect of society** Common law v. Civil Law

o Common Law Many uses/definitions

The body of law we brought over from England Judge made law HERE:

o Legal systems based on Precedent, as opposed to written codes and constitutions.

o The structure and predictability of these system are based on what has come before; how similar cases were decided in the past

o Relies on Precedent (Stare Decisis) as its guiding principal

o Civil Law (Systems) Here, as opposed to common law systems; not the same

distinction we will make btwn Civil and Criminal Actions Based on constitutions and codes

Codification: writing it down Clarity, predictability; Circumscribes the powers of the government; less

arbitrary enforcement Precedent in our system

o We use precedent and Codes; o Codes are interpreted and applied by courts; subsequent and lower

courts follow previous rulings;o Overturned

Jurisprudenceo The study of law; philosophy of lawo Origins, meanings, and relations to morality

3 schools of legal philosophy:

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o ***Natural theory*** Law exists; it is our job to find it: it comes from moral and

unchangeable laws of nature; If a law fails to reflect laws of nature, it need not be obeyed

o Legal positivism If a law is properly created or enacted, it is valid; Not related to morality

o Legal realism Laws are subject to human frailty; Personal biases of judges mold the law.

o Martin Luther King, Jr: “"One has not only a legal but a moral responsibility to obey

just laws. Conversely, one has a moral responsibility to disobey unjust laws."1

Substantive lawo The laws themselves: what conduct is proscribed; what are the

elements of a prima facie caseo Think: the substance of the law

Procedural law:o How the laws are carried out; o By what procedure is a person brought to trial in criminal law;o What processes must be followed in a civil trialo Think: the process by which the substantive law is put into practiceo Without procedure, there are no rights – it is that important

Administrative Law: Legislative bodies (state legislatures and Congress) do not have

time or capacity to oversee the day-to-day implementation of the laws; Legislatures delegate the task to Administrative agencies; these are supervised by the executive branch; the legislation creating the agency includes authority to carry out the intent of the legislature by creating rules and regulations and orders: this is the body of administrative law.

Justifications for punishment:

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o Deterrenceo Retributiono Incapacitationo Rehabilitation

Criminal and Civil Lawso Crime: an act in violation of a criminal statute

Elements: that which must be proved by the State beyond a reasonable doubt

May result in state sanctioned punishment Guilty

DP and Equal Protectiono Murder; Burglaryo Tort

A civil wrong: no “punishment” By a preponderance Liable

o Contract actions Breach: damages

o Jurisdiction The power/Authority of a court to hear cases and to hale a

given defendant before it Personal and subject matter

PARA 94 CH 2

Malum Prohibitum Malum en se Negligence Fraud Symbols: Π, Δ Federalism:

o Relationship between Federal and State governmentso Federal Powers

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Limited enumerated Implied

Those necessary and proper for executing any of the stated powers

Commerce clause Right/power to regulate interstate commerce Very broad: substantial effect on (Wickard v. Filburn)

1942 Read and know Katzenbach v. McClung, 379 U.S. 294

(1964)o Impact on interstate commerce

Limitation:o Com clause not basis for limiting gun possession

near schools Obama care:

o Not under commerce; under taxing powero State powers

Plenary powers; general health, welfare, safety Cannot conflict via supremacy Preemption: when the fed government occupies the field Exclusive and concurrent

Dual sovereigntyo Bill of rights

Selective incorporation Federal system

o Three branches; separation of powers; checks and balances States mirror federal

o Interaction with local gov’s; prosecution by county DA in state court, for the county of…

Federal legislationo Bill: proposed legislation: usually by a member(s) of congress; can be

anyoneo Bill is introduced: gets a numbero Goes to committee: might die or survive, with reporto After report: bill is voted on in that house

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o Submitted to the other house Once passed by both houses, is submitted to the president

o President Sign, or veto To override, 2/3rds majority of each house

California o Same as above, but we also have the “initiative process”

Can be done as a statute, or a change to the state constitution o Act by citizens to put the proposed legislation to the voterso Petition – all those folks outside Whole Foods

How many signatures: based on previous gubernatorial vote totals:

For amendment: 8% of total votes cast For Statute: 5%

o Sufficient number, goes to ballot

Magistrateo A judicial officero In fed system: appointed by judges to issue warrants and hear

pretrial motions;o With consent of parties, can serve as trial judgeo In CA

Magistrates are quasi-judicial officers who perform certain constitutionally and statutorily defined functions in connection with the criminal justice system.

No list as to duties, but they are inferior in status to Judges Para legal

o Training and education; assist lawyerso B and P 6450 et seq

Florida bar v. Furmano UPL; divorce assistance

Brady v. Maryland: Know Brady material.

PARA 94 COURT SYSTEM

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Venue:o The place where the trial is held: do not confuse with JX

JX: personal and subject matter Courts:

o State: trial, court of appeal (district); supremeo Fed: trial (district); court of appeal (circuit); supremeo Trial courts have ‘original jurisdiction’ – where the case originateso Appellate courts do not; they only hear cases, and issues, that come

from lower courts Federal courts in CA

o Article III: Judicial power in one Supreme court with the authority to create inferior courts

o US district courts are the trial courts CA has Four federal judicial districts Hears fed question and diversity cases

o District courts of appeal = circuit courts 13 throughout US Ninth Circuit = CA, OR, WA, NV, ID, AZ, Alaska, Hawaii, Guam,

and Northern Marianna Islandso Federal JX

Over questions of federal law The US as a party Complete diversity and $75k in dispute

US Supreme courto Reviews Circuit court decisions and State Supreme Court decisions

involving Federal questionso Certiorari o FRCP

CA Courtso Three levels: Superior; courts of appeal; supremeo Superior Courts

Two types of trial courts and one appellate court

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Small claims: up to $10,000 for individuals; 5K for Corps; 7.5K for automobile cases

Limited JX Unlimited JX Superior court appellate Department

Appeals from Limited JX superior courto Courts of Appeal

Review decisions of trial courts CA has six districts for courts of appeal

o Supreme court Power to depublish

o Administrative courts i.e. Unemployment insurance court some allow non-lawyers to represent clients

Criminal intento Intent: resolve or determination of the mind

Proven by: evidence of surrounding circumstances and inferences drawn from proven facts

Conduct of defendant before, during, and after crime are admissible

o Intentionally caused if: It was his desire to cause the social harm; or He acts with knowledge that the social harm is virtually certain

to occur as a result of his conduct bomb on a plane; intent to kill one, virtually certain that

all will dieo as opposed to motive

drive behind the crime motive usually need not be proven; but: it can be relevant in SI crimes, and defenses, and can

mitigate culpability

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o Gen intent Inferred from the mere doing of an act

o Spec intent When the existence of a stated intent is a part of the crime Must be proven independently

Direct and circumstantialo Inference

Recklessly and negligentlyo Recklessly:

Consciously disregarding a substantial and unjustifiable risko Negligently

Actor should have been aware of a substantial and unjustifiable risk

o Difference Reckless actor consciously disregards; Neg actor’s risk taking is inadvertent

o Negligence also looks to a Reasonable Person standard Balance of subjectivism and objectivism A person in the actor’s situation

Blindness or a sudden heart attack are factors to criminal liability;

Hereditary factors and matters of intelligence and temperament are not;

o But… Criminal responsibility

o Actus reuso Mens reao Absolute defenses

Self defense (others) Insanity Necessity

Insanityo Δ must prove, by a preponderance..,;o Incapable of:

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Knowing the nature and quality of his acts; and Distinguishing right from wrong at the time of the offense

Felony Misdemeanor Wobbler Homicide

o Human…o Justifiable homicide

Waro Excusable homicide

Self defense Reasonable fear of imminent lethal threat Proportionality and necessity

Defense of others Anyone

Murdero Deliberate killing with malice aforethoughto 1st degree

Premeditation and deliberationo 2nd degree: all other deliberate with malice, and not partially excusedo Manslaughter

Voluntary Reduced due to extenuating circumstances Heat of passion

involuntary no intent to kill criminal negligence: Gross deviation from standard of

careo Felony Murder rule

rape, robbery, burglary, kidnappingo Pregnant

Viability Year and a day: mostly gone

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o Mass/ serial/ euthanasiao Felony murder rule

If, during the commission of an inherently dangerous felony, anyone is killed, all co-conspirators are charged with 1st degree murder

Inchoate crimes:o Solicitation

Invite, request, command, encourage; No need for act in furtherance

o Conspiracy Agreement between two or more persons to commit an

unlawful act; Coupled with a step in furtherence

o Attempt Remember: substantial step, and how it differs within

conspiracy and attempt

Marbury v. Madisono Judicial Review; the law is what the SC says it is.

Access to courts: Live controversy requirementso Ripenesso Mootness

1st Amendmento Speech and assembly

Content v. Conduct In schools: read ch 6 Time, place and manner Less protected

Commercial Advertising Un protected

Obscenity Appeals to the prurient interest and lacks societal value

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o Religion Establishment clause Free expression clause

o Press In theory: no greater protection

Can use illegally obtained info, if not involved in the illegality

Access to trials 2nd am

SOURCES OF rightso Constitution(s)o Court decisions ( case law)o Statutes

1st Am 2nd Am 4th amemdment

o Search and Seizure 5th am

o DP 6th am

o Open trials; issue 8th am 14th am

substantive DP no arbitrary or unreasonable action by state officials

procedural DP Life, lib, prop

o Incorporation Selective won Grand jury indictment

Terry v. ohio

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o Reasonable suspicion v. probable cause PC: reasonable ground for suspicion that a person….; or that a

place contains specific items connected with a crime RS: a specific and articulable facts … suspecting a person…

Subjective v. Objectiveo Subjective reasonableness:

Conduct that would be considered reasonable by that officer engaged in that conduct (the, the)

Based on an individual’s perceptions and feelings, as opposed to externally verifiable phenomena

o Objective reasonableness What (any) reasonable person would do or feel under the

circumstances Based on externally verifiable phenomena; w/out bias or

prejudice- disinterested Good faith exception to exclusionary rule Sentencing

o Low, middle, higho Misdoo Felonyo wobbler

Appealo No constitutional right to appealo All states have a statutory right to appeal, once

Impeachment exceptiono Crim defendant only

FPT doctrineo That found purely, but indirectly as a result of improper searcho Exceptions

Purged taint Ev found: big Q:

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o Was derivative ev found via original violation or some other means that are purged of the primary taint

o Wong Sun: D was illegally arrested, but later came back, of his own free will to the station house and confessed: attenuated to dissipate taint

Independent source Entered apartment illegally; then, after that, obtained

search warrant from other info- independent of original search

Inevitable discovery If it would have been discovered by lawful means

4th am analysiso Government actor

Regulators/inspectors too Private Citizen in gov cap

o Instrument or agent of the state Private cit: purely on own initiative

But if PS gives to state, and state does more to search, then is gov actor( the film canisters): substantially more intrusive

o Reasonable expectation of privacy Now, subjective and objective combined Seeks to preserve as private

o Justification for seizure/search Undercover/ false friend

o Information conveyed voluntarily to a false friend Abandoned property

o Garbage on the street: children and snoops One’s physical characteristics

o No REP Open fields and curtilage

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o Curt.= area to which extends the intimate acvitivy associated with the sanctity of a man’s home

4th am applieso V.= open fields

4th am does not applyo To distinguish

Proximity to house Is area within fence surrounding the house? Nature of use Steps to ensure privacy

o Naked eye flyover = no search Dow: even enhanced photos = no search

But: must be lawful Kyllo: thermal imaging

o Not in general use by publico Get a warranto Dog outside apartment

Helicopter = ok sans warrant Seizure

o Property If removed from actual or constructive possession

o Person Reasonable belief that suspect is no longer free to go about his

business By pursuit

must submit to police authority So, if 4th am applies, what does it require

o A priori justificationo Reasonableo For warrantless search and seizure, need PC

Search incident to arresto Scale

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PC RS Admin justification

Probable Causeo Beck v. ohio

Above reasonable suspicion, less than for conviction Reasonable ground to suspect that a person has committed (is

committing) a crime, or that a place contains specific items connected with a crime

o Always required for: Arrests: w or w/out warrant Searches and seizures of prop w/ or w/out warrants

o Reasonable but mistaken: facially invalid First hand knowledge

o Before arresto Ybarra: warrant for tavern, not the patrons

RSo Below PC, above hunch

Warrant componentso Neutral and detached

Officer engaged in the often competitive enterprise of ferreting out crime

No bonus for signing No personal interest

o PC To arrest

Pc that person arrested committed the crime

o Particularity Person = easy Place

With enough description that officer can ascertain place

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Reasonable mistake Thing

Reasonable basis for mistaken belief, seizure will be upheld

Plain view In complex cases, can be more general

Arrest with warrant’o Illegal arrest: remedy is release

But FPT doctrine applieso Arrest req’s PC: stop only RS

Arrest warrant required:o In home, sans exigent circo In 3d party home, need two warrants

Knock and announceo Unless dangerous or futile: RS standard (exigent circ)o Time to wait_ facts driven

Searches with warrantso Knock and announceo Lacking will not lead to exclusiono Reasonable mistake

Time Promptly Time of day

Scope/ manner Reasonable based on object of search Detain people on premises, but do not search them

o Ybarra v. Illinoiso Case by case- very touchy

Technologyo Private or public

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PARA 94 CH 7 TORTS

Torto A civil wrong for which a remedy may be obtained, usually in the

form of damageso Intentional; Negligence; Strict Liabilityo Transferred intent

Assault and battery Injunction

SHOP KEEPER’S PRIVILEGE

RELATED ISSUES:

Respondeat Superior False Imprisonment Assault/ Battery

SHOP KEEPER’S PRIVILEGE

Penal Code §490.5(f)(1)

Elements:

A merchant/shopkeeper may detain a person, for a reasonable time:o For the purpose of conducting an investigation;o In a reasonable manner;o Whenever the merchant has probable cause to believe that the person

to be detained is attempting to unlawfully take merchandise from the premises.

Issues:o Reasonable manner:

Detention in store owner’s office: 20 minutes = probably safe (not unreasonable: Collyer v. S.H. Kress & Co.)

o Reasonable Force: Dangerous area of law

Necessary to protect merchandise In Alterauge v. Los Angeles Turf Club, guard pulled

suspected shoplifter out of his car, ripping his coat:o Jury held: improper conduct; business liable

o Probable Cause: one of the great questions of the law

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The facts must be such as would warrant a belief by a reasonable man

RESPONDEAT SUPERIOR

Frolic and detour

FALSE IMPRISONMENT

WHAT IS IT?o The non-consensual;o Intentional confinement;o Of a person;o Without lawful privilege;o For an appreciable length of time;o However short(!)

The person must be deprived of his liberty, or compelled to remain where he does not wish to remain, or to go where he does not wish to go

ISSUES:

False Imprisonment can be committed by using words aloneo Reasonable apprehension on part of victim that he will not be

allowed to depart

ASSAULT AND BATTERY

A huge topic, but for the purposes of this lecture, you must know the fundamentals.

Assault: liable for, if:o One acts, intending to cause a harmful or offensive contact;o With the person of another *;o Or, an imminent apprehension of such contact; and,o The other is thereby put in such imminent apprehension.

Battery: liable for, if:

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o One acts, intending to cause a harmful or offensive, non-consensual contact;

o With the person of another *;o Or, an imminent apprehension of such a contact; and,o A harmful or offensive contact with the person of the other directly

or indirectly results

NOTE THE DEFINITIONS: how can you stop a shoplifter without committing these offenses?

You can’t.

The shopkeepers privilege is a defense; you are saying: yes, I did all the acts that constitute the offense, but I was justified in so doing.

That is why you must be so very careful.

Defamationo Libel

Written Publication of; An untrue statement; That is injurious to an identifiable person’s reputation

o Slander Spoken Libel

Intentional/ Negligent Infliction of Emotional Distresso Intentional, outrageous conduct;o That would be harmful to a reasonable person;o Was harmful to Πo Physical manifestation

Economic Tortso Intentional interference with Ko W/ Prospective business relations

Liability of a supplier of a defective product to someone injured by the product

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Five base theorieso Intento Negligenceo Strict liabilityo Implied warranties

Merchantability Fitness for a particular purpose

Transferred intento Applies to:

Assault Battery False imprisonment Trespass to land Trespass to chattels

Causationo Substantial factoro But for

False imprisonmento Confines or restrains a person (force or threat of force);o To a bounded area;o For an appreciable period of timeo Nominal and punitive available

Intentional infliction of emotional distresso Extreme and outrageous conduct;o Intent or recklessness;o Causationo Damages: required

Severe emotional distress Physical manifestation

Trespass to lando Physical invasion of Π’s real property;o Intent;o Causation

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o Invasion must be by tangible object; vibrations/odors may create COA for nuisance

o No damages required Trespass to chattels

o Act that interferes with Π’s right of possession;o Intento Causationo Damages

Conversiono Act of interference with Π’s right of possessiono Sufficiently serious interference that Δ must pay FMV of chattelo Intento Causation

Defenses to intentional torts

Consento Expresso impliedo Scope

Self defenseo N and Po Defense of property

Privilege supersedes Reasonable force to :

Prevent commission against property; No defense once tort has been committed, but hot

pursuit exception applies Deadly force

o Never for property in CA Entry onto land of wrongdoer

After making demand; reasonable time and place Peaceful manner

Entry onto land of innocent party Same, pay for damages to property

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On land through owners fault (cattle) No privilege to enter

Invasion of privacy

Appropriationo Unaurthorized use of Πs picture or nameo Δ’s commercial advantage

Intrusiono Act of prying or intruding;o Into private space;o Highly offensive to a reasonable person

False lighto One attributes to Π views he does not hold;o If matter is of public interest, Π must show malice

Public disclosure of private factso Highly offensive to reasonable person;o Liability even if statement true

DEFENSES TO NEGLIGENCE

Comparative Fault/ Contributory negligenceo Mitigation refers to actions after ‘wrong’ (injury): CF and CN refer to

π’s actions that led to injuryo Contributory negligence

Negligence on the part of π that contributes to her injuries At CL: completely barred recovery Now, all JS’s use Comparative Negligence

Trier of fact weighs π’s negligence and reduces recovery accordingly

Partial:o Bars recovery if π’s fault greater than ∆’s

Pure:o Allows recovery no matter percentage of π’s fault

CA is a pure Comparative Fault (contributory negligence) state

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Assumption of risko Impliedo Expresseso Scope

LIABILITY FOR ANIMALS

Trespassing animalso SL for dams

P/I’so SL for wild animalso Domestic: first bite freeo Trespassers

SL usually not attached; but owner liable for dams inflicted by vicious watch dogs

NUISANCE

Privateo Substantial, unreasonable interference with use or enjoymento Severity of injury must outweigh the utility of Δ’s conduct

Publico Nuisance that interferes with health, safety, or property rights of the

communityo Private damages only for special injury

PARA 94 CONTRACTS LECTURE

Contract: a promise, or set of promises for the breach of which the law gives a remedy or the performance of which the law, in some way, recognizes a duty

K requires: Offer, Acceptance, Considerationo Agreement that is enforceable in a court of law

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Offeror Offeree Agreement (mutual assent)

o The manifestation of two or more persons of the substance of a contract

Consideration Capacity Bilateral K

o A promise for a promise Unilateral K

o A promise for an act; can only be accepted by performanceo Classic exampleo The ‘if’ wordingo Offeror cannot revoke if performance has begun

Express K Implied in Fact K

o Elements Π provided prop or services to Δ Π expected payment Δ had opportunity to reject

Quasi Ko Also called implied in law Ko To prevent unjust enrichment/detrimento One party receives benefit conferred by anothero Realization by Δo It would be unjust to allow recipient to receive without pay

The Powell case She benefitted from father in law’s loan She is bound by QK

Unjust Enrichment Void K Voidable K

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Unenforceableo Due to some defense

Executed K Executory K Offer

o The manifestation of willingness to enter into a bargaino Offeror must objectively intend to be bound by the offero Terms must be definite or reasonably certaino Must be communicated to offeree

Objective theory of K’so Reasonable person would conclude that the parties are bound

Power of Acceptance Advertisement

o When offero Classic example

Rewardo Knowledge before acting

Common law v. Art 2 goodso Art 2 UCC covers contracts about goodso Goods:

All things moveable at the time they are identified to the K So: most tangible things; not:

Real estate Services Intangibles (a patent) Construction contracts Corn after harvest Cow after being born

o Merchant Non-merchant Many sales are interpreted differently whether the parties

involved are merchants or not Merchant: one who regularly deals in goods of the kind sold; or

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Who, by his profession, holds himself out as having specialized knowledge or skills about the goods involved

Further narrowed by:o General business practices: anyone in any

business can be a merchant (SOF, firm offers)o Goods of the kind sold: implied warranty of

merchantability Consideration:

o Something of legal value in exchange for a promise Note: legal detriment/ benefit

o Must meet: bargained for exchange Gift promise (gratuitous promise)

o Unenforceable for lack of consideration Gratuitous promise- no consideration Delivery is not complete unless complete dominion and control

is surrendered by donoro Promises/ gifts during engagement

Ring comes back: symbolic meaning beyond gift The rest: tokens of affection, irrevovable

Illusory Promiseo If either party can chose not to perform

Moral obligation Pre-existing Duty Rule Past consideration

o The retirement gift Accord and satisfaction

o Where parties agree to accept something different in satisfaction of the original contract

o Satisfaction: The performance of the accord

Equitable Remedieso Sp Performance

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o Rescission Material breach; fraud; duress; undue influence; msitake

o Restitution o Injunction

Promissory Estoppelo A promiseo Promisor’s reasonable expectation of relianceo Actual, reasonable reliance by the promiseo Injustice if not enforcedo Or: reasonable, foreseeable reliance, on a promise, that results in an

injury that warrants some remedy Statute of frauds (154)

o What it iso What K’s must be in writing

FAMILY LAW

Legal and Phys custodyo Legal

The parent who makes decisions re health, ed, welfare divisible

o Physical Where child is residing Non-divisible

o Sole physical Reside with one, even if both make decisions

o Sole legal One decision maker

o Joint Pure joint Joint legal

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Joint physical Temp custody

o Pendente Lite o Establish, as courts love status quoo Kick out order

Pursued to establish change in Temp cust Modification

o Burden on one seekingo Substantial change in circ

CHILD SUPPORT

3 CATSo Child, spousal, familyo Family = hybrido Child support is not tax deductible; spousal support is

Child supporto In a manner suitable to the child’s circumstanceso Till 18, except: one year extension to finish high school

But: parents retain duty for an adult child who is incapacitated from earning

AGENCY

Formation Capacity Duties

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