Week Two: Procedure, Crimes and Torts

Course Administration

For Week 3: Assign Case 10.1, Lucy v. Zehmer, 84 S.E. 2d 516 (summary at p. 167) You can find the text of this case here.

Review Chapters 2 & 3: Cases, Courts and Lawsuits

How to read a case - the five elements:

Chapter 4: State and National Laws

Key issues of Federal Jurisdiction

Coordinating the national system with the 50 state systems

Coordinating the 50 states with each other

What advantages can there be in having independent multiple levels/layers of government? Can they offset the costs of making such a system work?

The US Constitution's supremacy clause

When there is a direct conflict in of Federal and State law in an area where both levels have power to act, the Federal prevails.

Treaties also prevail over state law -- constitution prohibits states from having any meaningful foreign policy

Problem typically comes about when Feds regulate activity X, which overlaps state regulation of a related activity. Or, Feds may not have acted yet, but state action would constrict what Feds could do later

Example: Federal regulation of "interstate commerce" vs state regulation of highways and public safety. Eg: railroad train length, truck weights

Commerce and the Constitution

Exclusive Federal power re foreign commerce: import/export

Some particular powers allocated by the constitution to Feds: currency, (P), (c), bankruptcy

Federal power over "interstate commerce"

Interpreted broadly: fungible goods in the "stream of commerce". "Affecting" commerce.

Exception (a historical accident) is the regulation of insurance companies: left to the states by a 1945 law reflecting old and now discredited court decisions that insurance wasn't "commerce".

Other laws may seem quaint because they were written with a commerce "hook". Example: Fed. securities laws speak of using the postal system to defraud someone.

State power over local commerce

the "police power" (refers to public welfare and safety generally, not just uniformed officers); the power to tax

Supreme Court in evaluating whether state laws infringe Federal power look to factors such as the need for national uniformity, whether congress has enacted laws in the area, or has expressly allowed a state role, whether the state laws are biased in favor of the locals, etc.

Example: can states charge sales taxes on goods ordered via internet?

The "Bill of Rights"

The first 10 amendments to the Constitution, enacted at just about the same time as the price of getting it adopted. Generally phrased as limits on the power of government and protection of the freedom of individual citizens. Many significant court decisions involve the meaning of these amendments -- in some, every word has been argued over

Professor Doug Linder's Constitutional Law site is here

First Amendment: Free Speech

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. "

Sounds nice. What does it mean in practice? "The best way to have a free press is to own one"? Can "speech" be non-verbal? - e.g. wearing a black armband to school

Limiting doctrine: Public Danger

Schenck v. US (no right to falsely shout fire in a crowded theatre)

Limiting Doctrine Commercial speech

eg. required filings w/ SEC in corporate proxy contests

Limiting Doctrine: Pornographic speech.

What is "obscenity" -- where do you draw the line dividing art from sin? xx Jacobson v. Ohio

Limiting Doctrine: libelous speech

But note US rule for "public figures": Sullivan v. NY Times: no prior restraint (censorship) and a required showing of "actual malice" -- knowing or reckless. Here US is very different from the UK. "Let falsehood and error run free, as long as truth is free to correct it."

Use of 14th Amendment to "bootstrap" the bill of rights into a limit on action by state, as well as Federal, governments.

First Amendment: Religion (free exercise and no establishment)

But where does freedom end? Belief as opposed to practice? Caesar as opposed to God? Every right has a correlative duty.

May a state make teaching the Theory of Evolution a crime? Compare Tennessee v. Scopes (Tenn., 1927) with Epperson v. Arkansas (1968). May a state require science teachers to give "equal time" to the Theory of Divine Genesis? See Edwards v. Aguillard (1987), and most recently Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005)

Do individuals have a religious right to sacrifice live animals? Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 Us 520 (1993)

May a man practice polygamy (many wives) if sincerely held religious beliefs command it? Reynolds v. US, 98 U.S. 145 (1878)

14th Amendment: equal protection and due process of law

A consequence of the US civil war to end slavery 1861-1865. Limits what state governments can do (due process limit on national government is in the 5th amendment)

Equal Protection

Laws must treat similarly situated people similarly. But every law classifies and distinguishes. What's the state interest? Is the classification rational or odious.? "The law in its majesty forbids both rich and poor from sleeping in doorways."

Due process of law

Question if this relates to result ("substantive"), or only to procedure

Other significant constitutional provisions

"Just compensation" for takings (5th). The income tax Amendment (16th)

3rd - 8th provide various criminal case safeguards: eg. Search warrants (4th), no self-incrimination (5th), right to counsel and trial by jury (6th), no cruel and unusual punishments (8th)

Full faith and credit among state court judgments

This one works to coordinate the states w/ each other

Chapter 8: Crimes

Definition of Crimes

Basic Idea

Certain acts are so contrary to social order that society/government forbids them and devotes resources to prevention, detection, conviction and punishment. Like Fa in its classical sense.

Criminal law is codified:

Law written down in organized form, so people could, if they wanted to, know clearly what conduct is punished. But "ignorance of the law is no excuse" (usually)

Criminal law generally looks to "intent" -- the "evil" criminal state of mind. Don't punish for accidents.

Parties in criminal cases

The "accused" is arrested (restricted in freedom to move around), held or released on "bail" (a money deposit to ensure appearance) until trial

"The People": a government official (District Atty or assistant), and the accused (often represented by govt. official / Public Defender, due to 6th Amendment)

Issue of "prosecutorial discretion". Many more crimes than resources to prosecute. Can the victim prosecute? in practice, no.

Most criminal cases are dismissed, or settled thru plea bargaining. Very small percentage go to trial.

Levels of crimes

"Felony" the most serious, punishable by death or time in state prison. Lesser crimes are misdemeanors. Minor offenses like jaywalking are "infractions".

No imprisonment for infractions, only fines. No right to jury trial or public defender.

Difference not only in penalties, but whether police need a "warrant" (order signed by judge or "magistrate") to arrest if they don't actually see the crime

Crimes of Economic Gain

  • Theft, including Robbery (taking property by fear or force), Burglary (entering a building and taking), Larceny (stealing) .
  • Fencing (buying property knowing it is stolen)
  • Extortion. Obtaining $$ or property through threats of harm.
  • Forgery. Creating or altering documents without authorization.
  • Identity theft (esp. credit card false authorizations)
  • Embezzlement. Unauthorized taking of $$ or property by person to whom it was entrusted for a limited purpose.
  • Criminal Fraud. Obtaining $$ or property by lies or tricks.

Bribery. Offering something of value to a person to influence their action in an official capacity. This corrupts the ideal of an objective, professional civil service bureaucracy that operates under rational rules of general application and treats every citizen equally.

Tendency of moralistic reformers to extend the reach of such laws, to cover private conduct and conduct outside the US. e.g. Foreign Corrupt Practices Act.
Critique from the Law & Economics perspective:

Under what circumstances does private, non-governmental bribery make economic sense? Why should Firm A bribe a firm B employee, as opposed to offering Firm B a lower price? Who bears the economic cost of bribery? Isn't bribery inefficient? Is bribery a response to Government interference in a market - e.g. thru price controls?

Organized Economic Crime

RICO: Racketeer Influenced and Corrupt Organizations

Originally enacted to counter "organized crime": the Mafia.

Problems due to very broad definition: "participate" in an "enterprise" thru "pattern" (2 in 10 years) of "racketeering activity" (various business crimes/frauds). Civil suits by the injured as well as criminal charges. Many suits against big accounting firms have claimed they fit the RICO definition. Was Big-4 firm KPMG a "criminal enterprise"?

"White Collar" Corporate Crime: a Critical legal studies perspective

Since corporation is not a physical being, can't be jailed. Can be fined, when criminal acts of its human agents make it responsible.

"Variation among corporations in the violations of law are due principally to position in the economic structure... Many corporations violate the antitrust law in certain industrial areas and not in others ... Many corporations which violated the antitrust law 40 years ago are still violating that law although the personnel of the corporation has changed completely."

"The rationality of the corporation in relation to illegal behavior leaves it to select crimes which involve the smallest danger of detection and identification and against which victims are least likely to fight.... A second aspect of corporate rationality is the selection of crimes on which proof is difficult.... The rational corporation adopts a policy of "fixing" cases.... The fixing of white collar crimes is much more inclusive than the fixing of professional thefts. The corporations attempt to prevent the implementation of the law and to create general goodwill as well as deal with particular charges."

Sutherland, White Collar Crime (orig. 1953, rev. 1989 ed.)

The next time you read the business section of a newspaper, try to notice how many stories involve possible criminal or wrongful acts by corporate enterprises.

Secondary Crimes

"Aiding and abetting". Helping someone commit the primary crime. "Attempt". Trying to commit a crime that is not completed. "Conspiracy." Agreeing with someone else to commit a crime and doing some act in furtherance of the crime.

Computer crimes.

Various and federal state statutes. Problem is one of enforcement - the difficulties of proof and limited prosecutor resources and understanding.

Chapter 5: Torts ("Civil Wrongs")

Generally: departures from social standards of conduct that cause injury, but are not so disruptive as to require society itself to investigate and punish. The injured person may seek compensation, generally an amount of money that will equal the injury done.

Intentional Torts of personal injury

Assault: threats, etc. causing fear of imminent harmful touching.

Battery: actual harmful or offensive touching. To hit someone.

False imprisonment: holding someone by fear or force against their will and without authority.

Common context: detaining a suspected shoplifter - merchants protection laws try to balance economic interests vs. individual rights.

Defamation. "Slander" if spoken, "libel" if printed. X intentionally makes a harmful untrue statement of fact about Y to Z. Common defenses are: "it's true", or "Y is a public figure, and X wasn't reckless/ didn't actually know the statement wasn't true" = the 1st Amendment "Sullivan" defense.

Internet issues: the ISP and the party maintaining the server on which someone else posts generally aren't liable for content -- more like a bulletin board than a newspaper.

Invasion of privacy (vague category for things like exposing shameful private acts, spying via wiretaps, disreputable imposture). Evolving concept of a person's right to control economic use of their public persona. Text eg. of Hoffman v. LA Magazine, but cf Lugosi v. Universal Pictures.

Intentional Infliction of Emotional Distress. A fairly recent, amorphous extension of tort concepts. Outrageous conduct intended to make someone suffer *without justification*. Deliberate meanness vs. asserting rights that happen to hurt others (example: landlord evictions)

Intentional Torts against property

Trespass to land: using (being on or putting something on) someone else's real estate without permission

Trespass to Chattels ("personalty", "moveables") using/injuring someone else's moveables without permission.

Conversion -- the tort equivalent of stealing -- depriving the true owner of the item

Unintentional Torts: Negligence

Unintended ("accidental") injury caused by "careless" conduct.

In practice, majority of lawsuits here due to auto accidents. Law & Economics approach has much influence here

"Careless"/ "negligent"

The "reasonable person" standard of care (sometimes set in the law, sometimes left to jury/trier of fact to decide)

If Def. is a professional, the "reasonably average" lawyer, surgeon, etc


Problem of overlapping causation. (X drives car inattentively, causing Y truck loaded badly to swerve and spill cargo, injuring Z) Should Z's damages be allocated between X and Y? How?

  • What if X is insolvent -- should Z be able to recover full damages from Y?
  • What if X is the injured party -- recover from Y?
  • What if Y is the injured party and X is insolvent?

Concept of proximate ("nearness") cause: "for want of a nail the kingdom was lost"

Other Negligence Concepts and Terms

Negligence per se: a law establishes the standard of conduct. Eg unlicensed building contractors

Res ipsa loquitur "It speaks for itself"

Good Samaritan laws: limit malpractice exposure for health professional's voluntary response to emergency

Respondeat Superior: Make the Boss Responsible

Landowner liability: to tenants, guests, etc. Issues involve liability to trespassers (eg the supposed skylight burglar case) and whether owner had notice of the danger (eg. slippery spills in supermarkets)

Inadmissability of remedial measures as evidence. Can't use def.'s repairs to stairs as evidence that the stairs were faulty

Defenses: the injured person's conduct as a factor

Assumption of risk. "You asked for it." Example: ski resorts.

Contributory negligence. Classic tort idea that injured person's own negligence bars recovery.

Comparative negligence. "Modern" view that tries to assign percentages to the conduct of each as a causative factor.

The Law and Economics Perspective

Should compensation for injury depend on proving someone was at fault, and also depend on being injured by a solvent defendant?

"So you slipped and fell and hurt yourself. Why didn't you do it in front of Macy's? From Macy's, we can collect." - anon. low-class lawyer.

L&E view: Law should provide compensation for injury *and also* incentives to reduce the cost of injuries (i.e. magnitude times probability) until the cost of further reduction exceeds the benefit.

Complication: cost shifting thru voluntary, or mandatory, or socialized programs of insurance. If insurance *fully* compensates, it eliminates the incentive for the insured to act to reduce the chance or size of the injury -- "moral hazard". What ability does an insurer have to reduce the cost?

Does classic tort law put the costs of an accident on person best able to avoid them (the "cheapest cost avoider"?) Is the hypothetical standard of care realistic? What if someone is injured but there was no violation of the standard of care by anyone -- an "Act of God"?

Business Torts

Unlicensed practice of profession

Trade defamation: libel/slander of competitors' products


The 5 elements: false statement, knowingly made, with intent that injured person rely, justifiable reliance, and injury

In securities law, often q. of half truth -- "the mine is full of gold" (and it's 3000 meters under water)

Strict liability

Def. is carefully doing something that is inherently quite dangerous, tho socially valuable so not prohibited, but someone is hurt anyway. Examples: Explosives, fireworks

notes and format (c) 2001-08 Robert H. Daniels