Introduction to American Law – K. T. Druckman
Table of Contents
Introduction to American Law – K. T. Druckman ................................................................................ 1
The U.S. Legal System and its Historical Perspective .......................................................................... 5
History of formation .............................................................................. Ошибка! Закладка не определена.
Guiding Principles ................................................................................. Ошибка! Закладка не определена.
Power of Common law judges ....................................................................................................................5
Civil law v. Common law .............................................................................................................................6
Limits on Federal Government ....................................................................................................................6
US Legal system ................................................................................................................................ 6
3 branches .................................................................................................................................................6
System of Checks and Balances ...................................................................................................................6
The States’ structure mirrors the Federal structure ........................................................................................................... 7
Most U.S. law is State law ................................................................................................................................................... 7
Parallel Court Systems ........................................................................................................................................................ 8
Courts: 3 tier-system ........................................................................................................................................................... 8
Judiciary: US VS Civil law ..................................................................................................................................................... 9
Judicial Interpretation in Civil & Common Law Systems ...............................................................................9
Statutory interpretation: principles applied by judges ............................................................................... 10
How to read and brief a case ........................................................................................................... 10
Scott v. Shepard: how to draft a legal theory............................................................................................. 10
Palsgraf v. Long Island Railroad: negligence............................................................................................... 11
Chicago, Burlington and Quincy Railroad v. Krayenbuhl (the Hand Formula): negligence ............................ 12
Nga Li v. Yellow Cab: comparative vs contributory negligence ................................................................... 12
Bly v. Rhoads: informed consent (consentement éclairé) ........................................................................... 12
Marbury v. Madison: judicial review ......................................................................................................... 13
Torts ............................................................................................................................................... 15
Ellis v. D’Angelo........................................................................................................................................ 15
Eckenrode v. Life of America: intentional infliction of severe emotional distress......................................... 16
Common law v. Civil law ........................................................................................................................... 16
Jury duty .................................................................................................................................................. 16
Mainly State (rather than Federal) law ...................................................................................................... 17
Procedure ................................................................................................................................................ 17
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3 types of tort: Negligence / Intentional (e.g. battery) / Strict liability........................................................ 17
Products liability: mix of strict liability, of negligence, and of contract law ................................................. 17
Negligence ............................................................................................................................................... 18
Breach of duty ................................................................................................................................................................... 18
Causation: different types ................................................................................................................................................. 18
Defences: contributory negligence, intervening cause and assumption of the risk ......................................................... 19
Intentional Torts ...................................................................................................................................... 19
Defences .................................................................................................................................................. 19
Strict Liability: abnormally dangerous activities, vicarious liability, products liability .................................. 20
Punitive (exemplary) damages .................................................................................................................. 20
Legal Research ................................................................................................................................ 20
Primary Sources ....................................................................................................................................... 20
Federal Statutes ....................................................................................................................................... 20
Secondary Sources ................................................................................................................................... 21
Legal Periodicals....................................................................................................................................... 21
Electronic Availability ............................................................................................................................... 21
Exercise: Legal Research (ISDC)........................................................................................................ 21
Robert S. Summers, Precedent in the United States (New York State): stare decisis .................................... 22
Jurisdiction...................................................................................................................................... 23
Adversarial system ................................................................................................................................... 23
3 types of jurisdiction and challenges to jurisdiction .................................................................................. 23
Long-arm statutes: examples .................................................................................................................... 24
Cal. CCP §410.10 ............................................................................................................................................................... 24
N.Y.C.P.L.R. §302 ...................................................................................................................................... 24
Justiciability: standing, ripeness, mootness ............................................................................................... 24
Pennoyer v. Neff: service of process and jurisdiction on non-residents ...................................................... 25
Schaffer v. Heitner: in rem actions ............................................................................................................ 26
International Shoe v. Washington: general/special jurisdiction.................................................................. 26
World-Wide Volkswagen v. Woodson: general/special jurisdiction ............................................................ 27
Piper Aircraft v. Reyno: forum non conveniens (FNC) ................................................................................ 27
Burger King Corp. v. Rudzewicz: purposeful availment test ........................................................................ 28
Bensusan Restaurant Corporation v. King: tort and internet jurisdiction .................................................... 29
Zippo Mfg. Co. v. Zippo Dot Com: internet jurisdiction .............................................................................. 29
Personal Jurisdiction/Internet Hypothetical (p. 435 polycopié) .................................................................. 30
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Criminal Law ................................................................................................................................... 31
No over-arching structure ......................................................................................................................... 31
Mostly State law, but some exceptions (MPC) ........................................................................................... 31
MPC analytical structure........................................................................................................................... 31
Principle of legality (nulla poena sine lege) and sentences (from rehabilitation to retribution) ................... 32
Mens Rea in Common Law........................................................................................................................ 32
Justification and Excuse ............................................................................................................................ 33
Defensive violence under Common law ........................................................................................................................... 33
Mental abnormality: M’Naughten’s test .......................................................................................................................... 33
Harm and Attribution: attempt, complicity, criminal associations .............................................................. 34
RICO (Racketeer Influenced and Corrupt Organizations) Act ...................................................................... 34
Imposition of a sentence (18 U.S. Code § 3553) ......................................................................................... 34
Specific Offenses ...................................................................................................................................... 35
Furman v. Georgia: death penalty ............................................................................................................. 36
Hurst v. Florida: death penalty.................................................................................................................. 36
Criminal Procedure.......................................................................................................................... 37
Adversarial System and Disbalance between prosecution and defendant .................................................. 37
1) Arrest, formal charges and first appearance .......................................................................................... 37
2) Preliminary hearings, indictment or information ................................................................................... 37
3) Arraignment and pre-trial motions ....................................................................................................... 37
Comparison with Civil Lawsuit .......................................................................................................................................... 38
4) Trial ..................................................................................................................................................... 38
5) Sentencing ........................................................................................................................................... 38
6) Appeal ................................................................................................................................................. 39
7) Review ................................................................................................................................................. 39
8) Resolving Cases Without Trial ............................................................................................................... 39
Constitutional Source of Criminal Procedural Rights .................................................................................. 39
Unreasonable Seizures of Persons and Illegal Arrests: warrant and reasonableness of means .................... 40
Confessions and Pre-Trial Right to Counsel: 5th and 6th Amendment ........................................................... 40
Exclusionary Rule and Fruit of the Poisonous Tree: evidence obtained illegally .......................................... 41
Rights at Trial ........................................................................................................................................... 41
Double Jeopardy ...................................................................................................................................... 42
Proof Beyond a Reasonable Doubt, in Low, Jeffries & Bonnie, Criminal Law, pp. 967-986 ........................... 42
Trial by Jury, pp. 243-257, The Life of the Law: course of a criminal trial..................................................... 42
3
Mapp v. Ohio: admissibility of evidence obtained illegally (exclusionary rule) ............................................ 42
Katz v. US – 4th Amendment; redefined what search or seizure is:.............................................................. 43
Terry v. Ohio: 4th Amendment; Stop-and-Frisk........................................................................................... 45
Utah v. Strieff: constitutional aspects of criminal procedure ...................................................................... 46
First Amendment ............................................................................................................................ 47
New York Times v. United States: national security ................................................................................... 47
New York Times v. Sullivan: defamation ................................................................................................... 47
Reno v. American Civil Liberties Union ...................................................................................................... 48
The Life of the Law, The Right of Privacy ................................................................................................... 49
Griswold v. Connecticut (1965): penumbral rights and right to (marital) privacy......................................... 49
Roe v. Wade: abortion law, right to privacy, strict scrutiny standard .......................................................... 50
Planned Parenthood v. Casey: abortion, stare decisis, undue burden criteria ............................................. 52
Dobbs v. Jackson's Women's Health Org. .................................................................................................. 52
Obergefell v. Hodges: gay marriage, right to marriage as a fundamental right (2015) ................................. 53
Lawrence v. Texas: criminal sodomy law ................................................................................................... 55
Tandon v. Newsom................................................................................................................................... 56
1st Amendment and the rights it entails .................................................................................................... 56
Why is the 1st Amendment so important? A free marketplace of ideas and a free democracy ..................... 57
Exceptions and limitations to 1st Amendment rights .................................................................................. 57
General approach to validity of restrictions: strict scrutiny, undue burden criteria ..................................... 57
Overbreadth and vagueness ..................................................................................................................... 58
Advocacy of Unlawful Action .................................................................................................................... 58
1st Amendment Rights: public places ......................................................................................................... 58
Special problems arising under 1st Amendment: fighting words and commercial speech ............................ 58
Defamation .............................................................................................................................................. 58
Obscenity: Miller test ............................................................................................................................... 59
Federal Rules of Evidence ................................................................................................................ 59
Adversarial System ................................................................................................................................... 59
Rules of evidence ..................................................................................................................................... 59
Admissibility of evidence .......................................................................................................................... 60
Relevance: 2 questions to ask ................................................................................................................... 60
Testimonial privileges: privileged/confidential information ....................................................................... 61
Requirements for attorney-client privilege....................................................................................................................... 61
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Rules for examination of witness .............................................................................................................. 62
Direct examination ............................................................................................................................................................ 62
Cross-examination ............................................................................................................................................................ 62
Credibility / impeachment ................................................................................................................................................ 63
Objections ......................................................................................................................................................................... 63
Hearsay ............................................................................................................................................................................. 63
Waiver / Forfeiture of Objections: .................................................................................................................................... 64
Contracts ........................................................................................................................................ 64
Elements of a Valid Contract ..................................................................................................................... 64
Validity .................................................................................................................................................... 65
Writing Requirement................................................................................................................................ 65
Discharge ................................................................................................................................................. 65
Performance ............................................................................................................................................ 65
Remedies ................................................................................................................................................. 66
Damages .................................................................................................................................................. 66
Hawkins v. McGee, 84 N.H. 114 (1929) check ............................................................................................ 67
Limitations on Damages ........................................................................................................................... 67
Interpretation .......................................................................................................................................... 68
The U.S. Legal System and its Historical Perspective
Power of Common law judges
Historical judicial hostility to statutory intrusions: respect for judicial discretion and importance of case law
Broad principles are in Common Law: statutes fill in gaps, legislators do not set principles out in codes bc
everything is in common law and everyone is supposed to know common law, whereas in the Civil law system,
you have a whole system in the codes
Common law: importance of case law and power of judges (= lawmakers)
- Judges (not scholars) are main protagonists in the evolution of legal doctrine
o In federal law system: all judges are appointed by elected officials
o In State law system: some judges are elected
o In the SC: judges are appointed for life, so that they won’t be held politically accountable and bc
we want the judicial body to be independent from the legislative and executive branches
- Stare decisis: binding nature of prior court decisions
o Every case is law and binds judges at same and lower levels: cases make law and become part of
the law, as judges are bound by them
o As a result: US law in constant evolution + broad judicial discretion (judges’ power to make law)
o Cases can be overturned (to let the law evolve)
- Importance of the facts of a given case
o Socratic method = fact-oriented approach: de-emphasizing theory and doctrine and
concentrating on the facts of the specific case
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o
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Pragmatism in law: The life of the law has not been logic; it has been experience. – Oliver Wendell Holmes Jr.
 Cases are decided based on the particularities of the facts, instead of theory
Characteristics of American Law
o No overriding structure, lack of uniformity
o Reactive: legislation adopted on ad hoc basis, evolves quickly
o Importance of individual freedoms/lack of paternalism
Civil law v. Common law
Civil law
- Simple principles
- Codes contain germinating rules from which specific rules can be generated
- Apply statutes by analogy to situations not envisioned by the drafters or not within its literal terms
Common Law
- Longer, more specific principles
- Statutes address a specific issue/fills the gap
- Broad principles found in Common Law
- Strict interpretation of statutes
o Expressio unius est exclusion alterius: rule which states that one thing having been mentioned
the other is excluded. Thus, 'no dogs allowed' means that lions are allowed but guide dogs are
excluded (cf. p. 10)
o Contractual interpretation: if one of the parties drafted the contract and has more power than
the other, interpret the contract in favour of the weaker party
Limits on Federal Government
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Enumerated Powers in Constitution
Supremacy of the States
Parallel Court Systems
US Legal system
3 branches
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-
Executive/Administrative
Legislative: 2 houses (bicameral legislature, like in CH)  Congress
o Senate (evenly split between Democrats and Republicans): per State = each State is represented
by 2 senators (rn, 100 senators in the US bc 50 State)
o House of Representatives (rn, majority of Democrats): per capita = States that have bigger
populations have more representatives
Judicial
System of Checks and Balances
The 3 branches are independent = we don’t want one of the branches to get too powerful and control the others
Executive Branch
- Pocket veto of the President against an act from the legislative branch
o BUT veto can be overridden by a 2/3rd majority of Congress (hard to obtain)
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Ability to call special sessions of Congress (eg. when the President needs Congress to back him/her to finance a war or
to declare war, because the President cannot declare war alone but needs the Senate)
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Can recommend legislation
Can appeal to the people concerning legislation and more: the President gets a lot of press so it’s a de
facto power, not a real one
President nominates Justices in the SC and other federal judges, with the consent of the Senate
Pardon from criminal convictions, from death penalty sentences, etc.
Legislative Branch
- May override presidential veto with a 2/3rd vote
- May remove the president and judges through impeachment
o
-
4 impeachments in US history: 2 of Trump, but no President has never been kicked out of office
Creates lower courts
Senate approves and ratifies treaties (it doesn’t suffice for the president to sign them), presidential
appointments, war declarations (2/3rd majority)
o Constitution is the Grundnorm (top of the hierarchy): if an international treaty is unconstitutional,
the treaty falls
Judicial Branch: lawmakers
- Judges are free from controls from the executive branch: courts can
o Judge actions taken by the executive branch and by Congress
o Judge legislation to be unconstitutional and invalidate it  power of judicial review (≠ to CH TF)
- Determines how law is to be applied
- Stare decisis: make the law
The States’ structure mirrors the Federal structure
50 States in the US, each having the same structure as the federal system
3 branches of Government
- Executive
- Legislative: bicameral Congress
- Judicial system
Hierarchy of Laws
- Federal Constitution
- Federal Statutes, Treaties, Court Rules
- Federal « Common Law »
- State Constitution: every State has its own Constitution  if there’s a conflict, Federal Constitution takes
precedents, though some Constitutions, like Californian Constitution, might guarantee more rights
- Statutes and Court Rules
- State Common Law
Hierarchy of Courts
- 3-tier system: trial, appeal, supreme court
- 51 Court systems in the US: 50 State systems, 1 Federal system  parallel systems (cf. p. 8)
Most U.S. law is State law
- Contract law (≠ CH CO)
- Constitutional law
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- Torts (RC)
- Property
- Commercial law
- Corporate law
- Criminal law
- Family law
- Trusts & estates (succession)
- Conflicts (droit international privé)
- Procedure: not even State law, every court has its own procedural law
 NO uniformity among States
 Exception: Uniform Commercial Code = only art. 2 and 9 UCC adopted by all of the States, except for Louisiana
Federal law takes precedents over State law
BUT the federal legislator can only legislate in the areas of law it is specifically allowed to legislate by the
Constitution, like interstate commerce = broad notion (internet, anything that crosses state lines)
BUT State protection can be higher than federal protection
Parallel Court Systems
State Court systems and Federal Court systems are parallel (≠ to CH: cantonal < federal) and have a 3-tier system
- Sometimes concurrent State/Federal jurisdiction: both a State/Federal court will be competent
- State courts: general jurisdiction = they can hear any kind of questions
- Federal courts: limited jurisdiction = they can only hear questions that meet certain conditions
o Concurrent
 Federal question: if a question of federal law/federal subject matter raised in a case (i.e.
examine the constitutionality of a legal act), plaintiff (P) can file the case either in Federal OR
State court
 Diversity: if parties are citizens of different States + amount in controversy at least 75k,
the case can be transferred to a federal court and federal procedural law will apply (but
not necessarily federal substantive law)
 Erie: should federal courts sitting in diversity jurisdiction apply state or federal law? The judges
ruled that federal courts are not entitled to create their own common law for issues that properly
fall within state law

o
Removal: if P files to a State court, defendant (D) can ask the case to be removed from
State court and transferred to Federal court and federal procedural law will apply (but
not necessarily federal substantive law)
Exclusive: IP, securities & banking, bankruptcy, tax, patents, copyrights, maritime law, antitrust,
civil rights, interstate commerce
Courts: 3 tier-system
Federal
- Trial court: District Court
- Appeals: Circuit Court
- US SC (petition of certiorari)
State: many States use different names, so be careful
- Trial court: County Court (NY “SC)
Appeals: District Court (NY “Appellate Division of Supreme Court”)
- State SC (NY “Court of Appeals”)
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Trial Courts
- A judge presides
- A jury may be present
o Typical in criminal cases: D decides if they want a jury
o Common in tort cases: parties decide if they want a jury
- Evidence is introduced: determination of the facts occurs ONLY in trial court
- Many trial court decisions are not published
Appellate Courts hear appeal from trial courts or lower appellate court decisions and can overturn them
- Judge(s) preside(s), usually at least 3
- No jury: judges and attorneys only
- No additional evidence or legal issues presented
- Decisions frequently published
Judiciary: US VS Civil law
US law system
Civil law systems
Unified system of courts in each jurisdiction
Importance of juries
Analogical reasoning: fact-oriented approach
Deductive reasoning
- Review precedents: analyze how the rule
- Determine holding of case based on the facts
varies depending on the facts
- Synthesize rule from several cases to establish
- Identify factual similarities and differences
a rule of law
between precedents and case at hand: argue
- Apply to case: apply the law to the facts
by analogy
- Follow precedent or distinguish
No systematic codification of law
Civilists think of a code as being the complete law in a
specific area
Reasonable man: what a reasonable person, in those
circumstances, would do  compare behaviour with
that of the D
Judicial Interpretation in Civil & Common Law Systems
Common law
Civil law
General principles from Common Law, no legislator will Legislation contains general principles from
address principles in a statutes
which specific rules can be generated
Consequence: statutes adopted on ad hoc basis to address
specific problems, not general principles
Statute: rule of law in limited area  subject-matter Courts can reason by analogy from statutes
outside terms of statute is governed by Common Law
Expressio unis est exclusio alterius: if you specify one thing
in particular, you meant to exclude everything else  hence,
the importance of the expression including, without limitation (which is
why American contracts are so much longer) (cf. p. 6)
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Statutory interpretation: principles applied by judges
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-
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Presumption of language
o Expressio unium est exclusio alterius (cf. p. 6)
o Lex specialis derogat lex generalis: specific terms prevail over general terms
Context of statutory language
o Interpretation based on the immediate context
o General word following enumeration of terms
o Consistent interpretation of statutes on same subject
External influences
o Ambiguity in Criminal Statutes resolved in favor of accused (presumption of innocence)
o Deference to decisions of administrative agencies: if admin agencies have interpreted the
statutes in a certain way in their decisions, courts have to respect those established interpretation
o Interpretation to avoid unconstitutionality
o Interpretation in light of fundamental values
How to read and brief a case
Pi  = plaintiff (P)
Delta  = defendant (D)
K = contract (K)
Scott v. Shepard: how to draft a legal theory
Facts: D (Shepard) throws a lighted squib (grenade) into a crowded marketplace. 2 other patrons threw the squib until it struck Scott. It
exploded and hit P (Scott), which injured made P lose his eyesight. P sued D (civil suit) for trespass and assault.
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This case was heard at a time where the procedural rules required that the P choose a specific writ (=
cause of action) which would lead to compensation
o Here, it is a procedural matter: whether or not the case could go forward and if the chosen writ
was the right one
Drafting a legal theory: Where D sets in motion a chain of events that causes P harm, and a reasonable person under the
same circumstances should expect some harm to result from D’s act, then D is liable
o Notions addressed here: causation (causes), foreseeability (should), liability (some harm)
o Too broad: too much room for argumentation from parties and the judge  we should also address potential liability
of other parties and whether or not one of the events in the chain of events could interrupt the chain of causation
o
Can the other parties (that threw the squib away) be held liable as well? Does P have to file 3
separate lawsuits or can lawsuits be joint?
 Joint and several liability: P can choose to sue whoever he wants and whoever he sues has to
pay all the damages and has the right to sue the other 2 for their proportionate share of liability
-
Lots of legal notions involved: foreseeability, causation, chain of event, interruption of chain of causation
o Foreseeability: what an objective, third person would see or think  “reasonable man”
Distinction substantive VS procedural law: in US law, you have to apply the procedural law of the court where
the action is being judged, but not necessarily the substantive law of that jurisdiction (Erie, cf. p. 9)
Persuasive precedents: precedent or legal writing that is not binding but that is relevant and may guide the
judge in making the decision in a current case
- The judge is required to follow precedent from a higher court in the same court system, but not to follow
case law from another jurisdiction
- Some jurisdictions have more weight than others and are recognized as jurisdictions where judges are
particularly qualified (2nd Circuit: NY, 9th Circuit: California, 5th Circuit: South): California courts tend to be
fairly liberal and innovative
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Palsgraf v. Long Island Railroad: negligence
Facts: Mrs. Palgraf waiting on the train platform. Train departing, a man tries to run and catch it, but is pushed by 2 train officers. The man
drops a package containing fireworks and the package blows up, knocking over the scale next to Mrs. Palsgraf, causing her a head injury.
Mrs. Palgraf (P) sues Long Island Railroad company (D).
Issue: In an action for injuries sustained during an explosion when a package was dropped on a nearby rail, was
defendant railroad liable for negligence due to its guards' conduct in pushing the man carrying the package?
Holding: No. The Court found that the conduct of the railroad's guards was not a wrong or negligence in relation
to P, standing far away. There was nothing in the situation to suggest to the most cautious mind that the parcel
wrapped in newspaper would spread wreckage through the station and that there was a breach of duty. The Court
concluded that there was no negligence because D could not have reasonably foreseen that its employees'
conduct would have resulted in injury to P Palsgraff.
- Who set in motion the chain of events that led to Mrs. Palsgraf’s injury? The man carrying explosives, so
some would argue that Railroad isn’t liable bc it didn’t set in motion the 1st act of the chain of events
- BUT direct causation (but for) of the Railroad employees: their negligent act of pushing the guy onto the
train serves as the basis for this lawsuit
- Why did Mrs. Palsgraf sue Railroad? Money!
- Vicarious liability: legal doctrine where someone may be held liable for the acts of someone they have
some control over (typically, employers are responsible for the act of their employees)
- Rule of the “zone of danger” defined in this case: D owes a duty to anyone close enough to the D and his
negligent act, such as the law holds D liable for any harm suffered by someone within the zone of danger
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Justice Cardozo sized with the railroad company and found that bc a reasonable person would not have foreseen that a scale
would fall and topple on top of Mrs. Palsgraf as a result of the box exploding
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A dissenting judge disagrees with the application of the rule of the zone of danger and replaces it with a
limitation on the notion of liability: to ask whether there was such a big distance in the chain of events
between the act causing the harm and the harm itself, that it cut the chain of causation (no proximate
cause and intervening cause)
Liability from negligence?
- Negligence: duty + breach + actual and proximate cause + damages
o Duty: there must be a legally protected interest  it could be as simple as the duty of acting like
a reasonable person
 Keep the ppl in the “zone of danger” safe: what if the injured party is too far away from
the “zone of danger”, like Mrs. Palsgraf? Does that mean that party doesn’t have the right
to be protected?

Every one owes to the world at large the duty of restraining from those acts that may unreasonably threaten
the safety of other.
o
o
-
Breach of duty: D did smt he shouldn’t have done
Causation: the breach of duty caused the harm to P
 Cause-in-fact (but for test): but for the action, the result would not have happened
o Damages: harm done
2 things that can interfere with causation: absence of proximate cause and intervening cause
o Proximate cause: an action must be close enough to a harm in a “chain of events” to be legally
valid  it is possible that the relationship between the act of D and the harm is so far that it’s no
longer fair to hold D reliable
 “Proximate”: because of inconvenience, of public policy, of a sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain point
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
o
The damages must be so connected with the negligence that the latter may be said to be
the proximate cause of the former.
Intervening cause: chain of causation is broken when an intervening cause (“superseding cause”)
severs the link between cause-and-effect and cuts the chain of causation
Chicago, Burlington and Quincy Railroad v. Krayenbuhl (the Hand Formula): negligence
In the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which
they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions
bear to the beneficial use of the premises. If, under all the circumstances, the owner omits such precautions as a man of ordinary care
and prudence, under like circumstances, would observe, he is guilty of negligence.
 A man is liable for injuries sustained by people getting harmed by his property, if the danger to be anticipated,
from the property outweighs the expense that would be entailed in making it safe
 In order to anticipate danger, the owner must take the POV of a reasonable man
Nga Li v. Yellow Cab: comparative vs contributory negligence
Facts: traffic accident between P (Li) and D (Yellow Cab Co.), in which both of them had been found to have been driving negligently. P had
attempted to cross 3 lanes of oncoming traffic to enter a service station; the D’s driver was traveling at an excessive speed when he ran a
yellow light just before striking the P’s car. The doctrine of contributory negligence in California law at the time would have prevented any
recovery to Li. The California SC took the opportunity to reconsider the state’s tort law and introduce the notion of comparative negligence.
Issue: can P recover for the injuries they sustained from the accident? If so, how much and does the fact that P
was also negligent affect the compensation amount?
- Traditional Common Law view = contributory negligence: behaviour that contributes to one's own injury
or loss and fails to meet the standard of prudence that one should observe for one's own good
o
Contributory negligence of the P is frequently pleaded by the D in defence to a charge of negligence
o
-
This theory disallows any recovery by a P whose negligence contributed even minimally to
causing the damages: no recovery for damages caused by your own negligence
BUT Li vs. Yellow Cab overrules this and instead suggests the notion of comparative negligence: legal
defence that reduces the amount of damages that a P can recover based upon the degree to which the
P’s own negligence contributed to cause the injury
o ≠ with contributory negligence: instead of disallowing all recovery, this theory reduces recovery
o The way it works depends on the state:
 % of negligence laying with each party (ex: when P’s fault lies below 50%, then P can
recover): the court must decide the degree to which the P’s negligence contributed to
cause the P’s damages
 % of damages that resulting from the wrongful action
 % of compensation that is due to one another party, etc.
Bly v. Rhoads: informed consent (consentement éclairé)
For a consent to be valid, it must be “informed”: the person giving their consent must know to what they consent
- General duty to warn: physicians must disclose to patients the alternatives to, risks, and all relevant
facts of a particular treatment BUT duty limited to disclosures which a reasonable medical practitioner
would make under the same or similar circumstances (reasonable man)  failure to disclose does not
necessarily suggest a neglect of duty in all instances
- A claimant (patient) in a malpractice action based on negligence in failing to warn must prove the
existence and extent of the duty to warn in his specific case by a preponderance of evidence (civil case)
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Marbury v. Madison: judicial review
James Madison (D) is the Secretary of State of the US. Marbury is the receiver of a new court appointment.
3 questions argued before the Court: the court rephrased them as such
1. Has the applicant a right to the commission (= piece of paper that has the seal of the USA, official certificate attesting to the fact that he
has been appointed as judge) he demands?
Here, the judge was duly appointed during the prior administration. When the new administration came in, the new Secretary
of State refused to deliver these commissions
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is the remedy a mandamus issuing from this court?
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Writ of mandamus = Court order
Smtimes, there are more than 1 opinion (dissenting, concurring, dissenting or concurring in part)
Opinion of the court/per curiam: opinion signed by majority of the court  stare decisis value
Concerning the 1st question
-
For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those
evidences of office, which, being completed, became his property.
The president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public
ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.
o
o
o
-
To know if the applicant has a right to the commission, first determine if he was dully appointed
1st step: nomination by President  2nd: confirmation and appointment by Senate  3rd: the
Secretary of State’s job puts the seal on the commission  4th: President signs the commission
Is the commission merely written evidence of appointment to the post, or is it the appointment
itself (you are not appointed without the commission)? The last act done by the President is the
signature of the commission: once he does that, then all the steps necessary to become judge
have been completed
The Court inquires whether the possession of the original commission be indispensably necessary to authorize a person,
appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the
office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office
o
-
If we take a rule and apply it, and it gives us a ridiculous result, that can’t be the correct rule: if
we really needed a commission to authorize the judge to perform, then that means that if we lose
the paper, we won’t be authorized to act as a justice anymore, which seems ridiculous
Conclusion: When a commission has been signed by the president, the appointment is made; and that the commission is
complete when the seal of the United States has been affixed to it by the secretary of state.
o
Appointment is made, not when the commission is delivered to the appointee, but when the
commission is signed by the President
o
The discretion of the executive is to be exercised until the appointment has been made. Mr. Marbury, then, since his
commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating
the office gave the officer a right to hold for five years independent of the executive, the appointment was not
revocable; but vested in the officer legal rights which are protected by the laws of his country.
o
The right is NOT revocable by the will of the executive, since the appointment has conferred legal
rights and cannot be annulled SO once the officer is appointed, then he has a legal right to that
office, that the President cannot remove anymore
Concerning the 2nd question
-
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease
to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
o
-
Since the US is a government of laws, then there must be a remedy, or else, what is the point of
having laws?  Not a convincing argument
The office of justice of peace in the district of Columbia is therefore worthy of the attention and guardianship of the laws. It is
not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.
13
o
-
-
By the act concerning invalids, passed in June 1794, the secretary at war is ordered to place on the pension list all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be
without remedy?
o Argument by analogy = give an example where the answer would be absurd, in order to prove
your point: if you’re wounded in war and entitled to compensation, but someone forgets to put you on the list, does
that mean you lose your right to compensation?
The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of
the executive is conclusive. The acts of such an officer, as an officer, can never be examinable by the courts.
o
-
Checks and balances: competences that are exclusively executive cannot be controlled by the 2
other branches
Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the
president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a
right to resort to the laws of his country for a remedy. The question whether a right has vested or not, is, in its nature, judicial,
and must be tried by the judicial authority.
o
o
o
-
Is this an office of any value? Of course, and it should be protected by the law, bc the piece of
paper represents a right to perform as justice for 5 years, which is a right that should be protected
Distinction between functions of Secretary of State (= executive branch): if he is exercising purely
executive functions, then the Court cannot examine those acts VS if the laws oblige an executive
officer to do certain things and that the rights of individuals depend on those things, the officer
is then acting as an officer of the law and the court has the power to review that action
The SC doesn’t have the power to review ALL acts of the members of the executive branch, but
they do have the power to review the acts that are dictated by the law
The question of where Marbury’s rights to his commission are vested is a question of
interpretation of the law, which is of judicial nature, to be determined by judicial authority
1. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice [5 U.S. 137, 168] of
peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the
secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that
the appointment conferred on him a legal right to the office for the space of five years.
o Translation: once the commission is signed, the right is vested for 5 years
2. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain
violation of that right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on,
1. The nature of the writ applied for. And,
2. The power of this court.
Concerning the 3rd question
-
Whenever there is a right to execute an office, perform a service, or exercise a franchise and a person is kept out of possession, or
dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus. This writ ought to
be used upon all occasions where the law has established no specific remedy, and where in justice and good government there
ought to be one.
-
This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to
be inquired, whether it can issue from this court.
The act authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to
any courts appointed, or persons holding office, under the authority of the United States.'
o
o
o
-
Writ of mandamus: catch-all solution when there isn’t a specific appropriate remedy available
Question: can this court issue a writ of mandamus?
The Constitution says that the SC only has original jurisdiction in certain areas, otherwise they
only have appellate jurisdiction
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary
to enable them to exercise appellate jurisdiction.
14
o
The only way this judiciary act can take effect and not violate the Constitution is if we show that
we are exercising appellate jurisdiction, which is not the case here as Marbury directly applied
to the SC, it is not an appeal
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution
is written.
o
o
-
If a piece of legislation contradicts the Constitution, it is unconstitutional and the Constitution
takes precedent, so a legislative act contradictory to the Constitution cannot be law
Only way to modify the Constitution: amendment procedure set out in the Constitution
If both the law and the constitution apply to a particular case, the court must determine which of these conflicting rules governs
the case. This is of the very essence of judicial duty.
o
Here, the court just granted itself the power of judicial review: it is the judicial branch’s duty to
determine whether a law contradicts the Constitution or not
o Specialty of US law: if the court determines that a piece of legislation violates the Constitution,
the law will be invalid and no longer in effect  this is what makes the judicial branch in the US
so strong, as it can invalidate the acts of the other branches
 Conclusion: Marbury didn’t get his mandamus. The US SC gave itself the power of judicial review = basis for
the ability of the US SC to strike out unconstitutional legislation
Torts
Criminal law
Burden of proof: proof beyond reasonable doubt
Rationale
- Prevent crime
- Punish criminal
3-strikes rule: 3rd conviction will bring about a high
penalty or the maximum sentence  aim: to
prevent recidivism (but experience has shown that
it is not as deterrent as expected)
-
-
Civil law
Burden of proof: preponderance of the evidence
Rationale: compensation of the damage, based on fault
(when someone is injured, the one responsible for
paying the costs is the person who caused the harm)
Judgments in civil cases
- Money damages: most common remedy
- Equitable relief: remedy found in equity
- Declaratory relief: judge declares smt to be true
- Costs recoverable: American Rule is the
principle, but there are cases where you could
get your attorney’s fees paid by the loser
The Ellis v. D’Angelo case has both criminal and civil aspects, but both suits will be filed separately (criminal court/civil court)
and the trials will be heard separately
Usually the P of the civil suit waits for conviction of the D from the criminal suit, bc then the facts would’ve alr been established
Ellis v. D’Angelo
Facts: a 4-yr-old pushes the babysitter down the stairs  babysitter decides to sue
3 causes of action
- Battery from the child: action against the child
o 3 conditions of battery
 Intentional touching that is offensive: physical contact between P and D, that P doesn’t
want  only intent required is intent to do the act, not at the result of the act
 If informed consent from the victim, then touching is no longer offensive
 Causation
 Damage: no need to prove that the kid should’ve known that he would cause such a
damage  no criterion of “reasonable man” bc it is only applicable for negligence
o So the kid was charged with battery
- Negligence of the child: action against the child
15
o
o
-
4 conditions of negligence: duty + breach + causation + damages
Standard to determine whether there is a duty or not: there is a duty if a reasonable man
would’ve known how to act reasonably and to judge the consequences of his actions
 The Court says that the child is not a “reasonable man” who can understand the
consequences of his action and determine his duties
Negligence of the parents: action against parents bc of their failure to warn the babysitter of the child’s
violent tendencies  the parents were charged
This case has not gone to trial yet, as it is a motion to dismiss: legal act that D files with the court, in order to
establish that the P doesn’t have a cause of action and to ask the court to throw the case out  the court does
a purely legal analysis to determine whether the P has a cause of action or not
- If court grants motion to dismiss, it will throw the case out
- If court doesn’t grant it, it can either accept the case, or ask the P to refile the case and complete the facts
VS motion for summary judgment: legal act asking to dictate a certain outcome, based on the pleadings
Eckenrode v. Life of America: intentional infliction of severe emotional distress
Facts: Insurance company refuses to pay for P’s husband’s life insurance after his death. P (widow) sues the company
 One of the first cases mentioning intentional infliction of severe emotional distress as a cause of action (1972)
 Intentional: you just have to prove that whatever act made the P upset, that act was done intentionally
Common law v. Civil law
-
-
No uniform approach to obligations (≠ to civil law: CO suisse)
Tort ≠ contract law (≠ to CO suisse: 41ss CO RC)  reasons for this distinction
o Compensatory purposes, which contract law doesn’t have
o No agreement/contract required for liability
o Often greater liability and damages in tort law bc the prejudice is less easily quantifiable (e.g.
punitive damages, emotional distress)
o Punitive damages are only allowed in tort cases
Tort ≠ criminal law
o Preponderance of the evidence VS proof beyond reasonable doubt
o Civil court, not criminal court
o Some notions overlap (tort of battery/crime of battery)
Jury duty
-
-
Exist in both civil and criminal procedure
Jurors are called in for jury duty based on the voting rolls
Random selection of jurors: voir dire
o Lay persons (no lawyers) with the right to vote
o Objection for cause: counsel can ask jurors questions to determine whether or not they are biased
 reasons to excuse a juror because they might have bias or prejudice
o Peremptory challenges: “jokers” that lawyers can use to evict a juror from jury without any
justification (except if attorney abuses of that privilege)
D has a right to a jury: D can waive that right, but State can’t
Single case: jurors only hear 1 case at a time
Jurors can be sequestered, cut off from the outside-world (OJ Simpson case)
Confidential deliberations in black box: they have to answer a list of questions, without having to give
any explanation
16
Mainly State (rather than Federal) law
Principle: Common Law concepts are judicially-created
Exceptions: statutory causes of action
- Alien Tort Claims Act: if the act committed outside of the US violates basic international human’s rights
law, the person can be convicted in the US
- Federal Tort Claims Act
- 1st Amendment torts: defamation, libel, slander  anything limiting rights of free speech
 Since statutory causes of action mostly derive from state law, no appeal for statutory causes of action beyond
State SC (except 1st Amendment, as it is a constitutional issue)
Procedure
-
Jury trial for factual questions in tort cases
American Rule (≠ to civil law: loser-pays-principle): each party pays their own attorneys’ fees
o That makes it difficult for cases where the P is a deprived individual and the D is a rich company
 hence, in personal injury cases, there are special rules for contingency fees
Contingency fees for P: the lawyer gets paid a percentage of what the client wins
3 kinds of damages in tort law
o Special damages: actual amount of money the P has to pay, to be compensated by the D
o General damages: intangible damages = pain, emotional distress, etc.
 special and general damages constitute the “real” damages
o Punitive damages (exemplary damages): when the D’s acts are so outrageous that they have to
be punished
 McDonald’s case: 3rd-degree burns from the coffee spill, experts have told McDonald’s during board
meetings that the coffee was too hot, and McDonald’s agreed to have lawsuits against them for that, bc it
was cheaper than adjusting the coffee’s temperature. To deter McDonald’s from doing it again, the punitive
damages had to be enough, so the jury fixed it to 7M based on what McDonald’s made every day.
3 types of tort: Negligence / Intentional (e.g. battery) / Strict liability
-
Intentional: D acted intentionally (ex: surgeon working without patient’s consent)
Negligence
Strict liability: standard of liability under which a person is legally responsible even in the absence of fault
or criminal intent
o If D possesses anything inherently dangerous under the "ultrahazardous" definition, D is strictly
liable for any damages caused by such possession, no matter how careful the D is safeguarding it
o Examples of strict liability: product liability, abnormally dangerous activities, owning wild animals,
vicarious liability
Products liability: mix of strict liability, of negligence, and of contract law
= liability for a sold product
- Strict liability: if you are selling smt, then you are liable for anything bad that happens from your product
- Negligence: liability stems from the failure to warn consumers of the risks linked to the product
o Even in the absence of negligence (bc the reasonable man couldn’t have anticipated the
prejudice), the one who has to pay is the person who profits from the product (strict liability)
- Breach of warranty: sales contract have to ensure minimum guarantees linked to the product sold
- There must be defect to admit products liability
 Purpose: protect consumers and ensure safety of products
17
-
Some jurisdictions give the manufacturer incentives to fix their products: they do not allow P to use the
argument that the fact that the manufacturer fixed their products as a proof that the product was
defective in the first place
-
Rationale of products liability: determine whether the products are safe or not, and if not, decide who is liable for the damage
caused by the unsafe product, hold manufacturers responsible for defective products  the person who is making money has to
pay  damages cover the harm suffered by the victim AND by the people who were close to the victim at the moment the harm
occurred (even if they have no contractual contact with the manufacturer  zone of danger rule, Palsgraf)
Restatement § 402A (now replaced by Restatement of the Law Third: Products Liability)
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
 defective condition: in some jurisdictions, selling a product without the proper warnings can fall under this category
 the ultimate user or consumer: not necessarily the person who bought the product, who could’ve bought it as a gift
 (2) is the core of strict liability: even if the seller tried to avoid the damage, he will still be liable
Anyone in the chain of production can be held liable
Negligence is not necessary: even without it, liability can still exist
Negligence
-
-
Duty: the closer the connections between breach of duty, causation and damage, the higher the duty
o Status of parties or particular circumstances: if particular relationship between parties or party
with a specific status (eg. elderly, mentally ill, nurse, etc.), there could be a specific duty
o Attractive nuisance: if there’s smt in my property that induces ppl to come on my property, I will
have a higher duty (classic example: swimming pool), even if the person who comes into my property
has no right to do so
Breach of duty: define duty (from the POV of the reasonable man) before defining breach
Causation (direct/but-for causation, proximate cause)
Damage
Breach of duty
- Objective standard to define duty: what a reasonable person would have done under the same
circumstances
- Foreseeable damage: what needs to be foreseeable is some harm, not THE exact harm that happened
- Risk VS burden of eliminating the risk: weigh these 2 elements and determine which one is dominant
- Statutory negligence: violation of speed limits written in statutes for ex.
- Res ipsa loquitur (procedural rule): if, under ordinary and reasonable circumstances, the damage wouldn’t
have occurred and the P had no way of knowing what the D did, then the burden of proof is reversed and
the D has to prove that he/she wasn’t breaching duty. Ex: Surgery = P is unconscious during surgery, so the D has
to prove that he didn’t commit malpractice.
-
Eggshell plaintiff rule: you take a P as you find him  even if the P was particularly fragile and therefore
made the damage much more serious, the D will be liable for all the damages that occurs. Ex: Grandma
goes into cardiac arrest, I try to do CPR and break her bones bc she has osteoporosis  I am liable for those damages, even
though those injuries wouldn’t have happened if it wasn’t a grandma but a younger person without osteoporosis.
Causation: different types
- Direct/actual/but-for causation
18
-
Proximate cause
Joint tortfeasors: tortfeasors are intentionally working together  could end up in joint and several
liability
Concurrent tortfeasors: tortfeasors are accidentally working together  could end up in joint and several
liability
Joint and several liability: P can choose to sue whoever he wants and whoever he sues has to pay all the
damages and has the right to sue the other 2 for their proportionate share of liability
Defences: contributory negligence, intervening cause and assumption of the risk
- Contributory negligence: if P contributed to his own harm, then no recovery BUT growing trend:
comparative negligence: you calculate how much each party contributed to the damages and allocate
that to the parties, to know how much recovery the P gets
- Intervening/superseding cause: an event comes in and interrupts the chain of causation  the thirdparty’s action is so important that it cuts the chain of causation prompted by the D, leaving D off the hook
- Assumption of the risk: P has done smt to show that he is aware of the risk, but does it anyway and
consents to the risk
o Classic example: disclaimers (the D says it)/waivers (the P signs it, assuming the risk)
Intentional Torts
-
Assault: putting someone in danger and making them feel afraid of bodily harm, without necessarily
touching them
Battery: intentional offensive touching
False imprisonment: not necessarily in jail, it could be someone questioned for a long time in a backroom
Malicious prosecution, wrongful institution of civil proceedings, abuse of process: abuse of the legal
system, using the legal system to harass someone  you keep filing civil claims or criminal charges against someone
Intentional infliction of emotional distress
Trespass: penetrating a land that doesn’t belong to you or without the right to  doesn’t necessarily
mean you do it with your body
Fraud
Passing off: selling smt and convincing the buyer that it is smt other than what it is (fakes, knock-offs)
Trade libel: destroying someone’s commercial reputation
Interference w/ contractual relations: one person intentionally damages someone else's contractual or
business relationships with a third party, causing economic harm  NOT the same as contractual liability,
as there is no contract between D and P
Defamation: destroying someone’s reputation by saying smt false (defamation is oral, libel is written)
Invasion of privacy: bugging someone’s phone or home, leaking nudes, revenge porn
Misappropriation of personality: using someone else’s identity for personal gain  for ex. Johnny Carson’s
port-a-potty: best commodium (comedian) in town
-
False light: saying publicly or publishing smt very embarrassing abt somebody  ≠ with defamation:
defamation is a much higher standard
Defences
-
Mistake? Generally, not a defence to most torts
Consent
Self-defence: amount of force used by the party must be just enough to avoid the tort
Defence of property: amount of force used by the party must be just enough to avoid the tort
Necessity: you break into a chalet bc of a snowstorm  you’re not liable but might have to pay compensation
19
-
Attempting to rescue someone? NOT a defence in US, if you try to save someone but you give up and
they drown, you could be liable for their death BUT Good Samaritan law could be a defence in some
jurisdictions
Strict Liability: abnormally dangerous activities, vicarious liability, products liability
-
Abnormally dangerous activities: having a wild tiger as a pet, making a hole with a dynamite
Vicarious liability (cf. p. 11) when you’re responsible for smt that someone else did (the parents being
responsible for their kid’s behaviour for ex.)
o
o
-
Respondeat superior: an employer is responsible for an employee
Dram shop laws hold a business liable for serving or selling alcohol to minors or intoxicated
persons who later cause harm
o Owners of cars: liable for whatever their car does, even if someone else is driving it
Products liability (cf. p. 18)
Punitive (exemplary) damages
-
Vary among States but generally require intentional, blameworthy, and particularly harmful conduct
May NOT be enforceable in jurisdictions that do not allow them (public policy)
Only available in tort (in theory)
Constitutional limits (due process/5th & 14th)
Legal Research
Primary Sources
-
Constitution
Statutes
Cases
Regulations
Federal Statutes
Statutes at Large: permanent collection of all laws and resolutions enacted during each session of Congress
They have a Public Law Number (and sometimes a catchy acronym): for ex. USA Patriot Act, Pub. L. 107 – 56
-
1st number: session of Congress (107th Session of Congress)
2nd number: chronological order of legislation piece that was approved (56th piece)
US Code (USC): consolidation and codification by subject matter of the general and permanent US federal laws
Citation Forms for Statutes
Ex: 39 USC § 30001 (k)(3)
1st number: number of title in the code or in the statute (39)
2nd number: number of section or subsection (30001)
For annotated codes (West’s for ex.)
1st number: volume of the series
Letters: series to look at
2nd number: page to look at
Citation Form for Cases
P’s and D’s names
In appellate court cases: 1st name is appellant’s, 2nd is respondent’s  the name of the case depends on whichever party lost at
the lower level
20
Secondary Sources
-
Legal encyclopaedias
o Corpus Juris Secundum (CJS): very general
o American Jurisprudence 2nd (Am. Jur. 2d): limited to specific jurisdictions
o American Law Reports (ALR): to find an art. on a specific point of law (for ex. collisions and injuries on
runways) and reference to cases, so basically the opposite of an encyclopedia bc very specific BUT most of the
preliminary case-law research has been done, so it could be helpful
-
Sources of journal articles: Westlaw, LexisNexis, HeinOnline
Legal Research Guides: publications explaining how to do legal research in the US
o
o
o
o
o
How to Find the Law
Fundamentals of Legal Research
Legal Information: How to Find It, How to Use It
Where the Law Is {new}
Law Librarians’ Exchange www.llrx.com
Legal Periodicals
-
Law reviews: even if the content isn’t great, most of the preliminary case-law research has been done, so
it could be helpful  student-edited principally
Bar journals
Legal newspapers
Electronic Availability
-
All published federal and state case law since 1789 (even some unpublished)
Nearly all codified federal and state statutes since about 1990
Federal regulations since 1980
All federal laws since 1789 (Statutes at Large)
Nearly all law reviews since early 1990s
Exercise: Legal Research (ISDC)
Neighbour has a new hobby: creating digital videos of child pornography and posting them on the internet, on the website of a local school
in a place where young teenagers are likely to click on the link by accident. As a member of the parent-teacher’s association, you are the
one that angry parents call. What can be done? Assume this happened in California.
Who can do smt? If it’s criminal law and you’re not the victim, you can report it but you can’t really do anything.
§311 California Code, Penal Code: definition of obscene matter (case-law notion)
o §311 (2): is he commercially exploiting the defendant?
o In Decisions Note, you get excerpts of cases, and you get the case citation: google the case citation to find the case
o If the names of the parties aren’t published, then the parties are probably minors
o 18 Cal. Rptr 3d 432, Ulysses D.: case where parents are taking sexual pictures of their children
§311.1 California Code: which acts are illegal  renvoi to §311.4
Westlaw database (you need UNIL VPN)
o If you want to search all of Californian law, you need to include Federal District Courts’ decisions as well and US SC
cases.
o Tip: “child pornography” /s distribution = child pornography and distribution in the same sentence
o Tip: yellow flag = an authority has either overturned the decision or contested it / red flag = completely overturned
o If smt impacts interstate commerce, then federal law could apply
o According to the USC (federal law), if we have the visual depiction of an actual minor doing a sexually explicit act, then
it doesn’t have to be obscene for it to be illicit (whereas if it were a “mere” visual depiction of a minor doing a sexually
explicit act, then it’d have to be obscene for it to be illicit)  this distinction is also in Ashcroft v. Free Speech Coalition
o Ashcroft v. Free Speech Coalition

Limits to freedom of speech (1st Amendment): obscenity  not speech worth protecting under the 1st Amd.

The Court has to weigh the State’s interest in regulation against the constitutional rights that are
being infringed on: when real children are used for child pornography, the State has a stronger
21
interest and is allowed to limit speech BUT when no real children are being harmed by the
production of said material, the State has less of an interest and can only prohibit it if it is obscene

This shows that the US Cst is the supreme law of the land
SO the answer is: unless if the published child pornography is obscene, there isn’t much we can do
Robert S. Summers, Precedent in the United States (New York State): stare decisis
-
-
-
-
-
-
-
When the court is unable to find any close precedent dealing with the issue at hand, it will declare to be one of “first
impression” fort the court
o Most judges will then seek to settle the issue in accord with the “fundamental principles of our
jurisprudence”
o Limitation imposed by nulla poena sine lege: courts refuse to create precedent in a novel case which would
extend the reach of a statutory criminal prohibition
Bindingness of precedent
o Formal bindingness: a judgment not respecting a precedent’s bindingness is not lawful and is so subject to
reversal on appeal
o Not formally binding but having force: a judgment not respecting a precedent’s force, though lawful, is
subject to criticism on this ground and may be subject to reversal on this ground
o Not formally binding and not having force: a judgment not respecting this is lawful
o Illustrativeness or other value: precedents which are not strictly applicable may be used as illustrative
examples or as analogies to clarify a court’s decision
Degrees of normative force: precedents generated by appellate courts are formally binding on all courts within the
State that are lower in the juridical hierarchy
Factors determining degrees of normative force
o Rank of the deciding court: courts are formally bound by the prior decisions of higher courts of the same
jurisdiction
o Precedents of some courts are more influential than the precedents of other courts
o Changes in the political, economic or social background may influence how a court approaches the
applicability of a prior decision
 BUT the fact that citizens have relied on the precedent may alone provide sufficient justification
for following this precedent (sécurité juridique)
o The presence or absence of dissent does not affect the degree of respect accorded to a precedent
Rationale of precedent: why follow precedent?
o For the stability it provides to the society (social congruence)
o For the certainty of results when known rules are applied in a consistent manner
o These are variables to be weighed against other important variables such as flexibility and individual
justice in the particular case
What counts as formally binding or having force?
o Holding: portion of an opinion in which the court rules on the issue necessary to the decision  formally
binding
o Dicta: views or opinions which are not necessary to the resolution of the specific issue before the court
 NOT formally binding as precedent
Leading case: it establishes the law on a major point and is recognised for this  courts cite such cases and may
cite them as the sole justification for the decision
o If a leading case is in a party’s favour, that party has a powerful advantage
Distinguishing, explaining, modifying, overruling
o Distinguishing precedents: a lawyer confronted by an unfavourable precedent will frequently attempt to
argue either that the material facts were different or that the substantive rationale for the ruling does
not apply to the facts of the case under consideration
o 3 major types of justified overruling
 1st: technological innovations or improvements make the precedent obsolete
 2nd: change or abandonment of precedent is necessary to bring the common law into line with
growing social or moral enlightenment
22
o
 3rd: experience with a precedent show that it is substantively erroneous from the start
Conflicts of precedents
 The court determines whether one precedent comes from a court higher in the judicial hierarchy
than the other precedent
 The court examines whether one line of precedents is based on facts distinguishable from the
case under consideration
 The court may choose the precedent that seems best justified in substantive policy, or the
precedent that seems to “do justice” in the particular case
Jurisdiction
Adversarial system
Rationale: to obtain impartial, fully informed decisions
Parties themselves present facts and the law
- If a foreign law applies, it’s up to the parties to prove its content and applicability
- truth will out = essence of litigation: if all of the facts are brought by the parties, then the truth is easy to
find for the judge  hence, protection of free speech
o Purpose of litigation: to get at the truth and to determine the credibility of evidence
o Preference for oral testimony: non-verbal cues are an element to evaluate the credibility of
evidence (cross-examination)
- Decision-maker is neutral and isn’t involved in fact-finding, to remain impartial
o The prosecutor (= State) will bring in the evidence against the other party
o There are safeguards (Brady motion) built into criminal procedures to defend the D, as the D is
the weaker party  imbalance between the State (prosecutor) and the D
- Uninterrupted confrontation: once trial starts, it keeps going  we don’t want the jurors to forget stuff
Parties have equal opportunities to present and argue their cases to the decision
Conflict of laws: 3 domains
- Applicable law: rules to determine applicable law, but in practice, US judges hate foreign law so they’ll
avoid it if they can and if the parties don’t raise that issue
- Jurisdiction: subject matter / in personam / in rem
- Forum: competence of a court within a jurisdiction
 In US, any COL or COC is an alternate choice (and not exclusive), unless otherwise specified
3 types of jurisdiction and challenges to jurisdiction
Subject matter jurisdiction: authority of a court to hear cases relating to a specific subject matter
-
Ex: bankruptcy court only has the authority to hear bankruptcy cases, trademark cases = where trademark was registered
General jurisdiction: State courts have general jurisdiction and can hear a lot of cases (except for certain questions
that can only be submitted to federal courts, like IP or bankruptcy)
In personam jurisdiction: power that a court may exercise over a person who resides, maintains connections, or
is served notification of legal proceedings in the court’s location
- P’s act of filing a complaint to a court constitutes a submission to that court’s jurisdiction
- The court may also exercise jurisdiction over a person who consents to be subject to it
- The court has to be competent over the D AND the P
- Modern bases
o Minimum contacts/fair play and substantial justice
23
o
Long-arm Statutes
In rem jurisdiction: power that a court may exercise over property or a person over whom the court does not
have in personam jurisdiction  the property or status is the primary object of the action
- The court will seize the property located in the court’s territory and use that to determine jurisdiction:
questions concerning the asset are resolved during litigation
- Typically, this jurisdiction is used when the D isn’t situated in that jurisdiction (no in personam)
- Seizing property requires notifying the owner
There could be several concurrent competent jurisdictions
Service of process: when a P wants to file a claim, they must notify the D of the claim and prove to the court that
they have notified the D
Exception: service of process by publication  in some cases, if you can’t find the D, you can notify the D by
publishing smt in an official newspaper
- Service by publication is NOT accepted outside of in rem jurisdiction: acceptable to publish in that
jurisdiction bc location of the property is a sufficient link between that jurisdiction and the D
Challenge of jurisdiction: special appearance
If you manage to serve process to a non-resident D, the P will say that “you alr showed up to court so that means
you consent to jurisdiction of the court”. If the D doesn’t show up, then a default judgment will be rendered. That
puts the D in quite a pickle, so the D can file a special appearance and say that he is only appearing to contest
jurisdiction
Forum non conveniens (FNC): legal theory that allows a D to ask the court to stop proceedings and to decline to
exercise its jurisdiction bc it will be too much of a hardship  FNC exists ONLY IF the court has jurisdiction (so
FNC can’t be invoked if jurisdiction is still controversial)  cf. p. 28, Piper Aircraft v. Reyno
Long-arm statutes: examples
Cal. CCP §410.10
A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.
 Very broad
N.Y.C.P.L.R. §302
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may
exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, [...]
3. commits a tortious act without the state causing injury to person or property within the state[...], if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or
international commerce; or
4. owns, uses or possesses any real property situated within the state. [...]
Justiciability: standing, ripeness, mootness
A claim has to have standing, be ripe and not be moot
Standing: close enough relationship between P and the thing complained of
- Vague equivalent of atteinte particulière et personnelle
24
-
Injury: actual or imminent, palpable invasion of a legally protected interest that is concrete and
particularized
Causation between the injury and the conduct complained of
Redressability: it must be likely that a favourable court decision will redress the injury
Ripeness: a claim is not ripe for adjudication if it rests upon future events that may not occur as anticipated, or
may not occur at all
- Not to be confused with declaratory judgment: a judgment that states facts and doesn’t give a remedy
Mootness: further legal proceedings with regard to the matter can have no effect, or events have placed it
beyond the reach of the law  the matter has been deprived of practical significance or rendered purely
academic, bc the subject of the conflict has disappeared. Ex: Filing a restraining order to a hospital to not unplug the breathing
machine on a dying person, then the person dies  case becomes moot, bc no use to put a breathing machine on a dead person.
-
Once moot, the case must be dismissed
Pennoyer v. Neff: service of process and jurisdiction on non-residents
Facts: Pennoyer (respondent). Neff (appellant) hired Mitchell to do some legal work, but didn’t pay him his legal bill.
Pennoyer and Mitchell live in Oregon, Neff doesn’t live there but owns property there.
Mitchell went to court to sue Neff to get paid. Mitchell served process by publication in Oregon. Neff didn’t show up to the
hearing, and Mitchell got a default judgment against Neff. On the basis of that judgment, Neff went to court. But Mitchell sold
Neff’s property to Pennoyer, to pay off Neff’s debt in favour of Mitchell (for the legal fees). Neff contested this and said he never
sold his house to Pennoyer.
In order to decide the Pennoyer v. Neff case, the judges have to figure out if the Neff v. Mitchell case was valid and if Mitchell
was right to seize his assets and sell them to pay off his debts.
Mitchell did not go to court to litigate the ownership of that asset first, before serving process by publication
Even though the title of the case is Pennoyer v. Neff, the substance of the case is Neff v. Mitchell’s, and the question is whether
or not Mitchel could’ve served process by publication and if said publication is enough to subject Neff to the jurisdiction of the
Oregon courts, since the courts didn’t have in personam jurisdiction over Neff?
Issue: Can a state court exercise personal jurisdiction against a non-resident who was not personally served with
process within the state but by publication in a newspaper?
Holding: No
- For in rem jurisdiction, service by publication is ok bc it is linked to your property BUT for matters not
concerning property (like recovery of legal bills), notification by publication isn’t enough
- For in personam jurisdiction, service of process by publication is not admissible
- Cf. Schaffer v. Heitner
Every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory.
BUT the State through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand
of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the
owners are domiciled. Every State owes protection to its own citizens and, when non-residents deal with them, it is a legitimate and just
exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens.
Pennoyer ≠ International Shoe
In International Shoe, the question was whether the state could collect taxes from a corporation that was present in the state only to
extent of having salesmen there. In Pennoyer, the problem was whether in personam jurisidiction could be established by mailing the
notice. The basis of the lawsuit was recovering a piece of land, a subject matter undoubtedly appropriate for the Oregon Court.
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Schaffer v. Heitner: in rem actions
If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property
was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner’s
location.
The presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the D, and
the litigation. For example, when claims to the property itself are the source of the underlying controversy between the P and the D, it
would be unusual for the State where the property is located not to have jurisdiction. In such cases, the D’s claim to property located in
the State would normally indicate that he expected to benefit from the State’s protection of his interest.
International Shoe v. Washington: general/special jurisdiction
14th Amend.: no State can make a law depriving someone of their property without due process  due process =
case-law notion, one of the elements of due process is notification of a lawsuit
International Shoe = genesis for Long Arm statutes
- Long Arm statutes: laws allowing courts to take jurisdiction over an out-of-state D  each State has its
own approach SO SC is asked to set up criteria to frame this trend: International Shoe, 1945
- SC case on jurisdiction, based on the Constitutional principle of due process: strong accent on the D’s
protection  one of the most important cases in common law history
Facts: International Shoe (D) sells shoes in distributors and shoe stores in Washington (P). The company has no office in Washington,
maintains no stock of merchandises there, makes no deliveries of goods there. However, it employs a number of salesmen in Washington;
these are resident there and carry on their activities on account of the company (they exhibit samples and collect orders) there. But the
sales contracts are signed in Missouri. The State of Washington files in the local courts a suit for recovering unpaid contributions to a
state unemployment compensation fund. Does the Washington court have personal jurisdiction over International Shoe, who isn’t a
resident in Washington and whose only link to Washington are the exhibits and salespeople?
-
2-prong test to determine constitutionality and respect of due process: minimum contacts + reasonable
jurisdiction
Minimum contacts: amount of contacts necessary to fulfil Constitution’s requirements for due process
o Intentionally targeting the market: selling things in Washington to make money
o Purposeful availment: International Shoe is purposefully using the resources and services of the State of
Washington, so it is purposefully availing itself to the court system, etc.  if you’re using our courts, you should be
able to be sued in our courts
-
o Continuous systematic activity
o Minimum contacts are related to the D’s activities
Jurisdiction must be reasonable: consistent with the traditional notions of fair play and substantial justice
o Balance of interests: obstacles for the D; possibility to claim for a remedy; interests of the forum state…
Distinction special jurisdiction VS general jurisdiction
- Special jurisdiction based on related contacts: D established minimum purposeful contacts with forum
state and specific dispute is related to such contacts of the D in the forum state
o VS general jurisdiction: proceedings against defendant, based on whatever cause of action
- General or all-purpose jurisdiction based on unrelated contacts
o Contacts between D and forum State must be stronger: D established such a substantial activity
in the forum state that D can be sued there even though dispute is not related to such contacts
o For companies that have the vast majority of their activities in a State (place of business) that is
different from the State in which they are incorporated (legal domicile), courts can exercise
personal jurisdiction in the former State (without it, companies could avoid personal injury claims
at their place of business)
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International Shoe (1945): personal jurisdiction
If claim is related to activity in Washington, specific jurisdiction is sufficient, even if the activity there is limited: salesmen
employed in Washington, which is sufficient to admit minimum purposeful contacts between D and State of Washington SO
specific jurisdiction is valid, so the Court of Washington has jurisdiction for this case
Nouveauté apportée par Goodyear and Daimler par rapport à International Shoe case: to establish general jurisdiction
D’s contacts with the forum state must be so substantial that he/she must be « at home » there = principal place of business
Doing business jurisdiction (continuous and systematic activity) insufficient, unless if there is principal place of business in the
forum state
World-Wide Volkswagen v. Woodson: general/special jurisdiction
Facts: The victims of a car accident in Oklahoma file a product liability claim there, against the automobile retailer and its wholesaler, 2
New York corporations. The car had been purchased in New York, while the victims were resident there. They moved afterwards to
Oklahoma. The D carry on no activity whatsoever in Oklahoma. They did not sell cars there, nor serve (or tried to serve) indirectly the
Oklahoma market. Do Oklahoma courts have personal jurisdiction over the New York D? Would the outcome change if the D had also sold
cars in Oklahoma (case Ford Motor case, now pending before the SC)?
-
-
-
General jurisdiction? No bc no activity at all in Oklahoma
Specific jurisdiction = minimum purposeful contacts?
o To admit the presence of purposeful availment, the corporations need to take advantage of
Oklahoma market
o And dispute must be related to those contacts
 No, contacts aren’t sufficient so under US law, Oklahoma courts wouldn’t have jurisdiction
P say that because you sell cars and that the purpose of cars is to travel, it is no surprise for you to be
sued anywhere
o This argument is flawed: such a jurisdiction would be foreseeable BUT it wouldn’t satisfy the
requirements of minimum contacts bc here, minimum contracts are between the P (and not the
D) and the place of damage  separate minimum contacts and foreseeability
o Abstract foreseeability that a damage could arise in that State is not enough: if we were to admit
the place of the damage as a sufficient criterion to fix jurisdiction, then Volkswagen could be sued
anywhere
Courts at the place of conduct have jurisdiction: D has established purposeful contacts there, thus there
is purposeful availment
Courts at the place of the event (damage) do NOT have jurisdiction per se, unless if there are additional
purposeful contacts with that state
Piper Aircraft v. Reyno: forum non conveniens (FNC)
Facts: Crash of a Piper (US) aircraft in Scotland. The plane was owned by a British company and operated by a Scottish air taxi service. A
wrongful dead suit was filed in a California state court against the Pennsylvania plane manufacturer and the Ohio propeller manufacturer.
A separate action was filed in the UK against the owner, the air taxi service company and the pilot.
It was removed to the California US district court, then transferred to Pennsylvania district court (transfer of venue). The D then moved
for dismissal on FNC grounds. The US district court dismissed on ground of FNC. The Court of Appeals reversed, holding that:
The law that would be applied in Scotland was less favourable to the P bc Scottish law did not provide for strict liability, so the
parties would have to prove fault
Evidence was partly in Scotland, but also in the US
The US SC allowed FNC
First, possibility of an unfavourable change in the applicable law does not exclude FNC
Second, foreign P’s COC is entitled to less deference than that of home P
Third, balance of inconveniences justifies FNC dismissal
o Evidence is mainly located in Scotland
o D could not file third party claims (“impleader”) against other potentially liable parties before the US courts because
of lack of personal jurisdiction over them
FNC widely recognised in the US (cf. p. 24)
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-
Can be used in Federal courts: transfer of venue (motion to transfer the case from a federal court to the
other)  factors on which it depends are similar to factors for FNC
Can be used in State courts: all States allow it, with the exception of Louisiana
It is NOT a jurisdiction question: FNC is used by a D to resist the case to be heard where the P has filed
it, so jurisdiction has alr been determined
EU law doesn’t recognise FNC as it could be a violation of EU law (principle of mutual trust – Brussels Ibis)
Different functions
- Prevent parallel proceedings
- Refinement of jurisdictional rules: personal jurisdiction is based on due process and the protection of the
D but FNC calls other factors into play, in particular sound administration of justice and convenience
- Counterweight to far-reaching jurisdictional rules: to combat forum shopping
Cumulative conditions to admit FNC motion
1. Availability of an alternative forum
- Another court (in another State or abroad) must have jurisdiction
- Adequacy of the alternative forum: the alternative forum must allow an adequate remedy BUT no need
for the remedies to be exactly equivalent
- Differences and changes concerning the applicable law are NOT a decisive obstacle: the fact that
dismissal could lead to the application of a law that is unfavourable to the P is not a decisive obstacle
- Systemic lack of due process abroad is an obstacle
2. Balance of inconveniences (strong reasons to hear the case in the alternative forum)
- Private factors
o Parties’ convenience: presence of witnesses, language
o Availability of evidence
o Existence or risk of parallel proceedings
- Public factors
o Courts’ overload
o Interests of the forum state (public policy) and of the local community
o Foreign law applicable on the merit of the case
3. Deference to the P’s original choice of forum: having the case heard in the alternative forum mustn’t cause
hardship to the P
- FNC should be exceptional and subject to good reasons: D must really demonstrate that the dismissal of
the case and its transfer to another court is the better choice
Burger King Corp. v. Rudzewicz: purposeful availment test
Facts
-
-
-
-
Appellant: Florida corporation whose principal offices are in Miami. It conducts most of its restaurant business through a
franchise operation. The contracts provide that the franchise relationship is established in Miami and governed by Florida law
Appellee: Michigan resident who entered into a 20-year franchise contract with appellant to operate a restaurant in Michigan.
When the restaurant's patronage declined, the franchisees fell behind in their monthly payments. Headquarters terminated the
franchise and ordered the franchisees to vacate the premises. They refused, and continued to operate the restaurant.
Appellant then brought a diversity action in Federal District Court in Florida, alleging that the franchisees had breached their
franchise obligations. The franchisees claimed that, because they were Michigan residents and because appellant's claim did
not "arise" within Florida, the District Court lacked personal jurisdiction over them.
But the court held that the franchisees were subject to personal jurisdiction pursuant to Florida's long-arm statute, which
extends jurisdiction to any person who breaches a contract in the State by failing to perform acts that the contract requires to
be performed there. Thereafter, the court entered judgment against the franchisees on the merits.
The Court of Appeals reversed, holding that "jurisdiction under these circumstances would offend the fundamental fairness
which is the touchstone of due process."
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Holding (US SC): The District Court's exercise of jurisdiction pursuant to Florida's long-arm statute did not violate
the Due Process Clause of the 14th Amendment
-
-
(a) A forum may assert specific jurisdiction over a nonresident D where an alleged injury arises out of or relates to actions by the
D himself that are purposeful directed toward forum residents (minimum contacts) and where jurisdiction would not otherwise
offend "fair play and substantial justice” (reasonable jurisdiction).
(b) Here, appellee established a substantial and continuing relationship with appellant's Miami headquarters, and received fair
notice from the contract documents and the course of dealings that he might be subject to suit in Florida. The District Court found
that appellee is an "experienced and sophisticated" businessman who did not act under economic duress or disadvantage
imposed by appellant, and appellee has pointed to no other factors that would establish the unconstitutionality of Florida's
assertion of jurisdiction.
Bensusan Restaurant Corporation v. King: tort and internet jurisdiction
Facts: Operator of New York jazz club brought action against operator of Missouri club, alleging that D infringed his “The Blue Note”
trademark. D (King) posted a website to promote his club. The website, located on a computer server in Missouri, allegedly contains a logo
which is substantially similar to the logo utilized by Bensusan. The website is a general access site, it requires no authentication for entry
and is accessible to anyone around the world. It contains general information about the club in Missouri as well as a calendar of events and
ticketing information. D’s brought a motion to dismiss for lack of personal jurisdiction. Motion granted.
C.P.L.R. § 302(a)(3)(ii) permits a court to exercise personal jurisdiction over any non-domiciliary for tortious acts
committed outside the state that cause injury in the state if the non-domiciliary “expects or should reasonably
expect the act to have consequences in the state and derives substantial revenue from interstate or
international commerce.”
Bensusan’s allegations of foreseeability, which are based on the fact that King knew that Bensusan’s club is located in NYC, is insufficient
to satisfy the requirement that a D “expects or should reasonably expect the act to have consequences in the state”.
Bensusan’s primary argument is that, because D’s website is accessible in New York, D could have foreseen that the site was able to be
viewed in NYC and taken steps to restrict access to his site only to users in a certain geographic region. Mere foreseeability of an in-state
consequence and a failure to avert that consequence is not sufficient to establish personal jurisdiction.
As set forth above, King has done nothing to purposefully avail himself of the benefits of NY. King, like many others,
simply created a web site and permitted anyone who could find it to access it. Creating a site, like placing a product into the stream of
commerce, is not an act purposefully directed toward the forum state. There are no allegations that King actively sought to encourage
New Yorkers to access his site, or that he conducted any business in New York. Bensusan’s argument that King should have foreseen that
users could access the site in New York and be confused as to the relationship of the two Blue Note clubs is insufficient.
Asserting personal jurisdiction over King in this forum would violate the Due Process Clause of the US
Constitution. Due process requires “that the non-resident D has purposefully established “minimum contact”
with the forum State such that the maintenance of the suit does not offend tranditional notions of fair play and
substantial justice (reasonable jurisdiction).
King has moved to dismiss the complaint for lack of personal jurisdiction. The issue raised by that motion is whether the existence of a
“site” on the Internet without anything more, is sufficient to vest this court with personal jurisdiction over D pursuant to New York’s longarm statute and the Due process Clause of the US Constitution. For the reasons that follow, the motion to dismiss the complaint is granted.
Zippo Mfg. Co. v. Zippo Dot Com: internet jurisdiction
Facts
Plaintiff Zippo Manufacturing Corporation ("Manufacturing") has filed a complaint against Defendant Zippo Dot Com, Inc. ("Dot Com")
alleging trademark dilution, infringement, and false designation under the Federal Trademark Act. Dot Com has moved to dismiss for lack
of personal jurisdiction and improper venue pursuant. For the reasons set forth below, Defendant's motion is denied.
Manufacturing is a Pennsylvania corporation with its principal place of business in Bradford, Pennsylvania. Manufacturing makes, among
other things, well known "Zippo" tobacco lighters. Dot Com is a California corporation with its principal place of business in Sunnyvale,
California. Dot Com operates an Internet Web site and an Internet news service and has obtained the exclusive right to use the domain
names "zippo.com", "zippo.net" and "zipponews.com" on the Internet.
29
Dot Com's Web site contains information about the company, advertisements and an application for its Internet news service. A customer
who wants to subscribe fills out an on-line application that asks for a variety of information including the person's name and address.
Payment is made by credit card over the Internet or the telephone. The application is then processed and the subscriber is assigned a
password which permits the subscriber to view and/or download Internet newsgroup messages that are stored on the Defendant's server
in California.
Dot Com's contacts with Pennsylvania have occurred almost exclusively over the Internet. Dot Com's offices, employees and Internet servers
are located in California. Dot Com maintains no offices, employees or agents in Pennsylvania. Dot Com's advertising for its service to
Pennsylvania residents involves posting information about its service on its Web page, which is accessible to Pennsylvania residents via
the Internet. Defendant has approximately 140,000 paying subscribers worldwide. Approximately two percent (3,000) of those subscribers
are Pennsylvania residents. Additionally, Dot Com has entered into agreements with seven Internet access providers in Pennsylvania to
permit their subscribers to access Dot Com's news service. Two of these providers are located in the Western District of Pennsylvania.
Holding
We find Dot Com's efforts to characterize its conduct as falling short of purposeful availment of doing business
in Pennsylvania wholly unpersuasive.
Defendant has sold passwords to approximately 3,000 subscribers in Pennsylvania and entered into 7 contracts
with Internet access providers to furnish its services to their customers in Pennsylvania.
Dot Com also contends that its contacts with Pennsylvania residents are "fortuitous" within the meaning of WorldWide Volkswagen. Defendant argues that it has not "actively" solicited business in Pennsylvania and that any business it conducts with
Pennsylvania residents has resulted from contacts that were initiated by Pennsylvanians who visited the Defendant's Web site. At oral
argument, Defendant repeatedly characterized its actions as merely "operating a Web site" or "advertising."
Dot Com's contacts with Pennsylvania would be fortuitous within the meaning of World-Wide Volkswagen if it had no Pennsylvania
subscribers and an Ohio subscriber forwarded a copy of a file he obtained from Dot Com to a friend in Pennsylvania or an Ohio subscriber
brought his computer along on a trip to Pennsylvania and used it to access Dot Com's service. That is not the situation here. Dot
Com repeatedly and consciously chose to process Pennsylvania residents' applications and to assign them
passwords. When a defendant makes a conscious choice to conduct business with the residents of a forum state,
"it has clear notice that it is subject to suit there."We conclude that this Court may appropriately exercise personal jurisdiction
over the Defendant and that venue is proper in this judicial district.
Personal Jurisdiction/Internet Hypothetical (p. 435 polycopié)
Facts: identical to Zippo Mfg. Co. v. Zippo Dot Com
Correction
Dot Com’s acts fall under the scope of Pennsylvania’s Long Arm Statutes  Pennsylvania’s Long Arm Statutes is divided into 2 portions
Section (a): general jurisdiction (general rule)
Section (b) to (e)
o (b) to (d): special jurisdiction over non-resident D, arising out of D’s specific contacts with forum
o (e): FNC (“inconvenient forum”)
Subject matter: both federal claims (federal trademark law) and state law (exceptionally, trademark dilution is state law), filed in a court
in Pennsylvania  claims are based on the domain name
Criteria to determine minimum contacts
Targeting market
Continuous and regular business contacts
Purposeful availment
What if Dot Com put a COC and COL clause in its contracts with its customers?
It doesn’t change anything bc Manufactoring is not a party to that contract
Such a clause would not be valid bc it is integrated in a B2C contract, protected by consumer law
Counter-argument, with Bensusan case?
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Criminal Law
No over-arching structure
In civil law, we have a structure: Code pénal
In US, no general principles applicable to the whole of criminal law: questions solved case by case  judge-made
- Rules for imposing liability: when is someone held criminally liable for an act?
- Elements of offense defined for each offense (for ex. definition of intent for a crime can be different for another crime)
o Each crime has its own history and its own elements
o Exception: for there to be a crime, you need 2 things, regardless of the jurisdiction and the offense
 Mens Rea: mental state required for the crime
 Actus Reus: act or omission that constitutes the crime
 In case of inchoate offenses, there will still be some act (attempt)
 Ideas can’t be crimes (being racist is not a crime)
 You cannot punish someone just for being a drug addict, bc they haven’t done
anything = no act
- Inchoate offenses: when an offense hasn’t come to complete fruition  you don’t need to complete an
offense to be criminally liable (attempted robbery for ex.)
- Principles of defense: which defenses are allowed?
Mostly State law, but some exceptions (MPC)
Majority of criminal law is State law and no uniformity
- General notions are usually similar, but the terminology won’t be: States can have different definitions,
different degrees of murder, etc.  not very consistent
o Ex: In California, any killing is homicide, but in NY, any killing is murder
- Sometimes State law isn’t even compatible with federal law (legalization of marijuana or law on prescription drugs)
- There has been some codification of criminal law, but mostly an ad hoc list of individual crimes, without
any structure
Exception to State law: anything related to federal interests, cross-border cases or specific areas
- Crimes against federal property or military bases (federal military law)
- Crimes that involve many States and are difficult to prosecute within one state: drug trafficking,
prostitution, racketeering, internet gaming, online child pornography
o If it’s on the internet, it’s going to potentially affect several States
Exception to the lack of uniformity = Model Penal Code (MPC): uniform text adding a system of offences, in an
attempt to put some structure and have an order of offenses (but not a law per se)
- No State has adopted it as its penal law yet, but many modifications made in certain States under the
influence of said Code
- This Code can also be used to interpret State law
MPC analytical structure
1. Does actor’s conduct fulfil all of the required elements for the offense
o Mens Rea + Actus Reus: éléments constitutifs objectifs et subjectifs in Swiss CP
2. Are there special reasons why this conduct would excuse the actor’s conduct?
o Attenuating circumstances and ethics dilemma
3. Is the actor blameworthy and deserving of criminal punishment?
31
Principle of legality (nulla poena sine lege) and sentences (from rehabilitation to retribution)
Principle of legality is less important in common law than in civil law bc of the importance of case-law and bc the
law evolves with case-law
The purpose of criminal law has evolved from rehabilitation to retribution: before, purpose was to rehabilitate
criminals BUT research has shown that current jails do not do anything to treat the criminally insane and to help
criminals stop committing crimes  now, imprisonment has a punitive function
Felony (punishment of at least 1 year in prison) VS misdemeanor (minor crime): distinction between lesser and
more important crimes lies in the punishment and its severity
Mens Rea in Common Law
Definitions of Mens Rea
- Intent: 2 types  specific and general
o Specific intent: 2 elements
 D’s purpose to engage in certain conduct or to achieve a particular result: MPC –
“purpose”
 Intent not just to the act, but also to its result
 Self-defence: you commit a criminally liable act (Actus Reus), but have 0 purpose
to bring about the consequence of the act (no Mens Rea)
 D’s awareness of the nature, circumstances and results of his conduct: MPC –
“knowledge”
 For some crimes, mere intent to do the act is enough to admit knowledge
o General intent: intent to commit act
- Recklessness: disregard of risk of which D was aware
- Negligence: D’s acting despite risk of which he should have been aware
Certain circumstances may negate one of the constitutive elements of the crime
- Mistake of fact (for specific intent crime): accepted as a defence IF it excludes requisite purpose or
knowledge for the crime and therefore negates the specific intent required for the crime
o Ex: Selling alcohol to a minor that has a credible fake ID, thinking that he was selling alcohol to an adult
o For no specific intent crime: only a reasonable mistake of fact is a good defence
- Mistake of law: NOT a defense (even when relying on lawyer’s advice)
Strict liability: D liable regardless of their intent or mental state when committing the action
- Sexual offences involving minors or statutory rape (= sexual acts where the victim cannot consent): not
knowing that my partner is a minor cannot be used as a defence based on mistake of fact, bc it is NOT a
specific intent crime and involves strict liability
- Vicarious liability: corporations liable for crimes of employees committed within the scope of
employment
Traditionally, every crime requires
- General requirement of culpability with respect to each objective element of the offence
- Specific mental state (Mens Rea) for commission of particular crime
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Justification and Excuse
Defensive violence under Common law
Self-defence: Actus Reus ok but no Mens Rea, so exemption of liability IF
- D in imminent danger or reasonably believed he was
- Force was necessary to prevent injury AND proportionate to the harm or the harm threatened: lethal
force only where reasonably necessary to counter threat of death or great bodily harm
Defence of others
- The D who uses force to prevent harm from someone else and to defend another is only excused if there
is imminent harm: the D acts at his peril (risk of interpreting wrongly the situation)
- If you don’t have specific duty (babysitter, parent, etc.), you don’t have any legal obligation, neither in
criminal nor in tort law, to assist someone in danger
o BUT in some jurisdictions, the Good Samaritan Act protects any volunteer giving aid to an injured
person in an emergency situation, for ex. in case you tryna do CPR on someone and break their
ribs
Defence of property: only non-lethal force admitted
Crime prevention: non-lethal force OK for police and citizens
Apprehension of criminals
- Tennessee v. Garner: rule allowing shooting of fleeing felons deemed unconstitutional
- UNLESS exceptional circumstances that would allow the police to shoot: probable cause to believe felon
poses continuing threat of physical harm required to shoot a fleeing felon
Other situations of justification and exemption of criminal liability
Necessity: cannibalism, person stuck in a snow storm who breaks into someone’s chalet (breaking and entering)  no criminal
liability for breaking and entering, but they might have to pay damages
-
Duress: constraint exercised to force someone to perform an act  could reduce the level of liability
Intoxication: if the crime requires a specific intent and D is too intoxicated to understand own acts or
their consequences, it may negate the specific intent and therefore prevent D from being convicted
Entrapment: the police pushes someone into committing a crime  it requires a subjective test
o Idea for the crime originated ONLY from the police: if the idea from the police only, entrapment
could be proved (mostly in prostitution or drug related cases). Ex: Police undercover as prostitutes to
seduce the D, so that the D will give in and engage in sexual acts with the prostitutes.
o
-
VS D was “ready and willing” to commit this type of offence: if D was part of the planning of the
crime or intended to commit it himself, then entrapment is negated and D is guilty
Mistake of fact
Mistake of law
Mental abnormality: M’Naughten’s test
= reason within the D himself, not to hold him criminally liable
Test most used = M’Naughten’s “right of wrong test”: as a result of mental illness, D so impaired as not to know
nature and quality of his act or that it was wrong
- Son of Sam case: after David Berkowitz sold the rights to his story for a cinematic adaptation, NY State created the Son of Sam
law, making it illegal to profit from sales related to your criminal activities (money goes to the State if you do it)
 Controversial: not all of the States use this test but have variations of tests to determine mental impairment
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“Irresistible impulse” test: an emotion in the D strongly pushes him to commit the crime, to the point
where D cannot resist it  this might excuse the crime of passion
- MPC approach: anyone who cannot appreciate criminality of his acts or conform his conduct to
requirements of law (= can’t make himself obey the law) is a victim of a mental impairment
- Under fed law: severe mental disease or defect that diminishes capacity (partial capacity or partial selfcontrol) will negate specific intent
- Some States and fed law exclude lack of self-control: not enough to admit insanity defence
 Lots of different approaches, bc it is a vague and undetermined notion
-
Harm and Attribution: attempt, complicity, criminal associations
-
-
Attempt: inchoate crimes
o Some jurisdictions qualify an attempt to commit a crime as a separate crime, usually of lesser
seriousness and giving rise to lesser punishment
o Under the MPC, inchoate crimes are charged as if the crime was fully committed
Complicity: different approaches  either degrees, either a separate crime with a separate punishment
o 1st degree: thief  2nd degree: person who helps the thief
o Accessory to the crime: could be before or after the fact (supplying tools in advance of a burglary)
o Felony-murder rule: if a group of ppl are involved in a crime, anyone who participates in the
felony will be guilty of the acts committed during the felony

-
Ex: Bank robbery for ex., 4 go in the bank, 5th one is in the car outside waiting, 1 of them shoots someone in
the process of committing the felony, not only is he guilty, but the other 3 ppl who went in the bank will also
be guilty of murder bc the intent of committing the felony is the same intent as accepting the
consequences linked to the commitment of the felony BUT it is a rebuttable legal
presumption if D can prove that he had no intention of putting anyone in grave danger
Criminal associations: 1st Amendment guarantees freedom of association so you can’t be criminally liable
for being in an association. Ex: Being part of the mafia cannot be illegal in the US
o BUT once you’ve been convicted and got granted parole (early release from prison), one of the
contractual obligations of the parole agreement could be non-association with another
convicted criminal
RICO (Racketeer Influenced and Corrupt Organizations) Act
First aimed at organized crime, now broadly used rule (even in civil causes of action): anti-abortion group threatened
violence to induce staff to quit and patients to give up rights  victims used RICO to go after this group
Offense under RICO:
- Being associated with an “enterprise”
- Whose purpose is to conduct or participate in a crime through a “pattern of racketeering activity” (=
continuous behaviour)
Penalty: up to 20 yrs of prison, treble damages (times 3) and attorney’s fees
Goal = encourage the general public to help police enforcement: enable private parties to bring cases
Imposition of a sentence (18 U.S. Code § 3553)
2 phases in criminal procedure: we fist determine guilt, then the sentence  since every crime is defined
individually, sentences are also defined individually
In fed law, § 3553 of the US Code determines a system of criteria for the judges and juries to impose a sentence
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1. Nature and circumstances/D’s criminal history & character
2. Purpose of sentence (punishment, restitution, deterrence, protect public order)
3. Kinds of sentence available: discretion for judges (sentences can get creative)
4. Sentencing guidelines: uniform sentencing policy for D convicted in the US fed court
- Non-binding: automatic and mandatory application of these rules may result in relevant and important
facts not being considered (United States v. Booker), in violation of the 6th Amendment
- BUT judges must consider them: when departing from the Guidelines, judge must explain what factors
warranted the increased or decreased sentence, but a lot of discretion for judge
5. Avoiding unwarranted sentence disparities
Enhancements: elements to consider to increase the severity of the sentence
- Habitual/persistent offenders (3-strikes rule): life sentence for 3rd violent crime
- Priors: mostly for jurisdictions that don’t use the 3 strikes rule
- Hate crimes: jurisdictions have adopted laws saying that if crime was based on discriminatory grounds,
then the sentence can be increased
- Gang crimes
- Weapons
- Drugs
Specific Offenses
-
-
Homicide/killing of another human being (various terms, various degrees)
o Murder: most serious form of homicide bc specific intent required
 Premediated murder: most serious of the intents
 Murder of a police officer or of a juror: most serious crimes in that category
 Felony-murder rule (MPC contra)
o Manslaughter
 Voluntary/intentional killing: “heat of passion”/”sudden provocation”  unpredicted
extraordinary event that triggered the intense emotion leading up to murder
 Involuntary/unintentional killing
 Misdemeanor manslaughter (not all states)
 Vehicular homicide (= killing with a car)
 Negligent homicide (MPC)
Rape
o Before: rape = male using force or threat to have sexual intercourse with woman who is not his
wife without her consent
 No marital rape bc consent was an irrebuttable presumption  no longer the case
 Statutory rape (strict liability): victim below the legal age of consent or mentally
handicapped
 Some States also have a rule considering the age difference between the victim
and the criminal (like in CH)
o Modern trend
 Lack of consciousness or of competence (intoxicated, mentally handicapped or underage) negates
consent to sexual intercourse  importance of consent during sexual intercourse
 Gender-neutral statutes: rape between persons of same or opposite sex
 Different degrees of coercive sexual activity: no need for penetrative intercourse
 Marital rape deemed possible: importance of consent
 Rape shield laws: solution to the fact that rape is the crime that is the least often reported
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


-
Modify requirement of physical resistance
Restrict evidence concerning victim’s previous sexual history and reputation
Laws punishing revenge porn
Theft
o
o
o
o
Aggravated forms: ex. robbery, burglary
Larceny
Embezzlement
False pretenses (fraud)
Furman v. Georgia: death penalty
Facts: Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and
fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death (2 other
death penalty cases were decided along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of
the death sentence for rape and murder convictions, respectively).
Issue: Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual
punishment in violation of the 8th and 14th Amendments?
Conclusion: Yes. The Court's per curiam opinion held that the imposition of the death penalty in these cases
constituted cruel and unusual punishment and violated the Constitution
 Controversial subject, lots of concurrence and dissents
Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances
Dissenting opinion: although a man awaiting execution must inevitably experience extraordinary mental anguish, no one
suggests that this anguish is materially different from that experienced by condemned men.
The imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth
(which prohibits crual and unusual punishment) and Fourteenth Amendments.
The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is “cruel and
unusual” if it does not comport with human dignity. The primary principle is that a punishment must not be so severe as to be degrading
to the dignity of human beings. Death stands condemned as fatally offensive to human dignity. The punishment of death is therefore
“cruel and unusual”, and the States may no longer inflict it as punishment for crimes.
Where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it and finds it
morally unacceptable.
Hurst v. Florida: death penalty
Context: under Florida law, a capital felon may be sentenced to death only after an additional sentencing proceeding before a jury. The
additional sentencing proceeding Florida employs is a “hybrid” proceeding” in which a jury renders an advisory verdict but the judge
makes the ultimate sentencing determinations.
Facts: A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended a
death sentence. Florida law required the judge to hold a separate hearing and to determine whether sufficient aggravating circumstances
existed to justify imposing the death penalty. The judge found so and sentenced Hurst to death.
Issue: Does the Florida death sentencing scheme, which does not require a jury to unanimously sentence a
defendant to death, violate the 6th Amendment’s jury trial guarantee or the 8th Amendment’s prohibition against
cruel and unusual punishment?
Conclusion: We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge,
to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.
- The 6th Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury.” This right, in conjunction with the Due Process Clause, requires that
each element of a crime be proved to a jury beyond a reasonable doubt.
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-
This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s
factfinding. Florida’s sentencing scheme, which required the judge to find the existence of an aggravating
circumstance, is therefore unconstitutional
Criminal Procedure
Adversarial System and Disbalance between prosecution and defendant
-
« truth will out »
Rationale: impartial, fully informed decisions best where
o Decision-maker is neutral and passive
o Parties themselves present facts and legal arguments
o Concentrated, uninterrupted confrontation
o Parties have equal opportunities to present and argue their cases
Disbalance between prosecution and D: prosecution has more advantages  remedy: procedural safeguards +
Brady motion = D can demand the State to give him all exculpatory evidence that it might have, to help D’s
counsel prove that D is not guilty
1) Arrest, formal charges and first appearance
To arrest the suspect, the police need a warrant
To get a warrant, there has to be a probable cause for arrest: facts within officers’ knowledge + reasonable
trustworthy information + belief that an offence had been or is being committed
- If police get a warrant, they are allowed to search the suspect directly without needing another warrant
Once D is arrested, we have to determine if D will be charged. If not, D has to be released
Prosecutorial discretion: what to ask the jury, how to present evidence, what to charge the D with
2) Preliminary hearings, indictment or information
-
-
Charge by grand Jury  indictment
o Smtimes, a grand jury (5th Amendment) is required (like for capital crime or serious cases) to
determine whether there is sufficient evidence to charge the D for the crime
o Investigatory function (hearing witnesses, etc.) of the jury = only for big trials
 Organized crime
 Political figures
 Abuse of private corporate power
Charge by judge or magistrate  information
3) Arraignment and pre-trial motions
Arraignment: D has to appear in court to answer to the charges given in the indictment or information
Then D enters a plea
- Guilty
- Not guilty
- Nolo contendere (= I will not object nor admit to anything): usually in a plea deal
o If you admit that you have committed a crime, and that those facts also give rise to civil liability,
the P can use those facts in the civil case since the burden of proof is held at a higher standard in
criminal cases (beyond a reasonable doubt)
Pre-trial motions
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-
Motion to suppress evidence: if there’s a reason why evidence shouldn’t be admitted and should be
excluded before the jury hears or sees it
Brady motion: to force the State to turn over exculpatory evidence to D’s counsel
Comparison with Civil Lawsuit
Civil suit
Criminal suit
Pleadings: both parties file pleadings, ≠ to criminal
cases
Discovery: you can demand a lot of information from No discovery: law enforcement and D have to find
the other party  often used as a tactic
evidence on their own, they cannot ask each other for
information
- Discrepancy between prosecution VS D, not
the same investigative resources
Brady motion: discovery only of exculpatory evidence
Motion for summary judgment: judgments entered by
a court against another party without a full trial
 They may be issued on the merits of an entire case,
or on distinct issues
Pre-trial conference: lawyers meet with the judge to
plan the trial
Burden of proof: preponderance of the evidence
Burden of proof: beyond a reasonable doubt for
every element of the crime  if doubt or reasonable
doubt, D cannot be convicted and can be acquitted,
which means that new charges cannot be filed for
that same crime
Double jeopardy: you can’t be charged twice for the
same crime if you are acquitted
Not possible to plead the 5th Amendment
5th Amendment: right to remain silent/against selfincrimination
 Exception: immunity (= the State promises not to
prosecute) invalidates 5th Amendment so no need to
plead if someone is already given a waiver of liability
4) Trial
-
Opening statements
Presentation of evidence, including testimony
Closing arguments
Jury is given instructions by the judge: attorneys will submit drafts on how they would want the jury to
be instructed by the judge  the way you phrase questions can influence the answer
5) Sentencing
-
Sentencing separate from conviction (determination of guilt): some evidence is only admissible during
sentencing and can’t be presented during conviction (for ex. prior crimes)
Victim Impact Statements: written or oral statement presented by the victim or the victim’s family to
the court at the sentencing of the D  usually used by victim’s family to oppose against death penalty
Death penalty cases: role of jury
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6) Appeal
In criminal cases, same kinds of appeal as in civil cases except for habeas corpus
- Direct: against cases decided by the lower court, all the way up the hierarchical chain
- Habeas Corpus (give us back the body): rather than appealing the decision, you can file a suit against the
prison for unlawful imprisonment  form of collateral appeal
- Only thing subject to appeal = questions of law, not of facts  only the trial court determines the fact
- After all of the appeals have been done, D can petition the governor of the State for a pardon or clemency
7) Review
Appeal: request to change or modify the decision VS review: request to look into the legality of the ruling
- Scope of appellate review: questions of law
- Appellate procedure: you can’t bring new evidence, only the legal questions are argued at this stage so
no witnesses, no jury, ONLY lawyers, clients and judges can be there
8) Resolving Cases Without Trial
-
Guilty plea
Nolo contendere: often in plea bargaining
Plea bargaining between D and prosecution: majority of cases  2 kinds
o Charge bargaining: D agrees to be charged w a lesser crime in exchange of pleading guilty
o Sentence bargaining: D agrees to be charged w the same crime but w a lesser punishment
o Once judge approves, it becomes a binding contract for both parties
Constitutional Source of Criminal Procedural Rights
The Constitution gives rights to citizens by restricting the acts of the Federal government: all of the Amendments
apply to the Federal State and not all of them apply directly to State governments (but 14th Amendment excudoes)
- Fed: 4th, 5th, 6th & 8th Amendments, incl. 5th Amendment’s due process rights
- State: 14th Amendment (which protect citizens against the State, not against private ppl)
- For these Amendments to apply, there must be some State action (police, legislators, etc.)
Constitutional grounds of criminal procedural law: 4th, 5th and 14th Amendments
14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
-
Equal protection and due process
state: one of the States VS State: Federal State
If a state has a law that violates the rights granted by the Amendments, it violates due process and is
unconstitutional
4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
-
Right not to be subject to unreasonable searches and seizures: define search and unreasonable search
Warrants
o Probable cause of the search, supported by oath or affirmation
o Warrants have to be specific and describe
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

The place to be searched
What law enforcements can seize
5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
-
-
This Amendment defines which cases require a grand jury
o Need a grand jury to decide that capital charges can be brought (aka charges for which the
maximum penalty is the death penalty)
o The accused has the right to be judged by his peers: the jury would be made of ppl who live there
This Amendment also provides protection against self-incrimination: no one can be compelled to
incriminate himself
o Exception: to be granted immunity by the State
6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
-
Speedy: criminal cases are treated in priority, which is why civil cases might be delayed
Public: some cases can be broadcasted and cameras are even allowed (but not in the US SC)
to be informed of the nature and cause of the accusation: prosecution’s duty to bring any exculpatory
evidence to D (Brady motion)
to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in
his favor: cross-examination  the D can subpoena any witness and cross-examine them
to have the Assistance of Counsel: right to have a lawyer
8thAmendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
(Furman v. Georgia: death penalty)
Unreasonable Seizures of Persons and Illegal Arrests: warrant and reasonableness of means
Arrests in Home: warrant required except
- Hot pursuit
- Probable cause that evidence will be destroyed or that the suspect will escape
- Harm to police or others
Arrests Outside the Home: warrant preferred
Reasonableness of Means: deadly force in performing the arrest ONLY if probable cause to believe that the
suspect poses threat of serious physical harm to officer or others  the means have to correspond to the danger
Arrest warrants are not sufficient to enter any other place than the home specified
Confessions and Pre-Trial Right to Counsel: 5th and 6th Amendment
Confessions must be voluntary: if forced or coerced, violates the 5th Amendment which protects against selfincrimination  no compulsion to testify against one’s self
Miranda: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to
consult an attorney and have an attorney with you during questioning. If you cannot afford an attorney, one will be appointed for you.
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5th Amendment: you can’t be compelled to testify against your own interest
6th Amendment: you are entitled to a counsel
Those guarantees protect the D only if D knows about them SO the police has to tell the accused what
their rights are and obtain the D’s confirmation that they have understood the rights
- If police forget to do the Miranda warning, any evidence they collect will be invalid  exclusionary rule
Miranda rights: warning before formal charges are brought (based on 5th amendment right against selfincrimination; not offense-specific)
Massiah: same warning but after formal charges are brought (based on 6th amendment right to counsel, offensespecific)
-
Exclusionary Rule and Fruit of the Poisonous Tree: evidence obtained illegally
Exclusionary rule: any evidence obtained in violation of the D’s constitutional rights cannot be admitted in trial
- Trend towards narrowing exclusionary rule  more exceptions now than ever
Good faith exception: if the court finds that law enforcement acted in good faith while violating the rules, then
the evidence can be admitted:
- Arizona v. Evans: The Court held that the Fourth Amendment was designed to protect against intrusions
into a home or onto private property, or the conduct of police officers. The exclusionary rule therefore
does not apply to the conduct of judicial officers  evidence obtained in search based on warrant that is
later declared invalid is still admissible in court
Fruit of the Poisonous Tree = extension of the exclusionary rule: if the source ("tree") of the evidence or evidence
itself is tainted, then any evidence gained ("fruit") from it is tainted as well
- Exceptions
o If police would’ve found that evidence without the tainted evidence, then said evidence could be
admitted (very difficult to prove)
o Does not apply to Miranda violations
o Good faith exception
o Impeachment evidence exception
o Derivative evidence exception
o Exception for proceedings other than criminal trials: you can’t plead the 5th with regards to
possible civil actions (only self-incrimination for criminal liability, not civil liability is covered) 
not applicable in civil trials
Rights at Trial
-
Right to speedy trial (implemented by federal regulation)
Right to public trial
Right to jury trial
Right to impartial jury: lawyers have to determine if jurors are partial (objection for cause)
Right not to testify: 5th Amendment, no need if immunity is granted
Right to confront accusers and witnesses
Right to counsel at trial (not for civil cases)
Burden of proof: beyond reasonable doubt (≠ preponderance of evidence in civil cases)
 all constitutional guarantees, except burden of proof
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Double Jeopardy
When does jeopardy attach? Once the trial is completed (conviction or acquittal) or other rulings on the merits
but NOT if there’s a mistrial (back to square 1)
- Issue around double jeopardy: how to define “same offense” (same facts can constitute different crimes;
an acquittal under one charge doesn’t bar them from being prosecuted under different charges)
Double jeopardy does NOT prevent the appeal of sentence or an order setting aside the conviction
Dual sovereignty: state courts and federal courts are not bound by each others convictions/acquittals  jeopardy
attaches to either but doesn’t go across to other other level
Proof Beyond a Reasonable Doubt, in Low, Jeffries & Bonnie, Criminal Law, pp. 967-986
Before: preponderance of the evidence was sufficient, until the SC declared that scheme unconstitutional in In Re Winship (1970), where
the opinion held that criminal conviction had to be based on proof beyond a reasonable doubt for “every fact necessary to constitute
the crime charged” (Mullaney v. Wilbur).
The requirement of proof beyond a reasonable doubt is bottomed on a fundamental value determination of our society: it is far worse to
convict an innocent man than to let a guilty man go free.
Trial by Jury, pp. 243-257, The Life of the Law: course of a criminal trial
One evening in 1991, in LA, a drunken motorist named Rodney King refused to stop for police and led them on a high-speed chase. He was
eventually stopped, pulled from his car, and brutally beaten in the course of being taken into custody.
King’s ordeal was captured on videotape. That tape became celebrated as the most widely viewed and evaluated piece of
evidence in the history of criminal justice. Never before had the public so totally made a criminal case its own.
When the jury returned verdicts of “not guilty” on almost all the charges, the people were stunned. Seldom in memory had a jury
verdict cut so painfully against public sentiment. All across the country, people were baffled and enraged.
Juries are the counterparts of representative government in the legislatures. A jury verdict defines justice. My jury, who are my judges,
out not to be thus menaced. Their verdict should be free, not forced.
Power of group decision-making: studies have shown that 12 jurors are a far more “accurate” decisional instrument than 6 
better memory, a vast fund of common experience, hugely versatile analytic skills, and counterpressures of opposed extremes
of opinion, which drive its judgments toward the middle ground of rational moderation
Being both anonymous and impermanent, juries have no personal stake in the outcomes of the cases they decide
A jury has a constant front row seat: it sees all the faces, hears all the voices, absorbs all the psychic emanations. It inhales the
atmosphere and experiences the environment of the trial in a way no outside “observer” can
Mapp v. Ohio: admissibility of evidence obtained illegally (exclusionary rule)
Facts: Dollree "Dolly" Mapp was a young woman involved in the illegal gambling operations of mobster and
racketeer Shondor Birns, who dominated organized crime in Cleveland, Ohio in the 1940s and 1950s.[6] On May
23, 1957, Cleveland police received an anonymous tip that a man named Virgil Ogletree might be found at Mapp's
house, along with illegal betting slips and equipment employed in a "numbers game" set up by Mapp's
boyfriend.[7] Ogletree was involved in the Cleveland illegal betting world, centered on the city's Short Vincent.[8]
He was wanted for questioning in the bombing of rival gambling racketeer (and future boxing promoter) Don
King's home three days earlier. Three policemen went to Mapp's home and asked for permission to enter, but
Mapp, after consulting her lawyer by telephone, refused to admit them without a search warrant. Two officers
left, and one remained, watching the house from across the street.
Three hours later, more police officers arrived and knocked on the door. When Mapp did not answer, they forced
the door open. Mapp asked to see their search warrant and was shown a piece of paper which she snatched away
from an officer, putting it inside her dress. The officers struggled with Mapp and recovered the piece of paper
which was not seen by her or her lawyers again, and was not introduced as evidence in any of the ensuing court
42
proceedings. As the search of Mapp's second-floor, two-bedroom apartment began, police handcuffed her for
being belligerent. The police searched the house thoroughly and discovered Ogletree, who was subsequently
cleared on the bombing charge, hiding in the apartment of the downstairs tenant. In the search of Mapp's
apartment and in a footlocker in the basement of the house, the police found betting slips.[9][10] They also found
a pistol and several pornographic books and pictures, which Mapp said a previous tenant had left behind.[9] The
police arrested Mapp and charged her with a misdemeanor count of possessing numbers-game paraphernalia,
but she was acquitted.
Several months later, after Mapp refused to testify against Birns and his associates at their trial for the attempted
shakedown of King, she was prosecuted for possession of the pornographic books. Mapp was found guilty at trial
of "knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and
photographs in violation of 2905.34 of Ohio's Revised Code", and sentenced to one to seven years in prison. Mapp
was convicted even though prosecutors were unable to produce a valid search warrant. She appealed to the
Supreme Court of Ohio, which affirmed her conviction because even though the search warrant's validity was
doubtful and the police's search of her home was illegal, the police officers had not used brutal force against her,
and so under the Supreme Court's precedents in Wolf and Rochin the exclusionary rule did not have to apply.
Mapp then appealed to the U.S. Supreme Court, which agreed to hear her case. Police didn’t have a warrant and
even if they did, the warrant wouldn’t have covered what they found as Ogletree (whom they were looking for,
was hiding in the downstairs apartment)
Exclusionary Rule: evidence obtained in violation of defendant’s constitutional rights cannot be used in a court of
law  serves to enforce protections set forth in 4th amendment
Issue: Were the confiscated materials protected from seizure by the 4th Amendment? How and when to apply the
exclusionary rule?
Conclusion: all evidence obtained by searches and seizures in violation of the 4th Amendment is inadmissible in
a state court
- The 4th Amendment secures the people against all unreasonable searches and seizures
- In previous cases, the SC held that “in a federal prosecution, the 4th Amendment barred the use of
evidence secured through an illegal search and seizure”
-
We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority,
inadmissible in a state court.
Katz v. US – 4th Amendment; redefined what search or seizure is:
Facts:
Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states,
Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz.
Based on recordings, Katz was convicted under an eight-count indictment for the illegal transmission of
wagering information. On appeal, Katz argued that the recordings could not be used as evidence against him.
The Court of Appeals rejected the contention that the recordings had been obtained in violation of the 4 th
Amendment, because “there was no physical entrance into the area occupied by the petitioner”.
Before Katz, case law defined certain areas as being private  police weren’t allowed to search without a warrant
In Katz, the listening device was placed outside the telephone booth: police argued that, if the telephone booth
was a private space, then there was no violation of private space since the listening device was placed outside
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What is a Search, according to Katz case?
- No more trespass theory: focus on the person, not on the place
- If it violates someone’s privacy, then it’s a search
o Reasonable expectation of privacy: what the person expects to be private, as opposed to what
it knowingly exposes to the public (even if it does it on private property); determinations are made
on a case-by-case basis (considerable body of case law now)
o Recordings: some state laws provide that if the person being recorded doesn’t know they’re
being recorded, the recording won’t be valid
- Exceptions
o False friends: if I think I’m talking to a friend but I’m actually talking to a police officer, not an
unreasonable search  reason: you can’t expect ppl to not tell someone else, what you told them
o Open fields: not unreasonable search if anybody could walk by and see what the police officer
sees  no expectation of privacy, even if it’s in private property
 Shooting someone behind a window next to a public street: shooter doesn’t have a
reasonable expectation to privacy here cuz everybody walking by could hear and see
o Trash: anything you throw out does no longer fall within your expectation of privacy
Is Search Reasonable?
- Probable cause: reasonable and trustworthy information indicating to the officer that particular evidence
will be found in a particular place, to support the idea that an offence had been or is being committed
- Searches requiring probable cause and a warrant: the norm
- Searches requiring probable cause but NO warrant: if police have probable cause, they might not need a
warrant if they prove one of the exceptions below
o Exigent circumstances: police reasonably believe that if they waited to get a warrant, the
evidence would get destroyed
o Automobile exception: police have a probable cause to stop a driver and to search his car
(speeding, broken taillight, run a red etc.)  if stop is valid, police are allowed to search
o Plain view doctrine: not an unreasonable search if the police have a warrant for one thing, but
find something else in plain view BUT that doesn’t mean the police can search anywhere in the
hopes they’ll find something (fishing expedition), it has to be in plain view
- Searches without probable cause or a warrant: very limited
o Inventory searches: security searches (at airport for ex.)
o Incident search to lawful arrest  as soon as cuffs are on, they can search (if the arrest is lawful)
o Consent of D
Issues w. Katz:
- Reflects general problem with American law: uncertainty due to determination on individual case-by-case
basis
Holding
- 4th Amendment protects people, not places
- 1) Was it a search and seizure?
o Reasonable expectation of privacy: what a person seeks or expects to preserve as private, even
in an area accessible to the public, may be constitutionally protected
o 4th Amendment governs not only the seizure of tangible items, but extends as well to the
recording of oral statements
44
o
-
The Government’s activities in electronically listening to and recording the petitioner’s words
violated the privacy upon which he justifiably relied while using the telephone booth and thus
constituted a “search and seizure”
2) Was the search and seizure conducted in this case complied with constitutional standards?
o In that regard, the Government’s position is that its agents aced in a defensible manner: they did
not begin their electronic surveillance until investigation of the petitioner’s activities had
established a strong probability that he was using the telephone in question to transmit gambling
information to persons in other States in violation of federal law. Moreover, the surveillance was
limited, both in scope and in duration, to the specific purpose of establishing the contents of the
petitioner’s unlawful telephonic communications. Thus, it is clear that this surveillance was so
narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such
investigation, could constitutionally have authorized the search and seizure that took place
o However, searches conducted without warrants have been held unlawful, for the Constitution
requires that the deliberate, impartial judgement of a judicial officer be interposed between
the citizen and the police
o These considerations do not vanish when the search in question is transferred from the setting of
a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is
entitled to know that he will remain free from unreasonable searches and seizures.
Conclusion: Katz was entitled to 4th Amendment protection for his conversations and a physical intrusion into
the area he occupied was unconstitutional
Terry v. Ohio: 4th Amendment; Stop-and-Frisk
Facts: Officer McFadden is patrolling in plain clothes in downtown. 2 men, Chilton and Terry, attract his attention.
He observes them pacing, peeking into store windows repeatedly and talking. McFadden thinks that they’re casing
the store before a robbery. He follows them (they had joined a third man – Katz) and approaches them, identifies
himself as a police officer and asks for their names. The men mumble their answers, Officer McFadden grabs Terry
and Chilton, pats down their clothing and discovers that they’re both carrying pistols in their jackets.
Terry is convicted of carrying a concealed weapon and sentenced to one to three years in prison. His lawyer argues
that the frisk had violated the 4th amendment and that, therefore, the pistol should be excluded from evidence.
Issue: whether the petitioner’s right to personal security was violated by an unreasonable search and seizure
Holding
-
4th Amendment: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.
-
This right belongs as much to the citizen on the streets of our cities as the homeowner closeted in his
study to dispose of his secret affairs
1) Was it a search?
o Distinctions between a “stop” VS an “arrest” and between a “frisk” VS a “search”
The police should be allowed to “stop” a person and detain him briefly for question upon
suspicion that he may be connected with criminal activity
Upon suspicion that the person may be armed, the police should have the power to “frisk” him
If the “stop” and the “frisk” give rise to the probable cause to believe that the subject has
committed a crime, then the police should be empowered to make a formal “arrest” and a full
“search” of the person
-
45
o
-
Exclusionary rule: rule excluding evidence seized in violation of the 4 th Amendment to
discourage lawless police conduct BUT it has its own limitations
2) Is it always unreasonable for a police man to seize a person and subject him to a limited search for
weapons unless there is probable cause for an arrest?
o Scope of the search must be “strictly tied to and justified by” the circumstances which rendered
its initiation permissible

o
The scope of the search done by Officer McFadden presents no serious problem
When an officer is justified in believing that the individual whose suspicious behaviour he is
investigating is armed and presently dangerous, it is unreasonable to deny the officer the power
to take necessary measures to determine whether the person is in fact carrying a weapon
Conclusion
- Where a police officer observes unusual conduct, which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may be
armed and dangerous, he is entitled to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons
- Such a search is reasonable under the 4th Amendment
Utah v. Strieff: constitutional aspects of criminal procedure
Facts:
- Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on
an anonymous tip about drug activity. The number of people he observed making brief visits to the house
over the course of a week made him suspicious that the occupants were dealing drugs.
- After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a
nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then
requested Strieff’s identification and relayed the information to a police dispatcher, who informed him
that Strieff had an outstanding arrest warrant for a traffic violation.
- Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia.
- Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop.
- The Utah SC ordered the evidence suppressed because the warrant that was the basis for the arrest was
discovered during an unlawful investigatory stop
Holding: the evidence Officer Fackrell seized incident to Strieff’s arrest is admissible. There was no flagrant police
misconduct
- Evidence obtained in violation of the 4th Amendment’s protections should NOT be excluded from evidence
when the costs of its exclusion outweighs its benefits, when the link between the unconstitutional
conduct and the discovered evidence is too attenuated.
- To determine whether the connection is attenuated, courts must examine the temporal proximity of the
discovery of the evidence to the unconstitutional conduct, the presence of intervening circumstances,
and the flagrancy of the police misconduct
o Officer Fackrell was at most negligent, but his errors in judgment hardly rise to a purposeful or flagrant violation of
Strieff’s Fourth Amendment rights. After the unlawful stop, his conduct was lawful, and there is no indication that the
stop was part of any systemic or recurrent police misconduct
-
Based on the analysis of those factors, when a valid warrant is discovered after an unconstitutional
investigatory stop, the link between the unconstitutional conduct and the discovery of evidence incident
to the arrest based on the warrant is sufficiently weakened for the search to be reasonable
Dissenting opinion
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-
-
The 4th Amendment protects people from “unreasonable searches and seizures”. An officer breaches
that protection when he detains a pedestrian to check his license without any evidence that the person
is engaged in a crime. The officer deepens the breach when he prolongs the detention just to fish further
for evidence of wrongdoing.
4th Amendment’s exclusionary rule prevents police officers from taking advantage of their own
unconstitutional conduct, which was the case here. Because the initial unconstitutional stop was
calculated to procure further evidence, it was not an intervening circumstance that attenuated the
connection between the misconduct and the discovery of evidence.
First Amendment
New York Times v. United States: national security
Facts: “Pentagon Papers Case"  the Nixon Administration attempted to prevent the New York Times and
Washington Post from publishing materials belonging to a classified Defense Department study regarding the
history of US activities in Vietnam. The President argued that prior restraint was necessary to protect national
security. Went before supreme court in a matter of days.
Opinion per curiam
- We are asked to hold that despite the 1st Amendment’s emphatic command, the Executive Branch, the
Congress and the Judiciary (system of checks and balances) can make laws enjoining publication of current
news and abridging freedom of the press in the name of “national security”.
- The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and farreaching contention that the courts should take it upon themselves to “make” a law abridging freedom of
the press in the name of national security.
- The word “security” is a vague generality whose contours should not be invoked to abrogate the 1st
Amendment.
- Purpose of the 1st Amendment: to prohibit the practice of governmental suppressions of embarrassing
information. Secrecy in government is anti-democratic. Open debates and discussion of public issues are
vital to our national health.
- No prior restraint of the content of news by the government is allowed unless it reveals crucial military
information, contains obscenity, or may directly incite "acts of violence"  Here, nobody knew at time of
the decision what the documents contained, therefore decision should fall in favor of 1st amendment
(Justice Brennan)
o Read Stewart and White opinions again if trouble understanding
o Burger, Harlan and Blackmun dissenting opinions [ I agree with this]
Dissent: The right protected by the 1st Amendment is asserted as an absolute by NYT. However, it is not an
absolute.
Important:
- Scope of freedom of speech in the US much broader than in civilist law systems!
New York Times v. Sullivan: defamation
Facts:
- During the Civil Rights movement of the 1960s, the NYT published an ad for contributing donations to
defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies.
- The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on
him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly
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-
retract the information, as required for a public figure to seek punitive damages in a libel action under
Alabama law.
When the Times refused, Sullivan filed a libel action against the NYT. A jury in state court awarded him
$500,000 in damages.
The Times appealed.
Holding
- Why freedom of press when this is an ad?  editorial control lies with paper (editor is private person and
has freedom of speech + this ad clearly goes to political subject)
- Purpose of 1st Amendment: to allow free exchange of ideas, accountability, democracy (government by
the ppl, for the ppl, of the ppl), truth-finding (if everything is out there, we’ll eventually find truth)
- We are required in this case to determine for the first time the extent to which the constitutional
protections for speech and press limit a State’s power to award damages in a libel action brought by a
public official against critics of his official conduct.
- Under Alabama law, a publication is “libelous per se” if the words “tend to injure a person in his reputation”
or to “bring him into public contempt”. For a defamatory action, P must prove damages and that the
statements are not true.
o Once “libel per se” has been established, D has no defense as to stated facts unless he can
persuade the jury that they were true in all their particulars  default assumption was liability
and if you couldn’t prove absolute truth, you had no defense
 This is one reason why Alabama law was deemed unconstitutional: Burden of proof was
on New York Times and them proving the absolute truth of every detail was impossible
- When a statement concerns a public figure, it is not enough to show that it is false, but the claimant must
also show that the statement was made with malice
o Malice: statement made with the knowledge that it was false or with reckless disregard of
whether it was false or not
- So a public official cannot recover damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with actual malice
- We conclude that the facts do not support a finding of actual malice.
- Truth acts as an absolute defense to defamation  even if a true statement is very derogatory, there is
no defamation (possible other liability though, painting someone in a false light / privacy violation)
This notion has expanded and now also applies to public figures (celebrities) and for special purpose public figures
(= people who thrust themselves purposefully into the public eye  Kardashians [Cervelat-Prominenz]) : lesser
right to privacy and greater freedom of press
Reno v. American Civil Liberties Union
At issue is the constitutionality of 2 statutory provisions enacted to protect minors from “indecent” and “patently
offensive” communications on the Internet.
- The indecent transmission provision prohibits the knowing transmission of obscene or indecent messages
to any recipient under 18 years of age.
- The patently offensive display provision prohibits the knowing sending or displaying of patently offensive
messages in a manner that is available to a person under 18 years of age.
Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful
materials, we agree with the District Court that the statute abridges “the freedom of speech” protected by the
First Amendment.
- In order to deny minors access to potentially harmful speech, these provisions suppress a large amount
of speech that adults have a constitutional right to receive and to address to one another.
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That burden on adult speech is unacceptable if less restrictive alternatives would be as effective in
achieving the same purpose.
We presume that this regulation of the speech is more likely to interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any
theoretical but unproven benefit of censorship.
Hence the injunction against enforcement of these provisions is unqualified.
-
Ashcroft v. Free Speech Coalition
- The Court has to weigh the State’s interest in regulation against the constitutional rights that are being
restricted: when real children are used for child pornography, the State has a stronger interest and is
allowed to limit speech BUT when no real children are implicated in the production of said material, the
State has less of an interest and can only prohibit it if it is obscene
- Limits to freedom of speech (1st Amendment): obscenity  not speech worth protecting under the 1st
Amendment
o Obscenity /=/ pornography: the latter is allowed, as long as it doesn’t rise to the level of obscenity
(which is based on community standards)
- This shows that the US Cst is the supreme law of the land
The Life of the Law, The Right of Privacy
Birth of the right of privacy: right of determining to what extent personal thoughts, sentiments and emotions
shall be conveyed to others
“Right to be let alone” VS right to know
- Courts increasingly recognized freedom to receive information and it became difficult to carve out a
niche for the right of privacy.
- Right of privacy did not apply to information that was a matter of public interest, and if information was
interesting enough to the public to sell newspapers, it was by definition “of public interest”.
- Case of William James Sidis: a remarkable child prodigy who hated being in the public eye and deliberately
separated himself from it. The New Yorker wrote an article about him, his dislike of publicity and described
him as a weirdo (“odd manner of speech”, “unusual personal habits”). Sidis brought suit, lost, appealed.
The court held that the very fact of public interest made Sidis subject to public exposure, concluding that
what the public was entitled to read was defined by what it wanted to read.
However, the right to privacy became constitutional with Griswold v. Connecticut
Griswold v. Connecticut (1965): penumbral rights and right to (marital) privacy
Facts: In 1879, Connecticut passed a law that banned the sale and the use of any drug, medical device, or other
instrument in furthering contraception. A gynaecologist opened a birth control clinic in New Haven in conjunction
with the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law. Their
plan was to challenge the constitutionality of the statute under the 14th Amendment before the Supreme Court.
Issue: Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to
be counselled in the use of contraceptives?
Holding: Yes
- While the Constitution does not explicitly protect a general right to privacy, the various guarantees within
the Bill of Rights create penumbras, from which a right to privacy can be inferred
49
o
-
No real consensus on the source of the right to privacy, but clear plurality opinion that such a
right exists  some found it in the 1st Amendment, some find it in the 4th, others find it in the 9th
o Penumbral rights: in order for individuals to enjoy constitutional rights, there are other rights that
need to go along with the constitutional rights, even though the Constitution doesn’t refer
expressly to these rights.
Ex: 1st Amendment = right to free speech  this also implies the right to education and the right
to freedom of religion, although the Constitution doesn’t mention them SO the right to educate
your child as you wish is a penumbral right to the right to free speech.
o 4th Amendment based on the notion of reasonable expectation of privacy SO there is a
penumbral right to privacy that supports the 4th Amendment
The right to privacy is a penumbral right: even if the Constitution does not say that one exists, it underlies
a lot of other constitutional rights, therefore it needs to be recognized as an existing right
This right prevents states from making illegal the use of contraception by a married couple’s: the
Connecticut statute conflicted with the exercise of this right and was therefore held null
Plurality opinion: a majority of justices agree on the outcome, but not on the rationale behind it
Griswold laid the foundation to the right to privacy (sexual freedoms, marital freedoms, procreative
rights, etc.) and inspired many other cases, including Roe v. Wade (1973)
Conclusion: though the Bill of Rights said nothing about a right of privacy, the terms of the 1st and 4th Amendments
refer to freedom of speech and protection from unreasonable searches and seizures, and these protections are
evidence of a commitment to a broader idea = individual privacy. As a result, that Connecticut statute was
invalidated by the court because it violates said right.
Dissent: I like my privacy as well as the next one, but I am compelled to admit that government has a right to invade it unless prohibited
by some specific constitutional provision.
Roe v. Wade: abortion law, right to privacy, strict scrutiny standard
Facts:
-
A pregnant single woman (Roe) brought an action for declaratory judgment challenging the constitutionality of the Texas
criminal abortion laws, which prohibit abortions except on medical advice for the purpose of saving the mother's life.
Roe alleged that she was unable to receive a legal abortion because her life was not endangered by her pregnancy.
The District Court held that the right to choose whether to have children was protected by the 9th Amendment, through the 14th
Amendment and that the Texas criminal abortion statutes were void because they were unconstitutionally vague and
overbroad (cf. definition overbreadth p. 55)
Issue: Does the 14th amendment protect a woman’s right to privacy, such that there is a constitutionally protected
right to abortion?
Holding: Yes
- Inherent in the Due Process Clause of the 14th Amendment is a fundamental “right to privacy” that
protects a pregnant woman’s choice whether to have an abortion
- However, this right is balanced against the government’s interests in protecting women's health and
“the potentiality of human life”
- A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests
violates that right
- Although the State has legitimate interests in protecting the health of pregnant women and the
“potentiality of human life”, the relative weight of each of these interests varies over the course of
pregnancy, and the law must account for this variability
- 3-tiered, trimester framework with 3 legal treatments
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o
-
-
-
-
In the 1st trimester, the state may not regulate the abortion decision; only the pregnant woman
and her attending physician can make that decision
o In the 2nd trimester, the state may impose regulations that are reasonably related to maternal
health
o In the 3rd trimester, once the foetus reaches the point of “viability,” a state may regulate
abortions or prohibit them entirely in order to protect the potentiality of human life, so long as
the laws contain exceptions for when abortion is necessary to save the health of the mother
Important notion = “quickening”: time when the mother first feels the baby move
o The conditions for abortion are different before and after the “quickening”
o In Roe v. Wade the “quickening” happens at the 1st trimester
o In the leaked draft, Justice Alito considers the term has no importance and is outdated
Issues of standing = mootness?
o Here, the case was moot, because the woman who brought the case wasn’t pregnant anymore
by the time the opinion was published
o BUT the SC concluded that the case wasn’t moot
Strict scrutiny standard of review with respect to fundamental rights
o Any regulation abridging fundamental rights (marital rights, procreative rights, sexual practices, right to
education, right to freedom of religion, etc.) is subject to strict scrutiny: it has to be narrowly tailored to
further a “compelling” governmental interest, in order to remain constitutional
 This shows that fundamental rights (like the right to abort) are not absolute and should be
weighed against the State’s interest
Another interesting thing from Roe v. Wade: the rights guaranteed to persons are not guaranteed to
foetuses
Video of Justice Scalia on Roe v. Wade: What Roe v. Wade said was, no State can prohibit abortion. That
is simply not in the Constitution. But that is left to democratic choice.
In May 2022, Politico obtained a leaked initial draft majority opinion (Dobbs v. Jackson Women's Health
Organization) written by Justice Alito suggesting that the SC is poised to overturn Casey along with Roe.
Opinion
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we
feel it is, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protection potential life.
At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the
abortion decision. The privacy right involved, therefore, cannot be said to be absolute and must be considered against important State
interests in regulation.
Where certain “fundamental rights” are involved, regulation limiting these rights may be justified only by a “compelling State interest”.
The State has an important and legitimate interest in preserving and protecting the health of the pregnant woman and in protecting the
potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at
a point during pregnancy, each becomes “compelling”.
With respect to the State’s important interest in the health of the mother, the “compelling” point is at the end of the first
trimester.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability (3rd semester).
The foetus presumably has the capability of meaningful life outside the mother’s womb. If the State is interested in protecting
foetal life after viability, it may proscribe abortion during that period, except when it is necessary to preserve the life or health
of the mother.
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Planned Parenthood v. Casey: abortion, stare decisis, undue burden criteria
Facts: Pennsylvania abortion control law in 1988 required informed consent and a 24-hour waiting period prior
to the procedure. A minor seeking an abortion required the consent of one parent. A married woman seeking an
abortion had to indicate that she notified her husband of her intention to abort the foetus. These provisions were
challenged by several abortion clinics and physicians.
Issue: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married,
notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as
guaranteed by Roe v. Wade?
Holding: No and yes (split court, no majority but plurality opinion)
- The SC reaffirmed the right to have an abortion established in Roe v. Wade, but upheld most of the
Pennsylvania provisions
o Plurality opinion upheld "essential holding" of Roe = Due Process Clause of the 14th Amendment
protects a right to privacy, specifically a woman's right to choose to have an abortion prior to
viability
- Threw out Roe’s strict trimester framework but maintained notion of protecting a woman’s right to
choose before viability, acknowledging that advances in medical tech had shown that fetuses were viable
at 23/24 weeks
- Strict scrutiny standard replaced by undue burden criteria = new standard to determine the
constitutionality of laws restricting abortions  whether a state abortion regulation has the purpose or
effect of imposing an undue burden, which is a substantial obstacle in the path of a woman seeking an
abortion before the foetus attains viability
o Problem: undue burden does not fit any of the 3 existing levels of scrutiny (rational basis,
intermediate or strict scrutiny)  new and undefined
o Informed consent provision: NOT an undue burden
 Because the informed consent requirement facilitates the wise exercise of the woman’s
abortion right, it cannot be classified as an interference with the right Roe protects.
o Husband notification provision: undue burden
 A State may not give a man the kind of dominion over his wife that parents exercise
over their children.
 Women do not lose their constitutionally protected liberty when they marry.
o Parental consent provision: NOT an undue burden
 An unemancipated young woman under 18 may not obtain an abortion unless she and
one other parent provides informed consent. If neither a parent or a guardian provides
consent, a court may authorize the performance of an abortion.
 Under these precedents, in our view, the one-parent consent requirement procedure is
constitutional.
Criticism: Casey gutted Roe and muddied the waters  threw out framework and standard to replace with new
standard that cannot be found in any case law
Dobbs v. Jackson's Women's Health Org.
Court overturned Roe v. Wade
Stare decisis?  SC argues that it is fixing a mistake (Roe is so wrong that it doesn’t deserve stare decisis)
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Justice Alito delivered the opinion of the Court; his arguments about why Roe v. Wade was “egregiously wrong”
- Abortion is mentioned nowhere in the constitution
o while some rights are implicitly protected, they must be “deeply rooted” in the nation’s history
- The judiciary usurped the legislative power
- Abortion cannot be put in the same basket than the other privacy rights because “abortion destroys
potential life and what the law at issue in this case regards as the life of an unborn human being”
- “Quickening” = mistake made by the judges in Roe because wrong, therefore, Roe v. Wade was a mistake
- The roe decision stands on weak grounds
- No justification to come up with a right that didn’t exist before
- Unclear definition of “viability”, too many factors
- The evolution of society/public opinion should have no influence on the SC’s decision
 Justice Alito brushes a ton of legal arguments away (ex: reliance)
Justice Thomas concurred but declared all substantive due process decisions erroneous and sees it as the SC’s
duty to “correct these errors”
Dissent
- “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for
decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most
obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use
contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either
the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat.”
Alexander Sanger (former President of Planned Parenthood of NYC): “You cannot make abortion go away by
criminalizing it. All you do is make it unsafe. For poor women, women of color, women who don’t have the
advantages of middleclass women to travel somewhere and get an abortion. It’s discriminatory and unfair and
unsafe, an outrage against all women.”
How has Roe v Wade been overturned?
- The SC has ruled in favor of Mississippi's ban on abortions after 15 weeks: in doing so, it has effectively
ended the constitutional right to an abortion for millions of US women, and individual states are now
able to ban the procedure again
o Half of the states in the US are expected to introduce new restrictions or bans
 26 had filed amicus curiae briefs in favor of overturning Roe
o 13 have already passed so-called trigger laws that will automatically outlaw abortion following
the SC’s ruling
- Lower burden of scrutiny: rational basis instead of any other level of scrutiny  legitimate interest of a
state respect and preserve prenatal life at all stages of development, mitigation of fetal pain etc. is enough
Obergefell v. Hodges: gay marriage, right to marriage as a fundamental right (2015)
Right to marriage is a fundamental right and same-sex couples cannot be prevented from exercising their right
to marriage
Facts
- Groups of same-sex couples sued to challenge Ohio, Michigan, Kentucky, and Tennessee’s bans on samesex marriage or refusal to recognize legal same-sex marriages
- P argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the 14th
Amendment
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The U.S. Court of Appeals for the Sixth Circuit held that the states' bans on same-sex marriage and refusal
to recognize marriages performed in other states did not violate the couples' 14th Amendment rights to
equal protection and due process
Issues
- Does the 14th Amendment require a state to license a marriage between 2 people of the same sex?
- Does the 14th Amendment require a state to recognize a marriage between 2 people of the same sex that
was performed in another state?
Opinion of the Court
From their beginning to their most recent page, the annals of human history reveal the transcendent importance
of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons,
without regard to their station in life. Rising from the most basic human needs, marriage is essential to our most
profound hopes and aspirations.
 History of marriage: marriage is not just a union, but also a basic human need.
 Sure, in early history, marriage was between a man and a woman. However, it has changed over time.
- The fact that marriage has changed doesn’t mean that marriage as an institution has gotten weaker, but
that it’s gotten stronger
- Notion of dignity
Same-sex couples may exercise the right to marry. The four principles to be discussed demonstrate that the
reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
- 1st principle: the right to personal choice regarding marriage is inherent in the concept of individual
autonomy. […] Like choices concerning contraception, family relationships, procreation, and childrearing,
all of which are protected by the Constitution, decisions concerning marriage are among the most intimate
that an individual can make.
o Justice Kennedy cited Griswold v Connecticut: the choice to use contraception is part of the right
of privacy and the government cannot interfere with that right.
- 2nd principle: the right to marry is fundamental because it supports a two-person union unlike any other
in its importance to the committed individuals
o Marriage responds to the universal fear that a lonely person might call out only to find no one
there. It offers the hope of companionship and understanding and assurance that while both still
live there will be someone to care for the other.
 There is no right to not being alone  so not very persuasive argument
o As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to
enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal
act.
 Justice Kennedy assumes that having sex with someone creates a bond so strong that it
often leads to marriage  not very persuasive
- 3rd principle: the right to marry safeguards children and families and thus draws meaning from related
rights of childrearing, procreation, and education. Marriage also affords the permanency and stability
important to children's best interests.
o It is debatable whether or not marriage maintains more stability and permanence in a family
(many divorces in families with children to counter-prove this)  not very persuasive
th
- 4 principle: marriage is a keystone of our social order
o Marriage is "the foundation of the family and of society, without which there would be neither
civilization nor progress."
 There are societies where marriage doesn’t exist  not very persuasive
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 Saying that smt has been around for so long is a slippery ground of argumentation
Throughout our history, we made marriage the basis for an expanding list of governmental
rights, benefits, and responsibilities: taxation; inheritance and property rights; rules of intestate
succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking
authority; adoption rights; the rights and benefits of survivors; birth and death certificates;
professional ethics rules; campaign finance restrictions; workers' compensation benefits; health
insurance; and child custody, support, and visitation rules.
Yet by virtue of their exclusion from that institution, same-sex couples are denied the
constellation of benefits that the States have linked to marriage. This harm results in more than
just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples
would deem intolerable in their own lives.
 Marriage guarantees a spectrum of rights that are denied to same-sex couples who can’t
get married.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment
is derived, too, from that Amendment's guarantee of the equal protection of the laws.
o Notion of equality under 14th Amendment: overturning Lawrence v Texas
o
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Conclusion: These considerations lead to the conclusion that the right to marry is a fundamental right inherent
in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment
couples of the same-sex may not be deprived of that right and that liberty.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice,
and family. In forming a marital union, two people become something greater than once they were. As some of
the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would
misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect
it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live
in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the
law. The Constitution grants them that right.
 None of these words appear in the Constitution, so it’s hard to determine a legal ground to this decision. This
seems more like a moral speech than a legal one.
How could Dobbs (overruling Roe v. Wade) influence cases concerning gay rights? We might regress and go back
to square one and erase all the liberal progress that has been done
Lawrence v. Texas: criminal sodomy law
Facts:
- Responding to a reported weapons disturbance in a private residence, Houston police entered John
Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private,
consensual sexual act.
- Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas
statute forbidding 2 persons of the same sex to engage in certain intimate sexual conduct.
- The State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause
of the 14th Amendment, and cited Bowers v. Hardwick (1986) to support this.
Issues
- Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct"
law, which criminalizes sexual intimacy by same-sex couples, but not identical behaviour by different-sex
couples, violate the 14th Amendment guarantee of equal protection of laws?
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Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests
in liberty and privacy protected by the Due Process Clause of the 14th Amendment?
Should Bowers v. Hardwick (1986) be overruled?
Holding: No, yes and yes
- The SC held that the Texas statute making it a crime for 2 persons of the same sex to engage in certain
intimate sexual conduct violates the Due Process Clause
- Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct
without intervention of the government. The Texas statute furthers no legitimate state interest which
can justify its intrusion into the personal and private life of the individual.”
- Accordingly, the Court overruled Bowers
4 reasons to overcome the stare decisis principle
- Mistake which needs to be corrected
- Doubt which needs to be resolved
- Change in conditions being so significant, that the opinion makes no more sense
- Evolution of society
Tandon v. Newsom
California law restricting in-home gatherings should have been enjoined on grounds it may violate freedom of religion
Facts: The State of California limited religious gatherings in homes to 3 households during the COVID-19 pandemic. Applicants filed a
petition for a writ of injunction, alleging that the regulation violated the Free Exercise Clause of the 1st Amendment. The Ninth Circuit did
not grant the injunctive relief pending appeal.
Issue: Were the applicants entitled to injunctive relief pending appeal?
Holding: Yes
Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue
is more dangerous than those activities even when the same precautions are applied
Otherwise, precautions that suffice for other activities suffice for religious exercise too
Conclusion: The Ninth Circuit's failure to grant an injunction pending appeal was erroneous
California limited religious gatherings in homes to 3 households during the COVID-19 pandemic, but treated some comparable
secular activities more favourably, permitting hair salons, retail stores, personal care services, movie theatres, private suites at
sporting events and concerts, and indoor restaurants to bring together more than 3 households at a time
1st Amendment and the rights it entails
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.
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Freedom of religion, of speech (or not to speak), of press, to associate (or not, freedom not to belong to
a union), of education, to receive information
This implies some conduct (= any form of expression, even if it isn’t speech): i.e. ppl burning their draft card
during the VN war = freedom of speech
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This is addressed to Congress aka federal law, but it also applies to state governments
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The fact that Twitter (private company) bans Trump is not a violation of his 1 st Amendment rights, since it is not a law made by
Congress
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Why is the 1st Amendment so important? A free marketplace of ideas and a free democracy
Freedom of speech is how we guarantee the free marketplace of ideas and free democracy: we have to give the
public access to all of the information, so that it can freely decide on what the truth is
The protection offered by 1st Amendments rights in the US is the broadest form of protection of freedom of
expression in the world BUT these rights are NOT absolute
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US Courts have refused recognition of UK defamation judgements bc UK law doesn’t protect freedom of speech as broadly as US
law does
This is also why neo-nazi or KKK websites are mainly hosted in the US, where those kinds of websites cannot be attacked
Exceptions and limitations to 1st Amendment rights
Some forms of expression are NOT protected speech under the 1st Amendment
- Threatening physical harm to others: this crosses into criminal law  assault includes harming someone
AND putting someone into the fear of it
Disrupting public order: cannot shout “fire” in crowded space, or “bomb” in airport/airplane
o
-
Trump inciting violence and encouraging ppl to storm the Capitol: is that a violation of his 1st Amendment rights?
o If someone is likely to cause harm, that goes against the protection guaranteed by 1st Amendment
Fraud/misleading statements
Slander/libel, defamatory statements: limitation to freedom of press
Perjury: statement made under oath, that is false
Copyright (IP): repeating someone else’s speech (plagiarism) is not protected speech
Forgery
Blackmail
Disclosing confidential/privileged information: there has to be a duty of confidentiality imposed on the
speaker, to punish the speaker for having such information
Repeated verbal child abuse
Solicitation of crimes/conspiracy
Obscenity (cf. p. 56): not protected speech  it is essential to define what constitutes as obscenity
o Purpose: to prohibit lewd, filthy, or disgusting forms of expression, without any other added
(artistic, scientific, cultural) value  NOT necessarily pornography
o Miller test for obscenity: 3 cumulative steps
 (1) whether “the average person, applying contemporary community standards” would
find that the work appeals to prurient interest (indecent interest)
 We take the POV of the ppl that will likely be exposed to it
 (2) whether the work depicts or describes sexual conduct in a patently offensive way
 (3) whether the work lacks serious literary, artistic, political, or scientific value
o Every state has their own laws controlling obscene material
General approach to validity of restrictions: strict scrutiny, undue burden criteria
We weigh restrictions against the constitutional right that is being infringed or limited
- Importance of these rights in a democratic society
- Nature and scope of restraint imposed
- Type and intensity of government interest
- Whether restraint is a narrowly tailored means to achieving that interest: the only behaviour that the
restriction affects should be the behaviour that the State wants to control
 Strict scrutiny standard (Roe v. Wade) VS undue burden criteria (Planned Parenthood v. Casey)
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Overbreadth and vagueness
Overbroad statute: statute that regulates a substantial amount of constitutionally protected expression  the
statute is NOT narrowly tailored and covers more than it should (cf. Roe v. Wade, p. 49)
- Explicit overbreadth: statute drafted in such a way that it covers speech that should not be restricted
- Overbreadth due to vagueness: statute isn’t precise enough to not apply to situations where speech
shouldn’t be regulated  vagueness alone can be enough to invalidate the statute
- Statute “void on its face” or substantial overbreadth: statute drafted in a manner where it is obvious that
they are overbroad, without any interpretation necessary
o Consequences of facial invalidity: such statutes also limit protected speech, which is
unconstitutional  once a law is deemed unconstitutional, it ceases to have any effect
o Consequences of facial validity: a facially valid statute limits some protected speech  instead of
cancelling the statute, the Court will advise Senate on how to redraft the statute
 courts will interpret statue in a way to preserve its validity if possible
Advocacy of Unlawful Action
Not covered by 1st Amendment:
- Speech that is vituperative, abusive, or contemptuous of government or public officials
- Clear and present Danger – Brandenburg test
1st Amendment Rights: public places
The right to express one’s views in public places is fundamental to a free society and democracy, so restrictions
to this right
- Must be tailored in their time (midnight), place and manner (max. decibels) and content neutral (“no
demonstrations by nazi parties allowed” = forbidden): if not, they would be considered as censorship
- Must further significant government interest that cannot be accomplished by less restrictive means
(Proportionality)
- Alternative forum must be available: if public demonstration is not allowed, there must be an alternative
outlet for such demonstration
Special problems arising under 1st Amendment: fighting words and commercial speech
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Fighting words: speech that will specifically incite physical violence and fights is unprotected speech
Symbolic Conduct: e.g. Flag burning etc.
Commercial speech: speech used to propose commercial transactions (ads, marketing)  subject to more
restriction than other speech bc less necessary to freedom and democracy
o Truthful commercial speech is less protected BUT cannot be prohibited unless
 A substantial government interest is served by the restriction
 The restriction directly advances the government interest
 The restriction is no more extensive than necessary (critère de nécessité): this criteria is
less strict than narrowly tailored
Defamation
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Facts v. opinion
o Only statements of fact can be defamatory
o Opinions are protected: everyone is entitled to their opinion
Matters of public interest: defamation
o Public officials: malice required (fact known to be false or reckless disregard)  NYT v. Sullivan
 But malice required only for “official conduct”, including fitness for office. Ex: Bill Clinton
cheating with Monica Lewiski = ppl deeming him to be unfit for office  if he wants to sue for defamation,
he must prove malice, even though it involves his private life, since his fitness for office is being questioned
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o
Public figures: ppl who achieved general fame and notoriety in the community and pervasive
involvement in the affairs of society
 Malice required
 If the person voluntarily injects themselves into notoriety or is drawn into a particular
controversy, he becomes a public figure for a limited range of issues
Obscenity: Miller test
Definition: Miller Test (cf. p. 55)
- The dominant theme must appeal to prurient interest to the average person
- You must use contemporary community standards to make this determination (so it may change from a
place to another)
- It must be patently offensive according to contemporary community standards
- And lacking in serious social value
Since obscenity is unprotected speech, censorship and prior restraint is permitted
Federal Rules of Evidence
Adversarial System
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The parties bring all evidence to support their claims (nothing comes directly from judiciary)
Importance of burden of proof: if a case has both civil and criminal aspects, the criminal aspects will be
judged before the civil aspects, cuz the burden of proof is stricter
o Civil - more likely than not
o Criminal - beyond a reasonable doubt
Preference for live testimony (as opposed to affidavits or written testimony) to decide whether the
declarant is credible or not
o Written statements and testimonies only where
 Witness unavailable or incapable of coming to court to testify (= dead, in coma, physically
unable to speak in front of court)
 exceptions possible, i.e. to avoid making victim face aggressor in rape case; but
they cannot remain anonymous as a plaintiff and can then be cross-examined by
attorney
o Therefore: some crimes can be prosecuted by state without victim’s
collaboration (rape, domestic abuse in some states)
 Impeachment: a witness says something in court which contradicts what they said earlier
 in that case, written testimony can be introduced to show that the witness is not
credible or to cast doubt on the witness’ credibility
o Recordings: permitted under some circumstances, depending on applicable state law and court
regulations (one-party consent laws etc.)
≠ to civil law system (CH): preference for documentary evidence
Rules of evidence
It is procedural law, and courts usually have their own set of rules of procedure
Sources
- Constitution
o Exclusionary rule: evidence obtained in violation of constitution (usually 4th amendment) =
inadmissible
o right to confront witnesses
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State Common law
State statutes
State evidence codes
Federal Rules of Evidence
Admissibility of evidence
1. Is said evidence relevant? 2 conditions:
- material evidence  related to substance of case
- probative value  probability of evidence to reach its proof purpose of a relevant fact
2. Not outweighed by countervailing considerations such as
- Unfairly prejudicial: if a piece of evidence may cause prejudice to one of the parties, examine if the
probative value of the evidence admitted outweighs the prejudicial aspects. Ex: A witness is a prisoner
who is bought into court in an orange jumpsuit and chains. This will have an impact on the jury’s vision
of the witness’ credibility. Is bringing the prisoner in this state relevant? Even if it were relevant to know
that the witness was convicted (probative value), it will have an impact on how the jury will believe him
(prejudicial effect)
o Unfair prejudice: undue tendency to suggest decision on an improper basis, commonly an
emotional one
o How to avoid? If suspect admits to the fact related to the piece of evidence (i.e. the victim was
found in place X), then the evidence no longer has any probative value (picture of the victim in
place X)
- Confusing or misleading evidence: if evidence tends to confuse or mislead the jury, it should be excluded
- A waste of time
- Undue delay
- Privileged information: some types of evidence can’t be admitted cuz of a special relationship between
the person affected by the information and the person who is asked to reveal the information (i.e.
medical reports from your doctor, reports from your therapist, confessions made to a priest, attorneyclient privilege)
- Exclusionary rule: evidence obtained illegally (i.e. in violation of the D’s Amendment rights) is excluded
- Based on hearsay
- Needlessly presenting cumulative evidence
Relevance: 2 questions to ask
1. Does the evidence tend to prove or disprove a material fact relevant to the lawsuit?
- Any fact having to do with the time, an event, or a person in controversy in the case, will be relevant
2. If relevant, should it be excluded based on judicial discretion or public policy? The court may exclude relevant
evidence if its probative value is substantially outweighed by
- Judicial discretion
o Unfairly prejudicial
o Confusing or misleading
o Undue delay
o Hearsay
o Exclusionary rule
o Needlessly presenting cumulative evidence
o Waste of time: catch-all provision
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Examples of public policy issues
o Liability Insurance
 Can’t be used to prove negligence or ability to pay: the P cannot bring D’s liability
insurance as evidence to show his negligence or to show that he is judgement-proof (aka
poor)
 BUT admissible
 To prove ownership or control (if in dispute): i.e. the D claims that the car he was
driving was his so he wants to prove it by showing that he had insurance
 To impeach: to show that the witness isn’t telling the truth and that he does in
fact have a liability insurance contrarily to what he said before
o Subsequent Remedial Measures
 Inadmissible to prove negligence, culpable conduct, defect in product or design, need
for warning or instruction
 Ex: The train company from Palsgraf issues a statement saying that they couldn’t
have done anything to make things safer, but then they put out a pamphlet
related to security norms regarding trains  it’s not possible to use this pamphlet
to impeach the train company, even though this may show that they realized that
there was a problem
 Admissible
 To prove ownership or control
 To rebut lack of feasibility of safer condition
 To prove opposing party destroyed evidence
o Settlement Offers, No Contest Pleas (nolo contendere) and Offers to Plead Guilty: inadmissible to
prove liability or invalidity of a disputed claim (nobody would be willing to negotiate otherwise)
o Offers to pay Medical Expenses: inadmissible BUT admissible if it is accompanying admissions of
fact (I’m sorry it was all my fault, I’ll pay)
Testimonial privileges: privileged/confidential information
Information arising out of a special relationship between some people are protected: in that case, one of the
people cannot be compelled to testify against the other person
- Spousal communications but the same doesn’t apply to children and boyfriend/girlfriend (depends on
applicable State law)  exceptions: i.e. if your spouse abused you, you can testify against them
- Doctor – patient
- Psychotherapist / Social worker – client; exception: duty to warn if they know that client is going to harm
someone
- Clergy – penitent
- Accountant – client (only some states still have this; disappearing)
- Attorney – client: in order to allow the attorney to protect his client efficiently, this relationship must be
protected BUT there has to be a client for this privilege to apply  2 kinds of privilege
o Privilege: what is said between the client and the attorney
o Work product: attorney’s notes, files, documents, even if the D is not directly involved in them
Requirements for attorney-client privilege
It protects confidential communications between an attorney and client from disclosure (discovery, testimony)
- Existence of an attorney-client relationship - even prospective client if:
o 1) the non-client seeks legal advice
o 2) the non-client reasonably relies on that advice as legal advice, and
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o 3) the attorney does not attempt to dissuade the non-client from relying on the advice
Only confidential information: no third parties present when the information is given
o In the context of in-house counsel, if the client within the company and another person go into
the lawyer’s office, then the third party’s presence in the room might invalidate the privilege
Applies to ALL attorneys: practice of law in any form (including legal counsel) requires bar admission in
the State where they practice
o In civil law countries, only independent lawyers have to be members of the Bar, but in-house legal
counsel don’t need to be  as a result, the attorney-client privilege doesn’t apply to in-house
counsel
Rules for examination of witness
Direct examination
party presenting their own witness does direct examination to prove their case and elicit information, without
influencing the witness
- The types of questions allowed are different from the ones allowed during cross examination: no leading
questions, no coaching, ask simple questions, the lawyer has a passive role (unless witness starts acting
hostile towards client’s interests; then counsel can ask court for permission to treat witness as hostile
witness)
o Golden rules: never ask too many questions nor questions to which you don’t know the answer
- The opposing counsel can make objections: motion to strike/suppress evidence
Cross-examination
- Examination of other party’s witness = hostile witness
- Constitutional basis: D has the due process right to confront their accusers and witnesses
- Purpose different from that of direct examination: to minimize the damage that the witness’ testimony
will make to my client’s case, by poking holes in the witness’ story
o Revealing defects in memory and perception
o Detection and prevention of deliberate deception (lying)
o Preventing perjury
- No-risk approach
o Leading (and very directed) questions only (yes or no): no why or how questions, to prevent
surprise damaging evidence from surfacing
o Never ask a question whose answers you do not know
o Never ask one question too many: you might trigger surprising and damaging answers
o Commit and contradict technique: get the witness to commit to a story, then show evidence to
destroy that story and the witness’ credibility
- Restrictions:
o Only Matters raised during direct examination can be brought up (can’t bring in new subject)
 Unless witness has brought it up on the stand himself  opening the door
o Collateral matters at judges discretion
Disadvantages
- May dissuade witnesses from testifying, cuz not a pleasant experience (especially in rape cases)
o Courts can subpoena witnesses (= compel them to testify)
- May put witnesses at risk (in criminal cases)
- Risk of misuse of demeanor evidence: a good cross-examinator can make a witness very nervous which
makes them lose credibility
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Credibility / impeachment
Good-faith basis required
1. Evidence of bias
2. Evidence of defects of perception and recall
3. Evidence of bad character for truthfulness (General ban on character evidence)
- Convictions bearing on veracity
- Evidence of acts sans conviction bearing on veracity
- Character witnesses
4. Evidence of prior inconsistent statements
5. Evidence contradicting testimony
It reduces costs: impeachment cheaper than getting other witnesses
Objections
Some examples:
- Relevance (probative value is outweighed by other considerations)
- Argumentative: lawyers are not allowed to argument when cross-examining witness
- Harassment/badgering witness
- Calls for a conclusion/for speculation: asking a witness to make a legal conclusion or to speculate
- Misquoting witness
- Assuming facts not in evidence: you can’t assume facts which haven’t been put in evidence yet and you
can’t establish facts without laying the proper foundation for it
o You can’t make an argument saying that cuz the D has been guilty 10 ten times, he can be guilty
1 more time
o Starting the cross-examination without laying the foundation: “so when was the last time you
beat up your wife?”
- Compound question: 2 questions in 1
- Asked and answered: repetitive
- Improper impeachment
- Narrative/nonresponsive
- Beyond the scope: only ask questions related to what the witness said on direct examination
- Hearsay
Hearsay
Definition: out-of-court (oral/written) statement offered to prove what is asserted  information you have heard
out of court but do not personally know to be true
General rule: inadmissible because unreliable  we want live testimony and we want the witness to talk about
stuff they have personally seen or heard
Exceptions: admissible evidence based on hearsay
- Particularly reliable evidence
o Business records: a witness is allowed to testify as to what is in their accounts
o Public records/vital statistics, etc.
o Statements for medical diagnosis or treatment: statements made by the witness to the doctor 
no reason for the witness to lie about what they shared with their doctor
o Recorded recollection: i.e.. asking a police officer about his report and showing him the report
- Public policy
- Present sense impression: « The car’s not going to stop! »
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Present mental/emotional state of mind: the person speaking is so emotional that it explains why they
say what they say  this doesn’t show that what the person said was true, but it tells about the mental
state of the person
Excited utterance/dying declarations: statement made in response to a startling or shocking event
Things having to do with someone’s reputation
Non-hearsay
1. Prior statements by the witness
2. Admissions by a Party
Admissible hearsay cuz declarant unavailable and can’t come in and testify (rare)
1. Former Testimony of Now Unavailable Witness
2. Statements Against Interest of Now Unavailable Witness
3. Statements Offered Against Party Procuring Declarant’s Unavailability
Waiver / Forfeiture of Objections:
Witness may “open the door” to:
Spousal communication privilege if witness talks about it
o Same for self-incrimination, settlement/plea negotiation, subsequent remedial measures, prior
convictions
- Illegally obtained evidence admissible to impeach
o i.e. testimony that contradicts an unmirandized statement
- taking the stand  character for truthfulness
o testimony about reputation and opinion, specific bad acts or prior convictions
Contracts
Elements of a Valid Contract
K = contract
- Agreement
o Offer
 Sufficiently precise (offeree defined, exchange)
 Commitment to deal (≠ invitation to negotiate/treat)
o Acceptance (“meeting of the minds”)
- Consideration: something bargained for and received by a promisor from a promisee
o Common types of consideration include real or personal property, a return promise, some act, or
a forbearance (action of refraining from exercising a legal right, especially enforcing the payment
of a debt)
- Form
- Capacity
- Legality (19 – 20 CO)
Restatement 2nd §71 Consideration (definition)
1) to constitute consideration, a performance or a return promise must be bargained for.
2) A performance or return promise is bargained for it if is sought by the promisor in exchange for his promise and is given by the promisee
in exchange for that promise.
3) The performance may consist of
a. An act other than a promise, or
b. A forbearance, or
c. the creation , modification, or destruction of a legal relation.
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4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some
other person.
Consideration
- Must be bargained for
- Voidable/unenforceable promise can be OK
- ≠
o Pre-existing obligation: pre-existing, so no bargain
o Settlement of invalid claim
o Conditional promise, where promisor knows condition can’t occur
o « Mutuality of obligation »
Validity
-
-
Void = nullity
o Illegal: e.g. K to commit a crime
o Impossibility
Voidable
o Misrepresentation (dol: false statement of a material fact made by one party which affects the
other party's decision in agreeing to a contract), fraud
o K with minor
o Duress/undue influence
o Unconscionability: without a conscience; unscrupulous; so unfair or unjust that it shocks the
conscience. The adjective is frequently used in the context of contract law for contracts that have
grossly oppressive and unfair terms.
o Material mistake (erreur, reformation possible)
Writing Requirement
-
Identify subject matter and parties
Indicate that a K has been made regarding subject matter and between parties
State with reasonable certainty the essential terms of the unperformed promises (performance)
Discharge
-
-
Performance
Excuse
o Impossibility
o Frustration of purpose
o Impracticability
Unconscionability (renders K void)
Material breach by other party (otherwise, damages only)
Performance
Conditions
- Precedent: something must take place or a situation must arise prior to or before a party has a duty to
perform
o
Ex: Eric agrees to sell Fran one of his playoff seat tickets if the Atlanta Braves make it to the playoffs. The obligation to
sell Fran a ticket only arises upon the occurrence of a specific event
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-
Subsequent: a condition subsequent excuses contractual performance if some future event takes place
or situation arises
o
-
Express: both parties agree that an event, or series of events, must occur before the burden of
responsibility to complete the contract arises. If the first party does not uphold their end of the
agreement, the second party cannot complete theirs, and the contract may be considered null and void,
or under breach of contract, per the express conditions
o
-
Ex: Frank agrees to cut Gina's grass today if it does not rain. If it rains, Frank is relieved from the obligation to cut the
grass. Likewise, Gina is relieved from her duty to pay Frank
Ex: You have been hired to write some grant proposals for a nonprofit organization. You will need the organization to
provide certain information, such as program descriptions and budgets, before you can get to work on crafting a
proposal. You and the organization agreeing on this would constitute an express condition
Constructive: condition in a contract that is imposed by law to meet the ends of justice. In constructive
condition the conditions in the contract will neither be expressed nor be implied by words. In this type
of contracts the courts imposes a duty upon the parties to meet certain conditions
Breach
- Excuses for non-performance
- Anticipitory repudiation: non-performance is anticipated
o Allows injured party to sue/replace immediately
o Can be revoked if no action taken
- Material breach (→ discharge): when one of the contracted parties fails to do the very thing that the
contract was created for VS non-material breach: a non-material breach, on the other hand, occurs when
the failure to perform was a minor one.
Remedies
-
-
Termination for breach: damages
In equity
o Reformation (correction)
o Rescission (unwind transaction): it allows a contractual party to cancel the contract especially
when they are a victim of misrepresentation, mistake of fact, duress
o Specific performance
Quasi-contractual remedies: equitable remedies
o Unjust enrichment/restitution – quantum meruit: a reasonable sum of money to be paid for
services rendered or work done when the amount due is not stipulated in a legally enforceable
contract
o Promissory estoppel/detrimental reliance (bonne foi) : a party may recover on the basis of a
promise made when the party's reliance on that promise was reasonable, and the party
attempting to recover detrimentally relied on the promise  4 conditions
 Promise
 Promisee’s reasonable reliance
 Detriment to promisee
 Only way to fairly resolve dispute
Damages
-
Compensatory: general & consequential (special circumstances)
o Consequential damages: form of remedy that can be claimed by P against D for the harm done as
a consequence of the D’s actions
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-
-
Expectation: compensation awarded to the party harmed by a breach of contract for the loss of what he
reasonably anticipated from the transaction that was not completed (dommage positif)
Reliance: damages awarded to someone who has foreseeably relied on an ordinarily unenforceable
promise  reliance damages are calculated by asking what it would take to restore the injured party to
the economic position occupied before the party acted in reasonable reliance on the promise
Punitive
Liquidated (≠ penal): pre-agreed damages
Equity
o Specific performance
o Injunctions
Hawkins v. McGee, 84 N.H. 114 (1929) check
FACTS: After P injured his hand, he sought medical treatment from D. The D proposed surgery by using skin from
P’s chest and grafting it onto P’s injured palm, and he guaranteed that P could return to work a few days afterward
with “a 100 percent perfect hand.” P’s recovery time was longer and the palm of his hand began growing thick
hair like that on his chest. Dissatisfied with the results of the operation, P sued D for breach of contract alleging
that D provided a warranty that his hand would be perfect. The jury reached a verdict in P’s favor and awarded
him damages in accordance with the trial court’s instructions, namely awarding him damages for the pain from
the operation and the damage the operation had caused to his hand. Judgment was entered in favor of P. D
appealed.
- Hairy v. « 100% perfect » hand
- ∏ sued in K, not tort
ISSUE: Where a party’s performance under a contract for medical care falls below the standard warranted, should
the measure of damages include tort damages for pain and suffering, as well as impairment?
ANSWER: No.
RULE: The measure of recovery on a contract is based upon what a D should have given a P, not what P has given
D or otherwise expended.
CONCLUSION: The trial court improperly instructed the jury as to the measure of damages for D’s breach of
warranty. Instead, the proper measure of damages was the difference between the value of a perfect hand and
value of his hand in its post-operation condition. In short, the P was limited to recover only his expectation
damages. The pain resulting from the operation was a legal detriment suffered by P in consideration for the
contract. The action was reversed for a new trial with corrected instructions.
- Difference between « perfect » hand (promise) and hairy hand (result) = expectation damage
- No pain and suffering: consideration for K
Limitations on Damages
-
-
Economic efficiency
Obligation to mitigate (reasonable effort/undue risk)
New Business Rule: it prohibits a newly established business from seeking lost profits. The reasoning
behind the new business rule is that lost profits cannot be determined with a reasonable degree of
certainty because there is not an established history of revenue and profits
Certainty of Damages
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Interpretation
-
Good Faith and Fair Dealing
Ambiguities v. Draftsman (Stronger Party)
Parole Evidence Rule check: it bars extrinsic evidence, including prior or contemporaneous oral or
written agreements, that contradict or create a variation of a term in writing that the parties intended
to be completely integrated
o Exception: subsequent Ks, ambiguity of terms
o K has to be
 A final expression
 A total agreement (complete integration)
o This rule does not apply to evidence of defense (e.g. duress, misrepresentation); to explain
meaning of K, proof of mistatement of fact, subsequent modification, usage
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