Race and Gender-based Pre-emptory Challenges

1L, Civil Procedure

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• NOT ALLOWED: religion, gender, class--possibly age, due to Constitutional connection between age a voting/jury service.
• Hard to prove if allow vague justifications (didn't like beard, hair, etc.).
• A racial (or other) minority is by definition a numerical minority, thus equal number of preemptions then will tend to reduce minority representation.
• Some justices say must eliminate pre-emptory challenges all together.
  

Rape

1L, Criminal Law

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Traditional Elements:

• 1. Sexual intercourse
• 2. With a woman
• 3. By a man
• 4. Without consent
• 5. Against her will (requiring utmost resistance)
• 6. Not her husband

SPECIAL RULES:

• a. Timely notice
• b. Corroboration
• c. Lord Hale’s charge: "rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho' never so innocent"
• d. Impeachment

State v. Rusk (focusing on Actus Reus)

• Met victim at bar, voluntarily gave ride home.
• Appellate court said not rape, but higher court sustained original jury verdict.

People v. Iniquez

• Aunt’s fiance lay on top of her and raped her, she did not physically resist, simply laid there.
• Appeals court said insufficient evidence of fear of bodily injury, state supreme court said no, jury could have reasonably concluded there was fear of bodily injury.

Grounds of Inadmissibility

1L, Immigration

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Grounds of Inadmissibility

• Economic
• Political/Security
• Health
• Criminal
• Quasi-criminal
• Miscellaneous

Unique to Inadmissibility (NOT FOR deportability)

• health grounds
• admission of acts constituting crimes
• unqualified health workers
• prostitution
• unlawful presence bars
• previous removal
• polygamy
• renunciation of U.S. citizenship to avoid taxes
• accompanying an inadmissible person
• international child abductors
• communists or members of totalitarian party
• student visa abusers
• not in possession of valid entry documents
• labor certification requirement
• anyone coming to U.S. not under asylum, family unification, must establish that job they will take will not adversely impact U.S. workers or take a job from a U.S. worker. (This only looking for lawful permanent residency.)

Researching Issues involving Grounds of Inadmissibility

1L, Immigration

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• Statutory authority is found at 8 U.S.C. 1182, Sec 212 INA
• Regulatory guidance -- 8 C.F.R. §§ 212, 1212; 22 C.F.R. 40
• Immigration regulations http://uscis.gov/graphics/lawsregs/8cfr.htm
• State Dept. Regs http://foia.state.gov/regs/search.asp
• Policy Manuals
• 9 F.A.M. part 40 http://foia.state.gov/regs/search.asp
• O.I. 212
• Policy Manuals

Admissibility and Removal

1L, Immigration

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• Shaugnessy
• Focuses on fact that power to control immigration rests with Congress, Constitution doesn’t apply when people are seeking admission.
  
• Power with Congress, NOT agency, who simply applies law as given by Congress--must apply statute within narrow range.
• Rodriquez
• Brings in international law. (But 10th Circuit opinion, not SCOTUS.)
• Clark case, quintessential statutory interpretation case.
  
• Had previously used same statute before, and thus had to apply statute in same manner.
• Raffiti, lawful permanent resident in US--expedited removal--court willing to take a careful look because he’s a LPR. Not that expedited removal improper. This is also before the 1996 act that changed law.
• Felisna and Rosenberg cases
• Statute in effect at time different than today, but the reasoning could be used today.
• If expedited removal statute is Const. as applied to persons found within the US within 100 miles and less than 2 years, then can be treated as still seeking admission, then OK.
• Or could find that 14th Amendment protects them and the rest doesn’t follow, and that law would be restricted from applying to that person.
• So just because a statute or regulation exists, may not need to accept it as legal/Const. or as a proper interp. of statute if flies in face of an impermissible interp. statute.
  
• Doesn't matter what agency says if they are wrong.

7th Amendment: Right to a Jury (Law vs. Equity)

1L, Civil Procedure

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Chauffeurs, Teamsters & Helpers v. Terry

• Charged union with not fairly representing workers for not pursuing claims against employer.
• Breach of duty to provide zealous/fair representation.
• Pulled duty of fair representation from case law, not statute.
• Remedy desired: money.
• Usually legal, but how come not equitable in this case? Why not restitution?
• Should be jury trial or not?
• This does satisfy requirement for a suit at common law and thus a jury is required.
• Two part test (the Terry test):
  
• 1. Nature of claim.
• 2. Kind of remedy or relief requested.
• Congress can always provide a jury trial, but cannot remove right to a jury trial.
• Thus 7th Amendment is a floor not a ceiling.

Statutory Rape

1L, Criminal Law

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Traditional Elements:

• 1. Carnal K
• 2. Female child
• 3. Under age of consent (10 at CL)
• Reasonable Mistake of Fact as to age no defense at CL and many/most jurisdictions.
  

Modern:

• The law in CA is that if you are under 18 and of either gender and have consensual sex with someone else who is also under 18 you have committed a crime.
• This is the current law.
• There is a lowering of the punishment if they are within four years of each other; it's not as serious a crime.
• In CA--if both under 18 but within 3 years, it’s a misdemeanor.
• Age varies among states
• Some states still only find man guilty.
  

People v. Hernandez

• Female was 17 years and 9 months and sex was consensual.
• At this time the statute was gender specific.
  
• Argument for ∆ on appeal was that he didn't know she was under 18.
  
• Prior to this decision even if you showed fake id to say you were 19 and looked 19 and the person really thought you were that was not a defense.
  
• Even a reasonable mistake was not a defense.
• CA says that it was an error. CA says its changing statutory rape.
  
• In the majority of cases statutory rape is essentially a strict liability crime.

Consent

• The theory today is that the consent is not valid if you are under the age of 18.
• There is no such thing as valid consent (this isn't anywhere near why the law was enacted).

Garnett v. State

• Mistake due to age not allowed (strict liability)
• Statute clear, no mens rea required.
• Originally a crime due to property right of father over daughter.

7th Amendment: Right to a Jury

1L, Civil Procedure

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7th Amendment

• Dollar amount absurdly low.
• "Suits at common law."
• What counts as a suit at common law?
• Methodology/test for suits at common law very historical:
• How would this lawsuit have been considered in 1789?
• "Originalism": intent of framers, those who wrote the words, in this context.
• Very contentious idea in constitutional interpretation generally.
• In context of 7th Amendment, very little dissention, even by more liberal members of court who usually dislike this approach.
• But they all buy into this idea in context of 7th Am.
• Because 7th Amendment written textually in an odd way:
• Unusual use of "preserves" as compared to other provisions in bill of rights.
• Compare 7th vs. 4th Amendment.
• Thus connotes historical approach.
• "Preserve" (lock into place)
• Make immune from change vs. respect this right (not "preserve" it)
• What did they have in mind?
• Lawsuits today are often very different from 1789,
  
• If claim is the same, can simply go back and compare.
• Thus trespass, nuisance easy.
• But modern lawsuits have different causes of action: how to decide this? What is a "suit at common law"?
• So must reason by analogy: why most similar to (a) vs. (b)?
• Law vs. equity
• Originally codified with a dual system (law vs. equity), now in almost all states and federal there are no separate cases of law and equity (FRCP merged courts).
• Originally a way for the Crown to appease two sets of people, not a system that makes a lot of sense when comparing what the two courts actually did.
  

Expedited Removal

1L, Immigration

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• Arrive with no documents
• Arrive with documents obtained by fraud of misrepresentation
• No claim to citizenship
• No claim to Lawful Permanent Residence (LPR)
  
• No expression of fear of persecution
• Non-Cubans arriving by sea and those captured within 100 miles of border who have been in the U.S. for less than 2 years after 11/13/2002 (REGULATION by agency)
• By sea:
• The Const. says all persons within U.S. to be protected by Const.--doesn't include people on parole
• Someone who sneaks in is in U.S.
• Practitioner's Notes: Just because you see a regulation, do not assume it's legal--may be without proper authority, or an expansion of powers given, may be unconstitutional, or Congress may not have had authority to delegate that power.
• So this rule in particular comes out authority give to agency by Congress to enact regulations to expand the expedited removal authority to cover all persons in the U.S. who have not been here for more than 2 years (agency limited it further to those by sea and not from Cuba and are captured within 100 miles of border/shore).
• But does Congress have the power to limit application of Const. by statute? 14th Amendment says all person within U.S. to be given equal protection and due process
• This regulation does not give due process/fairness (hearing)
• Note: Airlines are responsible for returning those subject to expedited removal, so they have become advocates for hearings and due process!

Felony Murder

1L, Criminal Law

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People v. Hansen

• Guy took their $40 to buy crystal meth. Defendants fire gun at apartment from car, one bullet kills a 13-year old living in apartment. Charged and convicted of 2nd-degree felony murder and of discharging a firearm at an inhabited dwelling (dwelling that could be inhabited).
• Inherently dangerous?
• Can look to abstract (a list of crimes): minority view, incl. CA
• Or to actual situation (easier, since someone actually did die): majority view, prosecution can choose abstract OR applied.

Merger Doctrine

• Can merge two crimes together so that the punishment you get is for one of the crimes (also comes in for double jeopardy, but that's not what we're dealing with here).
• Here it's special meaning is that the merger crime disqualifies assault as a basis for felony murder.
• If it were allowed, then all lesser homicide crimes would disappear
• It would ALWAYS be 2nd-degree murder.

People v. Hansen

• Did discharge of firearm offense "merge" with the resulting homicide?
• NO, doesn't merge.
  

Hypothetical

• I enter a building with intent to beat up, perhaps kill, the inhabitant (strangle them!), person dies as I beat them.
  
• What crime have I committed besides the killing? BURGLARY!
  
• If burglary due to assault, should be merged.
  
• Majority say burglary doesn't merge if its an assault.
  
• "Disqualify" the felony might be a better term than merge.

Felony Murder II

1L, Criminal Law

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• Generally ∆ liable for killings during course of a felony.
• Mens rea implied from underlying/predicate felony.
• Limits on "in perpetration of" predicate felony:
• 1. Duration
• Felony continuing, not complete
• Example: steal wallet from murder victim
• No temporary safe haven, if statute includes flight.
• 2. Actual and proximate cause between felony and death.
• "Agency" vs. "Proximate Cause" jurisdictions.
• Agency: person acting on behalf of ∆ must cause death.
• Proximate cause: ∆ must be proximate cause of death
  

Merger Rule (at CL):

• If felony is integral part of homicide, it merges so gov’t must prove M/R of homicide (note that felony is LIO of F/M)
• 1. Conduct of predicate felony must be separate from act of violence causing death
• 2. Assaults merged
• Rationale
  
• Purpose of F/M to deter accidental/neg. killings
• F/M relieves gov’t of burden of proof as to M/R (and destroys complex graduated scheme based on moral culpability...)
• Prevents defeating M/R for murder by simply proving assault

Admissions Procedures

1L, Immigration

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• • Burden of Proof: clearly and beyond a doubt entitled to be admitted
• Many of the grounds of inadmissibility (and deportability) have waivers
• Inadmissibility grounds are interpreted more broadly (deportability grounds are viewed more narrowly with "tighter" interpretation)
• The procedural rights available to an individual will vary depending on where a person is in the process.
• "Due Process" rights do not apply while seeking admission, or may vary depending on where in process, probably only have rights by statute, not Constitution.
  
• Once admitted, one has more rights.
  
• Protection status foggy for those in country illegally.
• These provisions are applied or interpreted by Immigration and Customs Enforcement (ICE). Citizenship & Immigration Services (USCIS), consular officers, immigration judges, the Board of Immigration Appeals, and federal judges reviewing these decisions.

Who has the Power to Exclude Immigrants?

1L, Immigration

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Who has the power to exclude? Who can decide who is not admissible? Where does that power rest?

• Comes from CONGRESS, some part of foreign policy power in EXECUTIVE, but most comes from Congress
• No real limit to that power.
• Treaties ratified by Congress has the force of law (i.e., becomes same as domestic law)
• Later enactments by Congress that deviate from treaty—HOW do courts interpret that?
  
• Government can abrogate treaty.
• Courts generally try to "bend over backwards" to reason that Congress didn't intent to abrogate treaty unless they specifically say so.
• Rule of interpretation: when looking at a treaty passed today and a statute passed tomorrow, will recognize later statute can change conditions on that treaty, but only if clearly intended by Congress.
• International law has little force in the interpretation of treaties or rules.
• Power limited to CONTROL OF IMMIGRATION
• Does not extend to other matters such as criminal punishment.
• May not extend to differential treatment of foreigners outside of immigration realm (tort, contract, etc.).

Remember, Due Process (aka fairness) doesn't legally apply to those seeking admission. The only remedy is to get Congress to change the law.

Parol Evidence, Modification, Interpretation, and Gaps

1L, Contracts, UCC

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1. Parol evidence

• §§209-217; §2-202

2. Interpretation

• §201, 203(b); §2-208(2)

3. Gaps §204, §§2-305-11

• Good Faith §205, §§1-203, 2-103(1)(b)
• Best Efforts §2-306(2)
• Termination 2-309(2) and (3)

Important to understand the connection between parol evidence, contract interpretation and gap filling to performance and breach, because we must know our rights/duties/obligations before we can assess breach/performance.

1. (Parol) "Box" containing K (written or otherwise)—what outside stuff can be added to K?

• "Parol" evidence rule only for written contracts, but other aspects apply to all Ks.

2. (Interp) What do the terms mean? (K interpretation)

3. (Gaps) What parts didn’t we address?

• Example: how do we know when the K is over?
• How do we fill those gaps?

Parol Evidence Rule

• Substantive rule of K law, not a procedural standard (i.e., to be applied by federal courts per Erie as well).
• Not really a rule of evidence
• Not limited to "oral" stuff
• If allowed, can merge other materials into K
• Final K supposed to be a "merging" or "integration" resulting in the written K being the sum total and complete expression of the K
• No parol evidence issue if no "writing"
• A relevant writing is an "integration" if it includes terms of the agreement
• Could have dispute over what the writing/integration is.
• Only applies to stuff prior to or at the same time as the agreement itself.
  

• Process: Writing? (§209?) → YES? → §214/215 → §210? → Partial (§216)
  

• General rule: Can ALWAYS explain/clarify/define can NEVER contradict can SOMETIMES add (to partial but not complete)
• Modification: Parol evidence always available to court, but court decides if it is necessary
• Modification: "Never" doesn’t mean never.
  
• Example: can almost always show "fraud" etc. as basis to contradict—as opposed to changing a term in the contract—but showing that the whole contract is invalid is not a contradiction.
  

Subsequent modification

• 1. Whether new consideration is required: if "fair and equitable" in R.2d or with agreement (UCC).
• 2. Whether modification must be in writings—see statute of frauds.
• Can orally modify contract and perform, but some clauses in written contract ("waivers") allow going back to original writing
  

Interpretation

• Courts do not have to start from scratch and assign a meaning to "chicken" for all time (for example), must ONLY assign meaning for case before them
• See R2d 201 ("Whose meaning prevails?")—court must simply decide between meanings propounded by parties
• R2d 201 gives an approach to picking one parties meaning over the other, if same parties use same term to mean the same thing ("John’s [other] wife"), even if that isn’t what outsiders might see.
• R2d 201 part 2, when mean different things, see if one of the parties knew or should have known that the term had multiple meanings and that the other party was operating under a different interpretation.
• A sort of duty arises on me to clear that up if I know about it
• R2d part 3 ("Peerless," coins), if there isn't any basis for one or the other, maybe there is NO AGREEMENT (back to "meeting of the minds")

Implied covenant of good faith and fair dealing (also "best efforts")

• Looking at the whole deal (see Burger King, Dalton)
• CA recognizes this, FL doesn’t seem to.
• Not a fiduciary duty where you must put other parties interests above, but only to treat fairly
• As long as judgment is in good faith, party gets to decide what is “best effort” (or reasonable efforts)—see Prentice Hall
• Court can require notice, and adjust notice period to avoid unfairness
  
• Principle: terminated part should have an opportunity to recoup investment and "expectation" of reasonable profit
• Public interest in retaliation (termination)
• Not applicable (in some jurisdictions) to lawyers generally, who are simply required to do the "right thing" (CA gives protections)