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1

Standing and Jurisdiction

Chemco clearly has standing to sue as it has suffered an imminent and concrete injury due to a decrease in its sales resulting from the enactment of the Organic Act by State X. However, the Eleventh Amendment does indeed restrict the ability of private parties to bring a state to federal court without the state’s consent. Fortunately, the Eleventh Amendment does not bar equitable suits against state officials in their official capacity to enjoin the enforcement of a state statute. This represents Chemco’s only viable option for initiating a lawsuit in federal court without the consent of the state.

Dormant Commerce Clause

The Commerce Clause of the U.S. Constitution not only grants Congress the power to regulate commerce among the states, but also has a dormant aspect, meaning that state laws that impose an undue burden on interstate commerce are often deemed unconstitutional.

Recently, the U.S. Supreme Court held that California's law requiring only humanely raised pork to be sold within its borders did not violate the Dormant Commerce Clause (DCC), despite effectively precluding most out-of-state pork from its markets. The controlling opinion in this case adopted a novel approach, holding that the DCC primarily targets discriminatory laws. The Court concluded that the intent of the pork law was not to disadvantage out-of-state businesses in favor of in-state businesses.

Here, Section 1 of the Organic Act does not explicitly discriminate against out-of-state businesses; it merely bans certain sales within the state. This ban applies equally to both in-state and out-of-state businesses, suggesting that it likely does not violate the DCC.

Due Process Clause

The Due Process Clause protects two categories of substantive rights: (1) rights explicitly guaranteed by the first eight Amendments of the Constitution, and (2) fundamental rights that, while not explicitly mentioned in the Constitution, are "deeply rooted in this Nation’s history and tradition" and "implicit in the concept of ordered liberty."

Here, the sale of chemical products is obviously not a fundamental right. Therefore, the regulation of such products through the Organic Act does not inherently violate the Due Process Clause.

Equal Protection Clause

The Equal Protection Clause prohibits states from denying any person equal protection of the laws, but classifications not involving suspect or quasi-suspect classes are subject to a more lenient standard known as rational basis review. Under this standard, the law need only be rationally related to a legitimate government interest.

Here, the classification of crops as organic or non-organic does not implicate any suspect or quasi-suspect classifications. It is tied to agricultural practices and aims to preserve the existence of small farms and to 'protect' those farmers' 'way of life.' While this purpose might seem modest, it still aligns with legitimate governmental objectives such as promoting sustainable agriculture and supporting local economies.

Under rational basis review, the burden of proof falls on the challenger, in this case, Chemco, to demonstrate that the legislation is not rationally related to any legitimate government interest. Thus, it is unlikely that Chemco can successfully challenge the legislation under the Equal Protection Clause.

2

Standing and Jurisdiction

See the rules above. Suing the state government in Federal Court would be barred by the Eleventh Amendment.

Dormant Commerce Clause

Section 2 discriminates against businesses outside of State X, and will be discussed infra.

3

Dormant Commerce Clause

The Supreme Court has recognized that if a state government is itself a market participant, it may not be subject to DCC restrictions. A&L Berries and Organic Produce could argue that merely receiving state funding does not necessarily qualify these businesses as state participants.

This is a close call, but it must be emphasized that if these businesses are not considered participants of the state government, then Section 2 is likely in violation of the DCC. This is because a provision that discriminates against out-of-state businesses on its face can only pass the DCC test if it serves a legitimate non-economic interest of the government and there are no feasible alternatives. This strict scrutiny-like test is nearly impossible to pass.

Privileges and Immunities Clause

Article IV of the Constitution provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Supreme Court has held that denying out-of-state residents the opportunity to engage in livelihood-related commercial activities violates the Privileges and Immunities Clause, even if the state itself is a market participant.

State X may have violated the Privileges and Immunities Clause, but A&L Berries and Organic Produce do not have standing to sue because Privileges and Immunities Clause does not protect corporations.

In summary, Section 1 of the Organic Act is probably constitutional, while Section 2 may have violated both the Dormant Commerce Clause and the Privileges and Immunities Clause. However, addressing the plaintiffs' standing and the 11th Amendment issue appears to pose considerable challenges before the federal court can consider the merits of this case.

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广州: 4月1日(周一)下午6:00-晚上9:00,星巴克(保利香槟花园店),天河区珠江新城华利路46-52号保利香槟花园07、08号铺

深圳:4月8日(周一)下午6:00-晚上9:00,南山区东滨路永新汇大厦2号楼6层前台会议室

方式: 纯聊天,没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊,人多了就一起聊。此外,袁律师不会说粤语。

内容: 众所周知袁律师一般不推荐人考bar,只是一旦你决定考,他会全力辅助你。所以建议把问题重点放在如何通过考试(纽约/加州bar),而不是要不要报名考试。

Q & A

Q: 会不会有通过的学员分享经验?

A: 除了袁律师自己,没有。

Q: 有什么吃喝/礼物?

A: 广州送星巴克饮品一杯,深圳现场一些小零食和饮品。此外,来的人送考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

Q: 可不可以请袁律师吃饭?

A: 袁律师在减脂,不吃晚饭。也请不要带礼物过来,晚上不方便带走。

· 阅读需 2 分钟

北京: 3月4日(周一)下午6:00-晚上9:00,Tims咖啡(乐成中心店),朝阳区东三环中路22号乐成中心SPACE3商场1层

香港: 3月11日(周一)下午6:00-晚上8:00,星巴克(东亚大楼),湾仔轩尼诗道23-29号(上二楼)

方式: 纯聊天,没有presentation. 你可以随时来、随时走。你一个人来袁律师就和你一个人聊,人多了就一起聊。此外,袁律师不会说粤语。

内容: 众所周知袁律师一般不推荐人考bar,只是一旦你决定考,他会全力辅助你。所以建议把问题重点放在如何通过考试(纽约/加州bar),而不是要不要报名考试。

Q & A

Q: 会不会有通过的学员分享经验?

A: 除了袁律师自己,没有。

Q: 有什么吃喝/礼物?

A: 来的人送咖啡饮品一杯,考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

Q: 可不可以请袁律师吃饭?

A: 袁律师在减脂,不吃晚饭。也请不要带礼物过来,晚上不方便带走。

· 阅读需 9 分钟

UWorld目前大约2020个题中,有大约1500个是NCBE真题,剩下的都是UWorld自己编的。如何区分真题和自编题?在提交答案后解析的下方会有版权声明,如果只有UWorld的版权声明,没有NCBE的,说明是自编的。用电脑(网页版)访问,版权声明的颜色较暗,不仔细看容易错过。

相比NCBE的真题几乎没有错误,UWorld的自编题就有一些值得商榷的。更多的时候,自编题光顾着考某个特定的考点,而忽略了题目/选项中其他的问题。即便如此,UWorld也是我最推荐的题库,没有之一。它不仅收录真题最全,题量最大,解析也最简明易懂。即使偶有错误,但大方向没有问题,和真题的风格十分接近。想比之下,其他机构其实惨不忍睹,学员经常拿Barbri的MPQ和MSE两本书来虐我,里面的题不仅错误更多,而且考察的方向十分诡异。Emanuel也是很好的题库,但民诉有一些自编题,做过的就知道酸爽。

以A student had weekly sessions with a psychotherapist开头的题,讲述心理医生在普通法下必须要披露病人可能对第三人造成的伤害,否则可能构成过失侵权。D选项对心理医生同时违反法条的解释非常牵强,参考一下即可。

以One weekend, a retired man conducted a garage sale at his home开头的题,UWorld认为普通法下共同过失不是严格责任的抗辩,这是不对的。普通法下共同过失和自甘风险都是完全抗辩,反而没有比较过失理论。对产品严格责任的共同过失抗辩直到法律重述第二版都还在沿用,只是UWorld引用的第三版似乎认为共同过失不是产品严格责任的抗辩了。法律重述的演变恰恰说明普通法并不是这样的。1991年NCBE放出来的以A bartender was removing the restraining wire from a bottle of champagne produced and bottled by a wine company when the plastic stopper suddenly shot out of the bottle开头的真题就说明了官方认可普通法下共同过失适用于产品严格责任的观点。现今,MBE的默认观点是比较过失。在产品严格责任中,错误使用、自甘风险被并入了比较过失。

以A retired man who had been a sales representative for a drill开头的题,同样是严格责任,B选项原告自己错误使用或许可以成为一个抗辩。不要学答案这种“不贴警告必然有缺陷,贴了警告又说明错误使用可以被预见”这种商家做怎么都不对的分析。正确的解释方法是既然贴了警告,就一般不能预见人顶着警告还非要去错误使用。但B的确没有A好,因为错误使用不一定可以成为完全抗辩,贴了警告也不能就说明没有瑕疵。

以A female quarterback was the only female on an otherwise all-male college football team开头的一个题,要求诽谤是过失而不是严格责任的。这在实务上没有错,但NCBE在没有特别指出的时候,似乎沿用普通法,认为纯私人的诽谤是严格责任的。

以Under a written agreement开头的一个合同题,双方约定独家销售包子,然后仅仅以价格和需求变动撤销了合同。题目是很好的题,对理解对价理论很有帮助,但D不能说错,因为双方愿意承担一定市场风险显然也是不能随意撤销合同的原因之一。

以A woman and a man, who were professional开头的题,当着同事的面说他能力不足(incompetent),被第三人听到了。考点在诽谤被第三人听到就可以构成,但忘了这只是一个意见,很难认定成事实。此外这还是原告邀请她评价的,很可能有特权,没有恶意的情况下通常不构成诽谤。

以Instead of going to work one evening开头的一个题,A和B的意思都可以理解为正当防卫,感觉可以选A就可以选B。

以A man owned an investment portfolio that开头的题,答案认为构成侵占,但忘了普通法侵占仅限于有形资产,修改账户余额不是侵占。以A designer properly placed a client's advance payment of anticipated fees into a client trust account开头的题有同样的瑕疵。题目本来希望考察的考点在侵占和(打算)还回去的钱必须序列号完全一样,否则用别的钱还回去依然构成侵占。这个倒是很经典的考点,要记住。

以A man decided to rob a bank to pay off his crippling loan debt开头的题,如果用普通法观点,不构成未遂。刑法题在没有交代的时候一律用普通法观点。

以A man intended to rob a local convenience store that wasrumored to contain a large safe开头的题,认为劫持罪(kidnapping)没有超出抢劫必要的程度时,会被抢劫吸收。我没有找到案例支持这种观点。MBE能考到的罪名吸收就是未遂被既遂吸收,教唆被主罪吸收,但共谋不会被吸收。顶多再考盗窃被抢劫吸收,伤害、袭击被杀人吸收。实务上并没有成熟的吸收理论。

以A car dealership had an inventory of 200 cars near the end of the year开头的一个合同题,双方合意修改了合同(加价5000)。合同的修改没有任何欺诈、胁迫或者误解,是买家自愿的。虽然修改没有对价,或者用UCC的话说,没有善意(good faith),但修改后的合同已经履行,后悔已经晚了,我倾向于没有正确答案。NCBE真题考对价或者善意无一例外都是尚未履行额外的部分,法院判不可执行,没听说履行了还可以要求还回来的。这个题你可以有不同的观点,把其中重要的考点记住即可。

以A private high school was in the market for new desks and chairs for its classrooms开头的合同题,考点很棒,但offer中说“仅当你的acceptance在6月25日之前被我收到才有效”似乎不能构成一个firm offer,因为only if是为了约束对方,而不是约束自己。要用“当且仅当”,if and only if,才有同时约束自己的意思。所以这个题选B要更合适一些。数学系的我表示提出这个问题的学员很赞。

· 阅读需 8 分钟

任何题库都不是完美的,NCBE的真题也不例外。这个系列的第一篇用来讲几个NCBE放出来但实务上有争议的题。NCBE的错题极少,就算错了,也似乎十分有道理,我会分析考试的时候遇到类似的题应该如何处理。一些关于武器自由、扶持条款和堕胎权的真题已经过时,但不是错题(当时是正确的),考试的时候遇到了用最高法院最新的观点做题即可。

2017年210个分科目试题中房地产的第1题,以A seller contracted to sell land to a buyer for $300,000开头,讲述了在合同签订后买家发现有贷款没有还,以及有一个显然的通行权,随后拒绝完结交易的故事。各机构能达成一致的是,除非未还的贷款超过购房款,且卖家没有迹象表明会在完结时还清,否则贷款本身不会让title变得unmarketable,因为可以在交易完结的时候用购房款同时还清贷款,这也是实务上常见的做法。但NCBE认为地役权会让title变得unmarketable,所以买家可以因此拒绝交易。UWorld坚持了官方的答案。Emanuel直接怼了真题的观点并改了答案,解析说几乎所有的法院都认为在签订合同时可见的地役权视为双方已经同意带地役权进行交易。Barbri也是如此观点。如果再次遇到类似的题目,我倾向于用实务上的通说观点。

同房地产的第25题A man conveyed the eastern half of a tract,明明在有邻居以合理价格提供通行权的情况下,还要找原卖家主张必要的地役权。UWorld的解析认为这是无关的,但我认为关系很大。Emanuel没有收录这个题。不能说这个题实务上一定错,但绝对没有形成一致观点。比如蒙大拿就认为,“The element of strict necessity requires that there be no practical access to a public road from the landlocked parcel except across lands that were formerly in common ownership.” Kelly v. Burlington Northern, 279 Mont. 238, 927 P. 2d 4 (1996). 德克萨斯同样认为,“The mere showing that it would be more expensive or less convenient to obtain another access route is not sufficient to give rise to an implied easement by necessity.” Fambrough, J., Easements in Texas, Technical Report No. 422 Revised, Real Estate Center, Texas A&M University, 2013, at p. 3. 作为对比,密西西比则认为“…when an opportunity exists to acquire an easement from a third party, the easement by necessity doctrine still applies.” Pleas v. Thomas, 75 Miss. 495, 22 So. 820 (1897), Broadhead v. Terpening, 611 So. 2d 949 (Miss. 1992), Vinoski v. Plummer, 893 So. 2d 239 (Miss. 2005). 考试的时候自然还是要以NCBE的观点为准,但要注意的是,一旦实际上获得了替代的通行权,必要的地役权绝对不可能设立,即使设立了,也会因为不再必要而消失。

2011年NCBE放出来的以Ten years ago, a seller sold land to a buyer开头的题,讲述了买家购买了产权保险并以quitclaim deed赠送给他人,随后被受赠人发现有产权瑕疵并成功起诉的故事。答案认为虽然买家不再拥有地产,但他毕竟是保险的受益人,不会因为通过quitclaim deed转让就失效。实务上,保险行业在各州都是被严格监管的,这种重要的条款不可能没有在保险合同中注明,而要用所谓的通说观点来补充。但毕竟我们是为了考试,姑且认为NCBE的观点就是通说观点好了。

但2017年还是210题的房地产中的30题,以Two years ago, a developer conveyed title to a lot to a woman by warranty deed开头,买家随后还是用quitclaim deed转让给其他人,但这次被转让人直接起诉保险公司,选他不是受益人(named insured),UWorld继续给官题找补,说用quitclaim deed转让就失效了,但这就和2011年的题冲突了,至少UWorld的解析是不正确的。

时间再到2021年,这次放出来的以A buyer purchased a house for $300,000开头的题,同样是投保后房产有瑕疵,这次买家的继承人直接起诉保险公司,又胜诉了。从这三个官题来看,NCBE对title insurance的观点似乎是“只有受益人和继承人是适格的原告”,和受益人用什么方式转让地产无关。投保人和继承人只要被后手成功追索,就可以享受保险政策,即使他不再享有房屋,即使他是用quitclaim转让甚至赠送的。

讲了三组房地产的题,是因为其他科目的官题基本没有什么问题。甚至即使这三组题也并没有什么大错。无论是否贴近实务,NCBE的官题,至少放出来的这些,观点是鲜明的,逻辑是自洽的,答案是有说服力的。

最后讲一个似乎是NCBE单独放出来的一个民诉题,以A beneficiary of a trust, who is a citizen of State A开头,管理人虽然和A州没有任何联系,但他在A州度假的时候被送达了。答案认为A州对管理人没有PJ. 这和我们学的知识点是有冲突的。被告自愿出现在管辖州就代表存在了一点联系[Burnham v. Superior Court of California, 495 U.S. 604 (1990)]。答案引用Hanson v. Denckla, 357 U.S. 235 (1958),但这个案例中的管理人是公司,不存在度假的时候被送达。答案进一步认为,管理人度假的人格和他作为管理人的人格是不同的(the trustee was sued in a representative capacity but was served while in State A on a personal vacation)。我没有找到支持这种观点的判例,和我们平时学的也显然不同。总而言之,这个题或许真的是错了。

· 阅读需 2 分钟

时间:12月25日(周一)下午6:00-晚上9:00,你可以随时来、随时走

地点: Tims咖啡(乐成中心店),北京市朝阳区东三环中路22号乐成中心SPACE3商场1层

方式: 纯聊天,没有presentation. 你一个人来袁律师就和你一个人聊,人多了就一起聊。11月份袁律师组织过两场学员内部交流会,一般来说都会有3-5个人同时在。本次交流会非学员也可以来。

内容: 众所周知袁律师一般不推荐人考bar,只是一旦你决定考,他会全力辅助你。所以建议把问题重点放在如何通过考试(纽约/加州bar),而不是要不要报名考试。

Q & A

Q: 会不会有通过的学员分享经验?

A: 除了袁律师自己,没有。本次活动没有主动邀请任何人参加。

Q: 有什么吃喝/礼物?

A: 这次连咖啡都没有了(因为没有辅助人员,不是我舍不得点),请自己通过小程序下单咖啡。来的人送考试可能用到的纯色鼠标垫一张和FD-258指纹卡两张。

· 阅读需 4 分钟

时间: 11月23日(周四)下午3:00-晚上9:30,你可以随时来、随时走

地点: 星巴克(环球金融店),浦东新区世纪大道100号101

方式: 纯聊天,没有presentation. 你一个人来袁律师就和你一个人聊,人多了就一起聊。袁律师分别在11月17日(海淀)和18日(朝阳)办了两场学员交流会,一般来说都会有3-5个人同时在。本次上海交流会非学员也可以来。

内容: 众所周知袁律师一般不推荐人考bar,只是一旦你决定考,他会全力辅助你。所以建议把问题重点放在如何通过考试(纽约/加州bar),而不是要不要报名考试。

Q & A

Q: 会不会有通过的学员分享经验?

A: 除了袁律师自己,没有。本次活动没有主动邀请任何人参加。

Q: 这次的时间和地点有没有考虑到友商在附近开交流会?

A: 有。避免大家奔波。 但没有阻拦大家去看友商交流会的意思。我们的时间窗口很宽裕,你可以看完友商的交流会再顺路过来。尤其是如果你希望得到鼓励你考bar的正面意见,更应该先去友商。

Q: 是不是抢友商的客户?

A: 我们不鼓励友商的签约学员重复报课。此外,袁律师没有给过该友商负面评价,甚至帮忙宣传过多次。

同时,我们认为公平的市场竞争也是无可厚非的。

Q: 袁律师会不会自己或者派人去隔壁场子发广告、拉人头?

A: 这次不会。

Q: 有什么吃喝/礼物?

A: 来的人可以赠星巴克中杯饮品一杯和加州考试需要用到的没有logo的纯黑鼠标垫一张。赠完为止。现场有袁律师从长沙带来的茶颜悦色干脆面包丁无限畅吃。

Q: 有什么优惠/抽奖/团购活动?

A: 没有。袁律师并没有打算在年底之前签约太多新的学员,反而一再劝希望报名的学员三思。

Q: 可不可以请袁律师吃晚饭?

A: 袁律师最近在减脂,不吃晚饭。建议你吃完饭过来或者见完去吃饭。如果你要带吃的过来,请当场和其他考友分享完毕。袁律师晚上回深圳,不方便带任何东西。

· 阅读需 5 分钟

1

Given the fraudulent actions demonstrated by Barbara throughout the transaction process, Steve has several equitable remedies available to him.

Rescission

Rescission is an equitable remedy that nullifies a contract and restores the parties to their pre-contractual positions. In this scenario, Steve could seek rescission of the contract on the grounds of fraud or misrepresentation since Barbara falsely assured him that his conditions were included in the contract documents. If rescission is granted, the sale of the property would be undone, and Steve would return the purchase price while regaining ownership and control of the property.

Reformation

Reformation is a remedy that modifies the contract to reflect the actual agreement between the parties. Here, Steve could seek reformation to include the omitted terms about mineral rights and access to the land, aligning the contract with the original agreement. This remedy ensures that the contract mirrors the true intent and agreement of the parties, correcting the fraudulent exclusion of Steve's conditions.

Specific Performance

Specific performance is an equitable remedy that compels a party to fulfill the terms of the contract. In this case, Steve could seek a court order requiring Barbara to comply with the originally agreed-upon terms regarding mineral rights and access to the land. This would ensure that Steve retains the benefits he was supposed to get from the transaction, as initially agreed.

Declaratory Judgment

A Declaratory Judgment is another form of equitable relief that serves to clarify the rights, duties, or obligations of one or more parties in a dispute. It is typically sought when there is a substantial, definite, and concrete controversy between parties who have legal interests at stake. In this scenario, Steve might seek a declaratory judgment to clarify the terms of the contract, especially regarding the mineral rights and access to the land. By obtaining a declaratory judgment, Steve could have a court officially interpret the contract's terms and define each party's rights and obligations, which might assist in resolving the dispute with Barbara amicably or lay the groundwork for further legal actions if necessary.

Injunctions

An injunction is a legal remedy used to maintain the status quo in situations where waiting for a litigation result may cause irreparable harm. The four elements needed to obtain an injunction include: 1. The party seeking the injunction must show that they will suffer irreparable harm; 2. The party must demonstrate a strong likelihood of succeeding on the merits of the case; 3. The balance of equities should tip in favor of the party seeking the injunction; and 4. The injunction serves the public interest.

Here, to utilize Preliminary Injunction (PI) and Temporary Restraining Order (TRO) to allow Steve to "investigate whether his former property had any mineral deposits," there must be proof that not permitting him to do so would cause immediate harm. Typically, a PI is sought initially, and if there is not enough time to wait for a PI, a TRO can be requested. A TRO is usually granted for a very short period to maintain the status quo until a PI hearing can be held.

2

With half of the embezzled funds used to purchase property, Acme can seek repayment, request a lien on the property, or have the property placed in a trust.

Restitution

Restitution aims to restore Acme to the financial position it was in before the embezzlement occurred. In this scenario, Acme could seek a court order requiring Barbara to pay back the amount embezzled. The court may have the authority to order the sale of Barbara's interest in the property, which does not include Steve's reserved mineral rights and land access, and have the proceeds applied towards the amount owed to Acme.

Equitable Lien

When a court recognizes that a defendant has wrongfully acquired title to a property and stands to benefit unjustly from it, an equitable lien may be imposed as a remedy. Acme could seek an equitable lien on the property to the extent of the embezzled funds used for its purchase. However, the equitable lien would only secure Acme's right to recover the exact amount of embezzled funds, i.e., $250,000. If the property's value appreciates, Barbara would benefit from the increased value, leading to unjust enrichment on her part as she would retain the additional value beyond the $250,000.

Constructive Trust

Similarly, when wrongful acquisition of title and unjust enrichment are established, the court may opt to institute a constructive trust. In this approach, Barbara would be deemed a trustee holding 50% of her interest in the property for the benefit of Acme, corresponding to the portion of the purchase price constituted by the embezzled funds. This approach could prevent unjust enrichment on Barbara's part from any appreciation in the property's value, as the increased value of the 50% share held in trust would accrue to Acme, not Barbara. However, this remedy also exposes Acme to the risk of property value fluctuation.

3

Equitable Restitutionary Damages are typically employed when legal remedies are insufficient, focusing on rectifying the defendant's unjust enrichment, for instance, through Equitable Lien and Constructive Trust when the defendant wrongfully acquires title to the plaintiff's property. In this case, Acme would be better served pursuing legal remedies, allowing for straightforward compensation from Barbara using any personal assets, and enabling Acme to seek punitive damages for Barbara's misconduct.

If resorting to equitable remedies like Equitable Lien and Constructive Trust, the ability to trace wrongfully acquired assets is crucial. However, the tracing here reveals that the embezzled funds, having been used to settle debts and reducing the account balance to $0, are no longer identifiable or recoverable. Therefore, these equitable remedies become inapplicable for Acme to recover the embezzled funds from Barbara's checking account.

· 阅读需 6 分钟

1

Larceny and Burglary

Larceny is a crime involving the unauthorized taking and carrying away of someone else's tangible property, with intent to permanently deprive that person of their interest in the property. Burglary consists of a breaking and entry of a dwelling of another at nighttime with the intent to commit a felony in the structure.

Here, Deborah broke into the garage (breaking and entry) of a dwelling that wasn't hers, at nighttime, with the intent to take wood without authorization. By using the wood to build a fire, Deborah effectively destroyed the wood, thereby permanently depriving the owner of its use. This action satisfies the definition of larceny. Moreover, her actions of breaking and entering with the intent to commit a felony (larceny) in the structure meet the definition of burglary as well. Therefore, she could be reasonably charged with both larceny and burglary.

Defense - No specific intent

Larceny and burglary are crimes of specific intent, encompassing the specific intent in larceny to permanently deprive someone of their property, and in burglary, the belief that the entry is into a dwelling and the intent to commit a crime within that dwelling. Deborah may argue that she believed the house and the wood within were unowned, thus lacking the specific intent of larceny. Without the specific intent of larceny, the charge of burglary may not stand. Furthermore, Deborah could argue that she did not consider the garage a dwelling as she believed no one was sleeping inside, and a dwelling is defined by its occupation for sleeping.

The known circumstances include the house being "run-down" and "Deborah thought the house was unoccupied." However, more information is needed to determine whether Deborah believed the house was abandoned. Considering the house was locked and contained usable wood, if Deborah thought the house was owned but the owner was merely absent, it doesn't affect her specific intent to infringe on someone's property, and to commit larceny therein, nor would it change the definition of a dwelling.

Defense - Necessity

The defense of necessity could be invoked if a defendent reasonably believe that commiting a crime is necessary to prevent an imminent and more severe injury to people than the crime itself. Deborah can argue that breaking into the garage and taking wood were actions taken out of necessity to avoid freezing to death. If it can be established that there were no other legal alternatives available to her and that any reasonable person in the same situation would have acted similarly, the necessity defense might be accepted to clear her from the charges of larceny and burglary.

Arson and Murder

Arson and murder are categorized as malice crimes, requiring either intent or a reckless disregard for an obvious risk. Additionally, murder encompasses felony murder, which will be discussed infra.

Defense - No malice

It is apparent that Deborah did not intentionally start a fire or commit murder, so the only question is whether she recklessly disregarded a significant risk that could result in arson and death. From the current circumstances, Deborah likely lacked malice; she merely ignited a "small fire outside the garage to keep herself warm," a common act that generally does not lead to a fire outbreak. She could not have foreseen the sparks, nor could she have anticipated the presence of oil on the floor that could ignite the house. Perhaps, upon waking, had there been time to extinguish the fire, she had a duty to put it out promptly, but her waking to "flames and smoke" suggests that it was already too late for fire containment.

Felony Murder

Felony murder is a distinct concept under common law murder apart from intention and recklessness. Simply put, if a death occurs during the commission of a forcible felony, it can be considered murder. Forcible felonies typically include burglary, arson, among others. In this scenario, if it's established that burglary or arson was being committed by Deborah when Stuart's death occurred, she could potentially be charged with felony murder, despite the lack of intent nor reckless.

Defense - No felony

As mentioned earlier, it is plausible that the burglary charge could be acquitted due to necessity, and the arson charge may not hold due to the lack of intent or malice. Thus, if no felony was committed, there can be no crime of felony murder.

Additionally, it can be argued that even if the act constituted burglary, the burglary concluded once Deborah moved the wood outside the dwelling. Her action of igniting the wood outside and re-entering the dwelling might constitute trespass, but not burglary, as she did not intend to commit a felony inside the dwelling during this re-entry. Since the burglary had ended by the time of the death, even without the defense of necessity, the charge of felony murder would not stand.

Involuntary Manslaughter

Involuntary manslaughter occurs if a killing is committed 1. with criminal negligence (or by "recklessness" under the Model Penal Code) or 2. during the commission of an unlawful act not included in the felony murder rule. Given that any potential crime, even trespass, might be excused due to necessity, the only remaining question is whether there was criminal negligence on Deborah's part for Stuart's death.

This is a close call, and it would be up to a jury to decide based on the circumstances at the time, examining what a reasonable person would do, whether they would foresee the occurrence of a fire, whether they would anticipate someone being inside the dwelling, and whether there was a duty to inspect the scene and render aid after the fire broke out.

In conclusion, Deborah might escape most of the charges levied against her, with involuntary manslaughter being the only possible conviction.

2

The Constitution prohibits any individual from being compelled to make self-incriminating statements. In Miranda v. Arizona, the Supreme Court further stipulated that before any custodial interrogation, individuals must be informed of their right to remain silent among other rights. The Supreme Court defines "custodial interrogation" based on whether an individual feels they are free to leave soon, hence general questioning by police to pedestrians does not constitute custodial interrogation. Even brief stops, like halting a car to inquire if the driver has been drinking, do not necessitate the exclusion of obtained statements.

Here, the police merely questioned Deborah without taking any actions that would make her feel she was not free to leave. Therefore, Deborah's statement need not be excluded as the interaction does not meet the criteria for a custodial interrogation as defined by the Supreme Court.

Alternatively, if there was an unreasonable seizure (or arrest) under the Fourth Amendment, then any statement obtained as a result of this seizure might be excluded. As discussed supra, Deborah was only stopped for questioning and did not feel she was detained or not free to leave, this interaction might not be considered a seizure under the Fourth Amendment.

· 阅读需 5 分钟

Amy

Amy's liability in this case can be analyzed under the four elements of negligence: duty, breach, causation, and damages.

  1. Duty: Amy, as a driver, had a duty to operate her vehicle safely and adhere to traffic laws to prevent harm to others on the road.

  2. Breach: Amy breached this duty by allowing herself to be distracted by her work email while driving, especially in heavy traffic conditions.

  3. Causation: Amy's distraction was the actual and proximate cause of the accident. "Actual cause" means that but for Amy's negligence, the accident would not have occurred. "Proximate cause" relates to whether the harm was a foreseeable result of the negligence.

  4. Damages: Priya, the other driver, suffered serious injuries as a result of the accident, thus establishing damages.

The discussion regarding whether Amy was acting within the scope of her employment, and whether ABC will be held vicariously liable, will be discused infra. However, this does not absolve her of personal liability for the negligence that caused the accident. Hence, Amy is the primary defendant in this case and bears responsibility for the damages incurred by Priya.

ABC Law firm

The potential liability of ABC Law Firm primarily hinges on the legal principle of vicarious liability, particularly the theory of respondeat superior. According to this theory, an employer may be held liable for the negligent actions of an employee if those actions were performed within the scope of employment.

  1. Scope of Employment:

ABC may argue that at the time of the accident, Amy was off-duty and not acting within the scope of her employment, which generally could exempt the firm from liability. However, in this particular case, given the firm's strict policy requiring attorneys to respond to client communications immediately, even while off-duty, it is likely that ABC's argument may fail.

Amy was adhering to the firm's policy of promptly responding to client emails when the accident occurred. This policy, aimed at facilitating prompt attorney-client communication, clearly aligns with the firm's business interests and operations. Thus, it can be argued that Amy was acting within the scope of her employment when the accident happened.

  1. Employment Relationship:

Although Amy is a partner in the firm, the nature of the partnership in a general partnership agreement implies a form of employer-employee relationship rather than an independent contractor relationship. This is due to the shared liability and decision-making authority within the firm. The employer-employee relationship is a requisite for applying the doctrine of respondeat superior.

  1. Respondeat Superior:

Under the doctrine of respondeat superior, ABC Law Firm could be held vicariously liable for Amy's negligence since her actions, aimed at adhering to the firm's policy, were within the scope of her employment. The firm's requirement for attorneys to carry their work-provided cell phones and respond to client emails immediately represents a form of control over how and when the attorneys perform their duties, which is a key element in establishing vicarious liability.

Given these factors, there is a substantial argument to be made for ABC Law Firm's vicarious liability in this scenario. The firm's policy and the nature of the partnership agreement could potentially extend liability to ABC Law Firm for the negligent actions of its partner, Amy, under the doctrine of respondeat superior.

Bob and Carl

Under the doctrine of joint and several liability associated with general partnerships, each partner is held to have unlimited joint and several liability for the tortious actions of other partners performed in the course of the partnership's business. Therefore, Bob and Carl could also be held liable for Amy's negligence.

Sam

A general partnership is formed whenever two or more persons associate for the purpose of carrying on a business for profit. Becoming a general partnership does not require the submission of any documents to the Secretary of State, nor the formation of any written or oral partnership agreements.

Individuals may become general partners unknowingly or even unwillingly based on their actions and representations to others. In this scenario, the actions and arrangements suggest that Sam may have become a de facto general partner in ABC Law Firm.

  1. Shared Office Space and Resources:

Sam leases an office within ABC's suite and utilizes the ABC receptionist for greeting his clients. This physical integration and shared use of resources may suggest a deeper affiliation with the partnership.

  1. Use of ABC's Firm Name and Telephone Number:

Sam's use of ABC's firm name and telephone number on his letterhead can be viewed as a representation to the public and clients that he is part of ABC, which could be indicative of a partnership relationship.

  1. Profit Sharing:

Sam receives 10% of the annual profits of ABC in recognition of his value to the firm. Profit sharing is a characteristic feature of a partnership relationship, indicating a shared interest in the success of the firm.

  1. Billing Arrangement:

Although Sam bills his clients directly, his close working relationship and financial arrangements with ABC might blur the lines between an independent contractor and a partner.

  1. Enhanced Profile and Prestige:

ABC acknowledges that Sam's presence raises the profile and prestige of the firm, indicating a mutual benefit and possibly a shared business objective.

Given these factors, there is a plausible argument that Sam has become a de facto general partner, despite the absence of an agreement. Should this be the case, under the doctrine of joint and several liability associated with general partnerships, as discussed supra, Sam would share in the liabilities of the partnership, including tortious actions of other partners carried out in the course of the partnership's business, and would also be held liable for Amy's negligent actions.