UNIVERSITY OF CALIFORNIA COURSE EXAMINATION

SCHOOL OF LAW SPRING 2009

Student Exam No. _______

Law 203, sec. 2

Instructor: Professor Doremus

CLOSED BOOK

NO OUTSIDE MATERIALS OF ANY KIND MAY BE USED OR CONSULTED;

LAPTOP EXAM TAKERS MAY NOT ACCESS ANY
NOTES, FILES, WEBSITES, OR OUTSIDE MATERIALS

Total Time Allowed: 3.5 Hours

This exam consists of 4 questions. The number of points available and suggested time is
given for each question. You should divide your time accordingly.

Think through the question before you begin writing your answer. A well-organized and
well-written answer is likely to receive a higher grade than a poorly-organized or poorly-
written one making the same substantive points.

Unless the question specifically states otherwise, you should assume that ordinary common
law rules apply in the jurisdiction, and that there are no relevant statutes.

If you believe you need more information to answer any of the questions, briefly explain in
your answer what additional information you need and how that information would affect
your response.

If you are typing your exam, please start each part of the examination on a new page and
double-space the text. If you are writing, please start each part of the examination in a new
blue book.

You will be given a 10-minute and a 1-minute warning. When time is called, please stop
writing promptly and turn in your copy of the exam, any scratch sheets, and your answers.

All copies of this exam must be turned in to the person in charge.

GOOD LUCK!!

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Question 1 (20 points; 30 minutes)
Famous author J.D. Slobinger just passed away at the age of 92 in the American State of Fear,
where he lived his entire life. Slobinger, who was known as a literary perfectionist as well as
a recluse with odd and shifting spiritual proclivities, published one novel (which continues to
sell briskly) and several short stories.
Although he never submitted anything for publication after 1965, Slobinger continued to
write throughout his life, filling file cabinets with manuscripts. His will directed that his
body be cremated, if possible on a pyre constructed of his unpublished manuscripts. Should
that prove impossible (as it did, under the stringent regulations that govern cremations in
Fear), the will directed his executor to burn the manuscripts in a ceremony for which
Slobinger provided a detailed script.
Neither Peggy, Slobinger’s only child, nor any of his three ex-wives were named as
beneficiaries in his will. He left his entire estate to the Caulfield Academy, a private boarding
school for troubled adolescents.
The executor of Slobinger’s will (the person charged with implementing its terms) is his
longtime lawyer and literary agent, Dewey Cheatham. Cheatham believes the manuscripts
have great value, both in the sense that they could be sold to a publisher for a large amount of
money and as fodder for students of Slobinger’s life and work. With the support of Caulfield
School, Cheatham seeks judicial relief from the terms of the will. Peggy Slobinger opposes
Cheatham’s request, arguing that Slobinger’s wishes should be respected.
The case has made its way up to the Supreme Court of Fear, which has never before faced the
question of whether to enforce a will calling for the destruction of valuable property. You are
the Chief Justice of the Supreme Court of Fear. Draft an opinion explaining what result you
think the Court should reach and why.

Question 2 (40 points; 60 minutes)

Frigid Gold Mining, Inc., is the record owner of a 7-acre parcel of land in Osborn, a rural area
in the northern part of the State of Frigid. Low temperatures in the area regularly dip below
freezing for 9 months of the year. During the warmer months, property in the area is suitable
for homesites and subsistence and recreational activities. Few people remain in the area
during the harsh winters.
Beginning in 1978, Homer Sampson (then a boy) and his family occasionally used an
abandoned and derelict Boy Scout cabin on the southern part of the parcel as a base camp for
summer hunting, fishing, and gathering. In 1995, Homer married Marge. The couple had big
plans for the site. In 1996, they brought some building materials to the north end of the site,
thinking they would build a cabin. That summer they built a picnic area near the building
materials, with a gravel fire pit, wooden blocks to serve as seats, firewood and a 50-gallon
barrel for use as a stove. In 1998 they brought a camper trailer, equipped with food and
bedding, which they parked on the north end of the parcel from early June through
September. That year they also constructed an outhouse and a rack for drying fish near the
trailer site.

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When they were present, the Sampsons used the north end of the parcel as a base camp while
using the entire parcel for subsistence and recreational purposes. Their activities included
hiking, hunting, gathering berries, catching and drying fish and picnicking.
From 1996 through 2009, the Sampsons typically used the parcel every other weekend during
the summer months. In 2003, however, they were busy with their children’s soccer leagues
and other activities, and did not visit the parcel for the entire summer.
The parcel was criss-crossed by several paths before the Sampsons began using it. The
Sampsons used the paths for picking berries and reaching fishing spots. Others also used the
paths for these purposes, without any objection from the Sampsons. In 1999, the Sampsons
arrived one weekend to find another couple camped by their picnic area and burning their
stored firewood. The Sampsons ordered the couple to leave, which they did. When the
Sampsons first visited the parcel in 2004 (after missing the summer of 2003), they found the
picnic area vandalized. They spent a weekend retrieving the wood block seats, rebuilding the
gravel pit, and replacing the barrel stove.
In September 2009, Nome 2000 filed suit to eject the Sampsons from the parcel. The statute
of limitations for an ejectment action in Frigid is 10 years. The Sampsons have come to your
law office seeking advice. Explain to them what their chances of success are in this litigation.

Question 3 (30 points; 45 minutes)

In 2004, a coalition of 8 states and the City of New York sued six electric power companies
for public nuisance under federal, or in the alternative state, common law. The complaint
alleged the following:
1) that defendants, who operate enormous coal-burning power plants, are the largest
emitters of carbon dioxide in the United States, responsible collectively for 10% of
U.S. greenhouse gas emissions, corresponding to 2.5% of total global emissions;
2) that emissions of carbon dioxide and other greenhouse gases are causing global
climate change;
3) that the states are already feeling the effects of global warming in a variety of ways,
such as decreased snowfall in California’s Sierra Nevada Mountains (where the
snowpack provides an important source of water for irrigation and municipal use in
the summer), and will suffer a range of injuries over the next 10 to 100 years if global
warming is not abated, including increased illness and death from intensified heat
waves; increased smog and associated respiratory problems, because higher
temperatures increase the rate and extent of smog formation; beach erosion and
inundation of coastal lands by rising seas; and increased likelihood of drought, floods,
wildfires, and extreme storm events; and
4) that defendants have available feasible and economically viable options for
reducing emissions without greatly increasing the cost of electricity for their
customers.

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Three land trusts filed a very similar complaint alleging private nuisance based on expected
damage from global warming to the ecological value of property they own and manage for
conservation purposes. Both complaints seek only equitable relief, in the form of a
permanent injunction ordering each defendant to cap its carbon dioxide emissions and then
reducing emissions by a specified percentage each year for at least ten years. They were
consolidated for trial.
In 2005, the District Court for the Southern District of New York dismissed the complaints on
the grounds that they presented a political question not suitable for judicial resolution.
Connecticut v. American Electric Power, 406 F. Supp. 2d 265. This fall, the Second Circuit
reversed that holding, and went on to hold that plaintiffs had constitutional standing and that
no federal statutes displaced the common law of nuisance. The case has been remanded to
the District Court for further proceedings.
Assume for purposes of this question that the Second Circuit decision is correct, that the
federal common law of nuisance is identical to typical state common law, and that because
only equitable relief is sought there is no right to jury trial. Assume also that plaintiffs have
adequately shown that global emissions of carbon dioxide are the primary driver of global
climate change, and that at a global level the major effects of climate change, including
warmer surface temperatures, rising sea levels, and an increase in large storms, are not
disputed. Other things, like local changes in precipitation, where large storms will hit, and
the precise effects of climate change on the biota are still difficult to predict accurately.
You are a law clerk to the judge to whom this case is assigned in the District Court. Explain
whether you believe the defendants have committed a public and/or a private nuisance. If
you believe that you need more facts to decide, explain what facts would be determinative
and why.

Question 4 (50 points; 75 minutes)

Avis Audubon, a life-long birdwatcher, owned Egretacre, a large house on the edge of a
marsh frequented by many species of birds. Avis was no fan of cats, having watched them
harass and hunt birds over the years.
When she reached her 65th birthday in 1994, Avis decided to move to a smaller place closer
to town. She had the marsh house converted into a duplex and executed two deeds, the first
conveying one side of the duplex to her elder son, John, and the second conveying the other
side to her younger son, James. Each deed conveyed the unit: “on condition that it may not
subsequently be transferred without the consent of the holder of the other side; any attempt at
such transfer shall cause the property to revert to grantor.” Each also included the following
language: “Grantee promises that no cat will ever be permitted on the premises.” The deed
was properly recorded. Avis died last year, leaving all her assets to Birdlovers International.
In 1999 James, with John’s permission, gave his side to his daughter Angela. In 2007 John,
with Angela’s permission, sold to his cousin Arthur. Angela now wants to move to
California, where she hears the birding is spectacular. She has found a prospective buyer,
Bobby Birder. Of all the prospective buyers Angela talked to, Bobby is the only one who
was not bothered by the prohibition on cats. In fact, he told Angela that condition was a key
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factor in his decision to make an offer on the place. Arthur, who thinks the property should
remain in the Audubon family, refuses to consent to Angela’s proposed sale of her side to
Bobby.
When Arthur recently invited Angela over for coffee, she learned that he has a cat,
Snookums. Angela told Arthur that no cats were allowed on the property. He responded that
he had never heard of that condition, that he has had Snookums since he bought the property,
and that Snookums is strictly an indoor cat. Besides, he pointed out, several neighbors had
cats and there was a family of feral cats living in the marsh.
Angela has come to seek your legal advice. Explain to her whether she can sell the property
to Bobby and whether she (and Bobby, if he buys the place) can insist that Arthur comply
with the ban on cats.

END OF EXAM

HAVE A FUN AND RESTFUL BREAK!

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