2022

U.S Law Pré-Barreau

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 BACKGROUND ON YOU

❖ Name,
❖ Country
❖ Education (Alma mater so far ? ) ; Majoring in… ? Legal education so
far ?
❖ Profession envisioned (Attorney Ok but in which field ?) Counsel or
litigation ?
❖ Work in Europe, France, abroad ?
❖ Particular areas of interest

 BACKGROUND

ATTORNEY-AT-LAW (PARIS BAR) > 10 YEARS

SCIENCES PO Constitutional law

Formerly International law

BERKELEY ALUMNUS

LAW TEACHER since 2009 > Bar applicants

CRIMINAL LAW & CIVIL LIBERTIES
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 Overview

❖ Common law
❖ Federal/State law
❖ American constitutional values
❖ Features of the U.S. legal system (the Trial, the Jury, the judge)
❖ Judicial review
❖ Due process

The Common law

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Common law/ Civil law

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 Common law
❖ Judge made-law.
❖ Law developed by judges through decisions of
courts, namely > case law
❖ Not through statutes or executive action
❖ Common law doctrines is a misnomer. Hence, all of
areas of law have been codi ed into statutory law.
❖ However, U.S Courts continue to use common law
reasoning to interpret the statutes & decide legal
issues.
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 Common law : legal reasoning
❖ Legal reasoning

❖ Legal rules and principles are built on each other and evolve
over time through judicial making

❖ Common law reasoning is used to interpret statutes

❖ Legal reasoning: forms of argument that are used in Common

law

❖ Precedent

❖ Justi cation for either following or departing from a precedent

❖ How do Courts determine what is precedent ? Whether they

are bound to follow such precedent

❖ How to balance competing or con icting precedents.

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 Common law : legal reasoning

❖ Common law resorts to analogical reasoning when there

is ambiguity as to the application of the law

❖ Analogy is straightforward when there’s a single clear

precedent.

❖ Analogical reasoning versus deductive reasoning

❖ However, the greater number of precedents > the more

di cult > the more analogies to be considered. What is
the closer t ? Subjectivity ?

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 Common law: when do courts have to
follow precedents?
❖ 1-When the precedent has been decided by a court
whose decision are binding upon the court trying the
case :

❖ Superior Court to that trying the case in the same

jurisdiction, namely

❖ appellate Court

❖ Court of last resort

❖ & 2- The factual circumstances of the precedent case

are very close to the facts of the pending case

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 Binding precedents
❖ Fed District Court of N. Cal is bound to follow
precedents of the U.S. Supreme Court & the 9th Circuit
Court of appeals

BINDING
PRECEDENT

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 Not binding precedents on Fed District Court of N.
Calif

Decisions of other Fed District Courts

❖ - NOT BINDING

Decisions of other federal Circuit Court

of appeals (1,2,3,4,5,6,7,8, 10, 11,12,13)

Fed Dis of N.Cal is not obliged to follow those precedents. However they can be in uential or
even persuasive on the instant case
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 The holding

❖ Legal rule emerging from the case (ratio decidendi)

❖ Not all of the case is the holding

❖ The holding is the court’s disposition of the precise legal

question at issue in the instant case

❖ Only the holding may serve as the precedent that will

bind on inferior courts when deciding cases raising that
issue

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 Stare decisis

❖ Legal principle by which judges are compelled to abide

by the precedents established by prior decisions

❖ It stems from Latin ‘Stare decisis & non quiet movere”,

namely “To stand by decisions and not disturb the
undisturbed”.

❖ Main takeaway : Courts should abide by precedents &

not disturb settled matters.

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Why retain stare decisis ?

Your take

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 The aims of stare decisis

❖ Clarity & predictability as to decision-making

❖ Legitimacy of the judiciary

❖ E ciency considerations

❖ Deference to the Rule of law

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 Departing from Stare decisis ? Overruling
precedents
❖ 505, U.S 833 Casey v. Planned Parenthood, 1992

❖ Upheld the constitutional right of resorting to abortion

under the 14th Amendment as in Roe v. Wade (410 U.S
113) 1973

❖ Altered the standard for analysing restrictions on that

right

❖ SCOTUS crafted the undue burden standard for

a s s e s s i n g w h e t h e r a b o r t i o n re s t r i c t i o n s w e re
constitutional.

❖ Upshot: Henceforward, states can regulate abortions

during the rst trimester unlike the holding of Roe v. Wade
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Criteria for departing from stare decisis

❖ As set out in Supreme Court, Casey 1992

❖ 1° Has the presidential rule become unworkable?

❖ 2° Could the rule be abandoned “without serious

inequity to those who have relied on it” or damage to
the stability of the society ?”

❖ 3° Has the law’s growth since the rule was adopted

rendered the presidential rule anachronistic ?

❖ 4° Have the factual premises warranting the rule

changed to the extent that such a rule was rendered
‘irrelevant or unjusti able” as to the subject matter ?
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U.S LAW

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 US Law : Constitutional history
❖ 1775-1783. War of Independence

❖ July 4, 1776 Declaration of Independence written by T. Je erson

❖ 1783, Treaty of Paris > The U.S becomes an independent country.

❖ 1787, Drafting of the U.S Constitution

❖ 1788, The U.S Constitution came was rati ed by 9 States

❖ 1789, The U.S Constitution became e ective

❖ 1791 : Adoption of the Bill of rights, First 10 amendements to the U.S

Constitution.

❖ 1803: Marbury v. Madison, SCOTUS enabled judicial review of a

federal statute

❖ 1861-1865 : The civil War & reconstruction amendments after the Civil
war ( 13th 1865, 14th 1868, 15th 1870).
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 US LAW: Overview noteworthy Amendments
❖ 17th Amendment establishes the direct election of U.S
Senators by popular vote
❖ 18th prohibited both the manufacturing & sale of alcohol
within the U.S. It was eventually repealed in 1933 by the 21st
Amendment
❖ 19th prohibits the denial of the right to vote based on sex
❖ 22 limits the number of terms of POTUS to two (after FDR’s
presidency)
❖ 24th prohibits the revocation of rights for reason of non
payment of a poll tax
❖ 26th prohibits the denial of rights
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of U.S citizens older than 18

The federal system of

Government

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 The U.S is a federal system of government
❖ Federal law
❖ Enacted by Congress, held by Federal Courts, (District federal
Courts, Federal Court of Appeals 13 Circuits, The U.S Supreme
Court) administrative agencies , the U.S President (executive
orders)
❖ Applies on a national level
❖ State law
❖ Enacted by State legislatures, decided by State Courts, state
administratives agencies, executives (Governors)
❖ Applies within that State
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Federal Court system: 13 Circuits

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 The federal system : Enumerated powers of Congress:
❖ Lay, collect taxes, pay the debts & provide for common defence & general
welfare (Art1 se8 cl1)

❖ Regulate commerce with foreign nations, among several states, Indian

Tribes (Art1 se8 cl2)

❖ Regulate naturalization & Bankruptcy laws (Art1 se8 cl4)

❖ Regulate currency & securities (Art1 se8 cl6)

❖ To promote creation by securing patents & copyrights (Art1 sec 8 cl8)

❖ Declare War( Art1 sec 8 cl11)

❖ Constitue inferior Tribunals to the Supreme Court (Art1 sec 8 cl9)

❖ Raise & support armies, provide & maintain a Navy, provide for calling forth,
organising the militia. (Art1 sec 8 cl 12 to 16)

❖ Make all laws which shall be necessary & proper for carrying into execution
the foregoing powers (Art1 sec 8 cl2518)
The federal system: Reserved Powers to the State
❖ “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”

❖ 10th Amendement to the U.S Constitution, Bill of rights, 1791

❖ Accordingly, the bulk of substantive law consists of State law.

❖ Reserved power to the State :

❖ Education, Contracts, Business organisations, family law

(Divorce, inheritance law) Real property law, Personal property
law, a vast area of Criminal law, Tort law, Labour law)

❖ Full faith & Credit clause: Art IV, Sect 1 “ Full Faith & Credit
shall be given in each State to the public Acts, Records &
judicial proceedings of every other State 26
10th Amendment limit on Congressional power
❖ The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively
❖ Congress cannot compel state regulation/legislative action
❖ Congress may not commandeer the legislative processes of
the states by compelling them to enact & enforce a federal
regulatory program ( NY v. U.S. 1992)
❖ Congress can induce state government by putting strings on
grants, provided the conditions are stated & relate to the
purpose of the program
❖ Congress may prohibit harmful commercial activity by state
governments
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 Concurrent powers

❖ The State & the Federal government can

share powers, namely :
❖ Federal taxation/State taxation
❖ Welfare (State subsidiary)
❖ Litigation
❖ Employment & Labour law
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 How to solve con icting statutes ?

❖ “This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof ... shall be the supreme
Law of the Land; ... any thing in the Constitution or Laws of
any state to the Contrary notwithstanding.” U.S. Constitution,
Art. VI, cl. 2

❖ Federal government can preempt state law in some areas

❖ The Area has to be one that demands regulation on a national

level
❖ The federal government has to be crystal-clear about its
intention to supersede state regulation.
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The Federal Court system

❖ U.S Supreme Court (discretionary jurisdiction)

❖ Circuit Court of appeals (13)

❖ Federal District Courts (90)

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 State Court system (California)

❖ CA Supreme Court (last resort)

❖ CA Court of appeals (intermediate appellate courts)

❖ Superior Courts

CAVEAT : In the state of NY, there is no supreme Court but the N.Y Court of appeals
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Federal legislative power :

Congress

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CAPITOL HILL, WASHINGTON D.C

CONGRESS 1800-1811

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 Congress
❖ Congress consists of two chambers, the Senate & the House of
representatives (Art 1§1)
❖ Members of the House of representative (Congressmen) are elected
for a two-year term
❖ Eligibility: candidate must be older than 25; 435 members ; the
seats are distributed among the states on the basis of their
population
❖ Members of the Senate are elected for 6 years; every 2 years, one-
third of the Senate stands for election
❖ Eligibility: candidate must be older than 30; the senate consists of
2 senators from each state > 100 senators
❖ Each state enjoys equal representation in the Senate regardless of
its population 34

 Congress: the legislative process

❖ It is divided into 3 stages: 1) the introduction of the bill
(legislative proposal), 2) its adoption by both chambers
of Congress & 3) its approval by the President

❖ 1) Members of Congress propose Bills, the bill is

scrutinized by a committee chamber from which it
originates. It is thereafter adopted by the chamber and
sent on to the other chamber for scrutiny under a
similar process

❖ If the second chamber, say Senate, wishes to make

signi cant changes, a conference committee may be
established
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Congress: the legislative process II
❖ 2) Both chambers must approve the bill that results from
that conference committee compromise

❖ 3) The President approves the Bill by signing it or

remaining silent for 10 days if Congress is in session

❖ The President can veto the Bill, both chamber must

reconsider it

❖ The Bill can nonetheless become law if each house

overrides the Presidential veto with a two-thirds
majority

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 Legislative & executive
❖ For Congress to act, there must always be bicameralism
(House & Senate) & presentment (giving bill to P to either
sign or veto)

❖ Legislative Veto : Congress tried to overturn executive

action without bicameralism& presentment. In Chada v. NY
426 US 919, (1983) it was decided that Congress can veto
executive action only through bicameralism & presentment.

❖ Line Item Veto : In Clinton v. City of New York, 524 U.S.

417 (1998), the Supreme Court ruled that the line-item veto
as granted by federal statute violated the Presentment
Clause (Article I, Sect 7, Cl2 & 3) because it impermissibly
gave the President the power to unilaterally amend or repeal
parts of statutes that had been duly passed by Congress
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 Amending the Constitution

❖ An amendment to the U.S Constitution needs to meet 2

stringent prerequisites to pass:

❖ A two-thirds majority in both houses of Congress

❖ An approval by three-fourths of the states

❖ Accordingly, Amendments to the U.S Constitution are

very rare because they fail to be approved by the
requisite number of States

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The legislative competence of Congress Art1§8
❖ Article 1§8 of the U.S Constitution de nes the legislative
competence of Congress. It has to be an express or implied
Congressional power.

❖ Congress shall have power to lay & collect Taxes, pay the debts &
provide for the common defence & general Welfare of the U.S

❖ Regulate commerce with foreign Nations & among the several

States

❖ Regulate the naturalisation of foreigners

❖ Deal with currency & money

❖ create patent & copyright law

❖ Provide and maintain a navy, calling forth a militia

❖ Declare War 39
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 Congress power under Art1§8 Necessary &
Proper Clause

❖ Congress may adopt all laws that are necessary &

proper for the exercise of those competences
Art1§8cl18

❖ “The Congress shall have power (…) To make all Laws

which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the
United States, or in any Department or O cer thereof”
Art1§8cl18

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Congress power under 14§5 Amendment
❖ 14th §1 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.

❖ 14th §5 The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

❖ Congress may not create new rights or expand the scope of

rights under §5 of the 14th Amendment

❖ Congress may act only to prevent/remedy violations of rights

recognized by the Courts & such laws must be
proportionate & congruent to remedying constitutional
violations. 41
 Limits on Congressional power: the 10th Amendment

❖ The 10th Amendment to the U.S Constitution reads as follows:

❖ “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
❖ Accordingly:
❖ Congress cannot compel legislative or regulatory action
❖ Congress may induce state governments by conditioning
grants provided the the conditions are expressly stated &
relate to the purpose of the spending program
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 FEDERAL EXECUTIVE
POWER: THE PRESIDENT

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 Foreign policy

Senate Con icts w/ Con icts w/ Con icts w/

approval ? State law Fed law Constitution

TREATY LAST IN TIME CONSTITUT

TREATIES YES
CONTROLS CONTROLS CONTROLS

EXECUTIVE FEDERAL
EXECUTIVE CONSTIT
NO AGREEMENT STATUTE
AGREEMENT CONTROLS
CONTROLS CONTROLS

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 Foreign policy
❖ Executive agreement: Agreement between the
U.S & a foreign country that is e ective when
signed by the President & head of a foreign
nation

❖ An executive agreement can serve any

purposes as long as does not interfere with a
constitutional power devoted to another branch

❖ As commander-in-chief President has broad

power to use U.S troops in foreign countries
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Domestic affairs: Appointment power

❖ POTUS appoints Ambassadors,

federal judges, o cers of the U.S.

❖ The Senate must approve

❖ Congress may vest appointment

power of inferior o cers in the
President, the heads of department,
or lower federal courts
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 Domestic affairs: Removal power
❖ Unless removal is limited by statute, the
President may re any Executive branch of cer.
❖ For Congress to limit removal, it must be an of ce
where independence from President is
desirable
❖ +
❖ Congress may not prohibit removal, it can limit
removal to where there is good cause
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 Impeachment
❖ POTUS, Vice POTUS, Federal judges & O cers of the
U.S can be impeached & removed from o ce for
treason, bribery, high crimes & misdemeanours

❖ Impeachment by House requires a majority vote &

conviction in Senate a two-thirds majority vote

❖ POTUS has absolute immunity in civil suits for damages

for any action while in o ce

❖ POTUS has the executive privilege for presidential

papers & conversation

❖ However, such a privilege may yield to other important

government interest
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 Pardon power Art2§2cl1

❖ President has the power to pardon those accused &

convicted of federal crimes, o ences against the United
States

❖ Such a pardon power may not bene t to an individual

whose impeachment is underway

❖ Can be issued from the time the o ence is committed

❖ It wipes out all legal e ects of a conviction

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FEDERAL JUDICIAL POWER

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Standing to bring a case to federal court
❖ Standing is a legally protectable interest of an
individual that entitles him to bring the controversy
before the court.

❖ To have standing the Plainti must show:

❖ He has been personally injured or will be

❖ the Defendant cause the injury and that a ruling

will redress it

❖ The case is not moot, that is no events after the

lawsuit have ended the Plainti injury
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Federal courts won’t adjudicate political questions

❖ The separation of powers implies that the federal

judiciary will not adjudicate political questions

❖ What’s a political questions ? Questions involving:

❖ The Republican Form of Government

❖ Challenges to President’s conduct of foreign policy

❖ Challenges to impeachment and removal process

❖ Challenges to partisan gerrymandering

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 USSC original subject matter jurisdiction
❖ in cases a ecting Ambassadors, public ministers, consuls

❖ in cases where a state is a party (subject to the 11th).

❖ The 11th Amendment precludes a US or non US citizen from

seeking damages or injunctive relief against a state in a federal
court.

❖ But The 11th A does not bar:

❖ suits against state o cials where the latter are allegedly acting
contrary to the US C°, federal law, or a US treaty.

❖ suits against a subdivision of a state.

❖ suits against a state which have been consented to

❖ suits authorized by Congress pursuant to Section 5 of the 14th

Amendment. 53
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USSC appellate jurisdiction by writ of certiorari

❖ The Supreme Court has discretionary jurisdiction to hear those

cases

❖ 1) cases from state courts where Constitutionality of Federal

law, Constitutionality of treaty, constitutionality of State Statute
is in issue OR where State Law purportedly violates Federal law

❖ Review of State Court Decisions : Decision must not be on

independent and adequate state law ground

❖ If State Court decision rests on two ground (State &

Federal), if the Supreme Court reversal of federal law
ground would not change the result in the case, the
Supreme Court will not hear it

❖ 2) cases from U.S. court of appeals.

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USSC appellate jurisdiction by appeal

❖ Those cases must be heard

❖ These cases are limited to decisions of three-judge

federal district courts which involve injunctive relief.

❖ The U.S Court of appeal is skipped

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How to interpret the
constitution?

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 Originalism
❖ View that judges deciding constitutional issues should con ne
themselves to enforcing norms that are stated or clearly implicit in the
constitution

❖ Expressly stated or clearly intended

❖ If the constitution is silent, it is for the legislature, namely Congress to
decide the law

❖ The Constitution’s meaning of a provision was set when it was

adopted & it can be changed solely by amendment

❖ No basis for ruling unconstitutional Connecticut law that prohibited

the use of contraceptive (Griswold v. Connecticut) ; No basis for
striking down a Texas law that prohibited abortion (Roe v. Wade 1973)

❖ Constitution is silent about reproductive freedom & no evidence of

framers’ intent > matter to state legislatures
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 Non originalism
❖ “Courts should go beyond that set of references & enforce
norms that cannot be discovered within the 4 corners of the
document”

❖ Constitution’s meaning can evolve by amendment as well as

by interpretation
❖ Constitution is a set of values that have to be adapted to
present day circumstances

❖ Ok to rule unconstitutional Connecticut law that prohibited the

use of contraceptive (Griswold v. Connecticut); Ok to strike
down a Texas law that prohibited abortion (Roe v. Wade 1973)

❖ It is consistent to decide that the word liberty includes a right

of privacy that encompasses reproductive freedom
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What’s your take on it ?

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How to interpret the U.S Constitution & Federal Statutes
Text based-approach

❖ Originalism : the interpretation

of the U.S Constitution should
be based on what reasonable
persons living at the time of its
adoption would have
understood as the ordinary
meaning of the text

❖ Plain meaning of words

❖ No overinterpretation

❖ Textual approach is paramount

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 How to interpret the U.S Constitution & Statutes:

Purpose based-approach
❖ Judicial consideration of a statute
helps to further the constitution’s
democratic goals

❖ Helps individual statutes work

better for those whom Congress
intended to help

❖ Emphasizing purpose will help

Congress better accomplish its
own legislative work

❖ Permits interpretation of social

values enshrined in the U.S
Constitution to present day
circumstances (Electricity Internet,
patent, abortion)
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Judicial review

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 Judicial review
❖ Article III§1 vests the judicial power of
the U.S in the Supreme Court

❖ Article III§2 lists a set of competences

❖ But the Constitution does not designate

the Supreme Court as a constitutional
court

❖ How therefore did it begin ?

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 Judicial review II

❖ The judiciary Act of 1789 enabled USSC to review state

legislation for its conformity with the Federal
Constitution

❖ In Marbury v. Madison, 1803, the court extended its

review function to include federal law

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 Marbury v. Madison
❖ Most important decision of U.S Constitutional law

❖ Established the authority for the judiciary to review both

the constitutionality of executive & legislative acts

❖ SCOTUS held that it could not hear Marbury’s claim as a

matter of original jurisdiction, although the Judiciary Act
of 1789, (federal law) allowed it, for this provision was
unconstitutional

❖ That provision of the judiciary act was unconstitutional

because Congress (enacting federal law) could not allow
original jurisdiction beyond the situations enumerated in
the Constitution.
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Federalist v. Antifederalist

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 Marbury v. Madison
❖ Held: The Judiciary Act, (federal law) enacted by Congress
authorised to order delivery of Marbury’s commission as
justice of peace (mandamus) on original jurisdiction

❖ Held 2: But Congress could not grant original jurisdiction by

Statute to SCOTUS beyond what was written in Article III of
the U.S Constitution.

❖ In other words, It was unconstitutional for Congress to

enlarge the original jurisdiction of SCOTUS by statute,
beyond the text of the Constitution.

❖ Art III as to SCOTUS’ original jurisdiction is a ceiling.

Treating it as a oor, a minimum that can be enlarged by
Congress is unconstitutional.
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 Marbury v. Madison: Main

Were a Federal statute to be

inconsistent with the Federal
constitution, the judiciary
would be entitled to strike
down the former

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Judicial review: Marshall’s justi cation

❖ “Constitution imposes limits on

government powers ; these
limits are meaningless unless
subject to judicial
enforcement”

❖ Quotes Hamilton: “The powers

of the legislature are de ned &
limited; and that those limits
may not be mistaken of
forgotten, the constitution is
written”

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 Judicial review: Marshall’s justi cation

❖ “It is emphatically the province

& duty of the judicial
department to say what the
law is”

❖ Then argues: “Authority to

decide “cases” arising under
the Constitution implies the
power to declare
unconstitutional laws
con icting with the basic legal
charter.

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 Federalist 77-78 basis for judicial review

❖ Every act of a delegated

authority, contrary to the tenor
of the commission under
which it is exercised, is void

❖ To deny this, would be to

a rm, that the deputy is
greater than his principal (…)

❖ That the representatives of the

people are superior to the
people themselves

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 Judicial review : extent

❖ In 1952, the USSC declared

emergency measures decreed by
P r e s i d e n t Tr u m a n t o b e a n
unconstitutional exercise of legislative
competence.

❖ In 1974, USSC asserted its power to

review presidential executive action
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Constitutional guarantees

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The Bill of rights, authored by Madison

❖ Antifederalists think the U.S

Constitution is not su cient to
protect basic individual rights
from the dangerousness of a
central government

❖ To secure those rights against

the Federal Government a Bill of
rights is needed

❖ Antifederalists: the core power

should be vested in the States
not the U.S Government

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 The bill of rights
❖ I: protects freedom of religion, freedom of speech & the
press , right of the people to assemble

❖ II: right of the people to keep & bear arms

❖ IV: protection against unreasonable search & seizures;

warrant to proceed to those search & seizures must be
based upon probable cause & describe place to be
searched, persons or things to be seized

❖ V: right to indictment by a grand Jury; prohibition

against double jeopardy; privilege against self
incrimination; due process of law
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 The bill of rights
❖ VI: right to a speedy & public trial; impartial jury; right to
be informed of the nature & cause of the accusation ;
right to be confronted with accusing witness ; right to
counsel

❖ VII: right of trial by Jury in some civil suits depending on

the amount in controversy

❖ VIII: protection against cruel & unusual punishments;

protection against e ective bail

❖ X: powers not delegated to the U.S are reserved to the

States & the people.
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 Constitutional guarantees > States
❖ By the doctrine of incorporation, the constitutional
guarantees, which originally limited the federal government
were extended to the States

❖ Consequently, the guarantees govern criminal procedure in

States, which accounts for 95% of all criminal prosecutions

❖ Therefore in state proceedings, the following guarantees

apply

❖ 4th>14th protection against unlawful search & seizure;

exclusion of evidence seized in violation of these
requirements
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Constitutional guarantees > States II

❖ 5th>14th Privilege against self incrimination; guarantee

against double jeopardy

❖ 6th>14th Right to counsel; to confront the adverse

witness & cross examine her; right to a public & speedy
trial; right to have the criminal liability decided by a jury ;
right to obtain information about the indictment

❖ Notwithstanding, the mandate of indictment by a grand

jury has not been extended to the States. Accordingly,
State practice vary on how an o ender must be
indicted.
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Criminal procedure

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The criminal proceeding

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 The criminal proceeding

❖ Investigative phase

❖ The pre-trial phase

❖ The trial

❖ Sentencing

❖ Appeals

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The investigative phase

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 The investigative phase: arrest
❖ The criminal proceeding starts with the arrest of the
suspect

❖ The 4th Amendment requires a written warrant for the

arrest of a person. It must be based upon probable
cause that the accused has committed the particular
o ense.

❖ The probable cause requirement applies as well to

search of the premises as well as to seizures of property
or other evidence.

❖ An arrest in public places is possible since the 4th aims

at protecting an individual’s private sphere (Watson v. US
1976) 83
ff
 The investigative phase: arrest II
❖ In contrast, warrantless arrests in private places are not permitted unless it
ts an exception (Payton v. N.Y 1980)

❖ If an arrest is unsupported by warrant, the suspect has a right to appear

before a magistrate as soon as possible (a 48-hour period is constitutional),
who will determine whether there was a probable cause for arrest

❖ Absent a warrant, the police may stop persons for questioning & brie y
searching them if they have reason to believe that the person is dangerous,
a crime is being committed, or is imminent. Investigative stop = Terry Stop
(Terry v. Ohio 1968)
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 The investigative phase: search & seizure
❖ 4th A protects against unreasonable searches & seizures in
the private sphere.

❖ As a result, neither areas accessible or visible to the public

(open elds D) nor things seen from the air or conversation
overheard without di culty (plain view) fall under the
protection. Therefore no warrant is needed

❖ In contrast, electronic surveillance & the monitoring of

telephone calls fall within the protection of the 4th.

❖ Therefore a warrant based on probable cause is needed for

purposes of discovery of the evidence.

❖ According to the “automobile exception”, search of a vehicle

is permissible without a warrant if there’s probable cause that
the vehicle, its passengers, were
85 involved in criminal activities
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 Miranda rights 86

❖ In Miranda v. Arizona, (1966) USSC gave concrete protection to the

guarantees provided for by the 5th amendment (right against self-
incrimination) & 6th (right to counsel)

❖ It was ruled that voluntary statements or confessions made by a suspect in

police custody may not be used against him in a criminal prosecution unless
he had been informed of his miranda rights before making such statements.

❖ The aim is to protect a suspect from making involuntary statements while in

police custody.

❖ Therefore, the suspect had to be informed of his rights as follows:

❖ 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 an attorney.

❖ If you cannot a ord an attorney, one will be appointed for you.

ff
 Right to counsel >6th
❖ In all criminal prosecutions, the accused shall enjoy the
right(…) to have the assistance of Counsel for his
defence. (6th Amendment 1791)

❖ The 6th Amendment applies to the trial itself, but also to

the proceedings leading to it.

❖ The right to counsel exists in preliminary hearings held

before a magistrate

❖ After indictment, witness testimony is inadmissible if he

did not have an opportunity to involve counsel

87
 Right to a speedy trial > 6th
❖ 1. It guarantees a criminal D the right to a speedy trial.

❖ 1-6th Amendment has been made applicable to the

States.

❖ 2- Violation results in a complete dismissal of the

charges against the D. (Strunk v. US1973).

❖ 3- When does the 6th A attach :

❖ 1. Charges led against a D.

❖ 2. D has been arrested

❖ 3. Long delay between arrest and indictment.

88
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 Exclusionary rule
❖ Under the exclusionary rule, statements, confessions, evidence
obtained in violation of the 4,5,6 are inadmissible at trial

❖ However, when the police acted in good faith based on case

law, statute, defective search warrant evidence can be admitted

❖ Under “the fruit of the poisonous tree” doctrine, all evidence

whose obtention derives from illegal activity must be excluded

❖ However, when it was inevitable the fruit would have been

discovered in other ways (Nix v. Williams) or was obtained from
an independent source (Murray v. U.S), evidence’s admissibility
is restored.

❖ The exception to the fruit of the poisonous tree doesn’t apply

when in presence of Miranda violations. 89
The Pre-trial phase

90
 Initial appearance & bail
❖ At the initial appearance, the accused must be informed of his
rights and a date will be set for the next hearing.
❖ After the initial appearance, a bail hearing is scheduled. The
accused will either be released subject to bail or detained on
remand (when there’s reason to fear the accused will leave
jurisdiction, tamper with evidence, resume criminal acts)
❖ Bail is intended to ensure the accused’s attendance at trial
❖ 8th Amendment prohibits excessive bail (a sum beyond what’s
necessary to secure the accused’s presence at trial)
❖ Prohibition of excessive bail is applicable to State criminal
proceedings through incorporation in the 14th Amendment
(Schilb v. Kuebel 1971) 91

 Plea bargaining
❖ In exchange for a guilty plea from the accused, the prosecutor may
moderate the type and degree of offense for which the accused will be
prosecuted
❖ A plea bargaining may lead to a sentence on “probation” which results in no
immediate imprisonment
❖ The plea may lead to a sentence envisioning early release ‘parole’
❖ The judge must be informed and approve the bargain as to the propose
sentence
❖ A guilty plea must be voluntary and not obtained under duress. In 80% of
felony cases defendants accept guilty pleas.
❖ Representation by an attorney and approval of the plea by the judge help
ensure that the plea was voluntary.
❖ If the plea is accepted, the defendant was waived his right to trial, the case
doesn’t go to trial. 92

 Indictment (grand jury)

❖ 5th Amendment requires grand jury for federal prosecutions
❖ USSC has declined to incorporate such a guarantee in the due process clause
of 14th.
❖ Consequently, states are free to impose or not the requirement of grand jury
for indictment. A majority of states require a grand jury to issue indictment
❖ A grand jury consists of 16-23 members and renders decisions with a majority
of 12 jurors or more depending on the number
❖ The procedure before the grand jury is not public, only the prosecutor is
present
❖ The prosecutor proposes the indictment, offers evidence, calls witnesses to
support the charges
❖ The grand jury assesses whether there is probable cause to believe that a
crime has been committed by the accused
93

The trial phase

94
 Arraignment
❖ The proceeding begins with the arraignment
❖ Arraignment is a formal reading of a criminal complaint in the
presence of the defendant to inform of the charges against
him/her.
❖ In response to arraignment, the accused is expected to decide
on a plea (usually guilty or not guilty).
❖ If the defendant enters a guilty plea, the court will prononce
him guilty and the sentencing process follows
❖ If he does not, a jury trial will follow
95

 The jury (petit jury)

❖ The jury hears evidence at trial, determines the facts of the

case, reaches a verdict.
❖ Prosecutor & defence counsel participate in the selection of a
jury that’s as objective & unbiased as possible.
❖ The 6th & 14th Amendment require that there be no
discrimination on the basis of race.
❖ When a jury has been selected, it will be informed & instructed
as to its activities

96

 The Jury II
❖ Judge instructs the jury on the law that they will apply to the
facts that they have found.
❖ Generally, each side drafts a set of jury instructions, which the
judge reviews
❖ The judge then drafts her own set & presents them to the
parties
❖ The jury should reach a verdict only on the basis of evidence
presented at the trial
❖ Procedural rules are intended to shield the jury from undue
in uence of the media
97
fl

 98

The trial
❖ Opening statement : the prosecution sums up the facts it intends
to use to show the defendant is guilty beyond a reasonable doubt
❖ The defence offers a counter-statement
❖ The testimony of witnesses is central. Physical evidence
(weapon) must be introduced into evidence by means of
testimony.
❖ The defendant may give testimony but may be subject to cross-
examination by the prosecutor but still may avoid cross
examination by invoking the 5th. No negative inference may be
drawn from this refusal.
❖ The defendant has the right to confront the adverse witnesses
and have them cross-examined by his defence counsel.

 The Trial admissible evidence

❖ Hearsay evidence (Out-of-court statements introduced to prove
the truth of the matter asserted) are usually inadmissible unless
an exception to hearsay rules applies.
❖ For instance what you have heard from others is inadmissible
❖ Persons with immunity may refuse to testify (spouses & persons
in possession of privileged information because of their
relationship to the defendant: physicians, lawyers, religious
ministers)
❖ Co-offenders may become witnesses for the prosecution, and
may be granted immunity
99

 The trial
❖ After the prosecution has stated its case, the defence might seek
dismissal of the case (motion to dismiss)
❖ Dismissal will be granted if the prosecution has not provided
suf cient proof to vindicate a guilty verdict ‘beyond a
reasonable doubt” or has failed to meet its burden of proof.
❖ In the absence of a dismissal, the evidentiary phase is
followed by the closing statements of the parties beginning
with the prosecutor
❖ The court then instructs the jury with respect to the legal
rules that applies.
❖ The Court may not comment on the facts or on the evidence
introduced by the parties 100
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 The trial: Burden of proof

❖ The party who bears the burden of proof must prove an
allegation or a defence. It consists of 2 components: the
burden of production and the burden of persuasion.
❖ The burden of production consists in the obligation to present
evidence to the jury (criminal) or the judge.
❖ The burden of persuasion lies in the obligation to convince the
judge or the jury of its claim in following a de ned standard
(preponderance of evidence or beyond a reasonable doubt).
❖ Whereas in a civil case the burden of proof falls under the
preponderance of evidence, in criminal law that standard is
much more demanding since the prosecution must prove
beyond a reasonable doubt. 101

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 The burden of proof II

❖ In a civil case the burden of proof falls under the
preponderance of evidence,
❖ In criminal law that standard is much more demanding since
the prosecution must prove beyond a reasonable doubt.
❖ Preponderance of evidence requires the petitioner to introduce
better evidence than the defence
❖ Proof beyond a reasonable doubt requires the prosecution to
establish that there is no probability that the defendant is
innocent. Such an exacting standard imposed on the
prosecution stems from the presumption of innocence, which is
guaranteed as part of the due process of law.
102

 103 The burden of proof III

❖ Circumstantial evidence is an indirect proof of a fact (Defendant’s ngerprint
or DNA on the crime scene; defendant’s DNA on the naked body of the victim)
❖ Direct evidence is a direct proof of a fact: an eyewitness testimony before the
Court is introduced as direct proof.
❖ To meet the burden of proof parties resort to inference and presumption.
❖ An inference is a deduction that the judge or jury may or may not make
from a known fact to an unknown fact.
❖ Similarly it obliges a jury to acquit an accused if the required burden of
persuasion has not been met in a criminal trial.
❖ A presumption is a conclusion that the judge or jury must make under de ned
circumstances. Accordingly, the presumption of innocence imposes to begin a
criminal trial without holding the defendant guilty.
❖ Similarly it compels a jury to acquit an accused if the required burden of
persuasion has not been met in a criminal trial.

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 The trial
❖ The jury deliberates in secret.
❖ A spokesperson selected by the members of the jury informs
the court of the verdict
❖ It may nd the defendant not guilty, guilty on all charges,
guilty of some of the charges
❖ As to federal offenses, both a guilty verdict & an acquittal
required the unanimous vote of a jury consisting of 12 people
❖ State law may provide that 9 or 10 jurors suf ce to support
verdict in serious crimes
104
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 Sentencing

❖ In Federal proceedings
❖ If the jury returns a guilty verdict, the court will then impose
the punishment (sentence the defendant)
❖ In State proceedings
❖ In the vast majority of states, after the jury returns a guilty
verdict, the Court will sentence the defendant.
❖ Only in some states, will the jury also decide the punishment
or participate in the sentencing process

105

 Sentencing: How to assess the appropriate sentence?

❖ In federal proceedings, to determine the appropriate sentence,
the Court will hear both the prosecutor & the defendant,
representatives of agencies of the prison system & of probation
board.
❖ Thereafter, the probation agency presents to the court a “pre-
sentence investigation”. This provides information as to the
social background of the offender, the circumstances
surrounding the offense, any earlier offenses. It concludes by
assessing the offender’s chances for rehabilitation &
recommending a penalty.
❖ Were the Defendant sentenced to probation, a new offense or
any violation of the conditions imposed would result in
revocation
106

Sentencing: How to assess the appropriate sentence? II

❖ Cumulative sentencing is usual

❖ The aim is to exclude early release on parole.
❖ With respect to federal proceedings, sentencing guidelines are
used to assure a degree of uniformity among federal courts in
the imposition of sentences

107

 Appeal

❖ All States provide for appel

❖ Federal procedure also provides for appeal & the convicted
defendant must be advised of his right to do so
❖ The Appeal is a mostly a written procedure
❖ Oral arguments, if any, deal exclusively with questions of law
❖ ‘lack of evidence to support the verdict, inadmissible evidence to
trial (a good attorney has to object in timely manner), errors in
the instruction of the jury as to legal principles

108

Due process

109
 Procedural Due Process (PDP)

❖ It is about checking whether

adequate procedures were
followed by government in the
process of depriving an
individual of life, liberty or
property
❖ A balancing test is required

110
 PDP: Test for determining what procedure is due

❖ Whenever the government deprives someone of life, liberty or

property, it has to provide adequate procedures in the process
of doing so
❖ A balancing test must therefore be complied with
❖ The importance of the interest to the individual &
❖ the ability of additional procedures to increase the accuracy
of fact- nding must be weighed
❖ AGAINST
❖ the Government interest in administrative ef ciency
111
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 Substantive Due Process (SDP)

❖ It is about asking whether the

government has adequate reasons to
dispose of a person’s life, liberty or property
❖ Economic liberties are protected under the
rational basis standard. It means that the
statute must be rationally related to a
legitimate government interest.
112

 3 levels of scrutiny for assessing the constitutionality

of a statute
❖ Rational basis means that the statute must be rationally
related to a legitimate government interest.
❖ Rational basis is the lowest level of scrutiny for
reviewing government’s actions.
❖ Intermediate scrutiny standard asks whether the statute is
substantially related to an important government
purpose
❖ Strict scrutiny test is the most exacting test
❖ A statute will be stricken down unless it is shown that the
statute is necessary to achieve a compelling
government interest.
113

 Levels of Scrutiny & BOP

❖ Rational basis (rationally related to a legitimate

government interest) > BOP on challenger
❖ Intermediate scrutiny (substantially related to an
important government purpose > BOP on Government
❖ Strict scrutiny (necessary to achieve a compelling
government purpose). > BOP on Government

114
 Rational Basis

❖ Rational basis
❖ (rationally related to a legitimate government interest)
❖ > BOP on challenger

115
 Intermediate scrutiny

❖ Intermediate scrutiny
❖ (substantially related to an important government
purpose
❖ > BOP on Government

116
 Strict scrutiny

❖ Strict scrutiny
❖ (necessary to achieve a compelling government
purpose).
❖ > Burden of proof (BOP) > on Government

117
 118

Let’s compare it with the European test

❖ 1.Is a fundamental right/liberty involved within ECHR?
❖ 2. Does the envisioned measure infringe with the exercice of a
fundamental right?
❖ 3. Are there clear, accessible legal grounds vindicating such an
infringement?
❖ 4. Does the infringement further a legitimate purpose : protection the
rights of others, public order, national safety
❖ 5. Is it necessary and proportionate in a democratic society ?
❖ Strictly speaking > balancing test
❖ Flexibility/ absence of predictability judicial certainty > yes but can be
limited trough case law, pre-existing cases
 Which level of scrutiny ?

❖ Laws affecting economic rights > RB

❖ Taking> speci c test> only for public use + just
compensation being paid.
❖ Contracts
❖ > State gov interference with private Contracts> IS
❖ > State gov interference with government contracts> SS

119
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Which level of scrutiny ? Privacy

❖ SS under SDP > Right to marry, procreate, custody of

children, keep family together, control raising of children, right
to purchase & use contraceptives,
❖ SS under EP > right to travel, right to vote, freedom of
Association, Free exercise of religion (law not burdening
religion is not a neutral law of general applicability) EP.

120

 SDP : Economic liberties

❖ Economic liberties are protected under the rational basis

standard.
❖ It means that the statute must be rationally related to a
legitimate government interest.

121

 SDP: Takings

❖ Takings: Government may take private property but only

for public use if it provides just compensation

122
 SDP: Contracts

❖ Art1§10cl1 of the U.S Constitution States:

❖ No state shall (…) pass any law impairing the obligation of
Contracts
❖ Hence, State interference with private contracts must meet an
intermediate scrutiny test
❖ State interference with government contracts must meet a
strict scrutiny test

123

Equal protection clause

124
 Equal protection

❖ Where: 14th Amendment to the U.S Constitution

❖ Aimed at ensuring no unjusti ed discrimination of any kind

125
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 Impairment of contracts

❖ No state may pass a law which substantially impairs

obligations of an outstanding contract.
❖ Art 1 Section 10 of the U.S Constitution

126

 Prohibition of post facto laws

❖ Applies to both Federal & State governments.

❖ Ex post facto laws are unconstitutional
❖ Apply only in criminal context

127

 Prohibition of Bill of Attainder

❖ Bill of attainder: legislative punishment without notice or

hearing. The prohibition against bill of attainder applies to
both Federal and State laws.

128
Art IV S 2, Privileges & immunities clause

❖ The privileges and immunities clause Art IV sect 2: It

precludes a state from discriminating against natural citizens
as to a fundamental right

❖ Unless the State has a substantial reason for subjecting

citizens of another state to a different treatment AND the
discrimination bears a substantial relationship to that
objective (SCNH v. Piper).

129

Priviles & Immunities clause of the 14th

❖ It precludes states from impairing an individual’s rights of

national citizenship.
❖ The aspects of US citizenship protected by The privilege and
Immunity Clause of the 14th A include the right to :
❖ 1 Petition Congress 2 Peaceably assemble for the purpose of
discussing national issues 3 use navigable waterways 4 travel
across interstate lines 5 vote in federal election 6 utilize the writ
of habeas corpus 7 claim the bene ts of US treaties made with
countries

130

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Business law

131
Book one : Agency law

132
 Fiduciary relationship > Agency law
❖ Fiduciary relationship: one person places complete confidence in another in
regard to a particular transaction or one”s general affairs or business. The
relationship is not necessarily formally or legally established (Trust) but can
be one of moral or personnel responsibility.
❖ In a fiduciary relationship, a person undertakes to act on behalf of for the
benefit of another. FI > A trustee for the beneficiary
❖ Agency ? > Fiduciary & consensual relationship between 2 persons, where
one person (A= agent) acts on behalf of the other person (P= principal) &
where the agent (A) can form legal relationship on behalf of the principal (P)
❖ Fiduciary duty : duty arising from the trust & confidence placed in the
fiduciary by those on whose behalf & for whose benefit he acts.
❖ Agent>duty of loyalty to P: must act solely for the benefit of P, not in his
interest or that of a 1/3 party
❖ Agent>duty of obedience to P: follow all lawful & clearly stated instructions
of the principal. 133

 AGENCY LAW
❖ Restatement (second) of agency 1958
❖ “Agency results from the manifestation of consent by one person to
another that the other shall act on his behalf & subject to her control & consent by
the other so to act”
❖ Consent by P that A will act on P’s behalf & subject to his control, and consent
by A so to act
❖ 1) Agreement
❖ 2) Will act on behalf
❖ 3) Subject to control
❖ White v. Thomas, Ark. App 1991: Bradford asks secretary Betty to bid for a piece
of Land on his behalf at an auction. By agreeing, she becomes his agent > She
owes him fiduciary duties > if Betty makes a bid within the scope of her
authorisation, he will be bound.
❖ Fiduciary duties include loyalty & reasonable care. Fiduciary’s actions are
performed for the advantage of the beneficiary. 134

 Restatement 2nd of agency law

Servant
right to control physical conduct
Binds Principal in contracts & tort

Agent
1) agreement
2) on behalf
3) subject to control Independent contractor
no right to control physical conduct
Binds principal in contracts

❖ Hired help
Independent contractor

Non Agent

Other

135
 Restatement 2nd of agency law
❖ Independent contractor > Non agent. Did not agree will act on
your behalf & subject to your control.
❖ Agent > Servant = Principal can tell you what to do & how (FI:
Company’s VP to Chauffeur). Full-time employees.
❖ Agent > Independent contractor > Principal can tell you what to
do but IC has substantial discretion as to when & how = Person
who is not subject to another’s right to control as to physical
conduct (FI: Outside counsel, taxi driver). Skilled, irregular
workers.
❖ Why does it matter?
❖ Both types of agents can bind their principals in contract.
❖ Only servants bind their principals in tort.
136

 Agents = Servant v. Ind contractor

❖ Courts will call someone your servant if it makes

sense for you to control him.
❖ Principal bound in contracts & torts.
❖ Courts will call someone your independent
contractor, if it does not make sense for you to
control him.
❖ Principal bound in contracts.
137

 Non agents: Independent contractor.

❖ An independent contractor may be your agent or

not.
❖ Criterion for departing ? Whether deal negotiated
specified that the person will act on your behalf &
subject to your control ?
❖ If so > agent-type independent contractor
(Principal bound in contracts)
❖ If not >non-agent independent contractor
(Principal not bound in contract).
138

If your chauffer hits a pedestrian,

does the principal have to pay?
What about your cab driver, taking
you to work ?

139

Case-law’s very lenient approach of agency. Gorton v. Doty

❖ Gorton v. Doty, Idaho, 1937. High school’s teacher Doty, lends her car
to football’s team coach to take the team to an away game.
❖ Lest High School students crash her car, she asked coach to drive
her car. Too bad, coach crashes her car.
❖ The father of one of the players in the accident sues Doty on the
theory that the coach has acted as Doty’s agent. The court found
for the Plaintiff (injured player’s father). How? The Court
characterized the stipulation that he not let the students drive the
car as evidence of her control. However, Doty never asked coach
to act on her behalf ; nor coach ever agreed to act on her behalf.
❖ Takeaway? Very loose appreciation of the “on your behalf &
subject to your control” requirement in order to enable the injured
player’s father recover on Doty’s insurance policy.
140

Case-law’s very lenient approach of agency. Jenson Farms v. Cargill, Inc

❖ Warren operates a grain elevator, buys grain from farmers for resale.
❖ Cargill finances Warren’s operations. Both Warren & Cargill appeared
on drafts that warren dispersed. Cargill had to approve every
expenditure made by Warren over $5000; any stock sale or dividends.
Warren had to explain Cargill the reason for withdrawals on the
account. Warren sold a majority of its grain to Warren.
❖ Warren began having financial troubles. Group of individuals
(Plaintiffs started questioning the ability of Warren to make payments
but Cargill reassured them
❖ Warren is forced to close and owes Plaintiffs $2M. Ps brought suit
against both Warren & Cargill.
❖ Issue: Whether Cargill, through control & influence over Warren is
liable as Principal ?
141

 Case-law’s very lenient approach of agency. Jenson Farms v. Cargill, Inc

❖ Holding: Cargill is warren’s principal & therefore liable for the damages
sustained by the Ps because a) Warren consented to carry out the
changes & policies suggested by Cargill & b) the interference of Cargill
in Warren’s internal operations.
❖ Takeaway: although no formal contract of agency was ever concluded
between Cargill & warren & each separate action could fall under a buyer
seller relationship, the court ruled that a fiduciary agency relationship
existed. The court considered the factors as a whole, not separately,
focused on daily operations & control rather than formal covenants.
❖ An agency relationship requires only a “manifestation of consent by one
person to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act”
❖ The fact that no contract to such effect was ever formed nor no intent
of the parties to be bound by the legal relationship existed is not
relevant. 142

 Authority : Requirement for imposing contractual liability on Ppal

❖ Actual express authority : Principal tells the agent to do something=
❖ P tells A to offer up to $4000 for the falcon to T > provided A
bids below $4000 she is bound. Rest 2nd §26.
❖ Actual implied authority : P tells A to offer up to $4000 for the falcon
to T. But T is hard to follow. A therefore tells cab driver to tail (T)
for an extra $70. Because A needs to pay the money to fulfill his
assignment, P is liable for the extra $70 on Actual implied authority
grounds. Restatement 2nd §35
❖ Apparent authority: Principal tells a 1/3 party that the agent has
authority.
❖ P tells A to offer T no more than $4000 but P assures T that A
speaks on her behalf> without telling limitation to T > apparent
Authority. P bound $4001 not by actual authority but by apparent
authority
143

 144

Ratification
❖ Sometimes a P ratifies an unauthorised action after a fact.
❖ FI>P hires A to obtain the bird from T > authorises him to pay up to $5000. A
discovers that T has the bird but will not sell it for less than $6000.
❖ = no apparent authority, no actual authority, no general agent.
❖ A tells P for the $6000 but not for the additional $2000 for paying the accompanying
letters. P accepts on those terms.
❖ Is P bound for the letters? Since P did not know all relevant materials terms she is not
bound ; hence could not ratify what she did not know.
❖ Upon learning of the $2000 requirement she can rescind her ratification or accept the
contract in whole.

 145
Ratification II
❖ A P ratifies a contract when :
❖ 1) someone purports to act on behalf of the principal &
❖ 2) that principal could have authorized the person’s action but did not &
❖ 3) upon learning of the action, the principal either indicates that he will treat them as
authorized a) or does sth that makes sense only if decided to treat them as authorized
b).
❖ Ratification > Effect? Ratification relates back to the original contractual date.
❖ Adoption > Effect? Adoption generates a new contract that dates from the time the
principal adopted it.

 Estoppel

❖ Estoppel: notwithstanding the law of agency, when courts invoke the estoppel, they
declare the defendants are liable.
❖ Hoddeson (P) brought an action against (D) furniture store, Koos Bros when D refused to
reimburse P for money she gave without receipt to an alleged salesman (Imposter) at D’s
store. Alleged Salesman said since it was out of stock he would take the cash & have the
furniture delivered to her home later.
❖ Hoddeson case: Rather than agency or contract, the court turned instead to tort. Risk of
fraud? The store by choosing to sell furniture incurred a duty on behalf of its customers
to use reasonable care and vigilance to protect them from loss occasioned by the deceptions of apparent
salesman.
❖ Absent proof of an agency relationship, D still had a duty of care to P to ensure clients
are protected from loss occasioned by deceptions of apparent salesman.
146

 Estopell 2

❖ Majestic reality Case: City of Patterson liable for an accident caused by an independent
contractor it has hired because the contractor was doing inherently dangerous work.
❖ Inherently dangerous actions cannot be delegated for their liability to a 1/3 party (IC here).
Toti was hired as (IC) to demolish several buildings near Ps (Majestic reality) to make
room for a parking lot.
❖ Parking authority is liable for IC’s negligence because the demolition so inherently dangerous that
liability cannot be delegated.
❖ Reminder : Under classic agency law, not a servant acting within the scope his employment
> no liability in torts.
❖ But here as long as inherently dangerous>liable for torts committed by the firm in
achieving this task.
147

 148
Respondent superior D° Principal
liable for agent’s wrong
❖ Tort law, the law holds the principal liable where a servant 1) (act on behalf, subject to your
control, right to control physical conduct) commits a wrong within the scope of its
employment.2)
❖ Respondent superior D°: does not apply to independent contractor for one is liable only
if he has control over another.
❖ FYI: can’t have control on lawyers since they work for multiple clients at the same
moment and bring an expertise beyond the ken of most clients.
❖ Who is an agent? Conoco A servant is a variety of agent, therefore Conoco was liable
only if they A & Conoco P had agreed work on Conoco’s behalf, subject to its control.
According to the Contract Conoco & its employees were completely independent.

 The Franchise puzzle : how to assess control?

❖ In conoco, after reading the franchise agreement the court held that the parties did not
intend an agency relation. But Conoco may be the exception. Conoco Test > Content of
the agreement.
❖ In Humble : laundry list approach, the Franchisor held liable because the gas company set
the station hours, operating costs
❖ In Hoover, the operator set his own hours, sold non-franchised products as well as
Franchised ones but retained “overall risk of profit and loss”.
❖ In murphy v Holiday Inn, overriding the Conoco test of the content of the agreement, the Court
rejected Petitioner’s claim only after finding that Holiday had no control over the day-to-
day operation” of the motel.
❖ In Miller v MacDonald's: Franchise contract states local investors are not McDonald’s
agents. However, the fact McDo dictated the way the restaurants operated, made local
employees McDo’s servants. Casuistic approach.
149

 150 Scope of employment. Requirement for respondent superior D in tort law

❖ Reminder : Principals are liable for torts committed by their servants acting within the scope of
their employment.
❖ Scope of employment ?
❖ kind of work employed to perform
❖ tort occurs within the authorized time & space limits
❖ Purpose to serve the master
❖ If force intentionally used, it was not unexpectable by the master.
❖ Lyon v Carey: Carey -trucking employee- after delivery of the ordered mattress demanded
the unpaid balance in cash. Customer Lyon refused. Then Carey threw her on the bed held
a knife on her throat and raped her. Trucking firm responsible? Servant ? yes. Within scope
of employment ? Purpose of serving the company? yes & force was not unexpectable

Book two : Corporations

151

Chapter O : Implications of the

corporate form

152
 Agency : fiduciary duties: Agent owes FD to Principal

❖ Agency : fiduciary duties (Loyalty & care)

❖ Duty of loyalty (Restatement 2nd §387): Agent is subject to a duty to his principal to act
solely for the benefit of the principal in all matters connected to his agency.
❖ Duty of care (Restatement 2nd §379): a paid agent is subject to a duty to the principal to
act with standard care & with the skill which is standard in the locality for the kind
of work which is employed to perform & in addition to exercise any special skill that
he has.

153

 IMPLICATIONS OF THE CORPORATE FORM

❖ Prof D. Hynes & M. Lowenstein : (On partnership)

❖ A partnership cannot sue or be sued because it is not a person & only legal persons can be
named as parties to litigation. With some exceptions, suits by a partnership had to be brought
in the names of all partners & all parterres had to be joined as defendants in litigation.
❖ Corporate law eliminates those ambiguities.
❖ One can never find himself in a corporation. One only becomes part of a
corporation if he/she deliberately incorporates the firm & register with the
state.
❖ Incorporation > creates new legal entity, can borrow money, commit torts,
incur legal obligations; can sell property; be wronged; obtain legal rights. The
corp can sue & be sued.
154

 IMPLICATIONS OF THE CORPORATE FORM : LEGAL EFFECTS

❖ After incorporating, the legal entity incurs obligations & obtains rights. (Distinct entity
from the founders/shareholders).
❖ Relations of the many people associated with this new corporation are governed by agency
principles.
❖ Shareholders (SHs) pool their money 1), hire others to use the money in business ventures
2) they collect the receipts, pay the bills, split the remainder among themselves 3)
❖ Alternative : a) If the firm does well, SH’s earn a high return.
❖ b) If the firm does poorly, SH’s lose their investment.
❖ Economics language: SH’s agree to be residual claimants.
❖ Perhaps SH’s are too many or know tool little about supervising firms? Whatever the
reason, these SHs elect others -or themselves- (directors) to look after the firm on their
behalf (SHs)
155

 IMPLICATIONS OF THE CORPORATE FORM : LEGAL EFFECTS II

❖ Directors act as direct agents of the corporation & indirect agents of the SHs
❖ Directors then hire others (officers, employees, stimes themselves) to run the firm on a
daily basis. Officers, employees too work as agents for the firm & its SHS.
❖ Since SHs are residual claimants (take whatever remains after Bill payements) courts reason that
officers, employees (agents) owe SHs (principals) fiduciary duties (Care & loyalty).
❖ In principle, Directors, officers, employees owe fiduciary duties (FD) to no one else.
❖ Directors, officers, employees are not entitled to fiduciary duties (FD). Indeed, the can
specify the terms of their own employment by contract as minutely as they wish.
❖ Directors, officers, employees do not owe any FD to lenders, contract claimants.

156

 IMPLICATIONS OF THE CORPORATE FORM : LEGAL EFFECTS III

❖ Courts require directors, officers, employees to maximise returns to the SHs. Why ?
Everyone else can negotiate specific contractual protections as minutely as they want but
them.
❖ Therefore, the job of the directors, officers, is :
❖ 1) to pay the contractual claimants exactly that for which they bargain
❖ 2) to leave everything else, (as much as possible) for the SHs.

157

 IMPLICATIONS OF THE CORPORATE FORM : TABLE OF CONTENTS

❖ Chapter 1: Shareholders & Litigation

❖ If a corporation obtains legal rights, it must enforce them itself. An investor, who suffers a loss

when the corp is wronged, incurs a derivative loss, that is not a loss on which the investor can sue.
❖ Any claim on the loss must be brought by the firm itself.

❖ Chapter 2: Shareholders & corporate purpose

❖ A corp is a legal entity distinct from its investors, courts, sometimes face dispute over the aims it

should pursue.
❖ Most investors seek to make money, but just can the firm deviate from that objective, & if so just

by how much?
❖ Chapter 3: Shareholders & corporate liability
❖ A corp incurs legal obligations > only it is liable on them. Investors are not liable on those

obligations. Firm’s stock become worthless > investors simply lose their investments, not liable for
corp’s unpaid debts.
❖ However, sometimes, courts override these principles? What factors can cause the court to do so ?

158

TORT LAW
 Negligence

❖ A plaintiff will succeed in a negligence claim on the condition that he

establishes:
❖ A) Defendant owed a duty of care
❖ B) Defendant breached that duty of care
❖ C) The breach was a but for cause or proximate cause of P’s injury
❖ D) Damage to P’s person or property resulted
 A- Defendant owed a duty of care

❖ An actor ordinarily has a duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm (Restatement 3d of Torts, Ali 2010)
❖ When a statute requires an actor to act for the protection of another, an
af rmative duty exists (Restatement 3d of Torts, Ali 2010)
❖ An actor in a special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the
relationship. (Restatement 3d of Torts, Ali 2010)
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 B- A breach of a duty
❖ Direct proof of breach of duty

- Breach of a duty of care is assessed under the reasonable person standard.

- Adults must act with due care, namely like a reasonable person under the same
circumstances
- Children must act with due care, namely like a child of like age, intelligence & experience.
- Professionals (doctors lawyers) are required to act with the due care customarily
exercised by members of that profession in those communities.
- In an emergency situation, the reasonableness standard must take into account that the
defendant had to react spontaneously to the circumstances.

Such a duty of care arises whenever one should foresee that his conduct causes an
unreasonable risk of harm to other individuals.
 C- Damages

❖ Damages consist of actual harm or injury, physical as well as mental.

❖ The Plaintiff has a duty to mitigate or avoid damages. Accordingly, he will
not be entitled to recover for damages that could have been mitigated or
averted.
❖ There can be no punitive damages in negligence claims.
 D- Causation
❖ To prevail, the Plaintiff must show that causation existed between the injury
sustained & the defendant’s act. He must prove both actual causation (but for
cause) and legal causation (proximate causation).
❖ Actual causation (but for cause): Defendant’s failure to act with due care must
have been the actual=but for cause (cause in the absence of which the damage
would not have occurred) of the incident which resulted in loss or harm to the
plaintiff.
❖ Legal causation (proximate causation): The harm suffered by the plaintiff must
have been reasonably foreseeable in light of the defendant’s allegedly negligent
conduct to establish proximate causation.
 II- Defence to negligence

❖ Assumption of risk
❖ A Plaintiff who voluntarily assumes a risk of harm stemming from the
negligent or reckless conduct of the defendant cannot recover such harm.
 Defence to negligence II

❖ Concurrent liability
❖ When the acts of multiple tortfeasors combine to bring about an indivisible
injury, each tortfeasor’s conduct is deemed to be an actual (but for) cause of
the plaintiff harm.
 Defence to negligence III

❖ Contributory negligence :
❖ Where the P’s failure to act with due care is to a certain extent responsible
for causing the incident in which he was harmed, the defendant has a
complete defense the Plaintiff’s negligence action.
❖ However contributory negligence is not a defense to intentional torts,
willful misconduct, or strict liability action
 Strict liability

❖ Strict liability: One who engages in an activity that is inherently dangerous

is liable for all injuries proximately caused by such an activity, absent a
showing of negligence.
❖ A defendant who carries on an abnormally dangerous activity will be subject
to strict liability for physical harm resulting from that activity (Restatement
3d of Torts §20)
 What’s an abnormally dangerous activity
❖ An abnormally dangerous activity consists of an activity that
❖ (1) Is not of common usage, and
❖ (2) Creates a foreseeable and highly signi cant risk of physical harm even when
reasonable care is exercised by all actors (Restatement 3d of Torts §20)
❖ Under strict liability a defendant will be held liable although no breach of duty has been
shown.
❖ Strict liability is imposed on actors that carry on abnormally dangerous activity:
❖ Those industries engaging in ultra hazardous activity, involving a substantial risk of
serious harm (Blasting, Highly ammable products, fumigating).
❖ Keepers of wild animals are held strictly liable for those damages caused by their animals
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CONTRACTS
 IS THERE A LEGALLY
ENFORCEABLE CONTRACT
Chapter one: consideration
173
Intro to consideration
• De nition: a legal detriment in exchange for a promise.

• Consideration: promisee su ers a legal detriment (gives up sthing of value

or limits his liberty) as part of a bargain, i.e in exchange for the promisor’s
promise. Consideration = (Bargain element + detriment element).

• Promisee’s legal detriment in return for promisor’s promise can consist of:

• An act ; A forbearance ; A return promise

• Act, forbearance, return promise by a 1/3 person (not the promisee)

• Promise, act delivered to a 1/3 person rather than to the promisor.

• Requirement of consideration renders promises to make gift unenforceable

• Renders contract modi cation to the sole bene t of one party unenforceable
(pre-existing duty scenario).
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BARGAIN ELEMENT:
Kirksey & Kirskey
Hamer v. Sidway
175
BARGAIN ELEMENT Kirksey & Hamer v. Sidway
• 1. Promises to make gifts are generally unenforceable, for lack of the bargain element. But once gift
made, can’t rescind for lack of consideration.

• If the promisor requires the promisee to meet certain conditions to receive the gift, there still won’t be
consideration = unenforceable (because the meeting of those conditions wasn’t bargain for). Promisor
to his widowed sister-in-law “I’ll give you a place to live if you will come down and see me” Kirkskey.

• Mere expenses (journey) are a legal detriment, but the bargain is lacking> merely a precondition.
• Mere altruistic pleasure derived from gift-giving is no bargain
• If, however, the promisor imposes a condition that bene ts him, then the bargain element is present.
Promisor is seeking to obtain sth as desirable > forbearance by the promisee

• Uncle promises nephew $5000 if the latter refrains from smoking, drinking, gambling until 21.
Nephew so obtains > bargain > uncle promises in exchange for promisee’s good behaviour. Hamer
v. Sidway

• Discount=Mixture bargain-gift > still a bargain > consideration is present > enforceable. Poussin
(1594-1616) for 40% of its market value to friend is an enforceable contract.
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176 BARGAIN ELEMENT
• 2. Sham/nominal consideration

• Nominal: While the deal appears to be supported by Cons°, Courts may reason
that the alleged Cons° was sham or nominal > no cons°.

• Uncle to nephew, “in consideration for $5 paid now, I promise to give you a car
worth §12,000 in 5 years from now.” Though $5 were given, courts will regard
such a transaction to constitute a sham cons° > unenforceable

• However, if cons° is deemed su cient, its adequacy is irrelevant. Same

example but §2,000 instead of §5.

• Non payment > can be indicative of an absence of bargain, but not always > fact-
speci c it could be real-bargain, no-nominal payment is recited and later absence
of payment.
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177
BARGAIN ELEMENT

• 3. Awareness of Promisee

• Reward > actor unaware but performs acts conditioning the reward > can’t
recover = promisee must be aware of promise, for acts performed by him to be
consideration for the promise.

• 4. Promise in exchange for previous detriment > No bargain, therefore no cons°

• Past consideration is no consideration >Promises to pay a pre-existing debt or

pay for services already received lack the bargain element, therefore no cons°
 DETRIMENT ELEMENT
Batsakis v. Demotsis
Gottlieb v. Tropicana Hotel

179
DETRIMENT ELEMENT
• The requirement of consideration necessitates the promisee to su er a detriment

• Detriment=Promisee must do something he doesn’t have to; refrain from doing something he’s
entitled to.

• a)Non-economic detriment su ces. “I’ll give you §4,000 if you don”t smoke or drink alcohol
for the next 4 years.”

• b)Adequacy of consideration isn’t checked as long as some detriment has been su ered.
Batsakis v. Demostis: During WWII, §25 now in return for $2,000 after constitutes cons°=
adequacy of consideration is irrelevant.

• Minor e orts OK: Courts won’t inquire into the adequacy of cons° entails that cons° can
take the form of a tiny bit e ort that has no nancial value.

• Gottlieb: Waiting in line at the casino, allowing Gottlieb’s patterns to be monitored is a

detriment that’s cons° for the Casino’s promise to pay the prize in case of a winning spin.

• Caveat: although minor e ort= legal detriment, extreme disparity in the exchange in value
may suggest absence of Bargain in which case there’d be no consideration>fact-speci c
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180
DETRIMENT ELEMENT
• c) Pre-existing duty: where a party promises or does what he was already legally obliged to
do or promises to abstain from/abstain from doing what he wasn’t legally entitled to do,
then no detriment was incurred > no consideration

• i) Modi cation: preexisting duty rule entails that where parties to an existing contract
agree to modify it for the sole bene t of one of them, consideration is lacking and
accordingly can’t be enforced at CL.

• ii) Exception for unanticipated circumstances if modify is fair & equitable under the
circumstances.

• FI: 10-year C, for $40,000 a year contractor promises to repaint a huge city building
with a high-quality paint supplied by contractor. 9 years into the C, the price of that
paint skyrockets over the market because of a change in legislation out of safety
concerns. City agrees to amend the contract to §46,000 for the last 2 years so that the
same level of pro t as was originally anticipated remains. Later, the city refuses to pay
the extra §6,000 on years 9,10. > Fair & equitable under the circumstances, Court will
likely oblige city to pay the extra $12,000.
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181
DETRIMENT ELEMENT
• iii) Extra duties: if the party who promises to do what he’s already obliged to do
assumes the slightest additional duties, or di erent duties, this does constitute
the required detriment.

• FI> Initial contract: contractor agrees to build a house for owner for §50,000

• Halfway, through the job contractor realises he’s losing money & threatens
to walk if owner doesn’t set a new price §58,000. In return for that
increase, contractor will change the ttings of the windows and heating
system, which will save the contractor money.

• Although the extra-duty is more burdensome to owner, most courts will

hold the change of speci cs as to windows & heating as consideration for
increase of §8,000.

• However, where the additional or ≠ duty is a mere pretense courts won’t

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182
DETRIMENT ELEMENT
• iv) Reward & bonuses: outside modi cation context, under the pre-existing
duty rule a promise to pay a reward or bonus won’t be enforceable if the
promisee is already under a legal obligation to perform the act.

• FI > Crime is committed in city X, which o ers $2000 for information leading
to arrest & conviction. John, police o cer employed by the city, has no right
to $2,000 after arresting a suspect who’s eventually convicted. > No
consideration for arresting and supplying the city with relevant info.

• V) UCC: Sales of goods: abolished the pre-existing duty rule. UCC 2-209:
“An agreement modifying a contract needs no cons° to be binding” provided
there’s good faith, any written modi cation clause must be complied with.

• Foakes v. Beer: preexisting duty rule renders unenforceable a creditor”s

promise not to require payment of the full debt. Similarly, unenforceable a
creditor’s promise to allow extra time to pay money. Ratio > debtor isn’t
promising sth is was not required to do.
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Illusory, alternative & implied promises
Wood v. Lucy, Lady Duff.

184
Illusory, alternatives, implied promises
• An illusory promise is not supported by consideration, and is therefore unenforceable.

• FI> Jon to Bob, ‘I’ll sell you as many X sunglasses at $5, up to 500 if you order within the next 4 weeks.”
Bob replies “Perfect, we have a deal”.

• 3 weeks after, Bob gives an order at $5 for 100 sunglasses. Jon refuses to sell, quoting a price
increase over the market. Enforceable?

• Bob hasn’t commit to anything > Bob’s promise is illusory, for it lacks consideration. Jon isn”t
bound.

• Right to terminate by giving simple notice at any time? Traditional common-law = there’s no cons°. Modern
common law = there is > implied obligation to give notice satis es the cons° requirement

• Implied promises : To avert striking down agreements due to lack of cons°, Courts look to implied
promises. Wood v. Lucy > Fashion designer gives individual exclusive right to sell the product made from
fashion designer’s designs. Individual promises to pay royalties an any product sold but the agreement
doesn’t require individual to male sales.

• Enforceable? Yes, for individual had impliedly promise reasonable e orts to market D’ designs, thereby
furnishing consideration
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Requirements & output contracts
186
Requirements & output contracts
• Requirement contract: seller will be the exclusive source of all the buyer’s requirements
for a particular type of item over a speci ed period of time.

• Traditional CL > requirements Contracts lack in consideration

• Today > requirement contracts are enforced on grounds that buyer has implicitly
promised to use his best e orts to generate a need for the goods.

• Output contract: buyer agrees to take all of seller’s output of a particular type of item.

• Output contracts are enforced as long as the seller has implicitly promised to attempt
to maintain his production at a reasonable level.

• UCC 2-306 validates requirements & output contracts:“A lawful agreement by either the
seller or the buyer for exclusive dealing in the kind of goods concerned imposes an
obligation by the seller to use best e orts to supply the goods & by the buyer to use
best e orts to promote their sale”.
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 How is the U.S. President elected ?

❖ Drafters were torn as to the proper way to elect the President

❖ Some proposed Direct election by the people ran the risk of populism.
❖ Others advocated a form of legislative election.
❖ Ultimately, a compromise was struck (Article 2 Section I of the U.S Constitution)
❖ electors in each State would elect the POTUS & VICE-POTUS.
❖ Each State would have a number of electoral votes roughly proportional to
its representation in the House & the Senate ; Electors couldn’t be members
of Congress
Justice Ketanji brown Jackson
Association Justice of the Supreme Court

Nominated by J. Biden on Feb 25, 2022

Con rmed by the US Senate on April 7, 2022

Sworn into of ce on June 30, 2022

Clerked for Justice Breyer, Harvard educated.

First black woman & rst former public

defender to serve on the Supreme Court
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Forthcoming Midterm election
 Relevant provisions : The House

❖ I section 2 “The House of Representatives shall be composed of Members

chosen every second Year by the People of the several States, and the Electors
in each State shall have the Quali cations requisite for Electors of the most
numerous Branch of the State Legislature”.
❖ 14th Amendment Section 2 “Representatives shall be apportioned among the
several States according to their respective numbers, counting the whole
number of persons in each State”
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 Relevant provisions : The Senate

❖ Art 1 section 3 cl 1 “The Senate of the United States shall be composed of two Senators
from each State, (…), for six Years; and each Senator shall have one Vote.
❖ 17th Amendment section 1 (1913) : "The Senate of the United States shall be composed
of two Senators from each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the quali cations
requisite for electors of the most numerous branch of the State legislatures”.

191

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 Which party is likely to win ? Why ?
❖ Republicans are projected to gain control of the house
❖ Democrats may retain control of the Senate
❖ The historical pattern is the following: the party that controls the white house
usually looses the midterm elections, especially in the House.
❖ 2002 was a signi cant exception but against the backdrop of 9/11
❖ Why does it matter?
❖ Both houses & presentment to pass Bills into Statutes
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 The end.
All the best of luck in the future