Assault is the intentional tort that permits a plaintiff to recover damages if another puts him in imminent fear of harmful of offensive contact battery.
Continue reading “ASSAULT”
The tort of civil battery, again an intentional tort, occurs when one “intents” that her act will bring about harmful or offensive contact with another and that harmful or offensive contact occur. An issue may arise in battery, as it may also in assault, as to whether the other party consented to the act, such as consenting to rough play, within the rules, in football.
Continue reading “Battery”
For many torts, it does not matter if the defendant acted with a desire to injure the plaintiff, or even thought he was doing a beneficial thing. The act and the injury together constitute the tort, irrespective of the defendant’s state of mind. Put another way, although these wrongs are described as “intentional”, what is meant is not that the defendant himself desired to harm the plaintiff. Again, he may even have wished to help. It is enough that he intended the act, although not necessarily the consequences, e.g., manipulating the broken arm of an ice skater, per an upcoming example, or “knew to a substantial certainty” that his conduct would manipulate the arm. To reiterate, with reference only to the physical act, the actor must have subjectively desired the result, or known to a substantial certainty it would occur, without reference to the results. Thus is a woman walking in the woods steps upon another’s property, she is liable in trespass (a tort covered later here), even though she did not desire to commit a trespass. The reason is that she purposefully took that trespassory step. This is to say, when she was walking, the motion of her legs and the forward shift in her body weight and her probable view of where she wanted to step suffice to show that she subjectively desired or knew to a substantial certainty where her next step would land. As we see, “intent” in tort refers tp the act, not the result.
Continue reading “THE MEANING OF “INTENT” IN TORT”
The upcoming two lectures address a subject that is sometimes defined by what it is not. Torts do not involve a contract, either oral or written. They do not involve a crime, and thus the government is not involved in bringing a criminal charge or in imposing criminal penalties. Torts are, instead, that body of law by which personswho has been wrongfully harmed or who have suffered loss (physically or otherwise) can themselves bring a claim to receive money damages in an amount that is a proxy for their harm. Although an award of money is seldom a truly satisfactory replacement for what the injured party has lost, it is most often the best remedy that the civil justice system has to offer. There may be, it should be noted, equitable remedies that don’t involve compensation, such as receiving a court-ordered injunction against the defendant ordering that an activity be stopped, or even not started.
Continue reading “Introduction”
THIS DEED made this 4th day of July, 2006, by and between BENJAMIN FRANKLIN, GRANTOR, and CP&L CORP., a North Carolina corporation, GRANTEE, whose address is: 1234 Power Blvd, Raleigh, NC (the designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context);
WHEREAS, GRANTOR OWNS THE REAL PROPERTY HEREINAFTER DESCRIBED AND WISHES TO SELL THE SAME TO GRANTEE; AND
WHEREAS, Grantor desires to effect such sale by conveying said real property to Grantee.
Continue reading “THE LAND TRANSACTION: CONVEYANCING & TITLE ASSURANCE”
BLACK’S LAW DICTIONARY (8TH ED. 2004)
A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usu[ally denominated] rent.
Continue reading “LANDLORD TENANT RELATIONS”
THE LAW OF ZONING (a/k/a legislative land use controls)
The idea of zoning relates to the laws of nuisance and servitudes in that all three areas involve some exertion of control over the manner in which land may be used. With zoning, the controls usually originate with a legislative body, and the regulations are intended to be both systematic and comprehensive – as opposed to relating to one or two isolated parcels of land. The regulation typically takes place at the county or local level via authorization from the state – with the ultimate authority to regulate derived from the state’s exercise of its police power.
Continue reading “LAND USE CONTROLS (PART III), AND GOVERNMENT TAKINGS”
Introductory Note: As with estates in land and future interests, we once again have an area of law with categories and accompanying variation in rules that govern (or result) from a given category. And like the area of estates in land, the system here is dictated more by historical precedent than function. The umbrella concept here is “servitudes”, which can be broken out into five types: easements, real covenants, equitable servitudes, licenses, and profits – as well as two less. The distinctions are not always clear (Note, for example, that the court in the first paragraph of the case below refers to a “scenic easement” protected by a “restrictive covenant. The modern trend is to harmonize the rules, requirements, etc. relating to servitudes, covenants, and easements, and the Restatement (Third) of Property, Servitudes (2000) goes a long way in that regard. The historical rules and distinctions, however, will remain relevant and fodder for 1L property courses for many decades to come, as judicial adoption of any new Restatement approach to an area of law can be a slow and uncertain process.
Continue reading “LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT”
The Law of Nuisance (a/k/a Judicial Zoning):
Courts will protect a property owner or occupant where a third party unreasonably interferes with that owner’s use and enjoyment of their land.
The actor’s state of mind need not be one of “intent” in the sense of acting with malice or with a desire to cause the harm. It is sometimes said, however, that the actor must intend to do the act or to bring about the conditions which ultimately cause the harm (or willfully fail to act where action is required). Most nuisances today are “intentional”, thus implicating the Restatement analysis set forth below. Of course, even if this were not the case, the conduct itself might be deemed negligent and thus result in liability under general tort standards (e.g., was the conduct negligent, reckless, or unreasonable). Perhaps the best way to alleviate confusion on this point (and as you read the material below) is to emphasize that nuisance is at its core a condition, and is most dependent upon the danger, interference, indecency, etc. – rather than upon the particular degree of care exhibited by the actor.
Continue reading “LAND USE CONTROLS (PART 1): BY THE COURTS”
As demonstrated by Gruen v. Gruen and the estates/future interest materials above, “ownership” can be divided temporally between present and future rights to possession. Ownership (whether present or future) can also be divided between multiple individuals holding the interest at the same time. Three primary forms of concurrent ownership typically covered in a 1L Property course are (i) tenancy in common; (ii) joint tenancy; and (iii) tenancy by the entireties. The forms are similar in several ways, but each also carries its own set of distinct legal rules and consequences.
Continue reading “CONCURRENT OWNERSHIP”
“Students often find this material confusing and bizarre.” Joseph William Singer, Professor of Law, Harvard University. I tend to agree, though it is certainly both teachable and comprehensible. Part of the difficulty lies in the fact that this system has evolved from deep historical roots that still influence the various categories and distinct rules that characterize this area of law. Despite the seeming archaic system and its many complexities, a court will essentially force disputed words of conveyance (i.e., transfer) to fit into one of these historical categories of estates, with particular legal consequences attaching to the label applied.
Continue reading “ESTATES IN LAND & FUTURE INTERESTS”
Adverse Possession: Normally, an unauthorized entry onto land owned by another constitutes a trespass. However, where the trespasser possesses anotherfs property for an uninterrupted statutory period and in a certain manner, the doctrine of adverse possession will effect a transfer of title to the owner of the land, to the possessor (formerly known as the gtrespasserh; now known as the gownerh).
Continue reading “ACQUISITION OF PROPERTY RIGHTS IN THAT WHIS IS ALREADY OWNED”
PIERSON V. POST: Mr. Post is hunting on public lands. He “scares up and begins chasing” a fox in full view of Pierson. Pierson, however, steps in and kills the fox, then takes it away. Post sues Pierson, and the court identifies the issue as whether or not Post had “such a right, or property in,” the fox as to make Pierson’s conduct wrongful. The court ultimately held for Pierson, concluding that Post lacked “possession” sufficient to give rise to property rights in the fox. This “rule of capture” case is used to demonstrate the importance and meaning of “possession” in property law, where “first in time” is often the governing principle.
Continue reading “ACQUISITION OF ORIGINAL PROPERTY RIGHTS – “FIRST IN TIME””
CONSIDER: What is “Property.” How do you come to “own” something, and why is ownership allotted to you and not some other claimant? If you do “own” something, so what?
Continue reading “THE MEANING OF “PROPERTY””
Law students are frequently surprised with modern Criminal Law case books. Often, they have had a semester of Torts or are taking Torts along side Criminal Law in their first year. In Torts, students initially learn elements of various causes of action. Thus, they may first study intentional torts, like assault (intentionally putting another in fear of an imminent battery), battery (an intentional unauthorized harmful or offensive touching of another) and the like. Most Criminal Law texts do not follow a similar pattern.
Continue reading “The Structure of Crimes”
Editors of modern Criminal Law case books are virtually unanimous in how they organize text material. Case books begin with an overview of the criminal justice system, including topics like burden of proof at trial, the presumption of innocence, and similar procedural concerns. That material provides helpful background to first year law students. After an introduction to criminal justice, most texts turn to the topic of punishment. That is, editors explore why we punish and whom we punish.
Continue reading “Why Do We Punish and Whom Should We Punish?”
The First Amendment to the Constitution guarantees freedom of speech and press, religious freedom and freedom from government establishing a state religion. Despite the Speech Clause’s prohibition on government imposing speech restrictions, it’s clear that government must be able to restrict speech in some ways. As legal doctrine has evolved, a key part of the Speech Clause has become the rule that government ordinarily cannot restrict speech because it disagrees with the content of that speech.
Continue reading “The First Amendment”
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Another important Fourteenth Amendment guarantee is the provision that no state shall “deprive any person of life, liberty or property without due process of law.” While you might think that the Due Process Clause requires only a fair procedure – i.e., “due process” – it has been interpreted to provide substantive protection for a set of basic rights, protecting those rights from impairment regardless of the process the government was willing to provide.
Washington v. Glucksberg
521 U.S. 702 (1997)
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Continue reading ““Substantive Due Process””
The Fourteenth Amendment to the Constitution is the source for many of our most important constitutional freedoms. One of the Fourteenth Amendment’s crucial provisions is its guarantee that no state shall deprive any person of the “equal protection of the laws.” The Equal Protection Clause has become a foundation for the Constitution’s commitment to equality. However, determining what constitutes “equal protection” has been difficult.
Continue reading “The Equal Protection Clause”
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The other great structural issue in Constitutional Law is federalism – the relationship between the federal government and the states. Many of the battles over federalism center on the amount of regulatory power that is invested in Congress. The most important congressional regulatory power is the power “to regulate commerce among the several states.” The following case recounts the history of “the Commerce Power” and reveals modern limits on that power.
UNITED STATES v. LOPEZ
514 U.S. 549 (1995)
Continue reading “Congressional Power to Regulate”
Another important separation of powers issue involves the power of the President. Article II of the Constitution, which deals with the President, is vague about the scope of presidential powers. This has led to attempts by Presidents to assert power that others argue does not rightly belong to them, as in the following case.
Continue reading “The Executive Power”
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One of the fundamental issues in Constitutional Law relates to the power of the three branches of the federal government – an issue known as the “separation of powers.” One of the main limits on the power of the federal courts is that they can only exert their power at the behest of a plaintiff who is properly before the court. The crucial inquiry here, explored in the following case, is whether the plaintiff has “standing” to sue.
Continue reading “The Judicial Power”
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As the party who initiates litigation, the plaintiff enjoys the privilege of choosing the forum that will adjudicate the dispute. But this right is not absolute. Congress has provided defendants in civil actions with a mechanism, called removal, to trump the plaintiff’s choice of a state court when the defendant prefers to have the case heard by a federal judge. Although unmentioned in the Constitution, removal has existed as a statutory phenomenon since the initial Judiciary Act of 1789.
Continue reading “Removal”
We already have seen, in the case of the statutory requirements of complete diversity (as interpreted by the Supreme Court) and a minimum amount in controversy (as expressly provided by Congress) for diversity actions, that Congress has not exercised the full measure of its constitutionally delegated authority to cede subject matter jurisdiction to the federal courts. Where Congress has chosen not to occupy the entire constitutionally sanctioned jurisdictional field, does or should this prevent the courts themselves from expanding upon their statutory jurisdiction? For example, suppose an employee who believes she has been the victim of sexual harassment brings a claim against her employer under the federal Civil Rights Act. Assuming that she and the employer are citizens of the same State, should she, nevertheless, be able, in that same lawsuit, to add a tort claim against the company for assault or intentional infliction of emotional distress? And what if she also wants to sue the supervisor who allegedly harassed her? To avoid filing two separate suits, can she add a tort claim against that supervisor in the action against the employer when she and the supervisor are not of diverse citizenship? Alternatively, if the employee is diverse from the company but not from the supervisor, can she bring tort claims for infliction of emotional distress against both of them in the same federal action? Finally, what would happen, jurisdictionally, if the employee sues only the employer and the employer seeks, in that same suit, to bring a state law claim for indemnity against the nondiverse offending supervisor?
Continue reading “Supplemental Jurisdiction”
As Article III, §2 reflects, the Framers of the Constitution intended for federal courts not to be limited to hearing only cases that arise under federal law. In addition to authorizing Congress to confer jurisdiction over disputes involving the United States, Ambassadors, Ministers and Consuls, and over admirality and maritime cases, the Constitution contemplates that federal courts could adjudicate purely state law disputes if the adverse parties are either (a) citizens of different states within the Union, (b) a State and a citizen of another State, (c) two separate States, or (d) any State or a citizen of any State and any foreign sovereign or a citizen of any foreign sovereign. Congress subsequently exercised this constitutionally delegated authority to create such pockets of jurisdiction when it passed legislation, now found at 28 U.S.C. §1332, which provides for federal subject matter jurisdiction on the basis of diversity of citizenship and alienage.
Continue reading “Diversity of Citizenship and Alienage”