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The Common Law

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					 Today:
    • Criminal Law
        • Basic characteristics, not list of specific
          crimes
        • Substance and procedure
    • Torts
        • Intentional torts
        • Negligence / strict liability
        • More detail

UT-Austin Edinburgh Summer Program 2005
            Civil Law vs. Criminal Law
    Civil law concerns the rights and liabilities
    between private parties; criminal law concerns
    those activities that society has outlawed.

     •   Procedure for criminal trial --
         government decides whether to
         prosecute; defendant has the right to a
         jury trial.
     •   In a criminal suit, the court determines
         the guilt, so that a punishment can be
         given.


UT-Austin Edinburgh Summer Program 2005
               Criminal Process

  •   Indictment -- if a grand jury (ordinary
      citizens) determines that there is
      probable cause to proceed to trial, the
      suspect is indicted (charged with the
      crime).

 •    Arraignment -- the indictment is read to
      the suspect, who then pleads guilty or
      not guilty to the charges.


UT-Austin Edinburgh Summer Program 2005
      The Prosecution’s Case
  •   Conduct Outlawed
      –The prosecution must show that the
       defendant’s alleged activity is indeed illegal.

  •   Burden of Proof
      –The jury must believe beyond a reasonable
        doubt in order to convict.
      – How does this compare to the standard in
        civil trials?
      –Why the higher standard?


UT-Austin Edinburgh Summer Program 2005
   What is the difference between a felony and
      a misdemeanor?

  A felony is a serious crime, with a sentence of
   one year or more in prison. A misdemeanor is
   less serious, often with a sentence of less than a
   year.
  Malum in se crimes vs. malum prohibitum crimes.

 Because legislatures can criminalize previously-
   legal and previously-accepted behavior, not all
   crimes are malum in se.


UT-Austin Edinburgh Summer Program 2005
          Classifications of Crimes
VIOLENT CRIME Physical injury, aggravated robbery
PUBLIC ORDER CRIME “victimless” crimes
PROPERTY CRIME        Nonviolent theft crimes, property
                       destruction crimes

WHITE COLLAR CRIME Sophisticated theft:
                             embezzlement, fraud,
                             insider trading
ORGANIZED CRIME RICO


UT-Austin Edinburgh Summer Program 2005
What is the purpose of criminal punishment?




UT-Austin Edinburgh Summer Program 2005
What is the purpose of criminal punishment?
  • Restraint -- to keep a violent criminal
    away from the rest of society.
  • Deterrence -- avoid future crimes, both
    by this criminal and by others “warned”
    by the punishment.
  • Retribution -- to give criminal a
    punishment equal to his crime.
  • Vengeance -- to make the criminal suffer.
  • Rehabilitation -- to provide training to
    allow the prisoner to return to normal life.

UT-Austin Edinburgh Summer Program 2005
  What distinguishes defendants who are
   criminally liable from those who are merely
   civilly liable?
     • Actus reus + Mens rea

  Can the same conduct result in both civil and
    criminal liability? How might conduct incur
    one form of liability but not the other?



UT-Austin Edinburgh Summer Program 2005
  Actus Reus (means “the guilty act”)

      –The prosecution must show that the
       defendant committed the act (not just talked
       about doing it).
      –Act need not be physical (conspiracy;
       omission).




UT-Austin Edinburgh Summer Program 2005
                  Mens Rea
  The defendant must have had a “guilty state
    of mind.” Origins in Constitution’s due
               process clause.

   • Can a corporation have a guilty state of
     mind? If so, how?
   • U.S. v. Hilton Hotels Corp.




UT-Austin Edinburgh Summer Program 2005
          Corporate Criminal Liability
   •   If someone commits a crime within the
       scope of his employment and to
       benefit the corporation, the company
       is liable.

   •   What if only one person commits the
       crime, and does so only once. Should
       the company be charged?




UT-Austin Edinburgh Summer Program 2005
          Corporate Criminal Liability
  Andersen Co. document shredding case:
  • Trial Judge told jury that Andersen’s criminal
    liability depended upon jury’s finding that at
    least one Andersen partner or employee had
    the requisite criminal intent.
  • And jurors need not agree about which
    Andersen partner or employee.




UT-Austin Edinburgh Summer Program 2005
          Corporate Criminal Liability

   •   Punishment
       – Fines -- appropriate since this hurts the
         profit.
       – Imprisonment? -- in the sense of closing
         down the company temporarily or
         permanently.

  What should companies do to guard against
   criminal liability?



UT-Austin Edinburgh Summer Program 2005
          Corporate Criminal Liability

Compliance programs -- if a company has a valid,
  functioning plan to prevent and detect criminal
  behavior, the judge must (according to Federal
  Sentencing Guidelines) reduce the penalty of a
  crime of an employee.

What goes into a company compliance program? If
  you were in charge of your company’s
  compliance program, what would you do?

If the company is convicted, can the individual
     employees be convicted too?

UT-Austin Edinburgh Summer Program 2005
                    Mens Rea
  The defendant must have had a “guilty state
    of mind.” Origins in Constitution’s due
               process clause.
  General vs. Specific Intent: what’s the difference?
      – General intent is required by most crimes;
        i.e. that the defendant intended to do the
        illegal act they are accused of doing.
      – Specific intent = intent to break the law or
        commit harm.
      – “knowingly” vs. “willfully”



UT-Austin Edinburgh Summer Program 2005
                     Mens Rea

  • Reckless or Negligent Conduct

  • Strict Liability
      – Certain actions don’t require a guilty state of
        mind, only proof that the defendant did the
        illegal action.
      – May be limited to misdemeanors




UT-Austin Edinburgh Summer Program 2005
       DISCUSSION: Mens Rea and
           Regulatory Crimes
 Securities crimes and tax code crimes are
   specific intent crimes. Why?
 Who decides what level of intent is required?
   Why make tax crimes or SEC crimes specific
   intent crimes?




UT-Austin Edinburgh Summer Program 2005
      DISCUSSION: Mens Rea and
          Regulatory Crimes
 “Public welfare offenses” and the “responsible
    corporate officer doctrine”:
 • U.S. v. Park
 • Should the defendant in Park have been
   convicted, in your opinion?
 • Do you believe that all regulatory crimes
   should be specific intent crimes? Why or why
   not?

UT-Austin Edinburgh Summer Program 2005
                 Defenses
 • Insanity
     –A defendant who can prove he was
      insane at the time of the crime will be
      declared not guilty.
     –Two basic (alternative) tests are used to
      determine sanity:
      • M’Naughten Rule: must show a serious,
        identifiable mental illness and that he didn’t
        understand the nature of his act.
      • Irresistible Impulse: must show that a
        mental defect left him unable to control his
        behavior.
     – How often is this defense successful?
UT-Austin Edinburgh Summer Program 2005
                Defenses
  • Entrapment
      –If the government induces a defendant to
       break the law, they must prove that the
       defendant was predisposed to commit the
       crime.
      –Texas cheerleader mom case
      –Marion Berry case
      –U.S. Postal service case




UT-Austin Edinburgh Summer Program 2005
              Defenses (cont’d)
 • Justification
     –A defendant may plead justification if he
      committed a criminal act in order to avoid a
      greater harm.

• Duress
    –A defendant may plead duress if she can
     show that a threat by a third person caused
     her fear of imminent physical harm.
    – Patty Hearst case

UT-Austin Edinburgh Summer Program 2005
            Criminal Process:
  What is the “exclusionary rule”? Where
            does it come from?
  •   Warrant -- if a search is needed, police
      take an affidavit (sworn written
      statement from an informant) to a
      judge, who issues a warrant, giving
      permission to search a particular place,
      looking for particular evidence.
  •   Probable Cause -- based on the
      information given, it is likely that the
      specified evidence will be found.

UT-Austin Edinburgh Summer Program 2005
             Criminal Process

   •   Search and Seizure -- police may search
       and seize only what is specified by the
       warrant.

   If a criminal investigator shows up at your
       place of business, asking to search for
       evidence of a crime, should you let them
       in? Insist upon a warrant?
   Does it depend upon the nature of the crime
       being investigated?


UT-Austin Edinburgh Summer Program 2005
           Fifth Amendment
  TEXT: “No person shall be held to answer for a
  capital, or otherwise infamous crime, unless on a
  presentment or indictment of a Grand Jury, . . . ;
  nor shall any person be subject for the same
  offence to be twice put in jeopardy of life or limb;
  nor shall be compelled in any criminal case to be
  a witness against himself, nor be deprived of life,
  liberty, or property, without due process of law; . .
  .”

UT-Austin Edinburgh Summer Program 2005
           Fifth Amendment

 •   Due Process -- procedures to ensure fairness
     must be followed.
     – U.S. v. James Daniel Good Real Property

 •   Double Jeopardy -- a defendant may only be
     tried once for a particular offense.




UT-Austin Edinburgh Summer Program 2005
              Fifth Amendment
Why did the Court create the Miranda rule? What
  was unconstitutional about police behavior in
  that case?
• Miranda rights -- when arresting a suspect, the
    police must inform her that she has the right to
    remain silent, that anything she says can be used
    against her and that she has a right to a lawyer
    (for free if needed).
• Self-incrimination -- the prosecution may not use
    coercion to force a confession from a suspect.
    The suspect may refuse to answer any questions
    that could be used to convict him.
• Dickerson v. U.S.
             Is the Miranda rule a good rule?
UT-Austin Edinburgh Summer Program 2005
          Other Amendments
 The Sixth Amendment

 •   Guarantees the right to a lawyer, and to
     have him present for all stages of the
     process.
 •   Government must provide lawyer, at no
     charge, for those who cannot afford one.




UT-Austin Edinburgh Summer Program 2005
          Other Amendments
  The Eighth Amendment
  •   Prohibits cruel and unusual punishment.
  •   Capital punishment (death penalty) has been
      controversial under this amendment.
  •   Forfeiture (forced loss of property) has been
      allowed under this amendment, but the
      allowable amount has not been set.




UT-Austin Edinburgh Summer Program 2005
                   Tort Law




UT-Austin Edinburgh Summer Program 2005
                Tort Means “Wrong”
  A tort is a violation of a duty imposed by civil
                      law. E.g.,

     • Defamation -- making a false statement
       about someone - written or verbal
     • Negligence -- performing wrong surgery
     • Interference with contract -- stealing a
       client away from a competitor
     • Fraud -- offering to sell something that
       doesn’t exist


UT-Austin Edinburgh Summer Program 2005
     Tort vs. Criminal or Contract Law

  • Criminal Law -- behavior classified as dangerous
    to society; prosecuted by the government,
    whether victim wants to prosecute or not; money
    award goes to the government
  • Contract Law -- based on breach of an agreement
    between the two parties; victim prosecutes and
    receives compensation or restitution.
  • Tort Law -- based on an obligation imposed by the
    law with no agreement needed between parties;
    victim prosecutes and receives compensation or
    restitution.

UT-Austin Edinburgh Summer Program 2005
         Categories of Tort Law:
    Based on Defendant’s State of Mind

  • Intentional Torts
      – Does not necessarily require an intention to
        harm the victim, only an intention to perform the
        act which caused the injury. (Intentionally
        throwing an object, but not meaning to hit
        anyone is a tort if it causes injury to someone.)

  • Negligence and Strict Liability
      – Unintentional torts


UT-Austin Edinburgh Summer Program 2005
          Categories of Tort Law:
         Based on Rights at Stake
       Infringements of personal rights
     (assault, battery, false imprisonment, defamation,
  intentional infliction of emotional distress and invasion
                          of privacy)

                            vs.
   Infringements of business or property
                  rights
     (trespass, nuisance, fraud, conversion, product
     disparagement and interference with contract)
UT-Austin Edinburgh Summer Program 2005
          Businesses and Tort Liability
  Why should businesspeople (or business
    students) care about personal torts? What
    do they have to do with business?
  Businesses can be vicariously liable for torts
    committed by their employees during the
    course of their employment, under the
    doctrine of “respondeat superior.”



UT-Austin Edinburgh Summer Program 2005
             Compensatory Damages
 •   A jury may award compensatory damages -- payment
     for injury --to a plaintiff who prevails in a civil suit.
 •   The Single Recovery Principle mandates that the court
     must decide all damages -- past, present and future --
     at one time and settle the matter completely.

 •   Damages may include money for three purposes:
      – to restore any loss (such as medical expenses)
        caused by the illegal action
      – to restore lost wages if the injury kept the defendant
        from working
      – to compensate for pain and suffering


UT-Austin Edinburgh Summer Program 2005
              Punitive Damages
 •   While the purpose of compensatory damages is to
     help the victim recover what was lost, punitive
     damages are intended to punish the guilty party.
      – Intended for conduct that is outrageous and
        extreme
      – Designed to “make an example” out of the
        defendant and to deter others
•    Sometimes punitive damage awards are huge, but
     in most cases they are close to or less than the
     amount of compensatory damages awarded.
•    BMW v. Gore

UT-Austin Edinburgh Summer Program 2005
     Intentional Torts against Persons:
             Assault and Battery
•   Assault is an action that causes the victim to fear an
    imminent offensive contact.
     – Assault can occur without the contact ever
       happening.
     – Pulling a gun on someone -- even if it is unloaded --
       is usually considered assault.
     – Fear must be reasonable.
•   Battery is a touching of another person in a way that is
    unwanted or offensive.
     – The touch does not have to hurt the victim -- sexual
       touching that is offensive, but not painful, is battery.
     – An intentional action that does hurt someone may be
       battery even if the injury is unintentional.
UT-Austin Edinburgh Summer Program 2005
    Intentional Torts Against Persons
            False Imprisonment
   False imprisonment is the restraint of someone
   against their will and without reasonable cause.


    • Adams v. Zayre Corp.




UT-Austin Edinburgh Summer Program 2005
     Intentional Torts Against Persons
             False Imprisonment
     False imprisonment is the restraint of someone
     against their will and without reasonable cause.
 •    An employer who doesn’t let a sick employee go
      home might be guilty of false imprisonment.
 •    If the police detain a person with no reason to
      suspect him of any crime, it could be false
      imprisonment.
 •    In general, a store may detain a person suspected
      of shoplifting if there is a reasonable basis for the
      charge and the detention is done reasonably (in
      private and for a reasonable time).
UT-Austin Edinburgh Summer Program 2005
   Intentional Infliction of Emotional Distress
  •   Roach v. Stern
  •   Historically, no recovery was allowed if the
      injury was only emotional instead of physical.
  •   Today, most courts allow a plaintiff to recover
      from a defendant who intentionally causes
      emotional injury.
       – Behavior causing injury must be extreme and
         outrageous.
       – Must have caused serious emotional harm.
  •   Some courts allow recovery for emotional injury
      caused by negligent behavior.

UT-Austin Edinburgh Summer Program 2005
   Intentional Torts Against Persons:
               Defamation

 • Defamation is irresponsible speech
   to harm another’s reputation.

     – Written defamation is libel.
     – Verbal defamation is slander.




UT-Austin Edinburgh Summer Program 2005
    Intentional Torts Against Persons
            Defamation (cont’d)

  • There are four facts to prove to win a
    defamation suit:
      – Defamatory statement: injury to reputation.
      – Falsity: The statement is false.
      – Publication/communication: The statement
        was communicated to a third party.
      – Injury: must be proven in slander cases;
        assumed in libel cases.


UT-Austin Edinburgh Summer Program 2005
             Defamation (cont’d)
 “Mr. Smith is a jerk. He is insufferable. I think
 he is the stupidest, meanest person I have
 ever met.”

 •   Opinion -- to be defamation, the statement
     must be provable and not simply
     someone’s opinion.
     – Vague terms in the statement usually indicate
       it is an opinion, not a provable fact.
     – Extreme exaggerations are usually not taken
       as fact.



UT-Austin Edinburgh Summer Program 2005
              Defamation (cont’d)

  • Public Personalities
      – Includes: public officials (police and
        politicians) and public figures (movie stars
        and other celebrities)
      – Public personalities have a harder time
        winning a defamation case because they
        have to prove that the defendant acted with
        actual malice.




UT-Austin Edinburgh Summer Program 2005
           Defamation: Defenses


   • Truth




UT-Austin Edinburgh Summer Program 2005
            Defamation: Defenses
   • Truth
   • Privilege
       – Defendants receive extra protection in
         special cases.
       – Sigal Construction Corp. v. Stansbury
       – In courtrooms and legislatures, speakers
         have absolute privilege. They may speak
         freely, as long as they reasonably believe
         what they are saying is true.
       – When information is legitimately needed, the
         speaker giving it has qualified privilege. This
         may happen when someone reports a
         suspected criminal act.
UT-Austin Edinburgh Summer Program 2005
            Privacy and Publicity
   •   Intrusion (prying into someone’s private life) is a
       tort if a reasonable person would find it offensive.
       – Examples: wiretapping, stalking, peeping
   •   Disclosure of Embarrassing Private Facts is when
       something extremely embarrassing is made
       public with no need for the public to know. So
       how do shock TV shows get away with
       humiliating people for fun and profit?
   •   False Light is when something false and
       offensive is told about someone.
       – Parody defense to defamation and false light
         torts: Flynt v. Falwell. Why is this a
         defense?
UT-Austin Edinburgh Summer Program 2005
                 False Advertising

  •   Commercial Exploitation is when a person’s
      image or voice is used for commercial
      purposes without that person’s permission.
      – Midler case (not in your readings)
      – Waits v. Frito-Lay




UT-Austin Edinburgh Summer Program 2005
            Product Defamation

 •   State Statutes outlawing “defamation” of
     products
      • Oprah and Texas beef
      • Honda and emu ranchers




UT-Austin Edinburgh Summer Program 2005
   Interference with Business Relations
     (a/k/a Interference with Contract)
   •   Texaco v. Pennzoil

   Interference with a contract exists if the plaintiff
       can prove these elements:
       – There was a contract between the plaintiff and a
         third party and the defendant knew of the
         contract.
       – The defendant induced the third party to breach
         the contract or make performance impossible.
       – There was injury to the plaintiff.



UT-Austin Edinburgh Summer Program 2005
                  Negligence

                Paintiff must prove:

   •   Duty of due care -- there must be a duty
       owed to the plaintiff.
   •   Breach -- duty must be breached.
   •   Proximate cause -- it must have been
       foreseeable that the action would cause this
       kind of harm, AND action was actual cause
       of harm
   •   Injury -- the plaintiff must have been hurt.


UT-Austin Edinburgh Summer Program 2005
                    Duty of Care
  • Foreseeable plaintiff
  • Dramshop/Social Host cases
     – Minority view: social host is liable
     – Is majority view when drinker is child
  • Landowner cases
     – Trespasser
     – Licensee
     – Invitee
  • Lorinovich v. KMart


UT-Austin Edinburgh Summer Program 2005
                   Breach of Duty
• A defendant breaches his duty of due care by
  failing to behave the way a reasonable person
  would under similar circumstances. What about:
   –   Absent-minded defendants?
   –   Not very smart defendants?
   –   Children?
   –   Physical disabilities?
   –   Intoxicated defendants?
   –   Professionals?
• Circumstances count
   – Knowledgeable plaintiff
   – Stressful situations

UT-Austin Edinburgh Summer Program 2005
           Breach of Duty (cont’d)


 • Companies and Employees -- courts
   have found companies liable for hiring
   and retaining employees known to be
   violent, when those employees later
   injured co-workers.

 • Analyze these situations using
   “reasonable person” standard.



UT-Austin Edinburgh Summer Program 2005
           Breach of Duty (cont’d)

  • Negligence per se -- in special cases,
    legislatures set a minimum standard for certain
    groups of people. When a violation of that
    statute hurts a member of that group, the duty
    is breaof behavior.

  • E.g., violation of regulatory standard of care
     – Outlawed behavior
     – OSHA standards



UT-Austin Edinburgh Summer Program 2005
                      Causation
     Factual Cause + Foreseeable Harm =
              “Proximate Cause”

 •   Factual Cause -- if the defendant’s
     breach ultimately led to the injury, he is
     liable.
     – Does not have to be the immediate cause
       of injury, but must be the first in the direct
       line.
     – Intervening causes can break the direct
       line


UT-Austin Edinburgh Summer Program 2005
   Factual Cause + Foreseeable Harm =
            “Proximate Cause”

   •   Foreseeable Harm -- to be liable, this type
       of harm must have been foreseeable.
        –The defendant does not have to know
          exactly what would happen -- just the type
          of event.
        –Palsgraf v. Long Island RR
        –Ozzie Osbourne
   •   Hairston v. Alexander Tank & Equipment
       Co.

UT-Austin Edinburgh Summer Program 2005
    Ex: Factual Cause & Foreseeable
                 Harm
   Mechanic fails
                              Car                          Factual
  to fix customer’s                        Mechanic is     cause and
                           accident,
    brakes, which                           liable to      foreseeable
                           car hitting
       causes...                             cyclist       type of injury
                            bicyclist




         Car             Noise from         Mechanic is    Factual
      accident,        accident startles                   cause, but
                                            NOT liable
      car hitting                                          no
                      someone who falls      for falling   foreseeable
       bicyclist        out a window          person       type of injury




UT-Austin Edinburgh Summer Program 2005
           Injury & Damages
 •   Injury -- plaintiff must show genuine injury
      –Future injury may be compensated, but
        must be determined at the time of trial.

 •   Damages -- are usually compensatory,
     designed to restore what was lost. In
     unusual cases, they may be punitive.




UT-Austin Edinburgh Summer Program 2005
             Defenses to Negligence

•   Contributory Negligence

•   Assumption of Risk

•   Comparative Negligence
    – Li v. Yellow Cab Co.




UT-Austin Edinburgh Summer Program 2005
              Defenses to Negligence
•   Contributory Negligence
    – In a few states, if the plaintiff is AT ALL negligent,
      he cannot recover damages from the defendant.
•   Assumption of Risk
    – No recovery if plaintiff voluntarily assumed risk
•   Comparative Negligence
    – In most states, if the plaintiff is negligent, a
      percentage of negligence is applied to both the
      defendant and the plaintiff.
    – In some cases, a plaintiff found to be more than
      50% negligent cannot recover at all.


UT-Austin Edinburgh Summer Program 2005
              MORE EXAMPLES




UT-Austin Edinburgh Summer Program 2005
                     Strict Liability
     Some activities are so dangerous that the law imposes
       a high burden on them. This is called strict liability.
 •     Defective Products-- may incur strict liability.
 •     Ultrahazardous Activities -- defendants are
       virtually always held liable for harm.
        – What is ultrahazardous?
        – Plaintiff does not have to prove breach of duty or
          foreseeable harm.
        – Comparative negligence does not apply --
          defendant engaging in ultrahazardous activity is
          wholly liable.

UT-Austin Edinburgh Summer Program 2005
   Strict Liability:
   • “ultrahazardous” or “unreasonably
     dangerous” activity
   • Historically
   • Modern applications
   • State DEP v. Ventron Corp.




UT-Austin Edinburgh Summer Program 2005
      TORT REFORM: a good idea?




UT-Austin Edinburgh Summer Program 2005

				
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