Final examination introduction to u. S. Law



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FINAL EXAMINATION

INTRODUCTION TO U.S. LAW

Chicago-Kent School Of Law

Prof. Gary Chodorow

Feb. 2007



Your name in Pinyin:
General Instructions:


  • This is a closed book exam. On your desk, there should be no materials except pens or pencils, blank scratch paper, and this test paper. You may also use a paper English-Chinese dictionary, but you may not use a legal dictionary or any electronic dictionary. Put all other materials along the side walls of the examination room. Referring to unauthorized materials during the exam is a violation of the Code of Conduct.

  • Students must sit in alternate seats during examinations. Looking at another student’s paper or allowing another student to look at your paper is a violation of the Code of Conduct.

  • At the beginning of the exam, the proctor will advise the students of the time at which the exam will end and will write the ending time on the blackboard. When time has expired, the proctor will announce that the exam is over and students must stop writing immediately and turn in their examinations. Failure to stop writing constitutes a violation of the Code of Conduct.

  • Students are not permitted to leave their seats for any reason during the last ten minutes of an exam. The proctor will announce when there are ten minutes left. After that, students must remain seated until the proctor announces the exam is over.

  • Please write legibly.

  • If you run out of space answering questions on the front of a page, you can finish your answer on the back of that page.


MULTIPLE CHOICE QUESTIONS

For each question, circle the letter of the one most appropriate answer. (1 point each)


  1. Which of the following is not a requirement to serve on a jury in the United States?

    1. Over 18 years old.

    2. Minimum of a high school education.

    3. U.S. citizen

    4. Ability to communicate in the English language.

    5. No felony conviction unless civil rights have been restored.

Answer: b. There is no educational requirement to serve on a jury.




  1. Which of the following is a citation to a federal statute?

    1. 8 U.S.C. § 1101 (2006).

    2. 8 C.F.R. § 1101 (2005).

    3. 55 Fed. Reg. 58,782 (Dec. 21, 1990).

    4. 147 Cal. 434.

Answer: a. The abbreviation U.S.C. stands for United States Code, which is the codified version of federal statutes. b is wrong because C.F.R. stands for Code of Federal Regulations, which is the codified version of federal administrative regulations. c is wrong because Fed. Reg. stands for Federal Register, which is a daily bulletin annnouncing, among other things, new proposed and final regulations. d is wrong because Cal. stands for California, and this appears to be part of a citation to a California judicial opinion.




  1. Which of the following is a leading question?

    1. What color car do you drive?

    2. Have you ever been convicted of a crime?

    3. What happened next?

    4. You love your husband, don’t you?

Answer: d. A leading question is one which suggests the answer. Leading questions are normally prohibited during direct examination but are allowed on cross examination. Here, with the question, “You love your husband, don’t you?” the lawyer suggests to the witness that she answer “yes.”





  1. Which of the following is highest on the hierarchy of sources of law?

    1. Federal administrative agency rule

    2. State constitution

    3. Federal common law caselaw

    4. Federal court rule

Answer: d. A federal court rule is a higher source of law than the other types of law listed, so in case of conflict the federal court rule will preempt them. The hierarchy of sources of law is as follows:



  1. U.S. Constitution.

  2. Federal statutes, treaties, and court rules.

  3. Federal administrative agency rules.

  4. Federal common law caselaw.

  5. State constitutions.

  6. State statutes and court rules.

  7. State agency rules.

  8. State common law caselaw.

* Each level of enacted law includes caselaw and agency adjudications interpreting enacted law.


  1. Here are a number of statements about the doctrine of stare decisis.




      1. If the issue and determinative facts of a new case are the same as those of a precedent, the court must follow the precedent’s holding if the issue could be appealed to the court that made the precedent.

      2. A court should ordinarily follow its own prior holdings.

      3. A court must follow the precedent of a higher court in the same jurisdiction unless it was clearly erroneous.

      4. Only a holding, not dicta, can be binding.

Which of the above statements is true?



  1. i, ii, iii, iv

  2. i, ii, iv

  3. i, iii, iv

  4. ii, iv

Answer: b. The stare decisis rule is that (1) a court must follow the holding of a court to which an appeal could be made if the new case involves the same legal issue and the same determinative facts; (2) a court should ordinarily follow its own prior holdings; and (c) a court should follow any other precedent to the extent that it is persuasive. Therefore, statements (i) and (ii) are true because they restate the rule. Statement (iii) is wrong because mandatory precedent must be followed even if the judge in the new case believes it is wrong. Statement (iv) is correct because under the stare decisis rule holdings are binding. Dicta is a statement of law in a judicial opinion that is not necessary for the holding, so dicta is not binding.




  1. On an issue of state law, a decision of that state’s highest court is mandatory precedent that the U.S. Supreme Court must follow.

    1. True

    2. False

    3. It depends.

Answer: b. A state supreme court is the highest authority for interpreting its own state’s law. No appeal can be made from US Supreme Court to State Supreme court though.




  1. The U.S. Court of Appeals for the 9th Circuit (located in San Francisco, California) decided an issue of federal law almost a hundred years ago. Since that time, society has changed so much that the holding no longer makes good public policy sense. Is it mandatory precedent for a state trial court in San Francisco?

    1. Yes

    2. No

    3. A state trial court has no jurisdiction over federal questions.

Answer: b. This is a trick question. A decision of the 9th Circuit would never be mandatory precedent for a state trial court. The relevant part of the stare decisis rule is that a court must follow the holding of a court to which an appeal could be made on a particular issue. Appeals of a state trial court decision on a federal question could be made to higher state courts and then to the U.S. Supreme Court—never to a U.S. Court of Appeals. Still, a state trial court in San Francisco would consider a 9th Circuit decision on a federal question to be very persuasive authority.




  1. Here is a list of procedural protections:




      1. Decision based solely on the record

      2. Decision in writing with findings of fact and conclusions of law

      3. Oral hearing

      4. Right to cross examine any witness

      5. Exclusion of hearsay

      6. Right to be represented by a lawyer hired at one’s own expense

Which of these procedural protections are required by the federal Administrative Procedures Act when an agency adjudicates an individual’s rights or obligations?




  1. i, ii, iii, v

  2. i, ii, v, vi

  3. i, ii, iv, v, vi

  4. All of the above.

  5. i, ii, vi

Answer: e. As discussed in class, the APA explicitly requires a written decision based on the record alone, setting forth findings of fact and conclusions of law, and a person may be represented by a lawyer. However, an oral hearing and cross-examination are not always required, and the strict Federal Rules of Evidence excluding most hearsay do not apply.




  1. What is an appellate court likely to do if, upon review of the record of the trial below, the appellate court determines that the judge made four errors, all of which were harmless?

    1. Reverse

    2. Vacate

    3. Remand

    4. Affirm

Answer: d. An appeals court’s job is to fix mistakes by the trial court that are “prejudicial,” meaning likely to affect the outcome. A harmless mistake that did not affect the outcome does not need to be fixed, so the appeals court will affirm (not disturb) the trial court decision.


SHORT ANSWERS

If you need extra room to answer a question, you can use the back of the paper. (3 points each).


  1. Explain and distinguish the standard of proof in a civil case and the standard of proof in a criminal case.

In a civil case, the plaintiff must prove his case by the preponderance of the evidence.

In a criminal case, the government must prove its case beyond a reasonable doubt.

The latter is a tougher standard of proof.




  1. What is the difference between a dissenting opinion and a concurring opinion?

A dissenting opinion would reach a different judgment than the majority.

A concurring opinion agrees with the judgment but for different reasons than given by the majority.


  1. Briefly explain the difference between “common law caselaw” and “caselaw interpreting enacted law.” Give an example of each.

“Caselaw interpreting enacted law” refers to precedent that interprets the constitution, statutes, regulations, and other law created in ways other than through caselaw. For example, Goldberg v. Kelly interprets the constitutional requirement that deprivation of liberty or property can only be through due process.


“Common law caselaw” refers to precedent that interprets the common law, meaning law made solely through caselaw. For example, much of tort law and contract law are common law caselaw.


  1. A California resident files a complaint in a California state court against a New York defendant. The complaint sets forth a state law claim for libel. The complaint seeks $50,000 in damages. The defendant raises a freedom of speech defense under the first amendment to the U.S. Constitution. Can the defendant remove the case to federal court? Explain.

A case may be removed to federal court if the federal court would have had jurisdiction over a well-plead complaint.


Federal question jurisdiction requires a question of federal law. Here, the complaint is only for a state claim of libel. The federal constitutional defense is not enough because it would not be raised in the complaint. So, there’s no federal question jurisdiction.
Diversity jurisdiction requires that the parties be from different states and that the amount in controversy be at least $75,000. Here, although the parties are from different states (NY and CA), the amount in question is not enough. So, there’s no diversity jurisdiction.
Therefore, removal is not possible.


  1. Briefly explain and distinguish a “motion to dismiss for failure to state a claim” and a “motion for summary judgment.

Both motions request that a civil lawsuit be terminated before it goes to trial.


A motion to dismiss for failure to state a claim is filed by the defendant instead of an answer. It asserts that, even assuming the truth of all the allegations in the complaint, they do not make up the elements of any claim. A motion to dismiss doesn’t look beyond the four corners of the complaint.
A motion for summary judgment is made at the end of discovery and argues that the court should enter judgment without a trial because (a) there is no genuine dispute as to any material fact; and (b) the movant is entitled to judgment as a matter of law. To avoid dismissal, the nonmovant must produce some evidence or an affidavit to show a genuine dispute on a material fact, meaning that a reasonable jury could find in his favor on that fact.


  1. What is an interrogatory? What is a deposition?

Both an interrogatory and a deposition are ways of gathering evidence during discovery in a a civil case.


An interrogatory is a question posed in writing to another party.
A deposition involves oral questions to a party or non-party under oath.
In either case, questions must be reasonably calculated to lead to admissible evidence.


  1. Paul is suing a police officer for wrongfully invading his home. The officer testifies that the reason he entered the house was that he heard a woman inside yell, “Help! He’s going to kill me!” Inside the house, the officer saw Paul and Veronica sitting playing a video game that depicts violence. Nobody was really in danger.

Explain whether the officer’s testimony is hearsay.


Hearsay is any statement made out of court that asserts facts and that a party now seeks to be admitted in order to prove those facts.
In this case, Veronica did make a statement out of court. It does assert facts, namely that someone intended to kill Veronica. However, the police officer isn’t trying to prove that Paul really intended to kill Veronica. Instead, the police officer merely intends to prove that he had a good reason for entering the home—i.e., he erroneously believed someone was in danger.
Therefore, this statement is not hearsay.
QUESTIONS RELATED TO CONTI V. ASPCA (ATTACHED)

(3 points each)




  1. List the determinative facts in the case and explain why each is determinative.

The court applied the rule that the rights of an owner trump the rights of a finder of an animal unless that animal (a) is wild, (b) has escaped, and (c) has no intent to return. In applying this rule, the following facts were determinative:


a. Is the animal wild?

  • Parrotts are tropical and don’t live in the wild in New York

  • This parrot was used in educational exhibitions

  • This parrot can say hello and dangle by his legs. (Defendants made this claim but it’s unclear whether the court made this a finding of fact).

b. Escape: Not in dispute.

c. No intention of return: Not in dispute.




  1. What are the issue and holding in the case?

Issue: Under New York common law, must the finder of an escaped animal return it to the owner, where the animal is a tropical parrot kept in New York for use in educational exhibitions?


Holding: Yes.


  1. Give an example of dictum found in this judicial opinion.

The wild animal rule: Where an animal is wild, its owner can only acquire a qualified right of property which is wholly lost when it escapes from its captor with no intention of returning.




  1. What do you think are the public policy reasons for the common law’s distinction between the rights of finders of a domesticated animal and a wild animal?

Both the domestic animal rule and the wild animal rule are meant to protect property interests in order to maximize wealth creation and efficient allocation of resources.


The domestic animal rule is just the general lost property rule, that the owner’s rights trump the finder’s. This protects the owner’s interest in his investment. A contrary rule giving the finder ownership would be disruptive because it would encourage stealing animals and calling them “found”.
In contrast, a person who finds a wild animal usually cannot know that it has an owner. Thus, the law encourages the finder to exploit the wild animal for his own profit. A contrary rule denying the finder ownership would discourage the finder from putting the animal to economic use.
QUESTIONS RELATED TO MCAVOY V. MEDINA (ATTACHED)


  1. What is the procedural history of this case? (2 points)

Cause of action: Finder’s claim to lost property.

Remedies sought: Recover the value of that property.

Judgment below: Trial ct judgment for defendant.

Claimed error: Interpretation of lost property rule.
In one sentence: Pl asserts that trial ct judgment for def on claim to recover value of lost property misinterpreted the lost property rule.


  1. What are the issue and the holding in this case? (3 points)

Under Massachusetts common law, where the owner “mislays” a pocket-book on a shop’s table, neglecting to remove it, does the finder’s right to it trump the shopowner’s? No.




  1. Why does the court believe that the rule it has chosen is “better adapted to secure the rights of the true owner”? (3 points)

The court compared two rules: (1) Lost property rule--For lost property, the finder’s rights trump all but the true owner. (2) Mislaid property rule--For property mislaid in a shop, the shopowner’s interests trump the finder’s.


The two rules balance the rights of the owner, finder, and shopowner differently.
The lost property rule encourages the activity of finding lost property by giving rights to the finder that trump all but the owner.
However, in the case of property mislaid in a shop, the true owner’s interests are better protected by favoring shopowners over other finders: (a) other finders are not needed because the shopowner is likely to be able to find mislaid property in his own shop; and (b) the shopowner is in the best position to return the property, in that other finders are “transient” but the shop is fixed so the owner can return to reclaim his property.
ESSAY QUESTION

(12 points)
Owen is the owner of a circus. Last week, Owen acquired a baby “pocket mouse.” This is a small mouse that while young is carried by its mother in a pouch, similar to a kangaroo. Owen has named the mouse Morris. Owen has been trying to train the mouse to perform in his circus by riding a miniature bicycle. When Owen is not training the mouse, he often keeps it in the pocket of his shirt.
Yesterday morning, Owen took a taxi to the circus. Yesterday afternoon, Fran hailed the same taxi. When it stopped for her, she opened the taxi door. Morris jumped out onto the street. The miniature bicycle fell out. Morris hopped onto the bicycle seat and sat there motionless.
When Fran screamed, “What a talented mouse!” Tom the taxi driver came to see what was causing the commotion. Just then, Owen approached. They all began to argue about who gets to keep Morris and the miniature bicycle.
They’ve asked you to apply the common law, as stated in Conti v. ASPCA and McAvoy v. Medina, to resolve this dispute. Please write your decision and reasoning.
1. Who gets the bicycle?
There are two different rules that may apply here: (1) For lost property, the finder’s rights trump all but the true owner’s. (2) For property mislaid in a shop, the true owner’s rights are paramount, after which the shopholder’s rights trump those of the finder.
It’s ambiguous whether the bike was lost or misplaced in the taxi. Some passengers put down and then forget things, but other passengers accidentally drop things. Here, Owen left behind both the mouse, which he “often” kept in his pocket, and the bike, which presumably he didn’t normally keep in his pocket. It seems unlikely that on the same trip both the bike would be lost and the mouse somehow separately would escape or be lost or misplaced. Therefore, most likely both items were mislaid.
For the 2nd rule to apply, mislaying property in a taxi must be analogous to mislaying property in a shop. McAvoy implies that shopowner’s rights should trump other finders’ rights because (a) other finders are not needed because the shopowner is likely to be able to find mislaid property in his own shop; and (b) the shopowner is in the best position to return the property, in that other finders are “transient” but the shop is fixed so the owner can return to reclaim his property. The same policy reasons apply to property mislaid in a taxi: (a) the taxi owner is likely to be able to find it in the normal course of business; and although the taxi moves, it is more likely that the property owner could more easily find the taxi than another finder. The taxi has a unique license plate and the taxi receipt often incudes identification information, making it possible for the owner to track down the taxi. So, it makes sense to treat a taxi like a shop because it better protects the true owner’s rights.
Therefore, the 2nd rule should apply by analogy, and so the true owner has paramount rights to the property. So, Owen gets the bike. But even if the 1st rule applied, Owen would still get the bike.
2. Who gets the mouse?
For the reasons explained above, it seems likely that the mouse was mislaid, in which case Owen gets the mouse. If instead, the mouse was lost, then Owen would get it too.
However, if the animal instead escaped, then the finder gets ownership in the case of (a) a wild animal (b) that has no intent of returning.
Is the mouse wild? Mice exist in the wild and domestically (e.g., pets, lab animals). Here, the mouse is a baby that Owen has tried to train for only a week to ride a bike. When the mouse jumped from the taxi, it mounted the bike and Fran screamed, “What a talented mouse!” No wild mouse would be found with a miniature bike, much less mount it. Therefore, even though the mouse didn’t show it was talented enough to actually ride the bike, it was obvious to Fran that it was domesticated.
Did the mouse intend to return to Owen? The mouse sat motionless, so there’s no clear intent to escape or to return.
In any case, even if the animal did escape, since it’s a domesticated animal, the owner Owen would still have a right to its return.

Edward Conti, Plaintiff, v. ASPCA et al., Defendants
[NO NUMBER IN ORIGINAL]
Civil Court of the City of New York, Queens County
77 Misc. 2d 61; 353 N.Y.S.2d 288; 1974 N.Y. Misc. LEXIS 1082
January 30, 1974
COUNSEL:

John J. Howley for plaintiff.

Thacher, Profitt & Wood (Raymond Hughes of counsel), for defendant.
JUDGES:

Martin Rodell, [***2] J.


OPINION:

[*61] [**289] … Chester is a show parrot, used by the defendant ASPCA in various educational exhibitions presented to groups of children.

On June 28, 1973, during an exhibition in Kings Point, New York, Chester flew the coop and found refuge in the tallest tree he could find. For seven hours the defendant sought to retrieve Chester. Ladders proved to be too short. Offers of food were steadfastly ignored. With the approach of darkness, search efforts were discontinued. A return to the area on the next morning revealed that Chester was gone.

On July 5, 1973 the plaintiff, who resides in Belle Harbor, Queens County, had occasion to see a green-hued parrot … in his backyard. His offer of food was eagerly accepted by the bird. This was repeated on three occasions each day for a period of two weeks. This display of human kindness was rewarded by the parrot's finally entering the plaintiff's home, where he was placed in a cage.

The next day, the plaintiff [***3] phoned the defendant ASPCA and requested advice as to the care of a parrot he had found. Thereupon the defendant sent two representatives to the plaintiff's home. Upon examination, they claimed that it was the missing parrot, Chester, and removed it from the plaintiff's home.

[*62] Upon refusal of the defendant ASPCA to return the bird, the plaintiff now brings this action in replevin.

The representatives of the defendant ASPCA … claimed that Chester said "hello" and could dangle by his legs. During the entire trial the court [***4] had the parrot under close scrutiny, but at no time did it exhibit any of these characteristics. The court called upon the parrot to indicate by name or other mannerism an affinity to either of the claimed owners. Alas, the parrot stood mute.



The court must now deal with the plaintiff's position, that the ownership of the defendant was a qualified one and upon the parrot's escape, ownership passed to the first individual who captured it and placed it under his control.

The law is well settled that the true owner of lost property is entitled to the return thereof as against any person finding same. ( Matter of Wright, 15 Misc 2d 225; 36A C. J. S., Finding Lost Goods, § 3.)

This general rule is not applicable when the property lost is an animal. In such cases the court must inquire as to whether the animal was domesticated or ferae naturae (wild).

Where an animal is wild, its owner can only acquire a qualified right of property which is wholly lost when it escapes from its captor [***5] with no intention of returning.

Thus in Mullett v. Bradley (24 Misc. 695) an untrained and undomesticated sea lion escaped after being shipped from the west to the east coast. The sea lion escaped and was again captured in a fish pond off the New Jersey coast. The original owner sued the finder for its return. The court held that the sea lion was a wild animal (ferae naturae), and when it returned [*63] to its wild state, the original owner's property rights were extinguished.

In Amory v. Flyn (10 Johns. 102) plaintiff sought to recover geese of the wild variety which had strayed from the owner. In granting judgment to the plaintiff, the court pointed out that the geese had been tamed by the plaintiff and therefore were unable to regain their natural liberty.

[**291] This important distinction was also demonstrated in Manning v. Mitcherson (69 Ga. 447, 450-451; Ann. 52 A. L. R. 1063) where the plaintiff sought the return of a pet canary. In holding for the plaintiff the court stated "To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept, and it should accidentally escape from its cage to the street, or to [***6] a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice."

The court finds that Chester was a domesticated animal, subject to training and discipline. Thus the rule of ferae naturae does not prevail and the defendant as true owner is entitled to regain possession.

The court wishes to commend the plaintiff for his acts of kindness and compassion to the parrot during the period that it was lost and was gratified to receive the defendant's assurance that the first parrot available would be offered to the plaintiff for adoption.

Judgment for defendant dismissing the complaint without costs.

McAvoy v. Medina, 93 Mass. 548 (1866)

 

At the trial in the superior court, before Morton, J., it appeared that the defendant was a barber, and the plaintiff, being a customer in the defendant’s shop, saw and took up a pocket-book which was lying upon a table there, and said, “See what I have found,” The defendant came to the table and asked where he found it. The plaintiff laid it back in the same place and said, “I found it right there.” The defendant then took it and counted the money, and the plaintiff told him to keep it, and if the owner should come to give it to him; and otherwise to advertise it; which the defendant promised to do. Subsequently the plaintiff made three demands for the money, and the defendant never claimed to hold the same till the last demand. It was agreed that the pocket-book was placed upon the table by a transient customer of the defendant and accidentally left there, and was first seen and taken up by the plaintiff, and that the owner had not been found.


The judge ruled that the plaintiff could not maintain his tort action to recover sum of money found by him, and a verdict was accordingly returned for the defendant; and the plaintiff alleged exceptions. (Citations omitted.)

 

Dewey, J. It seems to be the settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally the place in which it is found creates no exception to this rule. 2 Parsons on Con. 97, Bridges v. Hawkesworth, 7 Eng. Law 7 Eq. R. 424.



But this property is not, under the circumstances, to be treated as lost property in the sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the defendant’s shop by a customer of his who accidentally left the same there and has never called for it. The plaintiff also came

there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of the same until the owner should call for it. In the case of Bridges v. Hawkesworth the property, although found in a shop, was found on the floor of the same, and had not been placed there voluntarily by the owner, and the court held that the finder was entitled to the possession of the same, except as to the owner. But the present case more resembles that of Lawrence v. State, 1 Humph (Tenn.) 228, and is indeed very similar in its facts. The court there makes a distinction between the case of property thus placed by the owner and neglected to be removed, and property lost. It was there held that “to place a pocket-book upon a table and to forget to take it away is not to lose it, in the sense in which the authorities referred to speak of lost property.”

We accept this as the better rule, and especially as one better adapted to secure the rights of the true owner.

In view of the facts of this case, the plaintiff acquired no original right to the property, and the defendant’s subsequent acts in receiving and holding the property in the manner he did, does not create any. Exceptions overruled.






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