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.



  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.




  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?



  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




  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




  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.




  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.




  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




  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


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.



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



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




  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.




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




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




  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.



QUESTIONS RELATED TO CONTI V. ASPCA (ATTACHED)

(3 points each)




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



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




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




  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?


QUESTIONS RELATED TO MCAVOY V. MEDINA (ATTACHED)


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




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




  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)


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.
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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