Alternative Law

In my search for MSU barpassers, I stumbled across this article. I felt a lump in my throat in reading this. Knowing that there are now new-blood lawyers seeking for betterment for the environment, and actually applying laws on protecting them and educating people makes me feel this heavy pull in my heart to make want to go back and finish what I started a few years back.


Alternative law, anyone?
Posted: 6:58 AM (Manila Time) | Jun. 20, 2004
By Rex Godinez Ortega
Inquirer News Service

THERE is no money in alternative lawyering.

Besides, what respectable lawyer would trade his barong tagalog and attaché case for a backpack and a ride on a habal-habal (an improvised motorcycle transport with extended seats) to far-flung places just to go to work? It's hardly the ideal picture of a lawyer that people have in mind.

But for alternative lawyers in Mindanao, money and glamour are not everything.

To this unique breed of lawyers, saving the environment and empowering the disadvantaged are more important -- and summer sees them working hard to win the hearts and minds of law students.

Lying just under the shadow of all the writers' workshops that blossom in the country during summer is the little-heard-of Alternative Law Groups' Summer Internship Program (ALGSIP) for law students.

Held from April to May, the ALGSIP helps law students choose the right career paths for them to take as lawyers in the future and provide them opportunities to bond and have a great time.

Lawyer Normita Batula of the Cagayan de Oro-based Balay Alternative Legal Advocates for Development in Mindanaw (Balaod-Mindanaw) said the internship program introduces law students to alternative lawyering.

Balaod-Mindanaw, the Legal Rights Center (LRC) and the Pagadian City-based Environmental Legal Assistance Center (Elac-Mindanaw) held the ALGSIP for the Northern Mindanao cluster for 24 interns from seven law schools.

Seventeen of this year's interns came from the Mindanao State University's College of Law in Iligan City, Liceo de Cagayan University in Cagayan de Oro City, and Urios College in Butuan City.

Four interns from the San Carlos University and San Juan Recoletos in Cebu City, San Agustin University in Iloilo City and La Salle Bacolod joined the Northern Mindanao cluster.

The program opened the eyes of participants to women issues, the plight of the poor, the indigenous peoples and the environment. It showed them a different side to lawyering -- one that is not so high profile but noble nonetheless.

LRC intern Eric Talja, a law student from Urios College, described his immersion with the Higao-nons in the hinterlands of Naawan town, Misamis Oriental province: "Out there you are forced to learn the law since that is what you use to help the people."

Talja also said that there was no other place in the country where he felt the need for social justice more acutely than in the charming hills overlooking the beautiful Macalajar Bay.

"I am aware of the injustices committed against indigenous peoples and the poor but it is truly different when one ... sees it face to face," said the 30-year-old former bank officer.

Balaod-Mindanaw intern Audrey Abamonga of Liceo de Cagayan University shares Talja's sentiments saying what she saw in her immersion in a town in Negros Oriental province opened her eyes to the ever widening chasm between the landed rich and the dirt-poor peasants.

The 23-year-old Abamonga said she was moved by the poverty of peasants who until now are still fighting for their benefits under the Comprehensive Agrarian Reform Program (CARP).

It was while Abamonga was helping document cases of abuse there that she heard her "calling."

"This experience has shown me that I can be in a position to help these people; and when I become a lawyer in the future I really will help them."

Another intern who also heard his "calling" is MSU-College of Law student Margarito Pacilan who entered law school because it was the "most economically profitable."

"Now, I don't even think of the money," swore the 25-year-old Elac-Mindanaw intern who was dismayed to learn -- first hand during the internship -- that even judges were ignorant of environmental laws, "especially the new laws." But no matter the personally-fulfilling and heart-warming perks of alternative lawyering, its reputation as a cash-strapped profession still remains a stumbling block for most law students.

Alternative law groups are trying to address this by establishing links with law schools in Northern Mindanao.

Lawyer Jennifer Ramos, Elac-Mindanaw area manager, and a former law student intern herself of the Ateneo Human Rights Center in 1999, said the internship program is their way of finding new blood for alternative law.

"Lawyers have to find their mission in life. This is ours," she said.

Torts

Torts Rules of Law
The following contains the Rules of Law you'll need for the Torts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Negligence
Duty
Breach
Causation
Damages
Defenses to Negligence

Negligence
The prima facie case for negligence requires:

Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

Duty
In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. Two issues arise in terms of duty of reasonable care:

Foreseeability
Standard of Care
Foreseeability
The duty of care must be toward a foreseeable plaintiff.

Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.

Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.

Factors to consider that may or may not modify the circumstances include:

Physical characteristics
A person who has great physical strength will be judged according to an ordinary person of great physical strength. Likewise, a weak person will be judged according to a standard of what an ordinary weak person would do.

Average Mental Ability
Everyone is judged as being of average mental ability and no accommodation is made for being extraordinarily intelligent.

Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the community.

Professionals
Professionals are judged according to other professionals in same community.

Children
Children are judged according to children of same age, education, intelligence and experience.

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.

The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

Custom in the community

Violation of statute (negligence per se)
Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.

Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.

Causation
The defendant caused the harm to occur. There are two types of causation:

Actual Causation

and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur? There are two different tests you can use.

"But for" Test: Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"

Substantial Factor Test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.

Proximate Causation: This sometimes difficult to grasp concept is actually very simple on most exams. Be sure to check with your professor but if in doubt, use the following generally accepted test:

Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.

Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

Damages
The plaintiff must suffer some harm. Two issues arise:

Was there actual harm?

Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

Personal Injury

Property Damage
Plaintiff gets Cost of repair OR fair market value

Punitive Damages
Extra damages beyond actual damage is available if the defendant's behavior was wanton and willful, reckless or malicious

Duty to mitigate: Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is not liable for damages where plaintiff did not mitigate.

Defenses to Negligence
Even if a defendant is found liable for negligence, he can argue to be relieved of or share liability because of a valid defense. Defenses include:

Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act. The defendant must prove the plaintiff was negligent using the negligence test above.

Under common law, if both parties are negligent, then the one with the last clear chance to prevent the accident is liable; otherwise both plaintiff and defendant share liability.

Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging in the behavior then the plaintiff will be denied recovery.

Emergency Doctrine
Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.

Custom
Custom can be used to show that behavior was in line with the behavior of everyone else, thus resulting in no breach. E.g. Everyone drives at 50 MPH on that particular stretch of the highway even though it is posted at 30 MPH.

Torts Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Negligence issues. If necessary, review the Torts Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.


Torts Fact Pattern
David is driving 25 MPH in 25 MPH zone down a four lane street where there are children playing. One nine-year-old child, Kevin, runs into the street chasing a soccer ball. David, without looking over his shoulder, swerves into the other lane to avoid Kevin and in the process he hits a car, driven by Peter, that was speeding past him in the left-hand lane going in the same direction.

Peter loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company TeleCo, easily snaps into two pieces and hits Kevin, who is still in the street, knocking him unconscious and resulting in permanent injuries.

TeleCo never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

Question: What are the various liabilities and rights of the parties involved?

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.

Torts Sample Answer
The following is a sample answer to the Torts Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Torts Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

The injured individuals can seek damages based on a theory of negligence. I will examine the potential liability of each party in turn. The prima facie case for negligence is established by showing a duty of reasonable care, breach of the duty, actual and proximate cause and damage.

Peter v. David
Although David may have breached a duty in not looking when changing lanes, he has a defense in the emergency doctrine. To prove negligence, Peter has the burden to prove that David had a duty to drive more carefully. One theory would be that David should drive slower than the speed limit when kids were present. Evidence of breaking the law is automatically considered a breach of a duty, but not breaking the law doesn't necessarily establish that a breach didn't occur. All of the facts and circumstances must be considered. Since 25 MPH is a standard speed limit for residential areas where kids normally play, I don't think that David had a duty to drive slower.

David, however, probably breached a duty of care by not looking before he changed lanes. A reasonable and prudent person would naturally look before changing lanes. Here, however, David can claim two defenses. First, he can claim contributory negligence since Peter was speeding. (See below for an analysis of Peter's liability.) Second, David can claim the emergency doctrine. Since his swerving into the lane avoided an accident with Kevin, he was justified in making the split-second decision to swerve. I think that under the duty of reasonable care analysis, David acted with the care of an ordinary and prudent person under the circumstances of an emergency. Therefore, David will probably not be found negligent in regard to Peter's claim. Even if he is found negligent, David's liability is limited if Peter is found to be liable for contributory negligence.

Kevin v. David
As to Kevin's claim of negligence against David, it is arguable that David's action was the cause of the injury that occurred to Kevin. Under the "but-for" standard of review, if he hadn't swerved into the other lane, he would not have sent Peter's car crashing into the phone pole. However, Kevin's claim against David probably loses on the issue of proximate cause. Proximate cause limits the liability of David to those risks that were foreseeable. Here, I don't think that a telephone pole snapping in half and falling on top of a kid is a likely result from swerving into another lane in order to avoid the kid in the first place. It is as improbable a result as that in Palsgraf. David is probably not liable for negligence in regard to Kevin's injuries.

Kevin, David v. Peter
Both Kevin and David can state a claim against Peter for their damages as a result of Peter's negligence in driving over the speed limit. Peter is liable under the theory of negligence per se since he was over the speed limit. Breaking the law - such as posted speed limits - creates a rebuttable presumption of negligence and doesn't require further analysis. Peter can rebut the presumption of negligence by showing it was the custom to speed on that street; however, the fact that children were present would go to show that Peter had a duty of care to ignore the custom and slow down under those circumstances.

Peter can also argue contributory negligence against both David for swerving and Kevin for running into the street. While David was not judged to be negligent for, I don't think his claim for damages to his car will survive. Peter's claim of contributory negligence against David is valid since David had a duty to look before changing lanes. Although the emergency doctrine relieves David of liability, it does not confer liability on Peter. David, or his insurance company, will probably have to pay damages on David's car.

Kevin will be judged by the standard of what a reasonable and prudent nine year old would do when playing games in his own neighborhood. The neighborhood represents safety in Kevin's mind, thus an exuberant nine-year-old might feel safe enough to run in the street. Even so, most kids are taught at an early age to look both ways before crossing the street. I think it is likely that Kevin, or his parents, will bear some responsibility for Kevin's injuries since he did not belong in the street.

Peter's strongest defense against Kevin's claim is to argue - as David did above - that the injuries arising form the telephone pole were not foreseeable and therefore the damage is too attenuated for Peter to be held liable. Here, it is less clear. The casual connection is closer than it was with David. I think that it is foreseeable that when someone is speeding they might lose control and damage would result from that loss of control. While the pole snapping was not foreseeable, the risk of some type of harm coming about was foreseeable. It is not necessary to show that a specific harm was foreseeable as it is that some harm was foreseeable. I think Peter will be liable for some measure of Kevin's damages.

Kevin v. TeleCo
Although it may not have been foreseeable for this accident to happen, I think that TeleCo is probably liable to Kevin for damages. Here, TeleCo was under a duty of reasonable care since it knew that its telephone poles would be placed along the sides of roads. It was foreseeable that a car might hit a pole with sufficient force as to knock the pole down. Since the poles are commonly placed in neighborhoods, it is reasonable to conclude that a pole might fall on someone.

Despite its duty to protect against potential harm, TeleCo did not do any testing to determine the danger involved in falling poles. Furthermore, it did nothing to mitigate the danger by seeking to reinforce the pole with metal strips, to sink poles deeper in the ground or buy a harder type of wood. The only factor that TeleCo thought was relevant was keeping its costs down. Consequently, I think that TeleCo's failure to seek alternatives was a breach of its duty of care.

Under a causation analysis, the breach was both a direct and proximate cause of Kevin's injuries. But-for TeleCo's breach, Kevin's injuries would not have occurred. Furthermore, it is foreseeable in a car accident where a pole falls, that an innocent bystander will get hurt. Since Kevin has shown damages, I think that TeleCo will probably be found negligent and liable for damages.

Property

Property Rules of Law
The following contains the Rules of Law you'll need for the Property Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Duty to Deliver Possession
Duty to Pay Rent
Implied Covenant of Quiet Enjoyment
Constructive Eviction
Implied Warranty of Habitability
Duty to Repair - Permissive Waste
Surrender and Acceptance





Duty to Deliver Possession
Majority View:
Landlord is under a duty to deliver actual possession of the premises to the tenant when the term of the lease begins. Failure to do so puts the landlord in breach and subject to damages. Tenant may recover costs to find housing during the term she cannot inhabit the premises and any business losses that may have occurred because of the holdover tenant.

Minority View:
It is the responsibility of the tenant to evict the holdover tenant. The landlord merely has to transfer the legal right for the tenant to have possession and not actual possession.



Duty to Pay Rent
Tenant has a duty to pay rent for the entire lease term according to the provisions of the lease as to amount and when the rent shall accrue.

If a tenant is in breach of the duty to pay rent, then at common law, the landlord has a right to sue for damages but collect only that amount which is in arrears. However, the modern view is to allow the landlord to sue for both damages and evict the tenant.

The duty to pay rent may be overcome by a breach by the landlord.



Implied Covenant of Quiet Enjoyment
Every lease has an implied covenant of quiet enjoyment, whereby the landlord (or someone with paramount title) promises not to interfere with the tenant's possession or quiet enjoyment of the property. Interference with quiet enjoyment occurs when the there is a total eviction, partial eviction or constructive eviction.



Constructive Eviction
A constructive eviction occurs when the following occurs:

The landlord does not provide a service he obligated to provide or acts in some way that causes injury to the premises.

The conditions as a result of the above make the premises uninhabitable such that there is substantial interference with the tenant's quiet enjoyment of the property.

The tenant abandons the premises within a reasonable time after the covenant is breached.



Implied Warranty of Habitability
The majority of states impose a rule on landlords for residential rental property that leased premises are reasonably suitable for residential use - i.e. heat, hot water, no flooding, etc.

The remedy is for the tenant to:

Move out and terminate the lease.

Stay on property and sue for damages.



Duty to Repair - Permissive Waste
Generally, a tenant does not have a duty to make major repairs on the premises unless they are required to do so under the lease. However, under the doctrine of permissive waste, a tenant has a duty to inform the landlord of situations where major repairs are needed in order to prevent damage to the premises by the elements - such as leaky roofs, broken windows, potential flooding. Failure to do so makes the tenant liable for damages to the premises but not for the cost to repair the problem.



Abandonment, Surrender and Acceptance
At common law, when a tenant abandons the premises, he is still liable for the rent for the entire term of the lease even if the landlord does nothing to attempt to relet the premises. However, the majority of states now require that the landlord make reasonable efforts to mitigate the damages by attempting to relet the premises. Successfully reletting the premises does not remove the liability of the original tenant for the costs of reletting and for the time in which the premises stood vacant.

Tenant may also avoid liability for rent if it can be proven that landlord has accepted surrender of premises by re-entering and occupying the premises himself. Entering to make repairs after abandonment does not usually constitute acceptance the surrender.

Property Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Landlord-Tenant issues. If necessary, review the Property Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.



Property Fact Pattern
Theresa was about to start her first year of law school in a new city. While visiting the school in June, she entered into a one-year lease for an apartment with Larry, a landlord. The lease stated that rent was to start on September 1 and that rent of $500 was due at the first of each month.

Theresa showed up at the apartment on September 1, having already paid the first month's rent, with a rental truck loaded with her furniture but she was unable to move in because Harry was still living there. Theresa immediately called Larry and informed him of the situation. Larry said, "It's not my problem." Theresa checked into a motel and kept her furniture in the rental truck incurring additional charges on the rental truck. Two weeks later, Harry moved out of the apartment, and Theresa moved into the apartment on September 15.

On October 15 just as the weather began to turn cold, L turned off the heat and hot water to the apartment because T had not paid her rent on October 1. T insisted that L owed her for the two weeks in September that she was unable to live in the apartment. On investigating the lack of hot water, T noticed that the roof leaked. She did not inform L about the leak. T had to pay for a gym membership to take a hot shower every day.

On November 15, Theresa had become disgusted with the cold water and moved out of the apartment without ever having paid October or November rent. She immediately informed Larry of her reasons. Larry didn't do anything until December 1 when he finally inspected the apartment and discovered the leak. During the period of November 15 to December 1, there had been substantial rains and the leak caused considerable damage to the apartment. Larry fixed the leak and hot water, and put a one-line ad on the Internet looking for a tenant. The ad cost Larry $10. No one rented the apartment until February 1.

Question: What are the rights and obligations of both the Landlord and the Tenant?



Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.

Property Sample Answer
The following is a sample answer to the Property Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Property Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.


The rights and responsibilities of the two parties can be best understood by breaking them into three periods of time.


From Date that Lease Term Begins to Date Tenant Begins Occupancy
(September 1 to September 15)
The primary issue is whether Larry (L) had a duty to deliver actual possession of the property to Theresa (T). The applicable rule depends on the jurisdiction. The majority view is that the landlord must deliver the premises to the tenant at the beginning of the leasehold term. Failure to do so means that the landlord is in breach. Under the majority view, L had a duty to evict H in order for T to gain possession. Since the holdover tenant, Harry (H), prevented T from gaining possession, L would be in breach of the lease and be liable to T for the cost of the motel and other reasonable expenses such as the cost of rental van during the two weeks she did not occupy the apartment.

The minority view is that it is up to T to evict H to gain possession. Consequently, under this view, T is liable to L for rent even though she cannot occupy the apartment. L has no liability or duty to T under this rule.


From Date Tenant Begins Occupancy to Date Tenant Abandons Premises
(September 15 to November 15)
The issue is whether L's affirmative act of turning off the hot water and heat in retaliation for T's failure to pay was either a constructive eviction or a breach of the warranty of habitability sufficient to relieve T of her duties under the lease.

T has a duty to pay rent under the lease. Even though L may have been liable for two weeks worth of living expenses in September, T would probably have to seek a judgement in a court of law to get those expenses. Since T did not pay rent on October 1, L's remedy under the common law is to sue for the rental payment. Under the more modern view, L could sue for both the amount of rent due and to evict T. T owed L $500 on October 1 and another $500 on November 1. However, those duties may be mitigated by L's failure to provide necessary services.

However, under all leases there is an implied covenant of quiet enjoyment. The landlord can engage in no act that prevents the tenant from quietly enjoying her tenancy. Thus, the landlord must provide for services that make the residential property habitable. Alternatively T also has a theory to limit her liability for rent under the implied warranty of habitability.

Under the quiet enjoyment theory, T will argue that a constructive eviction occurred. T can argue that she can properly terminate the lease and seek damages (at very least, the cost of the gym membership to take the shower) because the landlord acted to make the premises uninhabitable by turning off the heat and hot water. In a cold climate, turning off the heat and hot water is considered by most reasonable people to make the apartment uninhabitable.

However, L can argue that since T stayed in the apartment for a month, she did not vacate within a reasonable time and therefore waived her right to terminate the lease. He will further argue that proof of her being bale to take a shower at the gym goes to show that the premises were not uninhabitable. L can also argue that changing the condition was in the hands of T. She could have had hot water and heat merely by paying her rent. This argument will probably not hold up under close scrutiny. One month is not a long period of time given the circumstances. With winter approaching and the coldest weather still ahead, T could argue that she waited a month because she felt that she might be able to reason with L to turn on the heat and that she only moved once it became clear that redress was not available. Consequently, T can probably terminate the lease and seek damages for the cost of her showers at the gym and the loss of quiet enjoyment of the property during the period she went without heat or hot water (October 15 to November 15).

If T does not prevail under a constructive eviction theory, she can alternatively pursue redress under the theory of implied warranty of habitability, which gives a broader footing to tenants. Under this view, L had a duty to maintain the apartment in a habitable state. The standard is usually the same as the local housing code. To the extent that the jurisdiction requires hot water and heat, T has rights and can seek a remedy for breach of those rights. T can either move out and terminate the lease or reduce or abate the rent to an amount that is equal to the fair market value of the apartment without heat or hot water. Since T moved out, she might seek an offset of the rent she owed for the period of October 15 through November 15.

During this time period, however, T had a duty to report the leaky roof to L. Under the doctrine of waste, T had a duty to prevent permissive waste. Most leases do not require tenants to make substantial repairs, such as repairing roofs. However, T did have a duty to report the leaky roof. Her failure to do so made her liable for any subsequent damage but not for the cost of repair. To the extent that T was still under the lease when the damage was done, she will be liable to L for any of that damage. T will argue that the substantial damage was done after the lease was terminated on November 15. To the extent that her theory survives, she will not be liable.



From Date Tenant Abandons Premises to End of Lease Term
(November 15 to August 31)
If T prevails under either of the above theories, then she does not owe L rent for any time after she abandoned the premises on November 15.

If T does not prevail under a constructive eviction or breach of implied warranty of habitability, then she must pay L rent for the entire lease period subject to the state's rules on abandonment.

Under the traditional common law view, L can let the apartment lie idle for the entire rental period. However, most jurisdictions require the landlord to make reasonable efforts to mitigate the damages by trying to rent the apartment out to another tenant. Here, L made the premises ready on December 1 and put a one-line ad on the Internet. L's duty to mitigate is met to the extent that putting a one-line ad on the Internet would reasonably alert potential renters to the availability of the apartment. The fact that no one rented the apartment until February might indicate that his efforts were not reasonable; however, L will argue that the holidays made renting the apartment more difficult and that any greater effort would not have yielded better results.

T's liability for future rent may also depend on whether L has accepted her surrender of the premises. T can argue that L's act of turning on the hot water, repairing the roof and reletting the premises meant that L resumed possession of the premises and those acts constitute acceptance of surrender. However, most jurisdictions hold that merely making repairs and attempting to re-rent the premises is not enough to constitute acceptance. Thus, if T was still under the lease, she would be liable for any month where there was not a tenant present in the apartment as well as the cost of the Internet ad since that expense was not incurred but for her abandonment of the premises.

Criminal Law

Criminal Law Rules of Law
The following contains the Rules of Law you'll need for the Criminal Law Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Conspiracy
Rape
Attempted Rape
Murder
Accessory After the Fact

Conspiracy
A person is guilty of conspiracy if:

Two or more people agree to commit a crime, and

the people intended to enter into the agreement, and

at least one of the conspirators commits some overt act (such as some act of preparation) that furthers the conspiracy.

NOTE: A party is guilty of conspiracy when these elements are satisfied. The actual crime does not have to occur in order to hold someone accountable for conspiracy.

NOTE: A conspirator is guilty of all the crimes that his co-conspirator commits that 1) further the conspiracy and 2) were foreseeable.

Defense to Subsequent Crimes

Withdrawal
A person who is guilty of conspiracy does not have a valid defense if they withdraw, however, he has a valid defense to the subsequent crimes of the conspirators if he does the following:

engages in an affirmative act, and

the affirmative act gives notice to all co-conspirators that he is withdrawing, and

the co-conspirators have enough time to halt their plans to commit the crime.

Rape
Common Law rape is present if the following elements occur:

sexual intercourse between a female and a male, who is not her husband

AND the female does not consent.

Lack of consent is present where

the intercourse occurs by force or

the intercourse occurs by threats of force or

the female is unable to consent because she is unconscious

Attempted Crimes
A person can be charged with an attempted crime (such as "attempted rape" or "attempted murder") even though the criminal did not complete all of the elements necessary to make the person guilty of the actual crime.

The following must occur for a person to be guilty of an attempted crime.
Criminal shows intent to commit a crime, and

the criminal comes dangerously close to successfully completing the crime but somehow does not complete all of the required elements.

Murder
Murder occurs when the following elements are satisfied:

killing of a human being

with malice aforethought.

Malice aforethought exists if any one of the following states of mind exists in the person committing the act:

intent to kill, or

intent to cause substantial injury, or

reckless indifference to risk that a person may die, or

intent to commit a felony (See felony murder).

Felony Murder
A criminal is guilty of felony murder if a death occurred while the criminal committed or attempted to commit a felony that is inherently dangerous.

An inherently dangerous felony includes any one of the following:

Arson
Battery
Burglary
Kidnapping
Mayhem
Rape
Robbery


Accessory
Someone who does not actually commit a crime may be guilty as an accessory after the fact if the following elements of the crime are met.

Must have knowledge that a felony has been committed.

Must aid or assist the felon in some way.

The purpose of the aid must be to help the felon escape from the authorities.

Criminal Law Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 90 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Rape, Murder and related issues. If necessary, review the Criminal Law Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Criminal Law Sample Answer.



Criminal Law Fact Pattern
Five male university students (Abe, Bob, Chris, Dan and Edward) were on Spring Break. They met a young woman named Mary who they lured back to their hotel room. The guys made repeated sexual advances to Mary. She rebuffed the sexual advances from all of the students except for Dan. Mary said she would have sex with Dan but not with the others.

Abe said, "If Mary isn't willing to have sex with all of us, then we'll have to force her. Are you guys with me?" Bob nodded his assent. Chris, Dan and Edward just stood there and did not respond. Mary objected and said she wanted to leave. Abe locked the door so Mary couldn't get out.

Bob suddenly had a change of heart and said, "I'm not going to go through with it, and I think all of you should stop as well." At that point, Bob left the hotel room and went to his own room, but didn't do anything further.

Abe then forcibly held Mary down and proceeded to have intercourse. Chris, who was very drunk, then said "I'm going to force her to have sex with me too." He took his clothes off and got up on the bed. However, before he actually had intercourse with Mary, Chris passed out from the alcohol. In relief that she wouldn't be forced to have sex again, Mary passed out.

Dan decided that since Mary had said she wanted to have sex with him, it was OK and he proceeded to have sexual intercourse with the unconscious Mary. After Dan had sex with Mary, Mary woke up and started screaming. Afraid that someone would hear the screaming Mary, Abe choked her until she was dead. Edward just watched the whole time and said and did nothing.

After Mary died, Abe, Chris and Dan went to Bob's bedroom. Edward went back to his bedroom and did nothing. Abe, Chris and Dan told Bob everything that had happened. Bob said that Abe, Chris and Dan could spend the night in his room so that they wouldn't be found with the dead body. The next morning, the police found Mary and arrested all five students.

Question: What crimes are the students guilty of? Are there any possible defenses?

For purposes of this question, consider battery and assault to be lesser-included offenses under the greater charge of rape. Also, do not cite cases or precedent for this question. In your actual exam, you may want to cite cases depending on what your professor wants. However, because casebooks vary widely between schools, we have not included cases in the sample answer or analysis.



Once you have completed the practice exam in the time allotted, then compare your answer with this Criminal Law Sample Answer.

Criminal Law Sample Answer
The following is a sample answer to the Criminal Law Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Criminal Law Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.



Conspiracy
The agreement to commit rape gives rise to the issue of whether any of the students are guilty of conspiracy to commit rape.

The common law rule for conspiracy requires that two or more people actually agree and intend to agree to commit a crime and that one conspirator commits some overt act in furtherance of the conspiracy.

Here, A asked whether the other men would forcibly have non-consensual intercourse with a woman who was not their wife, which is the definition of common law rape (see below). B agreed by nodding his head. If any of the defendants had intended to just play along, then the intent element required for conspiracy would be absent and the party would be not guilty of the charge. However, there is nothing shown on the facts to suggest that any of the defendants had a different intent than that which their words and gestures showed. When A actually locked the door of the room, this was an overt act, which prepared for the crime. These elements, taken together, are sufficient to make A and B guilty of conspiracy without any further action on their part. Since C, D and E never agreed, they are not guilty of conspiracy.

B effectively withdrew from the conspiracy because he engaged in an affirmative act that gave notice to the other conspirator - A- that he was withdrawing and there was enough time for A to halt his plan to rape Mary. While this does not provide B with a defense for the conspiracy charge, it does give him a defense against the charges of subsequent crimes by A.



Rape
The next issue is whether any of the students are guilty of rape.

The rule on common law rape requires sexual intercourse between a female and a male, who is not her husband, and where the female does not consent. The lack of consent can be shown if the intercourse occurs by force, threats of force or if the female is unable to consent because of unconsciousness.

Here, A and D are both males who had intercourse with Mary, a female, who was not the wife of any of the guys. B, C and E never had intercourse with Mary and thus are not guilty of rape.

Mary showed a lack of consent to have sex with A before the actual conspiracy began. She again showed her lack of consent when she objected as the conspiracy began. Finally, the mere use of force in A's case showed that there was no consent.

In the case of D, the issue is not as clear cut. Although she had agreed to have sex with D prior to the conspiracy, the fact of the conspiracy, false imprisonment and rape by A would probably result in any reasonable person changing their mind. Furthermore, since she was in a state of unconsciousness, this manifests a lack of consent under the law. While D may have a defense of consent, it all likelihood, he is also guilty of rape.



Attempted Rape
The issue is whether C is guilty of attempted rape.

Under the common law, a defendant is guilty of an attempted crime when the criminal shows intent to commit a crime and comes dangerously close to successfully completing the crime.

Here, C showed his intent to commit the crime of rape by stating that he intended to force Mary to have sex. He came dangerously close because he took his clothes off and got on the bed until he finally passed out. Although he never actually had intercourse with Mary and thus is not guilty of rape, he came quite close to completing the crime and thus can be charged with attempted rape.



Murder
The next issue is whether any of the defendants is guilty of murder.

Common law murder requires a killing of a human being with malice aforethought. Malice aforethought exists if there is intent to kill, intent to cause substantial injury, reckless indifference to the risk that a person may die or intent to commit a felony.

Here, Abe choked Mary, another human being, until she was dead. Malice aforethought is shown because Abe's choking Mary was, at very least, reckless as to the risk that a person will die. It is common knowledge that cutting off the air to a person by choking him may cause him to stop breathing and die. Abe has no reasonable defense under these circumstances. If a jury finds that he was not reckless, then he can be brought in under the felony murder rule.

Common law felony murder exists if a death occurred while a criminal committed a felony that is inherently dangerous. Rape is considered an inherently dangerous felony.

Since A and D both committed rape and Mary died while still within the time and place of the crime, both are guilty of felony murder. It is less clear whether attempted rape is an inherently dangerous crime and whether C would also be guilty of felony murder. Here the issue probably hinges on intent. In Felony Murder, malice is inferred from the intent to commit the underlying dangerous felony. Since C intended to commit the crime of rape, malice should be inferred to the same degree that it is in the case of A and D. Therefore, following that theory, it was as if C had actually committed the rape and therefore would be guilty of the crime of felony murder.

Since B withdrew from the conspiracy, he is not responsible for the crimes of his fellow co-conspirators and therefore is not guilty of felony murder or murder.

Accessory to Rape and Homicide
The issue is whether B is guilty as an accessory after the fact to rape and murder.

The common law rule on accessory after the fact requires that a defendant have knowledge that a felony was committed and aided or assisted the felon in some way to avoid being caught by the authorities.

Here, B knew of the crimes because A, C and D told him. Because he let them stay in his room in order that they wouldn't be found with a dead body, one can reasonably conclude that he was helping them escape detection by the police. Thus, B is guilty of being an accessory after the fact to rape and homicide.

It should be noted that E had no part in any of the crimes. Although he was a witness to the events, that does not make him guilty of the crimes since he neither acted nor showed any intent to act. Furthermore, he was not an accessory after the fact because he did not aid in the others escape. He went to his own room after the events. Although an argument could be made that he complied in the crimes, there is no actus reus that suggests he could be found guilty for any of the crimes.

Contracts

Contracts Rules of Law
The following contains the Rules of Law you'll need for the Contracts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Uniform Commercial Code (UCC) 2-102
Uniform Commercial Code (UCC) 2-302
Unconscionability
Procedural Unconscionability
Substantive Unconscionability

Uniform Commercial Code (UCC) 2-102
Contracts for the sale of goods should be interpreted by the UCC.

Uniform Commercial Code (UCC) 2-302
If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract....

Unconscionable Contracts
Courts that find any contract or clause to be unconscionable at the time it was made can refuse to enforce the contract or limit the application of an unconscionable clause to avoid an unconscionable result.

Unconscionability requires two elements, both of which must be present in order to make a contract invalid - procedural unconscionability and substantive unconscionability. In applying element, a sliding scale allows for a greater degree of one factor and a lesser degree of another to result in a finding of unconscionability.

Procedural unconscionability may be shown by either:

Inequality in Bargaining Power
Evidence of inequality in bargaining power can be shown by 1) terms unreasonably favorable to other party, 2) terms that are hidden in the contract, and 3) a plaintiff with a lower education.

OR Unfair Surprise
Evidence of unfair surprise is shown by hidden terms in a prolix document.

Defense: Although procedural unconscionability may be present, this element can be defeated if the complaining party had other sources of supply at a price, which was not unconscionable.

Substantive unconscionability may be shown by:

Overly harsh allocation of risks or costs not justified by the circumstances.

Great price disparity
Three to four times the fair market value is considered to be a great price disparity.

Contracts Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 30 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of unconscionable contracts. If necessary, review the Contracts Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Contracts Sample Answer.

Contracts Fact Pattern
Fast Eddie is the only car dealer in the west end of Anytown. The west end is in the slums and has a high crime rate. Eddie sells junkers with a high mark up -- typically twice what a similar car would cost in the north end where there are three car dealers.

Fast Eddie has just bought a brand new electrified fence at a substantial cost and hired several security people with attack dogs to patrol his lot at night. Up until the new security measures, one out of three cars had been stolen off of his lot. "The security cost me a bundle," Eddie says, "but I bet I'll only lose one out of six of these junkers now."

Only one bus drives through the west end and makes only two circuits. It picks people up at 10 am and drops them off in the north end at 11 am. It starts from the north end at 3 PM and drops them off in the west end at 4 PM. There are no other buses. There is no way to reasonably walk out of the west end. You either take the bus or have a car.

Laura is a welfare mom. She dropped out of high school to have her baby. Laura is about to lose her welfare money as part of the new welfare-to-work program. She has secured a job in the north end which pays her $1000 a month after taxes. She must report to work by 9 am each day and stay until 4 PM or she will lose the job. There are no taxis willing to go to the west end.

Laura goes to Fast Eddie to buy a car. He offers her any car on the lot for $2400, which is approximately twice the cost of the same vehicle if you bought it in the north end. She tries to negotiate with Eddie, but he brushes her off by saying, "It's part of my 'No Haggle Policy'. One price for everything -- $2400. Take it or leave it. Here's the contract."

The terms are that Laura can pay off the $2400 over the course of a year in 12 equal installments, or $200 a month. If Laura defaults on any payment then Eddie gets to repossess the car and keep all of the payments. Laura's expenses are $750 a month, which Eddie is aware of. The interest rate on a good loan in this city would be 20%.

Laura reads the contract, but doesn't understand the part about keeping all of the payments and repossession. She's desperate for a car, however, so she signs an agreement to these terms and buys the car. She starts work and everything goes well until the 11th month when her baby gets sick. Laura has to pay the doctor and misses a payment on the car. Eddie repossesses. Laura loses her job, gets evicted from her apartment and ends up in a homeless shelter where her baby gets even more sick because of the drafty conditions. Laura's boss says that if she can get the car for transportation, then she gets her job back.

Question: Does Laura have a remedy under a theory of unconscionable contracts?


Once you have completed the practice exam in the time allotted, then compare your answer with this Contracts Sample Answer.

Contracts Sample Answer
The following is a sample answer to the Contracts Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Contracts Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

This problem raises the issue of whether the agreement between fast Eddie (Ed) and Laura (L) should be enforced or instead should either be modified or rendered void because it was unconscionable.

This agreement should be interpreted by the relevant provisions of the UCC because it involves the sale of goods. (UCC 2-102). Normally, bargains are enforced according to their terms. However, courts may choose not to enforce contracts, which they deem unconscionable. (UCC 2-302). The case law states that unconscionable contracts have two major elements -- procedural and substantive -- and that both elements must be established to prevail on this defense. Traditionally courts have applied a "sliding scale" analysis to unconscionability claims: the greater the procedural unconscionability, the less the plaintiff must show substantive unconscionability and vice versa.

L could prove procedural unconscionability in one of two ways. She could demonstrate that there was unfair surprise in the bargaining process or she could show that there was an inequality of bargaining power, which left her no meaningful choice. Per the former, L's argument would be that she didn't understand the contract provisions regarding what would happen should she default. Her argument is bolstered if we assume, as the facts suggest, that she has little formal education and that Ed didn't explain the default provision (he only said "Here's the contract."). Courts often consider the plaintiff's lack of education, the technical wording of the default clause and the fact that the clause was buried in fine print in holding that there was procedural unconscionability.

Ed's best argument would be that L read the contract and should reasonably have known what she was agreeing to. Ed could bolster his case by showing that the default clause was written in plain English and was prominently located in the contract. A court armed with these facts could well find for Ed. However, the facts we have lead me to conclude that L could likely establish unfair surprise.

L has a strong case that she had no meaningful choice in this decision. Ed was the only car dealer in the West End, L needed a car to get to work, and L had to work in order to survive. Ed's response would be that L didn't have to accept employment, which required a car and that she could have gone to the North End to buy a car. This is a situation where more facts would be helpful in establishing the merits of each side's arguments. If we assume, however, that L did job-hunt and that this job best fit her needs and qualifications, she would have a strong case.. Here, L could establish that she tried to find other work before settling on this position. Further, it is possible that a dealer in the North End would not have sold L a car because she was a poor credit risk. Therefore, she may not have had a choice in car dealers. Again, this is a close call but on these facts I would conclude that L has a better-than-even chance of prevailing on this prong of the procedural unconscionability analysis.

Substantively, L will have difficulty establishing unconscionability, at least with respect to the purchase price. The basic rule is that a contract is substantively unconscionable if involves an overly harsh allocation of risks or costs. L's argument is that the car cost twice what it did in the North End. However, Ed can make a strong case for his pricing scheme. His security costs are presumably greater than those dealers must bear in the North End. The facts state he had to install an expensive fence and hire security guards and that despite these measures, one out of every six of his cars will still be stolen. Ed may also have a lower sales volume than dealers in the North End because his shop is located in a poor community. Further, he does not require full payment up front. Given that interest rates in the city hover around 20%, the effective price of the car is $2000. This price may be justified given his costs and sales volume.

L can make a better case that the default clause which allowed Ed to repossess the car and keep all payments previously tendered is unconscionable. Ed was fully aware of L's precarious financial position. This clause smacks of bad faith and I believe it likely that a court would render this provision void. Alternatively, it might, as allowed under the UCC, modify the arrangement so that L could be given additional time to make the last two payments plus pay additional interest at the prevailing rate until she does so.

In sum, L can probably show that the default provision of the contract was both procedurally and substantively unconscionable. I think the price would stand but that the court would either allow her additional time to make the payment or would have her return the car and receive most of her money back.

Civil Procedure

Civil Procedure Rules of Law
The following contains the Rules of Law you'll need for the Civil Procedure Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

In personam jurisdiction
Subject matter jurisdiction





In personam jurisdiction
Personal, or in personam, jurisdiction is imposed over a defendant when both statutory and constitutional issues are met.

Statutory issues
The forum state must have granted power to the courts to exercise jurisdiction over the defendant. This can be done in one of four ways:

the defendant is present in the forum when served.

the defendant is domiciled in the forum

the defendant consents to jurisdiction or

the state's long arm statute provides for jurisdiction.

Constitutional Issues
In order for the court to exercise personal jurisdiction, the Due Process clause of the US Constitution requires that the defendant has maintained minimum contact with the forum state:

Minimum Contacts Test (International Shoe, Burger King)
Does the defendant have such minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?

Minimum Contacts is demonstrated by:

Purposeful availment, such that the defendant's voluntary act to reach out into the forum state was for some benefit to himself. Examples include putting goods into the stream of commerce, using the forum state's highways or taking advantage of the state's corporate law.

Foreseeability. The Defendant knew or should have known that it could get sued in the forum state.

Fair Play and Substantial Justice is a balance of the following factors:

The closeness of the relationship between the claim and the contact.

Whether it is convenient to call the defendant into the forum state.

The state's interest in protecting its citizens.



Subject matter jurisdiction
A defendant can be drawn into Federal court only if the subject matter of the claim is within its jurisdiction. There are two primary types of claims -- Federal Question and Diversity of Citizenship.

Federal Question
The complaint must find its basis in some federal law, such as the US Constitution, US Federal Law or Case Law. Citizenship is not relevant and parties can be from the same state.

Diversity of Citizenship
Diversity of citizenship cases require that the plaintiff and defendant be citizens of different states and that the amount in controversy be over $75,000.

Citizens of Different States
The parties must be of diverse citizen, such no single defendant can be a citizen of the same state as any plaintiff.

Citizenship
People: Whether a person is a citizen of a particular state is determined by domicile. Domicile is defined as presence in the state with the intent to remain indefinitely.

Corporations: Whether a corporation is a citizen of a particular state is determined by 1) state of incorporation and 2) the state where the corporation has its principal place of business.

Amount in Controversy
The claim for damages must be over $75,000 and must be made in good faith.

To reach the $75,000 limit, a plaintiff can

aggregate claims that arise from the same case or controversy

aggregate claims from different controversy if it's there's only one defendant and one plaintiff


Civil Procedure Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of jurisdictional issues. If necessary, review the Civil Procedure Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Civil Procedure Sample Answer.



Civil Procedure Fact Pattern
Peter is a model rocket hobbyist who lives in the State of X on the border with Y State. The closest shopping district next to him is in Y State. Donner Industries makes a model rocket called the A-5. Donner is incorporated in the state of Delaware and has its only place of operations in Z State. Donner does no national advertising itself and does not sell directly to stores or hobbyists. Donner sells only to a nationwide distributor in New York City. Donner provides the distributor with various promotional materials including tapes of radio advertisements that hobby stores can use to buy time on local radio stations. No hobby store in X State carries the A-5.

Peter hears the Donner-produced advertisement on a radio state broadcasting from the State of Y about the new A-5 model rocket being sold at a local Henry's Hobby Store in Y State. Peter travels from X State into Y State and buys an A-5 rocket. At his home in X State, Peter assembles the rocket correctly. Following all safety precautions, Peter attempts to launch the A-5 rocket but, due to a faulty design, the A-5 explodes causing substantial personal injury to Peter and igniting a fire that damages Peter's house. In Federal District Court in X, Peter sues Donner Industries claiming $40,000 in damages to the house, $30,000 in medical bills due to personal injuries and $10,000 in lost wages due the injuries.

State X's long-arm statute provides for jurisdiction against tortfeasors whose actions cause injury in the state of X.

You are a law clerk for the Federal District Court in the state of X, and the presiding judge has asked you to prepare a memo analyzing whether or not the case should be heard in this court. What are the issues, correct result and reasoning on whether or not this case should be heard?



Once you have completed the practice exam in the time allotted, then compare your answer with this Civil Procedure Sample Answer.


Civil Procedure Sample Answer
The following is a sample answer to the Civil Procedure Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Civil Procedure Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.



Under the Federal Rules of Civil Procedure, a district court may hear a case only if it has both personal jurisdiction and subject matter jurisdiction.



Personal Jurisdiction
Personal (in personam) jurisdiction is imposed over a defendant when both statutory and constitutional issues are met.

From statutory point of view, one of four situations must occur to impose in personam jurisdiction. The defendant must 1) be present in the forum when served, 2) domiciled there, 3) consents to jurisdiction or 4) the state's long arm statute provides for jurisdiction.

Since Donner Industries (D) is not present in the forum of X, Peter (P) must use the state's long arm statute to reach D. X's long arm statute provides for jurisdiction over a defendant whose tortious actions cause injury in X. In this case, the underlying tort-the defective manufacture of the A-5 rocket - occurred in Z. However, since the actual injury occurred in X, the state's statute properly provides for jurisdiction.

Constitutionally, the court has jurisdiction over D only if brining D into the forum state comports with the Due Process Clause. The Due Process Clause is satisfied if the defendant meet the minimum contacts test (International Shoe, Burger King) in order that the defendant has "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice."

Minimum contact has been interpreted by the courts as including two elements 1) actual contact and 2) fairness. Under the actual contact prong, the factors considered are purposeful availment and foreseeability. Under these facts, D could argue that it did not purposefully avail itself directly to X residents because it did not sell directly to any hobby stores or to any hobbyists in the state. Furthermore, it does not advertise, therefore D could claim that it does not try to benefit from the state's consumers, and it was not foreseeable that it would be drawn into the state's court.

P, however, has a compelling argument that by merely selling its products to a national distributor in New York City, D knew or should have known that its rockets - a potentially dangerous item by its very nature - would be put into the stream of commerce nationwide. D will counter that even if was foreseeable that it might be called into Y, it was not foreseeable that X residents would cross the border into Y. In addition, the A-5 was never sold in X, therefore D could not have foreseen an action in this forum. However, the mere fact that the rocket was advertised on a State Y radio station suggests that Henry's Hobby Store (H) was reaching across to X citizens. P will argue that given the strength of the signal of some radio stations, it was foreseeable to D that stores in one state using the D-produced advertising would reach across borders into other states. Therefore, I think that the purposeful availment and foreseeability tests for contact have been met in these circumstances.

Fairness is tested by looking at factors such as 1) how close the relationship is between the claim and the contact, 2) whether the forum is convenient and 3) the state's interest. Here the evidence suggests that it is fair to call D into court in X. The injuries were a direct result of faulty design. But for the sale of the rocket to P, the damage would not have occurred. Therefore, the relatedness factor is satisfied. The forum is arguably as convenient as Y and bears no great burden to D. Given the wide availability of nationwide flights, D will have no great burden to appear before the X Federal District Court. In addition, the sate has a great interest in seeing that its citizens are protected from faulty design in potentially dangerous products such as model rockets.

Given all of these factors, it is reasonable to conclude that bringing D within the forum is both fair to the defendant and meets the minimum contacts test, therefore in personam jurisdiction is proper under these circumstances.



Subject Matter Jurisdiction
A defendant can be drawn into Federal court only if the subject matter of the claim is within its jurisdiction. Typically, cases fall into one of two classes - federal question and diversity of citizenship. Since there doesn't appear to be any federal law impacted here, we will proceed to analyzing this case on diversity issues.

Diversity of citizenship cases require that the plaintiff and defendant be citizens of different states and that the amount in controversy be over $75,000.

In the case of citizenship, the diversity must be complete. Citizenship for a person is determined by domicile. Here, all facts point to P being a citizen of X since he lives there, presumably with an intent to remain indefinitely. Citizenship for a corporation is determined by its state of incorporation and its principal place of business. Since D is incorporated in Delaware but operates only in Z, it has dual citizenship in both Delaware and Z. Since neither the plaintiff nor the defendant are citizens of the same state, the first prong of diversity jurisdiction is met.

The amount in controversy requires that the plaintiff make a good faith allegation that the claim exceeds $75,000. Here, P has aggregated three types of damages - none of which is over $75,000. However, since the damages all relate to the same case and since there is only one plaintiff and one defendant, P can aggregate his claims against D in order to meet the jurisdictional limit. The good faith requirement merely means there is a legal basis for the assessment of potential damages. If D is found liable for the tortious act, it is reasonable to conclude that they may have to pay damages for all three of the claims since property damage, personal damage and lost wages are likely results from a rocket that was not correctly designed.

Consequently, the defendant is subject to both personal and subject matter jurisdiction and may be properly brought before the X District Court.

Lawnerds Site

I have found this very useful site called Lawnerds. It aids me into practicing my brain with legal issues and some basic cases. Probably this will help me practice so when I decide to go back to law school I will have some background. Most of these are actually U.S. based cases but I am sure they are relevant in my brainstorming sessions. Just need to stretch my brain once in awhile. I also have to check if the lessons I have enrolled in Xavier University in Cagayan de Oro City and in Mindanao State University would still be valid because they actually require you to take the courses consecutively. And if you have a break, you should refresh your courses. I have been out of the country for three years now and have only refreshed it in 2003. What a pity. Most of my classmates have become lawyers already. Lots of them. I have cheked the barpassers from Xavier but I have not read any passers from MSU or from MSU Main Campus. I wonder why.

I will post the basic questions and answers here just so I can refresh my memory of the course on my own. Too bad there are no online courses for Law from the Philippine schools.