Bruce is asking for volunteers interested in coming to his class next year to speak to the class about their experiences and job opportunities after completing the UW Paralegal Program.
If you are interested, check out the Google Group page entry and leave a reply with your contact information or you contact Bruce directly at his email address listed on Google Group.
http://groups.google.com/group/uwparalegal/browse_thread/thread/df50563a035b4694?hl=en
Friday, May 28, 2010
May 27th Notes
Business Law
May 27, 2010
NEWS
Write a will for extra credit
----------------------------------
Estate Planning
What is Estate Planning?
An individual’s “estate” is any interest the individual has in any personal or real property.
This includes property owned solely by the individual or owned in common with another.
Probate
Property owned by the decedent at the time of death
This property is distributed by the court
Non-Probate
Property that was owned by the decedent at the time of death that passes directly to heirs (or someone else) rather than going through probate
Why make a plan?
Provide for spouse or partner at death
Provide for minor children
Provide for children of a prior relationship
Designate specifically who – person or entity – will have benefit of one’s property
Avoid taxes
Avoid probate
Sources of Law
Primarily statute
In Washington RCW Title 11 is the title governing estate interests
Title 26 governs community property and property of domestic partners
Title 83 governs taxes of estates and gifts
Some common law sources
Appellate decisions
Restatements
Without a plan?
Intestate Succession
If the individual does not provide for property distribution prior to death, the government will decide how to distribute the property.
Decedent is called an intestate
Includes property in a will if there is a lapsed gift
Includes all property if will is invalid
RCW 11.04.015
Priority of distribution
Protection of Families
Homestead exception
Family allowance
In Washington, the protections for the family are set out in RCW 11.54
Escheat
If a person dies without a will and without an heir, the estate will pass to the state.
RCW 11.08.140
What kinds of plan?
Prenuptial agreements
Community property agreements
Life insurance
Wills
Trusts
Health care directives
Powers of attorney
Prenuptial Agreements
An agreement made in anticipation of marriage.
Provide for distribution of property upon dissolution of marriage
Also provide for agreement as to distribution upon death of one spouse
Community Property
One spouse’s share in community property (i.e., one-half) may be gifted by will.
If an estate is probated, all community property is subject to probate administration.
Life Insurance
Whole life – these policies are both life insurance and an investment (premiums are set at the time of purchase)
Universal life – also are both life insurance and an investment (premiums may vary during the course of policy ownership)
Term life – only insurance
Purchased for a specified term (with renewal option)
Wills
A will is a legal expression of an individual’s wishes as to how his or her property should be distributed when that person dies.
The person making the will is the testator
RCW 11.12 governs the making of wills in Washington
Kinds of Wills
Formal will
Written, signed by the testator, witnessed by two witnesses
Holographic (or informal) will
Usually handwritten by the testator
These are NOT valid in Washington
Nuncupative (or oral) will
These are NOT valid in Washington (however there a limited exceptions)
Requirements of a Will
Legal capacity
Must be an adult (18 in Washington)
Testamentary capacity (of sound mind)
Knowing what property one owns
Knowing who his or her relations are
Knowing what he/she wants to do with the property
Voluntarily act (without undue influence)
Contents of Will
Exordium clause
identifies testator, states his domicile and announces that this is his will
Revocation clause
revokes all prior wills, codicils
Identification of family clause
Dispositive provisions (specific devises)
Minor beneficiary clauses
Testamentary guardian/Trust for minor
Simultaneous death clause
Appointment of personal representative
Statement of powers and duties
Separate writing clause
Attestation clause
Self proof clause
Self Proving Clause
Washington statute provides for a self-proving clause.
Affidavit signed by the witnesses under oath.
This affidavit makes it unnecessary to call the witnesses in the probate proceeding to prove the validity of the will
Execution of Will
One of the few formalities left in law
Must be signed
Must be witnessed by two witnesses
Witnesses must be able to say
They know who the testator is
The testator was competent
The testator was not acting under duress or undue influence
Testator must ask witnesses to witness; they must both be present at the time the will is signed (presence of testator and presence of each other)
Letters of Instructions
Information for the family and personal representative
Preferred funeral arrangements
Location of assets
Location of important papers (including will)
Information about insurance policies and pension plans
List of debts, creditors
Contact information for key people (personal representative, CPA, attorney, heirs)
Codicil
A codicil is an amendment or addition to the will
The same formalities are required for executing a codicil
Revocation
A will can be revoked by
Writing a new will
Physically destroying the old will
Trusts
A trust is an agreement under which money or other assets are held and managed by one person for the benefit of another.
Common benefits include
Providing personal and financial safeguards for the beneficiaries
Postponing or avoiding unnecessary taxes
Establishing a means of controlling property
Meeting social or commercial goals
Trust Terms
Trustor (grantor or settlor) – the person who creates the trust
Trustee – the person or entity who holds legal title of the trust property for the benefit of another
Trust Property (principal, corpus or res) – the property placed in trust by the settlor
Beneficiary – person to benefit from trust
Trust purpose – reason why trust is created
Requirements
To be a valid trust
Settlor must manifest an intention to create it
Trust must have assets (this may include future assets)
Trust must have legal purpose (not against public policy)
Must identify beneficiary
Must be established by written document or by operation of law
Categories of Trusts
Inter vivos or living trusts – created while trustor is alive
Testamentary – created as part of will
Revocable living trusts – trustor retains right to change or terminate the trust
Irrevocable living trusts – trustor gives up right to revoke after creation
Express trusts – intentionally created
Implied trusts – created by operation of law
Rule against Perpetuity
All interests in property must vest within 21 years of the life of someone who is alive at that time of the creation of the interest.
Insures that someone will own the property within a reasonable time
RCW 11.98.130
Termination
Trusts terminate when:
Express terms of trust instrument require termination at a specific time or upon the happening of a specific condition (child reaches age of majority)
Fulfillment of trust purpose
The same person owns both legal and equitable or beneficial title of trust property
Settlor revokes the trust
Probate
Probate is a legal procedure for settling the affairs of a person who has died and overseeing the distribution of the decedent’s property to the rightful beneficiaries.
The process
Collects and protects decedent’s property
Identifies beneficiaries and creditors
Pays all debts, expenses, taxes
Distributes the property of the estate properly
Jurisdiction of the court is triggered by
Filing Petition to Probate a Will (person died testate) or
Petition for Letters of Administration (intestate)
Personal Representative or Administrator is appointed
Court’s continued involvement is to resolve disputes or interpret documents
Duties of Representative
Notify heirs and creditors
Take possession of and inventory estate
Determine fair market value of estate assets
Determine names, locations of heirs
Collect debts owed to the decedent
Represent the estate in any challenges to the will
Complete any pending lawsuits in which the decedent has an interest
Prepare tax returns and pay all estate and income tax
Pay the valid claims of creditors
Sell property – when necessary – to pay debts and taxes
Transfer title to real property and certain personal property
Distribute the remaining assets to the designated heirs
File a Declaration of Completion of Probate
Estate Taxes
One reason for making estate plans is to avoid estate taxes
Health Care Directive
A document that expresses the individual’s desires regarding the withholding or withdrawal of life support measures
A helpful website discussing the issues that should be considered is
www.agingwithdignity.org
www.atg.wa.gov/DealingWithDeath/default.aspx
www.doh.wa.gov/livingwill/healthcaredirective.htm
Power of Attorney
Three forms
Durable Power of Attorney
Power of Attorney for Health Care Decisions
Power of Attorney
Review for the Final
-2 long essays
1. Fact pattern in the assignment 3 formation of a business
-facts of assignment 3, question is using fact scenario below discuss the types of business forms and why each is or is not appropriate for these entrepreneurs?
-go online, stop after Dan.
-LLC, Corporation, etc.
-Can write answer ahead of time and attach it
2. Fair use question
-some matching questions
-words that match
-23 contract terms
-16 property law terms
-true/false questions
-agency and employment law
-multiple choice
-14 taken from book
-1 business tort
-short answers
-4 questions
-3 to 4 sentences
-contract claims, tort claims, intestate. Employment, contract
May 27, 2010
NEWS
Write a will for extra credit
----------------------------------
Estate Planning
What is Estate Planning?
An individual’s “estate” is any interest the individual has in any personal or real property.
This includes property owned solely by the individual or owned in common with another.
Probate
Property owned by the decedent at the time of death
This property is distributed by the court
Non-Probate
Property that was owned by the decedent at the time of death that passes directly to heirs (or someone else) rather than going through probate
Why make a plan?
Provide for spouse or partner at death
Provide for minor children
Provide for children of a prior relationship
Designate specifically who – person or entity – will have benefit of one’s property
Avoid taxes
Avoid probate
Sources of Law
Primarily statute
In Washington RCW Title 11 is the title governing estate interests
Title 26 governs community property and property of domestic partners
Title 83 governs taxes of estates and gifts
Some common law sources
Appellate decisions
Restatements
Without a plan?
Intestate Succession
If the individual does not provide for property distribution prior to death, the government will decide how to distribute the property.
Decedent is called an intestate
Includes property in a will if there is a lapsed gift
Includes all property if will is invalid
RCW 11.04.015
Priority of distribution
Protection of Families
Homestead exception
Family allowance
In Washington, the protections for the family are set out in RCW 11.54
Escheat
If a person dies without a will and without an heir, the estate will pass to the state.
RCW 11.08.140
What kinds of plan?
Prenuptial agreements
Community property agreements
Life insurance
Wills
Trusts
Health care directives
Powers of attorney
Prenuptial Agreements
An agreement made in anticipation of marriage.
Provide for distribution of property upon dissolution of marriage
Also provide for agreement as to distribution upon death of one spouse
Community Property
One spouse’s share in community property (i.e., one-half) may be gifted by will.
If an estate is probated, all community property is subject to probate administration.
Life Insurance
Whole life – these policies are both life insurance and an investment (premiums are set at the time of purchase)
Universal life – also are both life insurance and an investment (premiums may vary during the course of policy ownership)
Term life – only insurance
Purchased for a specified term (with renewal option)
Wills
A will is a legal expression of an individual’s wishes as to how his or her property should be distributed when that person dies.
The person making the will is the testator
RCW 11.12 governs the making of wills in Washington
Kinds of Wills
Formal will
Written, signed by the testator, witnessed by two witnesses
Holographic (or informal) will
Usually handwritten by the testator
These are NOT valid in Washington
Nuncupative (or oral) will
These are NOT valid in Washington (however there a limited exceptions)
Requirements of a Will
Legal capacity
Must be an adult (18 in Washington)
Testamentary capacity (of sound mind)
Knowing what property one owns
Knowing who his or her relations are
Knowing what he/she wants to do with the property
Voluntarily act (without undue influence)
Contents of Will
Exordium clause
identifies testator, states his domicile and announces that this is his will
Revocation clause
revokes all prior wills, codicils
Identification of family clause
Dispositive provisions (specific devises)
Minor beneficiary clauses
Testamentary guardian/Trust for minor
Simultaneous death clause
Appointment of personal representative
Statement of powers and duties
Separate writing clause
Attestation clause
Self proof clause
Self Proving Clause
Washington statute provides for a self-proving clause.
Affidavit signed by the witnesses under oath.
This affidavit makes it unnecessary to call the witnesses in the probate proceeding to prove the validity of the will
Execution of Will
One of the few formalities left in law
Must be signed
Must be witnessed by two witnesses
Witnesses must be able to say
They know who the testator is
The testator was competent
The testator was not acting under duress or undue influence
Testator must ask witnesses to witness; they must both be present at the time the will is signed (presence of testator and presence of each other)
Letters of Instructions
Information for the family and personal representative
Preferred funeral arrangements
Location of assets
Location of important papers (including will)
Information about insurance policies and pension plans
List of debts, creditors
Contact information for key people (personal representative, CPA, attorney, heirs)
Codicil
A codicil is an amendment or addition to the will
The same formalities are required for executing a codicil
Revocation
A will can be revoked by
Writing a new will
Physically destroying the old will
Trusts
A trust is an agreement under which money or other assets are held and managed by one person for the benefit of another.
Common benefits include
Providing personal and financial safeguards for the beneficiaries
Postponing or avoiding unnecessary taxes
Establishing a means of controlling property
Meeting social or commercial goals
Trust Terms
Trustor (grantor or settlor) – the person who creates the trust
Trustee – the person or entity who holds legal title of the trust property for the benefit of another
Trust Property (principal, corpus or res) – the property placed in trust by the settlor
Beneficiary – person to benefit from trust
Trust purpose – reason why trust is created
Requirements
To be a valid trust
Settlor must manifest an intention to create it
Trust must have assets (this may include future assets)
Trust must have legal purpose (not against public policy)
Must identify beneficiary
Must be established by written document or by operation of law
Categories of Trusts
Inter vivos or living trusts – created while trustor is alive
Testamentary – created as part of will
Revocable living trusts – trustor retains right to change or terminate the trust
Irrevocable living trusts – trustor gives up right to revoke after creation
Express trusts – intentionally created
Implied trusts – created by operation of law
Rule against Perpetuity
All interests in property must vest within 21 years of the life of someone who is alive at that time of the creation of the interest.
Insures that someone will own the property within a reasonable time
RCW 11.98.130
Termination
Trusts terminate when:
Express terms of trust instrument require termination at a specific time or upon the happening of a specific condition (child reaches age of majority)
Fulfillment of trust purpose
The same person owns both legal and equitable or beneficial title of trust property
Settlor revokes the trust
Probate
Probate is a legal procedure for settling the affairs of a person who has died and overseeing the distribution of the decedent’s property to the rightful beneficiaries.
The process
Collects and protects decedent’s property
Identifies beneficiaries and creditors
Pays all debts, expenses, taxes
Distributes the property of the estate properly
Jurisdiction of the court is triggered by
Filing Petition to Probate a Will (person died testate) or
Petition for Letters of Administration (intestate)
Personal Representative or Administrator is appointed
Court’s continued involvement is to resolve disputes or interpret documents
Duties of Representative
Notify heirs and creditors
Take possession of and inventory estate
Determine fair market value of estate assets
Determine names, locations of heirs
Collect debts owed to the decedent
Represent the estate in any challenges to the will
Complete any pending lawsuits in which the decedent has an interest
Prepare tax returns and pay all estate and income tax
Pay the valid claims of creditors
Sell property – when necessary – to pay debts and taxes
Transfer title to real property and certain personal property
Distribute the remaining assets to the designated heirs
File a Declaration of Completion of Probate
Estate Taxes
One reason for making estate plans is to avoid estate taxes
Health Care Directive
A document that expresses the individual’s desires regarding the withholding or withdrawal of life support measures
A helpful website discussing the issues that should be considered is
www.agingwithdignity.org
www.atg.wa.gov/DealingWithDeath/default.aspx
www.doh.wa.gov/livingwill/healthcaredirective.htm
Power of Attorney
Three forms
Durable Power of Attorney
Power of Attorney for Health Care Decisions
Power of Attorney
Review for the Final
-2 long essays
1. Fact pattern in the assignment 3 formation of a business
-facts of assignment 3, question is using fact scenario below discuss the types of business forms and why each is or is not appropriate for these entrepreneurs?
-go online, stop after Dan.
-LLC, Corporation, etc.
-Can write answer ahead of time and attach it
2. Fair use question
-some matching questions
-words that match
-23 contract terms
-16 property law terms
-true/false questions
-agency and employment law
-multiple choice
-14 taken from book
-1 business tort
-short answers
-4 questions
-3 to 4 sentences
-contract claims, tort claims, intestate. Employment, contract
Wednesday, May 26, 2010
May 26th Notes
Complex Litigation
May 26, 2010
NEWS
Final June 2nd
--------------------------
Bankruptcy
-meant to help debtors
Discharged when you are free of the obligations.
Myth, bankruptcy helps your credit
-you can't file again in 7 years (not true)
Truth:
If you were discharge under Chapter 7, 11, 12 and want a 13?
---wait 4 years until it can be filed again
If you were discharge under Chapter 13?
--wait 2 years to file again
If no discharge at all OR did get a discharge but 2nd filing will not be a Chapter 13?
--no waiting period
---ruins credit score though for sometimes a decade
BAD ACTS
Non-dischargable claims
--the creditor's claim can be held
section 523
1. Taxes/Fines
2. Obtaining money by fake pretenses
3. Willful/Malicious Injury (recently added)
4. Alimony/Child Support
5. Embezzlement/Larceny
6. Student Loans due within 5 Years
7. Failure to schedule creditor (needs participation)
8. Secured claim in exempt asset (lay away)
REALLY BAD ACTS
Discharge
--the debtor commits one of these, they are thrown out of court to the creditors, you lose protection
section 727
1. Falsifying/Concealing/Destroying records
2. Concealing Property
3. Failure to fully/Accurately account
4. Failure to obey a court order
5. False statements/Claims
2005 Presumed Non-dischargable
1.More than $500 in luxury goods within 90 days of filing
2.Pulling cash out withdrawals in 70 days, lots of money
Chapter 11 Bankruptcy
-emerge the same company going in
-purpose to get healthy again
-always a trustee in a Chapter 7, in Chapter 11 no trustee
--debtor in possession (dip)
-Plan of Reorganization
-debtor takes the lead
-debtor has 120 days only the debtor can plan the reorganization
-after that time anyone can plan the reorganization
-need to see if Chapter 7 liquidation is worthwhile
-do the creditors get more in 11 than in 7?
-To vote yes on your plan you need
-½ in # (5) + 2/3rd in Amount ($30,000)
-NEED BOTH
-Need agreement of the creditors
-Can change and revise plans
10 creditors totaling $45,000
$500
$750
$1,000
$1,000
$1,750
$,3000
$4,000
$5,000
$8,000
$20,000
Family Farms Bankruptcy
Chapter 12
-similar to Chapter 13
-like a Chapter 11 with payments
What is a family farm?
1.50% debt arises from the farm operations
2.$3.237 million
3.50% of income generated by farm
Chapter 13
-like a Chapter 11 payments
-wage earner bankruptcy now called regular income bankruptcy
-you need some sort of regular income
-unsecured debt is $336,000
-secured $1,010, 650
Rules:
1.make payments to them for a minimum of 36 months (3 years max of 5 years)
2.must use all disposable income towards debts
-more property to get to keep
-must start making payments in 30 days of filing
-if you can pay $6,000 to your creditors in 60 months you can't use Chapter 7
Review for the Final
------------------------------
on the exam basic formula
-start with the law (bankruptcy, first amendment, etc.)
-do not get hung up on the law
-show the facts
-then apply the law to the facts
-rather hear how it works on the case at hand
Product question
-show all the types of losses
-pick a loss, pick a theory of recoveries (contract, tort, strict liability)
-warranties, express warranties (puffing up ego is not express warranty)
-implied warranty (always apply unless it is disclaimed)
-reliance must be reasonable
-look at design
-foreseeable misuse, failure to warn or instruct on test
Comparative Negligence
Assumption of the Risks
-voluntarily assumed
Disclaimers
-as is
-merchantability
No state of the art on the test
Look at the dates of sales (they might be important)
Bankruptcy question
-talk about their claims
-start with “one of the purposes of bankruptcy is …”
First Amendment
-religion questions
-is it an establishment or an exercise?
-start with the difference
-Yes you can bring constitution with you
-establishment
-separationist (not as common)
OR
- accommodationist (lemon test) apply 3 rungs
-
-could be both
Free exercise
-know the 4 concepts (more likely to test on this)
-compelling interest for government to be interested
-make sure you back up your arguments
Cross over or religion and speech concepts for an essay
Speech
-know your 6 exceptions
fighting words, obscenity, clear and present danger
-might be the others probably not
-must show the law first then in-sighting imminent lawless action not protected
can not get fighting words unless it is specifically directed at you
vagueness
-(that do not clearly define the speech)
over breadth
prior restraints
-(on test) are presumptively unconstitutional
-(injunctions, usually in permits for a rally and gets denied for clear and present danger)
symbolic speech
-is protected
-conveying message through actions
-no speech all action, least amount of protection
traditional forums
-where is it taking place (almost always there)
-area used for communication of ideas and exchange of information and exercise of 1st amendment
police powers
-discuss both sides
Read Edwards v. North Carolina (1963)
-how he brings all the concepts in
tries to get 5 of the concepts in there
May 26, 2010
NEWS
Final June 2nd
--------------------------
Bankruptcy
-meant to help debtors
Discharged when you are free of the obligations.
Myth, bankruptcy helps your credit
-you can't file again in 7 years (not true)
Truth:
If you were discharge under Chapter 7, 11, 12 and want a 13?
---wait 4 years until it can be filed again
If you were discharge under Chapter 13?
--wait 2 years to file again
If no discharge at all OR did get a discharge but 2nd filing will not be a Chapter 13?
--no waiting period
---ruins credit score though for sometimes a decade
BAD ACTS
Non-dischargable claims
--the creditor's claim can be held
section 523
1. Taxes/Fines
2. Obtaining money by fake pretenses
3. Willful/Malicious Injury (recently added)
4. Alimony/Child Support
5. Embezzlement/Larceny
6. Student Loans due within 5 Years
7. Failure to schedule creditor (needs participation)
8. Secured claim in exempt asset (lay away)
REALLY BAD ACTS
Discharge
--the debtor commits one of these, they are thrown out of court to the creditors, you lose protection
section 727
1. Falsifying/Concealing/Destroying records
2. Concealing Property
3. Failure to fully/Accurately account
4. Failure to obey a court order
5. False statements/Claims
2005 Presumed Non-dischargable
1.More than $500 in luxury goods within 90 days of filing
2.Pulling cash out withdrawals in 70 days, lots of money
Chapter 11 Bankruptcy
-emerge the same company going in
-purpose to get healthy again
-always a trustee in a Chapter 7, in Chapter 11 no trustee
--debtor in possession (dip)
-Plan of Reorganization
-debtor takes the lead
-debtor has 120 days only the debtor can plan the reorganization
-after that time anyone can plan the reorganization
-need to see if Chapter 7 liquidation is worthwhile
-do the creditors get more in 11 than in 7?
-To vote yes on your plan you need
-½ in # (5) + 2/3rd in Amount ($30,000)
-NEED BOTH
-Need agreement of the creditors
-Can change and revise plans
10 creditors totaling $45,000
$500
$750
$1,000
$1,000
$1,750
$,3000
$4,000
$5,000
$8,000
$20,000
Family Farms Bankruptcy
Chapter 12
-similar to Chapter 13
-like a Chapter 11 with payments
What is a family farm?
1.50% debt arises from the farm operations
2.$3.237 million
3.50% of income generated by farm
Chapter 13
-like a Chapter 11 payments
-wage earner bankruptcy now called regular income bankruptcy
-you need some sort of regular income
-unsecured debt is $336,000
-secured $1,010, 650
Rules:
1.make payments to them for a minimum of 36 months (3 years max of 5 years)
2.must use all disposable income towards debts
-more property to get to keep
-must start making payments in 30 days of filing
-if you can pay $6,000 to your creditors in 60 months you can't use Chapter 7
Review for the Final
------------------------------
on the exam basic formula
-start with the law (bankruptcy, first amendment, etc.)
-do not get hung up on the law
-show the facts
-then apply the law to the facts
-rather hear how it works on the case at hand
Product question
-show all the types of losses
-pick a loss, pick a theory of recoveries (contract, tort, strict liability)
-warranties, express warranties (puffing up ego is not express warranty)
-implied warranty (always apply unless it is disclaimed)
-reliance must be reasonable
-look at design
-foreseeable misuse, failure to warn or instruct on test
Comparative Negligence
Assumption of the Risks
-voluntarily assumed
Disclaimers
-as is
-merchantability
No state of the art on the test
Look at the dates of sales (they might be important)
Bankruptcy question
-talk about their claims
-start with “one of the purposes of bankruptcy is …”
First Amendment
-religion questions
-is it an establishment or an exercise?
-start with the difference
-Yes you can bring constitution with you
-establishment
-separationist (not as common)
OR
- accommodationist (lemon test) apply 3 rungs
-
-could be both
Free exercise
-know the 4 concepts (more likely to test on this)
-compelling interest for government to be interested
-make sure you back up your arguments
Cross over or religion and speech concepts for an essay
Speech
-know your 6 exceptions
fighting words, obscenity, clear and present danger
-might be the others probably not
-must show the law first then in-sighting imminent lawless action not protected
can not get fighting words unless it is specifically directed at you
vagueness
-(that do not clearly define the speech)
over breadth
prior restraints
-(on test) are presumptively unconstitutional
-(injunctions, usually in permits for a rally and gets denied for clear and present danger)
symbolic speech
-is protected
-conveying message through actions
-no speech all action, least amount of protection
traditional forums
-where is it taking place (almost always there)
-area used for communication of ideas and exchange of information and exercise of 1st amendment
police powers
-discuss both sides
Read Edwards v. North Carolina (1963)
-how he brings all the concepts in
tries to get 5 of the concepts in there
May 25th Notes
Criminal Law
May 25, 2010
*******I will no longer be able to tape classes due to tech problems. Sorry.*******
NEWS
Test will be up on website after next week class
Should be emailed to us too
Not sure how to return test yet
-----------------------------------------------------------
Accomplice Liability
-RCW 9A.08.020
-hard to get out of it
-need to publicly renounce involvement
In order to defend yourself from accomplice murder:
-affirmative defense
-establish you did not do anything
(no soliciting command, aid, encourage)
-you were not armed
-did not know another person was armed
-no reason to believe they were going to kill someone
Felony Murder
-murder even if accidental
-defined statutory
-if someone dies in the course or in the flight from a felony
-murder 1 or murder 2 (depends on underlying felony)
Motions
1.CrR 3.3
Criminal Rule 3.3 Speedy Trial
in custody they have 60 days to bring you to trial
-out of custody they have 90 days
let out of prior to expiration, it counts as out of custody
can ask for extensions of the 60/90 rules
requirement to establish prejudice (not possible)
Knapstad Motion
-summary judgment motion
-whether or not it is a matter of law the case can not be sustained
-only thing under consideration is whether or not the prosecution legally can prevail
-requires that you take the evidence at face value
-rarely successful
Double Jeopardy
-only applies where jeopardy has attached
-once the trial starts, then jeopardy attaches, sometimes can not be retried
-limited by speedy trial
Bail CrR 3.2
-can deny bail on some cases (mostly capital cases)
-have it set too high so people can't get out
1.seriousness of the crime
-danger to the community
2.how likely are they to flee
Procedures
-can be arrested on probable cause or warrant
-held for 72 hours (based on booking time)
-probable cause to hold onto the individual
-based on certification from police
-determine if they are to remain in custody
-schedule an arraignment if needed
-need to be booked before they can leave
Plea Forms
-Requirements of Plea
-Free
-Knowing/Voluntary/Intelligent based on need to waive other rights
-Entirety of agreement contained in record
-Defendant must appear in court
-Competence
-Understand consequences – including direct
-sentencing mandates and potential maximus – strikes
-Immigration and Registration Issues – d/e/n are collateral
-Defendant is not required to be aware of these issues
-you relinquish your rights when you plea guilty
-Factual basis for plea
-Newton 83 Wn.2d 363 (1976)
-North Carolina v. Alford – 400 US 25 (1970)
Alford plea or Newton plea
-judge accepts a guilty plea, checks the facts sufficient to make a guilty plea
CrR 4.6 Witness Interviews and Depositions
-Issue of Privacy Act 9.73
-can not tape a private conversation based on one consent, need both
-can not depose in criminal in WA unless there is a motion and order from judge
-if you interview a victim, there are no plea offerings
CrR 4.7 Discovery
-Brady v. Maryland 373 US 83,87,83 S. Ct. 1194, 10 L.Ed.2d 215 (1963)
-need to produce evidence that the defendant is not guilty
-prosecutors can obtain as much information they want from other government agencies
-defense, you may not know it exists and no one returns calls or messages
-will need an order or subpoena
Jail is 12 months or less
Prison is 12 months or more
2.CrR 4.9
Material Witness
-warrant of arrest for a witness
-need to establish witness needed, hostile, already served
3.Appointment of Experts – CrR 3.1 (f)
Does prosecution have to know?
-yes so be careful when using
4.CrR 8.3(b) – prosecutorial mismanagement
-needs to be extreme and repeated
5.Bill of Particulars
A I/section 22 - 6th Amendment (accused shall enjoy the right to be informed of nature and cause of the accusation)
Will not be granted where it requests conclusions of law of theory of the case
CrR 3.5 Miranda Rights
-just to clarify they were read
CrR 3.6 Suppress Evidence
-usually reserved till trial court
May 25, 2010
*******I will no longer be able to tape classes due to tech problems. Sorry.*******
NEWS
Test will be up on website after next week class
Should be emailed to us too
Not sure how to return test yet
-----------------------------------------------------------
Accomplice Liability
-RCW 9A.08.020
-hard to get out of it
-need to publicly renounce involvement
In order to defend yourself from accomplice murder:
-affirmative defense
-establish you did not do anything
(no soliciting command, aid, encourage)
-you were not armed
-did not know another person was armed
-no reason to believe they were going to kill someone
Felony Murder
-murder even if accidental
-defined statutory
-if someone dies in the course or in the flight from a felony
-murder 1 or murder 2 (depends on underlying felony)
Motions
1.CrR 3.3
Criminal Rule 3.3 Speedy Trial
in custody they have 60 days to bring you to trial
-out of custody they have 90 days
let out of prior to expiration, it counts as out of custody
can ask for extensions of the 60/90 rules
requirement to establish prejudice (not possible)
Knapstad Motion
-summary judgment motion
-whether or not it is a matter of law the case can not be sustained
-only thing under consideration is whether or not the prosecution legally can prevail
-requires that you take the evidence at face value
-rarely successful
Double Jeopardy
-only applies where jeopardy has attached
-once the trial starts, then jeopardy attaches, sometimes can not be retried
-limited by speedy trial
Bail CrR 3.2
-can deny bail on some cases (mostly capital cases)
-have it set too high so people can't get out
1.seriousness of the crime
-danger to the community
2.how likely are they to flee
Procedures
-can be arrested on probable cause or warrant
-held for 72 hours (based on booking time)
-probable cause to hold onto the individual
-based on certification from police
-determine if they are to remain in custody
-schedule an arraignment if needed
-need to be booked before they can leave
Plea Forms
-Requirements of Plea
-Free
-Knowing/Voluntary/Intelligent based on need to waive other rights
-Entirety of agreement contained in record
-Defendant must appear in court
-Competence
-Understand consequences – including direct
-sentencing mandates and potential maximus – strikes
-Immigration and Registration Issues – d/e/n are collateral
-Defendant is not required to be aware of these issues
-you relinquish your rights when you plea guilty
-Factual basis for plea
-Newton 83 Wn.2d 363 (1976)
-North Carolina v. Alford – 400 US 25 (1970)
Alford plea or Newton plea
-judge accepts a guilty plea, checks the facts sufficient to make a guilty plea
CrR 4.6 Witness Interviews and Depositions
-Issue of Privacy Act 9.73
-can not tape a private conversation based on one consent, need both
-can not depose in criminal in WA unless there is a motion and order from judge
-if you interview a victim, there are no plea offerings
CrR 4.7 Discovery
-Brady v. Maryland 373 US 83,87,83 S. Ct. 1194, 10 L.Ed.2d 215 (1963)
-need to produce evidence that the defendant is not guilty
-prosecutors can obtain as much information they want from other government agencies
-defense, you may not know it exists and no one returns calls or messages
-will need an order or subpoena
Jail is 12 months or less
Prison is 12 months or more
2.CrR 4.9
Material Witness
-warrant of arrest for a witness
-need to establish witness needed, hostile, already served
3.Appointment of Experts – CrR 3.1 (f)
Does prosecution have to know?
-yes so be careful when using
4.CrR 8.3(b) – prosecutorial mismanagement
-needs to be extreme and repeated
5.Bill of Particulars
A I/section 22 - 6th Amendment (accused shall enjoy the right to be informed of nature and cause of the accusation)
Will not be granted where it requests conclusions of law of theory of the case
CrR 3.5 Miranda Rights
-just to clarify they were read
CrR 3.6 Suppress Evidence
-usually reserved till trial court
Friday, May 21, 2010
May 20th Notes
Business Law
May 20, 2010
-Ugly people are convicted more often and get longer sentences
-assignment posted
-one for slackers, one for diligent
Property Law
-intellectual property
-real property
-landlord tenant law
-personal property
Kinds
1.Real
-freehold or nonfreehold
2.Personal
-tangible or intangible
Intellectual Property
-governed with federal law and statute
-from fruits of mental and artistic labor
-owners of intellectual property are based on article 1 section 8 of the constitution
-on patent, trademark, copyright
-patents protect inventions and tangible
-copyrights protect art and written, music and expressed
-trademarks protect symbols
Patents
-inventor rights to make, use and sell for 20 years from filing the application
-mechanical, chemical, process
must be novel, nonobvious, useful
Copyrights
-statutory property right
-exclusive rights for limited duration
-life of authors plus 70 years or 95 years from publication if a corporation
-once expired anyone can use the work for free
rights to
-reproduce the work
-make derivative works
-distribute to publication
-perform certain works
-publicly display
What is protected?
-expressions of an idea, not the idea itself
-must be original and fixed in a medium
-automatic since 1978
Infringement
-form and expression if copied
-fair use exception
-permits copy for criticism and comment, nonprofit, educational uses, new reporting, scholarship, research and parody
Fair Use (on test)
-in resolving fair use disputes
1.purpose and character of the use (transformative factor)
2.nature of the copyrighted work
3.amount and substantiality of the portion taken
4.effect of the use upon the potential market
-do not take the heart of the work
Assignment
Magical Copyright
-Who has a right to catalog?
-pick a side and do the factors yourself
-you can either agree or disagree with the judge
-tie in all 4 factors and only one page
Obama Hope Poster
Fairey v. Associated Press
Copyright Software
-1980 software copyright act
-”literary work”
-a program is set of statements or instructions to be used directly or indirectly in a computer in order to bring about a particular result
Trademarks
-emblems on products
-easily identified
Trade Secrets
-formula, device, recipe, method, compilation of information
Real Property
-”land” and whatever is attached to it
-owned by the government by an entity or by an individual
Property ownership can be viewed as a “bundle of rights” that include:
–Right to possess.
–Right to sell.
–Right to give.
–Right to lease.
–Right to destroy
Ownership interests are classified as either Possessory or Non-Possessory:
-A possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess, or exclusively control, the land.
-A non-possessory interest – such as an easement, profit or license – does not give the owner a right to possess the land.
The basic ownership interests – or freehold estates – in real property are:
–Fee Simple Absolute
–Fee Simple Defeasible (or Conditional)
–Life Estate
There are basically two ways property can be owned.
–Entirely
–Concurrently
Tenancy in common
Joint tenancy
Tenancy by the entirety
Community property
Community Property
Governed by RCW 26.16.030
Property acquired after marriage by either husband or wife or both, is community property.
Property acquired before marriage or that is received by gift or inheritance is the separate property of the spouse who acquires it.
Future
–Separate property must remain separate to retain its character.
Either spouse, acting alone, may manage and control community property – except neither may
–Will more than one-half of the community property
–Give community property away, without the consent of the other or
Sell or encumber community real property without the other spouse joining in the execution of the documents and the documents must be acknowledged by both spouses.
Non Posessory Property
There are two kinds of future interests
–A reversionary interest in which the Grantor retains right to re-possess land when Grantee’s life estate expires.
–A remainder interest in which the Grantor assigns/transfers/sells the future interest to a third party, who now has a remainder. When the Grantee dies, his or her interest passes to the third party.
There are 4 non-possessory interests
–Easement - the right of a person to make limited use of real property without taking anything from the property.
–Profit - the right to enter land and take away some part of the land itself or some product of the land.
–License – the right to temporarily enter land
–Mortgage – a security interest in property
Restrictive covenant
–A restriction on the use of land that is agreed to by the original owners and then becomes a restriction that attaches and follows the title
Real property can be transferred by:
–Sale or Deed
–Death of owner
–Gift
–Seizure by a creditor
–Eminent domain
–Adverse possession
A deed is the instrument setting forth the interests in real property being transferred.
It proves ownership of the property.
Two types:
–Warranty Deed
--Quitclaim Deed
–Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.
Washington has a race-notice statute
–First to file with the county auditor has priority in interest
The sale of real property is governed by a series of contracts
–Listing agreement
–Earnest money agreement
–Contract for the sale of land
Usually a “mortgage” or installment contract
What is a mortgage?
Who is the owner of the property?
Transfer will be by
–Will
–Transfer under joint tenancy
–Intestate succession
Real property can be transferred as a gift
–Still need deed
–Recording of deed
Ownership interest is established by the use of someone else’s property for a specified number of years. Must be
–Actual
–Open
–Adverse to the owner’s interest
–Exclusive
This can apply to “use” as well (prescriptive easement)
The power of the government to take private property for a public purpose – for just compensation.
–Schools
–Roads
–Airport runways
Partial “taking” (by regulation or otherwise) without just compensation is unconstitutional
Landlord and Tenant Laws
►Anyone who rents office space (or housing) is subject to various state and federal Landlord-Tenant laws.
►The owner of the property is the lessor or landlord and the person who rents the property is the lessee or tenant.
►The contract is called the lease.
►RCW title 59 governs landlord and tenant law in Washington
§Residential
§Commercial
§
http://washingtonlawhelp.org/WA/index.cfm
►Lease – a contract in which the owner of property (landlord or lessor) gives someone else (tenant or lessee) the right to use the property for a designated period of time.
Types of Tenancy
►Tenancy for years – establishes a set period during which the tenant will have control. Then the right to possession of the property reverts to the owner.
►Periodic tenancy – created for a set interval of time (week to week, month to month). If neither party terminates at the end of the period, the tenancy continues.
►Tenancy at will – rental to continue for as long as both lessor and tenant agree.
►Tenancy at sufferance – Tenant has no legal right to remain, but is not removed.
Landlords
►Turn over possession of the premises
►Quiet enjoyment
►Implied warranty of habitability
►Eviction/Unlawful detainer
►Constructive eviction
►Security deposit
►Discrimination laws
Tenants
►Pay rent
►Properly use premises
Personal Property
Personal property is generally any property that is not real property.
–Sometimes referred to as chattel.
–Includes tangible property (any property that you can put your hands on and move)
–Includes intangible property (property that has value but that only is moved or possessed constructively)
Acquiring Ownership
Personal property can be acquired through:
–Possession
–Production
–Gift
–Will or Inheritance
–Accession
–Confusion or Commingling
Finders Keepers
Depends on whether the goods were
–Mislaid – goods voluntary placed by the true owner, then inadvertently forgotten.
•Finder is a caretaker or bailee for the true owner
–Lost – goods accidentally left by the owner.
•Finder becomes owner; has title against everyone but true owner
–Abandoned – goods purposefully discarded by the true owner, with no intention of recovering the property.
•Finder has title against everyone – including the original owner.
Bailment
Formed by the delivery of personal property – without transfer of title – by the owner of property (Bailor) to another (Bailee), usually under an agreement for a particular purpose.
The property must be returned by the Bailee to the Bailor, or to a third party, as directed by the Bailor, in the same or better condition.
Ordinary Bailments
Three types of ordinary bailments:
–For the sole benefit of bailor
–For the sole benefit of bailee
–For the mutual benefit of both bailor and bailee
Rights and Duties
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence
Bailor Rights
Right to have property protected
Right to have property back at end of bailment – with service or repair done properly
Right to not be bound to any limitation on liability unless bailor knows of the limitation
Duty to provide safe goods
–If a mutual benefit bailment this means free from known or hidden defects
–If it is for the sole benefit of bailee, there is a duty to notify of any known defect
Rights of Bailee
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence
Special Bailments
Publicly licensed common carriers – those which provide transportation services to general public are held to the highest standard.
Warehouses:
–Owe duty of reasonable care
–Cannot exculpate themselves from liability, but can limit liability
Innkeepers:
–Strict liability imposed, unless modified by statutes
May 20, 2010
-Ugly people are convicted more often and get longer sentences
-assignment posted
-one for slackers, one for diligent
Property Law
-intellectual property
-real property
-landlord tenant law
-personal property
Kinds
1.Real
-freehold or nonfreehold
2.Personal
-tangible or intangible
Intellectual Property
-governed with federal law and statute
-from fruits of mental and artistic labor
-owners of intellectual property are based on article 1 section 8 of the constitution
-on patent, trademark, copyright
-patents protect inventions and tangible
-copyrights protect art and written, music and expressed
-trademarks protect symbols
Patents
-inventor rights to make, use and sell for 20 years from filing the application
-mechanical, chemical, process
must be novel, nonobvious, useful
Copyrights
-statutory property right
-exclusive rights for limited duration
-life of authors plus 70 years or 95 years from publication if a corporation
-once expired anyone can use the work for free
rights to
-reproduce the work
-make derivative works
-distribute to publication
-perform certain works
-publicly display
What is protected?
-expressions of an idea, not the idea itself
-must be original and fixed in a medium
-automatic since 1978
Infringement
-form and expression if copied
-fair use exception
-permits copy for criticism and comment, nonprofit, educational uses, new reporting, scholarship, research and parody
Fair Use (on test)
-in resolving fair use disputes
1.purpose and character of the use (transformative factor)
2.nature of the copyrighted work
3.amount and substantiality of the portion taken
4.effect of the use upon the potential market
-do not take the heart of the work
Assignment
Magical Copyright
-Who has a right to catalog?
-pick a side and do the factors yourself
-you can either agree or disagree with the judge
-tie in all 4 factors and only one page
Obama Hope Poster
Fairey v. Associated Press
Copyright Software
-1980 software copyright act
-”literary work”
-a program is set of statements or instructions to be used directly or indirectly in a computer in order to bring about a particular result
Trademarks
-emblems on products
-easily identified
Trade Secrets
-formula, device, recipe, method, compilation of information
Real Property
-”land” and whatever is attached to it
-owned by the government by an entity or by an individual
Property ownership can be viewed as a “bundle of rights” that include:
–Right to possess.
–Right to sell.
–Right to give.
–Right to lease.
–Right to destroy
Ownership interests are classified as either Possessory or Non-Possessory:
-A possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess, or exclusively control, the land.
-A non-possessory interest – such as an easement, profit or license – does not give the owner a right to possess the land.
The basic ownership interests – or freehold estates – in real property are:
–Fee Simple Absolute
–Fee Simple Defeasible (or Conditional)
–Life Estate
There are basically two ways property can be owned.
–Entirely
–Concurrently
Tenancy in common
Joint tenancy
Tenancy by the entirety
Community property
Community Property
Governed by RCW 26.16.030
Property acquired after marriage by either husband or wife or both, is community property.
Property acquired before marriage or that is received by gift or inheritance is the separate property of the spouse who acquires it.
Future
–Separate property must remain separate to retain its character.
Either spouse, acting alone, may manage and control community property – except neither may
–Will more than one-half of the community property
–Give community property away, without the consent of the other or
Sell or encumber community real property without the other spouse joining in the execution of the documents and the documents must be acknowledged by both spouses.
Non Posessory Property
There are two kinds of future interests
–A reversionary interest in which the Grantor retains right to re-possess land when Grantee’s life estate expires.
–A remainder interest in which the Grantor assigns/transfers/sells the future interest to a third party, who now has a remainder. When the Grantee dies, his or her interest passes to the third party.
There are 4 non-possessory interests
–Easement - the right of a person to make limited use of real property without taking anything from the property.
–Profit - the right to enter land and take away some part of the land itself or some product of the land.
–License – the right to temporarily enter land
–Mortgage – a security interest in property
Restrictive covenant
–A restriction on the use of land that is agreed to by the original owners and then becomes a restriction that attaches and follows the title
Real property can be transferred by:
–Sale or Deed
–Death of owner
–Gift
–Seizure by a creditor
–Eminent domain
–Adverse possession
A deed is the instrument setting forth the interests in real property being transferred.
It proves ownership of the property.
Two types:
–Warranty Deed
--Quitclaim Deed
–Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.
Washington has a race-notice statute
–First to file with the county auditor has priority in interest
The sale of real property is governed by a series of contracts
–Listing agreement
–Earnest money agreement
–Contract for the sale of land
Usually a “mortgage” or installment contract
What is a mortgage?
Who is the owner of the property?
Transfer will be by
–Will
–Transfer under joint tenancy
–Intestate succession
Real property can be transferred as a gift
–Still need deed
–Recording of deed
Ownership interest is established by the use of someone else’s property for a specified number of years. Must be
–Actual
–Open
–Adverse to the owner’s interest
–Exclusive
This can apply to “use” as well (prescriptive easement)
The power of the government to take private property for a public purpose – for just compensation.
–Schools
–Roads
–Airport runways
Partial “taking” (by regulation or otherwise) without just compensation is unconstitutional
Landlord and Tenant Laws
►Anyone who rents office space (or housing) is subject to various state and federal Landlord-Tenant laws.
►The owner of the property is the lessor or landlord and the person who rents the property is the lessee or tenant.
►The contract is called the lease.
►RCW title 59 governs landlord and tenant law in Washington
§Residential
§Commercial
§
http://washingtonlawhelp.org/WA/index.cfm
►Lease – a contract in which the owner of property (landlord or lessor) gives someone else (tenant or lessee) the right to use the property for a designated period of time.
Types of Tenancy
►Tenancy for years – establishes a set period during which the tenant will have control. Then the right to possession of the property reverts to the owner.
►Periodic tenancy – created for a set interval of time (week to week, month to month). If neither party terminates at the end of the period, the tenancy continues.
►Tenancy at will – rental to continue for as long as both lessor and tenant agree.
►Tenancy at sufferance – Tenant has no legal right to remain, but is not removed.
Landlords
►Turn over possession of the premises
►Quiet enjoyment
►Implied warranty of habitability
►Eviction/Unlawful detainer
►Constructive eviction
►Security deposit
►Discrimination laws
Tenants
►Pay rent
►Properly use premises
Personal Property
Personal property is generally any property that is not real property.
–Sometimes referred to as chattel.
–Includes tangible property (any property that you can put your hands on and move)
–Includes intangible property (property that has value but that only is moved or possessed constructively)
Acquiring Ownership
Personal property can be acquired through:
–Possession
–Production
–Gift
–Will or Inheritance
–Accession
–Confusion or Commingling
Finders Keepers
Depends on whether the goods were
–Mislaid – goods voluntary placed by the true owner, then inadvertently forgotten.
•Finder is a caretaker or bailee for the true owner
–Lost – goods accidentally left by the owner.
•Finder becomes owner; has title against everyone but true owner
–Abandoned – goods purposefully discarded by the true owner, with no intention of recovering the property.
•Finder has title against everyone – including the original owner.
Bailment
Formed by the delivery of personal property – without transfer of title – by the owner of property (Bailor) to another (Bailee), usually under an agreement for a particular purpose.
The property must be returned by the Bailee to the Bailor, or to a third party, as directed by the Bailor, in the same or better condition.
Ordinary Bailments
Three types of ordinary bailments:
–For the sole benefit of bailor
–For the sole benefit of bailee
–For the mutual benefit of both bailor and bailee
Rights and Duties
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence
Bailor Rights
Right to have property protected
Right to have property back at end of bailment – with service or repair done properly
Right to not be bound to any limitation on liability unless bailor knows of the limitation
Duty to provide safe goods
–If a mutual benefit bailment this means free from known or hidden defects
–If it is for the sole benefit of bailee, there is a duty to notify of any known defect
Rights of Bailee
Right to possess property temporarily (title does not pass)
Right to use bailed property
Right of compensation – to be reimbursed for costs and services as provided by contract
Right to Limit Liability
Duty to return property in same condition to bailor
–Otherwise Bailee may liable for conversion or negligence
Special Bailments
Publicly licensed common carriers – those which provide transportation services to general public are held to the highest standard.
Warehouses:
–Owe duty of reasonable care
–Cannot exculpate themselves from liability, but can limit liability
Innkeepers:
–Strict liability imposed, unless modified by statutes
May19th Notes
Complex Litigation
May 19, 2010
NEWS
-one more exam
-needs to see the law applied, not simply stated
-----------------------------------------------------------
Purposes of Bankruptcy
1. Fresh Start
-to give people a new lease on life
-orderly process of distribution of assets
2. Creditor Protection
-article 1 section 8
3.Societal Benefit
-don't need more wards of the state
-
Different Chapters of Bankruptcy
Ch. 7 Liquidation
-take what I have and distribute it, no repayment, just assets
-usually for those with no assets
-Banks, Savings and Loans, Railroads can not file for Chapter 7
-creditors can force you into bankruptcy here
-involuntary Chapter 7
-for creditor protection
1.Need to establish they are not paying the debts
2.Fewer than 12 creditors, it takes 1 you owe $10,775
3.More than 12, it takes 3 to aggregate the $10,775
Ch. 9 Municipalities
-when cities file bankruptcy
Ch. 11 Corporate Reorganization
-corporations getting time to repay their debts from reorganization of the company
-most don't make it and end up in Chapter 7
Ch. 12 Family Farms
Ch. 13 “Regular income” reorganization
-used to be wager, want to pay off debts over time 3-5 years
-need regular income and keep property
Bankruptcy law is all Federal law
-every state has creditor laws
Title II
II USC section ___
1. section 362 “automatic stay”
-protects debotors
-nobody can take any action against the debtor
-the action take in violation of the stay is void
-huge sanctions if they do not remove that action
-also stops the indirect things: phone calls, letters, collections
-doesn't stop everything: criminal prosecutions, alimony, paternity actions, child support,
-required to get debt counseling since 2005
2. section 362(d)
Adequate Protection
-protects creditors
-of the creditor's interest but creditor's want repayment
How to do it:
-equity
-cash
-rarely seen since they are filing for bankruptcy
-replacement lien
-of another piece of property
Exemptions (II USC section 522)
-Things you allowed to keep for the Fresh Start
-There is a Federal list and a State list too
-Must pick one or the other
-Washington Exemptions RCW 6.13 – 6.15
-can prepay rent/mortgage, car repair, IRA, life insurance, down payment on house
-Tools of the trade ($2025)
-Life Insurance
-Personal/Household goods ($475/$9850)
-Jewelry ($1350)
-Furniture ($525/$10,775)
-Car ($3225)
-S.S./Alimony/Disability
Preferences (II USC section 547)
-creditor protection
-all creditors of a similar ilk must be treated similar
-can not pay other creditors and not one that is the same
Fraudulent Transfers (II USC section 548)
-creditor protection
-can be made to anyone
-it must be reasonable value for the item
-they look back on the whole year
Distribution (II USC section 726)
-creditor protection
-First: Secured creditors (only to the extent of the security)
-Second: Estate expenses, wages, benefits, post-filing expenses, alimony, taxes
-Third: Unsecured creditors
May 19, 2010
NEWS
-one more exam
-needs to see the law applied, not simply stated
-----------------------------------------------------------
Purposes of Bankruptcy
1. Fresh Start
-to give people a new lease on life
-orderly process of distribution of assets
2. Creditor Protection
-article 1 section 8
3.Societal Benefit
-don't need more wards of the state
-
Different Chapters of Bankruptcy
Ch. 7 Liquidation
-take what I have and distribute it, no repayment, just assets
-usually for those with no assets
-Banks, Savings and Loans, Railroads can not file for Chapter 7
-creditors can force you into bankruptcy here
-involuntary Chapter 7
-for creditor protection
1.Need to establish they are not paying the debts
2.Fewer than 12 creditors, it takes 1 you owe $10,775
3.More than 12, it takes 3 to aggregate the $10,775
Ch. 9 Municipalities
-when cities file bankruptcy
Ch. 11 Corporate Reorganization
-corporations getting time to repay their debts from reorganization of the company
-most don't make it and end up in Chapter 7
Ch. 12 Family Farms
Ch. 13 “Regular income” reorganization
-used to be wager, want to pay off debts over time 3-5 years
-need regular income and keep property
Bankruptcy law is all Federal law
-every state has creditor laws
Title II
II USC section ___
1. section 362 “automatic stay”
-protects debotors
-nobody can take any action against the debtor
-the action take in violation of the stay is void
-huge sanctions if they do not remove that action
-also stops the indirect things: phone calls, letters, collections
-doesn't stop everything: criminal prosecutions, alimony, paternity actions, child support,
-required to get debt counseling since 2005
2. section 362(d)
Adequate Protection
-protects creditors
-of the creditor's interest but creditor's want repayment
How to do it:
-equity
-cash
-rarely seen since they are filing for bankruptcy
-replacement lien
-of another piece of property
Exemptions (II USC section 522)
-Things you allowed to keep for the Fresh Start
-There is a Federal list and a State list too
-Must pick one or the other
-Washington Exemptions RCW 6.13 – 6.15
-can prepay rent/mortgage, car repair, IRA, life insurance, down payment on house
-Tools of the trade ($2025)
-Life Insurance
-Personal/Household goods ($475/$9850)
-Jewelry ($1350)
-Furniture ($525/$10,775)
-Car ($3225)
-S.S./Alimony/Disability
Preferences (II USC section 547)
-creditor protection
-all creditors of a similar ilk must be treated similar
-can not pay other creditors and not one that is the same
Fraudulent Transfers (II USC section 548)
-creditor protection
-can be made to anyone
-it must be reasonable value for the item
-they look back on the whole year
Distribution (II USC section 726)
-creditor protection
-First: Secured creditors (only to the extent of the security)
-Second: Estate expenses, wages, benefits, post-filing expenses, alimony, taxes
-Third: Unsecured creditors
May 18th Notes
Criminal Law
May 18, 2010
6th Amendment cases
-litigation is limited
-rules have been set for awhile
-right to counsel
-police must provide Miranda rights for each charge
-appellate practices
-prp personal restraint position
-habeas corpus appeals
-both raise constitutional defects in the trial
Culpability
-must prove a mental state for the defendant in many crimes
-depends on the crime and nature
-no mental elements of DUI
-can establish it through confession and circumstantial evidence
1.Premeditation
-only in first degree murder
-consideration for more than a moment in time
-intent to kill with extra thought
-purpose to accomplish a result
2.Knowledge
-aware of facts that constitutes an offense
3. Recklessness
-disregarding a substantial risk of harm
Accomplice Liability
-liability for conduct of another
-is presence and knowledge enough to establish culpability
-not enough to, you have to do more
-need participation and planning
Mental issues and defenses
-capacity
-strictly on age when crime committed
-7 or younger, you can not commit a crime
-between 8-11 presumed to be incapable of committing a crime
-can be rebutted
-12 or older, presumable to hold them culpable
-competence
-person's ability to appear in court
-to understand and participate in the court process
-diminished capacity
-at the time of the offense
-negates ability to prove one of the elements
-intent element, evidence of it, mental disease caused the inability
-insanity
-McNaughton Rule
-intoxication defenses are recognized
-crimes of passion not recognized
Self Defense
-force has to be reasonable for the circumstances
-defendant does not have to be “right”
-threat has to be real
Criminal Motions
-read the rules carefully for all courts
Bail Bonds
-pay bail
-use bail bond
Arraignment
-in custody, trial in 60 days
-90 days if you are out of custody
Pretrial
Trial
May 18, 2010
6th Amendment cases
-litigation is limited
-rules have been set for awhile
-right to counsel
-police must provide Miranda rights for each charge
-appellate practices
-prp personal restraint position
-habeas corpus appeals
-both raise constitutional defects in the trial
Culpability
-must prove a mental state for the defendant in many crimes
-depends on the crime and nature
-no mental elements of DUI
-can establish it through confession and circumstantial evidence
1.Premeditation
-only in first degree murder
-consideration for more than a moment in time
-intent to kill with extra thought
-purpose to accomplish a result
2.Knowledge
-aware of facts that constitutes an offense
3. Recklessness
-disregarding a substantial risk of harm
Accomplice Liability
-liability for conduct of another
-is presence and knowledge enough to establish culpability
-not enough to, you have to do more
-need participation and planning
Mental issues and defenses
-capacity
-strictly on age when crime committed
-7 or younger, you can not commit a crime
-between 8-11 presumed to be incapable of committing a crime
-can be rebutted
-12 or older, presumable to hold them culpable
-competence
-person's ability to appear in court
-to understand and participate in the court process
-diminished capacity
-at the time of the offense
-negates ability to prove one of the elements
-intent element, evidence of it, mental disease caused the inability
-insanity
-McNaughton Rule
-intoxication defenses are recognized
-crimes of passion not recognized
Self Defense
-force has to be reasonable for the circumstances
-defendant does not have to be “right”
-threat has to be real
Criminal Motions
-read the rules carefully for all courts
Bail Bonds
-pay bail
-use bail bond
Arraignment
-in custody, trial in 60 days
-90 days if you are out of custody
Pretrial
Trial
Thursday, May 13, 2010
May 13th Notes
Business Law
May 13, 2010
E-filing Guest Speaker
Beth Taylor from Clerk's Office
Clerk's Alert List Serv
listserv@lists.kingcounty.gov
Main Page
http://www.kingcounty.gov/courts/Clerk
State Rules
http://www.courts.wa.gov/court_rules/.index.cfm
Records
http://dja-eweb.kingcounty.gov/records/
-set up an account
ECR Online
-save the documents once you purchase them
http://www.kingcounty.gov/courts/Clerk/ECROnine
E-Filing
http://www.kingcounty.gov/courts/Clerk/E-Filing
-read through the FAQ once
-user tips
*Really take a look at this page, it has everything you will want to learn*
-very straight forward, just follow the directions on the page
-make sure you know where your documents are located
GR 30 and LGR 30
http://www.kingcounty.gov/courts/Clerk/Rules/Individuallinks/LGR_30
-must e-serve ahead of time
-use the tabs
Basic Business Organizations
Starting a Business
The first question:
What form should the business take?
Consider
Formation issues
Liability protection
Management structure
Taxation considerations
Exit strategies/transferability of interests
Sole Proprietorship
The most common form of business organization.
One (sole) owner (or – in WA – a married couple)
Business does not have to be registered with the secretary of state
Profits and losses are the personal profits and losses of the owner and are taxed as such
Personal assets of owner are available to satisfy debts of the business
Advantages
Owner is in complete control & receives all profits
Flexibility
Ease of creation; maintenance
Disadvantages
Owner is personally liable for all torts and contracts
Lacks continuity after death
Difficult to raise financing
An Example
Child care provider
Wants to work out of her house
How does she form this business?
What legal process is required?
http://www.access.wa.gov/business/index.aspx
http://www.sba.gov/aboutsba/sbaprograms/onlinewbc/index.html
Partnership
There are three kinds of partnership
General Partnership
Limited Partnership
Limited Liability Partnership
Uniform Act
Washington has adopted the Revised Uniform Partnership Act
The statute governs to
Determine whether a partnership exists
Fill in the missing terms of a partnership agreement
http://apps.leg.wa.gov/RCW/default.aspx?cite=25.05
Partnership
Association of 2 or more persons to carry on as co-owners of a business for profit.
More than one common owner
Governed by contract
Profits and debts are shared by the partners
Partners share in management of business
Advantages
Easy to create and maintain
Flexible, informal
Partners share profits and losses equally
Disadvantages
Partners are personally liable for all torts/contracts
Dissolved upon death of any one partner
Difficult to raise financing
Partnership Responsibilities
Partners have a fiduciary duty to the partnership and each other.
Liable to the partnership for intentional misconduct or gross negligence
Cannot compete with the partnership
May not take an advantage from the partnership without consent of the partners
In case of conflict of interest, partnership profits must be given to the partnership
Joint Liability
Because a general partnership is considered a single business entity, the partners are all liable for the acts of any partner
Personal property of each partner may be used to satisfy the debts of the partnership
Termination
Dissolution by Acts of the Partners
Withdrawal of any partner from the partnership
Agreement of the partners
Dissolution by Operation of Law
Death of a partner
Dissolution by Judicial Decree
Limited Partnership
In a limited partnership, at least one of the partners does not share in the right to manage the business
The limited partner invests money, but has no decision-making authority
The liability of the limited partner is limited to his or her investment in the business
Limited Liability Partnership
An LLP is a kind of general partnership that is governed by statute
The difference between general and limited liability partnerships is that in an LLP the partners are not liable for the debts of the partnership
Clients or customers of the LLP must be informed of the limited liability
Limited Liability Co.
A form of business ownership that permits small business owners to limit their liability to the amount of their investments
These are governed by statute
RCW 25.15
LLC Agreement
Operating agreement is analogous to corporation’s bylaws.
Agreements may be oral and contain provisions relating to management, dividends, meetings, transfer of membership interests, etc.
Generally, if the operating agreement is silent, courts will apply partnership principles.
Advantages
Member liability is limited to amount of investment.
Can be treated as a “pass through” entity for tax purposes (like partnership).
Profits can be distributed to members without the double taxation of a corporation. Members pay personal income tax on received dividends.
Corporations
A business entity formed by shareholders
The corporation is an artificial “person” for the purpose of conducting a business and can
Own property
Enter into contracts
Sue and be sued
Advantages
The liability of shareholders (the owners) of a corporation is limited to the individual’s investment
The business has a perpetual existence
Disadvantages
Takes a lot of attention at the formation stage
Requires ongoing efforts – reporting requirements, annual meetings
Double taxation
http://apps.leg.wa.gov/RCW/default.aspx?cite=23B
Rights of the Corporation
Because a corporation is a legal “person,” it has constitutional rights.
Equal protection;
Access to the courts, can sue and be sued;
Right to due process;
Freedom from unreasonable search and seizure and double jeopardy.
Freedom of speech.
http://www.youtube.com/view_play_list?p=FA50FBC214A6CE87
Torts and Criminal Acts
A corporation is liable for the torts committed by its agents or officers within the course and scope of their employment under the doctrine of respondeat superior.
Corporation can be liable for criminal acts, but only fined. Responsible officers may go to prison.
Corporate Express Powers
The express powers of a corporation are found in the corporation’s articles of incorporation, the laws of the state of incorporation, and in the state and federal corporations.
Corporate by-laws may also grant or limit a corporation’s express powers.
Corporate Implied Powers
Corporation has implied powers to perform all acts reasonably necessary to accomplish its corporate purposes:
Borrow and lend money.
Extend credit.
Make charitable contributions.
A corporate officer can bind corporation in contract in matters connected with the ordinary business affairs of the corporation.
Ultra Vires Doctrine
Corporate acts that are beyond the express or implied powers of the corporation are considered to be “ultra vires” and unlawful.
Classification of Corporations
Domestic corporation does business in its state of its incorporation.
Foreign corporation from another state doing business in Washington.
Alien Corporation: formed in another country doing business in United States.
Kinds of Corporations
Public and Private.
Nonprofit.
Close Corporations.
Shares held by few shareholders.
More informal management – similar to a partnership.
Restriction on transfer of shares.
Kinds of Corporations
“S Corporations” – IRS classification that enables corporation to avoid “double taxation” – only dividends to the shareholders, not corporate profits, are taxed. IRS requirements:
Corporation is domestic, with fewer than 75 shareholders, only one class of stock, no shareholder can be a non-resident alien.
Professional Corporations.
Basics of Formation
The corporation is created by Articles of Incorporation
These must include
Name of the corporation
Purpose
List of incorporators and directors
Name and address of registered agent
Share structure
Articles are filed with Secretary of State
Corporate Status
De Jure: substantial statutory requirements are met; cannot be attacked by state or 3rd parties.
De Facto: statutory requirements not met, but promoters made good faith effort to comply with corporate law; corporate status can only be attacked by state.
By Estoppel: if it acts like a corporation, it cannot avoid liability by claiming that no corporation exists.
Piercing the Corporate Veil
Where the corporate form is used solely to shield individuals from liability
Generally, owner co-mingles personal and corporate assets
Sometimes no stock is issued or
Formation or regulatory rules are ignored
Corporate Hierarchy
Corporate Structure
The owners of the corporation are the shareholders.
Create the capital of the corporation
Have no management authority
Elect board of directors
Must approve changes in articles of incorporation and other major changes
Corporate Structure
The Board of Directors
Elected by the shareholders
Have management responsibility
Appoint, supervise, remove officers of the corporation
The Directors have a fiduciary relationship with shareholders
Corporate Structure
Officers and Executives
Elected/appointed by the board of directors
Responsible for carrying out board’s policies and directives
Responsible for management of business
Have a fiduciary duty to act in the best interests of the shareholders and the corporation
Requirements
Corporations are required to:
Hold annual meetings of shareholders.
Give reasonable notice of meetings.
Provide reasonable access to books and records to shareholders.
Securities Regulation
Two major securities laws
Securities Act of 1933
Securities Exchange Act of 1934
Insider Trading
Sarbanes-Oxley Act
Enacted after the Enron accounting scandal to require additional protections for investors.
Additional Regulations
Sherman (Antitrust) Act
Prohibits price fixing and illegal monopolies
Clayton Act
Prohibits anticompetitive mergers
Robinson-Patman Act
Prohibits price discrimination aimed at putting small competitors out of business
Merger and Consolidation
Corporations can grow and expand by:
Mergers.
Consolidation.
Purchase of another corporation’s assets.
Purchases of a controlling interest in another corporation.
Termination
Termination of a corporation, like a partnership, consists of two phases:
Dissolution (voluntary or involuntary); and
Liquidation.
May 13, 2010
E-filing Guest Speaker
Beth Taylor from Clerk's Office
Clerk's Alert List Serv
listserv@lists.kingcounty.gov
Main Page
http://www.kingcounty.gov/courts/Clerk
State Rules
http://www.courts.wa.gov/court_rules/.index.cfm
Records
http://dja-eweb.kingcounty.gov/records/
-set up an account
ECR Online
-save the documents once you purchase them
http://www.kingcounty.gov/courts/Clerk/ECROnine
E-Filing
http://www.kingcounty.gov/courts/Clerk/E-Filing
-read through the FAQ once
-user tips
*Really take a look at this page, it has everything you will want to learn*
-very straight forward, just follow the directions on the page
-make sure you know where your documents are located
GR 30 and LGR 30
http://www.kingcounty.gov/courts/Clerk/Rules/Individuallinks/LGR_30
-must e-serve ahead of time
-use the tabs
Basic Business Organizations
Starting a Business
The first question:
What form should the business take?
Consider
Formation issues
Liability protection
Management structure
Taxation considerations
Exit strategies/transferability of interests
Sole Proprietorship
The most common form of business organization.
One (sole) owner (or – in WA – a married couple)
Business does not have to be registered with the secretary of state
Profits and losses are the personal profits and losses of the owner and are taxed as such
Personal assets of owner are available to satisfy debts of the business
Advantages
Owner is in complete control & receives all profits
Flexibility
Ease of creation; maintenance
Disadvantages
Owner is personally liable for all torts and contracts
Lacks continuity after death
Difficult to raise financing
An Example
Child care provider
Wants to work out of her house
How does she form this business?
What legal process is required?
http://www.access.wa.gov/business/index.aspx
http://www.sba.gov/aboutsba/sbaprograms/onlinewbc/index.html
Partnership
There are three kinds of partnership
General Partnership
Limited Partnership
Limited Liability Partnership
Uniform Act
Washington has adopted the Revised Uniform Partnership Act
The statute governs to
Determine whether a partnership exists
Fill in the missing terms of a partnership agreement
http://apps.leg.wa.gov/RCW/default.aspx?cite=25.05
Partnership
Association of 2 or more persons to carry on as co-owners of a business for profit.
More than one common owner
Governed by contract
Profits and debts are shared by the partners
Partners share in management of business
Advantages
Easy to create and maintain
Flexible, informal
Partners share profits and losses equally
Disadvantages
Partners are personally liable for all torts/contracts
Dissolved upon death of any one partner
Difficult to raise financing
Partnership Responsibilities
Partners have a fiduciary duty to the partnership and each other.
Liable to the partnership for intentional misconduct or gross negligence
Cannot compete with the partnership
May not take an advantage from the partnership without consent of the partners
In case of conflict of interest, partnership profits must be given to the partnership
Joint Liability
Because a general partnership is considered a single business entity, the partners are all liable for the acts of any partner
Personal property of each partner may be used to satisfy the debts of the partnership
Termination
Dissolution by Acts of the Partners
Withdrawal of any partner from the partnership
Agreement of the partners
Dissolution by Operation of Law
Death of a partner
Dissolution by Judicial Decree
Limited Partnership
In a limited partnership, at least one of the partners does not share in the right to manage the business
The limited partner invests money, but has no decision-making authority
The liability of the limited partner is limited to his or her investment in the business
Limited Liability Partnership
An LLP is a kind of general partnership that is governed by statute
The difference between general and limited liability partnerships is that in an LLP the partners are not liable for the debts of the partnership
Clients or customers of the LLP must be informed of the limited liability
Limited Liability Co.
A form of business ownership that permits small business owners to limit their liability to the amount of their investments
These are governed by statute
RCW 25.15
LLC Agreement
Operating agreement is analogous to corporation’s bylaws.
Agreements may be oral and contain provisions relating to management, dividends, meetings, transfer of membership interests, etc.
Generally, if the operating agreement is silent, courts will apply partnership principles.
Advantages
Member liability is limited to amount of investment.
Can be treated as a “pass through” entity for tax purposes (like partnership).
Profits can be distributed to members without the double taxation of a corporation. Members pay personal income tax on received dividends.
Corporations
A business entity formed by shareholders
The corporation is an artificial “person” for the purpose of conducting a business and can
Own property
Enter into contracts
Sue and be sued
Advantages
The liability of shareholders (the owners) of a corporation is limited to the individual’s investment
The business has a perpetual existence
Disadvantages
Takes a lot of attention at the formation stage
Requires ongoing efforts – reporting requirements, annual meetings
Double taxation
http://apps.leg.wa.gov/RCW/default.aspx?cite=23B
Rights of the Corporation
Because a corporation is a legal “person,” it has constitutional rights.
Equal protection;
Access to the courts, can sue and be sued;
Right to due process;
Freedom from unreasonable search and seizure and double jeopardy.
Freedom of speech.
http://www.youtube.com/view_play_list?p=FA50FBC214A6CE87
Torts and Criminal Acts
A corporation is liable for the torts committed by its agents or officers within the course and scope of their employment under the doctrine of respondeat superior.
Corporation can be liable for criminal acts, but only fined. Responsible officers may go to prison.
Corporate Express Powers
The express powers of a corporation are found in the corporation’s articles of incorporation, the laws of the state of incorporation, and in the state and federal corporations.
Corporate by-laws may also grant or limit a corporation’s express powers.
Corporate Implied Powers
Corporation has implied powers to perform all acts reasonably necessary to accomplish its corporate purposes:
Borrow and lend money.
Extend credit.
Make charitable contributions.
A corporate officer can bind corporation in contract in matters connected with the ordinary business affairs of the corporation.
Ultra Vires Doctrine
Corporate acts that are beyond the express or implied powers of the corporation are considered to be “ultra vires” and unlawful.
Classification of Corporations
Domestic corporation does business in its state of its incorporation.
Foreign corporation from another state doing business in Washington.
Alien Corporation: formed in another country doing business in United States.
Kinds of Corporations
Public and Private.
Nonprofit.
Close Corporations.
Shares held by few shareholders.
More informal management – similar to a partnership.
Restriction on transfer of shares.
Kinds of Corporations
“S Corporations” – IRS classification that enables corporation to avoid “double taxation” – only dividends to the shareholders, not corporate profits, are taxed. IRS requirements:
Corporation is domestic, with fewer than 75 shareholders, only one class of stock, no shareholder can be a non-resident alien.
Professional Corporations.
Basics of Formation
The corporation is created by Articles of Incorporation
These must include
Name of the corporation
Purpose
List of incorporators and directors
Name and address of registered agent
Share structure
Articles are filed with Secretary of State
Corporate Status
De Jure: substantial statutory requirements are met; cannot be attacked by state or 3rd parties.
De Facto: statutory requirements not met, but promoters made good faith effort to comply with corporate law; corporate status can only be attacked by state.
By Estoppel: if it acts like a corporation, it cannot avoid liability by claiming that no corporation exists.
Piercing the Corporate Veil
Where the corporate form is used solely to shield individuals from liability
Generally, owner co-mingles personal and corporate assets
Sometimes no stock is issued or
Formation or regulatory rules are ignored
Corporate Hierarchy
Corporate Structure
The owners of the corporation are the shareholders.
Create the capital of the corporation
Have no management authority
Elect board of directors
Must approve changes in articles of incorporation and other major changes
Corporate Structure
The Board of Directors
Elected by the shareholders
Have management responsibility
Appoint, supervise, remove officers of the corporation
The Directors have a fiduciary relationship with shareholders
Corporate Structure
Officers and Executives
Elected/appointed by the board of directors
Responsible for carrying out board’s policies and directives
Responsible for management of business
Have a fiduciary duty to act in the best interests of the shareholders and the corporation
Requirements
Corporations are required to:
Hold annual meetings of shareholders.
Give reasonable notice of meetings.
Provide reasonable access to books and records to shareholders.
Securities Regulation
Two major securities laws
Securities Act of 1933
Securities Exchange Act of 1934
Insider Trading
Sarbanes-Oxley Act
Enacted after the Enron accounting scandal to require additional protections for investors.
Additional Regulations
Sherman (Antitrust) Act
Prohibits price fixing and illegal monopolies
Clayton Act
Prohibits anticompetitive mergers
Robinson-Patman Act
Prohibits price discrimination aimed at putting small competitors out of business
Merger and Consolidation
Corporations can grow and expand by:
Mergers.
Consolidation.
Purchase of another corporation’s assets.
Purchases of a controlling interest in another corporation.
Termination
Termination of a corporation, like a partnership, consists of two phases:
Dissolution (voluntary or involuntary); and
Liquidation.
May 12th Notes
Complex Litigation
May 12, 2010
Read the first amendment
Freedom of religion
Establishment clause: congress shall make no law on religion (no state religion)
-needs to be a wall of separation between religion and state
Seperationist View (minority viewpoint)
- (Hugo Black) "Wall of Separation"
-Everson v. Bd. of Education 1947
-the state is one side, the church is the other
Exercise clause: freedom of religion
Accomodationist View (majority and prevailing viewpoint)
- Cannot prefer, but can neutrally assist
-Lemon v. Kurtzman 1971
-when has the government gone too far
"Lemon Test"
1. Is there a valid secular (non-religious) purpose? (Yes)
2. Is the primary purpose of govt. to advance/inhibit religion? (No)
3. Will the involvement promote excessive governmental entanglement? (No)
-use these questions to see if the government is allowed to do something with religious organizations
Tilton v. Richardson 1971
-lemon test failed but still held
-passed same test as lemon v. kurtzman
Engel v. Vitale 1962
-compose an officials school prayer
-Prayer in school
-not allowed
Zorach v. Clauson 1952
-dismissed time to release kids to go study bible school
-as long as it is after school
Lynch v. Donnelly 1984
-nativity scene on government property
-said it didn't violate any lemon tests
-just put it on private property
-on public property only if there are secular symbol neutralization
-religious content must be limited
okay to have: bells, stars, holly, stockings, elves, wishing wells,
The free exercise of belief and the free exercise of conduct pursuant of the belief.
-you are free to believe whatever you want
-when you act on those belief you are in a new realm of law
-government must protect the health, welfare and safety of other citizens
4 Key Concepts to Restricting Religious Conduct (not "belief")
1. Does the state have a compelling interest?
2. Does the claimant have a "sincere religious principle" that will be "significantly compromised"?
3. Is the restriction an outright prohibition or merely an "inconvenience"?
4. A legitimate time-place-manner infringement or an effort to control content?
-The Supreme Court never interferes with belief, can interfere with practice and will uphold minor inconveniences and restrictions.
Reynolds v. US 1878
-examines beliefs vs. acting on beliefs
-prohibited polygamy law (Utah not a state)
-challenged, held
-can believe in polygamy but can not take action on it
-subversive to good order, stable monogamous marriage is critical to society
Cantwell v. Connecticut 1940
-Jehovah witness, would ask to play record for people on sidewalk
-was a very anti-catholic record
-state said he needed a permit
-solicitation on sidewalk
-concern with fraud
-Cantwell wins because the burden is on the state and their permit issues
Sherbet v. Verner 1963
-7th day adventist, does not work on Saturday
-company makes him work on Saturday, fired over it
-wants unemployment
-held by John Harlen
-only when the work is unavailable, not the worker
-nothing to do with religion, her refusal to work
-no one gets a day off for religious purposes
-Sunday is just a rest day
Lyng v. NW Indian Cemetery Protection Assn. 1988
-forest ceremony for their funeral procedures
-someone wants to log the forest
-court went with being allowed to chop the trees down, serious issue
Wisconsin v. Yoder 1972
-can the government force the Amish to educate their children beyond 8th grade
-violated their parents' fundamental right to freedom of religion
-the Amish have an alternative community that can work well for them
Goldman v. Weinberger 1986
- wanted to wear jewish cap in uniform
-no problem being jewish, but no cap
-uniform is part of the military, making them one organization
-air force won, defense of authorization act: can wear religious symbols if neat and conservative
Dept. of Human Resources of Oregon v. Smith 1990
-can native americans smoke peyote as part of their rituals?
-no peyote decision, Scalia do not excuse compliance with laws prohibiting conduct, which the state is free to regulate
-American Indian Freedom Act from 1970's: can smoke peyote
Minnesota v. Hershberger 1990
-are the Amish exempt from hanging reflective triangles on their horse and buggies
-ACLU came against the Amish
-everyone must hang reflective triangle for safety despite their request that it interferes with god's will
-triangles must go on
-done all in amicus curie briefs
May 12, 2010
Read the first amendment
Freedom of religion
Establishment clause: congress shall make no law on religion (no state religion)
-needs to be a wall of separation between religion and state
Seperationist View (minority viewpoint)
- (Hugo Black) "Wall of Separation"
-Everson v. Bd. of Education 1947
-the state is one side, the church is the other
Exercise clause: freedom of religion
Accomodationist View (majority and prevailing viewpoint)
- Cannot prefer, but can neutrally assist
-Lemon v. Kurtzman 1971
-when has the government gone too far
"Lemon Test"
1. Is there a valid secular (non-religious) purpose? (Yes)
2. Is the primary purpose of govt. to advance/inhibit religion? (No)
3. Will the involvement promote excessive governmental entanglement? (No)
-use these questions to see if the government is allowed to do something with religious organizations
Tilton v. Richardson 1971
-lemon test failed but still held
-passed same test as lemon v. kurtzman
Engel v. Vitale 1962
-compose an officials school prayer
-Prayer in school
-not allowed
Zorach v. Clauson 1952
-dismissed time to release kids to go study bible school
-as long as it is after school
Lynch v. Donnelly 1984
-nativity scene on government property
-said it didn't violate any lemon tests
-just put it on private property
-on public property only if there are secular symbol neutralization
-religious content must be limited
okay to have: bells, stars, holly, stockings, elves, wishing wells,
The free exercise of belief and the free exercise of conduct pursuant of the belief.
-you are free to believe whatever you want
-when you act on those belief you are in a new realm of law
-government must protect the health, welfare and safety of other citizens
4 Key Concepts to Restricting Religious Conduct (not "belief")
1. Does the state have a compelling interest?
2. Does the claimant have a "sincere religious principle" that will be "significantly compromised"?
3. Is the restriction an outright prohibition or merely an "inconvenience"?
4. A legitimate time-place-manner infringement or an effort to control content?
-The Supreme Court never interferes with belief, can interfere with practice and will uphold minor inconveniences and restrictions.
Reynolds v. US 1878
-examines beliefs vs. acting on beliefs
-prohibited polygamy law (Utah not a state)
-challenged, held
-can believe in polygamy but can not take action on it
-subversive to good order, stable monogamous marriage is critical to society
Cantwell v. Connecticut 1940
-Jehovah witness, would ask to play record for people on sidewalk
-was a very anti-catholic record
-state said he needed a permit
-solicitation on sidewalk
-concern with fraud
-Cantwell wins because the burden is on the state and their permit issues
Sherbet v. Verner 1963
-7th day adventist, does not work on Saturday
-company makes him work on Saturday, fired over it
-wants unemployment
-held by John Harlen
-only when the work is unavailable, not the worker
-nothing to do with religion, her refusal to work
-no one gets a day off for religious purposes
-Sunday is just a rest day
Lyng v. NW Indian Cemetery Protection Assn. 1988
-forest ceremony for their funeral procedures
-someone wants to log the forest
-court went with being allowed to chop the trees down, serious issue
Wisconsin v. Yoder 1972
-can the government force the Amish to educate their children beyond 8th grade
-violated their parents' fundamental right to freedom of religion
-the Amish have an alternative community that can work well for them
Goldman v. Weinberger 1986
- wanted to wear jewish cap in uniform
-no problem being jewish, but no cap
-uniform is part of the military, making them one organization
-air force won, defense of authorization act: can wear religious symbols if neat and conservative
Dept. of Human Resources of Oregon v. Smith 1990
-can native americans smoke peyote as part of their rituals?
-no peyote decision, Scalia do not excuse compliance with laws prohibiting conduct, which the state is free to regulate
-American Indian Freedom Act from 1970's: can smoke peyote
Minnesota v. Hershberger 1990
-are the Amish exempt from hanging reflective triangles on their horse and buggies
-ACLU came against the Amish
-everyone must hang reflective triangle for safety despite their request that it interferes with god's will
-triangles must go on
-done all in amicus curie briefs
Wednesday, May 12, 2010
May 11th Notes
Criminal Law
May 11, 2010
Warrant-less Search and Seizure
Vehicle Searches
-tremendous amount of law comes from car stops due to police stops
-they are following hunches and reacting
1. Expectation of Privacy in Vehicle
-driver sitting in your car
-4th Amendment Law
-First question to ask: Do you have an expectation of privacy?
-if not, the police can do whatever they like up to a point
-But you do have expectation of privacy in your car
-federal law: stolen vehicle you do not have an expectation of privacy
-state law: WA more protection than 4th amendment
-Gunwall case: State v. Stroud
-even if it's stolen, automatic standing to object to unwarranted searches
-primary reason to decriminalize the traffic code was that cops were making too much money
-working traffic and citations were criminal
-every time you contest a ticket, went to court, you needed cops testimony
-5th and 6th to trial
-only certain ones are crimes now
-civil traffic infractions now
-no probably cause to detain or arrest
-What can they do?
-general rule is: once you arrest someone, you can search
-they can search the area of control
-its never been defined
-eliminates the possibility that the perp can access evidence or weapons
-gets unusually once the perp is in handcuffs or in the police car, can not access
Evolution of the rules
-NY v. Beltron
-Supreme Court case 1986
-first case that authorized search of vehicle even though perp was handcuffed in police car
-Ringer Case: if they are locked up, no search incident to arrest (1983 law)
-1986 overruled Ringer Case and took up Beltron Case
-now, Ringer Case is law
-picking cases to change law
Pretext stop
-situation where a police officer uses a traffic code to stop someone to see what's going on
-not interested in enforcing traffic code
-it is an unlawful stop and search and seizure
-federal law it is but not with state law
-passengers have rights
-driver alone is responsible
-does not establish the right to search everyone
Federal law looks objectively
-conducting a traffic stop, who are we to question as long as it appears legal
Exceptions
-license problems, mechanical problems, traffic violation
-none of them involve evidence
-even if it's a criminal violation
State v. Patten
-article 1 section 7
-warrant-less search can only be done if the perp is free and has access to the car and contents
State v. Grande
-2008 pot smoke pouring out of car case
Questions that you have to know about your client:
Do they have a standing for privacy?
-remember that question when dealing with searches and seizures
Did the client give consent?
-consent gives the police power
Search Warrants
-CRR 2.3 search warrant needs to be signed by objective judge not in case
-normal routine:
-police goes to judge with affidavit of probable cause
-probable cause : evidence found in a specific location and a specific time
-depends on crime, what you are searching for
-confidential informant can be used (CI) to establish
-the information has to be timely
Paperwork Required:
1. warrant itself
2. probable cause affidavit
3. search warrant return: filed with court following search
4. inventory: internal use
-cop can phone the warrant in too
3 Types of Identification Procedures
1. Show up
2. Montage
3. Line Up
Due process issues
-identification procedures must be fair, can not be tainted by police
-not so much of an issue now as it used to be
Miranda Rights
-police don't have to advise you of your rights
-has to be custodial interrogation
-has to be to illicit incriminating statements
-if the defendant waived Miranda, then the statement violates 5th Amendment
-there are exceptions
-you must know the right you are waiving
-government has to be involved in governmental action
5th Amendment
-no rights to blood, hair, dna samples
-production of documents
-incriminating evidence
May 11, 2010
Warrant-less Search and Seizure
Vehicle Searches
-tremendous amount of law comes from car stops due to police stops
-they are following hunches and reacting
1. Expectation of Privacy in Vehicle
-driver sitting in your car
-4th Amendment Law
-First question to ask: Do you have an expectation of privacy?
-if not, the police can do whatever they like up to a point
-But you do have expectation of privacy in your car
-federal law: stolen vehicle you do not have an expectation of privacy
-state law: WA more protection than 4th amendment
-Gunwall case: State v. Stroud
-even if it's stolen, automatic standing to object to unwarranted searches
-primary reason to decriminalize the traffic code was that cops were making too much money
-working traffic and citations were criminal
-every time you contest a ticket, went to court, you needed cops testimony
-5th and 6th to trial
-only certain ones are crimes now
-civil traffic infractions now
-no probably cause to detain or arrest
-What can they do?
-general rule is: once you arrest someone, you can search
-they can search the area of control
-its never been defined
-eliminates the possibility that the perp can access evidence or weapons
-gets unusually once the perp is in handcuffs or in the police car, can not access
Evolution of the rules
-NY v. Beltron
-Supreme Court case 1986
-first case that authorized search of vehicle even though perp was handcuffed in police car
-Ringer Case: if they are locked up, no search incident to arrest (1983 law)
-1986 overruled Ringer Case and took up Beltron Case
-now, Ringer Case is law
-picking cases to change law
Pretext stop
-situation where a police officer uses a traffic code to stop someone to see what's going on
-not interested in enforcing traffic code
-it is an unlawful stop and search and seizure
-federal law it is but not with state law
-passengers have rights
-driver alone is responsible
-does not establish the right to search everyone
Federal law looks objectively
-conducting a traffic stop, who are we to question as long as it appears legal
Exceptions
-license problems, mechanical problems, traffic violation
-none of them involve evidence
-even if it's a criminal violation
State v. Patten
-article 1 section 7
-warrant-less search can only be done if the perp is free and has access to the car and contents
State v. Grande
-2008 pot smoke pouring out of car case
Questions that you have to know about your client:
Do they have a standing for privacy?
-remember that question when dealing with searches and seizures
Did the client give consent?
-consent gives the police power
Search Warrants
-CRR 2.3 search warrant needs to be signed by objective judge not in case
-normal routine:
-police goes to judge with affidavit of probable cause
-probable cause : evidence found in a specific location and a specific time
-depends on crime, what you are searching for
-confidential informant can be used (CI) to establish
-the information has to be timely
Paperwork Required:
1. warrant itself
2. probable cause affidavit
3. search warrant return: filed with court following search
4. inventory: internal use
-cop can phone the warrant in too
3 Types of Identification Procedures
1. Show up
2. Montage
3. Line Up
Due process issues
-identification procedures must be fair, can not be tainted by police
-not so much of an issue now as it used to be
Miranda Rights
-police don't have to advise you of your rights
-has to be custodial interrogation
-has to be to illicit incriminating statements
-if the defendant waived Miranda, then the statement violates 5th Amendment
-there are exceptions
-you must know the right you are waiving
-government has to be involved in governmental action
5th Amendment
-no rights to blood, hair, dna samples
-production of documents
-incriminating evidence
Thursday, May 6, 2010
May 6th Notes
Business Law
May 6, 2010
NEWS
-review questions from the book for the final
-essay questions
-----------------------------------------------
What is an agency?
Agency is the fiduciary relationship that arises when one person (the “principal”) manifests assent to another person (the “agent”) that the agent
Shall act on the principal's behalf
Subject to the principal's control
And the agent manifests assent or otherwise consents so to act.
Restatement (Third) of Agency § 1.01
Agency Relationship
There must be
A principal
An agent
Consent of the principal to have the agent act on its behalf
Consent of the agent to act on behalf of the principal
Control by the principal of agent’s actions
Fiduciary relationship
Result of Relationship
A business will be responsible for the debts incurred, decisions made, contracts formed, as well as the tortious acts of its agents.
A person or entity dealing with the agent is dealing with the principal.
Agent’s Fiduciary Duty
Agent owes a fiduciary duty to the principal – to act in the best interest of the principal.
Competent performance
Notice of important information
Loyalty and accountability
Agent who fails to act in the principal’s interests is liable for resulting damages.
Additional Duties
The agent has a duty
To obey instructions of the principal
To act with reasonable care
To provide information that the principal should or would want to know
Principal’s Duties
The principal must
Cooperate with the agent and
Compensate the agent for services rendered
Indemnify agent for expenses, liability
Liability for Contracts
A principal is bound by the contracts of the agent, if
The agent has authority (express, implied, apparent) to act on the principal’s behalf
The principal ratifies or accepts the benefit of the transaction or
A court finds the principal should be estopped from denying the agent’s authority
Liability for Contracts
An agent is liable on a contract only if
The principal’s existence is disclosed, but his identity is not or
Neither the existence nor identity of the principal is disclosed
The principal is always liable on the contract, if the agent has authority to make it.
Employment Setting
An employer, as a principal, is responsible for – and liable for – the acts and omissions (negligence) of an employee.
This is based on the concept that the employee is acting on the employer’s behalf – the employee is acting as the employer’s agent.
Who is an Employee?
Individuals who work for businesses may be
Employees or
Independent contractors
Employee
Usually hired for a specific wage paid periodically – rather than when a job is done.
Employer pays social security, benefits, income tax, unemployment compensation and workers compensation contributions.
Employer maintains control over the task and how it will be accomplished.
Independent Contractor
Contracts to perform a specific service for a set fee (project or hourly).
Responsible for own social security, taxes, benefits, tools.
Hired to do a job – but the contractor determines how to get the job done.
Respondeat Superior
The doctrine of respondeat superior holds a business liable for the tortious acts of a worker if:
The worker was an employee
The worker’s tortious act caused injury
The worker was acting within the scope of employment at the time of the injury
Employment Law
Employee rights
Employee actions for:
Compensatory damages
Injunctive relief
Basic Employee Rights
Minimum wage
Safety protections
Special protections for minors
Right to organize and collectively bargain
Employment at Will
Generally either an employee or an employer can terminate the employment – without any reason.
An exception is that an employer may not terminate employment if it would violate a contractual right, a statutory right, or public policy.
http://www.tvw.org/media/mediaplayer.cfm?evid=1998120085&TYPE=V&CFID=7132350&CFTOKEN=53809485&bhcp=1
Loomis Case with Gardner
-diversity of jurisdiction
Fair Labor Standards Act
Fair Labor Standards Act (FLSA) establishes certain minimum requirements for wages, hours of work, premium overtime, and payroll records.
FLSA identifies two types of employees: non-exempt employees and exempt employees.
Washington’s counterpart is the state Minimum Wage Act.
Equal Pay Act
The federal Equal Pay Act protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
Workers Compensation
Washington law provides a statutory (rather than a common law) remedy for workers who are injured on the job. RCW title 51.
Family Leave Acts
Both federal and state laws provide employees the right to time off to care for newborn or sick children or sick family members.
Discrimination
Federal law, Title VII of the Civil Rights Act, prohibits discrimination based on
Race, color, national origin
Sex
Religion
EEOC Complaints for 2009
Total of 93,277 charges against private sector employers, down slightly from 2008’s record high
33,579 charges based on race
28,0283 on sex
33.613 on retaliation
21,451 on disability
22,778 on age
8,327 on national origin
3,386 on religion
942 – Equal Pay Act
Discrimination
Washington law prohibits discrimination based on
Age
Religion
Sex, sexual orientation, marital status
Race, color, national origin
Presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a disabled person.
Interpretation of the Law
Even though Washington’s law against discrimination pre-dates the federal law, Washington has relied on federal case law in interpreting its own law against discrimination.
Washington has also relied heavily on the interpretation given its law by the State Human Rights Commission.
What Law Applies?
Considerations in using state law or federal law
What remedies are available?
Is administrative action a prerequisite to suit?
Defenses?
Who is an “Employer”?
Under Washington law “employer” is any person who employs 8 or more employees (with some exceptions). Under federal law an employer must have 15 employees to be subject to the law.
The limitation on protection (based on number of employees) is not a violation of equal protection.
Griffin v. Eller, 130 Wn.2d 58 (1996)
Prima Facie Case
Employee must show by a preponderance of evidence
The employee is a member of a protected class
The employee is qualified for the job
Adverse action by employer (denied employment, promotion; fired, demoted)
Someone who is not in the class was hired to fill Plaintiff-employee’s spot
Employer’s Burden
The employer then has the right to present evidence showing that the reason for the adverse action was a legitimate non-discriminatory reason
Ultimate Burden
The burden then shifts back to the employee to prove that the reason advanced by the employer is a pretext for discriminating against the employee.
Employee has the ultimate burden of proof for showing discrimination has occurred.
Age Discrimination
“In the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs”
US Congress 1967 40+
Washington Law
RCW 49.44.090 makes it unlawful for an employer to discriminate in the terms and conditions of employment against an employee or applicant for employment because the employee is 40 years old or older.
BFOQ
A defense to an employee’s claim of overt discrimination is that the presence or absence of a particular characteristic is a necessary qualification for the job.
The qualification must be reasonably necessary to the business operation
Disparate Treatment
Occurs when an individual believes he or she is being directly and intentionally discriminated against on the basis of race, sex, national origin, disability, age, or marital status.
Disparate Impact
Occurs when a facially neutral employment practice or policy deprives an employee of employment opportunities because the practice or policy has a disproportionate impact on a protected class of individuals to which the plaintiff belongs.
Sexual Harassment
Quid pro quo
Hostile work environment
Quid Pro Quo Harassment
Any unwelcome sexual advance, request for sexual favors, or other verbal or physical conduct of a sexual nature when any one of three criteria is met:
Submission to sexual conduct is made (explicitly or implicitly) a term or condition of employment.
Submission to or rejection of the sexual conduct is the basis for employment decisions.
Hostile Work Environment
Employee must establish
Offensive, unwelcome contact that
Occurred because of sex, gender or disability
Affected the terms or conditions of employment
Can be imputed to employer
Casual, isolated, trivial manifestations of a discriminatory environment do not affect the employment sufficiently to violate the law.
Hostile Workplace
Sexual/Disability harassment can be in the form of
Verbal behavior (unwanted sexual comments, suggestions, jokes, requests for sexual favors)
Non-verbal behavior (gestures, leering, pictures, cartoons)
Physical behavior (assault, molestation, touching, repeated brushing against a person's body)
Disability Discrimination
RCW 49.60, prohibits discrimination on the basis of a disability, or perceived disability.
The federal Rehabilitation Act prohibits discrimination based on disability by federal agencies and agencies receiving federal funds.
The federal Americans with Disabilities Act (ADA) prohibits discrimination in employment and in the delivery of public services.
Washington Law
RCW 49.60.180 – It is an unfair practice for any employer to discriminate in the terms and conditions of employment because a person has a sensory, mental or physical disability or uses a service animal unless based on a bona fide occupational qualification.
American Disabilities Act
Federal counterpart to RCW 49.60.
Enacted July 26, 1990
The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities
in employment
state and local government services
public accommodations
commercial facilities
transportation.
Reasonable Accommodation
Employers have a duty to reasonably accommodate the disabilities of applicants and employees.
When does the duty arise?
What is reasonable? What isn’t?
What is a bona fide occupational qualification for purposes of disability discrimination?
What is a disability?
Under federal law:
(1) a physical or mental impairment that substantially limits one or more of his major life activities,
(2) a record of such an impairment, or
(3) is regarded as having such an impairment
Under state law:
(1) a sensory, mental, or physical impairment that
(a) is medically diagnosable;
(b) exists as a record or history; or
(c) is perceived to exist whether or not it exists in fact.
Rehabilitation Act
The federal Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work in the federal government, or for agencies receiving federal funds, and provides monetary damages in cases of intentional employment discrimination.
May 6, 2010
NEWS
-review questions from the book for the final
-essay questions
-----------------------------------------------
What is an agency?
Agency is the fiduciary relationship that arises when one person (the “principal”) manifests assent to another person (the “agent”) that the agent
Shall act on the principal's behalf
Subject to the principal's control
And the agent manifests assent or otherwise consents so to act.
Restatement (Third) of Agency § 1.01
Agency Relationship
There must be
A principal
An agent
Consent of the principal to have the agent act on its behalf
Consent of the agent to act on behalf of the principal
Control by the principal of agent’s actions
Fiduciary relationship
Result of Relationship
A business will be responsible for the debts incurred, decisions made, contracts formed, as well as the tortious acts of its agents.
A person or entity dealing with the agent is dealing with the principal.
Agent’s Fiduciary Duty
Agent owes a fiduciary duty to the principal – to act in the best interest of the principal.
Competent performance
Notice of important information
Loyalty and accountability
Agent who fails to act in the principal’s interests is liable for resulting damages.
Additional Duties
The agent has a duty
To obey instructions of the principal
To act with reasonable care
To provide information that the principal should or would want to know
Principal’s Duties
The principal must
Cooperate with the agent and
Compensate the agent for services rendered
Indemnify agent for expenses, liability
Liability for Contracts
A principal is bound by the contracts of the agent, if
The agent has authority (express, implied, apparent) to act on the principal’s behalf
The principal ratifies or accepts the benefit of the transaction or
A court finds the principal should be estopped from denying the agent’s authority
Liability for Contracts
An agent is liable on a contract only if
The principal’s existence is disclosed, but his identity is not or
Neither the existence nor identity of the principal is disclosed
The principal is always liable on the contract, if the agent has authority to make it.
Employment Setting
An employer, as a principal, is responsible for – and liable for – the acts and omissions (negligence) of an employee.
This is based on the concept that the employee is acting on the employer’s behalf – the employee is acting as the employer’s agent.
Who is an Employee?
Individuals who work for businesses may be
Employees or
Independent contractors
Employee
Usually hired for a specific wage paid periodically – rather than when a job is done.
Employer pays social security, benefits, income tax, unemployment compensation and workers compensation contributions.
Employer maintains control over the task and how it will be accomplished.
Independent Contractor
Contracts to perform a specific service for a set fee (project or hourly).
Responsible for own social security, taxes, benefits, tools.
Hired to do a job – but the contractor determines how to get the job done.
Respondeat Superior
The doctrine of respondeat superior holds a business liable for the tortious acts of a worker if:
The worker was an employee
The worker’s tortious act caused injury
The worker was acting within the scope of employment at the time of the injury
Employment Law
Employee rights
Employee actions for:
Compensatory damages
Injunctive relief
Basic Employee Rights
Minimum wage
Safety protections
Special protections for minors
Right to organize and collectively bargain
Employment at Will
Generally either an employee or an employer can terminate the employment – without any reason.
An exception is that an employer may not terminate employment if it would violate a contractual right, a statutory right, or public policy.
http://www.tvw.org/media/mediaplayer.cfm?evid=1998120085&TYPE=V&CFID=7132350&CFTOKEN=53809485&bhcp=1
Loomis Case with Gardner
-diversity of jurisdiction
Fair Labor Standards Act
Fair Labor Standards Act (FLSA) establishes certain minimum requirements for wages, hours of work, premium overtime, and payroll records.
FLSA identifies two types of employees: non-exempt employees and exempt employees.
Washington’s counterpart is the state Minimum Wage Act.
Equal Pay Act
The federal Equal Pay Act protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
Workers Compensation
Washington law provides a statutory (rather than a common law) remedy for workers who are injured on the job. RCW title 51.
Family Leave Acts
Both federal and state laws provide employees the right to time off to care for newborn or sick children or sick family members.
Discrimination
Federal law, Title VII of the Civil Rights Act, prohibits discrimination based on
Race, color, national origin
Sex
Religion
EEOC Complaints for 2009
Total of 93,277 charges against private sector employers, down slightly from 2008’s record high
33,579 charges based on race
28,0283 on sex
33.613 on retaliation
21,451 on disability
22,778 on age
8,327 on national origin
3,386 on religion
942 – Equal Pay Act
Discrimination
Washington law prohibits discrimination based on
Age
Religion
Sex, sexual orientation, marital status
Race, color, national origin
Presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a disabled person.
Interpretation of the Law
Even though Washington’s law against discrimination pre-dates the federal law, Washington has relied on federal case law in interpreting its own law against discrimination.
Washington has also relied heavily on the interpretation given its law by the State Human Rights Commission.
What Law Applies?
Considerations in using state law or federal law
What remedies are available?
Is administrative action a prerequisite to suit?
Defenses?
Who is an “Employer”?
Under Washington law “employer” is any person who employs 8 or more employees (with some exceptions). Under federal law an employer must have 15 employees to be subject to the law.
The limitation on protection (based on number of employees) is not a violation of equal protection.
Griffin v. Eller, 130 Wn.2d 58 (1996)
Prima Facie Case
Employee must show by a preponderance of evidence
The employee is a member of a protected class
The employee is qualified for the job
Adverse action by employer (denied employment, promotion; fired, demoted)
Someone who is not in the class was hired to fill Plaintiff-employee’s spot
Employer’s Burden
The employer then has the right to present evidence showing that the reason for the adverse action was a legitimate non-discriminatory reason
Ultimate Burden
The burden then shifts back to the employee to prove that the reason advanced by the employer is a pretext for discriminating against the employee.
Employee has the ultimate burden of proof for showing discrimination has occurred.
Age Discrimination
“In the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs”
US Congress 1967 40+
Washington Law
RCW 49.44.090 makes it unlawful for an employer to discriminate in the terms and conditions of employment against an employee or applicant for employment because the employee is 40 years old or older.
BFOQ
A defense to an employee’s claim of overt discrimination is that the presence or absence of a particular characteristic is a necessary qualification for the job.
The qualification must be reasonably necessary to the business operation
Disparate Treatment
Occurs when an individual believes he or she is being directly and intentionally discriminated against on the basis of race, sex, national origin, disability, age, or marital status.
Disparate Impact
Occurs when a facially neutral employment practice or policy deprives an employee of employment opportunities because the practice or policy has a disproportionate impact on a protected class of individuals to which the plaintiff belongs.
Sexual Harassment
Quid pro quo
Hostile work environment
Quid Pro Quo Harassment
Any unwelcome sexual advance, request for sexual favors, or other verbal or physical conduct of a sexual nature when any one of three criteria is met:
Submission to sexual conduct is made (explicitly or implicitly) a term or condition of employment.
Submission to or rejection of the sexual conduct is the basis for employment decisions.
Hostile Work Environment
Employee must establish
Offensive, unwelcome contact that
Occurred because of sex, gender or disability
Affected the terms or conditions of employment
Can be imputed to employer
Casual, isolated, trivial manifestations of a discriminatory environment do not affect the employment sufficiently to violate the law.
Hostile Workplace
Sexual/Disability harassment can be in the form of
Verbal behavior (unwanted sexual comments, suggestions, jokes, requests for sexual favors)
Non-verbal behavior (gestures, leering, pictures, cartoons)
Physical behavior (assault, molestation, touching, repeated brushing against a person's body)
Disability Discrimination
RCW 49.60, prohibits discrimination on the basis of a disability, or perceived disability.
The federal Rehabilitation Act prohibits discrimination based on disability by federal agencies and agencies receiving federal funds.
The federal Americans with Disabilities Act (ADA) prohibits discrimination in employment and in the delivery of public services.
Washington Law
RCW 49.60.180 – It is an unfair practice for any employer to discriminate in the terms and conditions of employment because a person has a sensory, mental or physical disability or uses a service animal unless based on a bona fide occupational qualification.
American Disabilities Act
Federal counterpart to RCW 49.60.
Enacted July 26, 1990
The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities
in employment
state and local government services
public accommodations
commercial facilities
transportation.
Reasonable Accommodation
Employers have a duty to reasonably accommodate the disabilities of applicants and employees.
When does the duty arise?
What is reasonable? What isn’t?
What is a bona fide occupational qualification for purposes of disability discrimination?
What is a disability?
Under federal law:
(1) a physical or mental impairment that substantially limits one or more of his major life activities,
(2) a record of such an impairment, or
(3) is regarded as having such an impairment
Under state law:
(1) a sensory, mental, or physical impairment that
(a) is medically diagnosable;
(b) exists as a record or history; or
(c) is perceived to exist whether or not it exists in fact.
Rehabilitation Act
The federal Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work in the federal government, or for agencies receiving federal funds, and provides monetary damages in cases of intentional employment discrimination.
May 5th Notes
Complex Litigation
May 5, 2010
NEWS
Remaining Classes:
Tonight: Product Liability
5/12: Freedom of Religion
5/19: Freedom of Religion
Bankruptcy
5/26: Bankruptcy
Review
6/2: Final
-1st Amendment (speech and religion)
-Bankruptcy
-Product Liability
---------------------------------------------
Product Liability
-products that cause damage and harm
-newer area of law, used to be "caveat emptor" (buyer beware)
-used to be no liability, with the exception of inherently dangerous products
Thomas v. Winchester 1852
"caveat emptor" (let the buyer beware)
except for "inherently dangerous" products
-explosives, poisons, guns, etc.
-druggist case sold many dangerous chemicals
-there is liability to selling poisons, but not across the board
McPherson v. Buick 1916
"caveat venditor" (let the seller beware)
-injured when a wooden car wheel broke and caused injury
-automobile is not inherently dangerous, not a utility dangerous purpose
-but anything can cause a danger if made improperly
In product questions, think of 3:
1. type of injury or loss
2. then pick a theory
3. then pick a defense
Losses
1. Personal Injury
-injured, death to person
2. Property Damage
-damage to machine or surroundings
3. Economic
-malfunctioning can cause business issues
Recovery
-some are better than others, depends on state and use
1. Contract (Warranty): promised usage
1. Express: most common
1. Fact of promise about product
2. Description of product
3. Sample, model, display, demonstration
-means it should work the way you show
Exception: thin line between fraud and puffing
-puffing is okay (looks great on you)
2. Implied Warranty of Fitness for Particular Purpose
1. Seller knows purpose
-ask the seller for advice
2. Seller knows buyer is relying
3. Actual reliance: just like fraud
-goods must do the job for which they were purchased
3. Implied Warranty of Merchantability
-good are fit for reasonable consumer expectations
-implied for all goods
2. Tort
1. Manufacture
-something happened at the assembly line to make it different
2. Design
-made from an inherently flawed template
1. Structure
2. Safety
-prevention of injury, engineered to cause less harm
3. Foreseeable misuse
-manufacture must think of ways people will use it wrong
3. Failure to warn/instruct
3. Strict Liability (Restatement of Torts § 402A 1965)
-from no liability to strict liability now
-not all products, 2 requirements
1. defective condition leaving manufacturer's control
2. causing an unreasonable danger from that defect
-but not unavoidably unsafe (ie rat poison)
Trends
1. Market share liability
-products that have caused a lot of damage
-sharing the judgment on damages
-imposed on manufacturer once it is defective
-hold them liability for % of the market
2. Expansion beyond the manufacturer to everyone in the retail chain
-wholesale, retail, potential product liability
- have to prove breech, the retailer doesn't have a duty to take the defective device apart
-so it becomes strict liability
3. Any reasonably foreseeable plaintiff
-anyone that ends up with the product
-or could be effected with the product
Defenses
1. Statute of Limitations
-4 years warranty
-3 years negligence or strict liability
2. Useful Safe Life
-12 years
3. Comparative Negligence
-usually using the product in a dangerous way
4. Assumption of Risk
-must know of the risk to assume it
5. Disclaimer (warranty only)
-"as is"
-"with all faults"
-"as it stands"
6. Product misuse
-unforeseeable
7. State of Art
-technology changes consistently
8. Unavoidably unsafe
RCW 7.72 Product Act
May 5, 2010
NEWS
Remaining Classes:
Tonight: Product Liability
5/12: Freedom of Religion
5/19: Freedom of Religion
Bankruptcy
5/26: Bankruptcy
Review
6/2: Final
-1st Amendment (speech and religion)
-Bankruptcy
-Product Liability
---------------------------------------------
Product Liability
-products that cause damage and harm
-newer area of law, used to be "caveat emptor" (buyer beware)
-used to be no liability, with the exception of inherently dangerous products
Thomas v. Winchester 1852
"caveat emptor" (let the buyer beware)
except for "inherently dangerous" products
-explosives, poisons, guns, etc.
-druggist case sold many dangerous chemicals
-there is liability to selling poisons, but not across the board
McPherson v. Buick 1916
"caveat venditor" (let the seller beware)
-injured when a wooden car wheel broke and caused injury
-automobile is not inherently dangerous, not a utility dangerous purpose
-but anything can cause a danger if made improperly
In product questions, think of 3:
1. type of injury or loss
2. then pick a theory
3. then pick a defense
Losses
1. Personal Injury
-injured, death to person
2. Property Damage
-damage to machine or surroundings
3. Economic
-malfunctioning can cause business issues
Recovery
-some are better than others, depends on state and use
1. Contract (Warranty): promised usage
1. Express: most common
1. Fact of promise about product
2. Description of product
3. Sample, model, display, demonstration
-means it should work the way you show
Exception: thin line between fraud and puffing
-puffing is okay (looks great on you)
2. Implied Warranty of Fitness for Particular Purpose
1. Seller knows purpose
-ask the seller for advice
2. Seller knows buyer is relying
3. Actual reliance: just like fraud
-goods must do the job for which they were purchased
3. Implied Warranty of Merchantability
-good are fit for reasonable consumer expectations
-implied for all goods
2. Tort
1. Manufacture
-something happened at the assembly line to make it different
2. Design
-made from an inherently flawed template
1. Structure
2. Safety
-prevention of injury, engineered to cause less harm
3. Foreseeable misuse
-manufacture must think of ways people will use it wrong
3. Failure to warn/instruct
3. Strict Liability (Restatement of Torts § 402A 1965)
-from no liability to strict liability now
-not all products, 2 requirements
1. defective condition leaving manufacturer's control
2. causing an unreasonable danger from that defect
-but not unavoidably unsafe (ie rat poison)
Trends
1. Market share liability
-products that have caused a lot of damage
-sharing the judgment on damages
-imposed on manufacturer once it is defective
-hold them liability for % of the market
2. Expansion beyond the manufacturer to everyone in the retail chain
-wholesale, retail, potential product liability
- have to prove breech, the retailer doesn't have a duty to take the defective device apart
-so it becomes strict liability
3. Any reasonably foreseeable plaintiff
-anyone that ends up with the product
-or could be effected with the product
Defenses
1. Statute of Limitations
-4 years warranty
-3 years negligence or strict liability
2. Useful Safe Life
-12 years
3. Comparative Negligence
-usually using the product in a dangerous way
4. Assumption of Risk
-must know of the risk to assume it
5. Disclaimer (warranty only)
-"as is"
-"with all faults"
-"as it stands"
6. Product misuse
-unforeseeable
7. State of Art
-technology changes consistently
8. Unavoidably unsafe
RCW 7.72 Product Act
Wednesday, May 5, 2010
May 4th Notes
Criminal Law
May 4, 2010
NEWS
Michael Swartz 206-340-0990
-call if the syllabus is not in the email
----------------------------------------------------
Procedural
Criminal law is a bloodsport.
We will begin to address the fundamental building blocks of criminal law and the criminal justice system on this first night.
1. The jurisdictional divides. We will address the differences, and the reasons for those differences, between cases heard in federal courts and in state courts. We will also review the jurisdictional divide within the state systems that distinguish the superior courts from the courts of limited jurisdictions.
2. How a criminal case begins: We will review the basic methods of investigation and the process of turning investigations into criminal charges. These methods include grand juries, preliminary hearings and the primary method employed in the State of Washington, direct filing.
3. The fundamental rights guaranteed to the defendants by the United States and State of Washington Constitutions. The criminal justice system is predicated on three basic rights that will be reviewed: The right to counsel (6th Amendment of the United States Constitution; Article 1 Section 22 of the Washington State Constitution); the right to be protected against unreasonable search and seizure (4th Amendment of the United States Constitution; Article 1 Section 7 of the Washington State Constitution) and the right not to testify against oneself (the right to “remain silent”/5th Amendment of the United States Constitution and Article 1). We will also briefly review the double jeopardy clause of the 5th Amendment.
Students are expected to read the following before the class lecture:
6th Amendment of the United States Constitution;
Article 1 Section 22 of the Washington State Constitution;
4th Amendment of the United States Constitution;
Article 1 Section 7 of the Washington State Constitution
5th Amendment of the United States Constitution.
Misdemeanors
-municipal and district courts
-municipal is only to make income for a larger cities
-prosecutors are usually not government employees
-usually contacted out
-tend to be more approachable when government employees
Murder is not a federal crime
-depends on the type of crime and amount of people though
-terrorist acts would be federal court
-jeopardy sovereign for the same conduct that is literally double jeaporady
-state and federal are not the same sovereign
-the duality
4th amendments
5th amendments
6th amendments
-criminal case in federal system with unlawful search and seizure and Miranda rights or due process issue
-the courts look at the 4, 5. 6th amendments
-federal constitutional law only applies as a floor not as a ceiling
-you must provide the min. due process and protections from the supreme court
-the state can provide more protection if they want
-WA state does
State laws on crime:
Title 9A primary criminal code
-the code shows the common law is still to be applied
-assault 1 = attempted murder 2
-can recharge with murder if victim dies
-must die within 3 years and a day in order to
-otherwise it is not homicide, its a variety of assault
-if there is a blank space in the law, use the common law
-one year and a day was the common law
title 69 drug code cases
felonies in other places
-50s, 70s
the codes tend to have criminal law throughout them
-but the depth is in title 9 a
cities can have their own codes and ordinances
-cities and counties can have their own codes but can not punish more severely than the state version
-example dui
Charging decisions
-federal is through a grand jury and presents an indictment
-broken up into districts
-trial courts are district courts
-WA
-charged by district attorney offices
-probably cause hearing before a magistrate
-preliminary hearing
-the prosecutor in this state has all of the power with no oversight
-can not be arranged without probable cause
-there needs to be a warrant and booking process to get them in the system
-warrant needs to have probable cause
-search or arrest in a criminal case needs to be based on probable cause
Knapstad motion
-assume everything the prosecutor says is true from witness statements, evidence
The point of a criminal trial is whether or not the prosecutor has accomplished the burden of proof, guilt beyond a reasonable doubt.
SODDI
-some other dude did it
-common defense
-you can get lost if you keep trying to find the truth
-but the idea behind it all is to prove your case regardless of that
-time better spent on prosecutor's case
-everyone has a price too
Police investigate usually without the prosecutions help
-when its a violent crime scene they will send someone
-you become part of the investigation
-better understanding of the case
-provide onsite legal advice for warrants
Prosecutors choices
file charges
decline charges
send it back to the cops
Special inquiry court
-single judge empowered as grand jury
-no power to indite
-just a tool for prosecutors
-can get information out of it
Setting up a case for trial
-deconstructioning the prosecutor's case
4th Amendment
-article 1 section 7
-reasonable expectation of privacy
-bans unreasonable search and seizure
-did the defendant have a reasonable definition of privacy?
-if a search is conducted without a warrant it is unconstitutional
-there are many exceptions
standing
-no objections to search of sister's home since you have no expectation to privacy in your sister's home
-evidence can be admitted
-no reasonable expectation of privacy there
-consent is exception, you can let the police do it
Name of the case that created the rule
-Terry v. Ohio 1968
-Terry stop: based on reasonable suspicion
-police see something strange at night in the streets
-can they stop and detain them with probable cause
-no probable cause
-yes you may detain short of probable cause if it is limited and if the police have reasonable suspicion of criminal activity
-timing is dependent on case by case
Rights of the individual
-you can decline to provide id, name, do not lie if you do say something
-you can decline to cooperate
-may not use lack of cooperation to establish probable cause
exclusionary rule
-if seized unnecessary can not be used
exceptions to warrant requirements
-vin #, if it is through the windshield they don't
-consent must be knowing, not product of illegal detention
-plain view, they are not required to avert their eyes, they can seize it and the perp
-plain smell doctrine
-plain feel doctrine
-search incident to a lawful arrest
-abandoned property: police can search your garbage, no longer private
exigent circumstances
-immediate threat of harm to an individual
-hot pursuit
inevitable discovery
-evidence is going to be suppressed but it would have been found anyway at some point
people in custody
-zero expectation of privacy
school children
-may not search school lockers without a warrant
-school officials may
May 4, 2010
NEWS
Michael Swartz 206-340-0990
-call if the syllabus is not in the email
----------------------------------------------------
Procedural
Criminal law is a bloodsport.
We will begin to address the fundamental building blocks of criminal law and the criminal justice system on this first night.
1. The jurisdictional divides. We will address the differences, and the reasons for those differences, between cases heard in federal courts and in state courts. We will also review the jurisdictional divide within the state systems that distinguish the superior courts from the courts of limited jurisdictions.
2. How a criminal case begins: We will review the basic methods of investigation and the process of turning investigations into criminal charges. These methods include grand juries, preliminary hearings and the primary method employed in the State of Washington, direct filing.
3. The fundamental rights guaranteed to the defendants by the United States and State of Washington Constitutions. The criminal justice system is predicated on three basic rights that will be reviewed: The right to counsel (6th Amendment of the United States Constitution; Article 1 Section 22 of the Washington State Constitution); the right to be protected against unreasonable search and seizure (4th Amendment of the United States Constitution; Article 1 Section 7 of the Washington State Constitution) and the right not to testify against oneself (the right to “remain silent”/5th Amendment of the United States Constitution and Article 1). We will also briefly review the double jeopardy clause of the 5th Amendment.
Students are expected to read the following before the class lecture:
6th Amendment of the United States Constitution;
Article 1 Section 22 of the Washington State Constitution;
4th Amendment of the United States Constitution;
Article 1 Section 7 of the Washington State Constitution
5th Amendment of the United States Constitution.
Misdemeanors
-municipal and district courts
-municipal is only to make income for a larger cities
-prosecutors are usually not government employees
-usually contacted out
-tend to be more approachable when government employees
Murder is not a federal crime
-depends on the type of crime and amount of people though
-terrorist acts would be federal court
-jeopardy sovereign for the same conduct that is literally double jeaporady
-state and federal are not the same sovereign
-the duality
4th amendments
5th amendments
6th amendments
-criminal case in federal system with unlawful search and seizure and Miranda rights or due process issue
-the courts look at the 4, 5. 6th amendments
-federal constitutional law only applies as a floor not as a ceiling
-you must provide the min. due process and protections from the supreme court
-the state can provide more protection if they want
-WA state does
State laws on crime:
Title 9A primary criminal code
-the code shows the common law is still to be applied
-assault 1 = attempted murder 2
-can recharge with murder if victim dies
-must die within 3 years and a day in order to
-otherwise it is not homicide, its a variety of assault
-if there is a blank space in the law, use the common law
-one year and a day was the common law
title 69 drug code cases
felonies in other places
-50s, 70s
the codes tend to have criminal law throughout them
-but the depth is in title 9 a
cities can have their own codes and ordinances
-cities and counties can have their own codes but can not punish more severely than the state version
-example dui
Charging decisions
-federal is through a grand jury and presents an indictment
-broken up into districts
-trial courts are district courts
-WA
-charged by district attorney offices
-probably cause hearing before a magistrate
-preliminary hearing
-the prosecutor in this state has all of the power with no oversight
-can not be arranged without probable cause
-there needs to be a warrant and booking process to get them in the system
-warrant needs to have probable cause
-search or arrest in a criminal case needs to be based on probable cause
Knapstad motion
-assume everything the prosecutor says is true from witness statements, evidence
The point of a criminal trial is whether or not the prosecutor has accomplished the burden of proof, guilt beyond a reasonable doubt.
SODDI
-some other dude did it
-common defense
-you can get lost if you keep trying to find the truth
-but the idea behind it all is to prove your case regardless of that
-time better spent on prosecutor's case
-everyone has a price too
Police investigate usually without the prosecutions help
-when its a violent crime scene they will send someone
-you become part of the investigation
-better understanding of the case
-provide onsite legal advice for warrants
Prosecutors choices
file charges
decline charges
send it back to the cops
Special inquiry court
-single judge empowered as grand jury
-no power to indite
-just a tool for prosecutors
-can get information out of it
Setting up a case for trial
-deconstructioning the prosecutor's case
4th Amendment
-article 1 section 7
-reasonable expectation of privacy
-bans unreasonable search and seizure
-did the defendant have a reasonable definition of privacy?
-if a search is conducted without a warrant it is unconstitutional
-there are many exceptions
standing
-no objections to search of sister's home since you have no expectation to privacy in your sister's home
-evidence can be admitted
-no reasonable expectation of privacy there
-consent is exception, you can let the police do it
Name of the case that created the rule
-Terry v. Ohio 1968
-Terry stop: based on reasonable suspicion
-police see something strange at night in the streets
-can they stop and detain them with probable cause
-no probable cause
-yes you may detain short of probable cause if it is limited and if the police have reasonable suspicion of criminal activity
-timing is dependent on case by case
Rights of the individual
-you can decline to provide id, name, do not lie if you do say something
-you can decline to cooperate
-may not use lack of cooperation to establish probable cause
exclusionary rule
-if seized unnecessary can not be used
exceptions to warrant requirements
-vin #, if it is through the windshield they don't
-consent must be knowing, not product of illegal detention
-plain view, they are not required to avert their eyes, they can seize it and the perp
-plain smell doctrine
-plain feel doctrine
-search incident to a lawful arrest
-abandoned property: police can search your garbage, no longer private
exigent circumstances
-immediate threat of harm to an individual
-hot pursuit
inevitable discovery
-evidence is going to be suppressed but it would have been found anyway at some point
people in custody
-zero expectation of privacy
school children
-may not search school lockers without a warrant
-school officials may
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