week 1 assignment

Case Analysis (based on United States v. Falkowski on p. 348)

1. Summarize the facts that led to the defendant’s claim that he was subjected to double jeopardy.

2. What was (were) the legal question(s) before the court?

3. Based on what you read in this case, what is civil forfeiture?

In this criminal case, defendant Falkowski was indicted on charges related to the cultivation and distribution of marijuana. The day following the criminal indictment, the government filed civil forfeiture proceedings against real property obviously used in the commission of the crime. The sequence of the events following is important. On October 14, defendant was arrested. On November 5, the United States sought entry of default in the civil forfeiture case. On November 13, defendant pleaded guilty to some of the criminal charges pursuant to a plea agreement. On December 2, the government made a second request to enter default in the civil forfeiture action. On December 14, the clerk entered default in the civil forfeiture proceeding. On February 2, the United States moved for a decree of forfeiture. On July 28, defendant was sentenced in the criminal case. Defendant appealed the criminal conviction, claiming that the civil forfeiture and criminal sentence constituted double jeopardy and because the sentence was the last to be imposed, the conviction must be set aside.

The court stated that there were three reasons why the attack on the criminal case must fail. First, jeopardy attached in the criminal case before the default judgment was entered in the civil proceeding. Second, by entering a plea of guilty, the defendant waived or forfeited the right to collaterally attack his conviction and sentence on grounds of double jeopardy. Third, the civil forfeiture was not based on the same offense for which defendant was criminally prosecuted.

Opinion

Statement of Relevant Facts

On October 6, 1992, Falkowski and co-defendants were indicted on charges related to the cultivation and distribution of marijuana in the Fairbanks area. Falkowski was charged as part of a continuing conspiracy headed by John Collette, and with conducting a continuing criminal enterprise and related offenses. The indictment contained criminal forfeiture counts addressing property in which Falkowski was alleged to claim an interest.

On October 7, 1992, the day following the return of the indictment, the government filed civil forfeiture proceedings against real property located at 1804 Caribou Way in Fairbanks, Alaska. This property had also been listed in the indictment. The criminal case was brought in Anchorage while the civil case proceeded in Fairbanks. Falkowski was served but did not file a claim regarding the civil forfeiture of the Caribou Way property, while others with interest in the real estate did file claims.

On October 14, 1992, Falkowski was arrested and simultaneously served with notice of the arrest of the property at 1804 Caribou Way.

On November 5, 1992, the United States sought entry of default against Falkowski in the civil forfeiture case. The request made no reference to the pending criminal prosecution.

On November 13, 1992, Falkowski pled guilty to some of the charges in the indictment pursuant to a plea agreement anticipating that the other counts would be dismissed. The charges to which Falkowski pled included conducting a continuing criminal enterprise, money laundering, and investing drug proceeds in a business enterprise. As part of the plea agreement, Falkowski agreed to forfeit any property (1) which he acquired as a result of drug trafficking and (2) to assist the government in locating and seizing any such property. The plea agreement did not specify whether the property at 1804 Caribou Way would be forfeited civilly or criminally. In fact, the plea agreement made no specific reference to the Caribou Way property or the civil forfeiture proceeding.

On December 2, 1992, the government made a second request to enter default against Falkowski in the civil forfeiture action. On December 14, 1992, the clerk entered a default against all defendants or claimants in the for feiture action who had not filed claims, answers or responses. The defaulted parties included Falkowski.

On February 2, 1993, the United States moved for a decree of forfeiture, relying in part on the declaration and order of default. The 1804 Caribou Way property was ordered forfeited to the United States by an order entered on February 10, 1993.

On July 28, 1993, the district court sentenced Falkowski to identical concurrent seventy-two-month sentences on each of the counts of conviction. The judgment of conviction makes no reference to forfeiture of the Caribou Way property.

Discussion

Falkowski contends that the civil forfeiture of some of his property coupled with his significant prison sentence constitutes multiple punishments for the “same offense” which is barred by the double jeopardy clause
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of the United States Constitution. He contends that the default judgment forfeiting his property preceded his sentence and, therefore, his criminal sentence should be vacated. The Fifth Amendment provides that “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb. . . .” The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Although the text mentions only harm to life or limb, the Fifth Amendment covers imprisonment and monetary penalties as well. See United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). A civil forfeiture proceeding is not a criminal prosecution. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361–62, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). Thus, this Court is only concerned in this case with the punishment prong of the rule.

There are three reasons why Falkowski’s attack on his criminal sentence must fail: First, jeopardy attached in the criminal case before the default judgment was entered in the civil proceeding. Second, by entering a plea of guilty, Falkowski waived or, more accurately, forfeited the right to collaterally attack his conviction and sentence on double jeopardy grounds. Third, the civil forfeiture proceeding was not based upon the same offense for which Falkowski was criminally prosecuted.

The Relative Timing of Plea and Forfeiture

Where a defendant contends that he was subject to multiple punishments for the same offense, it is necessary to determine the point at which jeopardy attaches because first in time is apparently first in right. See, e.g., United States v. Faber, 57 F.3d 873 (9th Cir. 1995). Jeopardy attaches in a criminal case when the jury is sworn or, as in this situation, when the case settles without trial, jeopardy attaches when a plea is accepted. Faber, 57 F.3d at 874–5. In the instant case, Falkowski entered an unconditional plea on November 13, 1992. While there is some uncertainty regarding the point at which jeopardy “attaches” in a civil forfeiture proceeding, the consensus seems to be that the earliest jeopardy attaches is when an answer is filed in the civil forfeiture proceeding. See also United States v. Wong, 62 F.3d 1212, slip op. at 9925 (9th Cir. 1995). Falkowski never filed an answer, so jeopardy never attached. Accord United States v. Torres, 28 F.3d 1463 (7th Cir. 1994). Alternatively, the only other significant date would be the entry of default judgment against Falkowski on February 10, 1993. Until final judgment was entered, Falkowski could still seek to reclaim the property. United States v. A Parcel of Land, Buildings, Appurtenances and Improvements, Known as 92 Buena Vista Ave., Rumson, New Jersey, 507 U.S. 111, 113 S. Ct. 1126, 1136, 122 L. Ed. 2d 469 (1993) (until judgment entered, the government does not own property). The civil forfeiture of the Caribou Way property does not impact Falkowski’s criminal sentence.

The Civil Forfeiture Was Not Based

upon the Same Offense

The Fifth Amendment prevents inter alia multiple punishments for the same offense. Falkowski argues that his civil forfeiture and criminal prosecution comprised the same offense and relies upon United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir. 1994). That decision does not, however, specifically address the issue or discuss the definitive decision determining whether two offenses are the same for double jeopardy purposes. See United States v. Dixon, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993). In Dixon, the Supreme Court overruled Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548,110 S. Ct. 2084 (1990) and disapproved the dictum suggested in Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980), that prosecuting someone a second time based on evidence used to convict him of a related crime on another occasion would implicate double jeopardy. Dixon, 113 S. Ct. at 2861–2863. The Court held that to determine whether successive prosecutions in volve the same offense, the Supreme Court will look only to the same elements test derived from Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932) (holding that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not”). Id. Dixon, by overruling Grady, cast doubt on using Vitale to create lesser included offenses by reference to evidence and conduct rather than basic elements. Id.

What then are the elements of a criminal offense and, by extension, of a civil claim? The elements of a claim or charge constitute the minimum which the plaintiff must prove to prevail. Generally, the elements of a criminal charge are sketched in the indictment, and the elements of a civil claim are suggested in the complaint. But, at least in this Court, neither the indictment nor the complaint go to the jury nor control what the government must prove to prevail. In both situations, the elements are sent to the jury in the jury instructions.

What then is the minimum the government must prove to obtain a forfeiture? See 21 U.S.C. § 881(a).
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The government must prove that there is probable cause to believe that there is a substantial connection between the property and some violation of one or more of the laws prohibiting drug trafficking. For example, probable cause that the property was either purchased with the proceeds of drug offenses or was used to commit or facilitate the violation of various drug statutes. In each case, the elements of the claim focus on specific property. In contrast, none of the criminal statutes require the use of any specific property to prove guilt. Thus, the civil claim has an element not shared by the criminal statutes. Consequently, it is not possible to find that the civil forfeiture and the criminal prosecution are identical offenses. See United States v. Chick, 61 F.3d 682, 687 (9th Cir. 1995) (holding that if criminal charges require proof of facts which the civil forfeiture action would not have required to be proven, then the criminal charges cannot be said to be based upon the same offense underlying the forfeiture action).

The only alternative allowed by Dixon would be a finding that one was a lesser offense and the other a greater offense. Clearly, the criminal offense could not be the greater because it does not completely include the elements of the civil forfeiture, the involvement of property. Therefore, some cases conclude, without analysis, that the civil forfeiture must be the greater offense and the criminal offenses must be lesser included offenses. See, e.g., United States v. Ursery, 59 F.3d 568, 574 (6th Cir. 1995). This seems wrong. The criminal cases all require the government to prove both an actus reus and mens rea, generally knowledge or intent; the civil forfeitures do not require the government to prove mens rea. True, the innocent owner defense injects additional elements into the case with superficial similarity to mens rea, but it is clear that Congress did not consider the claimant’s burden to relate to elements of the offense. The claimant is given an affirmative “defense.”

There is a clear distinction, however, between the elements of the offense and the elements of an affirmative defense. First, the claimant must disprove knowledge and consent and the government does not have to prove it as an element. See United States v. 1980 Red Ferrari, VIN No. 9A0034335, 827 F.2d 477, 478 (9th Cir. 1987). More important, to convict of the underlying crime, the government must prove that the defendant committed the actus reus with the complementary mens rea. The elements of the criminal case focus on the defendant and his actions. In contrast, to avoid forfeiture, the claimant must prove that he did not have knowledge that anyone was using his property in drug trafficking and that he tried, to the extent of his power, to prevent its use for such purposes; this is a significantly greater burden than the burden to prove that he was not an accomplice. Thus, the civil claim and the criminal offense each have an element not shared by the other. The civil claim requires the use of property; the criminal claim requires mens rea. The cases that conflate the civil claim and the criminal offense fail to see the significance of Dixon’s overruling of Grady. The United States Supreme Court clearly repudiated both a same conduct test and a same transaction test. More importantly, the Court made it clear that the same offense test means precisely the same thing whether courts are considering the successive prosecution strand of the double jeopardy clause or the successive punishment strand. See Dixon (“it is embarrassing to assert that the Fifth Amendment single term ‘same offense’ has two different meanings”).

It is, of course, true that the government will typically rely on the same evidence to prove the charges in the indictment and the forfeiture claim. It is also true that the forfeiture will inevitably arise out of the same transaction or series of transactions as the criminal prosecution. But, as Dixon teaches, this is not enough. The confusion in the cases comes from the failure to distinguish between the allegations in the complaint or indictment, much of which may be surplusage, and the elements that must be proven. See, e.g., United States v. McCaslin, 863 F. Supp. 1299, 1303 (W. D. Wash. 1994) and Oaks, 872 F. Supp. at 823–24 (suggesting that, because proof of any violation of drug laws would permit a forfeiture, any forfeiture is the same offense as any violation of the drug laws). That confusion is compounded in forfeiture cases when the court, conducting an analysis of elements to determine whether a criminal prosecution and a civil claim have the same elements, focuses on the affidavit submitted in conjunction with the showing of probable cause necessary to seize the property in the first instance instead of focusing on the elements the government must prove to forfeit the property. It is probably true that the affidavit will set out virtually everything that is known about the defendant’s criminal activities, but it does not determine what must be proven to accomplish a forfeiture. A single use of the property, in conjunction with a single violation, will suffice. See, e.g., 21 U.S.C. § 881(a)(7).

As the Supreme Court made clear in Felix, 503 U.S. at 380–381, prosecution of a defendant for conspiracy does not violate the double jeopardy clause, where some of the overt acts relied upon by the government are based on substantive offenses for which the defendant has been previously convicted and punished. Consequently, prosecution for conspiracy or its twin, continuing criminal enterprise after the defendant has
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previously suffered a civil forfeiture based on similar evidence and arising out of the same transaction, does not violate the double jeopardy clause. See United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994)(“A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.”) (citing Felix, 503 U.S. at 389). By the same token, the fact that the civil forfeitures and the criminal indictment charge violations of similar statutes is not determinative.

An example will illustrate the point. Assume that John Doe flies his Cessna 180 on the first of each month for thirty-six months between Mexico City and Los Angeles to pick up and deliver a shipment of cocaine. Clearly, each trip is a separate crime which could be separately prosecuted and separately punished. In addition, conspiracy counts would probably be sustained. The issue arises in that type of situation as to whether the government could prosecute him criminally for twenty trips and use one or more of the other sixteen as a predicate for forfeiture of the airplane. See Felix, 503 U.S. at 386–387 (suggesting that it could). It is not enough, however, to tie a particular forfeiture to a particular criminal statute. It is also necessary to tie it to a particular violation of that statute on a particular day and at a particular place charged in a particular indictment for the forfeiture and the prosecution to encompass the same offense. It is only then that an elements analysis can be made. See, e.g., One 1978 Piper Cherokee Aircraft, 37 F.3d at 494–95 (prosecution of defendant for drug offenses does not bar subsequent forfeiture tied to criminal act which did not result in specific prosecution). It is clear, for example, that jeopardy does not attach to dismissed counts. See United States v. Vaughan, 715 F.2d 1373 (9th Cir. 1983) (where defendant pleads to some charges in an indictment and others are dismissed, jeopardy only attaches to the counts to which the defendant pleads). In this case, a number of counts were dismissed as part of the plea bargain. Thus, any of the dismissed counts could form the basis for the civil forfeiturewithout impacting double jeopardy.

Homework

Answer case analysis questions 1, 2a, and 2b from p. 21. Read Texas v. Johnson on pp. 21-22 first.
Answer case analysis questions 1, 2, and 3 from p. 126. Read Brown v. Board of Education on pp. 124-126 first.
Answer question 1 under “Application and Analysis” from p. 139.
Submit your assignment to the Dropbox located on the silver tab at the top of this page. For instructions on how to use the Dropbox, read these step-by-step instructions or watch this Tutorial Dropbox Tutorial.
See the Syllabus section "Due Dates for Assignments & Exams" for due date information.
Course Project Deliverables

Form and write a working definition of hydraulic fracturing that demonstrates familiarity with how hydraulic fracturing is actually performed; distinguish gas and oil fracturing (25-50 words). Show where hydraulic fracturing is currently underway in the United States; in Europe; and in South America. (25-50 words)

Chapter 8 of the President’s Economic Report for 2012, at page 256 details some of the economic effects of hydraulic fracturing.www.whitehouse.gov/sites/default/files/microsites/ERP_2012_ch_8.pdfOil fracking in the Bakken Shale in and around Williston, North Dakota has had dramatic economic effects. The May, 2012 issue of the Oil and Gas Journal had a lengthy article on the Williston boom. Using such material (and any other source material you may find) write a two- to three-paragraph summary of the economic impact of hydraulic fracturing. TIP: Try a GOOGLE search such as <hydraulic fracturing economic effects>.

Provide links or citations to material you have found that might be useful in writing about the above points.

week 3 assignment

Negligence is a particular type of tort action that involves something the law calls a "duty of care." The standard of care depends on the facts and circumstances of the case but, generally, the duty of care, in its broadest sense, means each of us should behave responsibly and sensibly, in the way a reasonable person would behave.

To be guilty of negligence, a defendant in a lawsuit must breach that duty of care, and the breach of duty must be the cause of harm to the plaintiff.

The law looks at two types of causation—actual cause and proximate cause. Often, injury and harm is the result of a chain of events. The person who is the actual cause may or may not be legally responsible. Proximate cause is that act in the natural, direct, uninterrupted sequence of events without which the injury would not have occurred. Proximate cause seeks to decide who, in that chain of events, is responsible for the harm. This can get complicated.

First case: Henry runs the red light and, as a result, collides with Mary's car which is proceeding lawfully through the intersection, injuring Mary. Henry's negligence is both the actual and proximate cause of Mary's injury.

Second case: Henry is stopped at the red light. Marvin is talking on his cell phone and fails to stop his car, rear-ending Henry, and sending his car into the intersection where it collides with Mary's car, injuring Mary. Henry is the actual, but not the legal cause, of Mary's injury. Marvin's actions are the proximate cause of Mary's injury; his actions are the actual cause, sometimes called the "cause in fact", of the harm.

In order to properly consider the following problem, you should review the material in your text at pages 296 and 297; read Herrara et al v. Quality Pontiac; review McCollum v. CBS, especially Part 2 (a) of the opinion, which you will find in Doc Sharing.

Scenario

Susie Marks was seriously injured when the truck in which she was riding failed to negotiate a left turn. On the evening in question, Susie got a ride with Orson to the Elsewhere City Park, where she met her friend, Jerry, and his girlfriend, Kate. Orson said he would pick Susie up at 11:00 p.m. when the park closed. Jerry was a minor who had only been licensed to drive for a few months. He was driving a small truck, the bed of which was covered by a camper shell.

At 11:00 p.m. they were approached by Officer Ruthless of the Elsewhere Police Department, who told them they had to leave the park since there was a curfew and the park was closing. Jerry and Kate got into the truck and Ruthless told Susie to get in the back of the truck. (This state allowed people to ride in the backs of camper trucks without seatbelts.)

Susie told Ruthless she wanted to wait for Orson, or she could walk home, but Ruthless told her to get in the truck. Ruthless told Jerry: "Get everybody out of here," and that "if you guys don't get out of here, curfew will be enforced."

After leaving the park, Jerry made two stops, one just four doors down from Susie's house. Susie did not leave the truck. Jerry lost control of his truck while making a left turn and Susie was seriously injured when the truck overturned. Approximately one-half hour ensued between the time the group left the park area and the time of the accident.

Following the accident, Susie filed a complaint against the City of Elsewhere, Ruthless, and a number of other defendants. The complaint alleged that the City and Ruthless were liable because Ruthless had negligently ordered Suzie to ride in the back of the truck.

Your Role/Assignment

You are the judge in the case. Does Susie have a case against Ruthless? Is Ruthless the proximate cause of Susie's injuries?

Key Players



Title/Role/Character
Name: Susie Marks
Title: Plaintiff
Gender: female (under 18)

I only live about six blocks from the park. After Officer Ruthless ordered us to leave the park, I told him that I only lived up the street, and could walk home. Officer Ruthless paid no attention to me, he did not acknowledge what I said, he just ordered everyone to get into the truck. If I had been given a choice, I would have waited for Orson, or walked home from the park. Ruthless did not give me any alternative to riding in the back of Jerry's truck. But for that, I wouldn't have ended up in traction and missed the first semester of my senior year.

Name: Officer Ruthless
Title: Defendant
Gender: Male, about 35

It's the law that minors have an 11:00 p.m. curfew, and the park closes at 11:00 p.m. Jerry, Kate, and Susie were together, and Jerry had no problem with giving Susie a ride. I had no idea when Orson might arrive, and I couldn't wait around at the park, since I had other duties. I also didn't think it was safe for Susie to walk a mile home that late at night. Those kids rode around for half an hour after they left the park, and Susie could easily have gotten home when Jerry made his second stop.


Activity

Read the scenario summary above and prepare an essay rendering your decision. The components of a legal decision must include the following.

Factual Summary: Provide a succinct and accurate description of the scenario at hand. Summarize the scenario to include all relevant facts.

Issue(s): Restate or summarize the question. What is the legal question you are going to answer?

Legal Concept(s): Identify and discuss one or more legal concepts from the course material when exploring the problem at hand. Define the legal concept(s) and explain how the concept(s) relate(s) to the given scenario.

Analysis/Conclusion: Analyze the factual scenario in relation to the legal concept in order to reach a well-reasoned conclusion. Be sure to apply the legal concept correctly toward solving the legal issue.

The paper should be double-spaced in 12-point font and approximately 500 words. At least two sources must be correctly cited using APA citations, including both in-text parenthetical citations and an end-of-text list of references.

Grading Rubric



Categories
Meets All Requirements
(60 points)
Meets Most Requirements
(50-30 points)
Meets Some Requirements
(20-10 points)
Points Achieved and
Comments
Factual Summary
Student gives a succinct and accurate description of the scenario. Student does an excellent job summarizing the scenario to include all relevant facts. (10 points)
Student does a great job describing the scenario. Summary includes most of the relevant facts. (8-6 points)


Student does a good job describing the scenario. Some of the relevant facts are included. (3-2 points)

Identifying the Legal Issue(s) Presented
Student has done an excellent job identifying the legal Issue(s) by clearly restating or summarizing the question(s) to be answered through legal and factual analysis. (12 points)
Student has done a good job identifying the legal Issue(s), but could have more clearly restated or summarized the question(s) to be answered through legal and factual analysis. (10-6 points)
Student did not fully restate or summarize the question(s) to be answered through legal and factual analysis. (3-2 points)

Legal Concepts
Student has thoroughly discussed one or more legal concepts from the course material when exploring the problem at hand. Student has correctly defined the legal concept(s) and explained how the concept(s) relate(s) to the given scenario. (12 points)
Student does a great job
discussing at least one of the legal concepts from the course material, but could have more thoroughly defined the legal concept(s) and explained how the concept(s) relate to the given scenario. (10-6 points)
Student does not fully discuss at least one of the legal concepts from the course material and does not fully explain how the concept relates to the given scenario. (3-2 points)

Analysis/
Conclusion
Student has clearly demonstrated an in-depth understanding of the task at hand by correctly and thoroughly analyzing the factual scenario in relation to the legal concept in order to reach a well-reasoned conclusion. The analysis is logical and the student does an excellent job applying the legal concept correctly toward solving the legal issue. (14 points)
Student has done a good job demonstrating an understanding of the task at hand, but could have more thoroughly analyzed the factual scenario in relation to the legal concept in order to reach a well-reasoned conclusion. The student could have further demonstrated a logical analysis of the legal concept toward solving the legal issue. (12-6 points)
Student did not demonstrate a thorough understanding of the task at hand by not thoroughly analyzing the factual scenario in relation to the legal concept. Student did not reach a well-reasoned conclusion. (3-2 points)

Format
Student meets all formatting requirements. Paper is double-spaced in 12-point font and is approximately 500 words. At least two sources have been cited correctly using APA citations, both in-text parenthetical citations and an end-of-text list of references. Paper has no grammar or spelling problems and is well written. Paragraph transitions are present and logical and flow is maintained throughout the response. Sentences are complete, clear, and concise. (12 points)
Student meets most formatting requirements. Paper is double spaced in 12-point font and is 500 or almost 500 words. One to two sources have been cited using fairly accurate APA formatting. Paper has few grammar or spelling problems and is fairly well written. Paragraph transitions are mostly present and logical and a good flow is maintained throughout most of the response. Sentences are mostly complete, clear, and concise. (10-6 points)
Student has not substantially complied with formatting requirements. Paper may have major grammar or spelling problems and is not well written. Student may not have cited at least one source in APA format. Some paragraph transitions are present, but response lacks logic and flow throughout. Some sentences are complete, clear, and concise. (3-2 points)

Additional Requirements

Level of Detail: Show all work
Other Requirements: Negligence is a particular type of tort action that involves something the law calls a "duty of care." The standard of care depends on the facts and circumstances of the case but, generally, the duty of care, in its broadest sense, means each of us should behave responsibly and sensibly, in the way a reasonable person would behave.

To be guilty of negligence, a defendant in a lawsuit must breach that duty of care, and the breach of duty must be the cause of harm to the plaintiff.

The law looks at two types of causation—actual cause and proximate cause. Often, injury and harm is the result of a chain of events. The person who is the actual cause may or may not be legally responsible. Proximate cause is that act in the natural, direct, uninterrupted sequence of events without which the injury would not have occurred. Proximate cause seeks to decide who, in that chain of events, is responsible for the harm. This can get complicated.

First case: Henry runs the red light and, as a result, collides with Mary's car which is proceeding lawfully through the intersection, injuring Mary. Henry's negligence is both the actual and proximate

Week 4 homework

Chapter 12 PG 547

Q12 I was recently fired by my employer, an architecture firm, immediately after serving for one month on a federal grand jury. From the moment I informed my boss… I was harassed… and told I was not putting the company first. I was told to get out of my jury service, “or else.”… I was fired exactly one week after my service ended.

Was the dismissal of this at-will employee lawful?

Chapter 13 PG 600

Q16 John D. Archbold Memorial Hospital excluded all job applicants whose weight exceeded the maximum desirable weight (based on Metropolitan Life’s actuarial survey) for large-framed men and women plus 30 percent of that weight. Sandra Murray claimed she was denied a job as a respiratory therapist because her height-to-weight ratio did not meet the guidelines. Murray did not claim to be morbidly obese.

Week 5 homework

This week, our course presents a Case Study for your analysis about professional responsibilities and decision-making during an attempt by one company to gain control of another. Read the Case Study, then review Tender Offers (page 430—431). You will also want to review the Business Judgment Rule (page 391). You will find the facts of the case and the questions you need to address under the Case Study tab in Week 5.

Week 5

Simulation: Sexual harassment lawsuit

This simulation involves a hearing at the trial court level on a motion for summary judgment in a case involving the employer’s liability for alleged sexual harassment.
Motion

Before a case goes to trial, the parties use various motions to refine and define the issues. One such motion is the Motion for Summary Judgment. In this case, the employer’s Motion for Summary judgment claims that the employee has failed to state sufficient facts for a jury to be able to decide that a) the conduct complained of constitutes sexual harassment and b) the employee who allegedly is guilty of harassment is a “supervisor”, and c) that the company maintained a “hostile workplace.”
Briefs

Motions for Summary Judgment are submitted in writing and are supported by written arguments, called Briefs. Judges will look at the motions, the briefs, and any other sworn statements that parties have made, such as oral depositions or sworn answers to discovery (see page 171 in your text) and will also hear oral argument from the parties’ attorneys on the issues raised in the motion.
The Facts
The moving party, in this case Big Car Company, is attempting to convince the judge that its employee, Clarence, did not sexually harass Maybelle Darcy, and that Clarence is not a supervisor. To win its point, Big Car must convince the judge the facts stated by Ms Darcy are not sufficient at law to constitute sexual harassment, are not sufficient at law to show that there was a “hostile work environment” and are not sufficient at law to show that Clarence is a supervisor.

Ms Darcy, in order to get her case to a jury, must convince the judge of the opposite.

Supervisors and middle managers are routinely named as defendants in sexual harassment cases. The awards can be quite large. The cases themselves can take many years to resolve. The case upon which this simulation is based was in litigation for three full years.
Before Watching

Before you watch the simulation, review the material that follows. Watch the simulation, then complete the assignment below.

In Faragher v. City of Boca Raton, 524 U.S. 775 and Harris v. Forklift Systems, 510 U.S. 17, the Supreme Court set out tests for “hostile workplace.” The full opinions can be found in Doc Sharing

We directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”. Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex."..."simple teasing,” offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.”

(It is not) “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher

"...in assessing a hostile environment claim, the totality of the circumstances must be examined, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift

Conduct must be objectively offensive to a “reasonable person” and seen as subjectively offensive by the person claiming sexual harassment.

EEOC Enforcement Guidance Bulletin on Vicarious Employer Liability for Unlawful Harassment by Supervisors (the full text can be found in Doc Sharing) states the Supreme Court has made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The bulletin gives the following information on who is a “supervisor”. (The entire bulletin can be found in Doc Sharing)

An individual qualifies as an employee’s “supervisor” if:
the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or
the individual has authority to direct the employee’s daily work activities.

Authority to Undertake or Recommend Tangible Employment Actions

“Tangible employment decisions” are decisions that significantly change another employee’s employment status. Such actions include, but are not limited to, hiring, firing, promoting, demoting, and reassigning the employee. An individual whose job responsibilities include the authority to recommend tangible job decisions affecting an employee qualifies as his or her supervisor even if the individual does not have the final say. As long as the individual’s recommendation is given substantial weight by the final decision maker(s), that individual meets the definition of supervisor.

Authority to Direct Employee’s Daily Work Activities

An individual who is authorized to direct another employee’s day-to-day work activities qualifies as his or her supervisor even if that individual does not have the authority to undertake or recommend tangible job decisions.

On the other hand, someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority. Furthermore, someone who directs only a limited number of tasks or assignments would not qualify as a “supervisor.”


Assignment

After listening to the simulation and considering the points discussed in the introduction, write a 300-500 word paper in which you

1. State whether you agree with the Judge’s decision; give reasoning for your answer
2. State how, if you were a juror on this case, you would decide; i.e., would you find that
Clarence was a supervisor
Clarence’s conduct constituted sexual harassment and
there was a hostile workplace environment.

Give reasons for your decision.

link for simulation and jury case
https://devry.equella.ecollege.com/file/572d0a3f-ac7a-454b-97df-2675dde849b2/1/simulation.zip/final_simulation.htm

Week 6

Research Paper: Legal Issues in Hydraulic Fracturing

This paper is primarily a report. The report portion should be objective and unbiased. The final section is an opinion section where you may include your own ideas on the subject.

1. To understand the legal and environmental issues raised by hydraulic fracturing. To determine what you believe is the most important environmental issue.

2. To be able to distinguish state and federal laws and regulations; to become familiar with proposed federal laws; to be able to compare and contrast state law approaches; to examine at least one other country's laws and regulations on the issue; to understand the scope of a recent executive order on hydraulic fracturing.

3. To understand the place of hydraulic fracturing of oil and gas as that relates to U.S. energy needs.

4. To form and state your own informed opinion on what hydraulic fracturing laws and regulations should be put in place; to explain with clear reasoning and supporting evidence why you think such laws are necessary.

Your final paper should address each of these objectives. The report should include a discussion of the legal and environmental issues raised by hydraulic fracturing, including what you believe to be the most important issue; it should contain a discussion of federal and state regulations that address hydraulic fracturing. It should compare the varying approaches of at least two states. It should compare U.S. and foreign approaches to hydraulic fracturing regulation. It should address the scope of the president's executive order on hydraulic fracturing (see Doc Sharing).

It should discuss the place of hydraulic fracturing of oil and gas in meeting U.S. energy needs; it should discuss economic impact (could be local, regional, or national) It should conclude with your own informed opinion on what hydraulic fracturing laws and regulations should be put in place, supported with clear reasoning and relevant facts.
Guidelines
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MS Word document, 7—8 pages in length, double-spaced, 12-point Times New Roman, 1-inch margins, APA style.

Include a cover page, table of contents, body of the report, summary or conclusion, and works cited.

Check your work for spelling and grammar. Carefully proofread your paper for spelling and grammar and double check all citations for accuracy. Be sure you have correctly cited all references.

In addition to citing to any of the material which is supplied for the weekly deliverables or which is placed for your use in Doc Sharing or placed for your use in the Webliography, you must cite to at least four sources which are the product of your own research. All sources should be listed on the last page titled Works Cited.

Week 7

Simulation: Environmental Nuisance Lawsuit

This is a lawsuit brought by a group of landowners who live near a dairy farm. The issue is whether the aromatic nature of the farm's creation and processing of manure is a public nuisance. Legal Concept(s): Identify and discuss 1 or more legal concepts from the course material when exploring the problem at hand. Define the legal concept(s) and explain how the concept(s) relates to the given scenario and Analysis/Conclusion: Analyze the factual scenario in relation to the legal concept in order to reach a well-reasoned conclusion (legal concept toward solving a legal issues).

Please name 2 cited sources