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Poop Man Bob

Study study study study study study study study.

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Part I - Introduction

1) Restrictions on testamentary power

a) Constitutional Concerns. Gifts by a testator violating principles of the Constitution will not be held void due to the conflict, as there is no state action in enforcing a will. Johanson disagrees, however – thinks it is state action (a will is only a piece of paper until the state gives it effect)

B) Invalid restraints based on public policy concerns. Look to T’s intent in drafting the will provision in a certain manner

i) Unreasonable restraint on ability to marry (condition will be enforced if it is reasonable)

(1) If it just reduces the range of choice, it is OK.

ii) Encouragement of divorce (usually invalid if it is intended or tends to encourage disruption of a family relationship)

iii) Gifts limited to while single (often depends on wording; can make it so you’re supporting person while single, not encouraging being single)

iv) NOTE: effect of an invalid restraint – takes as if the restraint were not in the will

c) Creative Will Drafting. While premising condition on divorce is void, modifying the language to suggest providing for a woman in the case of divorce is permissible. So, an incentive to divorce can be cloaked in good intention, and possibly survive. Disruptions to family arrangements are typ void, but provision of support is not.

2) Professional responsibility in will drafting and estate planning

a) Duty to 3rd parties

i) Privity of K

(1) CA – not a defense

(a) Reasons to Lift the Privity Bar. Beneficiary is only party that is harmed, and they cannot recover.

(2) TX – is a defense

(a) Reasons Not To Lift the Privity Bar. (A) Allowing third party suits creates the risk that the attorney will begin to think about third parties, rather than the clients, in fulfilling the testator’s wishes. (B) An atty should be able to know the scope of risks in undertaking a representation. Removing the privity req. opens the atty to potentially unlimited liability, which is disproportionate to the cost of a will. © It protects the A/C privilege, since the atty would have to disclose confidential discussions in defending their actions

ii) Negligence – duty of care extending to will beneficiaries

(1) Look at: was the will drafted in non-negligent manner? (i.e., some later event caused the problem)

(a) NOTE: not really an issue in TX b/c of privity of K defense

iii) Breach of K – duty to fulfill intent of the testator

(1) But note that probate courts determine the intent of the will, as that’s all they have to go on – they do not determine the “actual” intent of T. But a malpractice suit may open up litigation on the actual intent of T.

B) Duty to client

i) If a conflict of interest btwn H & W exists, you must get their consent in writing

(1) Atty must withdraw if conflict cannot be resolved

ii) Social setting hypo:

(1) Continuing Duty. An error made during the drafting of a will creates a continuing duty to correct that will. However, there is no similar duty where the will was properly drafted and the testator’s conditions change unless we could show that the atty somehow still represented the client

(2) How to protect atty

(a) Atty should send letters advising client of progress on will – once you say the file is closed, it ends the atty/client relationship

(B) Inserting a provision in atty/client communication stating that if client’s situation changes, should seek help in revising will.

c) Statutes of Limitations

i) Tolled Until Death. Statutes of limitations for will-drafting errors do not begin to run until the death of the testator

3) Howard and Wendy Brown’s Will

a) Situs rule – only the law of the state in which the real property exists will govern the disposition of the intestacy rules. So if H dies in CO, but has a remainder in real property in DE, the intestacy rules of DE will govern that property.

B) Non-probate assets (assets that pass immediately, not subject to will or intestacy)

i) Survivorship estates

ii) Joint tenancy property – decedent’s interest vanishes at death, leaving the survivor with the whole property. Survivor need only file a death certificate.

iii) Contracts (can change beneficiary only through the contractual provision, not by will) E.g., Life insurance money or employee benefits

iv) Property held in trust

v) Property subject to power of appointment

c) Should have a “wipeout clause” – what if none of the intended beneficiaries survive the testator – where then should the estate go?


Part II – Intestacy as an alternative to a will

Note – intestacy laws only apply to the net probate assets

i) Take out funeral expenses and other debt

ii) Exempt personal property set aside

iii) Family allowance

iv) Homestead exception

1) Intestate distributions in the Brown estate – UPC State

a) Spouse’s Share in SP State

i) New UPC Approach (Colorado). This is the modern approach under the UPC. Only 5 states have adopted this approach (including CO).

(1) No Descendants or Surviving Parent of D. SS take all. UPC § 2-102(1)

(2) All Descendants in Common. Under the UPC, the spouse’s share of the estate is everything if the only descendents are common to both of them. UPC § 2-102(1).

(3) No Descendants, but Surviving Parent of Decedent. If there is a surviving parent, spouse takes first $200k plus 3/4 of balance. UPC § 2-102(2).

(4) All Descendants Not in Common. As soon as there are children from another marriage, the spouse’s share gets cut back.

(a) Surviving Spouse Has Separate Children. Spouse takes first $150k plus 1/2 of balance. UPC § 2-102(3).

(B) Decedent Has Separate Children. Spouse takes first $100k plus 1/2 of balance. UPC § 2-102(4).

ii) Homestead allowance. § 2-402

(1) Spouse entitled to a homestead allowance of $15,000

(2) If no spouse, divide the $15,000 allowance btwn minor children.

(3) Exempt from and has priority over all claims against the estate.

iii) Exempt property. § 2-403

(1) Spouse entitled to exempt up to $10,000 worth of personal property

(2) If no spouse, then children are entitled jointly to same value

(3) Family allowance

(4) § 2-404

(a) Family entitled to a “reasonable allowance in money” for their maintenance during the estate’s administration, which may not continue for longer than one year if the estate is inadequate to discharge allowed claims

(B) May be lump sum or periodic installments

© Exempt from and has priority over all claims other than homestead allowance

B) Spouse’s Share in CP State

i) Community property states: LA, TX, NM, AZ, CA, WA, ID, NV, WI (by statute)

ii) UPC Intestacy. § 2-102A gives all of decedent’s interest in CP to the surviving spouse. This is in addition to the regular intestacy rules. So first the CP is removed from consideration. Then the above (§ 2-102) intestacy rules are applied.

iii) TX Intestacy Laws.

(1) Separate Property. SP is governed by § 38. Make sure you are applying the right statute.

(a) Separate Realty. Literally addresses only “land.” Children: Spouse takes life estate in undivided third, with remainder and other 2/3 going to children. TPC § 38(B). No Children: spouse gets half of lands in fee, with other half passed according to distribution rules.

(B) Separate Personalty. No difference what marriage the children are from as long as they are the children of the decedent. Children: Spouse gets third outright, with other 2/3 to children. No Children: Spouse gets it all. TPC § 38.

(2) Community Property. CP is governed by § 45. Be sure you are applying the right statute. In all cases, we are talking about the decedent’s share of CP only. The spouse already owns their half.

(a) All Children In Common or No Children. As long as all children are in common with decedent, or there are no children, all CP passes to spouse. TPC § 45(a).

(B) All Children Not In Common. If child of decedent is not child of surviving spouse, then CP is split, with surviving spouse retaining their CP half, and the decedent’s half passing to children of deceased (this includes children of the SS). TPC § 45(B).

c) Shares Other than Shares of Spouse. Above only governs the share of the surviving spouse. The remainder of the estate passes to descendants and collaterals.

i) UPC Intestacy. (§ 2-103) Any share not passing to the spouse under § 2-102 goes to:

(1) First: Descendants by representation.

(2) Second: If none, then to parents equally, or to surviving parent.

(3) Third: If none, to descendants of decedent’s parents by representation.

(4) Fourth: If none, half to paternal GP, half to maternal GP or to descendents thereof. If one side fails (no GP or descendents thereof), entire estate goes to the side where there are GP or descendents thereof.

ii) TX Intestacy. TPC § 38 is drafted to serve two purposes. 1) if the decedent left no husband or wife; 2) is for SP not going to the spouse.

(1) First. Children and their descendants.

(2) Second. If none, to father and mother in equal shares.

(a) Two Point One. If one is deceased, still divide and pass half to brothers and sisters and descendants.

(B) Two Point Two. If no bros/sis, then single parent takes all.

(3) Third. If no father/mother, then to brothers and sisters.

(a) Note. If there is a surviving spouse, the process stops here and the property returns to spouse. GPs do not take if there is a surviving spouse.

(4) Fourth. If no parents/bros/sis, then divide into moieties. 1/2 to maternal GP, 1/2 to paternal GP.

(a) Four Point One. If only one living, divide moiety and give half to GP and half to descendents of deceased GP.

(B) Four Point Two. If no descendents, surviving GP takes whole moiety.

© Four Point Three. If no GP, then entirety to descendants of GPs.

(5) Fifth. If still looking, go to GGP and so on without end

2) Intestate distribution in the Brown estate – Community property state

a) CP and SP

i) Presumption of CP. All property is presumed to be CP, unless proven otherwise by clear & convincing evidence

(1) So if SP is commingled with CP, it will become CP if the presumption cannot be overcome.

ii) Separate Property. Separate property consists of (1) pre-marriage property, (2) property acquired during marriage by gift, devise, or descent, and (3) recovery for personal injuries (other than that representing the community estate, such as lost wages, etc.). Assets purchased with SP are SP (tracing principle).

(1) Income from SP. Income from SP is CP in TX. Only true in TX, LA, and ID. In all other states, income from SP is SP. Proceeds from sale of SP is not “income” and remains SP.

(a) Complicated Results. With a mutual fund: interest income is reinvested, mixing SP asset with CP income. If presumption not overcome, it all becomes CP.

(B) Capital Gain. Appreciation of SP is not “income” for CP purposes. In the above example, appreciation of stock is SP if shares are SP. But interest is CP. Interest payments are CP (since they are income.

(2) Gifts to Community. Cannot be made. All gifts are separate property. If both names are on the gift, the gift becomes a TIC (undivided ½ share of SP).

(3) Closely Held Businesses. SP if held prior to marriage. However, spouse may have an equitable claim for “time, toil, talent, and effort” under TFC § 3.408. This is interpreted as (1) reimbursement for value of time, toil, and talent (2) less what was reasonable necessary to manage and preserve the estate, and (3) less compensation actually received. Tracing may be applied in situations in which the company is a combination of SP and CP to come up with fractions.

iii) CP can be partitioned into SP – by written agreement signed by both parties, spouses can partition existing CP, and also CP to be acquired in the future, into equal or unequal shares of SP

iv) Conflict of laws separate property – marital ownership of an asset is determined under the laws of the state in which the couple was domiciled when the asset was acquired; and that ownership is not altered when the couple thereafter moves to another jurisdiction.

(1) “Quasi-community Property” – TX only in divorce proceedings – “imported” separate property becomes quasi-community property for the purposes of just and right division on divorce

B) Classification of assets as CP or SP

i) Inception of Title Rule – SP/CP character determined at time when acquired

(1) Installment purchases begun before marriage and finished after marriage – SP

(2) Assets purchased during marriage – presumptively CP

(3) Assets acquired on credit during marriage – presumptively CP

(a) Either spouse can act for the community, even when entering into binding K

(B) What does it take to rebut CP presumption?

(i) Separate credit can be established by showing that in extending the credit, the lender agreed to look solely to the separate estate of the borrowing spouse for satisfaction of the obligation

(4) Life insurance – inception of title rule applies. The first premium pmt determines ownership. Economic contribution not available (secured debt and capital improvement only). But equitable reimbursement claims are still available.

ii) Claims for Economic Contribution; Equitable Reimbursement Claims

(1) What happens if one spouse uses CP to enhance the value of his SP?

(a) TX – two situations that grant a claim for economic contribution

(i) 1) Where CP is used to discharge the principal amount of secured debt;

(ii) 2) Where CP is used to make capital improvements on SP

(B) Statute creates a claim of right, not an equitable claim; and use and enjoyment of property does not create a claim of offsetting benefits

© Computation of claim for economic contribution (example on II-8)

1. E = equity [property’s FMV (-) amt of any lien on property]

2. A = reduction of principal debt attributable to economic contribution of CP and CP funds expended for capital improvements

3. B = equity on date of 1st contribution

4. C = debt reduction attributable to SP during marriage

5. E x [A/(A+B+C)] = claim for economic contribution

(ii) Capital Improvements. The effect of capital improvements is to simply alter the ratio. Numerator becomes (debt reduction due to CP) + (CP spent on capital improvements). The extra term is also added to the denominator. § 3.402(a)(6). Make sure to change this from CP to SP if the reimbursement claim requires.

(iii) No Offset for Enjoyment. Enjoyment of property during marriage does not create any right to a deduction. No discounts for moneys saved. § 3.403(e).

(iv) No Claim for Interest/Taxes. Only reduction in debt is considered, interest and taxes are disregarded. If interest or taxes have been paid out of CP, that is tough luck.

(v) Equitable Leins. If the claim cannot be satisfied in a divorce, “the court shall impose an equitable lien on the property.” § 3.406. The court has no choice in the matter. In death, the lien is only required if the spouse requests it.

(2) Equitable Reimbursement Claims Still Available. Statutes only apply to reduction of secured debt and capital improvements, equitable recovery is still possible. Though the code only mentions two equitable claims, all case law principles are still available. § 3.408. Most common scenario will be life ins. and enhancement of business. Since not under the code, offsets for enjoyment are available.

iii) Effect of how title is taken

(1) CL states – how title is taken determines ownership

(2) CP states – community presumption applies

(a) Exception – title in spouse’s name “as her sole and separate property”

iv) Commingling of SP and CP; tracing

(1) Commingled bank account – “community out first” presumption

(a) Presumption that comm. funds were withdrawn first , before separate funds were withdrawn

(2) Lowest intermediate balance rule – if all CP and then some SP is withdrawn, this is the controlling amt for future SP calculations.

v) Agreements by spouse to alter character of assets

(1) CP to SP. TFC § 4.102 says can partition property. Need written, signed agmt, but code does not specify more.

(a) CP survivorship agreements

(i) 1980 const am expanded scope of permissible agreements

1. spouses and persons about to marry can partition CP to be acquired in the future as well as existing CP [Future partition agmts permissible and premarital partition allowed]

2. spouses can agree that the income from each’s SP shall be that spouse’s SP

3. if one spouse makes a gift to the other spouse, the gift is presumed to include the income from the donated property

(B) Spouse can make gift of interest in CP to other spouse

(i) Thus making the property the SP of the donee spouse

(2) SP to CP. TFC § 4.202 says can convert. Need written requirement (1) in writing (2) signed by both spouses (3) identifying property and (4) instructing that the property be converted to CP. 4.203. Must be married and presently own the property.

(3) Defenses to enforcement – lack of disclosure OR involuntary agreement

(4) Drawbacks - CP is subject to just and right division on divorce; loss of creditor protection; loss of power of disposition

(a) 3rd parties protected – creditor’s claim not defeated by change

(B) Tax reasons for entering into conversion agreement

(i) New basis at death applies to entire community property interest

(ii) No gift tax concern because of unlimited gift tax marital deduction

(5) Gifts “to the community” are SP

(a) One cannot bequeath property to the community; the spouses would have to execute a written conversion agreement or they would each own an undivided ½ share of SP

(6) Consequences of classification as SP or CP

(a) Divorce

(i) “Just and right” division of CP

(ii) What about CP not divided in divorce proceeding?

1. “Just and right” division power extended to CP not divided in divorce

2. Division is made in suit brought by either former spouse

(B) Death of spouse - intestate succession

(7) Rights of Survivorship. In TX, couples can create rights of survivorship w.r.t. their CP by executing a written agreement per § 452 (requiring in writing and signed, possibly with key phrases). Formerly, had to partition property first. RoS are nontestamentary, and transfer outside the will. § 454.

(a) Bank Accounts. Sufficient if signed by the deceased party. Do not need signature of both parties if it is a joint bank account.

(B) Open Ended. Many RoS agreements state that all CP is to be governed by RoS. Revocation of the agreement must be by written agreement and (a) signed by both spouses, or (B) sign ed by one and delivered to the other. This may result in unanticipated classification as RoS.

© Bona Fide Purchasers. However, transfers of property, either by the executor or a claimant, are protected against the claim of the spouse in certain situations if the transfer or purchase was without notice of the RoS. § 460 (providing protection if (1) purchased more than 6 months after death from devisee, or (2) anytime after death from estate). Creates an incentive for buyers to rely on the estate more than the individual.

(d) Joint Tenancies. There is no legal impediment to them in TX. But a title co. will not guarantee a title containing a JT, so they are effectively prohibited

c) Special Classification Rules

i) Income from SP is CP

(1) Corporate distributions:

(a) Cash dividends = CP

(B) All other corporate distributions = SP

© Capital gains = SP

(2) Spouses may agree that income from separate property shall be separate property

(3) Interspousal gifts – income presumed to be donee spouse’s separate property

(a) So the gift is presumed to include all the income or property that might arise from the gift

ii) Life insurance policies – inception of title rule applies in determining whether CP or SP

(1) The first premium payment determines ownership

(2) What if policy acquired after marriage but while domiciled in CL state?

(a) SP on death, but potentially quasi-community on divorce if move to TX

(3) Equitable claim for reimbursement?

(a) Some TX cases have granted reimbursement where comm. funds are used to pay premium on separately-owned insurance policy with no offsetting comm. benefit

iii) Closely-held business interests

(1) Stock in closely-held business is SP if owned before marriage

(2) Spouse may have reimbursement claim recognized by statute

(a) Community estate is entitled to:

(i) Reimbursement for value of time, toil, and talent expended

(ii) Beyond that reasonably necessary to manage and preserve the estate

(iii) Reduced by compensation received for the spouse’s time, toil, and talent

(3) Business incorporated during marriage

(a) CP presumption applies, although separate ownership can be established through tracing

d) Lifetime gifts of CP w/o the other spouse’s knowledge

i) Fraud on the spouse? Here are facts that help determine whether or not:

(1) Relationship of donee to spouse

(a) If gift is to someone not related to H or W, this is a strong push towards finding of fraud – unless a special relationship existed

(2) Amt of gift in relation to entire comm. estate

(a) If gift is small in relation, tends to support finding of no fraud

(3) Whether spouse “made whole” out of remaining comm. assets

(a) If W receives as much from H’s SP or W’s cut of the CP, then no fraud

e) Homestead Laws

i) UPC Homestead. § 2-402. SS entitled to homestead allowance of $15k. If no SS, each minor child of D is entitled to a homestead allowance amounting to $15k, divided btwn them. Allowance is exempt from and takes priority over all claims against the state. Plus, it’s in addition to any shares passing to SS/minor children

ii) TX Homestead – extremely generous

(1) Const definitions of homestead

(a) Rural homestead: up to 200 acres; if more, can designate which parcels

(B) Urban homestead: up to 10 acres; how determine if urban? II-27

© Business homestead is part of urban homestead

(d) Homestead exemption for single person: 10 acres if urban, 100 acres if rural

(2) Consequences of classification as homestead

(a) Homestead is free from creditors’ claims during lifetime

(i) Exceptions – purchase money liens, taxes on the homestead, second mortgages on the homestead

(B) Both spouses must join in a lifetime conveyance of the homestead, even if one spouse’s SP

© Homestead passes at death free of creditors’ claims in some cases

(i) If survived by spouse, minor children, or unmarried adult children - even if the survivor(s) choose not to occupy the homestead. I.e., the spouse may assert their homestead right, but even if they don’t, the property is protected from creditors regardless of who lives there.

(d) If D was survived by spouse or minor children, they have the exclusive right to occupy the homestead for as long as they choose (but note that the homestead title descends according to ordinary rules of descent)

(i) When occupancy ceases, right ceases. But note that right to homestead is not terminated by remarriage.

(ii) Rule does not favor adult children – when minors reach 18, their homestead right of occupancy ceases

(iii) Obligations of Homesteader. A spouse awarded a homestead in TX has all the obligations that attach to one having a life estate in a place.

1. Mortgage Interest and Taxes Only. Homesteaders must preserve the interest of the remainderman in the estate. Mortgage interest must be paid. Taxes on property must also be paid. (Anything that would cause forfeiture)

2. Mortgage Principal. Principal need not be paid on remaindermen’s shares (this would benefit the remaindermen). In most cases, spouse will own their 1/2 of the CP, so they will owe 1/2 of principal pmt. If remaindermen refuse to pay, homesteader will need to if they want to avoid foreclosure (recall mortgage is an exception to creditor protection).

3. Insurance. This does not, however, amount to keeping insurance on the property

(3) Note that homestead protection attaches when land “designated” as homestead

(a) Mere intent to occupy land at some uncertain future date is insufficient; some preparation is necessary

f) Exempt property and Family Allowances. Exempt property and allowances are rarely used. Most common is in insolvent estates and intestacy. In intestacy situation, exemption/allowance come off the top. Spouse still gets their intestate share unaffected.

i) UPC exempt property. The surviving spouse may also set aside a limited quantity of personal property (such as home furnishings, etc.) that may also be free from creditor claims. UPC § 2-403 (providing $10k). Set-aside property is typically permanent (but not in TX)

ii) TX exempt property. All exempt property is automatically set aside after the inventory has been taken. It may be set aside before inventory on motion by spouse/minor children/unmarried children. TPC § 271.

(1) § 278

(a) Property is only set aside during the administration of the estate

(B) After administration, if estate is solvent, creditors can get property

(2) § 279

(a) If estate is insolvent, spouse/children can keep property

(3) Texas Property Code § 42.001 – personal property exempt from garnishment, attachment, execution, or other seizure if property provided for: single person ($30K) or family ($60K)

(a) § 42.002 - defines exempt property. Includes two firearms! Exempt property is included in gross estate for tax purposes.

iii) TX family allowance. Lasts for one year, available upon application to court. TPC § 286. Applicant bears burden of showing they need the allowance. The amount of the allowance is determined by the court (can be very generous if high class). § 287.

(1) Impediments to Allowance. If a spouse has significant SP, a court will not provide allowance. § 288. Do not consider CP, income from CP, or nonprobate assets. Investments, life ins., etc., are all not considered when determining allowance.

(2) Who Gets It. SS and minor children may receive allowance. Paid to spouse if all children in common (or no children), otherwise to guardian of children. § 291.

3) Intestate distributions among descendants and collateral kin

a) Nonmarital Children

i) Paternal inheritance – child is child of father if born under circumstances described in TFC §160.204 [Presumption of paternity – see below] (S23); is adjudicated to be the father by court decree; was adopted by the father; or if the father executed an acknowledgment of paternity

(1) TX Presumptions. Established if (1) child born during marriage; (2) child born before 301st day after termination of marriage; (3) married after birth, but voluntarily asserted paternity; (4) child lived with father first two years of life and father represented to others that child was his

B) Intestacy distribution systems

i) Common law - classic/strict per stirpes – “by the roots” - each child is a root

(1) Divide the share by each child, regardless of whether or not there is a live child. So if there are three family lines, it’s distributed amongst those three lines.

ii) TX - modern per stirpes – per capita with representation – per capita at first level, and representation thereafter.

(1) Division of estate occurs at first level where at least one descendant is living. If A has 3 kids who all die, but leave 5 grandkids, the estate is divided into 5 equal shares. But if child B survived, estate would be divided into 1/3 (remaining 2/3 pass to descendants of deceased kids - 1/3 each).

iii) UPC – per capita at each generation

(1) § 2-106 – initial division made at level where one or more descendants are alive (as under modern per stirpes)

(a) But the shares of deceased persons on that level are treated as one pot and dropped down and divided equally among the representatives on the next generational level

(B) Note that descendants at the same level take the same!

c) “Laughing heir” statutes - UPC (§2-103) cuts off heirs at the grandparent/descendants of grandparent level. TX continues looking for an heir.

d) Adopted children

i) UPC § 2-114 - Adopted individual is child of adopting parent(s) and not natural parents – applies to rules of intestate succession only

(1) Inheritance from Biological Parents. Completely precluded under § 2-114. Cannot inherit from, and likewise, neither can they.

(2) Limitation on Adopted Children for Will Construction. To be considered a “child” of the adopting parents, the child must have resided with the adopting parents while a minor. UPC § 2-705©. This precludes adoption of adults for purposes of will construction.

ii) TPC § 40 - Can inherit from adopted parents AND can inherit from natural parents, though Tex. Fam. Code § 161.206 can trump – court can terminate the legal relationship of parent

(1) Adoption of Adults. Adopted children, regardless of the age when they’re adopted, are considered natural children for every purpose

(a) So, absent contrary intent by T, allows adult adoption for the purposes of creating an heir.

e) Half-bloods – as in half-sister, e.g.

i) UPC views half-bloods the same as a relative of full-blood

ii) TPC § 41(B) - If the estate passes to collateral kindred, and part are whole blood and part are half blood, each of those of half blood shall inherit only half so much as each of those of whole blood; but if all be of the half blood, they shall have whole portions

(1) Based on an individual level – not cumulatively

(a) So each half-blood must have half as much as each whole blood.

(2) Half-blood/whole-blood only comes into play with collateral kin!

(a) So if Mom has three kids from 2 marriages, there is no distinction – they’re all her kid

f) Posthumous Children. General presumption: A child born to decedent’s widow less than 280 days after the death of decedent is the child of decedent. The Uniform Parentage Act extends the presumption to a gestation period to 300 days.

i) Presumption Only. Note that the 280/300 day period is only a presumption. It can be rebutted. Similarly, if the period is greater than 280/300 days, then the burden shifts to the child to prove parentage - they are not totally foreclosed.

ii) TX Rule. No right of inheritance accrues to anyone other than children or lineal descendants of the intestate unless in being and able to take as heirs. TPC § 41(a). “Able to take as heirs” means that they are born. Only lineal descendants may take in gestation. TX follows the 300 day gestation period

4) Simultaneous Death. Note: this applies both to wills and intestacy

a) Uniform Simultaneous Death Act [uSDA]

i) Majority Rule – if insufficient evidence that beneficiary survived, then treated as if predeceased T

(1) Between joint tenants A & B (same for Tenancy By Entirety and CP), one-half of the property is distributed as if A survived and the other half as if B survived

ii) Sufficient evidence means must eliminate possible scenarios where did not predecease

iii) The result is that where there is clear evidence of survival of the heir, the property passes to the heir even if that person survived only by seconds. There is still a transfer to the heir’s estate, which was probably not an intended consequence.

B) UPC § 2-104: 120-Hour Rule

i) An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent – unless can prove otherwise by clear & convincing evidence

(1) EXCEPT if going to escheat to state under § 2-105

c) TPC § 47: 120-Hour Rule

i) If time can’t be determined, presumption is failure to meet 120-hours

ii) Will may change survival requirements

iii) CP [and JT/TBE as under USDA]

(1) When H and W die leaving CP, and neither survive the other by 120 hours, ½ should be distributed as if H had survived W; and the other ½ as if W had survived the H.

iv) TX Rule for Wills. TPC § 47 imports the 120 hour rule in most situations. In all cases, the provision may be altered by will.

(1) Survival of Heirs, Beneficiaries. The provisions apply to both heirs and beneficiaries (meaning they apply both to intestate and testamentary transfers) unless there is any discussion of survival (“if he survives me” is enough to preclude the 120 hour rule and allows survival by any period of time).

(2) Survival of Another. If a gift is based on survival of another individual (such as a life estate), the remainderman must survive by more than 120 hours. Distinguish this from above: discussion of survival does not preclude operation of the 120 hour rule.

(3) Community Property, Joint Property Treated Alike. If there is any form of joint ownership, even with a RoS, the property passes as explained for CP below.

(4) Explanation of CP Splitting. Section 47 has the effect of removing § 45 (decedent leaving spouse) from the picture. If 120 hours not met, we treat H’s half as though he survived, meaning that H retained his half of CP and later died without spouse. We likewise treat W’s half as though she survived and died without spouse. The effect is to partition the CP estate into two halves, with each spouse’s half descending per intestacy rules for people dying without a spouse.

(5) Life Insurance. If the beneficiary of the policy does not survive by 120 hours, it is as though they predeceased. Beware if the policy is jointly owned. Inception of title rule may make proceeds CP, giving an equitable claim (nonstatutory).

d) Antilapse and 120 Hours. Beware of the antilapse statutes in conjunction with the 120 hour rule. If a beneficiary does not satisfy 120 hour rule, antilapse statute may apply (not in TX).



PART III – Will a probate administration be required in the Brown estate?

1) The Probate Process

a) Personal Representatives. First step in the probate of an estate is the appointment of a personal representative. “Executor” if designated by will. “Administrator” if designated by court. Absent a will, typ. order of selection is: surviving spouse, children, parents, siblings, creditors

i) Duties of Administrator. Principal duties are: (1) Collect and inventory estate; (2) Manage the estate; (3) Clear title for successors; (4) Give notice and pay creditors; (5) Satisfy taxing authority; (6) Distribute remaining assets

ii) Bond Requirement. Administrator must give bond. Advantage of will designation is that the bond req. can be avoided, eliminating an expense. Bonds are paid for out of the estate.

B) Probate Procedure. Details vary by JD, but process serves 3 main functions: (1) provides evidence of transfer of title to new owners; (2) protects creditors by requiring pmt of debts; and (3) it distributes decedent’s property to those intended after satisfaction of debt. Technically, probate refers only to the opening of the estate administration, and actual work in the estate is administration. Many refer to the whole process as probate

i) Letters Testamentary. These authorize the personal representative to act on behalf of the state. Should be sought in JD where decedent was domiciled (known as primary or domiciliary JD). For probate of real property in other JDs - ancillary jurisdiction may require local counsel, whose fees are based on the ancillary estate.

ii) Collect Assets and File Inventory. An inventory must be filed within 90 days. A court can (and usually does) grant an extension to 9 months. Insure any high dollar items - executor is personally liable for all items during administration. Must also collect income and pay bills

iii) Income Taxes. Taxes must be paid for the decedent, and it is the job of the administrator to do so. The estate should be held open until a final letter is received from the IRS (executor is personally liable for all shortcomings). Could potentially result in the need to file two tax returns: if dies in 3/02, will need to file on 4/15/02 and 4/15/03 (for the three months of life in ’02.

iv) Closing Estate. Administration should be completed as quickly as possible. Common delays are satisfaction of debts, or payment of taxes (requires waiting til end of year). Property may have to be sold to satisfy debts. Court must grant discharge to the personal rep before estate may be closed.

c) Barring creditors

i) Nonclaim statutes

(1) Time limit from first notice for creditors to bring claim (often short)

(2) Due process issues - known or reasonably ascertainable creditors must receive ACTUAL notice to be barred by short-term non-claim statute

(3) UPC Approach. UPC § 3-801 retains essentially the same language as before. Notice to known creditors is optional. If notice is given, a 4 month SoL applies to known creditors. Failure to give that notice results in a generally applicable 1 year SoL, commencing on death. UPC § 3-803

(a) Unascertainable creditors are still eliminated after 4 months following a general published notice.

(4) TPC §§ 294, 295, 298

(a) TX has never had a nonclaim statute, so SoL starts to run after debt is due. SoL for tort is 2 years; 4 years for debt/contract

(i) Note that SoL is tolled from death of debtor to time when representative is appointed or 1 year after death (whichever is shorter). The reason for this is that you cannot sue an estate – you have to sue the representative.

(B) Notice Requirements. The statutes require minimal notice to creditors, separated by whether those creditors are secured or unsecured.

(i) Unsecured. Within 1 month, must publish in paper notice of receipt of letters testamentary. § 294(a). This does not start any SoL. It is just for notice. Section (d) permits mailed notice with the result an accelerated SoL of 4 months. Otherwise, the general SoL applies.

(ii) Secured. Within 2 months, representative must give notice to known secured creditors. There is no SoL other than the general SoL for secured creditors.

© What if the estate is closed before the end of statute of limitation?

(i) Creditor cannot sue the personal representative. However, he could sue the heirs and beneficiaries of the deceased.

ii) Secured Creditors – must present claims within 6 months of receipt of letters, or 4 months of actual notice – TPC § 306. Claims must elect status:

(1) Matured secured claim – to be paid out of general estate assets [now!]. This would be the last shot for creditor to go after the deceased for personal liability.

(2) Preferred debt and lien – claim limited to collateral, no claim for deficiency

(a) Under this option, the creditor has no claim against any other property

(B) Even if the underlying property has a value less than the outstanding balance, that is all the creditor is going to get.

© NOTE – this is the default rule if creditor fails to specify

(d) Early Payoff of Liens. Even if a secured creditor chooses the lien option, the personal representative may satisfy the lien early if it is in the best interest of the estate to do so. TPC § 306.

iii) Passing by Will of Encumbered Property. The question is whether a gift of encumbered property passes encumbered, or whether the encumbrance is satisfied out of the estate.

(1) Exoneration of liens

(a) UPC § 2-607 – devises pass subject to any mortgage interest existing at the date of death, w/o right of exoneration

(i) Regardless of a general directive in the will to pay debts. You need specific language in the will to satisfy the debt.

(B) TX – follows CL exoneration of liens doctrine

(i) Liens are paid out of residuary estate (and only out of the residuary estate - can’t pay lien from bequest to another person.)

1. If the residuary estate is insufficient to satisfy the lien, it passes encumbered.

2) Avoiding Probate - in many instances, it is possible to avoid probate of the estate. This is particularly true where the estate is small, or most of the items are nonprobate items. To successfully avoid probate, all property must be distributed by means other than will, such as gifts, contract, trust, etc. The only real problem is with titled items.

a) Informal family settlement – when estate is wound up informally without probating will

i) Note, however, TPC § 75 – will must be turned into county clerk (but doesn’t have to be probated) and one cannot suppress will

B) TPC § 137 – Small Estate Administration

i) D must die intestate and probate estate must be less that $50k (excluding homestead, exempt property, and obviously nonprobate assets!)

(1) This provision will transfer title to the homestead, but not to any other property requiring title transfer.

(a) Could use affidavit of heirship to establish title for other real property. As for untitled property, if you have it, you own it.

(2) Duties of a Personal Rep. Collect and inventory estate; manage property during administration; clear title in name of sucessors; notice to and pay creditors; satsify tax authorities; distribute estate. All of these can be done without probate.

(3) Feigning Intestacy. If you have a will, you may not take advantage of this provision. However, even if you have a will, Johanson suggested a formal family agreement not to probate the will, thus causing an intestacy. Everybody must agree, however, since TPC § 75 allows a person to sue for will suppression.

(4) Automobiles. The only problem with small estate admin is titled property other than the homestead. Can fill out an affidavit for the auto (III-22). All heirs must sign.

(5) Bank Accounts. Bank accts may pose a problem, but Johanson suggested that many small town banks would just sign over the account for community relations reasons. Show death certificate, and TPC § 138 affidavit (announcing small estate admin.).

(6) Taxes. Most small estates will not be subject to an estate tax. All that is left is a personal filing, which will likely be half completed by the spouse anyway.

c) Other TX Probate Avoidance Tactics

i) TPC § 89C – Probate of Will as Muniment of Title

(1) Even though the will named an executor, we do not ask the court to give the named executor authority to be personal representative of the estate. Instead the sole purpose of muniment of title is to put it in the record and allow the heirs to clear title.

(a) Serves same purpose as if decedent had, while alive, signed a form giving title to his heir.

(2) Only allowed if there are no other debts than the mortgage on the homestead.

(3) It might not work in JDs outside of TX - if you are trying to transfer securities held in another state, likely have to get letters testamentary.

(4) Note that it is not necessary to file an inventory if the will is admitted only as muniment of title.

ii) Statutory Heirship Proceeding

(1) § 48 – court proceeding to declare heirs – D must die intestate

(2) § 54 – Effect of judgment

(a) judgment shall declare heirs and their respective shares and interest in real/personal property

(3) No Liability for Dealing. A person dealing with a court designated heir will not be held liable, encouraging recognition of the procedure. TPC § 55.

(4) Drawbacks. There are still expenses, and other JDs may not recognize.

iii) Nonstatutory affidavit of heirship

(1) Work because title companies want them to work

(2) Typical requirements: (a) family history; (B) (preferably) two disinterested parties; © the longer on file, the better; and (d) filed in a public office. No clear req. since there is no formal procedure

(3) Used to fill large gaps

(a) The affidavit of heirship can fill several generations of faulty title, making a long-overlooked failure to obtain proper title much easier.

(4) If the title company ends up being uncomfortable with this (they might want statutory backing), then go to statutory proceeding to declare heirship (§ 48)

iv) Getting D’s last paycheck

(1) § 160(B) allows SS to obtain last paycheck with an affidavit stating that SS is survivor of D

3) Supervising the representative’s actions

a) Requirements for court-supervised administration (e.g., To sell real property)

i) (1) Application (e.g., why are you selling? Why this property? How are you going to sell it?); (2) Set date for hearings; (3) Notice to interested parties; (4) Hearing; (5) Confirmation hearing to approve the sale (repeat steps 1-4)

ii) Very expensive, as ct-supervised requires numerous trips to the courthouse

B) TPC § 145 – Independent Administration. Most estate administrations in TX are handled through indep. admin under TPC § 145(B). Four requirements of indep. admin: (1) probate and recording of will; (2) return of inventory; (3) appraisement; and (4) list of claims of estate. This boils down to two requirements (1) probating will, and (2) returning an inventory

i) Can be created by D in will (provide that no action in probate court be required other than inventory and appointment of executor)

ii) Independent administration eliminates the hearings and petitions for routine transactions.

iii) Powers. Independent administrators are entrusted with power to do all the things that a court-supervised administrator can do, except for the need of getting court approval.

iv) Suits Against Indep. Exec. If the indep. exec denies a claim he thinks invalid, that creditor may sue the independent executor. TPC § 147.

(1) Note that when creditors sue, the action does not take place in the probate court but the general rules govern (go to general court)

v) Remedies against the allegedly wrongdoing independent executor

(1) TPC § 152 – action to close the independent administration – focuses on duration of administration

(2) TPC § 149 – requires giving of bond by the independent administrator if it can be shown that the admin. is mismanaging property, has betrayed or is about to betray trust

(3) TPC § 149A – right to an accounting 15 mos. after executor appointed (accounting only required on demand)

(4) TPC § 149B – requires an accounting and final distribution 2 yrs. after executor has been appointed. Different from § 152 in that it shifts burden to executor to explain why the estate is still open.

(5) TPC § 149C – removal of the independent executor – allegations must be grounded in fact; plus executor’s and opposing party’s legal fees come out of estate if exec defends suit in good faith, regardless of outcome.

(a) May be removed for: (1) failure to file inventory and list of claims within 90 days; (2) misapplication/embezzlement of estate property; (3) failure to make required accounting within 60 days; (4) proven gross misconduct or mismanagement in duty; (5) incompetent, sentenced to prison, or legally incapacitated

c) UPC Provisions. The UPC permits unsupervised administration if either it is designated by will or all heirs agree. Representative may have broad powers of trustee concerning estate property. UPC § 3-715. Court supervision may be demanded at any time, and the court must comply. UPC § 3-501. 18 states have adopted unsupervised administration.


Part IV. Will Preparation

1) Execution of attested wills. Johanson favors a relaxation of narrow construction of will statutes in order to more accurately reflect testator’s intent

a) Three (or Four) Functions of Will Formalities. From the law review article in the text:

i) Ritual Function. Formalities require some sort of ritual be performed (like two simultaneous witnesses). If the testator performed the ritual, there is little question what he intended

ii) Evidentiary Function. Formalities channel the nature of evidence into statutorily defined categories. The court can become experts on identifying what is and is not a will.

iii) Protective Function. A throwback from the past. Protection against undue influence for deathbed will creation. Does not really apply anymore b/c most wills drafted early.

iv) Channeling Function. Makes all wills similar in language and style. Court does not have to struggle to derive the testator’s intent, but may carry it out with ease.

B) UPC § 2-502

i) In writing

ii) Signed by T or in T’s name by some other individual in T’s conscious presence and by T’s direction

(1) Doesn’t matter where signed

(2) Any mark intended as a signature is ok

iii) Signed by 2 Ws, each of whom signed within a reasonable time after witnessed either: (a) T’s signing of will or (B) T’s acknowledgment of that signature or © acknowledgment of the will

(1) But note that T’s signature must be on will prior to Ws’ signing. IS THIS RIGHT?? ****

(2) Some UPC cts allow T to sign and die before Ws sign because it says “within a reasonable time”

(3) Note that UPC does away with presence requirement

c) TPC § 59

i) In writing

ii) Signed by T or by another person for him by his direction and in his presence

(1) Doesn’t matter where signed

(2) Any mark intended as a signature is ok

iii) Two witnesses, each of whom sign in T’s presence

(1) TX uses conscious presence test - through sight, hearing, or general consciousness of events, T comprehends that the W is in the act of signing. Over telephone is not presence!

(a) Note another type (used in IL) – line of sight test – testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look

(2) Order of signatures. Testator may sign in advance. Order of signature is unimportant (witness may sign first) if the signing process was part of one continuous transaction

(3) TPC §84 – only 1 W required to testify to prove will

(a) If can’t get either W if will isn’t contested, can get someone to testify in ct to either Ws’ or T’s signature.

d) Proving Due Execution of a Will. Before a will can be admitted to probate, it must be proved in the probate court. There are two main ways to go about this: attestation clauses and self-proving affidavits

i) Attestation clause – states what happened when will was executed; signed by Ws; not required by any state; is prima facie evidence that things happened as said in clause

(1) Requirements of Attested Will. Must first prove the attestation clause in court. TPC § 84(B). This may be done by (1) testimony/affidavit of one of the witnesses; (2) testimony/affidavit of two (or one) witnesses able to identify the signature of either the testator or a witness.

(2) Effect. An appropriate attestation clause makes out a prima facie case that a will was executed properly. A prima facie case means that a jury can choose to believe the statements in the clause over the witness. Helps for witnesses with bad memory, hostility toward testator, or if they are simply missing.

ii) Self-proving affidavit – Ws sign and thus substitutes for Ws testifying in ct later

(1) UPC – UPC § 2-504(a) permits either 2-step process (separate affidavit) or 1-step process (combined attestation clause and self-proving affidavit)  function equivalent of a testimony or deposition; total substitute for sworn testimony live in court

(2) TX - we do the 2-step – you need an affidavit separate from the attestation clause! Cannot combine the two.

(a) TX requirements: (1) Self-proving affidavits must be signed by testator and witnesses in presence of notary. (2) Affidavits must be attached to the will (must be a separate document).

iii) What if Ws only sign affidavit, but not will?

(1) TPC § 59(B) - allows the signatures on the affidavit to substitute the signatures for the will

(a) However, the will is no longer self-proving (you can only use the signature once, now need to resort to §84 – and find one of the attesting witnesses to prove the will in court)

e) Permitting Deviations from the Statutes. Academic trend is away from the formal rules required by the Wills Act, thus allowing improperly executed wills to be probated. Johanson is a big fan, but says it is not really happening except in law reviews.

i) UPC’s substantial compliance doctrine

(1) UPC § 2-503 does this statute institute substantial compliance or dispensing power??

(a) Although not executed in compliance with § 2-502, writing considered the will if there is clear and convincing evidence that the decedent intended the document to be his will, revocation, addition or alteration, or revival of formerly revoked will/portion

(B) Requires good faith compliance by T with only minor defects

© A “near-miss” standard often read in by courts

(2) Cf. with “dispensing power” doctrine

(a) Basically, if CCE the instrument is intended to be the testator’s last will, it is OK to ignore the formalities set forth in the statute.

(B) Requires no good faith effort; effectively usurps the legislature’s role

2) Recommended Method of Will Execution. This procedure ensures that a will executed as instructed is valid in all 50 states. This permits the testator to move without needing to make a new will.

a) Fasten pages securely, and state in the will how many pages there are in the will.

B) Make sure testator has read the will and understands contents.

c) Lawyer, testator, two disinterested witnesses, and a notary public go into a secured room. Nobody leaves until the ceremony is finished.

d) Lawyer asks testator 3 questions. Testator answers loud enough so that the other witnesses/notary hear the answer: (1) Is this your will? (publication) (2) Have you read it and do you understand it? (3) Does it dispose of your property in accordance with your wishes?

e) Lawyer asks whether testator wishes two witnesses to witness the signing. Testator should answer yes loud enough for witnesses to hear.

f) Witnesses should all be able to see testator sign. Signature should be in margin of each page, as well as the end of the will.

g) One witness reads aloud the attestation clause.

h) Then each witness signs and writes address next to signature.

i) Have witnesses, testator, and notary sign a self-proving affidavit at the end of the will, in case the witnesses die or can’t remember when the will is probated. Will is valid without, but affidavits make the probate easier (also may remove appearance of impropriety of guaranteeing return business to the atty).

3) Special precautions when will contest a possibility

a) Challenger of will must have standing – look for standing in every will challenge problem

i) Only a party whose economic interests are adversely affected may contest a will.

(1) Heirs OR beneficiaries named in an earlier will replaced by the current one whose gifts were cut down or eliminated in the current will.

B) Types of challenges

i) Mental capacity

(1) The testator must have the ability to know: (1) the nature and extent of T’s property; (2) the persons who are the natural objects of T’s bounty; (3) the disposition T is making; and (4) how these elements relate so as to form an orderly plan for the disposition of T’s property

(i) NOTE: Level of competency required: marriage < will < gift/K. Being declared incompetent does not prevent you from executing a will.

ii) Insane delusion

(1) Where the testator adheres against all evidence and reason to the contrary

(a) Majority view: a delusion is insane even if there is some factual basis for it if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator

(B) Periods of Lucidity. It is possible to sign a will during a lucid period and have it be valid. Jury will decide whether the testator is lucid

iii) Undue influence

(1) Mental duress overpowering the mind of the testator. Must show:

(a) the existence of influence

(B) the effect of the influence

© the product of the influence (but-for test – the will/gift would not have been made but-for the influence)

(i) NOTE – if the testator has a choice, then there is no undue influence! Regardless of threats, cajoling, begging, etc.

(2) Result of Finding Undue Influence. The result of UI is that those portions of the will resulting from the influence are stricken. The remainder stands if it can be done without ruining the testamentary scheme.

iv) Testamentary Libel

(1) If client gives a reason in the will for disinheriting a potential heir, the heir can sue for testamentary libel and receive damages. Thus, any such statements must be absolutely correct!

(a) The recitation of the fact why testator excludes certain would-be heirs might not be a good idea:

(i) invitation for challenge if there is factual mistake (mental capacity, who wrote the paragraph)

(ii) testamentary libel since a will is a public record

v) Fraud/forgery

c) Easy to ID when will contest might occur

i) “Unnatural will” that disinherits child or spouse

ii) Second marriage, children by the first marriage

iii) Client with no close relations


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Class 2.


I) Free Speech in Colonial America


-role of the jury and extent to which truth can be a defense in a free speech case

-considered a major victory because:

a) jury had right to decide legal and factual matters

∙ before, Eng common law—judge decides whether the publication is libelous

∙ Zenger shifts power to jury

B) truth becomes a defense in libel case

∙ b/f in Eng Com Law—not available

c) some see broader importance—established freedom of press and encouraged rebellious Americans

-Finkelman—not important legal precedent but important socially/politically

∙ presented alternative legal approach; recognized Fourth Estate as check on gov’t; although did not create legal precedent nor did it change common law, there were many fewer libelous cases after Zenger; first example of jury nullification

-Should it matter what the actual motives of Zenger and his supporters were as long as valid points were made?



-Framers meant 1st Amend to wipe out the common law offense of sedition

∙ never supported by historical evidence


Levy—fully intended to support Chafee in Legacy of Suppression

∙ 1st Amend did nothing more than incorporate EngComLaw as defined by Blackstone (which prohibits prior restraints on publication)

∙ in his revision, acknowledged that 1st Amend not only prevented prior restraint but also protected some publications from subsequent punish.

∙ revision—whatever the actual law was in US, the press was vigorous and rarely prosecuted

∙ despite revisions—adhered to central view that 1st Amend did not abolish EngComLaw of seditious libel (it became incorporated into Amer law)

∙ as long as there is such a thing as a crime of seditious libel, 1st Amend cannot be understood as protecting free speech


Rabban—does not think that having the law of seditious libel stands in the way of a freedom of expression (the two can coexist)

∙ seditious libel, b/c of accordion-like nature, does not prohibit meaningful protection of speech (still can have more freedom of expression than found under Eng Com Law

∙ a true system of freedom of expression would not allow for convictions for seditious libel (this is where he agrees with Levy)


Blackstone’s Commentaries

-libel is seeking to breach the public peace—justifies the position that truth should

not be a defense—the end result is what is culpable (some would say that if the statement was true, it would lead to an even more horrendous result)

-civil vs. criminal libel—truth as a defense in civil, not criminal

∙ w/civil libel, if what you print is true, then the subject hasn’t been injured

∙ w/criminal, there has already been an injury—emphasis on the

“pernicious tendency” of speech on peace/order as worthy of punishment


Tucker’s Appendix

-shows how Amer law departs from Brit com law—language very similar to


-in disagreeing with Blackstone, depends on differences in idea of pop sov

-states have incorporated Eng com law but on different levels—no state has

fully incorporated it

-after passage of 1st Amend state courts remain open to any person (public official or not) who is defamed as an individual

-if there are factual deviations from the truth, there is a basis for recovery in state (but not federal) court




II) The Origin and Meanings of the First Amendment

-different view of free speech in US stems from different view of sovereignty (which resides in the people, not legislature or king)

-there is still the idea in the US that one could go too far in criticizing the gov’t but this still coexisted with the idea that some criticism of gov’t = healthy


Federalist view of 1st Amend

-initially opposed the amendment—rights were already protected because the government only had the power that was conferred upon it by Const

-if you add amend—might call into question that right was not protected in 1st place

-claimed anti-federalists were trying to chip away at the Const by trying to get Bill of Rights passed


Federalist and Republican Parties—Sedition Act

-emerged once Const was ratified—Republicans made up of old Federalists

-both accepted new concept of sovereignty

-Feds believed that even in new Amer system, the government should retain substantial independence from popular influences in between elections

-Feds got Sedition Act passed—claimed that unfair criticism of gov’t was more dangerous in a democracy than in monarchy (people could be unduly influenced)

∙ in defending the act, they claimed that all the 1st Amend did was to incorporate Eng concept of free speech (re: prior restraints and subseq. punish.)

∙ law did allow truth as defense and required proof of malicious intent

-Republicans said that based on the transformation of the notion of sovereignty, Blackstone’s definition could not work because it did not give the people (who have the ultimate power) the freedom to criticize the government

-Levy claims that SA was first time Americans put forward new idea of free speech b/c 1st time Amer challenged Brit meaning of FS (Rabban disagrees)

-Did SA provide more protection for freedom of expression in ways that Eng Com Law had not?

∙ truth as defense; jury to determine law and facts (having jury decide is more consistent with popular sovereignty)

∙ not limited to previous restraints

-danger for Repub’s—speech critics of gov’t might in a politically-charged situation be accused of “malicious” or “scandalous” speech

∙ unpopular political opinions could be punished under SA as false facts

∙ allowing truth as a defense is not enough

∙ jury protection is not enough—might serve well to protect popular views

but not those that are unpopular

-SA expired on its own in 1801


Croswell case

-first meaningful defense of free speech in Hamilton’s argument to defend a

printer prosecuted for publishing attacks on Jefferson

-Hamilton lost, but his points were enacted into law by Council of Revision—NY

-truth as defense in libel case as long as the matter charged as libelous was published with good motives and for justifiable ends; jury decides law & facts

-two Zenger elements incorporated into law but “good motives and justifiable ends” = very open-ended and almost political

-different from SA where one only had to prove truth; here one had to prove truth and good motives

-Croswell rule adopted in 25 states and remained good law and the predominate approach to libel law in US until NY Times v Sullivan

-not a protective standard (according to Roper) b/c political criticism (that most today would consider legit) was considered either a false statement or made with bad motives


III) Libel Law in the Early Nineteenth Century



IV) Attempts to Suppress Antislavery Speech in the 1830’s


Curtis’ article

-generalizes about the relationship between people’s views of the agitation by the abolitionists and people’s views of free speech

∙ North—leading up to Civil War, strongly anti-abolitionist but these same people were just as committed to protecting free speech

∙ while South was also clearly anti-abolitionist, did not agree that the speech should be protected because fear of insurrection (Eng Com Law)

-Post Office usage controversy:

∙ abolitionists produced pamphlets that were mailed to Southern elites

∙ in response to Jackson wanting to prohibit circulation in Southern states,

abolitionists claimed proposed language of federal law did not apply to their situation because they were mailing them to Southern elites, not slaves (so how could there be a tendency to cause insurrection?)

∙also argued that the material was not incendiary at all

-South attempts to get North states to pass laws restricting abolitionist speech

∙ Southerners feared federal government—passing a law federally would acknowledge federal power over speech

∙ Calhoun’s proposed bill—fed gov had to respect law of free speech as defined by the relative states (fed role basically none in FS)

∙ Cal. invoked SA—although SA passed, consensus was that unconstitutional—this supports his view that fed gov should help enforce particular FS laws of states

-Treatment of Anti-slavery petitions presented to Congress

∙ 1st Amend also protects right of people to petition the gov’t for redress of grievances

∙ Boone claimed that Cong should not even accept the pet. b/c they are by their very nature libelous

-John Q Adams—based on 1st Amend, Cong must at least receive and respond to petitions

-Cong voted to table all petitions related to slavery


V) The Nineteenth-Century Tradition of Libertarian Radicalism



-two central traditions

1) legal—overwhelmingly hostile to FS claims of any kind

2) libertarian radicals—advocated protection of all kinds of FS (fringe of

American society)

∙ emphasized the importance of preserving the sov of every indiv.

∙ had overlapping commitments before and after Civ War to a set

of interconnecting social movements (abolitionism, anarchism, women’s rights, etc) b/c in all areas indiv autonomy was key

-people commonly thought to be the founders of protective tradition of FS in US

(i.e. Justice Holmes) obscured prior tradition of FS

∙ pretended hostile judicial tradition did not exist

∙ yet at same time that they advocated quite broad protection, they

narrowed conception of FS held by libertarian radicals

∙ viewed FS as freedom from political dissent against gov’t policy


Comstock Act (1873)

-led to the prosecution, conviction of leading libertarian radicals

-act itself did not define what “obscenity” was

-did not have views towards work of libertarian radicals as he did towards great works of literature (unless advertised for sexual explicitness)


Cupid’s Yokes

-free love pamphlet that the state should not have involvement in marriage

-linked free love to abolitionism and labor reform under an umbrella of

anarchist commitments to indiv autonomy and freedom from state control

-publisher (Heywood) also made direct attacks on Comstock

-when tried, court limited evidence to whether or not Heywood actually mailed his pamphlet

∙ instructed jury that work = “obscene” if has an immoral tendency

-court waited to see how Ex Parte Jackson would turn out in SC—SC held that it does not violate freedom of press when the post office excludes lottery ads in mail; PO does not violate it when it excludes from mail “matters deemed injurious to public morals”

-Bennet—free thinker also prosecuted; disagreed with pamphlet but distributed it anyway to protest Comstock Act

∙ he be/l that Comstock had incorporated blasphemy w/in his

definition of obscenity and would continue to use his act as a pretext for suppressing radical free thinkers

∙ argued that the prosecution had to identify the obscene passages (which it did not) and when the material claimed to be obscene is used as part of a social polemic, the author’s motives should be determinative (and not the reader’s response)

∙ in the jury trial, the judge outlined the test for obscenity as not the motive of the author but the effects of the words upon reader

∙ court used Eng law to define obscenity in US—“whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”

∙ origin of bad tendency test


Lucifer the Light Bearer

-Harman—“words are not deeds, and it is not the province of civil law to

take preventative measures against remote or possible consequences of words, no matter how violent of incendiary”

-court’s decision did not limit itself to advertising contraceptive devices as being obscene—court did not allow an exception for medical advice given by a physician for a patient


Free Speech League (1902)

-intended to protect FS of all citizens, no matter views

-in practice, not different from National Defense Assembly (mainly because most

of the people who got into trouble were libertarian radicals)

-Harman—claimed that repression of dissenting speech in the new Amer colonies following Span-Amer War had “opened the eyes of an immense number of people who were blind to the dangers of Comstockism”


IWW Free Speech Fights

-conducted downtown street protests—radical anti-capitalist, anti-gov’t language used; trying to organize workers; arrested for blocking traffic

-many members of general public (most of whom were hostile towards IWW) felt the group should have a right to speak as long as they did not incite violence or block traffic (much more protective view than taken on by judges)



VI) The Courts and Free Speech before World War I


Why no free speech litigation before WWI (according to scholars)?

-most scholars focus on federal, not state, law

-Pitlow v. NY (1925)—SC held 1st Amend applies to state action via 14th Amend

-Rabban points out that there were all kinds of cases in federal as well as state courts that relied on the bad tendency test to reject FS claims

-examples of bad tendency approach:

∙ Patterson—Holmes; upheld the contempt of court punishment of US

Senator who criticized repub judges in his newspaper for allowing votes to be swayed by political concerns; SC—that kind of criticism tends to obstruct the administration of justice (truth not a defense b/c if true would have even worse effect); all the 1st Amend was meant to do was abolish prior restraints (“the main purpose of such constitutional provisions is to prevent all such previous restraints upon publications”)

∙ Turner (1904)—US can deport anarchists b/c as long as gov’ts endure they cannot be denied the power of self-preservation; tendency of anarchist views to harm public welfare)

∙ Ex Parte Jackson—exclusion of lottery ads from mail; Cong allowed to exclude materials from mail that are a demoralizing influence

∙ Fox—Holmes said that encouraging a boycott of baths that do not allow nude bathing would also encourage nude bathing (which is against law)

-cases that deal with relationship be/t 1st and 14th Amend’s:

∙ Hall—14th Amend not only extends 1st Amend protection to state action,

it even allows Cong to pass laws protecting FS from abridgement by even

private citizens

∙ Cruikshank—rejected approach in Hall w/respect to Cong’s ability to reach private abridgement of speech; opened the issue of whether 14th Amend incorporated 1st and whether it applied to states; whether or not 14th Amend applied 1st to states was not resolved until Gitlow (1925)

-note that many state actions relied on state constitutional provisions that protected FS


Libel and Contempt

-produced many cases using bad tendency approach

-many case primarily in state court held that neither the 1st nor analogous provisions of state constitutions precluded the punishment of libel

-distinguished between FS on one hand and license and abuse on other

-many state court judges allowed truth as defense and rejected Eng Com Law

-some judges went further than allowing truth as defense and said that at least with respect to matters of public concern, there should be a qualified privilege for defendant in libel cases


Cases that Ignore 1st Amend issues

-Patterson—convicted of contempt because his criticism could affect cases still pending and influence the outcome

-truth does not matter b/c jury should not be influenced by any outside sources

-Holmes—main purpose of 1st Amend is not to prevent previous restraints but to allow subsequent punishments for speech deemed contrary to public welfare

-Harlan’s dissent—under two separate clauses of the 14th Amend (priv & immune and liberties clauses) the 1st Amend is incorporated and so applied to states

∙ FS is a natural attribute of citizenship and is a liberty that cannot be deprived w/o due process (not a privilege, as asserted by majority)



VII) The Espionage Act of 1917


First SC cases that construed the Espionage Act (EA)

-upheld the constitutionality of the draft law in one case, but in three others SC wrote separate opinions re: the relationship between speech and crime

∙ gov claimed that anti-war speech had induced or was part of conspiracy to induce an eligible person not to draft

∙ lawyers for the defendants often claim that the indictment failed to show the connection between the antiwar speech of def. and inducement

∙ SC response—matter for jury and did not require gov to even have a theory (it was enough for them to assert a connection—there just had to be evidence “tending” to show guilt

∙ def. claim that the failure of gov to prove connection between speech and crime constitutes a 1st Amend violation—giving power to jury would allow for convictions of unpopular opinions

-many of the briefs in EA cases relied on pre-WWI scholars who had objected to bad tendency test and use of Blackstone

-gov claimed that objectionable parts of SA had not been incorporated into EA; EA prohibitions were much narrower than those of SA



-general secretary of socialist party (against WWI as capitalist war)

-convicted of encouraging people who had already been drafted via a circular to petition for the repeal of the Draft Law—did not expressly urge violation of any law but simply called for the repealing of draft law

-Holmes upheld conviction b/c circular had promoted interference w/ recruitment

∙ he inferred an intent to have some effect

∙ speech with a clear and present danger (likelihood of imminent,

significant harm) to cause a crime makes the connection between the speech and the cause of the crime much closer than the bad tendency approach (“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”)

∙ uses this clear and present danger approach to say that this speech not protected under 1st Amend

∙ did not matter that there was no proof that it had actually caused a single person to resist draft, but Holmes says this is irrelevant

∙ also noted that although this speech would be otherwise protected, the wartime circumstances were crucial—“character of every act depends upon the circumstances in which it is done”


Frohwerk and Debs

-Holmes did not use bad tendency in Frohwerk but seemed to invoke it (“a little

breath could cause a flame”)

-clearly uses bad tendency in Debs

-Rabban on Holmes:

∙ adopted looser construction of EA that had prevailed in lower courts

∙ not in the vanguard of protecting FS claims



VIII) World War I and the Creation of the Modern Civil Liberties Movement


Origins of ACLU and how it differed from Free Speech League

-emerged out of a pacifist organization that opposed the war

-break between Schroeder (FSL) and Baldwin (ACLU)—Schroeder provided Baldwin with info but accuses him of being more concerned with protecting pacifists than with protecting the principle of FS

-ACLU had narrower conception of FS

-same elite background that led new people to become involved in FS also led to narrowing of the issue (as opposed to libertarian radicals on fringe of society)

-notion of FS as right of individual autonomy was largely lost



-crux of argument—“true meaning of FS seems to be the discovery and the spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion.”

-FS must be balanced against other concerns such as order

-claims that 1st Amend prohibits the punishment of words for their injurious tendencies—at core of amend is rejection of bad faith approach

-although the 1st Amend abolished bad tendency, the SA revived it

∙ people learned through the mistake of the SA prosecutions that the bad tendency approach is inconsistent with 1st Amend

-after SA, Chafee asserts that there was no judicial tradition on which to rely

∙ with EA, judges did not have guidance from precedent and therefore

were able to impose standards of their own and revive bad tendency test

-Rabban’s thoughts:

∙ Chaffee ignores cases in 19th Cent that use bad tendency approach

∙ Chaffee claims that clear and present danger test in Schenck was so much

better (but if this is so, why wasn’t it used in Frohwerk and Debs?)



IX) Holmes and Brandeis in the 1920’s


-even though Holmes and Brandeis mostly dissented together and repeatedly referred to clear and present danger, Rabban thinks that Holmes and Brandeis had quite different theoretical approaches:

∙ Holmes—protection as a social Darwin issue—ideas should be free to

compete in open market; better ideas will prevail

∙ Brandeis—FS as an essential prerequisite to democratic citizenship


Holmes’ dissent in Abrams (“marketplace of ideas”)

-facts: publication of circular calling workers to strike in order to keep from aiding US involvement in Russian Revolution

-majority said cases like this had already been decided in Schenck

-Holmes thought Abrams should create a limit on Schenck doctrine

-rephrases clear and present danger as clear and imminent danger

∙ Rabban thinks this distinction is crucially important—Holmes trying to stress here that relationship be/t speech and the illegal act had to be close

-points out that not just legis can restrict FS—judiciary as well

-while Holmes once uses the word “tendency” here, he is not using the old test; he

is doing what Chaffee did

-the evil (or reason to restrict FS) must be substantive

-focuses more on statutory construction—speech must be the approximate motive of the specific act (tightening his construction of the EA)

-another important factual distinction—Holmes did not see Abrams as a significant threat (as opposed to a prominent social figure)

-Is there a difference between the revised emphasis on immediacy of expression of clear and present danger by Holmes in the Abrams dissent and the approach of Learned Hand in the Masses case which was also a speech protective decision immediately overturned?

∙ two of the most famous decisions protecting speech

∙ Hand focuses on language itself—Is the language itself inciting legal

activity? He believes in a more objective standard

∙ even as Holmes is trying to tighten the connection be/t speech and the illegal act, he emphasizes in Abrams that in order to be punished consistent with 1st Amend, the connection must be very close

∙ the conceptual approach is no longer bad tendency but clear and imminent danger

∙ Hand focuses not on the relationship but the actual language used



-relies explicitly on Chafee in ways Holmes never did

-believed that economic and political liberty are interconnected

-w/o being economically independent and self-sufficient, you cannot participate

meaningfully in political life

-free enterprise system develops individual character

-concurrence in Whitney:

∙ treats FS as a liberty protected by 14th Amend

∙ follows clear and present danger approach—court should not simply defer to legis that this danger exists

∙ emphasizes that the danger must be serious as well as imminent (as Holmes did not in A)—this is an additional requirement

∙ trespass is not a sufficiently serious evil to invoke c/p danger test

∙ danger must be both immediate and dangerous

∙ fear is not enough either—reasonable grounds to fear the evil needed

∙ combines Hand’s focus on content and Holmes’ focus on the relationship

(for Brandeis it is either/or)

∙ imminence—so imminent the danger that may befall before there is an opportunity for full discussion



X) The Judicial Transformation of the First Amendment



-prosecution of the leadership of Amer Communist Party under Smith Act

∙ conspired through speech to overthrow US gov’t

-majority—Holmes/Brandeis rationale now accepted as correct approach to FS

∙ appropriate test was the clear and present danger test in Schenck and not the reasonableness test of Whitney

-however, not H/B type of c/p danger—here they’re employing balancing test

∙ if seriousness of danger is greater, then it does not have to be imminent (whereas for H and B, both elements must be satisfied)

∙ basically, make probability and imminence requirements irrelevant

∙ the harm of overthrow is so great, that it should be punishable no matter how remote or unlikely it is that it will occur

-Frankfurter’s concurrence:

∙ urged the use of the reasonableness test and deference to legislature—FS cases are not an exception to the fact that members of court are not legislators and should not engage in policy-making

-Jackson’s concurrence:

∙ should not use clear and present danger test b/c too protective

-Douglas’ dissent:

∙ concedes the danger of communism as a political faction or party in this

country is a “bogeyman”

∙ majority claims that determination of c/p danger should be made by the judge—he be/l it should be made by jury

∙ Frankfurter (concurrence)—determination should be made by Cong


Brandenburg v. Ohio

-KKK case—gives another formulation of a test for c/p danger

-combines in one test the most protective aspects of Hand approach in Masses

with the revised protective interpretation of c/p danger by Holmes and Brandeis

∙ later decisions (following Whitney) have fashioned the principle that “the constitutional guarantees of FS and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action (Hand’s influence) and is likely to incite or produce such action (H/B influence—proximity be/t speech and action)

∙ note that the use of “likely” does not seem as strict as imminent

-they claim that this new rule is based on Dennis—but not using gravity of evil discounted by the probability of danger approach in Dennis; this is actually a stronger protection

-conviction for incitement under Brandenburg is only constitutional when: 1) imminent harm; 2) a likelihood of producing illegal action; 3) and an intent to cause imminent illegality (none of the earlier tests had contained an intent requirement nor had they clearly stated a requirement for a like. of. im. harm

-emphasizes that any statute failing to draw distinction mentioned in rule (be/t advocacy & incitement) intrudes on freedoms guaranteed in 1st & 14th Amend’s

-when gravity is high, Brandenberg is possibly more protective; where it is low, Dennis is (although this is a small subset of cases)

-Rabban finds test announced here frustrating b/c it is just one sentence in a PC opinion that is unconvincingly relying on Dennis and no elaboration of test



XI) Prior Restraints


NY Times v. US (Pentagon Papers)

-any case coming to the court concerning prior restraint carries with it a heavy burden against its constitutional validity

∙ gov failed to meet burden

-Stewart—president has sooo much power re: war and national security—free press is the only real check on this power

-Black’s concurrence—only free & unrestrained press can expose decept of gov

∙ word “security” too broad to abrogate right of FS

-there are certain very narrow, very limited circumstances in which prior restraints are legal and do not violate 1st Amend—as per Brennan’s concurrence:

∙ “Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support of the issuance of an interim restraining order.”

∙ should use strict scrutiny for prior restraints

-most of the justices acknowledge that there would be more of a tendency/probability that disclosure of papers would harm national security—but this is no basis, under these circumstances, to restrain the press

-White and Marshall—emphasized absence of statutory authority for the courts to impose such an injunction

-Berger and Harlan dissent—1st Amend does not absolutely prohibit prior restraints; they want more time to decide


Nebraska Press Assoc. v. Stuart

-SC reversed an injunction (prior restraint) against Neb newspaper saying that the paper couldn’t publish confession of brutal murder

∙ did not want to influence jury pool—competing claims of 6th Amend right to fair trial and 1st Amend freedom of press

-cites Dennis clear and present danger test—indicates that Brandenberg might not in fact be a powerful precedent

-test used—in order to get a restraint like this, there would have to be:

1) a clear threat to fairness

2) measures short of an order restraining all publication would not have insured the defendant a fair trial (no alternatives available)

3) only if prior restraint would be a workable and effective method of securing a fair trial

-gov failed 2nd part of test


Seattle Times Co.

-SC rejected 1st Amend challenge to a protective of a judge prohibiting the disclosure of info gained via pre-trial discovery and civil litigation

∙ b/c discovery is not a public component of a civil trial




XII) Tort Law and the First Amendment


Beauharnais v. Illinois

-statute that made it unlawful to publish material that “exposes citizens to contempt, derision or which is productive of breach of peace or riots”

-Beauharnais convicted of distributing flyer containing racist language of a black invasion in terms of buying up property

∙ judge in lower court failed to tell jury it should apply c/p danger test

-SC upheld conviction b/c 1st Amend does not protect libel (not protected speech)

∙ any benefit derived from areas such as libel is clearly outweighed by social interests

∙ therefore no need to apply c/p test

-same principles that apply to individual libel should apply to group

-reasonable to punish group libel given history of racial violence in US

-opinion here based on assumption that defamation liability is unlimited by 1st

Amend (which was expressly rejected later in Sullivan)

-note also that opinion is not reconcilable with RAV b/c this was political speech

-Douglas’ dissent:

∙ at this time, he still believe in c/p danger approach

∙ watch out for penalizing racially-charged speech, even if libel; if so, you

punish emotionally charged speech that has role in democracy


NY Times v. Sullivan

-ad taken out in NY Times to call attention to racial situation in AL—people

placing ad were soliciting support for cause

-Sullivan (Mont. police commissioner) claimed that the ad was pointing a finger at him because it referred to ways in which department had misbehaved (although he did not attempt to prove that he had suffered any consequences)

-AL defined libel as libel per se—falsity/malice is presumed (as are gen damages)

-ad did contain some false statements of fact—but under Cantwell v. CT, SC held some falsity is okay

-it is the application of state law of libel to adjudicate this case that provides the state action that in turn makes the 1st Amend applicable

-Sullivan claimed that libel is unprotected by 1st Amend

∙ but, none of the precedent relied upon sustained use of libel laws to impose sanction on expression critical of official conduct of pub. officials

∙ court reinforces principle that debate on public issues should be uninhibited, robust, and wide open (and that it may very well include vehement, caustic, and sometimes sharp attacks on pub officials)

-court mentions SA (which in its view was unconstitutional)

∙ court notes that what a state may not constitutionally bring about by means of a criminal statute is also beyond the reach of its civil law of libel

∙ situation here is similar to SA—alleged libel here is against a public official and criticism of public officials is structurally similar to criticism against gov’t itself

∙ allowing such censorship will lead to self-censorship, which undermines democracy—burden would be placed on defendants

-only protecting true statements would dampen the vigor and limit the variety of public debate—this is inconsistent with 1st and 14th Amends

-declares crime of seditious libel to be unconstitutional (either against gov or its officials)

-consistent with Calvin’s and Levy’s assertions that seditious libel as a crime strikes at the very heart of democracy

-court doesn’t rely on clear & present danger—instead, relied on above principles

-does not preclude the ability of public officials to sue for libel

∙ to recover, they must prove the statement false and that it was made with actual malice (knowledge that it was false or with reckless disregard as to whether it was false or not)

-court not only announced a new constitutional standard here but also decided case without remanding—wanted to make it clear that no actual malice here

-four requirements of test:

1) must be a public official or running for public office

2) must prove his or her case w/clear and convincing evidence

3) must prove falsity of statement

4) must prove actual malice


Gertz v. Welch

-distinguishes be/t public figures & private individuals—thereby limiting Sullivan

-mentions Rosenbloom—had applied Sullivan to any speech about a matter of public interest w/o regard to whether the person defamed was pub or priv figure who happened to get involved in public

∙ key was whether subject matter was of public concern

∙ only a plurality opinion that court decided not to follow here

-competing interests here—1st Amend v state interest to compensate those injured by defamation—state interests in protecting priv indiv greater

-1st Amend still applies to limit law of libel even when priv indiv are involved

∙ but, when they are involved, balance is different and therefore the 1st Amend intrudes less into law of libel than in Sullivan

-“We hold so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to the private individual.”

-to get beyond compensatory damages (punitive) Sullivan test must be met

-court tries to limit defamation of public figure—“absent clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.”

-White’s dissent: court should not place burden of falsehood on victim (publisher is the culpable party and is often more able to meet burden)

- rule: recovery of actual damages as long as plaintiff can prove fault; punitive damages only if actual malice proved


Dun & Bradstreet v. Greenmoss Builders

-lower court had held that Gertz not applicable to non-media defamation

-SC focused on nature of speech, not nature of defendant

-holding: permitting the recovery of presumed and punitive damages in defamation cases without a showing of actual malice does not violate 1st Amend when statements do not involve matters of public concern

-White’s concurrence:

∙ Sullivan provides to much protection for people who libel pub fig

(Sullivan escalates burden of proof to an impossible level)

∙ but, he doesn’t want to go back to no protection at all

∙ proposes 1st Amend to be applied to limit the amount of damages

recoverable but not enough that it would threaten freedom of press


Hustler v. Falwell

-Flynt claimed Sullivan standard of actual malice should apply not only to libel but also intentional infliction of emotional distress

-Falwell claimed he should recover b/c ad was “outrageous”

-SC held that Sullivan standard would apply to recover for intentional infliction of emotional distress—parody is an important part of Amer culture—allowing decision to hinge on “outrageous” = too subjective

-any other result would have meant that plaintiffs could circumvent Sullivan by suing for intentional infliction of emotional distress




XIII) Fighting Words and Offensive Speech


Chaplinksy v. NH (1942)

-fighting words seen on same level as obscenity and libel (pre-Sullivan)

-“are of no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”

-“fighting words”—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace

- lower court opinion (upheld)—prohibit the face to face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker

∙ this is now included in the definition of “fighting words”

-two situations where speech constitutes fighting words:

1) where it is likely to cause a violent response against the speaker

2) where it is an insult likely to inflict immediate emotional harm

-although the SC has never overturned Chaplinsky, it has also never upheld a fighting words conviction; it has done so by using three techniques:

1) narrowing the scope of the fighting words doctrine by ruling that it applies only to speech directed at another person that is likely to produce a violent response (Cohen)

2) found laws prohibiting fighting words to be overbroad or vague

3) some laws to be impermissible content-based restrictions


Cohen v. CA

-“fuck the draft” jacket

-no one could have construed these words as a direct personal assault

-court acknowledged that sometimes the state can restrict speech to protect unwilling or unsuspecting viewers

∙ does not apply here—no substantial privacy issues violated (i.e. he did not violate the privacy of the home)

-recognizes that speech has an emotive as well as intellectual power (and 1st Amend should be interpreted to protect both)

-gov may not prohibit or punish speech simply b/c others might find it offens.


American Booksellers v. Hudnut

-McKinnon and Dwarkin had modeled anti-pornography civil rights ordinance because they viewed porn as threatening, etc to women

∙ pointed to study showing connect. be/t porn & abuse of women by men

-court accepts proposition that porn can cause harm as basis for ordinance but also sees a violation of 1st Amend

∙ regulation of speech b/c of content or viewpoint impermissible

∙ court does not like the idea of gov’t determining what speech is harmful

in order to regulate it


RAV v. City of St Paul

-teens arrested for burning cross in yard of black family

∙ cross burning considered symbolic speech

-SC accepts limitation by lower court of ordinance to the prohibition of “fighting

words”—revival of Chaplinsky where be/f people had considered it abandoned

-SC does not uphold ordinance b/c it allows for content-based and viewpoint-based discrimination (but because the ordinance only refers to fighting words it is not overbroad)

-Rabban thinks that Scalia’s majority argument is:

1) yes, there are various categories of free speech not protected

2) even with these otherwise unprotected categories, the 1st Amend

applies/protects speech in these categories when the government makes distinctions in these categories based on the content of the speech (so while the government can regulate one of these categories, it cannot prohibit/regulate only that obscenity (or whatever) that is critical of the government while allowing other types of obscenity)—gov cannot make content-based distinctions within these categories

3) only time a content-based distinction is allowed is when the basis is the same reason for the exclusion of that category from 1st Amend in first place—i.e. cannot exclude obscenity b/c of political content (the reason it falls outside of 1st Amend protection is b/c of sexual content)

-problem with this ordinance—fighting words distinguished/prohibited not b/c of how threatening they are but b/c of political content


∙ agreed that ordinance should be struck down but only b/c overbroad

∙ wording goes beyond fighting words with use of “resentment”

∙ selectivity w/in fighting words category okay because fighting words

more threatening when attacking someone based on race, creed, gender

∙ emphasizes that had the ordinance not been overbroad, it would have been upheld—there is still plenty of room for ideological disagreement, just don’t use fighting words


Wisconsin v. Mitchell

-1st Amend challenge to state law that increases sentence of max penalty of crime

if found that victim was chosen b/c of race

∙ defendant claims statute punishes him for offensive beliefs

-SC overturns lower court’s finding for defendant

∙ distinguishes from RAV b/c this deals with conduct and not speech (this crime doesn’t consist of speech)—speech came in only after crime proven

-such penalty enhancements are okay b/c directed at conduct, not speech

∙ bias-motivated crimes are more likely to cause retaliations, inflict distinct emotional harms on their victims, and incite community unrest



XIV) Political Advocacy and “Symbolic” Dissent


Tinker v. Des Moines School District

-school sent students wearing black armbands home

-no one challenged that this was symbolic speech and therefore covered by 1st Amend, but district court ruled that in a school, you cannot have unfettered speech—some type of disciplinary system needed

-SC reversed—wearing arm bands didn’t create inherent disturbance (more proof needed in order to ban the attire)

-“undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression; any departure from absolute regimentation may cause trouble”

-majority also points out that students had been wearing other political symbols before (i.e. Nazi crosses)—armbands were being singled out

∙ singling out is not important here—all symbolic speech gets protection

-“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.”

∙ many courts have relied on this statement re: context to hold same thing when dealing with public parks, etc

-Black’s dissent: admits there was no disruption, but the armbands did distract students from their work & diverted thoughts to topic of Viet War

∙ majority would possible reply that this type of diversion is not enough to

warrant suppression of speech

-Harlan’s dissent: if the purpose of the classroom is to educate, and if the purpose of the restriction on FS is to promote the purpose of the classroom, then regulation should be legit


US v. O’Brien

-burning of draft card—SC does not deny that this is a form of symb speech

-question here is one of conduct versus speech (problem here is that burning draft card falls into both categories)

-holding: when speech and non-speech elements are combined in the same course of conduct, a sufficiently important government interest in regulating the non-speech element can justify incidental limitation on 1st Amend freedoms

-test for whether regulation is warranted:

1) if it is w/in constitutional power of government

∙ here, they rely on War Power

2) it furthers an important or substantial government interest

∙ here, it is tracking those who are registered in draft

3) governmental interest must be unrelated to suppression of free express.

4) if the incidental restriction on 1st Amend freedoms is no greater than is essential in furtherance of government interest

-note that test is one very similar to intermediate scrutiny

-even though the clear purpose of amendment to act was to stop draft card burning

as a form of political protest, court finds this motive irrelevant

∙ “it is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”

-Harlan’s concurrence: even if the above are met, there might still be circumstances where the incidental restrictions on expression would be too great


Texas v. Johnson

-government interests claimed to justify conviction of flag burner—prevent breach of peace and preserve flag as symbol of national pride

-state fails O’Brien test here because the governmental interest is related to the suppression of speech—purpose of punishing flag burners was to promote ideological government interest

-cites Chaplinksy to point out that no reasonable onlooker would have seen this as a threat or actual breach of peace

-without satisfying the O’Brien test, state must then pass strict scrutiny test

-dissent emphasizes uniqueness of flag as symbol of our country—cannot just treat it like any other symbol

∙ majority says that there is nothing in the Constitution that creates a

special category for flag alone

-Rabban thinks this case lacks broad applicability of Brandenburg and Sullivan



XV) Freedom not to Speak


West VA Board of Ed v. Barnette

-Jackson describes symbol as expressive shortcut from mind to mind

-message that state intends to be conveyed by requiring a salute to flag by students and teachers at public schools is an expression of national unity and a commitment to the government (Jehovahs witness)

-Jackson refers to clear and present danger test—power of compulsion here to salute flag is invoked without any allegation that not saluting would create a clear and present danger that would justify an effort to muffle expression

-we set up a government by consent of the governed and Bill of Rights denies those in power any legal opportunity to coerce the consent

-authority is to be controlled by public opinion, not vice versa

-trying to coerce uniformity of views is not only against 1st Amend but also counterproductive as a practical matter

∙ compulsory unification of opinion only achieves the unanimity of a graveyard—Rabban thinks this language is a bit of an overstatement

∙ Rabban does note, though, that since this opinion came out of WWII era, indicates great vindication/extension of 1st Amend principles

-very purpose of Bill of Rights was to place subjects beyond reach of majorities and officials

-Frankurter’s dissent:

∙ judges have to defer to legislators (whether he likes it or not)

∙ extremely hesitant to invoke Constitution to declare legis unconst.

∙ shies away from making clear and present danger a legal standard


Abood v. Detroit Bd of Ed

-attack on state legis that required every employee to pay union (even if not a member) same amount of money as dues

-plaintiffs claim that this is forced speech

-court says that compelling employees to financially support the collective bargaining rep has an impact on 1st Amend rights but this is outweighed by state interest in a system that distributes costs of labor peace

∙ note that this state interest argument does not apply to expenditures not germane to collective bargaining

-issue that arose here also appeared in other contexts:

∙ Keller—SC relied on Abood; here the compellence is justified by state’s interest in maintaining a good legal profession—may NOT fund activities that are ideological and fall outside of that area

-while the extremes of the spectrum are clear, line-drawing can be difficult


Board of Regents of Univ of WI v. Southworth

-students claimed that mandatory fees were going towards organizations to which

they had ideological objections

-SC okay’ed university mission being well served when the students have the means to engage in dynamic discussions of philosophical, religious, scientific, and social subjects in extracurricular campus life

-germane not as relevant in university context

-substantial limitation imposed by 1st Amend—expenditure of mandatory student fees must be viewpoint neutral (univ cannot prefer some over others)

-school cannot allow a referendum process to determine how funds should be spent—must protect unpopular views as well

-it is neutral, though, to say that organizations with more members get more money (this is a non-ideological factor)

-Souter’s concurrence: university is a distinctive institution with a distinct set of 1st Amend rules; sometimes universities will have perfectly legit reasons protected by academic freedom to make distinctions based on viewpoint



XVI) The Government as Employer


-basic issue—the extent to which the state (when it acts as an employer, not as sovereign) can restrict the free speech of employees (not citizens) in ways it cannot do generally

-Tinker touches on this issue—court recognized that 1st Amend has different meanings in different settings (i.e. a school)

-old law—when gov’t acts as employer, 1st Amend does not apply

∙ Holmes in McCulloch—police officer who wanted to engage in politics (petitioner had constitutional right to voice his political views but not a constitutional right to be a policeman; he took the employment on the terms offered; right-privilege distinction)

∙ in return for the privilege of public employment, citizen can be compelled to waive right of FS

-eventually replaced with doctrine of unconstitutional conditions

∙ gov’t cannot condition a benefit on the waiver of a constitutional right; what the gov’t cannot do directly, nor can it do indirectly



-IL SC used right-privilege distinction

-SC adopts here the unconstitutional conditions doctrine

-as a general matter, it is not always the case that the government employer must

treat the employee as a citizen in terms of speech limitation

-SC recommends that a balance be struck

-the state has interests as an employer in regulating the speech of its employees that differ from those significantly that it has with regards to regulating the speech of citizens

-some speech by employees may detract from the efficiency of public services the state performs through its employees

-Sullivan test relevant here b/c dealing with matters of public concern

-note, though, that there might be a situation requiring confidentiality might

outweigh the freedom of speech


Letter Carrier Case

-court applies Pickering balancing test to uphold an act that prohibits employees from taking part in political campaigns

∙ not limited to political activity in the workplace

-if public employees are allowed to participate in political activity, their energy will be directed toward that and not work—also possibility of percep of corrupt.


Mt. Healthy City School District

-establishes basic 1st Amend rule in mixed-motive cases

-old rule was that if public employer relied on at least one unconstitutional condition to fire employee, then termination = wrong

-while SC agreed that teacher’s phone call to radio station was protected, it reversed b/c question to ask should be Would the employer have made the same decision anyway had it not relied on the speech?

-test shifted burden from employee to show his speech/conduct was protected and used by employer to fire him to the employer that it could show by a preponderance of the evidence that they would have made the same decision

-particularly troubling here is the equation by SC of substantial factor with motivating factor (too great a possibility that employer could get away w/it)



-speech by a public employee about a matter of public concern is protected no matter if this speech was expressed in public or private

∙ Pickering and other cases arose from public expression, but the rule to be derived from those cases is not contingent on that fact

-SC—teacher who goes to the principal w/ complaint in private shouldn’t be fired while a teacher who goes public w/ same complaint would be able to keep job



-DA fired assistant DA b/c she refused to take a transfer to another section and b/c she sent around a questionnaire that created an insurrection in office

-Pickering test used in DC—assistant DA rights trumps gov concern

-SC did not even get to balancing test b/c said topic of questionnaire was of such little public concern

∙ there is a difference be/t an employee speaking out about matters of public concern & matters of personal interest (no 1st Amend prot then)

-dissent: be/l questionnaire was a matter of public concern

∙ majority says that the efficiency of the office may be a public concern but not when raised by an employee as ammunition against employer (not a public issue but an employee’s grievance)

-court distinguishes from Givhan—racial discrimination in that case = inherently a matter of public concern

∙ also, issue there had to do with the forum (which doesn’t have const. sig)

-manner, time, place, and context help distinguish whether something is of private or public concern

-while dissent disagrees with majority, acknowledges (as they do) that by construing 1st Amend rights for employee’s speech too broadly, every grievance by public employee would be turned into 1st Amend case


Rust v. Sullivan

-MD’s could not discuss abortion in Title X program

-dissent invokes unconstitutional conditions doctrine in support of doctors’ ultimately losing argument that these regulations violate 1st Amend

∙ majority’s response—in the traditional rights/privileges distinction which the unconstitutional cond. doctrine overturned, the government could force citizens to wave entirely the citizen’s right to FS as a condition to obtaining gov employment; the Title X regulations are not forcing a doctor to give up 1st Amend rights to talk about abortion (can still do it through working in another clinic, etc); here you must do the job the gov hired you to do (which is not abortion counseling)

-government as the employer can legitimately limit the speech of employees in furtherance of the purpose of employment (majority sees this here)

-dissent says this is viewpoint discrimination—allow one side and not the other

∙ claims the majority is misconstruing the meaning of the program (by defining it as pre-conception) to justify view point discrimination

-majority limits this opinion—some government-funded activities by their very nature require free expression (i.e. public parks)



XVII) The Government’s Management of Public Property



-note Rhenquist’s dissent—quotes from Pickering—the state, no less than a private party, has power to preserve the property under its control for the use to which it is lawfully dedicated


Davis v. Commonwealth of Massachusetts

-Holmes—for legislature to absolutely or conditionally forbid speaking in a highway or public park is no more an infringement on the rights of a member of the public than for the owner of a private house…

-legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses


Hague v. Committee for Industrial Organization

-Jersey NLRA case—city had local ordinances to prevent unions from organizing workers on public property

-SC overturns Davis—streets and parks have immemorially been held in trust for the use of the public—part of privileges, rights, liberties of citizens

∙ not an absolute right, but relative—must be exercised in subordination to the general comfort, convenience, and good consonance with peace and good order (but cannot be, in guise of regulation, abridged or denied)

-Where’s the legal reasoning here (SC already rejected this argument in Davis)?


Perry Educational Association

-school unions and mailbox access

-three categories of public property:

1) quintessential/traditional public forums

∙ places which by long tradition or by government fiat have been devoted to assembly and debate

∙ right of states to limit expressive activity = sharply circumscribed

∙ for the state to enforce a content-based exclusion, it must show that it is a regulation necessary to serve a compelling state interest and that it is narrowly drawn to meet that end (strict scrutiny)

∙ state may also enforce regulations of time, place, manner of expression in a way that is content-neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communication

2) state-created public forum

∙ state not allowed to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place

∙ same standards as traditional public forum but may be limited to a specific purpose such as use by certain groups or discussion of certain subjects

3) rest of public property

∙ in addition to time, manner, and place regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view

-property here falls into 3rd category—this is not viewpoint discrimination; unions are treated differently because of their status

-however, the union that is allowed access can only use it for purposes germane to why they have access in first place (i.e. bargaining on behalf of teachers)



XVIII) Access to Mass Media


Red Lion

-challenge to FCC fairness doctrine—right to reply to personal attacks if said attacks touch on matters of public importance

∙ Red Lion says that this requirement violates 1st Amend right to determine what they air on their radio station

-doctrine upheld—with broadcasting, there is a finite number of frequencies

-to have effective communication, must limit number of broadcasters

-1st Amend confers no right on licensees to prevent others from broadcasting

on “their” frequencies nor a right to an unconditional monopoly on a scarce resource which the gov has denied the rights of others to use (right to license = not const)

-there is no sanctuary in the 1st Amend for unlimited private censorship operating in a medium not open to all

∙ “Freedom of the press from governmental interference under the 1st Amend does not sanction repression of that freedom by private interests.”

-gov is not telling the broadcasters what to carry other than requiring them to allow a response—nor is it forcing it to carry government’s views


Miami Herald v. Tornillo

-whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks in his record by a newspaper violates the right to free press (“right to reply”)

-struck statute down—operates in same way as a statute forbidding or regulating the publishing of a specific matter; penalizes the exercise of editorial autonomy

-court does not distinguish from Red Lion—most people be/l distinction is that this is an unlimited medium (unlike radio waves)

∙ no public property committed to newspaper’s exclusive use

∙ Herald was not granted exclusive use of any forum

∙ monopoly created over public property such as airwave created by

licensing process is mitigated by fairness doctrine

-marketplace has in essence created newspaper monopolies. Shouldn’t government step in & regulate here too to ensure public expos. of different views?



XIX) Campaign Finance


Buckley v. Valeo

-campaign finance reform—1974 amend’s to Federal Election Campaign Act

-many be/l this is the worst SC decision of past 25 years

∙ compare it to Lochner—SC is relying on individual constitutional rights to overturn legislation that promotes equality

∙ just as New Deal overturned Lochner, should be “New Deal for Speech”

∙ but wouldn’t this New Deal for Speech bring back the bad tendency test?

∙ notion of regulating speech to promote equality would lead to regulation of areas outside of those desired by promoters of this New Deal

-SC invokes O’Brien test—statute with regards to both donations and expenditures serves a governmental interest involving the suppression of free expression—O’Brien requires that gov interest be unrelated to this suppression

-some argue that the regulation found here in content-neutral and therefore the law is aimed at evils independent of the message of speech (law should not have been subject to strict scrutiny b/c content-neutral)

-with regards to campaign contributions: although it does limit one’s 1st Amend rights as a donor, this is not a serious impingement (i.e. candidates are still getting enough funds, significant gov interest in preventing corruption, etc)

-Burger and White would strike down both expenditures and contributions (do not see a significant difference between the two)

-gov claimed three interests in regulating campaign expenditures:

1) preventing corruption or the appearance of

∙ independent expenditures do not create the same danger as contributions

2) equalizing the relative ability of individuals and groups to influence the outcome of elections

∙ court finds total 1st Amend violation here—how do you enhance speech while restricting it?

∙ inconsistent with 1st Amend to restrict the speech of some in order to enhance the speech of others (although it may encourage diversity, this is not an okay means to do it)

3) reducing the allegedly skyrocketing costs of political campaigns

∙ thinks Cong was wrong in assessment of skyrocketing costs

∙ regardless, 1st Amend denies gov power to determine that

spending to promote one’s political views is wasteful, excessive or unwise; in the free society ordained by the Const it is not the government, but the people who must retain control over the quality and range of debate on political issues

-SC upheld disclosure requirements; gov’t interests here:

∙ provides voters with relevant info on candidate based on contributions

∙ publicity from disclosure prevents corruption

∙ helps monitor violations of contribution limits

-also recognize that disclosure requirements might be a problem for minority political groups (who might need more money, but to whom people might be less willing to give money if disclosure required) (although the court said that these parties can apply

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Class 3.


1) Introduction

a) Policy Considerations

i) Ecology, Economics and Ethics

(1) What is environmental about env law (through lens of ESA)? Lazarus:

(a) Irreversible, catastrophic, and continuing injury

(i) Once a species is extinct, it’s gone. E.g., ESA tries to prevent an injury that is irreversible.

(ii) Catastrophic to local ecosystem. The indirect effects are usually worse than the direct effects, esp. if the species is a “keystone” species – one upon which the ecosystem depends.

(B) Physically distant injury

© Temporally distant injury

(d) Uncertainty and risk

(i) You don’t know if a species going extinct is going to have an effect, but it may.

(ii) Concept of succession –

1. Ecosystems are in a constant state of flux, there is no true state of balance

2. Climax ecosystem – the state an ecosystem would achieve if it were left undisturbed (but this never happens .. there are constant forces working upon the ecosystem)

(e) Multiple causes

(f) Noneconomic, nonhuman character

(i) ESA designed to protect something that is noneconomic and nonhuman. Conversely, enforcing the ESA will often result in economic harm

(2) Tragedy of the Commons

(a) Possible solutions:

(i) Command-and-control regulation by govt – create enforceable standards for use of or access to the commons

1. predominant strategy employed by current env law system

(ii) Privatizing the commons – divide the commons into individual property allotments

1. Problem – hard to divide certain resources such as air

(iii) Economic incentives – govt can force users of collective goods to bear the costs of their actions through taxes or fines (these are negative economic incentives)

1. Govt can also use positive economic incentives such as subsidies

(3) Cost-benefit analysis to determine if a proposed regulation is economically efficient

(a) Problem – almost impossible to value env amenities. When one doesn’t know how important a plant/animal is to an ecosystem, the species will almost always lose.

(4) Ethics

(a) Leopold – argues for an extension of current ethics to include an individual and his env. Believes a conservation system built solely on economic self-interest will never work, as it tends to ignore elements of env that lack commercial value.

(B) Baxter – argues for “optimal pollution” – humans should divert their productive capacities from the production of existing goods and services to the production of a more env-friendly nation up to the point when we value that diverted good more than the next unit of env improvement

© Sagoff – problem with cost-benefit analysis is that they fail to consider citizens’ ideological or ethical convictions

(d) Tarlock – argues env law should derive its primary political power and legitimacy from science, not ethics.

ii) Environmental Protection by Tort Law or Regulation?

(1) Shavell – tort law private, deters only once harm occurs; regulation public, imposed before actual occurrence of harm.

(2) Popular arguments in place of environmental regulation

(a) Common law tort actions. Use trespass/nuisance law for pollution, etc.

(B) Free Market Environmentalism. Through lens of ESA:

(i) Animals

1. Argument is that ESA has created a category of landowners who get no benefit from protecting the animals, political costs are extremely high, reintroduction costs high.

2. Argument  why not create a hunting season with a limited number of licenses? Creates an incentive for the land owners to use their land as hunting leases and ensure that the endangered species isn’t hunted out.

(ii) Plants

1. Can’t sell species that are endangered.

2. Argument  what if you could sell them by collecting the seeds? No longer would be endangered.

a. Argument against  would landowners be able to protect them even if they wanted to? Free market won’t be able to protect all plants/animals.

© Privatization

(i) 1/3 of land mass in US is owned by federal govt. Argument  this land is being abused, and it would be better used if we would sell off the land.

1. There would no longer be an incentive to overgraze (tragedy of the commons)

(ii) Argument against – assumes a long-range view of the land, when people would like attempt to maximize their immediate profits.

B) Some Basic Doctrines of Administrative Law

i) Agency Decision-Making

(1) All statutes we talk about in class are enforced by federal agencies

(a) NEPA – National Environmental Policy Act

(i) CEQ – Council on Environmental Quality – issues regulations under NEPA. Applies to all other federal agencies. If the agency is contemplating major action that will affect the environment, you have to do an environmental impact statement.

(B) ESA – Endangered Species Act

(i) FWS – Fish and Wildlife Service – issues regulations under ESA. Applies to all other federal agencies.

© Wetland permitting - §404 of the Clean Water Act

(i) Army Corps of Engineers

(d) Federal public lands

(i) PS – Park Service, FS – Forest Service, FWS – Fish and Wildlife Service, BLM – Bureau of Land Management [administration over anything that isn’t a park, national forest, or wildlife refuge – and oil and gas development]

(2) Types of statutes

(a) Agency specific – directs one specific agency (CWA)

(B) Generic statutes – apply to every agency (ESA, NEPA)

(i) Agency specific statutes can provide guidelines to accomplishing their goal, and are much more narrowly tailored, whereas the generic statutes are blanket statements of policy.

(ii) Generic are therefore harder to enforce, and when enforced there is a great variance amongst agencies.

(3) Agencies engage in two basic types of decision-making:

(a) Rule-making: issuing decisions re: how things are done. Three ways in which rule-making is done:

(i) Informal rulemaking (the norm)

1. Must publish a general notice of the proposed rule in the Federal Register and allow a reas time period during which parties can comment. Then can publish the final rule. This allows for a lot of public input.

(ii) Formal rulemaking

1. Agency must conduct a trial-like hearing and provide interested persons an opportunity to testify and cross examine adverse witnesses. (formal rulemaking is relatively rare in env. law)

(iii) Negotiated rulemaking

1. Negotiations among interested parties [those who will be impacted] to develop regulatory proposals. Once an agreement is reached, notice and comment rulemaking is followed.

(B) Adjudicatory decision-making: when the agency decides to take a specific action - when the agency applies the law/regulation in specific cases.

(i) Informal

1. We mainly deal with this. E.g., approving/denying permits. The agency basically says “we construe the law in this manner.”

(ii) Formal

1. Very much like a trial – very few instances of formal adjudication in this course. Often used when the rights/claims of private individuals are involved.

ii) Judicial Review of Agency Action

(1) If unhappy with the rule-making/adjudication process, one may want to go to court. What is required to get into court?

(a) Ripeness

(i) The claim must be ripe – it’s not ripe if it is brought too early.

(ii) Most environmental statutes have specific provisions for pre-enforcement judicial review, but only for a limited time period of 60 to 120 days after their issuance or promulgation

1. This is because the general rule states that pre-enforcement review of agency regulations is not allowed.

(B) Exhaustion of all administrative remedies

(i) Before judicial review is allowed, all administrative remedies must have been exhausted.

© Mootness [note – it must not be moot]

(i) A case is moot when there is not live/active controversy btwn parties.

(d) Standing

(i) (1) Must be an interested party that will be affected in some way by the decision that I am challenging. (2) The injury must be traceable to the agency action. (3) The injury can be redressed by the judicial action that I am seeking.

(ii) Standing is very important re: management of public lands

(2) You can attack an agency’s decision from each of the following routes:

(a) Law – agency has had to interpret some law. If acting under a statute, what does the statute say?

(B) Facts – what has given rise to our need to issue a rule, grant a permit, etc.

© Decision – makes a decision after applying the law to the facts

(d) Procedure – agency must follow some sort of procedure; may be mandated by APA or statute, or could be some sort of informal procedure that the agency has devised on its own.

(3) Law

(a) How much deference should be given to an agency’s interpretation of the law? Three general approaches

(i) No deference – no reason to give the agency’s interpretation any more deference than another groups. The courts will make the determination of what the statute means.

(ii) Presumption that agency determination is correct, but only that far. It is the duty of the private individual to show that the agency is incorrect.

(iii) Complete deference, unless the agency is clearly wrong.

(B) Most state courts go with 1 [no deference] or 2 [presume agency is correct]

© Federal courts – far greater deference to an agency’s interpretation than in most state courts. Follow the Chevron rule:

(i) When a federal court reviews an agency’s construction of the statute which it administered, it is confronted with two questions:

1. Has Congress directly spoken to the precise question at issue? (i.e., is Congress’s intent clear? Is the statue unambiguous?); if not, then:

2. Is the agency’s answer based on a permissible construction of the statute? Must look at whether delegation of authority to agency is express or implicit:

a. If Congress gives an express delegation to the agency, unless the agency’s view is “arbitrary, capricious, or manifestly contrary to the statute”, court will go with the agency’s view.

b. If Congress gives an implicit delegation of authority, the view must merely be reasonable.

i. Very high level of deference to the agency’s interpretation.

(d) How far does Chevron extend?

(i) Mead - SCOTUS stated that there are several levels of judicial deference to administrative interpretation with Chevron deference being the highest.

1. Degree of deference depends on the power of persuasion of the administrative interpretation and the relative power/importance of the agency [thus depends on who issued the ruling and how it was issued].

a. Smith – this is a horrible holding! Who decides what deference to give to each interpretation?

(e) Should a court’s level of deference to an agency’s interpretation change if the regulations have recently changed? Even if the new interpretation is still within the bounds of reasonable interpretation?

(i) Chevron ct. – hints that they won’t hold a new exec. administration to the rules of the old exec. administration. Therefore, as long as the interpretation is reasonable, they will still give deference.

(4) Facts

(a) Most federal agency fact-determinations tend toward the formal, but still lie somewhere in between formal and informal. How can one show that an agency’s fact-finding is erroneous?

(i) If in a formal hearing – substantial evidence test (not unanimous consent on what that is)

1. Some state cts. – “directed verdict test” – if you could get a directed verdict in your favor, then there is substantial evidence.

2. Federal rule – if a reasonable person looking at the whole record could agree with the agency’s view (see it as reasonable), there is substantial evidence.

(5) Decision

(a) Look at whether the opinion is capricious and arbitrary and if the agency fails to give a reasoned explanation for its decision.

(6) Procedure

(a) Agency didn’t comply with correct procedure mandated by, e.g., the particular statute or the APA.

(B) Didn’t make certain findings of fact, lack of certain type of public notice

© Or agency has failed to produce a sufficient record to analyze their decision

(d) This is often the most successful ground for attack

2) National Environmental Policy Act (NEPA)

a) Introduction to NEPA

i) Purpose – to try to preserve an environment where man and nature can live in harmony, given the problems of urbanization, population growth, etc. Major policy is to protect the environment as far as it is useful to humans – to ensure the utility of the environment.

ii) For a proposed action that would significantly affect the human env, an agency must:

(1) Include a detailed statement by the responsible official on –

(a) The environmental impact of the proposed action;

(B) Any adverse environmental effects which cannot be avoided;

© Alternatives to the proposed action;

(d) The relationship btwn local short-term uses of env and maintenance and enhancement of long-term productivity; and

(e) Any irreversible and irretrievable commitments of resources

iii) Three actions an agency can take with regard to NEPA:

(1) Categorical exclusions

(a) Refers to acts falling w/in a predesignated category of actions that do not individually or cumulatively have a significant effect on the environment.

(2) Environmental assessments

(a) Actions that may/may not significantly affect the env fall under this category

(B) EA = concise public document that may be prepared to achieve any of the following purposes:

(i) To provide sufficient evidence and analysis for determining whether to prepare an EIS;

(ii) To aid an agency’s compliance with NEPA when no EIS is necessary; and

(iii) To facilitate preparation of an EIS if one is necessary

© EA is followed by one of two conclusions, so must provide enough information to make this decision:

(i) FONSI – Finding of No Significant Impact; or

(ii) A decision to prepare an EIS

(d) Will likely be a controversy whenever you’re in this middle category – some will say you didn’t fully assess the env consequences, and others will say it should be a FONSI

(3) Environmental impact statements

(a) Actions that always significantly affect the env

(B) Provides a full and fair discussion of significant env impacts and shall inform decision-makers and the public of reasonable alternatives that would avoid or minimize adverse impacts or enhance the quality of the env

© Procedure

(i) Proponent agency publishes a Notice of Intent (NOI)

(ii) Series of “scoping" hearings – a process to determine the scope of issues to be addressed in the EIS and for identifying the significant issues related to a proposed action

(iii) Must identify alternatives – including alternative of doing nothing

1. If the agency finds an alternative that is the same economically, but better environmentally, would an env group have a cause of action under NEPA?

a. No. NEPA does not create any substantive rights! It’s entirely procedural. The agency can end up choosing whatever it wanted to initially do.

b. So what good does NEPA do?

i. Allows all groups/individuals an input into the process. It allows some level of local community input, when previously almost none was available.

ii. Public opinion effect of a highly publicized decision will force the agency to accommodate the opinion that is generated.

(iv) Preparation of draft EIS (DEIS) – agency may accept info from any party, including the applicant, but it must independently evaluate such info.

1. Must be circulated to allow comments

(v) Final EIS (FEIS)

1. If there is a great period of time/change in circumstances btwn the DEIS and the FEIS, it may be required that the agency complete a Supplemental EIS (SEIS)

B) When is an EIS Required?

i) Regulatory Requirements

(1) When is an EIS not required?

(a) When no federal action/funding is involved in the proposed actions

(i) Although some states have SEPAs (not TX, though)

(B) If there is an specific statutory exemption

(i) Actions re: Clean Air and Clean Water Acts

© If there is an implied statutory exemption

(i) If an agency’s action is mandatory

1. E.g., if a species is found to be endangered, the agency must list it.

2. Arguments against:

a. There are very few situations where you can only do something one way. Often alternatives re: how to fulfill a statutory mandate.

b. One of the points of NEPA is transparency in agency action. So, even if it’s mandatory, the public should still know what the mandatory requirement results in.

(ii) If carrying out NEPA creates an unavoidable conflict with what an agency is told to do

1. Often decisions that have to be made w/in a relatively short period of time and the projects are of a large scale.

(iii) Environmental agencies carrying out environmental policies

1. If it’s an env agency, then everything it’s doing is trying to take care of the env, thus they shouldn’t be forced to go through the NEPA requirements

a. Arguments against:

i. There are often better ways to do X

ii. Transparency in the decision-making process

2. There is some disagreement btwn cts over this exception

(d) Functional equivalent doctrine

(i) The agency, in making the decision, is carrying out the functional equivalent of an EIS, usually through reports, public hearings, etc.

(ii) All cts agree with this exception

ii) “Recommendations or Report on Proposals”

(1) CEQ regs – p. 231 - § 1502.5

(a) An agency shall start preparing an EIS as close as possible to the time the agency is developing or is presented with a proposal so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The EIS shall be prepared early enough to serve as an important contribution to the decision-making process – and not simply to justify a decision already made.

(2) NEPA applies when an agency makes a recommendation on a proposal for major federal action

(a) What if an agency is just considering action?

(i) Issue One - When in the thinking/consideration process does an agency need to go through the NEPA process?

(B) Is a programmatic EIS required? I.e., an overall EIS that will look at what will happen to the env because of the total of the projects, as the whole may be more than the sum of its parts.

(i) Issue Two – Is a programmatic EIS required when an agency is considering a number of separate projects that are all related to the same issue?

© Kleppe v. Sierra Club – deals with both issues

(i) Consideration process issue - NEPA kicks in when there is a report or recommendation for a proposal. The fact that you’re thinking about doing something doesn’t make it a proposal.

(ii) Programmatic EIS issue - In order to force the NEPA process where there isn’t a formal proposal, you must show the agency acted arbitrarily in refusing to prepare one comprehensive statement on the entire region.

1. Smith – is “arbitrary” the correct standard? Or should it be a “reasonable” standard? (because of difference btwn agency-specific statutes and generic statutes [NEPA])

(3) Remedy under NEPA – injunction

(a) Occasional problem – what if the agency has already completed its action?

(i) Metcalf – what remedy do Ps have when arguing that an agency has done an EA after the fact – merely to justify something they have already done by making an “irreversible and irretrievable commitment of resources”

1. Remedy – do the EA again.

iii) “Major Federal Actions:” Small Handles and Segmentation

(1) CEQ regs - p. 231 - § 1508.18

(a) Major federal actions include actions with effects that may be major and which are potentially subject to Federal control and responsibility.

(i) Major – simply reinforces “significantly affects” the human env. [why is “major” there if it has no independent meaning? CEQ says it simply means “significantly affects the human environment.”] For significantly – see below.

(2) Is there federal action if there is a significant probability that sometime in the future you will have to get a federal agency involved in the matter?

(a) No, that alone is insufficient. Feds must have control over the project in material respects.

(3) Small handles issue – when federal permission is required or federal funding is sought for one portion of a larger non-federal project

(a) Related issue: to what extent does a federal agency need to look at everything (indirect effects) that will flow from its involvement, or only the direct effect of what it’s doing?

(i) Ask: does the agency have control? (“control” – ability to influence or control the outcome in material respects; usually through funding); if no control, then no need for agency to look at indirect effects.

(ii) What if the agency does have control? Must an agency take into account indirect effects?

1. Depends on the level of work being done. If it’s only, e.g., a powerline being put in, no. If it’s a large amt of work being done, yes.

a. § 1508.8: agencies must take into account indirect effects, which it defines as “those that are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.”

i. May include growth inducing effects and others related to induced changes in the pattern of land use, population density, or growth rate

(B) Summary – what constitutes federal action? Only that portion that is controlled (funded) by a federal agency

(4) Segmentation – narrowly defining a project to avoid NEPA requirements, or to result in a series of separate env documents, none of which considers all the env impacts of the project.

(a) How do you determine if something has been impermissibly segmented?

(i) Consider whether the proposed segment:

1. Has logical termni – does it have a logical beginning and logical end

a. Illogical termni - encounter that arg being made successfully when a highway is being built away from urban areas

2. Has independent utility – to what extent does it have independent utility

a. Even if it doesn’t seem to be a logical place to put a highway, does the road have use by itself?

b. This factor is the primary focus in highway cases

3. Does not foreclose alternatives

4. Does not irretrievably commit federal funds for a closely related project

iv) “Significantly Affecting the Quality of the Human Environment”

(1) When does it significantly affect the human environment?

(a) Look at 1) context, and 2) intensity (§ 1508.27 – p. 233)

(i) Context

1. Must be analyzed in several contexts such as society as a whole, the affected region, the affected interests, the locality, and both short-and long-term effects.

(ii) Intensity

1. Consider both beneficial and adverse impacts

2. Degree to which the proposed action affects public safety or health

3. Unique characteristics of the geographic area

4. Degree to which the effects on the quality of the env are likely to be highly controversial

5. Degree to which the possible effects are highly uncertain or involve unique or unknown risks

6. Degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration

7. Whether the action is related to other actions w/ individually insignificant but cumulatively significant impacts

(2) Can mitigation measures be used to justify a FONSI?

(a) No. CEQ regulations state that “if a proposal appears to have adverse effects which would be significant, and certain mitigation measures are then developed during the scoping or EA stages, the existence of such possible mitigation does not obviate the need for an EIS”

c) Contents of an EIS

i) Alternatives, Affected Environment and Cumulative Impact: The Segmentation Issue Revisited

(1) CEQ regs – p. 261-62

(a) § 1502.14 – Alternatives including the proposed action

(i) Agencies shall:

1. Explore and evaluate all reas alternatives and discuss the reasons for elimination of alternatives that were eliminated

2. Include reas alternatives not w/in the jurisdiction of the agency

3. Include the alternative of no action

(B) § 1502.15 – Affected environment

(i) EIS shall describe the area to be affected

© § 1508.7 – Cumulative impact

(i) Impact which results from incremental impact of the action when added to other past, present, and reasonably foreseeable future actions, regardless of who undertakes such actions.

(d) § 1508.8 – Effects

(i) Direct effects and indirect effects (discussed previously)

(2) Segmentation again:

(a) If you are building a highway bit by bit, and it looks as though you’re leaving the most controversial portion until the end (precluding other alternatives!)

(i) And the way that you’re building the highway suggests that the only way to finish the highway would be to build through said controversial area, you must consider the controversial portion now, even though you may not get funding, etc. for many years.

ii) Mitigation Plans, Worst Case Scenarios and Supplemental Statements

(1) Mitigation Plans

(a) An EIS needs to contain some information about mitigation, but not a detailed mitigation plan.

(i) Why? SCOTUS is worried that requiring a detailed mitigation plan might cause someone to sue to enforce the plan if the agency doesn’t follow the detailed plan, thus creating substantive rights under NEPA.

(2) Worst Case Scenarios

(a) EIS does not need to contain one. It would skew the consideration of a project, as worst cases usually don’t happen

(3) Recall - goals of NEPA

(a) agency must take a hard look at env consequences and will consider alternatives

(B) relevant information will be available to a larger audience that may take a role in the decision-making process

(i) SMITH – can you require an EIS when it will not in any way affect the first goal, but will effect the second? No, there’s no requirement.

(4) Supplemental statements

(a) Under what circumstances is a supplemental EIS required?

(i) Supplemental EIS must be prepared if (1) there remains major federal action to occur, and (2) if the new information is sufficient to show that the remaining action will affect the quality of the human env in a significant manner or to a significant extent not already considered

1. An agency’s decision whether to supplement an EIS cannot be set aside unless it was arbitrary or capricious

3) Endangered Species Act (ESA)

a) Introduction to ESA

i) Historical Background

(1) ESA has been supported as a mechanism for supporting and protecting biodiversity. Attempts to provide this protection in three ways:

(a) Prohibits international trade of endangered species.

(B) Prohibits federal action that may further jeopardize the existence of an endangered species (§ 7)

(i) Differs from NEPA in that it provides substantive rights in addition to procedural rights

© Prohibits a “taking” of ES by anyone (§ 9)

(i) Note that ESA applies to everyone – not just govt agencies.

(ii) Beyond obvious definition, taking means harming it, harassing it, modifying habitat in such a way that a species is harmed

(2) Two reasons why ESA has aroused such animosity and vocal outcry: (1) absolute nature of the prohibitions; and (2) perceived intrusiveness of § 9 that applies to everyone (inc. private individuals)

ii) Rationales for Biodiversity Protection

(1) Utilitarian/instrumentalist arguments:

(a) Potential medicinal qualities in yet-to-be discovered plants

(B) Occasionally we don’t know what holds ecological systems together (the keystone specie – the one that makes the system work)

© Humans are dependent on ecosystems; we weaken our own environment all the time.

(2) Aesthetic arguments

(a) Animals/plants are nice to have around, essentially.

(3) Moral/ethical arguments

(a) Intrinsic value of plants/animals

(B) Biblical argument that God gave man dominion over all animals on the earth.

(4) Should there be a cost/benefit analysis incorporated into ESA?

(a) No – species will always lose when looked at in monetary terms

B) What Does the ESA Protect?

i) In order to get the protection of the ESA, the specie has to be a listed endangered specie

(1) Defn of endangered specie – any specie which is in danger of extinction throughout all or a significant portion of its range

ii) Petition Process

(1) Two methods

(a) Species proposed for listing by FWS/Nat Marine Fishery Service [NMFS]

(B) Petition for listing by an interested person (creates a lot of litigation)

(i) Not an ESA petition; or

(ii) 90-day letter [w/in 90 days after getting petition, must reply]. Response is either:

1. Insufficient information; or

2. Warrants review. If warrants review, then

a. status review/public comment

i. 12-month finding [12 months after issuing 90-day letter]

 petitioned action not warranted;

 petition is warranted, but precluded; or

• Three reasons for being precluded:

o Already gone through this process with this species, and made the decision not to list it

o Already gone through this process with this species, and its already listed

o Precluded b/c our own staff has proposed that it be listed [often a copout answer]

 species proposed for listing

o Listing Process

• Favorable action on petition; or

• FWS/NMFS initiates listing

o Species proposed for listing/proposed designation of critical habitat

o Notice given: fed register, local papers, etc

o Scientific and public comment

o 12-month finding

 not listed;

 listed; or

 postpone decision b/c of insufficient data

• 6-month finding

o not listed; or

o listed

c) The ESA’s “Protective” Clauses

i) Prohibition of Federal Agency Action Jeopardizing Existence (ESA §7)

(1) Section 7 of ESA – fed agencies must ensure that any federal action will not further jeopardize the existence of any endangered specie or result in destruction or adverse modification of such specie’s habitat

(a) Before you do any action, you must consult with the secretary (relevant agency under secretary – either FWS or NMFS) to determine if any endangered species exist where the action is to take place

(2) Consultation Process [e.g., when Forest Service determining whether to lease a big area; needs to consult to determine if endangered species exist on the land]

• Agency initiates informal consultation with FWS/NMFS

o No endangered or threatened species [none are there]

o Listed species may be present

 Agency requests formal consultation [FS, e.g., explains what it’s planning to do, questions about whether you can still issue leases if you have these requirements, etc.)

• Only supposed to take 90 days

o conclusion of consultation

 45 days later, issues biological opinion letter [this is crucial – it lets the agency know if there is any chance of it going ahead with its project]

• action jeopardizes species, although there are these alternatives [or no alternatives!]; or

• no jeopardy (and accompanied by incidental take statements which protect the action agency against liability under § 9).


(3) If the specie is only proposed for listing, the agency can continue with its action during the consultation process. Why? There is a statutory assumption that proposing for listing is an intermediate determination; that many would be proposed and then ultimately not listed.

(a) But note the agency must consult if the specie is proposed!

(4) If ES is present, you’re subject to subsection D – cannot make any irreversible or irretrievable commitment of resources until the consultation process is over.

(5) TVA v. Hill – recognized absolutist nature of ESA

(6) Appeals process

(a) ES Committee

(i) If in the consultation process the biological jeopardy is found and the project must be stopped, you can appeal to the ES Committee. Initial application is to the Sec. of Interior. Hold hearing, then make decision re: whether to convene the committee. If committee is convened, it makes a decision on whether to grant an exemption.

1. This process has been used less than 10 times, and an exemption has been granted only 3 times.

ii) Prohibition Against Taking (ESA §9)

Section 7 (§ 1536) v. Section 9 (§ 1538)


Section 7

Section 9

Applies only to federal agencies Applies to everyone

Prohibits action threatening threatened or endangered species/ requires consultation Prohibits a taking, importing/exporting

Remedies – Injunction Remedies - Injunction; also a provision for civil fines, and ultimately criminal sanctions

Applies to all listed species Applies only to endangered fish and wildlife (not threatened); only to plants in two respects – 1) dig up or destroy a listed plant on any federal land; 2) sale of/trade in plants, but not accidental/deliberate destruction of plant

(1) The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct

(2) FWS regulations – to “harm” includes significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

(a) Today, the leading cause of extinction is habitat destruction, so there’s a good reason for this regulation

(B) “Harm” allowed to include habitat modification b/c of the broad purpose of the act

(i) TVA case: difficult to imagine act w/ stronger language to preserve species.

(ii) Habitat destruction is the principal reason why species are disappearing and if you are going to get any results from the act, this reading makes sense.

(iii) And thinking in terms of administrative law: this is a matter of deference. (Chevron case). Congress authorized Secretary to have broad discretion. Maybe the dissent is correct in that the most obvious meaning of harm doesn’t include habitat destruction, but it is not unreasonable to construe harm as the Secretary did. This is an acceptable reading of what harm means.

(3) SMITH - how far can FWS go in defining the word harm?

(a) Today, principal cause of species distinction = loss of habitat.

(B) Second most prevalent cause is impact of exotic species (non native pigs and goats). (problem of predators, competition for habitat, food, spread of disease)

© Note this case: 9th circuit opinion re: when Hawaii introduced non-native sheep. Sheep destroyed only food source of ES; held to be a taking, sheep was removed.

(i) Prof’s hypo about black-capped vireos—the bird that lives on the ground and needs vegetation to hide from predators. Prof has goats that eat all the vegetation and destroy this bird’s habitat. Can the FWS enjoin you from having goats?

1. It is different from Prof actually cutting down the trees himself BUT…If you take the Hawaiian case literally, yes, FWS can enjoin you from having the goats.

(d) Hawaii also had domestic goats that ran wild and destroyed food source. Even though state did not introduce the goats, ct held that Hawaii has an obligation to protect habitat even against feral animals you didn’t introduce.

(i) What if Prof just had native deer on land, but they destroyed the habitat of ES? Does § 9 state that it’s a taking unless Prof does something to control the native deer population?

1. Reading Hawaiian case literally would mean Prof has to remove/control deer population

(4) Problem w/ expansive definition of harm: seems to create strong disincentives to allow habitat to expand. So you want as little habitat as possible on your land to avoid penalties.

(a) In response to this problem, they issued Safe Harbor provisions.

(i) So, they get a baseline # of the animals on the land.

(ii) You can modify so long as you keep this minimal baseline # of animal

(iii) (Problem is establishing baselines and monitoring them.)

iii) Permitting Takings: § 10 Incidental Take Permits and Habitat Conservation Plans

(1) CEQ regs – p. 369

(a) To get a §10 incidental take permit, applicant must show:

(i) taking is an incidental effect of a lawful activity

(ii) it will make every effort to minimize the taking

(iii) it would mitigate to the extent practical (e.g., habitat conservation plan)

(iv) it would ensure permanent funding of the mitigation plan

(v) if it does get the incidental permit, the likelihood of the species survival is not appreciably reduced

(B) How challenge a permit? 2 bases:

(i) Does this permitee plan to do everything to minimize the impact on the ES?

(ii) Is this permitee really making arrangements to ensure funding for the mitigation plan?

1. Issue is complicated by FWS’s “no surprises” policy.

a. Cannot force permitees to continually increase their funding. The policy means that once FWS agrees on the plan, funding, etc., that’s the plan – it’s not going to change (even if it’s not working).

(2) Habitat Conservation Plans

(a) A form of mitigation, usually setting up a preserve. To prevent having to maintain the preserve, companies either (a) donate to an env non-profit set up to maintain the HCPs; or (B) buy into a regional HCP.

(i) Regional HCP – larger entity w/ control over series of activities that develop the reserves and hold the permit. Then they are in charge of issuing sub-permits

(B) HCPs usually directed at replacing the habitat that was destroyed by the taking.

© Critics of HCPs

(i) If there is a great interest in preserving ES, the costs of preserving habitat should be borne by the public – not just a private burden.

(ii) Most HCPs only attempt to prevent extinction. Argument is that they should be recovering the species. This ties in with the criticism that HCPs often have a lack of goals.

iv) Critical Habitat Designation

(1) Critical habitat defined as areas containing physical or biological features essential to the conservation of the species which may require special management protection.

(2) Currently less than 10% of listed species have critical habitat designated. Huge political controversy surrounds designation, so designating habitat is placed very low on the priority list.

v) Final issues re: ESA

(1) Opposition to ESA

(a) A lot of opposition to ESA, even amongst env-oriented land owners. All stick and no carrot. How can ESA issue a carrot?

(i) Subsidies – analogous to agricultural subsidies

(ii) Tax incentives

(iii) What about triage? Divide species into 3 categories:

1. So endangered that they’re never going to survive

2. Need immediate attention, but can be saved

3. Need help, but not immediately

(iv) Concentrate on the middle category

(v) Argument against triage theory

1. Undermines legitimacy of ESA once you allow a species to die

(2) Relationship btwn NEPA and ESA

(a) NEPA can work both ways – actions can be brought by groups concerned that govt action will significantly affect env

(i) But can also be invoked in context of ESA to delay/attempt to delay listing or habitat designation. There are industries that suffer when a species is listed, so they might try to delay listing.

1. But no court has accepted arg that FWS needs to go through NEPA process before specie is listed, as the ESA is absolute. I.e., if the specie is endangered, you have to list it.

(B) FWS reintroducing ES into area – subject to NEPA?

(i) FWS has always assumed that it is, as there is always a probable impact on the natural env and human env.

© ESA listing not subject to NEPA

(i) FWS doesn’t believe you need to do NEPA for listing, as there is no alternative to listing. As mentioned above, the ESA is absolute – it doesn’t permit any alternatives. Cts have agreed

(d) Critical habitat designation – subject to NEPA?

(i) There is express authorization to take into account the economic impact of designating an area as a critical habitat that can’t be changed and has to be maintained as is.

1. 10th circuit has said you have to go through NEPA, 9th circuit has said you don’t

a. FWS argues that their statutory requirements are the functional equivalent of what is required by NEPA. Therefore, adhering to NEPA is unnecessary.

i. 10th disagrees; 9th agrees.

(3) Recovery Plan

(a) Idea is that you list a specie, designate critical habitat, and then come up with a recovery plan. A recovery plan sets out what FWS is going to do to upgrade the specie from endangered to threatened to no problem.

(i) Note that there are very few recovery plans in existence.

(B) There has been virtually no success in forcing FWS to come up with a recovery plan, unlike the other procedures with which env groups have had success (listing, habitat designation)

(i) There have been only a handful of instances where P has shown that FWS’s delay in creating a recovery plan has been unreasonable

© There have been some attempts in enforcing the plans, with zero success.

(i) FWS says plans aren’t set in stone, and initial plans may have to changed if experience suggests they have to do something else

1. Plus idea of deference to agency

(d) There has, however, been some success in litigating against the adequacy of recovery plans

(i) Adequacy in the sense that you can read the plan and can’t figure out when the specie will ever recover.

d) Constitutional Law and the ESA

i) The Commerce Clause

(1) Does Congress have power under comm. clause to regulate taking of non-migratory species on private land?

(a) Yes. What can Congress regulate under comm. clause?

(i) Use of channels

(ii) Instrumentalities & things in interstate commerce

(iii) Activities having a substantial relation to interstate commerce (can use aggregate effect to find the substantial relation)

1. SCOTUS has held that aggregate taking does have a substantial relation.

a. Comm. activities related to specie

2. SCOTUS has even stretched comm. clause in another case to allow § 9 to apply to a solely intrastate specie

a. SCOTUS reasoning: protecting specie has substantial relation to interstate comm. in that it’s part of an overall scheme to protect biodiversity throughout US

ii) The Takings Clause

(1) Does the regulation of private land in order to protect ES constitute a 5th am. taking w/o compensation?

(a) Review of taking clause

(i) Eminent domain – if govt cant get you to sell property, govt can use eminent domain and get the property after paying fair market value

(ii) Inverse condemnation – can’t avoid the procedure and payment required under eminent domain simply by occupying someone’s property (taking as a matter of law; doesn’t matter how small the invasion)

(iii) Regulatory taking – where a regulation is so extensive and limits the landowner’s use of property that it is the functional equivalent of eminent domain or inverse condemnation

1. In deciding if there is a regulatory taking, look at three factors:

a. What is nature of govt action?

i. Closer it comes to physical occupation/the more it forces one land owner to serve a purely public purpose, then the closer it comes to a taking

b. What is the economic impact on the landowner?

i. More it interferes with income producing capability of land, closer it comes to a taking

c. To what extent is there interference with investment-backed expectations?

i. More it interferes, closer it comes to a taking

2. Smith’s version of how to look at this:

a. Weighing test. Look solely at the totality of the impact on the private land owner – no balancing test with public benefit. After looking at totality of effects, determine whether there is a regulatory taking.

(iv) Two types of categorical takings:

1. Inverse condemnation (govt-authorized occupation)

2. When use is so restrictive that it effectively deprives the landowner of ALL economical viable use/value

a. Can be done, however, when ct enforcing a limit already inherent on the land (i.e., to prevent a common law nuisance)

(v) Note – transfer of encumbered property

1. Suppose a regulation is a taking. If the person who owns the property when the regulation was put into effect doesn’t sue, transfers the property, and the subsequent owner sues on the takings theory – it is allowed.

2. I.e., the unconstitutional taking isn’t cured by a change in ownership

iii) Mitigation conditions

(1) Where your use of the land is conditioned upon you mitigating the harm in some manner

(2) In order to impose a condition, it must have a reasonable relationship to the goal you’re trying to accomplish

(a) Relationship to ESA/wetlands - hard to argue that conditioning incidental take permit on joining mitigation plan doesn’t have a reas relationship to the goal of protecting the specie that would be affected by the taking

(3) What you’re required to do must be roughly proportional to the need generated by what the individual actor is going to do

(a) Relationship to ESA/wetlands – could have a challenge here. Could argue that what you’re requiring owner to do in terms of creating or paying for more habitat is disproportionate to owner’s impact on habitat

4) Wetlands Protection

a) Introduction

i) Deals with Clean Water Act - § 404 authorizes permits for the discharge of fill to “navigable waters”

ii) Army Corp of Engineers in charge of permitting program

iii) CWA § 404 – p. 385

(1) Sec of Corp may issue permits after notice and opportunity for public hearings

(2) Not applicable to discharge of fill from normal farming activities

iv) Corp Regulations – p. 386

(1) “Waters of the U.S.” means:

(a) All waters which are currently used, were used in the past, or might be used in the future in interstate or foreign commerce;

(B) All waters subject to the ebb and flow of tide;

© All interstate waters including interstate wetlands;

(d) All other waters, the use or degradation of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used for recreational or other purposes;

(ii) From which fish or shellfish are or could be taken in sold;

(iii) Which are used or could be used for industrial purpose in interstate commerce;

(e) Impoundments of waters otherwise defined as waters;

(f) Tributaries of waters IDed in (a) – (d);

(g) Territorial seas (3 miles w/in coastline);

(h) Wetlands adjacent to waters IDed in (a) – (g)

(i) Wetlands – areas that are inundated or saturated by surface or ground water at a frequency to support a prevalence of vegetation typically adapted for life in saturated soil conditions. Typically includes swamps, marshes, bogs.

(ii) Adjacent – bordering, contiguous, neighboring. Wetlands separated from other waters by man-made dikes, natural river berms, beach dunes, etc. are “adjacent wetlands.”

v) Recall license v. permit

(1) License is something you’re entitled to as a matter of law if you pass the requirements.

(2) Permit, on the other hand, has some level of discretion attached to it. Even if you meet all requirements, authority could exercise discretion and not allow permit or allow it with numerous conditions (so long as refusal isn’t arbitrary or capricious).

B) Scope of Federal Authority

i) Hydrologic connection

(1) As long as there is a hydrologic connection btwn the water and the wetland

(a) It doesn’t matter if the underground water primarily flows from the water to the wetland, or from the wetland to the water – they both qualify!

ii) Wetland doesn’t even need to be wet – just look for the moisture-dependant vegetation

iii) Flood plain of river is w/in scope of § 404 permitting authority b/c it’s maintained by periodic overflows from river

iv) What about completely isolated body of water? If there’s an underground connection btwn the body and the river, you’d have an argument, as the filling of the body of water would affect the flow of the river

v) ISSUE – water marketers – taking water from an underground body that connects to a river. But CWA only deals with filling in of navigable waters, not taking water out.

c) Wetlands Permitting: §404

i) Let’s assume the action is w/in the scope of 404. In order to get a permit, the Corp goes through a three-step process

(1) Are there any practicable alternatives to what you’re going to do?

(a) For the project (is it water-dependent?) For the site (is it site-dependent?)

(B) What about alternatives?

(i) When must alternative site be available? Corp uses date of application when determining whether there is a practicable alternative site

(2) To what extent can you minimize your impact on the wetland?

(3) What sort of compensatory mitigation can you do?

(a) Since we don’t want a net loss of wetlands. Four types of compensatory mitigations

(i) Create a new wetland. (Corp and EPA don’t especially like this alternative – created wetlands aren’t as valuable as natural ones)

(ii) Restoration of a degraded wetland (Corp/EPA likes this idea better, as there used to be a natural wetland there, so odds are it will be somewhat easier – but it takes a long time to “restore” a wetland)

(iii) Buy into a mitigation bank (aka “pay and pave”)

1. Either creating a new wetland or restoring existing wetland – but it’s not the developer doing it.

a. Note that mitigation bank wetland should serve the same principal purpose as the wetland being filled in

2. Problem – mitigation bank is unlikely to be in immediate vicinity to wetland being filled

(iv) In lieu payments (payment to a nonprofit that was created for the purpose of acquiring and protect ecologically sensitive land)

1. Greatly preferred by companies – good PR by donating money to a conservation organization

5) Federal Public Land Management

a) Introduction: A Brief Survey of Public Lands and Public Land Management Agencies

i) 30% of land is owned by federal govt – vast bulk is in the west and Alaska.

ii) FPL controlled by 5 agencies which are divided among 5 different cabinets

(1) Department of Defense

(a) Controls 30m on-shore acres; used for missile ranges, troop exercise

(2) Department of Agriculture

(a) Home of US Forest Service

(i) Four organic acts

1. 1897 – created FS and it’s statement of purpose (to protect the national forests); use of forest for recreation

2. 1960 – Multiple Use Sustained Yield Act – expanded purposes of national forests; named recreation an official goal

3. 2 in 1970s – you have to engage in national planning for national forest

a. National Forest Planning Act

(ii) Note – where FS is located; that every act recognizes there is going to be timbering in national forests; treats trees as crops (this tends to explain tendency of FS to engage in certain acts that appear to be agricultural subsidies)

(iii) Controls 190m on-shore acres

(3) Department of the Interior

(a) Bureau of Land Management

(i) 270m acres

(ii) Very historically important. Controls much of the arid rangelands that were never thought suitable for homesteading.

(iii) And note that Mines and Mineral Service is in BLM.

1. Has jurisdiction over oil and gas and mineral development on all public lands:

a. BLM land;

b. off-shore land [note that first three miles off-shore is under jurisdiction of state, next 197 miles is jurisdiction of MMS];

c. all minerals under other federal agencies [note that particular agency makes the decision re: where and how drilling is done, but it would be MMS which would actually grant leases, approve permits, and monitor how drilling was done]

d. 60,000 acres where land is owned by private individuals but mineral rights owned by MMS

(iv) Although BLM and FS were created very differently, their current statutory mandates are very similar – administer land for multiple-uses (timbering, grazing, recreation, mining, preservation of fish and wildlife)

1. Also need to manage it for sustained yield – idea is to manage the forest, e.g., so that there will still be a forest there.

(B) Fish and Wildlife Service

(i) Manages National Wildlife Refuges

1. 70-80% of which are in Alaska

2. Can be used for other purposes if it doesn’t interfere with wildlife refuge (inc. oil and gas and mineral development)

(ii) 92m acres

© National Park Service

(i) Mandate is to provide public recreation and maintain natural resources w/in the national parks – these mandates often butt heads

(ii) 83m acres

iii) All of land managed by agencies other than DoD is subject to special designation – Congress can designate their land for a specific use, and basically that’s all you can do with it.

(1) E.g., national trails, wild & scenic rivers, national recreation areas, wilderness (most important)

iv) Wilderness Act – if you have areas that are basically untouched by man, at least 5k acres in size, and roadless, then land can be designated a wilderness area.

(1) Idea is that each of the agencies are supposed to recommend certain parts of their land as wilderness areas. If approved by Congress, then man cannot touch the area – no roads, no timbering, no oil and gas, etc.

B) Multiple-Use Lands and Multiple-Use Management

i) The National Forests and the National Forest Service (FS)

(1) History of FS

(a) 1897 Act – Created FS

(B) 1960 – Multiple-Use Sustained Yield Act – you now explicitly manage for recreation; consider whether it’s appropriate for mining, oil and gas, grazing; and you preserve wildlife. And sustain what’s already there – don’t overgraze, etc.

© 1970s – two acts

(i) Renewable Resources Planning Act – FS has to have a plan for managing nation’s forests.

(ii) National Forest Management Act – FS must have a long-term plan for each forest

(2) Hunter – argues that forests are in a constant state of flux much like an organism.

(a) Recall concept of succession and climax (p.1) – forest reaches climax when the old growth forest has developed as much as possible.

(B) Two problems with belief that all forests should strive to reach the climax stage

(i) Many species rely on different stages of forest growth – not just climax stage

(ii) In nature, part of the forest might reach climax state, but other parts are always being knocked back. So parts will never reach climax.

© Therefore believes some timbering is ok and actually beneficial to forest

(d) FS - adopts concept that climax ecosystem isn’t the most desirable, and uses timbering as a means to manage the forests

(3) Multiple-Use Management

(a) Current goals for FS under National Forest Management Act – manage forests for MUSY – multiple uses and sustained yields. Multiple uses:

(i) Providing timber; protect forest so it will regenerate; protect the watershed; provide recreation; possible grazing; possible mining; preservation of plants/wildlife

(B) Forest plan for each forest

(i) Must first determine which parts of land are suitable/unsuitable for timber leases.

1. When unsuitable? If trees won’t regenerate, if significant erosion would occur, if the land is subject/being considered for a special designation (under the Wilderness Act)

(ii) Determine if land is possible for multiple uses: timbering and recreation, or timbering and grazing

(iii) Then establish goals – how can have mixture of consumptive uses in such a way that there will be a sustained yield, i.e. where 20 years from now there will still be trees and grass.

1. Come up with alternatives

© Controversy – how possible is it to have the mixed uses w/o destroying the forest and eliminating possibility for sustained yields?

(i) Argument – “mixed” uses has given away to preservation and recreation only.

(ii) Argument – FS is still too much about cutting down trees.

1. Principal contentious issue – (p.307) even-aged v. uneven-aged management of forest.

a. Even-aged management – authorizing timber cutting in such a way that each compartment in a lease will have trees of all the same age.

i. Three even-aged management techniques: (1) clear-cutting – go in and cut down everything; (2) seed-tree cutting – cut down almost all trees, but you leave an occasional tree so it will provide seeds to regenerate the same types of trees that were there originally; and (3) shelter-tree management – don’t cut quite as many trees as seed-tree cutting, so that saplings will have some shelter from direct sun.

b. Uneven-aged management - Two types: (1) authorize cutting trees of a certain size and specie; and (2) group selection management – designate certain areas w/in the compartments where you are authorized to cut down all the trees w/in a certain relatively small area.

2. In case, Sierra Club arg is that FS is violating terms of N.F.Management Act by primarily authorizing even-aged management. That’s inconsistent with a multiple uses mandate. Furthermore, case law indicates that even-age management is only permissible in exceptional circumstances – must be justified by FS.

a. Sierra Club loses. Nothing in legislative history to suggest Congress indicated to ban even-age management. Plus Chevron deference.

3. Smith—debate is often couched in preservation v. economic development. He thinks this ignores who benefits from recreation – numerous industries rely on people coming into public areas.

B) The Bureau of Land Management

i) Equivalent issue to forest management techniques – grazing. Allowing grazing on land that shouldn’t be grazed, and on land where there should be grazing, BLM isn’t requiring good grazing management techniques.

ii) History: homesteading laws. Original homesteads were all claimed along rivers. Land not on rivers (enormous bulk of land) was open range – not fenced, owned by the govt, and open to everyone. This area is a commons. Inevitable result is the tragedy of the commons.


(a) Argument against this theory – customary pressure and social pressure would prevent those on English com

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Guest BROWNer

yea, i'm studying too, or rather starting to study(3, monday, tues., wed.).

i'm very thankful i do not have a psychotic load like you. good luck bro:cool:

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Originally posted by BROWNer

yea, i'm studying too, or rather starting to study(3, monday, tues., wed.).

i'm very thankful i do not have a psychotic load like you. good luck bro:cool:


Thank you, good sir.

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Guest Ted Wakowski

I read all of that (twice). Pretty interesting stuff.

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Re: is it just me??


Originally posted by BackSeatBebe

is it just me...


or does studying make you really horny?!


:D :D :D


dork out with your books out...

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Re: Re: is it just me??


Originally posted by bathoræ

:D :D :D


dork out with your books out...






and pmb: damn! what?

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Originally posted by esp

im waaaaaaay too lazy to read that buisness :yuck: :sick: :twitch:


Couldn't have said it better myself, although I must admit I am somewhat curious as to what it is about, but oh well.

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Originally posted by E MARTYR

fucking a, that shit looks like a migrane.


you really have to know all that shit?


Yes - class 3's final is Monday; class 2's, Tuesday.

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good luck pmb.


I have been studing non stop since I woke up this morning. I figured that its time for a 12oz break. All of my classes are on tues and thurs (advising hookup)and I hate to wait till monday. Plus theres this party tonight so this is a self righteous sacrafice for beer and sex.



-mr. business

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holy fucking christ. i can't believe you actually are planning on knowing all that by tuesday/wednesday. i don't think i've ever taken that many notes COMBINED. good fucking luck.


sometimes i'm glad i'm a master bullshitter.

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PMB, what classes are those for? I think I may have to learn some of that for when I take the constitution test (tell me why I have to take it in college!?)

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<span style='color:black'>Yeah. Man. I read about half way into that first post an realized that if indeed i did read it all and retain it all, I would not be recieving a degree in what ever the hell all that was. So I gave up. Then I started to scroll down. There was more. I scrolled down for about 45 minutes saying things like "OHHH GODDDD. Shiiiiiiiiiiiiiiiiitttt. What the...?" etc.


Good luck to ya homey. I hope you are more motivated than i am. Well i supose so. I mean you did actually take the time to copy and paste all of this in here. Holler.</span>

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Guest im not witty
Originally posted by SteveAustin

This time of year really makes me glad....I'm not in school any more.




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