9/25 book notes 68-76 FRAUD Fraud- misrepresentation main category- requirement of scienter 1) knowing or 2) reckless regard by the

representer Hornbook Basic elements: 1) false representations 2) fraudulently made 3) with the intention of inducing another to rely theron. If such representations 4) induce reliance 5) and the reliance is justified and 6) causes damages, the defendant is liable Scienter- actual moral guilt-defendant must have knowledge of the falsity of the representation In Derry v. Peek, false representation had to be made 1) knowingly 2) without belief in its truth 3) recklessly, careless. This allows more room for mistakes by sellers but less by sellers who confidently use information that is shaky. Materiality- plaintiff must show that misrepresentation had a significant tendency to influence him to rely on the misstatement Very close to CAUSATION elementsometimes that link is relaxed though, the difference being that materiality can relate to probability whereas causation cannot. Rationales- 1) equity- abusing responsibility of having knowledge- right to rely 2) efficiency of attaining information Morrison v. National Broadcasting Co. PP: NY Supreme Court, Appellate Division, 1965 1) does the case state a cause of action? 2) is the statute of limitations passed? NBC had Morrison on quiz show without his knowledge causing 1) harm to his good reputation and 2) deprivation of scholastic fellowships NBC charged with corrupt purposes outside of illegality This is not defamation even though harm is similar: not published. This is not negligence even though it bears some of its markings: risk of harm to plaintiff was known. Harm must be 1) intended 2) foreseeable or 3) natural consequence of wrong Amalgam of different causes of action: 1) defamation 2) deceit 3) injurious falsehood 4) negligence General damages > specific damages--- no way to ascertain specific damages here because it is a LACK of scholastic opportunity.

I: Whether a claim for fraud can be made if it is constituted by elements of multiple causes of action without fitting into one classic tort category. R: Fraud should be determined on the 1) purpose for which one lies, 2) the harm produced by the lie, 3) whether the harm was foreseeable or the natural consequence of the wrong and 4) the reliance of the victim on the lie. Breitel gives multiple elements for fraud: 1) defendants acts 2) reliance 3) harm sustained 1) purpose of lies 2) harm produced 3) foreseeable nature Court of Appeals (1967) eventually reverses decision- statute of limitation for defamation should apply

9/26 class notes Fraud Morrison I: Whether there is a cause of action where there is a contestant participating on a show that will make him appear as a cheater. (this seems weak) Defamation- Breitel argues against defamation focal question in this case: statute of limitations for defamation 1) defamation 2) deceit/fraud 3) Fraud elements: (THESE ELEMENTS RESTATED IN BOOK NOTES) 1) misrepresentation (could be nondisclosure) delivered with 2) scienter (culpability element of fraud)fraudulently made 3) material causes the plaintiff to rely on. Linked to causationlinks into the justifiability of reliance 4) intention that plaintiff relied 5) justifiably relied 6) Damage Tort of fraud or deceit has history- referring to that history- not defamation he says, not deceit he says, not negligence. Principle test for negligence: knew or should have known (latter the main negligence test). This doesnt quite fit into negligence category- couldnt prove that NBC intended harm. Prima facie tort Disinterested malevolence- Tuttle v. Buck- Holmes found in this case-just plain spite- Iago-esque Injurious falsehood doctrine- amorphous doctrine applied in cases derogatory about someone elses property five categories (negligence, prima facie, falsehood, defamation, deceit) Breitel has to come up tort to encapsulate case Why dont we build tort from what he said? (Called Morrison Tort) (REVIEW IMPORTANCE) Conduct --Intentional or reckless Foreseeable harm $ gain Unlawful

Breitel characterizes conduct- intentional harm without excuse or justificationbeyond prima facie tort -purposefully corrupt -vicious means -socially useless -unprivileged Why have we piled up these categories? To create signal to society- for actors (people who might do or not do something) and people involved in legal system Damages- whats the issue about damages? Cant prove special damages- general damages What is it that they have to intend in the same sense that Vosburg has to intend? Vosburg has to intend a kick that is unprivileged, unconsented- CONDUCT MUST BE OFFENSIVE- has to know in some sense that it was wrong- what sense? Going against norms- against rules of classroom (vosburg) or rules of conduct (garrett)there may be a link between intentionality of early torts regarding children and the conduct of NBC. Do we like idea of judge talking in civil suit about purposefully corrupt What we like as much as we can argue- objective standard- does this pass beyond that standard? You want something as stripped of moral judgment as you can get it.

FRONTIER TORTS DONT FIT NEATLY INTO TORT CATEGORIES

9/27 book notes 76-79 PROBLEM Does this fit into disinterested intent? Burns Jackson Miller Summit & Spitzer v. Lindner, NY Court of Appeals, 1983 Facts: Taylor Law does not 1) preempt rights of people injured by an unlawful strike to recover or 2) provide private right to sue for violation of its provisions. Curiano v. Cuozzi standard for prima facie tort: 1) intent. Infliction of harm 2) resulting in special damages 3) without excuse or justification and 4) by an act or series of acts that would otherwise be unlawful Unlawful acts might not be brought under prima facie torts because the traditional categories are there? Well, maybe, but prima facie was made so that the hardening of the categories didnt happen. Prima facie neither 1) catch all nor 2) needs to exclude unlawful acts Prima facie not allowed here because there is no evidence of disinterested malevolence R: Malevolence must be the sole motive for defendants otherwise lawful act. I: Whether a prima facie claim can constitute as a cause of action for an unlawful act when there is no sign of disinterested malevolence. 870 intentional if the conduct is generally culpable and not justifiable under the circumstances 3 prong test meant to unify tort categories 1) intentional 2) culpability 3) justifiability Answer to 2 in the notes: Liability should be imposed when 1) harm is 2) intentionally inflicted and the conduct is 3) generally culpable and 4) not justifiable.

9/27 class notes - Frontier Torts Problem: Theories: Prima facie tort theory Idea here is that school district cant win because it is not disinterested malevolence? 87 subpoenas meant to wound the school district- calculated to wound and cost school district Malevolent but not disinterested- reason why its not prima facie tort Abuse of process ---ulterior end-perfectly legal for A to subpoena B and perfectly legal to subpoena all 87 of them. Appropriate use in isolation. Question is whether they used subpoena for appropriate terms or another motivation to injure financially the school district. You need judicial construction of term ulterior- judge will have to make a decision. 870 (this is all really important)-Innonminate Tort-fallback tort Three basic elements to tort 1) intentional conduct 2) generally culpable 3) not justifiable. Culpability-mostly intentional torts for which minimal requirement -knowledge

of substantial certainty (also wanton and willful, etc.)

When the drafters put together 870 they had in mind something like that. Referred to three main headings: 1) intentional conduct 2) negligence and 3) strict liability--something that is at least negligent. Finding of some degree of fault. When we use the term fault, what are we talking about? Moral blame? How are we going to define generally culpable? Range of conduct that goes from intentional (desire/purpose down through negligence) How is court going to prove that what teachers did was generally culpable?

Theory of conspiracy- Burns, Jackson, Miller case used this- conspiracy in tort law is a concert or combination of persons who get together for a purpose of achieving an unlawful end. Alienation of Affection-brought by cheated on member against 3rd party for ending marriage

Public nuisance- interference with right common to general public- usually used in cases of pollution- sometimes used in cases involving global warming Burns Jackson Miller Summit & Spitzer v. Lindner, NY Court of Appeals, 1983 Question of who has standing to sue. Esau v. Jacob IIED? Not quite Fraud? Doesnt fit elements. Interference with contract- has to be 1) intentional and 2) improper Morrison tort

9/28 book notes False Arrest McIntosh v. Arkansas Rep. Party-Frank White Election Committee, US CoA, 8th Circuit District court (burden placed wrong) then to CoA McIntosh had past of civil protest and had threatened to give a speech at Whites luncheon. Public access area of a public building- officers lacked probable cause as it was a public hallway and McIntosh was not disorderly. Burden of proof had unfairly been placed on McIntosh by District Court ruling. He had to prove that they did NOT have probable cause, instead of other way around. Gibson concurring opinion- probable cause simply requires that an officer have enough facts or circumstances to justify a prudent person in believing that an offense is about to be committed. (how is this not a dissent? If probable cause exists, then false arrest cant, right?) 2 causes of action, one state-law claim of false arrest and imprisonment and one 1983 proceeding. I: Whether potential disorderly conduct is sufficient to establish probable cause for arrest under the laws of Arkansas. Tennessee v. Garner, SCOTUS, 1985 District Court ruled for Hymon. CoA reversed under 4th. SCOTUS affirmed CoA Garner a prowler trying to escape. Wright, officer on scene, reasonably sure he was unarmed. Hymon, another officer, shot him, believing that he would elude capture otherwise. Tennessee statute saying that deadly force can be used if criminal is trying to escape. 1983 for violation of his constitutional rights CoA says that killing of an escaping suspect is a seizure under 4th amendment.constitutional only if reasonable. They ruled that probable cause was lacking.. Competing social rationales. Liberty vs. social order. White says that use of deadly force frustrates the interest of the individual and of society in judicial determination of guilt and punishment

Tennessee unconstitutional unless some warning has been given and threats had been given by felon. OConnor dissent: serious and dangerous nature of residential burglaries should not allow court to say that Hymon did not have probable cause. I: Whether using deadly force constitutes a violation of the 4th amendment in cases where the alleged criminal is not armed and does not threaten the arresting official.

GENERALLY, laws in state court for false arrest: 1) severity of plaintiffs claimed offense 2) warrant 3) reasonable beliefs of the officeres.

9/28 class notes One exam advice point: Take hypo as it is given. False arrest (unlawful exercise of police authority that results in arrest)/False imprisonment Defense for (101)Problem: it is privileged. ---a defense of privilege, in this case is going to be probable cause- going to vary from state to state but something we should generally be familiar with- officer can arrest without a warrant for a felony (attempted rape is a felony) if the officer has probable cause to believe that arrestee is perpetrator. If youre going to arrest for a misdemeanor, you are going to have to show that it is 1) committed in your presence and 2) probable cause Garner: We have group of potential causes of action against officer. What is the issue in Garner? **(REALLY IMPORTANT HERE) CLASS WORKSHOPPED ISSUE: (Shapo says no case better to teach you importance of how you state the issue) Whether using deadly force on a fleeing subject after giving notice constitutes a violation of the 4th amendment in cases where the alleged criminal is not armed and does not threaten the arresting official. This is the majoritys issue. He emphasizes that there is no immediate threat. Alternative issue: Deadly Force- Fleeing felon suspect (OConnor emphasizes alleged felony. She emphasizes that he was told to halt.)- Night burglary. This is the Dissenting issue. MY ISSUE: Whether using deadly force constitutes a violation of the 4th amendment in cases where the alleged criminal is not armed and does not threaten the arresting official. (missing elements of fleeing and notice given) We have to ask about source of law- what were other common law theories that you might advance against officer- battery (defense as privileged) Maybe negligence could be a cause of action too (failure to exercise reasonable care under the circumstances) 1983- 4th focused on in this case- unreasonable searches and seizure -even a fatal shooting is a seizure in 4th amendment terms

If test is unreasonable, search and seizure- where do these opinions divide? Protection of liberty vs. enforcement of social order Normative- for these purposes, distinguished from descriptive in the sense that what is vs. shoulds or oughts NormativeJudicial Role-

Is it possible to make judgment on technical question of whether this is a reasonable search and seizure without being ideological about it? ----Is the majority announcing a per se rule (anytime you have fleeing unarmed suspect, even if there has been notice to halt and no immediate threat to halt, it is an unreasonable seizure to use deadly force)? We have to learn what are rules on selfdefense? What do rules appear to be on defense of property? Iowa farmer gets sick of breaking into outbuilding (Kunto). Per se rule comes against setting spring gun rule to protect property. Going back to Garner, is it possible to make per se conclusion or is it more nuanced? Shapo sees a real parallel between Garner and Kunto: majority saying per se that there is more rights in human life than in property. Burglary statitstic argument- OConnor called out a little bit with number manipulation McIntosh v. Arkansas Republican Party- Frank White Election Comm. Operative law in McIntosh- state tort law Arresting him for misdemeanor of disorderly conduct. To do that w/o warrant, need to have probable cause. 3 judges that differ in CoA- 1) burden of proof 2) no probable cause 3) yes probable cause Probable cause as important element in all arrest law False arrest and 4th amendment jurisprudence- is there a way to unify and simplify these in these cases? How can you translate technical law for a layperson and to rationalize it. Other issue: are judges capable of putting behind their ideology for decisions. Projects forward into discussion on negligence- when trying to determine basic rationales for judicial decisions- distinction between corrective justice (whats right or wrong between parties) and instrumentalism (not only look at whats right between the party but rather the lens of what the best results are for society. For example, minimizing crime).