04 April 2011

Selected Bad Precedents and Rules of Law

What rules of law (other than those in the U.S. Constitution) and court precedents, that remain good law, are on my list of the worst precedents and rules of law?  I supply the bad holdings only below, rather than presenting a more scholarly version that cites the case making that law in this post.

Criminal Justice

1.  Acquitted conduct may be considered when calculating a sentence under the U.S. Sentencing Guidelines, or in general, as a basis for a sentence by a judge following a jury verdict.

2. It is constitutional to try guilt or innocence for a death penalty crime before a "death qualified" jury.
3. The death penalty is permitted in felony-murder cases where the convicted defendant was not a trigger man and did not solicit a murder or conspire with the intent of causing a murder.

4. No imprisonment sentence for a recidivist felony offender, no matter how trivial the current offense, violates the 8th Amendment protection against cruel and unusual punishment.

5. There is no constitutional requirement that criminal sentences for clearly lesser crimes be no more severe than clearly greater crimes (e.g. child rape is often punishable by a shorter sentence than non-commercial possession of child pornography).

6. Photographs of lawful conduct can be criminal to produce and distribute (e.g. in child pornography cases involving adolescents above the age of consent engaged in consensual, non-commercial sex).

7. Neo-natal homicide by women in the throes of childbirth constitutes first degree murder (true in Colorado and in some other states).

8. Criminal defendants who have been convicted are not generally permitted to benefit from subsequent reductions in the sentence for the crime of conviction.

9. A decision of a criminal defendant to testify in his or her own defense opens the door to introduction of evidence of prior criminal convictions that would otherwise be inadmissible.  (Note that there is not a single alternative to this rule, but the rule as currently posed is problematic.)

10.  Plea bargain offers are not relevant in any legally binding way to the validity of a later sentence upon conviction.

11.  Acquittal of an offense in a state court does not trigger double jeopardy protections in a criminal prosecution by another state or the federal government (and likewise acquittal of a offense in a federal court does not trigger double jeopardy protections in state court).

12. Federal habeas corpus review is limited the violations of constitutional rights that took place through the conviction, even if after acquired evidence can establish innocence or cast substantial doubt on the accuracy of the verdict.

13. Forfeitures of rights in a criminal case as a result of the failure of court appointed counsel to act is not, per se, unconstitutional ineffective assistance of counsel.

14. The exclusionary rule applies to physical evidence obtained in violation of the 4th Amendment.  (In such cases, damage awards would be more appropriate.)

15. Defects in grand jury indictment process, or preliminary hearing process can constitute a basis for the reversal of a conviction in a criminal case.

16. Multiple offenses, not interrupted by a period of incarceration or a criminal proceeding, often lead to consecutive rather than concurrent sentences of imprisonment.

17.  State court criminal juries need not be unanimous as a matter of constitutional law.
Governmental Liability

1. Liability for civil rights violations is not vicarious. Employers of civil rights violators are only liable if affirmative misconduct is shown.
2. The 11th Amendment establishes a substantive principle of state sovereign immunity, rather than merely limiting venue in select types of lawsuits.

3. Qualified immunity for civil rights violations of constitutional rights that are not well established extends to all liability, rather than merely to liability for punitive damages.

4. Imprisonment as a result of a wrongful conviction does not give rise to liability under the takings clause of the due process clause of the 5th and 14th Amendments.

5. Judicial enforcement of a legal right does not constitute state action for civil rights action purposes.

Civil Procedure and Choice of Law

1.  A federal court complaint fails to state a claim in cases where an alleged civil liability arises from acts that only the alleged offender is in a position to know absent espionage or whistle-blowing for failure to establish that it is "plausible" that such secret action took place.

2.  A federal law counterclaim does not give rise to federal court jurisdiction in a civil action.

3.  Corporations not treated a residents of every state where they have a regular place of business for diversity jurisdiction purposes.

4.  Appeals from courts of inferior jurisdiction (at least in Colorado, New York, and some federal court contexts) are to the court of general jurisdiction rather than to the intermediate court of appeals.

5.  Default civil judgments cannot be set aside for mistake, inadvertence, surprise, execusible neglect, fraud, misrepresentation or other misconduct of an adverse party more than six months after the judgment is entered, even if no action is taken to enforce the judgment in that time period.  (Many defendants don't recognize that a default judgment has been entered or is a problem and have an incentive to do something about it, until it is enforced.)

6.  Judges are not permitted to resolve disputed issues of fact prior to trial in actions where the right to a jury trial has been waived.

7.  The right to a jury trial depends upon the classification of an action as arising in law or in equity, rather than expressly on facts such as the availability of money damages v. injunctive or declaratory relief, the availability of damages for non-economic damages, or allegations of fraud.

8.  Personal jurisdiction is available in defamation actions in forums other than the forum in which the allegedly defaming party resides, or was present when the defamatory statement was allegedly made by the defaming party.

9.  Personal jurisdiction is available in contract actions in forums other than the forum in which the allegedly breaching party resides, where the allegedly breaching party was present when executing the contract, where the contract provides that jurisdiction shall be available, or where the contract duties other than payment are to be performed (e.g. where the non-breaching party resides, or where contract negotiations took place).

10.  The U.S. Supreme Court and federal courts have jurisdiction to review disputes concerning the outcome of federal elections (i.e. U.S. House of Representatives, U.S. Senate, electoral college votes) made by state courts and by state and local governments, as opposed to confining these decisions exclusive to state courts and Congress.

Constitutional Law Other Than Individual Rights

1.  Treaties may be unilaterally repealed by an ordinary law enacted by Congress and are not generallly viewed as self-executing.

2.  The filibuster has the practical effect of imposing a sixty vote supermajority requirement on all legislation in the U.S. Senate for which a higher supermajority requirement is not imposed.
Tort and Environmental Law

1.  The CERCLA (superfund) liability exception for innocent property owners is not sufficiently narrow to protect innocent property owners from all liability in excess of forfeiture of the property and forfeiture any profit received from the property.

2.  There is no vicarious liability for medical malpractice.

3.  Warnings that it is foreseeable that an ordinary user of a product will not read are relevant to product liability.

4.  Ordinances requiring property owners to clear their sidewalks of snow do not give rise to negligence per se civil liability in Colorado.

Intellectual Property Law

1.  Intellectual property protection is available for images of publicly available buildings.

2.  Intellectual property protection is not per se unavailable for materials delivered voluntarily to an intended receipient on a non-commercial basis.

3.  Statutory damages are permitted in intellectual property actions in cases where the existence of a market for identical or closely comparable intellectual property and a calculation of attorneys' fees permits accurate determination of the damages actually suffered by a defendant.

4.  Stautory damages are determined per infringing work rather than per defendant.

5.  Injunctive relief is available for patent law violations even when the holder of the patent has known about the infringement and has failed to assert any rights until the economic impact of an injunction far exceeds the economic impact had the infringement been alleged when the infringement was first discovered, or when the patent holder is not engaged in the production of a competing product.  (In such cases, a court imposed accounting for profits on the basis of the licensing agreement that would have been made if the parties had negotiated a license should be imposed instead).

6. Intellectual property protection is available for public performance without modification of intellectual property made available for free, for example, via broadcast television or radio.

7. Copyrighted works take an extremely long time to enter the public domain, even if the owner has taken no action whatsoever, even a copyright registration, to assert copyright protection.


1. There is no general priority for trade creditors.

2.  It is not generally possible to cramdown a personal residence mortgage in bankruptcy.

3.  Replacement value, rather than the value of a debtor's assets to a creditor if obtained via a writ of execution, is used to value tangible personal property in bankruptcy.

4.  Default interest in excess of pre-default interest rates, late payment fees, and punitive damages have the same priority as general creditor claims as pre-default interest rates and principal claims.

5.  Exemptions from creditors in bankruptcy vary from state to state.

Trusts and Estates

1. Beneficiary designations supercede later executed probates wills.

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