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Unformatted text preview: Exercise 9 Exercise 9
1. a. Has no affect. f. Strengthens.
b. Strengthens. g Weakens.
c. Weakens. h. Sa'engthcns.
d. Weakens. i. Strengthens
e. Strengthens. j. Weakens. 2. a. Strengthens. f. Strengthens.
b. Weakens. g. Has no affect.
c. Weakens. h. Weakens. d. Weekens. i. Weakens.
e. Strengthens. j. Strengthens. 3. a. Strengthens. f. Weakens. b. Has no affect. g. Strengthens.
c. Strengthens. h. Weakens.
d. Weakens. i. Weakens. e. Strengthens. j. Strengthens.
4. 3. Has no effect. f. Has no effect.
b. Weakens. g. Strengthens
c. Strengthens. h. Weakens. d. Weakens. i. Weakens
e. Strengthens. j. Strengthens.
5. a. Strengthens f. Strengthens.
b. Weakens. g. Weakens. e. Has no effect. h. Strengthens.
d. Weakens. i. Strengthens. e. Weakens. j. Strengthens. 6. a. Weakens. f. Has no effect.
b. Strengthens. g. Strengthens.
e. Weakens. h. Weakens. d. Weakens. i. Strengthens.
e. Weakens. j. Strengthens. 7. a. Weakens. f. Weakens.
b. Strengthens. g. Weakens.
c. Has no effect h. Strengthens.
d. Strengthens. i. Strengthens.
e. Strengthens. j. Weakens. 8. 9. 10. a. Weakens. f. Weakens. b. Strengthens. g. Weakens. c. Strengthens. h. Has no effect. d. Strengthens. i. Weakens. e. Weakens. j. Weakens. The central issue is whether Dr. Wacko's occupancy of Mica Peak was open, notorious. and hostile. For Dr. Wacko's argument, note the fact that every evening
for 20 years he could be seen climbing the road to Mica Peak, and every night he had
his equipment set up on the peak and his vehicle parked there. in open view of
anyone in the vicinity. Whether anyone actually saw him there is irrelevant. Such
occupation is more notorious than merely parking one's car in front of a house. as
Crick had done. The car could have been owned by someone other than Crick. Also. evidence of Dr. Waeko's nightly occupation for twenty years must have been
apparent during the day: weeds trampled down. footprints. tire marks. etc. After
rainy nights. these indications must have been even more apparent. Such indications
of occupancy are similar to Crick's mowing the lawn. F urthermore, Crick probably
worked during the day and actually occupied the house only at night. just as Dr.
Wacko occupied Mica Peak only at night. Lastly. unlike Raymond. who was gone 3
months of the year, Dr. Wacko occupied Mica Peak day in and day out. For Tom Bell's argument note the fact that Crick occupied urban property in open
view of thousands of people. Neighbors would have seen Crick come and go. and
some of them probably would have notiﬁed Hoskins. Because Mica Peak is
relatively remote and because Dr. Wacko was there only at night, no neighbors
would have been able to report Dr. Wacko's presence to Tom Bell. Also. the owner
of a house would be expected to enter it periodically and check for evidence of
occupancy. Such evidence would be obvious (clothes in the closet. dishes in the
sink. etc). Since Hoskins apparently did not do this. he/she apparently did not care
if the house was occupied. 0n the other hand. Mica Peak almost certainly stretches
over a much larger area than a house, and evidence of Dr. Wacko's occupancy would
be harder to detect. Even if Bell saw the tire marks. etc.. why should he think they
were anything other than evidence of people enjoying a weekend picnic? Finally.
even though Raymond set up a large tent on rural property and presumably left it
there during the day time, Raymond was refused title to the land. By leaving no
structures at all on Mica Peak during the day. Dr. Wacko's occupancy was even less
notorious than Raymond's. The fact that Raymond was gone for three months is
irrelevant because given the inaccessible condition of the land at this time. no one
would have seen Raymond occupying it even if he had chosen to stay. For Maxie's argument, concentrate on the similarities between a home and a car (a
car is an extended living space with heating, air conditioning. stereo. telephone, etc.).
the dissimilarities between a plane and a car (greater difficulty in controlling, ease of
crossing international borders. greater danger in operating. etc.). Also. people
outside US. borders are not accorded the same constitutional protections as people
inside. and a phone message normally suggests greater privacy than a radio message.
In addition. the teenagers parked in the lot were acting in plain view, and a telescope
only enhances ordinary sense perception (so there was no search). Maxie, on the 239 Exercise9 l2. other hand. was talking while speeding down the freeway. and was thus not acting in
plain view (in the same sense). and a radio receiver (used by the agents) does not
enhance ordinary sense perception. For the agents' argument. concentrate on the similarities between a car and a
plane (both are means of transportation. both can cross state lines. both are relatively
hard to keep track of. etc.). and the dissimilarities between a car or plane and a house
(houses do not move. so a search warrant can be obtained without the risk of a house
moving away in the mean time). Also, cell phones use radio transmittersjust like
planes, the cell phone message was received inside us. bordersjust as was the radio
message from the plane. and the cell phone message was received lnadvertently.just
as was the radio message from the plane and the image through the telescope (thus
making it impossible to plan ahead for a search warrant). Also. in a sense. Maxie
was acting in plain view: A lip reader traveling in an adjacent car might interpret his
message. Lastly. controlling illicit drugs is a high priority for the government. In support of the group. note the fact that the Gay Freedom Day parade involves
sexual expression just as Lester's paintings did. and Lester‘s First Amendment rights
were upheld. Indeed. the parade probably would have been less offensive than the
paintings because it presumably involved no nudity. Similar parades were "calm and
orderly.” if Lester's rights were upheld. then surely the group's rights should be
upheld too. Also. analogously to the Nazi group. the gay group's expression was in
the form of a parade. If the Nazi’s rights were upheld. then surely the gay’s should be
too. After all. Nazi activities led to the death of millions of innocent people during
World War II. If any deaths have resulted from gay activities, they were unintended
and they were only accidentally connected with the activity itself. Furthermore. the
gay parade is directly tied to the remediation of a severe social injustice. and
therefore First Amendment protections should surely be extended to it. Finally.
unlike the ﬁlm. the parade would not be erotic and would not motivate viewers to
engage in sexual activity they would not otherwise be disposed to engage in. By
holding a parade. the gays are not seeking converts but only the recognition of their
rights as human beings. In support of the police chief. note that the gay parade could
be said to promote the spread of AIDS just as the erotic ﬁlm would. The parade
would promote homosexual awareness and openness in homosexual expression. and
it would thus lead some people who are not openly homosexual to become so. Since
AIDS is spread by homosexual activity. the parade would spread AIDS. In contrast
to the Nazi parade, which involved political expression. the gay parade involves
sexual expression. The First Amendment is intended chiefly to protect political
expression. not sexual expression. Also unlike Lester’s art. which involved a
relatively limited area of park space. the parade will be large and will be seen by
hundreds or thousands of people. and will thus have a great inﬂuence. Also. Lester‘s
art involved heterosexual nudity and therefore could not be said to promote
homosexuality and the spread of AIDS. in favor of Isabel. note that constant noise is at least as disruptive as cold
temperatures. Without sleep. Isabel's efﬁciency at work would undoubtedly be
impaired. and thus her livelihood would be adversely aﬁ‘ected. Linder could at least
get some sleep by purchasing an electric blanket that would keep out the cold. but it
is doubtful that earplugs would be equally effective for Isabel. Also. Carolyn's 240 Exercise 9 decision not to enforce the noise clause in the lease was a free act on her pamjust as
was Garvin's decision not to provide heat. If Garvin was not permitted to collect
rent. then neither should Carolyn. In contrast, Quincy's decision to shut down the
elevator was probably mandated by necessary repairs. F urthermore, Fulton’s arthritis
was a condition peculiar to her. whereas hearing is something everybody has. Also.
when lsabel moved in. she had good reason to expect that the noise clause in the
lease would be enforced. Otherwise. why would the lease contain such a clause?
But when Fulton moved into the tenth floor apartment she had no reason to expect
that the elevator would be operating every single day. and if she could not climb the
stairs. she should not have taken the apartment Finally. there m reason to believe
that the elevator problem was temporary. whereas the noise problem might have
lasted for years. For Caroline. note that the lack of heat can have a direct impact on one’s physical
health. Without heat. Linder could have caught pneumonia. However, a little noise
has no such impact. Also. did lsabel ever talk to the owner of the stereo about
turning down the volume? Apartment living can be expected to involve the
inconvenience of noisy neighbors. and if lsabel did nothing to remedy the problem,
she arguably consented to it. Also. lsabel's problem with the noise was similar to
Fulton's problem with climbing ﬂights of stairs: they both mulled from the location
of their apartment within the building. and not with the building as a whole. Fulton
could have asked Quincy for a new apartment closer to the ground. and if she had
asked. she might have gotten one. instead, Fulton simply moved out. Similarly.
lsabel could have asked Caroline for a new apartment some distance from the loud
stereo. but instead shejust moved out. l3. For Liz's argument note that there were several events that intervened between the
car accident and the amputation: Marys being taken to the hospital. Mary's being
treated by doctors for bumps and bnrises, Mary's apparent mix-up with some other
patient scheduled for leg amputation, the doctors‘ failure to check Mary's proper
identity before operating. etc. Liz did not directly control any of these events. and
therefore she could not have foreseen them. Liz could not have foreseen what
hospital Mary would be taken to. the fact that Mary would be mixed up with another
patient. etc. Because Liz should not be held liable for an event utterly unforeseen to
her. she should not be liable for Marys amputated leg. The facts are similar to those
in Game v. Hum. where Gomez could not foresee the exact route that Hunt would
take when walking home. the fact that a worker would drop a brick. the fact that the
brick would strike Hunt. etc. The facts are dissimilar to those in Sacco v. Lane.
where Lane was in direct control over the flames in the barbecue, and it was those
very same ﬂames that spread to the houses. For Marys argument note that Liz initiated a chain of events that flowed
naturally from the car accident to the amputation. Once the car accident occurred. it
was foreseeable that Mary would be taken to the hospital. once Mary was in the
hospital it was foreseeable that mix-ups would occur (alter all, mix-ups occur in
hospitals every day). and given the nature of these mix-ups. it was foreseeable that
Mary's leg would be amputated. Granted. Liz might not have been able to foresee
each event in the chain. but once an event occurred. someone familiar with it could
have foreseen the next event. Therefore. given that each event was foreseeable by
someone—at least some hypothetical person-Liz should be held liable. The events 2-“ ...
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- Spring '10