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Welcome to the Deep Dive the 
show really engineered to cut 

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through all that information 
overload. 

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We want to deliver the crucial 
insights you need to truly grasp

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complex legal topics. 
Yeah, get right to the heart of 

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it. 
Exactly. 

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And today, we're taking on two 
real Titans of legal study, 

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property law and criminal law. 
These aren't just dense 

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subjects, they are absolutely 
foundational for anyone you know

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navigating law school exams. 
And of course, the ultimate 

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challenge, right? 
The bar exam. 

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Right, huge topic. 
A massive undertaking, 

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absolutely, but seeing how these
principles come alive and 

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practice well, that's incredibly
rewarding, I think. 

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That's precisely right, and you 
should think of this deep dive 

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as your focused strategic study 
session. 

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Our mission really is to give 
you a direct path to 

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understanding the intricate 
nuances, those key distinctions,

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and the essential facts all 
drawn from the source material 

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you've given us. 
OK, our goal isn't like rope 

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memorization. 
It's about equipping you with 

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the analytical tools you need to
be able to identify and dissect 

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those tricky fact patterns. 
The ones that always pop up on 

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exams. 
Exactly the ones that lead to 

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those deeply satisfying aha 
moments, those insights. 

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That's what truly translates 
into exam success. 

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Agreed. 
So what our game plan for this 

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deep dive? 
We've carved out a pretty clear 

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route for you. 
First, we're going to immerse 

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ourselves in the foundational 
concepts and, you know, the 

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practical applications of 
property law, the rights, the 

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estates, the whole fascinating 
world of transactions. 

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Got it. 
Property first. 

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Then we'll transition into the 
core principles of substantive 

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criminal law. 
We'll break down various crimes 

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and defenses, and finally, we'll
navigate the crucial procedural 

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safeguards in criminal procedure
with a special look in Tofford 

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that often debated and frankly 
highly nuanced area of 

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self-defense. 
OK, sounds like a solid plan. 

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Let's unpack this all. 
Right, let's kick things off 

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with property law. 
Now. 

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When most people think of 
property, their mind immediately

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goes to something tangible, 
right? 

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Like a house, a car, maybe a 
piece of land. 

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Sure, the physical stuff. 
But in the legal realm, property

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is so much more abstract and, 
well, honestly more interesting.

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Our sources really emphasize A 
fundamental idea. 

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Property isn't merely a physical
object, but rather a collection 

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of rights. 
It's best understood as what 

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legal scholars call a bundle of 
sticks, a metaphorical 

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collection of rights held by 
people concerning things. 

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That bundle of sticks analogy is
just incredibly powerful for 

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visualizing what property truly 
entails. 

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And trust me, it's a concept 
you'll see on every single 

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property exam. 
Each stick represents A distinct

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right. 
You have the right to 

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possession, which is, you know, 
the ability to physically 

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control the property. 
There's the right to transfer, 

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also known as alienation, 
meaning you can sell it, gift 

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it, or pass it on. 
You also have the right to use 

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your property as you see fit, 
and even to a certain extent, 

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the right to destroy it. 
But perhaps the most fundamental

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stick in that bundle, and one 
will immediately focus on is the

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right to exclude. 
This is often described as the 

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fundamental property right. 
I find that image so compelling 

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because it forces you to think 
beyond just the physical thing, 

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like how many of those sticks 
can actually be removed from 

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your bundle before, you know, no
longer have what we recognize as

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property. 
It's a great thought experiment.

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It really is for any law 
student, and it underlies so 

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many property disputes. 
This idea of the right to 

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exclude is fascinating because 
it implies property confers 

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exclusive sovereign control over
a thing, essentially rights in 

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R.E.M. against the world. 
What that means is your property

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right is enforceable against 
everyone. 

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That's a crucial point for the 
bar exam. 

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This absolute control against 
all others is reinforced in 

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classic cases. 
Think about Jacques V Steenburg 

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homes. 
The mobile home case. 

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Exactly. 
Here, a mobile home company 

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intentionally crossed a 
homeowner's land, despite being 

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expressly told not to, simply 
because it was a more 

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convenient. 
Route right? 

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Just easier for. 
Them and the court held that all

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trespass causes harm even 
without physical damage. 

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This wasn't about like a broken 
fence, it was about the 

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fundamental violation of the 
right to exclude. 

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So even if they didn't actually 
hurt anything. 

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It didn't matter. 
It established that nominal and 

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punitive damages were 
acceptable, powerfully 

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reinforcing the inviolability of
that right for your exam. 

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The real take away from Jacques 
is that the right to exclude is 

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so fundamental, even a harmless 
trespass demands a remedy. 

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It's not about the damage, it's 
about the dignity of ownership 

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itself. 
That's a powerful statement from

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the court, but then you have 
cases that seem to push back on 

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that absolute control, like him 
and V Pacific. 

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Air right, the airplane case. 
Yeah, this is where the old AD 

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column rule comes into play. 
The idea that if you own land, 

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you own to the heavens, into the
depths. 

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All the way up, all the way 
down. 

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Exactly. 
Yet in Hinman, the court 

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determined that property rights 
are not exclusive to the 

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airspace above a home, 
particularly due to a public 

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policy against injunctions that 
would disrupt air travel. 

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Makes sense practically. 
And the Supreme Court later 

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solidified this, stating that 
the navigable airspace is 

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federally controlled. 
So your air rights for practical

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purposes only go as far as you 
can use them. 

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What stands out here, I think, 
is that constant balancing act 

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between private rights and the 
public good. 

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Absolutely. 
Hinman is a clear illustration 

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of how private property rights 
can, and sometimes must yield to

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broader public policy 
objectives, especially for 

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things like infrastructure and 
commerce. 

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And this leads us directly to 
vital limitations on the right 

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to exclude that you must 
certainly know for your exams. 

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The Civil Rights Act of 1964, 
for instance, it explicitly 

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prohibits discrimination or 
segregation in places of public 

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accommodation. 
Your right to exclude cannot be 

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used to discriminate based on 
protected characteristics. 

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Period. 
And then the Americans with 

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Disabilities Act of 1990 further
expanded this It prohibits 

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discrimination by public 
accommodations and even requires

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new construction and alterations
in public and commercial 

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facilities to be accessible. 
Right, physical access 

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requirements. 
So while you have this 

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fundamental right to exclude, 
it's never truly absolute. 

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These statues embody a societal 
decision that certain rights, 

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like equality and access, are 
more fundamental than an owner's

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unrestricted control. 
Precisely. 

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And while criminal trespassing 
laws are a common legal method 

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to protect the right to exclude,
even those laws face pushback 

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and nuance, often reflecting 
evolving societal values about 

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public access versus private 
property. 

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OK, so from the tangible world 
of land and physical 

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possessions, let's make a leap 
to the intangible intellectual 

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property, or IP. 
This is a whole different beast,

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isn't it? 
And it's increasingly relevant 

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in our modern economy. 
Oh absolutely. 

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It's broadly defined as non 
tangible personal property, 

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specifically creations of the 
mind. 

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Things like works or inventions 
born from human creativity that 

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can be legally protected. 
And why protect them? 

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While the core reason these 
legal protections exist is 

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basically to encourage 
innovation by granting creators 

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temporary monopolies over their 
creations, give them an 

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incentive. 
And that encouragement comes in 

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different forms of protection, 
each with its own distinct 

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rules, which is exactly what 
you'll be tested on. 

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Definitely. 
First up, copyright. 

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This protects original works of 
authorship, which must be fixed 

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in any tangible medium of 
expression, whether published or

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unpublished. 
Think of novels, songs, 

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screenplays, architectural 
designs, even computer code. 

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So if you write a short story, 
can compose a piece of music, or

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even just snap a unique 
photograph, it's automatically 

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copyrighted the moment you put 
it down, written, recorded, or 

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captured. 
That's right, fixation is key. 

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You don't need to register it 
with the US Copyright Office, 

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but registered registration does
provide significant additional 

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enforcement rights, like the 
ability to sue for statutory 

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damages and attorneys fees, and 
it creates a public record of 

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your claim, so it's usually a 
good idea. 

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Makes sense. 
What rights do you get? 

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The owner of a copyright gets 
exclusive rights to reproduce 

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the work, prepare derivative 
works like, say, a movie 

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adaptation of a book, perform 
publicly and display publicly. 

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This protection typically lasts 
for the life of the author plus 

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70 years. 
That's a long time. 

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It is a substantial term 
designed to foster creative 

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endeavors. 
However, copyright has key 

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limitations you absolutely need 
to know. 

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It only prevents copying, not 
independent creation of an 

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identical work. 
OK. 

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And it also crucially protects 
the expression of an idea, not 

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the idea itself or facts or 
functional aspects. 

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That's the classic Bob's 
cocktail recipe example, right? 

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And it's a fantastic 
illustration of that 

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distinction. 
Exactly. 

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Explain that one. 
Well, if Bob copyrights his 

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specific expression of how to 
make a cocktail, his unique 

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phrasing may be the narrative of
way he writes the recipe he's 

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protected. 
But if Irma then uses her own 

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words to describe the exact same
process, the same ingredients, 

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in the same order, she hasn't 
infringed Bob's copyright 

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because she didn't copy his 
expression. 

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She just independently created 
her own expression of the same 

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underlying idea or facts. 
That's a crucial distinction for

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your exams. 
It truly is. 

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The threshold for protection 
under federal copyright law is 

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actually very low, requiring 
only a modicum of creativity. 

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Even small choices of 
arrangement or wording can meet 

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this. 
Good to know and defenses. 

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And don't forget the common 
defenses 1st Amendment 

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considerations, especially fair 
use for purposes like criticism,

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comment, news reporting, 
teaching, scholarship or 

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research, and parity, which 
often come into play in 

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infringement cases. 
OK, Next up, trademarks. 

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Right. 
These are any word, name, 

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symbol, or device used in 
commerce to indicate the source 

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of goods and distinguish them 
from others. 

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They're kind of a hybrid of 
state common law rights and 

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federal statutory rights. 
And the main point? 

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The core purpose here is to 
prevent consumer confusion. 

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Got it. 
So people know who made what. 

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This is all about source 
identification and protecting 

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the goodwill a business builds 
up. 

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Trademarks can be wordmarks like
the name Coca-Cola or its slogan

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It's the real Thing. 
Or they can be non word marks, 

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symbols, logos, colors, even 
unique fonts. 

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Think of the distinct Coca-Cola 
script. 

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It's iconic red color, that wave
design. 

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Or even the bottle shape. 
Exactly the distinctive shape of

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its bottle, which is a form of 
trade dress. 

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That specific bottle shape is so
iconic, it has adapted to 

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various materials over the 
years. 

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And beyond that, you have less 
traditional trademarks like 

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sounds, the famous Tarzan yell 
or the NBC chimes. 

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Really. 
Some rare and difficult to 

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register cents have even been 
granted protection and service 

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marks, meanwhile, designate the 
source of services rather than 

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goods, like a specific airlines 
logo. 

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So trademark law doesn't 
necessarily stop someone from 

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making an identical product, 
correct? 

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But it does stop them from using
your name or symbol in a way 

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that would confuse consumers 
about the source of that 

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product. 
Exactly, and the spectrum of 

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distinctiveness is crucial for 
register ability. 

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Marks range from generic, which 
are not registerable at all. 

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You can't call an Apple company.
Apples makes sense to highly 

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distinctive or arbitrary 
fanciful marks like Kodak for 

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cameras, and a significant risk 
for a trademark owner is that 

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their mark can become generic 
and lose protection. 

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Like what nearly happened with 
Band-Aid? 

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Precisely if the brand isn't 
diligently protected and the 

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public starts using it as the 
general name for the product 

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00:11:29,760 --> 00:11:30,360
type. 
OK. 

238
00:11:30,600 --> 00:11:32,320
And the third leg of the IP 
stool. 

239
00:11:32,520 --> 00:11:36,360
Finally, we arrive at patents. 
This grants an exclusive right 

240
00:11:36,360 --> 00:11:39,600
to exclude others from making, 
selling or using an invention 

241
00:11:39,600 --> 00:11:42,240
for 20 years from filing the 
application. 

242
00:11:42,280 --> 00:11:45,880
So it's a right to stop others? 
Exactly this is considered a 

243
00:11:45,880 --> 00:11:48,400
negative right. 
Unlike copyright, which is more 

244
00:11:48,400 --> 00:11:52,000
of a positive right to 
reproduce, patents are really 

245
00:11:52,000 --> 00:11:54,800
specific. 
Inventors choose precisely how 

246
00:11:54,800 --> 00:11:56,920
to write and what serves their 
best interest in their 

247
00:11:56,920 --> 00:12:00,400
application, often drafting 
claims very narrowly to ensure 

248
00:12:00,400 --> 00:12:03,440
they meet the rigorous 
requirements of novelty, utility

249
00:12:03,440 --> 00:12:05,200
and non obviousness. 
Got it. 

250
00:12:05,240 --> 00:12:09,520
OK, moving from creations of the
mind back to shared ownership 

251
00:12:09,520 --> 00:12:12,440
of, well, actual stuff. 
Let's explore Co ownership 

252
00:12:12,440 --> 00:12:13,640
estates. 
Right. 

253
00:12:13,880 --> 00:12:17,480
These define how multiple people
can simultaneously own a single 

254
00:12:17,480 --> 00:12:20,560
piece of real property. 
For your exam, pay close 

255
00:12:20,560 --> 00:12:22,840
attention to the distinctions 
between these forms. 

256
00:12:23,080 --> 00:12:25,560
It's prime testing ground. 
So what's the default? 

257
00:12:26,000 --> 00:12:28,080
The default form of Co 
ownership, if nothing else is 

258
00:12:28,080 --> 00:12:30,200
specified, is tenancy. 
In common. 

259
00:12:30,360 --> 00:12:33,360
Here each Co tenant has an 
undivided possessory interest, 

260
00:12:33,520 --> 00:12:36,240
meaning they can possess the 
whole property regardless of the

261
00:12:36,240 --> 00:12:39,200
size of their ownership share 
like 50% or 25%. 

262
00:12:39,360 --> 00:12:42,120
Undivided possession. 
OK, and what about when someone 

263
00:12:42,120 --> 00:12:45,040
dies? 
Crucially, there's no right of 

264
00:12:45,040 --> 00:12:47,680
survivorship. 
Ah, OK, big difference. 

265
00:12:48,080 --> 00:12:52,760
So if one Co tenant in a tenancy
in common dies, their interest 

266
00:12:52,760 --> 00:12:55,240
doesn't automatically go to the 
other Co tenants. 

267
00:12:55,520 --> 00:12:58,160
Instead, their interest is 
discernible, meaning their 

268
00:12:58,160 --> 00:12:59,760
specific share can be 
identified. 

269
00:13:00,160 --> 00:13:04,480
Divisible can be passed by will 
and transferable inter vivos, 

270
00:13:04,800 --> 00:13:07,760
meaning they can sell or gift 
their share during their life. 

271
00:13:08,080 --> 00:13:10,240
And can one person just. 
Get out. 

272
00:13:10,240 --> 00:13:12,480
Yes. 
Importantly, any Co tenant can 

273
00:13:12,480 --> 00:13:15,320
unilaterally sever their 
interest without the consent of 

274
00:13:15,320 --> 00:13:17,960
the others, turning it into a 
different form of ownership or 

275
00:13:17,960 --> 00:13:20,200
just selling their share. 
OK, what's next? 

276
00:13:20,200 --> 00:13:23,120
Next we have joint tenancy, 
which you can think of as 

277
00:13:23,120 --> 00:13:25,720
tenancy and common rights plus 
survivorship. 

278
00:13:25,960 --> 00:13:28,480
This is a critical distinction. 
Survivorship again. 

279
00:13:28,560 --> 00:13:30,920
Yes. 
At death, the deceased owner's 

280
00:13:30,920 --> 00:13:33,880
interest disappears and the 
surviving owner's or owner's 

281
00:13:33,880 --> 00:13:36,600
interest automatically expands 
to take full ownership. 

282
00:13:36,960 --> 00:13:39,080
So it avoids probate. 
Exactly. 

283
00:13:39,360 --> 00:13:42,040
This is often used by spouses or
business partners as an 

284
00:13:42,040 --> 00:13:45,160
alternative to a will because it
automatically bypasses probate, 

285
00:13:45,160 --> 00:13:48,000
simplifying asset transfer. 
But creating it is tricky, 

286
00:13:48,040 --> 00:13:49,480
right? 
The four unities. 

287
00:13:49,480 --> 00:13:51,760
Absolutely critical and 
frequently tested. 

288
00:13:52,240 --> 00:13:55,200
To create a joint tenancy, you 
must have what are known as the 

289
00:13:55,200 --> 00:13:57,440
four unities. 
Time. 

290
00:13:57,960 --> 00:14:01,320
All joint tenants must acquire 
their interest at the same time.

291
00:14:01,920 --> 00:14:04,320
Title. 
They must acquire it by the same

292
00:14:04,320 --> 00:14:08,720
instrument like a single deed. 
Interest They must have equal 

293
00:14:08,720 --> 00:14:11,320
shares and durations and 
possession. 

294
00:14:11,400 --> 00:14:14,360
They must have the right to 
possess the whole property just 

295
00:14:14,360 --> 00:14:16,520
like tenants in common. 
That straw man thing. 

296
00:14:16,560 --> 00:14:19,720
Yeah, historically there was a 
straw man workaround to satisfy 

297
00:14:19,720 --> 00:14:22,960
these unities when an owner 
wanted to create a joint tenancy

298
00:14:22,960 --> 00:14:24,640
with themselves and someone 
else. 

299
00:14:25,080 --> 00:14:27,960
But many states have eliminated 
the need for this legal fiction 

300
00:14:27,960 --> 00:14:30,280
by statute. 
You can often just deed it 

301
00:14:30,280 --> 00:14:31,720
directly now. 
Good to know. 

302
00:14:31,960 --> 00:14:34,120
Is there another type? 
Then there's tenancy by the 

303
00:14:34,120 --> 00:14:37,240
entirety, which is a special 
form of marital Co ownership. 

304
00:14:37,440 --> 00:14:39,640
Only married couples can hold 
property this way. 

305
00:14:39,640 --> 00:14:41,360
OK. 
How's it different from joint 

306
00:14:41,360 --> 00:14:43,440
tenancy? 
It shares many characteristics 

307
00:14:43,440 --> 00:14:46,640
with joint tenancy, including 
the requirement of the four 

308
00:14:46,640 --> 00:14:48,720
unities and the right of 
survivorship. 

309
00:14:49,440 --> 00:14:51,760
What makes it critically 
different is that it cannot 

310
00:14:51,760 --> 00:14:56,200
easily be severed unilaterally. 
Ah, so one spouse can't just 

311
00:14:56,200 --> 00:14:58,240
sell their half. 
Typically no. 

312
00:14:58,520 --> 00:15:02,360
It usually requires the consent 
of both spouses or the legal 

313
00:15:02,360 --> 00:15:05,200
ending of the marriage, such as 
through divorce or annulment. 

314
00:15:06,000 --> 00:15:09,280
This added protection means one 
spouse usually cannot convey 

315
00:15:09,280 --> 00:15:12,880
their interest to a third party 
or suffer individual creditor 

316
00:15:12,880 --> 00:15:15,160
liens without the other spouses 
consent. 

317
00:15:15,400 --> 00:15:17,680
It offers more protection to the
marital unit. 

318
00:15:17,880 --> 00:15:19,920
OK. 
Let's unpack this next big area 

319
00:15:19,960 --> 00:15:23,120
acquisition of property. 
This isn't just about buying a 

320
00:15:23,120 --> 00:15:25,360
house, is it? 
It goes back to the very basic 

321
00:15:25,360 --> 00:15:28,000
idea of first possession, which 
is really about establishing 

322
00:15:28,000 --> 00:15:30,280
control at base. 
Right, how do you get property 

323
00:15:30,280 --> 00:15:32,440
in the 1st place? 
A prime example, and one you'll 

324
00:15:32,440 --> 00:15:35,480
undoubtedly encounter in your 
studies, is the rule of capture.

325
00:15:35,560 --> 00:15:38,640
Pearson View post The Fox Hunt. 
The very one. 

326
00:15:38,880 --> 00:15:42,280
To achieve actual legal 
possession of a wild animal, one

327
00:15:42,280 --> 00:15:45,600
must kill or capture it or 
deprive it of liberty. 

328
00:15:46,080 --> 00:15:49,400
Legal possession can also be 
shown by mortal wounding plus 

329
00:15:49,400 --> 00:15:53,200
chase if it's clear the animal 
cannot escape, or by custom, 

330
00:15:53,240 --> 00:15:56,920
like in whaling, where using a 
Lance bomb that sinks into the 

331
00:15:56,920 --> 00:16:00,200
whale counts as possession even 
if the whale drifts away. 

332
00:16:00,640 --> 00:16:03,800
The key is actual physical 
control, or an imminent 

333
00:16:03,800 --> 00:16:05,880
likelihood of it. 
But then you have rare 

334
00:16:05,880 --> 00:16:10,240
exceptions like Papa V Hayashi, 
the baseball case involving 

335
00:16:10,520 --> 00:16:12,560
Barry Bond's home run ball. 
That's the one. 

336
00:16:12,600 --> 00:16:15,880
This case introduced the concept
of pre possessory interests. 

337
00:16:16,120 --> 00:16:18,960
Here, the court held that 
ownership, or at least a 

338
00:16:18,960 --> 00:16:22,240
superior claim, could be 
established if one was in the 

339
00:16:22,240 --> 00:16:24,440
process of bringing the baseball
under control when he was 

340
00:16:24,440 --> 00:16:26,360
stopped by the unlawful acts of 
others. 

341
00:16:26,360 --> 00:16:28,920
So like he almost had it but got
mobbed. 

342
00:16:29,000 --> 00:16:31,000
Exactly. 
It's an equitable claim to 

343
00:16:31,000 --> 00:16:33,560
possession where significant 
effort was put in and the 

344
00:16:33,560 --> 00:16:36,080
process was interrupted by 
outside interference. 

345
00:16:36,520 --> 00:16:39,400
It's an unusual situation where 
courts grant a possessory 

346
00:16:39,400 --> 00:16:42,360
interest even if the item isn't 
fully under physical control. 

347
00:16:42,520 --> 00:16:45,720
Very fact specific. 
OK, what about Rashian Soli? 

348
00:16:46,320 --> 00:16:50,480
Yes, rashiona soli, which 
literally means by reason of the

349
00:16:50,480 --> 00:16:53,400
soil. 
This rule states that wild 

350
00:16:53,400 --> 00:16:57,240
animals and natural resources 
captured on private land belong 

351
00:16:57,240 --> 00:17:00,400
to the landowner, not the captor
who might have trespassed. 

352
00:17:00,840 --> 00:17:02,680
So the landowner has the better 
claim. 

353
00:17:02,760 --> 00:17:04,800
Yes. 
It protects land owners 

354
00:17:04,800 --> 00:17:07,720
reasonable expectations and 
their right to take possession 

355
00:17:07,720 --> 00:17:10,440
of any wild animal that wanders 
onto their property. 

356
00:17:10,720 --> 00:17:13,440
It gives them a constructive 
possession simply by virtue of 

357
00:17:13,480 --> 00:17:15,520
owning the land. 
And what about things that are 

358
00:17:15,520 --> 00:17:18,960
just well found? 
That's where the concept of 

359
00:17:18,960 --> 00:17:22,319
relativity of title comes in. 
The idea that property title 

360
00:17:22,319 --> 00:17:24,880
isn't absolute, but relative to 
competing claims. 

361
00:17:24,880 --> 00:17:27,800
OK for lost property, property 
found where the true owner 

362
00:17:27,800 --> 00:17:30,560
likely didn't intend to set it 
down and isn't likely to find 

363
00:17:30,560 --> 00:17:32,560
it. 
The original owner still retains

364
00:17:32,560 --> 00:17:36,080
the best claim always. 
OK, true owner first, but what 

365
00:17:36,080 --> 00:17:38,680
about the Finder? 
The Finder of lost property, 

366
00:17:38,680 --> 00:17:41,760
upon taking possession, becomes 
the owner against the entire 

367
00:17:41,760 --> 00:17:44,680
world except the true owner. 
So it's a hierarchy that's 

368
00:17:44,680 --> 00:17:47,280
frequently tested true owner 
Finder the rest of the world. 

369
00:17:47,280 --> 00:17:50,280
Got it and treasure trove. 
A special type of found property

370
00:17:50,280 --> 00:17:53,640
is treasure trove money, gold or
silver intentionally placed 

371
00:17:53,640 --> 00:17:57,000
underground, found so long later
that the owner is likely dead or

372
00:17:57,000 --> 00:18:00,720
won't return. the US generally 
treats us like any other lost 

373
00:18:00,720 --> 00:18:03,920
property, granting it to the 
Finder subject to the true 

374
00:18:03,920 --> 00:18:07,360
owners claim. 
But historically in England it 

375
00:18:07,360 --> 00:18:09,840
belonged to the king. 
Different role there. 

376
00:18:09,840 --> 00:18:12,120
Here's where it gets really 
interesting and is, like you 

377
00:18:12,120 --> 00:18:15,080
said, a common ME topic. 
Adverse possession. 

378
00:18:16,040 --> 00:18:19,160
This is a powerful legal 
doctrine where a non owner can 

379
00:18:19,160 --> 00:18:23,360
acquire full legal title to land
by openly possessing it for a 

380
00:18:23,360 --> 00:18:27,600
long statutorily defined period 
under specific conditions. 

381
00:18:27,600 --> 00:18:29,760
Absolutely. 
For your exams, always remember 

382
00:18:29,760 --> 00:18:32,360
the acronym CAOE for the 
elements. 

383
00:18:32,480 --> 00:18:34,520
CHAOES. 
OK. 

384
00:18:34,560 --> 00:18:36,720
Break it down C. 
Continuous possession for the 

385
00:18:36,720 --> 00:18:39,520
statutory period. 
This means the possessor acts 

386
00:18:39,520 --> 00:18:42,080
like a true owner would 
consistent with the nature of 

387
00:18:42,080 --> 00:18:44,080
the property. 
It doesn't mean 204 seven, but 

388
00:18:44,080 --> 00:18:48,560
regular use hostile possession. 
This fundamentally means without

389
00:18:48,560 --> 00:18:51,120
the true owner's permission, 
it's adverse to the owner's 

390
00:18:51,120 --> 00:18:52,800
rights. 
Actual possession. 

391
00:18:52,800 --> 00:18:56,720
The adverse possessor is 
literally occupying and using 

392
00:18:56,720 --> 00:19:00,600
the land as a true owner would, 
not just occasionally visiting, 

393
00:19:01,080 --> 00:19:03,280
physically present, open and 
notorious. 

394
00:19:03,520 --> 00:19:06,080
The possession must be visible 
and obvious enough to put a 

395
00:19:06,080 --> 00:19:09,080
reasonably attentive true owner 
on notice that someone is 

396
00:19:09,080 --> 00:19:12,080
claiming their land exclusive 
possession. 

397
00:19:12,520 --> 00:19:15,200
The adverse possessor is not 
sharing the property with the 

398
00:19:15,200 --> 00:19:17,080
true owner or the general 
public. 

399
00:19:17,320 --> 00:19:19,240
They're possessing it against 
everyone. 

400
00:19:20,000 --> 00:19:23,640
Statutory period. 
The possession must last for the

401
00:19:23,640 --> 00:19:26,960
length of time required by the 
state statute, which varies 

402
00:19:26,960 --> 00:19:30,720
often 1015 or 20 years. 
That hostile element has crucial

403
00:19:30,720 --> 00:19:32,560
nuances for your exams, doesn't 
it? 

404
00:19:32,560 --> 00:19:34,840
Oh definitely. 
At its base, it means no 

405
00:19:34,840 --> 00:19:38,080
permission, but jurisdictions 
differ on the adverse possessors

406
00:19:38,080 --> 00:19:40,560
mental state. 
Some require good faith. 

407
00:19:40,720 --> 00:19:42,760
The possessor mistakenly 
believed they owned it. 

408
00:19:42,960 --> 00:19:44,600
Like an error in the D 
description. 

409
00:19:44,840 --> 00:19:47,120
Right. 
Others require bad faith. 

410
00:19:47,360 --> 00:19:50,040
They knew they didn't own it, 
but intended to claim it anyway.

411
00:19:50,160 --> 00:19:52,360
Sometimes called the aggressive 
Trespass review. 

412
00:19:52,960 --> 00:19:56,280
And some, which is the majority 
rule, consider the possessor's 

413
00:19:56,280 --> 00:19:59,080
mental state irrelevant. 
As long as there's no 

414
00:19:59,080 --> 00:20:02,000
permission, it's hostile. 
What about color of title? 

415
00:20:02,200 --> 00:20:05,240
Color of title means the adverse
possessors claim is based on a 

416
00:20:05,240 --> 00:20:08,360
written document like a deed, 
even if that document is 

417
00:20:08,360 --> 00:20:11,880
defective or invalid. 
While not always required for 

418
00:20:11,880 --> 00:20:15,080
AP, having color of title can 
sometimes make the process 

419
00:20:15,080 --> 00:20:18,440
easier, perhaps reduce the 
statutory period in some states,

420
00:20:18,640 --> 00:20:21,720
or allow for constructive 
adverse possession of the whole 

421
00:20:21,720 --> 00:20:25,280
parcel described in the faulty 
document, even if only part was 

422
00:20:25,280 --> 00:20:27,800
actually possessed. 
So how does someone actually get

423
00:20:27,800 --> 00:20:30,800
the title? 
Legally, acquiring title via 

424
00:20:30,800 --> 00:20:33,880
adverse possession happens 
through a quiet title action in 

425
00:20:33,880 --> 00:20:36,520
court. 
The adverse possessor sues to 

426
00:20:36,520 --> 00:20:38,400
get a judicial declaration of 
their ownership. 

427
00:20:38,600 --> 00:20:41,280
And it's a new title. 
Yes, it's important to 

428
00:20:41,280 --> 00:20:43,640
understand this isn't a transfer
of the existing title. 

429
00:20:43,920 --> 00:20:47,680
A new original title arises when
adverse possession is proven in 

430
00:20:47,680 --> 00:20:50,080
court. 
It wipes the slate clean in a 

431
00:20:50,080 --> 00:20:52,160
way. 
And tacking, what's that? 

432
00:20:52,360 --> 00:20:56,280
For satisfying the statutory 
period, tacking enables a 

433
00:20:56,280 --> 00:20:59,320
succession of adverse possessors
to combine their periods of 

434
00:20:59,320 --> 00:21:01,200
possession if they are in 
privity. 

435
00:21:01,280 --> 00:21:03,400
Privity meaning. 
Privity here generally means the

436
00:21:03,400 --> 00:21:06,760
prior possessor knowingly and 
intentionally transferred their 

437
00:21:06,760 --> 00:21:09,360
possessory interest to the 
subsequent possessor. 

438
00:21:09,680 --> 00:21:12,760
This typically occurs through a 
sale, gift, or inheritance. 

439
00:21:12,760 --> 00:21:15,040
You can't just have random 
squatters adding up time. 

440
00:21:15,320 --> 00:21:18,480
So if I buy a house and the 
previous owner was already 

441
00:21:18,480 --> 00:21:22,400
adversely possessing a strip of 
land next door for say 10 years 

442
00:21:22,680 --> 00:21:24,680
and the statute is 15 years. 
Right. 

443
00:21:24,680 --> 00:21:26,800
And you continue that possession
for another five years. 

444
00:21:26,800 --> 00:21:30,720
I can tack their ten years onto 
my five years to meet the 15 

445
00:21:30,720 --> 00:21:33,800
year requirement, assuming we 
meet all the other CIO ES 

446
00:21:33,840 --> 00:21:36,640
elements and there was privity 
between us regarding that strip.

447
00:21:36,640 --> 00:21:38,480
Exactly. 
So why does this doctrine even 

448
00:21:38,480 --> 00:21:41,080
exist? 
What's the policy behind adverse

449
00:21:41,080 --> 00:21:43,120
possession? 
Good question. 

450
00:21:43,920 --> 00:21:45,720
It seems like rewarding 
wrongdoing. 

451
00:21:45,840 --> 00:21:49,200
Well, the policies usually cited
are promoting the productive use

452
00:21:49,200 --> 00:21:53,280
of land, penalizing owners who 
sleep on their rights, providing

453
00:21:53,280 --> 00:21:55,960
fairness to long term 
possessors, especially those 

454
00:21:55,960 --> 00:21:59,040
acting in good faith, belief of 
ownership, and reducing 

455
00:21:59,040 --> 00:22:02,280
transaction costs by clearing up
old uncertain titles where 

456
00:22:02,280 --> 00:22:04,120
historical facts might be 
unclear. 

457
00:22:04,200 --> 00:22:06,280
It settles things eventually. 
Makes sense? 

458
00:22:07,000 --> 00:22:11,240
OK, let's move into 
conveyancing, the process of 

459
00:22:11,240 --> 00:22:14,480
selling real property. 
This involves a whole series of 

460
00:22:14,480 --> 00:22:16,840
steps, right? 
Each with legal implications. 

461
00:22:16,880 --> 00:22:19,000
Absolutely. 
It usually starts with the 

462
00:22:19,000 --> 00:22:22,160
purchase contract or agreement. 
This is the bedrock of the 

463
00:22:22,160 --> 00:22:25,120
transaction, outlining the 
price, what's included like 

464
00:22:25,120 --> 00:22:28,440
fixtures versus personal 
property, any easements, known 

465
00:22:28,440 --> 00:22:31,240
problems, contingencies. 
Like financing or inspection 

466
00:22:31,240 --> 00:22:33,400
contingencies? 
Precisely then a title 

467
00:22:33,400 --> 00:22:36,440
examination is performed. 
Someone, usually an attorney or 

468
00:22:36,440 --> 00:22:39,120
title company, searches the 
public records to ensure the 

469
00:22:39,120 --> 00:22:42,320
seller owns the property and 
that there are no hidden liens, 

470
00:22:42,320 --> 00:22:44,560
mortgages or other interests 
clouding the title. 

471
00:22:44,560 --> 00:22:47,560
OK, then inspection. 
Then comes the property 

472
00:22:47,560 --> 00:22:50,440
condition evaluation, typically 
through a professional home 

473
00:22:50,440 --> 00:22:53,120
inspection. 
This often gives the buyer a 

474
00:22:53,120 --> 00:22:55,960
window to back out or 
renegotiate the price if 

475
00:22:55,960 --> 00:22:58,840
significant, previously unknown 
problems are revealed. 

476
00:22:58,880 --> 00:23:01,560
And financing. 
After that the buyer typically 

477
00:23:01,560 --> 00:23:04,480
obtains financing. 
This involves steps like getting

478
00:23:04,480 --> 00:23:08,080
pre approval, the lender doing 
underwriting, figuring out the 

479
00:23:08,080 --> 00:23:11,000
down payment, maybe private 
mortgage insurance, PMI, 

480
00:23:11,360 --> 00:23:14,640
understanding the loan terms, 
interest rates, closing costs, 

481
00:23:14,640 --> 00:23:18,160
repayment penalties, the loan 
length, APR versus interest 

482
00:23:18,160 --> 00:23:19,160
rate. 
All that. 

483
00:23:19,160 --> 00:23:20,720
That's the details there. 
Definitely. 

484
00:23:21,400 --> 00:23:24,280
Once financing is secured, 
escrow is opened. 

485
00:23:24,560 --> 00:23:27,600
An escrow agent acts as a 
neutral third party to hold 

486
00:23:27,600 --> 00:23:30,760
documents and money. 
All necessary documents are 

487
00:23:30,760 --> 00:23:33,480
prepared like the deed, 
transferring ownership, the 

488
00:23:33,480 --> 00:23:36,200
mortgage, securing the loan, the
promissory note, the actual 

489
00:23:36,200 --> 00:23:38,920
promise to repay and title 
insurance policies. 

490
00:23:39,000 --> 00:23:42,640
And then the big day closing. 
The big moment is the closing, 

491
00:23:42,640 --> 00:23:45,320
where money and keys are 
exchanged, documents are signed 

492
00:23:45,320 --> 00:23:47,840
and legal ownership officially 
changes hands. 

493
00:23:48,160 --> 00:23:51,280
Finally, and crucially, the deed
and mortgage are immediately 

494
00:23:51,280 --> 00:23:53,640
recorded with the Local 
Government Recorder's Office. 

495
00:23:53,880 --> 00:23:57,640
Why is recording so important? 
Recording provides public notice

496
00:23:57,640 --> 00:24:00,640
of the new ownership and any 
security interests like the 

497
00:24:00,640 --> 00:24:03,040
mortgage. 
This protects the buyer and 

498
00:24:03,040 --> 00:24:05,720
lender against future claims by 
third parties. 

499
00:24:06,160 --> 00:24:09,080
It puts the world on notice. 
Essential to the purchase 

500
00:24:09,080 --> 00:24:11,360
contract itself is the Statute 
of Frauds. 

501
00:24:11,640 --> 00:24:13,280
You mentioned that for easements
too. 

502
00:24:13,360 --> 00:24:16,560
Yes, it applies broadly to 
interests in land. 

503
00:24:17,040 --> 00:24:20,040
Oral agreements to sell land are
generally unenforceable. 

504
00:24:20,280 --> 00:24:23,800
The contract must be in writing,
contain all essential terms, 

505
00:24:24,120 --> 00:24:27,320
parties, price, property 
description clearly identified 

506
00:24:27,560 --> 00:24:30,240
and be signed by the party 
against whom enforcement is 

507
00:24:30,240 --> 00:24:32,160
sought. 
And that property description 

508
00:24:32,160 --> 00:24:35,280
needs to be clear. 
Very clear using methods like a 

509
00:24:35,280 --> 00:24:38,720
government survey system like 
section Township range, a meats 

510
00:24:38,720 --> 00:24:41,760
and bounds description following
boundary lines and monuments, or

511
00:24:41,760 --> 00:24:44,680
a reference to a recorded 
subdivision map or plaque. 

512
00:24:44,960 --> 00:24:46,960
Ambiguity here can void the 
contract. 

513
00:24:47,280 --> 00:24:50,360
A key concept for buyers and a 
common exam question is 

514
00:24:50,360 --> 00:24:52,800
marketable title. 
What does that mean exactly? 

515
00:24:52,920 --> 00:24:56,520
Marketable title means the title
is reasonably free from defects 

516
00:24:56,520 --> 00:24:58,960
and there's no reasonable doubt 
about ownership that would 

517
00:24:58,960 --> 00:25:01,120
subject the buyer to a risk of 
litigation. 

518
00:25:01,400 --> 00:25:04,320
It's a title a prudent, informed
buyer would accept. 

519
00:25:04,480 --> 00:25:06,440
So what makes title 
unmarketable? 

520
00:25:06,920 --> 00:25:10,880
Examples of unmarketable title 
include significant encumbrances

521
00:25:10,880 --> 00:25:14,200
not mentioned in the contract, 
like an unrecorded mortgage or 

522
00:25:14,200 --> 00:25:18,280
easement that materially affects
the property's use or value, or 

523
00:25:18,280 --> 00:25:21,960
a defect in the chain of title 
or existing zoning violations. 

524
00:25:22,120 --> 00:25:24,120
But not all restrictions make it
unmarketable. 

525
00:25:24,120 --> 00:25:26,520
Correct. 
Things like general zoning 

526
00:25:26,520 --> 00:25:30,200
ordinances that apply broadly or
minor encumbrances that don't 

527
00:25:30,200 --> 00:25:34,200
significantly impair value or 
use typically don't make title 

528
00:25:34,200 --> 00:25:37,760
unmarketable unless they create 
reasonable doubt or substantial 

529
00:25:37,760 --> 00:25:40,040
impairment. 
For instance, not being able to 

530
00:25:40,040 --> 00:25:43,720
put up a six foot fence due to a
standard local ordinance usually

531
00:25:43,720 --> 00:25:46,480
doesn't affect marketability 
unless that was a specific 

532
00:25:46,480 --> 00:25:49,400
condition of the sale. 
Related to this insurable title,

533
00:25:49,680 --> 00:25:52,040
how's that different? 
It's a slightly lower standard 

534
00:25:52,040 --> 00:25:55,240
often used in contracts. 
Insurable title is simply a 

535
00:25:55,240 --> 00:25:57,760
title that a title insurance 
company would be willing to 

536
00:25:57,760 --> 00:26:01,640
insure at a normal rate. 
While not perfectly clear, it 

537
00:26:01,640 --> 00:26:04,840
essentially means the existing 
encumbrances, though they might 

538
00:26:04,840 --> 00:26:08,000
exist, don't prevent the buyer 
from getting title insurance, 

539
00:26:08,080 --> 00:26:10,080
providing A practical financial 
safeguard. 

540
00:26:10,560 --> 00:26:12,960
Marketable title is the higher 
standard. 

541
00:26:13,160 --> 00:26:15,240
OK. 
Then there's the duty to 

542
00:26:15,240 --> 00:26:17,600
disclose defects. 
How has that evolved? 

543
00:26:17,920 --> 00:26:21,480
Big changes here over time. 
The old common law approach, now

544
00:26:21,480 --> 00:26:24,040
a minority view followed. 
Caveat emptor. 

545
00:26:24,040 --> 00:26:27,240
Buyer beware. 
A seller was generally only 

546
00:26:27,240 --> 00:26:29,920
liable for affirmative 
misrepresentation, outright 

547
00:26:29,920 --> 00:26:33,000
lying, active concealment like 
painting over water damage right

548
00:26:33,000 --> 00:26:36,040
before showing, or failure to 
disclose only if a fiduciary 

549
00:26:36,040 --> 00:26:38,440
relationship existed. 
But that's not the case now 

550
00:26:38,440 --> 00:26:39,240
Most. 
Right. 

551
00:26:39,680 --> 00:26:42,480
The modern rule, which is the 
overwhelming majority approach 

552
00:26:42,480 --> 00:26:45,040
in the US and the one you should
assume applies unless told 

553
00:26:45,040 --> 00:26:48,280
otherwise, states that a seller 
is liable for failure to 

554
00:26:48,280 --> 00:26:51,960
disclose known defects that one 
materially affect the property 

555
00:26:51,960 --> 00:26:55,280
value. 
A&D are not known to or readily 

556
00:26:55,280 --> 00:26:57,880
discoverable by the buyer 
through reasonable inspection. 

557
00:26:57,920 --> 00:26:59,640
These are often called latent 
defects. 

558
00:26:59,640 --> 00:27:02,640
And what's material? 
We generally use an objective 

559
00:27:02,640 --> 00:27:05,280
approach. 
A defect is material if it 

560
00:27:05,280 --> 00:27:08,240
affects a reasonable person's 
decision to buy or significantly

561
00:27:08,240 --> 00:27:11,400
decreases the market value. 
Some jurisdictions, though 

562
00:27:11,400 --> 00:27:13,480
fewer, use a subjective 
approach. 

563
00:27:13,520 --> 00:27:17,000
Did it matter to this buyer or 
require specific statutory 

564
00:27:17,000 --> 00:27:20,000
disclosures like if there was a 
murder in the home or if it's in

565
00:27:20,000 --> 00:27:22,840
a flood zone? 
What about as IS clauses? 

566
00:27:22,840 --> 00:27:24,760
Do they get sellers off the 
hook? 

567
00:27:25,000 --> 00:27:27,600
Jurisdictions are split on 
whether these clauses shield 

568
00:27:27,600 --> 00:27:30,360
sellers from liability for non 
disclosure of latent material 

569
00:27:30,360 --> 00:27:32,880
defects. 
Some say yes, some say no, 

570
00:27:33,120 --> 00:27:35,480
arguing it undermines the duty 
to disclose. 

571
00:27:35,800 --> 00:27:39,400
However, crucially, no 
jurisdiction allows an AS IS 

572
00:27:39,400 --> 00:27:41,920
clause to shield a seller from 
liability for affirmative 

573
00:27:41,920 --> 00:27:46,280
misrepresentation. 
If you actively lie AS IS, won't

574
00:27:46,280 --> 00:27:47,640
protect you. 
Good to know. 

575
00:27:48,320 --> 00:27:52,000
Another important concept often 
relevant in sales is fixtures. 

576
00:27:52,000 --> 00:27:53,600
Define that for us. 
Sure. 

577
00:27:53,800 --> 00:27:57,000
Fixtures are goods, items of 
personal property that have 

578
00:27:57,000 --> 00:28:00,320
become so related to the real 
property so attached that an 

579
00:28:00,320 --> 00:28:02,680
interest in them arises under 
real property law. 

580
00:28:03,280 --> 00:28:05,480
Think of something that was 
movable but has been permanently

581
00:28:05,480 --> 00:28:08,560
attached or integrated into the 
real estate, like built in 

582
00:28:08,560 --> 00:28:11,160
cabinets, a furnace, or special 
lighting. 

583
00:28:11,560 --> 00:28:14,720
And whether an item is a fixture
determines if it conveys with 

584
00:28:14,720 --> 00:28:18,560
the property automatically in 
the sale unless excluded. 

585
00:28:18,640 --> 00:28:21,320
Exactly. 
Courts look at factors like the 

586
00:28:21,320 --> 00:28:24,920
degree of attachment, adaptation
to the use of the Realty, and 

587
00:28:24,920 --> 00:28:26,760
the intention of the party who 
attached it. 

588
00:28:27,000 --> 00:28:29,120
OK. 
For title assurance, besides the

589
00:28:29,120 --> 00:28:31,040
title search, you mentioned 
deeds and insurance. 

590
00:28:31,480 --> 00:28:33,200
Let's talk about the different 
types of deeds. 

591
00:28:33,480 --> 00:28:35,680
Right. 
A general warranty deed offers 

592
00:28:35,680 --> 00:28:38,880
the broadest protection the 
grantor warrants against all 

593
00:28:38,880 --> 00:28:41,600
defects in title, even those 
that arose before the grantor 

594
00:28:41,600 --> 00:28:44,640
owned the property. 
They're making six traditional 

595
00:28:44,640 --> 00:28:46,960
covenants about the title. 
That's the best for the buyer. 

596
00:28:47,160 --> 00:28:50,360
Definitely a special warranty 
deed is narrower. 

597
00:28:50,560 --> 00:28:54,080
The grantor warrants against 
defects only arising during the 

598
00:28:54,080 --> 00:28:56,800
grantor's period of ownership. 
They aren't promising about 

599
00:28:56,800 --> 00:28:58,000
things that happened before 
them. 

600
00:28:58,040 --> 00:28:59,160
OK. 
And the last one. 

601
00:28:59,320 --> 00:29:02,040
And a Quitclean deed provides no
warranties at all. 

602
00:29:02,200 --> 00:29:05,240
It simply transfers whatever 
interest the grantor has, if 

603
00:29:05,240 --> 00:29:07,440
any. 
If they have good title, you get

604
00:29:07,440 --> 00:29:09,920
good title. 
If they have nothing, you get 

605
00:29:09,920 --> 00:29:12,040
nothing. 
The grantee has no recourse 

606
00:29:12,040 --> 00:29:14,720
against the grantor under the 
deed if the title turns out to 

607
00:29:14,720 --> 00:29:16,480
be bad. 
Use those with caution then. 

608
00:29:16,880 --> 00:29:19,800
Generally yes, unless you know 
the title situation well. 

609
00:29:20,160 --> 00:29:23,360
Now, recording acts are crucial 
for establishing priority of 

610
00:29:23,360 --> 00:29:25,880
interests in land, especially 
when there are multiple 

611
00:29:25,880 --> 00:29:29,240
conveyances or liens regarding 
the same property, like if a 

612
00:29:29,240 --> 00:29:31,840
seller sells the same land to 
two different people. 

613
00:29:32,360 --> 00:29:34,200
Who wins? 
It depends on the state's 

614
00:29:34,200 --> 00:29:36,520
Recording Act. 
There are three types, and 

615
00:29:36,520 --> 00:29:38,640
they're highly tested. 
Race. 

616
00:29:38,920 --> 00:29:42,120
The first person to record their
deed wins, regardless of whether

617
00:29:42,120 --> 00:29:44,680
they knew about an earlier 
unrecorded conveyance. 

618
00:29:44,880 --> 00:29:48,160
Very rare. 
Now notice a later buyer who 

619
00:29:48,160 --> 00:29:52,120
buys without notice of a prior 
unrecorded interest wins. 

620
00:29:52,440 --> 00:29:55,280
Even if they record their D 
later than the first buyer. 

621
00:29:55,840 --> 00:29:59,440
Their status as a bona fide 
purchaser BFP without notice 

622
00:29:59,440 --> 00:30:00,920
protects them and. 
The third. 

623
00:30:01,400 --> 00:30:05,280
Race notice a later buyer wins 
only if they buy without notice 

624
00:30:05,360 --> 00:30:07,400
and D they record their deed 
first. 

625
00:30:08,040 --> 00:30:11,400
They must be both ABFP and win 
the race to the recorder's 

626
00:30:11,400 --> 00:30:13,360
office. 
This is the most common type. 

627
00:30:13,520 --> 00:30:16,520
You absolutely must be able to 
distinguish these and apply them

628
00:30:16,520 --> 00:30:17,760
to fact patterns. 
Got it. 

629
00:30:17,920 --> 00:30:20,880
Race notice. 
Race notice and methods of 

630
00:30:20,880 --> 00:30:22,680
assurance. 
Methods of assurance include a 

631
00:30:22,680 --> 00:30:25,760
title opinion, where an attorney
searches public records and 

632
00:30:25,760 --> 00:30:27,560
renders an opinion on the state 
of the title. 

633
00:30:27,960 --> 00:30:30,360
But this has limitations. 
It won't catch things outside 

634
00:30:30,360 --> 00:30:33,560
the public record like forged 
deeds, adverse possession claims

635
00:30:33,560 --> 00:30:36,160
or unrecorded easements. 
So more common is. 

636
00:30:36,160 --> 00:30:39,560
More commonly you have title 
insurance where a private 

637
00:30:39,560 --> 00:30:42,720
company insures the grantees 
title against specified defects,

638
00:30:42,960 --> 00:30:45,600
providing financial protection 
up to the policy amount if a 

639
00:30:45,600 --> 00:30:47,440
covered title problem arises 
later. 

640
00:30:47,920 --> 00:30:50,560
It doesn't guarantee perfect 
title, but it insures against 

641
00:30:50,560 --> 00:30:51,640
loss. 
OK. 

642
00:30:52,200 --> 00:30:54,320
The mortgage itself is a 
critical concept. 

643
00:30:54,520 --> 00:30:57,280
Remind us what it is. 
It's important to remember it's 

644
00:30:57,280 --> 00:31:00,440
not the money you borrow. 
The mortgage is the security 

645
00:31:00,440 --> 00:31:03,840
interest in the property that 
gives the lender the right to 

646
00:31:03,840 --> 00:31:06,760
have the property sold if the 
borrower defaults on the loan. 

647
00:31:06,840 --> 00:31:09,760
And the parties? 
The borrower is the mortgagor 

648
00:31:10,320 --> 00:31:12,760
gives the mortgage and the 
lender is the mortgage. 

649
00:31:12,760 --> 00:31:16,920
E receives the mortgage. 
Easy way to remember Mortgagor 

650
00:31:16,920 --> 00:31:21,240
has an O like borrower. 
Mortgage E has an E like lender.

651
00:31:21,840 --> 00:31:24,240
OK. 
And the theories title versus 

652
00:31:24,240 --> 00:31:26,440
lien? 
Right, there are two main legal 

653
00:31:26,440 --> 00:31:28,800
theories regarding mortgages, 
which can matter for things like

654
00:31:28,800 --> 00:31:31,080
joint tenancies. 
Title theory. 

655
00:31:31,160 --> 00:31:34,160
Minority View now says that 
legal title actually transfers 

656
00:31:34,160 --> 00:31:36,680
from the mortgagor to the 
mortgage until the loan is paid 

657
00:31:36,680 --> 00:31:38,880
off. 
This transfer can break a joint 

658
00:31:38,880 --> 00:31:41,760
tenancy by destroying the unity 
of title or interest than the 

659
00:31:41,800 --> 00:31:43,520
other. 
Lien theory, which is the 

660
00:31:43,520 --> 00:31:46,640
majority view, says the mortgage
is just a lien on the property, 

661
00:31:46,640 --> 00:31:48,560
a right to foreclose if 
necessary. 

662
00:31:48,880 --> 00:31:52,520
No title transfer occurs unless 
and until foreclosure happens. 

663
00:31:52,800 --> 00:31:55,560
In a lien theory, state granting
a mortgage does not sever a 

664
00:31:55,560 --> 00:31:58,320
joint tenancy. 
Are there alternatives to a 

665
00:31:58,320 --> 00:32:01,520
traditional mortgage? 
Yes, you might encounter 

666
00:32:01,520 --> 00:32:03,400
alternatives like a deed of 
trust. 

667
00:32:03,840 --> 00:32:06,880
Here. 
The borrower trustor gives a 

668
00:32:06,880 --> 00:32:10,200
deed to a neutral third party 
trustee who holds it for the 

669
00:32:10,200 --> 00:32:12,280
benefit of the lender 
beneficiary. 

670
00:32:12,960 --> 00:32:15,800
If the borrower defaults, the 
trustee can often sell the 

671
00:32:15,800 --> 00:32:18,720
property through a non judicial 
foreclosure process. 

672
00:32:18,720 --> 00:32:21,480
Simpler foreclosure often 
quicker and less expensive for 

673
00:32:21,480 --> 00:32:23,280
the lender than judicial 
foreclosure. 

674
00:32:23,960 --> 00:32:27,160
Another alternative is a land 
contract, sometimes called an 

675
00:32:27,160 --> 00:32:29,960
instalment land contract or 
contract for deed. 

676
00:32:30,640 --> 00:32:33,440
This is a form of seller 
financing, where the buyer takes

677
00:32:33,440 --> 00:32:36,560
possession and makes payments 
over time, but the seller keeps 

678
00:32:36,560 --> 00:32:39,000
legal title until the property 
is fully paid off. 

679
00:32:39,440 --> 00:32:42,320
If the buyer defaults, the 
remedies can be harsh, sometimes

680
00:32:42,320 --> 00:32:44,360
involving forfeiture of all 
payments made. 

681
00:32:44,360 --> 00:32:46,640
OK. 
After closing, as we mentioned, 

682
00:32:46,640 --> 00:32:49,200
the deed and mortgage are 
recorded for public notice. 

683
00:32:49,840 --> 00:32:50,960
Crucial. 
Absolutely. 

684
00:32:50,960 --> 00:32:53,160
Public notice and if things go 
South, there's foreclosure. 

685
00:32:53,160 --> 00:32:55,840
What types are there? 
Foreclosure can be judicial, 

686
00:32:56,000 --> 00:32:58,720
which requires the lender to 
file lawsuit and get a court 

687
00:32:58,720 --> 00:33:03,160
order to sell the property. 
Or it can be non judicial, where

688
00:33:03,160 --> 00:33:06,640
the mortgage or deed of trust 
document itself contains a power

689
00:33:06,640 --> 00:33:10,480
of sale clause permitting the 
lender or trustee to sell the 

690
00:33:10,480 --> 00:33:13,280
property with proper notice but 
without direct court 

691
00:33:13,280 --> 00:33:16,600
supervision. 
Both types require advance 

692
00:33:16,600 --> 00:33:19,000
notice to the borrower. 
What if the sale doesn't cover 

693
00:33:19,000 --> 00:33:22,280
the debt? 
If the foreclosure sale price is

694
00:33:22,280 --> 00:33:25,480
less than what's owed on the 
loan, the lender can often 

695
00:33:25,480 --> 00:33:28,720
pursue A deficiency judgment 
against a borrower personally 

696
00:33:28,720 --> 00:33:31,960
requiring them to repay the 
difference, although some states

697
00:33:31,960 --> 00:33:35,440
limit or prohibit deficiency 
judgments, especially after non 

698
00:33:35,440 --> 00:33:38,240
judicial foreclosures or on 
primary residences. 

699
00:33:38,240 --> 00:33:41,360
Can the borrower stop it? 
Before the foreclosure sale to a

700
00:33:41,360 --> 00:33:44,160
third party, the borrower 
usually has an equitable right 

701
00:33:44,160 --> 00:33:46,520
to redeem. 
This means they can pay the full

702
00:33:46,520 --> 00:33:50,400
outstanding mortgage amount plus
costs and get the property back 

703
00:33:50,400 --> 00:33:53,040
free of the mortgage. 
Some states also have a 

704
00:33:53,040 --> 00:33:55,640
statutory right of redemption 
after the sale for a limited 

705
00:33:55,640 --> 00:33:56,600
period. 
OK. 

706
00:33:56,680 --> 00:33:59,120
Huge topic. 
Let's transition from sales to 

707
00:33:59,120 --> 00:34:02,560
ongoing occupancy, landlord 
tenant relationships. 

708
00:34:03,440 --> 00:34:06,200
Understanding the types of 
tendencies is absolutely key for

709
00:34:06,200 --> 00:34:08,159
exams, right? 
Absolutely fundamental. 

710
00:34:08,159 --> 00:34:11,760
First, a term of years is a 
tendency for a fixed determined 

711
00:34:11,760 --> 00:34:14,639
period. 
Could be 6 months, a year, 99 

712
00:34:14,639 --> 00:34:16,760
years. 
It automatically terminates at 

713
00:34:16,760 --> 00:34:19,639
the end of the specified term 
without requiring notice from 

714
00:34:19,639 --> 00:34:21,960
either party. 
Got it fixed end date. 

715
00:34:21,960 --> 00:34:25,719
Then a periodic tendency repeats
for a set period, like month to 

716
00:34:25,719 --> 00:34:29,000
month or year to year. 
It renews automatically until 

717
00:34:29,000 --> 00:34:32,320
proper notice of termination is 
given by either party, usually 

718
00:34:32,320 --> 00:34:36,080
equivalent to the period itself.
For example, one month's notice 

719
00:34:36,080 --> 00:34:37,239
for a month to month. 
OK. 

720
00:34:37,440 --> 00:34:39,199
What else? 
Then there's tenancy at will. 

721
00:34:39,199 --> 00:34:42,440
This has no fixed duration and 
continues only as long as both 

722
00:34:42,440 --> 00:34:45,719
the landlord and tenant desire. 
It terminates at the will of 

723
00:34:45,760 --> 00:34:48,239
either party, although modern 
statutes often require 

724
00:34:48,239 --> 00:34:50,239
reasonable notice, typically 30 
days. 

725
00:34:50,239 --> 00:34:51,920
And last one, yeah, the 
holdover. 

726
00:34:52,159 --> 00:34:56,320
Exactly Tenancy at sufferance. 
Often called a holdover tenancy,

727
00:34:56,760 --> 00:35:00,160
this occurs when a tenant who is
rightfully in possession remains

728
00:35:00,160 --> 00:35:03,160
after the lease expires without 
the landlord's permission. 

729
00:35:03,840 --> 00:35:06,280
They're technically a 
trespasser, but the landlord has

730
00:35:06,280 --> 00:35:09,160
a crucial one time election. 
With the election. 

731
00:35:09,360 --> 00:35:12,960
The landlord can either evict 
the tenant as a trespasser, or 

732
00:35:12,960 --> 00:35:15,600
they can choose to hold the 
tenant to a new tenancy. 

733
00:35:16,240 --> 00:35:19,240
This usually creates a new 
periodic tenancy, typically 

734
00:35:19,240 --> 00:35:22,320
month to month by default, often
on the same terms as the 

735
00:35:22,320 --> 00:35:25,960
original lease except duration. 
The landlord has to choose one 

736
00:35:25,960 --> 00:35:28,440
or the other. 
OK, when selecting tenants, 

737
00:35:28,440 --> 00:35:31,680
landlords face important anti 
discrimination limitations, 

738
00:35:31,680 --> 00:35:33,280
right? 
Yes, very important. 

739
00:35:33,520 --> 00:35:37,840
The Civil Rights Act of 1866, 
Section 1982 offers broad 

740
00:35:37,840 --> 00:35:40,600
protection against racial 
discrimination in all property 

741
00:35:40,600 --> 00:35:43,320
transactions, including rentals.
And the main federal law. 

742
00:35:43,640 --> 00:35:47,760
More specifically, the Federal 
Fair Housing Act of 1968, FHA 

743
00:35:47,960 --> 00:35:49,440
covers most of the housing 
market. 

744
00:35:49,880 --> 00:35:53,200
It makes it unlawful to refuse 
to sell or rent, discriminate in

745
00:35:53,200 --> 00:35:56,680
terms or conditions, or publish 
discriminatory ads based on 

746
00:35:56,680 --> 00:36:01,360
race, color, religion, sex, 
familial status, having kids or 

747
00:36:01,360 --> 00:36:04,080
national origin. 
Handicapped, disability and 

748
00:36:04,080 --> 00:36:05,640
familial status were added 
later. 

749
00:36:05,800 --> 00:36:08,520
So you can't refuse to rent to 
someone just because they have 

750
00:36:08,520 --> 00:36:11,160
children? 
Generally no, unless it's 

751
00:36:11,160 --> 00:36:14,880
qualified senior housing. 
The FHA protection also includes

752
00:36:14,880 --> 00:36:17,560
refusing to permit reasonable 
modifications for handicapped 

753
00:36:17,560 --> 00:36:21,200
persons, like installing grab 
dars at the tenants own expense 

754
00:36:21,600 --> 00:36:24,440
or refusing to make reasonable 
accommodations and rules, 

755
00:36:24,440 --> 00:36:27,440
policies or services necessary 
to afford a handicapped person 

756
00:36:27,440 --> 00:36:31,000
equal opportunity to use and 
enjoy a dwelling, like allowing 

757
00:36:31,000 --> 00:36:33,240
a service animal despite a no 
pets policy. 

758
00:36:33,320 --> 00:36:35,080
Are there any exemptions to the 
FHA? 

759
00:36:35,320 --> 00:36:38,760
Yes, there are some narrow 
exemptions, like for single 

760
00:36:38,760 --> 00:36:42,520
family houses sold or rented by 
an owner who owns no more than 

761
00:36:42,520 --> 00:36:45,720
three such houses and doesn't 
use a real estate agent. 

762
00:36:46,240 --> 00:36:49,560
Or the Misses Murphy exemption 
for owner occupied dwellings 

763
00:36:49,560 --> 00:36:52,360
with no more than four families 
living independently. 

764
00:36:52,520 --> 00:36:54,640
Like renting out rooms in your 
own house. 

765
00:36:54,640 --> 00:36:56,520
But you can't advertise 
discrimination. 

766
00:36:56,680 --> 00:36:59,600
Crucially, these exemptions 
cannot be advertised in a 

767
00:36:59,600 --> 00:37:02,760
discriminatory way. 
Even if the rental itself is 

768
00:37:02,760 --> 00:37:06,360
exempt, the advertisement is 
not, and racial discrimination 

769
00:37:06,360 --> 00:37:10,960
is never allowed under the 1866 
Act even if an FHA exemption 

770
00:37:10,960 --> 00:37:13,560
applies. 
How is discrimination proven? 

771
00:37:13,920 --> 00:37:16,600
Proving discrimination can 
involve disparate treatment 

772
00:37:16,600 --> 00:37:19,560
claims which target intentional 
discrimination based on a 

773
00:37:19,560 --> 00:37:22,120
protected characteristic. 
I won't rent to you because you 

774
00:37:22,120 --> 00:37:23,880
are a protected class. 
OK, intentional. 

775
00:37:23,880 --> 00:37:26,160
Or it can involve disparate 
impact claims. 

776
00:37:26,600 --> 00:37:29,440
This is where a seemingly 
neutral policy in practice has a

777
00:37:29,520 --> 00:37:32,120
disproportionately harmful 
effect on a protected group, 

778
00:37:32,440 --> 00:37:34,400
even without proof of 
discriminatory intent. 

779
00:37:34,840 --> 00:37:38,400
For example, an occupancy limit 
based purely on number of people

780
00:37:38,600 --> 00:37:41,320
might disproportionately exclude
families with children. 

781
00:37:41,560 --> 00:37:45,120
Got it. 
What about ending the lease if 

782
00:37:45,120 --> 00:37:48,320
the landlord wants out? 
If the landlord wants out, they 

783
00:37:48,320 --> 00:37:50,680
can sell the property. 
They sell their reversion 

784
00:37:50,680 --> 00:37:53,560
interest, their right to regain 
possession at the end of the 

785
00:37:53,560 --> 00:37:56,080
lease term. 
The purchaser buys the property,

786
00:37:56,080 --> 00:37:59,360
subject to any existing leases. 
They become the new landlord. 

787
00:37:59,360 --> 00:38:02,840
And if the tenant wants out 
sublease versus assignment. 

788
00:38:02,880 --> 00:38:05,240
This is always tricky. 
It is, and it's absolutely 

789
00:38:05,240 --> 00:38:08,520
critical for exams, especially 
regarding previty, which 

790
00:38:08,520 --> 00:38:12,240
determines who can sue whom for 
rent or other lease obligations.

791
00:38:12,240 --> 00:38:15,680
OK, breakdown sublease first. 
In a sublease, the original 

792
00:38:15,680 --> 00:38:18,840
tenant, let's call them T1, 
grants an interest in the leased

793
00:38:18,840 --> 00:38:21,960
premises that is less than their
own entire remaining interest, 

794
00:38:22,000 --> 00:38:25,320
or they reserve a reversionary 
interest or gamble. 

795
00:38:25,600 --> 00:38:29,400
T1 has a year left on the lease 
and sublets to S for 11 months 

796
00:38:29,560 --> 00:38:32,160
or reserves a right to reenter. 
So it keeps something. 

797
00:38:32,160 --> 00:38:35,200
Right in an assignment, T1 
conveys the whole remaining term

798
00:38:35,200 --> 00:38:37,720
of their lease, leaving no 
interest or reversionary. 

799
00:38:37,720 --> 00:38:41,440
Right in T1T1 transfers their 
entire leasehold interest to the

800
00:38:41,440 --> 00:38:43,240
assignee. 
How do courts tell the 

801
00:38:43,240 --> 00:38:45,720
difference? 
The common law rule majority 

802
00:38:45,720 --> 00:38:49,080
view is objective. 
It focuses on the instrument 

803
00:38:49,080 --> 00:38:51,480
itself and what was actually 
transferred, not the party's 

804
00:38:51,480 --> 00:38:54,080
intent or what they called it. 
If it transfers the entire 

805
00:38:54,080 --> 00:38:55,760
remainder of the term, it's an 
assignment. 

806
00:38:56,360 --> 00:38:58,880
If for less than the entire 
term, it's a sublease. 

807
00:38:58,880 --> 00:39:01,520
And the privity relationships. 
This is key. 

808
00:39:01,560 --> 00:39:03,320
Absolutely essential for your 
exam. 

809
00:39:03,320 --> 00:39:06,040
Let's map it out with the 
original landlord LL and 

810
00:39:06,040 --> 00:39:09,240
original tenant T1. 
You start with both privity of a

811
00:39:09,240 --> 00:39:12,320
state based on their shared 
interest in the land and privity

812
00:39:12,320 --> 00:39:14,320
of contract based on the lease 
agreement. 

813
00:39:14,480 --> 00:39:19,080
OK, in an assignment, LLT, 1A, 
LLL, and T1 still have privity 

814
00:39:19,080 --> 00:39:22,080
of contract. 
T1 remains liable for the rent 

815
00:39:22,200 --> 00:39:25,680
unless released by novation. 
A specific agreement by LL to 

816
00:39:25,680 --> 00:39:29,120
release T1 and substitute ALL 
and the assignee. 

817
00:39:29,280 --> 00:39:32,200
A now have privity of estate 
because A holds the possessory 

818
00:39:32,200 --> 00:39:36,000
interest, so LL can sue A for 
rent and A is bound by covenants

819
00:39:36,000 --> 00:39:38,560
that run with the land. 
T1 and A have privity of 

820
00:39:38,560 --> 00:39:40,320
contract based on their 
assignment agreement. 

821
00:39:40,320 --> 00:39:43,640
OK, that makes sense. 
No sublease LLT 1-S. 

822
00:39:43,920 --> 00:39:48,840
In a sublease, LLT 1S, LL and T1
maintain both their original 

823
00:39:48,840 --> 00:39:51,000
privity of contract and privity 
of estate. 

824
00:39:51,360 --> 00:39:55,360
T1 is still the tenant in 
relation to LLLL and the sub 

825
00:39:55,360 --> 00:39:58,000
lease. 
OS have no privity of estate, no

826
00:39:58,000 --> 00:40:01,320
privity of contract. 
LL generally cannot sue S 

827
00:40:01,320 --> 00:40:03,360
directly for rent, though FS 
pays. 

828
00:40:03,360 --> 00:40:07,360
T1T1 and S have both privity of 
contract, their sublease 

829
00:40:07,360 --> 00:40:11,400
agreement and privity of estate.
T1 carved out a lesser estate 

830
00:40:11,400 --> 00:40:13,640
for S. 
That privity chart is gold for 

831
00:40:13,640 --> 00:40:15,600
exams. 
What about abandonment? 

832
00:40:15,800 --> 00:40:18,720
Abandonment occurs when a tenant
vacates the premises without 

833
00:40:18,720 --> 00:40:22,040
justification, without intent to
return and defaults on rent 

834
00:40:22,040 --> 00:40:24,200
payments. 
The landlord then has options 

835
00:40:24,200 --> 00:40:27,520
which vary slightly by state but
generally include like what? 

836
00:40:27,720 --> 00:40:29,880
They can accept the tenants 
surrender and terminate the 

837
00:40:29,880 --> 00:40:32,960
lease, relieving the tenant of 
future rent liability but 

838
00:40:32,960 --> 00:40:35,760
allowing the landlord to sue for
accrued rent and damages. 

839
00:40:35,960 --> 00:40:38,960
Or they can re let the premises 
on the tenants behalf and hold 

840
00:40:38,960 --> 00:40:40,880
the tenant liable for any 
deficiency. 

841
00:40:41,160 --> 00:40:43,760
Modern trend requires the 
landlord to mitigate damages by 

842
00:40:43,760 --> 00:40:46,880
trying to re let or in some 
places though less it's common 

843
00:40:46,880 --> 00:40:49,240
now, they could just leave the 
premises vacant and sue the 

844
00:40:49,240 --> 00:40:51,200
tenant for rent as it comes due.
OK. 

845
00:40:51,560 --> 00:40:53,400
Landlords also have key duties, 
right? 

846
00:40:53,840 --> 00:40:56,160
And tenants have remedies if 
they're breached. 

847
00:40:56,160 --> 00:40:58,880
Yes. 
First is the duty to deliver 

848
00:40:58,880 --> 00:41:00,720
possession. 
There are two competing rules 

849
00:41:00,720 --> 00:41:02,280
here. 
The English and American rules. 

850
00:41:02,480 --> 00:41:05,680
Exactly. 
The English rule majority states

851
00:41:05,680 --> 00:41:09,320
the landlord must deliver actual
physical possession as well as 

852
00:41:09,320 --> 00:41:13,960
legal possession, so the LL 
breaches if a prior holdover 

853
00:41:13,960 --> 00:41:17,200
tenant is still physically there
on the lease start date. 

854
00:41:17,360 --> 00:41:19,760
And the American rule. 
The American rule minority 

855
00:41:19,760 --> 00:41:22,640
states the landlord only has to 
provide legal possession, the 

856
00:41:22,640 --> 00:41:26,080
right to possess if a prior 
tenant is physically there. 

857
00:41:26,080 --> 00:41:29,480
It's the new tenants problem to 
evict them, not the landlord's 

858
00:41:29,480 --> 00:41:31,240
breach. 
You need to know which rule 

859
00:41:31,240 --> 00:41:34,320
applies. 
Another crucial one often tested

860
00:41:34,520 --> 00:41:36,280
is the covenant of quiet 
enjoyment. 

861
00:41:36,600 --> 00:41:38,800
What's that? 
This is an implied promise in 

862
00:41:38,800 --> 00:41:41,880
every lease, commercial and 
residential, that the landlord 

863
00:41:41,920 --> 00:41:44,600
or someone acting for them, or 
someone with paramount title 

864
00:41:44,880 --> 00:41:48,240
won't wrongfully interfere with 
the tenants possession or use 

865
00:41:48,240 --> 00:41:51,120
and enjoyment of the premises. 
How can it be breached? 

866
00:41:51,320 --> 00:41:54,680
It can be breached by actual 
eviction where the landlord 

867
00:41:54,920 --> 00:41:58,120
physically kicks the tenant out 
of all or even just part of the 

868
00:41:58,120 --> 00:42:01,400
premises. 
If actually evicted, the tenants

869
00:42:01,400 --> 00:42:03,880
obligation to pay rent ceases 
entirely. 

870
00:42:03,960 --> 00:42:04,880
OK. 
Or. 

871
00:42:04,880 --> 00:42:08,480
Or, more subtly, by constructive
eviction. 

872
00:42:08,960 --> 00:42:12,080
This occurs where the landlord's
substantial interference, either

873
00:42:12,080 --> 00:42:15,680
through an act like blocking 
access or a failure to act when 

874
00:42:15,680 --> 00:42:19,560
they have a duty like failing to
provide heat in winter, renders 

875
00:42:19,560 --> 00:42:22,720
the premises uninhabitable or 
unfit for the purpose of the 

876
00:42:22,720 --> 00:42:25,360
lease, effectively forcing the 
tenant to vacate. 

877
00:42:25,400 --> 00:42:27,600
Is that the Fidelity Mutual V 
Kaminsky case? 

878
00:42:28,240 --> 00:42:30,080
The doctor with the abortion 
protesters. 

879
00:42:30,080 --> 00:42:32,840
That's a classic example. 
The landlord failed to act 

880
00:42:32,840 --> 00:42:35,440
against disruptive protesters 
interfering with a tenant's 

881
00:42:35,440 --> 00:42:38,400
medical practice, and the 
interference was so substantial 

882
00:42:38,400 --> 00:42:40,160
it amounted to constructive 
eviction. 

883
00:42:40,200 --> 00:42:42,240
What does a tenant have to do 
for constructive eviction? 

884
00:42:42,280 --> 00:42:46,920
For constructive eviction, the 
tenant must typically one show 

885
00:42:46,920 --> 00:42:50,920
substantial interference, two 
give notice to the landlord of 

886
00:42:50,920 --> 00:42:54,720
the problem, 3 give the landlord
a reasonable opportunity to cure

887
00:42:54,720 --> 00:42:58,800
the problem, and critically, 4 
the tenant must actually vacate 

888
00:42:58,800 --> 00:43:02,000
the premises within a reasonable
time after the landlord fails to

889
00:43:02,000 --> 00:43:04,120
fix it. 
If they stay, they waive the 

890
00:43:04,120 --> 00:43:05,280
claim. 
Got it. 

891
00:43:05,800 --> 00:43:07,960
Vacate is key. 
What about habitability? 

892
00:43:08,680 --> 00:43:12,200
In residential leases, usually 
not commercial, there's also the

893
00:43:12,200 --> 00:43:14,040
implied warranty of 
habitability. 

894
00:43:14,040 --> 00:43:16,920
IWH. 
This means the premises must be 

895
00:43:16,920 --> 00:43:20,640
fit for basic human habitation, 
safe, clean and meeting basic 

896
00:43:20,640 --> 00:43:23,440
living standards, often tied to 
local housing codes. 

897
00:43:23,760 --> 00:43:25,280
This cannot be waived in the 
lease. 

898
00:43:25,440 --> 00:43:27,960
And if breached? 
A breach of the IWH allows the 

899
00:43:27,960 --> 00:43:30,720
tenants several remedies. 
Unlike quiet enjoyment where 

900
00:43:30,720 --> 00:43:33,920
they usually have to vacate, 
they can withhold rent using 

901
00:43:33,920 --> 00:43:36,880
various procedures, make 
necessary repairs themselves and

902
00:43:36,880 --> 00:43:39,560
deduct the cost from rent, 
repair and deduct, sue for 

903
00:43:39,560 --> 00:43:41,720
damages, or sometimes terminate 
the lease. 

904
00:43:41,760 --> 00:43:43,200
And the landlords can't 
retaliate. 

905
00:43:43,520 --> 00:43:45,880
Correct. 
Landlords cannot to engage in 

906
00:43:45,880 --> 00:43:48,920
retaliatory eviction, meaning 
they can't punish tenants by 

907
00:43:48,920 --> 00:43:53,080
raising rent, reducing services,
refusing to renew a lease, or 

908
00:43:53,080 --> 00:43:55,600
starting an eviction process 
simply because the tenant 

909
00:43:55,600 --> 00:43:58,720
exercised a legal right, like 
complaining about unsafe 

910
00:43:58,720 --> 00:44:02,200
conditions to a Housing 
Authority or utilizing their IWH

911
00:44:02,200 --> 00:44:04,520
remedies. 
There's usually a presumption of

912
00:44:04,520 --> 00:44:07,680
retaliation if the landlord acts
within a certain time frame 

913
00:44:07,680 --> 00:44:09,560
after the tenants protected 
activity. 

914
00:44:09,920 --> 00:44:13,120
OK, let's move on to the last 
big section of property land use

915
00:44:13,120 --> 00:44:15,480
controls, starting with 
nuisance. 

916
00:44:15,720 --> 00:44:18,840
Right Nuisance is a non 
trespassery interference with 

917
00:44:18,840 --> 00:44:22,360
the use and enjoyment of land. 
Trespass is about interfering 

918
00:44:22,360 --> 00:44:25,240
with the right to possess. 
Nuisance is about interfering 

919
00:44:25,240 --> 00:44:26,840
with the right to use and enjoy.
What? 

920
00:44:26,880 --> 00:44:29,000
Are the elements. 
For an exam, remember the key 

921
00:44:29,000 --> 00:44:31,200
elements. 
For a private nuisance, the 

922
00:44:31,200 --> 00:44:34,560
interference must be 1 
Intentional or negligent or 

923
00:44:34,560 --> 00:44:37,600
sometimes strict liability For 
abnormally dangerous activities,

924
00:44:38,200 --> 00:44:42,040
two non trespassery 3 
unreasonable and four cause 

925
00:44:42,040 --> 00:44:44,760
substantial interference with 
the plaintiffs use and enjoyment

926
00:44:44,760 --> 00:44:47,280
of their land. 
That unreasonable element seems 

927
00:44:47,280 --> 00:44:48,400
tricky. 
It is. 

928
00:44:48,640 --> 00:44:51,680
It typically involves balancing 
the utility of the defendant's 

929
00:44:51,680 --> 00:44:54,200
conduct. 
Is it socially valuable against 

930
00:44:54,200 --> 00:44:56,160
the gravity of the harm to the 
plaintiff? 

931
00:44:56,840 --> 00:45:00,760
Courts weigh various factors. 
Nuisances can be invasive, like 

932
00:45:00,760 --> 00:45:03,200
dust or noise. 
Right, like dust from a cement 

933
00:45:03,200 --> 00:45:07,280
factory invading a town. 
Or they can be non invasive, 

934
00:45:07,280 --> 00:45:10,640
such as in Puritan holding Covey
Hollischitz, where the mere 

935
00:45:10,640 --> 00:45:14,120
existence of a badly rundown 
derelict property was found to 

936
00:45:14,120 --> 00:45:17,120
be a nuisance, affecting the 
value and quiet enjoyment of 

937
00:45:17,120 --> 00:45:20,960
adjacent properties even without
physical invasion like visual 

938
00:45:20,960 --> 00:45:22,920
blight. 
And private versus public 

939
00:45:22,920 --> 00:45:24,680
nuisance. 
Private nuisance is a non 

940
00:45:24,680 --> 00:45:27,960
trespassery invasion of private 
use and enjoyment, usually 

941
00:45:27,960 --> 00:45:30,920
brought by private parties whose
specific property is affected. 

942
00:45:31,280 --> 00:45:33,760
The remedy often involves 
balancing the equities, which 

943
00:45:33,760 --> 00:45:36,880
might lead to damages rather 
than an injunction, especially 

944
00:45:36,880 --> 00:45:39,360
if the defendant's activity is 
socially useful, like the 

945
00:45:39,360 --> 00:45:41,920
example of $50,000 damages 
instead of shutting down a 

946
00:45:41,920 --> 00:45:44,200
$2,000,000 cement plant over 
dust. 

947
00:45:44,400 --> 00:45:45,840
OK. 
And public. 

948
00:45:45,920 --> 00:45:48,640
Public nuisance is an 
unreasonable interference with a

949
00:45:48,640 --> 00:45:51,240
right common to the general 
public, something that affects 

950
00:45:51,240 --> 00:45:54,560
health, safety, or welfare of 
the community as a whole, like 

951
00:45:54,560 --> 00:45:57,120
pollution of a river or blocking
a public highway. 

952
00:45:57,720 --> 00:45:59,960
These are typically brought by a
government entity, though a 

953
00:45:59,960 --> 00:46:03,120
private party can sometimes sue 
if they suffer special harm 

954
00:46:03,120 --> 00:46:05,760
different from the public. 
Next, easements. 

955
00:46:06,360 --> 00:46:09,840
What's the basic idea? 
An easement is a non possessory 

956
00:46:09,840 --> 00:46:13,400
right to use the land of another
for a specific limited purpose. 

957
00:46:13,720 --> 00:46:16,160
It's a right to use, not to 
possess. 

958
00:46:16,440 --> 00:46:19,520
Common bar exam topic. 
And the types a pertinent versus

959
00:46:19,520 --> 00:46:22,120
ingrows. 
Right, an easement A pertinent 

960
00:46:22,120 --> 00:46:24,720
benefits a particular piece of 
land called the dominant 

961
00:46:24,720 --> 00:46:28,880
tenement or dominant estate. 
It requires 2 distinct tracts, 

962
00:46:29,240 --> 00:46:31,560
the dominant parcel that 
benefits from the easement and 

963
00:46:31,560 --> 00:46:34,800
the Serbian parcel that is 
burdened by it, AG and easement 

964
00:46:34,800 --> 00:46:39,640
to cross lot B to reach lot A. 
It runs with the land, meaning 

965
00:46:39,640 --> 00:46:42,200
it passes automatically with 
transfers of the dominant 

966
00:46:42,200 --> 00:46:42,840
tenement. 
OK. 

967
00:46:43,160 --> 00:46:45,760
And. 
An easement in gross benefits a 

968
00:46:45,760 --> 00:46:49,240
specific person or entity 
personally, not a piece of land.

969
00:46:49,440 --> 00:46:52,200
There's a Serbian parcel, but no
dominant parcel. 

970
00:46:52,560 --> 00:46:55,680
Think of a utility company's 
right to run power lines across 

971
00:46:55,680 --> 00:46:58,160
your land. 
These may or may not be 

972
00:46:58,160 --> 00:47:00,520
transferable, depending on the 
purpose. 

973
00:47:00,840 --> 00:47:02,720
Commercial easements and gross 
usually are. 

974
00:47:02,720 --> 00:47:05,520
Personal ones often aren't. 
Affirmative versus negative 

975
00:47:05,520 --> 00:47:07,920
easements. 
An affirmative easement permits 

976
00:47:07,920 --> 00:47:10,480
the holder to perform an action 
on the servient land, like 

977
00:47:10,760 --> 00:47:12,680
walking across the path running 
pipes. 

978
00:47:13,040 --> 00:47:15,880
Most easements are affirmative. 
A negative easement is much 

979
00:47:15,880 --> 00:47:17,920
rarer. 
It entitles the holder to 

980
00:47:17,920 --> 00:47:20,200
prevent the servient owner from 
doing something on their own 

981
00:47:20,200 --> 00:47:22,280
Land. 
Historically limited to light 

982
00:47:22,320 --> 00:47:26,280
air support stream water flow. 
Modern versions often involve 

983
00:47:26,280 --> 00:47:28,760
covenants like conservation 
easements preventing 

984
00:47:28,760 --> 00:47:31,080
development. 
How are easements created? 

985
00:47:31,080 --> 00:47:32,880
This seems important. 
Very important. 

986
00:47:33,320 --> 00:47:36,920
A frequent test area. 
They can be created expressly, 

987
00:47:36,920 --> 00:47:39,840
meaning in writing. 
Usually a deed that complies 

988
00:47:39,840 --> 00:47:42,160
with the Statute of frauds so it
can be recorded. 

989
00:47:42,440 --> 00:47:45,480
This can be by grant selling or 
giving someone an easement 

990
00:47:45,480 --> 00:47:48,720
across your land, or by 
reservation selling your land. 

991
00:47:48,720 --> 00:47:51,160
About reserving an easement for 
yourself across the land you 

992
00:47:51,160 --> 00:47:53,280
just sold. 
OK, express in writing. 

993
00:47:53,480 --> 00:47:55,600
What else? 
They can also be created by 

994
00:47:55,600 --> 00:47:58,840
implication. 
This arises when land under 

995
00:47:58,840 --> 00:48:02,520
common ownership is divided and 
there was a use before severance

996
00:48:02,520 --> 00:48:05,720
that was apparent, continuous 
and reasonably necessary for the

997
00:48:05,720 --> 00:48:08,160
enjoyment of the dominant part. 
It's like the party should have 

998
00:48:08,160 --> 00:48:10,200
created an express easement but 
forgot. 

999
00:48:10,240 --> 00:48:11,520
Like a path that was always 
used. 

1000
00:48:11,520 --> 00:48:14,120
Exactly. 
Another way is prescription. 

1001
00:48:14,200 --> 00:48:17,320
This is essentially like adverse
possession, but for use rather 

1002
00:48:17,320 --> 00:48:20,320
than possession. 
Requires use that is continuous,

1003
00:48:20,320 --> 00:48:23,800
hostile, without permission, 
actual, open, and notorious for 

1004
00:48:23,800 --> 00:48:26,480
the statutory period. 
You get an easement to continue 

1005
00:48:26,480 --> 00:48:29,280
the use, not title. 
And the last one, necessity. 

1006
00:48:29,440 --> 00:48:33,000
By necessity, this typically 
arises when a common owner 

1007
00:48:33,000 --> 00:48:35,920
divides land in a way that 
leaves one parcel completely 

1008
00:48:35,920 --> 00:48:39,160
landlocked with no access to a 
public Rd. except over the other

1009
00:48:39,160 --> 00:48:41,760
parcel. 
Requires strict necessity at the

1010
00:48:41,760 --> 00:48:44,600
time of severance. 
Public policy disfavors 

1011
00:48:44,600 --> 00:48:47,360
landlocked parcels. 
How do easements end 

1012
00:48:48,040 --> 00:48:51,240
termination? 
Several ways release the 

1013
00:48:51,240 --> 00:48:53,920
easement holder gives it back to
the Serbian owner in writing 

1014
00:48:54,360 --> 00:48:56,680
merger. 
The dominant and Serbian tracks 

1015
00:48:56,680 --> 00:48:59,080
come under common ownership, 
extinguishing the need for the 

1016
00:48:59,080 --> 00:49:01,880
easement, adverse possession or 
prescription. 

1017
00:49:02,160 --> 00:49:04,840
The Serbian owner blocks the use
openly and hostile for the 

1018
00:49:04,840 --> 00:49:08,280
statutory period. 
Abandonment requires non use 

1019
00:49:08,280 --> 00:49:10,840
plus some affirmative act 
showing intent to permanently 

1020
00:49:10,840 --> 00:49:14,120
abandoned the easement or by 
estoppel, necessity ending or a 

1021
00:49:14,120 --> 00:49:16,160
condemnation of the Serbian 
estate. 

1022
00:49:16,160 --> 00:49:18,200
OK. 
Now covenants and servitudes. 

1023
00:49:18,360 --> 00:49:21,320
These are promises about land 
use that run with the land right

1024
00:49:21,640 --> 00:49:24,680
binding future owners. 
Exactly, there are promises 

1025
00:49:24,680 --> 00:49:27,320
concerning the use of land that 
are enforceable buyer against 

1026
00:49:27,320 --> 00:49:29,960
subsequent owners. 
We distinguish between real 

1027
00:49:30,120 --> 00:49:32,560
covenants and equitable 
servitudes based mainly on the 

1028
00:49:32,560 --> 00:49:35,320
remedy sought. 
Let's focus on real covenants. 

1029
00:49:35,480 --> 00:49:37,360
What's needed for the burden to 
run? 

1030
00:49:37,560 --> 00:49:40,680
A real covenant is a promise 
enforceable by money damages 

1031
00:49:40,680 --> 00:49:43,760
against a successor owner. 
For the burden of the covenant 

1032
00:49:43,760 --> 00:49:46,800
to run to a successor of the 
promissor, you generally need 

1033
00:49:47,280 --> 00:49:51,720
one writing statute of frauds 
compliant 2 intent by the 

1034
00:49:51,720 --> 00:49:54,840
original parties that the 
covenant by in successors 3 

1035
00:49:54,840 --> 00:49:57,880
privity of a state both 
horizontal and vertical 4 the 

1036
00:49:57,880 --> 00:50:01,040
covenant must touch and concern 
the land, affect the party's 

1037
00:50:01,040 --> 00:50:03,840
legal rights as land owners 
relating to the use, enjoyment, 

1038
00:50:03,840 --> 00:50:07,920
or value of the land and five 
the successor must have notice 

1039
00:50:07,920 --> 00:50:10,800
of the covenant when they took 
the land, actual inquiry or 

1040
00:50:10,800 --> 00:50:13,400
record notice. 
Horizontal and vertical privity 

1041
00:50:13,680 --> 00:50:16,080
remind us. 
Horizontal privity refers to the

1042
00:50:16,080 --> 00:50:18,640
relationship between the 
original covenanting parties. 

1043
00:50:18,640 --> 00:50:21,360
Grant or grantee, landlord, 
tenant, shared interest. 

1044
00:50:21,880 --> 00:50:24,280
Vertical privity refers to the 
relationship between an original

1045
00:50:24,280 --> 00:50:27,440
party and their successor. 
Successor must take the entire 

1046
00:50:27,440 --> 00:50:29,560
state. 
Like fee simple to fee simple. 

1047
00:50:29,760 --> 00:50:32,120
The requirements for the benefit
to run are often slightly 

1048
00:50:32,120 --> 00:50:35,200
looser, sometimes not requiring 
horizontal privity. 

1049
00:50:35,440 --> 00:50:38,800
Like that Ronaldo's promise 
example in the deed, a promise 

1050
00:50:38,800 --> 00:50:41,840
that Ronaldo and future owners 
must only use the property 

1051
00:50:41,840 --> 00:50:43,800
residentially. 
Exactly. 

1052
00:50:43,880 --> 00:50:46,880
If all the elements are met, a 
successor who breaches could be 

1053
00:50:46,880 --> 00:50:49,960
sued for damages by the party 
holding the benefit of the 

1054
00:50:49,960 --> 00:50:53,320
covenant for exams. 
Knowing the difference between a

1055
00:50:53,320 --> 00:50:56,360
real covenant, money damages, 
stricter privity and an 

1056
00:50:56,360 --> 00:51:00,040
equitable servitude, injunctive 
relief, often looser privity. 

1057
00:51:00,040 --> 00:51:02,560
Main focus on intent, touch and 
concern. 

1058
00:51:02,560 --> 00:51:07,120
Notice is absolutely key. 
OK, finally, in land use 

1059
00:51:07,120 --> 00:51:12,240
controls we must cover takings, 
the government's inherent power 

1060
00:51:12,240 --> 00:51:14,320
to take private property. 2 main
forms. 

1061
00:51:14,320 --> 00:51:16,360
Right right First is eminent 
domain. 

1062
00:51:16,520 --> 00:51:19,440
This is the state's direct 
action to seize private property

1063
00:51:19,440 --> 00:51:21,840
for public use through a formal 
legal process called 

1064
00:51:21,840 --> 00:51:24,160
condemnation. 
This can be for the whole 

1065
00:51:24,160 --> 00:51:27,520
property, a fee simple estate, 
or just a part or even just an 

1066
00:51:27,520 --> 00:51:29,440
easement. 
And they have to pay absolutely.

1067
00:51:29,800 --> 00:51:32,800
The Fifth Amendment applied to 
states fee, the 14th requires 

1068
00:51:32,800 --> 00:51:35,240
just compensation. 
This is generally defined as the

1069
00:51:35,240 --> 00:51:37,600
fair market value of the 
property at the time of the 

1070
00:51:37,600 --> 00:51:40,920
taking, often based on the whole
parcel rule, valuing the 

1071
00:51:40,920 --> 00:51:43,520
property as a whole, not 
potential subdivided lots. 

1072
00:51:43,880 --> 00:51:46,360
Economically whole mean. 
The government pays what makes 

1073
00:51:46,360 --> 00:51:50,560
the owner economically whole for
the property actually taken, but

1074
00:51:50,560 --> 00:51:53,840
importantly, it isn't obligated 
to pay for damages to adjacent 

1075
00:51:53,840 --> 00:51:56,520
tracks not taken. 
Severance damages might apply to

1076
00:51:56,520 --> 00:51:59,320
the remainder of a partially 
taken parcel though, or for 

1077
00:51:59,320 --> 00:52:02,160
business losses or sentimental 
value. 

1078
00:52:02,920 --> 00:52:06,200
And the time of plan often sets 
the compensation value, meaning 

1079
00:52:06,400 --> 00:52:09,720
the value is assessed based on 
market conditions before the 

1080
00:52:09,720 --> 00:52:13,400
government project artificially 
inflated values, not the value 

1081
00:52:13,400 --> 00:52:16,440
after the plan was announced. 
What does the government need to

1082
00:52:16,440 --> 00:52:20,520
show to exercise eminent domain?
They need both statutory 

1083
00:52:20,520 --> 00:52:22,600
authority. 
The government entity must have 

1084
00:52:22,600 --> 00:52:24,960
been delegated the power for 
this type of project and the 

1085
00:52:24,960 --> 00:52:28,080
taking must be reasonably 
necessary to complete it and 

1086
00:52:28,080 --> 00:52:31,400
constitutional compliance. 
It must be for a public use and 

1087
00:52:31,400 --> 00:52:34,640
involve just compensation. 
There are also administrative 

1088
00:52:34,640 --> 00:52:37,280
due process requirements, 
including proper notice to the 

1089
00:52:37,280 --> 00:52:39,240
owner and an opportunity for a 
hearing. 

1090
00:52:39,560 --> 00:52:42,440
Public use seems broad. 
Does it have to be literally 

1091
00:52:42,440 --> 00:52:44,400
used by the public? 
Not necessarily. 

1092
00:52:44,400 --> 00:52:47,360
It's been broadly interpreted by
the Supreme Court, especially in

1093
00:52:47,360 --> 00:52:51,360
the Kilo case, as meaning public
purpose or public advantage. 

1094
00:52:51,680 --> 00:52:54,840
So it can be private property 
transferred to public ownership,

1095
00:52:54,840 --> 00:52:58,160
like for a road or military 
base, or private property 

1096
00:52:58,160 --> 00:53:01,760
transferred to another private 
party, if that transfer serves a

1097
00:53:01,760 --> 00:53:05,120
public purpose, like economic 
development to revitalize a 

1098
00:53:05,120 --> 00:53:08,280
blighted area. 
Controversial very The policy 

1099
00:53:08,280 --> 00:53:11,080
reason often given for allowing 
this power even for private 

1100
00:53:11,080 --> 00:53:14,240
redevelopment is to overcome 
high transaction costs and 

1101
00:53:14,240 --> 00:53:17,480
potential holdouts by individual
owners that could prevent 

1102
00:53:17,480 --> 00:53:19,720
necessary or beneficial public 
projects. 

1103
00:53:19,720 --> 00:53:21,920
OK, that's direct taking. 
What's the other type? 

1104
00:53:22,200 --> 00:53:24,120
The other type is regulatory 
takings. 

1105
00:53:24,280 --> 00:53:27,040
This is where government 
regulation impacts a property's 

1106
00:53:27,040 --> 00:53:30,400
value or use so severely that 
it's considered tantamount to a 

1107
00:53:30,400 --> 00:53:32,760
physical appropriation. 
Even though the government 

1108
00:53:32,760 --> 00:53:35,720
hasn't physically seized 
anything, the owner still has 

1109
00:53:35,720 --> 00:53:38,040
title. 
But the regulation took away too

1110
00:53:38,040 --> 00:53:41,560
much economic value or use. 
How do courts decide if a 

1111
00:53:41,560 --> 00:53:44,240
regulation goes too far? 
It's complex. 

1112
00:53:44,240 --> 00:53:48,160
We distinguish between per SE 
regulatory takings, also called 

1113
00:53:48,160 --> 00:53:51,560
categorical takings, and partial
non categorical regulatory 

1114
00:53:51,560 --> 00:53:52,800
takings. 
Per SE 1st. 

1115
00:53:52,960 --> 00:53:56,960
Per SE regulatory takings are 
automatic takings. 2 main types 

1116
00:53:57,320 --> 00:54:01,400
1A regulation that causes a 
permanent physical occupation of

1117
00:54:01,400 --> 00:54:03,000
the property, no matter how 
small. 

1118
00:54:03,280 --> 00:54:06,040
This was famously established in
the Loreto case involving that 

1119
00:54:06,040 --> 00:54:09,120
tiny cable TV box installation 
required by law. 

1120
00:54:09,560 --> 00:54:13,120
That physical invasion, even 
minor, was a per SE taking 

1121
00:54:13,120 --> 00:54:14,960
requiring compensation. 
OK. 

1122
00:54:15,120 --> 00:54:17,040
Physical occupation. 
What's the other per SE type? 

1123
00:54:17,120 --> 00:54:20,600
2A regulation that deprives the 
owner of all economically 

1124
00:54:20,600 --> 00:54:22,840
beneficial or productive use of 
their land. 

1125
00:54:23,080 --> 00:54:26,280
A total wipeout unless the 
regulation is simply prohibiting

1126
00:54:26,280 --> 00:54:28,440
a use that was already 
considered a nuisance under 

1127
00:54:28,440 --> 00:54:30,480
background principles of state 
property law. 

1128
00:54:30,640 --> 00:54:32,920
That was the Lucas case. 
If it leaves no economic value, 

1129
00:54:32,920 --> 00:54:35,880
it's usually a person taking. 
And if it's not a per SE, taking

1130
00:54:36,160 --> 00:54:39,680
a partial wipeout. 
For partial or non categorical 

1131
00:54:39,680 --> 00:54:43,280
regulatory takings, where the 
regulation diminishes value but 

1132
00:54:43,280 --> 00:54:45,920
doesn't cause a physical 
occupation or a total economic 

1133
00:54:45,920 --> 00:54:49,520
wipeout, courts apply different,
more nuanced ad hoc balancing 

1134
00:54:49,520 --> 00:54:52,200
tests. 
The classic early test involved 

1135
00:54:52,200 --> 00:54:55,480
the pen Cole factors. 1. 
The diminution in value. 

1136
00:54:55,480 --> 00:54:57,960
How much did the regulation 
decrease the property value was 

1137
00:54:57,960 --> 00:55:00,880
its fear. 2 whether the 
regulation is preventing a 

1138
00:55:00,880 --> 00:55:03,480
public nuisance. 
If it is, it's much less likely 

1139
00:55:03,480 --> 00:55:05,960
to be a taking. 
And three, average reciprocity 

1140
00:55:05,960 --> 00:55:08,640
of advantage is the burden on 
this landowner offset by 

1141
00:55:08,640 --> 00:55:11,480
benefits they receive from the 
same regulation or the general. 

1142
00:55:11,480 --> 00:55:14,680
Scheme and the more modern Test.
Penn Central. 

1143
00:55:14,960 --> 00:55:16,560
Exactly. 
The Supreme Court later 

1144
00:55:16,560 --> 00:55:20,000
elaborated on this, particularly
in the landmark Penn Central 

1145
00:55:20,000 --> 00:55:22,040
case involving Grand Central 
Terminal. 

1146
00:55:22,560 --> 00:55:26,280
This test provides A broader ad 
hoc factual inquiry, looking 

1147
00:55:26,280 --> 00:55:30,360
primarily at three factors. 
One, the economic impact of the 

1148
00:55:30,360 --> 00:55:33,600
regulation on the claimant. 
How severe is the economic loss 

1149
00:55:33,600 --> 00:55:37,280
considering the property as a 
whole to the extent to which the

1150
00:55:37,280 --> 00:55:40,000
regulation interferes with 
distinct investment backed 

1151
00:55:40,000 --> 00:55:43,240
expectations, Could the owner 
reasonably anticipate this kind 

1152
00:55:43,240 --> 00:55:45,280
of regulation when they invested
in the property? 

1153
00:55:45,360 --> 00:55:48,320
And three, the character or 
nature of the government action.

1154
00:55:48,440 --> 00:55:51,600
Is it more like a physical 
invasion or just adjusting 

1155
00:55:51,640 --> 00:55:54,200
economic benefits and burdens? 
Does it serve a significant 

1156
00:55:54,200 --> 00:55:56,000
public purpose? 
Is there reciprocity of 

1157
00:55:56,000 --> 00:55:58,720
advantage? 
This last set of factors is 

1158
00:55:58,720 --> 00:56:01,440
critical on your bar exam for 
analyzing those complex 

1159
00:56:01,440 --> 00:56:03,920
regulatory taking scenarios 
where there isn't a clear 

1160
00:56:03,920 --> 00:56:05,640
physical occupation or total 
wipeout. 

1161
00:56:05,760 --> 00:56:07,280
You have to balance these 
factors. 

1162
00:56:07,280 --> 00:56:09,760
All right, let's shift gears now
completely from property rights 

1163
00:56:09,760 --> 00:56:12,760
and land use, big shift to the 
state's power to punish. 

1164
00:56:13,440 --> 00:56:16,240
We're diving into criminal law, 
starting with the general 

1165
00:56:16,240 --> 00:56:17,840
principles of criminal 
liability. 

1166
00:56:18,480 --> 00:56:21,960
One key distinction right off 
the bat from civil law, like 

1167
00:56:21,960 --> 00:56:25,600
toward or contract, is this 
concept of social harm. 

1168
00:56:25,920 --> 00:56:28,000
Right. 
In criminal law, the offense 

1169
00:56:28,000 --> 00:56:32,000
isn't just seen as harming a 
particular victim, it's seen as 

1170
00:56:32,000 --> 00:56:35,200
damaging society as a whole. 
So the state prosecutes. 

1171
00:56:35,200 --> 00:56:38,560
Exactly. 
Society, through its prosecutors

1172
00:56:38,560 --> 00:56:41,880
like the District Attorney or US
attorney, is responsible for 

1173
00:56:41,880 --> 00:56:44,560
bringing the case and carrying 
out the sentence representing 

1174
00:56:44,560 --> 00:56:47,840
the collective interest. 
OK, this leaves us directly to 

1175
00:56:47,840 --> 00:56:51,600
Mens Rea, the guilty mind, the 
mental state required. 

1176
00:56:51,920 --> 00:56:55,200
Crucial concept Mens Rea 
describes the expected mental 

1177
00:56:55,200 --> 00:56:57,320
state of the accused for a 
particular crime. 

1178
00:56:57,600 --> 00:57:00,360
We have general intent where 
awareness of the factors 

1179
00:57:00,360 --> 00:57:02,200
constituting the crime is 
sufficient. 

1180
00:57:02,680 --> 00:57:05,160
The intent can often be inferred
from the ACT itself. 

1181
00:57:05,360 --> 00:57:08,280
For example, for battery, you 
generally only need the intent 

1182
00:57:08,280 --> 00:57:10,680
to do the physical act that 
results in the harmful or 

1183
00:57:10,680 --> 00:57:12,960
offensive touching. 
OK, intent inferred from the 

1184
00:57:12,960 --> 00:57:15,880
ACT, but then there are specific
intent crimes and these are a 

1185
00:57:15,880 --> 00:57:18,000
big deal in the bar exam, right?
Huge deal. 

1186
00:57:18,240 --> 00:57:21,240
These require the prosecution to
prove the defendant performed 

1187
00:57:21,240 --> 00:57:25,000
the criminal act, actus Reus 
plus had a particular purpose or

1188
00:57:25,000 --> 00:57:28,960
objective in mind when doing it.
Crucially, this specific intent 

1189
00:57:28,960 --> 00:57:30,880
cannot be inferred from the ACT 
alone. 

1190
00:57:30,920 --> 00:57:33,400
The prosecution must prove it 
explicitly. 

1191
00:57:33,720 --> 00:57:35,880
Examples. 
Think of the inchoate crimes 

1192
00:57:35,880 --> 00:57:38,280
like conspiracy, attempt, and 
solicitation. 

1193
00:57:38,640 --> 00:57:41,400
They all require the specific 
intent to complete the 

1194
00:57:41,400 --> 00:57:44,720
underlying target crime. 
Other key examples include 

1195
00:57:45,040 --> 00:57:48,400
embezzlement, intent to defraud,
first degree premeditated 

1196
00:57:48,400 --> 00:57:51,200
murder, premeditation and 
deliberation require specific 

1197
00:57:51,200 --> 00:57:55,640
intent to kill, false pretenses,
intent to defraud, forgery, 

1198
00:57:55,680 --> 00:57:57,920
intent to defraud, larceny, and 
robbery. 

1199
00:57:58,000 --> 00:58:00,200
The specific intent to 
permanently deprive the owner. 

1200
00:58:00,520 --> 00:58:03,600
Assault when defined as an 
intent to commit battery and 

1201
00:58:03,600 --> 00:58:07,080
burglary Intent at the time of 
entry to commit a felony inside.

1202
00:58:07,360 --> 00:58:09,280
And certain defenses only apply 
to these. 

1203
00:58:09,320 --> 00:58:11,800
Exactly. 
Specific defenses like voluntary

1204
00:58:11,800 --> 00:58:16,000
intoxication or an unreasonable 
mistake of fact often apply only

1205
00:58:16,000 --> 00:58:18,680
to negate the specific intent 
element of these crimes. 

1206
00:58:18,880 --> 00:58:21,240
They generally don't work for 
general intent crimes. 

1207
00:58:21,280 --> 00:58:23,520
What about crimes with no mental
state? 

1208
00:58:23,960 --> 00:58:26,560
Right. 
In contrast, strict liability 

1209
00:58:26,560 --> 00:58:28,520
crimes require no Mens Rea at 
all. 

1210
00:58:28,880 --> 00:58:31,520
The ACT itself is sufficient for
conviction regardless of the 

1211
00:58:31,520 --> 00:58:33,160
defendant's mental state 
knowledge. 

1212
00:58:33,640 --> 00:58:36,600
Common examples include 
statutory rape, where mistake 

1213
00:58:36,600 --> 00:58:39,480
about the victim's age is 
usually no defense, or selling 

1214
00:58:39,480 --> 00:58:42,160
alcohol to minors. 
Public welfare offenses often 

1215
00:58:42,160 --> 00:58:44,680
fall here. 
And the Model Penal Code MPC, 

1216
00:58:44,920 --> 00:58:48,440
how does it handle Mens Rea? 
The Model Penal Code MPC, which 

1217
00:58:48,440 --> 00:58:51,200
is very influential in law 
schools and has been adopted in 

1218
00:58:51,200 --> 00:58:54,520
part by many states, tried to 
standardize culpability terms. 

1219
00:58:54,920 --> 00:58:57,960
It uses a hierarchy in 
descending order of culpability.

1220
00:58:58,160 --> 00:59:01,600
Purposely conscious objective to
engage in conduct or cause 

1221
00:59:01,600 --> 00:59:04,520
result. 
Knowingly aware that conduct is 

1222
00:59:04,520 --> 00:59:07,320
of a particular nature or that 
certain circumstances exist. 

1223
00:59:07,560 --> 00:59:09,080
A where result is practically 
certain. 

1224
00:59:09,440 --> 00:59:12,200
Recklessly conscious disregard 
of a substantial and 

1225
00:59:12,200 --> 00:59:15,080
unjustifiable risk. 
Negligently should have been 

1226
00:59:15,080 --> 00:59:17,560
aware of a substantial and 
unjustifiable risk, a gross 

1227
00:59:17,560 --> 00:59:21,440
deviation from reasonable care, 
and then, if specified, strict 

1228
00:59:21,440 --> 00:59:23,920
liability. 
And each element needs a mental 

1229
00:59:23,920 --> 00:59:26,800
state. 
Under the MPC, unless otherwise 

1230
00:59:26,800 --> 00:59:30,920
specified, the prosecution must 
prove at least recklessness for 

1231
00:59:30,920 --> 00:59:34,000
each material element of a crime
crime, and if a statute 

1232
00:59:34,000 --> 00:59:37,000
specifies one level of 
culpability, it often applies to

1233
00:59:37,000 --> 00:59:40,240
all material elements unless 
clearly stated otherwise. 

1234
00:59:40,440 --> 00:59:43,000
OK, causation is another 
critical principle, especially 

1235
00:59:43,000 --> 00:59:47,160
in result crimes, right where 
the law punishes a particular 

1236
00:59:47,280 --> 00:59:49,240
outcome like homicide or 
battery. 

1237
00:59:49,240 --> 00:59:51,920
Absolutely. 
The prosecution must prove the 

1238
00:59:51,920 --> 00:59:54,800
Defendants Act caused the 
prohibited result. 

1239
00:59:55,240 --> 00:59:56,480
There are two forms of 
causation. 

1240
00:59:56,480 --> 01:00:00,520
You need actual cause, often 
called but for causation, 

1241
01:00:00,920 --> 01:00:04,040
meaning but for the defendant's 
conduct, the result would not 

1242
01:00:04,040 --> 01:00:06,440
have occurred. 
If you remove the defendant's 

1243
01:00:06,440 --> 01:00:09,120
action from the chain of events,
the harmful outcome doesn't 

1244
01:00:09,120 --> 01:00:10,720
happen. 
Simple enough, usually. 

1245
01:00:10,760 --> 01:00:12,280
And the other one proximate 
cause? 

1246
01:00:12,280 --> 01:00:15,120
And then proximate cause, also 
called legal cause, which is 

1247
01:00:15,120 --> 01:00:18,400
often the trickier one on exams.
This is about fairness and 

1248
01:00:18,400 --> 01:00:21,040
foreseeability. 
It means the harmful result must

1249
01:00:21,040 --> 01:00:23,680
be a reasonably foreseeable 
consequence of the defendant's 

1250
01:00:23,680 --> 01:00:25,640
actions. 
Was the link between the act and

1251
01:00:25,640 --> 01:00:27,720
the result to remote or 
accidental? 

1252
01:00:27,720 --> 01:00:30,040
What about intervening acts? 
Exactly. 

1253
01:00:30,040 --> 01:00:33,120
Intervening acts, things that 
happen after the defendants act 

1254
01:00:33,120 --> 01:00:35,760
but before the harmful result, 
can break the chain of proximate

1255
01:00:35,760 --> 01:00:38,640
causation if they are 
unforeseeable and abnormal. 

1256
01:00:39,120 --> 01:00:42,200
For example, simple medical 
negligence and treating a victim

1257
01:00:42,200 --> 01:00:44,920
is often considered foreseeable 
and usually doesn't break the 

1258
01:00:44,920 --> 01:00:48,280
chain. 
But gross medical malpractice or

1259
01:00:48,280 --> 01:00:50,680
the victim doing something 
incredibly reckless and 

1260
01:00:50,680 --> 01:00:53,920
unforeseeable might break the 
chain, relieving the original 

1261
01:00:53,920 --> 01:00:56,280
defendant of liability for the 
ultimate result. 

1262
01:00:56,400 --> 01:00:59,440
It's very fact dependent. 
OK, now let's get into specific 

1263
01:00:59,440 --> 01:01:02,160
crimes against the person, 
starting with the most serious 

1264
01:01:03,280 --> 01:01:05,560
murder. 
At common law, murder is the 

1265
01:01:05,600 --> 01:01:08,080
unlawful killing of another 
human being with malice 

1266
01:01:08,080 --> 01:01:10,680
aforethought. 
Malice aforethought is the key 

1267
01:01:10,680 --> 01:01:13,400
legal term distinguishing murder
from manslaughter. 

1268
01:01:13,840 --> 01:01:17,040
And how is malice shown? 
Malice can be shown in four 

1269
01:01:17,040 --> 01:01:20,600
crucial ways for your exams. 
One intent to kill. 

1270
01:01:20,600 --> 01:01:24,760
This is express malice. 2 Intent
to inflict great bodily harm or 

1271
01:01:24,760 --> 01:01:28,280
serious bodily injury. 
This is implied malice. 3 

1272
01:01:28,480 --> 01:01:30,760
Depraved heart or extreme 
recklessness. 

1273
01:01:31,000 --> 01:01:33,760
Acting with reckless 
indifference to an unjustifiably

1274
01:01:33,760 --> 01:01:37,160
high risk to human life. 
Also implied malice, like 

1275
01:01:37,160 --> 01:01:41,400
shooting into a crowd. 4 Felony 
murder, A killing that occurs 

1276
01:01:41,400 --> 01:01:43,360
during the Commission or 
attempted Commission of an 

1277
01:01:43,360 --> 01:01:46,480
inherently dangerous felony. 
Also considered implied ballast.

1278
01:01:46,480 --> 01:01:49,200
And the degrees of murder, 1st 
and 2nd. 

1279
01:01:49,200 --> 01:01:50,960
Right. 
Most jurisdictions divide murder

1280
01:01:50,960 --> 01:01:54,080
into degrees by statute. 
First degree murder usually 

1281
01:01:54,080 --> 01:01:56,560
requires premeditation and 
deliberation, meaning the 

1282
01:01:56,560 --> 01:01:59,040
defendant thought about it 
beforehand, however briefly, and

1283
01:01:59,040 --> 01:02:01,600
acted deliberately. 
Or it occurs during certain 

1284
01:02:01,600 --> 01:02:05,520
statutorily enumerated dangerous
felonies like robbery, burglary,

1285
01:02:05,520 --> 01:02:08,120
arson, rape, kidnapping. 
This is the statutory felony 

1286
01:02:08,120 --> 01:02:09,960
murder rule. 
So planning makes it first 

1287
01:02:09,960 --> 01:02:12,000
degree. 
Some level of reflection, yes. 

1288
01:02:12,000 --> 01:02:14,440
Second degree murder typically 
covers all other murders 

1289
01:02:14,440 --> 01:02:16,880
committed with malice, like 
intent to inflict great bodily 

1290
01:02:16,880 --> 01:02:19,840
harm murders, depraved heart 
murders, and sometimes non 

1291
01:02:19,840 --> 01:02:22,920
enumerated felony murders. 
That felony murder rule is 

1292
01:02:22,920 --> 01:02:25,120
incredibly important and often 
tested. 

1293
01:02:25,320 --> 01:02:28,200
Remind us again. 
It applies when someone dies, 

1294
01:02:28,200 --> 01:02:30,880
even accidentally, during the 
Commission or attempted 

1295
01:02:30,880 --> 01:02:34,160
Commission of an inherently 
dangerous or statutorily listed 

1296
01:02:34,160 --> 01:02:37,000
felony. 
The intent required is only the 

1297
01:02:37,000 --> 01:02:38,840
intent to commit the underlying 
felony. 

1298
01:02:38,840 --> 01:02:41,800
The prosecution doesn't need to 
prove a separate intent to kill.

1299
01:02:42,040 --> 01:02:43,880
It transfers the intent. 
Harsh. 

1300
01:02:44,800 --> 01:02:47,800
Are there limits? 
Yes, there are limitations. 

1301
01:02:47,800 --> 01:02:50,200
The felony must usually be 
inherently dangerous. 

1302
01:02:50,200 --> 01:02:53,480
The killing must be in 
furtherance of the felony and be

1303
01:02:53,480 --> 01:02:56,560
aware of the red line rule or 
agency theory which is an 

1304
01:02:56,560 --> 01:02:58,720
important limitation adopted by 
many states. 

1305
01:02:59,320 --> 01:03:02,240
It excludes liability for felony
murder when the person killed is

1306
01:03:02,240 --> 01:03:05,000
a Co felon who was killed by a 
non felon like the victim 

1307
01:03:05,000 --> 01:03:07,560
resisting or the police. 
The idea is the felons weren't 

1308
01:03:07,560 --> 01:03:10,200
the agents of the death. 
And the MPC approach to murder. 

1309
01:03:10,440 --> 01:03:13,480
It's worth noting the MPC does 
not categorize murder by 

1310
01:03:13,480 --> 01:03:16,400
degrees. 
It defines murder more simply as

1311
01:03:16,400 --> 01:03:20,080
a killing committed purposely or
knowingly or recklessly under 

1312
01:03:20,080 --> 01:03:22,480
circumstances manifesting 
extreme indifference to the 

1313
01:03:22,480 --> 01:03:25,400
value of human life, which 
resembles depraved heart. 

1314
01:03:26,680 --> 01:03:29,640
Felony murder is presumed under 
the ladder if it occurs during 

1315
01:03:29,640 --> 01:03:33,200
certain felonies. 
OK, moving to a lesser homicide,

1316
01:03:33,720 --> 01:03:36,960
manslaughter. 
This is killing without malice 

1317
01:03:36,960 --> 01:03:39,920
aforethought. 
Right. 2 main types, voluntary 

1318
01:03:39,920 --> 01:03:42,880
and involuntary. 
Voluntary manslaughter is an 

1319
01:03:42,880 --> 01:03:46,000
intentional homicide that would 
be murder, but it's mitigated 

1320
01:03:46,000 --> 01:03:49,800
down due to heat of passion 
resulting from adequate legal 

1321
01:03:49,800 --> 01:03:51,920
provocation. 
Heat of passion meaning. 

1322
01:03:51,920 --> 01:03:54,840
Meaning the defendant acted 
under primal aggression or rage 

1323
01:03:54,840 --> 01:03:58,000
that overwhelmed their reason 
caused by a provocation that 

1324
01:03:58,000 --> 01:04:00,560
would arouse sudden and intense 
passion in the mind of an 

1325
01:04:00,560 --> 01:04:03,320
ordinary person. 
And crucially, there must not 

1326
01:04:03,320 --> 01:04:06,200
have been a cooling off period 
between the provocation and the 

1327
01:04:06,200 --> 01:04:07,760
killing. 
So it has to be immediate. 

1328
01:04:07,960 --> 01:04:10,640
Essentially, yes. 
The provocation must be 

1329
01:04:10,640 --> 01:04:12,840
adequate. 
Historically, things like 

1330
01:04:12,840 --> 01:04:16,600
aggravated assault, mutual 
combat, serious crime against 

1331
01:04:16,600 --> 01:04:20,000
relatives, sometimes adultery, 
the killing must happen in the 

1332
01:04:20,000 --> 01:04:23,320
heat of passion caused by it. 
There must not have been 

1333
01:04:23,320 --> 01:04:26,520
sufficient time for a reasonable
person to cool off, and the 

1334
01:04:26,520 --> 01:04:28,840
defendant must not have actually
cooled off. 

1335
01:04:29,520 --> 01:04:32,240
A classic example of someone 
immediately killing their spouse

1336
01:04:32,240 --> 01:04:34,520
and rival upon finding them in 
bed together. 

1337
01:04:34,680 --> 01:04:38,320
That immediate enraged reaction?
What about involuntary 

1338
01:04:38,320 --> 01:04:40,960
manslaughter? 
Involuntary manslaughter covers 

1339
01:04:40,960 --> 01:04:44,480
unintentional killings. 
It usually involves either 1 

1340
01:04:44,480 --> 01:04:47,400
criminal negligence, a gross 
deviation from reasonable care 

1341
01:04:47,400 --> 01:04:50,480
causing death, or two a killing 
during the Commission of an 

1342
01:04:50,480 --> 01:04:53,480
unlawful act that is not a 
felony qualifying for felony 

1343
01:04:53,480 --> 01:04:55,720
murder, the misdemeanor 
manslaughter rule. 

1344
01:04:55,760 --> 01:04:58,760
OK, Assault and Battery are 
often paired, but they're 

1345
01:04:58,760 --> 01:05:00,920
distinct times. 
Let's start with battery. 

1346
01:05:01,000 --> 01:05:04,400
Right battery is simply the 
unlawful application of force to

1347
01:05:04,400 --> 01:05:07,640
the person of another, resulting
in either bodily harm or an 

1348
01:05:07,640 --> 01:05:10,560
offensive touching. 
No actual injury is required. 

1349
01:05:10,880 --> 01:05:13,920
Contact alone suffices if it's 
considered offensive to a 

1350
01:05:13,920 --> 01:05:15,960
reasonable person. 
And it can be aggravated. 

1351
01:05:16,200 --> 01:05:19,880
Yes, battery can be aggravated 
if committed with a deadly 

1352
01:05:19,880 --> 01:05:23,240
weapon or if it results in 
serious bodily injury or 

1353
01:05:23,240 --> 01:05:26,760
disfigurement, or if directed at
certain categories of victims 

1354
01:05:26,760 --> 01:05:30,680
like police officers, children 
or the elderly, or sometimes if 

1355
01:05:30,680 --> 01:05:33,240
done with the intent to commit 
another serious crime like 

1356
01:05:33,240 --> 01:05:36,080
murder or rape. 
Aggravated battery carries 

1357
01:05:36,080 --> 01:05:38,000
higher penalties. 
Assault than is. 

1358
01:05:38,160 --> 01:05:40,440
Assault has two common 
definitions depending on the 

1359
01:05:40,440 --> 01:05:43,040
jurisdiction. 
It's either one, an attempted 

1360
01:05:43,040 --> 01:05:46,320
battery for G swinging a punch 
and missing, which requires the 

1361
01:05:46,320 --> 01:05:51,160
specific intent to commit 
battery, or two, the intentional

1362
01:05:51,160 --> 01:05:54,640
placing of another in reasonable
apprehension of imminent bodily 

1363
01:05:54,640 --> 01:05:57,760
harm. 
Big AG raising a fist certainly 

1364
01:05:58,000 --> 01:06:00,880
causing the victim reasonable 
fear of immediate battery. 

1365
01:06:01,640 --> 01:06:04,160
Note that for the second type, 
the victim must be aware of the 

1366
01:06:04,160 --> 01:06:05,000
threat. 
OK. 

1367
01:06:05,160 --> 01:06:07,800
And Mayhem. 
A related crime, mayhem at 

1368
01:06:07,800 --> 01:06:10,160
common law, involved 
intentionally dismembering or 

1369
01:06:10,160 --> 01:06:12,720
disabling a part of someone's 
body considered useful for 

1370
01:06:12,720 --> 01:06:15,240
fighting. 
Modern statutes often define it 

1371
01:06:15,240 --> 01:06:18,400
as intentional disfiguring. 
Stalking involves a pattern of 

1372
01:06:18,400 --> 01:06:22,320
conduct, repeated observation 
following, threatening or 

1373
01:06:22,320 --> 01:06:25,920
harassing another person which 
engenders a reasonable fear in 

1374
01:06:25,920 --> 01:06:28,880
the victim of death or serious 
bodily harm. 

1375
01:06:29,640 --> 01:06:32,600
Most states now have specific 
anti stalking laws. 

1376
01:06:32,800 --> 01:06:35,000
Next, kidnapping and false 
imprisonment. 

1377
01:06:35,360 --> 01:06:38,240
How are they different? 
Kidnapping is generally the more

1378
01:06:38,240 --> 01:06:40,640
serious offense. 
It typically involves the 

1379
01:06:40,680 --> 01:06:44,520
unlawful confinement of a person
that involves either one some 

1380
01:06:44,520 --> 01:06:48,520
significant movement as 
portation of the victim, or two 

1381
01:06:48,560 --> 01:06:50,400
secreting the victim in a hidden
place. 

1382
01:06:50,880 --> 01:06:55,000
Often requires intent to hold 
for ransom or as a hostage, or 

1383
01:06:55,000 --> 01:06:58,000
for some other legal purpose 
like facilitating another crime.

1384
01:06:58,000 --> 01:07:00,400
And parental kidnapping. 
Parental kidnapping is 

1385
01:07:00,400 --> 01:07:03,280
specifically when a parent who 
does not have legal custody 

1386
01:07:03,280 --> 01:07:06,040
takes or keeps the child in 
violation of a custody order. 

1387
01:07:06,520 --> 01:07:09,240
Note the federal Lindbergh Act 
creates A rebuttable presumption

1388
01:07:09,240 --> 01:07:11,960
of Interstate commerce, giving 
federal jurisdiction if the 

1389
01:07:11,960 --> 01:07:13,840
victim isn't released within 24 
hours. 

1390
01:07:13,840 --> 01:07:16,720
And false imprisonment. 
False imprisonment is simpler 

1391
01:07:17,240 --> 01:07:20,680
the unlawful confinement of a 
person without their consent and

1392
01:07:20,680 --> 01:07:24,240
without legal authority. 
No movement is required, just 

1393
01:07:24,240 --> 01:07:27,800
unlawful restraint of liberty. 
It's a lesser included offense 

1394
01:07:27,800 --> 01:07:29,920
of kidnapping. 
And statutory rape. 

1395
01:07:30,080 --> 01:07:33,720
Statutory rape involves sexual 
intercourse or sometimes other 

1396
01:07:33,720 --> 01:07:37,160
sexual contact with a person who
is under the statutory age of 

1397
01:07:37,160 --> 01:07:39,800
consent. 
Crucially, the victim's lack of 

1398
01:07:39,800 --> 01:07:43,160
consent is not an element 
because by law they are deemed 

1399
01:07:43,160 --> 01:07:46,760
incapable of consenting. 
It's often a strict liability 

1400
01:07:46,760 --> 01:07:49,520
crime regarding the victim's 
age, meaning the defendant's 

1401
01:07:49,520 --> 01:07:52,440
reasonable mistake about the 
victim being older is usually 

1402
01:07:52,440 --> 01:07:54,960
not a defense. 
Punishment may increase with a 

1403
01:07:54,960 --> 01:07:57,160
greater age gap between the 
defendant and the minor. 

1404
01:07:57,160 --> 01:07:59,680
OK, let's shift to property 
crimes, diving into more detail 

1405
01:07:59,680 --> 01:08:01,040
now. 
Larceny first. 

1406
01:08:01,240 --> 01:08:02,840
Right. 
The classic common law theft 

1407
01:08:02,840 --> 01:08:07,240
crime larceny is defined as A1 
trespassery without consent, 2 

1408
01:08:07,240 --> 01:08:09,280
taking and three carrying away 
aspiration. 

1409
01:08:09,280 --> 01:08:12,400
Even slight movement counts four
of the tangible personal 

1410
01:08:12,400 --> 01:08:16,359
property, not real estate or 
services. 5 of another six with 

1411
01:08:16,359 --> 01:08:19,399
the intent to permanently 
deprive them of it or for an 

1412
01:08:19,399 --> 01:08:21,560
unreasonable time. 
That intent to permanently 

1413
01:08:21,560 --> 01:08:23,439
deprive is key. 
Absolutely. 

1414
01:08:23,439 --> 01:08:26,479
If you just intend to borrow it 
temporarily and return it, it's 

1415
01:08:26,479 --> 01:08:29,479
generally not larceny, though it
might be another crime. 

1416
01:08:30,200 --> 01:08:33,720
Also, that distinction between 
custody versus possession is 

1417
01:08:33,720 --> 01:08:35,880
critical. 
If the defendant only has 

1418
01:08:35,880 --> 01:08:39,319
temporary custody of a property,
like an employee using a company

1419
01:08:39,319 --> 01:08:42,160
tool, and then decides to keep 
it, that's larceny because the 

1420
01:08:42,160 --> 01:08:44,760
initial taking of possession 
from the owner is trespassery. 

1421
01:08:45,120 --> 01:08:47,600
But if the defendant already has
lawful possession. 

1422
01:08:47,600 --> 01:08:50,800
And it's something else, right? 
Then it might be embezzlement. 

1423
01:08:51,240 --> 01:08:53,359
Let's talk about larceny by 
trick first though. 

1424
01:08:53,920 --> 01:08:57,399
This specifically involves 
obtaining possession, not title 

1425
01:08:57,479 --> 01:08:59,840
of another's property, through 
fraud or deceit. 

1426
01:09:00,000 --> 01:09:03,080
Still with the intent to 
permanently deprive, the victim 

1427
01:09:03,080 --> 01:09:05,760
consents to the taking of 
possession, but the consent is 

1428
01:09:05,760 --> 01:09:08,920
void due to the fraud. 
OK, now embezzlement. 

1429
01:09:09,200 --> 01:09:12,880
Embezzlement is the one 
fraudulent 2 conversion using it

1430
01:09:12,880 --> 01:09:14,840
in a way inconsistent with the 
owner's rights. 

1431
01:09:15,319 --> 01:09:19,640
Three of the personal property, 
4 of another 5 by a person 

1432
01:09:19,640 --> 01:09:22,560
already in lawful possession of 
that property, like an employee 

1433
01:09:22,560 --> 01:09:24,560
entrusted with company funds or 
a trustee. 

1434
01:09:25,160 --> 01:09:27,560
The key difference from larceny 
is that initial lawful 

1435
01:09:27,560 --> 01:09:29,960
possession. 
The defendant didn't take it 

1436
01:09:29,960 --> 01:09:32,520
trespass early. 
They already had it legally, but

1437
01:09:32,520 --> 01:09:34,600
then misused it with fraudulent 
intent. 

1438
01:09:34,720 --> 01:09:36,920
Got it. 
Lawful possession first. 

1439
01:09:37,399 --> 01:09:40,560
What about false pretenses? 
False pretenses occurs when the 

1440
01:09:40,560 --> 01:09:43,600
defendant obtains title, not 
just possession to the property 

1441
01:09:43,600 --> 01:09:46,040
of another. 
Three by means of an intentional

1442
01:09:46,040 --> 01:09:50,279
or knowing false representation.
Misrepresentation 4 of a 

1443
01:09:50,279 --> 01:09:53,120
material past or present fact, 
not a future promise. 

1444
01:09:53,439 --> 01:09:55,840
Five with the intent to defraud 
the other person. 

1445
01:09:55,880 --> 01:09:58,080
So here they get ownership, not 
just possession. 

1446
01:09:58,120 --> 01:10:00,480
Exactly. 
The victim intends to pass title

1447
01:10:00,480 --> 01:10:03,040
based on the lie. 
This misrepresentation can be 

1448
01:10:03,040 --> 01:10:05,760
oral, written, or sometimes even
implied by conduct. 

1449
01:10:06,240 --> 01:10:08,280
The critical element 
distinguishing it from larceny 

1450
01:10:08,280 --> 01:10:10,600
by trick is the transfer title. 
OK, robbery. 

1451
01:10:10,760 --> 01:10:13,800
Robbery is essentially A larceny
committed with two additional 

1452
01:10:13,800 --> 01:10:16,600
elements. 
One, the taking must be from the

1453
01:10:16,600 --> 01:10:20,120
victim's person or presence, and
two, it must be accomplished by 

1454
01:10:20,120 --> 01:10:22,840
means of force or threat of 
immediate harm, putting the 

1455
01:10:22,840 --> 01:10:25,840
victim in fear. 
The force or threat must be used

1456
01:10:25,840 --> 01:10:28,040
to obtain the property or 
prevent the victim from 

1457
01:10:28,040 --> 01:10:29,920
regaining it immediately after 
the taking. 

1458
01:10:30,240 --> 01:10:32,120
Its larceny plus assault 
battery. 

1459
01:10:32,480 --> 01:10:34,160
And burglary. 
Common law versus modern. 

1460
01:10:34,160 --> 01:10:38,720
Burglary at common law was very 
strictly defined. 1 breaking, 

1461
01:10:38,720 --> 01:10:42,440
creating or enlarging an opening
and two entering any part of the

1462
01:10:42,440 --> 01:10:46,040
body across the threshold 3 of a
dwelling house where someone 

1463
01:10:46,040 --> 01:10:49,400
sleeps 4 of another 5 at night 
time. 

1464
01:10:49,520 --> 01:10:53,000
Six, with the intent at the time
of entry to commit a felony 

1465
01:10:53,000 --> 01:10:54,840
therein. 
Wow, lots of Elmus. 

1466
01:10:55,040 --> 01:10:56,640
How have modern statutes changed
it? 

1467
01:10:56,960 --> 01:10:59,520
Modern statutes have brought in 
this considerably often they 

1468
01:10:59,520 --> 01:11:02,080
eliminate the breaking 
requirement unlawful entries, 

1469
01:11:02,080 --> 01:11:05,480
enough expand dwelling to 
include almost any structure, 

1470
01:11:05,480 --> 01:11:08,560
offices, stores, cars, remove 
the nighttime element, and 

1471
01:11:08,560 --> 01:11:10,240
sometimes change the required 
intent. 

1472
01:11:10,240 --> 01:11:13,560
To include intent to commit any 
crime, even a misdemeanor, you 

1473
01:11:13,560 --> 01:11:15,000
need to check the specific 
statute. 

1474
01:11:15,400 --> 01:11:20,000
And finally, arson. 
Arson at common law was the one 

1475
01:11:20,040 --> 01:11:25,640
malicious, intentional, or with 
reckless disregard. 2 Burning 

1476
01:11:25,880 --> 01:11:28,600
required actual charring of the 
structure itself, not just 

1477
01:11:28,600 --> 01:11:31,120
contents. 
Mere scorching was insufficient.

1478
01:11:31,520 --> 01:11:34,280
3 of the dwelling house, 4 of 
another. 

1479
01:11:34,400 --> 01:11:37,000
Again, very specific modern 
changes. 

1480
01:11:37,000 --> 01:11:39,400
Modern statutes have greatly 
expanded this, too. 

1481
01:11:39,640 --> 01:11:43,720
Burning often includes damage by
fire or explosion, not just 

1482
01:11:43,720 --> 01:11:45,840
charring. 
It applies to many kinds of 

1483
01:11:45,840 --> 01:11:48,680
structures beyond dwellings, 
commercial buildings, vehicles, 

1484
01:11:48,960 --> 01:11:51,480
and sometimes includes burning 
one's own property if done with 

1485
01:11:51,480 --> 01:11:54,280
intent to defraud insurance. 
OK, that covers a lot of Major 

1486
01:11:54,280 --> 01:11:56,400
Crimes. 
Lastly, for substantive crimes, 

1487
01:11:56,560 --> 01:11:58,400
let's quickly cover incoate 
crimes. 

1488
01:11:58,680 --> 01:12:01,520
These are. 
Incoate means incomplete or just

1489
01:12:01,520 --> 01:12:03,880
beginning. 
These are crimes of preparing 

1490
01:12:03,880 --> 01:12:07,000
for or seeking to commit another
crime, the target crime. 

1491
01:12:07,200 --> 01:12:09,640
They are punished even if the 
target crime isn't successfully 

1492
01:12:09,640 --> 01:12:11,400
completed. 
And they usually merge. 

1493
01:12:11,600 --> 01:12:14,080
Right. 
They typically merge into the 

1494
01:12:14,080 --> 01:12:17,600
completed offense if it is 
successful, meaning you can't be

1495
01:12:17,600 --> 01:12:20,200
convicted of both attempt and 
the completed crime. 

1496
01:12:20,840 --> 01:12:22,680
The major exception is 
conspiracy. 

1497
01:12:23,360 --> 01:12:26,520
You can be convicted of both 
conspiracy to commit a crime and

1498
01:12:26,520 --> 01:12:29,120
the crime itself. 
Conspiracy doesn't merge. 

1499
01:12:29,200 --> 01:12:32,800
OK, first in coate crime 
solicitation. 

1500
01:12:33,240 --> 01:12:37,040
Solicitation is when a person in
sites, counsels, advises, 

1501
01:12:37,040 --> 01:12:40,200
requests or encourages another 
person to engage in criminal 

1502
01:12:40,200 --> 01:12:43,400
conduct with the specific intent
of the crime be committed. 

1503
01:12:43,800 --> 01:12:46,440
The crime of solicitation is 
complete once the request or 

1504
01:12:46,440 --> 01:12:48,680
encouragement is made, 
regardless of whether the other 

1505
01:12:48,680 --> 01:12:50,800
person agrees, refuses or does 
nothing. 

1506
01:12:50,840 --> 01:12:53,520
Just asking is enough. 
Next conspiracy? 

1507
01:12:53,600 --> 01:12:56,800
Conspiracy requires 1 an 
agreement between two or more 

1508
01:12:56,800 --> 01:13:00,320
persons 2 to commit a crime or 
sometimes an unlawful objective 

1509
01:13:00,320 --> 01:13:04,560
by criminal means, plus in most 
jurisdictions now three an overt

1510
01:13:04,560 --> 01:13:07,560
act committed by any conspirator
in furtherance of the agreement.

1511
01:13:07,880 --> 01:13:10,640
The overt act can be very minor,
even just preparation. 

1512
01:13:10,640 --> 01:13:13,080
The agreement part bilateral 
versus unilateral. 

1513
01:13:13,200 --> 01:13:15,640
Good point. 
The traditional bilateral 

1514
01:13:15,640 --> 01:13:18,680
approach requires a true meeting
of the minds. 

1515
01:13:19,320 --> 01:13:22,080
Both parties must genuinely 
agree to commit the crime. 

1516
01:13:22,520 --> 01:13:25,360
If one person is faking 
agreement like an undercover 

1517
01:13:25,360 --> 01:13:28,280
cop, there's no conspiracy under
this perch. 

1518
01:13:28,560 --> 01:13:31,320
And the other way. 
In contrast, the MPC's 

1519
01:13:31,320 --> 01:13:34,920
unilateral approach, followed by
many states, says only one 

1520
01:13:34,920 --> 01:13:38,360
conspirator needs to have a 
genuine criminal intent and 

1521
01:13:38,360 --> 01:13:41,200
agree. 
So you can conspire with an 

1522
01:13:41,200 --> 01:13:43,600
undercover officer under the 
unilateral approach. 

1523
01:13:43,760 --> 01:13:46,280
You need to know which approach 
the jurisdiction follows. 

1524
01:13:46,280 --> 01:13:47,800
And liability extends. 
Yes. 

1525
01:13:47,800 --> 01:13:51,600
Under the Pinkerton rule, common
law conspiracy liability extends

1526
01:13:51,600 --> 01:13:54,600
to other crimes committed by Co 
conspirators if those crimes 

1527
01:13:54,600 --> 01:13:57,480
were committed in furtherance of
the conspiracies objective and 

1528
01:13:57,480 --> 01:14:00,000
were reasonably foreseeable 
consequences of the agreement 

1529
01:14:00,480 --> 01:14:03,760
and withdrawal. 
Generally, withdrawal must occur

1530
01:14:03,760 --> 01:14:05,440
before the overt act is 
committed. 

1531
01:14:05,960 --> 01:14:08,720
Effective withdrawal might limit
liability for future crimes of 

1532
01:14:08,720 --> 01:14:11,280
Co conspirators, but it 
typically does not absolve the 

1533
01:14:11,280 --> 01:14:13,520
defendant of the original 
conspiracy charge itself. 

1534
01:14:13,520 --> 01:14:18,920
OK last in Co a crime attempt. 
Attempt involves 1A specific 

1535
01:14:18,920 --> 01:14:22,640
intent to commit the target 
crime and two, an overt act in 

1536
01:14:22,640 --> 01:14:25,880
furtherance of that intent that 
goes beyond mere preparation. 

1537
01:14:26,200 --> 01:14:29,000
This overt act must be a 
substantial step towards 

1538
01:14:29,000 --> 01:14:31,560
Commission of the crime, 
strongly corroborative of the 

1539
01:14:31,560 --> 01:14:34,760
actor's criminal purpose. 
Under the MPC and modern trend, 

1540
01:14:35,520 --> 01:14:38,520
older tests looked for dangerous
proximity to completion. 

1541
01:14:38,640 --> 01:14:40,840
Drawing that line between 
preparation and substantial 

1542
01:14:40,840 --> 01:14:42,600
steps seems hard. 
It is. 

1543
01:14:42,680 --> 01:14:45,120
It's where judges and juries 
often struggle. 

1544
01:14:45,360 --> 01:14:47,960
Did the defendant get close 
enough to actually completing 

1545
01:14:47,960 --> 01:14:50,320
the crime? 
And remember the key distinction

1546
01:14:50,320 --> 01:14:54,000
regarding defenses. 
Legal impossibility is a valid 

1547
01:14:54,000 --> 01:14:57,040
defense to attempt, for example,
trying to receive goods you 

1548
01:14:57,040 --> 01:14:59,680
believe are stolen, but they 
aren't actually stolen. 

1549
01:14:59,680 --> 01:15:03,720
The ACT itself isn't criminal, 
but factual impossibility, like 

1550
01:15:03,840 --> 01:15:06,400
attempting to pick an empty 
pocket because you mistakenly 

1551
01:15:06,400 --> 01:15:09,360
believe it contains money or 
shooting a stuffed dummy you 

1552
01:15:09,360 --> 01:15:12,120
think is a person is not a 
defense. 

1553
01:15:12,960 --> 01:15:15,760
The defendant had the intent and
took the substantial step. 

1554
01:15:16,080 --> 01:15:18,440
The fact the crime couldn't 
succeed due to some unknown 

1555
01:15:18,440 --> 01:15:20,800
external factor doesn't negate 
the attempt. 

1556
01:15:21,880 --> 01:15:24,360
OK, now that we've covered the 
elements of various crimes, 

1557
01:15:24,360 --> 01:15:27,280
let's discuss defenses. 
A defendant isn't necessarily 

1558
01:15:27,280 --> 01:15:29,200
guilty just because the 
prosecution proves all the 

1559
01:15:29,200 --> 01:15:31,120
elements. 
Defendants can raise various 

1560
01:15:31,120 --> 01:15:33,600
defenses to avoid or mitigate 
liability. 

1561
01:15:33,760 --> 01:15:36,360
How do defenses work? 
They work in different ways. 

1562
01:15:36,720 --> 01:15:39,680
Some defenses might negate an 
element of the offense, like 

1563
01:15:39,680 --> 01:15:41,480
mistake of fact negating Mens 
Rea. 

1564
01:15:41,800 --> 01:15:44,440
Others justify the conduct, 
making it lawful under the 

1565
01:15:44,440 --> 01:15:47,720
circumstances despite appearing 
criminal, like self-defense. 

1566
01:15:48,200 --> 01:15:51,160
And others excuse the actor due 
to some personal disability or 

1567
01:15:51,160 --> 01:15:53,760
condition like insanity or 
duress. 

1568
01:15:53,760 --> 01:15:55,920
Examples. 
Common defenses you'll study 

1569
01:15:55,920 --> 01:16:00,160
include automatism, acting 
unconsciously, duress, coerced 

1570
01:16:00,160 --> 01:16:03,600
to commit crime, entrapment, 
improper inducement by law 

1571
01:16:03,600 --> 01:16:07,960
enforcement, infancy, too young,
insanity, mental disease, 

1572
01:16:07,960 --> 01:16:11,400
negating responsibility, 
intoxication, voluntary or 

1573
01:16:11,400 --> 01:16:15,200
involuntary affecting, Mens Rea,
necessity, choosing lesser evil,

1574
01:16:15,320 --> 01:16:18,840
provocation, mitigating murder 
to manslaughter, defense of 

1575
01:16:18,840 --> 01:16:21,040
property, and of course, the big
one we'll dive into now. 

1576
01:16:21,040 --> 01:16:23,200
Self-defense a justification 
defense, right? 

1577
01:16:23,440 --> 01:16:25,040
Meaning the ACT was considered 
lawful. 

1578
01:16:25,960 --> 01:16:28,680
The general principle is that a 
person is justified in using 

1579
01:16:28,680 --> 01:16:31,800
force, even deadly force, upon 
another if they reasonably 

1580
01:16:31,800 --> 01:16:34,920
believe such force is necessary 
to protect themselves from 

1581
01:16:34,920 --> 01:16:39,520
imminent unlawful force or death
or serious bodily harm if using 

1582
01:16:39,520 --> 01:16:42,040
deadly force. 
That reasonable belief component

1583
01:16:42,040 --> 01:16:44,040
sounds absolutely crucial for 
exams. 

1584
01:16:44,280 --> 01:16:48,320
It is, It often determines the 
outcome and it has two parts you

1585
01:16:48,320 --> 01:16:51,400
must analyze. 1A subjective 
part. 

1586
01:16:51,840 --> 01:16:54,280
Did the defendant personally and
honestly believe they needed to 

1587
01:16:54,280 --> 01:16:59,200
use force or deadly force? 
2 An objective part was that 

1588
01:16:59,200 --> 01:17:02,160
belief, one that a reasonable 
person in the same situation, 

1589
01:17:02,160 --> 01:17:04,400
with the defendant's knowledge 
and experience, would have 

1590
01:17:04,400 --> 01:17:07,120
possessed. 
So even if they were wrong, like

1591
01:17:07,120 --> 01:17:08,840
the person wasn't actually a 
threat. 

1592
01:17:08,880 --> 01:17:12,080
Importantly, yes, self-defense 
can be justified even if 

1593
01:17:12,080 --> 01:17:15,080
appearances proved to be false, 
as long as the defendant's 

1594
01:17:15,080 --> 01:17:18,560
belief was subjectively genuine 
and objectively reasonable under

1595
01:17:18,560 --> 01:17:20,680
the circumstances as they 
appeared at that moment. 

1596
01:17:21,400 --> 01:17:24,040
This was a key issue in the 
controversial case of People V 

1597
01:17:24,040 --> 01:17:27,600
Gets the subway vigilante case. 
Was his fear reasonable? 

1598
01:17:27,600 --> 01:17:30,120
What counts as deadly force? 
When can you use it? 

1599
01:17:30,360 --> 01:17:33,400
Deadly force is generally force 
intended or likely to cause 

1600
01:17:33,400 --> 01:17:37,160
death or serious bodily injury. 
State definitions vary slightly.

1601
01:17:37,480 --> 01:17:39,960
Some focus on the likelihood of 
the force causing death or 

1602
01:17:39,960 --> 01:17:43,400
serious bodily injury regardless
of the actor's specific intent. 

1603
01:17:43,600 --> 01:17:46,360
For example, if you stab 
someone, it's deadly force, even

1604
01:17:46,360 --> 01:17:48,160
if you only intended to wound 
slightly. 

1605
01:17:48,160 --> 01:17:51,440
Because of the high risk, others
might focus more on the actor's 

1606
01:17:51,440 --> 01:17:54,360
subjective intent to cause death
or serious bodily injury. 

1607
01:17:54,880 --> 01:17:57,760
Generally, though, deadly force 
is broadly defined to include 

1608
01:17:57,760 --> 01:18:00,840
force likely to cause serious 
bodily injury, not just death. 

1609
01:18:01,400 --> 01:18:04,240
You can only use deadly force if
you reasonably believe you are 

1610
01:18:04,240 --> 01:18:07,440
facing an imminent threat of 
death or serious bodily injury 

1611
01:18:07,440 --> 01:18:09,840
yourself. 
Proportionality is key. 

1612
01:18:10,120 --> 01:18:13,720
OK, what about the initial 
aggressor rule if you start the 

1613
01:18:13,720 --> 01:18:14,360
fight? 
Right. 

1614
01:18:14,600 --> 01:18:17,360
Generally the initial aggressor,
the person who first uses 

1615
01:18:17,360 --> 01:18:20,040
unlawful force, cannot claim 
self-defense. 

1616
01:18:20,360 --> 01:18:23,360
However, there's a nuance. 
The majority rule today is that 

1617
01:18:23,360 --> 01:18:26,880
an initial non deadly aggressor,
say someone who just throws a 

1618
01:18:26,880 --> 01:18:30,000
punch, can regain the right to 
use self-defense, even deadly 

1619
01:18:30,000 --> 01:18:32,800
force, if the person they 
initially attacked responds with

1620
01:18:32,800 --> 01:18:36,200
disproportionate deadly force. 
OK, what's the minority view? 

1621
01:18:36,400 --> 01:18:40,240
A minority or earlier common law
position is stricter. 

1622
01:18:41,000 --> 01:18:44,480
It says the initial non deadly 
aggressor does not automatically

1623
01:18:44,480 --> 01:18:47,240
regain the right to self-defense
just because the victim 

1624
01:18:47,320 --> 01:18:51,000
escalates to deadly force. 
Under this view, the initial 

1625
01:18:51,000 --> 01:18:53,600
aggressor must first try to 
withdraw from the confrontation 

1626
01:18:53,600 --> 01:18:56,880
and communicate that withdrawal,
or avail themselves of any 

1627
01:18:57,080 --> 01:19:00,800
obviously safe retreat before 
they can use deadly force and 

1628
01:19:00,800 --> 01:19:03,560
self-defense. 
If they don't retreat when safe,

1629
01:19:03,760 --> 01:19:06,680
even if facing deadly force they
provoked, they might only be 

1630
01:19:06,680 --> 01:19:09,720
guilty of manslaughter rather 
than murder, but they don't get 

1631
01:19:09,720 --> 01:19:12,920
full justification. 
This leads us directly to that 

1632
01:19:12,920 --> 01:19:15,000
highly tested distinction on the
bar exam. 

1633
01:19:15,880 --> 01:19:18,200
Duty to retreat versus stand 
your ground loss. 

1634
01:19:18,280 --> 01:19:21,360
Absolutely critical distinction.
The traditional common law 

1635
01:19:21,360 --> 01:19:23,840
imposed a retreat rule 
specifically for the use of 

1636
01:19:23,840 --> 01:19:26,160
deadly force. 
It stated that an innocent 

1637
01:19:26,160 --> 01:19:28,880
person, not the initial 
aggressor threatened with deadly

1638
01:19:28,880 --> 01:19:31,960
force, must retreat rather than 
use deadly force if they are 

1639
01:19:31,960 --> 01:19:34,320
aware that they can do so in 
complete safety. 

1640
01:19:34,320 --> 01:19:36,160
So if you could safely run away,
you had to. 

1641
01:19:36,320 --> 01:19:38,640
Yes. 
Under that rule, defenders 

1642
01:19:38,640 --> 01:19:41,680
argued, this placed the highest 
value on preserving human life, 

1643
01:19:41,800 --> 01:19:45,440
even the aggressor's life, above
a perceived manly right to stand

1644
01:19:45,440 --> 01:19:47,520
and fight. 
There was always an exception 

1645
01:19:47,520 --> 01:19:49,760
for being in your own home, the 
castle doctrine. 

1646
01:19:50,120 --> 01:19:51,680
But that's changed in many 
places. 

1647
01:19:51,720 --> 01:19:55,800
The stand your ground laws. 
Exactly the No Retreat position 

1648
01:19:55,800 --> 01:19:58,360
embodied in Stand Your Ground 
laws has gained significant 

1649
01:19:58,360 --> 01:20:02,160
support, spreading rapidly since
Florida's 2005 legislation. 

1650
01:20:02,760 --> 01:20:05,920
Many states, perhaps a majority 
now, have adopted laws like 

1651
01:20:05,920 --> 01:20:07,200
this. 
What do they generally say? 

1652
01:20:07,600 --> 01:20:10,320
They generally state that a 
person who is not engaged in an 

1653
01:20:10,320 --> 01:20:13,640
unlawful activity and is in any 
place where he or she has a 

1654
01:20:13,640 --> 01:20:17,360
right to be, has no duty to 
retreat before using force, 

1655
01:20:17,480 --> 01:20:20,400
including deadly force, if they 
reasonably believe it is 

1656
01:20:20,400 --> 01:20:23,560
necessary to prevent death or 
great bodily harm to themselves 

1657
01:20:23,560 --> 01:20:27,080
or another, or to prevent the 
Commission of a forcible felony 

1658
01:20:27,080 --> 01:20:29,760
like robbery or rape. 
And the arguments for these 

1659
01:20:29,760 --> 01:20:31,840
laws? 
Argument supporting them often 

1660
01:20:31,840 --> 01:20:35,120
focus on the idea that innocent 
victims shouldn't have to 

1661
01:20:35,120 --> 01:20:38,240
retreat from criminals and that 
allowing people to stand their 

1662
01:20:38,240 --> 01:20:41,440
ground might deter criminals. 
Give crooks second thoughts. 

1663
01:20:41,760 --> 01:20:44,880
It emphasizes the defenders 
right to be where they are and 

1664
01:20:44,880 --> 01:20:47,160
protect themselves. 
Very different philosophies. 

1665
01:20:47,440 --> 01:20:49,960
Another crucial element in 
self-defense is imminence. 

1666
01:20:50,120 --> 01:20:52,920
What does that mean? 
The danger justifying the use of

1667
01:20:52,920 --> 01:20:56,920
force must be imminent, meaning 
it's happening right now or just

1668
01:20:56,920 --> 01:21:00,120
about to happen. 
A threat of future harm isn't 

1669
01:21:00,120 --> 01:21:02,480
enough to justify using force 
now. 

1670
01:21:02,840 --> 01:21:04,920
This seems like a tricky element
in practice. 

1671
01:21:05,160 --> 01:21:07,040
It is. 
It's a critical point in many 

1672
01:21:07,040 --> 01:21:09,640
self-defense cases. 
The traditional view requires 

1673
01:21:09,640 --> 01:21:12,440
the threat to be immediate. 
However, cases involving 

1674
01:21:12,440 --> 01:21:15,680
battered women's syndrome, where
a victim of long term abuse 

1675
01:21:15,680 --> 01:21:18,480
might use force against an 
abuser not during an immediate 

1676
01:21:18,480 --> 01:21:21,680
physical attack but perhaps when
he's asleep anticipating the 

1677
01:21:21,680 --> 01:21:26,160
next inevitable potentially 
lethal attack, have challenged 

1678
01:21:26,160 --> 01:21:28,880
and sometimes broadened the 
traditional strict view of 

1679
01:21:28,880 --> 01:21:31,000
imminence. 
Some jurisdictions allow 

1680
01:21:31,000 --> 01:21:33,960
consideration of the history of 
abuse in assessing imminence. 

1681
01:21:34,240 --> 01:21:37,920
OK, finally, the distinction 
between perfect and imperfect 

1682
01:21:37,920 --> 01:21:39,000
self-defense. 
Right. 

1683
01:21:39,360 --> 01:21:41,880
Perfect self-defense means all 
the elements of a valid 

1684
01:21:41,880 --> 01:21:45,280
self-defense claim are met. 
Reasonable belief, necessary 

1685
01:21:45,280 --> 01:21:47,800
force, imminence, 
proportionality, not the 

1686
01:21:47,800 --> 01:21:50,320
aggressor, etcetera. 
This results in a full 

1687
01:21:50,320 --> 01:21:52,720
justification and leads to 
complete acquittal. 

1688
01:21:53,000 --> 01:21:55,560
And imperfect. 
Imperfect self-defense, 

1689
01:21:55,560 --> 01:21:58,680
recognized in some 
jurisdictions, occurs when the 

1690
01:21:58,680 --> 01:22:01,760
defendant had an honest, 
subjective belief in the need to

1691
01:22:01,760 --> 01:22:05,360
use force but that belief was 
unreasonable, or sometimes when 

1692
01:22:05,360 --> 01:22:07,640
they were the initial aggressor 
but used force under 

1693
01:22:07,640 --> 01:22:09,640
circumstances that don't fully 
justify it. 

1694
01:22:09,920 --> 01:22:12,600
This is not a full 
justification, but it can 

1695
01:22:12,600 --> 01:22:15,280
mitigate murder down to 
voluntary manslaughter, reducing

1696
01:22:15,280 --> 01:22:18,080
the charge and penalty. 
Though some courts and scholars 

1697
01:22:18,080 --> 01:22:21,160
find the terminology imperfect 
self-defense a bit misleading, 

1698
01:22:21,160 --> 01:22:24,360
preferring to view it simply as 
a basis for mitigation, not a 

1699
01:22:24,360 --> 01:22:26,280
true defense. 
And can you defend others? 

1700
01:22:26,520 --> 01:22:29,000
Yes, defense of others is 
generally permitted under 

1701
01:22:29,000 --> 01:22:31,760
similar principles. 
You can use force, including 

1702
01:22:31,760 --> 01:22:35,120
deadly force, to defend a third 
person if you reasonably believe

1703
01:22:35,120 --> 01:22:37,800
that the third person has the 
legal right to use self-defense 

1704
01:22:37,800 --> 01:22:40,080
themselves. 
You essentially step into the 

1705
01:22:40,080 --> 01:22:43,000
shoes of the person you're 
defending and your right to use 

1706
01:22:43,000 --> 01:22:45,520
force is usually coextensive 
with theirs under the 

1707
01:22:45,520 --> 01:22:47,520
circumstances as they reason U 
here to you. 

1708
01:22:47,520 --> 01:22:50,840
OK, that covers the black letter
law, but here's where it gets 

1709
01:22:50,840 --> 01:22:53,320
really interesting, and it's a 
critical insight for 

1710
01:22:53,320 --> 01:22:57,840
understanding the broader legal 
landscape beyond just memorizing

1711
01:22:57,840 --> 01:23:01,480
rules, the role of values in 
self-defense decisions. 

1712
01:23:01,480 --> 01:23:05,240
Yes, this is important context. 
While the law often presents 

1713
01:23:05,240 --> 01:23:07,600
self-defense as a 
straightforward application of 

1714
01:23:07,600 --> 01:23:10,400
rules, reasonable belief, 
imminence, et cetera, in 

1715
01:23:10,400 --> 01:23:13,600
reality, everyone of these cases
requires the criminal justice 

1716
01:23:13,600 --> 01:23:17,160
system, judges, prosecutors, 
juries to resolve challenging 

1717
01:23:17,160 --> 01:23:21,440
questions that blend law, fact, 
and often deeply held underlying

1718
01:23:21,440 --> 01:23:24,440
moral and societal values. 
Things not explicitly in the 

1719
01:23:24,440 --> 01:23:26,000
statutes. 
Exactly. 

1720
01:23:26,200 --> 01:23:29,640
We as humans rely on these 
complex belief patterns, these 

1721
01:23:29,640 --> 01:23:33,680
norms, to decide what the right 
and just answers are, especially

1722
01:23:33,680 --> 01:23:36,880
in Gray areas. 
Yet much of legal scholarship 

1723
01:23:36,880 --> 01:23:39,760
and judicial decisions often 
fail to transparently 

1724
01:23:39,760 --> 01:23:42,240
acknowledge these nuanced value 
judgments. 

1725
01:23:42,600 --> 01:23:44,640
So the argument is we should be 
more open about them. 

1726
01:23:44,800 --> 01:23:48,200
Our source suggests that a value
centric framework would improve 

1727
01:23:48,200 --> 01:23:50,840
transparency and the quality of 
decision making. 

1728
01:23:51,320 --> 01:23:54,960
It could reduce the corrosive 
and undemocratic role of hidden 

1729
01:23:54,960 --> 01:23:58,760
normativity, meaning those 
unstated biases or values that 

1730
01:23:58,760 --> 01:24:01,840
subtly influence outcomes 
without open discussion, and 

1731
01:24:01,840 --> 01:24:04,680
potentially enhance public trust
in the legal system by making 

1732
01:24:04,680 --> 01:24:07,360
the reasoning clearer. 
We definitely see this play out 

1733
01:24:07,360 --> 01:24:09,240
dramatically in high profile 
cases. 

1734
01:24:09,720 --> 01:24:11,880
Take the George Zimmerman, 
Trayvon Martin case. 

1735
01:24:12,080 --> 01:24:14,400
Public sentiment was so deeply 
divided. 

1736
01:24:14,440 --> 01:24:16,360
Absolutely. 
It highlighted the complexities 

1737
01:24:16,360 --> 01:24:19,240
of stand your ground laws, the 
subjective nature, reasonable 

1738
01:24:19,240 --> 01:24:22,360
fear, and unfortunately, the 
stark racial divide and public 

1739
01:24:22,360 --> 01:24:24,360
perception of the facts and 
reasonableness. 

1740
01:24:24,920 --> 01:24:27,840
The argument here is that juries
often apply a nuanced jury 

1741
01:24:27,840 --> 01:24:30,800
instructions that don't fully 
surface these underlying value 

1742
01:24:30,800 --> 01:24:31,680
conflicts. 
Right? 

1743
01:24:31,840 --> 01:24:34,920
Suggesting that maybe a more 
transparent value assessment 

1744
01:24:34,920 --> 01:24:38,120
should happen at the legislative
level when drafting these laws, 

1745
01:24:38,440 --> 01:24:41,200
and perhaps should be more 
openly acknowledged by juries 

1746
01:24:41,200 --> 01:24:44,280
during deliberation. 
Or consider the case of Bernhard

1747
01:24:44,280 --> 01:24:47,560
Goats, the subway vigilante. 
Back in the 80s, when some 

1748
01:24:47,560 --> 01:24:50,040
people argued for more 
permissive self-defense laws 

1749
01:24:50,040 --> 01:24:54,200
after his case, they implicitly 
seemed to suggest such laws 

1750
01:24:54,280 --> 01:24:58,360
would deter criminal attacks. 
But that argument often 

1751
01:24:58,360 --> 01:25:01,880
sidestepped explicitly stating 
the underlying value judgments 

1752
01:25:02,240 --> 01:25:05,360
may be a higher value placed on 
personal security over the life 

1753
01:25:05,360 --> 01:25:09,280
of a perceived aggressor or a 
belief in the efficacy of self 

1754
01:25:09,280 --> 01:25:10,040
help. 
Right. 

1755
01:25:10,080 --> 01:25:13,240
Or the case of Tony Martin, the 
English farmer whose attacker 

1756
01:25:13,240 --> 01:25:15,840
had a criminal record. 
The public and political 

1757
01:25:15,840 --> 01:25:18,960
discussion after he shot 
intruders often frame the debate

1758
01:25:18,960 --> 01:25:21,840
around punishment or societal 
vengeance against criminals, 

1759
01:25:22,120 --> 01:25:25,440
rather than sticking strictly to
a nuanced self-defense analysis 

1760
01:25:25,440 --> 01:25:27,320
focused only on the immediate 
threat. 

1761
01:25:28,000 --> 01:25:30,840
This also points to that hidden 
normativity, other values 

1762
01:25:30,840 --> 01:25:32,720
leaking into the self-defense 
framework. 

1763
01:25:32,920 --> 01:25:36,400
So our sources identify seven 
key values that often seem to be

1764
01:25:36,400 --> 01:25:40,000
in tension and serve as these 
deep seated decision grounds for

1765
01:25:40,000 --> 01:25:43,560
self-defense outcomes. 
Understanding these helps you 

1766
01:25:43,560 --> 01:25:46,160
see the bigger picture, the 
constant balancing act. 

1767
01:25:46,280 --> 01:25:49,040
What are they? 
OK, here are the seven often 

1768
01:25:49,040 --> 01:25:52,400
pulling in different directions 
1 protecting the state's 

1769
01:25:52,400 --> 01:25:56,440
monopoly on legitimate force. 
Collectivist view society's 

1770
01:25:56,440 --> 01:25:58,560
overarching interest in reducing
violence. 

1771
01:25:58,560 --> 01:26:01,360
Overall. 
This value often pushes against 

1772
01:26:01,360 --> 01:26:04,880
private use of force, favoring 
resolution through legal process

1773
01:26:04,880 --> 01:26:06,440
and police. 
OK, state control. 

1774
01:26:06,760 --> 01:26:10,520
Two, protecting the attacker's 
individual presumptive right to 

1775
01:26:10,520 --> 01:26:12,040
life. 
Individualist view. 

1776
01:26:12,400 --> 01:26:14,920
Even for culpable attackers, 
This right is recognized by 

1777
01:26:14,920 --> 01:26:18,000
universal limitations on 
self-defense, like necessity, 

1778
01:26:18,000 --> 01:26:21,160
imminence, and proportionality. 
But how much weight this value 

1779
01:26:21,160 --> 01:26:24,120
gets varies hugely among people 
in legal systems. 

1780
01:26:24,200 --> 01:26:28,040
Right to life, even for the 
aggressor. 3 Maintaining equal 

1781
01:26:28,040 --> 01:26:31,200
standing among people. 
This is based on reciprocal 

1782
01:26:31,200 --> 01:26:34,600
obligations. 
My demand not to be harmed 

1783
01:26:34,600 --> 01:26:38,200
implies I don't harm others. 
The idea is that culpable 

1784
01:26:38,200 --> 01:26:41,440
attackers, by their actions, 
deny victims their right to 

1785
01:26:41,440 --> 01:26:44,040
respect and forfeit some of 
their own standing. 

1786
01:26:44,320 --> 01:26:47,240
Innocent attackers acting 
without malice don't break this 

1787
01:26:47,240 --> 01:26:50,400
relationship in the same way. 
Equality and reciprocity. 

1788
01:26:50,680 --> 01:26:54,480
For protecting the autonomy of 
the defender, self-defense 

1789
01:26:54,480 --> 01:26:57,600
inherently implies a right to 
protect one's bodily integrity 

1790
01:26:57,600 --> 01:27:01,120
and personal space. 
However, modern society requires

1791
01:27:01,120 --> 01:27:04,000
us to tolerate some minor 
intrusions on our autonomy for 

1792
01:27:04,000 --> 01:27:06,640
broader welfarist objectives. 
Where do we draw the line? 

1793
01:27:06,640 --> 01:27:09,240
Defenders. 
Economy. 5 Ensuring the primacy 

1794
01:27:09,240 --> 01:27:12,440
of the legal process. 
This value encourages deferring 

1795
01:27:12,440 --> 01:27:15,000
to public authorities like the 
police for protection when 

1796
01:27:15,000 --> 01:27:17,080
possible. 
Emphasizing the importance of 

1797
01:27:17,080 --> 01:27:19,720
seeking help rather than 
resorting to immediate self 

1798
01:27:19,720 --> 01:27:22,400
help, especially if the threat 
isn't truly imminent. 

1799
01:27:22,760 --> 01:27:24,600
Connected to the state monopoly 
idea. 

1800
01:27:24,680 --> 01:27:28,960
Trust the system. 6 Maintaining 
the legitimacy of the legal 

1801
01:27:28,960 --> 01:27:31,200
order. 
This is about the law's moral 

1802
01:27:31,200 --> 01:27:33,200
credibility in the eyes of the 
public. 

1803
01:27:33,560 --> 01:27:37,560
It aims to avoid outcomes so at 
odds with the fully expressed 

1804
01:27:37,560 --> 01:27:41,160
public morality that they erode 
public respect for the law. 

1805
01:27:41,640 --> 01:27:44,960
For instance, allowing deadly 
force for very minor property 

1806
01:27:44,960 --> 01:27:48,760
interests might seem obscene. 
Or conversely, not allowing 

1807
01:27:48,760 --> 01:27:51,760
deadly force to prevent a 
serious culpable attack like 

1808
01:27:51,760 --> 01:27:53,760
rape, might also erode 
legitimacy. 

1809
01:27:54,080 --> 01:27:56,360
This value tries to avoid 
obscene outcomes. 

1810
01:27:56,600 --> 01:27:59,720
Public trust in the law. 
Seven general and specific 

1811
01:27:59,720 --> 01:28:01,760
deterrence. 
This is the theory often 

1812
01:28:01,760 --> 01:28:04,440
underlying arguments for more 
permissive self-defense laws 

1813
01:28:04,720 --> 01:28:07,320
that allowing citizens to defend
themselves forcefully will 

1814
01:28:07,320 --> 01:28:10,960
generally deter crime, making 
potential criminals think twice.

1815
01:28:11,640 --> 01:28:13,920
Though it's important to 
concede, as the source notes, 

1816
01:28:13,920 --> 01:28:16,520
this proposition has not been 
empirically verified with 

1817
01:28:16,520 --> 01:28:19,880
reliable or conclusive results. 
It's more of a belief or hope. 

1818
01:28:20,200 --> 01:28:22,880
Wow. 
OK, so as you study for your 

1819
01:28:22,880 --> 01:28:25,240
exams, understanding these 
underlying tensions in 

1820
01:28:25,240 --> 01:28:27,800
self-defense will help you not 
just apply the black letter 

1821
01:28:27,800 --> 01:28:30,480
rules, but also analyze the 
policy arguments that often 

1822
01:28:30,480 --> 01:28:32,200
shape those rules and their 
application. 

1823
01:28:32,280 --> 01:28:34,480
It adds another layer. 
Definitely adds depth. 

1824
01:28:34,560 --> 01:28:38,440
So if substantive criminal law 
tells us what acts are crimes 

1825
01:28:38,440 --> 01:28:41,560
and what defenses exist, 
criminal procedure tells us how 

1826
01:28:41,640 --> 01:28:44,280
how the system is supposed to 
work, from investigation and 

1827
01:28:44,280 --> 01:28:48,480
arrest through trial and appeal.
It's all about process and 

1828
01:28:48,480 --> 01:28:51,600
ensuring fairness, protecting 
individual liberties along the 

1829
01:28:51,600 --> 01:28:52,480
way. 
Right. 

1830
01:28:52,640 --> 01:28:54,640
This segment is all about 
safeguarding rights, 

1831
01:28:54,800 --> 01:28:58,120
particularly the constitutional 
foundations that underpin our 

1832
01:28:58,120 --> 01:29:01,760
entire criminal justice system. 
Criminal procedure outlines the 

1833
01:29:01,760 --> 01:29:05,640
mandated stages and decisions 
meticulously designed to ensure 

1834
01:29:05,640 --> 01:29:08,120
correct guilt. 
Tennyson's decisions and, 

1835
01:29:08,120 --> 01:29:10,440
crucially, respect for 
defendants rights. 

1836
01:29:10,520 --> 01:29:13,880
The bedrock for all of this is 
the US Constitution, especially 

1837
01:29:13,880 --> 01:29:17,760
the Bill of Rights, Amendments 
456 and Eight, as applied to the

1838
01:29:17,760 --> 01:29:20,480
states through the 14th 
Amendment's Due Process Clause. 

1839
01:29:20,520 --> 01:29:21,760
Let's start with the 4th 
Amendment. 

1840
01:29:21,840 --> 01:29:24,640
The 4th protects against 
unreasonable searches and 

1841
01:29:24,640 --> 01:29:26,760
seizures. 
This generally means law 

1842
01:29:26,760 --> 01:29:29,600
enforcement needs a warrant 
issued by a neutral magistrate 

1843
01:29:29,600 --> 01:29:32,720
based upon probable cause, 
supported by Oath or 

1844
01:29:32,720 --> 01:29:35,640
affirmation, and specifically 
describing the place to be 

1845
01:29:35,640 --> 01:29:37,800
searched and the persons or 
things to be seized. 

1846
01:29:38,480 --> 01:29:41,240
Warrantless searches are 
presumptively unreasonable, 

1847
01:29:41,240 --> 01:29:42,760
though there are many 
exceptions. 

1848
01:29:43,000 --> 01:29:45,160
And seizures. 
Includes arrests. 

1849
01:29:45,160 --> 01:29:47,640
Yes, arrests are seizures of the
person. 

1850
01:29:48,080 --> 01:29:50,600
The Supreme Court has also 
clarified that even if an arrest

1851
01:29:50,600 --> 01:29:53,680
is made without a warrant, which
is allowed for felonies based on

1852
01:29:53,680 --> 01:29:56,360
probable cause or misdemeanors 
committed in the officer's 

1853
01:29:56,360 --> 01:29:59,760
presence, the arrested person 
must be brought promptly before 

1854
01:29:59,760 --> 01:30:03,080
a magistrate for an initial 
hearing, usually within 48 

1855
01:30:03,080 --> 01:30:06,280
hours, to determine if there was
probable cause for the arrest. 

1856
01:30:06,720 --> 01:30:09,880
That's the County of Riverside V
McLaughlin rule from 1991. 

1857
01:30:09,880 --> 01:30:13,640
OK, Fifth Amendment, huge one. 
Huge for criminal procedure. 

1858
01:30:13,880 --> 01:30:16,640
It requires a grand jury 
indictment for serious federal 

1859
01:30:16,640 --> 01:30:19,200
charges, though this right 
hasn't been fully incorporated 

1860
01:30:19,200 --> 01:30:21,320
against the state, so many 
states use prosecutors 

1861
01:30:21,320 --> 01:30:24,320
informations instead. 
More famously, it protects 

1862
01:30:24,320 --> 01:30:27,360
against compelled self 
incrimination, the right to 

1863
01:30:27,360 --> 01:30:30,080
remain silent. 
Miranda, Exactly. 

1864
01:30:30,320 --> 01:30:33,800
This is the basis for the famous
Miranda V Arizona ruling in 

1865
01:30:33,800 --> 01:30:37,640
1966, which requires police to 
inform suspects of their right 

1866
01:30:37,640 --> 01:30:40,600
to remain silent and right to 
counsel before engaging in 

1867
01:30:40,600 --> 01:30:44,080
custodial interrogation. 
And the Fifth Amendment also 

1868
01:30:44,080 --> 01:30:46,840
protects against double 
jeopardy, meaning you cannot be 

1869
01:30:46,840 --> 01:30:49,480
tried twice by the same 
sovereign for the same offense 

1870
01:30:49,480 --> 01:30:51,360
after an acquittal or 
conviction. 

1871
01:30:51,360 --> 01:30:53,520
Then the 6th Amendment 
guarantees trial rights. 

1872
01:30:53,520 --> 01:30:56,680
Yes, a whole suite of rights 
critical to a fair trial. 

1873
01:30:57,040 --> 01:31:00,200
The right to a speedy and public
trial by an impartial jury in 

1874
01:31:00,200 --> 01:31:01,680
the location where the crime 
occurred. 

1875
01:31:02,120 --> 01:31:05,200
It also includes the right to be
informed of the specific charges

1876
01:31:05,200 --> 01:31:07,680
against you. 
The right to confront and cross 

1877
01:31:07,680 --> 01:31:11,240
examine witnesses against you. 
The right to compel favorable 

1878
01:31:11,240 --> 01:31:15,040
witnesses to testify, subpoena 
power, and crucially, the right 

1879
01:31:15,040 --> 01:31:17,800
to have the assistance of 
counsel for your defense. 

1880
01:31:18,160 --> 01:31:20,520
And that applies even if you 
can't afford a lawyer. 

1881
01:31:20,680 --> 01:31:24,720
Yes, this right was famously 
extended to indigent defendants 

1882
01:31:24,720 --> 01:31:29,000
in state felony cases and later 
many misdemeanors in getting in 

1883
01:31:29,000 --> 01:31:32,560
view Wainwright in 1963. 
The state has to provide a 

1884
01:31:32,560 --> 01:31:35,760
lawyer if you can't afford one. 
8th Amendment. 

1885
01:31:36,040 --> 01:31:39,720
The 8th Amendment prohibits 
excessive bail and fines, though

1886
01:31:39,720 --> 01:31:42,960
the right to bail isn't absolute
and perhaps most importantly, 

1887
01:31:42,960 --> 01:31:45,680
bans cruel and unusual 
punishments. 

1888
01:31:46,320 --> 01:31:48,920
This is the basis for challenges
to the death penalty and 

1889
01:31:48,920 --> 01:31:52,080
conditions of confinement. 
And the 14th Amendment ties it 

1890
01:31:52,080 --> 01:31:54,040
all together for the states. 
Essentially, yes. 

1891
01:31:54,520 --> 01:31:57,560
Ratified in 1868, it's due 
process clause has been 

1892
01:31:57,560 --> 01:31:59,960
interpreted to incorporate most 
of the Bill of Rights 

1893
01:31:59,960 --> 01:32:02,680
protections, making them 
applicable to state and local 

1894
01:32:02,680 --> 01:32:04,320
governments and not just the 
federal government. 

1895
01:32:04,640 --> 01:32:07,040
It also provides its own 
independent guarantee of 

1896
01:32:07,040 --> 01:32:10,040
fundamental fairness, and it's 
equal protection clause 

1897
01:32:10,040 --> 01:32:12,720
prohibits states from denying 
any person within their 

1898
01:32:12,720 --> 01:32:15,320
jurisdiction the equal 
protection of the laws 

1899
01:32:15,320 --> 01:32:17,360
preventing arbitrary 
discrimination. 

1900
01:32:17,920 --> 01:32:20,840
These provisions collectively 
define suspects and defendants 

1901
01:32:20,840 --> 01:32:23,880
rights and severely limit 
governmental authority at every 

1902
01:32:23,880 --> 01:32:25,880
stage. 
OK, let's walk through the 

1903
01:32:25,880 --> 01:32:28,880
pretrial proceedings, the early 
stages after an arrest. 

1904
01:32:29,280 --> 01:32:33,040
First major issue is usually 
bail right release pending 

1905
01:32:33,040 --> 01:32:35,240
trial. 
Yes, bail determines whether a 

1906
01:32:35,240 --> 01:32:37,640
defendant is released from 
custody while the case is 

1907
01:32:37,640 --> 01:32:40,600
ongoing. 
For minor charges, police might 

1908
01:32:40,600 --> 01:32:43,440
have discretion to release 
suspects after booking 

1909
01:32:43,520 --> 01:32:47,000
fingerprinting photo on their 
own recognizance, a written 

1910
01:32:47,000 --> 01:32:51,120
promise to appear, or after 
posting a preset amount of cash 

1911
01:32:51,120 --> 01:32:53,000
bail. 
And for serious crimes. 

1912
01:32:53,000 --> 01:32:56,080
For more serious crimes, a judge
sets bail conditions at an 

1913
01:32:56,080 --> 01:32:58,680
initial court appearance, 
arraignment or bail hearing. 

1914
01:32:59,280 --> 01:33:02,360
The judge considers factors like
the severity of the crime, the 

1915
01:33:02,360 --> 01:33:04,800
defendants ties to the 
community, flight risk, and 

1916
01:33:04,800 --> 01:33:06,360
potential danger to the 
community. 

1917
01:33:06,920 --> 01:33:09,640
Bail might involve posting 
money, property or getting a 

1918
01:33:09,640 --> 01:33:12,000
bail bond. 
Or the judge might deny bail 

1919
01:33:12,000 --> 01:33:15,360
altogether in certain capital 
cases or if the defendant poses 

1920
01:33:15,360 --> 01:33:17,080
an extreme flight risk or 
danger. 

1921
01:33:17,080 --> 01:33:18,840
Connected to this is the right 
to an attorney. 

1922
01:33:18,840 --> 01:33:21,240
When does that kick in? 
As we mentioned, police must 

1923
01:33:21,240 --> 01:33:23,640
inform suspects of this right 
before any custodial 

1924
01:33:23,640 --> 01:33:26,240
interrogation. 
Miranda and for indigent 

1925
01:33:26,240 --> 01:33:28,680
defendants, the government must 
provide an attorney. 

1926
01:33:29,120 --> 01:33:33,080
Gideon, while an attorney isn't 
always required immediately upon

1927
01:33:33,080 --> 01:33:37,120
arrest unless questioning is 
intended, the right definitely 

1928
01:33:37,120 --> 01:33:40,480
attaches at formal proceedings 
like arraignments, preliminary 

1929
01:33:40,480 --> 01:33:44,560
hearings, and, of course, trial.
An attorney appointed early can 

1930
01:33:44,560 --> 01:33:48,040
also argue for bail reduction. 
The arraignment itself, what 

1931
01:33:48,040 --> 01:33:49,800
happens there? 
The arraignment is a formal 

1932
01:33:49,800 --> 01:33:52,040
hearing where the defendant is 
brought before a judge, 

1933
01:33:52,240 --> 01:33:54,600
officially informed of the 
charges listed in the indictment

1934
01:33:54,600 --> 01:33:56,840
or information, and asked to 
enter a plea. 

1935
01:33:57,320 --> 01:34:00,040
Guilty, not guilty or sometimes 
no. 

1936
01:34:00,040 --> 01:34:03,400
Low contender, no contest. 
Do most people plead guilty 

1937
01:34:03,400 --> 01:34:05,440
then? 
Few felony defendants plead 

1938
01:34:05,440 --> 01:34:08,520
guilty at this early stage. 
Usually, they plead not guilty 

1939
01:34:08,520 --> 01:34:11,120
to preserve their rights while 
their attorney investigates. 

1940
01:34:11,320 --> 01:34:14,520
It's more common to see guilty 
pleas for misdemeanors or 

1941
01:34:14,520 --> 01:34:17,640
traffic offenses at arraignment.
What about preliminary hearings?

1942
01:34:17,880 --> 01:34:20,840
Preliminary hearings, or 
sometimes grand jury proceedings

1943
01:34:20,840 --> 01:34:23,640
occur in many jurisdictions 
after arraignment for felonies. 

1944
01:34:24,240 --> 01:34:26,560
Here, the prosecutor must 
present enough evidence to 

1945
01:34:26,560 --> 01:34:30,160
persuade a judge or grand jury 
that there is probable cause to 

1946
01:34:30,160 --> 01:34:32,560
believe that a crime was 
committed and that the defendant

1947
01:34:32,560 --> 01:34:34,760
committed it. 
It acts as a check on the 

1948
01:34:34,760 --> 01:34:37,320
prosecution's decision to 
charge, ensuring there's 

1949
01:34:37,320 --> 01:34:39,200
sufficient evidence to proceed 
to trial. 

1950
01:34:39,400 --> 01:34:41,480
The defense can cross examine 
witnesses. 

1951
01:34:42,960 --> 01:34:46,000
If the case proceeds, eventually
we get to the trial process 

1952
01:34:46,000 --> 01:34:47,840
itself, starting with jury 
selection. 

1953
01:34:47,880 --> 01:34:50,840
Right war dire. 
This is where potential jurors 

1954
01:34:50,840 --> 01:34:54,000
are questioned by the judge and 
or attorneys to determine their 

1955
01:34:54,000 --> 01:34:57,360
suitability to serve. 
Jurors must be drawn from a fair

1956
01:34:57,360 --> 01:35:00,040
cross section of the community 
and they cannot be excluded 

1957
01:35:00,040 --> 01:35:03,560
based solely on race or gender. 
Batson challenges. 

1958
01:35:03,560 --> 01:35:06,240
And the goal is to find bias. 
Exactly. 

1959
01:35:06,440 --> 01:35:09,920
Attorneys question potential 
jurors to identify bias or 

1960
01:35:09,920 --> 01:35:12,160
prejudice that would prevent 
them from being fair and 

1961
01:35:12,160 --> 01:35:14,680
impartial. 
They can challenge jurors for 

1962
01:35:14,680 --> 01:35:18,680
'cause if bias is shown, or use 
a limited number of peremptory 

1963
01:35:18,680 --> 01:35:21,320
challenges to strike jurors 
without needing to state a 

1964
01:35:21,320 --> 01:35:24,800
reason, though these cannot be 
used discriminatorily based on 

1965
01:35:24,800 --> 01:35:27,400
race or gender. 
What about jury size and 

1966
01:35:27,400 --> 01:35:29,200
verdicts? 
Are they always 12 people and 

1967
01:35:29,200 --> 01:35:32,000
unanimous? 
Not necessarily, and this has 

1968
01:35:32,000 --> 01:35:35,480
tricky rules for exams. 
While the federal system in many

1969
01:35:35,480 --> 01:35:38,960
states use 12 member juries for 
criminal cases, the Supreme 

1970
01:35:38,960 --> 01:35:41,880
Court has allowed states to use 
smaller juries down to six 

1971
01:35:41,880 --> 01:35:44,840
members even for serious non 
capital felonies. 

1972
01:35:45,320 --> 01:35:48,640
Many states use 6 to 8 member 
juries for misdemeanors, and 

1973
01:35:48,640 --> 01:35:50,960
some use smaller juries for 
certain felonies. 

1974
01:35:51,360 --> 01:35:54,480
However, the Court has ruled 
that 6 member juries must reach 

1975
01:35:54,480 --> 01:35:58,840
unanimous verdicts to convict. 
Birch V Louisiana, 1979. 

1976
01:35:59,040 --> 01:36:01,360
But 12 member juries don't have 
to be unanimous. 

1977
01:36:01,600 --> 01:36:04,760
Interestingly, for 12 member 
juries, the Supreme Court has 

1978
01:36:04,760 --> 01:36:08,920
held that non anonymous verdicts
are constitutionally permissible

1979
01:36:08,920 --> 01:36:14,000
if allowed by state law. 
Apoda Govi, Oregon, 1972, though

1980
01:36:14,000 --> 01:36:16,520
this was recently revisited and 
limited in Ramos V. 

1981
01:36:16,520 --> 01:36:19,840
Louisiana for future cases 
requiring unanimity now in 

1982
01:36:19,840 --> 01:36:21,880
federal and state courts for 
serious crimes. 

1983
01:36:22,880 --> 01:36:26,080
But historically and still in 
some contexts, non unanimous 

1984
01:36:26,080 --> 01:36:28,680
verdicts by larger juries were 
allowed by some states. 

1985
01:36:28,720 --> 01:36:30,680
You need to know the rule for 
your jurisdiction. 

1986
01:36:30,760 --> 01:36:34,160
Wow, complex during the trial 
presentation itself. 

1987
01:36:34,320 --> 01:36:36,880
During the trial, both the 
prosecutor and defense attorney 

1988
01:36:36,880 --> 01:36:39,480
present their cases. 
They give opening statements, 

1989
01:36:39,480 --> 01:36:42,280
present evidence, testimony, 
documents, physical objects, 

1990
01:36:42,560 --> 01:36:45,280
call and question witnesses, 
direct examination, cross 

1991
01:36:45,280 --> 01:36:48,280
examination, and raise 
objections based on rules of 

1992
01:36:48,280 --> 01:36:51,120
evidence and procedure. 
Each side attempts to persuade 

1993
01:36:51,120 --> 01:36:53,960
the jury or the judge in a bench
trial if the defendant waives a 

1994
01:36:53,960 --> 01:36:56,120
jury of the defendants guilt or 
innocence. 

1995
01:36:56,120 --> 01:36:59,280
And the standard for conviction.
The conviction standard in all 

1996
01:36:59,440 --> 01:37:01,560
US criminal cases is incredibly 
high. 

1997
01:37:02,040 --> 01:37:05,520
The prosecution must prove every
element of the crime beyond a 

1998
01:37:05,520 --> 01:37:08,520
reasonable doubt. 
This is the highest burden of 

1999
01:37:08,520 --> 01:37:12,120
proof in the legal system. 
Jurors must follow the judges 

2000
01:37:12,120 --> 01:37:15,560
instructions on the relevant law
and apply that law to the facts 

2001
01:37:15,560 --> 01:37:18,600
as they find them, based only on
the admitted evidence. 

2002
01:37:18,600 --> 01:37:21,000
Where do these laws and 
procedures come from? 

2003
01:37:21,120 --> 01:37:24,240
The governing laws for trials, 
both substantive criminal law 

2004
01:37:24,240 --> 01:37:27,120
and criminal procedure, are 
created primarily by state 

2005
01:37:27,120 --> 01:37:30,920
legislatures or the US Congress.
These statutes are then 

2006
01:37:30,920 --> 01:37:33,880
interpreted and refined by 
appellate courts, including 

2007
01:37:33,880 --> 01:37:36,720
state supreme courts and 
ultimately the US Supreme Court.

2008
01:37:37,440 --> 01:37:39,960
US Supreme Court decisions 
interpreting the Constitution 

2009
01:37:39,960 --> 01:37:43,040
serve as the ultimate 
guideposts, telling trial judges

2010
01:37:43,040 --> 01:37:45,720
in lower courts how to apply 
constitutional rights throughout

2011
01:37:45,720 --> 01:37:49,400
the entire criminal process. 
Mastering these procedural rules

2012
01:37:49,400 --> 01:37:51,640
is just as vital as 
understanding the substantive 

2013
01:37:51,640 --> 01:37:53,720
crimes themselves. 
For a complete picture of the 

2014
01:37:53,720 --> 01:37:56,600
justice system, and of course, 
for exam success. 

2015
01:37:57,000 --> 01:37:59,320
Absolutely critical. 
Hashtag tag tag tag outro. 

2016
01:37:59,560 --> 01:38:01,760
So we've navigated A tremendous 
amount of ground today. 

2017
01:38:01,760 --> 01:38:04,040
Haven't we really covered a lot?
We certainly have. 

2018
01:38:04,120 --> 01:38:07,560
From the foundational bundle of 
sticks concept and property law,

2019
01:38:07,920 --> 01:38:12,040
dissecting complex estates, 
transactions, land use controls,

2020
01:38:12,720 --> 01:38:16,440
all the way through to the core 
elements of criminal liability, 

2021
01:38:16,920 --> 01:38:20,920
exploring those nuanced inco it 
crimes and then delving deep 

2022
01:38:20,920 --> 01:38:24,680
into the crucial constitutional 
safeguards of criminal procedure

2023
01:38:24,840 --> 01:38:26,960
that protect individual rights 
at every step. 

2024
01:38:27,000 --> 01:38:30,120
It's truly a testament to the 
interconnectedness and frankly, 

2025
01:38:30,120 --> 01:38:34,040
the sheer intellectual depth of 
these legal fields for your law 

2026
01:38:34,040 --> 01:38:36,400
school exams and definitely for 
the bar exam. 

2027
01:38:36,720 --> 01:38:40,000
Mastering these areas isn't just
about, you know, memorizing 

2028
01:38:40,000 --> 01:38:40,960
rules. 
This is more than that. 

2029
01:38:41,240 --> 01:38:43,720
It's about identifying those 
recurring patterns, 

2030
01:38:44,000 --> 01:38:46,760
understanding the subtle yet 
critical distinctions between 

2031
01:38:46,760 --> 01:38:50,040
concepts like larceny versus 
embezzlement or joint tenancy 

2032
01:38:50,040 --> 01:38:53,200
versus tenancy in common, and 
most importantly, connecting all

2033
01:38:53,200 --> 01:38:56,200
these legal principles to real 
world scenarios and the fact 

2034
01:38:56,200 --> 01:38:58,200
patterns you'll inevitably face 
on exams. 

2035
01:38:58,200 --> 01:39:00,000
Those analytical skills. 
Exactly. 

2036
01:39:00,280 --> 01:39:02,920
These are the analytical skills 
essential not just for passing 

2037
01:39:02,920 --> 01:39:06,320
your exams, but honestly for 
building a truly successful and 

2038
01:39:06,320 --> 01:39:08,240
competent legal career. 
Absolutely. 

2039
01:39:08,640 --> 01:39:11,320
So as you continue to deepen 
your understanding of these core

2040
01:39:11,320 --> 01:39:13,720
legal fields, maybe consider 
this final thought. 

2041
01:39:14,400 --> 01:39:17,600
How did the fundamental rights 
of property ownership, the 

2042
01:39:17,600 --> 01:39:20,600
state's legitimate need for 
order and safety, and an 

2043
01:39:20,600 --> 01:39:22,880
individual's inherent right to 
defend themselves? 

2044
01:39:23,560 --> 01:39:27,800
How do these truly balance in a 
just society, especially when 

2045
01:39:27,800 --> 01:39:30,880
those deeply held, often 
unexamined values we talked 

2046
01:39:30,880 --> 01:39:34,080
about inevitably clash? 
That's a great question to 

2047
01:39:34,080 --> 01:39:35,760
ponder. 
A lot to think about. 

2048
01:39:35,760 --> 01:39:37,800
There, keep pondering that as 
you continue your journey 

2049
01:39:37,800 --> 01:39:40,000
through the law, and we'll see 
you next time on the Deep dive.