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The Secret to Legal Reasoning Mingchao Fan (SHUPL) -All rights reserved.

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1 The Secret to Legal Reasoning Mingchao Fan (SHUPL) -All rights reserved

2 What is IRAC? Iusse: to identify the issue Rules: to state and explain the rules Application: to apply the rules to the facts Conclusion: to conclude

3 An Example For IRAC Facts: Paul Quint and Melody Jones, residents of British Columbia, after ten years of marriage, are getting divorced. They have two children, Lindsay and Wayne, and have agreed that the children will stay with Melody. However, they cannot reach an agreement as to the division of property. They own a house and a boat on Salty Island. In addition, two years ago, Melody was given an $20,000 gift from her grandmother, which she put into a separate bank account in her own name.

4 An Example For IRAC Issue: How the assets, namely, the house, the boat and $20,000 in the bank account under Melodys name, should be divided when Paul and Melody divorce.

5 An Example For IRAC Rules(statement): Family Property Act (applies to all residents of British Columbia) S.8Upon marriage breakdown each spouse is entitled to a half interest in the family assets. S.9 (1)Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset includes: (a) money, including inheritances or gift, obtained while in the marriage; (b) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan; (c) a right, share or an interest of a spouse in a venture to which money or moneys worth was, directly or indirectly, contributed by or on behalf of the other spouse.

6 An Example For IRAC Rules (statement): Family Property Act (applies to all residents of British Columbia) S.10Where the provisions for division of property between spouses under S.8 would be unfair having regard to: (a) the duration of the marriage; (b) the duration of the period during which the spouses have lived separate and apart; (c) the date when property was acquired or disposed of; (d) the extent to which the property was acquired by one spouse through inheritance or gift; (e) the needs of each spouse to become or remain economically independent and self sufficient, or; (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse.

7 An Example For IRAC Rules (statement): Bogman v. Bregman Jill Bogman petitioned for a divorce from her husband, Keven Bregman, and asked the court to make a determination about the division of assets. The court declared that pursuant to S.8 of the Family Property Act a summer cabin, a camper van, and the contents of matrimonial home were family assets and were divided equally between Jill and Kevin. A question arose as to whether Jills registered retirement plan was a family asset. Jill acquired the plan through a monetary gift from her mother and kept it in a separate bank account under her name.

8 An Example For IRAC Rules (statement): Bogman v. Bregman The court held that the retirement savings plan was not to be divided equally between Jill and Kevin. Although the savings plan was automatically included within the definition of family assets under S.9(2)(b) of the Family Property Act, the fund was a gift from her mother, not used for family purpose, and was kept in a separate bank account. Therefore the court exercised its jurisdiction under S.10 of the Family Property Act. Although the court considered the fact that the gift had been received ten years prior and was fairly entrenched in the family assets, this factor was not deemed to be as relevant as the other facts in this particular situation.

9 An Example For IRAC Rules (explanation): 1. The law provides that upon marriage breakdown family assets must be shared equally between the marriage partners. Family assets include gifts, inheritances, and registered retirement savings plans obtained while in the marriage. 2. However, a court may alter this division if the division would be unfair having regard to a number of factors including the extent to which property was acquired by one spouse through inheritance or gift pursuant to S.10(d) of the Family Property Act.

10 An Example For IRAC Rules (explanation): 3. A case that interpreted this section (Bogman v. Bregman) found that in determining whether the inclusion of a gift is unfair and the extent to which the property was acquired by gift the court would look at the following three factors: -- Whether the gift was kept in a separate bank account -- Whether it was used for family purposes; and -- How long it had been in the hands of the recipient.

11 An Example For IRAC Application: 1. the division of the house and the boat --The house and the boat are owned by the both spouses and ordinarily used for family purpose; --They fall in the definition of family assets under S.9(a); --Being family assets, they shall be equally divided according to S.8.

12 An Example For IRAC Application: 2. the division of $20,000 --$ 20,000 is not a family asset and should not be equally divided because --It was a gift received while Melody and Paul were married; --However, it was a gift from Melodys grandmother; --it was kept in a separate account; --accordingly, it was not used for family purposes and cannot be deemed as a family asset as defined in S.9; --therefore, it should not be shared equally between the marriage partners pursuant to S.8.

13 An Example For IRAC Application: 2. the division of $20,000 Alternatively --Even if $20,000 is a family asset, it should not be equally divided because --Melody received $20,000 only two years ago. It is doubtful if it has been entrenched in the family assets; -- Even if it has, it is not as relevant as the fact that it was a gift from Melodys grandmother, kept in Melodys separate bank account and not used for family purposes, according to Bogman v. Bregman; --It would be unfair to divide $20,000 equally between Melody and Paul, pursuant to S.10(d); --Therefore, $20,000 should not be equally divided.

14 An Example For IRAC Conclusion: $20,000 should not be divided equally between Melody and Paul.

15 An Example For IRAC Facts: Person A walks into a grocery store and picks up a loaf of bread. He then stuffs the bread beneath his jacket. A security attendant sees him and follows him to the cash register. Person A passes through without stopping to pay for anything. The security attendant stops him at the gate. He detains person A while he interrogates him. Person A is unresponsive and uncooperative and in fact downright hostile to the charges being leveled at him by the security attendant. Person A is held for a period of two hours at the end of which it is found that he had actually put the loaf of bread back and was not stealing. Person A sues the grocery store for false imprisonment. Would person A prevail in court?

16 An Example For IRAC (continued) Issue: Does the detention of Person A constitute a falsely imprisonment?

17 An Example For IRAC (continued) Rules: Most jurisdictions in the United States allow recovery for false imprisonment. The courts look at two elements in determining whether a person has been falsely imprisoned, namely just cause and authority. In looking at the element of just cause, courts further analyze two factors: reasonable suspicion and the environment in which the actions take place. If a person suspects that he is being deprived of property legally attached to him and he can show that his suspicions are reasonable then he is said to have a reasonable suspicion. Courts also look at whether the activity in question took place in an environment where stealing is common. Crowded public places and shops are considered to be more justifiable places where a person could have just cause for reasonable suspicion in comparison to private property or sparsely populated areas.

18 An Example For IRAC (continued) Rules: In looking at the other element of authority, the courts tend to favor people directly charged with handling security as people with the authority to detain a person in comparison to private individuals. The courts have made exceptions in the favor of the person conducting the detention if he is a shopkeeper. This special privilege is called the shopkeeper's privilege. In general the element of authority is usually seen as one part of a two part legal justification for legally justifiable detention. For example in cases involving detention by an officer of the law, courts have ruled that the officer has to have both just cause and authority. Authority in itself is not enough. The same reasoning applies to all detaining individuals. Exceptions are made in the case where a person of authority has to conduct an investigation with just cause and courts usually grant a reasonable amount of time in detention for this purpose. Here the reasonable amount of time a person can be kept in detention is directly related to the circumstances under which the detention takes place.

19 An Example For IRAC (continued) Application: Person A was conducting his activity in a crowded place that happened to be a grocery store. He was further detained by a security attendant. The security attendant had seen him pick up a loaf of bread and walk past the cash register without paying. The security attendant detained him until he discovered that no theft had taken place. Person A was subsequently released upon this determination of fact.

20 An Example For IRAC (continued) Application: A court looking at these facts would try to apply the two elements of false imprisonment. The first element of false imprisonment is just cause. The first factor of just cause is reasonable suspicion. The security attendant saw person A pick up a loaf of bread and stuff it beneath his jacket. This is an uncommon action as most grocery shop customers usually do not hide produce under their personal belongings. The security attendant, therefore, has reasonable suspicion because a reasonable person in his place would have also considered this action to be suspicious. Person A further walks by the cash register without paying. The security attendant has already seen person A hiding the bread under his jacket and honestly believes that person A is still in possession of the loaf of bread. A reasonable person in the security attendant's stead would arguably act to stop person A. Thus, this seems to satisfy the first factor of the element of just cause, reasonable suspicion.

21 An Example For IRAC (continued) Application: The second factor of the element of just cause is the environment. The activity takes place in a grocery store. A grocery store is usually a place where shoplifters and other thieves operate regularly. This reduces the burden of just cause placed on the person performing the detention. The security attendant has to be unusually vigilant and suspicious of a person's motive because of his location. This then seems to satisfy the second factor of the element of just cause, environment.

22 An Example For IRAC (continued) Application: The second element of false imprisonment is authority. The person performing the detention of A is the security attendant of the grocery store. He is the person charged with securing the grocery store and its property. The security attendant sees person A put the loaf of bread underneath his coat and walk through the checkout without paying. The security attendant now has to act because he has been charged with the security of the store and he has just cause. The security attendant performs the investigation after he puts person A in detention and it takes two hours. Two hours might seem like an unreasonable amount of time but given the fact that person A was unresponsive and uncooperative it seems to be reasonable. It also seems as if the security attendant was doing his due diligence as he releases person A as soon as the facts are established and it is shown that person A was not stealing the loaf of bread.

23 An Example For IRAC (continued) Application: Finally we have to look at the fact that since the activity took place in a grocery store, the shopkeeper's privilege applies directly to the security attendant in charge of securing the store and its property. This privilege gives the security attendant extra leeway in detaining people in whom he has reasonable suspicion. Most courts would lean heavily towards the shopkeeper because person A was on the property of the grocery store and thus could be subjected to extra scrutiny given the long history of the shopkeeper's privilege in common law.

24 An Example For IRAC (continued) Conclusion: The detention of Person A most unlikely constitutes false imprisonment because the security attendant does not satisfy either element of false imprisonment. The detention of person A was legal because the security attendant had both just cause and authority. Additionally, the shopkeeper's privilege further solidifies the legality of the detention. Person A, therefore, has no recourse under the law.

25 An Example For IRAC (continued) Discussion: What if this happens in China? Identify the issue as Does the detention of Person A constitute a criminal offense, namely, falsely imprisonment?

26 An Example For IRAC (continued) Discussion: What if this happens in China? Rules:

27 Exercise 1 000 100

28 Exercise

29 Exercise Fact Pattern: Kendra Pendleton and Tom Shipton, both Montana residents, met in January 2009 and dated regularly during the first six months of that year. On the weekend of June 18, 2009, the couple rented a cabin, and on Sunday June 20, 2009, Tom woke up a little earlier than Kendra and gently nudged her awake. When she woke up he asked her to get out of bed and stand up. Then he got down on one knee and said, I dont believe a justice of the peace or minister is necessary to make a bond of marriage between two people. I want us to be together forever. Will you be my wife? Kendra said yes and from June 20, 2009 forward, the parties held themselves out in public as husband and wife. On November 8, 2009, Kendra ended the relationship and asked Tom to leave the marital home, which Kendra had purchased before the marriage. As Tom was leaving, Kendra handed Tom a piece of paper and said, In case you thought I did not know. The paper was a photocopy of an order dated October 8, 2009 granting Tom a divorce from Ms. Tammy Brethren. Is the parties June 20, 2009 agreement to marry valid?

30 Exercise Authorities to be used: 1. Montana Code Annotated 2003 40-1-101. Purposes. This chapter shall be liberally construed and applied to promote its underlying purposes, which are to: (1) provide adequate procedures for the solemnization and registration of marriage; (2) strengthen and preserve the integrity of marriage and safeguard family relationships. §40-1-403, Formalities. Common-law marriages are not invalidated by this chapter…

31 Exercise Authorities to be used: 2. Estate of Vandenhook, 259 Mont. 201 (1993). The girlfriend filed a demand for notice and a statement of her interest in the estate as the decedent's common law wife and a beneficiary under the will. The estate filed a motion for a summary judgment. On consideration, the district court ruled that the girlfriend did not establish a claim and entered a summary judgment for the estate. On appeal, the girlfriend contended that she and the decedent entered a common law marriage. The court affirmed the judgment denying the girlfriend's claim and held that the girlfriend had not met her burden of demonstrating a genuine issue of fact as to the third element necessary to show a common law marriage, cohabitation and repute. To establish a common law marriage the party alleging the existence of the marriage had the burden of proving: 1) that the parties were capable of consenting to the marriage; 2) that the parties assumed such a relationship by mutual assent and agreement; and 3) that the parties established the marriage by cohabitation and repute.

32 Exercise Authorities to be used: 3. Estate of Schanbacher, 182 Mont. 176 (1979) Prior to his death, the deceased, who travelled often for business and used two surnames, had two separate wives and families. His first wife predeceased him, and he continued his relationship with his second, common law wife. After his death, a child of his first marriage was appointed the personal representative of the deceased's estate. The common law wife and children filed a petition for family allowance, exempt property, a homestead allowance, and a widow's elective share of the deceased's estate. Summary judgment was entered against the common law wife and children, and their petition was dismissed. On appeal, the court reversed the summary judgment and remanded for a trial on the merits. Montana recognized common law marriages under Mont. Code Ann. §40-1-403. The court held that after the death of the first wife, the relationship between the deceased and the second wife constituted a common law marriage. The court remanded for a determination of whether the children of the common law marriage were considered issue of the decedent; a fact issue that could not have been determined by summary judgment.

33 Exercise Authorities to be used: 4. Estate of Alcorn, 263 Mont 353 (1994) The heir argued that the decedent's wife failed to prove that she and the decedent were ever married. The court affirmed the judgment of the trial court. The court held that there was sufficient evidence to support a finding that a common law marriage existed between the decedent and the decedent's wife under Mont. Code Ann. §40-1- 403. The court found that the cohabitation of the decedent and the decedent's wife prior to her final divorce was not fatal because they became competent to enter into marriage as of the date of the removal of the impediment pursuant to Mont. Code Ann. §40-2-401(2). The court also found that the parties evidenced their mutual consent by buying a wedding ring and by designing their marital home. The court further found that the cohabitation and repute requirement was met because they cohabited for nearly nine years and held themselves out as husband and wife by the decedent's wife wearing the wedding ring, sharing a joint checking account, hosting family gatherings and other parties at their home, and by witness testimony that the decedent and the decedent's wife were considered to be married.

34 Exercise Authorities to be used: 5. Matthews v. Britton, 303 F.2d 408, 409 (1962) The record disclosed that in 1935, the claimant and alleged husband had mutually agreed to live together as wife and husband and began their cohabitation, which continued uninterrupted until the alleged husband's death in 1957. However, in 1919, the claimant had been legally married to another man and had remained married to him until he secured a divorce in 1951. On this basis, the claimant's application for benefits as a surviving common-law wife under the Longshoremen's and Harbor Workers' Compensation Act was denied. On appeal, the court agreed that, in the absence of a valid divorce, the claimant's marriage to another man precluded any other lawful marriage by her, no matter how much she and the alleged husband had purported to be lawfully married or how much they acted as if they were married. However, the record as a whole supported a finding that there was an agreement to be married before the impediment was removed and continued thereafter to cohabit and live together as husband and wife. Thus, a common-law union was effected when the divorce was awarded in 1951.

35 Sample Answer ¶1Did Kendra Pendleton and Thomas Shipton have the ability to consent to common law marriage if Tom was married when he asked Kendra to be his wife on June 20, 2009? ¶2Common law marriage is recognized in Montana under § 40-1-403, Mont. Code Ann. (2003), and exists if two people: (1) have the capacity to consent, (2) consent, (3) cohabitate and engage in public repute. Estate of Vandenhook, 259 Mont. 201 (1993). The first element, capacity to consent, cannot exist if there is a previously existing marriage. See § 40-1- 401(1)(a), and (2), Mont. Code Ann. (2003). Upon the first marriages termination, the second marriage can immediately come into existence if the other elements of common law marriage exist. See Estate of Schanbacher, 182 Mont. 176 (1979); Estate of Alcorn, 263 Mont 353 (1994).

36 Sample Answer ¶3In Estate of Schanbacher, the court held that the decedent had the capacity to consent to his second marriage after his first wifes death. 182 Mont. 176, 181 (1979). Decedent married his first wife in 1916 and remained married to her until her death in 1973. Id. at 177. Decedent married appellant, his second wife, by wedding ceremony in 1952 and lived with her until his death in 1976. Id. at 177, 180. In upholding the second marriage upon the first wifes death the court commented that § 40-1-401, Mont. Code Ann. (2003), is based on a progressive policy and stated that once parties agree to marry they do not need to agree again once the marriage impediment is eliminated. Id. at 183; citing Matthews v. Britton, 303 F.2d 408, 409 (1962). ¶4In Estate of Alcorn, the court held that the parties had the capacity to consent to a common law marriage upon the termination of the respondents first marriage. 263 Mont 353 (1994). Respondent and decedent lived together from August 1981 until decedents death in 1991, and respondents divorce in a prior marriage was finalized in May 1985. Id. at 354. The courts decision in Alcorn was based in part on the plain language of § 40-1-401(2), Mont. Code Ann. (2003), which states that parties cohabitating after removal of an impediment are lawfully married as of the date the impediment is removed. Id.

37 Sample Answer ¶5Tom and Kendra had the capacity to consent to marriage in the present case after Toms divorce in a prior marriage was finalized. The parties consented to marriage on June 20, 2009, and held themselves out as married until November 2009, despite Tom being married to Tammy Brethren until October 8, 2009. The present case is similar to Schanbacher and Alcorn because in both precedent cases, courts held that the parties had the capacity to consent to a second marriage when their previous marriages ended. Additionally, under Schanbacher, Tom and Kendra do not need to restate their consent to marry once they have capacity, even if their consent occurred before the capacity to consent existed. 182 Mont. at 183; citing Matthews v. Britton, 303 F.2d 408, 409. Once Toms divorce from Tammy Brethren was finalized on October 8, 2009, the parties had the capacity to consent and their consent to marry from June 20, 2009 became valid.


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