Author: Kyle Graham


Los Angeles Civil Court Records, 1850-1859

This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900.  There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.

The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.

I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York  legal formbook.  The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.

I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.

In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:

Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.


The Annals of Scholarly Opportunism

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: August 5, 2003
Re: My Article “College Admissions, Equal Protection, and the ‘Dock-Yard’ Clause: What Gratz v. Bollinger Tells Us About Article I, Section 8, Clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “College Admissions, Equal Protection, and the ‘Dock-Yard’ Clause: What Gratz v. Bollinger Tells Us About the “Dock-Yards” of Article I, Section 8, Clause 17 of the United States Constitution.” In this article, I discuss how, even though the Gratz Court never expressly or implicitly acknowledged its reliance on the “dock-yards” language within the Constitution, this provision just might have influenced the Court’s resolution of the affirmative-action issue presented in that case.  Or at least, one cannot prove that this provision did not influence the Court.

Please contact me at your first convenience, should you wish to publish this article.


Kyle Graham


To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: August 5, 2005
Re: My Article “Pierless, or Up In Smoke?: Gonzales v. Raich, the Seaside Importation of Marijuana, and the “Dock-Yards” of Article I, Section 8, Clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Pierless, or up in Smoke?: Gonzales v. Raich, the Seaside Importation of Marijuana, and the “Dock-Yards” of Article I, Section 8, Clause 17 of the United States Constitution.” In this article, I discuss how the Founders’ reference of “dock-yards” within our nation’s charter document dovetails with, and lends support to, the Court’s interstate-commerce analysis in Raich.

Please contact me at your first convenience, should you wish to publish this article.


Kyle Graham


To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: August 5, 2006
Re: My Article “Sailing to Guantanamo: Hamdan v. Rumsfeld, Maritime Access to Military Tribunal Sites, and the “Dock-Yards” of Article I, Section 8, Clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Sailing to Guantanamo: Hamdan v. Rumsfeld, Maritime Access to Military Tribunal Sites, and the “Dock-Yards” of Article I, Section 8, Clause 17 of the United States Constitution.” With this piece, I explain how the Founders would have supported military tribunals if, but only if, these tribunals afforded access to maritime trade channels, consistent with the Constitution’s “dock-yard” provision.  This article thus provides a strong rebuke to the Court’s analysis in Hamdan, and provides a framework for analysis of military tribunals going forward.

Please contact me at your first convenience, should you wish to publish this article.


Kyle Graham

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The Policeman’s Legal Digest / A Walk Through the Penal Laws of New York (1934)

I collect old police manuals, mostly because I like to see what police were directed to do before the exclusionary rule came into the picture.  I also enjoy reading the lists of crimes that appear in some of these guides. Are these lists as interesting as the “Mad Men” / Rick Astley mash-up? No. But I take what I can get.

Some of these crimes are still with us; others have vanished from courtrooms in the intervening years. Though that doesn’t necessarily mean they’re off the books; here in California, for example, it’s still a misdemeanor (as it has been since 1872) to kill, wound, or trap any bird within a cemetery, or to destroy any bird’s nest within a cemetery — except, of course, for swallows’ nests, which are specifically exempted by the pertinent statute (Penal Code 598). (Thinking.) Nope, I can’t say that I recall ever invoking this law back when I was a deputy D.A.

One police manual in my collection, M.J. Delahanty’s The Policeman’s Legal Digest, offers an interesting list of crimes that were on the books in circa-1934 New York. In addition to murder, manslaughter, rape, robbery, burglary, theft, and other longtime staples of the criminal docket, the Digest also told officers that they should stay on the lookout for many other crimes that no longer weigh heavily on the minds of most New Yorkers.

For each crime listed in the Digest, the manual identifies the essential elements of the offense (often in a somewhat confusing flowchart manner), as well as the section of the Penal Law or other New York code that relates the crime.  Some of the more exotic — by modern standards — crimes related in the Digest are (the list goes on, and on, after the jump):

Compulsory Prostitution of Wife (Penal Law sec. 1090)

Adultery (PL 100)

Compelling a Woman to Marry (PL 532)

Seduction (PL 2175)

Immoral Plays and Exhibitions (PL 1140-A)

Wayward Minor (C.Cr.P 913-A)

Abortion (PL 80)

Self-Abortion (PL 81)

Manufacturing or Selling (miscarriage) Instruments (PL 82)

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Adventures on the Back of the Envelope, Part III: What’s the Hardest Federal Crime to Prove?

What’s the most difficult federal crime to prove at trial? A little while ago, I tried to answer this question by running a series of inquiries in a database that I’ve put together. This database relates the charge-level disposition of all federal court cases that terminated between October 2002 and September 2009. By framing the proper queries, I can tease out data that, while far from perfect, suggests answers to questions like the one above.  (Among the limitations of the data, the database only lists the five most serious charges in each case, and I’ve spotted some inputting errors by court personnel.)

Anyway, take a guess. I’ll give you an answer after the jump.

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Adventures on the Back of the Envelope, Part II: Warring Definitions of “Probable Cause”

While watching “Win Win” this evening (good movie, BTW), I decided to run another Criminal Procedure back-of-the-envelope drill. This time, I wanted to see if I could track the utilization of the various definitions of “probable cause.”

Among these definitions, courts have stated that probable cause exists “when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime”; when the known facts  “would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”; and when a “prudent person would have concluded that there was a fair probability that the individual had committed a crime.” There are other definitions out there, too; this is just a sampling.

I was a little curious about whether the “fair probability” language has become ever-increasingly prevalent since its unveiling by the United States Supreme Court  in Illinois v. Gates, decided in 1983.  “Fair probability” certainly seems to appear more frequently in recent decisions; do the numbers bear this out?

To find out, I ran another series of searches in the Westlaw ALLCASES database. This time, for each of the years 1980, 1985, 1990, 1995, 2000, 2005, and 2010, I charted the number of cases that featured each of the following phrases, each of which represents the core of a different “probable cause” definition (I have included the Boolean operators that I used in these searches, as well): 1. “fair probability” /p “probable cause”; 2. “honest and strong suspicion” /p “probable cause”; 3. (“reasonable grounds to believe” “reasonable person to believe” “reasonable officer to believe”) /p “probable cause”; 4. “prudent and cautious” /p “probable cause”; 5. “probable cause” /p “reasonable caution.”

I appreciate that there is some mush in the data, since these search terms certainly capture some cases in which the identified descriptive language wasn’t being used to define “probable cause.” But my quick review of the text of the search results suggests that the numbers below appear directionally correct, at least, with the largest number of “junk” results involving the last of these phrasings.

As for these results, the number of cases containing the language above were as follows (with the figures for each year being presented in the same order as the phrasing was listed above):

1980: 0  (FP) / 15 (H+S) / 66 (RG/RP/RO) / 8 (P+C) / 130 (RC)

1985: 113 / 9 / 90 / 10 / 122

1990: 173 / 4 / 116 / 3 / 143

1995: 206 / 7 / 117 / 10 / 182

2000: 246 /10 / 176 / 7 / 245

2005: 470 /33 / 261 / 18 / 315

2010: 747 / 35 / 334 / 16 / 535

So, it looks like the Gates language caught on pretty quickly, battled the previously prevailing “person of reasonable caution” formulation to a draw for a time, and recently pulled ahead–but even today, it only leads, and does not dominate, the field.

I’ve always (OK, only since I started practicing) thought that the “fair probability” phrasing suggests a less stringent standard than the “reasonable caution” language does; but the amorphous nature of probable cause makes it difficult to know what, if any effect, the growing popularity of “fair probability”–if the numbers above are to be believed–has had on mine-run probable cause determinations.


Watching the Door

My colleague, Gerald Uelmen, recently lent me a collection of wonderful articles he has written on legal landmarks in California, famous California murder trials, and other bits of local legal history. In one of these articles (published in the March 1981 edition of Los Angeles Lawyer), Professor Uelmen relates the following (probably apocryphal, as he acknowledges) story:

A criminal defense lawyer is making his closing argument to the jury. His client is accused of murder, but the body of the victim has never been found. He dramatically withdraws his pocket watch and announces to the jury, “Ladies and gentlemen, I have some astounding news. We have found the supposed victim of this murder alive and well, and, in exactly one minute, he will walk through that door into this courtroom.”

A hushed silence falls over the courtroom, as everyone waits for the momentous entry. Nothing happens.

The lawyer then says, “The mere fact that you were watching that door, expecting the victim to walk into this courtroom, suggests that you have a reasonable doubt whether a murder was committed.” Pleased with the impact of the stunt, he then sits down to await an acquittal.

The jury is instructed, files out and files back 10 minutes later with a verdict finding the defendant guilty. Following the proceedings, the astounded lawyer chases after the jury foreman to find out what went wrong. “How could you convict?” he asks. “You were all watching the door!”

The foreman explains, “Most of us were watching the door. But one of us was watching the defendant, and he wasn’t watching the door.” 


Adventures on the Back of the Envelope: Katz v. United States and the Popularization of the Phrase “Reasonable Expectation of Privacy”

I find it interesting how a case often is seen as standing for one thing when it’s decided, and something quite different years later. Relatedly, it can be interesting to see how courts come to glean from a decision a rule — or at least a catchphrase — that they then rely upon to decide cases before them.

I recently conducted a back-of-the-envelope exercise in this vein, sparked by a student’s question regarding the Fourth Amendment case, Katz v. United States. The gist of the student’s question was, how did the phrase “reasonable expectation of privacy” come to summarize the “was there a search” inquiry that kicks off most Fourth Amendment analysis–particularly when the phrase is found not in the majority opinion in Katz, but in Justice Harlan’s concurring opinion?

There’s a practical answer, of course, relating to the facts that (1) the next year, Terry v. Ohio parroted Harlan’s phrasing, and (2) Harlan gave courts a somewhat more workable (though still confusing) standard, or at least, framework for decision than Justice Stewart’s majority opinion did. But how quickly did courts catch on to this?

To probe this matter, working with the Westlaw ALLCASES database, I identified all state and federal cases that cited to Katz in certain subsequent years, and then, within each of these subsets, how many of these cases invoked the phrase “reasonable expectation of privacy.” The results:

1968: 3/58 (= 5%)

1969: 11/120 (=9%)

1971: 16/140 (=11%)

1973: 52/192 (=27%)

1977: 63/175 (=36%)

1981: 152/271 (=56%)

1985: 119/211 (=56%)

1989: 96/178 (=54%)

1993: 96/217 (=44%)

1997: 97/183 (=53%)

2001: 94/217 (=43%)

2005: 102/270 (=38%)

2009: 146/392 (=37%)

(I don’t know why we’ve seen a recent decline in the invocation rate for “reasonable expectation of privacy”; perhaps it has something to do with more cases being incorporated within Westlaw, perhaps something else.)

So, it looks like it took a little time–about a decade–for “reasonable expectation of privacy” to catch on as shorthand for the Katz approach. Either that, or the sorts of cases that courts heard changed over time, so as to present issues requiring resort to (or at least mention of) this test more often as the 1970s progressed. Either explanation is plausible, I suppose. One also wonders whether similar slow-burn patterns of diffusion exist in cases where a concurring opinion (in a non-Marks setting) becomes accepted as stating the governing rule.


Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part II of II)

This is the second of two posts discussing a case that will be argued before the California Supreme Court next month, Nalwa v. Cedar Fair, LP. The Nalwa case presents the issue of whether the doctrine of primary implied assumption of the risk (PIAoR) applies to shield the operator of a bumper-car ride from liability for accidents associated with head-on “bumps.” In this post, I’ll describe the legal backdrop for the PIAoR issue before the Nalwa court, and then discuss how the court might perceive the case.

1. Assumption of the Risk Hits a Fork in the Road

All current and former Torts students know about the hoary doctrine of assumption of the risk; members of the lay public also intuit its basic contours. In the past, the basic notion behind assumption of the risk was that, notwithstanding the existence of a duty of care owed by a defendant to the plaintiff, if the plaintiff voluntarily confronted a known risk created by the defendant, that plaintiff could not complain later on, when that risk manifested itself in a rather unpleasant way. Volenti non fit injuria, as Cardozo wrote in the most famous of all assumption of the risk cases, Murphy v. Steeplechase Amusement Co.

The doctrine was moribund in California when, in 1992, when the California Supreme Court breathed new life into it—albeit in a somewhat different form than it previously had taken.

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Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part I of II)

Must an amusement-park operator take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”? This past week, I met with the attorney for the plaintiff in an interesting assumption of the risk case that raises this issue, and will be argued before the California Supreme Court next month.

(Full disclosure: I offered the attorney my thoughts regarding the case, and accepted in return exactly what these thoughts are probably worth: nothing. OK, he did kindly agree to give an impromptu guest-lecture to my Torts class. Second full disclosure: you know my prior, short guest posts? This is the opposite of those. To spare readers—a little—I will divide this post into two segments.)

One of the issues presented in Nalwa v. Cedar Fair, LP concerns whether the doctrine of “primary implied assumption of the risk” (hereinafter PIAoR) applies to shield the operator of a California amusement park from liability for an injury that results from a bumper-car collision at the venue.  As I’ll discuss in my next post, the California Supreme Court may perceive this case as a one-off, and issue a ruling narrowly tailored toward bumper-car rides. On the other hand, particularly since the court has added two new members (Chief Justice Cantil-Sakauye and Associate Justice Liu) since its last big PIAoR case of this sort, it also might see the case as a good vehicle (rim shot) to clarify the blurry boundaries of PIAoR in California.

I’ll summarize the case and its procedural history after the jump.

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Excerpts from My Upcoming Book, The Law Student’s Guide to Being on Call (Part I of II)

Chapter One: A Field Guide to the American Law Professor

Success while “on call” requires, as a threshold matter, an understanding of the different types of American law professors you may encounter in the field. . . .  There exist five principal species.  Each can be identified by the distinctive manner in which it calls on students, if at all.  The first three species fall within the Socratus genus; the last two occupy genera of their own . . .

The Alphabetical-Order Professor (Socratus Abcdelis): As its Latin name connotes, this species of law professor calls on students in alphabetical order.  (There also have been unconfirmed sightings of a subspecies of Socratus Abcdelis that calls on students in reverse alphabetical order.) Members of this species are relatively harmless, since their call order is simple to predict. Furthermore, once a member of this species has interacted with a student, it rarely initiates a repeat contact. WARNING: These creatures tend to grow dangerous when they encounter unprepared students. Also, if a member of this species forgets to bring its enrollment roster to class, it may mutate into the far more unpredictable Socratus Chaotis, discussed below.

The Panel Professor (Socratus Panelis): This species of professor prefers to divide its classes into several “panels,” of which only one will be on call at a given time. Like Socratus Abcdelis, there exist few reports of fatal injuries due to contacts with this species, since students can anticipate these encounters and prepare accordingly.  As with Socratus Abcdelis, the greatest danger associated with this species involves the efforts of other students to avoid them. Cases have been reported where seemingly “safe” students have been placed on call due to the sudden, unanticipated absences of several peers situated alphabetically ahead of them, or the entire remainder of a large on-call panel. For advice on how to handle an emergency situation of this type, see Chapter Eight, “Threading the Needle: Reconciling ‘Passing’ with Getting a Recommendation,” and Chapter Eleven, “How to Exit a Classroom Silently.”

The Random-Order Professor (Socratus Chaotis): Whereas Socratus Abcdelis and Socratus Panelis tend to seek out and cultivate orderly habitats, Socratus Chaotis thrives on the uncertainty created by a random calling scheme. The unpredictable behavior of this species forces students to choose among three unpalatable options: (1) full preparation for each and every class; (2) skipping all classes until the semester is at an end (a.k.a. “playing dead”); or (3) initiating preemptive contacts with Socratus Chaotis at instances of the student’s choosing, with the hope that the professor will tire of these encounters and move on to other students. Unfortunately, this last strategy fails to recognize that members of Socratus Chaotis often possess poor memories, and have been known to call on the same student at several different junctures across a semester, even as they seem to entirely forget about other students in a class.  This last point also represents this species’ saving grace; it is far more likely that a student will not be called on at all in a class taught by a Socratus Chaotis, than in a class taught by either a Socratus Abcdelis or a Socratus Panelis.

The Occasional-Question Professor (Semisocratus Spontaneosis): This species of professor does not fit neatly into either the Socratus genus discussed above, or the Verbosis genus related below. Members of Semisocratus Spontaneosis gravitate toward pure lecturing (the defining characteristic of Verbosis Oxfordis), but, in rare instances, also initiate contact with students. Typically, this interaction takes the form of spontaneous, open-ended questions that invite the careful evaluation of a complex hypothesis that the specimen has painstakingly laid out over the preceding half-hour. While these questions appear daunting, recently, scientists have developed a number of potential responses capable of application to virtually any such inquiry. Among them, “I agree with what you said earlier,” and “I agree with what you wrote on this topic” show special promise for even the most unprepared student.

The Lecturing Professor (Verbosis Oxfordis): Members of this genus fall outside of the scope of this Guide. For those of you who nevertheless wish to contribute to lectures given by this species of professor, we suggest that you check out our companion volumes, The Law Student’s Guide To Brownnosing and The Law Student’s Guide To Unpopularity.

Next: Excerpts from Chapter Four, “Stalling.”