COB/UWI LLB Program

Legal Methods

COB/UWI LLB Program

Fall 2005

Professor Michael H. Cohen

In-class Exercises for September 26, 27, 28 and Oct. 3, 4, 5

Exercise A – Davis v. Davis

These exercises will teach you very pragmatically about briefing and analyzing cases. We will review your experience on October 10 and draw lessons.

Sept. 26 - Please brief Davis v. Davis (below).

This is to be done individually in-class followed by discussion. [30-40 minutes]

3 individuals will be selected to post their briefs on the board and defend them. [30-20 minutes]

Sept. 27 - Assume the Davis v. Davis can be appealed to a further, higher court.

The class will be divided into working groups of 4-5 students each.

Group 1 will be assigned to write an argument for Mr. Junior Davis on appeal.

Group 2 will write an argument for Mrs. Mary Davis.

Group 3 will write an argument in an amicus curiae brief from the state Attorney General. Amicus curiae means the party is being allowed to intervene as a ‘friend of the court’ because it has something special to contribute.

Group 4 will write the amicus brief for a state association for reproductive rights.

Group 5 will write an opinion as a judicial panel set to overturn the judgment of the case below.

Group 6 write an opinion as a judicial panel set to affirm the judgment of the case below. [30-40 minutes]

The six groups will each choose one spokesperson to present their argument to the class. [20-30 minutes]

Sept 28 - Create new groups of 4-6 students each.

Each group should divide itself into two subgroups of 2-3 students each (subgroup A and subgroup B).

Subgroup A will represent Junior; Subgroup B will represent Mary.

Subgroup A and B have 20-30 minutes to try to draft a written agreement in which Junior and Mary come to a consensus about what to do regarding disposition of the frozen embryos. The goal is to try to come up with a solution together and write it up.

The groups will then present their work to the class.

A variation on this exercise is to have 2 persons represent Mrs. Davis, 2 represent Mr. Davis, and 2 act as mediators to facilitate consensus.
Exercise B – Johnson v. Johnson

Oct. 3, 4

(1) Johnson I

Joe and Josie Johnson made a valid, written agreement that provided for the disposition of embryos in the event of a divorce. The agreement unambiguously expressed the parties' intentions about the disposition of the embryos in a divorce situation. However, following their divorce, Joe Johnson sought to have the embryos preserved for implantation in a surrogate mother, while Josie Johnson sought their destruction.

Half the groups should draft (and present to the class) the argument for Mr. Johnson, while the other half should draft (and present to the class) the argument for Mrs. Johnson.

Be sure to cite and use (or distinguish) Davis v. Davis under the following scenarios:

a.  Assume this case arises in Tennessee, such that the court is bound by the Tennessee Supreme Court’s decision Davis v. Davis.

b.  Assume the case arises in another jurisdiction which looks to Tennessee law for persuasive authority.

(2) Johnson II

Suppose that the court in Johnson I holds that agreements concerning the disposition of frozen embryos must, under contract law, be enforced.

Joe Johnson subsequently moves to Arizona, marries Loretta Johnson, and enters into an agreement between himself, his new wife, and a university regarding disposition of frozen embryos. The agreement provides that the university’s medical school has ownership of the frozen embryos in case of any dispute. Some months later, the university decides to transfer the frozen embryos to another institution. But Joe and Loretta have changed their minds and now seek to have a court enjoin the university from disposing or transferring the frozen embryos absent their consent.

You, the judge, must craft an opinion. Although there is no precedent in Arizona, the cases of Davis and Johnson I are somewhat persuasive. Craft the opinion.

[Students can work in groups of 4 and can then present their written opinion to the whole for comment and discussion. Whether or not you agree with the holdings in Davis and Johnson I, be sure that your written judicial opinion:

(a)  recites the relevant facts, issue(s), holding(s) and rationale(s) in Davis and Johnson, and

(b)  provides a cogent reason for either following, distinguishing, or rejecting these.]

(3) Johnson III

The Embryo Donation Act of 2007 allows couples to donate one frozen embryo per year to a university for the purposes of research. Governor Jeremiah Skywalker Bush IIIrd is willing to sign the bill into law, citing in his press conference the need to intensify the search for medical cures by experimentation on 8-celled organisms that “do not possess any aspect of personhood known to humanity.” Religious groups, though, are protesting in the hallways accusing the Governor and the Attorney General of sanctioning criminal behavior in the name of science. Some are saying that the law allows people to profit from selling potential humans—a form of slavery.

You are the law clerk to Attorney General Antonio Gonzaga, who stands proudly at the governor’s side during the press conference. The AG tells you, in the Governor’s earshot, that: “a long line of cases over several states have established that frozen embryos are not persons but rather are legally to be treated as property.” Later, he takes you aside and asks you to research this proposition, and draft a memo so that he can better inform the governor regarding the legislation’s legal authority.

Draft the memo:

(a)  so as to support the AG’s position;

(b)  so as to diplomatically suggest to the AG that his position may not be as supported by prior cases as he thinks.

Be sure to rely on prior cases. Assume that Johnson I and Johnson II both upheld the contract at issue in the case.

[Can be done in groups and presented to the class.]

Johnson IV

An unmarried couple in Tennessee engaged the services of an in vitro fertilization clinic and signed contracts required by the clinic. The clinic then obtained eggs from an anonymous female donor, which were fertilized with the man's sperm and then implanted in the woman who carried them full term resulting in the birth of triplets. Thereafter, the couple separated and the woman filed for custody.

The man answered and asserted that the woman is not the mother or a legal parent of thechildren because she was merely a gestational surrogate who has no genetic tie to the children. The man further asserted that the children have no mother because the egg donor waived her parental rights. The trial court disagreed and held that the woman is the mother of the children, based on a provision in the contracts signed by the couple, stating that “children conceived by this method will be children of the surrogate.” The court awarded joint custody to the couple and primary custody to the woman. The man appealed.

You are the appellate court judge. Decide the case.

Oct. 5, 6

The following exercise will teach you about carefully applying legal rules.

Exercise C - UN Credentials Cases

Again, work in groups and prepare a written response to be presented on the board to the class for discussion.

Please review the following legal rules:

UN Charter, Article IV, 1:

Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

General Assembly Resolution 396 (V):

Whenever more than one authority claims to be the government entitled to represent a Member State, in the United Nations and this question becomes the subject of controversy in the United Nations, the question should be considered in light of the Purposes and Principles of the Charter and the circumstances of each case.

In addition to Resolution 396(V), three standards have been cited as appropriate criteria for determining representation questions. They are:

(a)  the extent to which the new authority exercises effective control over the territory and is generally accepted by the population,

(b)  the willingness of that authority to accept responsibility for the carrying out by the member state of its obligations under the Charter, and

(c)  the extent to which that authority has been established through legitimate internal processes in the member state.

Rule 27 (General Assembly Rules of Procedure):

Credentials are valid if (1) the credentials of representatives and the names of the members of the delegation were submitted to the Secretary-General, (2) not less than one week before the opening of the session, and (3) the credentials were issued by the Head of the State, or by the Minister.

Restatement of Foreign Relations (Second):

To be considered a state, an entity must have a permanent population, under the control of its own government.

You are chair of the UN Credentials Committee. You have been asked for advice to resolve the following situations:

Afghanistan: There are two authorities claiming to represent Afghanistan in the United Nations. The delegation selected by exiled president Burhanuddin Rabbani continues to represent Afghanistan in the General Assembly. This delegation, however, is now being challenged by representatives of the Taliban, who forcibly came into power in 1996. Should the Taliban’s credentials be accepted, or denied? Justify your response.

Kuwait: After Iraq’s forcible takeover of Kuwait in 1991, it established an Iraqi-puppet government. This government sent a delegation to represent Kuwait in the U.N. while the former government of Kuwait was in exile in Saudi Arabia. Saudi Arabia challenges the credentials of the Iraqi-puppet delegation. However, the exiled government of Kuwait has not sent a competing delegation to represent Kuwait. Should the delegation’s credentials be accepted, or denied? Justify your response.

Sierra Leone: Rebel forces have manipulated the Kabbah regime of Sierra Leone (through threat of violent overthrow) to agree to a power-sharing system. The new government has granted the rebels amnesty for their war crimes and sends a delegation to the UN. Should the delegation’s credentials be accepted, or denied? Justify your response.

2(d) Somalia: Somalia is overrun by warlords. There is no central government. One of the warlords, Mohamed Aidid, Jr. sends a delegation to the UN. Should the delegation’s credentials be accepted, or denied? Justify your response.

Exercise D – Statutory Interpretation

The purpose of this exercise is to teach about the difficulty in interpreting statutes and, from the perspective of drafting statutes, of creating “plain meaning” in the language.

Divide into groups. You are at a UN Conference convened to define “terrorism” and distinguish it from “legitimate action pursuant to self-determination.” Your role is to draft treaty language that will flesh out these definitions and distinctions.

Group A will represent the U.S., Canada, or Italy.

Group B will represent Syria, Lybia, Iraw, Iran, or North Korea.

Group C will represent the Bahamas and Caribbean nations.

Group D will represent the UN Secretariat.

(a)  Propose language that would be acceptable to your country given its unique interests. Share your draft with the class.

(b)  Propose language that would be consistent with your country’s interests yet acceptable to the other groups.

JUNIOR LEWIS DAVIS, Plaintiff-Appellee, v. MARY SUE DAVIS, Defendant-Appellant.

No. 34

SUPREME COURT OF TENNESSEE, AT KNOXVILLE

842 S.W.2d 588; 1992 Tenn. LEXIS 400

June 1, 1992, Filed

This appeal presents a question of first impression, involving the disposition of the cryogenically-preserved product of in vitro fertilization (IVF), commonly referred to in the popular press and the legal journals as "frozen embryos." The case began as a divorce action, filed by the appellee, Junior Lewis Davis, against his then wife, appellant Mary Sue Davis. The parties were able to agree upon all terms of dissolution, except one: who was to have "custody" of the seven "frozen embryos" [**2] stored in a Knoxville fertility clinic that had attempted to assist the Davises in achieving a much-wanted pregnancy during a happier period in their relationship.
I. Introduction
Mary Sue Davis originally asked for control of the "frozen embryos" with the intent to have them transferred to her own uterus, in a post-divorce effort to become pregnant. Junior Davis objected, saying that he preferred to leave the embryos in their frozen state until he decided whether or not he wanted to become a parent outside the bounds of marriage.
Based on its determination that the embryos were "human beings" from the moment of fertilization, the trial court awarded "custody" to Mary Sue Davis and directed that she "be permitted the opportunity to bring these children to term through implantation." The Court of Appeals reversed, finding that Junior Davis has a "constitutionally protected right not to beget a child where no pregnancy has taken place" and holding that "there is no compelling state interest to justify [] ordering implantation against the will of either party." The Court of Appeals further held that "the parties share an interest in the seven fertilized ova" and remanded the case[**3] to the trial court for entry of an order vesting them with "joint control . . . and equal voice over their disposition."