Koffman v. Garnett
265 Va. 12, 574 S.E.2d 258 (2003)
Facts: Koffman, a 13-year-old student, was tackled by a coach in the course of a demonstration in practice. (No coach had used physical force to instruct prior to this.)
Procedure: Trial court dismissed Koffman's separate claims of assault and battery.
Issue: Did the coach commit assault? Battery?
Holding: No and yes.
Reasoning: Koffman could not have known that this was going to happen until the battery was in progress, so it is not an assault. It could have been a battery, depending on whether the jury finds that he consented to being tackled by coaches as well as the players.
Saturday, August 30, 2008
Cullison v. Medley
Cullison v. Medley
570 N.E.2d 27 (Ind. 1991)
Facts: Cullison flirted with Sandy Medley. Later that evening, Sandy and her mother, father, brother, and brother-in-law showed up at Cullison's door, threatening him and telling him to leave Sandy alone. Father, Ernest, was on crutches but had a holster with a gun on his thigh; Mother, Doris, kept her hand in her pocket but implied that she had a pistol as well. Ernest never drew the gun but he certainly threatened to.
Procedure: Trial court entered a summary judgment for the Medleys; Cullison appealed. Appeals court affirmed, saying that since Ernest never removed his gun from its holster and never explicitly threatened to shoot Cullison, it was not an assault.
Issue: Did Ernest commit an assault (by the standards of summary judgment)?
Holding: Yes.
Reasoning: "It is the right to be free from the apprehension of a battery which is protected by the tort action which we call an assault." "The tort is complete with the invasion of the plaintiff's mental peace." (Court also held that you can recover for emotional trauma with an assault claim.)
570 N.E.2d 27 (Ind. 1991)
Facts: Cullison flirted with Sandy Medley. Later that evening, Sandy and her mother, father, brother, and brother-in-law showed up at Cullison's door, threatening him and telling him to leave Sandy alone. Father, Ernest, was on crutches but had a holster with a gun on his thigh; Mother, Doris, kept her hand in her pocket but implied that she had a pistol as well. Ernest never drew the gun but he certainly threatened to.
Procedure: Trial court entered a summary judgment for the Medleys; Cullison appealed. Appeals court affirmed, saying that since Ernest never removed his gun from its holster and never explicitly threatened to shoot Cullison, it was not an assault.
Issue: Did Ernest commit an assault (by the standards of summary judgment)?
Holding: Yes.
Reasoning: "It is the right to be free from the apprehension of a battery which is protected by the tort action which we call an assault." "The tort is complete with the invasion of the plaintiff's mental peace." (Court also held that you can recover for emotional trauma with an assault claim.)
Friday, August 29, 2008
Hess v Pawloski
Hess v. Powloski
274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927)
Facts: Plaintiff sues defendant, a Pennsylvania resident, in Massachusetts. (Car accident on Mass. highway.)
Procedure: Trial court said they had jurisdiction due to laws appointing a registrar as agent for out of state drivers.
Issue: Did they have jurisdiction?
Holding: Yes
Reasoning: Implied consent to the registrar-agent thing is enough to give jurisdiction. Plus, cars are dangerous so we have to come up with some way of dealing with these sorts of problems.
274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927)
Facts: Plaintiff sues defendant, a Pennsylvania resident, in Massachusetts. (Car accident on Mass. highway.)
Procedure: Trial court said they had jurisdiction due to laws appointing a registrar as agent for out of state drivers.
Issue: Did they have jurisdiction?
Holding: Yes
Reasoning: Implied consent to the registrar-agent thing is enough to give jurisdiction. Plus, cars are dangerous so we have to come up with some way of dealing with these sorts of problems.
Thursday, August 28, 2008
Pennoyer v. Neff
Pennoyer v. Neff
Supreme Court of the United States, 1877.
95 U.S. (5 OTTO) 714, 24 L.Ed. 565.
Facts: In a prior suit, Mitchell sued Neff in the Circuit Court of Multnomah County, Oregon. Mitchell claimed Neff was a California resident but didn't know where he lived; the court decided to serve by publication. (It was an option in Oregon when the defendant's address was not known). When Neff failed to answer, Mitchell was awarded default judgment. A month later, Neff bought a tract of land in Oregon; Mitchell executed against it and bought it at the sheriff's sale for $341.60, "presumably the amount of the judgment plus interest and costs." Three days later, Mitchell transferred title to Pennoyer. (End Oregon's courts involvement).
Neff sued Pennoyer to recover the land, contending that the judgment in Mitchell's suit was invalid because the Oregon court didn't have jurisdiction.
Procedure: Pennoyer loses Neff's suit (in federal court), and Pennoyer appeals.
Issue: Did Oregon have jurisdiction?
Holding: No
Reasoning: The property they acted on was not acted on during the trial; a court may act on a defendant's property (in rem) in the state if it's specified at the beginning of the trail, but not after! Certainly not property acquired after.
Supreme Court of the United States, 1877.
95 U.S. (5 OTTO) 714, 24 L.Ed. 565.
Facts: In a prior suit, Mitchell sued Neff in the Circuit Court of Multnomah County, Oregon. Mitchell claimed Neff was a California resident but didn't know where he lived; the court decided to serve by publication. (It was an option in Oregon when the defendant's address was not known). When Neff failed to answer, Mitchell was awarded default judgment. A month later, Neff bought a tract of land in Oregon; Mitchell executed against it and bought it at the sheriff's sale for $341.60, "presumably the amount of the judgment plus interest and costs." Three days later, Mitchell transferred title to Pennoyer. (End Oregon's courts involvement).
Neff sued Pennoyer to recover the land, contending that the judgment in Mitchell's suit was invalid because the Oregon court didn't have jurisdiction.
Procedure: Pennoyer loses Neff's suit (in federal court), and Pennoyer appeals.
Issue: Did Oregon have jurisdiction?
Holding: No
Reasoning: The property they acted on was not acted on during the trial; a court may act on a defendant's property (in rem) in the state if it's specified at the beginning of the trail, but not after! Certainly not property acquired after.
Wednesday, August 27, 2008
Kothe v. Smith
Kothe v. Smith
United States Court of Appeals, Second Circuit, 1985.
771 F.2d 667.
Facts: Kothe brought a malpractice suit against four defendants; three settled out of court. The judge tried to coerce the parties into settling before it reached court by threatening a fine if they settled during trial for an amount similar to the amount he named. They settled during the trial, and the judge fined defendant Smith.
Procedure: District (trial) court directed the defendant to pay $1k to the plaintiff-appellee's attorney, $1k to the p-a's medical witness, and $480 to the clerk of the court. Defendant appealed.
Issue: Can the judge coerce council/litigants?
Holding: No.
Reasoning: There is a rule that tries to encourage settlement outside of court, but this is not what they meant. Furthermore, case law indicates that pressure tactics are in no way permissible.
United States Court of Appeals, Second Circuit, 1985.
771 F.2d 667.
Facts: Kothe brought a malpractice suit against four defendants; three settled out of court. The judge tried to coerce the parties into settling before it reached court by threatening a fine if they settled during trial for an amount similar to the amount he named. They settled during the trial, and the judge fined defendant Smith.
Procedure: District (trial) court directed the defendant to pay $1k to the plaintiff-appellee's attorney, $1k to the p-a's medical witness, and $480 to the clerk of the court. Defendant appealed.
Issue: Can the judge coerce council/litigants?
Holding: No.
Reasoning: There is a rule that tries to encourage settlement outside of court, but this is not what they meant. Furthermore, case law indicates that pressure tactics are in no way permissible.
Band's Refuse Removal, Inc. v. Borough of Fair Lawn
Band's Refuse Removal, Inc. v. Borough of Fair Lawn
Superior Court of New Jersey, Appellate Division, 1960.
62 N.J.Super. 522, 163 A.2d 465
Facts: (Defendants include Fair Lawn and Capasso.) Borough of Fair Lawn advertised for bids to collect trash in the town. Capasso won. The town enacted ordinance 688, which said that only a person who held a contract with the town could be granted a permit to collect trash in it. Band's RR had a contract to collect garbage from the Western Electric plant in town, so it applied for a permit and was denied under the ordinance. Band's RR filed a complaint alleging that ordinance 688 was arbitrary, discriminatory, unconstitutional, and ultra vires. A whole heap of procedural actions followed, but mainly, the judge started acting like an advocate.
Procedure: Trial court found the defendants, Capasso's contract void from the start, and ordinance 688 illegal, and awarded the borough moneys. (?) Capasso appealed.
Issue: Was the ordinance valid? Was the way the trial judged behaved correct?
Holding: Yes, and no.
Reasoning: The trial judge was clearly advocating, which a judge cannot do. A judge can do many of the things this judge did, but not to this decree and not for his reasons (i.e. a crusade). Also, when the plaintiffs amended their accusations, the judge did not grant the defense any time to investigate or prepare to face these new accusations, which violates due process.
Superior Court of New Jersey, Appellate Division, 1960.
62 N.J.Super. 522, 163 A.2d 465
Facts: (Defendants include Fair Lawn and Capasso.) Borough of Fair Lawn advertised for bids to collect trash in the town. Capasso won. The town enacted ordinance 688, which said that only a person who held a contract with the town could be granted a permit to collect trash in it. Band's RR had a contract to collect garbage from the Western Electric plant in town, so it applied for a permit and was denied under the ordinance. Band's RR filed a complaint alleging that ordinance 688 was arbitrary, discriminatory, unconstitutional, and ultra vires. A whole heap of procedural actions followed, but mainly, the judge started acting like an advocate.
Procedure: Trial court found the defendants, Capasso's contract void from the start, and ordinance 688 illegal, and awarded the borough moneys. (?) Capasso appealed.
Issue: Was the ordinance valid? Was the way the trial judged behaved correct?
Holding: Yes, and no.
Reasoning: The trial judge was clearly advocating, which a judge cannot do. A judge can do many of the things this judge did, but not to this decree and not for his reasons (i.e. a crusade). Also, when the plaintiffs amended their accusations, the judge did not grant the defense any time to investigate or prepare to face these new accusations, which violates due process.
White v. Muniz
White v. Muniz
999 P.2d 814 (Colo. 2000)
Facts: White is the rep of Everly, her grandmother. Everly stuck Muniz while the latter was attempting to change her adult diaper (Muniz had thought she was going to cooperate). Everly has been diagnosed with dementia. The trial judge instructed the jury that dementia does not preclude intent, but that she must have appreciated the offensiveness of her conduct; Muniz said those directions misstated the law.
Procedure: The jury found for White. Court of Appeals reversed because of the instructions. White appealed.
Issue: Does an intentional tort require proof that the tortfeasor not only intended contact, but also harm or offense?
Holding: Yes.
Reasoning: Colorado law requires dual intent.
999 P.2d 814 (Colo. 2000)
Facts: White is the rep of Everly, her grandmother. Everly stuck Muniz while the latter was attempting to change her adult diaper (Muniz had thought she was going to cooperate). Everly has been diagnosed with dementia. The trial judge instructed the jury that dementia does not preclude intent, but that she must have appreciated the offensiveness of her conduct; Muniz said those directions misstated the law.
Procedure: The jury found for White. Court of Appeals reversed because of the instructions. White appealed.
Issue: Does an intentional tort require proof that the tortfeasor not only intended contact, but also harm or offense?
Holding: Yes.
Reasoning: Colorado law requires dual intent.
Polmatier v. Russ
Polmatier v. Russ
206 Conn. 229, 537 A.2d 468 (1988)
Facts: Defendant beat the ever living daylights out of and then shot Mr. Palmatier, the plaintiff's husband. Defendant was declared legally insane.
Procedure: Trial court found for the plaintiff; Defendant appealed.
Issue: Did the defendant have intent?
Holding: Yes
Reasoning: You can have intent and irrational reasons- this is distinct from uncontrollable muscle spasms. Also, insane persons can be held civilly liable. (Wrongful death statute doesn't require intent; some policy reasons about punishing the actor if both parties are innocent, reduce fraud, and increase family responsibility.)
206 Conn. 229, 537 A.2d 468 (1988)
Facts: Defendant beat the ever living daylights out of and then shot Mr. Palmatier, the plaintiff's husband. Defendant was declared legally insane.
Procedure: Trial court found for the plaintiff; Defendant appealed.
Issue: Did the defendant have intent?
Holding: Yes
Reasoning: You can have intent and irrational reasons- this is distinct from uncontrollable muscle spasms. Also, insane persons can be held civilly liable. (Wrongful death statute doesn't require intent; some policy reasons about punishing the actor if both parties are innocent, reduce fraud, and increase family responsibility.)
Hall v. McBryde
Hall v. McBryde
919 P.2d 910 (Colo. App. 1996)
Facts: Defendant got caught in a drive-by and shot back at the car (though he claims not at the people in it). Plaintiff was next door and claims he was injured by one of the defendant's bullets. Plaintiff brought a charge of battery against the defendant.
Procedure: Trial court judged in favor of the defendant.
Issue: Did a battery occur?
Holding: If defendant's bullet was indeed the one that struck plaintiff, then yes.
Reasoning: It didn't matter that the defendant wasn't trying to hit the people in the car; it is enough that he was trying to make them think he was. This sort of liability continues if, in the process of act the batterer hits a third party instead of his target.
919 P.2d 910 (Colo. App. 1996)
Facts: Defendant got caught in a drive-by and shot back at the car (though he claims not at the people in it). Plaintiff was next door and claims he was injured by one of the defendant's bullets. Plaintiff brought a charge of battery against the defendant.
Procedure: Trial court judged in favor of the defendant.
Issue: Did a battery occur?
Holding: If defendant's bullet was indeed the one that struck plaintiff, then yes.
Reasoning: It didn't matter that the defendant wasn't trying to hit the people in the car; it is enough that he was trying to make them think he was. This sort of liability continues if, in the process of act the batterer hits a third party instead of his target.
Garratt v. Dailey
Garratt v. Dailey
46 Wash.2d 197, 279 P.2d 1091 (1955)
Facts: Defendant, a five year old boy named Brian Dailey, took a chair at a lawn party and sat in it. He then saw the plaintiff, Garratt, in the motion of sitting where the chair had been and attempted to return the chair (he failed because, well, he's five).
Procedure: Trial court dismissed the action.
Issue: Did Dailey commit battery?
Holding: Perhaps.
Reasoning: If Dailey knew that Garratt was going to sit where the chair had been, then it can be battery, but we don't know that because it wasn't established by the trial court. The case is remanded to determine that fact. (They erred in dismissing before determining that fact).
46 Wash.2d 197, 279 P.2d 1091 (1955)
Facts: Defendant, a five year old boy named Brian Dailey, took a chair at a lawn party and sat in it. He then saw the plaintiff, Garratt, in the motion of sitting where the chair had been and attempted to return the chair (he failed because, well, he's five).
Procedure: Trial court dismissed the action.
Issue: Did Dailey commit battery?
Holding: Perhaps.
Reasoning: If Dailey knew that Garratt was going to sit where the chair had been, then it can be battery, but we don't know that because it wasn't established by the trial court. The case is remanded to determine that fact. (They erred in dismissing before determining that fact).
A.R.B. v. Elkin
A.R.B. v. Elkin
98 S.W.3d 99 (Mo. App. 2003)
Facts: A male and female brought an action for battery against their father alleging sexual abuse.
Procedure: The trial judge rejected claims for compensatory damage because paperwork wasn't properly filed and rejected pain and suffering since there was no medical proof submitted for it.
Issue:Is the trial judge a *&%$(* ? Should the plaintiffs have been compensated?
Holding: Yes.
Reasoning: You don't have to show proof for pain and suffering, the damages are whatever seems reasonable. Also, punitive damages should have been considered.
98 S.W.3d 99 (Mo. App. 2003)
Facts: A male and female brought an action for battery against their father alleging sexual abuse.
Procedure: The trial judge rejected claims for compensatory damage because paperwork wasn't properly filed and rejected pain and suffering since there was no medical proof submitted for it.
Issue:
Holding: Yes.
Reasoning: You don't have to show proof for pain and suffering, the damages are whatever seems reasonable. Also, punitive damages should have been considered.
Leichtman v. WLW Jacor Communications, Inc.
Leichtman v. WLW Jacor Communications, Inc.
92 Ohio App.3d 232, 634 N.E.2d
Facts: Plaintiff claims to be known as an anti-smoking advocate; he was invited to the defendant's (employee's) radio show, where the defendant smoked a cigar and blew the smoke into the plaintiff's face.
Procedure: Trial court dismissed the battery claim; plaintiff appealed.
Issue: Does the plaintiff have a battery claim?
Holding: Yes.
Reasoning: There was intent, offense, and touching.
92 Ohio App.3d 232, 634 N.E.2d
Facts: Plaintiff claims to be known as an anti-smoking advocate; he was invited to the defendant's (employee's) radio show, where the defendant smoked a cigar and blew the smoke into the plaintiff's face.
Procedure: Trial court dismissed the battery claim; plaintiff appealed.
Issue: Does the plaintiff have a battery claim?
Holding: Yes.
Reasoning: There was intent, offense, and touching.
Cook v. Coldwell Banker/Frank Laiben Realty Co.
Cook v. Coldwell Banker/Frank Laiben Realty Co.
Missouri Court of Appeals
967 S.W.2d 654 (1998)
Facts: Plaintiff, Cook, worked for the defendant. Defendant announced a bonus program where agents who earned $15k would earn a $500 bonus payable immediately, agents who earned between $15k and $25k would get a 22% bonus, and agents earning above $25k would get a 30% bonus. Bonuses beyond the first $500 would be paid at the end of the year. Later, defendant said that the bonuses would be awarded in March instead (after the year in which the earnings were calculated). Plaintiff left before March but after the end of the bonus year and requested her bonus; defendants denied her.
Procedure: Trial court awarded the defendant's former sales person (plaintiff) damages for a breach of a bonus agreement. Defendant appeals, claiming the plaintiff failed to make a submissible case in that she did not accept the bonus offer before it was revoked.
Issue: Can the defendant revoke its offer in a unilateral contract while the offeree is attempting to accept/perform?
Holding: No.
Reasoning: If the offeree in a unilateral contract performs a significant portion of promised performance, the offer becomes binding (see restatements in text).
Missouri Court of Appeals
967 S.W.2d 654 (1998)
Facts: Plaintiff, Cook, worked for the defendant. Defendant announced a bonus program where agents who earned $15k would earn a $500 bonus payable immediately, agents who earned between $15k and $25k would get a 22% bonus, and agents earning above $25k would get a 30% bonus. Bonuses beyond the first $500 would be paid at the end of the year. Later, defendant said that the bonuses would be awarded in March instead (after the year in which the earnings were calculated). Plaintiff left before March but after the end of the bonus year and requested her bonus; defendants denied her.
Procedure: Trial court awarded the defendant's former sales person (plaintiff) damages for a breach of a bonus agreement. Defendant appeals, claiming the plaintiff failed to make a submissible case in that she did not accept the bonus offer before it was revoked.
Issue: Can the defendant revoke its offer in a unilateral contract while the offeree is attempting to accept/perform?
Holding: No.
Reasoning: If the offeree in a unilateral contract performs a significant portion of promised performance, the offer becomes binding (see restatements in text).
Tuesday, August 26, 2008
Cohen v. Smith
Cohen v. Smith
269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329 (1995)
Facts: Cohen was a woman whose religious beliefs forbid her from being seen unclothed by a male. When it came up that she would need a c-section, Cohen and her husband informed her doctor, who informed the hospital staff, and informed the Cohens that their beliefs would be respected. During the course of her c-section, a male nurse allegedly saw and touched her naked body. The Cohens sued the hospital.
Procedure: Trial court allowed defendants' motion to dismiss.
Issue: Did the plaintiffs fail to state a cause of action?
Holding: No.
Reasoning: The plaintiffs' beliefs made the nurse's action battery (and the nurse had been informed, according to the way you treat alleged facts when a motion to dismiss is made).
269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329 (1995)
Facts: Cohen was a woman whose religious beliefs forbid her from being seen unclothed by a male. When it came up that she would need a c-section, Cohen and her husband informed her doctor, who informed the hospital staff, and informed the Cohens that their beliefs would be respected. During the course of her c-section, a male nurse allegedly saw and touched her naked body. The Cohens sued the hospital.
Procedure: Trial court allowed defendants' motion to dismiss.
Issue: Did the plaintiffs fail to state a cause of action?
Holding: No.
Reasoning: The plaintiffs' beliefs made the nurse's action battery (and the nurse had been informed, according to the way you treat alleged facts when a motion to dismiss is made).
Snyder v. Turk
Snyder v. Turk
90 Ohio App.3d 18, 627 N.E.2d 1053 (1993)
Facts: Defendant, a surgeon, became frustrated with the plaintiff, a nurse. When she handed him an instrument he found inappropriate, he grabbed her by the shoulder, pull her face down near the surgical hole, and yelled at her.
Procedure: Complaint, answer, motion for directed verdict (D says P doesn't have proof of intent to injure)
Issue: Did defendant commit an offensive contact? Is that battery?
Holding: Yes and yes.
Reasoning: Reasonable mind test under a motion for directed verdict.
90 Ohio App.3d 18, 627 N.E.2d 1053 (1993)
Facts: Defendant, a surgeon, became frustrated with the plaintiff, a nurse. When she handed him an instrument he found inappropriate, he grabbed her by the shoulder, pull her face down near the surgical hole, and yelled at her.
Procedure: Complaint, answer, motion for directed verdict (D says P doesn't have proof of intent to injure)
Issue: Did defendant commit an offensive contact? Is that battery?
Holding: Yes and yes.
Reasoning: Reasonable mind test under a motion for directed verdict.
Van Camp v. McAfoos
Van Camp v. McAfoos
261 Iowa 1124, 156 N.W.2d 878 (1968)
Facts: A little boy runs into a lady on the sidewalk. The lady required surgery because of it, and sued the boy.
Procedure: The trial court sustained a motion to dismiss stating that since the plaintiff alleges neither fault nor negligence, there is no cause of action. Plaintiff appealed.
Issue: Is there a cause of action?
Holding: No.
Reasoning: There are cases where a young child was held at fault, but she is not claiming fault. Lack of fault or negligence makes it a strict liability case. There is no previous law of any kind suggesting that strict liability should apply for such a child, and the court doesn't want to start one.
261 Iowa 1124, 156 N.W.2d 878 (1968)
Facts: A little boy runs into a lady on the sidewalk. The lady required surgery because of it, and sued the boy.
Procedure: The trial court sustained a motion to dismiss stating that since the plaintiff alleges neither fault nor negligence, there is no cause of action. Plaintiff appealed.
Issue: Is there a cause of action?
Holding: No.
Reasoning: There are cases where a young child was held at fault, but she is not claiming fault. Lack of fault or negligence makes it a strict liability case. There is no previous law of any kind suggesting that strict liability should apply for such a child, and the court doesn't want to start one.
Petterson v. Pattberg
Petterson v. Pattberg
New York Court of Appeals
248 N.Y. 86, 161 N.E. 428
Facts: "I hereby agree to accept cash for the mortgage which I hold... I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April... is paid when due." Defendant sent this letter to the plaintiff. After the April bill was paid but before the rest of the mortgage was paid off, defendant sold the mortgage. Since plaintiff had entered into a contract to sell the land free and clear of the mortgage, he had to pay the $780 to the new mortgage owner. Plaintiff claims the loss against the defendant.
Procedure: Trial court awarded the recovery of the sum plus interest. An Appellate court affirmed.
Issue: Can the offerer in a unilateral contract change his mind while the offeree is midway through the requested action (fulfilling the condition)?
Ruling: Yes (a reversal of the trial and appellate decisions)
Reasoning: The offerer can revoke their offer at any time before the acceptance of the offer- so say otherwise violates the nature of a uni contract. (Dissent- "The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition." Since the only reason the plaintiff couldn't complete the uni contract was that the defendant stopped him, she shouldn't be allowed to take advantage of it).
New York Court of Appeals
248 N.Y. 86, 161 N.E. 428
Facts: "I hereby agree to accept cash for the mortgage which I hold... I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April... is paid when due." Defendant sent this letter to the plaintiff. After the April bill was paid but before the rest of the mortgage was paid off, defendant sold the mortgage. Since plaintiff had entered into a contract to sell the land free and clear of the mortgage, he had to pay the $780 to the new mortgage owner. Plaintiff claims the loss against the defendant.
Procedure: Trial court awarded the recovery of the sum plus interest. An Appellate court affirmed.
Issue: Can the offerer in a unilateral contract change his mind while the offeree is midway through the requested action (fulfilling the condition)?
Ruling: Yes (a reversal of the trial and appellate decisions)
Reasoning: The offerer can revoke their offer at any time before the acceptance of the offer- so say otherwise violates the nature of a uni contract. (Dissent- "The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition." Since the only reason the plaintiff couldn't complete the uni contract was that the defendant stopped him, she shouldn't be allowed to take advantage of it).
Normile v. Miller
Normile v. Miller
Supreme Court of North Carolina
313 N.C. 98, 326 S.E.2d 11 (1985)
Facts: Defendant put a piece of real estate up for sale. Plaintiffs Normile and Kurniawan made an offer (on the condition it was accepted by 5pm Aug. 5th 1980); Defendant Miller made a counteroffer. Plaintiffs N&K considered the offer, but their agent thought they rejected it and found another buyer, Plaintiff Segal. Plaintiff Segal made an offer (similar to the Defendant's earlier counteroffer) that the defendant accepted on the 5th. After this, at 2 pm, the agent told N&K that the defendant had revoked her offer (he said "You snooze, you lose; the property has been sold"). Prior to 5 pm, N&K had signed and initialed the counteroffer and put down the deposit.
Procedure: Trial court ordered defendant to convey the property to plaintiff Segal (in a summary judgement; both sets of plaintiffs had moved for summary judgment). Plaintiffs N&K appealed on their motion for summary judgment being denied; Court of Appeals unanimously affirmed the trial court's actions. This court is reviewing N&K's petition.
Issue: Did the time limit in the initial offer create an option? Also, "If a seller rejects a prospective purchaser's offer to purchase but makes a counteroffer that is not accepted by the prospective purchaser, does the prospective purchaser have the power to accept after he receives notice that the counteroffer has been revoked?"
Holding: No and no.
Reasoning: The time limit evaporated when D rejected the offer and created a counteroffer. Since the Ps did not respond, they certainly did not accept the counteroffer and they had no option on the property, so it was legitimately sold to a third party.
Supreme Court of North Carolina
313 N.C. 98, 326 S.E.2d 11 (1985)
Facts: Defendant put a piece of real estate up for sale. Plaintiffs Normile and Kurniawan made an offer (on the condition it was accepted by 5pm Aug. 5th 1980); Defendant Miller made a counteroffer. Plaintiffs N&K considered the offer, but their agent thought they rejected it and found another buyer, Plaintiff Segal. Plaintiff Segal made an offer (similar to the Defendant's earlier counteroffer) that the defendant accepted on the 5th. After this, at 2 pm, the agent told N&K that the defendant had revoked her offer (he said "You snooze, you lose; the property has been sold"). Prior to 5 pm, N&K had signed and initialed the counteroffer and put down the deposit.
Procedure: Trial court ordered defendant to convey the property to plaintiff Segal (in a summary judgement; both sets of plaintiffs had moved for summary judgment). Plaintiffs N&K appealed on their motion for summary judgment being denied; Court of Appeals unanimously affirmed the trial court's actions. This court is reviewing N&K's petition.
Issue: Did the time limit in the initial offer create an option? Also, "If a seller rejects a prospective purchaser's offer to purchase but makes a counteroffer that is not accepted by the prospective purchaser, does the prospective purchaser have the power to accept after he receives notice that the counteroffer has been revoked?"
Holding: No and no.
Reasoning: The time limit evaporated when D rejected the offer and created a counteroffer. Since the Ps did not respond, they certainly did not accept the counteroffer and they had no option on the property, so it was legitimately sold to a third party.
Lonergan v. Scolnick
Lonergan v. Scolnick
California District Court of Appeal
129 Cal. App. 2d 179, 276 P.2d 8 (1954)
Facts: The defendant put up an ad to sell his land. Plaintiff replied, and they exchanged correspondence about the land, including a discussion of which bank to us for escrow (plaintiff suggested one and the defendant agreed- D also said that if P was really interested, he should hurry). D then sold land to a third party. Plaintiff says they broke contract, Defendant says there was never a contract.
Procedure: Trial court found for the defendant, saying that the plaintiff did not respond promptly which was a condition of the offer. Thus, the defendant did not enter into a contract. Plaintiff appealed.
Issue: Did the defendant enter into a contract? Was it an offer?
Holding: No
Reasoning: The defendant had never made an offer in the first place.
California District Court of Appeal
129 Cal. App. 2d 179, 276 P.2d 8 (1954)
Facts: The defendant put up an ad to sell his land. Plaintiff replied, and they exchanged correspondence about the land, including a discussion of which bank to us for escrow (plaintiff suggested one and the defendant agreed- D also said that if P was really interested, he should hurry). D then sold land to a third party. Plaintiff says they broke contract, Defendant says there was never a contract.
Procedure: Trial court found for the defendant, saying that the plaintiff did not respond promptly which was a condition of the offer. Thus, the defendant did not enter into a contract. Plaintiff appealed.
Issue: Did the defendant enter into a contract? Was it an offer?
Holding: No
Reasoning: The defendant had never made an offer in the first place.
Lucy v. Zehmer
Lucy v. Zehmer
Supreme Court of Appeals of Virginia
84 S.E.2d 516 (Va. 1954)
Facts: Lucy and Zehmer got drunk. They discussed the sale of the Ferguson Farm, which Zehmer owned. Zehmer wrote a contract which he and his wife signed agreeing to sell the farm to Lucy for $50k. Zehmer protests that he was "higher than a Georgia pine" and that he was kidding, so the contract is void.
Procedure: Trial court held that the complainants (the Lucys) failed to establish their right to specific performance. "The assignment of error is to this action of the court."
Issue: Was the contract legit?
Holding: Yes
Reasoning: Zehmer was not too drunk; The document was produced as a serious piece of business; In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770;
Supreme Court of Appeals of Virginia
84 S.E.2d 516 (Va. 1954)
Facts: Lucy and Zehmer got drunk. They discussed the sale of the Ferguson Farm, which Zehmer owned. Zehmer wrote a contract which he and his wife signed agreeing to sell the farm to Lucy for $50k. Zehmer protests that he was "higher than a Georgia pine" and that he was kidding, so the contract is void.
Procedure: Trial court held that the complainants (the Lucys) failed to establish their right to specific performance. "The assignment of error is to this action of the court."
Issue: Was the contract legit?
Holding: Yes
Reasoning: Zehmer was not too drunk; The document was produced as a serious piece of business; In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770;
Monday, August 25, 2008
Estevez v. United States
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Facts: Joseph Estevez, a two year old, was injured in a collision with a postal truck for which the defendant was responsible.
Procedure: Trial court judge found the postal driver negligent.
Issue: How much of which kind of damages should Joseph be awarded?
Holding: A lot- costs to date, loss of work-life expectancy (but not average income), and pretty much all medical costs for his lifespan besides a surgery that was never given a cost.
Reasoning: It varies on the evidence given- the judge is acting as a jury, so he is concerned with fact finding a little more than rules. He does state that he is entitled to future lost earnings (though argues with what they'd be), future pain and suffering, future medical expenses, pain and suffering up to trial, and medical expenses up to trial that weren't covered by insurance.
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Facts: Joseph Estevez, a two year old, was injured in a collision with a postal truck for which the defendant was responsible.
Procedure: Trial court judge found the postal driver negligent.
Issue: How much of which kind of damages should Joseph be awarded?
Holding: A lot- costs to date, loss of work-life expectancy (but not average income), and pretty much all medical costs for his lifespan besides a surgery that was never given a cost.
Reasoning: It varies on the evidence given- the judge is acting as a jury, so he is concerned with fact finding a little more than rules. He does state that he is entitled to future lost earnings (though argues with what they'd be), future pain and suffering, future medical expenses, pain and suffering up to trial, and medical expenses up to trial that weren't covered by insurance.
Holden v. Wal-Mart Stores, Inc.
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Facts: Holden, a lady with bad knees, stepped out of her vehicle in a handicap parking space of the Wal-Mart parking lot and tripped on a hole in that parking lot. She had to get knee surgery (which otherwise could have waited between 5-10 years). The cost of things related to the surgery was about $25k, and a second knee surgery that would be required later on would probably cost between $40k and $50k.
Procedure: Trial jury found 40 percent negligence on Holden's part and 60 percent on Wal-Mart's part. The jury found the total damages to be $6k, so Holden recovered $3,600. Holden appealed basically on the grounds that the number was outrageously low.
Issues: Was the reward amount the result of a mistake?
Holding: No.
Reasoning: She had a pre-existing condition that gave the jury a reasonable amount of room to decide how much of the costs were due to the incident and how many would have existed anyway. See the bit about her probably needing knee surgery in the next decade anyway.
259 Neb. 78, 608 N.W.2d 187 (2000).
Facts: Holden, a lady with bad knees, stepped out of her vehicle in a handicap parking space of the Wal-Mart parking lot and tripped on a hole in that parking lot. She had to get knee surgery (which otherwise could have waited between 5-10 years). The cost of things related to the surgery was about $25k, and a second knee surgery that would be required later on would probably cost between $40k and $50k.
Procedure: Trial jury found 40 percent negligence on Holden's part and 60 percent on Wal-Mart's part. The jury found the total damages to be $6k, so Holden recovered $3,600. Holden appealed basically on the grounds that the number was outrageously low.
Issues: Was the reward amount the result of a mistake?
Holding: No.
Reasoning: She had a pre-existing condition that gave the jury a reasonable amount of room to decide how much of the costs were due to the incident and how many would have existed anyway. See the bit about her probably needing knee surgery in the next decade anyway.
Prosser v. Keeton
Prosser v. Keeton
143 Unrep. Case 1113.
Facts: Prosser's watch was stolen by Thurlow. Thurlow sells it to Keeton (who had reason to believe the deal was legit). About a month later, Prosser sees Keeton wearing it and demands it back; Keeton refuses.
Procedure: Trial judge held that Keeton was a converter and liable to return the watch or pay its reasonable value.
Issue: Is Keeton liable to return the watch (or its value)?
Holding: No (2-1)
Rationale:
143 Unrep. Case 1113.
Facts: Prosser's watch was stolen by Thurlow. Thurlow sells it to Keeton (who had reason to believe the deal was legit). About a month later, Prosser sees Keeton wearing it and demands it back; Keeton refuses.
Procedure: Trial judge held that Keeton was a converter and liable to return the watch or pay its reasonable value.
Issue: Is Keeton liable to return the watch (or its value)?
Holding: No (2-1)
Rationale:
- Allen, J. (the dissent) - The thief could not transfer a title which he did not in fact have, so Keeton is a converter and is liable.
- Bateman, J. - Justice requires that Keeton keep the watch, since neither of them are guilty of wrongdoing, but Prosser was in the better position to prevent the loss.
- Compton, J. - Policy requires that Keeton keep the watch, since if every buyer were liable for their purchases capitalism would grind to a halt. There is no evidence, btw, that watch owners are better able to prevent thefts than watch buyers are able to detect them.
Torts pg 2-34
Chapter 1
Tort Law: Aims, Approaches, and Processes
§ 1. What is Tort Law?
Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.
Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).
Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.
Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.
Common questions in tort law- (1) What conduct counts as tortious or wrongful? (2) Did the conduct cause the kind of harm the law will recognize? (3) What defenses can be raised against liability if the defendant has committed a tort?
§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence
a. Some Broad (and Conflicting) Aims
(Dobbs, The Law of Torts §§ 8-11 & § 13)
Section 8- Justice, Policy, and Process Aims of Tort Law
Morality or corrective justice- The idea that tort law should right individual wrongs.
Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).
Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).
Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).
Section 9- Ideas of Corrective Justice
Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.
Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]
Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.
Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.
Section 10- Compensation, Risk Distribution, Fault
Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.
Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.
Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.
Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
Deterrence- If people know certain actions have negative consequences, they will usually avoid them.
Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.
Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.
Section 13- Process Values in Tort Law
Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.
Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.
Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.
Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.
Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]
Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.
b. Applying Some Approaches
Prosser v. Keeton
143 Unrep. Case 1113.
§ 3. Implementing Tort Law Purposes with Damages Awards
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Tort Law: Aims, Approaches, and Processes
§ 1. What is Tort Law?
Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.
Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).
Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.
Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.
Common questions in tort law- (1) What conduct counts as tortious or wrongful? (2) Did the conduct cause the kind of harm the law will recognize? (3) What defenses can be raised against liability if the defendant has committed a tort?
§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence
a. Some Broad (and Conflicting) Aims
(Dobbs, The Law of Torts §§ 8-11 & § 13)
Section 8- Justice, Policy, and Process Aims of Tort Law
Morality or corrective justice- The idea that tort law should right individual wrongs.
Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).
Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).
Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).
Section 9- Ideas of Corrective Justice
Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.
Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]
Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.
Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.
Section 10- Compensation, Risk Distribution, Fault
Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.
Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.
Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.
Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
Deterrence- If people know certain actions have negative consequences, they will usually avoid them.
Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.
Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.
Section 13- Process Values in Tort Law
Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.
Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.
Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.
Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.
Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]
Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.
b. Applying Some Approaches
Prosser v. Keeton
143 Unrep. Case 1113.
§ 3. Implementing Tort Law Purposes with Damages Awards
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Chapter 2
Reading Torts Cases: Trial Procedures
§ 1. Looking for Facts, Rules and Reasons
Reading cases to understand principles and predict law- The skills involved in briefing a case are important.
Rules- Sometimes judges state the rules they are using; more often they simply state the part of the rule at issue in a case. Context is key.
Reasoning- You can interpret by following the judge's reasoning- what they emphasize can tell you a great deal about what the rule is and isn't.
Facts- The facts of a case can influence a judge's reasoning- for instance, in a case about a young child, speaking of "a child's liability" may really be speaking of a very young child.
Process and issues- How did we get to this point and why are we here? Also, the spheres of judges and juries are important and often a main issue.
Application of rules- is not easy. How does the rule apply? How does the rule interact with other rules?
Rules point lawyers to evidence required and arguments available- 'Nuff said.
§ 2. Procedures at Trial
1. Complaint
2. Answer
3. Selection of a jury
4. Opening statements
5. Plaintiff's case
6. Defendant's case
7. Closing arguments
8. Instruction to the jury.
§ 3. Procedures Raising Legal Issues
a. The Motion to Dismiss or Demurrer "Take all the facts stated in the complaint as if they were proved; even so, they do not show a valid legal claim." Defendant's motion; comes early in a case, before the answer is filed.
b. The Motion for Summary Judgment is based on (a) a showing of new facts in addition to those stated in the complaint and possibly in contradiction of them; (b) a showing that there is no real dispute about these new facts; and (c) a showing that on these new facts, the law compels judgment for the moving party. Usually made by the defendant, saying the legal rules do not permit the plaintiff to win.
c. Objections to Evidence and Offers of Evidence Evidence that is not relevant should be excluded, especially if it is likely to mislead or prejudice a jury. Attorneys must raise this point; if they fail to do so, they cannot complain later on. Every time a judge sustains or overrules, they are making a quick statement on the rule (even if they never explain).
d. The Motion for Directed Verdict is usually done by a defendant after the plaintiff's evidence and again after the defendant's evidence. "Such motions assert that the proof offered by the plaintiff is legally insufficient to warrant a jury's verdict for the plaintiff." Can be done if no reasonable person could disagree on the pertinent facts. Based on evidence produced in full at the trial, not initial allegations or the claim that the evidence is undisputed.
e. Proposed Instructions and Objections to Them Instructions are statements of law to the jury. "The substantive legal issue raised by an instruction, then, is whether it correctly states the law." Lawyers have the burden to object.
f. The Motion N.O.V. - A Post-trial Motion for Judgment as a Matter of Law The same as a motion for directed verdict (that is, based on the same things), but submitted after the trial. Turns on legal issues, not factual ones. The judge does not have to give a direct verdict during the trial; the judge can change their mind later if presented with this motion.
Thursday, August 21, 2008
Intro to Law, pg 213-226
Van Beeck v. Sabine Towing Co.
Supreme Court of the United States, 1937.
300 U.S. 342, 57 S. Ct. 452, 81 L.Ed. 685.
Facts: The Merchant Marine Act of 1920 gives a cause of action to the rep of a seaman who dies in the course of his employment by his employer's negligence. In this case, the beneficiary of the seaman dies during the course of the suit.
Procedure: Trial court dismissed the claim (for losses up to the beneficiary's death); intermediate appellate court affirmed.
Issue: Does liability abate when the beneficiary of the cause of action dies?
Holding: No.
Reasoning: The losses suffered by the beneficiary don't just disappear upon death and should be applied to their estate, especially as this is in line with what the statute was designed to fix. The statute exists to prevent negligence torts from evaporating at death, so her cause of action should continue as well beyond her death.
Mobil Oil Corp. v. Higginbotham
Supreme Court of the United States, 1978.
436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581.
Facts: A helicopter crashed on the high seas, killing the pilot and three passengers. The passengers' widows brought suit against the petitioner.
Procedure: District Court accepted admiralty jurisdiction and found that the deaths were due to the petitioner's negligence; they awarded damages for pecuniary losses. The District Court held that the law did not authorize recovery for loss of society. Court of Appeals reversed.
Issue: Does the law authorize loss of society damages?
Holding: No.
Reasoning: Congress specifically limited DOHSA beneficiaries to recovery of pecuniary losses. There is no room for pretending other losses might be allowed. (Dissent held the opposite, interpreting the statute to say that the beneficiaries should at the least be able to recover their pecuniary losses, and that listing only pecuniary losses did not exclude any other kind of loss from recovery.)
Clymer v. Webster
Supreme Court of Vermont, 1991
156 Vt. 614, 596 A.2d 905
Facts: Webster got drunk at a bar, left and in driving home, struck and killed a girl. The girl's parents sued both the driver and the bar. They settled with the driver.
Procedure: The trial court ruled for the defendants, saying that the damages (medical and funeral expenses and lost services and guidance) did not exceed the $120k already recovered from the negligent driver.
Issue: Does it matter that the decedent was an adult and not a minor child?
Holding: No.
Reasoning: The statute in question was remedial and therefor should be construed liberally.
Hill v. City of Germantown
Supreme Court of Tennessee, 2000.
31 S.W.3d 234
Facts: Plaintiffs sued the City of Germantown because their wives were killed in the course of a high speed chase conducted by a city cop who was negligently trained.
Procedure: Trial court found for the plaintiffs and awarded pecuniary damages but refused loss of consortium. Nevertheless, The plaintiffs each recovered the maximum permitted by the Governmental Tort Liability Act. Court of Appeals affirmed- loss of consortium damages were not not available at the time their causes of action accrued, and Jordan v. Baptist Three Rivers Hosp. could not be applied retroactively.
Issue: Does the Supreme Court of Tennessee decision, Jordan v. Baptist Three Rivers Hosp., apply retroactively to this case?
Holding: Yes, though it hardly matters because the plaintiffs cannot be awarded any more damages under the Governmental Tort Liability Act.
Reasoning: The Supreme Court's decision in Jordan didn't say that it could be applied retroactively, but that was an oversight and they are fixing it in this case.
Supreme Court of the United States, 1937.
300 U.S. 342, 57 S. Ct. 452, 81 L.Ed. 685.
Facts: The Merchant Marine Act of 1920 gives a cause of action to the rep of a seaman who dies in the course of his employment by his employer's negligence. In this case, the beneficiary of the seaman dies during the course of the suit.
Procedure: Trial court dismissed the claim (for losses up to the beneficiary's death); intermediate appellate court affirmed.
Issue: Does liability abate when the beneficiary of the cause of action dies?
Holding: No.
Reasoning: The losses suffered by the beneficiary don't just disappear upon death and should be applied to their estate, especially as this is in line with what the statute was designed to fix. The statute exists to prevent negligence torts from evaporating at death, so her cause of action should continue as well beyond her death.
Mobil Oil Corp. v. Higginbotham
Supreme Court of the United States, 1978.
436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581.
Facts: A helicopter crashed on the high seas, killing the pilot and three passengers. The passengers' widows brought suit against the petitioner.
Procedure: District Court accepted admiralty jurisdiction and found that the deaths were due to the petitioner's negligence; they awarded damages for pecuniary losses. The District Court held that the law did not authorize recovery for loss of society. Court of Appeals reversed.
Issue: Does the law authorize loss of society damages?
Holding: No.
Reasoning: Congress specifically limited DOHSA beneficiaries to recovery of pecuniary losses. There is no room for pretending other losses might be allowed. (Dissent held the opposite, interpreting the statute to say that the beneficiaries should at the least be able to recover their pecuniary losses, and that listing only pecuniary losses did not exclude any other kind of loss from recovery.)
Clymer v. Webster
Supreme Court of Vermont, 1991
156 Vt. 614, 596 A.2d 905
Facts: Webster got drunk at a bar, left and in driving home, struck and killed a girl. The girl's parents sued both the driver and the bar. They settled with the driver.
Procedure: The trial court ruled for the defendants, saying that the damages (medical and funeral expenses and lost services and guidance) did not exceed the $120k already recovered from the negligent driver.
Issue: Does it matter that the decedent was an adult and not a minor child?
Holding: No.
Reasoning: The statute in question was remedial and therefor should be construed liberally.
Hill v. City of Germantown
Supreme Court of Tennessee, 2000.
31 S.W.3d 234
Facts: Plaintiffs sued the City of Germantown because their wives were killed in the course of a high speed chase conducted by a city cop who was negligently trained.
Procedure: Trial court found for the plaintiffs and awarded pecuniary damages but refused loss of consortium. Nevertheless, The plaintiffs each recovered the maximum permitted by the Governmental Tort Liability Act. Court of Appeals affirmed- loss of consortium damages were not not available at the time their causes of action accrued, and Jordan v. Baptist Three Rivers Hosp. could not be applied retroactively.
Issue: Does the Supreme Court of Tennessee decision, Jordan v. Baptist Three Rivers Hosp., apply retroactively to this case?
Holding: Yes, though it hardly matters because the plaintiffs cannot be awarded any more damages under the Governmental Tort Liability Act.
Reasoning: The Supreme Court's decision in Jordan didn't say that it could be applied retroactively, but that was an oversight and they are fixing it in this case.
Intro to Law, pg 171-179
(Prof asked: which approach do the courts use in interpreting statutes in these cases?)
United States v. Kirby
Supreme Court of the United States, 1868.
74 U.S. (7 Wall.) 482, 19 L.Ed. 278
Facts: Sheriff arrests a mailman upon a warrant issued by a state court, which causes the mail to be late. There is a statute- the Act of Congress of March 3, 1825- which states that no one shall obstruct or delay the passage of mail or a driver carrying it.
Procedure: "The Court held that the statute had no application..."
Issue: Did the sheriff violate the statute?
Holding: No
Approach: The Golden Rule
Holy Trinity Church v. United States
Supreme Court of the United States, 1892.
143 U.S. 457, 12 S.Ct. 511, 36 L.Ed 226.
Facts: A statute existed which made it unlawful for some entity to assist the migration of an alien into the U.S. under contract to work in the U.S. The defendant was a church that had hired an Englishman to come to the U.S. to be its pastor.
Procedure: The trial court found that the church had violated the statute (by virtue of the plain language/Literal Rule approach).
Issue: Did the church violate the statute?
Holding: No
Approach: Purposive
Caminetti v. United States
Supreme Court of the United States, 1917.
242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442.
Facts: In 1917, the Mann Act made it a crime to transport or help transport "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose" in interstate commerce. Caminetti transported a woman from Sacramento to Reno so that they could have an affair, which they did.
Procedure: Trial court found against defendant. He appealed, arguing the statute did not apply because he was not transporting the woman for commercial purposes.
Issue: Did he violate the statute?
Holding: Yes
Approach: Literal Rule (dissent went the opposite way by applying the Purposive Rule and invoking Holy Trinity Church)
United States v. American Trucking Ass'ns
Supreme Court of the United States, 1940.
310 U.S. 534, 60 S. Ct. 1059, 84 L.Ed. 1345.
Facts: The Motor Carrier Act of 1935 gave the Interstate Commerce Commission the duty to regulate the qualifications and maximum hours of service of employees and safety of operation and equipment involved in "common carriers" (i.e. trucking). The commission regulated the the hours of the drivers, and then congress passed another statute regulating the hours of all workers except those covered by the Interstate Commerce Commission- by way of which the Commission concluded that it only had jurisdiction over drivers. Plaintiffs, a carrier company, wish to force the Commission to exercise its supposed jurisdiction over all its other employees.
Procedure: Plaintiffs filed a petition with the Commission to that effect, which it denied. The plaintiffs then went to a district court, whom decided for the plaintiff (based on Literal Rule).
Issue: Should the Commission expand the practice of its jurisdiction?
Holding: No.
Approach: Dissenters agreed with the Literal rule; majority argued Purposive.
United States v. Kirby
Supreme Court of the United States, 1868.
74 U.S. (7 Wall.) 482, 19 L.Ed. 278
Facts: Sheriff arrests a mailman upon a warrant issued by a state court, which causes the mail to be late. There is a statute- the Act of Congress of March 3, 1825- which states that no one shall obstruct or delay the passage of mail or a driver carrying it.
Procedure: "The Court held that the statute had no application..."
Issue: Did the sheriff violate the statute?
Holding: No
Approach: The Golden Rule
Holy Trinity Church v. United States
Supreme Court of the United States, 1892.
143 U.S. 457, 12 S.Ct. 511, 36 L.Ed 226.
Facts: A statute existed which made it unlawful for some entity to assist the migration of an alien into the U.S. under contract to work in the U.S. The defendant was a church that had hired an Englishman to come to the U.S. to be its pastor.
Procedure: The trial court found that the church had violated the statute (by virtue of the plain language/Literal Rule approach).
Issue: Did the church violate the statute?
Holding: No
Approach: Purposive
Caminetti v. United States
Supreme Court of the United States, 1917.
242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442.
Facts: In 1917, the Mann Act made it a crime to transport or help transport "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose" in interstate commerce. Caminetti transported a woman from Sacramento to Reno so that they could have an affair, which they did.
Procedure: Trial court found against defendant. He appealed, arguing the statute did not apply because he was not transporting the woman for commercial purposes.
Issue: Did he violate the statute?
Holding: Yes
Approach: Literal Rule (dissent went the opposite way by applying the Purposive Rule and invoking Holy Trinity Church)
United States v. American Trucking Ass'ns
Supreme Court of the United States, 1940.
310 U.S. 534, 60 S. Ct. 1059, 84 L.Ed. 1345.
Facts: The Motor Carrier Act of 1935 gave the Interstate Commerce Commission the duty to regulate the qualifications and maximum hours of service of employees and safety of operation and equipment involved in "common carriers" (i.e. trucking). The commission regulated the the hours of the drivers, and then congress passed another statute regulating the hours of all workers except those covered by the Interstate Commerce Commission- by way of which the Commission concluded that it only had jurisdiction over drivers. Plaintiffs, a carrier company, wish to force the Commission to exercise its supposed jurisdiction over all its other employees.
Procedure: Plaintiffs filed a petition with the Commission to that effect, which it denied. The plaintiffs then went to a district court, whom decided for the plaintiff (based on Literal Rule).
Issue: Should the Commission expand the practice of its jurisdiction?
Holding: No.
Approach: Dissenters agreed with the Literal rule; majority argued Purposive.
Tuesday, August 19, 2008
Monday, August 18, 2008
Intro to Law, suppliment 3-39
Armory v. Delamire
King's Bench, 1 Strange 505 (1722).
Facts: Plaintiff found a jewel and took it to the defendant (a goldsmith) to find out what it was. Defendant took it and offered money in return, but the plaintiff wanted the stone back, which the defendant would not surrender.
Procedure:
Issues: Does the finder have more of a claim to ownership than the goldsmith?
Holding: Yes.
Reasoning: The finder doesn't have absolute ownership, but they have more of a claim than anyone else but the rightful owner.
Bridges v. Hawkesworth
21 L.J. (Q.B.) 75 (1851)
Facts: Plaintiff found a bundle of bank notes on a shop floor and passed them to the defendant for the purpose of returning them to their true owner. After a time the plaintiff returned and demanded the notes, offering to pay for the defendants efforts and also to indemnify the shopkeeper (defendant) against any claim. The defendant said no.
Procedure: Westminster County Court found that the plaintiff handed over not only the responsibility to the true owner to the defendant, but the advantages as well.
Issues: Did the plaintiff have more of a claim to the notes than the defendant?
Holding: Yes
Reasoning: The location of the notes made no difference as to the plaintiff's claim. No circumstances take the case out of the general rule of law, that the finder of a thing has more claim to it than anyone but the rightful owner.
South Staffordshire Water Company v. Sharman
2 Q.B. 44 (1896)
Facts: Plaintiffs employed workmen to clean out a pool on their private land. Defendant, one such workman, found two rings in the bottom of the pool and handed them over to the police. When the police could not find the rightful owners, they returned the rings to the defendant. Plaintiffs claim they have the better right to the rings.
Procedure: County court judge decided for the defendant, stating that the finder had a better claim against all the world but the rightful owner.
Issues: Does an owner of private property have more of a claim to chattel found on his land than the individual who finds it?
Holding: Yes.
Reasoning: "The general principle seems to me to be that where a person has possession of a house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land... the presumption is that the possession of that thing is in the owner of the locus in quo." (This judge treats the location principle as more important than the finder's principle, but it seems like you argue that the person's property is essentially "finding" the item for the owner.)
Hannah v. Peel
King's Bench Division, K.B. (1945)
Facts: Defendant (Major Peel) owned a house that was requisitioned by soldiers during the war. Plaintiff (Corporal Hannah) found a brooch while there in an out of the way place (the defendant never occupied the house). Plaintiff turned it over to the police; after they failed to find the true owner, they turned it over to the defendant, who sold it. Plaintiff (Corporal Hannah) wants the worth of the brooch.
Issue: Does the finder or the property owner have a better claim?
Hold: Plaintiff, the finder, has the better claim.
Reasoning: The defendant never had possession of the property and therefore never had possession of the stuff on it. Thus, the finders keepers except against the true owner comes into play. Also, "It seems to me that a man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else."
Excerpt from Paul Campos
Notes
Popov v. Hayashi
2002 WL 31833731 (Cal. Superior).
Facts: Popov catches BB homer ball, loses it to a mob, and it is innocently picked up by Hayashi.
Issues: Who has a better claim?
Holding: They have an equal claim, so sell it and split the proceeds.
Reasoning: It was unclear whether Popov would have maintained control if the mob had not occured; in possible future, Hayashi's claim is valid, in another possible future, it isn't. Since there is no way of determining, split the difference.
King's Bench, 1 Strange 505 (1722).
Facts: Plaintiff found a jewel and took it to the defendant (a goldsmith) to find out what it was. Defendant took it and offered money in return, but the plaintiff wanted the stone back, which the defendant would not surrender.
Procedure:
Issues: Does the finder have more of a claim to ownership than the goldsmith?
Holding: Yes.
Reasoning: The finder doesn't have absolute ownership, but they have more of a claim than anyone else but the rightful owner.
Bridges v. Hawkesworth
21 L.J. (Q.B.) 75 (1851)
Facts: Plaintiff found a bundle of bank notes on a shop floor and passed them to the defendant for the purpose of returning them to their true owner. After a time the plaintiff returned and demanded the notes, offering to pay for the defendants efforts and also to indemnify the shopkeeper (defendant) against any claim. The defendant said no.
Procedure: Westminster County Court found that the plaintiff handed over not only the responsibility to the true owner to the defendant, but the advantages as well.
Issues: Did the plaintiff have more of a claim to the notes than the defendant?
Holding: Yes
Reasoning: The location of the notes made no difference as to the plaintiff's claim. No circumstances take the case out of the general rule of law, that the finder of a thing has more claim to it than anyone but the rightful owner.
South Staffordshire Water Company v. Sharman
2 Q.B. 44 (1896)
Facts: Plaintiffs employed workmen to clean out a pool on their private land. Defendant, one such workman, found two rings in the bottom of the pool and handed them over to the police. When the police could not find the rightful owners, they returned the rings to the defendant. Plaintiffs claim they have the better right to the rings.
Procedure: County court judge decided for the defendant, stating that the finder had a better claim against all the world but the rightful owner.
Issues: Does an owner of private property have more of a claim to chattel found on his land than the individual who finds it?
Holding: Yes.
Reasoning: "The general principle seems to me to be that where a person has possession of a house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land... the presumption is that the possession of that thing is in the owner of the locus in quo." (This judge treats the location principle as more important than the finder's principle, but it seems like you argue that the person's property is essentially "finding" the item for the owner.)
Hannah v. Peel
King's Bench Division, K.B. (1945)
Facts: Defendant (Major Peel) owned a house that was requisitioned by soldiers during the war. Plaintiff (Corporal Hannah) found a brooch while there in an out of the way place (the defendant never occupied the house). Plaintiff turned it over to the police; after they failed to find the true owner, they turned it over to the defendant, who sold it. Plaintiff (Corporal Hannah) wants the worth of the brooch.
Issue: Does the finder or the property owner have a better claim?
Hold: Plaintiff, the finder, has the better claim.
Reasoning: The defendant never had possession of the property and therefore never had possession of the stuff on it. Thus, the finders keepers except against the true owner comes into play. Also, "It seems to me that a man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else."
Excerpt from Paul Campos
Notes
Popov v. Hayashi
2002 WL 31833731 (Cal. Superior).
Facts: Popov catches BB homer ball, loses it to a mob, and it is innocently picked up by Hayashi.
Issues: Who has a better claim?
Holding: They have an equal claim, so sell it and split the proceeds.
Reasoning: It was unclear whether Popov would have maintained control if the mob had not occured; in possible future, Hayashi's claim is valid, in another possible future, it isn't. Since there is no way of determining, split the difference.
Intro to Law, pg 119-124
Chapter IV: The Ratio Decidendi of a Case
A. Overview
A. Overview
- Only those statements in an earlier decision that constitute the ratio decidendi of that case are held to be binding. Everything else may be disregarded: these are called dicta or (if they are particularly useless) obiter dicta.
- As you may have guessed, what makes up the ratio decidendi of a case is pretty controversial.
- Not every analysis or rule a court applies in determining a holding counts as ratio decidendi.
- Some say that the ratio decidendi consists of the parts of the opinion that explain the rules of law applied by the court, that were also required to determine the issues.
- Others say that it is found by analyzing the facts of the precedent case and the judge's decision based on these facts. This is mostly an argument against the above, saying that a judge may not apply a rule at all, or formulate a rule that is too broad or narrow. It also mentions that coequal judges' opinions may have no influence over each other.
- Future judges are free to emphasize different aspects of a precedent case in order to promote a more consistent law.
- Still others claim that is it silly to think that each decided case has its own ratio decidendi. Only comparisons of many cases on a problem can provide any real guidance. (Ethnology versus Ethnography)
- The editors suppose that after a great deal of arguing and time, it will then be possible to tease out the rule or principle and then apply it consistently for a while.
Curtis v. Loether
Supreme Court of the United States, 1974. 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260.
Facts: Plaintiff claimed defendants discriminated against her by refusing to rent her an apartment because she was black; plaintiff sought punitive and compensatory damages. Defendants moved to have a jury trial; plaintiff objected.
Procedure: "District Court held that a jury trial was neither authorized by Title VIII nor required by the Seventh Amendment and denied the jury request." "The Court of Appeals reversed on the jury trial issue... the court concluded essentially that the Seventh Amendment gave respondents the right to a jury trial in this action, and therefore interpreted the statute to authorize jury trials so as to eliminate any question of its constitutionality."
Issues: Did the claim warrant a jury trial? Was the Court of Appeals correct?
Holding: Yes and Yes.
Reasoning: "The relief sought here-actual and punitive damages-is the traditional form of relief offered in the courts of law." "We have often found the Seventh Amendment applicable to causes of action based on statutes."
Concurring/Dissenting Opinions: None presented in our text.
Analysis: Basically, they found that the defendant was seeking legal relief and not equitable relief, and that that distinction is the heart of the Seventh Amendment's interpretation. Also, they made it clear that the Seventh Amendment was not designed to freeze the common law as it was in 1791, declaring everything enacted after as something else.
Facts: Plaintiff claimed defendants discriminated against her by refusing to rent her an apartment because she was black; plaintiff sought punitive and compensatory damages. Defendants moved to have a jury trial; plaintiff objected.
Procedure: "District Court held that a jury trial was neither authorized by Title VIII nor required by the Seventh Amendment and denied the jury request." "The Court of Appeals reversed on the jury trial issue... the court concluded essentially that the Seventh Amendment gave respondents the right to a jury trial in this action, and therefore interpreted the statute to authorize jury trials so as to eliminate any question of its constitutionality."
Issues: Did the claim warrant a jury trial? Was the Court of Appeals correct?
Holding: Yes and Yes.
Reasoning: "The relief sought here-actual and punitive damages-is the traditional form of relief offered in the courts of law." "We have often found the Seventh Amendment applicable to causes of action based on statutes."
Concurring/Dissenting Opinions: None presented in our text.
Analysis: Basically, they found that the defendant was seeking legal relief and not equitable relief, and that that distinction is the heart of the Seventh Amendment's interpretation. Also, they made it clear that the Seventh Amendment was not designed to freeze the common law as it was in 1791, declaring everything enacted after as something else.
Rogers v. Loether
Rogers v. Loether
United States District Court, E.D. Wisconsin, 1970. 312 F. Supp. 1008
Facts: Plaintiff claims that defendants discriminated against her by refusing to rent her an apartment because she is black; plaintiff requested money damages, punitive damages and attorney's fees. Defendants requested a jury trial, and plaintiff objected.
Issues: Does the claim warrant a jury trial?
Holding: No.
Reasoning: "I find that this cause of action is a statutory one invoking the equity powers of the court, by which the court may award compensatory and punitive money damages.. so that complete relief may be had. The action is not one in the nature of a suit at common law, and therefore there is no right to trial by jury on the issue of money damages in the case."
Concurring/Dissenting Opinions: (not presented in our text)
Analysis: ???
United States District Court, E.D. Wisconsin, 1970. 312 F. Supp. 1008
Facts: Plaintiff claims that defendants discriminated against her by refusing to rent her an apartment because she is black; plaintiff requested money damages, punitive damages and attorney's fees. Defendants requested a jury trial, and plaintiff objected.
Issues: Does the claim warrant a jury trial?
Holding: No.
Reasoning: "I find that this cause of action is a statutory one invoking the equity powers of the court, by which the court may award compensatory and punitive money damages.. so that complete relief may be had. The action is not one in the nature of a suit at common law, and therefore there is no right to trial by jury on the issue of money damages in the case."
Concurring/Dissenting Opinions: (not presented in our text)
Analysis: ???
Thursday, August 14, 2008
The Countdown
Things I did in my last week of prep for law school:
- Hosted Taco Night
- Made friends with the bartender at Murphy's
- Played video games until the sun went down
- Finished my bookshelf-fort
- Compulsively googled "1l advice," "law student advice," and "Beijing Olympics"
Monday, August 11, 2008
Plain English Exercises 8-9
Exercise 8
- The stock exchange suspended trading in the defendant corporation's stock at 10:17 the next morning.
- Neither the depositor nor anyone else notified the bank that the ATM card had been stolen.
- You must fill in the Dept. of Agriculture Form 9-2018 and bring it in to any USDA branch office before you can plant genetically modified sugar beet seed in an open field.
- After 180 days, either party can terminate this agreement.
- The officer found two kilograms of an unidentified white powder in the spare tire well of Defendant's Volvo sedan.
- When you donate appreciated assets, you can deduct their fair market value at the time of the gift, thus avoiding the capital gains tax.
- In a tort case, an actor is not liable for harm that is different from the harms whose risks made the actors conduct tortious. An actor is also not liable for harm when the tortious aspect of the actor's conduct did not increase the risk of harm. However, an actor is liable when his tortious conduct causes an unusual amount or type of damage to a person due to the person's preexisting physical or mental condition.
- In sentencing, the purpose of the law ought to be to punish within a range of severity sufficient to the gravity of the offense and the blameworthiness of the offenders. Where there is a realistic prospect of success, the law should try to serve the goals of offender rehabilitation, general deterrence, incapacitation of dangerous offenders, and restoration of crime victims and communities. However, the law should not impose sentences more severe than necessary to achieve these goals.
- For class-gift purposes, a child produced by in vitro fertilization is treated as the child of the husband and wife, regardless of whether the child was genetically formed by both of the spouses or one of the spouses and a third party.
Wednesday, August 6, 2008
Plain English Exercises 4-6
Exercise 4
One of the primary obligations an agent owes their principal is to act with the normal degree of care, competence, and diligence exercised by similar professionals in similar situations. If the agent has special skills and/or knowledge, that must be taken into account when determining whether the agent has acted with due diligence. Also, the agent can only act within the authority granted to them by their principal. An agent must comply with all lawful instructions from the principal (or persons designated by the the principal) about their behavior on the principal's behalf.
Exercise 6
- Three interrelated reasons could motivate a person to make a significant give to a charity.
- First, the person may simply desire to aid the charity.
- Second, the person may wish to avoid the capital gains tax by donating an asset that has sharply increased in value since they acquired it.
- Finally, an exceedingly wealthy person might donate to reduce the amount of estate taxes to be paid upon their death.
- Tax lawyers and estate planners should show their clients the many ways that giving to charity can also reduce their taxes.
One of the primary obligations an agent owes their principal is to act with the normal degree of care, competence, and diligence exercised by similar professionals in similar situations. If the agent has special skills and/or knowledge, that must be taken into account when determining whether the agent has acted with due diligence. Also, the agent can only act within the authority granted to them by their principal. An agent must comply with all lawful instructions from the principal (or persons designated by the the principal) about their behavior on the principal's behalf.
Exercise 6
- An insurance claims agent should not lightly reject a policy holder's facially valid claim.
- Rather, the claims agent should carefully consider the possible consequences.
- Every contract contains an implied term that the parties have a duty of good faith and fair dealing, and insurance contracts are no exception.
- When a claims agent bluntly refuses to provide a reasoned explanation for failing to pay on a facially valid claim, it leads us to question that agent's good faith.
- The insurance company must provide a coherent response to a facially valid claim to fulfill one of its good faith requirements.
- The claim's agent continued use of the "stonewall" tactic for 10 months leads us to infer that the agent intended to stall until the policy holder capitulated or hired a lawyer.
Tuesday, August 5, 2008
Plain English Exercises, 2-3
Exercise 2
- The doctor created a restrictive trust to control how his art collection could be displayed after his death, hoping to keep everything exactly as it was during his lifetime.
- Concerning the enormous charitable gift deduction claimed by the taxpayer: since she failed to submit an appraiser's report of the donated bronze sculpture, we propose to disallow the deduction under the Revenue Department's standard operating procedure.
- The plaintiff is seeking relief similar to a mandatory injunction; before the merger of law and equity, such relief could only be granted by Chancery.
- No legal remedy is available now because the statute of limitations has run.
- From the affidavits filed by plaintiff and defendants about the cross-motions for summary judgement, we have concluded that there are contested issues of fact. Therefore, no summary judgement can be issued at present.
- To promote judicial economy, we submit to the court that it should consolidate all nine civil actions, both for discovery now and for trial later.
Exercise 3
- Under the terms of the copyright license...
- When the escrow closes...
- Mandatory injunctive relief is inappropriate here...
- After her release from prison, she was confined at home for at least six months.
- Undoubtedly His Honor is required to recuse himself.
- The action was barred because the statue of limitations' period had expired.
- The Court of Appeal must consider whether...
- Until the plans are approved by the design review committee, the homeowner association rules prohibit construction.
- Most of the time, the insurance adjuster will deny the claim at first.
- An attorney can be professionally disciplined for suing without a good faith belief in the legal and factual basis of the claim. Both the client and attorney can be subject to litigation sanctions as well.
Intro to Law, Supplement pg 1-2
Jurismania (Paul F. Campos)
The Efficient Process Theory
The Efficient Process Theory
- The law exists even when no one is breaking it; sometimes people forget this, especially lawyers.
- (I like the volcano metaphor better than the iceberg metaphor; it allows for sudden and violent revolutions.) The law is like a volcano where the vast majority of it is unseen from the surface. The seen aspects are the island- situations where people resort to the law. A little rock on the top of the island represents all appellate court cases.
Intro to Law, pg 56-58
E. The Merger of Law and Equity
- The dual system of equity and common law was complex, confusing and obnoxious- so obnoxious that even the lawyers didn't like it.
- The same wave of reform that putatively abolished forms of action also unified the jurisdiction of courts in England and America. David Dudley Field's Code of Civil Procedure in 1848 put together a single mode of pleading and procedure that was adopted by New York and then California and most of the other states.
- But like forms of action, the merger was more putative than anything else. The relief given under each system is still different; and people still must prove that remedy at law is inadequate in order to gain inequitable relief.
- "When equitable relief is sought, there is no right to a jury trial." Federal law provides the right for a jury trial in common law cases only, while equity is left up to the states, who usually dismiss jury trials as too expensive.
- "The continuing significance of the distinction between law and equity is emphasized by cases in which the legislature has created a new statutory remedy, and the courts are asked to determine whether a person claiming relief under the statute is entitled to a jury trial." For example, you have a right to a trial when acting for damages for housing discrimination under the Civil Rights Act of 1968.
- "Often this mode of analysis leads to inconclusive results, and the final determination whether the remedy gives rise to a right to jury trial turns on the solicitude of particular courts for jury trials as a matter of social policy."
Monday, August 4, 2008
Intro to Law, pg 46-51
C. Equitable Jurisdiction and the Court of Chancery
1. Equity and Justice
1. Equity and Justice
- Equity and common law were rival systems. Equity was associated with the Court of Chancery.
Aristotle, The Nichomachean Ethics
- Justice and equity are neither identical nor generically different. This is weird.
- Equity is essentially just; it's superiority to justice does not stem from their differences.
- Since humans are pretty original when it comes to squabbling, it is impossible to make a general statement that covers all possible specific situations. Equity acknowledges the limits of a general statement and attempts to give justice to the outliers without cancelling in anyway the original general statement.
St. Germain, The Doctor and the Student
- "St. Germain agrees with Aristotle that equity is an exception from the law in cases where the law is deficient because of its generality."
- "And so it appeareth that equity rather followeth the intent of the law, than the words of the law. And I suppose that there be in like wise some like equities grounded on the general rules of the law of the realm."
- A couple of examples are given, one about cattle and the other about bums. The gist is that the law shouldn't have to list all the possible exceptions to an otherwise well crafted rule.
2. The Court of Chancery and the Development of Equity
- Early common law was quite flexible and thus equitable. However that changed as the Chancery lost it's ability to make writs.
- Though the king delegated his power to the common law courts, he also reserved the power to do justice by executive fiat. Thus people could petition the king and his council for relief, not as owed to them by their rights but as given to them by the king's mercy.
- Any suits that were not declared frivolous were referred to the chancellor, who was also a member of the council. At first he was merely a delegate, but over time petitions were decided by the chancellor in his own name. The bureaucracy took hold here, too, but equity retained it's flexible nature anyway.
- At first, the chancellor's jurisdiction was vague and had more to do with the conscience of the man in question than anything else. They certainly didn't attempt to lay down patterns for successive chancellors to follow. However, eventually it was recognized that there were certain types of cases in which the chancellor would provide relief.
- Uses- "If the legal estate in any property was held by A 'to the use' of B, the chancellor would give effect to the 'equitable' rights of B, while fully recognizing that the legal title to the property was in A." Enforcing this over time led to trusts.
- Contracts- if the contract (or other legal transaction) came to being through fraud, mistake or duress, the chancellor would grant much greater redress than the common law was capable of.
- Contracts again- the chancellor would often enforce an obligation created simply by mutual agreement. Common law, by comparison, demanded either a sealed document or a performance by one party to the contracts (covenant and debt). Also, common law would only grant damages, while occasionally the chancellor would issue a decree of specific performance compelling the defendant to fulfill the terms of the the contract. Sometimes the chancellor would award damages as well as compel the fulfilling of the contract.
- If a defendant failed to comply, they would be charged with contempt of court. Indefinite fines or jail terms (civil contempt) were imposed to coerce future compliance, and definite fines or jail terms (criminal contempt) were imposed to punish past violations.
- The chancellor had a lot more freedom to investigate than the judges of the common law courts did, and could pretty well do as he pleased. There were no jury in equity cases.
- The chancellor had a lackey called the master of the rolls. If the MotR heard a case in place of the chancellor, the losing party could appeal to the latter.
- Common law and the chancery were quite bitter rivals. Chancellor Wosley would go as far as to issue decrees preventing parties from appealing to the common law all together, or from having a common law decision enforced.
- The common law courts fought back, of course. Eventually the matter was decided by King James I, in favor of the Chancery.
- After the Commonwealth and the restoration of the monarchy in the 1600s, relations improved. Part of the reason was that it developed rules and precedents that were followed by Chancellors as the equivalents were followed by common law judges. They were still much more flexible and allowed greater discretion to the chancery than common law judges enjoyed.
- Also, after Wosley the chancellor was no longer an ecclesiastic but a secular official. After 1675 they were exclusively lawyers, as well.
Sunday, August 3, 2008
Google is My Valet
Yesterday, while caught on the horns of early August boredom and law school anticipation, I made separate google calendars for all six sections of UC 1Ls so that when I do find out what section I'm in, I can simply delete the other five. Not the most efficient method, perhaps, but it killed a few hours.
In the process, I discovered that gmail will send me reminders via text messages! This will be handy, since making all those calendars made it clear to me that it is entirely possible I will have the same class in three different rooms at three different times on highly randomized weekdays. Luckily the professor remains constant, at least. In any case it won't matter because google will send me a reminder ten minutes beforehand telling me which painting the secret passage has moved to today.
In the process of discovering that, I also discovered that I can set filters on my gmail that will forward emails from specific sources to another email address... and that apparently my phone has an associated email address for text messaging! Something like: 9998887777 (at) vtext (dot) com. (Vtext is the associated domain for Verizon wireless. I used it as an example, but this site has a list of other common domains.) I'm probably going to use this to forward emergency emails from the university, like snow days and the like.
In related news, today I discovered http://www.qipit.com/. It takes photos of documents, cleans them up and turns them into a .pdf document. There are examples on the site that are pretty wild. It is, of course, compatible with photo messages from a... guess what... camera phone!
Have I mentioned I have unlimited text and picture messaging?
That last site really excites me because I really like the idea of using a blog to organize my notes, but I've been wondering what I'm going to do about the in-class stuff. I just don't retain as much when I type, even though the entry is faster. I'd resigned myself to transcribing things after the fact, or maybe scanning the notes, but this is soooooo easy as to be ridiculous. According to the site, I could feasibly send their images straight to my blog, again all via cellphone.
My inner geek is so happy right now.
In the process, I discovered that gmail will send me reminders via text messages! This will be handy, since making all those calendars made it clear to me that it is entirely possible I will have the same class in three different rooms at three different times on highly randomized weekdays. Luckily the professor remains constant, at least. In any case it won't matter because google will send me a reminder ten minutes beforehand telling me which painting the secret passage has moved to today.
In the process of discovering that, I also discovered that I can set filters on my gmail that will forward emails from specific sources to another email address... and that apparently my phone has an associated email address for text messaging! Something like: 9998887777 (at) vtext (dot) com. (Vtext is the associated domain for Verizon wireless. I used it as an example, but this site has a list of other common domains.) I'm probably going to use this to forward emergency emails from the university, like snow days and the like.
In related news, today I discovered http://www.qipit.com/. It takes photos of documents, cleans them up and turns them into a .pdf document. There are examples on the site that are pretty wild. It is, of course, compatible with photo messages from a... guess what... camera phone!
Have I mentioned I have unlimited text and picture messaging?
That last site really excites me because I really like the idea of using a blog to organize my notes, but I've been wondering what I'm going to do about the in-class stuff. I just don't retain as much when I type, even though the entry is faster. I'd resigned myself to transcribing things after the fact, or maybe scanning the notes, but this is soooooo easy as to be ridiculous. According to the site, I could feasibly send their images straight to my blog, again all via cellphone.
My inner geek is so happy right now.
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