"Legal Forms L a County Superior Court Restraing Order"
K. Stone Comps Study Group LEGAL BASICS I included only basic information from Torts, Contracts and Constitutional Law. This is a sliced down version, I took out everything I didn’t think could possibly come up for the Comps. Also, I included property definitions, but not more since the only relevant property issues will be intellectual property, which I have yet to take a class on… TORTS IN A NUTSHELL: Torts Definitions: Assault – Genuine imminent fear of physical threat/harm. Assumption of Risk – P voluntarily entering the risk, knowing what it is and what its magnitude is. Avoidable Consequences – P has a duty to mitigate damages after the accident (to prevent further injury). Exception with risky surgery. Battery – Offensive non-consented touching. Designed to protect not only body, but personhood and dignity. “But For” Test – Would the injury have occurred w/out the plaintiffs act or omission? Cause-In-Fact – The story that connects the pieces: A (act or omission by D) B C (injury of P) Comparative Negligence – (Affirmative Defense) Responsible only for the amount of negligence (% wise) Consent – Both parties agree to conduct Contributory Negligence – (Affirmative Defense) If P contributed to his own injury in any way, he is completely barred from recovery Cost-Benefit Analysis – Created by Judge Learned Hand. If Burden (B) is less than Probability (P) multiplied by Injury (L), then there is liability. Deterrence – If they know they will shoulder the loss they will be more cautious in the future. Direct Emotional Injury – Emotional Injury Sustained as a Direct Result of Activity. Duty – General Duty is owed to everyone, but there are multiple exceptions. Eggshell Skull Rule – D gets victim the way they find them. D is liable for full damages caused, even if P has some unusual physical sensitivity that causes unforeseeable extent of injury. Emergency Doctrine – Expectation to act as a reasonable person would in an emergency situation, not as one would act under normal circumstances. Imputation – A sort of transfer of negligence – courts don’t like to use with contributory negligence, Impute negligence from first victim to reduce claim of victim Informed Consent – Patient has a right to self-determination. Should be given the options. Invitee – One who enters premises by consent of possessor, and for a business purpose of the possessor. Joint and Several Liability – Single agent/action and multiple defendant (producers) Kinsman Rule – Distinction between type of injury caused (foreseeable), and extent of injury (not foreseeable). Relates to Proximate Cause. Liability Rule – One of the parties in conflict can purchase entitlement at an objectively determined price Licensee – One who enters and remains on land with the permission of possessor, but is not an invitee. Loss of Opportunity – Action Leads to Injury Negligence – Fault, do to action in an unreasonable manner. Negligence Per Se – Violation of a statute resulting in injury. Nuisance – Violation of one’s use and enjoyment. K. Stone Comps Study Group Open and Obvious – Traditional Rule that you had no duty to warn or protect from open and obvious dangers Premises Liability – Generally, courts determine the duty owed by a possessor to an entrant according to the traditional common law classification of entrants. Property Rule – When a person who wishes to obtain the entitlement must purchase it at a price determined by the holder. Proximate Cause – Foreseeability Reasonable Person – An objective, external standard. What would a reasonable person do in same circumstances? Res Ipsa Loquitur – The thing speaks for itself (used when P can’t tell story). Self Defense – Engaging in conduct to protect oneself, after another initiates conduct. Must flee if have the opportunity, and must stop self-defense once threat has subsided. Strict Liability – Not looking for fault, may have acted reasonably but loss still apportioned to D. Strict Products Liability – Manufacturer liable for injuries caused by their products regardless of whether they have exercised due care. Tort – A wrong outside of a contract, with loss as a result. Trespass – Entrance onto land that is in P’s right of possession. Needn’t cause harm. Entry must be intentional, trespass needn’t be. Trespasser – One who enters land without the permission or privilege to do so. Unintentional tort – When the actor doesn’t intend to cause harm. Zone of Danger – P may recover for the emotional shock of witnessing the harm to a loved one if and only if P was also in the zone of danger of physical injury created by D’s negligence. I. Intro Tort: wrong outside of contract - no contractual relationship between defendant and plaintiff. Classic tort scenario: “Actor” (D) & “Victim” (P) & Loss Fundamental tort question: will we reallocate loss from actor to victim (who will bear the loss?) Unintentional tort ↔ Intentional tort ↓ ↓ Negligence Strict liability “Fault” Difference between unintentional and intentional tort is moral culpability Unintentional tort- when actor doesn’t intend to cause harm (golf example from class) Two categories: negligence and strict liability Broad definitions: Negligence = fault (acted in unreasonable manner) Strict liability = not looking for fault - may have acted in reasonable manner, but loss still apportioned to D Negligence is general tenet in American law w/re to intentional torts Torts Claims Negligence Assault Battery K. Stone Comps Study Group Intentional Infliction of Emotional Distress Traditional Strict Liability (Abnormally Dangerous Activity) Strict Products Liability Nuisance Trespass Torts PFCs Negligence: 1. Unreasonable Conduct a. Reasonable Person Standard b. Cost Benefit Analysis i. B<P*L=Liability c. Custom d. Negligence Per Se i. D violated statute or public regulation ii. Purpose of statute is to prevent accidents (safety) iii. P is a member of the class of people the statute was intended to protect iv. Injury was of the type the statute was designed to prevent. v. D’s violation is unexcused (does not fit exceptions) e. Res Ipsa Loquitur i. Wouldn’t normally occur without negligence. ii. Caused by instrument under doctor’s control. iii. No contributory negligence. 2. Causation a. Causation in Fact i. But For Test ii. Substantial Factor Test b. Proximate Cause i. Directness Test ii. Reasonably Foreseeable Test 3. Duty Premises Liability falls under this category 4. Legal Injury Affirmative Defenses 1. Contributory Negligence i. Last Clear Chance ii. Imputed Negligence iii. Avoidable Consequences iv. Comparative Negligence (Pure/Modified – pure up to certain point, pure beyond certain point) v. Comparative Fault vi. Uniform Comparative Fault Act 2. Assumption of Risk i. Express ii. Implies Assault: 1. Act 2. Intent 3. Reasonable Apprehension of Bodily Harm 4. Cause 5. Unconsented K. Stone Comps Study Group Defenses 1. Consent 2. Self-Defense Battery: 1. Act 2. Intent 3. Harmful or Offensive to Legally Protected Interest 4. Cause 5. Unconsented Defenses 1. Consent 2. Self-Defense Intentional Infliction of Emotional Distress: 1. Intent to Inflict Emotional Distress 2. Extreme and Outrageous Conduct 3. Conduct Caused Distress 4. Severe Distress Traditional Strict Liability: 1. Look for Abnormally Dangerous Activity Do Restatement Test §520 2. High Degree of Risk 3. Harm that will produce great results 4. Inability to Eliminate Risk by Use of Ordinary Care 5. Extent to Which Activity is not Common Use 6. Inappropriateness of Where it Happens 7. Extent to which the Value Outweighs Dangerous Attributes (CBA) Defenses 1. Assumption of Risk where actual knowledge of risk exists Strict Products Liability 1. Proper and Eligible Defendant 2. Product 3. Defect a. Type i. Manufacturing ii. Design iii. Warning b. Unreasonably Dangerous 4. Causation 5. Injury 6. Proper and Eligible Plaintiff Defenses 1. Contributory Negligence State – only Assumption of Risk 2. Comparative Negligence State – Assumption of Risk and Contributory Negligence Intentional Trespass (§158) (supp 87) 1. P’s Right of Possession 2. Intent of Entry (not intent to trespass) K. Stone Comps Study Group 3. No harm requirement. Nuisance 1. Substantial 2. Interference with P’s use and enjoyment of land 3. By act/conduct 4. Where the interference is: a. Intentional and Unreasonable b. Arises from negligent or reckless conduct, or c. Arises from an abnormally Dangerous Activity Torts Tests Proximate Cause: To test Proximate Cause, do the Palsgraf Test, and take Andrews as the dominant view. Andrews: Proximate cause must be something without which the event wouldn’t have occurred. Natural and continuous sequence between cause and event? Direct connection Foreseeability. Believes everyone is within the orbit of danger (duty to all). Limits the scope of liability with proximate causation (as opposed to duty) Eggshell rule as it applies here: D gets the victim the way they find them. If P has some unusual physical sensitivity or susceptibility, D is still liable for full damages caused, even though extent of injuries not foreseeable. Another Proximate Cause Test is the Kinsman Rule: Kinsman I: The court draws a distinction between type of injury and extent of injury. If the type of injury is foreseeable (ship breaking loose), then the extent of the injury is foreseeable (ship breaking all sorts of things). Kinsman II: The court says no economic damages if the connection is too tenuous and remote. The policy here is closer linked to that of Andrews. Market Share Test: Concentrate on situations where there are large # of D; a fungible agent Apply the Hymowitz test - to see if right for market share approach and then look at both Hymowitz: Many producers agent (DES) -- each pill rep. a level of risk -- apportion risk to the market share. Court rejects alternative liability b/c there are so many producers (D) who will not know who is liable and therefore are unable to reveal the culpable party -- fairness argument related to the decreasing probability that any one of the D actually caused the injury. concerted action- parties working together to create a tortious act -- doesn’t apply to this case because the parties were not acting in concert. But, ct finds they were engaged in parallel conduct (doing same thing but not together -- doing the tortious act independent of each others). Market dictates parallel conduct -- Liability is several only, not joint. Policy: This holding balances P need for adequate relief w/ D right not to pay more than their share in market. Duty: 1. Always start with the assumption of a general duty owed to all. 2. The “Open and Obvious Test” used to be an exception, but modern day courts say that if the danger is unavoidable, open and obvious doesn’t excuse it. 3. Two Doctrinal Tests: Totality of Circumstances and Balancing. K. Stone Comps Study Group Totality of the Circumstances: Very broad test, look at all things, nature, condition, location of property, and such things as lighting, look at surrounding area as well Balancing Test: Weigh all factors in determining foreseeability. Prior crimes are very important. 4. The court in Wal-Mart adopts a balancing test 5. If we are confronted with this issue, cite all listed tests from WalMart, and do a totality test. Duty for Non-Negligent Injury: Restatement (2nd) §322: “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.: Duty for Non-Negligent Creation of Risk: Restatement (2nd) §321: “One who has done an act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another,” is under a duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk. Duty to Rescue Reasonably: Restatement (2nd) §324: “This section provides that one who, being under no duty to do so, takes charge of another who is helpless is subject to liability cause by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while in the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.” Reliance. Traditional v. Modern Duty: Do two analyses: one based on traditional duty and one based on modern duty. Traditional Duty. Based on the label attached to entrants. Look at Carter v. Kinney. Court holds that there was no public invitation, as a social guest he was a licensee, therefore no duty. Modern Duty: Abandons distinctions between invitee/licensee, and new rule for landowners is they should owe duty of reasonable care to all lawful visitors. Duty based on foreseeability of harm, rather than the status of the entrant. See Heins v. Webster County. Special Relationship - Cuffy Duty Test: Cuffy v. City of New York (231) Cuffys requested police protection from downstairs neighbors. Police promised arrest in the morning, but didn’t. People were attacked. Created a special relationship test. 1. Assumption of duty through acts or promises 2. Knowledge on part of city that inaction could lead to harm 3. Direct contact between city and injured party 4. Party’s justifiable reliance on city’s undertaking Scalia Rule Regarding Government Contractors: Liability is not imposed when: 1. U.S. approved reasonably precise specs 2. Equipment conformed to U.S. specs 3. Supplier warned about danger in use of equipment that were known to supplier but not to U.S. See Boyle v. United Technologies (554) K. Stone Comps Study Group Statutory Purpose: Rstd. §286. Relationship between statutory violation and underlying injury or accident: Statute must be related to, or legislature must have had intent regarding the injury dealt with as a result of statute violation. Assumption of Risk Test/ Tunkl Test: Three elements are necessary for assumption of risk: 1. P must have had actual knowledge of the specific risk 2. P must have appreciated the magnitude of the risk 3. P must have freely and voluntarily encountered the risk (voluntary conduct) Emotional Distress Relief Test/ Zone of Danger Test: Falzone v. Busch (261) Contemporary Rule – Recovery is allowed for emotional distress if P was subjected to D’s negligence to a risk of physical injury, even if no actual impact took place. No actual touching (physical impact) required Test: 1. Fright from a reasonable fear of immediate injury 2. Fright resulted in injury or sickness 3. Recovery allowable if injury / sickness would have been recoverable had hey been inflicted by physical injury rather than fright. Note: Most states require physical manifestations in addition to emotional distress. Indirect Emotional Injury Here you want to do a Dillon/Portee Analysis. Dillon established three factors for determining recovery: 1. Location: Whether P was located near scene of accident, as opposed to one who was a distance away from it 2. Observance: Whether shock resulted from observance of accident, as opposed to learning of the accident from others after its occurrence 3. Relationship: Whether P and victim were closely related Portee established four factors for determining recovery: 1. Whether accident involved death or serious physical injury of another caused by D’s negligence 2. Whether a marital or intimate familial relationship existed between P and the victim 3. Whether there was observation of the harm at the scene of the accident 4. Whether there was resulting sever emotional distress Portee is different from Dillon in that it takes into account the severity of the harm (must be death or severe injury), and also that it only requires observation of the harm, not physical proximity to it (perception, not proximity). Another method of analysis for Indirect Emotional Injury is the Bovsun Analysis: It says that the zone of danger and injuries must have resulted from observation of serious injury or death caused by defendant’s negligence. Abnormally Dangerous Activity (Traditional Strict Liability) Do a §520 analysis. Here the person hasn’t done anything unreasonably This is a “downright dangerous” test, and you must look at 6 factors: 1. High Degree of Risk K. Stone Comps Study Group 2. Likelihood of Great Harm 3. Reasonable Care Won’t Eliminate Risk 4. Not a Common Activity 5. Inappropriate Place for Activity 6. Value of Activity v. Danger Here you are looking for something that retains risk characteristics, irrespective of caution level used. Strict Products Liability Do the Barker Test: “Excessive Preventable Danger” (But this is only one jurisdiction) The Barker test is a two prong test: 1. Consumer Contemplation – Is the design defective as to what an ordinary customer would expect? Burden on the Defendant. 2. Excessive Preventable Danger – Do a cost benefit analysis with regards to the product, not the conduct. Burden on the Plaintiff. Importance of the CBA is because the defect could be too technical for ordinary consumers to be aware of. In this case, you need expert testimony. In the other jurisdiction – Camacho – you don’t do a consumer expectation test, you only do a solely unreasonably dangerous/cost-benefit analysis (risk-utility). Test for Defect: Risk Utility Test (Usually Applied for Design Defects) (1) Gravity of the danger posed by the design (2) Likelihood that the harm would occur (3) Feasibility and cost of safer alternative (4) Adverse consequences associated with alternative design. Restatement (2nd) §402A Idea of defective condition 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if: A. The seller is engaged in the business of selling such a product, and B. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. 2. The rule stated in subsection 1 applies although A. The seller has exercised all possible care in the preparation & sale of his product, and B. The user or consumer has not bought the product from or entered into any contractual relation with the seller. This Rst sets up consumer expectation test to see if defective condition. Restatement (3rd) §1 and 2 This restatement, often called the Restatement of Products Liability, came into effect to distinguish three different types of product defects. §1 provides, “One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.” §2: 1. Manufacturing; Section 2(a) – departs from intended design even though due care K. Stone Comps Study Group 2. Design; Section 2(b) – Negligent feel, foreseeable risk could have been reduced by alternative design. 3. Warning; Section 2(c) – Negligent feel, foreseeable risk could have been reduced by providing reasonable instructions or warnings. Rejects Unreasonably Dangerous Products does not meet specs, defective design, per se Issue: What standard will we use to determine what constitutes a defective design? Cronin sets up new test: Risk/Benefit Test Product Comparison Test: Basic Rule – Compare like Products Restatement 3rd, §2 Adequacy of Warning Test: First do Hood Analysis, then Pittman analysis Hood v. Ryobi America Corp. (582) Many warnings, none overly specific, court says that this is okay Court also says that too many warnings may render them all ineffective. Not required to list every danger Pittman v. Upjohn Co. (585) 5 prong test for determining adequacy of warning: 1. The warning must adequately indicate the scope of the danger 2. The warning must reasonably communicate the extent or seriousness of the harm that could result from the misuse of the drug 3. The physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger 4. A simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and 5. The means to convey the warning must be adequate. Unintentional Nuisance Test: If nuisance was an Abnormally Dangerous Activity,” do §520 Analysis: Here the person hasn’t done anything unreasonably This is a “downright dangerous” test, and you must look at 6 factors: 1. High Degree of Risk 2. Likelihood of Great Harm 3. Reasonable Care Won’t Eliminate Risk 4. Not a Common Activity 5. Inappropriate Place for Activity 6. Value of Activity v. Danger Restatement §821: Public Nuisance includes interference with the public health, safety, public morals, public peace, and etc (659). Unreasonable interference with a right common to the general public. Restatement §822: Private Nuisance (661) (1) Intentional and unreasonable, or (2) Unintentional and arising out of negligent or reckless conduct or abnormally dangerous activity (Section 520) Restatement §825: Intentional Private Nuisance – Situations in which there is knowledge that the conduct is invading or is substantially certain to invade (661) K. Stone Comps Study Group Restatement §826: (661) (a) The gravity of the harm outweighs the utility of the actor’s conduct (b) The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct feasible Restatement §827: Gravity of Harm (a) The extent of the harm involved (b) The character of the harm involved (c) The social value that the law attaches to the type of use or enjoyment invaded (d) The suitability of the particular use or enjoyment invaded to the character of the locality; and (e) The burden on the person harmed of avoiding the harm Restatement §828: Utility of the Conduct (a) The social value the law attaches to the primary purpose of the conduct (b) The suitability of the conduct to the character of the locality (c) The impractibility of preventing or avoiding the invasion Restatement §829A: When the harm caused is both substantial and greater than the plaintiff should be able to bear without compensation Restatement §840D: Coming to the nuisance – 840D says that coming to the nuisance is not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable. Child Trespassers: Restatement, §339: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Extended Licensee Liability: Restatement (2nd) §341: “Extends liability to licensees for failure to carry on activities with due care if, but only if, the occupier should expect that the licensee will not discover or realize the danger, and the licensee does not know or have reason to know of the activities and the risk involved.” Duty to Trespassers: Restatement §333: “Except as stated in 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in K. Stone Comps Study Group a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them.” Duty to Invitees: Restatement §342: “ So far as the condition of the premises is concerned, an occupier is subject to liability to invitees if the occupier: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. CONTRACTS IN A NUTSHELL: DEFINITIONS OF KEY TERMS Acceptance: Per Corbin “An acceptance is a voluntary act of the offeree whereby he exercises the power conferred upon him by the offer, and thereby creates the set of legal relations called a contract. Acceptance v. Counter-Offer: Generally, when a communication in response to an offer varies in any way from the original offer, it is not considered an acceptance, but a counter-offer to be re-negotiated or accepted by the original offeror. Anticipatory Repudiation: When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may resort to any remedy for breach and suspend his own performance. Arbitrage: Wipes out the inequalities to prevent the following – the process whereby you purchase low in one market and sell high in a different market. Assent: Can be done by performance so long as it is clear that the acceptance is specific and the contract doesn’t require otherwise, also done through previous conduct and usage of trade. Autonomy principle: The idea that each party is capable of determining information needed to ensure reasonable contract dealing. Bargain: Can’t be made using past performance Battle of the Forms: Determines terms of Contract and if a contract exists at all. Even though buyers and sellers were sending each other forms that differed, they thought they were binding contracts. Legal realism – mirror image rule does not reflect reality of how people think about contracts. Best Efforts: Require a company to go beyond the point where you may start to lose money. Bilateral Contract: A promise for a promise. Breach of Contract: Unlawful failure by a party to perform its obligations pursuant to a contract. Capacity: Legal capacity of both the offeror and the offeree is essential to forming a contract – if there is not mutual assent (note legal capacity is different than physical capacity – a contract is voidable if the person possesses a certain legal disability). Normally this is age, insanity, convicts deprived of their civil rights, and drunk people. Capital Assets: Stocks, businesses, etc., where the value of the thing is the money you expect to receive from it. Cicero Opinion: Disclosure is morally right thing to do. Clean hands: Traditional doctrine that if you have unclean hands, you can’t come into a court of equity. Intent of doctrine is to maintain legitimacy of court/government. Collateral Undertaking: The main purpose of to guarantee the debt of another as a way of securing a benefit for self, the promise is enforceable even if not in writing. Conditional Promises: A promise whose performance will only become due if a particular event, a condition occurs. Conditions Precedent: One which must occur in order to create an absolute duty to perform. K. Stone Comps Study Group Conditions Subsequent: One which the occurrence of the condition extinguishes the previous duty to perform. Consideration: The value given by one party in exchange for performance, or a promise to perform, by another party. Determines who has a right of action. Can be created by promise for a promise or performance. Course of Dealing: How parties have dealt in the past [UCC 1-205(1)] Course of Performance: How parties have acted throughout the course of a specific contract. [UCC 2- 208] Cover Rule: If the seller breaches, the buyer “covers” by securing the goods from another vendor. The buyer is allowed to recover the difference. Default Rule: Rule provided by statute that parties can contract around. Definiteness: Requirement for having a contract that is understandable by all parties. Where ambiguity in a contract exists, interpretation disfavors the author of the contract. The terms of the offer must be sufficiently clear and complete so that the court can determine what the parties intended and can fix damages in case of non-performance (rest.2d 33). Demand Negotiable Instrument: An order/note/contract to perform/pay upon demand of the holder. Descriptive Argument: Arguing on the basis of what one perceives the reality or the principle of the issue. Doctrine of Estoppel: An equitable doctrine that precludes a party from asserting a right to the detriment of another who justifiably relied on the conduct or promise. Duress: Impermissible pressure exerted by one party over another during bargaining. Duty to mitigate: Have to look elsewhere for goods and then have the person or party breaking the contract pay the difference. Election: Signifies a choice that is binding on the party that makes it, even without reliance by the other party. Enforce: When a contract is broken the courts often have a number of options at their disposal, among which are damages, specific performance, rescission and restitution, quasi-contract and tort action. Equitable Estoppel: Requires false representation of fact, and reliance to one’s detriment after reliance on that false statement. Equitable Estoppel acc to rest 90: Somebody made a statement knowing someone would rely on it but the statement is false. Court holds you estopped from denying that you made the statement. Essential terms: Subject matter, time of performance, and price. Estoppel in Pais: A right, arising from acts, admissions or conduct, which have induced a change in position in accordance with the intention of the party against who they are alleged. Expectation Interest: A promise has an expectation interest if he had reason to expect a benefit from the promise. Promisee does not enter into another K opportunity because they rely on the promisor. Express Contracts: Oral or written Ks that consist of an offer, acceptance, and bargain for consideration. Express Warranty: Affirmation, promise, description or sample that becomes the basis of the bargain creates an expressed warranty that goods shall conform to the aforementioned. [2-313] Filling Gaps: when the contract is unclear often use good faith, best efforts to determine if contract has been performed. Firm Offer: Requires set time period before can revoke. F.O.B.: “Free on Board” – seller will place sold item on means of transportation. Four Corners Rule: Often the first stage in determining ambiguity – look to the context of the agreement. Fraud: Trickery, deceit, undisclosed relevant information, even innocent mistake sometimes. Frustration of Purpose: The contract is not impracticable, but the purpose of the contract has been disrupted. Futures Contract: Contracts for delivery of something to occur in the future. Good Faith: See UCC 1-209(19), 1-203, or 2.103(b). Gratuitous Promises: Unenforceable for lack of consideration, generally. Illusory Promise: A promise that is not legally enforceable because performance of the obligation by the promisor is completely within his discretion (optional). Implication of reasonable terms: The essential terms must be reasonably stated or be capable of reasonable implication from agreement – general trend, adopt a policy of liberal construction so as to reasonably uphold the reasonable expectations of parties. K. Stone Comps Study Group Implied in fact K: One inferred as a matter of reason or justice from acts, conduct, or circumstances surrounding a transaction rather than one formally or explicitly stated in words. See UCC 1-201(3). When a contract is implied by actions or forbearance. Interpreted by the courts from the factual circumstances. Implied in Law: Not an actual contract, but a constructive contract where none existed. Based on the maxim that one who is unjustly enriched at the expense of another is required to make restitution to the other. An obligation imposed upon a person, not because of her intent to agree, but because one party has conferred a benefit upon the other under circumstance that in equity and good conscience there ought to be compensation for the benefit. This avoids unjust enrichment. Implied, Quasi, Constructive Contracts: Contracts created by law to prevent unjust enrichment, and provide a remedy where no other remedy exists. Intention is not an element of a quasi-contract. A quasi- contract is something constructed after the fact. Implied warranty of merchantability: [2-214, contracting around is [2-316] Impossibility: Contract performance could be excused as impossible if the performance was dependant on the continued existence of a person or thing, and that person or thing no longer exists, by no fault of the party. Impracticability: Something is impossible to perform due to unforeseen circumstances. In Pari Delicto: Both parties are equally culpable – generally no aid for either wrong-doer. Interpreting Language: Vagueness – when terms mean different things to different people the court must decide the meaning. Kaldor Hicks: Classic cost/benefit analysis. Finding the least costly way to achieve your goal. There may be a suffering here. Knockout Doctrine: When the different terms between the buyer and the seller are material, the two terms cancel each other out, and the contested term is to be supplied by a code gap filler [2-305 – 2-315, and see 2-207(3)]. Last Shot Doctrine: If, irrespective of the mirror image rule, the last party to send bhack a form with new terms is followed by both parties in the belief that they are indeed legally and contractually bound and behave accordingly. (This was pre-UCC, it is no longer used) Latent ambiguity: The terms appear certain, but because of extrinsic factors, more than one interpretation is possible. Limiting Damages: Avoidability, foreseeability, certainty. Liquidated Damages: When damages are of an uncertain amount, or the amount is subject to a bona fide dispute. Lost profits: If the seller could have made and sold more of the same product then they may get greater damages. Mailbox Rule: The mailing of the letter of acceptance puts it irrevocably out of the offeree’s control. [Rest. 2d 63, p.103] Main Purpose Doctrine: Also called the Leading Object Rule – Removes the requirement of writing and allows an oral agreement when the main purpose of a promisor is not to answer for another, but to sub- serve some purpose of his own. Maker: The one who owes the debt. Malum in se: Against good morals. Courts will not aid the less culpable party because the policy discouraging such transactions outweighs the possible injustice between private parties. Malum Prohibitum: Violates some statute or regulation, but not against good morals – the courts will not enforce contract, but may allow recovery to less culpable party. Meeting of the Minds: Both sides have to understand that a contract exists for it to be enforced. Merger or Integration Clauses: Written clauses inserted into contracts which show complete integration of all prior writings, making the contract the sole authority. Mirror Image Rule: An acceptance must be on the terms proposed by the offer without the slightest variation. Anything else is considered a rejection of the original offer, and acts as a counter-offer. Can be overridden by 2-207(1) unless acceptance is expressly made conditional on assent to the additional or different terms. Mutual Mistake: Both parties made a mistake of fact relevant to a part of the contract. Non-Compete Clause: A clause within a contract where a promisor agrees not to compete with the promise for a specified period of time and/or within a particular geographic area. Courts often frown on these, since they restrain trade and competition sometimes unfairly. They must be reasonable, and courts often scrutinize them closely. If unreasonable in scope, courts will modify them or throw them out entirely. K. Stone Comps Study Group No Oral Modification Clause: A forward-looking doctrine preventing disputes over changes from the original contract. There are not notoriously observed by the courts. A solid merger/integration clause is better advised. Normative Argument: An argument about what the issues should be, regardless of what they really are. Not in Pari Delicto: Recovery of the value of the benefits conferred depends on the wrongfulness of the contract. Novation: An agreement whereby a creditor releases the debtor and accepts in exchange the obligation of another party. Nudum Pactum: A promise that is unenforceable due to lack of consideration. Offer: Proposal by one party to the other suggesting a willingness to enter into a bargain and made in such a way that the other person is justified in believing that his assent to that bargain is invited and, if given, will create a binding K between the parties. Invites an assent. Offers for Consideration: If the offeree has given any consideration at all for the offer, then it becomes an option and is not revocable for the period stated therein (rest.2d 25) Open Price Term: Standard reasonable price at the time for delivery if (a) nothing is said as to the price or (b) if they fail to agree (3) the price is fixed by the market. Option Contract: A promise made by an offeror that effectively limits the offeror’s power to revoke. Usually there is a fixed period during which the offeree must exercise or “pick up” the option. There must be consideration for this type of contract. Output Contract: An agreement by the buyer to purchase ass the seller’s goods. Pareto Optimal: When one cannot be benefited without another party suffering loss. Pareto Superior: When at least one party benefits without anyone else being made worse. Parol Evidence: An interpretive tool which assumes all important language is already within the contract. May be admitted to show fraud, mistake, or duress. [2-202] Patent ambiguity: The uncertainty is obvious. Payee: The one who is owed the money. Peppercorn: Metaphor for a three part deal, unbalanced transfer to avoid making a gift. Percentage Leases: Leases that determine the the lessee’s rent according to the lessee’s receipts or profits. Personal Service Contracts: Courts today are reluctant to enforce specific relief for personal service contracts that are for services that are personal in nature. This is because it is unappealing to force one to perform personal services after trust and personal/professional relationships are broken. Plain Meaning Rule: Most used where one party asserts that the agreement included more than what was in writing. Policing the Bargain: Not enforcing a contract at law. Pre-Contractual Liability: When a party is held responsible before the contract has even been signed (restitution and reliance). Present Value: PV = $1/(1+i)^t. Discounting a future amount to get its current value. The opposite of compounding. Promise Reasonably Definite and Substantial Action: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or third party and which does induce such action is binding if injustice can be avoided only be enforcement of the promise. The remedy granted for breach may be limited, as justice requires. A charitable subscription or a marriage settlement is binding under Subsection (1) without proof that the promise induced action or forbearance. Rest.1 st 90. Promissory Estoppel: Where one party acts to her detriment in reliance upon a gratuitous promise, the detrimental reliance if the promise within limits will be deemed sufficient for estopping the promisor from asserting the defense of lack of consideration. Derived from equitable estoppel, a court has the discretion to enforce a non-contractual promise made with the intention of inducing reliance, and justifiably relied on by the promise to her detriment. Depending on justice, the court may enforce the entire promise, or only that necessary to reimburse costs and expenses. Quasi Contract: Same as Implied in Law Contract. Recitals: An account or description of some fact or thing – a preliminary statement in contract or deed explaining the background of the transaction where there is a recital that consideration has been received for the option, the general rule has been this recital is not conclusive – was consideration actually paid. Rst.2d 87 says that an offer is binding as an option if it is in writing, signed by the offeror, and recites a purported consideration. K. Stone Comps Study Group Relational Contract: Lasts over a long period of time. There is a relationship between the parties. Courts are willing to downplay the “definite requirement” in tehse and focus on the intention of the parties. Reliance Interest: A promise has a reliance interest if he has changed his position to his detriment on reliance of the promise. Relief for breach: The idea is always to place the plaintiff/promise in the position they would have been in had the contract not been breached, and the promise had been performed. It is not to punish the promisor. Remedies for buyers and sellers of goods: Found in 2-700 area of UCC. Found on page 44 of outline. Replevin: Remedy at law [2-716]. Repudiation: The positive and unequivocal announcement of an intention not to perform. Avoids forcing the innocent party to hold himself in readiness and to tender performance on the date set in the contract – the other party’s repudiation excuses the condition requiring the innocent party to tender performance and renders repudiator’s duty immediately due. Repudiation/Non-Delivery: Parties look to markets to determine damages. Requirements Contract: An agreement pursuant to which one party agrees to purchase All his required goods or services from the other party exclusively for a specified time. Restitution Interest: A promise has a restitution interest if he has not only relied on the promise, but has conferred a benefit on the promisor. Rights and Duties: In a K b/w A and B, A has a right that B should perform and act, and when B does not, A can initiate a suit against B, who is then said to have a duty. Risk: The degree of uncertainty. Scienter: Latin for “having knowledge.” In contract law, it stands for even an innocent mistake can be grounds for rescission. Specific Performance: Requires actual performance if the product is unique. Remedy in equity. Statute of Frauds: Purpose is to prevent fraud and perjury as to the actual terms of the contract and provide better evidence of the contract terms in dispute. Failure to comply renders the contract voidable but not void. Thus the statute relates only to the remedy and not to the substantive validity of the contract. Surety: Guarantor, accommodation party – when one assumes the role of ensuring performance Suretyship Clause Guarantee Contract: Promises to answer for or discharge debts of another must be in writing in order to be enforceable. Termination of Power of Acceptance: Death of offeror, revocation, rejection, lapse of offer. Total Integration: A complete and final embodiment of the terms of an agreement. Tribune I Contract: A fully binding preliminary agreement, which is created when the parties agree on all the points that require negotiation, but agree to memorialize their agreement in a formal document later. Tribune II Contract: A binding preliminary agreement, created when the parties agree on certain major terms, but leave other terms open for further negotiation. Created a binding obligation to negotiate in good faith. Unconscionability: Eisenberg would classify something as unconscionable if it is neither fair not efficient. Underwriting: A common corporate practice. Not usually signed until the day it goes public, yet great effort is spend developing. Unilateral promise: A promise for an action. Unjust Enrichment: If someone is made better off then they may need to compensate. Usage of Trade: What is the custom within the trade [UCC 1-205(2)] Waiver: The excuse of the non-occurrence of a condition of a duty. A waiver can be retracted at any time before performance by the waiver’s grantor, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. 1. Is it a contract? Promises: especially with families, courts won't enforce a promise Balfour: courts should not get involved in the private sphere of family agreements or disputes; contract law is inappropriate to deal with the subtleties and complexities of marriage K. Stone Comps Study Group Miller: even if there's a serious, formal writing, the courts still won't get involved to enforce promise Marvin: however, if you're NOT married and you have a contract, it should be enforced, unless it sounds like prostitution (this is a much later case in a more progressive jurisdiction) Consideration: lack thereof often means that a court won't enforce agreement, except in cases of §90 reliance (use of promissory estoppel) Hamer v. Sidway: promise enforced because consideration may also mean a right given up or responsibility under taken by the recipient of the promise Fischer v. Union Trust: agreement to make inheritance enforceable against estate not honoured because $1 consideration is a joke; consideration should reflect value of what is received Batsakis v. Demoitsis: gross inadequacy of consideration may not void a contract Kirksey v. Kirksey: the case of the very large conditional promise; since gave nothing in return for place to live, agreement will not be enforced (leaving homestead not adequate consideration) Ricketts v. Scothorn: promise to give money and interest enforced against estate because it induced significant reliance upon promissee to give up job Writing: statute of frauds states that contracts in excess of $500 or lasting more than a year must be written McIntosh v. Murphy: TC holding that statute of frauds doesn't apply because contract started on Monday and ended on Friday three days short of a year later is erroneous but upheld on promissory estoppel reasoning (improper judicial activism?) Meeting of the minds: there should be an agreement wherein both parties understand that there is an offer and an acceptance of the terms of that offer (a counteroffer is a rejection and a proposal of another offer) Embry v. Hagardine, McKittrick Dry Goods Co.: court mandates objective standard (what would a reasonable person have understood the exchange to mean) to determine whether there was a contract Hills v. Kessler Inc.: seller's silence implied an acceptance; lack of express acceptance should not be abused in order to manipulate offer and acceptance doctrine Hobbs v. Massoit Whip Co.: ’s acceptance of standing offer indicated by delivery of goods Indefinite agreements: a contract can be made even though the terms are not explicitly laid out Klimeck v. Perisich: informal conversations as to the terms of a building endeavor cannot make an enforceable agreement because there is no evidence that parties agreed on definite terms of agreement Bethlehem Steel v. Litton: contract containing escalation clauses (flexible price/quantity agreement) nullified because there are too many gaps to determine whether there was a full agreement to bind the parties; you can have open contracts, but you should make pricing as determinable as possible Misunderstanding and mistake: usually nullifies a contract because there was no meeting of the minds K. Stone Comps Study Group Raffles v. Wichelhaus: when there is a mutual mistake as to which ship the goods will come in on, the contract can be voided because there was no meeting of the minds WPC Enterprises v. US: parties knew about others' alternative interpretation of contract and made no effort to clarify; however, the government has a duty to write a clear contract, so a government contract will be interpreted in other parties' favour Firm offers and mistake: invitations to make an offer are revocable until accepted because the promise not to revoke has no consideration; exception: UCC 2-205 James Baird v. Gimbel Bros.: proposal of a promise in subcontracting offer is a conditional promise and therefore not enforceable until the government accepts the bid Janke Construction v. Vulcan Materials: since there was no offer to make the bid irrevocable, there was no firm offer that was enforceable under the Code Marana U.S.D. v. Aetna: in the case of a unilateral clerical mistake, you can be let off the hook for your offer, so long as there is not significant reliance upon the part of the contractee Family contracts (caring for the elderly): this just represents the utter failure of the American family Davis v. Jacoby: bilateral contract fulfilled by in leaving Canada to take care of elderly relatives; nature of contract determined by nature of communications that indicate creation of reliance Fitzpatrick v. Michael: court refuses to award injunctive relief because doing so would force to accept services of an employee against his wish and will Brackenbury v. Hodgkin: acceptance is not revoked when offering party prevents accepting party from performing in a unilateral contract Franchise: when a franchise agreement creates significant reliance, the terms of the agreement can be enforced against the company Hoffman v. Red Owl Stores: there is an implied contract in the initial offer because relied on ’s initial promises (use of promissory estoppel) Collins Drugs v. Walgreens: there is no sign of a good faith termination of contract (as per state fair dealership law), so is entitled to difference in profit (slower growth per year) Employment: most employment is considered at-will (unless specifically stated in the contract), although there are limitations upon the employer's right to terminate the employment relationship McIntosh v. Murphy: promissory estoppel can be used despite statute of frauds argument because employee relied upon employment contract in moving a significant distance Forrer v. Sears Roebuck: contract for employment terminable at will by either party; equitable estoppel satisfied by creation of employment relationship (duration is a separate issue) Gordon Tameny v. ARCO: wrongful termination is not simply an action in contracts, but also in torts; employer does not enjoy unfettered right to dismiss employee, regardless of at-will status Monge v. Beebe: termination motivated by bad faith, malice, or retaliation is a breach of employment contract (contrary to public good and economic interests to hold otherwise) Fortune v. National Cash Register Co.: bad faith termination (bonus avoidance) is a breach of contract K. Stone Comps Study Group McDonald v. Mobil Coal: employee handbook can be construed as part of the contract when someone in employee's position would have interpreted it as a modification of the employment contract Warranties and disclaimers: usually code cases; see UCC 2-313, 314, 315, 316, 718, 719 Glyptal v. Engelhard: created an express warranty by issuing a sample, as well as an implied warranty of merchantability because its agent knew ’s needs and created reliance upon advice Hunt v. Perkins Machinery: language on front of contract directing buyer to terms on back of contract insufficient to call attention to those terms; limitation of warranty not allowed 2. What does it mean? Flexible agreements: includes any sort of flexible price and flexible quantity agreements Empire Gas v. American Bakeries: in a flexible quantity agreement, a failure to purchase goods must occur in good faith Battle of the forms: the problem of businesses using multiple form agreements; common law (mirror image rule and last shot doctrine) varies dramatically from Code (2-207) Idaho Power v. Westing House: under common law rules, the contract occurs upon acceptance of the purchase order, instead of the quote prior (purchase order is a counteroffer) Steiner v. Mobil: ’s original stipulations are valid terms because he clearly stated that they were necessary to acceptance because new terms in written contract materially alter terms of agreement Klocek v. Gateway: does not have to submit to arbitration agreement because the terms inside the shrink wrap are proposals for additional terms that were not necessarily accepted in ’s silence C. Itoh v. Jordan International: additional terms in acknowledgement form not enforced because they were never accepted; exchange of forms does not indicate a contract under 2-207, since they do not indicate a meeting of the minds; rather, contract is construed by parties' performance The parole evidence rule: see outline pg. 21 for analytical steps Federal Express v. Pan Am: court uses other sales of similar planes (usage of trade) to determine how the contract should be interpreted Binks Mfg. v. National Presto Ind.: evidence of discussions before negotiations not admitted because they are sophisticated parties that went through a lot of effort to come up with the final writing Marble Ceramic v. Ceramica Nova: evidence of prior conversation admitted; CISG has a different rule about parole evidence Mitchell v. Lath: evidence of prior discussions not admitted; in order to admit parole evidence, it must be a collateral agreement, must not contradict agreement, and must not be not usually in writing Masterson: restriction of right to repurchase that is not in contract admitted into evidence because it's a mere boundary to the option rather than a contradiction Contadina: evidence of oral guarantee not to enforce provision entered into evidence because it doesn't contradict the agreement, but limits it. K. Stone Comps Study Group Nanakuli v. Shell: court holds in favour of despite clause that makes price fixing at will by employing usage of trade as well as course of performance evidence Spring Valley Meats: court refuses to admit evidence of side conversations because different contractual language was used in order to defraud the IRS Merit: court allows admission of evidence that contract should not go into effect unless all parties signed because it involves conditional delivery of agreement Anderson v. Tristate Homes: since the contract was a final integration, evidence about oral warranty agreement can't be admitted; however, there is a fraud claim here Johnson v. Green Bay Packers: court recognizes handwritten additions to agreement (handwriting always trumps typed negotiations) Changed circumstances: when things happen in the middle of the contract that go against the premises of the contract; includes doctrine of impossibility (when it is commercially impracticable to perform),and mutual mistake Universal Builders v. Moon Motor Lodge: ’s unilateral actions in creating a supplemental oral agreement constitute a waiver of right to enforcement of writing provision in contract; no consideration necessary for waiver because it is construed as a gift Clark v. West: contractual ban on drinking considered waived because it was not central thing being purchased (things that are fundamental to the agreement can't be waived) Taylor v. Caldwell: fire at concert hall renders performance of the concert commercially impracticable, so both parties are excused from contractual obligations Transatlantic Finance Corp. v. US: impossibility due to closing of Suez Canal nullifies original agreement; gets cost of going the other way (that's all); test for impossibility (see pg. 25) Eastern Airlines v. McDonald-Douglass: performance of timeliness clause excused force majeure clause; impossibility doesn't apply because the war wasn't unanticipated Handicapped Children's Hospital v. Lukaszewski: ’s claim of impossibility not recognized since she knew about her illness at the time of the contract and performance was not impossible but undesirable Sherwood v. Walker: since parties entered into contract based upon significant premise of contract, which later turned out to be false, the contract can be nullified Wood v. Boynton: basic premise of contract is that this is a mystery stone, which was not untrue later in the contract; took significant risk in selling and lost out; invested time and effort to determine value of stone 3. Why wouldn't we recognize it? Illegality: contract will not be enforced if the agreement itself was illegal Karpinsky v. Collins: kickback provision that essentially nullifies minimum pricing law not enforced Carroll v. Beardon: ’s contention that terms of sale for house that is formerly used for prostitution is illegal and therefore unenforceable not recognized because the contract is simply a sale of real estate Gates v. River Construction Co.: contract for employment upheld despite laws banning employment of aliens in order to avoid unjust enrichment for employer Contrary to public policy: it's not necessarily illegal, but it's not good for the public good either K. Stone Comps Study Group Fullerton Lumber v. Albert Torburg: 10-year non-competition clause upheld for only 3 years because it is an undue restraint on commercial activity (which is against public policy) Incapacity and duress: contracts here are generally not upheld because they go against the understanding of a contract as a freely-entered agreement Halbman v. Lemky: contract is always voidable by the minor; minor only has to give back what he can and is entitled to all of money back (deterrence of entering into contracts with minors) Doctrine of necessities: holds young people to contracts for important things (such as housing) so that they can enter into contracts for necessities Restatement §15: if someone is mentally incapable due to mental illness, contract is voidable R.L. Mitchell v. C.C. Sanitation: even though employer was in his legal right to terminate employee, duress argument employed because there was not adequate consideration for lost rights to damages Wurtz v. Fleishman: duress can sometimes be used when there seems to be no adequate choice beyond submitting to an unjust or illegal demand, breaching, and seeking redress in the courts Selmer Company v. Blakeslee: 's duress argument for modification upon late delivery not recognized because he could have plausibly walked away from the deal after the initial breach (tardiness) Undue influence: usually involves a lessened capacity of the victim and a dominant party in a position of power and advantage using excessive pressure Odorizzi v. Bloomfield School District: there is a cause of action for 's cause of action for rescission of contract when it was obtained through undue influence Fraud (misrepresentation): involves intentional misrepresentation of a material fact on which the other party reasonably relied to their detriment; usually gets reliance damages Obde v. Schlemeyer: there is an affirmative duty for sellers to disclose any latent defects (e.g. termites) Sperau v. Ford Motor Company: figures showing unusually high return for fledgling business and aggressive sales technique puts under-experienced ’s at too high a risk Vokes v. Arthur-Murray: should be allowed access to the courts to establish her claim against a dance company that made misrepresentations as to her skill in order to sell her too many lessons Pierson v. Kierney-Mason: lying about mileage and previous ownership is fraudulent and gets substantial punitive damages The form contract problem: courts limit adhesion contracts by asking if a reasonable person would have understood it as a contract, if the provision was conspicuous, if there was plain language, if it was against public policy, and if the terms were unreasonable or unanticipated McCutcheon v. David MacBrayne: waiver of liability would have been upheld had he signed the note, as is the custom, but since he didn't in this one instance, there is no waiver ProCD v. Zeidenburg & Silken Mtn. Web Svcs.: the conduct of the parties (I agree statement that must be clicked prior to use) indicates a valid contract K. Stone Comps Study Group C&J Fertilizer v. Allied Mutual Ins.: provisions that there must be evidence of force and violence on exterior of building are bizarre and oppressive; should be allowed to collect Unconscionability: used in cases where the situation shocks the conscience; there must be procedural (no meaningful choice) and substantive (unreasonably favourable terms) unconscionability Williams v. Walker Thomas Furniture: unconscionable contracts can be challenged both at law and at equity Patterson v. Walker Thomas: not enough evidence on lack of meaningful choice and therefore discovery of books denied Frosty Fresh v. Reynoso: sale of a freezer for price that bears no relationship to value is fraudulent 4. What remedies for breach? Expectation: places the victim in the situation he/she would have been had the contract been performed; the preferred form of remedy Hawkins v. McGee: receives warranty contract standard (value of 100% perfect hand - value of hairy, mangled hand) rather than torts remedy (ill effects + pain & suffering) Groves v. John Wunder Co.: receives cost of completion rather than diminution of value because he expected to have a cleared lot at the end of the contract Maclaine v. Fox: mitigation of damages rule negated in employment context because does not have to accept employment of lesser quality than contract employment Neri v. Retail Marine: in the case of a deposit, the ’s right to recover deposit is subject to ’s estimated profit and any incidental damages incurred (puts in place of finished contract) Lost profits and consequential damages: are not often awarded and can be limited by foreseeability Hadley v. Baxendale: breacher cannot be held liable for unforeseeable consequential damages flowing from breach Evergreen Amusement v. Milstead: in order to recover lost profits, must establish proof of lost profits with reasonable certainty Chung v. Kaonohi: is awarded lost profits (even though first-time business) + emotional distress Specific performance: also known as injunctive relief; courts are hesitant to enforce protracted relationships between aggrieved parties Copylease v. Memorex: injunctive relief should not be awarded if it would require protracted enforcement, unless goods are unique (as they were in this case) Contractual damage provisions: enforced so long as the provision is reasonable (rather than a penalty); see also Indefinite Agreements Lake River v. Carborundum: liquidated damage provision not enforced because it looks more like a penalty clause, which is contrary to public policy K. Stone Comps Study Group Reliance: compensate the victim for ways he is worse off from where he was prior to contract Restatement §349: A victim may always request reliance damages over expectation damages Chicago Museum Club v. Dempsey: restitution damages awarded because expectation damages could not be calculated (estimated profits too speculative given interracial controversy and first-time venture) L. Albert & Son v. Armstrong: due to changes in industry, reliance would be greater than expectation damages; court holds that projected lost profit (if proven) can be subtracted from reliance damages Restitution: generally allowed when the original contract can be rescinded as a means of saving the breacher from having to give unjust enrichment to the victim (due to part performance) Vickery v. Ritchie: even though there was no written contract (2 contracts = no meeting of the minds), court enforces agreement as quasi-contract and awards cost of materials + labour Dunnebacke v. Pittman: awarded nothing because never expressed consent to have wall built (when a court recognizes a quasi-contract is unpredictable) Colonial Dodge v. Miller: according to holding, it seems that, because breached first (no spare tire), had the right to reject car and cancel check (rescind sales contract) Plante v. Jacobs: no right to rescind contract when substantial performance has been rendered Oliver v. Campbell: just because the contract is breached doesn't mean that you can forget about the contract price of services and appeal to market value CONSTITUTIONAL LAW IN A NUTSHELL (only MOST basic cases incl., and only issues that may be relevant for comps – NOT all con law is included!!): SEPARATION OF POWERS Judicial Authority to Review: Allowances: Counter-majoritarian role Marbury v Madison precedent establishing power Limits: Justiciability - case has to be ripe, standing, can’t be moot (can’t be “advisory”) State Sovreignty (11th Reserved Powers) Limit on Equitable Remedies Plessy (1896 - LA Statute segregating races on trains) Separate but equal ok reasonable = “at liberty to act w/ ref. to est. usages, customs, traditions and preservation of public peace and good order H: separate but equal allowed Rationale: b/c 14th amendment meant equal under law, not “w/o distinction” transportation is social right, not political right separation is not a badge of inferiority K. Stone Comps Study Group w/in state’s police power Harlan Dissent: 14th guaranteed civil rights, and travel is civil right (not social) Brown v Board (1954-segregated schools in Topeka, KS) Holding/Rule: segregated educational system inherently unequal and violates 14 th Rationale: 14th prohibits state sponsored discrimination segregated schools = discrimination role of schools has changed since Plessy Marbury v Madison (1803 - asking court to order delivery of a judicial commission) basis for judicial review of statutes Rule: where constitution (as interpreted by court) and law of congress conflict, supreme ct. can declare law unconstitutional H: judicial act of 1789 allowing ct. to issue writs of mandamus (ordering lower ct. to perform a duty) is unconstitutional Rationale: b/c Art. III doesn’t grant SC original jurisdiction Art. III, 2 gives ct. jurisdiction over all cases “arising under Constitution” CONGRESSIONAL POWERS The Federal Government has Limited Powers. All Powers must have their source in the constitution, and be within its scope. Enumerated Powers (versus the powers of the states): McCulloch v Maryland (1819 - attempt to make national bank subject to MD regulation) interpreted I, 8, 18 Necessary and Proper Clause broadly Congress has any power to pass any law that is: 1) Constitutional + 2) necessary to carry out power granted to them H: Congress has power to establish bank, states do not have power to tax it Rationale: law passed by same people who passed constitutional, they knew what allowed Marshall: 1) power to create implies power to preserve and protect 2) power to destroy yielded by state is hostile to #1 3) entity w/ power to create is supreme b/c bank included $ from those outside state, state didn’t have power to tax US Term Limits (AK attempt to limit terms of US Sen./Rep.) H: states do not have power to alter criteria for Federal Representatives Rationale: term limits is not “ballot design” question left to states, affect alters qualifications Qualifications Clause I, 2,2 14th Amendment, § 5 Katzenbach v Morgan (Congress has power to prohibit NY from using a literacy test for voting that prohibits Puerto Ricans from voting) K. Stone Comps Study Group H: if there is a rationale basis for regulating/sanctioning (in this case, the voting rights act), then they have the power to intervene (majority: even if court doesn’t necessarily agree that state was violating the Act Congress relies upon to get involved, concurrence: judges should decide if state infringed on rights) Rationale: 14th Amentment gives Congress power to enforce it Brennan ratchet theory: power only to strengthen, enforce rights - not weaken Congress has positive legislative authority to pass laws that ensure rights under 14th amendment are protected, even if courts haven’t found a violation ** limited severely by Boerne (GA district required by Voting Rights Act to submit electoral jurisdiction changes to City of Rome Ct. or Dept. of Justice - ct. rejected plan b/c would have had discriminatory impact H: 15th amendment §2 congressional power to prohibit practices that may not violate §1 in and of themselves, but are “appropriate” in effecting the purposes of the 15th can outlaw voting that is only discriminatory in effects, if it is to counter past discrimination, even if current law is not discriminatorily intended as required to violate §1 SUPREMECY CLAUSE / PREEMPTION Concurrent powers between state and federal: taxes if Congress has authority to legislate in an area: congressional law will trump state law if no concurrent power OR when conflict relies heavily on statutory interpretation (what congress meant, what statute really “does”) most recently ct. requiring manifestations of intent, not inferring (but doesn’t have to be explicit) Express: clearly written or identified intention to pre-empt any/all state laws legislating in same are Implied: though nothing explicit, the inferable intention of congress is to occupy the field and pre-empt any/all state laws in area Field Pre-emption: when law is prohibited b/c Congress now “intends to occupy field” Conflict Pre-Emption 1. compliance with both both state law and federal law is impossible 2. state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress” Gade (IL has hazardous waste act requirements that affect same industry that is governed by OSHA) H: state regulations are pre-empted Applying (majority in Gade) burden on state to prove congress intended they be allowed to have concurrent power start w/ congressional intent ** Cout will not infer congressional intentions, must be express (not necessarily literal) Moran (ct of appeals - currently before SC - Il law on HMO external review for denial of benefits pre-empted by ERISA federal law governing insurance) H: Not pre-empted b/c savings clause w/in ERISA reserves to states the power to “regulate insurance” and the external review is “regulation” EQUAL PROTECTION K. Stone Comps Study Group Three Standards of Review: 1. Mere Rationality a. Legitimate State Objective b. Rational Relation: “Minimally rationally related” 2. Middle Level Review a. Important objective b. “Substantially” related means 3. Strict Scrutiny a. Compelling State objective b. Necessary means (no less restrictive alternatives) When the gov’t action is subject to the mere rationality standard, the individual attacking the action will bear the burden of proving unconstitutional, when middle-level, the burden “usually” will be placed on the gov’t, when strict scrutiny, burden always on the gov’t. Mere rationality: dormant commerce clause, substantive due process (if no fundamental right), equal protection (if no fundamental right or suspect/quasi suspect classification), contracts clause Middle Level Review: Equal protection of a semi-suspect clause (gender and illegitimacy), contracts clause, free expression (non content based). Strict Scrutiny: Substantive Due Process (fundamental rights – privacy, marriage, child-bearing, child rearing), equal protection of a suspect classification (race, national origin and sometimes alienage) or a fundamental right (to vote, be a candidate, access the courts, travel interstate), content based freedom of expression, freedom of religion (and freedom to practice religion). Steps of Analysis: 1. Is this a state action? (IF not, continue analysis in any case, but say that the case wouldn’t even matter) Cite the Civil Rights Cases!! 2. Is the statute, etc. facially discriminating? If yes, move on to what level of review. If not, you have to prove disparate impact. Cite Washington v. Davis and Arlington Heights. 3. Determine what level of review would be used. Carolene Products (1938--allowed fed. law prohibiting shipment of filled milk) question of court’s role in scrutinizing statutes that reflect politically powerful interests? Footnote 4 by Justice Stone: presumption of constitutionality if w/in scope prohibited by bill of rights (applicable to states via 14th) political rules) more exacting review of statutes directed at particular religious, national or racial minority prejudice against discrete and insular minorities …tends to seriously curtail operation of those political processes ordinarily relied upon to protect minorities….may call for a more searching judicial inquiry (ct’s role even if political rules are fair, but minority will never find justice through them due to numbers) STATE ACTION K. Stone Comps Study Group Civil Rights Cases (1883-non-discrimination in businesses serving the public) Struck down on basis that Congress only has right to regulate govt, not private industry case didn’t claim commerce power broader than 1964 Civil Rights Act (which targeted things impacting travel) Easy: Government Agency Governmental Official in Official Capacity Statute requiring discrimination by private organization 1. PUBLIC FUNCTION TEST - public function delegated to private actor Marsh v Alabama (1946company town where woman arrested for distributing leaflets in violation of 1st amendment) Rationale: facilities built and operated primarily to benefit the public, operation is identical interest (to the state) in the functioning of the community used a balancing test (not used by most subsequent cases) Rule: exercise by private entity of powers traditionally exclusively reserved to state Flagg Brothers just because state law (UCC) sanctions a private action, doesn’t make the private action by the private business a government actor (importance of interest sought to be protected irrelevant-only whether there is an exlusive state action attribute) 2. NEXUS Test -- State Intertwined in activity of private actors connection between STATE and CHALLENGED ACTIVITY (not just the actor) Burton v Wilmington Parking Authority (coffee shop in parking garage) (coffee shop leasing space inside gov’t parking garage, not serving to blacks, is state actor violating Eq.P.) Rationale: appearance of state involvement (state flag over lot, gave $ to facility) + actual involvement so close a nexus couldn’t be distinguished from public facility interdependence, symbiotic Moose Lodge (1972-state liquor control board licensed private club that refused to serve black person) H: not a state actor, but b/c sate requires they comply w/ rules and rules are discriminatory = unlawful state enforcement of unlawful discrimination Rationale (distinguished from Burton): land/building not publicly owned profits earned by discrimination not being paid to state nothing approaching “symbiotic” relationship RACE I Congressional Authority: K. Stone Comps Study Group (Congress has power to prohibit NY from using a literacy test for voting that Katzenbach v Morgan prohibits Puerto Ricans from voting) H: if there is a rationale basis for regulating/sanctioning (in this case, the voting rights act), then they have the power to intervene (majority: even if court doesn’t necessarily agree that state was violating the Act Congress relies upon to get involved, concurrence: judges should decide if state infringed on rights) Rationale: 14th Amentment gives Congress power to enforce it City of Rome (GA district required by Voting Rights Act to submit electoral jurisdiction changes to Ct. or Dept. of Justice - ct. rejected plan b/c would have had discriminatory impact H: 15th amendment §2 congressional power to prohibit practices that may not violate §1 in and of themselves, but are “appropriate” in effecting the purposes of the 15th II Facially Discriminatory Brown v Board (1954-segregated schools in Topeka, KS) H/Rule: segregated educational system inherently unequal and violates 14 th Rationale: 14th prohibits state sponsored discrimination segregated schools = discrimination role of schools has changed since Plessy social science evidence of discriminatory effects Korematsu (exclusion order based on ancestry w/o regard to risk etc. upheld due to state’s pressing need of protecting against espionage and sabotage and “definite and close relationship” between deprivation of rights and preventing those) Rationale: deferred to executive power and congressional authority for military actions Rule: “all restrictions curtailing civil rights of single racial group are immediately suspect…subject to rigid scrutiny, justified only if pressing public necessity” source of strict scrutiny) Loving (struck down VA statute outlawing interracial marriage) H/Rule: restricting freedom to marry solely b/c of race violates Equal Protection (also violates due process vis a vis freedom to marry as vital personal right) TEST: does classification constitute an arbitrary and invidious racial discrimination? Scrutiny: strict, b/c proscribes conduct accepted if engaged in by members of different races Rationale: no legitimate purpose independent of invidious racial discrimination to justify classification (bans only intermarriage involving whites) III Racial Quotas / Benign Classifications - remedial laws intended to counter past discrimination Swann (desegregation case) racial quotas can be used in remedial orders only as a “starting point” quota can’t require a certain % mix or balance of races in a situation where there is a long history of de jure segregation (not de fact segregation resulting from “natural demographic trends” or other non-state imposed factors) district cts. have authority to use methods to continue remaining desegregation goals ** said Bussing was OK one race schools are legal, but scrutinized closely and not imposed by state - then ok K. Stone Comps Study Group Bakke (reserving spots for minotires at UofC med school not allowed) Plurality: violation of title VI Civil Rights Act banning discrimination in institutions receiving federal $ strict scrutiny (b/c statute puts burden on state same as constitution does) Brennan Four: focus on societal discrimination as justification for remedy used intermediate scrutiny (not strict b/c goal is to reduce discrim.) Powell: violates both title vi and 14th amendment says using strict, but sounds more like intermediate not members of some groups more than others ** diversity may be legitimate reason/purpose for “limited racial classification” (but this wasn’t an accurate look at diversity - only race, not all races) b/c diverse viewpoints further academic freedom could be used as a plus to help minorities, but still must be compared w/ overall pool can’t just be ethnicity ** Still good law, but Michigan case before court now….. Fullilove (Congressional quota for construction industry upheld) ** overruled by Croson and Adarand found narrowly tailored b.c: one time shot (not ongoing benefit) and waiver provisions if city not able to meet quota Metro Broadcasting (1990 - diversity in radio stations plans for FCC approval) used intermediate scrutiny H: important gov’t interest = diversity (but included 1 st amendment interest in speech) means chosen substantially related to goal Rationale: deferral to congress Adarand (Fed. financial incentives to contractors for hiring “socially disadvantaged” subcontractors violates 5th amendment Eq. P.) Rule: Overrruled metro broadcasting use of intermediate scrutiny skepticism: all racial classifications suspect consistency: race is race, doesn’t matter if history of being discriminated against or not congruence: 14th amendment = 5th amendment (Bolling) so same analysis applies purpose of scrutiny is to determine “permissible vs. impermissible” classifications Eq.P protects People/individuals, not Groups Stevens Dissent: diversity still could be compelling interest b/c that part of Metro Broadcasting not before court b/c diversity not one of claimed justifications IV Facially Neutral Yick Wo (1886-struck SF fire ordinance used only to close laundries owned by Chinese) K. Stone Comps Study Group Rule/H: regardless of intentions as passed, even though “fair on its face and impartial in violates equal protection Gomillion (1960-struck 28 sided redistricting map of Tuskegee that eliminated all blacks from voting from town council) unconstitutional based on effect of law, deprive P of vote and rights to address gov’t Rationale: statute “obviously racially discriminates” 15th amendment nullifies “sophisticated” modes of discrimination ** Only BLACKS disadvantaged Washington v Davis (1976-D.C. police test that resulted in excluding disproportionate # of Black applicants not violation of EQ.P. of 5th amendment) P’s Claim: Title VII - Federal Statute against job discrimination (pfc=state action, disparate impact - no requirment for intent) Rule: higher standard for Constitutional claims than for Title VII if facially neutral, discriminatory impact not enough, DISCRIMINATORY INTENT required to survive summary judgment Rationale: test is neutral on face, rationally serves constitutionally legitimate purpose affirmative efforts to recruit and hire blacks negated inference of discrimination INTENT: need not be express or appear on face can be inferred from totality of relevant facts impact may = evidence of intent if very difficult to explain on non-racial grounds Arlington Heights (1977 - city decision not to rezone to allow low income housing not violation of EQ.P.) H: failed to meet burden of proving that discrimination was intent of Village zoning decision Determining if discriminatory, invidious purpose is motivating factor: bears more heavily on one race historical background specific sequence of events departures from normal procedure may = evidence of improper purspse substantive departures (e.g. what is usually considered important) leg./admin. history - contemporary statements Footnote: if evidence of intent, burden of proof on defendant decision maker to prove that same decision would have resulted even if impermissible purposes not considered GENDER Analysis: If statute w/ discriminatory classification => intermediate scrutiny Burden on state to prove 1. important interest 2. means substantially related If “real differences” basis of classification => back down to Rational basis Bradwell (preventing woman from admission to the bar of a state is not illegal) Rationale: bar admission is not one of the privileges and immunities of US Citizenship Muller (upheld law forbidding female waitresses to work nights, excepting entertainers and attendants) K. Stone Comps Study Group Rationale: public interest in protecting women and “the race” (role as procreators) (similar laws for men struck down on lochner basis of “freedom to contract”) Reed (1971-struck down preference for male executors when person dies intestate and all else equal between male and female relatives) 1st case when 14th EQ.P. applied to gender Review: Rationale basis “w/ a bite” H/Rule: ~ state interest must be “reasonable, not arbitrary…fair and substantial relation to the object of the legislation” ~ administrative convenience ≠ legitimate reason for gender discrim. Rationale: state claim that men less likely to make mistakes than women and save courts time was the exact kind of arbitrary legislative choice forbidden by EqProt. Frontiero (1973-struck down policy of requiring higher burden of proof for military women to prove their husbands were dependent in order to receive benefits than for male service members to prove their wives were) Brennan Plurality: strict scrutiny (the point couldn’t get agreement on) pointed to pending ERA as evidence of popular support for gender equality sex=suspect class: 1) immutable characteristic, 2) no connection between actual capabilities and sex, 3) congressional intent to make suspect (equal pay act, civil rights act 64) ** but not insular minority Rationale: violates 5th Eq.P. because similarly situated men and women treated differently Dissent: pointed to ERA as evidence question should be left to legislature 1st case comparing race and sex stands for movement towards heightened scrutiny Craig v Boren (1976-struck down law preventing males from buying near beer, females could) Scrutiny: Intermediate (important objective/substantially related) Rationale: overinclusive: limited all men, even though problem behavior targeted was only exhibited by 2% of males underinclusive: didn’t prohibit them from possessing or consuming alcohol Rehnquist Dissent: gender ≠ suspect class b/c men not victims of past discrimination even if something is statistically more true of men than women, if not inevitably linked to sex, not legal basis for classification/discrimination intermediate scrutiny VMI (1996-men’s state school / separate VWILeadership violates Eq.Prot.) H: parallel institution is qualitatively and quantitatively insufficient to overcome Virginia’s violation of Eq.P. by VMI) Rationale: Qualitative--$ spent, benefits received, value of degree Quantitative - not same educat goals stated were pretextual (based on actual history, no ed. for women--not sep.) 7 justices agreed to intermediate/heightened scrutiny (Rehnquist agrees w/ outcome but thinks majority actually used strict, not intermediate scrutiny) intermediate = important interest + exceedingly persuasive justification burden on state to prove important interest (very similar to strict scrutiny) REAL DIFFERENCE Nguyen v INS K. Stone Comps Study Group (2001-upheld different standards for foreign born child of male vs. female USC) Majority: rationale basis legitimate gov’t interests 1) assuring biology, 2) assuring relationship exists mothers are “biologically inevitably” connected to children, men ≠ Michael M. (1981-upheld statutory rape statute making sex w/ underage illegal for male, but not female) Scrutiny: Intermediate Important State Interest: preventing illegitimate pregnancy Rationale: men and women not similarly situated in terms of risks of pregnancy criminal statute equalizes penalties for men to come closer to what female faces since often in lieu of rape, females would be less likely to report if they feared prosecution can make a distinction based on differences between sexes Sexual Orientation Watkins (9th Circuit -- military law excluding gays not violation of 5th Eq.P., but b/c knew he was gay for long time not justified in denying him right to stay based on equitable estoppel) Rationale: wide deference to Congress Romer (CO amendment prohibiting rights to gays violates 14th) H/Rule: state can’t deny legal protections to homosexuals Scrutiny: rationale basis w/ bite Rationale: no legitimate state interest only interest is invidious/animus reasons given were pretextual history of discrimination cited Plessy: no “classes of citizens” ** constitutional amendment political process guarantees nearly impossible for minority to change - justify court scrutiny ** Majority does not mention Bowers Cincinnati (ordinance similar to Co. Amendment upheld - b/c easier for political process to change) (VT. Supreme ct. found denial of marriage rights to gays violated state eq. protection) Baker Rationale: constitution guaranteed Disability City of Cleburne (denial of special use zoning permit for group home for mildly retarded impermissible, but statute giving power to deny stands) Scrutiny: rationale basis w/ bite (slippery slope of finding strict for all mental defects, not all same) Rationale: struck down law as applied, b/c no rationale basis for denying Marshall dissent: cites Carolene Products footnote 4 invidious widely cited for balancing test: K. Stone Comps Study Group substantiality of gov’t goals/interest vs. right of groups whether or not r/s means Economic doesn’t violate eq.p. to charge for public service (e.g. copies of documents) does violate to set income threshold and prohib those from earning certain amounts from using government services Moreno (struck down law prohibiting food stamps to those living w/ unrelated adult) Rationale: irrelevant to stated goal of program-to provide minimal nutrition/alleviate hunger Scrutiny: rationale basis w/ bite classification will still violate eq. p. even if an impermissible purpose was only a (not the only) motivating factor, even if not officially a suspect class-but are a politically unpopular group MLB v SLJ (failure to provide documents to indigent defendant in case to remove parental rights violated dupe process) balancing test: state interest vs. impact on individual Rule: if costs so severe to individual, outweights gov’t interest in charging for service Alienage Federal = Rational Basis b/c of I, 8, 3 power to “establish an uniform Rule of Naturalization” States = Strict Scrutiny on most = allowed to make distinctions based on political rights, police powers Non-marital children / “illegitimacy” now gets intermediate scrutiny Age constitutional claims: rationale basis for (less history of societal discrimination) statutory claims (age discrim/employment act): undecided whether intent is required, or just disparate impact FUNDAMENTAL RIGHTS individual rights (regardless of membership in group) based in Due Process - usually tied to liberty interest bill of rights except: 2nd - bear arms 5th - grand jury indictment 3rd - protection from quartering troops 7th - right to jury trial in civil cases + other rights privacy procreation - Skinner marriage - Loving travel - Corfield, Shapiro equal political participation - freedom to contract ANALYSIS: is state’s interest “compelling enough” to justify intruding on fundamental right? (if not fundamental right, state need only have rationale basis for intrusion) I Incorporation Slaughter House Cases K. Stone Comps Study Group the privileges and immunities clause of the 14th amendment did not make the Bill of Rights applicable to the states must be non-citizen of state claim is against Palko (1937--5th amend. prohibition on double jeapordy not applicable to states by 14 th amend. due process incorporation) ** overruled by Warren court later Rationale: no textual basis for applying only rights incorporated are those essential to a scheme of ordered liberty principles of justice so rooted in the traditions…to be fundamental Palko Doctrine: Selective incorporation (not complete) - Bill of Rights applied to states via 14th amendment Skinner (1942 - can’t treat one class of thieves differently than another class of thieves, by sterilizing them) Rationale: decided on equal protection basis, but decision uses language of due process fundamental right to procreation, (even if not married) no basis for differential treatment of similarly situated criminals – arbitrary II Economic Liberty / Contract (1897-LA law prohibiting ins. policies from companies not licensed in state) Allgeyer law infringed on fundamental freedom of contract guaranteed by due process clause of 14th amendment (allowed 8 hour work day for miners) Holden Lochner (1905-NY law limiting hours of bakers violation of the “liberty of the individual” to make own contracts as protected by 14th) Rationale: right to purchase or sell labor is part of liberty no r/s grounds for state exercise of police powers in regulating hours Scrutiny: strict no “direct relations to” and no “substantial effect upon” health to justify police power Dissent: Ct. endorsing a particular economic system (free market) - beyond powers liberty is perverted: dominant opinion exercised through political system should stand unless violating a fundamental right (only minimal scrutiny??) overlooked legit. state interests of health and safety ** retreat from Lochner after “switch in time”: Nebbia v NY - 5-4 decision on state board fixing milk price max/min. (1937-upheld state law establish. min. wage for women West Coast Hotel Rule: regulation which is r/s related to its subject and adopted in the interests of the community IS due process can be defeated only if: arbitrary or capricious Rationale: intervention on behalf of class of disempowered workers, that leads to a direct burden on all society if not better cared for K. Stone Comps Study Group (1955-upheld OK statute prohibiting optometrists from remaking glasses w/o written Lee Optical prescription) Rationale: needless, wasteless requirement, not in every respect “logically consistent w/ its aims, BUT it is for leg. to decide if there is an “evil” to be cured and how to correct it measure was “rationale way to correct it” ** “day is gone for using Due Process clause to strike down state laws…b/c unwise, improvident or out of harmony w/ school of thought” III The Takings Clause (had to pay for loss of coal rights due to law regulating mining) Penn Coal 1st time indication regulatory law could go too far and cross line of “taking” Penn Central (1978--state law for preservation prevents development of NYC train station) based largely on Brandeis dissent in Penn Coal balancing test for takings: “justice and fairness” vs. “public interest” 1. economic impact 2. interference w/ investment-backed expectations (prospective look at uses) 3. character of the regulation / strength of gov’t interest high level of dimunition of value is tolerated state interest broadly defined takes into consideration alternatives available - all uses not foreclosed, just proposed use investments can be satisfied by TDR (1987--want to condition building permit for house on Nollan v. California Coastal Commission easment allowing access to beach) essential nexus test between goal of exaction and the impact of the activity requiring permit/permission substantial justification of state interest required heightened scrutiny: not taking if 1) substantially advances legi. gov’t interest 2) doesn’t remove all economic viability shift of burden to Gov’t to prove not a taking . (1994--business owner wants to build across street, city wants to require Dolan v. City of Tigard bike path easement, claim it is b/c of flood plain and increased traffic) essential nexus + rough proportionality between goal and the conditions being demanded o nature and extent of impact of development o measure of impact of development must have evidence of actual benefits of exaction (not just possible) Lucas v. South Carolina Coastal Commission (1992--Coastal Zone Management Act passed and completely barred owner from building any permanent habitable structures on two lots) total deprivation of value is a per se taking, if all value lost, doesn’t matter how compelling the state interest is and whether the rule actually serves the interest can’t avoid taking simply by reframing it as a “protection” akin to a nuisance (because then every law would be phrased that way) only exception is if state found existing law or common law (“background principles of nuisance and property law”) that already would have barred development, and new reg. merely codified it K. Stone Comps Study Group OR necessity (e.g. nuclear power plant on fault line) Palazzolo v. State of Rhode Island (corporation run by guy owns coastal land for years, tries to develop and is denied, new rules past by commission, tries to develop again and is denied, guy takes personal ownership of land and tries to develop again and is denied, claims taking) if there is some value due to part of the land being developable, not a total taking doesn’t definitely answer whether can claim taking without proposing alternative development plans first no per se exception to takings clause just because regs. passed prior to legal ownership, still have to do Penn central analysis including “investor backed expectations” and whether they got property at lower price b/c of the regulations etc. Phillips v Washington Legal Foundation (2000-law requiring proceeds from legal trust accounts to go to legal services violates taking) Rationale: Vennis v MI (1996-upheld forfeiture of property interest used in criminal purpose, even w/o knowledge or consent of owner-didn’t violate takings) IV Voting Baker v Carr 1st case allowing justicability of legislative districting cases) Reynolds v Sims (1964-failure to redistrict according census in violation of AL constitution violation of Eq. P. Rationale: districts must have “substantially equal representation” (population) original intent of framers that state legislatures be apportioned by population frustration of majority interests by disproportionate power of minority due to unequal districting can’t arbitrarily give each city/town own reps. regardless of population dicta: equitable considerations could allow election to go forward under flawed system if timing an issue ** One person, One Vote Harper v VA Board of Election (VA poll tax unconstitutional “acess issue” b/c basic right to participate in political prcess is eliminated for those unable to pay) Bush v Gore (2000- recount) Rule: whent court orders a statewide remedy, there must be at least some assurance that rudimentary requirements of eq. treatment and fundamental fairness are satisfied (1. standards, 2. procedures to implement standards, 3. judicial review, 4. technology fit for purpose and tested to ensure accuracy) Rationale: K. Stone Comps Study Group fundamental right=equal weight to each vote and = dignity for ea voter cannot use arbitrary or disparate treatment that values one vote more than another problem=absence of standardized system for counting votes ** said only for case at bar, no general rule or applicability beyond V For Least Advantaged San Antonio Schools v Rodriguez (ct. upheld TX school financing system that disadvantaged poor districts) Rule: wealth ≠ suspect class Scrutiny: rationale basis Rationale: Eq.P. ≠ equal funding no evidence inequal funding resulted in unequal treatment everyone was getting some kind of education education = important ≠ fundamental (slippery slope) even if suspect class, would need evidence of intent Edgewood (struck down same funding scheme based on TX constitution b/c it says that education is fundamental right and that the state must have “efficient system”) Plyler (1982-struck down TX law refusing state funding for undocumented immigrants) Scrutiny: hybrid rationale basis & strict scrutiny (based on egregiousness of result) Rationale: results in denial of any education - would permanently harm class of individuals punishing children for sins of parents (similar to cases on legitimacy) VI Travel Shapiro v Thompson (Ct resident of state challenges policy of different welfare based on length of residency) P&I can be invoked by recent resident on length of residency claim b/c length requirements are limits on right to free travel among states (not linked to source) H/Rule: Can’t give different benefits based on length of residency Rationale: includes some federal money, not just state not a portable benefit like education, going to be used/spent only while in state impermissible/hidden intent to keep poor from moving in state strict scrutiny is used b/c “right to travel” is fundamental right Saenz v Roe (1999-Congress granted right for states to est. durational requirements in welfare bill, CA limited $ to those under 1 year) Right to travel (based in 14th) o right to enter and leave o to be treated same “welcome visitor vs. unfriendly alient” o to be treated as all other citizens when becoming a citizen (Shapiro) H: state law is unconstitutional based on unconstitutionality of Congressional authority Rationale: 14th amendment P&I gives right to freedom to travel welfare durational residency requirements impede this right to travel Congress can’t authorize state to violate constitution VII Procedural Due Process K. Stone Comps Study Group (can’t terminate welfare benefits w/o evidentiary hearing) Goldberg v Kelly Mathews v Eldridge (1976 balancing test: nature of private interest in benefit & risk of error vs public policy interest & administrative burden VIII Privacy began in Tort law Meyer v Nebraska (1923 struck down NE law prohibiting educating children in anything but English) liberty = not only freedom from bodily restraing, right to “establish home and raise chidren” no emergency justifies state infringement of parents right to have child educated in other lang. Pierce v Society of Sisters (1925-state can’t require kids to attend public schools) zone of privacy implicated again is home, right to conduct family as see fit (1st attempt to challenge laws prohibiting Birth Control - “not ripe”) Poe v Ullman Griswold (struck down law making it a crime to use birth control and making doctors prescribing it accessories-decision applied to married women only) Harlan-author of constitutional privacy right to be “left alone” liberty includes zone of privacy - within marital relationship (state interference detrimental to that relationship) “repulsive” to notions of privacy overbroad use of government power to regulate state can regulate was is immoral (homosexuality, adultery) Abortion Blackman Plurality - fundamental right to privacy - 14th due process liberty interest and 9th reserved rights to individual women have right in consultation w/ doctor until viability no precedent establishing unborn as person for 14 th purposes framed as “decisional privacy” - right to make private decisions (versus based in space of home, marital relationship etc.) Strict Scrutiny at viability state’s interest becomes “compelling” enough to justify regulating terms K. Stone Comps Study Group trimester system: 1st - no state interest, 2nd - increasing, 3rd - interest of protecting potential life Casey (1992-upheld MO parental consent & information waiting period, stuck spousal notification) O’Conner Joint Opinion-- H: reaffirmed Roe’s central holding (extensive liberty discussion) replaced trimester w/ balancing test Balancing Test: state interest in potential life vs. undue burden on woman & in health/safety of woman from outset Privacy = zone of conscience and belief Right to Die (1990, 5-4 decision) Cruzan 1st case where court considered woman had been in vegetative state for 7 years H: under facts, not enough clear evidence of her intent agreed that in different case w/ enough evidence it could be a right ** resulted in use of Living Wills to make intent clear Glucksberg (WA law outlawing aiding and abetting suicide to prevent Dr.s from helping was upheld) H: WA law prohibiting suicide did not offend 14 th no fundamental right “to die” rationale basis was applied PROPERTY LAW IN A NUTSHELL (Probably won’t need, but just in case helpful, terms and issues list): Definitions of Terms Acquisition: - Finder must take property into possession Adverse Possession: - When possession for a property ripens into a title. Assignment: - When a transfer is made for a remainder of the lease Bailments: - Created by the transfer of possession of an item of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose. Bailee must exercise due care w/ chattel. No transfer of title. Capture: - Bright line rule intended to preserve peace Common Interest Communities: 31 – community with rules governing all Co-ownership: Several types, multiple people with rights, interests, and responsibilities for property Covenants: Promise to do or not to do something related to land Creation: - Example of Cheney Brothers, actually inventing something (ex – pattern) K. Stone Comps Study Group Defeasible Estates: - A grant of land with specific durational language in the deed (to A with a desire that it is maintained as X) Delivery of Possession: - No duty to deliver actual possession, only the right to possession Discovery: - The sighting or finding of unknown or unchartered territory – frequently accompanied by a landing and a symbolic taking of possession. Easement: - The grant of a non-possessory land interest (use land possessed by another) Easement by Necessity: - No other way out; P has right to exit and enter property; must have existed at time of severance. Easement by Prescription: - Open and notorieous, non permissive, continuous, tacking allowed, uninterrupted, no negative prescriptive easements – like adverse possession Equitable Servitude: - P seeks injunctive relief Estates: - Land, property Exclusion: - Keeping off of land; one of the most essential sticks in the bundle of property rights Fee Simple Absolute: -Absolute ownership of potentially limitless duration Fee Simple Determinable: Estate automatically ends upon the happening of a stated event Fee Simple Subject to Condition Subsequent: -Estate is not automatically terminated, but it can be cut short at the grantor’s option if the stated condition is violated Finder: - Holds lost property in trust, for benefit of true owner, as a bailee. Rights superior to everyone except the true owner. Gift: - Present transfer of property by one to another without any compensation Housing Discrimination: - Someone in protected class w/ a disparate impact Joint Tenancy: - Two or more people own with the right of survivorship Landlord / Tenant: One who rents (tenant) property from another (landlord) License: - Weakest member of servitudes (as between easements, covenants and licenses). Freely revocable privilege to enter another’s land for some narrow purpose. Life Estate: - Interest in property created and measured by lifetime terms, and never by time. Mortgages: - Deed in fee simple given to lender, with a condition subsequent that if the mortgagor paid off the debt by law day, the lender’s deed would be extinguished. If mortgagor couldn’t pay it back, the lender owned the land in fee simple absolute. Negative Easements: - Right of the dominant owner to stop the servient owner from doing something on the servient land. Periodic Tenancy: Continuous or successive fixed intervals of time, continues either until LL or T give proper notice of termination. Person as Property: - Cases of famous impersonators, all P’s won because D appropriated their identity. Possession: - Physical control over the property and an intent to assume dominion over it. Privity: - Any relationship like blood, contract, deed, will between predecessor and possessor. Must be non hostile. Public Trust Doctrine: Guarantees members of public the right to use tidelands portion of land for recreation. Reciprocal Negative Easements: - If the owner of 2 or more lots, so situated as to bear a relation to each other, sells one with restrictions of benefit to the land retained, the servitude becomes mutual. Servitudes: - Strands of non possessory interest in land. Private land use arrangements and agreements. Sublease: - A transfer of estate where the tenant retains the right of reversion K. Stone Comps Study Group Tacking: - One adverse possessor can tack onto his predecesor’s time with the land so long as our possessor is in privity with his predecessor. Takings: - When the government, trying to enforce police power, takes control over too much of your property, unconstitutionally, it is a taking, and you must be compensated. Tenancy at Sufferance: - When a rightful tenant wrongfully holds over past the expiration of the lease. Tenancy at Will: - No fixed period or duration, lasts as long as either LL or T desires Tenancy by Entirety: - Can only exist between husband and wife. Form of joint tenancy with the right of survivorship, highly protected, all four unities (time, title, interest, possession) required. Tenancy for Term of Years: - Lease for a fixed, determined period of time. Need not be years, need not terminate, must be in writing. Tenancy In Common: - Each tenant owns an individual part with the right to possess the whole. Waste: There are three types; and they injure the life interest of future holders of land. Zoning: - Proper exercise of police power with intent to make use of land more restrictive. ELEMENTS OF PROPERTY I. Possession II. Estates Acquisition by Find ►Fee Simple Acquisition by First ►Life Estates Acquisition by Conquest ►Defeasible Estates Acquisition by Capture Acquisition by Creation Adverse Possession Gift III. Co-Ownership IV. Mortgages Joint Tenants Tenancy by Entirety Tenants in Common Partition Benefits Burdens V. Landlords / Tenants VI. Servitudes Lease ►Easements Tenancy at Will → Estoppel → Termination Tenancy at Sufferance → Prescription → Negative Housing Discrimination → Quasi-easement → Changes Possession → Necessity Sublease → Scope Assignment ►Covenants Tenants in Default → Run with the Land → Real Condition of Premises → Creation → Equitable Serv. → Scope → Restrictive VII. Common Interest Communities → Termination ►Deeds VIII. Zoning ►Titles IX. Taking