GLOSSARY User’s Guide: n.b., Bookmarks are available to negotiate this file. Adarand v Pena: S.Ct established that all racial classifications are presumptively unconstitutional. I.e., Bill Lan Lee ADMINISTRATIVE LAW: Sources of law. Law made by regulatory agencies. e.g., Ezell v. Bowen. ADVISORY OPINION: It is common for courts to give governments their view of the likely result of a suit raised over some governmental issue or law. However, in the United States, John Jay, the first Chief Justice of the Supreme Court refused to give President Washington an advanced opinion, and this tradition of refusing to give advisory opinions continues to this day. This serves to maintain the separation of powers envisioned in the Constitution. ANTICIPATORY REPUDIATION Results when one party to a contract gives formal notice that he/she intends not to perform. Serves efficiency by allowing for speedy correction of mistakes. e.g., I promise to deliver "X" at $50 each. You normally can get X for $55. Events change my cost to $100. Cheaper for me to pay you $5 each. APPELLANT: The person/organization requesting review of a lower court‟s decision. E.g., Ezell in Ezell v. Bowen. APPELLEE The person/organization the appeal is directed against. ARBITER Chosen by the judge as the absolute and final judge. ARBITRATION: Alternative dispute resolution technique in which parties to a dispute agree to abide by the decision of a mutually acceptable third party (arbitrator). ARBITRATOR Chosen by the parties to a dispute to decide. i.e., Decision is normally binding. Courts avoid reversals unless public policy has been violated. ADVERSE POSSESSION: A means for transferring the ownership of property. Blackstone holds that if an owner abandons property, robust title transfers to him/her who occupies it. (Nature and the law abhor a vacuum?). Normally uninterrupted and exclusive use is the criteria use by the courts to transfer ownership by adverse possession. e.g., In Raftopolous v. Monger, it was held that the requirements for adverse possession were not met. Possession was not exclusive, therefore, there was no transfer of property. AVOIDABLE CONSEQUENCES The performing party to a contract has an obligation to minimize damage. i.e., Must minimize losses due to a breach. Bailee: The rightful possessor, but not owner. e.g., Truck driver. Lawnmower repairman BARGAIN A exchange in which each party views its performance obligation as the price of the other party's performance. BARGAIN PRINCIPLE The common law rule that in the absence of a defense relating to the quality of consent (e.g., duress, misunderstanding) the courts will enforce a contract according to its terms. In Skinner v Haugetsh the court required those signing the contract to carry out its terms. i.e., The fact that some of the expected participants had not signed, did not mean that a bargain had not been struck with those who did sign. BENEFIT PRINCIPLE Contract law notion that, unless freely given, people should pay for benefits received from others. n.b., Relates to economic concept of externalities. Free exchange in markets (inc., freedom to contract) internalizes positive externalities. See also, reliance principle. BILL OF ATTAINDER: A law that pronounces someone guilty without a trial. BRIEF: A summary statement of a trial's proceedings organized according to: facts, issues, holdings, concurring and dissenting opinions, and significance. BUT FOR TEST: A negligence rule used to determine the cause-in-fact for some tortable injury. e.g., If "A" hadn't driven into the electrical pole, power to "B's" electric lung machine would not have been shut off thereby terminating him. Thus, A was the proximate cause of B‟s demise. Pagan v. Goldberger. --C-- Causality: Tort concepts. Cause-in-fact The but-for argument applies. Proximate cause Everything else. How close a connection is there between the defendant‟s action and the harm caused? Cert: See Writ of Certiorari. CHATTELS: Movable tangible personal property. Such as furniture & cars. The distinction between chattels and fixtures was an important issue in Gomez v. Dykes where it was determined that manure is a fixture if it originated from grasses grown on the land in question, but merely a chattel if it originated from purchased hay/grasses. CLASS ACTION: A suit brought by a small number of plaintiffs on behalf of a large group of people with similar claims. E.g., Dupont polypropylene pipe case. COASE THEOREM: The idea that if externalities exist and transactions costs are zero, any allocation of property rights may result in an efficient outcome. Alternatively, agreements and beneficial exchanges between affected parties may make government intervention unnecessary even in the face of negative externalities. CODE LAW (a.k.a. Civil law). Statutory law. A system of law in which people are free to do anything which is allowed. i.e., Can do what is envisioned in the code; nothing else! Is a "thou shall system." Judges have a very limited role. Long & detailed constitutions. COLORABLE: Plausible, genuine, valid as in a “colorable challenge to a court‟s decision.” COMMON LAW: Judge made law. A system of law in which people may not do what is forbidden, but are free to do anything else. Is a "thou shall not system," Short constitutions, so judicial interpretation is important. CONRACT: a promissory agreement by two or more parties for a future exchange, freely and voluntarily arrived at which creates legally enforceable obligations. Contracts of Adhesion: Relates to monopoly situations in which buyers are commonly asked to sign a form containing standard/uniform terms frequently prohibiting concessions to buyers. When courts view such terms as reducing the scope and intensity (i.e., as cartel generating), the courts are inclined not to enforce them. aka “Take-it-or-leave it” contracts. n.b., Using standard form contracts to decrease transactions costs and to increase efficiency is o.k. CONSEQUENTIAL DAMAGES Damages are limited to what is calculable. i.e., Not speculative. Courts will deny consequential damages unless anticipated and bargained for within the contract. The buyer assumes the risk of consequential damages unless transferred in the contract. CONSIDERATION: A legal term used in contract law for the judicial inquiry as to whether value has been exchanged (i.e., token of commitment) between parties. One of the elements essential for a contract to be valid. Hale v. Brewster. Court held that there was no new consideration, therefore, there was no new contract. CONVERSION: A action (tort) in which the possession and ownership of personal property is interfered with by another. Plaintiff requests court to hold a conversion liability on the part of the defendant. e.g., Moore v. Regents of U. Cal. Does the State‟s use of an excised spleen constitute a conversion liability? COST-JUSTIFIED PRECAUTION: all steps to reduce the probability of harm/accident which cost less than the cost of the accident times the probability of its occurrence. CRIME: Any act in violation of the law. What constitutes a crime depends on the paradigms of society. cuius est solum eius est usque ad coelum et usque ad inferos. Whoever owns the soil owns all the way to heaven and all the way to the depths. Ancient legal doctrine expressing an expansive bundle of property rights attached to ownership. In order to accommodate complexities of the modern world (e.g., air travel) government in the twentieth century has removed several „sticks‟ from the bundle of property rights. --D-- Dead Hand Defense: A technique used by companies to prevent a hostile takeover. In a hostile takeover attempt, the buyers seek to buy enough stock to get control of the board of directors. The new board than sells the company. To prevent this, the current board passes a corporate resolution forbidding sale of the company except by the current board of directors. Variation of the “poison pill.” Courts have ruled that dead hand resolutions of unlimited duration are illegal. de novo: New. From scratch. As to look at the issue from the very beginning. DEFAMATION: A tort. The communication of a falsehood about someone which discredits him/her in the community. Kinds: 1.) libel. any written, printed, or pictoral statement which damages another's character. 2.) slander. saying anything which might prejudice another in reputation, office, trade, business, or means of livelihood. Discovery. Parties are afforded the opportunity to obtain, in advance, the documents and testimony of their opponents to determine what evidence will be used against them. This prevents surprises. DIVERSITY CASES: refers to federal judiciary's responsibility to hear controversies between states or citizens of different states in which the matter at issue is more than $50,000. Requirement placed in the Constitution (See. Hamilton Fed. 80) to overcome provincialism. Some legal scholars argue that they are excessively burdensome on the federal system and are no longer necessary to assure fair trials. Sherburne County v Kennedy. DUE PROCESS: PROCEDURAL DUE PROCESS (PDP): refers to the techniques/methods used by the government in dealing with its citizens. e.g., If arrested, you must be read your Meranda rights. PDP requirements increase, the greater is the potential threat to a citizen's liberty. Rosenfeld v Ketter. It was enough (fair) for the dean to tell the student "sea lawyer" to leave the building. SUBSTANTIVE DUE PROCESS (SDP): is the more general requirement (i.e., relative to PDP) that the government's rules in themselves must be fair, clear, and reasonable. Bell v Arlington County. Definition of who was a masseuse or a massage technician was too vague. --E—- a mishap whose prevention would cost more than EFFICIENT ACCIDENT: it is worth. i.e., Accidents which would still occur if the optimal amount of precaution were taken. en banc: Sitting together. Normally appeals are heard by a panel of three judges. In important cases, sometimes all (as many as 15) of the judges of an appellate court sit to hear a case. When this occurs the court is said to be sitting en banc. E.g., Ezell v. Bowen. ELASTICITY: A measure of the sensitivity/responsiveness of market behavior to some proportionate change in an underlying condition. e.g., How tax collections or work effort respond to increases in tax rates. Technically, price elasticity of demand is the %Q/%P. If e>1, demand is said to be relatively price elastic. ENGLISH RULE: In England the loser in a tort case pays the legal fees of the winner. ENTITLEMENT: A right one possesses simply by virtue of his/her participation in a society. Technically an entitlement is a property right which can not be abridged without due process or just compensation. n.b., Distinction between Constitutional(permanent) and legislated (withdrawable) entitlements. Zucker v The U.S. ESCHEAT: Doctrine of Escheat. Refers to the reversion of property back to the king (England) or state (U.S.) when property is vacated by the death of someone w/o heirs. Blackstone would argue that this is necessary to limit disputes between citizens which would otherwise arise. i.e., It serves domestic tranquillity. Because of the slayer rule, the doctrine of escheats may have had to come into play in In Re Nicpon (2), if there were no sons to inherit the murdered wife's property. ESTOPPEL: A bar to alleging or denying a fact due to one‟s own previous action by which the contrary has been admitted, implied, or determined. Et al: and others. Et ux: and wife. EXCLUSIONARY RULE: Requirement that evidence obtained illegally be thrown out. EXPECTANCY: The benefits one expects to receive upon completion of the terms of a contract. EXPECTATION DAMAGES: Price paid by a promisor for breaching a contract. Perfect expectation damages restore the promisee to the position he would have enjoyed had the promise been kept (i.e., costs + profit). Elicits efficient commitment on the part of the promissor. See also, Quantum Meruit. EXTERNALITY: When the actions of one person or group affect the well being of another person or group without compensation being paid an externality is said to exist. Pollution is a classic example of a negative externality. In Rose v Chalkin the windmill was held to be an unallowable nuisance because of its noise pollution. --F-- FACT FREEDOM: The discretion that judges have to choose the governing precedent. FEE SIMPLE ABSOLUTE: Upon the death of a joint owner, the survivor own the property outright. In the case of In Re Nicpon's Estate, this rule is challenged (i.e., excepted). FELLOW SERVENT RULE: Nineteenth century notion that employers are not liable for job related torts committed by their employees against one another. Originally imposed to create an incentive for worker safety. Opposite of Respondeat superior. See Buckley v. NYC Ferae naturae: Wild by nature. Blackstone: Temporary property. Example of property to be held in common. Fiat justitia ruat caelum. Let justice be done though the heavens fall. i.e., The precept that the law must be followed exactly regardless of the outcome. A view held by those who would follow the letter of the law despite the consequences. See. Pacta sunt servanda. FICTURES: Unmoveable tangible property permanently attached to real property. e.g., An elevator in a building or a building to the land. Finality Rule: Courts will consider a problem only if its decision will not be subject to revision by another branch of government One of the self imposed limitations on the courts. Specially relevant to political questions. If judicial decisions aren‟t going to be binding, courts don‟t want to get involved. No food fights, please! FINANCIAL EQUIVALENT PERFORMANCE: Make an innocent party whole. FORMATION DEFENSE: Hirsch a. Illusory promise. "Stick with me kid ...." No enforcible promise; no contract b. Intimate relationship. Re: Sol Kittay? c. Duress Miami v Kory d. Incapacity. Madison Hospital v Haack S&S a. Mistake b. Ignorance c. Fraud d. Duress e. Undue Influence FRAUD IN FACTUM: A situation in which there was a deficiency in the formation of a contract. Such "contracts" are void. i.e., Never existed. Burden of proof rest with the plaintiff. Mix v Neff. FRAUD IN THE INDUCEMENT: A situation which renders a valid contract voidable. For example, one party was led to agree to a contract under false pretenses. That person is not bound by the contract but may choose to exercise (ratify) the contract anyway. Burden of proof is on the defendant, and must be "by most satisfactory evidence" which is a higher standard than "fair preponderance of evidence." Mix v Neff. --G— Gaps: Events not explicitly mentioned in a contract which affect obligations created by the contract. GRISWALD v. CONNECTICUT: 1965 case in which the Supreme Court invalidated a state law that prohibited the use of contraceptive devices by married couples in the privacy of their own homes, and ruled that there was a new right (to privacy) in the Constitution. H HAND FORMULA: Tort Law concept that a person is negligent if he has not taken all cost-justified steps to reduce the probability of an accident. --I-- Incomplete privilege: a situation in which a execution of a right also entails a cost. e.g., a liability right to enjoin anyone denying you clean air, which, at the same time, requires you to compensate the tortfeasor for the cost of clean-up. In Personam: Personal jurisdiction over the persons involved. i.e., A court must have subject matter and in personam jurisdiction. Sherjurne County v. Kennedy. INTENTIONAL TORTS: A catchall concept that allows for redress (compensation) to individuals victimized by a crime. i.e., The criminal law provides redress for society. Includes (for people) assault, battery, false imprisonment, intentional infliction of emotional distress, and (for property) trespass, conversion, fraud, nuisance, & wrongful appropriation. Considered in between persons and property: libel, slander, defamation, & invasion of privacy. Court denied a claim of conversion in Moore v. Regents of U. Cal. INTERPRETISM: A normative theory of appropriate judicial behavior which holds that judges should have no goal in interpreting the Constitution other than to discover the sense and intent of the framers. Credited to Justice Joseph Story. When legislation cannot be connected to the Constitution‟s intent, the wishes of the legislature, the people‟s elected representatives, should prevail. INCAPACITY RULE: "Infants" are not considered rational enough to know their own welfare. Therefore, they are not considered competent enough to make contracts. Exception: "necessaries." INHERENT POWER: The power necessary to fulfill one's obligations. e.g., Beard v. North Carolina State Bar. p.61. In personam jurisdiction: Having personal jurisdiction. i.e., Authority/power to rule. The function of long-arm statutes. Important issue in diversity cases. Re: Shourbourne County v. Kennedy. INTENTIONAL TORT: An action in which a defendant intended to do an act and the harm which resulted. Against persons: assault, battery, false imprisonment, intentional infliction of emotional distress. Against property: trespass, conversion, fraud, nuisance. Defenses: voluntary consent by victim, self- defense, privilege to prevent a crime. Kathleen K. v. Robert B. INTERPRETISM: Relates to the judicial activism v. restraint debate. An approach taken by those who favor judicial restraint. They seek to discover the "original intent" of the framers of the Constitution, and would only void laws passed by the legislature when they clearly violate the values the framers intended to enact. This view places primacy for law making on the shoulders of elected bodies. n.b., Bobert Bork. IRRECONCILABLE DIFFERENCES: According to the comic strip, Shoe, this is a legal term used in divorce law meaning "girl friends." Insanity defense: Fed. Defendant concedes both intent and the fact of the crime, but claims that he didn‟t know what he was doing was wrong. Rarely successful after David Hinckley 1982.. --J-- JUDICIAL REVIEW: The power possessed by American courts to declare that actions of the legislature and executive are null and void if they violate the Constitution. JURISDICTION: The power to rule over the subject matter and over the person. E.g., Diversity cases. Ezell v. Bowen KALDOR-HICKS EFFICIENCY: An economic concept which attempt to provide economic justification for the public allocation of resources based on the notion that the positive monetized value to the gainers would outweigh the monetized losses of the losers. LIBERTY INTEREST: A personal right as opposed to a property right. E.g., Violation of the good name /reputation of a person by a false accusation or government improperly imposing a stigma /impediment which limits a person‟s opportunities abridge one‟s liberty interest. The Supreme Court e.g., Mitchell v. Glover. LAST CHANCE: A negligence rule that places liability on the person who had “the last chance” to avoid the harm/accident. I.e., Must see the rear tires at a stop light. LAW: a set of rules from the governing authority which confer benefits on some people and impose costs on others and which also create incentives for people to alter their behavior. e.g., U.S. Constitution. In common law countries, the written law tends to be a short list. e.g., U.S. In civil law countries, Constitutions are long and detailed. Used by countries associated with European (esp. France) countries. LEGAL FICTION: a device that conceals the fact that a rule of law has undergone alteration, its letter being unchanged, but its operation being modified. e.g., Georgia Eye Bank v.Lavant LEGAL INSTRUMENTALISM. A view of the law as merely a tool to obtain economic and political objectives. LIQUATED DAMAGES: Contract term referring to provisions of a contract which attempt to specify in advance the expected cost of a breach. Are allowed. Punitive damages which seek to establish a “private” penalty for breach are unlikely to be acceptable to the courts. Lochner v. New York 1905: Supreme Court struck down N.Y. social legislation to limit bakers' work hours as infringing on the freedom of contract. Represents the high point of the Court's concern over property issues. p.77. LONG-ARM STATUTE: State law attempting to give it courts jurisdiction/authority over citizens of another state. i.e., To give standing beyond its boundaries. To accept jurisdiction, courts normally require that the criterion of at least minimum contact be met. Among other things this is determined by the quantity and nature of the contacts and the interest of the state. Sherburne County v. Kennedy. --M-- Madisonian Dilemma: Refers to the conflict between majority power and minority freedoms provided for in the Constitution. The framers envisioned a primary role for the judiciary in managing/resolving this constitutional contradiction. Mandanus, Writ of: Order issued by a court to compel a government agent to perform a ministerial duty. Marbury v. Madison: Supreme Ct. case in which it was held (John Marshall) that the right of judicial interpretation, including the right to declare legislation unconstitutional, was implied by several provisions of the Constitution. MARKETS: Perfect v. Imperfect: Perfect markets are characterized by many buyers and sells of homogenous products. Producers are price takers. Imperfect markets have fewer buyers or sellers than perfect markets and heterogeneous products are sold. Sellers are referred to as price makers. MARSHALLIAN EFFICIENCY: The notion that change/law will be efficient for society if the monetary value to the winners exceeds the monetary value to the losers. An economic criterion for evaluating law. Also, Hicks-Kaldor Efficiency. MEDIATION: Alternative dispute resolution technique in which parties to a dispute hire a mutually acceptable third party (mediator), who attempts to bring about a resolution. However, a decisions by the mediator are not binding. MEDIATOR Tries to reconcile parties to a dispute. Outcome of mediation is not binding. Mens in se. Wrong/illegal by nature (in itself). E.g., Murder. Mens prohibitum. Wrong because the law says so. Parking meter violation. Mens rea. A legal term for criminal intent. Latin for "a guilty mind." Mental Defect Defense. Fed. Claim that the requisite intent to commit a crime was missing. Advantage: it gives the defendant the right to introduce psychiatric evidence on the issue of intent. Of course, Government gets the opportunity to rebut. May be attempted when the Government‟s case is very strong. E.g., The unibomber, Ted Kaczynski. Rarely successful. See: insanity. MIRANDA v. ARIZONA: Case in which the Supreme Court ruled that the police must inform suspects of their rights. MISSOURI PLAN: Governor selects judges from a list prepared by commission of distinguished citizens. Those selected must stand for election after two years. If ratified by the voters, judges then have life tenure. An alternative means of selecting judges designed to give voters some participation in the selection process. N NIRVANA FALLACY: Calling a problem with the market an imperfection while not having any clear government solution that would make things better. Harold Demsetz. UCLA. NEGLIGENCE: Conduct which falls below established standards of behavior toward others. Elements: 1.) Existence of a duty to care. 2.) Breach of the duty. 3.) Harm resulted directly from that breach. See Hand formula for the economics definition of negligence. Pierce v. Pacific G&E. NON-INTERPRETISM: A term used to describe the approach taken by those who favor judicial activism. i.e., the view (normative theory) that the Constitution is an evolving document which must be considered with respect to current times. This view may be said to give primacy to the judiciary. And those disposed to it are not inclined to take legislative decisions at face value. e.g., William Brennan. Lochner v. New York. Griswold v. Connecticut. NONJUSTICIBLE: (Doctrine of nonjusticiability) Refers to subject matter inappropriate for judicial review. Political questions are considered nonjusticiable because they are better decided by another branch of government either because of constitutional constraints or because of a lack of judicial standards. E.g., Lowry v. Reagan NONWAIVABLE WARRANTEE OF HABITABILITY: Law designed to prohibit people from negotiating/exchanging their right (landlord‟s responsibility) to government set standards for rental housing. Intention is to help the poor, but most likely shifts the supply of housing inward (i.e., L.U.C.). NUISANCE: A wrong arising from the unreasonable/unlawful use of property by one party to the discomfort/damage of another. Usually continuous or repetitive. e.g., Negative externality. A concept from tort law. Obiter Dicta (Plural) also (singular) Obiter Dictum: Lit. Other incidental remarks/remark which have no legal bearing on the case at hand. In following precedent courts are expected to follow the essential aspects of relevant cases (i.e., the rule of the case); not what is incidental. e.g., Continental Assurance v Carroll. The court was asked to choose between two precedents which were in apparent contradiction. It declared that they were not in conflict; it was merely dicta(dictum) which made them appear so. Shifflet was declared still precedent, and Permiter mere dicta. Osteen v. Henley: Drunken student is expelled for breaking nose of other student. Was expulsion a denial of due process? H: Even if he had a right to a counsel, there is no reason to turn a disciplinary hearing into an expensive trial. The cost of a trial is high and the probability of a Jud. Bd. error is low an attorney is not necessary. Considering the brutal nature of his acts and the fact that he can apply to other universities, makes penalty appear moderate. --P-- Pacta sunt servanda. Treaties must be obeyed. Hugo Grotious. PAROL EVIDENCE RULE: Prior or contemporaneous oral or written communications are not accepted to alter or contradict a written contract. Thus, integrated contracts require proof of intention to include other communications. n.b., Exception occurs if contract is not clearly worded. Skinner v Haugetsh (1). Real estate case. No provision in contract that required all to sign. If a claim had been made that orally it was agreed that all must sign for the contract to go into effect, the judge would have referred to the parole evidence rule and said, "Too bad!" Bonk v. Milton Bradley (2). Bonk claims an oral agreement; MB produces the written contract. PARTIAL BIRTH ABORTION: A procedure in which a fetus is partially extracted from the womb, a catheter inserted into the fetus‟ skull, and the brain suctioned out before the remainder of the fetus is taken out. PENUMBRAS: literally the area of dim light between the shadow of an eclipse and the full light reflected from the sun. In L&E it iwas the term used by Justice Douglas to explain where the Supreme Court discovered a constitutional right of privacy. Griswold v Connecticut. Per Curiam: "For the court." The written decision is not attributable to any particular judge. Jointly written. It is a court opinion in which no particular judge takes the lead responsibility. More commonly one judge is assigned to write the majority decision. e.g., Ezell v. Bowen. PERFORMANCE, PARTIAL: Refers to an uncompleted contract in which the injured party sues for or is awarded sufficient compensation to complete the terms of the contract. PERFORMANCE, SUBSTANTIAL: Is a defense against a claim of breach of contract. Refers to a contract whose objectives have been essentially met even though the letter of the contract may not have been met. i.e., Contract is technically incomplete. Weiss v. Midwifery Ass. Perjury: Elements of 1. Defendant must have been under oath. 2. Defendant must have made a false statement. 3. The false statement must have been material to the legal proceedings. 4. The false statement must have been made with knowledge of its falsity. Why important? U.S. Attorney‟s Manual—handbook of the Justice Department— states that “Because false declarations affect the integrity of the judicial fact finding process, all offenders should be vigorously prosecuted.” The entire justice system is predicated on the theory that witnesses tell the truth. Did Bill Clinton commit perjury? Posner, Richard: Father of Law & economics. Author of first Law & Economics text. Federal judge on the 11th Circuit Court of Appeals. Thesis that the common law is efficient. Precaution: The legal requirement that tort victims take reasonable actions necessary to minimize the harm of the tortuous acts of others. Privity: An interest in a contract to which one is not a party arising out of a relationship to one of the parties. Before the 20th century, a person injured by a manufactured product could not recover damages unless he had a contract with the manufacture. I.e., Without privity of contract recovery for harm caused was not allowed until MacPherson v. Buick Motor Co. Proffer Session: A private meeting at which a defendant is offered a plea bargain. Promissory Estopple: A legal doctrine whereby a promise made by a promisor by which he reasonably expects to induce action/forbearance by a promisee or a third party is binding if an injustice would result from failure to enforce. PROPERTY: A collection of rights and entitlements which people have in relation to things and to other people. Types: tangible (real, fixtures, & chattels) and intangible (bonds, debts, copyrights, patents, good will etc.,). n.b., In Moore v. Regents of U. of California, it was determined that Moore did not have a property right in his removed spleen. PROPERTY RIGHT: A security interest which a person has acquired in a specific benefit. These rights include the right to acquire, possess, use, enjoy, and dispose of that which is owned. Fifth & Fourteenth Amendments guarantee that persons will not be deprived of their property without due process. Supreme Court Bd. of Regents v. Roth 1972. p.75 PROXIMATE (DIRECT/LEGAL) CAUSE: A person is liable for the consequences of tortuous acts if they meet the but-for test and there is a reasonable (i.e., doctrine of foreseeability) connection between the act and the harm caused. Specifically, that which in a natural, continuous sequence unbroken by any intervening cause produces an event without which the injury would not have occurred. I.e., Behavior does have to be the direct cause to be considered tortuous. Clement v U.S.A. Court held that V.A. drugs were not the proximate cause of a suicide. Publici Juris: “Public law.” Blackstone‟s reference to acquisition by occupancy as providing robust title to property. e.g., In Raftopolous v. Monger, it was held that the requirements for adverse possession were not met. Possession was not exclusive, therefore, there was no transfer of property. Punitive Damage Award: Penalty placed on the shoulders of a convicted tortfeasor to create an incentive for remedial action. In 1996 Supreme Court decided that punitive damage awards were taxable. Injury (compensatory) damages remain non-taxable. Quantum Meruit "As much as one deserves." The non-breaching party has a right to the fair market value of his/her performance up until the time of the breach. aka. Reliance Damages seek to make you as well off as if you hadn‟t entered the contract at all. Preferable to "Just give me my money back," if the contract price is too low. i.e., Reasonable value may be greater than the contract price. Qualified Privilege: Employers have a qualified privilege to conduct business. This enables them to communicate freely about employees, without fear of defamation suits, as long as statements are made in good faith and communicated only to those required to hear the information. n.b., Must be careful about malicious or reckless disregard of the truth made about an employee in front of anyone without a "need-to-know." --R-- Ratio Decidendi: Lit. Reason for the decision. Commonly used to explain the reasoning behind a precedent. Despite the trial counsel‟s efforts to tie a precedent to a case, the appellate judge may find the basis for the precedent to be unclear or inapplicable to the case at hand. RELIANCE DAMAGES: Reliance is the change in the promisee‟s position induced by a promise. Contract law remedy for breach which compensates a promisee for any reasonable/foreseeable costs incurred as a result of a promise (i.e., covers cost but not profit). aka. Quantum meruit. Overreliance would not be compensable. RELIANCE PRINCIPLE Tort law notion that, people should pay for injuries they cause. n.b., Relates to economic concept of externalities. Sometimes free exchange in markets (inc., imperfect contracts) creates costs to others which are not compensated. i.e., Creates negative externalities. When this occurs, the courts may be called upon to internalize the externality resulting from market/contract failure. See also, benefit principle. Res ipsa loquitor: "The facts speaks for themselves." A rule of evidence under which negligence can be inferred without direct evidence. Requires that the thing causing the injury was under the exclusive control of the "harmer" and that the harm would not have occurred in the absence of the harmer's action. e.g., You with a smoking gun? Or a defendant delivered by ambulance and rolled in to court by a trio of nurses should not have to remove his bandages to prove that he was hurt. Respondeat superior: Lit. Let the employer answer. i.e., Employer is responsible for torts committed by his/her employees. RIGHT OF ALIENATION: The fundamental right of ownership to freely sell or otherwise dispose of property. n.b., Rose v Chaiken (rent control). RISHELL v. JANE PHILLIPS MEMORIAL: Rishell, a Louisiana citizen, moves a vegetative family member to Louisiana and sues Oklahoma for negligence. He claims that it is a diversity case. Appellate court agrees because the move was intended to serve the best interest of the incompetent person not merely to create a diversity case. Remands case back to trial court for retrial. Risk/Utility Test: Tort law concept that attempts to balance the usefulness and necessity of a product against the amount of risk of harm it presents. e.g., Rock v. Oster. Rule of Four: Four of the nine Supreme Court justices must agree for a Cert. To be issued. Otherwise the lower court‟s decision stands. Rule of the Case: Notion that courts are required to follow only those parts of past cases that are essential to the case under consideration. In contrast, non-essential information from precedents (obiter dicta) is not required to be considered at all. --S-- Section 1983: Part of Civil Rights Act of 1871 giving Federal Courts in personam jurisdiction over cases in which due process has been denied under the color of state law. Provides rights to damages or injunctive relief. Intended to remedy racial abuses. Freedman v. Rideout 1986. Sic utere tuo ut nonalienum laedas: So use your property as not to injure that of another. e.g., Negative externalities. Rose v. Chaikin SMALL CLAIMS COURT: An informal court where citizens can raise claims involving relatively low amounts of money. SPECIFIC PERFORMANCE: A requirement that a person who has breached a contract fulfill its terms rather than pay damages. Is a property rule. Mix v. Neff. STANDING: Requirement that for a case to be accepted by the courts, 1.) the plaintiff must be able to demonstrate that the activity/law challenged represents actual or threatened harm to the plaintiff. 2.) Both parties must have something to lose from the courts decision, and 3.) the court must believe that it has the ability to resolve the controversy. The harm or threat may be physical, emotional, financial, or environmental. The requirement of standing is one of the self-imposed limitations on the courts. e.g., Fair Employment Council v. BMC Marketing F.E.C. has standing because of its monetary involvement. Stare decisis: Latin, "Let the decision stand." The custom of looking at past decisions for guidance. i.e., Following precedent. Is a requirement for lower courts. Purpose is to provide stability in the law. A striking example is Flood v Kuhn. The court seemed to say, "Antitrust exemption doesn't make much sense, but we will leave it up to the legislature to change it." STATUE OF FRAUDS. Requirement that certain contracts (marriages, wills, revocation of wills, land deeds, trusts, assignments of debt, agreements taking more than 1 year to fulfill) must be in writing and attested to by a witness to be valid. Important because it is the basis of the common law on contracts (1677 Act of Parliment). Economic rationale is to increase the efficiency of the court system. i.e., decrease number of potentially frivolous or difficult to establish oral claims. Also, UCC 2-201. Skinner v Haugetsh. Exception. i.e., Not all had to sign. Contract for land sale was still valid. Sol Kittay She should have gotten the promise in writing and notarized! Ladies, never trust a dirty old buzzard! Sua Sponte: Of one's own accord Constitution. Used by countries connected to the British colonial system. The civil law is a "thou shall" system in which anything not specifically allowed is forbidden. The legislature makes the law. SUBSTANTIAL PERFORMANCE: Concept recognizing that perfect performance of contract obligations is often (usually?) not possible. A contract is considered discharged adequately as long as deviation from the terms of the contract is not material (significant). To satisfy substantial performance: 1. claimant made honest effort to satisfy exact terms 2. the other party benefited 3. the other party retains the benefits. Ira Weiss v. Nurse Midwifery(2). SUFFICIENCY OF CONSIDERAION. Consideration: For a promise to be legally binding there must be an exchange of value. i.e., inducement or token of commitment. Sufficiency refers to the demonstration of intent; the courts do not inquire into the adequacy of the exchange. Free to make a bad deal! Hale v Brewster. Lawyer denied fee because no value beyond duty was offered in evidence. SUMMARY JUDGMENT: Court decision without the necessity of going to trial. --T-- TENENCY IN COMMON: Each party owns a proportionate share. TENANTS BY THE ENTIERTY: Husbands and wives each own an indivisble half of a specified property. e.g., In Re Nicpon. TOLL: Refers to the temporary stopping of the clock on the Statute of Limitations under special circumstances. E.g., During war time. Tonnesen v. Yonkers Contracting. (Example of how a court uses precedent). Issue: 1.)Is an engineless barge a “boat” (i.e., vessel) under the Jones Act? 2.) ……Under the Longshore & Harbor Compensation Act? Court can‟t find relevant precedent in own circuit, and finds suggested precedent, DiGiovanni, not binding. But uses it anyway to identify the Jones Act definition of a boat. (i.e., Some dictum becomes relevant.) H: 1.) No. Dismiss case. 2.) Yes. Court finds that because the barge was towed it is a “boat” under the LHWCA standard. i.e., Court finds that Tonnesen has standing to sue under LHWCA. TERRORISM: the deliberate attack on innocent civilians for political purposes. TORT: French "torquere" to twist meaning a private wrong or injury. A breach of duty that harms someone. One party's action (may be intentional, but usually unintentional) creates a negative externality affecting another. TORTFEASOR: A wrongdoer. The person who commits a tort. Creates a negative externality. ULTRAHAZARDOUS ACTIVITY: A concept in Tort law in which the principle of strict liability without fault is applied to unusually dangerous situations. A person conducting ultrahazardous activity is held responsible for foreseeable harm caused whether or not she was negligent. Pierce v Pacific Gas. UNCONSCIONABLE: Relates to contracts which are seen as so one-sided that enforcement would violate the court‟s sense of fairness. Common law doctrine of unconscionability. Utopia: 2 Greek words: uk topis meaning no such place. VOID V. VOIDABLE CONTRACTS: A contract is void if there is a flaw in its formation. A contract is voidable if an otherwise valid and enforceable contract involves a non-competent party or because inducement was fraudulent. e.g., Infants and "non-necessaries." Mix v Neff(1). Court distinguished between fraud in the factum (void) and fraud in the inducement (voidable). Palmer v. Telecon (2) WRIT OF CERTIORARI: “To make certain.” Instruction from the Supreme Court ordering a lower court to deliver a case to it. a.k.a. Cert. Conditions for a cert: at least 4 of the 9 judges agree to issue (the “Rule of Four”) and likelihood that applicant will prevail. Postal Service v. National Assn. of Letter Carriers. ZONING: Government regulations which divide municipalities into districts with different approved uses. Impose limits on the exercise of real property rights. Justification based on the view that unrestricted use of property is likely to create negative externalities. Rose v. Chaiken, windmill is determined to be a nuisance in a residential zone. n.b., No definition which begins "........ is when" will receive full credit in this course. In the English language the verb "to be" is not supposed to be followed by an adverb.