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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

      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   Chosen by the parties to a dispute to decide. i.e., Decision is
normally binding. Courts avoid reversals unless public policy has been

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
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

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.


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

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

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
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
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.

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.
      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.


                 a mishap whose prevention would cost more than
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

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.

FACT FREEDOM: The discretion that judges have to choose the governing
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.

      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
        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.


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.
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.


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.

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..

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
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.


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

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

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

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

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.

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.

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
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."
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

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.


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).

       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.

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
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

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.

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