I've selected a song.
I also learned a valuable lesson about reheating egg-drop soup: It doesn't really work. Apparently, it maintains its gelatinous refrigerated form, having emulsified from the egg proteins. Which means that heating it up in the microwave will only over-cook the egg and make it gross. I ate it anyway.
In other news, I have more sympathy for the wall street protesters now that I've thought about it a little more. Wall Street really did get a pretty sweet deal with that bailout. Democrats look like hypocrites when they criticize trickle-down economic theory from one side of their mouth and yell "too big to fail!" from the other. I'm sure the two situations are distinguishable, but there's at least a superficial irony. Maybe society does depend on a clear income delineation between winners and losers.
If that's so, then we should stop worrying about creating jobs and instead invest everything into education, because it seems like that only thing that ever improves society is an increase in resources, which only comes about through research, discovery, development, and innovation. Then again, the countries with the best test scores from their students aren't exactly setting the world on fire (What does scandinavia produce, anyway?).
Friday, October 7, 2011
Sunday, September 25, 2011
Response to Douthat on the Death Penalty
In today's New York Times, Ross Douthat argues that we should focus controversy over Troy Davis on the broken mechanics of the justice system, rather than simply giving up on the death penalty and its underlying problems. According to Douthat, the problem with the death penalty is not that it is immoral, but that it is imperfectly implemented, and our response to its imperfections should be to tweak. Non-death penalty offenders would benefit from reforms as well, in amounts that far exceed the harm caused by a few erroneous executions.
The argument is not novel, and it has an intuitive appeal. Wouldn't it be nice if we could have a justice system we trusted with "life and death," rather than resign ourselves to failure? It would indeed be nice, but its not realistic and its not worth the cost.
In 1972, the Supreme Court in Furman v. Georgia struck down the death penalty based on fears it was applied inconsistently, with racial bias, and was inhumane. These concerns are the same as those raised today by the Troy Davis execution. In response to this death penalty moratorium, many states took Douthat's advice and enacted reforms to their death penalty systems to try to make them less arbitrary and inconsistent. In particular, Georgia enacted a series of objective guidelines for enhancing a sentence to the death penalty. The Supreme Court four years later, in Gregg v. Georgia, decided it would give Douthat's approach a try.
Since 1976, the Supreme Court has engaged in the business of setting guidelines and limitations on what sorts of death penalty systems could pass muster. The Court has prohibited application of the death penalty to minors, the mentally retarded, or non-homicide offenders. However, despite the best intentions (sometimes) of lawmakers, jurors, and judges, the Court's experiment in regulating and reforming the death penalty has failed. Its application continues to be tainted by racial prejudice, inadequate assistance of underpaid court-appointed counsel, politically-motivated elected judges, and congressional emasculation of the federal appellate process. These problems cannot be fixed merely by writing op-eds about the problem.
The death penalty was re-instated in 1976 out of a naive hope that the death penalty could be reformed. Since then, its problems have only amplified. 35 years is long enough to recognize that our underfunded justice system will not be reformed by placing faith in the majority's compassion for its least popular citizens. If Douthat wants to pass laws reforming the justice system into one worthy of meting out capital punishment, then I might be persuaded to vote for it. But until then, let's put down the shovel.
The argument is not novel, and it has an intuitive appeal. Wouldn't it be nice if we could have a justice system we trusted with "life and death," rather than resign ourselves to failure? It would indeed be nice, but its not realistic and its not worth the cost.
In 1972, the Supreme Court in Furman v. Georgia struck down the death penalty based on fears it was applied inconsistently, with racial bias, and was inhumane. These concerns are the same as those raised today by the Troy Davis execution. In response to this death penalty moratorium, many states took Douthat's advice and enacted reforms to their death penalty systems to try to make them less arbitrary and inconsistent. In particular, Georgia enacted a series of objective guidelines for enhancing a sentence to the death penalty. The Supreme Court four years later, in Gregg v. Georgia, decided it would give Douthat's approach a try.
Since 1976, the Supreme Court has engaged in the business of setting guidelines and limitations on what sorts of death penalty systems could pass muster. The Court has prohibited application of the death penalty to minors, the mentally retarded, or non-homicide offenders. However, despite the best intentions (sometimes) of lawmakers, jurors, and judges, the Court's experiment in regulating and reforming the death penalty has failed. Its application continues to be tainted by racial prejudice, inadequate assistance of underpaid court-appointed counsel, politically-motivated elected judges, and congressional emasculation of the federal appellate process. These problems cannot be fixed merely by writing op-eds about the problem.
The death penalty was re-instated in 1976 out of a naive hope that the death penalty could be reformed. Since then, its problems have only amplified. 35 years is long enough to recognize that our underfunded justice system will not be reformed by placing faith in the majority's compassion for its least popular citizens. If Douthat wants to pass laws reforming the justice system into one worthy of meting out capital punishment, then I might be persuaded to vote for it. But until then, let's put down the shovel.
Saturday, September 24, 2011
US Savings Ass'n v. Timbers of Inwood Forest Associates
Preliminarily, I find it interesting that Scalia uses legislative history at one point to justify claiming that "value of such creditor's interest" in § 506(a) means the "value of the collateral." Scalia is one of the most ardent opponents of legislative history that one could find. Within the same opinion, in fact, he says, "If it is at all relevant, the legislative history tends to subvert rather than support petitioner's thesis." The only explanation I can offer for this rare instance of hypocrisy is that it is qualified by "if at all relevant," and it is 1988, perhaps before Scalia has fully embraced his "death to legislative history" schtick.
As for the case, the issue presented is whether the Bankruptcy Code's protections for secured creditors include post-petition interest. The justification for post-petition interest is that, but for the automatic stay against foreclosure actions, the secured creditor would have been able to invest foreclosure proceeds. By denying the right to foreclosure, the automatic stay deprives the secured creditor of its interest in the investment value of its collateral. On the other hand, there are textual problems with interpreting the Code in this manner. The phrase "interest in property" ordinarily means a property interest, which is not the same as a right to foreclose. There are numerous other instances in the Code where the property interest is described as a prepetition claim, and interest payments are discussed in other contexts, implying that Congress knew how to provide interest payments in this situation if it wanted to be explicit in its intent.
I am reminded of the Rash case, where, once again, Scalia writes about valuation of collateral. In Rash, the Court valued collateral based on its retail replacement costs, not on the price it would fetch in a foreclosure sale. Perhaps this outcome is required for the sake of consistency with Timbers. Interesting that the professor did not bring up Timbers in our discussion of Rash, though perhaps he did and I just wasn't paying attention. Anyway, this significance of both Timbers and Rash appears to be that the Court views a secured creditor's interest in collateral as if it were already in the creditor's possession, and adequate protection of this possessory interest only requires protection of its prepetition market retail value.
Its easy to see why this approach rankles so many commentators and provides controversy for the classroom. The ability to sell property in the market is only one of the rights that accompany property interest. What about the right to use the property? To invest it? By depriving secured creditors of this aspect of their property rights, the Court puts secured creditors in a worse position than they would be in if there had been no automatic stay, which is supposedly one of the fundamental principles behind absolute priority in a Chapter 11 reorganization. (This does not take into account price reductions inherent in foreclosure sales.)
Textual support in the Code for Scalia's interpretation:
Preliminarily, I find it interesting that Scalia uses legislative history at one point to justify claiming that "value of such creditor's interest" in § 506(a) means the "value of the collateral." Scalia is one of the most ardent opponents of legislative history that one could find. Within the same opinion, in fact, he says, "If it is at all relevant, the legislative history tends to subvert rather than support petitioner's thesis." The only explanation I can offer for this rare instance of hypocrisy is that it is qualified by "if at all relevant," and it is 1988, perhaps before Scalia has fully embraced his "death to legislative history" schtick.
As for the case, the issue presented is whether the Bankruptcy Code's protections for secured creditors include post-petition interest. The justification for post-petition interest is that, but for the automatic stay against foreclosure actions, the secured creditor would have been able to invest foreclosure proceeds. By denying the right to foreclosure, the automatic stay deprives the secured creditor of its interest in the investment value of its collateral. On the other hand, there are textual problems with interpreting the Code in this manner. The phrase "interest in property" ordinarily means a property interest, which is not the same as a right to foreclose. There are numerous other instances in the Code where the property interest is described as a prepetition claim, and interest payments are discussed in other contexts, implying that Congress knew how to provide interest payments in this situation if it wanted to be explicit in its intent.
I am reminded of the Rash case, where, once again, Scalia writes about valuation of collateral. In Rash, the Court valued collateral based on its retail replacement costs, not on the price it would fetch in a foreclosure sale. Perhaps this outcome is required for the sake of consistency with Timbers. Interesting that the professor did not bring up Timbers in our discussion of Rash, though perhaps he did and I just wasn't paying attention. Anyway, this significance of both Timbers and Rash appears to be that the Court views a secured creditor's interest in collateral as if it were already in the creditor's possession, and adequate protection of this possessory interest only requires protection of its prepetition market retail value.
Its easy to see why this approach rankles so many commentators and provides controversy for the classroom. The ability to sell property in the market is only one of the rights that accompany property interest. What about the right to use the property? To invest it? By depriving secured creditors of this aspect of their property rights, the Court puts secured creditors in a worse position than they would be in if there had been no automatic stay, which is supposedly one of the fundamental principles behind absolute priority in a Chapter 11 reorganization. (This does not take into account price reductions inherent in foreclosure sales.)
Textual support in the Code for Scalia's interpretation:
- §506(b) provides postpetition interest only for an oversecured creditor. Thus, adequate protection in §361 would conflict with §506(b) if it required interest payments for undersecured creditors. Further, 506a provides creditors only with security in the value of the estate's interest in the collateral. I think (Scalia doesn't discuss this) the estate's interest is not in a foreclosure value, nor could the estate's interest referred to here include the investment proceeds of the collateral, because the estate's use of the collateral is "products of the property of the estate," which is property of the estate specifically reserved for distribution among the creditors. An undersecured deficiency claim must be shared pro-rata with the other general creditors of the estate.
- §552(a) says that a prepetition security interest does not reach property of the estate acquired postpetition. But there is an exception only if the security agreement specifically calls for "proceeds, product, offspring, rents, or profits" of the collateral. Thus, 552a seems only to grant postpetition interest if the interest comes in a form anticipated by the parties prepetition in the security agreement.
- 362d1 and d2 would be inconsistent with one another if postpetition interest were allowed, because an undersecured creditor would technically never have adequate protection, so why would it matter, in 362d2, that the collateral was not necessary for the reorganization? (I'm a little shaky on this argument.)
Friday, September 23, 2011
Liquidated damages and sharing the pain
It is sometimes fruitful to peel an onion. It is also sometimes vegetate-able. With this aphorismic pun in mind, let's peel the onion of penalties.
One thing I learned two years ago and have been reminded of recently is that liquidated damages clauses are unenforceable unless they are an approximation of actual damages in a setting in which precise damage determinations are difficult to determine. So, for example, if I contract to sell you my apple for $1, a court will not enforce a provision in the contract that says I must pay you $5,000,000 if I do not have an apple to give you in exchange for your $1. Intuitively, this seems like a reasonable doctrine--I've only caused the harm of inconveniencing you in having to find another apple dealer, so its unfair that I should have to overcompensate you for this inconvenience.
But this doctrine has troubling implications. Does my promise to pay super-high damages count for nothing? We were both free to enter into this unfair contract; isn't this just the free market at work? Don't we have the fundamental freedom, as Americans, to enter into whatever contract we want? One could argue that the $5,000,000 apple example is an unfair contract, so we shouldn't be able to enter into such blatantly unfair agreements. But what's unfair about it? Both parties are aware of the consequences and are under no duress or fraudulent influence when they agree to the contract. If someone wants to promise to do something stupid, who are we to stop him/her or judge it as unfair?
The real value of liquidated damages comes in when performance under the contract has idiosyncratic value to one of the parties, above and beyond the market value of such performance. For example, if I want to recreate a special meal for an anniversary celebration, then the damage caused by the fishmonger selling the last lobster, which i had reserved and paid for in advance, thereby ruining my special dinner, will be much greater than a refund of the lobster. In fact, I would accept nothing less than $100,000 in exchange for that special lobster dinner on that one special night. So why shouldn't I be free to make a contract with the fishmonger that he has to pay me $100k if he doesn't provide the lobster on time? Or would this fall under the category of approximating a difficult-to-determine set of damages? What's interesting to me about this topic is how it pertains to credit card penalties and debit card overdraft fees. Financial institutions make money, in part, by charging higher interest and imposing fees on those who are just one day late in making a payment or who go $1 under the account balance. This is not a damages remedy; rather, it is a business model. To be continued...
One thing I learned two years ago and have been reminded of recently is that liquidated damages clauses are unenforceable unless they are an approximation of actual damages in a setting in which precise damage determinations are difficult to determine. So, for example, if I contract to sell you my apple for $1, a court will not enforce a provision in the contract that says I must pay you $5,000,000 if I do not have an apple to give you in exchange for your $1. Intuitively, this seems like a reasonable doctrine--I've only caused the harm of inconveniencing you in having to find another apple dealer, so its unfair that I should have to overcompensate you for this inconvenience.
But this doctrine has troubling implications. Does my promise to pay super-high damages count for nothing? We were both free to enter into this unfair contract; isn't this just the free market at work? Don't we have the fundamental freedom, as Americans, to enter into whatever contract we want? One could argue that the $5,000,000 apple example is an unfair contract, so we shouldn't be able to enter into such blatantly unfair agreements. But what's unfair about it? Both parties are aware of the consequences and are under no duress or fraudulent influence when they agree to the contract. If someone wants to promise to do something stupid, who are we to stop him/her or judge it as unfair?
The real value of liquidated damages comes in when performance under the contract has idiosyncratic value to one of the parties, above and beyond the market value of such performance. For example, if I want to recreate a special meal for an anniversary celebration, then the damage caused by the fishmonger selling the last lobster, which i had reserved and paid for in advance, thereby ruining my special dinner, will be much greater than a refund of the lobster. In fact, I would accept nothing less than $100,000 in exchange for that special lobster dinner on that one special night. So why shouldn't I be free to make a contract with the fishmonger that he has to pay me $100k if he doesn't provide the lobster on time? Or would this fall under the category of approximating a difficult-to-determine set of damages? What's interesting to me about this topic is how it pertains to credit card penalties and debit card overdraft fees. Financial institutions make money, in part, by charging higher interest and imposing fees on those who are just one day late in making a payment or who go $1 under the account balance. This is not a damages remedy; rather, it is a business model. To be continued...
Wednesday, December 22, 2010
Not a 1L anymore
Now that I have finished my 3rd semester, it is time for some reflections on what I have learned. Its strange, I have already written 3,000 words today for a final exam, but I don't feel like this counts as typing words. I suppose its not so strange.
Administrative law was a study in psychology. Many express frustration with the slow pace of congress. Congress is designed to move slowly. There are endless procedures and obstacles in the path of any bill. It seems that the threat of unemployment is the only force powerful enough to get congressmen to agree with each other long enough to pass something through the immense gridlock of procedure. Administrative law is not really about procedures. It doesn't really matter whether there are enough votes, filibusters, or notice and comments. At the end of the day, if the head of the agency wants something to happen, then it will happen. In a sense, administrative law is run by dictators; it is the efficient, smooth, well-oiled machine that the general public thinks congress should be.
As such, the study of administrative law is the study of dictators. Human psychology plays a large role. Why does statutory language get interpreted based on the statute's purpose in the hands of some, whereas in the hands of other, the language is plumbed for its literal, textual meaning? Why are certain industries able to garner influence in agencies more than others? What constrains the actions of these dictators? What do they fear? All of these questions are far more significant than the process by which new rules are subject to comment, or what regulations are subject to OIRA review. This is where the human drama happens. This is where the different branches of government engage in Mortal Kombat!
Corporate law is akin to Constitutional law. This result is not at all what I was anticipating when I signed up for the course. I thought that there would be a lot of math, and a lot of greedy corporations having to battle SEC regulations. This is not the case, at least not in the introductory course I took. Instead, I learned that a corporation is like a country. It has a constitution, elected officials, and delegated administrators, all of whom share a separation of powers and owe different duties and obligations to one another. This is just like a bill of rights in constitutional law, in which those in power must set boundaries on just how much they can get away with before a court will declare them to be stepping on their brethren's toes. Its a made up fantasy world with its own set of rules and laws--a lot like World of Warcraft, actually.
8th Amendment law is a mess. I was confused about the death penalty before I took the class; now I know where I stand, even though there is much about my newfound position that I do not understand. But in a way, that is good, because its revealed some inconsistencies in my own psyche. For example, I can now tell you a million reasons why the death penalty, as administered in the US, is deeply flawed. It is an unfair, racist system that arbitrarily, incorrectly, and unnecessarily imposes death as a way of ironically asserting justice over those who arbitrarily, incorrectly, and unnecessarily impose death on others. Yet, at the same time, there are people who I instinctively feel should be executed. I remember feeling like it was perfectly normal and natural that Saddam Hussein should be put to death. The Chesire killer in Connecticut is another news story that makes me think that execution must be the natural consequence of someone who thinks its acceptable to behave as they did. The execution of mass murderers hardly strikes me as "cruel and unusual," since they are only receiving a fraction of the death they caused in the world. This is what I feel in my gut. And yet, I know in my head that execution is barbaric. That it is retribution. That it is hypocritical. And that criminals are more than just the crimes they committed. There are extreme cases where I feel the death penalty is warranted, and there are extreme cases in which I feel the death penalty is abhorrent. How do I reconcile these two extremes? What do they mean for those cases in the middle that seem both necessary and abhorrent? I have more questions than answers when it comes to the death penalty, and yet I feel like I have greater understanding.
Administrative law was a study in psychology. Many express frustration with the slow pace of congress. Congress is designed to move slowly. There are endless procedures and obstacles in the path of any bill. It seems that the threat of unemployment is the only force powerful enough to get congressmen to agree with each other long enough to pass something through the immense gridlock of procedure. Administrative law is not really about procedures. It doesn't really matter whether there are enough votes, filibusters, or notice and comments. At the end of the day, if the head of the agency wants something to happen, then it will happen. In a sense, administrative law is run by dictators; it is the efficient, smooth, well-oiled machine that the general public thinks congress should be.
As such, the study of administrative law is the study of dictators. Human psychology plays a large role. Why does statutory language get interpreted based on the statute's purpose in the hands of some, whereas in the hands of other, the language is plumbed for its literal, textual meaning? Why are certain industries able to garner influence in agencies more than others? What constrains the actions of these dictators? What do they fear? All of these questions are far more significant than the process by which new rules are subject to comment, or what regulations are subject to OIRA review. This is where the human drama happens. This is where the different branches of government engage in Mortal Kombat!
Corporate law is akin to Constitutional law. This result is not at all what I was anticipating when I signed up for the course. I thought that there would be a lot of math, and a lot of greedy corporations having to battle SEC regulations. This is not the case, at least not in the introductory course I took. Instead, I learned that a corporation is like a country. It has a constitution, elected officials, and delegated administrators, all of whom share a separation of powers and owe different duties and obligations to one another. This is just like a bill of rights in constitutional law, in which those in power must set boundaries on just how much they can get away with before a court will declare them to be stepping on their brethren's toes. Its a made up fantasy world with its own set of rules and laws--a lot like World of Warcraft, actually.
8th Amendment law is a mess. I was confused about the death penalty before I took the class; now I know where I stand, even though there is much about my newfound position that I do not understand. But in a way, that is good, because its revealed some inconsistencies in my own psyche. For example, I can now tell you a million reasons why the death penalty, as administered in the US, is deeply flawed. It is an unfair, racist system that arbitrarily, incorrectly, and unnecessarily imposes death as a way of ironically asserting justice over those who arbitrarily, incorrectly, and unnecessarily impose death on others. Yet, at the same time, there are people who I instinctively feel should be executed. I remember feeling like it was perfectly normal and natural that Saddam Hussein should be put to death. The Chesire killer in Connecticut is another news story that makes me think that execution must be the natural consequence of someone who thinks its acceptable to behave as they did. The execution of mass murderers hardly strikes me as "cruel and unusual," since they are only receiving a fraction of the death they caused in the world. This is what I feel in my gut. And yet, I know in my head that execution is barbaric. That it is retribution. That it is hypocritical. And that criminals are more than just the crimes they committed. There are extreme cases where I feel the death penalty is warranted, and there are extreme cases in which I feel the death penalty is abhorrent. How do I reconcile these two extremes? What do they mean for those cases in the middle that seem both necessary and abhorrent? I have more questions than answers when it comes to the death penalty, and yet I feel like I have greater understanding.
Friday, November 12, 2010
The Right to Competent Counsel
Been a while since my last post. I'm sorry. 2L year now. Same as the first. A little bit wiser, but a little bit worse.
In Strickland v. Washington, the supreme court held that in order for a death sentence to be reversed on account of inadequate counsel, the defendant must show 1) defense counsel's legal strategy at sentencing was unreasonable and 2) the defendant suffered some prejudice as a result of this unreasonable strategy.
The first prong seems self-explanatory, but I recall the professor saying that the court will accept any strategy, as long as the attorney claims to have had a plan at the time.
In Strickland v. Washington, the supreme court held that in order for a death sentence to be reversed on account of inadequate counsel, the defendant must show 1) defense counsel's legal strategy at sentencing was unreasonable and 2) the defendant suffered some prejudice as a result of this unreasonable strategy.
The first prong seems self-explanatory, but I recall the professor saying that the court will accept any strategy, as long as the attorney claims to have had a plan at the time.
Wednesday, April 14, 2010
Meeting with a Professor
Wow, what an amazing person.
First of all, we addressed the motivation problem. Because I am indecisive, I do not always have a personal interest in finding the best arguments to defend my positions, as many of the professors seem to expect. But there is anther option--self-improvement. When I sit down to review a case or understand some doctrine, its not because I care about the case/parties/doctrine. Rather, its because I care about myself, and about making the most of a unique intellectual opportunity. Don't sell yourself short. Understanding the arguments and issues in a case or statute makes me a better lawyer. It means that I will be getting more out of a class, getting more for my money. And in turn, that will allow me to be more effective in the future at whatever I choose to do with my degree. Even if I never become a criminal lawyer, I still will become a more critical thinker if I engage with the rationale for a law instead of just obsessing over the best outline or proper statement of the black letter rule. And even if I am not going to be called on, that does not mean I can not be engaged in the lecture. I should be keeping a running commentary in the notes, tough not to the exclusion of paying attention to what is going on. This is an opportunity to develop thoughts and opinions. Remember how good it felt to realize that I don't support the Castle Doctrine?
Next, we talked about self-discovery and getting off the set path laid for you by society to pursue your own interests. There is room for success in any area of the law, and the courses you take will not necessarily box you in or out of a career. As long as you get a first job, there is room for movement within the field. The professor had a goal of not crying after her third day of her clerkship, and the memory and fear of failure led her to exceed the judge's expectations by the end of the year. Sharply pointed questioning, and the anticipation that every single argument you make will be rebutted leads to a thoroughness of preparation that requires a response to every concern.
First of all, we addressed the motivation problem. Because I am indecisive, I do not always have a personal interest in finding the best arguments to defend my positions, as many of the professors seem to expect. But there is anther option--self-improvement. When I sit down to review a case or understand some doctrine, its not because I care about the case/parties/doctrine. Rather, its because I care about myself, and about making the most of a unique intellectual opportunity. Don't sell yourself short. Understanding the arguments and issues in a case or statute makes me a better lawyer. It means that I will be getting more out of a class, getting more for my money. And in turn, that will allow me to be more effective in the future at whatever I choose to do with my degree. Even if I never become a criminal lawyer, I still will become a more critical thinker if I engage with the rationale for a law instead of just obsessing over the best outline or proper statement of the black letter rule. And even if I am not going to be called on, that does not mean I can not be engaged in the lecture. I should be keeping a running commentary in the notes, tough not to the exclusion of paying attention to what is going on. This is an opportunity to develop thoughts and opinions. Remember how good it felt to realize that I don't support the Castle Doctrine?
Next, we talked about self-discovery and getting off the set path laid for you by society to pursue your own interests. There is room for success in any area of the law, and the courses you take will not necessarily box you in or out of a career. As long as you get a first job, there is room for movement within the field. The professor had a goal of not crying after her third day of her clerkship, and the memory and fear of failure led her to exceed the judge's expectations by the end of the year. Sharply pointed questioning, and the anticipation that every single argument you make will be rebutted leads to a thoroughness of preparation that requires a response to every concern.
Sunday, January 17, 2010
Pedagogical Procedure
I need a method for this coming semester's madness. I have the benefit of a semester's experience, and one thing I learned is that consistency wins the race. If I had been doing the good things I was doing at the end of the semester all throughout, then I would have performed much better on finals. What worked? What didn't?
The test I did best on was the one I had the most time to complete, and the test I did worst on was the one I had least time. In addition, the course that I spent the least amount of time preparing for outside of class was the one that I did worst on. Unfortunately, the course I did worst on was also the easiest and the one I felt that I understood the best. But apparently, I did not understand it as well as I thought I did, because when the time came to explain what I knew, I had trouble articulating my ideas in a logical and coherent manner.
The takeaway is that I must not only understand what I have read, but I also must practice explaining what I understand. At first impression, this seems like it means that I will have to do more work. But I'm not so sure about that. Under the "read it until you understand it" method, I spend a lot of time re-reading and trying to think about the context, as well as struggling with the poor wording of the text. I think that if my reading was done with more of written end-product in sight, it would be easier to skip over the unimportant details to narrow in on the truly relevant information. At the same time, briefs are a monotonous and ineffective use of study time, because they are not written with the benefit of class clarification. In Contracts, I wouldn't know what the rule was to take away from a case, or what issues were important, until after I had the benefit of the professor's questioning. By the end of the semester, I would type up the class notes and reformulate them into an outline format by incorporating the structural organization and contextual background of the hornbook and commercial outline. I believe that this is the most effective way to study:
1) Find the assigned reading in the hornbook and read the relevant section.
2) Make an outline of this section.
3) Read the case; type the issue/rule/reasoning (no more than a few sentences) into the correct place on the hornbook outline.
4) Note in class what aspects of the hornbook the professor explains. Modify case summary so that it is in line with professor's explication. Flesh out elements of hornbook outline that professor alludes to in class.
5) Read E&E cover to cover. Work ahead. Start taking practice exams by April 1st.
The test I did best on was the one I had the most time to complete, and the test I did worst on was the one I had least time. In addition, the course that I spent the least amount of time preparing for outside of class was the one that I did worst on. Unfortunately, the course I did worst on was also the easiest and the one I felt that I understood the best. But apparently, I did not understand it as well as I thought I did, because when the time came to explain what I knew, I had trouble articulating my ideas in a logical and coherent manner.
The takeaway is that I must not only understand what I have read, but I also must practice explaining what I understand. At first impression, this seems like it means that I will have to do more work. But I'm not so sure about that. Under the "read it until you understand it" method, I spend a lot of time re-reading and trying to think about the context, as well as struggling with the poor wording of the text. I think that if my reading was done with more of written end-product in sight, it would be easier to skip over the unimportant details to narrow in on the truly relevant information. At the same time, briefs are a monotonous and ineffective use of study time, because they are not written with the benefit of class clarification. In Contracts, I wouldn't know what the rule was to take away from a case, or what issues were important, until after I had the benefit of the professor's questioning. By the end of the semester, I would type up the class notes and reformulate them into an outline format by incorporating the structural organization and contextual background of the hornbook and commercial outline. I believe that this is the most effective way to study:
1) Find the assigned reading in the hornbook and read the relevant section.
2) Make an outline of this section.
3) Read the case; type the issue/rule/reasoning (no more than a few sentences) into the correct place on the hornbook outline.
4) Note in class what aspects of the hornbook the professor explains. Modify case summary so that it is in line with professor's explication. Flesh out elements of hornbook outline that professor alludes to in class.
5) Read E&E cover to cover. Work ahead. Start taking practice exams by April 1st.
Saturday, November 21, 2009
Thursday, November 19, 2009
If a court has said it, then it does not matter if that court's opinion is controlling jurisdiction. What matters is that the argument is one that a court might find persuasive because a court has found it persuasive in the past. Thus, on an exam, anything a court has said will raise an issue that can be addressed.
Thursday, November 12, 2009
Lazy Reading
This post is place-holder for a forthcoming post about lazy reading. I have come to realize that reading with the intent to find answers to questions is akin to practicing saxophone with poor form, or lifting weights with too much weight or with improper position. Some texts do provide answers to questions, but these texts are reference texts. These are the only texts that should be read lazily. All other texts are mere suggestions, theories about the way a particular problem or situation could be approached. Consequently, correct reading requires thinking. Incorrect reading involves, "wait, I don't understand, what does the author mean?" The proper response to confusing text is, "This author has incorrectly worded this sentence, thereby depriving it of any meaning. If the author means ____, then it should have been worded like this:_______." Otherwise, reading is extremely boring and retention is darn-near impossible.
Friday, November 6, 2009
A Candid Self-Assessment
It's now crunch time. Every hour I spend is now crucial, as an hour of study during the month before the exam is worth 3 hours of study time previously. With this in mind, I must profile my weaknesses and discriminate against them with the scant time and resources I have at my disposal.
Here is the work that must be accomplished by the end of the semester:
Contracts:
a) There are 1 and a half chapters of cases that each need to be briefed in preparation for class.
b) There are 6 chapters that will need to be outlined in a format that can be applied in an exam setting. For each topic covered in class, I must identify the elements and factors that make up each doctrine/rule/principle. The aim here is to separate the weapons/tools of legal analysis from the context of court opinions. In the outline, the court opinion we covered in class will briefly be summarized, with an emphasis on how the court views/uses the principle/rule. The hornbook and black letter outline should be the basis for the outline.
Torts:
a) 150 pages of casebook to read in preparation for class. Since I've been called on twice already, a masterful command of the details is not necessary. Read with an eye for rules and principles.
b) Outline Intentional Torts, Prima facie case for negligence, Defenses. The casebook and syllabus may actually be more useful than the E&E for this purpose. Since none of the principles or concepts are particularly difficult, this is going to be an exam in which meticulous attention to detail will win the day. Include traditional approaches in the outline.
Property:
There is a lot of reading left to do in preparation for class, and unfortunately, this reading is necessary in order to be able to understand all the points in class. This reading is further complicated by the fact that some of the material is relatively simple and straightforward, whereas other material is complex. In addition, some of the material is technical and rule-based, whereas other aspects of the reading is based heavily on policy analysis. Finally, the exam for this course is an 8 hour take home exam. I definitely need to outline the interests in real property, shared ownership, marital property, and the rule against perpetuities. I should probably outline the other material too--just broadly mention all of the conflicts and arguments and cull out as many rules as I can find. This could be a time-consuming process. Understanding Property should be a useful resource in organizing the material.
Legal Practice:
Only one thing to do here: OPEN MEMO. I have to write the most badass memo of all time. This will require further research, extensive outlining, drafting, thinking, and editing.
Legal Research:
EXAM on friday! Top priority for this week. The upside is that there is a finite amount of material. The downside is that the professor was terrible and I don't understand a lot of it. Another downside is that the curve will be brutal, so I have to know the esoteric weird hard stuff in addition to the regular course material.
These are the obstacles that I will need to overcome to successfully complete my tasks:
a) Efficiency. It takes me too long to do my reading for Contracts. I need to read the case summary online, write a paragraph by paragraph summary of the significant reasoning in the opinion, write up a quick brief, and then move on. This should not take more than 30-45 minutes per case. No more inactive reading. Everything I read should be read with the goal of producing a written document containing the important rules and principles that the court applies to the case facts. If there is something I do not understand, just write it down and move on, and I can try to gain insight either in class, in the hornbook, in the E&E, or else it isn't that important. I don't have all day to accomplish all of the assignments that are due the next day. I need to be working ahead so that I have time to review and outline. I don't get to rest until I have accomplished everything written above.
b) Energy/Focus. Lately, I have been having situations where I come home and don't feel like doing work, so I sit at the computer and read the NY Times or spend an hour cooking, or whatever. Other times, I will actually have the book open, but I'll just stare at the words on the page without any understanding of what I'm supposed to be learning and no energy to figure it out. I have several ideas for remedies. First, remember that the law is fascinating. All of the courses I am taking are introductory classes, so if I think I am being exposed to endless detail and boring facts, then I am mistaken. Think of how much fun Introduction to Philosophy was in comparison to Metaphysics or Computational Models of Consciousness. Second, get 8 hours of sleep every single night, no matter what! An hour of study conducted with a well-rested mind is probably twice as productive as two hours of study done on a half-tank of sleep. Plus, its easier to study longer. Third, continue to remain logged off of gchat. I've been a lot more productive since I signed off.
I need to be more self-conscious in my studying, just as I am when practicing saxophone. Be conscious of limitations, and work to improve them, rather than just sticking with the easy stuff so that I can feel smart about myself.
Here is the work that must be accomplished by the end of the semester:
Contracts:
a) There are 1 and a half chapters of cases that each need to be briefed in preparation for class.
b) There are 6 chapters that will need to be outlined in a format that can be applied in an exam setting. For each topic covered in class, I must identify the elements and factors that make up each doctrine/rule/principle. The aim here is to separate the weapons/tools of legal analysis from the context of court opinions. In the outline, the court opinion we covered in class will briefly be summarized, with an emphasis on how the court views/uses the principle/rule. The hornbook and black letter outline should be the basis for the outline.
Torts:
a) 150 pages of casebook to read in preparation for class. Since I've been called on twice already, a masterful command of the details is not necessary. Read with an eye for rules and principles.
b) Outline Intentional Torts, Prima facie case for negligence, Defenses. The casebook and syllabus may actually be more useful than the E&E for this purpose. Since none of the principles or concepts are particularly difficult, this is going to be an exam in which meticulous attention to detail will win the day. Include traditional approaches in the outline.
Property:
There is a lot of reading left to do in preparation for class, and unfortunately, this reading is necessary in order to be able to understand all the points in class. This reading is further complicated by the fact that some of the material is relatively simple and straightforward, whereas other material is complex. In addition, some of the material is technical and rule-based, whereas other aspects of the reading is based heavily on policy analysis. Finally, the exam for this course is an 8 hour take home exam. I definitely need to outline the interests in real property, shared ownership, marital property, and the rule against perpetuities. I should probably outline the other material too--just broadly mention all of the conflicts and arguments and cull out as many rules as I can find. This could be a time-consuming process. Understanding Property should be a useful resource in organizing the material.
Legal Practice:
Only one thing to do here: OPEN MEMO. I have to write the most badass memo of all time. This will require further research, extensive outlining, drafting, thinking, and editing.
Legal Research:
EXAM on friday! Top priority for this week. The upside is that there is a finite amount of material. The downside is that the professor was terrible and I don't understand a lot of it. Another downside is that the curve will be brutal, so I have to know the esoteric weird hard stuff in addition to the regular course material.
These are the obstacles that I will need to overcome to successfully complete my tasks:
a) Efficiency. It takes me too long to do my reading for Contracts. I need to read the case summary online, write a paragraph by paragraph summary of the significant reasoning in the opinion, write up a quick brief, and then move on. This should not take more than 30-45 minutes per case. No more inactive reading. Everything I read should be read with the goal of producing a written document containing the important rules and principles that the court applies to the case facts. If there is something I do not understand, just write it down and move on, and I can try to gain insight either in class, in the hornbook, in the E&E, or else it isn't that important. I don't have all day to accomplish all of the assignments that are due the next day. I need to be working ahead so that I have time to review and outline. I don't get to rest until I have accomplished everything written above.
b) Energy/Focus. Lately, I have been having situations where I come home and don't feel like doing work, so I sit at the computer and read the NY Times or spend an hour cooking, or whatever. Other times, I will actually have the book open, but I'll just stare at the words on the page without any understanding of what I'm supposed to be learning and no energy to figure it out. I have several ideas for remedies. First, remember that the law is fascinating. All of the courses I am taking are introductory classes, so if I think I am being exposed to endless detail and boring facts, then I am mistaken. Think of how much fun Introduction to Philosophy was in comparison to Metaphysics or Computational Models of Consciousness. Second, get 8 hours of sleep every single night, no matter what! An hour of study conducted with a well-rested mind is probably twice as productive as two hours of study done on a half-tank of sleep. Plus, its easier to study longer. Third, continue to remain logged off of gchat. I've been a lot more productive since I signed off.
I need to be more self-conscious in my studying, just as I am when practicing saxophone. Be conscious of limitations, and work to improve them, rather than just sticking with the easy stuff so that I can feel smart about myself.
Wednesday, November 4, 2009
Disclosure and Informed Consent
Our Property professor told us on Tuesday that the reason why we are taught Torts, Contracts, and Property all in the same semester is that these are the substantive law courses, and we are encouraged to see the connections between these legal classifications. Torts and Contracts have just intersected at Informed Consent Street and Non-Disclosure Avenue.
"The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure." Michigan Court of Appeals, 2005
"In a bargaining transaction there is generally no duty to disclose information." Calamari & Perillo, Contracts
Of course, this Contracts text notes that informed consent in medicine is an exception to this general principle. But I believe it may be valuable to examine the different perspectives that Torts and Contracts bring to this disclosure table.
When two parties are negotiating a contract for a business contract, information and beliefs about that information are driving forces. One party to the transaction has knowledge and beliefs about the subject matter of the bargain that induce it to offer something in exchange that that party believes to be of lesser value. The other party either has different knowledge, different beliefs, or both about the same subject matter, or else neither party would agree to a bargain. Put more simply, each party must believe that they are offering something less valuable than what they are receiving, or else neither party would agree to the transaction. Two people who had the exact same knowledge and valuation of the objects in the universe would never be able to bargain with one another.
Thus, it often happens that one party, through superior knowledge and value-analysis, is able to obtain something valuable by offering something that is less valuable. For example, if I have good reason to believe that Apple stock is underpriced, and I offer the market price, then the person who sells me the Apple stock will suffer a loss if my information is accurate. Am I obligated to inform the owner of the Apple stock of whatever superior financial analysis led me to my accurate belief that Apple is underpriced? Of course not! Now, if I had insider information, this transaction would be fraud. Note where the lines are drawn in financial transactions between acceptable and criminal non-disclosure.
In the field of medicine, there is also a line between acceptable and malfeasant non-disclosure. "The extent to which [a doctor] must share . . . information with his patient depends upon what information he should reasonably recognize is material to the plaintiff's decision. 'Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.'" Basically, a doctor must disclose any medical information that might induce a reasonable patient to accept or decline treatment. The doctor does not need to disclose information about what he will be wearing during the operation, or a possible 3 minute hiccup side effect, or the risk that one of the nurses will be rude.
This line is certainly not the line used in contract negotiations. Imagine if an real estate broker was obligated to tell a seller of land in Texas the name and telephone number of a Colombian family that was willing to pay double the asking price to use the land for a supermarket? The broker's hard work in locating the Colombian entrepeneur and seller and arranging the transaction would all be for naught. Is there any chance that there is a similar infringement of the doctor's right to retain the economic benefits of his non-disclosure? After all, if a doctor were allowed to stay silent about unlikely risks of catastrophic side effects, then that doctor might find more patients willing to undergo expensive procedures.
But "NO!" exclaims the concerned consumer. Not so fast. There is a societal benefit to doctors informing their patients of the risks of surgery. Patients have a right to autonomy which is undermined when they are not given the information necessary to make decisions affecting their health.
Fair enough. But consider a second argument: It would be unconscionable for a doctor to become enriched at the cost of his patients' health; the doctor would be unjustly enriched by his non-disclosure. This seems reasonable as well, does it not? But why not extend this reasoning to the case of the real estate broker. Isn't it unjust that the seller in Texas would miss out on double his profits by selling directly to the Colombian? And isn't it unjust that the Colombian should pay twice what the seller is offering for the land in Texas? Both of these parties are hurt economically by the broker's non-disclosure, and the economic detriment has health consequences. What if the sellers in Texas are unable to afford a needed operation because they needlessly sold their land at a lower price?
One solution to this conflict is that the difference between the doctor and the broker is distinguishable by the special relationship between the doctor and the patient that does not exist between the broker and the seller. A doctor has a duty to "do no wrong." The doctor has a conflict of interest, whereas the broker has no conflict of interest. The broker has only one interest: economic selfishness.
We'll see if my future studies shed any new light on this conflict.
"The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure." Michigan Court of Appeals, 2005
"In a bargaining transaction there is generally no duty to disclose information." Calamari & Perillo, Contracts
Of course, this Contracts text notes that informed consent in medicine is an exception to this general principle. But I believe it may be valuable to examine the different perspectives that Torts and Contracts bring to this disclosure table.
When two parties are negotiating a contract for a business contract, information and beliefs about that information are driving forces. One party to the transaction has knowledge and beliefs about the subject matter of the bargain that induce it to offer something in exchange that that party believes to be of lesser value. The other party either has different knowledge, different beliefs, or both about the same subject matter, or else neither party would agree to a bargain. Put more simply, each party must believe that they are offering something less valuable than what they are receiving, or else neither party would agree to the transaction. Two people who had the exact same knowledge and valuation of the objects in the universe would never be able to bargain with one another.
Thus, it often happens that one party, through superior knowledge and value-analysis, is able to obtain something valuable by offering something that is less valuable. For example, if I have good reason to believe that Apple stock is underpriced, and I offer the market price, then the person who sells me the Apple stock will suffer a loss if my information is accurate. Am I obligated to inform the owner of the Apple stock of whatever superior financial analysis led me to my accurate belief that Apple is underpriced? Of course not! Now, if I had insider information, this transaction would be fraud. Note where the lines are drawn in financial transactions between acceptable and criminal non-disclosure.
In the field of medicine, there is also a line between acceptable and malfeasant non-disclosure. "The extent to which [a doctor] must share . . . information with his patient depends upon what information he should reasonably recognize is material to the plaintiff's decision. 'Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.'" Basically, a doctor must disclose any medical information that might induce a reasonable patient to accept or decline treatment. The doctor does not need to disclose information about what he will be wearing during the operation, or a possible 3 minute hiccup side effect, or the risk that one of the nurses will be rude.
This line is certainly not the line used in contract negotiations. Imagine if an real estate broker was obligated to tell a seller of land in Texas the name and telephone number of a Colombian family that was willing to pay double the asking price to use the land for a supermarket? The broker's hard work in locating the Colombian entrepeneur and seller and arranging the transaction would all be for naught. Is there any chance that there is a similar infringement of the doctor's right to retain the economic benefits of his non-disclosure? After all, if a doctor were allowed to stay silent about unlikely risks of catastrophic side effects, then that doctor might find more patients willing to undergo expensive procedures.
But "NO!" exclaims the concerned consumer. Not so fast. There is a societal benefit to doctors informing their patients of the risks of surgery. Patients have a right to autonomy which is undermined when they are not given the information necessary to make decisions affecting their health.
Fair enough. But consider a second argument: It would be unconscionable for a doctor to become enriched at the cost of his patients' health; the doctor would be unjustly enriched by his non-disclosure. This seems reasonable as well, does it not? But why not extend this reasoning to the case of the real estate broker. Isn't it unjust that the seller in Texas would miss out on double his profits by selling directly to the Colombian? And isn't it unjust that the Colombian should pay twice what the seller is offering for the land in Texas? Both of these parties are hurt economically by the broker's non-disclosure, and the economic detriment has health consequences. What if the sellers in Texas are unable to afford a needed operation because they needlessly sold their land at a lower price?
One solution to this conflict is that the difference between the doctor and the broker is distinguishable by the special relationship between the doctor and the patient that does not exist between the broker and the seller. A doctor has a duty to "do no wrong." The doctor has a conflict of interest, whereas the broker has no conflict of interest. The broker has only one interest: economic selfishness.
We'll see if my future studies shed any new light on this conflict.
Friday, October 30, 2009
Misrepresentation, Mistake, Fraud, Etc.
Hypotheticals of the day:
1) S is an amateur gem collector at a gem collectors' convention who has a basket full of stones with a sign in front saying "$15 each." B is a professional jeweler with years of experience. As B rummages through the basket, he finds a stone, looks at it closely, and says, "$15??!" S thinks to himself, "oh shit, this asshole is going to try to bargain with me."
"Well, that's not the nicest looking stone in the basket. I'll give it to you for $10," says S.
B takes out two wrinkled $5 bills and pays. The stone turns out to have been the world's largest sapphire and is worth 3 million dollars. Can S get the stone back?
What if S and B both thought that the stone was a diamond worth $1,000, but it turned out to be a topaz worth only $5. Or it turned out to be a flawed diamond? Can B get his money back after he's paid for it?
Some rules/principles to guide us:
Sherwood v. Walker: If there is a mistake about a material fact and both parties are mistaken at the time the contract is executed, then the contract may be avoided. If there is a mistake about the value of the item, then there is no relief, so long as value is a subjective belief about what the price should be given all the facts that either are known or could be known.
Lawson v. Citizens & Southern Nat'l Bank: "Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser, the vendor [of real estate] is bound to disclose such facts and make them known to the purchaser."
Whenever there is a fraudulent transaction under which the aggrieved party would have a tort action for deceit, the aggrieved party may elect to avoid the transaction and claim restitution. However, even if there is no viable tort action for deceit, the transaction may still be voidable if certain elements of misrepresentation or non-disclosure are proved. In other words, there are lower standards for voiding the contract than there are for recovering damages on a tort claim for fraud.
In an unintentional misrepresentation, voidability usually requires that the misrepresentation be about a material fact. A fact is material whenever the misrepresentation would be likely to affect the conduct of a reasonable person or if "the maker of the representation knows that the recipient is likely to regard the fact as important" although a reasonable person would not.
Where the misrepresentation is intentional, the misrepresented fact does not need to be objectively material; rather, it is a subjective standard that has more to do with whether the deceived party was induced by the misrepresentation, rather than whether any reasonable third party would have been induced by the misrepresentation. In this way, it is much easier to satisfy the materiality element for an intentional misrepresentation.
UCC: An affirmation, statement, opinion or commendation as to the value of the goods does not create a warranty on the seller.
An opinion does not count as a representation, but there are a number of exceptions/factors that make this principle less powerful: "1) where there is a relationship of trust and confidence between the parties, 2) the representor is or claims to be an expert 3) the representor has superior access to knowledge."
Laidlaw v. Organ: In a bargaining transaction there is generally no duty to disclose information.
Exceptions to this rule:
1) statutory regulations (specific situations in which the information can only be obtained by extremely expressive means and the non-disclosure took the form of false or misleading statements).
2) Concealment: intentional hiding of the truth through positive action is not allowed.
3) partial disclosure: leaving out important details of a disclosure is fraudulent.
4) When a true statement becomes no longer true, there is a duty to disclose that the statement is no longer true.
-Historical view: "A sound price warrants a sound commodity." (implied warranty if the item sold doesn't end up reflecting its price)
-Less historical view: caveat emptor
-Modern view: Older view prevails for "latent defects in consumer transactions and single family housing," whereas caveat emptor remains in place for commercial realty and transactions between merchants.
5) Nature of the transaction: Suretyship and insurance require broad duties of disclosure.
6) Relationship between the parties: "Whenever one party to a transaction justifiably believes the other is looking out for his or her interests, a duty of disclosure arises."
2) S owns a tract of land that has a market value of $50,000. B has private knowledge that a developer plans to build a mall across the street that will make the land worth $500,000. B makes a contract to buy the land from S, to be closed on November 15th. On November 14th, the plans to develop the mall are made public. Can S rescind the contract?
What if the plans are made public on November 16th. Can S recover the land?
1) S is an amateur gem collector at a gem collectors' convention who has a basket full of stones with a sign in front saying "$15 each." B is a professional jeweler with years of experience. As B rummages through the basket, he finds a stone, looks at it closely, and says, "$15??!" S thinks to himself, "oh shit, this asshole is going to try to bargain with me."
"Well, that's not the nicest looking stone in the basket. I'll give it to you for $10," says S.
B takes out two wrinkled $5 bills and pays. The stone turns out to have been the world's largest sapphire and is worth 3 million dollars. Can S get the stone back?
What if S and B both thought that the stone was a diamond worth $1,000, but it turned out to be a topaz worth only $5. Or it turned out to be a flawed diamond? Can B get his money back after he's paid for it?
Some rules/principles to guide us:
Sherwood v. Walker: If there is a mistake about a material fact and both parties are mistaken at the time the contract is executed, then the contract may be avoided. If there is a mistake about the value of the item, then there is no relief, so long as value is a subjective belief about what the price should be given all the facts that either are known or could be known.
Lawson v. Citizens & Southern Nat'l Bank: "Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser, the vendor [of real estate] is bound to disclose such facts and make them known to the purchaser."
Whenever there is a fraudulent transaction under which the aggrieved party would have a tort action for deceit, the aggrieved party may elect to avoid the transaction and claim restitution. However, even if there is no viable tort action for deceit, the transaction may still be voidable if certain elements of misrepresentation or non-disclosure are proved. In other words, there are lower standards for voiding the contract than there are for recovering damages on a tort claim for fraud.
In an unintentional misrepresentation, voidability usually requires that the misrepresentation be about a material fact. A fact is material whenever the misrepresentation would be likely to affect the conduct of a reasonable person or if "the maker of the representation knows that the recipient is likely to regard the fact as important" although a reasonable person would not.
Where the misrepresentation is intentional, the misrepresented fact does not need to be objectively material; rather, it is a subjective standard that has more to do with whether the deceived party was induced by the misrepresentation, rather than whether any reasonable third party would have been induced by the misrepresentation. In this way, it is much easier to satisfy the materiality element for an intentional misrepresentation.
UCC: An affirmation, statement, opinion or commendation as to the value of the goods does not create a warranty on the seller.
An opinion does not count as a representation, but there are a number of exceptions/factors that make this principle less powerful: "1) where there is a relationship of trust and confidence between the parties, 2) the representor is or claims to be an expert 3) the representor has superior access to knowledge."
Laidlaw v. Organ: In a bargaining transaction there is generally no duty to disclose information.
Exceptions to this rule:
1) statutory regulations (specific situations in which the information can only be obtained by extremely expressive means and the non-disclosure took the form of false or misleading statements).
2) Concealment: intentional hiding of the truth through positive action is not allowed.
3) partial disclosure: leaving out important details of a disclosure is fraudulent.
4) When a true statement becomes no longer true, there is a duty to disclose that the statement is no longer true.
-Historical view: "A sound price warrants a sound commodity." (implied warranty if the item sold doesn't end up reflecting its price)
-Less historical view: caveat emptor
-Modern view: Older view prevails for "latent defects in consumer transactions and single family housing," whereas caveat emptor remains in place for commercial realty and transactions between merchants.
5) Nature of the transaction: Suretyship and insurance require broad duties of disclosure.
6) Relationship between the parties: "Whenever one party to a transaction justifiably believes the other is looking out for his or her interests, a duty of disclosure arises."
2) S owns a tract of land that has a market value of $50,000. B has private knowledge that a developer plans to build a mall across the street that will make the land worth $500,000. B makes a contract to buy the land from S, to be closed on November 15th. On November 14th, the plans to develop the mall are made public. Can S rescind the contract?
What if the plans are made public on November 16th. Can S recover the land?
Wednesday, October 28, 2009
Two Tort Problems
Problem 1: I am driving my car and negligently cause my car to veer off the road. I am injured in the ensuing accident. During my subsequent medical care, the doctor negligently exacerbates my injuries. Could the doctor claim that I was contributorily negligent?
If my car accident is caused by another driver's negligence, then that driver is liable for any subsequent injuries I suffer as a result of negligent medical care. The reasoning for holding the negligent driver liable for the doctor's negligence is that negligent medical care is a foreseeable consequence of causing injury to someone. At the same time, there are undesirable consequences if doctors are not held liable for their negligent care when the patient’s negligence is responsible for being in the hospital. We do not want doctors to be more careful with patients who did not cause their injuries.
If another driver is liable for all of my ensuing injuries, doesn’t that remove the incentive for the doctor to exercise full diligence?
My professor explains: In the case of the negligent driver who causes my injuries, that driver is held liable for all of my injuries, true. BUT, the negligent driver would then be able to bring suit against the negligent doctor for malpractice (to be reimbursed for whatever he is held liable to the plaintiff). This puts the burden on the negligent driver to prove that the doctor committed malpractice, which is a significant burden given the difficulty of proving malpractice cases. This arrangement is similar to the joint-several liability damages scheme in other torts where there are several negligent defendants, but it is easier for the plaintiff to prove the claim against one of the defendants (any of the negligent defendants can be held liable for 100% of the damages, but then that defendant can bring a counter-suit against the other defendants for reimbursement). So the doctor still is held accountable for negligence to same extent as if he/she was treating a patient whose injuries were not negligently caused. It is appropriate for the negligent driver to bear the burden of proving malpractice, because if the doctor didn’t cause the ensuing injuries, then the injuries must have been caused by the negligent driver’s original act of negligence!
In light of all this, is it appropriate for a doctor to invoke comparative fault and claim contributory negligence on a patient whose negligence caused him to be under the doctor’s foresee-ably negligent care? Why is a doctor’s negligence “foreseeable” when another negligent driver necessitates the medical treatment, but it isn’t “foreseeable” when I am the one who negligent caused the medical emergency?
Problem 2: Jack drives drunk and is killed when his car veers off the road and crashes into a tree. It is later found that the manufacturer of the car negligently designed it in such a way that the car would crumple under pressure; but for the negligent design of the car, Jack would have survived the crash relatively unharmed. Can the manufacturer claim that Jack was contributorily negligent by driving drunk? Traditionally, the law held that a plaintiff's illegal activity precluded any claim for a defendant's negligence. But under a comparative fault system, in which proportioning the negligence between the plaintiff and defendant is allowed, should this preclusion still hold?
If my car accident is caused by another driver's negligence, then that driver is liable for any subsequent injuries I suffer as a result of negligent medical care. The reasoning for holding the negligent driver liable for the doctor's negligence is that negligent medical care is a foreseeable consequence of causing injury to someone. At the same time, there are undesirable consequences if doctors are not held liable for their negligent care when the patient’s negligence is responsible for being in the hospital. We do not want doctors to be more careful with patients who did not cause their injuries.
If another driver is liable for all of my ensuing injuries, doesn’t that remove the incentive for the doctor to exercise full diligence?
My professor explains: In the case of the negligent driver who causes my injuries, that driver is held liable for all of my injuries, true. BUT, the negligent driver would then be able to bring suit against the negligent doctor for malpractice (to be reimbursed for whatever he is held liable to the plaintiff). This puts the burden on the negligent driver to prove that the doctor committed malpractice, which is a significant burden given the difficulty of proving malpractice cases. This arrangement is similar to the joint-several liability damages scheme in other torts where there are several negligent defendants, but it is easier for the plaintiff to prove the claim against one of the defendants (any of the negligent defendants can be held liable for 100% of the damages, but then that defendant can bring a counter-suit against the other defendants for reimbursement). So the doctor still is held accountable for negligence to same extent as if he/she was treating a patient whose injuries were not negligently caused. It is appropriate for the negligent driver to bear the burden of proving malpractice, because if the doctor didn’t cause the ensuing injuries, then the injuries must have been caused by the negligent driver’s original act of negligence!
In light of all this, is it appropriate for a doctor to invoke comparative fault and claim contributory negligence on a patient whose negligence caused him to be under the doctor’s foresee-ably negligent care? Why is a doctor’s negligence “foreseeable” when another negligent driver necessitates the medical treatment, but it isn’t “foreseeable” when I am the one who negligent caused the medical emergency?
Problem 2: Jack drives drunk and is killed when his car veers off the road and crashes into a tree. It is later found that the manufacturer of the car negligently designed it in such a way that the car would crumple under pressure; but for the negligent design of the car, Jack would have survived the crash relatively unharmed. Can the manufacturer claim that Jack was contributorily negligent by driving drunk? Traditionally, the law held that a plaintiff's illegal activity precluded any claim for a defendant's negligence. But under a comparative fault system, in which proportioning the negligence between the plaintiff and defendant is allowed, should this preclusion still hold?
Friday, October 23, 2009
History and the Law
We are not learning the way things are. We are learning where the law has come from. As Oliver Holmes put it, the law consists of predictions about what courts will do. This conception of law has deep implications for its study.
There are those who emphasize their attention on legal principles and analysis of the intricacies of issues that are presented by particular fact patterns. Those who subscribe to this method are pragmatists who want to learn only the information that will be on their test. Their method involves identifying material that will yield points on an exam, and, more importantly, ignoring material that will not be tested on the exam. There is much to be said for such a technique while a 1L. Grades reign supreme at this stage.
If only there was a list of material that will be tested, and a list of material that will not! In the absence of such a list, a student who wishes to only focus on tested material will have to rely on his/her ability to distinguish these two categories of information from each other. And what basis does the 1L have for distinguishing? None!
But there is something similar to this imaginary list of tested material--history. Almost all of the major principles and rules of the common law are over 300 years old, and students and academics have been grappling with the issues presented by them for at least this long. By studying the evolution and historical debates of the laws (including the study of laws that are obsolete), one gets an intuitive sense of which sorts of problems are more intractable than others. In addition, one sees the analytical tools of legal scholarship in action. More importantly, one is able to see the professor presenting problems of legal history, so that one gets an intuitive sense of which sorts of problems are of most interest to a professor.
Reading cases is not enough. Each case is a treasure trove of arguments, disputes and sub-issues, each of which is fodder for future exam questions. The key is to dig through history and collect each important issue and organize it into a functional history. The diligent reader must not be allowed to passively read each case, guess at the general jist of the issue, and copy and paste the most authoritative line of the opinion into the "reasoning" section of a brief. It does not have to take a long time, but it must be done right. There are no answers in the opinions, but there are tons of questions.
And each of these questions is worth a point on the exam. Hopefully, this blog will help me to practice articulating the questions presented in each case.
There are those who emphasize their attention on legal principles and analysis of the intricacies of issues that are presented by particular fact patterns. Those who subscribe to this method are pragmatists who want to learn only the information that will be on their test. Their method involves identifying material that will yield points on an exam, and, more importantly, ignoring material that will not be tested on the exam. There is much to be said for such a technique while a 1L. Grades reign supreme at this stage.
If only there was a list of material that will be tested, and a list of material that will not! In the absence of such a list, a student who wishes to only focus on tested material will have to rely on his/her ability to distinguish these two categories of information from each other. And what basis does the 1L have for distinguishing? None!
But there is something similar to this imaginary list of tested material--history. Almost all of the major principles and rules of the common law are over 300 years old, and students and academics have been grappling with the issues presented by them for at least this long. By studying the evolution and historical debates of the laws (including the study of laws that are obsolete), one gets an intuitive sense of which sorts of problems are more intractable than others. In addition, one sees the analytical tools of legal scholarship in action. More importantly, one is able to see the professor presenting problems of legal history, so that one gets an intuitive sense of which sorts of problems are of most interest to a professor.
Reading cases is not enough. Each case is a treasure trove of arguments, disputes and sub-issues, each of which is fodder for future exam questions. The key is to dig through history and collect each important issue and organize it into a functional history. The diligent reader must not be allowed to passively read each case, guess at the general jist of the issue, and copy and paste the most authoritative line of the opinion into the "reasoning" section of a brief. It does not have to take a long time, but it must be done right. There are no answers in the opinions, but there are tons of questions.
And each of these questions is worth a point on the exam. Hopefully, this blog will help me to practice articulating the questions presented in each case.
Corbin v. Williston
Williston: The written agreement has a unique and powerful force of influence. To the extent that the written agreement is clear in meaning to a reasonable person, that written agreement is the superseding force that dictates the terms of the contract (to the exclusion of parol evidence to the contrary). FOCUS: The integration practices of reasonable persons acting normally and naturally.
Corbin: The written agreement only contains the unique and powerful force when the parties intend the agreement to have such a force at the time the written agreement is executed. If there is compelling evidence that one of the parties did not intend for the written agreement to be the final say on the matter, then that evidence must be considered by a jury if the evidence is sufficiently compelling. FOCUS: The intention of the parties.
The UCC § 2-202 sides with Corbin. Why? How does this section go about determining evidence of intent? Isn't the whole point of the Parol Evidence Rule to grant evidentiary weight to objective written agreements over squirrely subjective issues like intent?
Corbin: The written agreement only contains the unique and powerful force when the parties intend the agreement to have such a force at the time the written agreement is executed. If there is compelling evidence that one of the parties did not intend for the written agreement to be the final say on the matter, then that evidence must be considered by a jury if the evidence is sufficiently compelling. FOCUS: The intention of the parties.
The UCC § 2-202 sides with Corbin. Why? How does this section go about determining evidence of intent? Isn't the whole point of the Parol Evidence Rule to grant evidentiary weight to objective written agreements over squirrely subjective issues like intent?
Topics in Parol Evidence
When is a term "inconsistent" with the written agreement? Hunt Food v. Doliner: "In a sense any oral provision which would prevent the ripening of the obligations of a writing is inconsistent with the writing. But that obviously is not the sense in which the word is used . . . To be inconsistent the term must contradict or negate a term of the writing. A term or condition which has a lesser effect is provable."
Under what circumstances will a court decide that it is "natural" for a term not to be embodied in the writing?
Under what circumstances will a court decide that a written agreement is fully integrated rather than a partial integration?
Under what circumstances will a court decide that it is "natural" for a term not to be embodied in the writing?
Under what circumstances will a court decide that a written agreement is fully integrated rather than a partial integration?
Thursday, October 22, 2009
Judicial Interpretation of Statutes Codifying Common Law
After quoting Oregon's statutory codification of the Parol Evidence Rule, Howell (C. J. of Oregon Sup. Ct., 1978) notes:
"This court, however, has never read the statute in such a manner, but instead has treated the statute as a codification of the common law parol evidence rule . . . Although [our] decisions may be inconsistent with a literal reading of the statute, which has been in effect since 1862, they can be justified under the general rule that statutes codifying the common law are to be construed in a manner consistent with the common law . . ."
Fascinating. What if a legislature wants to overturn judicial precedent by deliberately codifying a common law rule in a manner that is inconsistent with the precedent? A legislature must be careful in drafting a bill to make sure that it explicitly states its intent if it conflicts with judicial precedent.
"This court, however, has never read the statute in such a manner, but instead has treated the statute as a codification of the common law parol evidence rule . . . Although [our] decisions may be inconsistent with a literal reading of the statute, which has been in effect since 1862, they can be justified under the general rule that statutes codifying the common law are to be construed in a manner consistent with the common law . . ."
Fascinating. What if a legislature wants to overturn judicial precedent by deliberately codifying a common law rule in a manner that is inconsistent with the precedent? A legislature must be careful in drafting a bill to make sure that it explicitly states its intent if it conflicts with judicial precedent.
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