Second Update!

No, hell has not frozen over! I'm back already, with an exciting update. About 4 hours ago I received a job offer, which I accepted, to work at a law office! At $15/hr I should have my $80,000 (and rising) student debt paid of in no time!

Grades are back, I ended up in the top 15%. It's not as high as I had hoped, but at least it's still respectable.


Thanks to everyone for all the support!

Been gone a while...

I've been away a while because I've been busy looking for a job. Although I've secured an internship and volunteer position, I still haven't found a job :(

How's everyone else's school finishing?

Done with my first year!

These last 4? days have been a drunken haze :( Will post more information in the next day

One exam left!

Just one more exam (Thursday) and I'll be done with my first year of law school. Sorry for not posting any real material in a while, it's been quite busy here. For anyone that's interested, here's (part of) my Civil Procedure class outline (it's 15 pages, so I'll post it in chunks. Now you can enjoy all the benefits of a first year civil procedure class, without incurring massive debt!

This first part deals with personal jurisdiction (the courts power to call a non-resident into court).

Personal Jurisdiction

·         Due process

o   Minimum Contacts

§  International Shoe: Delaware company employed 11-13 salesmen who resided in WA; rented sample rooms for the workers; paid the salesmen’s’ commissions in WA; products (shoes) were shipped to WA. Even though company didn’t have any offices or make contracts for sale there nor store merchandise there.

·         Holding: Defendant must have certain “minimum contacts” with the forum state to be subject to jurisdiction there.

·         Defendant received the benefit and protection of the laws of Washington

·         JDX: Proper

§  World-Wide Volkswagen: Car was sold in New York; family was traveling to Arizona, car accident in Oklahoma. No advertisements calculated to reach there, did not business there, no agent to receive process there.

·         Holding: May have been foreseeable, but foreseeability alone is never enough. Did not purposefully avail themselves. Contacts must be sufficient as that maintenance of the suit does not “offend traditional notions of fair play and substantial justice”

·         Unilateral activity of the purchaser to take the vehicle into a different  area

·         The marginal amount of revenue that was derived from one sale is too insignificant to justify upholding jurisdiction here.          

·         Foreseeability: Defendant should have reasonably anticipated being hauled into court there

·         Purposeful availment: Defendant “purposefully avails” itself of the privilege of conducting activities within the forum state. Defendant does something to have clear notice of being subject to suit.

·         JDX: Not proper

§  Keeton: Woman, NY resident, sues Hustler, an Ohio corporation HQ’d in California in New Hampshire.

·         The magazine’s regular circulation of magazines in the forum state is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine since regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous.

·         Although Keeton was unknown in New Hampshire, the state still has an interest in employing its libel laws to discourage the deception of its citizens. Further substantial interest in abiding by the single publication rule which preserves judicial resources nationwide by prohibiting multiple libel actions against the same defendant in different states.

§  Asahi: Taiwanese manufacturer of a motorcycle part sought indemnification from Japanese manufacturer.

·         Reasonableness Test: Reasonableness exercise of jurisdiction will depend on an analysis of several factors

o   Burden on the defendant

o   Interest of the forum state

o   Plaintiff’s interest in obtaining relief

o   Interstate judicial system’s interest in obtaining the most efficient resolution of controversies

o   Shared interests of the several states in furthering fundamental substantive social policies

·         O’Connor: Additional conduct is required than just stream of commerce theory, creates a “stream of commerce plus” theory, in which the actions must be purposefully directed at the forum state

o   Additional Conduct: Specifically tailoring the products for the forum state, advertising in the forum state, or creating a service line for the forum state

·         Brennan: As long as the producer is aware that the final product is being marketed in the forum state, it should be subject to jurisdiction. The producer is receiving an economic benefit, and an indirect benefit from the protection of the laws of the state.

·         JDX: Not proper

§  Burger King: Two individuals (Michigan) enter into a 20 year contract with Burger King (Florida). The payments were sent to Florida, Florida was the head office, and defendants knew that the Florida office was the only one with authority. The individuals were sophisticated actors.

·         Holding: As long as the actor’s efforts are purposefully directed toward residents of another state, the absence of physical presence cannot defeat jurisdiction. Defendant reached out beyond state borders to negotiate a 20 year contract.

·         The foreseeability that is critical to the minimum contacts analysis is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being hauled into court there.

·         JDX: Proper

§  Shaffer: Greyhound bus case. Plaintiffs attempted to get jurisdiction over the defendants by getting jurisdiction over their property. Defendants accepted positions of officers and directors for a Delaware corporation.

·         Holding: Simply by accepting positions as officers and directors does not mean that the defendants purposefully availed themselves of Delaware law. All assertions of state court jurisdiction must conform to a minimum contacts analysis.

·         If the litigation is related to the property, there is a good chance that JDX can be obtained.

·         JDX: Not proper

§  Burnham: Divorce case, couple is married in New Jersey, wife moves to California. When the husband visits California to see his kids, is served by the wife.

·         Scalia: Defendant is subject to personal jurisdiction in any state which he is served. This is true because it is fundamental to American jurisprudence. Shaffer didn’t mean that all state court assertions of jurisdiction must be subject to a minimum contact analysis, this is the exception.

·         Brennan: Should be subject to personal jurisdiction, but it shouldn’t be because of tradition. The defendant received the fruits of the California economy and the protection of its laws. Defendant has already traveled there once; traveling there again (to defend against the suit) will likely not be burdensome

o   Should conduct an independent inquiry into the fairness of subjecting the defendant to jurisdiction in the forum state.

§  Zippo: Website jurisdiction, sought to sue a website for trademark dilution. Sold passwords to 3,000 residents, If the risk is too great they can sever ties with the forum state.

·         Repeatedly chose to process subscriptions from Pennsylvania. Unlike World-Wide Volkswagen, because Zippo had reason to know of the local of its subscribers. If a subscription for NJ was taken to NY on a laptop, then there would be no jurisdiction.

·         Holding: Three levels of activity of websites

o   Active: Situations where the defendant clearly does business over the internet. If the defendant enters into contracts with residents of foreign jurisdictions that involve the knowing and repeated transmission of computer files over the internet, JDX is proper.

o   Interactive: Where a user can exchange information with the host computer. Jurisdiction is determined by the level of interactivity and the commercial nature of the exchange of information.

o   Passive: No jdx, simply posing information on the internet.

·         JDX: Proper

§  uBid: Complaint arises from cyber squatting, where users would buy domain names so companies could not use them. Go daddy had an extensive marketing campaign, with advertisements in major sports arenas, hundreds of customers from forum state, derives millions in revenue from forum state.

·         Holding: Godaddy purposefully availed itself of the laws of the forum state.

·         Doesn’t matter that the payments are automatically processed, because uBid set the system up that way, so that the payments would be processed automatically. Thus, the argument that they had no idea where their customers were from fails.

·         JDX: Proper

o   Relatedness

§  Are the contacts related to the suit?

o   Fairness

§  Burden on the defendant

§  Interest of the forum state

§  Plaintiff’s interest in obtaining relief

§  Interstate judicial system’s interest in obtaining the most efficient resolution of controversies

§  Shared interests of the several states in furthering fundamental substantive social policies

·         Kulco: Allowed the dad to visit his kids with his ex-wife.

·         Presence: Being physically present in the state

o   Burnham

·         Consent: Consenting to being subjected to personal jurisdiction in the forum state.

o   Carnival Cruise: Couple (WA residents) goes on a cruise (FL Company); old lady falls and injures her leg-region.  Attempts to sue the cruise line. Forum selection clause on the back of the ticket ruins their day.

§  Forum selection clauses are ok.

·         Waiver of Due Process Rights:

o   Szukhent: Waiver of service of process requirements is O.K.

§  Doesn’t matter if there was a potential for bad service, only whether bad service actually occurred.

Week One Done!

No more Contracts or Property for me! Now I get to spend the weekend studying for Civil Procedure and Torts ;( Four-hour exams aren't fun.....

Thanks for all the support, best of luck to anyone else taking exams!

Exams starting!

First exam tomorrow! Good luck to anyone else taking exams.

Will post updates on how they go, but probably not much more than that.

...Can't wait until May 12th.

Contracts review: Enforceability + Consideration

Phew, with just 5 days until my Contracts final, i present you part 1 of my class outline ;)

Principals of enforceability:

·         Party-based

o   Will principle: Commitments are enforceable because the party has willed or freely chosen to be bound by the commitment.

§  Limitation: Inquiry into the subjective state of mind of the promisor.

o   Reliance principle: Based on the theory that we ought to be liable for harm caused by our verbal behavior.

§  Limitation: Determining whether a person has reasonably relied upon a promise depends on what most people would do.

o   Restitution principle: Seeks to prevent unjust enrichment of a promisor who seeks to go back on their word.

§  Limitation: Applies only to unjust enrichment, thus more narrow than previous two principles

·         Standard-based

o   Efficiency principle: Do the benefits exceed the cost? Can interpret contracts generally (law as a whole) or particularly (individually).

§  Limitation: Can observers ever have information about value-enhancing exchanges independent of the demonstrated preference of the market participants? If such information is available, why bother with contract law at all?

o   Fairness principle: Attempts to evaluate the substance of the transaction to see if it is fair.

§  Limitation: Presupposes a standard of value by which the substance of an agreement can be objectively measured.

·         Process-based

o   Bargain principle: To constitute consideration, a performance or return promise must be bargained for.

§  Advantage: Existence of a bargain is evidence that parties intended to be bound.

§  Limitation: Does nothing for promises to keep offers open, promises to release a debt, promises to modify an obligation, etc.

Consideration:

·         Distinguish from gratuitous promises: Gift promises, only effective upon actual delivery of the thing that was promised. They are revocable any time before delivery.

o   Johnson v. Otterbein University: $100 donation to university

·         Bargain theory: A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise, and is given by the promisee in exchange for that promise.

o   Kirksey v. Kirksey: Sister Antillico

o   Performance: May be an act other than a promise; forbearance; the creation, modification, or destruction of a legal relation.

o   Performance may be given to a third person. May be given by a third person

·         Detriment: The abandonment of a legal right, or refraining from exercising a legal right by one party. Must be induced by the other promise.

o   Hamer v. Sidway: Nephew gives up drinking

·         Past consideration: Past consideration cannot serve as the requirement for consideration; unless the parties had previously agreed that the performance was rendered with the understanding that compensation was made. What was done as a mere favor cannot be later turned into consideration.

o   Moore v. Elmer: Clairvoyant prediction man will die before 1900.

·         Moral consideration: For moral obligation to be sufficient consideration there must have been some pre-existing obligation, which has become inoperative by positive law. Is acceptable when a material benefit is received.

o   Permissible: Debts barred by statute of limitations, debts incurred by infants, and debts of bankrupts.

o   Mills v. Wyman: Son falls ill, father promises to pay for the son.

§  Kindness and service was not bargained for. Not done at dad’s request.

o   Webb v. McGowin: Man saves another man’s life. Man promises to pay to support

§  Permissible here, because a material benefit was received, and a subsequent express promise to pay was made.

·         Pre-existing duty: A common law doctrine that renders unenforceable a promise to perform a duty, which the promisor is already legally obligated to perform, for lack of consideration. One who has a legal duty to perform an obligation cannot recover additional funds for performing that duty.

o   Stilk v. Myrick: Captain of ship attempts to reform contract with sailors.

·         Contract modification: Modification of the contract after it has been properly formed. Permissible where unforeseen circumstances make performance of the contract unduly burdensome.

o   U.C.C. 2-209: “an agreement modifying a contract within this Article needs no consideration to be binding”

o   Brian Construction v. Brighenti: Construction contract to perform all work requisite, discovered excavation that needed to be done, neither foresaw.

·         Adequacy of Consideration: In order for a contract to be valid, valuable consideration must be exchanged between the parties.

o   Newman & Snell’s State Bank v. Hunter: No valuable consideration, worthless piece of paper of husband’s insolvent stock.

Final Civil Procedure Case of the Year

Parklane Hosiery Co. v. Shore:

439 U.S. 322 (1979)

Issue: Whether a litigation who was not a party to a prior judgment may nevertheless use that judgment "offensively" to prevent a defendant from relitigating issues resolved in the earlier proceeding

Rule: Mutuality of Estoppel                                                                                                                                  

Application: Collateral Estoppel has a dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.

-Mutuality Doctrine: Neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment

-Criticized for failing to recognize the difference in position between a party who has never litigated an issue and one who has fully litigated and lost

-Blonder-Tongue v. University of Illinois: Abandoned the mutuality requirement, at least in cases where a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it to be invalid.

-The present case involves the offensive use of collateral estoppel

-In both the offensive and defensive uses, the party against who estoppel is asserted has litigated and lost in an earlier action

-Why offensive and defensive collateral estoppel are different:

1. Offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive.
1. Defensive prevents a plaintiff from relitigating identical issues by merely "switching adversaries." Strong incentive to join all potential defendants
2. Offensive: Creates the opposite incentive. Plaintiffs adopt a "wait and see" attitude

2. It may be unfair to the defendant
1. If the first suit is for small or nominal damages, defendant may have little incentive to defend vigorously, particularly if future suits are not foreseeable.
2. May be unfair if the judgment relied upon as a basis for estoppel is inconsistent with one or more previous judgments in favor of the defendant
3. Unfair where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result

-Courts have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.

-General Rule (Should be): In cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel

-None of the circumstances that might justify the reluctance to use collateral estoppel are present.

-Will not reward a private plaintiff who could have joined in the previous action, since the plaintiff probably could not have joined.

-No unfairness to defendants in applying offensive collateral estoppel

-Serious allegations in the SEC complaint gave defendants incentive to vigorously defend

-Judgment in the SEC decision was not inconsistent with any previous decision

-Will be no procedural opportunities available to petitioners that were unavailable in the first action of a kind that might be likely to cause a different result.

Second Question: Would the use of offensive collateral estoppel violate the defendants 7th amend. right

-Beacon Theaters: Held: When legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial and "that discretion must whenever possible, be exercised to preserve jury trial"

-Katchen: Recognized that an equitable determination can have collateral-estoppel effect in a subsequent legal action and that this estoppel does not violate the 7th amendment

-Defendants have advanced no persuasive reason why the meaning of the 7th amendment should depend on whether or not mutuality of parties is present.

-The 7th amendment has never been interpreted in the rigid manner advocated by the defendants.

-Galloway:

Conclusion: Yes, can

Parties:

-Plaintiff/Respondent: Shore

-Defendant/Petitioner: Parklane Hosiery Co.

Suits:

-Suit 1: Plaintiff v. Defendant

-Suit 2: SEC v. Defendant

-Obtains judgment first

History:

-Plaintiff brought stockholder's class action against the defendant in a Federal District Court.

-Complaint alleged that the defendant, and 13 of its officers, directors, and stockholders, had issued a materially false and misleading proxy statement in connection with a merger.

-These statements allegedly violated the Securities Exchange Act of 1934, as well as various rules and regulations promulgated by the Securities and exchange Commission

-Sought: Damages, rescission of the merger, and recovery of costs.

-Before Trial: SEC filed suit against defendant in Federal District Court, alleging that the proxy statement that had been issued by defendant was materially false and misleading in essentially the same respects as those that had been alleged in the plaintiff's complaint

-Injunctive relief was requested

-After 4 day trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect.

-Court of Appeals: Affirmed

-Plaintiff then moved for a partial summary judgment, asserting that the defendants were collaterally estopped from relitigating the issues that had been resolved against them in the action brought by the SEC.

-District Court: Denied the motion on the ground that such an application of collateral estoppel would deny the petitioners their 7th amendment right to a jury trial

-Court of Appeals: Reversed

Dissent:

-In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: it eliminates the right entirely and therefore contravenes the 7th amendment.

-Majorities argument: A litigant was not entitled to have a jury determine issues that had previously been adjudicated by a chancellor in equity and that "petitioners have advanced no persuasive reason why the meaning of the 7th amendment should depend on whether mutuality is present

-That is like saying since a party is not entitled to a jury trial in equity, should not have one in law

-To hold that a jury trial is not required is to rewrite the 7th amendment

-It is unfair to apply offensive collateral estoppel where the party who is sought to be estopped has not had an opportunity to have the facts of his case determined by a jury.

-Defendants did not receive a jury trial in the SEC lawsuit

-Several factors favor this position

1. The use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials
2. The opportunity for a jury trial in the second action could easily lead to a different result from that obtained in the first action, and therefore it is unfair to estop defendants from relitigating  

-Even if defendants are collaterally estopped from relitigating whether the proxy was materially false and misleading, they are still entitled to have a jury determine whether plaintiff was injured by the alleged misstatements and the amount of damages.

-Thus, won't save much

Sorry for the shabby notes! I've been working on my outlines ;D

Contracts: Impossibility --- Suez Canal Case

Transatlantic Financing Corporation v. United States:

United States Court of Appeals District of Columbia Circuit

363 F.2d 312 (1966)

Issue: Should Transatlantic be compensated for the added expense of the alternate route?

Rule: Impossibility

-A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost

Application:  Plaintiff claims that admiralty principles and practices require the court to imply into the contract the term that the voyage was to be performed by the usual and customary route (Suez)

-Thus, when Suez was closed, this contract became impossible to perform.

-Therefore, completion of the contract by way of the alternate route, plaintiff should be paid in quantum meruit

-When impossibility is raised, the court is asked to construct a condtion of performance based on the changed circumstances, a process which involves at least three reasonably definable steps:

1. A contingency-- something unexpected-- must have occurred
1. Clearly met. Where no route is mentioned, the usual and customary route is assumed

2. The risk of the unexpected occurrence must not have been allocated either by agreement or custom
1. May be expressed or implied in the agreement, and found in surrounding circumstances, including custom and usage of trade.
1. Circumstances surrounding the contract suggest that risk was allocated to the plaintiff. Can be assumed that the parties were aware of the situation at Suez
1. The tension there likely affected freight rates
2. These circumstances do not always indicate a willingness to accept the risk

3. Occurrence of the contingency must have rendered performance commercially impracticable
1. Transatlantic could have purchased insurance for such a contingency
2. The goods could survive the extra distance, the crew was fit to travel the extra distance
3. The owners of vessels are in the best position to calculate the cost of performance
4. The only factor weighing in plaintiffs favor is the added expense
1. $43,972 above the $305,842 contract price.
2. To justify relief based solely upon added expense, there must be a larger variation in the expected cost and the cost of performance.

-Thus, performance of this contract was no rendered legally impossible

-If the contract is a nullity, plaintiff's theory of relief should have been quantum meruit for the entire trip, rather than for the added expense.

Conclusion: No

History:

-Jul 26, 1956: Gov't of Egypt nationalized the Suez Canal Company, and took operation of the canal

-Oct 2: Voyage charter between the parties to transport wheat from the US gulf port to a safe port in Iran. Indicated the termini of the voyage, but not the route.

-Oct 27: SS CHRISTOS sailed from Galveston for Iran, on a course that would have taken it through the Suez canal.

-Oct 29: Israel invades Egypt

-Oct 31: Great Britain and France invade the Suez Canal Zone

-Nov 2: Egyptian government obstructed the Suez canal with sunken vessels

-Nov 7: Beckmann, representing plaintiff, contacted an employee of the US dept of Agriculture, seeking an agreement for payment of additional compensation for an alternate route.

-Was advised that he was free to file a claim. Employee didn't believe was entitled to compensation

Old English Contracts: Impossibility

Taylor v. Caldwell:

In the King's Bench

3 B. & S. 825 (1863)

Issue: May the parties be excused from a contract when the  thing contracted for no longer exists?

Rule: Impossibility                                                                                                                                                                                                                                                                                          

Application: There was no express stipulation with reference to what would happen in the event of a fire.

-Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages.

-Where the parties have agreed that the contract cannot be fulfilled without the continued existence of a particular thing, that is not a positive contract, but subject to an implied condition.

-In some contracts where a personal good is contracted for (painting, composing a work, etc), and the ability is lost (blindness, etc), the promisor should not be forced to perform.

-The same implications are made for the continued existence of a thing, such as here.

-In contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse performance.

Conclusion: Yes

History:

-May 27, 1861: Parties enter into agreement where defendant leases The Surrey Gardens and Music Hall to plaintiff for June 17th, July 15th, August 5th, and August 19th.

-Plaintiff alleged that defendant breached by not allowing the plaintiffs to have use of the building

-At the time of the agreement, there was a general custom of trade and business that in the event the building was destroyed or so far damaged by accidental fire as to prevent the concerts from being given according to the intent of the agreement, the agreement should be rescinded

-June 11: Music hall is destroyed by an accidental fire.

Trial:

-Verdict for the plaintiff

Appeal:

-Verdict for the defendant