Business Law personal notes/opinion/stuff to look at for a reference/study in case it comes up/worded like the book/needs reworded or changed

Regarding this discussion, they should and did claim that they borrowed the money to gamble. They argued correctly that a gambling debt is unenforceable in Connecticut. The appellate court remanded the case so that the trial court could determine whether the bank knew that the money was borrowed for gambling. If the bank knew the intended use of the money (which a court could but need not infer from the location of the ATM), the debt is void. Connecticut National Bank of Hartford v. Kommit, 31 Mass. App. Ct. 348, 577 N.E.2d 639, 1991 Mass. App. LEXIS 660 (Mass. Ct. App. 1991). As to which party has the high ground, of course, the answer is that it is a tie for last place. Clearly the credit card company is encouraging people to gamble, by placing its ATM in the gambling pit. Just as certainly, the Kommits are trying to have it both ways, gambling in the hopes of a quick gain, then attempting to avoid liability by invoking this legal principle. Generally, when faced with two parties who are both less than saintly, courts attempt to make rulings that will be in the best interests of society, in the long term.

gambling reference stuff

1. How can the landlord be defaulted when in fact he was in court, arguing the case? (5 points) The landlord answered the complaint but then failed to cooperate with discovery requests. The plaintiffs served motions to compel and the court ordered the defendants to respond but they never did. This is a drastic remedy, which courts try to avoid, but here the trial court was convinced that nothing less was fair. 2. Name some or all of the rules of law that this landlord broke. (10 points) • Quiet enjoyment. The landlord interfered with the tenants' quiet enjoyment by failing to provide a livable apartment. • Constructive eviction. The apartment was in such terrible shape that a reasonable tenant would feel forced to move out. That is a constructive eviction. • Conversion. The landlord had his agents take some of the tenants' personal property while they were in the process of moving elsewhere. • Duty to maintain premises. Maine, like most states, requires a landlord to deliver an apartment in clean and sanitary condition and maintain it in a habitable condition. • Building codes. Maine, like most states, has a building or occupancy code which prohibits these kinds of conditions. • Implied warranty of habitability. This is an implied condition in all residential leases in Maine (and most states). • Failure to return security deposit. Because he constructively evicted the tenants, the landlord was obligated promptly to return their security deposit. • Threats. The landlord apparently made criminal threats, implying that he might harm the tenants or their families. 3. Other than that, was the landlord a pretty decent guy? (5 points)

landlord stuff

1. What is the significance of being a third party beneficiary? An intended third party beneficiary can enforce a contract between two other people, to protect his own rights under the agreement. 2. What does a third party beneficiary have to show to win a case? The third party must show that the two parties intended to benefit him and either: • Enforcing the promise will satisfy a duty of the promisee to the beneficiary or • The promisee intended to make a gift to the beneficiary. 3. Analyze this case under that standard. The contract Schauer seeks to enforce was between Mandarin Gems and Erstad, her ex-husband. Mandarin Gems knew that Erstad and Schauer were shopping for an engagement ring, that Schauer selected the ring at the center of this dispute, and that Erstad bought the ring as a gift for her. 4. How did Mandarin manifest its intent to benefit Schauer by entering the contract? It didn't manifest such intent. 5. Then why does the court hold that Schauer is an intended third-party beneficiary? The court states that while the contracting parties must clearly manifest intent to benefit the third-party, "it does not mean both contracting parties must intend to benefit the third party." It is enough that the promisor—Mandarin—understood that the promisee—Erstad—had such intent. 6. One last question: is Schauer's ex-husband Darin Erstad, the professional baseball player? Yes. Darin Erstad retired from major league baseball, and has been the head coach at the University of Nebraska at Lincoln.

3rd party stuff

1. Chase said he would "take care of" Baer and pay him "in a manner commensurate with the true value of his services." Don't those statements show Chase's intent to compensate Baer? Yes. 2. Then why does the court rule in favor of Chase and let him avoid payment? The issue in this case is not Chase's intent but the definiteness of the offer. 3. There are methods to determine what fair compensation would be. The trial court could hear evidence about what others who've made similar creative contributions to television shows are paid, or hear expert testimony from people in the business about the customary payment for services similar to Baer's. Why doesn't the court try to arrive at a method of fair compensation? It is not the court's job in a breach of contract case to substitute its judgment for the parties' judgment about what the contract's terms should be. 4. How does the court arrive at its decision? It looks to New Jersey law, which says that the price or amount of compensation is an essential term in any contract. 5. Does that mean the parties must specify a dollar amount in the contract for its terms to be definite? Not necessarily, as long as the parties do specify a method by which compensation can be determined. If a contract fails to state the dollar amount of compensation or a practicable method to determine it, the contract is invalid. 6. So Chase and Baer could have agreed, say, that Baer would be compensated in an amount equal to the average paid for screenwriting services for the pilots of the three most popular HBO television serials within the previous two years? If it is practicable to ascertain the facts necessary to calculate this average, then the answer is yes

Chase/Baer stuff reference stuff

From the Institute of Legal Reform: Excessive Tort Costs Affect Everyone America has the costliest legal system in the world. In fact, in 2016, costs and compensation paid in the U.S. tort system reached $429 billion.That figure was equivalent to 2.3% of U.S. gross domestic product, or $3,329 per household. This per household cost is even higher in certain states. The U.S. Tort System Is Hugely Inefficient in Compensating Victims Not only do the high tort costs drain the U.S. economy, America's litigation addiction provides little redress for injured parties. Economists have found that only 57% of the money spent in the tort system in 2016 went to plaintiff compensation, and that's before contingency fees are subtracted. Lawsuit Abuse Takes a Disproportionate Toll on Small Businesses A study of tort liability costs for small businesses indicates that litigation costs small businesses in America over $105 billion per year. These small businesses bear 81% of business tort liability costs but take in only 22% of revenue. Because small businesses do not often have significant resources to defend themselves in drawn-out, costly litigation, being named in a frivolous lawsuit could mean a small business must close its doors for good. One in three small business owners have been sued or threatened with a lawsuit, according to a national opinion survey of voters by Penn Schoen Berland and Public Opinion Strategies. Lawsuit Climates Matter and Drive Critical Business Decisions at Home and Abroad Perceptions of the fairness and reasonableness of a state's liability system can influence business decisions about where to conduct, expand, or constrict operations or sales. According to the U.S. Chamber Institute for Legal Reform's 2019 Lawsuit Climate Survey, 89% of respondents felt that a state's litigation environment is likely to impact important business decisions at their companies. The effects of lawsuit abuse extend beyond America's borders. High liability costs make U.S. businesses less competitive internationally. One study found that liability costs in the U.S. decrease manufacturing cost competitiveness by at least 3.2%. These factors have the potential to discourage foreign direct investment by making the U.S. less attractive to foreign capital. The U.S. has one of the most robust legal systems in the world. However, America's tort system suffers from structural flaws and inefficient or unbalanced laws—both at the national and state levels—and American consumers are paying the price. Policymakers must take note and enact commonsense reforms to improve America's lawsuit climate.

Do you believe that there are too many lawsuits in the United States? If so, do you place more blame for the problem on lawyers or on individuals who go to court? Is there anything that would help the problem, or will we always have large numbers of lawsuits?

This case is based on United States v. Edith Schlain Windsor , 570 U.S. ___ (2013), 133 S. Ct. 2675. The Supreme Court held that restricting interpretation of "spouse" to apply only to heterosexual unions was unconstitutional under the Due Process Clause of the Fifth Amendment.

Edith Windsor/DOMA

Gould wins this suit. The Board's argument misses the point. It is true that the Board made an honest mistake, as did Gould. However, it is not the integrity of the decision making that counts in these cases, it is the error. Both parties thought that Gould lacked tenure, and both were wrong. That is as basic an error as parties can make in an employment case. There was no meeting of the minds and Gould is allowed to rescind her resignation. Gould v. Board of Education, 81 N.Y.2d 446, 616 N.E.2d 142, 1993 N.Y.LEXIS 1726, (N.Y. Ct. App., 1993).

Gould stuff

Decision: The U.S. court of appeals held that the release was valid and upheld the dismissal of the actions against the defendants. Reason: Although the release language was exceptionally broad, the court held that it was fatal to each of the claims Critical Legal Thinking: An agreement is the manifestation of the substance of the contract. Business Ethics: Your classmates argued either side, but certainly, it would seem reasonable that Marder would receive some additional compensation. Contemporary Business: The adage means that if it is in the contract, the parties will be bound by it. We talk about the agreement being within the "four corners" of the contract - whatever is in the writing, binds the parties.

Marder general release stuff stuff

1. How did O'Brien breach the contract? O'Brien breached the contract by engaging in conduct that subjected the school to sanctions. 2. If he breached the contract, why does OSU have to pay anyway? Because O'Brien's breach was not a material breach, one that substantially harmed OSU. 3. But, if the parties agreed to the terms of the contract, and O'Brien did not honor those terms, isn't it unfair that he collects damages? The theory of material breach recognizes the fact that frequently performance of a contract is not perfect. Thus, in order for the non-breaching party to be discharged, the breach must have been material.

O brien stuff to study

. What did the defendants take from PID? A list of 20,000 patients compiled by Pollack over many years. 2. Can a list of patients be a trade secret? The court said that it can be because it provides a competitive advantage. 3. What did Pollack have to do to qualify his patient list as a trade secret? Two things: Spend significant time and resources gathering the information, and take reasonable steps to protect it. 4. Had Pollack done this? Yes, he had taken a lot of effort to develop the list and then he kept it private - even the other physicians in his office could not view the entire list.

Pollack stuff

Although Son was extremely intoxicated, made a gratuitous unenforceable promise to repay what the corporations owed "to the best of [his] ability." The court also made the specific finding there was no evidence Son had personally guaranteed the debt or showing Son received any of the money. Given this lack of evidence, there was no basis upon which to consider the issue of forbearance as a substitute form of consideration. If a claim is invalid, forbearance is immaterial. The court's failure to specifically discuss and reject the forbearance claim did not render the statement of decision inadequate.

Son, drunk, contract stuff

1. How did this dispute arise? Milicic disaffirmed his contract with BMC shortly after his 18th birthday. 2. On what basis did he disaffirm? He entered into the contract as a minor, at the age of 16. 3. Did he fail to disaffirm properly? No. Milicic disaffirmed in writing shortly after his 18th birthday and returned to BMC all money and goods it had given him. 4. Then why didn't BMC honor his disaffirmance? Good question. It did not appear to have any legitimate grounds for doing so, and the court said BMC's stance was "at odds with public policy." 5. In this part of its opinion does the court really refer to Milicic as an "infant?" Why? Yes. It is using that term to describe anyone under the age of 18, although "minor" would convey the same meaning. 6. What test does the court apply to evaluate the preliminary injunction? Milicic had to prove four things to obtain the preliminary injunction: • Likelihood of success on the merits (i.e., that his legal claim is strong enough to win at trial), • Injunctive relief was necessary to prevent immediate and irreparable harm that could not be adequately compensated by awarding monetary damages, • Greater injury would have occurred from denying the injunction than from granting the injunction, and • The preliminary injunction restored the parties to the status quo that existed prior to the wrongful conduct 7. Did Milicic prove each of these things? Yes.

BMC/Milicic stuff

Kant said you should never treat people merely as instruments; never just as means to your own goals. Humans, he says, are autonomous beings with their own goals. There's a difference between a tape recorder and a person. If you're having trouble getting information out of a tape recorder you can pound on it or kick it -- it may not be very effective, but it isn't immoral, at least not if you own the tape recorder. But if you want to get information out of a person, you should connect your desire for information with their goals. You should convince them to tell you what you want to know without using torture.

Is torture always wrong? That issue has been deeply and bitterly debated in the U.S ever since the terrorist attacks of 9/11. On one side of this debate are those who believe that torture should be used if necessary to obtain information that might help prevent other acts of terrorism. They believe that the harsh treatment of suspected terrorists has been successful in keeping America safe. On the other side are those who say that torture is less effective at eliciting useful information than other interrogation methods. The United States' use of brutality, these critics claim, undermines our legal and moral standing worldwide, and gives other countries a license to torture our citizens. Under what circumstances, if any, should torture be permitted? What would Kant and Mill say?

Joanna loses the lawsuit. She is not licensed to practice law. Any contract she makes to perform legal work is void and unenforceable. Perhaps it was nice of her to try to help out, but she was foolish to think she should do legal work. She ought to have learned enough in law school to know that legal work is complicated and that a "client" deserves truly professional help. Even a simple lease may contain a dozen tricky issues that only an experienced lawyer can anticipate. It does seem hypocritical to agree to her fee and then avoid it on a principle of contract law. Yet society's interest is clear: to discourage those who are untrained from causing harm. The court will look primarily at society's interest, saying that to permit Joanna to collect her fee would encourage other cocky law students to venture into work they are not ready to do.

Joanna question about law/contract stuff

Advantages: Lawyers understand the law. They can protect you against unexpected events in the future. They can be the "bad guys" in negotiations - you can blame them for playing hardball. Important signal to the other side that you are well-protected. Contracts are more likely to be internally consistent without obvious mistakes. Less likely to make typographical errors. Disadvantages: Lawyers cost time and money.

Lawyer stuff

1. What was MTV's argument for why this contract was required to be in writing? They argued that it was a contract that could not be performed within one year. 2. Why did the court side with Curry in this case? At the time the agreement was made, both parties performance could possibly be performed in one year.

MTV case reference stuff

1. What should Britt argue to convince the court of his implied contract claim? The college made a deal and should be forced to stick to it. This college, like many, is using the idea of "life experience credits" as a lure to attract older students. If a college chooses to advertise such credits to attract students, and promises to award them when a student applies or enrolls, it should be held to its promise. 2. What should the college argue to refute Britt's claim? This is not a business deal. All we have here is an unhappy college student. If Britt wins on the contract issue, can he also sue to have his grade of "C" raised to an "A"? Can all students file suit just because they are unhappy with grades, credits, or class schedule? Is a student entitled to a refund because she does not like her dorm roommate, or had an unhappy date on Friday, or thought that last night's chicken pot pie was overcooked? A college is a collegial place of learning, and both professors and the administration must have wide latitude in assigning grades and credits. Britt's aggressive reaction to an innocuous in-class exercise demonstrated that he was desperately in need of some sensitivity training-the precise purpose of the course! Should students like Britt decide a course's content? A college's curriculum? Must we reward Britt's immature conduct by appointing him provost? 3. Has your college, or that of a friend, made any promises that it has failed to keep? In your view, did the promises create a contract? Was the contract express or implied?

more stuff

1. What is the source of the President's power? Article II of the Constitution defines executive power and vests it in the President. Article II Section 2 establishes the President as Commander in Chief of the armed forces of the United States. Article III Section 3 requires the President to "take care that the laws be faithfully executed." 2. Does Article II or any other part of the Constitution expressly grant the President power to seize private property? No. 3. Then what is the basis for Truman's argument? Truman argued that the power to seize the mills is implied from the aggregate of powers granted the President. He believed that as Commander in Chief he could, during wartime, exercise executive power in his discretion to aid the Korean War. 4. Why didn't Truman's argument prevail? The Court rejected the argument that his powers as Commander in Chief were unlimited. It held that the grant of power to ensure faithful execution of the laws indicated the President is not a lawmaker. The Constitution reserves that power to Congress, without presidential or military supervision or control. 5. What was the outcome? Truman complied with the Court's order. By doing so he respected the powers granted to the judiciary by Article III of the Constitution and avoided a divisive confrontation with the other branches of government.

more things

1. Who is the intended beneficiary in this case? Rathke. 2. What is the definition of a third-party beneficiary? Someone who was not a party to the contract but stands to benefit from it. 3. On what source did the Court rely to determine the definition of an "intended beneficiary?" The Restatement (Second) of Contracts.

notes

My wording on stuff : People should be ethical. People should follow the law and do what is right morally. So when it comes to paying to download something then you should pay the fee. People worked hard to create material and it costs money to broadcast it. When you pay a fee then it keeps things on the air, pays who created it/or etc. The fee exists for a reason. If people ripped off t.v. shows, movies, music, etc. all the time then the people who create it or distribute it lawfully would lose out on money. That would be horribly unfair. You also don't want to go to jail or get fined for breaking the law. It'd also hurt the community to not pay for something you should.

notes for reference/opinion

1. What is abandoned property? Abandoned property is something that the owner has knowingly discarded because she no longer wants it. 2. Who keeps abandoned property? Generally, the finder may keep abandoned property. 3. What is lost property? Lost property is a thing accidentally given up, such as a pocket watch that falls unnoticed on the ground. 4. Who is entitled to lost property? Generally, the finder has rights superior to everyone except two people: the true owner, and a landowner if the item was discovered on her property. 5. What is mislaid property? Mislaid property is something the owner has intentionally placed somewhere and then forgotten. 6. Who may keep mislaid property? Generally, the finder obtains no rights; if the true owner cannot be located, the item belongs to the owner of the premises where it was found. 7. Which type of property was this cash? The cash was mislaid property, because someone presumably placed it in the hotel room's drawer intentionally and then forgot it (or was unable to retrieve it—for example, if the true owner was a drug dealer who was incarcerated or dead). 8. What is the primary goal of most statutes and common law rules concerning found property? (3 points) To enable the true owner to recover the property, if possible.

property stuff

Public policy prohibits an insurer from taking an advance premium and placing conditions in the receipt so that it incurs no risk during the interim period for which it retains the premium.

stuff about : What public policy did this insurance policy violate?

When the Supreme Court declares that the Constitution protects an activity, such as flag burning, that is the final word. This is different from the Griggs Wards Cove dispute. There, the Court was simply interpreting a statute, the 1964 Civil Rights Act. Whenever Congress believes that the Court has misinterpreted a statute, it is free to pass a law correcting the interpretation. But Congress has no power to overrule the Court on a matter of Constitutional rights.

stuff about flag burning, Does Congress have the power to overrule the Court's decision?

Fleer Corporation manufactures bubble gum, candy and low-cost toys and novelties. After unsuccessfully trying to market its own baseball cards, it has brought an action against Topps under Section 2 of the Sherman Act, alleging that Topps has monopolized the baseball card market. Fleer asks for damages and for an injunction against Topps which would prevent it from enforcing the exclusivity clauses in its contracts with baseball players. Fleer turned its efforts to supporting an administrative complaint filed by the Federal Trade Commission, alleging that Topps was engaging in unfair competition through its aggregation of exclusive contracts. A hearing examiner ruled against Topps in 1965, but the Commission reversed this decision on appeal. The Commission concluded that because the contracts only covered the sale of cards with gum, competition was still possible by selling cards with other small, low-cost products. However, Fleer chose not to pursue such options and instead sold its remaining player contracts to Topps for $395,000 in 1966. The decision gave Topps an effective monopoly of the baseball card market. In 1976, baseball card sales accounted for 46% of all trading cards. Topps' baseball card sales represented 14% of similar candy/toy products marketed in that year.

reference

sawyer vs. Mills discussion case study: 1. Didn't Mills agree to pay Sawyer $10,000 for ten years? Yes. 2. Is it fair that he can make that promise then not honor it? Perhaps not. But the point of Statute of Frauds is to force people to be wary of relying on oral promises. In this case, the court noted that Sawyer did have a lawyer draft a contract memorializing the agreement, but Mills refused to sign it. That, according to the court, is evidence that the parties knew that performance was not to be completed within one year, and thus the promise had to be in writing. 3. What about the checks that Sawyer received? Doesn't nine months of checks constitute a "writing"? Sawyer tried to make this clam, but the court did not agree. According to the court, the nine checks merely confirm the parties' oral agreement that Mills was to pay Sawyer $10,000 on the first of every month.

reference

The Ninth Circuit Court of Appeals ruled that the website was liable because it created the discriminatory questions and designed its website registration process around them. Therefore, it was the "information content provider" as to the questions and could claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services. The operator was entitled to immunity with regard to the additional comments section because it published the comments as written, did not provide guidance or urge subscribers to input discriminatory preferences. Fair House Council v. Roommates.com, LLC, 521 F.3d 1157.

review this for reference

Was it necessary for Sam Fox to obtain Nolan's consent before making the assignment to Williamson? Explain. No. It was not necessary for Sam Fox to obtain Nolan's permission before assigning the publishing contract to Williamson. The court held that the agreement between Nolan and Sam Fox did not contain the type of personal trust that would require Nolan's consent before an assignment could be made. Why did Bob Nolan transfer all rights to Sam Fox Publishing? Bob Nolan transferred the rights to Sam Fox Publishing because they would be able to market and sell the song better and essentially make him a lot more money.

sam fox notes

1. How did the police find this illegal material? Professor Angevine's wife tipped them off. A police computer expert managed to retrieve the deleted files. 2. Did the police obtain a search warrant before conducting this search? No 3. Then why wasn't this search illegal under the 4th Amendment? Why didn't the court hold this evidence to be inadmissible under the exclusionary rule? The court held that the police did not need a warrant to search Professor Angevine's computer because he did not have a reasonable expectation of privacy there. 4. Was the court right? Was Professor Angevine unreasonable in assuming that his university computer was private? Yes, because the University policy had been very clear that: • Anything on university computers belonged to the university • The university reserved the right to view any material stored on a computer or passing through the network The court said that Professor Angevine had made a "careless effort to maintain privacy." 5. But Professor Angevine erased the material. Couldn't you argue that he has a reasonable expectation in deleted material? The university policy explicitly stated that network administrators audited transmissions and kept logs of deleted files. He probably should have read the policy more carefully and recognized that the rules did apply to him. 6. Under what circumstances would Professor Angevine have had a reasonable expectation of privacy? Presumably, if he had conducted his search through a private ISP (not connected with the university) and downloaded the material on to a computer he owned at home, he would have had a reasonable expectation of privacy.

study stuff for reference

1. Does the court's ruling mean that it agrees with the networks and fleeting use of expletives in broadcasts is legitimate? No. The court does not consider that issue on its merits. Instead, the court asks whether the FCC decision to change its policy was well reasoned. 2. Why did the court decide that the FCC decision was not well-reasoned? The court decided that the FCC's decision was not well-reasoned because many of the justifications for the change in policy offered by the FCC are contrary to the agency's practice. For example, the "first blow" theory offered by the FCC does not actually reflect what they practice because the agency actually does allow some use of profanity such as during a "bona fide news interview." According to the FCC even deliberate use of profanity would be allowed if such use were "integral" to the work. 3. Doesn't it seem to be a good public policy to prohibit expletives on network broadcasts when children could be watching or listening? Why doesn't the court exercise its power to ban such language? Even if the court agreed with the FCC, it must make sure the FCC operates within its authority and follows the proper process for making regulations and establishing policy.

stuff

1. How can it possibly make sense to exclude legitimate evidence because a police officer made a mistake in getting a warrant? Aren't we letting the criminal go free because the constable blundered? The Supreme Court has created the exclusionary rule as a judicial remedy to protect all citizens from potential police abuse. The theory is that if the police know in advance that illegally seized evidence cannot be used at trial, they will have no motive to obtain such evidence, and will go about their investigations lawfully. 2. Does the Supreme Court think that all police want to abuse the average citizen? No. What the court has said, by crafting the rule, is that one of the most valuable things there is about living in a democratic society is the ability to live without fearing the police. We should be able to sleep at night without worrying that our doors will be smashed in. 3. I haven't done anything wrong and am not worried about the police "smashing in my doors in the middle of the night." Why should I care about the exclusionary rule? There's a saying—"A liberal is a conservative who has just been arrested; a conservative is a liberal who has just been mugged"—that, while obviously painting with over-broad strokes, contains an important kernel of truth. Our relationship to the criminal justice system and our rights as citizens tend to be grounded on personal experiences. Citizens of the United States, who live under the protection of a Constitution that guarantees certain individual liberties from governmental intrusion, should not pick-and-choose which Constitutional guarantees they will support. 4. The difference between a lawful search or arrest and an unlawful one is often a warrant. What is so special about a warrant? The warrant requirement means that the police must obtain the permission of a neutral person before conducting most searches or making most arrests. Because the police are charged with responsibility to investigate crimes, they may have a vested interest in conducting investigations as aggressively as possible. The warrant requirement means that someone who has no personal interest in the investigation must first be convinced that there is probable cause to search some premises or make an arrest. 5. What might happen if there was no requirement for probable cause? For example, police might reason that a certain percentage of students at a large university use illegal drugs, and that therefore it would be profitable to stake out the campus and search everyone who enters it. Even if only a tiny percentage of students are carrying drugs, it might prove a good way to catch criminals. The problem is that all of the innocent people would be forced to endure periodic searches. 6. What is wrong with being searched if you don't have anything to hide? Being searched is—by definition—invasive. Some people might not mind it, but there are many who do not want to feel that they live in a police state. Also, to allow police to search without a warrant is to give them tremendous power, which some officers might abuse. For example, a particular policeman might choose to search only minorities, or women, or students, or those living in a particular neighborhood. Ours is supposed to be a society regulated by law, not by personal, police power. 7. How many people go free because of the exclusionary rule? Very few. As the text reports, most studies have shown that less than 1 percent of those prosecuted go free because evidence is excluded. Courts deny the great majority of motions to suppress, and in those few cases where they are allowed, the prosecution generally has additional evidence sufficient to convict. There are three exceptions to the exclusionary rule: • Inevitable Discovery. • Independent Source. • Good Faith Exception

stuff

1. On what theory did Boeken sue Philip Morris? Boeken sued for fraud. 2. How did he claim Philip Morris committed fraud? He claimed that Philip Morris advertised its product in a misleading way knowing that the product was dangerous, and that it added chemicals to the product to increase its addictiveness. 3. Boeken testified that he read the Surgeon General's warning about smoking in the 1960's, so how can he argue fraud? The court held that although Boeken read the warning, he relied on the statements made by Philip Morris that the connection between smoking and cancer was not clear. The court also stated that Philip Morris marketing "Light" cigarettes, which Boeken smoked, knowing that they were more harmful than Boeken or other ordinary consumers would expect. 4. Why did the court hold that these facts justified such a large award of punitive damages? Because it held that Philip Morris would not have achieved the same level of economic success without misrepresenting the harmful and addictive qualities of its cigarettes. 5. $100 million is a lot of money! So why did the court award this amount? Yes it is—but the court noted that the deterrent effects of punitive damages will not be successful if the defendant does not feel "discomfort". In light of Philip Morris overall value of $30-35 billion, and their $15 million per day profit, $100 million is an appropriate award especially given their reprehensible conduct.

stuff

1. The court seems to regard Jones's allegations as trivial. In fact, hasn't she alleged disgusting behavior by her employer? How can the court regard her claims so lightly? This gets to the essence of summary judgment. The judge does indicate that the alleged behavior, if it occurred, was crude and revolting. That is not the issue. The judge is saying that it is not her job to decide whether this behavior-assuming it occurred-was offensive. It is the judge's job to decide something else. 2. What is the judge obligated to decide? Whether the alleged behavior constituted sexual harassment. Nothing more. 3. Doesn't summary judgment mean that there will be no trial? Yes, that is exactly what it means. 4. How can a judge decide whether there was sexual harassment without holding a trial? We do not know whether Clinton did these things or not. Summary judgment means that it does not matter whether he did them, because even if did, plaintiff loses. The purpose of a trial is to find the facts. The judge is telling us there is no need to do that, because even if Jones proved everything she alleged, she still would fail to make out a case of sexual harassment. 5. What is missing from Jones's allegations? A claim of a significant job loss. If she had claimed that following the alleged encounter with Clinton she had been fired, demoted, or denied normal benefits, she would have made out a claim of harassment and could have proceeded to trial. Without such an allegation, she has no case.

stuff

1. The two lower courts found for all defendants. Why? Presumably, they found that the defendants had no duty to Hernandez or the general public. They would both have found that Rayner, the driver, had a duty, but not someone who buys or pours alcohol. 2. What is the logic behind the lower courts' position that a person or organization that pours alcohol has no duty to the general public? Historically, courts have held that it is a drunk driver who brought the harm on himself and others by getting intoxicated, and that injured parties could look only to the driver for compensation. Courts often held that a host, whether a social host (private person) or an organizational host (such as a bar or fraternity), either: • could not foresee the harm, or, • as a matter of public policy, should not be liable for such harm, because extending liability that far would inhibit social events and would create an almost endless field of potential liability.

stuff

1. What is a pretermitted heir? A pretermitted heir is a child who is left nothing in the parents' will. (People do omit their kids over childish reasons. It happened to me.) 2. Is a child entitled to inherit something? No, a child has no automatic right to inherit. A parent can leave a child out on purpose, but not by accident. 3. How can courts tell if a child is left out by accident? They can't really. But if children are not named in the will, courts assumed they have been forgotten by accident. 4. What must a parent do then if he doesn't want to leave money to a child? He must explicitly state in the will that he is leaving her nothing (or a nominal amount). 5. Why does the law presume that a child who is left nothing has been forgotten? Because children are the natural object of a parent's bounty. To overcome this presumption the law requires proof that the parent intended to omit the child from the will. 6. What happens to the pretermitted heir? The child is generally entitled to the same share she would have received if her parent had died intestate. 7. How much is that? Each state has its own intestacy statutes, establishing how the estate of a person who dies without a will is distributed. 8. In this case, did Josiah forget Evelyn? It seems that he did not. He crossed her name out of the prior will and he referred to her husband in the current will. 9. Why did the court ignore his clear intent? Wills are so important; they must comply with the technicalities. Courts will not guess what a testator meant. 10. What should Josiah have done? He should have explicitly stated that he was leaving Evelyn out. Or he could have left her heirs $1.

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1. Why is ambiguity interpreted against the drafter? According to the text: 1) To protect laypeople from the dangers of form contracts that they have little power to change; 2) protect people who are unlikely to be represented by a lawyer; and 3) to encourage those who prepare contracts to do so carefully. 2. How does the court define "ambiguous?" Susceptible of more than one reasonable interpretation. 3. How must the ambiguity in the contract at issue be resolved? In a way that preserves the objectively reasonable coverage expectations of the insured seeking coverage.

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The friend was not correct. Copying items for such purposes as criticism, comment, news reporting, teaching, scholarship, and research may be done without permission under the doctrine of fair use. Is this personal property or real property? Property falls into three categories: real, personal, and intellectual. Real property consists of land (including subsurface and some air space), buildings, plant life, and fixtures. Personal property is property that consists of tangible property and intangible property. There are two types of personal property: Tangible Personality: Personal property, such as a television set or car, that has physical substance; and Intangible Personality: Personal property, such as stocks, bonds, patents, and copyrights, the value of which does not depend on physical existence. Intellectual property is defined as "Intellectual property" is any product or result of a mental process that the law protects against unauthorized use. It is unlike real or personal property. Its value is derived from the owner's right to permit many others to use it. Its use is non-rivalrous. So it is personal property which is the focus of Chapter 43.

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1. How does the court analyze the reasonableness of this noncompetition agreement? It looks at the impact of the noncompetition provisions in light of King's ability to earn a living given her age, job experience, and prospects. 2. Why does it rule that the noncompetition is invalid? It would bar King from working within a two-mile radius of any Head Start facility. Head Start has 30 facilities in two counties and the effect of the noncompetition clause would be to make it extremely difficult for King to find employment in the only field she knows. 3. Since it ruled the clause to be invalid, is King free to take a job anywhere? No. The court recognized that it would be unfair to Head Start to throw out the entire agreement. It instructs the trial court to enforce a more reasonable restriction, suggesting that King be limited from working within a two-mile radius of the Head Start facility where she worked formerly. 4. What effect would that have on King? Ironically, it would result in King losing the job to which she moved from Head Start, because it is located in the same mall as her old job. 5. Courts tend to be antagonistic to noncompetition agreements. Why is that? They restrain trade and injure the public. The primary goal is to protect the public, though the secondary aim is to protect a worker's right to use his skills and energy to his best advantage. 6. Suppose an employer could request any restrictions it wanted on future employment. What problems could that create? An employer might demand that the employee not work anywhere in the particular field after leaving. That would mean that, the more experienced the worker, the more difficult it would be for him to leave, since he would be forfeiting his skill and his chance to earn a living. The employer, aware of the employee's inability to leave, could impose increasingly arduous and unfair work requirements. 7. But if an employee agrees to certain conditions, why shouldn't they be enforced? If a worker knowingly agrees he will never work for another employer, anywhere, in the same field, why not require him to live up to his word? Contemporary courts will not do so, because they consider such agreements harmful to the general public. Giving an employer the power to prohibit future employment would diminish competition and job mobility, both considered essential for a healthy economy. 8. If a court is free to ignore a contract provision, such as a noncompete agreement, doesn't that render the contract worthless? It does not make a contract worthless, but it does diminish the ability of the parties to predict the future, and to use a contract to control the future. The more flexibility a court shows, enforcing some contracts while rejecting others, the less predictable the law, and business, become.

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1. I thought an advertisement was merely an invitation for an offer. Why did this advertisement create an offer? Because a California statute makes automobile dealers liable for the terms of their advertisements. 2. The dealer could have caught this serious typo by proofreading the ad before the paper printed it. Did the court take that into account? The court took it into account but was not persuaded, holding the fact that one might avoid a mistake through the exercise of reasonable care does not preclude a court from avoiding the contract. 3. What would be the result if the court adopted the plaintiff's argument and enforced this contract? Persons in the dealer's position would be deemed to have assumed the risk of all typographical errors in advertisements. For example, the court states, if an automobile dealer proofread an advertisement but, through carelessness, failed to detect a typographical error listing a $75,000 automobile for sale at $75, the defense of mistake would be unavailable to the dealer. 4. What's the moral? If it sounds too good to be true, it probably is.

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1. What is an option contract? In an option contract the seller grants a prospective purchaser—the option holder—the right to purchase something (land, commodities, securities, etc.) within a specified period of time for a set price. 2. What is an "escrow?" An escrow is an arrangement in which a trusted third-party agrees to hold money, property, a deed, or something else until the occurrence of some event or satisfaction of some condition. 3. How did the escrow work in this case? The bank agreed to hold Brodsky's check without cashing it for 60 days, until Brodsky decided whether he wanted to exercise the option and purchase the property. 4. Brodsky gave a $5,000 check to the bank. Why wasn't that consideration? In giving the check Brodsky did not incur a detriment and Culbertson did not receive a benefit because the bank agreed not to cash the check unless Brodsky decided to purchase the land. 5. Brodsky performed tests on the land. Why weren't the tests consideration, since they were a detriment to him? The bargain with Culbertson allowed Brodsky to perform such tests but did not obligate him to do so. Culbertson's promise obligated him to sell the land to Brodsky if Brodsky opted to purchase it, but Brodsky's promise imposed no obligation on Brodsky. It left him free to do nothing, not buy the land, and have the bank return his check uncashed. 6. Brodsky is the one who didn't give consideration but he still wants to buy the property, so why is Culbertson trying to get out of the deal? Presumably Brodsky knows he can sell the land for more money to someone else. 7. Is that ethical? Perhaps not, but it poses no legal problem.

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stuff: in March 2018, Craigslist terminated its personals section immediately after the Allow States and Victims to Fight Online Sex Trafficking Act Bill was passed by the U.S. Senate. According to the new bill, online websites will be held responsible for the content that third parties post on their platforms. The new bill tags assisting, supporting or facilitating sex-related crime as "participation in venture." Thus, to avoid its personals section affecting its other services, CL chose to close it.

stuff: Does it seem that trafficking women and children was in keeping with the founder's Life Principles? Craig Newmark made craigslist to focus on community development. I don't feel like he would be for human trafficking. He cares about the community and wouldn't want to hurt it. He tried to crack down on illegal activity by making people use credit cards and phone numbers. His life principles were against human trafficking. It is more complicated to fix the issue than it seems. What were his options? The website was to help the community and it brought in money. He couldn't really close it down. If he stifled certain kinds of "free speech" then people could sue. I liked that he made people use their credit card and phone number. I also like they reported ads that were suspicious. The article brought up a good point when it mentioned these people might go underground if the website becomes closed to them. Standards became stricter and they monitored the situation. I feel like that Mr. Craig felt that was the best approach. It is hard to stop everything bad in the world. Could he have had any real impact on this thriving industry? Mr. Craig can have a big impact on this thriving industry. Craigslist brings in a lot of money and it has useful services. Any changes to his website have an impact on those who use it. When he strengthened the security of the website then it may have mad people thing twice about bad behavior. This website was a tool for making money and any changes he did to it would alter people's options. What pitfalls did he face? Ethically Mr. Craig faced a lot of ethical pitfalls. He didn't want his website to have illegal sex services. He didn't want to profit from it or allow others to profit. Mr. Craig didn't want people kidnapped and sold against their will or people to get away with it. He didn't want the community to suffer when he was trying to work on building a good community. Mr. Craig has good values and prostitution on his website went against them. He just didn't have a lot of options for fixing it. It seemed like a big dilemma. He worked to try to make the activity harder to carry out

1. Please explain how Miranda v. Arizona is relevant today? How did it set a precedence for future cases? Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had "full knowledge" of his "legal rights" does not approach the knowing and intelligent waiver required to relinquish constitutional rights. The rendering of this decision would also have further Constitutional implications in which other Supreme Court cases would try to use Miranda rights as precedence or oppose the ruling altogether, citing that such practice gives the opportunity for criminals to slip away from justice due to a provisional technicality. Furthermore, the ruling of Miranda v. Arizona also helped re-establish the importance of the Constitution's Bill of Rights as fundamental human and civil rights guaranteed to the people of the United States. 2. What amendment did the U.S. Supreme Course use as its justification for hearing the Miranda vs. Arizona case? Explain their reasoning for citing this amendment. The Supreme Court heard Miranda v. Arizona case under Chief Justice Earl Warren, who eventually overruled the conviction and sentencing of Miranda by the Arizona State courts. Warren would resolve that the confession could not be considered admissible as evidence due to the fact that it was in violation of the Fifth and Sixth Amendments of the Constitution. The Court held that "there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." As such, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Furthermore, As Miranda made clear, a criminal defendant has the right to a lawyer before being interrogated by the police. The Sixth Amendment guarantees the right to a lawyer at all important stages of the criminal process. Because of this right, the government must appoint a lawyer to represent, free of charge, any defendant who cannot afford one.

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1. What is the difference between this case and the Cruzan case or the Brenda Young case? In the Cruzan and Young cases, the issue was whether life support could be withheld. In this case, the issue is whether a doctor can affirmatively help a patient commit suicide. 2. Why does the state care if someone wants to commit suicide? States have traditionally taken the view that any killing is bad, even the killing of oneself. Indeed, traditionally, a suicide attempt was against the law and could be punished with a prison sentence (although this is generally not the case now). 3. Why did the patients in this case want a physician to help them commit suicide? They were too ill to commit suicide on their own. 4. If the doctor and patient are willing, then why shouldn't the patient be allowed to seek help in killing herself? • The American Medical Association is firmly opposed to physician-assisted suicide because it believes that doctors should concentrate on curing patients. If they have a choice between curing patients and killing them, they may decide that it is easier to kill patients than to find new methods for treating them. • The poor and the elderly may be pressured by relatives and doctors into asking for suicide. • There is evidence that people want to die only if their pain is unbearable. Even the terminally ill will almost always choose to live if their pain is controlled. • In an era of managed care, doctors may have a financial incentive to assist patients in committing suicide rather than ordering expensive treatments. 5. Why should patients be allowed to ask for help from doctors to kill themselves? • The courts increasingly recognize a broad right to privacy. To live or to die is a fundamentally private, personal decision. Ultimately, shouldn't the individual have the right to make this decision herself? • There is no real difference between a right to refuse life-saving treatment and the right to kill oneself. • In some illnesses, the pain cannot be controlled. Patients are forced to bear intolerable pain, as evidenced by the plaintiffs in this case. 6. What did the courts decide? The courts were very split, as one might expect with such an emotional issue: • The trial court held that the statute was unconstitutional. • A three-judge panel of the appeals court overturned the trial court. • By a vote of 8-3, the en banc appeals court agreed with the trial court that the statute was unconstitutional. • By a vote of 5-4, the Supreme Court overturned the appeals court, holding that the right to assistance in committing suicide is not a fundamental liberty interest. Further, the state's assisted suicide ban is reasonably related to the promotion and protection of a number of the state's important and legitimate interests. The five justices in the majority were Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

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1. Why did Cernero claim he was fired? For reporting instanced of overcharging and fraud at BSA and BSB. 2. Who was Carnero's employer? Boston Scientific Argentina. 3. If Carnero's employer was BSA, why did he think American law applied to his firing? Because BSA is a subsidiary of Boston Scientific, which is an American company headquartered in Massachusetts. 4. What is a subsidiary? A subsidiary is a company controlled by another company. In this case, BSA was an international subsidiary of BSC. 5. If BSA is controlled by an American company, why doesn't SOX apply to Cernero's firing? According to the court, Congress, when it passed SOX never intended the whistleblower provision to apply extraterritorily. Also, Carnero is a foreign citizen working for a foreign company. The court concluded that that relationship was best handled by that foreign country's court, not a US court.

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A majority of people are likely to have heard of the lawsuit in which Stella Liebeck sued McDonalds for burns she suffered after spilling a cup of its take-out coffee in her lap. It is also likely that whatever these students know about the case is either wrong or, incomplete. You may also have seen a chain email about the "Stella" awards, named after Liebeck. Its message is that the tort system is out of control. Whatever problems exist with the tort system are not revealed by the stories in the Stella awards email, because none of the stories is true. All are urban legends. They have been circulating online for years As for Liebeck's suit against McDonald's, what most people do not realize is that the coffee that burned Liebeck was 180 degrees, 15-20 degrees hotter than coffee typically served in restaurants. The jury considered whether McDonald's acted improperly in selling 180-degree (or hotter) coffee that was significantly hotter than a consumer would expect from common experience. Stella Liebeck incurred third-degree burns, received skin grafts, and spent seven days in the hospital. Testimony at trial showed that before the lawsuit, McDonalds had received over 700 complaints about burns, some of them third-degree, suffered by customers who spilled coffee on themselves. A McDonalds' executive testified that McDonalds knew of the risk of burns caused by its hotter-than-average coffee and knew that most customers didn't realize the specific risk posed by coffee at those temperatures, but nevertheless didn't intend to warn customers of the risk. The suit was not about a mere failure to warn that coffee is hot; it was about failure to warn of the danger created by serving materially hotter-than-normal coffee to customers who knew they were buying something hot, but not THAT hot. These facts, of course, cannot be construed only to support a finding that McDonald's was negligent. Discussing this case enables students to explore the concept of duty of due care and the cost/benefit calculus involved in any business decision, and reinforces the important lesson that we should take time to learn the facts before passing judgment—on anything.

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