Homicide/Murder

1L, Criminal Law

View Note >>

• "Malice aforethought" was mens rea
• Now distorted somewhat (term of art)
• 1. Intent to kill (unmitigated)
• 2. Intent to inflict SBI
• 3. Extreme recklessness (“depraved indifference to human life”)
• 4. Felony murder
• Voluntary act leading to death

Carrol

• Convicted of first-degree murder which requires an extra-special mens rea:
  
• premeditated (thinking ahead of time) and deliberate (cool, calculating)

Voluntary manslaughter

• Provocation (sudden) that would cause a reasonable person to lose composure and not have sufficient time to regain composure.
• MPC: extreme emotional disturbance (lower, more flexible standard).]

State v. Thornton

• Husband and wife separated, husband 2nd-year law student.
• Court recognized that adulterous affair/seduction of wife would enflame passions in a reasonable person.

Involuntary manslaughter

• Gross/extreme negligence OR recklessness that leads proximately to death.
  
• How different from 2nd degree (depraved indifference)?
• MPC: have involuntary manslaughter (reckless conduct, conscious unreasonableness) plus negligent homicide (gross negligence).
  

MAKE SURE TO LOOK TO BOTH Involuntary Manslaughter AND Extreme Recklessness Murder. (In CA--implied "malice aforethought" developed in case law instead of explicit extreme recklessness murder as a term, but comes "embedded" in the common law at the root of Calif.'s statute.)

Commonwealth v. Welanksy

• Owner of nightclub charged after fire in club, exits blocked.

Commonwealth v. Feinberg

• Seller of Sterno cans, customers drinking it for alcohol. New industrial version contained more methanol, killing 30+ people.

Mistake

1L, Criminal Law

View Note >>

Mistake of Fact

• Specific intent crimes: must simply be honest
• General intent: must be both honest and reasonable

Mistake of Law

• Exceptions "to mistake of law is no defense"—see Diamond, p. 211—must always be reasonable. Some examples:

• 1. Must be published
• 2. Reasonable reliance on highest court (maybe federal courts of appeal)
• 3. A statute later determined to be invalid
• 4. Rely on an official’s interpretation of a statute—a very mushy exception—who is an "official"? Usually something like an attorney general, insurance commissioners.
• 5. When the extra-special element is that you know it is illegal (conspiracy is one common example).
• 6. Reasonable reliance on police request for assistance.

How does this work in general?

• Ignorance of the law not an excuse, nor is an unreasonable mistake.
  
• Must use some sort of "due diligence" before relying on the mistaken fact.
• Only applicable to a general intent crime.
• Otherwise any mistake of fact that would negate the crime does so.
• Otherwise must be an honest and reasonable mistake.
• How does this work in MPC?
• Allow mistake of fact to negate criminality for mistakes of fact of any lower level of culpability
• Purposeful/knowing: reckless & negligent mistakes of fact excuse
• Reckless: negligent mistakes only

Gordon v. State

• Voted when not actually 21, but relied on mother’s telling him he was 21, and close friend of the family told him this too.

Post-pleading, non-trial resolutions (like settlement)

1L, Civil Procedure

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• Don't confuse percentage of cases that result in a trial with the percentage of cases filed that are adjudicated. Many are adjudicated without a trial.

• Failure to Prosecute (involuntary dismissal)

• Voluntary Dismissal
• Generally without prejudice.
• But don’t want file/dismiss then file/dismiss—can't do it once defendant has answered—Rule 41(a)(1)(i)—or later if all parties agree.
• Also can't do it multiple times—you get 1 chance to fix it.
  

• Settlements
• Should it be judicial or governed only by contract law?
• How do I enforce agreement once I dismiss lawsuit?
• Breach of contract (the settlement agreement)
• Judicial decree/consent decree—dismissal of action that includes agreement as basis—court has continuing jurisdiction to enforce decrees in front of it—don’t have to go to the back of the line with a contract claim. ALSO—on a federal claim, can stay in federal court, otherwise contract claims are STATE CONTRACT matters. Judges DON'T LIKE it when parties don’t follow their orders—and with a consent decree, get to see same judge (typically).
• But to get this, must have a complaint filed in the first place (in order to get a case before the judge).
• This is a problem, because the allegations go on record—can’t avoid, even if that’s one reason to settle in the first place.
• So can rewrite complaint to be more generic, like a general contract claim. Just has to be a complaint.
• Generally judges don’t review settlements, but probably will look it over (at least for definiteness, whether its well-crafted) before entering a decree—but may also look at fairness.
  

Forms of Relief

1L, Immigration

View Note >>

• Applying for asylum
• Restriction on removal
• A person may not be removed to a country where her life or freedom "would be threatened" (different from well-founded fear of persecution)
• = clear probability of harm
• CAT—even "aggravated felons"—cannot be sent you to a place where they will be tortured—interpreted by Homeland Security as "at hands of the government"
• Adjustment of status
• Limited immigration benefit giving beneficiary "privilege" of changing from non-immigrant classification to lawful permanent residence
• Lawful admission or parole
• Temporary Protected Status (cannot be granted by immigration judge in removal proceedings)
• Extension of status (cannot be granted by immigration judge in removal proceedings)
• Cancellation of removal
• Long-term permanent residents who are deportable or inadmissible if they have been LPRs for at least 5 years and resided in the US in status for 7 continuous years may have the proceedings terminated and the grounds waived.
• Non-permanent residents who have resided continuously for 10 years and can show exceptional and extremely unusual hardship to their US citizen or LPR child, spouse or parent may have proceedings terminated and receive LPR status.

Bad Situations! (Difficult to get relief.)

• Prior removal order
• Post-removal order, failure to depart and no pending appeals
• Expired non-immigrant status
• Entered the US without first having been inspected by DHS

Statutory Interpretation (Federal Immigration)

1L, Immigration

View Note >>

• The purpose of law is to provide certainty
• People want/need to know consequences of behavior, especially for those engaged in commercial activities—need to know boundaries

• Loose interpretations can present some major problems, because application unclear
• You are witnessing an internal struggle within the judiciary about its relationship with the legislative and executive branch
• Chevron, etc.—this area of law very confusing
• While some cases may appear clear you can see that they (the court) could have viewed the statute that they were reviewing in a different way
• Just b/c there are rules doesn’t mean they area always applied in the same way—two courts could come out completely differently

• SCOTUS only decides approximately 200 cases per year
• Wait until conflict is sharp before intervening
• Can mean that uncertainty/unsettled areas of law remain for a while
• Courts are not supposed to be partners with the legislature
• The legislative and executive are more like partners
• Courts will decide when Congress or the agency has gone too far
• Court will guard their limited jurisdiction
• Very territorial and protective!
• Court views its role as essential to providing a sense of certainty in the law
• Once again, certainty is key

• Agency rules have nationwide application and can give a sense of greater certainty than court decisions, especially those of lower courts
• When an agency decides or gives an interpretation, it has impact across the U.S.
• Except for SCOTUS, a court decision applies in a narrow geographic area (unless agency adopts it or other courts pick it up)
• Thus can have 1 set of rules for U.S., and all of U.S. except for 9th circuit or something. Or even N.D. Cal…

Immigration cases are different than other kinds of cases

• Greater deference to agency (often)—
• delegation that's written into statute
• by its nature, authority to determine rules of entry, or who can have status is very different that rules of other areas of law—Congress can do most of what they want
• Fewer constitutional constraints
• Sometimes there are no constitutional concerns
• Thus statutory construction especially key

Useful Source Materials for Immigration Statutory Interpretation

• Start with statute (Immig. Natu. Act)
• Regulations: Title 8 C.F.R. and Title 22 C.F.R. §§ 40-46.—changing this is hard—agencies are bound by own regulations
• DHS policy manual—the "Operation Instructions" (O.I.)—more changeable, more used day-to-day
• Dept. of State—Volume 9 of the Foreign Affairs Manual (F.A.M.)

Plain-Meaning Rule

• The ordinary and plain language of the statute will be followed even if the gov’t agency charged with its interpretation has previously applied it in a contrary manner
• Part of the reason for a rule of interpretation which relies on a very straight-forward reading is that of separation of powers
• The legislative body is best suited to statutory drafting
• The court doesn’t write laws, they interpret them and apply them in a narrow way
• Under the plain-meaning rule as applied in Phinpathya is that the legislature and not the courts are responsible for correcting drafting errors in a statute

Gonzalez (of Elian Gonzalez fame)

• Unless a statute's language is unambiguous, a statute will not be interpreted as divesting a court of all jurisdiction to review agency action.
• It is assumed that Congress will not inadvertently deprive a person of all avenues of review if agency action.

Chevron

• Particularly in cases involving gov’tal agency action the court will look to whether Congress has spoken directly on the question?
• "Agency" action usually implicated delegated authority by Congress to a part of the executive branch
• Where there has been a delegation of authority
• Silence on a particular question will be treated as an expectation that gap filling will be done by the agency.
• In which case, the reviewing court may not impose its own construction.

Mead

• Mead should be viewed as a refinement of Chevron
• Chevron deference will only extend to agency action that amounts to formalized rule-making or adjudication
• It does not extend to the less formal rules or policies which make up agency action.
• Non-retroactivity
• Finality
• Constitutional considerations
• Bills of attainder
• Due process
• Takings clause
• Ex post facto prohibition
  

Landgraf

• Of paramount concern is the notion that laws are designed to create a sense of order and understanding of the rules to be applied in a given situation
• Therefore statutes will not be applied retroactively unless the statute clearly calls for that interpretation

St. Cyr

• Retroactivity of statutes as applied to immigration law
• Congress may enact laws which are retroactive but only within proscribed areas
• While the enactment in question was not a criminal statute, it did attach an immigration consequence to a criminal conviction
• Retroactivity will only be applied where it is absolutely clear on the fact of the statute

What is "good faith"?

1L, Contracts, UCC

View Note >>

UCC 1-201(19)

• "Good faith" means honesty in fact in the conduct or transaction concerned.
• Subjective standard.
  
• Could be a lower standard if you know less. (Could be honest and ignorant...)
• Applies to everyone.
  

UCC 2-102(1)(b)

• "Good faith" in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.
• Adds an "objective" standard.
  

Dalton v. ETS

• Took SAT, increased score 410 points.
• ETS ignored all his additional information, proceeded only by saying not the same handwriting.
• ETS did not exercise good faith in dealing with Dalton.
• But litigation is ongoing.
• Treating ETC like a gov’t agency, must simply apply rules, not wanting to second-guess decisions, simply tell them to comply with procedure.

Eastern Air Lines v. Gulf Oil

• "Fuel freighting": filling up and the cheaper stations and carrying more-or-less fuel in the plane based on fuel charges in particular places.
• Court finds Eastern’s performance to be consistent with good faith and establish commercial practices.
• 2-208(2) and §203(b):
• Looked at contract—and swings were incorporated
• Course of performance—never a problem before
• Course of dealings—in this case, didn’t really need to look at this—30 year history of same contract (well, with renewals)
• Trade usage
• Concluded Eastern did not violate/breach contract
  

Market Street Associates v. Frey

• JC Penny sold property to GE and then leased it back
• Paragraph 34 req’d GE to reasonably negotiate and gave JC Penny right to buy back under market value if they didn’t do so.
• Market Street took over from JC Penny, wanted to buy back land—GE didn’t respond, didn’t negotiate, Market Street didn’t mention paragraph 34, Market Street moved to invoke paragraph 34.
• Askws for specific performance b/c it’s land (presumed unique).

Dickey v. Philadelphia Minit-Man Corp (good faith & “best effort”)

• • % lease of gross profit.
• • Switching from washing to detailing arguably resulting in less gross profits and thus less money going to lessor.
• • Tenant has increased profit, but the gross income has decreased.
• o Example:
• 100/day @ $5/car, $1 profit = $500 gross, $62.50 to landlord, $37.50 to tenant
• 20/day @ $20/car, $10/proft = $400 gross, $50 to landlord, $150 to tenant
• Good faith business decision, therefore not a breach of the contract.
• My idea: if you’re taking money strictly at expense of landlord, not good faith—if there’s a 3rd party, then OK.

Bloor v. Falstaff Brewing Corp.

• Liquidated damages clause—claim that defendant had violated best efforts clause—sold IP of Ballantine to Falstaff

General and Specific Intent

1L, Criminal Law

View Note >>

General Intent

• M/R directed at non-mental element of crime
• Intent needed to complete the physical acts or circumstances of a crime (sometimes like "knowledge")
• Example: a crime of 1. assault (ACT), 2. fed. officer (A/C), 3. performing duties (A/C)
• There is still a general mental requirement that courts apply to the overall crime.
  

Specific Intent

• M/R concerning matter which is not element of crime
• A purely mental state specified in the statute and not related to physical act (something like "purpose")
• Example: if crime above added 4. with purpose of impeding officer from duties, it's now SI because it lists a state of mind that must be proven.
  
• Proving act alone not enough to prove SI crime
• Some defenses only apply to SI crimes (vol. intox.)

Why know specific/general intent?

• Specific intent more forgiving, can make mistakes of fact (even unreasonable). (Vs. general intent, must be "reasonable")
• Specific intent, allow voluntary intoxication (vs. only involuntary intoxication for general intent)
• MPC: Crimes should reflect culpability and there should be clarity
• Reject specific/general intent (like 1/3 of states)
• Vol. intox. is reckless conduct, can't negate reckless/negligent crimes, but if crime is purposeful or knowing, can introduce vol. intox. as effective defense by negating mental element.

Commonwealth v. Koczwara

• Charged with crime of selling beer to minors (actually his employees). Public welfare "strict liability."

State v. Adjustment Department Credit Bureau

• Two approaches:
  
• 1. any agent under scope of their employment OR
  
• (MPC) 2. crime itself must be authorized

Immigration and Naturalization Service v. St. Cyr

1L, Immigration

View Note >>

INS V. St. Cyr, 533 U.S. 289 (2001)

Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. He would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but his removal proceedings were commenced after AEDPA’s and IIRIRA’s effective dates. The Attorney General claims that those Acts withdrew his authority to grant St. Cyr a waiver. The Federal District Court accepted St. Cyr’s habeas corpus application and agreed that the new restrictions do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed. (Emphasis mine.)

Privilege and Discovery

1L, Civil Procedure

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A party may obtain discovery concerning any matter, not privileged, which is relevant to the claims or defenses of any party.

Privileges are determined by rules and case law outside the discovery rules. If a party withholds otherwise discoverable information because of claimed privilege, the claim must be made expressly and must describe the information or things withheld in a manner that will enable other parties to assess the applicability of the privilege.

• Covers relevant (i.e., otherwise discoverable) information that is actually germane to a case.
• Involves certain relationships that are considered worthy of special protection
• All jurisdictions respect attorney-client privilege, partly because it's part of the Constitution (right to counsel), and is based on an old common-law privilege.
• Most jurisdictions protect some form of spousal privilege, but with variations.
• Others: MD-patient, priest-penitent, accountant-client (but varies from place to place).
• Can be waived, then no longer protects.
• Formally by not invoking
• Or if private communication has already been shared with 3rd parties
• Such as filing suit about medical issues, which mostly removes MD-patient confidentiality
• Attorney-client privilege
• Protects having to disclose particular communications and things you know only by virtue of those communications...
• ...but does not insulate from discovery the subject matter of those communications to the extent you know about them independently of the communications themselves.
• Upjohn Co. v. United States, 449 U.S. 383 (1981)
• Extended corporate attorney-client privilege beyond just the top officials of the corporation.
  

Discovery, Specific Cases

1L, Civil Procedure

View Note >>

Davis v. Precoat

• Charged that racially and insulting derogatory comments abounded (hostile environment).
  
• Title VII of the Civil Rights Act of 1964.
• Document request for complaints alleging race/national origin discrimination filed by other employees at same plant.
• Discovery always filled with duplication/redundancy (to make sure nothing falls between cracks).
• Defendant did not turn over documents.
• Plaintiffs filed a "motion to compel" with the court.
• Courts get dragged into it when parties can't work it out.
• Discovery mostly left to parties to implement, presume good faith (that is often not there!).
  
• Rules work only if both sides have minimum commitment to making them work, otherwise extremely inefficient to constantly have to run to court with motions to compel.
• Courts are reluctant to come down too hard in discovery, want parties to work it out because the court isn't involved from beginning.
• Appealing a "Motion to Compel"
• Motion to Compel NOT A FINAL JUDGMENT
• Thus, can't appeal until end of case.
• Might be able to appeal if they lose case on various grounds, including this one.
• But will be hard to show prejudice on this issue (that they wouldn't have lost BUT FOR this ruling).
• If it didn't cost the defendant, appeals court doesn't care about fixing it.
• SO—for the most part, discovery means what district courts and magistrates say it means—but most issues NEVER GO TO COURT.
• Also note: standard of review is "abuse of discretion," not "de novo."
• Want access to other complaints involving similar discrimination—how do these other allegations fit into plaintiff’s case? Why are such allegations by non-parties relevant to the claims of these plaintiffs?
• Relevant to demonstrating pattern/practice of discrimination. The more people who allege unfair treatment, the harder it is for defendant to blame plaintiffs. See Yeazell, p. 410.
• Relevance depends on a presumption that if you discriminate against one person, more likely to discriminate against another person—what is relevant depends on what we think motivates human behavior.
  

Steffan v. Cheney

• Relevance also turns on substantive law.
• Steffan resigned from Academy after recommendation of discharge, sues saying improperly dismissed him from school due to homosexual orientation.
  
• That alone is not a Constitutional basis for exclusion from Academy (since it is solely due to mindset, statements, admissions).
  
• Policy at time based on orientation, not conduct.
• Constructive discharge—due to resignation vs. firing—functional equivalent of firing.
• District court dismissed (with Rule 37 sanction) claim due to failure to answer/cooperate with discovery.
• Steffan invokes 5th Amendment.
• Note that even in civil case, can invoke 5th Amendment privilege if testimony can be used against you in another, criminal setting.
  
• Not used very often because in a civil case trial lawyers can tell jury and they can draw inferences (unlike criminal cases).
• Assuming arguendo that Steffan’s theory applies only to policy that boots people based on statements ("who-he-is"), not conduct.
• Limited to grounds used by government to take action, not what they could do (or ever be able to on another reason later)—past actions, not potential future actions.
• Think about question "did you ever break curfew"? (Grounds for booting, but CLEARLY not relevant.)
  
• Shows limits of relevancy.
  

Discovery

1L, Civil Procedure, FRCP

View Note >>

To prove claim in court, need evidence. Allegations in pleadings are just a start...

• Evidence law complicated, can't fully appreciate it until Evidence in 2nd year.
• We will think of evidence less technically, and (see Yeazell, bottom pp.408/409) look it as "that which proves or disproves something the law says matters."
• In real world of civil litigation, discovery consumes a lot of time and resources. To really get this subject, real-world experience is really key—Q&A mastery comes with experience.
  
• Formal requirements of discovery do not occupy the full field of information flow, a lot of time discovery takes a more informal form.

Until a decade ago, no obligation to turn anything over that was not specifically asked for in discovery.

• Former goal: to comply in a technically accurate manner but as narrow as possible in a form that's hardest for other side to use.
• This hands-off approach considered time consuming and detrimental to less-skilled attorneys and their clients.
• Too much of a "game" for the drafters of the FRCP.
• So in early 90s, various districts experimented with mandatory initial "disclosure."
• Later adopted across all districts in the full-out FRCP.
• Certain materials you know are material must be turned over, even without a specific request.
• Witnesses (to car accidents, for example), copies of contracts at issue in suit, etc.
• THEN move to interrogatories, document requests, depositions, etc.
  

Basic organizing concept of relevance. (Rule 26, p.71 of Suppl.)

• Relevant to any claim or defense, includes all non-privileged information.

Chevron and Deference to Administrative Agencies

1L, Immigration

View Note >>

Changing interpretations of laws (agencies) when administration changes

• What is it really all about?
• Ensuring the will of Congress is carried out. Isn't that the real purpose?
• Or are agencies overruling Congress?
• Chevron is THE case for administrative law

An approach to take:

• Delegation: was there a "delegation"?
• Did the agency have the authority to exercise power?
• i.e., did Congress have the power to give this authority to the agency?
• ultra vires: is the person acting outside or within their authority?
• Was the delegated power "procedurally correct"?
• Did it comply with the notice and comment requirements of the APA?
• Statutory interpretation lessons from Chevron
• Has Congress spoken directly on the question?
• If not, reviewing court may not impose its own construction.
• Must ask whether the agency interpretation is based on a permissible construction of the statute.
• If permissible, OK
• Where there is an explicit gap this may be construed as an "express delegation" of authority for the agency to issue regulations
• In analyzing whether one interpretation will be given over another the Court will look to the legislative history taken as a whole
• In Chevron, it was deemed to be silent
• Where an agency has changed its interpretation and does so without explanation it will generally be given less deference
• After all, law designed so we know how to behave—really, should not change based on administration/politics, impacts legislature's authority when this happens
• Unless it can be explained
• Part of problem of Chevron, one could say that this happened, and should have given less deference
• But one can rationalize all sorts of things…
• Also when different agencies have different interpretations, less deference

Overarching Lesson

• Judges are not experts in the field, are not part of the political branches and as such should avoid reconciling competing interests
• Courts should be insulated from having to make policy choices

Bribery

1L, Criminal Law

View Note >>

A defendant is guilty of committing bribery once he or she offers or solicits a bribe.

• Purpose need not be accomplished.
• Bribe need not be actually paid.
  

State v. Bowling

• Liquor license case
• Can't convict, because legislator not acting in "official" capacity
• lobbying on behalf of the person who gave money not an official act or vote
• "Corruptly" offer or ask for an official action

Mens Rea

1L, Criminal Law

View Note >>

MPC levels of culpability:

• Purposeful
• Knowing
• Reckless: know vs. should have known
• Negligent: different than tort negligence, must be gross deviation

Three questions for every statute:

• 1. GI or SI? (less important in MPC)
• 2. Level dimension (what is the level of mens rea: P, K, R or N?)
• 3. Object dimension (to which elements does M/R attach?)

State v. Perry

• College student in MN, lived in dorm, would get dressed in front of window (didn't close blinds), seen by passer's-by
• Charged with indecent exposure.
  
• Found guilty by trial court of intentional exposure, overturned on appeal by supreme court of the state due to lack of appropriate mens rea (specific intent, in this case).
• Act must be "intentional, willful, and lewd."
• But dissent finds it difficult to believe the lack of intent (purposeful or knowing), based on the circumstances.
• Extra requirement of specific intent.
• Extra-special mental element required for the particular crime.
• In this case, special intent to be lewd.
• In contrast to the general intent (the mental state associated with the crime)
  

United States v. Villegas

• Vials of blood washed up on the shoreline.
• General intent level of culpability:
  
• "Knowing" = "substantial certainty"/"practical certainty"
• Subjectively understood by defendant
• Sometimes "high probability" standard tends to be used about knowledge at the time of the crime (that something was actually drugs, etc.)
  

Burglary

1L, Criminal Law

View Note >>

Common Law Elements:

• 1. Breaking
• 2. And entering
• 3. Dwelling
• 4. Of another
• 5. In the nighttime
• 6. Intent to commit a felony (or larceny in CA)
  

Modern Elements:

• 1. Unauthorized entering
• 2. Of a building or structure
• In CA: "dwelling" makes it 1st degree
• 3. With the intent to commit any crime (felony/larceny in CA)
  

MPC Elements:
o 1. Trespassory entering (not into a shop, for example)
o 2. Intent to commit any crime

People v. Gauze

• Roommates sharing apartment
• Can one be guilty of burglarizing own home?
• Not the "dwelling of another," so no "breaking," not at night....
• BUT modern statutes have changed these elements to some extent.
  

Amendments to a Pleading (Rule 15)

1L, Civil Procedure, FRCP

View Note >>

Rule 15: Amendments to a Pleading

• "leave [to amend] may be freely given when justice so requires" (Yeazell, p. 398)
  
• a. That the would-be amender should have a good reason for not getting the pleading right the firs time; AND
• b. Allowing the change now shouldn't hurt ("prejudice") the other side too much.

• 1. Rule 15(a) May amend any time before a response of pleading is served
• Or within 20 days if no response permitted.
• Otherwise
• only by leave of court (leave given when justice so requires)
• or with written consent of adverse party.
• 2. Rule 15(c) Relation Back of Amendments
• Relation back permitted by law providing statute of limitations OR
  
• Claim or defense asserted in amended pleading arose out of conduct, occurrence set forth or attempted in original pleading, OR
• The amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision is satisfied and, within the period provided by Rule 4(m)…
  

Interpreting Contract Language

1L, Contracts

View Note >>

• Can often use parol evidence to explain/clarify/define terms of written agreement.
• See Farnsworth Suppl. pp. 218-219 (R.2d §§209-217)
• Allows parol evidence to show meaning of writing
• Vagueness/ambiguousness:
• Vague = unclear at margins, word could go either way
• Ambiguous = two+ meanings
• Ambiguity of term (e.g., light = weight vs. light = brightness)
• Ambiguity of syntax
• Whose meaning prevails? R.2d §201 (Suppl. p. 216)
• If parties agree, then that's what the term means (blue can mean red...)
• See "The Case of John’s Other Wife." (Farnsworth, p. 581)
• John has two living wives (left one, never divorced her), dies with life insurance purchased after marrying second, insurance company and John both agreed beneficiary is 2nd wife, even though policy only says "wife."
  
• Otherwise...
• The less knowing/more innocent party who didn't know gets benefit of doubt.
  
• Ambiguity construed against drafter.
• R.2d §203(b); §2-208 (hierarchy of interpretation):
  
• 1. express terms of contract (include incorporation by reference)
• 2. course of performance
• 3. course of dealing (same parties, other deals)
• 4. trade usage

Raffles v. Wichelhaus

• Two ships named "Peerless"
• Ambiguous terms, as two ships named "Peerless" are leaving the same port for the same destination
• Therefor NO CONTRACT because parties lacked mutual understanding (§201(3)).
• No basis for decision.
  
• No "meeting of the minds."
  
• No consensus ad idem (no agreement on this item).
  

Oswald v. Allen

• Two sets of coins, seller wants out. Court decides no basis for deciding between two (thus vague), thus no contract. §201(3).

W.W.W. Associates v. Giancontieri

• Wants to use extrinsic evidence to interpret (or perhaps contradict?) the language of the contract.
• Up to court to decide whether the agreement needs such clarification/additions.
  

Rule 8, Specific Cases

1L, Civil Procedure, FRCP

View Note >>

Zielinski v. Philadelphia Piers (PPI)

• Forklift collided with plaintiff cause him to be injured and to seek damages. In federal court on diversity (since this is a tort case, Yeazell, bottom of p. 384).
• PPI not company really responsible for accident, but plaintiff wants PPI in the case anyway. Wants order saying PPI the operator and employer of person at fault
• A judicially imposed stipulation (deem something to be true that X is true as a matter of law even if not as a matter of fact).
• I.e., just deem PPI as the employer (as "admitted") even though PPI hasn't admitted that.
  
• Will assume admission for purposes of trial.
• Why? Because PPI screwed up litigation in Answer (ineffective denial).
• PPI denied "owned, operated and controlled," and that accident occurred, but other facts show PPI does actually admin accident occurred
• They mistakenly denied whole paragraph, even though they only intended to deny parts.
  
• Also they did own the forklift.
• Two other problems:
  
• 1. Didn't correct Johnson’s misperception of his employer,
  
• 2. Didn't use proper pronoun in Interrogatory 2 (see Yeazell, p. 383, para 7)—said "we"—but actually a company called Carload Contractors did investigation.
• District court avoids attributing bad faith to PPI, thinks of it as careless instead.
• The problem:
  
• Rhe statute of limitations has run, plaintiff can't simply refile (Rule 18?) against different plaintiff by amending complaint.
  
• Also same insurance company covers both PPI and Carload.
  
• Thus, not many economic issues.
  
• Otherwise there might have been a different result.
• Practitioner's Note: Paragraph 5 is a compound allegation lumping everything together, contributing to the problem.
  
• Split up every allegation into its own paragraph.
• Perhaps a little counter-intuitive to see reliance on Pennsylvania court decisions.
  
• But this is all about federal rules of civ pro—and state court principles not included: Hannah v. Plumer. (BUT case PRECEEDES Hannah.
  

Layman v. Southwestern Bell (Affirmative Perry)

• Affirmative defense would be easement, want to introduce documents at trial to show that.
• Plaintiff says defendant should have put affirmative defense in Answer.
• Trial court disagreed, allowed into evidence.
• Court of appeal reverses trial court.
• Why? List in Rule 8 doesn’t mention easements.
• But see 8(c )—other matters that should be considered affirmative defense, list is not exhaustive.
• Is this a new affirmative defense? Or is it just logical? Tricky question.
• See Yeazell's notes, p 389-392.
• Goal is to try to avoid unfair surprises.
  
• Purpose of Rule 8(c ) to clue other side in as to what case is about.
  
• I.e., fair notice and avoiding unjust surprise.
• Implications: how much we should insist on in the Answer may depend on how much is going to be uncovered during the course of discovery that supplements the answer.
  
• This case was unlikely to have much discovery (vs. high-stakes litigation with lots of back-and-forth).
• Why wouldn't phone company go ahead and list easement in the Answer?
  
• If they WANT surprise, not OK with court, not something we protect.
  
• Actually about BURDEN of PROOF—if it's an affirmative defense, then you must prove existence (defendant then has the burden of proof).
  
• Burden of proof usually tracks burden of pleading. See note 5, p. 391.
  
• Can write "deny to the extent that there was an easement"—this kind of language doesn't insist that it's an affirmative defense.
  
• Thus MAY reduce burden of proof possibility.
  
• I.e., doesn’t CONCEDE that issue.
  

Rule 8. General Rules of Pleading

1L, Civil Procedure, FRCP

View Note >>

Rule 8. General Rules of Pleading

Rule 8(b): Either have to admit or deny factual allegations or can deny on basis of not knowing.

• That which is not denied is admitted.
• Denials shall fairly meet the substance of the averments denied. Must engage allegations to indicate what part you agree and what part you do not.
• When party intends to deny only part, pleader shall specify only part that is true and shall deny remainder.
• An answer under Rule 8(b) must contain a response to each and every factual allegation in the complaint. Must say something—even just generally—about each item in the complaint.
• Answer can contain stuff in addition to denials, including objections to suit going forward:
• Like objection to subject matter jurisdiction, or venue, or to way process was served.
• While includable in answer, these objections are bringable before filing Answer in form of a pre-answer motion. Can file one, and only 1, pre-answer motion.
  
• But remember: can also raise these issues in the Answer.
• Defendants may prefer pre-answer motion because is easier than researching what you can admin/deny in the Answer. (See Yeazell, p. 378.)
• Pre-Answer trap for the unwary:
• Certain objections that if you’re going to make them, you must make them in the first piece of paper you file.
  
• This includes the pre-answer motion. Must be raised first-time, whether in pre-answer motion or the answer.
  
• Includes most defenses in Rule 12 ("Defenses and Objections--When and How Presented--By Pleading or Motion--Motion for Judgment on the Pleadings").
• See question/note 6a, Yeazell, p. 381.
  
• See also Rule 12(h): "Waiver or Preservation of Certain Defenses"
  

Rule 8(d): if you don’t deny you admit.

• Four choices in Answer:
• 1. Admit
• 2. Deny
• 3. "I don't know" (which serves as a denial)
• 4. Do nothing (effectively admits)
  

Parol Evidence Rule

1L, Contracts, UCC

View Note >>

See R.2d §§ 209-217, Farnsworth Suppl. p. 219 (UCC 2-202)

• Substantive rule of state law, not really a rule of evidence.
• Encourages reliance on writing and putting K’s in writing, preserve integrity

• Refers to discussions/negotiations prior to K.
• K supersedes everything that happened before (writing excludes that).
• Excludes previous stuff, including evidence of prior or contemporaneous negotiations, agreements or concessions when such evidence is offered to alter written agreement.
• Only applicable if there is a writing
• Then "parol" (note spelling!) has to do with "extrinsic"/informal evidence of contracts not within the contract itself.
• Only accidental overlap with Statute of Frauds
• Subsequent modifications NOT covered by parol evidence rule.
  

Questions to ask:

• Is there an integration (writing)? (§ 209)—expressly reserved as a matter of law for the judge
• if NO, end of discussion.
• YES: §§ 214, 215 (what’s OK and not OK with parol evidence)
• Partial or complete? (§ 210, also reserved as matter of law)
• Partial?
  
• Example:IOU $500 with date, left out details of interest, etc.
• Can add "consistent additional terms" (§ 216)
• Complete? I.e., exhausted subject matter...
• THEN CANNOT ADD (§ 213)
  

Gianni v. R. Russel & Co.

• Operated store, entered into a new lease
• Oral agreement granted exclusive right, but not in written contract between parties.
• Is oral agreement outside of contract but contemporaneous?
• Rrial court found for plaintiff, appeals court reversed:
  
• "written contract = best evidence."
• Tried to argue that withholding tobacco was a separate agreement, but court doesn't agree.
• Rule that favors writing favors the repeat player who does contracts regularly.
• Nothing in contract will foreclose equitable override by court if court so desires
• Consideration alleged was in main agreement but what he wants was not in that agreement.

MCC-Marble: reference to CISG, discards parol evidence rule in that context.

Bollinger v. Central Pennsylvania Quarry

• Alleged mutual mistake (paragraph they thought was in the contract to be reformed to add that)
• equitable remedy
• Contractor had been doing what they asked, then stopped, had also done it for neighbor
• A contract only has force of law by parties assent
• Thus, modifications by mutual agreement can change contract.