Eugene is right: The is no consideration

but he still can collect. Let me explain...

There is definitely no consideration, but there are ways to enforce a promise without consideration.

The answer is promissory estoppel. There are three elements that make up promissory estoppel:

1. a promise that likens to induce action or forbearance
2. Reliance
3. injustice will occur if it is not enforced

The promise that Mrs. Melmouth told Queensberry that she would be him in a year. This induced Queensberry to not collect from Mr. Melmouth and he actually relied on the promise to his detriment (he did not receive the money that was rightfully owed to him.) Like Eugene mentioned, there was nothing stopping him from getting the money from Mr. Melmouth; EXCEPT for the promise by Mrs. Melmouth. The last element is injustice; If the promise is not enforced then injustice will occur. This element is debatable without a further examination of the facts. However, it seems that if Mrs. Melmouth doesn't live up to her promise then Queensbury won't be able to collect his money--hence injustice.

So yes...there definitely isnt any consideration. But there are other means of enforcing a promise such a promissory estoppel. Eugene...you will learn that in the next few weeks...

However, the more important issue is whether promissory estoppel should even exist. As a strict constitutionalist and moreso a conservative who believes in individual responsibility, I feel that the theory of promissory estoppel has been grossly expanded to the point it has ruined the law of contracts. The liberal idea that you don't need the traditional elements of a contract to enforce a promise/offer anymore is ludicrous. It has burdened the legal system with frivolous lawsuits and has made innocent parties liable for situations that don't fit the mold of traditional contract formation.

Don't get me wrong--there are many instances where promissory estoppel is important and necessary, but in the modern legal environment, promissory estoppel has been liberally applied to fit every possible situation out there. This slippery slope is the end of contracts as we know it.

Consideration Continued

Okay, here is my analysis of the hypothetical. First, I will start with what I believe is the wrong answer. In law school, the professors always say that you should be prepared to argue both sides of an issue. So, here we go. 

A contract exists because both parties have given something and both parties have gotten something. The wife gave the note and received a year of non-collection from the collector. The collector did not collect for a year and in return received the wife's note. A contract exists when a promise is exchanged either for another promise or for a performance. Although the collector never accepted (did not promise), he still in fact performed. The wife received a valuable benefit from the collector, which constitutes consideration, and therefore a valid contract. Sounds good. Case closed.

I don't think so. Here is what I think the answer is. The offeror is the master of his offer. He dictates the terms of the offer and he sets the mode of acceptance. The wife clearly and unambiguously asked for a promise in return for her promise. She was bargaining for a promise, not a performance. What she wanted by giving the note, more than anything else, was to be secure in knowing that she had a year to pay off this debt, and that the collector would not come banging down her door at any moment. This security is what she was bargaining for, a type of security that could only be granted through a promise. She did not get it. She was forced to sit on her hands and knees praying all year that the collector didn't show up. On the other hand, what did the collector really give up or sacrifice? Sure, he did not go and collect for a year. But if he had wanted to, he would have been well within his legal rights to go and collect at any moment during that year because after all, he never actually accepted her offer. So, if he takes the note but makes no commitment to actually wait the year, as he did in this situation, he has in reality given up nothing at all. He can sit at home and think to himself if I so choose I can wait the entire year, but if over the course of this year I really need the money, I'll just go collect it. That is not consideration. He is not bound to anything. He can do whatever he wants. His position is advantageous beyond the point of being a valid bargained for agreement.   

Ultimately, did the wife receive something valuable? Did the collector give something of value? Absolutely, without any question. But it simply was not what was bargained for. The wife bargained for a promise and never got it. Consideration must be bargained for, and here the purported consideration has not, it is therefore invalid. You might say that his grunt may have carried with it some implication of consent to her offer. However, the collector is standing at her door. She simply asks him to just say the word "yes". All he has to do is move his lips and say "yes". Yet, he refuses to do so. It would have been the easiest thing in the world to do, but he choses not to do it. No reasonable person can look at his actions and say that they constituted an acceptance of her offer. There is absolutely no objective manifestation of intent to be bound to her terms. 

Anyway, that's just me, a 2nd month law student, playing judge. I welcome any counter-arguments or further comments on the subject.   

Consideration

One of the most difficult concepts for law students to grasp in contracts is consideration. There is not really a working definition for the concept. It can best be described as something that has been bargained for. It is a benefit that one party to a contract receives, or some sort of sacrifice or burden on the part of the other party. A contract cannot exist unless both sides give consideration.

The following is a problem from my contracts casebook. I loved this hypothetical. I have my own idea of what the correct answer is, but I will leave that explanation for tomorrow. For now, I would just like to throw it out there and give everyone the chance to think about it. I would also certainly welcome comments if anyone is interested in doing so. 

Mark Queensberry was the current holder of a promissory note signed by Sebastian Melmouth. When the note matured, Queensbury came to Melmouth's house to collect. Mrs. Melmouth met him at the door and handed him a promissory note she had signed for the same amount; it was payable exactly one year later. She said to Queensberry that if he would promise her to forbear collecting on her husband's note for one year, at the end of that period she would pay her note if her husband was unable to pay his. Queensberry just grunted and walked away with her note. He did forbear collection activities for one year. Now Queensberry is trying to collect from Mrs. Melmouth. She is arguing that she had asked for a promise and did not get it, and that there is, therefore, no consideration. Is she correct? 

Second Memorandum Due!

So ever since I received my 1st memorandum back (as a mentioned a few blog posts ago) I have been working feverishly to improve the document so I could turn it in tomorrow as the second memorandum. After countless hours including omitted points, revising bluebook citations, and adding 6 new cases with new rules and principles, I have developed a paper I feel pretty confident in.

I am definitely getting the hang of writing a memorandum. It is an objective piece that is suppose to provide both sides of the argument concerning a potential clients case. It is read by a partner or associate in the law firm and they make a decision in regards to what to do with the case. The writing is completely different then anything I have done before so I'm really happy that I'm getting the hang of it pretty quickly. Our last memorandum is due later in the semester and it is an open memorandum where I will need to conduct WestLaw research for relevant cases that help support and oppose my conclusion.

But in the meantime, I have a Nexis Lexis research class, WestLaw research class and an ethics class to attend to in the next few days. Its going to be a long week, but will come out of it learning crucial tools for legal research.

We are all in it together...

I wanted to take some time and reflect on the law school community. Many of us have heard the horror stories about the cut-throat environment that is seen throughout law schools nationwide. We have heard of those competitive students who actually hide books or even rip pages out so that others in their section cannot use them.

Even though this cut throat environment has dissipated almost completely in U.S. law schools, I was told that a few of these types linger in every 1L class. Fortunately, I have not experienced one of these people yet. Everyone as CUA is so nice and helpful...its kinda funny how different my experience has been compared to all the horror stories I have been told. In fact, I am very grateful for such a community-type environment where everyone is willing to help--it makes the day just a little be easier.

You Don't Scare Me

My contracts professor has built up quite a reputation these first 3 weeks of classes. After the near murder of the poor student last Tuesday, I see a lot of my classmates having trouble coming to grips with his rather in-your-face style of socratic method. Before class today, I overheard two girls sitting in the row behind me talking about how they were having trouble sleeping the night before contracts class because they were thinking about the seating chart and when he might get to their names. During today's discussion, he questioned (very politely I might add) another student who immediately went catatonic. After a full three minutes of awkward silence she told him that she had done the reading and prepared, but she was too nervous to function. 

I don't know why this is exactly (perhaps its just my personality), but my experience in the classroom seems to be dramatically different from most other students. I find the professor to be both amusing and challenging. I am one of the few people relaxed enough in class to recognize his incredibly dry sense of humor and get a chuckle out of his jokes. I volunteer every class because I desperately want to interact with him. I want him to know that I understand what he is saying, and I want him to challenge me (maybe I also want to let him know that he doesn't scare me). He has taken the liberty of referring to me as "Gene" instead of "Eugene" during class. Considering that I have never exchanged a word with him outside of the giant lecture hall, I suppose this might mean I have made an impression. Who knows though... maybe not. Maybe its just totally random. They do say law school is just a giant mind-f**k. I think there may be some truth to that. 

Pardon the language =).   

That's Law School...

Law school is different. Very different from undergrad. Most of us didn't get lower than a B in college... In law school, my teacher told us that 50% of us will get lower than a B-. This is because of the law school curve.

Our first evidence of this was our first paper. The average for the class was a 71 and the median was a 69. She forewarned us that our grades would be that low since we are learning a new skill. Secondly, this paper was only 10% of that grade because she expected our grades to be that low.

My score was higher than the average score but I was still pretty depressed. However, when i actually looked at her comments on my paper, I felt alot better. She literally must have taken more than an hour commenting on each and every one of the papers she needed to grade. The commenta were detailed, comprehensive and definitely beneficial to my understanding of the assignment. It left me with very little questions and I am ready to move on to my next paper. Additionally, she also scheduled mandatory conferences with us to go over our papers individually. Honestly, a few weeks ago I hated this process of going into a paper dark without any guidance, but know I am understanding what they were trying to do. I am also very impressed that my teacher would take the time to comment in that much detail and to provide me with 20 minutes to meet with her one-on-one.

Our second paper is an extension of the first by adding just a few more cases to the analysis. So after seeing where I made mistakes (which definitely were very minor ones I can correct in 30 mins) I definitely feel like I can get a very good grade on my second paper.

SCOTUS taking back a mistake?

Andy McCarthy reported at The Corner earlier this week that the Supreme Court has invited the parties to argue that the Kennedy v. Louisiana decision was wrongly decided. I am not sure how many people are familiar with this, but it was a case decided during the summer that John and I discussed with our coworkers at great lengths. In a 5-4 decision, the court ruled that a Louisiana law permitting the death penalty for child rapists was unconstitutional. From my perspective, and I am sure John's as well, this is an extremely welcomed development. 

The opinion was obviously very policy driven as the Court's 4 liberal justices and one incompetent justice, Anthony Kennedy, decided to use the case as an opportunity to limit the use of the death penalty. Ideally we know they would like to just end the practice all together, but strong public opinion the other way makes that quite unfeasible. 

The Court's reasoning was quite thin. They argued that since most other states had outlawed the practice of executing child rapists, a "national consensus" had been formed on the issue, which prevented Louisiana from acting contrary to it. As many people observed, the reason most other states had outlawed the practice was because of a prior Supreme Court decision from a few years back that outlawed the death penalty in cases involving the raping of adults. Most states assumed that since the death penalty was outlawed for adult rape cases, it would naturally apply to children as well. So most states outlawed the practice under the assumption that they were required to as a result of the previous decision. How very convenient then that the Court would site a "national consensus" that existed only because of their own previous decision. 

Kennedy also made a borderline incoherent argument that the practice was cruel and unusual. His reasoning was that the punishment is "disproportionate" to the crime. Who really believes that the death penalty is disproportionate punishment for the raping of a child (which in many if not most cases effectively ruins that child's life)? Even then if you were to accept the premise that this was a a "disproportionate" punishment, why does it then logically follow that it is cruel and unusual? What is the standard by which we deem something disproportionate to be cruel and unusual? All questions left open in the Court's flawed reasoning.

It is encouraging to see that the Court is now at least considering correcting an obvious mistake and doing the correct thing.  

Directed Verdicts in Negligence Cases

A directed verdict is where the judge renders a verdict, usually for the defendant, instead of handing the case to the jury because he feels that no reasonable jury could decide in the plaintiff's favor. The last few cases in Torts, a directed verdict was rendered.

I was kind of confused by the decision for the judge to direct a verdict especially in a case where a blind employee bumped into a 75 year old man, which resulted severe injuries when he hit the floor. The old man sued the blind employee for negligence because he did not have his walking cane with him at the time of the incident. However, expert testimony exclaimed that it is common and usual for a blind individual to not use his cane when walking around at his place of employment; therefore he acted with reasonable care.

I agreed, but believed that it should go to the jury to weigh the facts and reasonably render on the side of the defendant. However, the judge rendered a directed verdict of the defendant without handing the case to the jury. Puzzled, I asked the professor to explain. Of course he didn't answer me directly (professors never do) but instead he posed another hypothetical about a malpractice case where the doctor was actually not liable for negligence. He then asked me whether a reasonable jury could conclude that the doctor is not liable for negligence when the plaintiff is in the courtroom bandaged up. The jury would have been swayed by their emotions rather than rendering a reasonable judgment. It made sense when he explained it that way: juries are not always the best to render a decision. (also this was a matter of law and not a matter of fact since there was insufficient evidence that he knowingly or should have known that he was breaching his duty of care...anyway...)

In the blind man case, he did not breach his duty by walking without a cane. It was unfortunate that someone got hurt, but legally, he was within his right to walk without the cane in an area that is most familiar with him. A jury might have felt sorry for the old man if given the case, but that wouldn't have been the correct judgment based on the matter of law since the plaintiff is unable to establish a prima facie case.

Civ Pro a Laughing Matter?

While in Starbucks between classes today, I was reading for my Civ Pro class. The section in the text dealt with the actual service of process (notifying someone that they are being sued) and what forms of service were acceptable and what were not. Evidently, courts go back and forth on what is appropriate "service" and in many instances must take it on a case by case basis. One of the confounding problems is that a lot of times people who do not want to be served can make it very difficult on the plaintiff/government to actually serve them. The book gave some examples of how people tried to avoid being served, how they were eventually served, and whether the court decided that was an appropriate form of service. This case caught my eye in particular. 

Defendant hid himself under his wife's petticoats and refused to receive the papers. The process-server saw him crouching there, so he put the papers on what seemed to be the defendant's shoulder, and went away. The Supreme Court rendered a decision which held that “where a person, to avoid service of summons, shelters himself in his wife’s petticoats, the laying of the papers on his shoulder will be sufficient service.”   

Maybe it's just me, but when I read this passage in Starbucks, I could not help but chuckle. The people around me probably thought I was crazy. I can't imagine it's every day that a law student reads something laugh-out-loud funny in their civil procedure textbook, so I thought I would document the occurrence.  

Yes, It Appears They Are Serious...

Echoing what John said yesterday, Torts can be very frustrating. In a case I read tonight, a school district was held liable in a claim by a student from a different school district. What happened was the Defendant school district wrote a letter recommending a former employer of theirs for a position in Plaintiff's school district. He was hired. Plaintiff was later sexually molested by this guy and she sued the Defendant school district for recommending him for the position. The court found that the Defendant had a duty of care to the Plaintiff because it was foreseeable that this guy could have caused harm to a student at his new position 

Hmmm... bit of a stretch. By this logic, pretty much everyone has a duty of care to everyone else, even if they've never met them and their actions have nothing to do with them. I guess if the end goal is to create a society where the government either directly or indirectly (through coercing a third party) compensates all citizens for anything that goes wrong in their lives, this opinion makes for very good policy. If you think those policy ends are total hogwash, this opinion is a nightmare.  

By the way, this decision was from the California Supreme Court in case you were wondering. All the landmark tort cases come from California. Not many big cases expanding the scope of tort law coming out of Texas or South Carolina.      

Are you serious?

So we officially started Negligence in torts class today. And let me tell you, this pleading negligence stuff is really bothering me. I'm not saying all negligence cases are frivolous; in fact, many are very important and have made the world a much safer place.

But there are many negligence cases, especially against companies that have caused endless litigation that has resulted in owner manuals to be as thick as phonebooks. The American citizen, through negligence litigation, has not only disregarded personal responsibility but has created a society were you blame everyone except for yourself.

We have read cases where products have been misused, individuals trespassing on private property, and reasonable precautions are not enough; all of which the defendant has been liable for negligence. Granted, most of the cases in which these things occurred, the court has ruled correctly and said that the company wasn't liable. However, this is not the case in every situation.

Thankfully, the defense has a tool called contributory negligence (which now, i think is being called comparative negligence). This is an affirmative defense used by the defendant to show that plaintiff was more or equally negligent than that of the defendant's negligence. It is the best tool I feel (or at least that I have learned about) to stop frivolous cases where plaintiff's don't own up to their mistakes but rather try to blame big business.

Do You Want to Be a Lawyer?

In Contracts today, I had a true Paper Chase moment, with my professor doing his best Charles Kingsfield impersonation (the movie is an absolute must see for anyone who is thinking about going to law school). We finished about 5 minutes early and the professor opened the floor up to questions. One poor, unsuspecting student raised his hand on the other side of the room. To be perfectly honest, I did not hear exactly what he asked, but I deduced that it was some sort of simple fact- based question regarding the Uniform Commercial Code. It appeared to be a question that he could have easily answered for himself if he had just gone back and looked at the previous reading assignment again. The professor just stared at the student for about 30 seconds before beginning the following line of questioning... 

"Did you do the reading?"

"You say you did the reading, but your question was not of the type that someone who did the reading would have asked."

"Have you paid attention for the last 90 minutes?"

"You say you have been paying attention, but your question is not of the type that someone who has been paying attention would ask."

"Do you take this class seriously?"

"Do you want to be a lawyer?"

"Would you like to apologize to your fellow classmates for wasting the last 5 minutes of this class with you silly question, when we could have spent it discussing intelligent questions?"

I understood what the professor was trying to do. In reality, the student was probably wasting everybody's time with the question. But that does not make the experience any less mortifying (God knows how the guy must have been feeling). The girl sitting next to me commented that she would not dare ask a question for the rest of the semester. 

I personally would not go that far. But as a general rule I think it will be very prudent for the rest of the semester if I think before speaking. 

Sometimes Even the Best Get it Wrong

In my last post I was discussing how challenging it was to read with a critical eye the legal opinions of some of the most celebrated jurists in American history. What seemed like an impossibility last week (finding flaws in the arguments of geniuses) became reality today. 

In Torts today, we discussed a legal opinion from Oliver Wendell Holmes from 1927. He was in his 80s at the time and was perhaps losing it, but it turned out to be the most bizarre and stunningly incoherent opinion I have read since starting law school. One of the fundamental concepts of torts is determining what is the reasonable standard of care in a given situation. The courts have found that the reasonable standard of care is an issue of fact that should be decided by a jury. But Ollie, perhaps old and cynical at the time, decided that this particular case was one where he didn't need a jury to tell him what reasonable behavior should be, because he thought he had the answer for himself. 

The case involved a man who while in his automobile was hit by a train while driving across railroad tracks. There was no denying the railroad's negligence, but the law of torts states that if the plaintiff was in any way responsible for his injury, there is no liability. Holmes decided as a universal principle that in order for a driver not to be negligent in a case such as this, he had to get out of his car and look both ways down the tracks before driving over them. If the driver failed to do this, he was creating unnecessary risk, and was negligent.  Hmmm.....

The silliness of this opinion was proven by the fact that it was overturned less than 5 years later when Benjamin Cardozo stepped in and corrected the obvious error. Cardozo correctly observed that getting out of the car to look to see if a train was coming clearly would not increase safety, and in fact would make the situation even more dangerous. By the time a driver got out of his car and looked down the tracks, by the time he turned around, got back in his car, started it up again, and began to drive... it was very possible that a train, not visible to the naked eye when the driver originally checked could have come speeding towards the intersection and hit the driver who was now driving across confident that the coast was clear. Cardozo, respectful to his predecessor on the court (ironically Cardozo took Holmes' seat), politely changed the law back to the infinitely more sane policy of letting juries, not judges, decide what is reasonable care.

The moral of the story I guess, is that even sometimes the greats (and Oliver Wendell Holmes is certainly one of if not the greatest) get it wrong on occasion. So, I guess all law students can take some solace in the fact that even the very best legal minds have struggled with this material. 

Just another day at law school

It was just one of those days I didn't want to get out of bed. But thankfully, I did and made it to class on time. Class went as usual; we discussed the removal process in Civ Pro and went into the last shot theory in Contracts.

However, I did have my first club meeting this evening: The Intellectual Property Law Students Association. This organization is devoted to preparing students for the IP arena by bringing speakers, companies, and of course network opportunities to the CUA community. Everyone seemed very nice and very enthusiastic about IP law; so naturally I fit in. It was great to see how many people were interested in IP law especially those that were not pursuing a career in patent law like myself. I was also excited to hear more details about the IP Moot Court especially since I learned the national competition is in Boston each year!!

Third Week Law Student v. Oliver Wendell Holmes

I have been so busy the last few days that it has been impossible to create a post. I am trying to stick to my schedule of staying 2 days ahead on all the reading, but it is turning out to be quite the undertaking. Last night, the Torts reading for next Monday included 8 cases that needed to be read and briefed. I got home from class at about 1:30. Factor in 30 minutes for dinner and 45 minutes to watch Sarah Palin totally renew my faith in politics, and I did not get done with my work until after midnight. 

So far, I would have to say that Contracts is the most challenging course. Not so much because the material is any more complicated than Torts or Civ Pro (in reality con law is actually quite simple and basic once you cut to the essence of the opinions), but because of the professor. He constantly challenges what we read in the case book. When I am reading the cases, I read them several times to gain a full understanding of the facts, the issue, the holding, and the reasoning. I then read over my brief a few times, commit the new law coming out of the case to memory, think about why it makes sense and is the correct resolution given the facts, and move on to the next one. 

This has been quite an effective strategy so far in Torts and Civ Pro. My strong ability to identify the issue in a case, and to fully understand the holding and the reasoning of the court, has served me well in those courses. I have already on several occasions been able to distinguish myself during class discussions through my mastery of these aspects of the opinion.

However, in contracts, the professor is constantly throwing a monkey wrench into my neat, orderly, and concise way of understanding the cases. I find the pattern has become quite familiar. After he has thoroughly traumatized a student, and ultimately managed to pull the court's holding and reasoning out of them, you can almost feel a collective sigh of relief in the classroom. Every student is thinking the same thing: "Finally! Now that we have identified the law, we understand it, we can probably (hopefully) apply it to different fact patterns, its time to move on. We've escaped this case!"  Not so fast...

The professor will then always come back with the question, "so, now that we understand it, tell me why the decision is incorrect?" Everyone's face just drops at this point. We've just spent the last 40 minutes working very hard to understand why and how this opinion became the law, and now we have to punch holes in the dam we just built. It has become the job of a third week law student to pick apart the legal reasoning of Benjamin Cardozo, Oliver Wendell Holmes, and all the other greatest legal minds in American history. Not an easy task to say the least. 

Last week I discussed how invigorating it was just to be able to get to the point where I could follow the reasoning of these legal giants. But now, it is my task to pick and prod at them, to critique THEIR reasoning and understanding of the law. It does not get any more difficult than that. I am finding it to be the most intellectually challenging exercise of my life. At times it physically hurts my head, but I suppose thinking about the material from this type of critical perspective will ultimately be of great assistance to me when trying to master it.      

Outlining [John]

My first practice exam is tomorrow. However, my teacher informed us that he will not even be looking at them, but instead will give us a sheet with his grading criteria. Regardless, I am definitely preparing as it was the real thing. I have began compiling our notes, tutorials into an outline.

I will definitely, blog on my exam experience tomorrow. For now, I am going to back to studying so I can watch the convention tonight!

Study Groups [John]

So the study groups officially have began...

As 1L by Scott Turow suggests, study groups are essential to the law school experience and it is very important to find a good group. So far, I have only one study group for my Torts class. The group is comprised of, what I feel, some of the best minds in my class. Today, we spent most of our time outlining the topics that were covered in our first tutorial. I felt that we did a great job filling in the blanks with exceptions and clarifications of the rules and principles. We will be meeting every week for the next 12 weeks to review and outline the topics that we discussed in class.

Also, this Friday I have my first practice exam. Generally, the only grade you receive in a law class is the final exam. This stands true for all my classes except for my legal writing class--I have about 3 grades in that class. However, unlike in the past, more and more law professors are providing in-class and/or proctored practice exams that will not be graded but will be looked at and the professor will provide suggestions. I think this is an excellent addition to my doctrinal classes because it helps us gauge how much we have learned and also provides insight into what the professor expects on our final exams.