Gilbert Law Summaries: Constitutional Law

Gilbert Law Summaries: Constitutional Law by Jesse Choper

The United States Constitution is the foremost legal authority for laws created in the United States. Though the Constitution is a federal document, it applies to all laws at every level in the United States. Therefore, any law that fails to comport to constitutional standards is illegal. The Constitution specifically prohibits certain types of laws and also dictates which branch of government has the power to enact certain types of legislation. This essay provides a brief overview of several of the key factors in constitutional law, including the areas where a practitioner is most likely to encounter constitutional issues.

Powers of the Federal Government

While the Constitution appears to establish the supremacy of the Supreme Court's decisions, the reality is that the federal courts, including the Supreme Court, only have limited jurisdiction. Federal court jurisdiction is limited to cases involving the Constitution, acts of Congress, or federal treaties; cases where the U.S. is a party; and cases involving diversity jurisdiction. The Supreme Court has two types of jurisdiction: appellate jurisdiction over federal cases or state cases involving constitutional questions, and original jurisdiction generally over disputes between states. There are limitations on the jurisdiction of the Supreme Court: there has to be a case or controversy, the parties must have standing, and the issue has to be ripe. The Constitution also discusses the limits on Congress' legislative powers. Essentially, any powers that are not delegated to the federal government are reserved to the states, though Congress can legislate in areas where the power to do so is implied. Finally, the Constitution gives specific powers to the Executive Branch. The President has all of the power of the executive branch, but he may appoint people in various capacities to carry out those duties. The President may veto legislation, may not declare war but does command the military, and has emergency powers.

Intergovernmental Relations

Next, the book considers the relationship between the state and local governments. It discusses those powers exclusive to the state and those exclusive to the federal government, as well as those areas where powers may be exercised by both state and local governments. State governments cannot pass laws trumping federal legislation. Moreover, state and local governments may not tax the federal government, but the federal government is also prohibited from taxing state property.

Regulation and Taxation of Commerce

The Commerce Clause, which gives Congress the power to regulate international and interstate commerce, is a significant source of power of the federal government. The federal government has exclusive jurisdiction over the regulation of foreign commerce. In addition, the federal government has concurrent jurisdiction with state courts over interstate commerce. This Commerce Clause-based power allows Congress to regulate intrastate activities that influence interstate commerce, as well as to regulate items that have moved in interstate commerce, even after they are no longer traveling in interstate commerce. States may regulate interstate commerce if there is no relevant federal legislation, as long as the state law is not unduly burdensome to interstate commerce.

Protection of Individual Rights

For many people, constitutional law is synonymous with protecting individual rights. The Constitution does guarantee specific protections of individual rights, and laws that violate those protections are found to violate the Constitution. The first ten amendments to the U.S. Constitution, otherwise known as the Bill of Rights, specifically address those rights applicable to citizens. Initially, the Bill of Rights was only considered applicable to federal legislation, but the Due Process Clause of the Fourteenth Amendment extended those protections to state laws. The Fourteenth Amendment's Equal Protection Clause is only applicable to state actions, but the Fifth Amendment may offer similar protections in federal proceedings. One of the most elemental of all individual rights is the right to procedural due process. Not all procedural due process must rise to the standard evidentiary hearing. Substantive due process speaks to governmental actions that would impact economic interests, social interests, and fundamental personal rights. Even if the legislature has the ability to legislate in a certain area, if the means are arbitrary or irrational the legislation violates substantive due process requirements. There are a number of fundamental personal rights protected under the Constitution. Although the right to privacy is not mentioned in the Constitution, it is a right that has repeatedly been protected by the Constitution and protects the right to abortion access (while permitting state regulations), and the right to consensual non-commercial sexual contact between adults. Other fundamental rights include: the right to interstate travel, the right to vote, rights for the mentally ill, and the right to refuse unwanted medical attention. The Bill of Rights also protects the right to bear arms.

Freedom of Speech, Press, and Association

The First Amendment guarantees freedom of speech, press, and association. There is no absolute right to free speech, but content-based restrictions on speech have to be narrowly drawn and necessary to serve a compelling government speech. Speech that is unpatriotic is protected, but there can be criminalization of speech that advocates illegal action. There is no constitutional protection for defamatory speech, and civil liability can attach to defamatory comments. However, when the subject of the speech is a public figure, the speech is generally protected unless it is stated as a fact and known to be false. The First Amendment protections do not extend to obscenity, but whether material is obscene is a mixed question of fact and law. Fighting words and other words likely to incite imminent violence can be prohibited. Commercial speech does not receive the same degree of protection as other forms of speech. Most notably, some symbolic conduct, such as burning the American flag as a form of political protest, receives First Amendment protection.

Freedom of Religion

The First Amendment also guarantees freedom of religion. The government may not establish a religion and must be neutral towards-religions. Church property is tax exempt. Public schools may not teach religion, but can promote the academic study of religions. The government cannot enact laws prohibiting the free exercise of religion, but can enact neutral laws that might otherwise prohibit a religious practice, such as recreational drug use or polygamy. There is no right to a religious exemption from a neutral law.

Equal Protection

The Fourteenth Amendment guarantees Equal Protection to U.S. citizens. Economic and social regulations are subjected to the rational basis test, which requires a rational relationship between the regulation and a legitimate government interest. Government actions impact fundamental rights or that intentionally discriminates against at group is suspect and is subject to strict scrutiny, whereby it can only be considered valid if the law is necessary to promote a compelling state interest. Classifications based on factors like gender, where there is traditional discrimination but no explicit Fourteenth Amendment protection, receive intermediate scrutiny and are held to violate equal protection unless they are substantially related to important government objectives.

State Action Requirements

Generally, only the government can violate a person's constitutional rights. However, the Thirteenth Amendment can be violated by an individual keeping a person in involuntary servitude. Moreover, the government's action or failure to take action when a person is experiencing discrimination in the private sector can be the government action.

Congressional Power to Enforce Constitutional Rights

Two clauses in the Constitution speak to Congress' power to enact legislation to protect constitutional rights. The necessary and proper clause gives the Congress the power to enact all legislation that is necessary and proper to prevent violations of constitutional rights. The Thirteenth Amendment gives Congress the power to prohibit almost all race-based discrimination, especially against African-Americans. The Fourteenth Amendment is the enabling Amendment for most Civil Rights Legislation, though the Commerce Clause is a source of power for Civil Rights Legislation, as well.

Safeguards in the Administration of Criminal Justice

The Bill of Rights has been expansively interpreted to offer criminal defendants a degree of protection in the criminal process. These protections include prohibiting the use of involuntary confessions, protections of the right to remain silent, and the exclusion of illegally-obtained evidence. Criminal defendants have a right to trial by jury, the right to an impartial jury, the right to a fair trial, the right to counsel (including appointed counsel), and proof beyond a reasonable doubt. The Bill of Rights' Eighth Amendment prohibition against cruel and unusual punishment has placed significant limitations on the death penalty, as well as required proportionality in other sentencing issues.

Conclusion

Constitutional law is an incredibly complex area, touching on almost all legal issues presented in U.S. courts. The information presented herein provides only a bare outline of the key issues in constitutional law.

Summary: Gilbert Law Summaries: Conflict of Laws by Herma Hill Kay

Introduction

Given that disputes can and do arise between people or entities who are residents of different states or even different countries, the question arises which set of laws is applicable to settle the dispute. Conflict of laws refers to those procedural rules used to determine which legal system's rules apply to a dispute. This essay provides a brief overview of several of the key factors in conflict of laws, including the areas where choice of law is likely to be at issue.

Domicile

Domicile is one of the key factors in choice of law. Domicile is not the same as location. Instead, domicile is a legal fiction connecting a person to a location for a specific purpose. Domicile impacts jurisdiction and choice of law. Domicile is more than residence, as it requires physical presence and the intent to remain in the state indefinitely. There are three types of domicile: domicile at origin, domicile of choice, and domicile by operation at law. The law of the forum determines domicile.

Jurisdiction of Courts

Jurisdiction is the court's ability to exercise authority over the parties. For a court to be able to exercise jurisdiction over a party: there must be sufficient contact between the state and the party; the court must have the statutory authority to hear the case; and the parties must be affording procedural due process. There are three types of jurisdiction: in personam jurisdiction, in rem jurisdiction, and quasi-in rem jurisdiction. In personam jurisdiction allows the court to directly impact a party. In personam jurisdiction can generally be established through: physical presence in a state; domicile, residence, or nationality, appearance or consent, minimum contacts, and through the provisions of long arm statutes. In rem jurisdiction is jurisdiction over a piece of property. Quasi-in rem jurisdiction allows the court to determine the rights of specific parties in regards to specific property. In order to exercise in rem or quasi-in rem jurisdiction over property, it is not enough that the property be in the state, but also that the action have a local impact. Courts have to have jurisdiction over the subject matter of the dispute, as well as jurisdiction over the parties. This can be an issue when there are specialized courts focusing on different content. Procedural due process requires that parties be given notice, an opportunity to be heard, and an opportunity to defend themselves in the court. Generally, once a court exercises jurisdiction over a matter, it retains jurisdiction over that matter. There are limitations on jurisdiction, whereby a court that would otherwise have jurisdiction cannot hear a dispute. The most significant of these is the doctrine of forum non-conveniens, whereby a court can refuse to hear an action if the forum is significantly prejudicial to one of the parties. In order to determine whether or not a forum is appropriate, the court considers: the plaintiff's preference, the residence of the parties, residence of witnesses, access to proof, costs to the defendant, and the plaintiff's motives for choosing a particular forum.

Choice of Law- General Considerations and Pervasive Problems

The issues underlying a lawsuit are frequently connected to more than one jurisdiction, giving rise to questions about which laws are applicable in the suit. The court has to consider whether it will recognize the laws of another jurisdiction, and, if so, to what extent it will apply that law. Renvoi refers to the situation where the forum's law directs the court to apply another state's whole law, but that second states conflict rules refer the forum court to either its own law, which is referred to as remission, or that of a third state, which is referred to as transmission. Decapage is a modern choice-of-law approach under which the court resolves choice-of-law issues according to each issue. Characterization is the fitting of factual situations into categories of law.

Approaches to Choice-of-Law Problems

There are a number of ways to determine choice of law. Statues can direct the choice-of-law. Choice of law theories will guide the choice of law in absence of a statutory directive. Under the vest rights approach, where the act occurred or a relationship was created determines the laws to be applied to the substantive issues in the case. Under the most significant relationship approach, the state with the most significant relationship to the issue determines choice-of-law. Under the governmental interest analysis, choice of law is determined by examining the underlying policies of the forums in question. Moreover, when a forum has not interest in applying a law, it needs to examine which law from the competing forums applies.

Choice of Law in Specific Substantive Areas

The substantive issues in a lawsuit frequently help determine choice-of-law provisions. For torts, the place of the wrong governs aspects of torts liability. When examining the most significant relationship approach, the court looks at where the injury occurred, where the conduct occurred, where the parties are domiciled, and where the parties have a relationship. For vicarious liability, generally the place where the defendant acted determines choice of law. For product liability, the forum can be either the place of injury, the place of the injury, or the place where it was sold. For contracts, the parties can designate a choice of law, but the court will examine those provisions for fairness. When a lawsuit involves property, first the court determines whether the property is movable or immovable. Generally, if property is immovable (real), then the forum of the location of the property applies. For movable property, in the event of post-death transmission, the law of the decedent's domicile at death applies, which other issues are governed by the location of the property at the time it is conveyed. For corporations, the state of incorporation governs forum. For workers compensation, the governing statutes are generally going to dictate forum. For family law issues, marriage laws are determined by whichever law upholds a marriage. For adoption, the state of the adoption always applies its own laws.

Traditional Defenses Against Application of Foreign Law

Sometimes, even when another forum's laws would generally be applicable, a court can refuse to apply those laws. They may do so when application of foreign laws would violate public policy. A court can refuse to enforce foreign penal and revenue laws. Furthermore, foreign law never governs procedural matters. Rules of evidence, the statute of frauds, and statues of limitations may be considered substantive rather than procedural.

Constitutional Limitations and Overriding Federal Law

The Fourteenth Amendment only prohibits choice-of-law decisions when a court's only contact with the litigation is that it is the forum for the lawsuit. The Full Faith and Credit Clause requires states to recognize the legal judgments of other states. When there is a conflict between state and federal law, if a federal right is involved, only the federal law governs. When there is no federal right, the Erie doctrine applies, and state substantive law will apply.

Recognition and Enforcement of Foreign Judgments

States will recognize and give a judgment from a foreign state the same recognition it would receive in the first state. However, the second state's law determines how it will enforce those judgments. Federal statues require the same consideration for federal court judgments and can be enforced in federal courts in any jurisdiction. A judgment must be final and on the merits to be entitled to foreign enforcement. Child custody decrees, which are, by their very nature non-final, are enforceable in foreign jurisdictions under the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnapping Prevention Act.

Conclusion

Because parties may conduct their activities in a number of different forums, very frequently the court is called upon to determine which forum's laws apply. There are basic rules governing choice of law, but the first thing a party should do is examine whether there are any relevant statutes determining choice of law. The information presented herein provides only a bare outline of the key issues in conflict of laws.

Summary: Gilbert Law Summaries: Labor Law by Robert J. Gelhaus and James Oldham

Introduction

Since approximately the 1850s, workers began to organize together to form blocks of labor, improving their odds of negotiating favorable employment agreements. Not only did these organized laborers form unions, but they also helped shape a complex body of American labor law. Most labor law in the United States is driven by statute. Therefore, this essay provides a brief overview of several of the key factors in labor law, concentrating most of its focus on the applicable statutes.

Background and Foundations of Labor Law

After the Civil War, laborers made a concerted effort to organize. In 1886, the American Federation of Labor (AFL) formed, and it had more than 2 million members by 1914. Early attempts at unionization were resisted through criminal statutes and civil injunctions. However, growing support for labor unions resulted in passage of the Clayton Act, which protected some labor activities. Under the New Deal, federal legislation supported the practice of collective bargaining. The Congress of Industrial Organizations (CIO) formed around this time. There was heavy competition between the AFL and CIO until they merged in 1955. Modern labor law depends on four laws: the Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935 (NLRA), the Labor Management Relations Act of 1947 (Taft-Hartley), and the Labor Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act). These laws support the right to collective bargaining, but restrain particular labor practices. Federal law is critical in the labor context, as it preempts state law, and the NLRA's broad interpretation means that federal law almost always applies.

Establishment of the Collective Bargaining Relationship

There are several statutes governing collective-bargaining relationships. The Railway Labor Act covers disputes in the airline and railroad industries. The NLRA governs when a labor dispute impacts interstate commerce. The NLRA does not cover government or union employers, private companies with municipal functions, and religious schools. The NLRA does not cover supervisors, managerial workers, retired people, most agricultural workers, or independent contractors. The National Labor Relations Board (NLRB) administers the NLRA. The NLRB determines employee representatives and decides whether challenged activities are unfair labor practices. Generally, employees have the right to organize and employers are prohibited from interfering with organization, but not all employer activity is prohibited. Employer's can limit an employee's speech. There are a number of coercive activities prevented to unions; generally the same prohibitions that apply to employers apply to unions. Employers cannot discriminate on the basis of union membership. Likewise, union practices that discriminate between members and non-members are prohibited. Bargaining representatives should be selected through elections, and for a bargaining representative to be recognized by the NLRB, the election has to comply with NLRB guidelines.

Collective Bargaining

An employer must recognize a bargaining representative for at least a year. The representative union has the exclusive authority to recognize all employees in the unit, and individual contracts are superseded by the collective bargaining agreement. The union has a duty to bargain fairly, even in regards to non-members. The union also has the duty to bargain in good faith. Bargaining is compelled by statue over wages, hours, and other terms and conditions of employment. Unions cannot bargain over illegal subjects. Any subject not specifically prohibited can, but does not have to be, a subject of a collective bargaining agreement. Employers are generally not permitted to engage in lockouts, but can do so where bargaining has reached an impasse or if special circumstances exist. Furthermore, the duty to bargain exists even during a strike or a lockout.

Strikes, Boycotts, and Picketing

The Supreme Court has never determined that there is a constitutional right to strike, and some strikes are not constitutionally protected. Picketing is protected if conducted peacefully and for a lawful objective. Picketing one's own employer receives the highest protection. Secondary picketing is generally prohibited. The NLRA grants employees the right to strike and picket, subject to the means and objective test. It prohibits mass picketing or threats of violence in picketing. Strikers are still considered employees and cannot be discriminated against by an employer, though rights to reinstatement depend upon the type of strike. Secondary boycotts are usually prohibited behavior. If a strike violates the NLRA, an employer may file a complaint with the NLRB.

Protection of Individual Rights

Even if there is no union representative, employees have a right to organize under NLRA § 7. Unions must fairly represent all employees in a bargaining unit, although ordinary negligence is not usually a breach of that duty. An employee's rights under the Civil Rights Acts are separate from claims under the NLRA, and unions are subject to the Civil Rights Acts as well. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. An employee does have an individual right to enforce a collective bargaining agreement. While arrangements that require union membership prior to hiring are illegal, employers can give preference to union members and can require union membership after hiring, although states can prohibit those agreements. Unions do have the ability to punish their members, specifically for conduct that adversely impact the union. However, unions cannot punish activity that is protected, like whistle-blowing. Under Taft-Hartley, a union cannot coerce an employer to discriminate against an employee except for failure to pay union dues where there is a valid agreement requiring union membership after hiring. If a union's rules allow it to discipline members for exercising rights under NLRA§ 7, the employees must be able to quit the union at any time period. The Landrum-Griffin Act (LMRDA) protects certain employee activities as union members including: freedom of speech, freedom of assembly, control over dues, fees, and assessment. Furthermore, while union members can be required to pursue internal remedies first, they have the right to sue the union and to testify against officers and fellow members. While courts were historically reluctant to assess whether an election of union officers was appropriate, the LMRDA establishes minimum standards for the free and democratic election of union officers. There is no pre-election remedy under the LMRDA, except for a candidate's right to distribute literature.

Union Corruption

Union corruption has historically been a problem, and certain aspects of the LMRDA, specifically Titles II, III, and V are meant to address union corruption. Title II requires reporting of basic information. Title V imposes limitations of union officials and establishes a fiduciary duty between union officers and union members. Title III allows for the establishment of a trusteeship by a national union where serious misconduct has occurred at the local union level.

Conclusion

Labor law is a seemingly complex area, but is substantially governed by a handful of federal statutes and guidance from the NLRB. Reference to the full text of those statutes will provide additional guidance for the bare outline of key issues in labor law that have presented in this essay.

Summary: Gilbert Law Summaries: Civil Procedure by Richard Marcus and Thomas Rowe

Introduction

Civil procedure refers to the methods, procedure, and practices used in civil cases. At the federal level, civil procedure is dictated by the federal rules of civil procedure. At the state level, civil procedure is dictated by state rules of civil procedure. There is considerable overlap between the rules. Furthermore, local jurisdictions may have their own sets of local rules. This essay provides a brief overview of several of the key factors in civil procedure.

Personal Jurisdiction and Related Matters

Jurisdiction refers to a court's ability to hear a dispute. In personam jurisdiction refers to a court's ability to enter a judgment that is personally binding on a defendant, while in rem jurisdiction refers to a court's ability to enter a judgment regarding a piece of property. A party does not have to be within a state to be subject to the court's jurisdiction; minimum contacts with the forum state are sufficient to establish jurisdiction if the party purposely availed himself of the privileges of the state and if jurisdiction is reasonable. Long arm statutes are those statutes delineating when a court will exercise jurisdiction over people outside of the state. Federal court's long arm jurisdiction is based upon the state in which the federal court is located. Venue refers to the geographic location of the litigation. At a federal level, venue can be found where defendant's reside, where a substantial amount of events or property are located, and under other special circumstances. Even if jurisdiction and venue are proper, a court can determine whether exercising jurisdiction would be grossly inconvenient to the defendant, and, if so, refuse to do so under forum non-conveniens. Furthermore, even if jurisdiction and venue are appropriate, a defendant must have notice.

Subject Matter Jurisdiction of the Federal Courts

The federal courts only have jurisdiction over certain subjects, and a lack of subject matter jurisdiction is not waivable. State courts are generally courts of general jurisdiction and can hear federal matters, except those limited to specific courts. Diversity jurisdiction requires complete diversity that more than $75,000 be in controversy. Federal courts also have jurisdiction over federal questions, though state courts have concurrent jurisdiction in most cases. Usually, if a case could have originally been filed in federal court, but a plaintiff chose state court, the defendant can seek to have the case removed to federal court.

Relation between State and Federal Law

Federal courts apply state laws, including state common law, except where the Constitution or federal laws govern. However, federal procedural law generally governs state law actions that are brought in federal courts. In diversity cases that require the application of state law, the court will apply the law of the state in which it sits, including choice of law rules.

Pleading

Pleadings give notice of the dispute, and can narrow issues. Generally, filing a complaint begins a civil action. Complaints contain: a caption, which contains the courts name, the cause number, the designation of the pleading, and the party names; jurisdictional allegations; a body with allegations supporting the claim for relief; a prayer for relief; and a signature by a party or attorney. The elements of the claim are determined by the underlying substantive law. Defendants may challenge the legal sufficiency of the complaint through a general demurrer that challenges the substantive sufficiency of the cause, or a special demurrer, which challenges the form of the complaint. Defendants may file a motion to dismiss for failure to state a claim. The answer is the defendant's response to the pleading. It may include general or specific denials, affirmative defenses, and any counterclaims the defendant may have against a plaintiff, even if those claims are not related to the underlying lawsuit. Both parties have the right to one amendment of a pleading, but must otherwise attain the court's permission. A defendant's failure to answer can result in a default.

Parties

A party must be the real party in interest in order to bring a suit. Unless given permission to use a fake name, parties must use their real names and have a legal right to enforce a claim. This right can be in a representative capacity. The defendant must have capacity to be sued and can include: individuals, corporations, partnerships, and incorporated associations. Failure to seek dismissal due to a lack of capacity results in waiver of the defect. Parties may be joined, and joinder can even be required if failing to join a party would result to substantial prejudice to that party of another party. Third parties are brought into a lawsuit through impleader or can intervene to inject themselves into a lawsuit. Class actions refer to lawsuits where one or more members of a group of similarly situated people sue on behalf of the group. Fed. R. Civ. P. 23(a) gives requirements for class action suits.

Discovery

Discovery is the means by which parties attain information from one another prior to trial. Fed. Rule 26(a) requires mandatory disclosure, without a discovery request, prior to trial. Parties are limited to 10 depositions each, and each deposition is limited to one seven-hour day, though the court or the parties may change those rules. Depositions require notice to all parties. Parties are limited to 25 interrogatories, and they must be completed within 30 days. Requests for admission impose a duty on the party served to acknowledge facts so that they do not have to be proven at trial. Both parties may also request inspection of documents and other items prior to trial. However, a court order is required for a medical procedure.

Summary Judgment

A court may grant summary judgment when there is no genuine issue as to any material fact. The moving party has the burden of proof.

Managerial Judging, Pretrial Conference, and Settlement Promotion

Federal courts must enter a scheduling order setting time limits for joinder, amendments, discovery, and motions. Judges may also limit discovery. Federal courts must have alternative dispute resolution (ADR) programs to promote settlement. These can include mediation, early neutral evaluation, summary jury trials, and arbitration.

Trial

The right to jury trial must be demanded and is not guaranteed. Jury trials are guaranteed for those actions that are counterparts to actions at law, but not those that are counterparts to equity suits. Juries do not have to have 12 members, but criminal cases must have at least six jurors. Both parties may examine jurors. Jurors may be challenged for cause, and each side has a number of peremptory challenges that are not caused-based. Parties may seek disqualification of impartial judges. The presentation of evidence is governed by the applicable rules of evidence.

Appeal

Every state creates a statutory right to appeal, which also exists in federal courts. The right to appeal may be lost through waiver or by failure to appeal within the statutory time period. Appellate courts will not retry facts, but will look to see if there is substantial evidence to support the trial court's decision. Appellate courts will also examine errors of law. Appellate review can also be accomplished through one of the extraordinary writs: mandamus or prohibition.

Preclusion Effects of Judgments

Res judicata refers to the idea that previously litigated issues will not be subject to relitigation. Claim preclusion precludes assertion of that claim in a subsequent suit. Issue preclusion means that a decision about a particular issue may be binding in a subsequent suit, at least against those who have been parties in the underlying litigation.

Conclusion

Civil procedure involves a complex set of rules determining the appropriate steps for a case proceeding through the court system, from initial filing all the way through the appellate process. This bare outline of the key issues in civil procedure should be supplemented by a relevant copy of the rules of civil procedure for the appropriate forum.

Summary: Gilbert Law Summaries: Remedies by John Bauman, Kenneth York, and John Bauman

Introduction

Remedies refer to relief granted by the courts. Remedies include compensatory damages, nominal damages, punitive damages, restitution, and specific relief. This essay provides a brief overview of several of the key factors in remedies.

Damages

Damages are a court's way of attempting to monetize a party's loss. If a harm is the result of a tort, the goal is to put the injured party in the same position as he would have been absent the wrong. The tort must be the proximate cause of the damages to support a recovery. In contract cases, the goal of damages is to put the injured party in the position he would have been if the contract had been performed. If it is impossible to determine where the party would have been if the contract had been performed a court may award reliance damages, where a party can recover for expenses incurred in reliance on the contract. Consequential damages are limited to those damages arising naturally or reasonably contemplatable by the breach. If a party wishes to recover special damages, the party must plead special damages. Furthermore, parties have a responsibility to avoid negative consequences, when possible. Parties may agree to liquidated damages, but those damage awards must be reasonable. A court can award punitive damages in torts cases, but not in strictly contract cases. A defendant's liability is not lessened if a plaintiff gets compensation from another source (such as private insurance), though the plaintiff's insurance may have a subrogation clause allowing the insurer to recover from a defendant.

Equitable Remedies

Equitable remedies are non-monetary remedies intended to prevent harms or limit future harms. To grant equitable remedies, a court must have personal jurisdiction over the parties and find that legal remedies are inadequate. However, courts will not grant injunctions against criminal behavior, criminal prosecutions, or police acts. If a plaintiff has unclean hands, the court will not grant relief. Furthermore, if there is laches (an unreasonable delay) in bringing the action, the court may choose not to grant equitable relief.

Restitution

The goal of restitution is to keep one party from being unjustly enriched at the expense of another. Under restitution in equity there is sometimes the formation of a constructive trust, which imposes a duty on the defendant to transfer property to the plaintiff. An equitable lien is a charge on property to secure a debt. Both constructive trusts and equitable liens on property can be destroyed by a transfer to a bonafide purchaser for value, but the injured party would still have an action against the proceeds of the transfer.

Injuries to Tangible Property Interests

One can recover for misappropriated money even without identifying the specific money missing, by bringing a quasi-contract action. Moreover, various equitable remedies exist for tracing misappropriated money, even when funds have been mingled. One may recover for injuries to personal property and injuries to real property. Injuries to real property can include trespass, waste, nuisance, destruction, and encroachment.

Injuries to Business and Commercial Interests

When a business is the victim of a tort or contract case, it is important to keep in mind that the injured party may be able to recover for the loss of profits over the lifetime of the business. Damages to a business are difficult to calculate, so injunctive relief is frequently available if it appears that a business is being harmed. Moreover, it is a tort to attempt to induce another to breach a contract. One problem in business is the breach of fiduciary duty and one may recover damages for the breach. Other business scenarios leading to remedies include: patent infringement, copyright infringement, trade secrets, misappropriating creative works and ideas, trademark infringement, unfair competition, misappropriation of right of publicity, and trade defamation.

Injuries to Personal Dignity and Related Interest

Under the common law, even if there was no monetary damage, all libel was actionable. However, slander may require proving special damages. However, at common law, damages are presumed in a defamation action. Injunctions are not available against personal defamation. There is some limited right to privacy and the damages for them can include damages for mental anguish and injunctive relief. When a family relation exists, the courts can issue injunctions on speech.

Personal Injury and Death

The remedy for personal injuries is compensatory damages, which can include general damages and special damages. These damages try to remedy a plaintiff's economic losses such as medical expenses and lost wage. They also attempt to monetize non-economic losses like pain and suffering. Generally, personal injury damages are non-taxable. Wrongful death actions are an attempt to provide restitution for the death of a family member and are generally aimed at economic damages that result from the death.

Fraud

When there has been a fraud, a plaintiff has two choices: rescission of the contract and restitution or affirmance of the contract and damages. A party may sue in the alternative, but may need to elect a remedy prior to judgment, but not under the Uniform Commercial Code (UCC).

Duress, Undue Influence, and Unconscionable Conduct

Duress is not a tort; the action is restitution for unjust enrichment. Duress is action that overcomes the free will of another, rendering a transaction involuntary. The test for duress is subjective. It is not duress to threaten criminal prosecution if there is an underlying crime. Undue influence occurs when one party is dominated by another and feels unable to say no. Unconscionability focuses on unfair methods of dealing and whether a hardship is created by the bargain.

Mistakes

The remedy for mistake is restitution. Mistake is when the facts are not as one of the parties believed when they entered into their bargain. Mistakes can be remedied through rescission of the contract. When the mistake is mutual, the defendant may have a defense against any unjust enrichment claims. When a mistake is an integration contract and refers to a mistake in the terms of a written contract that did not exist in an oral agreement, the remedy can include reformation of the contract.

Remedies for Breach of Contract

In addition to monetary damages, courts my order specific performance of contracts. In order for a court to order specific performance of a contract: (1) there must be an inadequate remedy at law; (2) the contract must be definite and certain; (3) the conditions precedent must be met; (4) enforcement must operate equitably; and (5) enforcement must be feasible.

Remedies in Connection with Unenforceable Contracts

Generally, the only remedy for an unenforceable contract is restitution. However, partial performance or estoppels may support the institution of other remedies.

Conclusion

The courts have a wide variety of remedies available to them that they can use to attempt to make a party whole. It is important to determine the nature of the underlying claim: tort, contract, or mixed, and then to examine the types of damages available for each aspect of the claim. This essay provides only a bare outline of the key issues in remedies.

Summary: Gilbert Law Summaries: Corporations by Jesse H. Choper and Melvin Eisenberg

Introduction

Corporations are legal fictions that create a viable entity where one did not previously exist. For all intents and purposes, corporations then act as people, at least in regards to legal rights and duties. This established protection for its shareholders, who have limited liability. Shares, which represent ownership, are transferable. Corporations have centralized management and control. Corporations may continue into perpetuity and extend beyond the death of shareholders. Moreover, there are special taxation considerations for corporations. This essay provides a brief overview of several of the key factors in corporations.

Organizing the Corporation

Formation of corporations is generally controlled by the applicable laws in the state or country of incorporation. Generally, the founders file article of incorporation with a designated state agency. Even if a defect exists in the founding papers, a court may choose to recognize an entity as a corporation. However, when corporations are not treated as separate entities by their shareholders, courts may pierce the corporate veil, thereby depriving shareholders of the benefits of limited liability.

Liabilities for Transactions before Incorporation

A corporation may or may not be liable for actions taken on its behalf prior to incorporation, depending on whether it ratifies those actions. The promoter of a corporation may be entitled to reimbursement from the corporation. The promoters may be personally liable for any pre-incorporation contracts. Successor corporations may be liable for prior debts if they assume the debts, if they are a third-party beneficiary, or if the sale was an attempted fraud.

Powers of the Corporation

Corporations may be treated as fictional people, but they do not have all the rights of an actual human being. Corporate powers will be outlined in the articles of incorporation and also limited by statute in the state of incorporation. Corporations can guarantee the debts of others in the course of corporate business, participate in partnerships, and donate to charities. Ultra vires transactions are those that go beyond the corporation's express purposes. Shareholder ratification of ultra vires transactions nullifies that defense. Moreover, corporations are still liable for torts.

Management and Control

Corporate power rests in the board of directors, except in close corporation. The shareholders have the power to elect and remove directors. Shareholders may also have the power to ratify certain management transactions. Shareholders may also have the power to amend the bylaws. Close corporations operate different; they have a small number of shareholders all of whom may actively manage the corporation. In all other corporations, directors are usually voted on by shareholders, serve for defined terms, and may be removed by the shareholders. The directors have to follow rules before taking action, and the corporation can specify those rules. Directors are generally not entitled to compensation unless the articles of incorporation provide for that compensation. Directors have the right to inspect corporate records; a duty of care as fiduciaries, a duty of loyalty, and any other statutory duties. Directors may be personally liable to a corporation or the shareholders for breaching a duty. Directors need to be wary of conflicts of interest.

Insider Trading

When a director, officer, or other corporate insider buys or sells corporate stock, this can sometimes be a breach of fiduciary duty. Under the Securities Exchange Act of 1934, insider trading issues are highly regulated. Applicable sections of the Act are § 10(b) prohibiting manipulation or deception, and rule 10(b)(5), which prohibits the use of the instrumentalities of interstate commerce to perpetuate a securities fraud. Section 16 of the Act governs purchases followed by sales or sales followed by purchases within a six-month period and allows corporations to recover profits from directors who have benefited from these short-swing trades.

Rights of Shareholders

Shareholders' rights are delineated in the appropriate articles of incorporation. Generally, they include the right to vote (though shares may be non-voting), including the right to vote by proxy. Almost all shareholders in publicly held corporations vote by proxy, and solicitation of proxy votes is governed by Securities Exchange Act of 1934 § 14(a) and other state and federal laws. Shareholders may not have an unfettered right to transfer shares; corporations may have a right to first refusal or have a mandatory buy-sell provision. Any restrictions on shareholders' rights to sell must be reasonable. Shareholders have a qualified right to inspect corporate records, which may be limited by statute, and must be for a proper purpose. Shareholders have a fiduciary duty in regards to business dealings with the corporation. Shareholders may bring suit against the corporation or a derivative suit on behalf of the corporation.

Capitalization of the Corporation

There are various different types of shares available. Common stock represents basic ownership and entitles the owner to dividends, voting rights, and liquidated assets. Preferred stock is stock that is somehow preferential to other stock; it may entitle a shareholder to priority treatment in regards to dividends or assets. Convertible stock is generally preferred stock that a shareholder can convert to common stock. Derivatives are securities derived from stock.

Distributions to Shareholders

A dividend is any distribution of corporate cash or property to shareholders. Corporations are not required to pay dividends unless a contract or other agreement requires them to do so. In some cases, such as when a corporation's assets are less than its liabilities, the corporation may be prohibited from paying dividends.

Fundamental Changes in Corporate Structure

Once a corporation has been formed, any changes in corporate structure are subject to statutory control. If shareholders disagree with a proposed change, they are generally entitled to have the corporation purchase their shares at fair value. Mergers are one form of change in corporate structure and occur when one corporation is legally absorbed into another; shares of the disappearing corporation are generally converted into shares of the surviving corporation. Consolidation is like a merger, but neither corporation survives; instead, they create an entirely new corporation. The sale of most of a corporation's assets, when not done in the ordinary course of business, generally requires shareholder approval. Amending the articles of incorporation generally involves approval by the board of directors as well as approval by the majority of the shareholders. Dissolution and liquidating of a corporation, if voluntary, requires approval by the board and a stated percentage of shareholders. Involuntary dissolution generally involves court intervention and does not require shareholder or director approval.

Conflict of Laws Principles

The state of incorporation will generally govern all choice-of-law and conflict-of-law issues. However, some states have long arm statutes that permit their courts to exercise jurisdiction over foreign corporations.

Conclusion

Corporations are fictional entities created to do business in lieu of individuals. They are a way of minimizing the personal liability of the shareholders. Corporate law can be incredibly complex and is governed by the statutes in the state of incorporation and influenced by the statues in any state in which the corporation is doing business. Therefore, is it critical to understand that this limited overview of corporate issues must be supplemented by referral to applicable state statutes.

Summary: Gilbert Law Summaries: Federal Courts by Jesse H. Choper and Melvin Eisenberg

Introduction

Article III of the Constitution created the Supreme Court and gave Congress the ability to create inferior federal courts. Congress first exercised the authority to create lower courts with the Judiciary Act of 1789, which helped delineate jurisdiction of the various federal courts. The federal court system remained virtually unchanged through the Civil War, but the passage of the Civil War Amendments and the Civil Rights Acts of 1871 expanded the power of the inferior federal courts. Currently, the federal court system has trial courts, appellate courts, courts with special jurisdiction, adjunct courts, and the Supreme Court.

Case or Controversy and Justiciability

The federal courts have the power to review the constitutionality of acts by other branches in the government, a power that was established by the Supreme Court in Marbury v. Madison. However, in order to do so, a question has to be presented as part of a recognizable dispute; one cannot simply seek an advisory opinion from a federal court, although specialized courts like the Tax Court may enter advisory opinions. Moreover, the federal courts are not to advise the other branches of government as to the constitutionality of a proposed law. Cases must be ripe, must not be moot, and a party must have standing in order for a court to hear the state. Ripeness means that the question is not merely hypothetical, but impacts actual rights. Moot refers to issues where a judgment would not help, though certain issues may be subject to review if they will recur but never be able to be resolved in court because of mootness. Standing means that a person has received an injury that is traceable to a defendant's conduct that can be redressed by relief.

Congressional Power over Federal Court Jurisdiction

Congress has the power, but not the obligation to create inferior courts. Congress has the power, but not the obligation, to give these courts expansive powers under Article III of the Constitution. Congress has never given the inferior courts as much power as it could under the Constitution. Congress may restrict the jurisdiction of the federal courts. They may allocate jurisdiction between Article I legislative courts and Article III courts. Article I courts are outside of the scope of Article III's authority. Congress may face problems in assigning cases that could be assigned to Article III courts to Article I courts.

Supreme Court Jurisdiction

The Supreme Court has appellate jurisdiction over the decisions of lower federal courts and of the state courts. Article III assigned this appellate jurisdiction to the Supreme Court. The Supreme Court's appellate jurisdiction is discretionary, not mandatory. The Supreme Court's appellate jurisdiction is limited to federal questions unless an underlying state law violates federal law. Moreover, the Supreme Court can decide issues of state law if those issues come from an appeal of a lower federal court decision rather than a state court decision. The Supreme Court will not decide a state court case if the state court's decision is based on a state law that is independent of federal law requirements and adequately disposes of the issue. This is true even if the state law is parallel to a federal law. The Supreme Court generally will not review state court findings of fact, though it will engage in mixed law and fact review. The Supreme Court will only review final judgments from state courts; it will occasionally review non-final judgments from the lower federal courts.