Final Exam

The final exam question:

For generations law and equity were separated in different courts with different judges. In the nineteenth century equity and law were combined in most American state courts and, as a result, judges found that they could exercise both legal and equitable powers, could use both legal and equitable remedies, and could choose when to do either. Judges in law courts have traditionally faced a tension in doing what they believe is fair as regards the litigants and the case before them, but, at the same time, feel constrained, at least to some degree, to justify their decisions according to precedent. The result is often a tension between the two and a hard decision for the court to make. In the context of the contract cases we have discussed, write a short essay [no more than three pages] on how judges have used their equity powers to alleviate this tension.

Your answer must be printed in no smaller than 10 point type. It cannot exceed three normal sized sheets. Print on one side only. You may take as much time as you like to do the exam and may consult any source other than other people. You may not discuss the exam question or answer with classmates, friends, family, hired professionals, or any one else. The exam is due on December 5th at 11am to me in my office on the fourth floor of the law school. I will not accept exams before 10.45 nor after 11.15. Your name should be on the top right hand of each answer page.

If you feel the need to consult sources other than your notes and the cases and articles posted on the class website, I recommend Grant Gilmore's Death of Contracts, a short book based on lectures he delivered.

New Readings

I have added a number of new readings to the class website. Tmmw., after we discuss the midterm we'll discuss Dickinson v. Dodds and the legal definition of an option.

Midterm Answer Key

1. b
2. e
3. c
4. e
5. c
6. e
19.
7. b
8. b
9. d
10. c
11. c
12. d
13. b
14. e
15. c
16. a
17. d
18. c
19. d
20. c

Reading for Week of 27 October

I've added the cases for you to read this week, from Cobaugh to Hadley as numbered. We'll cover Hadley [and the Holmes material] on Wednesday.

New Cases

I've posted three new cases on the website.

A Bit More on Precedent

I began to discuss the nature of precedent in the Common Law in class today. I think that the best way to understand the concept is to recognize that judges in England and the U.S. [as well as other Common law jurisdictions like Australia and N.Z.] all decide cases according to precedent and the doctrinal rules which they derive from it [the "rule of the case"], much of it the same. We have published case decisions going back five hundred years in England and manuscript decisions going back at least another century. In the U.S. we have decisions going back to the Revolution, all of which have some potential authority. In the United States legal opinions do not lose their potential as precedent because of age. Thus, we still find courts in Kansas citing decisions several centuries old on occasion. From the practicing lawyer's perspective this is really too much of a good thing. How do you decide which cases to cite as precedent in making your argument? Further, as legal databases become more and more comprehensive and available decisions number in the millions, you know that for every decision you find that supports your client's argument, your opponent will find another case that goes against it. Thus, your job is to construct a doctrinal argument which is more persuasive than your opponents from the precedents. You can do this by convincing the judge that your precedent is more authoritative for some reason, such as being written by a famous judge or because it's often cited, or it makes better "sense," or it is more consistent with social policy or economic efficiency, etc. So it's not just a matter of finding cases that support your argument, but presenting those cases as more authoritative and persuasive. We'll talk more about this tmmw. In the meantime you might think about the meaning of the following economic terms: efficiency, "best avoider," "Pareto optimal" solutions. If you're not current on your basic economic theory, wiki the terms and see what you can find out.

I've ordered the coffee for tmmw.: we'll have Harar, a dark roast from Ethiopia, Guatamalan, a lighter roast, and Somalian decaf. [swiss method]. Along with some quite unhealthy donuts from Munchers.

MetaJuris, Coffee, and More

Sorry about the technical troubles with the sympodium. We'll spend more time next week on how to use MetaJuris. I forgot to mention something quite important, however. I will be bringing in coffee and donuts for the class on Wednesdays, starting tomorrow [3 Sept.], so bring a coffee cup to class. I'm rather a coffee fanatic and get it from J&S Coffee on 6th & Wakarusa, which I think is the best in the area, but I'll let you judge. See you in class tmmw.