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.

C.C. Langdell

The picture above is of Christopher Columbus Langdell who was appointed Dean of the Harvard Law School in 1870. In that same year he published the first casebook, his Cases on Contracts, which revolutionized legal education. He also invented the "Socratic Method," perfected by his hand-picked successor, James Barr Ames. Things haven't changed much since.

From the Law Library Blog

The following appeared on the Law Librarian Blog. It's quite interesting and worth reading during the first few weeks of law school.

Student Tendencies to Self-handicap in Law School
Self-handicapping is a set of behavioral strategies employed before a performance that permits the individual to avoid receiving information that threatens self-esteem. Catherine Ross Dunham (Elon University School of Law) reports her findings on self-handicapping law school student behavior in Hidden Obstacles in the Mass Culture of American Legal Education: An Empirical Analysis, 32 Okla. City U. L. Rev. 237 (2007) [Westlaw]. The results of Dunham's study suggest that "an individual student's self-attributed achiever type correlates to the student's year in law school and GPA. Most significantly, the results of the study suggest that a law student's GPA correlates with the student's self-handicapping score and, further, that GPA is predictive of his self-handicapping score." [JH]

Precedent and the "Web of Law"

During the first few classes I will be talking about the nature of contracts, legal analysis, and analysing cases. I will also be giving you passwords so that you may access a new legal metasearch engine [ MetaJuris 1.0] I have developed in conjunction with Danico Lee at the Information Technology & Telecommunications Center here at KU. One of the base search engines incorporated into MetaJuris 1.0 is PreCydent, developed by Prof. Tom Smith at the University of San Diego. This data base and search engine permits you to discover how many times a particular case has been cited by other cases and gives you, therefore, an idea of the "authority" of the case as compared to other cases. Those of you who are familiar with citation indices, most often used in science, will be familiar with this notion. For those of you who are not, don't worry; I'll explain it. In the meantime, I suggest that you all have a look at Prof. Smith's pathbreaking article, "The Web of Law." It can be accessed online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=642863. Depending on your computer and network connection, you may have trouble downloading or viewing the complete text. If this occurs., you should use a law school computer since the law school is a subscriber to the SSRN network on which the article resides. When you read the article, do not be frightened either by the mathematics or the technical computer jargon. Just get the basic idea of what Smith is saying and I'll explain the rest in class.

Legal Dictionaries

I have added links to two free online legal dictionaries to the class website.

The image, above, is from a cigar box ca.1880 portraying Lincoln as the iconic country lawyer. For more fun legal images see: www.thelegalantiquarian.blogspot.com

For those of you new to Lawrence who want to see what is going on here, the local newspaper is the Lawrence Journal-World. I write a column, mostly about law and the university, every other Wednesday. The next one appears on Wednesday, 20 August. The website is www.ljworld.com.

Welcome to Contracts I (Hoeflich Section)

Welcome to the Contracts I Blog at KU Law School. I will be using this blog to inform you of reading assignments, class meetings, to answer questions, and to share with you other things which strike my fancy. You are welcome to post comments and questions which arise from class.