Intermediate scrutiny applies to gender cases only where the challenged law is intended to classify on the basis of sex. Similarly, strict scrutiny applies in race cases only where there is facial discrimination, discriminatory application, or discriminatory purpose. If the law merely has a discriminatory effect, no burden shift.
Age discrimination is reviewed under rational basis.
Right to Vote/Candidacy:
Strict scrutiny will apply to: wealth restrictions, residency restrictions, party affiliation restrictions, racial classifications.
Rational basis scrutiny applies to: min/max age limits on officials, prohibition on officeholders running for another office, reasonable filing fees, signature requirements.
Alienage classifications trigger strict scrutiny except: 1) adult illegal aliens can be discriminated against by a state under rational basis review, and 2) Congress can use alienage as a classification with rational scrutiny under its plenary power over immigration.
Tuesday, June 5, 2007
Con Law-11th Amendment
The 11th Amendment prohibits the citizens of one state from suing their own state or another state in federal court without the state's consent.
Subdivisions (cities, towns, counties) do not have immunity under the 11th Amendment.
State officials may be sued for abusing their power in enforcing an unconstitutional state statute.
The 11th Amendment does not bar suits brought by one state against another or suits brought by the federal government against a state.
Congress cannot authorize suits under its Article 1 Section 8 powers but CAN authorize suits under its enforcement powers in the post-Civil War Amendments to remedy past discrimination.
11th Amendment bars suits for damages but generally not injunctions.
State also cannot be sued in state court without its consent. State employees alleging age discrimination under federal law cannot sued their state employer because Congress cannot waive 11th Amendment immunity using its Article 1 powers.
Subdivisions (cities, towns, counties) do not have immunity under the 11th Amendment.
State officials may be sued for abusing their power in enforcing an unconstitutional state statute.
The 11th Amendment does not bar suits brought by one state against another or suits brought by the federal government against a state.
Congress cannot authorize suits under its Article 1 Section 8 powers but CAN authorize suits under its enforcement powers in the post-Civil War Amendments to remedy past discrimination.
11th Amendment bars suits for damages but generally not injunctions.
State also cannot be sued in state court without its consent. State employees alleging age discrimination under federal law cannot sued their state employer because Congress cannot waive 11th Amendment immunity using its Article 1 powers.
Con Law-Justiciability and Absention
Standing is the FIRST issue to analyze in every con law essay fact pattern.
Standing is a constitutional requirement. Congress cannot confer standing by statute where no case or controversy exists.
2 requirements:
1. injury-in-fact (can be economic, aesthetic, or environmental)
2. redressability a.k.a. causation: relief sought must eliminate the harm alleged.
Specialized standing issues:
1. taxpayer standing: federal taxpayers don't have standing except to challenge establishment under the Spending Clause (won't work under the Property Clause).
2. Third party standing:
1. special relationship (seller of beer could bring suit on behalf of males under 21, doctor can challenge abortion law);
2. third party cannot bring suit on his own behalf;
3. associations may assert claims of members if (a) members would otherwise have standing to sue in their own right, (b) interest asserted is germane to association's purpose, (c) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.
When looking for justiciability:
Ripeness - genuine immediate threat of harm
Advisory Opinions - prohibited in federal courts
Mootness - actual controversy must exist at all stages of review unless there is an injury capable of repetition yet evading review (e.g. abortion cases because baby is born by end of review).
Political Questions - the impeachment process, the amendment ratification process, president's power to unilaterally terminate a treaty, foreign affairs, guaranty clause issues. BUT NOT, reapportionment and gerrymandering.
Standing
Abstention:
2 types:
1. Younger Abstention: prohibits federal court review where there are pending state criminal proceedings.
2. Pullman Abstention: federal court won't proceed where there is an unsettled issue of state law. State may resolve the issue of state law so as to avoid the need for constitutional review.
Adequate and independent state grounds will preclude supreme court review.
Standing is a constitutional requirement. Congress cannot confer standing by statute where no case or controversy exists.
2 requirements:
1. injury-in-fact (can be economic, aesthetic, or environmental)
2. redressability a.k.a. causation: relief sought must eliminate the harm alleged.
Specialized standing issues:
1. taxpayer standing: federal taxpayers don't have standing except to challenge establishment under the Spending Clause (won't work under the Property Clause).
2. Third party standing:
1. special relationship (seller of beer could bring suit on behalf of males under 21, doctor can challenge abortion law);
2. third party cannot bring suit on his own behalf;
3. associations may assert claims of members if (a) members would otherwise have standing to sue in their own right, (b) interest asserted is germane to association's purpose, (c) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.
When looking for justiciability:
Ripeness - genuine immediate threat of harm
Advisory Opinions - prohibited in federal courts
Mootness - actual controversy must exist at all stages of review unless there is an injury capable of repetition yet evading review (e.g. abortion cases because baby is born by end of review).
Political Questions - the impeachment process, the amendment ratification process, president's power to unilaterally terminate a treaty, foreign affairs, guaranty clause issues. BUT NOT, reapportionment and gerrymandering.
Standing
Abstention:
2 types:
1. Younger Abstention: prohibits federal court review where there are pending state criminal proceedings.
2. Pullman Abstention: federal court won't proceed where there is an unsettled issue of state law. State may resolve the issue of state law so as to avoid the need for constitutional review.
Adequate and independent state grounds will preclude supreme court review.
Monday, June 4, 2007
Tricky, Tricky: Contracts-PMBR Red Book 151-200
Here we go:
Q153. Still not sure about the "condition" language. Would love to read what BarBri has to say about this, just for another perspective on the language. A condition ought to modify a promise, not just be the promise. So I'm confused. Are there two meanings to the word "condition" in play here?
Q157. In an employment K, prospective inability to perform due to illness discharges the employee and makes it reasonable for the employer to hire someone else. But then the answer choice says that the employee may be liable for compensatory damages equal to the difference between the value of the promised performance and the substituted performance. So I'm not sure: is the employee discharged or not? I think under Maine law he would be discharged and NOT L for damages... Not sure what to do with this.
Q160. If one side has fully performed, the doctrine of anticipatory breach does not apply. Instead, the statement of an intention not to pay for performance has no legal effect. Hence the answer to the next question: no action for breach lies until the date for payment has arrived without payment being tendered.
Q162. Ugh. Another shifty, confusing use of terms of art. Seems like what's being described is a partially executed bilateral contract. Only creative definitions of a unilateral deal make it that after Feb. 15. Why, oh why, do these questions keep re-defining terms of art?
Q166. an installment contract is "one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause that each each delivery is a separate contract or its equivalent."
Q167. The bill of lading error would not be construed as a substantial nonconformity impairing the value of the whole contract. It's not delivery of nonconforming goods, so they can't be rejected. Obviously if you can't reject the shipment, you also can't cancel the whole installment K.
Q171. There must be a bona fide dispute in order for the pre-existing duty rule not to apply to void the accord for want of consideration.
Q173. I didn't take negotiable instruments, but it looks to me like 3-311 requires that partial payment of a disputed claim discharges the claim only if "the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim." There's no conspicuous statement here, so why is the debt discharged?
Q176. If the promisor indicates that he "doesn't think he can do it," there's no repudiation.
Q179. Read the answer choice carefully and get the parties straight. I had them confused when I read answer choice C and misunderstood it.
Q180. If you contract to begin payments "if the hotel is profitable" and the hotel is never profitable, you still must pay the amount due within a reasonable time because you impliedly promised that the hotel would be profitable in a reasonable time.
Q181. "Where it is clear that no loss at all has actually occurred, a provision fixing a substantial sum as damages is unenforceable."
Q183. Obligation to pay the subcontractor is not dependent on the contractor being paid, even if the payment term says the subcontractor is to be paid after the contractor is paid.
Q190. What an annoying question: either the UCC applies or it doesn't. If it does (and it does), the Knox's telegram was a 2-207 acceptance. If, somehow, Knox's telegram was a counteroffer, it becomes a rejection and a new offer. The original offer is dead. Now, Knox's telegram controls the terms of the deal and Warner's acceptance of the goods without objection to the price term in the telegram forms a contract on Knox's terms. I disagree with the analysis in the PMBR answer. Ugh. Why can't I seem to get on the same page with the damn examiners here?
Q193. Don't forget the 87(2) spin on promissory estoppel-- creates an option contract, preventing revocation.
Q196. Only the power of acceptance is terminated by death. If there is a K, it is enforceable against the estate.
Q153. Still not sure about the "condition" language. Would love to read what BarBri has to say about this, just for another perspective on the language. A condition ought to modify a promise, not just be the promise. So I'm confused. Are there two meanings to the word "condition" in play here?
Q157. In an employment K, prospective inability to perform due to illness discharges the employee and makes it reasonable for the employer to hire someone else. But then the answer choice says that the employee may be liable for compensatory damages equal to the difference between the value of the promised performance and the substituted performance. So I'm not sure: is the employee discharged or not? I think under Maine law he would be discharged and NOT L for damages... Not sure what to do with this.
Q160. If one side has fully performed, the doctrine of anticipatory breach does not apply. Instead, the statement of an intention not to pay for performance has no legal effect. Hence the answer to the next question: no action for breach lies until the date for payment has arrived without payment being tendered.
Q162. Ugh. Another shifty, confusing use of terms of art. Seems like what's being described is a partially executed bilateral contract. Only creative definitions of a unilateral deal make it that after Feb. 15. Why, oh why, do these questions keep re-defining terms of art?
Q166. an installment contract is "one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause that each each delivery is a separate contract or its equivalent."
Q167. The bill of lading error would not be construed as a substantial nonconformity impairing the value of the whole contract. It's not delivery of nonconforming goods, so they can't be rejected. Obviously if you can't reject the shipment, you also can't cancel the whole installment K.
Q171. There must be a bona fide dispute in order for the pre-existing duty rule not to apply to void the accord for want of consideration.
Q173. I didn't take negotiable instruments, but it looks to me like 3-311 requires that partial payment of a disputed claim discharges the claim only if "the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim." There's no conspicuous statement here, so why is the debt discharged?
Q176. If the promisor indicates that he "doesn't think he can do it," there's no repudiation.
Q179. Read the answer choice carefully and get the parties straight. I had them confused when I read answer choice C and misunderstood it.
Q180. If you contract to begin payments "if the hotel is profitable" and the hotel is never profitable, you still must pay the amount due within a reasonable time because you impliedly promised that the hotel would be profitable in a reasonable time.
Q181. "Where it is clear that no loss at all has actually occurred, a provision fixing a substantial sum as damages is unenforceable."
Q183. Obligation to pay the subcontractor is not dependent on the contractor being paid, even if the payment term says the subcontractor is to be paid after the contractor is paid.
Q190. What an annoying question: either the UCC applies or it doesn't. If it does (and it does), the Knox's telegram was a 2-207 acceptance. If, somehow, Knox's telegram was a counteroffer, it becomes a rejection and a new offer. The original offer is dead. Now, Knox's telegram controls the terms of the deal and Warner's acceptance of the goods without objection to the price term in the telegram forms a contract on Knox's terms. I disagree with the analysis in the PMBR answer. Ugh. Why can't I seem to get on the same page with the damn examiners here?
Q193. Don't forget the 87(2) spin on promissory estoppel-- creates an option contract, preventing revocation.
Q196. Only the power of acceptance is terminated by death. If there is a K, it is enforceable against the estate.
Contracts-Accord & Satisfaction
An accord is an agreement to accept performance different from the one owed. Satisfaction = performance of the accord. Note that an accord does NOT extinguish the underlying obligation and if the accord is not satisfied, the obligee can sue on either the accord or the underlying obligation.
A compromise agreement, on the other hand, extinguishes the old contract and substitutes the new agreement in its place.
A compromise agreement, on the other hand, extinguishes the old contract and substitutes the new agreement in its place.
Contracts-Novation
Here's a tricky twist on third-party liability under contracts:
Where an obligor has delegated his duties to a third-party and informed the obligee of the delegation, the obligor remains liable for performance. If the obligee agrees to release the obligor and substitute the delegate as party to the contract, a novation has occurred and the obligor is not liable.
Where an obligor has delegated his duties to a third-party and informed the obligee of the delegation, the obligor remains liable for performance. If the obligee agrees to release the obligor and substitute the delegate as party to the contract, a novation has occurred and the obligor is not liable.
Contracts-Notes from the Sample Essays
How to write about quantum meruit:
A party may recover in quantum meruit if there would otherwise be unjust enrichment.
Is there any unjust enrichment here? Evaluate by looking at the value of what was received, not the services rendered but rather the value of what was bestowed on the recipient.
What will the recovery be? Not for the cost of materials and labor expended by the plaintiff, but for the market value of the benefit retained by the defendant.
How to write about excusal by impossibility/impracticability:
I need to read more about this when my Maine BarBri book finally comes. I'm getting all confused by the PMBR treatment of this issue (confusion which I think arises because the MBE will take a very old-school approach, whereas Maine might follow more closely the Rest. 2d?). Here's what the "correct" answer for Maine says:
If a person is hired for a contract based on specialized or unique skills, and cannot complete the contract due to death or incapacity, the contract performance is excused. If not a specialized person, the incapacitated person can arrange for substitute performance and delegate his duties under the contract without breach.
I would also write about foreseeability and "occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made." And was the risk allocated by the K?
Writing about summary judgment:
Whenever the call of the question asks about a summary judgment determination, start with that. Is there a genuine issue of material fact? Then apply the law to the facts, looking for genuine issues of material facts. When assessing the likelihood of s/j, list the possible GIMFs and analyze.
Notes about the statute of frauds:
It's easy to over-look the 1-year rule on statute of frauds questions. A town can't "operate and maintain" a sewer system without it taking more than a year to complete the contract.
Also: remember that part performance by the defendant is accepted as an evidentiary substitute for the missing memorandum of essential terms if the performance points to the terms of the oral contract. Part performance by the plaintiff may also be weighed by the court to prove the existence of the contract.
Mistake:
Talk about mistake even if it appears to be unilateral and not a valid defense to the contract. In mutual mistake scenarios, the issues are: timing of discovery (was K still executory) and gravity of the mistake (minor v. heart of the deal).
A party may recover in quantum meruit if there would otherwise be unjust enrichment.
Is there any unjust enrichment here? Evaluate by looking at the value of what was received, not the services rendered but rather the value of what was bestowed on the recipient.
What will the recovery be? Not for the cost of materials and labor expended by the plaintiff, but for the market value of the benefit retained by the defendant.
How to write about excusal by impossibility/impracticability:
I need to read more about this when my Maine BarBri book finally comes. I'm getting all confused by the PMBR treatment of this issue (confusion which I think arises because the MBE will take a very old-school approach, whereas Maine might follow more closely the Rest. 2d?). Here's what the "correct" answer for Maine says:
If a person is hired for a contract based on specialized or unique skills, and cannot complete the contract due to death or incapacity, the contract performance is excused. If not a specialized person, the incapacitated person can arrange for substitute performance and delegate his duties under the contract without breach.
I would also write about foreseeability and "occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made." And was the risk allocated by the K?
Writing about summary judgment:
Whenever the call of the question asks about a summary judgment determination, start with that. Is there a genuine issue of material fact? Then apply the law to the facts, looking for genuine issues of material facts. When assessing the likelihood of s/j, list the possible GIMFs and analyze.
Notes about the statute of frauds:
It's easy to over-look the 1-year rule on statute of frauds questions. A town can't "operate and maintain" a sewer system without it taking more than a year to complete the contract.
Also: remember that part performance by the defendant is accepted as an evidentiary substitute for the missing memorandum of essential terms if the performance points to the terms of the oral contract. Part performance by the plaintiff may also be weighed by the court to prove the existence of the contract.
Mistake:
Talk about mistake even if it appears to be unilateral and not a valid defense to the contract. In mutual mistake scenarios, the issues are: timing of discovery (was K still executory) and gravity of the mistake (minor v. heart of the deal).
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