Literally, with stronger reason.

A logic term used to label an argument claiming that because one ascertained fact exists, therefore another, analogous fact must also exist.

Literally, a friend of the court.

A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views.

Literally, to be informed of.

The loser of a case will often ask the appellate court to issue a writ of certiorari, which orders the lower court to convey the record of the case to the appellate court and to certify it as accurate and complete. If an appellate court grants a writ of certiorari, it agrees to take the appeal, often referred to as "granting cert."

Literally, among other things.

A term used in pleadings, especially in reciting statues, where the whole statute was not set forth at length.

Literally, a judgment non obstante verdicto,

which translates as judgment notwithstanding the verdict; it is a judge's decision to decide a case contrary to the verdict of the jury.

Literally, on the face of it.

A case that is sufficient - that is, has the minimum amount of evidence necessary to allow it to continue in the judicial process and the pass a motion for direct verdict. Such cases will prevail until contradicted and overcome by other evidence.

Literally, a thing decided.

The rule that a final judgment rendered by a court constitutes an absolute bar to a subsequent action involving the same cause of action.

Literally, without which not.

An indispensable requisite or condition.

Is-ought problem

(Hume's Law/Hume's Guillotine)

In legal theory, a default rule is a rule of law that can be overridden by a contract, trust, will, or other legally effective agreement. Contract law, for example, can be divided into two kinds of rules: default rules and mandatory rules. Whereas the default rules can be modified by agreement of the parties, mandatory rules will be enforced, even if the parties to a contract attempt to override or modify them. One of the most important debates in contract theory concerns the proper role or purpose of default rules.

The idea of a default rule in contract law is sometimes connected to the notion of a complete contract. In contract theory, a complete contract fully specifies the rights and duties of the parties to the contract for all possible future states of the world. An incomplete contract, therefore, contains gaps. Most contract theorists find that default rules fill in the gaps in what would otherwise be incomplete contracts. This is often stated pragmatically as whether a court will imply terms so as to save a contract from uncertainty.

Default rules can be established by common law courts or by legislatures

• When a court deision announces an alternative to an agreement, it is announcing the default rule
• When a statute prescribes a rule that will apply unless otherwise indicated in a private contract, it is announcing a default rule

Rules will be enforced, even if the parties to a contract attempt to override or modify them.

Includes Immutable limits (maximum damages) and duty of good faith

Every realm of law can be characterized as a mixture of default and mandatory provisions. Every area of law has this mixture. The law of intestacy is the default legal treatment of people who die without a will. Corporate law is awash with default rules, and again, a mixture of mandatory rules as well. Cumulative voting used to be the default rule of corporate demography, but now straight or non cumulative voting is the legal default. Even constitutional law is a mixture of default and mandatory laws. For example, article four of our constitution includes the mandate that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. That's the full faith and credit clause. But then it immediately goes on to say that quote, Congress may by general laws prescribe the effect thereof, unquote. Thus suggesting that the effects of the state's full faith and credit duty can be altered by Congress.

It's useful whenever you learn a new rule to identify whether that rule can be contracted around.

1. Can the rule be contracted around?
2. How can the rule be contracted around?
3. (When reading a case) What contract provisions would have reversed the decision of the case?
4. (When reading a case) If the decision cannot be reversed, or the losing party cannot win, the court is applying a mandatory rule.
5. Is it reasonable to limit freedom of contract by making the rule immutable? If not, how should lawmakers set the default?

Traditionally, the legal default will give the parties what they would have contracted for, if they had expressly contracted.

Most often, a court will adopt a majoritarian (what the majority would have done) approach.

[look for the word "reasonable" in a default rule]

Contra proferentem (Latin: "against [the] offeror"), also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. The doctrine is often applied to situations involving standardized contracts or where the parties are of unequal bargaining power, but is applicable to other cases. The doctrine is not, however, directly applicable to situations where the language at issue is mandated by law, as is often the case with insurance contracts and bills of lading.

Sometimes it might be useful to establish defaults that penalize one or both parties in ways that encourages the parties to provide information by contracting around the default. Penalty defaults, or information forcing defaults, that intentionally penalize a contractor failing to fill a gap can further both equity and efficiency by giving a contractor the incentive to expressly say, to the other party and to the world, what they want. A penalty default rule is a rule that the contractors would not have wanted. It's presence in the right case will provide contractors an incentive to contract around the default rule and therefore to choose affirmatively the contract provision they prefer. In contrast to the received wisdom, penalty defaults are purposely set at what the parties would not want in order to encourage the parties to reveal information to each other or to third parties, especially courts. When strategic consideration cause a more knowledgeable party not to raise issues that could improve contractual efficiency, a penalty default that penalizes the more informed party may encourage the revelation of information.

Hadley Rule

(Hadley v. Baxendale (1854) 156 ER 145)

• At times it'll be more important to minimize the cost of party error, especially non-drafter error and third party error, especially judicial error, than it is to minimize the cost of altering.
• When externality concern or paternalistic concerns protect the contractors themselves are insufficient to justify a full blown mandatory rules, lawmakers might, at times, impose impeding altering rules, which intentionally deters subsets of contractors from contracting for legally disfavored provisions. Impeding altering rules produce an intermediate category of quasi-mandatory, or sticky, defaults which manage but do not eliminate externalities and paternalism concerns.

• Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.

• Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.

• Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.

Both paternalism and externality concerns are concerns about the inadequacy of consent.

the policy or practice on the part of people in positions of authority of restricting the freedom and responsibilities of those subordinate to them in the subordinates' supposed best interest.

The paternalism concern is the concern that one of the nominal parties to the contract does not have the capacity to provide informed consent.

Both paternalism and externality concerns are concerns about the inadequacy of consent.

The externality concern is the concern the third parties haven't had the opportunity to consent, or withhold their consent, to the transaction.

Ways Legal Entitlements are Protected

(generally)

Some entitlements are produced by strong property rules which attempt to deter third parties from non-consentually taking the entitlement. Property rule protections are punitive in nature, often involving the threat of jail or super compensatory punitive fines.

In contrast, other entitlements are protected by weaker liability rules which attempt to compensate an entitlement holder for the loss of an entitlement than is non-consensually taken.

1. How is that right protected? (Property rule or Liability rule?) (Positive)

2. Does the law offer the right kind of protection for that right? (Normative)

Normal remedy for breach of contract?

(general)

Contractual law normally does not protect contractual entitlements with specific performance. It doesn't normally use property protections. Instead, the normal remedy is a liability rule protection. Expectation damages. We just try to compensate the non-breaching party. Still, there are several instances where contractual entitlements are protected by property rules.

Jacob & Youngs v Kent (1921)

Synopis and Finding

Synopsis of Rule of Law. The measure of damages for a trivial and innocent omission is not the cost of replacement but the difference in value.

Held. Equity and fairness dictate that one who unintentionally commits a trivial wrong will not be condemned to a fate so clearly out of proportion with the transgression. To permit Defendant to recover the cost of replacement of the pipe would be unduly oppressive. Instead, Defendant will be adequately compensated by recovering the difference in value of a home with the Reading pipe and the value of the home, as it exists, with a different kind of pipe.

When you learn about legal rights and entitlements, you should ask how the right is protected by learning the consequences of:

• various types, intentional versus negligent,
• various types of takings by various types of people, public versus private actors.

You don't really know the value of an entitlement until you know how it's protected.

You have a right to pick up a shell that you find on the beach. This right is a privilege:

A has a privilege to φ if and only if A has no duty not to φ.

To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When US Presidents invoke “executive privilege,” they deny an assertion that they have a duty not to conceal evidence: they assert a Hohfeldian privilege. Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity.

A contract between employer and employee confers on the employee a right to be paid her wages. This right is a claim:

A has a claim that B φ if and only if B has a duty to A to φ.

The employee has a claim that the employer pays her her wages, which means that the employer has a duty to the employee to pay those wages. As seen in the definition and the example, every claim-right correlates to a duty in (at least) one duty-bearer. What is distinctive about the claim-right is that a duty-bearer's duty is “directed at” or “owed to” the right-holder.

Some claim-rights exist independently of voluntary actions like signing a contract; and some claim-rights correspond to duties in more than one agent. For example, a child's claim-right against abuse exists independently of anyone's actions, and the child's claim-right correlates to a duty in every other person not to abuse him (i.e., the claim right is in rem). This example of the child's right also illustrates how a claim-right can require duty-bearers to refrain from performing some action (i.e., that “phi” can be a negative verb such as “not abuse her”). Bodily and property rights are paradigmatic rights with claim-rights at their core.

Privileges and claims define what Hart called “primary rules”: rules requiring that people perform or refrain from performing particular actions (Hart 1961). Indeed the primary rules for all physical actions are properly analyzed as privileges and claims. Were we to know all privileges and claims concerning physical actions, we would know for every possible physical action whether that action was permitted, required or forbidden.

Two further Hohfeldian incidents define what Hart called “secondary rules”: rules that specify how agents can introduce and change primary rules.

The Hohfeldian power is the incident that enables agents to alter primary rules:

A has a power if and only if A has the ability to alter her own or another's Hohfeldian incidents.

A ship's captain has the power-right to order a midshipman to scrub the deck. The captain's exercise of this power changes the sailor's normative situation: it imposes a new duty upon the sailor and so annuls one of his Hohfeldian privileges (not to scrub the deck). Similarly, a promisor exercises a power-right to create in the promisee a claim that the promisor will perform a certain action. The promisor's exercise of her power-right to promise creates in the promisee a claim that the promisor do what she promised to do. Or again, a neighbor waives his claim that you not enter his property by inviting you into his home, thus endowing you with a corresponding privilege. Ordering, promising, waiving, sentencing, consenting, selling, and abandoning are all examples of acts by which a rightholder exercises a power to change his own Hohfeldian incidents or those of another.

Powers can alter not only “first-order” privileges and claims, but “second-order” incidents as well (Sumner 1987, 31). An admiral, for example, has the power-right to relieve a captain of her power-right to command a ship. Power-rights to alter the authority of others are, as we will see, definitive of all developed legal and political systems.

The fourth and final Hohfeldian incident is the immunity. When A has the ability to alter B's Hohfeldian incidents, then A has a power. When A lacks the ability to alter B's Hohfeldian incidents, then B has an immunity:

B has an immunity if and only if A lacks the ability to alter B's Hohfeldian incidents.

The United States Congress lacks the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen's right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves, and civil servants have a right not to be dismissed when a new government comes to power. All of these rights are immunities, corresponding to an absence of a power in some other party to alter the rightholder's normative situation in some way.

Hohfeldian Opposites and Correlatives

(general)

Hohfeld arranged the four incidents in tables of “opposites” and “correlatives” so as to display the logical structure of his system. In order to fill out the tables he added some further terminology. For instance, if a person A has a claim, then A lacks a “no-claim” (a no-claim is the opposite of a claim). And if a person A has a power, then some person B has a “liability” (a liability is the correlative of a power).

Opposites

Correlatives

Jural Correlatives

Jural Opposites

People who choose to associate with a particular group can protect themselves by leaving the group, or by complaining. The former is called exit, the latter is called voice. The law can and does at time require association to give its members exit rights. And sometimes it requires them to give them voice rights. But the extent of these rights vary with particular contexts. For example, John Morley has shown that mutual funds provide strong exit rights but very ineffective voice rights. If you don't like the way your stock mutual fund is being managed, you're free to sell your investment. Similarity, people who borrow money to buy a home now have stronger exit rights, because pre-payment penalties are now prohibited. In contrast, minority shareholders in certain closed corporations have limited exit rights, but more generous voice rights to speak their mind, if they are represented on the board of directors.

Charles Mills Tiebout (1924–1968) was an economist and geographer most known for his development of the Tiebout model, which suggested that there were actually non-political solutions to the free rider problem in local governance. He graduated from Wesleyan University in 1950, and received a PhD in economics in University of Michigan in 1957. He was Professor of Economics and Geography at the University of Washington. He died suddenly on January 16, 1968, at age 43.

Tiebout is frequently associated with the concept of feet voting, that is, physically moving to another jurisdiction where policies are closer to one's ideologies, instead of voting to change a government or its policies.

Essence; the material or essential part of a thing, as distinguished from "form." See State v. Iiurgdoerfer, 107 Mo. 1, 17 S. W. 040, 14 L, It. A. 846: Hugo v. Miller, 50 Minn. 105. 52 N. W. 3S1 ; Pierson v. Insurance Co., 7 Iloust. (Del.) 307, 31 Atl. 900.

This word is commonly opposed to the sum of legal principles constituting the substance of the law, and denotes the body of rules, whether of practice or of pleading, whereby rights are effectuated through the successful application of the proper remedies. It is also generally distinguished from the law of evidence. See Kriug v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; Cochran v. Ward, 5 Ind. App. SO, 29 N. E. 795, 31 N. E. 5S1, 51 Am. St. Rep. 229. The law of procedure is what is now commonly termed by jurists "adjective law," (9- v.)

That part of the law which the courts are established to administer, as opposed to the rules according to which the substantive law itself is administered. That part of the law which creates, defines, and regulates rights, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.

 Substantive rules determine what outcomes and consequences are supposed to flow from the facts found in the proceeding.

The technical aspects of a legal system that states the steps that need to followed while enforcing criminal or civil law.

Procedural rules govern how, in court, the process of litigation will be carried out. 

The Erie doctrine is a fundamental legal doctrine of civil procedure in the United States which mandates that a federal court sitting in diversity jurisdiction (or in general, when hearing state law claims in contexts like supplemental jurisdiction or adversarial proceedings in bankruptcy) must apply state substantive law to resolve claims under state law.

The doctrine follows from the Supreme Court landmark decision in Erie Railroad Co. v. Tompkins (1938). The case overturned Swift v. Tyson, which allowed federal judges sitting in a state to ignore the common law local decisions of state courts in the same state, in cases based on diversity jurisdiction.

Federal Court sitting in diversity

(procedural and substantive rules)

Degree of unreasonableness and unfairness of a contract or deal prompting a court to modify or nullify it.

Legal principle where a court will modify or nullify conditions of contract placing one party at the other's mercy.

Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the substance of the matter. Even though both are affected by Supreme Court opinions and subject to constitutional interpretations, each serves a different function in the criminal justice system.

Courts that find any contract or clause to be unconscionable at the time it was made can refuse to enforce the contract or limit the application of an unconscionable clause to avoid an unconscionable result.

Unconscionability requires two elements, both of which must be present in order to make a contract invalid - procedural unconscionability and substantive unconscionability. In applying element, a sliding scale allows for a greater degree of one factor and a lesser degree of another to result in a finding of unconscionability.

Procedural unconscionability may be shown by either:

Inequality in Bargaining Power - Evidence of inequality in bargaining power can be shown by 1) terms unreasonably favorable to other party, 2) terms that are hidden in the contract, and 3) a plaintiff with a lower education.

OR

Unfair Surprise - Evidence of unfair surprise is shown by hidden terms in a prolix document.

Defense: Although procedural unconscionability may be present, this element can be defeated if the complaining party had other sources of supply at a price, which was not unconscionable.

Substantive unconscionability may be shown by:

Overly harsh allocation of risks or costs not justified by the circumstances.

OR

Great price disparity - Three to four times the fair market value is considered to be a great price disparity

Lat In Roman law. Right; justice ; law; the whole body of law; also a right. The term is used in two meanings: 1. "Jus" means "law," considered in the abstract; that is, as distinguished from any specific enactment, the science or department of learning, or quasi personified factor in human history or conduct or social development, which we call, in a general sense, "the law." Or it means the law taken as a system, an aggregate, a whole; "the sum total of a number of individual laws taken together." Or it may designate some one particular system or body of particular laws; as in the phrases "jus civile," "jus yentium," "jus pratorium." 2. In a second sense, "jus" signifies "a right;" that is, a power, privilege, faculty, or demand inherent in one person and incident upon another; or a capacity residing in one person of controlling, with the assent and assistance of the state, the actions of another. This is its meaning in the expressions "jus in rem," "jus accrescendi," "jus possessionis." It is thus seen to possess the same ambiguity as the words "droit," "recht," and "right," (which see.) Within the meaning of the maxim that "ig- norantia juris non excusat" (ignorance of the law is no excuse), the word "jus" is used to denote the general law or ordinary law of the land, and not a private right. Churchill v. Bradley, 58 Vt. 403, 5 Atl. ISO, 56 Am. Rep. 563; Cooper v. Fibbs, L. R. 2 H. L. 149; Freichnecht v. Meyer, 39 N. J. Eq. 561. The continental jurists seek to avoid this ambiguity in the use of the word "jus," by calling its former signification "objective," and the latter meaning "subjective."Lat In Roman law. Right; justice ; law; the whole body of law; also a right. The term is used in two meanings: 1. "Jus" means "law," considered in the abstract; that is, as distinguished from any specific enactment, the science or department of learning, or quasi personified factor in human history or conduct or social development, which we call, in a general sense, "the law." Or it means the law taken as a system, an aggregate, a whole; "the sum total of a number of individual laws taken together." Or it may designate some one particular system or body of particular laws; as in the phrases "jus civile," "jus yentium," "jus pratorium." 2. In a second sense, "jus" signifies "a right;" that is, a power, privilege, faculty, or demand inherent in one person and incident upon another; or a capacity residing in one person of controlling, with the assent and assistance of the state, the actions of another. This is its meaning in the expressions "jus in rem," "jus accrescendi," "jus possessionis." It is thus seen to possess the same ambiguity as the words "droit," "recht," and "right," (which see.) Within the meaning of the maxim that "ig- norantia juris non excusat" (ignorance of the law is no excuse), the word "jus" is used to denote the general law or ordinary law of the land, and not a private right. Churchill v. Bradley, 58 Vt. 403, 5 Atl. ISO, 56 Am. Rep. 563; Cooper v. Fibbs, L. R. 2 H. L. 149; Freichnecht v. Meyer, 39 N. J. Eq. 561. The continental jurists seek to avoid this ambiguity in the use of the word "jus," by calling its former signification "objective," and the latter meaning "subjective." 

there are many procedural rules which in their operation are "substantially equivalent" to rules of substantive law. He mentions three classes:

• exclusive evidential rules (e.g., statute of frauds)
• conclusive evidential facts (e.g., conclusive presumptions)
• limitation of actions

Coase theorem is a legal and economic theory that affirms that where there are complete competitive markets with no transactions costs, an efficient set of inputs and outputs to and from production-optimal distribution are selected, regardless of how property rights are divided. Further, the Coase theorem asserts that when property rights are involved, parties naturally gravitate toward the most efficient and mutually beneficial outcome.

Before Coase, lawmakers believed that in deciding whether to hold railroads liable for crop damages the law would be influencing the amount of precaution taken by both railroads and by farmers. But by exploring a frictionless world of contracting, where potential contractors without cost agree to all mutually beneficial transactions, Coase deduced that the law need not influence precaution taking.

In a world of costless contracting, the choice among different legal standards for liability will not impact the levels of precaution taken by the railroads and by farmers. The legal standards will only impact the distribution of wealth as the background legal rules will often determine who pays whom.

The theorem holds that in the absence of transaction costs the assignment of legal rights will not impact the ultimate allocation of rights.

With unimpeded bargaining, different legal rules will not influence allocative efficiency, they'll only have distributional effects. 

the assignment of rights will impact the distribution of income because if the most efficient owner is not initially assigned a right, he or she will have to pay for it.

With unimpeded bargaining, different legal rules will not influence allocative efficiency, they'll only have distributional effects. 

Coase Theorem and Default Rules

(at-will vs. just cause employment)

Cost Avoidance and Optimal Tort Liability

(Least Cost Avoidance)