Nick Kam

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Conjoined twins and legal conundrums

Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]

Filed under: academia, jurisprudence, , , , , ,

When Judges Get Punny

A sampling of retired Judge John Robert Brown’s delights from the 5th Circuit Court of Appeals:

“Congress, of course, has the Cold Power to preempt. Of the three situations discussed by the Court, the first (direct conflict) is easy, for it is Crystal Clear that the state law must yield. The third, in which the ordinance may supplement the federal law and thereby extend or increase the degree of regulation, is more troublesome. For where Congress has chosen to fashion a regulatory scheme that is only the Head and Shoulders, but has not opted to regulate every aspect of the area, the states have implied power to flesh out the body. It is where Congress fails to clearly signify, with an appropriate preemption clause, its intent to fully occupy the area regulated that the problem arises. With some Joy, the Court finds there is such a clause.”

Chemical Specialties Manufacturers Ass’n, Inc. v. Clark, 482 F. 2d 325 (5th Cir. 1973).

See more of Judge Brown’s antics here and here.

Filed under: jurisprudence, novelty, , , , , ,

No. 61727-054

“Fuck my victims,” [Madoff] said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”

The thing about unbelievable quotes that really sell a story is that their effectiveness comes from our aching desire that they were actually said.

From New York Magazine’s piece “Bernie Madoff, Free at Last”.

Filed under: jurisprudence, , ,

Res Ipsa Loquitur

It seems that appellant consumed one plug of his purchase, which measured up to representations, that it was tobacco unmixed with human flesh, but when appellant tackled the second plug it made him sick, but, not suspecting the tobacco, he tried another chew, and still another, until he bit into some foreign substance, which crumbled like dry bread, and caused him to foam at the mouth, while he was getting “sicker and sicker.” Finally, his teeth struck something hard; he could not bite through it. After an examination he discovered a human toe, with flesh and nail intact. We refrain from detailing the further harrowing and nauseating details.

The thing, truly does, speak for itself.

Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490 (1918).

Filed under: academia, jurisprudence, novelty, , ,

The Last Time the Third Amendment was Invoked

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Custer County Action Ass’n v. Garvey, 256 F. 3d 1024 (10th Cir. 2001). The property Petitioners sought to protect was the airspace above their land. As the court extrapolated through a slippery slope argument, Petitioners would have the United States military seek consent from every individual or entity owning property over which military planes might fly, and then design its training exercises to utilize only that airspace for which permission was granted, or else risk Third Amendment liability. The 10th Circuit court was unwilling to extend this kind of Third Amendment protection:

Judicial interpretation of the Third Amendment is nearly nonexistent. The crux of any such claim, however, is whether the nature of the asserted property interest falls “within the ambit of the Third Amendment’s proscription against quartering troops ‘in any house, without the consent of the Owner.’” Engblom v. Carey, 677 F.2d 957, 961-62 (2d Cir.1982). Citing Engblom v. Carey, Petitioners argue that “[b]ecause a private party has rights to the airspace above his or her property … the United States military may not appropriate such property interests during peacetime without the property owners’ consent.” This argument borders on frivolous.

Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982), is the only significant challenge based on the Third Amendment since the Constitution was ratified in 1788. During a strike by New York prison guards, National Guardsmen were brought in as scabs to serve in their stead. Striking prison guards were removed from employee housing to make room for the National Guardsmen. Some of those evicted prison guards filed suit alleging violation of the Third Amendment. Ultimately, the majority held for the government — no Third Amendment violation. Though, the court did provide a test for all future Third Amendment violations.

Filed under: constitution, jurisprudence

Litigation and Trial: The Part in Iron Man 2 Where Fantasy and IP Collide

Intellectual property doesn’t just sound cool. It is cool! Over at The American Prospect they’re pulling apart the IP issues surrounding Tony Stark’s Iron Man suit. Government takings abound!

While trying to fend off Vanko, Stark is pressured by the U.S. government to give up the secrets of the Iron Man suit. After Stark refuses a senator’s demand that he relinquish his body-armor technology, the government forcibly takes it from him, only to turn it over to a competitor that then uses the technology to fulfill its own defense contract. Consciously or no, this echoes the real world; the United States government can take such actions with almost total legal impunity.

Tony Stark gets to choose: disclose the details of the invention in a patent and correspondingly get superior civil (i.e. monetary) relief if someone copies it, or try to keep the invention secret himself and hope that criminal law dissuades people from stealing it.

Litigation and Trial – Max Kennerly.

See also io9′s analysis of what it would cost to build Iron Man’s suit.

Filed under: jurisprudence, new and improved

The Misfits – Where Eagles Dare

“Defendant, seeing plaintiff on a city street, reviled her at the top of his lungs in the presence of bystanders and others who assembled, calling her a God damned son of a bitch, a dirty crook, and other similar epithets, which he repeated several times. Plaintiff was seven months pregnant at the time, and her condition was sufficiently obvious to the defendant; and she claimed that the verbal attack was made for the purpose of causing her physical injury.”

Bartow v. Smith, 78 N.E.2d 735 (1948) cited in Prosser’s Insult and Outrage (1956).

The Misfits – Where Eagles Dare.

Filed under: jurisprudence, novelty

The Onion: Supreme Court Upholds Freedom Of Speech In Obscenity-Filled Ruling

“I don’t know what kind of bullshit passes for jurisprudence down in the 4th Circuit these days,” Thomas wrote. “But those pricks can take their arguments about speech that ‘appeals only to prurient interests’ and go suck a dog’s asshole.”

From The Onion.

Filed under: jurisprudence, More to Judge, novelty

Improper Grounds for Seeking Default Judgment

The plaintiff in this suit sought an entry of a default judgment against the defendant for having failed to plead or otherwise defend the action. However, the fact of the matter was that the defendant had answered the plaintiff’s complaint in the following manner:

Not only do I deny all of the allegation in the above styled suit, I contend, with all due respect, that the plaintiff must be suffering from a condition of brown eyeballs since he is full of so much bullshit.

The court on review held, “While the form and language of the appellant’s response are less than desirable and more frank than customary, the appellant did state in short and plain terms his general denial of appellees’ claims.”

Wheat v. Eakin, 491 So. 2d 523 (1986).

Filed under: jurisprudence, novelty

Arguments only a Lawyer Could Make with a Straight Face: A Burrito is a Sandwich

When Panera Bakery signed a lease agreement with the White City Mall of Massachusetts in 2001, they included an exclusivity clause that both parties agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches.

Easy right? Fast forward 5 years and White City Mall signs a lease agreement with Qdoba Mexican Grill to lease space in the same food court.

Panera went bananas. They started threatening litigation, demanding recission of the Qdoba lease agreement, and rolling around red-faced on the floor. Panera believed and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Qdoba under the Lease. “Au contraire my little baker friend,” replied the opposing counsel and the court. Superior Court Judge Jeffery Locke opined in a seven page opinion:

The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.

This has got to be the first time that a court had to delineate the characteristics of the sandwich in a judicial opinion. And if that wasn’t enough, the Court put a final nail in Panera’s burrito-is-a-sandwich coffin: “Even though Panera vigorously argued for a broad definition of ‘sandwiches’ under the lease agreement to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean ‘sandwiches.’”

Prof. Marjorie Florestal of McGeorge finds the fact that Judge Locke leaned so heavily on common sense in this case troubling. In the introduction to her law review article she writes, “In short, a judge’s common sense or gut-level intuitive reactions– while permissible and useful–must undergo a second layer of logical, deliberative reasoning if she is to arrive at a truly holistic and fully-formed assessment of the case.”

While the Professor is correct that law requires such analysis, things like “Is a burrito a sandwich?” “Is waterboarding torture?” and “Is a horse a bird?” ostracize the layman and offend our notions of reality when lawyers try to justify the absurd conclusion.

White City v. PR Restaurants (2006).

Filed under: jurisprudence, novelty

Dicephalic Parapagus Conjoined Twins

Dicephalic Parapagus Conjoined Twins
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