1. Demystifying Class: Case Synthesis & Note-Taking Fall 2012
Prof. Carol B. Swanson

2. Today’s Workshop… A “Heads Up” on upcoming Contracts readings…
Knapp/Crystal/Prince, pp
Hamer v. Sidway (NY Ct App 1891)(uncle promises nephew $5,000 for abstaining from alcohol, tobacco, cursing, gambling)
Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania (Penn Super Ct 2006)(American Ash provides AggRite “free of charge”)
Dougherty v. Salt (NY Ct App 1919)(aunt gives 8-yr-old nephew a $3,000 note for “value received”)

3. ALSO at Today’s Workshop…
Explore the puzzling nature of Socratic questioning;
Take the terror/frustration out of the classroom experience;
Help you maximize your time in and out of the classroom;
Discuss note-taking approaches (before and after class) to help you optimize the value of your notes; and
Get you thinking about case synthesis in ways that will facilitate note-taking AND outlining!

4. Socratic Method
Questions, not answers, are at the heart of critical thinking.
Questioning forms the bedrock of quality education.
You know more than you may think; questioning helps reveal the learner’s actual knowledge.

5. NOTES
(OUTLINE)
SYNTHESIS

6. SYNTHESIS??
NOT!
CASE
CASE
CASE

7. What do you think about law school so far?
About what I expected.
More challenging than I thought it would be.
Easier than I thought it would be.

8. Have you seriously considered giving up?
Yes.
No.

9. Are you up-to-date with your course assignments?
Of course!
Yes, for the most part.
No; I am starting to fall behind in more than one class.
Don’t ask—I’m pathetic.

10. As an undergraduate, Never took class notes.
Sometimes took class notes.
Almost always took class notes.

11. Note-taking BEFORE class…
I always create at least several pages of notes for class prep.
I always create notes, but not that much.
I sometimes create notes.
I don’t make any notes.

12. Note-taking BEFORE class…
My note-taking before class is confined to case briefing.
My note-taking before class goes beyond briefing the cases.
I don’t make any notes.

13. Note-taking IN class…
I always take at least several pages of notes each class.
I always take notes, but not that much.
I sometimes take notes.
I don’t take notes.

14. Class Prep vs. Class Reality
My understanding before class routinely matches class discussion.
My understanding before class is usually in a different time zone (on another planet).

15. So What’s the POINT? COURSE OUTLINE! Notes in Casebook Structure
Before Class
Refine Notes While in Class
Further Refinement at Least Weekly Outside of Class
COURSE
OUTLINE!
Executive Summary

16. Note-Taking Basics BEFORE Class:
Case Briefing (whatever works for YOU)
Roughed-Out Framework (using Knapp textbook; more on this in a moment)
IN Class:
Tricky Balance: Classroom discussion (PROCESS) is more important than mindlessly copying down every word; extensive discussions can often be reduced to the bottom line
AVOID LAPTOP OBSESSION
Capture the “Golden Nuggets”

17. What are the “Golden Nuggets”?
Legal Doctrines: You must understand these.
“What is the definition of… ?”
“What are the elements of… ?”
“What rule did the court apply to decide the case?”
“In what context(s) does this doctrine apply?”
Then Apply Legal Doctrines to New Situations: You must be able to do this in exam settings.
Tease legal rules from a series of cases;
Synthesize cases, build analogies;
Think strategically from several viewpoints; &
Frame persuasive arguments.

18. Obvious IN-CLASS Nuggets…
Your professor (in non-questioning mode) says:
“The key consideration is…”
“This doctrine is of special importance because…”
“The five elements of this doctrine are…”
“This will be on your exam!”
Recurring Themes

19. Note-Taking BASICS (Knapp)
Intro to Contract Law
Sources
Contract Theory Perspectives
Basis of K Obligation:
Mutual Assent
Objective Theory
Offer/Acceptance in Bilateral, Unilateral
Postponed Bargaining
Consideration
K Formation Under Article 2
Electronic and “Layered” Contracting
Your textbook is your friend.
Before you come to class, set up the basic structure.

20. Focus on CONSIDERATION…
Define It
Hamer v. Sidway
History
Pennsy Supply, Inc.
Notes/Functions of Legal Formalities
Apply It
Dougherty v. Salt
This will be your structure BEFORE class.

21. What about all the stuff in the casebook that the professor doesn’t mention?
It’s fair game for the test.
You won’t be tested on it.
It depends.
It depends!
ASK.

22. CONTRACTS in a NUTSHELL
Contracts are enforceable promises
Not all promises are enforceable
So how do we determine which promises should be enforced?
PRIMARY MECHANISM—CONSIDERATION!
Consideration = bargained-for exchange

23. Consideration “Golden Nuggets”
Benefit to the promisor OR detriment to the promisee (one way to ascertain existence of bargained-for exchange)
Gift promises/conditional gifts
Past consideration (is no consideration)
Nominal consideration (in name only)
Adequacy of consideration (almost) never questioned! (peppercorn)

24. Case Briefing: Hamer v. Sidway
Case Name/Court/Date:
Hamer v. Sidway (N.Y. Ct. App. 1891)
Procedural Posture (Facts?):
P acq’d K claim as remote assignee from nephew
D is executor of uncle’s estate
Special Term trial: J/P
Supreme Ct (Gen’l Term): Rev’d & rem’d
Here: Ct App reverses, aff’s Special Term (J/P)

25. Case Briefing: Hamer v. Sidway Facts
Uncle told his nephew that if the nephew refrained from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until he became 21, then the uncle would pay him $5,000.
Nephew agreed and fully performed.
When nephew turned 21, parties mutually agreed that the uncle would hold the $5,000 until the nephew is capable of “taking care of it.”
Uncle died (12 yrs later) without having paid nephew.
P acq’d K claim as remote assignee from nephew.
D is executor of uncle’s estate.

26. Case Briefing: Hamer v. Sidway Issue & Holding
Does the consideration doctrine’s benefit/detriment analysis render enforceable a promise to pay money in return for the promisee’s agreement to give up liquor, tobacco, swearing, and gambling, even though the promisee arguably benefitted from performance, and no benefit to the promisor has been demonstrated?
Held: YES.

27. Case Briefing: Hamer v. Sidway Analysis
Court cites various consideration definitions:
“may consist either in some right, interest, profit or benefit accruing to the one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other” –Exchequer Chamber (1875)
“In general, the waiver of a legal right at the request of another party is a sufficient consideration for a promise” Parsons
“Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first.” –Pollock

28. Case Briefing: Hamer v. Sidway Analysis
Promisee nephew had legal right to use tobacco, drink liquor; he abandoned rights for years, based on his uncle’s promise
This forbearance furnishes good consideration, regardless of what effort was required to forego these activities, or whether the nephew or uncle benefited from the forbearance
Ct favorably cites several cases finding consideration where the promisee gave up legal rights: Lakota (drinking); Talbott (tobacco)

29. Case Briefing: Hamer v. Sidway Rules
Consideration may consist either in some right, interest, profit or benefit accruing to the promisor, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the promisee.
Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first.
In general, the waiver of a legal right at the request of another party is a sufficient consideration for a promise.
If a promisee agrees to forego his legal right to engage in certain activities (like drinking and smoking), that forebearance is good consideration supporting the promise to pay.

30. What Does Pennsy Supply Add?
Pennsy Supply is a paving subcontractor; the project specs required use of TAA or AggRite (hazardous waste material), pointing to American Ash as a company that would supply AggRite for free (on a first-come basis). Pennsy got 11,000 tons of AggRite for free from American Ash, but the pavement cracked extensively, and Pennsy claims breach of warranty. American Ash says NO K.
The court found that Pennsy’s allegations were sufficient to state a cause of action for breach.
What is the “consideration” when American Ash was giving away the AggRite for free?

31. Consideration Because…
No consideration—the court made a mistake.
This was no gift; American Ash benefited from not having to dispose of the AggRite. Quid pro quo creates consideration!
American Ash and Pennsy actually did bargain before entering into the contract; the act of bargaining creates consideration!
Once the court finds either a benefit to the promisor or a detriment to the promisee, that’s consideration!

32. What Does Dougherty Add?
Aunt hands $3,000 promissory note to 8-yr-old nephew (printed form contains the words “value received”), saying to him “You have always done for me, and I have signed this note for you”, and telling his mother that she loved the child, wanted to take care of him.
Why does the court conclude that this promise is NOT enforceable?
NOT enforceable because…
Gift, not an enforceable contract (no consideration).
Past consideration is no consideration at all.
“Value received” on the printed form does not control.
Affection is not enough.

33. Not Enforceable Because…
Aunt did not actually intend to give the boy $3,000.
There was no legally cognizable “offer” or “acceptance.”
There was no bargained-for exchange.

34. Remember the Initial Focus on CONSIDERATION…
Define It
Hamer v. Sidway
History
Pennsy Supply, Inc.
Notes/Functions of Legal Formalities
Apply It
Dougherty v. Salt
This was your structure BEFORE class.
How does that focus CHANGE after class?

35. CONSIDERATION after Class
Consideration DEFINED
Bargained-For Exchange
Benefit to promisor or detriment to promisee is indicative (Hamer), but not determinative (look for quid pro quo—”reciprocal conventional inducement” (Pennsy Supply)
The forbearance of a legal right is enough (Hamer)(uncle promises nephew $5,000 to not drink, etc.)
Need not actually “bargain” for a bargained-for exchange (Pennsy Supply)
COMPARE: Consideration is NOT…
Contrast donative promises (Dougherty)(aunt gives 8-yr-old nephew a $3,000 note for “value received”)
Stated consideration (for “value received”) is not enough (Dougherty)
Past consideration is no consideration (“you have always done for me”)(Dougherty)
Building your outline.

36. Synthesis Excitement: HYPOTHETICAL #1
Alice & Carol are sisters.
Alice is a vegetarian, and she wants Carol to stop eating meat, too. Carol is reluctant to give up hamburgers.
Alice says to Carol, “Please stop eating meat for a month! You are my sister, and I want you to be healthy. If you give up meat, you would certainly deserve $300!”
Carol stops eating meat for a month and now demands $300 from Alice.

37. What Result? No recovery.
Carol can recover because she gave up the right to eat meat for a month.
Carol cannot recover because she enjoyed a benefit (good health) under the promise.
#1: NO RECOVERY because NO PROMISE!
Define it: An unambiguous statement of commitment to do or not do something
How to determine it: Look to surrounding context, language actually used, etc.

38. Synthesis Excitement: HYPOTHETICAL #2
Alice & Carol are sisters.
Alice says to Carol, “You are my sister, and you mean the world to me. You have taken care of our mother for many years. In fact, please accept my promissory note in the amount of $5,000.”
The promissory note includes the language “for good consideration and other value received.”
Carol later demands that Alice make good on the $5,000 note. 38

39. What Result? No recovery.
Carol can recover because she provided extensive services in caring for their mother over the years.
Carol can recover because the note stated “for good consideration and other value received.”
#1: No recovery because past consideration & stated consideration is not enough.

40. Synthesis Excitement: HYPOTHETICAL #3
Alice & Carol are sisters.
Alice says to Carol, “You are my sister, and you mean the world to me. I would feel so much better if you stopped smoking marijuana for a month. If you do, I will pay you $500.”
Carol very reluctantly stops smoking marijuana for a month.
Carol demands that Alice pay her $500. 40

41. What Result? No recovery.
Carol can recover because she gave up marijuana for a month.
Carol can recover, but only if the promise was in writing.
Something else.
#1: No recovery—she didn’t give up a legal right (in most places)!
#4: It depends on the legality of smoking dope in that jurisdiction.

42. Synthesis Excitement: HYPOTHETICAL #4
Alice & Carol are sisters.
Alice says to Carol, “You are my sister, and you mean the world to me. I am cleaning out my garage tomorrow, and I know you have always wanted that sofa that’s stored in the back. Come by and help me extract the sofa—and it’s yours for nothing.”
Carol agrees—and thanks her sister.
When Carol arrives the next day, Alice says that she is keeping the sofa. 42

43. What Result? No recovery because this was a gift.
Carol can likely recover because she agreed to help Alice move stuff out of the garage.
Carol can recover because Alice promised to give her the sofa.
#2: bargained-for exchange!

44. Good Luck! Enjoy Your Fall Semester!
Questions or concerns? Feel free to contact me…
Carol Swanson