The Sense of Injustice

February 13th, 2018

Sense of Injustice

LCOMM in Contracts

February 12th, 2018

A lack of an Oxford comma cost dairy $5 million

By Lindsay Benson
February 9, 2018

(CNN)A group of Maine dairy delivery drivers will receive $5 million in a proposed settlement for unpaid overtime, according to court records filed on Thursday.
A judge ruled in the drivers’ favor last March, and it was all thanks to the lack of an Oxford comma in a Maine labor law.
An Oxford comma is the comma used after the second-to-last item in a list of three or more things, “item A, item B, and item C.” It’s not often used in journalism.
The drivers’ employer had claimed they were exempt from overtime pay, according to Maine’s labor laws.
Part of the law exempts certain tasks from receiving overtime compensation. This is what the law’s guidelines originally stated about exempted tasks:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Without the Oxford comma, the line “packing for shipment or distribution,” could be referring to packing and shipping as a single act, or as two separate tasks.
The drivers argued that it reads as a single act, and since they didn’t actually do any packing, they shouldn’t have been exempt from overtime pay.
“Specifically, if that [list of exemptions] used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform,” the circuit judge wrote.
According to court documents, the dairy, while denying any wrongdoing, believed further litigation would be protracted and expensive. The proposed settlement will be considered by a federal judge.
To prevent anymore Oxford comma drama, the Maine Legislature has since edited this exemption, replacing the punctuation with semicolons.

For those interested in the court decision referenced in the article, it is O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017). For other cases decided in part based on the presence or absence of a comma, see United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989) (interpreting the Bankruptcy Code); American Int’l Group, Inc. v. Bank of Am., 712 F.3d 775 (2d Cir. 2013) (interpreting a statute); Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832 (7th Cir. 2002) (interpreting a security agreement); Berkshire Aircraft, Inc. v. AEC Leasing Co., 84 P.3d 608 (Kan. Ct. App. 2002) (interpreting a contract); Judson v. Associated Meats & Seafoods, 651 P.2d 222 (Wash. App. 1982) (interpreting a statute that had been amended to remove a comma); Reeves v. American Sec. & Trust Co., 115 F.2d 145, 146 (D.C. App. 1940) (interpreting a will). But cf. Overhauser v. United States, 45 F.3d 1085, 1087 (7th Cir. 1995) (expressing skepticism about the grammatical expertise of the drafters of legal documents, and therefore of the relevance of grammatical arguments).

Law and Business

January 30th, 2018

Is it really true that lawyers have gotten more and more involved in business practices in the last few decades? The fundamental problem hinted in Macaulay’s piece—that lawyers have to consider unpleasant possibilities at a happy moment of agreement—might be less pressing if the identities and reputations of the contracting businesspeople extends beyond their lifetimes or momentary existence. I’m thinking of how many manufacturing companies between the 1930s and 1960s relied on the good names or products of the people who founded them, like Ford or International Business Machines, versus the socially isolated corporate branding of companies like Apple, Nike or Google today. These postmodern companies are divorced both from the people who made them and the products that they sell.
One of the many messages that people who attend Professor Destefano’s Law Without Walls is that the wall between law and business is highly porous. I know that the lawyers for postmodern companies are highly integrated in their businessses. Your thught is a very interesting one. Thank you for it.

The 1L Preparation: A Guide

August 5th, 2015

If you’re not an incoming 1L, stop reading. This column is not for you.

Greetings to all 1Ls joining the ranks (and filling the coffers) of law schools everywhere! The first thing you’ve probably done to get ready for law school is to buy books. Then, you bought more books. A lot of books. Your backpack is bursting with Examples & Explanations, commercial outlines, handy dandy quick look charts, nutshells, hornbooks, and other study aids.

After you went to fix your back at the chiropractor’s office, you probably cozied up to a 2L or 3L to obtain their “outline” of the course. Then, while still nervous, you felt maybe a bit of relief because then you had all the answers.

Sadly, you don’t. You just have a lot of books and a suspicious outline.

Then something horrible will happen. One day in class, someone will boast they have the outline from the person who had the highest grade last year. Panic and envy will set in all at once. For in your mind, that will guarantee that the wisdom of the outline will transfer to that person, guaranteeing the recipient of the outline the top grade. It’s like touching a holy artifact.

This story may end in you successfully passing the class, but thus far, nothing in the story involves learning the material. Learning involves, at a minimum, the following steps:

1. Reading. First and foremost, read the cases, the notes at the end, the footnotes, everything. If you have not taken a single note while reading, then you aren’t going to retain it when the professor calls on you. If you have used a highlighter (whatever color you choose), you also are not going to retain it. The bookstore is full of used books that look like a kindergartner has colored them, with beautiful rows of pink, yellow, blue, and green. If you’re guilty of this, you have not condensed the material into your own understanding.

If you think you read the material once and you’re done, you are wrong. You have to think about the reading, then read it again, think some more, and then move to step 2.

2. Brief the case. Law students start out by “briefing” cases. That means finding the holding, the relevant facts, the rule to be applied, the policies behind the rule, and the consequences of ruling in the alternative. Here is an example.

By the time law students transform into 2Ls (or sometime after the fourth week of law school), they stop briefing cases, instead “book briefing” cases. In essence, if done right, it will have the same components as briefing will have. At worst, they have degenerated into using a highlighter, or worse, several.

3. Take notes in class. Depending on the professor’s style, the prof might be giving you the black letter law. Or, the professor may be engaged in asking you hypotheticals to flesh out whether or not you know which facts are relevant to the holding or not. Regardless, take notes, for that is the basis of active listening. If your professor allows electronics, ignore emails, chats, and online shopping. Just have your notes open.

4. Digest the class notes, the book briefs, and other information into an outline. Outlines are your understanding of the information and material covered, both in class and any additional casebook material. Do this every week, for your notes may not cause you to recall information as well as you had hoped. The benefit of an outline is not in having it, but in creating it. Creating an outline is the process of solidifying what you have learned.

5. If you are still sketchy on a topic, consult additional materials. The first place to turn is a hornbook. You can find these in your friendly neighborhood law library. The easiest way to find the material is either 1) look up the topic your class is covering or 2) look up the cases your class covered. In most instances, you’ll be able to find the topic with ease, and have way more information than you want. Then, move to step 6.

6. Consult your professor. If your prof is worth his or her salt, then you should be welcomed with all the questions about the topic you might have. Write them down in advance. Some students forget their questions the minute they walk into a prof’s office.

What about all those extra books on which you’ve spent money? You probably shouldn’t spend your extremely limited time looking at them (unless your instructor recommends or requires them), with a couple of exceptions:

If you are desperate for a 30,000-foot view (you have lost sight of the entire forest), then you might look at the Nutshell series. Don’t expect a deeper understanding of the subject here.

If you want to try your hand at some hypos, you might take a look at the Examples & Explanations series. The series provides a general introduction to the topic, followed by some hypotheticals with analysis of how those hypos turn out under the case law (which is not shocking as they are frequently taken from cases). It’s good practice, if you’ve done the steps above. You might even be so lucky as to have a lazy professor who takes questions from the Examples & Explanations series.

Notice what is missing from this list. There is no mention of commercial outlines. Unless you have a commercial outline written by someone whose name your professor recognizes, then, in my opinion, you should probably avoid it like the plague. I will make one exception here: The black letter law series of outlines are frequently written by recognizable names (Calamari co-authors the outline and also writes the hornbook). Commercial outlines give you a 15,000-foot view of the topic. They do not give you a deep understanding of the subject.

NEVER consult a commercial outline otherwise. You are distracting yourself from the reading of the course while reading other material, some of which may not be useful. Some of the material may even add to your confusion.

ONLY consult these tomes to supplement what you have done in steps 1-6 above. These sources will never replace the understanding that occurs when wrestling with the material assigned in class.

I would tell you to never consult a 2L’s or 3L’s outline, but I know you will. If you do, only use it to supplement your own outline. Keep in mind, you have someone else’s understanding of a different class. Yes, it may be the same subject and the same professor, but that doesn’t make it the same. The 2L or 3L probably focused more in the outline on subjects that were confusing to the outline’s author. Are those same subjects less confusing for you? Maybe the author of the outline glosses over some things that he or she thought (rightly or wrongly) too easy.

Having read outlines for my class, I have seen many, many mistakes. Other times, the author has copied and pasted from commercial outlines, meaning that the author of the outline didn’t synthesize the course. If you take on someone’s outline, realize there are risks. You have also not engaged in the learning that could have taken place had you just developed your own.

In my humble opinion, many students spend too much time looking at all these extra materials for answers, when they could have spent less time getting better answers if they had slowed down, read more carefully, and followed the steps I’ve listed above. Nothing saddens me more than watching 1Ls with injured backs carrying around secondary materials they do not need, and should not want.

Efficient Breach and Penalty Clauses: Lake River – Constructing Arguments

September 8th, 2010

Shift focus (a. from micro to macro)
“Penalty clauses provide an earnest of performance”
“On the other side . . . raising the cost of a breach . . . could amplify the business cycle”

(b. to other parties)
“On the other side . . . raising the cost of a breach . . . increases the risk to his other creditors”

Invert valences
Enforcing the clause deters beaches thereby:
inducing parties to contract (“Penalty clauses provide an earnest of performance”) or
“may discourage efficient [pareto-optimal].
. . breaches.”

My client wouldn’t have entered into the contract without this clause because he was worried that the other party would breach and demanded and got this assurance.
A judicial remedy (rather than the party chosen one) protects what both of us desired and expected from the full performance of the contract.

Emphasize Roles
Parties have the freedom to choose the terms on which they contract and it is the function of the court to enforce it. Parties write contracts, not the courts.
The court must enforce the remedy, including by using the force of the sheriff, and therefore the determination of the proper remedy is a judicial function.

Relate to Other Bodies of Law
Because the parties do not have the option of specifically ordering the performance they expect, the court should enable them to specify the monetary value of failed performance.
Enforcing the clause eliminates the need for the non-breaching party to mitigate its damages.