What is mandamus?

Mandamus, or a "writ of mandamus", can mean different things in different contexts. In the US, mandamus usually means an order from a  higher court to prevent a lower court from doing something wrong.  Mandamus is very unusual.

Remember that as a general rule, an appellate court only hears a case after all the proceedings in the lower court are finished.  For example, a federal  appellate court (Circuit Court) will not review what a federal trial court (District Court) did until the District Court trial is complete or until the District Court issues a decision that permanently ends the case, such as by granting summary judgment for one side.

Mandamus is one exception to our general rule.  Let's say a party thinks that a federal trial court has made such a terribly wrong decision and the party requires urgent intervention from an appeals court.  In that case, the party can ask for mandamus from the appellate court.  Some typical requirement for mandamus are:

  1. the party has no other way of getting help (if the appellate court does not issue an order of mandamus the party has no other way to protect its rights);
  2. if the party waits until the case is ready for appeal it will be too late.

Parties seeking mandamus might also argue that the district court keeps repeating the same mistake or that the issue presented is new and important.

Again, mandamus is very unusual.  Where a court exceeds its jurisdiction an appellate court might issue a writ of mandamus.  For example, in one case the First Circuit Court of Appeals held that a federal trial court exceeded its jurisdiction with respect to a lawsuit against judges in Puerto Rico.

A party seeking mandamus should be careful  - - the appellate court will probably not agree that mandamus is appropriate and he'll only  succeed in making the trial court judge unhappy.

New Contract Law Video on Condition Subsequent

I have a new video up on the condition subsequent in contract law.  I'll have some more posts soon but am tied down for a bit with other projects.  Feel free to get in touch though!


New Contract Law Video on Condition Precedent

I uploaded a video Contracts: What is a condition precedent?  I will follow up on this with some more on conditions and remedies under contract law.


What are innominate terms in a contract?

Eeek!  This is an English legal term so forgive me for trying to answer this question anyway.  Also, please forgive the length of this post. Exploring this answer might be helpful to understanding some aspects of contract law for students of US law, too.

Let's look at US contract law first:

Terms of a contract are divided into two categories:

1. Conditions

2. Promises (sometimes called warranties).  Sometimes a promise is also a condition.

Our general rules are:

If party A fails to comply with a  condition of the contract, or a condition otherwise does not occur, party B can repudiate the whole contract.

If party A fails to comply with a promise, party B can usually just sue for damages.

What is a condition?

A condition is something that must occur before a party is obligated to do something.  Insurance contracts are a good source if you want to find conditions.  Let's say Beta Insurance Company insures Alan's house against damages from falling objects.  His insurance contract will probably include terms similar to the following:

Beta will insure Alan against damages resulting from falling objects if, and only if:

  1. Alan pays a $1 premium on the first day of every month.
  2. The falling object must first penetrate the outside of Alan's house.  By way of example, Alan is insured against a meteor falling through his roof, not a plate falling from his shelf.
  3. Alan alerts Beta as to the damage within 48 hours.

Let's say a meteor crashes through Alan's roof and Alan waits 72 hours to report the damage.  At that point the damage to the house is $100,000.  In many jurisdictions the insurance company will probably succeed in arguing that Alan gets nothing.  Beta's duty to pay was a condition of Alan reporting the accident in a timely manner.  The insurance company is not going to pay $100,000 and not even $75,000 - - the insurance company in many jurisdictions is not going to pay at all.  See our general rule above: if a condition fails to occur or A fails to comply with a condition, B has no obligations.

What is a promise?

A promise is something that a party is obligated to perform.  As we see above, sometimes  a party does not have to keep its promise unless a condition occurs.  

Let's say Grandma Betty hires Alan Construction company to build her a house.  She agrees to pay $1,000,000.  Betty has trouble walking so the house must not have stairs. In addition, Alan promises to make every room in the house wired for the internet.  Alan finishes the house but one of the bathrooms does not have internet access.  The house is otherwise just what Betty needs.  Can Betty refuse to pay?  No.  But she might be able to sue for damages because Alan broke his promise to make every room in the house equipped for internet access.  Maybe the cost of the house will be reduced by a few thousand dollars.

Let's turn to English Law for a moment:

Innominate Terms

As I understand it, English law adds a third type of classification - - innominate terms that cannot be classified as conditions or warranties/promises.  As I understand it, we do not know whether a party can repudiate the contract or not until a court decides how serious was the term's breach.    Depending on the seriousness of the breach, an English court will allow a party to repudiate or just sue for damages.

For example, let's say Alan Computers hires Beta Cleaners to clean up its offices.  The contract provides that "Beta must not disclose secret information belonging to Alan."  One of Beta's cleaners comes across a memorandum and tells his wife that Alan Computers is scheduled to have a wine and cheese party on Friday at 4:15.  This information was not public.  Not much harm is done.  But let's say one of Beta's cleaners leaks information to the public that Alan Computers is running behind schedule on its new computer model.  This disclosure destroys Alan Computers.  Well, in both cases the same provision of the contract was breached. My understanding is that "Beta must not disclose secret information" would be viewed as an innominate term.  In the first case, Alan could try to sue for damages, but in the second case, Alan could probably also repudiate the contract.

Back to US Law:

Look back at our story of Grandma Betty.  Let's say the construction company built this poor woman's house with endless stairways similar to an Escher drawing.  This was a material breach.  Betty can probably repudiate because the construction company's breach defeated the entire purpose of the contract to build a house suitable for an elderly person who had trouble walking.  

I'll try to get a video on my YouTube page soon regarding contracts and remedies.

What is

Fair use is a rule that allows a person to use copyrighted material without the permission of the copyright holder.

Copyright law tells us that when a person authors an original creative work he has certain rights.  For example, if a person  writes a book he will probably have the right to, among other things, prevent another person from copying the book or writing a sequel to the book.  If another person wants to copy the book or write a sequel, the author of the book will need to give his permission first.

Fair use provides that a person might be able to use the copyrighted material without getting permission. Types of fair use include using copyrighted material for news, criticism, commentary, education, scholarship, and research.   For example, a book critic or a teacher could almost certainly quote or copy portions of the book without permission of the author.  

Courts decide what is fair use and what is not fair use.  Judges apply a number of factors to determine whether use of the copyrighted material is really fair use.  Among other things, a court will look at the nature of the copyrighted material, how the copyrighted material was used,  how much of the copyrighted material was used, and whether the holder of the copyright will be financially damaged by the use of his copyrighted material.   Here's a video on fair use:


Case of the Month: NML Capital v. Republic of Argentina

If you follow the news you may have seen news reports regarding a case in a New York federal court, NML Capital v. Republic of Argentina.   It's a useful case to study for US legal terms, the federal court system, and where politics and the law intersect.  Below is a simplified summary.

The background to the case is that Argentina issued bonds.  You're probably familiar with bonds:  bonds help companies and countries to raise money.  Basically, investors give money now in return for a promise to get paid back with interest later.  

Argentina has a history of defaulting - - failing to pay back investors.  To help encourage people to buy Argentina's bonds Argentina agreed that if there was a legal battle in connection with the bonds that Argentina would litigate in New York federal court.  The reason to litigate in New York is that New York would be perceived as a neutral place to settle any dispute.  Investors might be nervous about litigating against Argentina in Argentina's courts and would be less willing to buy Argentina's bonds.

 So investors bought the bonds but Argentina defaulted.  Argentina told bondholders that they could get back around 30 cents for every dollar.  Many bondholders agreed to this offer.  In the news you will see the bondholders who agreed to this deal called Exchange Bondholders.  Exchange Bondholders means the investors who agreed to accept Argentina's offer.

But not all the investors agreed to accept Argentina's offer.  Other bondholders wanted Argentina to pay what it owed on the bonds.  These bondholders sued in New York federal court (the case is captioned NML Capital Ltd. v. The Republic of Argentina).  Let's call the bondholders who did not accept the deal "plaintiffs".

The federal court ordered Argentina to not pay the Exchange Bondholders unless Argentina also agreed to make payments to the plaintiffs in the court case.  Argentina, among other things, argued that the US federal court could not tell Argentina what to do because Argentina is a sovereign country.

The judge found Argentina to be in contempt because Argentina failed to follow his orders.   The plaintiffs want the judge to impose a penalty of $50,000/day against Argentina.  This creates political friction between the United States and Argentina because it is unusual for a court in one country to impose a penalty against another country. Argentina has asked for support from the United States government (the executive branch) against what it believes to be improper actions by the court (the judicial branch).

Below is a video I uploaded:



What is a subpoena?

Subpoenas are legal orders to provide evidence.  There are two major types of subpoenas: (i) subpoenas that require someone to testify; and (ii) subpoenas that require someone to disclose evidence in their possession, such as documents.  These two types of subpoenas are often referred to as subpoenas (i) ad testificandum; and (ii) duces tecum.   

In the United States, judges and other court officers, including lawyers, may issue a subpoena.  If a lawyer issues a subpoena and the person subject to the subpoena fails to comply, the lawyer can ask a court to force the person to comply.

Subpoenas are especially useful for gathering evidence from third parties.  For example, let's say Patty sues David.  David is a party to the case and subject to the jurisdiction of the court so obtaining evidence from David should not be a problem for Patty.  But let's say Terry, a third-party who is not in the case, has critical evidence that Patty needs.  To obtain the evidence Patty's lawyer might rely on a subpoena, to try and compel Terry to turn over the evidence that Patty wants.  

I uploaded a video on subpoenas to YouTube:





What is respondeat superior?

Respondeat superior means that an employer can be held liable for a tortious act of his employee if the employee commits the tort while performing his duties as an employee.  The employer will not be liable if the employee commits the tort for his own interests and where his actions are not within the scope of his employment.

For example, let's say David delivers pizza for Ricky's pizza shop.  While delivering a pizza David drives carelessly and slams his car into Patty's car.  Patty should be able to sue David for negligence and also sue Ricky's pizza shop pursuant to a theory of respondeat superior.  

But let's say David decides to play a joke on Patty by jumping in front of her and screaming while she is walking down the street.  Patty is terrified and sues for David for assault.  Jumping in front of Patty and screaming has no connection to David's job and the prank was committed to further his own interests.  Ricky's pizza shop is probably not liable for David's actions.


Federalism video updated



I updated my YouTube video on federalism a bit.  That video (and others) had some technical issues especially with sound and I hope this version is more pleasant to watch.



What do courts mean by ripeness and mootness?

When courts talk about ripeness and mootness they are referring to whether it is too early (the case is not yet ripe) or too late (the case is moot) for courts to decide the case.  If a case is ripe the court is saying it is the right time to decide the case.  If you look at the U.S. Constitution you will see that federal courts can only decide actual "cases and controversies" - - when a case is ripe and we have the right parties then the case is an actual case or controversy.  The basic principle is that courts should issue decisions that will affect the parties.  

Courts should not issue hypothetical decisions as to what should happen if certain events were to occur in the future or hypothetical decisions as to what should have happened in the past.

Here is an example of where a case is not yet ripe.  Let's say a plaintiff wants to build a store on a certain piece of property.  But the city in which the plaintiff wants to build the store must first decide whether to allow the plaintiff to build the store or not.  In October the plaintiff learns that the city will probably reject his application.  The city will issue its final decision in November.  Can the plaintiff sue the city in October?  Probably not.  The case is not ripe because the city has not issued its final decision.  The plaintiff did not suffer any harm yet and is only predicting that he will suffer some harm in the future.

Mootness is where the court is not in a position to provide any relief - - it's too late.  This can happen if a law changes or if there is a change in the parties' status.  A famous example of a case that the Supreme Court declared moot was where a plaintiff sued after he was denied admission to a law school.  Later he was admitted to the law school.  When the case came to the Supreme Court the plaintiff was already finishing his final year of law school.  The Supreme Court said it could not decide the case because the case was moot.  The plaintiff would never apply to the law school again -  - the plaintiff no longer had a personal interest in the outcome of the case.

If you are trying to decide whether a case is moot or not, ask yourself, "Is the plaintiff still injured?  Is it possible that the plaintiff could be harmed by the defendant in the same way again?"  If the answer to both questions is "No" then the case is probably moot.