A good time was had by all

The title of this post is an example of the passive voice. Before you proceed, please read the University Writing Center’s post on active and passive voice.

You might want to read it again. Make sure you understand the difference between active and passive voice. Talk to Rebecca or me if you do not.

I will reiterate here the key advice of the Writing Center’s post: Do not use the passive voice unless you have a good reason.

Now for the good news: I kept track of the use of passive voice in the Doe assignments we are returning to you this week. The magenta highlighting in your paper tracks each instance of passive voice that I saw. (Your use of passive voice in no way affected your grade.) Every student but one used the passive voice between eight and twelve times in that assignment, which is not an excessive amount. (One particularly ‘active’ writer used it only five times.) You should not use it as much as you did, but many years we have students who use the passive voice in every other sentence.

As you proofread the closed office memos you will turn in tomorrow night or early Wednesday, try to identify instances of the passive voice, and remove them unless you have a good reason for keeping them. Note that Microsoft Word provides a grammar-checking tool that will identify most instances of the passive voice for you. Microsoft has published instructions and frequently asked questions for use of the function.

-Brian

Privacy Torts and young Master Doe

This week’s assignment poses two challenges for new law students: figuring out which privacy tort is which and figuring out how to compare and contrast facts from cases with different resolution statuses. First, note that an invasion of privacy under the common law can take the form of any of four different causes of action: (1) intrusion (or invasion) upon seclusion; (2) appropriation; (3) tortious publication of private facts; and (4) false light. The Minnesota Supreme Court provides the elements of all four torts in Lake, but note that we are interested only in the elements (and application) of “publication of private facts.” Discussing the elements of the other privacy torts will not help you here.

The bigger challenge is figuring out how to compare and contrast facts from these cases with those in your client’s situation. Let’s look briefly at each:

Hendry: Interestingly, the court affirms the lower court’s dismissal of plaintiff’s claim by determining that the plaintiff did not plead facts sufficient to satisfy the elements of the tort… after the court said the tort does not exist in Minnesota! (How you determine that a plaintiff has not satisfied the elements of a non-existent tort, I don’t know.) Should you read the analysis of the facts as dictum? (One court in our case materials says just the opposite – why?) Is the analysis of the facts in Hendry useful in the Doe situation?

Stubbs: Here, the Court of Appeals affirms the trial court’s grant of summary judgment to the defendant. As it finds there is no Minnesota cause of action for tortious publication of private facts, it does not articulate the elements of toritous publication, nor does it attempt to analyze the facts in its case against any rule for tortious publication. Will it be useful to compare/contrast the Doe facts with the Stubbs facts?

Lake v. Wal-Mart Stores: Here the Supreme Court reverses a grant of summary judgment, holding that Minnesota now has a cause of action for tortious publication. But does it actually determine whether any of the facts in the case satisfy the rule for tortious publication. (The answer is on page 9 of the case materials.)

CLD v. Wall-Mart Stores: (Did you wonder what is the correct spelling for “Wal Mart”?) This is a trial court’s grant of summary judgment for the defendant. This opinion actually disposes of a case by applying our rule to some facts. You will probably want to compare/contrast facts from this case to the Doe facts. But is this opinion binding on your client?

Bodah: Finally, the state Supreme Court is at it again; the opinion’s first paragraph gives two important clues to the utility of the case: (a) the adoption of the Restatement standard; and (b) an examination of the “publicity” element. It finds that the plaintiffs’ allegations are insufficient to state a claim for tortious interference. It seems that comparing/contrasting facts from this case with the Doe case might be a good idea.

Rules, rules, and more rules

As you prepare to turn in the assignment due tomorrow morning, you may have parsed the promissory estoppel rules from Filippi into a 'deductive' form. I often break rules down this way:

1. Is there any prerequisite for the rule's application? Some rules apply only in certain contexts. For example, promissory estoppel does not apply when there is actually a contract between the parties - right?
2. If/Then statement: E.g., If A and B, then C. Note that each part of the If statement may have sub-parts. If the promise is "clear and unambiguous" - is that one condition, or two?
3. Exceptions: E.g., If A and B, then C, except where D. Exceptions can sometimes, but not always, be stated as part of the if/then statement. E.g., If A and B and not D, then C. If you decide to paraphrase the rule that way, think through what Clary/Lysaght says about care in placing 'not's.
4. Special conditions: E.g., the Filippi court's statement that where an agreement to make a will rests on parol evidence, "it must be established by clear, satisfactory and convincing evidence." Barbara Johnson's case does not involve a promise to make a will.

Part of the IF statement for PE in Filippi includes a requirement that the promisee rely reasonably on the promise (you may have characterized it in different terms - that's fine). But to apply the Filippi rule to Barbara Johnson's case, you will need to decide what reasonable reliance looks like. In other words, you need to know what the "rule" is for reasonable reliance. The only help you have is the court's application of its rule to Paula Consagra - the court found that was NOT reasonable reliance. When advising Ms. Johnson, you will need to compare and contrast the facts in her case with those in the Filippi opinion to determine whether her reliance is reasonable.

By the way, Ballard's appears to be prospering on the Rhode Island coast. Looks like a nice place!
-Brian

Introduction - Reading Assignment for Week 2

In past years, my student teaching partners and I have prepared written materials to help students in our sections through the year. They tended to make up a lot of reading, and we gave them to students all at once. The result: students did not read them. I understand, you already have much reading to do.

This little blog is an experiment to deliver stuff in more digestible chunks. Here's how it will work: I will post on this blog between two and four times per week. Each post will be three paragraphs or so and relate to a topic or project on which you are currently working. I'll alert you to the posts (you can also set up an RSS feed). You will read them as they come out... six to twelve paragraphs per week in small batches does not sound too bad. The previous posts will remain here on the blog, too, so you can search for material I've previously published. (Another problem in previous years was that students misplaced the materials we provided them.) Not sure whether this will work better than our old approach, but the only way to tell is to try it.

Readings for Class Two: Clary/Lysaght, Ch. 2 (pp. 11-18); Ch. 3 (pp. 19-30); Ch. 4 (pp. 31-48); and Berring, Ch. 10 (pp. 307-326). My advice: I think the following passages in Clary/Lysaght are most important for this week's exercise. Focus some attention on them.

1. Page 12, first two paragraphs on the page, emphasizing the importance of facts.
2. Page 16, providing some tips for gathering facts.
3. Page 29, bottom box "Working with Cases," giving some thoughts about how to use cases in general.
4. Bottom of 38 through 47: Please work through the Professional Real Estate Investors example, as it models much of what you need to do with this week's assignment.

-Brian