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Dean's Records
Taking a break from studying contracts (where's the consideration!?), I scanned this transcript of Howard Dean's appearance on Hardball (last Monday night, I believe). Here's how Dean explained the sealed records I mentioned yesterday:
Every governor in Vermont and most governors around the country, maybe every governor for all I know, has a process by which certain records are sealed and certain records are left open. The vast majority of my records are open. You are welcome to go, as ever opposing campaign has done, and rummage through them for the next six months. There are some that are left private, and I don’t exactly know all the things that are in those because those are attorney to secretary of state negotiated. But some of the kinds of things might be a letter from a constituent saying, dear governor, I am an HIV, AIDS victim, can you please help me? Now, those kinds of letters do not belong in the public, and they’re not. That’s why some records are sealed, and governor’s offices throughout the country.
Of course some records will be sealed, and there's no way for the average media consumer to know whether Dean really sealed more records than "normal" or whether opposition campaigns are simply trying to blow this up into an issue. After reading the rest of the Hardball interview, I'm still ready to give Dean the benefit of the doubt. Most of the time, he doesn't talk like a "normal" politician, and that's a good thing. Check this out:
It's true, isn't it? But would you ever hear this from Bush or Lieberman of Kerry or Gephardt?
William Greider also has a nice piece in the most recent issue of The Nation: Why I'm for Dean.
Ok. Back to contracts: A contract is a promise or set of promises that the law will enforce. No promise is enforceable unless there is a basis for enforcement. The three modern bases for enforcement are consideration, reliance, and, in a few special cases, "moral obligation." Consideration is a promise or performance bargained for (sought and given) in exchange. To enforce a promise based on reliance, the plaintiff must show not only reliance, but also that (1) the defendant made a promise; (2) the defendant could reasonably expect the plaintiff to take an action; (3) the plaintiff took an action; (4) the action was induced by (i.e., taken in reliance on) the promise; and (5) enforcement of the promise is necessary to prevent injustice. Enforcement on the basis of moral obligation is rare, but a court will enforce a new promise by the defendant to reaffirm an old obligation that was (1) discharged by a statute of limitations; or (2) discharged by bankruptcy proceedings; or (3) voidable because of infancy. Restitution can sometimes be a substitute for enforcement: When the plaintiff cannot prove that the defendant made an enforceable promise, the plaintiff may seek "restitution" from the defendant if the defendant has been unjustly enriched at the plaintiff's expense.
Doesn't that sound like great fun!?
Posted December 3, 2003 11:22 AM | election 2004
No mention of duress voiding a contract?
Posted by: ttam117 at December 3, 2003 07:52 PM
Oh yeah, contracts can be voided for duress, unconscionability, mutual mistake, unilarateral mistake, fraudelent or material representation, active concealment, non-disclosure of facts (if the promise was induced by a half-truth where the promisor and promisee can expect full disclosure based on their "confidential" relation). You can also get out of a contract because of infancy of mental defect, and other contracts will be void for public policy or because of the "pre-existing duty rule" (duties under existing promises cannot serve as consideration for new promises).
Now let's talk remedies...
Or not. This is all fun and games 'til someone throws a fact pattern at me.
Do you have a blog somewhere, ttam117? Oh, and to answer your previous question, yes, I've joined our chapter of ACS, and there's good people there doing good things, but mostly good liberals. Know where I can find some revolutionaries? Who's pushing the edge of the legal envelope these days?
Posted by: ambimb at December 3, 2003 08:46 PM
