Wednesday, February 16, 2011

Sample Medical Malpractice Case

Cobbs v. Grant:
8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)
Issue: Was the jury properly instructed?                                                                                                                                                             
Rule: Informed consent
Application: Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of surgery performed on plaintiff and occur in approximately 5% of such operations.
-Defendant attacks both possible grounds for the jury verdict (negligence and lack of consent)
-There is not substantial evidence to support a jury verdict on the issue of defendants liability on the theory that he was negligent either when he decided to operate or in performing the surgery.
-Because there was a general verdict, it is impossible to know what theory the jury found the defendant guilty on.
Informed Consent: Battery vs. Negligence
-Battery: Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.
-Negligence: When the patient consents to certain treatments and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information.
Court Instruction to Jury: A physicians duty to disclose is not governed by the standard practice in the community; rather it is a duty imposed by law. A physician violates his duty to his patient and subjects himself to liability of he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment"
Defendants objections to instructions:
  1. Points out that the majority of the California cases have measured the duty to disclose not in terms of an absolute, but as a duty to reveal such information as would be disclosed by a doctor in good standing within the medical community
    1. With one state and one federal exception, all have adopted this standard
  1. This near unanimity reflects strong policy reasons for vesting in the medical community the unquestioned discretion to determine if the withholding of information by a doctor from his patient is justified at the time the patient weighs the risks of the treatment against the risks of refusing treatment.
    1. This has never been unequivocally adopted by an authoritative source.
Examine the Standard:
  1. Patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity
  2. A person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment
  3. The patient's consent to treatment, to be effective, must be an informed consent
  4. The patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.
-Physician must divulge to the patient all information relevant to a meaningful decisional process.
-Defendant and the majority of courts have stated the measure of the duty is to the custom of physicians practicing in the community.
-This is needlessly overbroad, doctors become vested with virtual absolute discretion.
-The patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data (e.g. when there is an emergency, or if the patient is a child or incompetent)
Scope of Disclosure required:
-Full Disclosure:
  1. The patients interest in information does not extend to a lengthy polysyllabic discourse on all possible complications. The patient is concerned with the risk of death or bodily harm, and the problems of recuperation
  2. There is no physician's duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incident
-When the given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur.
-There must be a causal relationship between the physician's failure to inform and the injury to the plaintiff.
-Only if it is established that had revelation been made consent to treatment would not have been given.
Conclusion: No, negligence was erroneous
-August 1964: Plaintiff admitted to the hospital for treatment of a duodenal ulcer.
-Was given a series of tests to ascertain the severity of his condition and, though administered medication to ease his discomfort, he continued to complaint of lower abdominal pain and nausea
-Dr. Jerome Sands, the Family Physician, concluded that surgery was indicated, discussed prospective surgery with plaintiff and advised him in general terms of the risks of undergoing a general anesthetic
-Dr. Sands called in Dr. Grant, defendant surgeon, who after examining plaintiff, agreed with Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated.
-Dr. Grant explained the nature of the operation to the plaintiff, he did not discuss any of the inherent risks of the surgery.
-Next day: A 2 hour operation was performed, during which the presence of a small ulcer was confirmed.
-Following the surgery, the ulcer disappeared.
-For the next 8 days, plaintiff recovered in the hospital and was released to his home.
-Day after getting home: Plaintiff began to experience intense pain in his abdomen
-Immediately called Dr. Sands, who advised him to return to the hospital.
-2 hours after returning the hospital, plaintiff went into shock and emergency surgery was performed.
-Emergency surgery: It was discovered plaintiff was bleeding internally as a result of a severed artery at the hilum of his spleen
-Due to the seriousness of the hemorrhaging and since the spleen of an adult may be removed without adverse effects, defendant decided to remove the spleen
 -After removal of his spleen, plaintiff recovered for 2 weeks in the hospital.
-One month later, he was readmitted because of sharp pains in his stomach.
-X-Rays disclosed plaintiff was developing a gastric ulcer
-The evolution of a new ulcer is another risk inherent in surgery performed to relieve a duodenal ulcer
-Dr. Sands initially attempted to treat this nascent gastric ulcer with antacids and a strict accident.
-4 months later, plaintiff was again hospitalized when the gastric ulcer continued to deteriorate and he experienced severe pain.
-Plaintiff began to vomit blood, defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50% of plaintiffs stomach to reduce its acid-producing capacity.
-Plaintiff was discharged, but subsequently had to be hospitalized yet again when he began to bleed internally due to the premature absorption of a suture, another inherent risk of surgery
-Plaintiff was hospitalized, and the bleeding began to abate and 1 week later was released
-Brought this malpractice suit against his surgeon, Dr. Grant, and a similar action against the hospital

Procedural History:
-Trial: Jury returned a general verdict against the hospital in the amount of $45,000 and $23,800 against defendant Grant.

-Could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant's failure to disclose the inherent risks of the initial surgery violated the plaintiff's consent to operate

Tuesday, February 15, 2011

Support a Friend

Hey all, sorry I haven't been real active lately, I've been really busy with schoolwork and my internship. For now, send me some comments about what types of law-related articles you'd like to see.

Also: Visit my friends blog, he's just starting.

Random Contracts Notes

Sorry I haven't provided an update in a while, I've been pretty busy with school.

For all you law fans out there, here's some of my notes for yesterday's class (Contracts)

CBS, Inc. v. Ziff-Davis Publishing, Co.:
Court of Appeals of New York
75 N.Y.2d 496 (1990)
Issue: Was the express warranty violated?
Rule: Express Warranty
Application: CBS claimed that Ziff had breached the warranties made as to the magazines' profitability.
-Ziff argued that because CBS did not believe the claims to be true, no warranty existed.
-Under Ziff's theory, the reliance which is a necessary element for a claim of breach of express warranty is essentially that required for a tort action based on fraud or misrepresentation
-Belief in the truth of the representations made and a change of position in reliance of that belief
-Cites Croker-Wheeler Elec. v. Johns-Pratt
-CBS maintains that the decisive question is whether it purchased the express warranties as bargained-for contractual terms that were part of the purchase agreement.
-Cites Ainger v. Michigan Gen. Corp., and Judge Learned Hand's definition
-The analysis of the reliance requirement in actions for breach of express warranties urged by CBS are correct.
-Crucial question is not whether the buyer believed in the truth of the warranted information, but rather if it believed it was purchasing the seller's promise as to its truth
-The express warranty is as much a part of the contract as any other term, and that an action for breach of express warranty is not grounded in tort, but in contract
-Ziff and the dissent rely upon Croker, which says that for an action for breach of express warranty to survive, it must be established that the warranty was relied upon
-The financial information pertaining to the income and expenses of the consumer magazines was relied on by CBS in forming its opinion as to whether the value of the businesses and in arriving at the amount of its bid.
-CBS was not merely buying the business, it was buying the business, to which it believed to be profitable to a certain extent.
-Determinative Question: Should Ziff be relieved from any contractual obligation under these warranties, because, prior to closing, CBS questioned the accuracy of the financial information and because CBS, when it closed, did so without believing in or relying on the truth of the information?
-A holding that it should because CBS questioned the truth of the facts warranted would have the effect of depriving the express warranties of their only value to CBS
Conclusion: Yes, even though CBS doubted the validity of the claim.

History: Sale of Ziff magazines to CBS.
-Ziff's accountant, Touche Ross & Co., prepared a financial statement, for the fiscal year ending July 31, 1984.
-CBS made a bid to purchase Ziff $362,500,000
-This bid was the highest bid.
-Nov 19, 1984: CBS and Ziff enter into a binding bilateral purchase agreement for the sale of the consumer magazine business.
-Section 3.5: Ziff warranted that the audited income and expense report of the business for the 1984 fiscal year, had "been prepared in accordance with generally accepted accounting principles (GAAP)," and that the report presented fairly the items set forth
-Ziff agreed to furnish an interim income and expense report of the business under section 3.5 from July 31, 1984 until the closing, there had not been any material adverse change in Seller's business and publishing and distributing of publications, taken as a whole (STUB REPORT)
-Section 6.1: Provided that "all representations and warranties of seller to buyer shall be true and correct as of the time of the closing."
-Section 8.1: Parties agreed that all "representations and warranties… shall survive the closing notwithstanding any investigation made by or on behalf of the other party.
-Section 5.1: Ziff gave CBS permission to "make such investigation" of the magazine business being sold "as it might desire"
-Jan 30, 1985: Ziff delivered the required Stub Report to CBS
-CBS, acting under section 5.1, had performed its own "due diligence" examination of Ziff's financial condition, and found that their report may not be entirely accurate.
-Jan 31, 1985: CBS writes letter stating their beliefs of misrepresentation
-Feb 4, 1985: Ziff responds, argues that there is no merit in the position, and if CBS doesn't go through, it will take legal action.
-Feb 4: CBS acknowledges that there is a clear dispute, but decides to go forward with the deal, because of the time, effort, and money put into it thus far.

-CBS brings current action, alleging that Ziff breached the warranties made as to the magazines profitability
-Based on that breach, CBS alleges that "the price bid and the price paid by CBS were in excess of that which would have been bid and paid had Ziff not breached its representation and warranties

Sunday, February 13, 2011

Fedor Dominated

So my picks were clearly pretty wrong, haha. Fedor ended up getting absolutely dominated by "bigfoot," who is now set to face the winner of Overee vs. Werdum on April 9th.

Complete Results:
Silva def Fedor via TKO (doctor stoppage): End of round 2
Kharitonov def Arlovski via KO (punches): 2:49 Round 1
Del Rosario def Johnson via Submission (armbar): 4:31 Round 1
Griggs def Villante via TKO (punches): 2:49 Round 1
Overeem def Sefo via Submission (neck crank): 1:37 Round 1

Saturday, February 12, 2011

Strikeforce: Fedor vs. Silva Predictions

Overeem def Sefo: 2nd round KO
Villante def Griggs: 1st round TKO
Del Rosario def Johnson: Unanimous decision
Arlovski def Kharitonov: 3rd round KO
Fedor def Silva: 1st round KO

Let's see how well I do!

Event airs live at 7 p.m. PST

Friday, February 11, 2011

The Best Fighters in the World

Don't have a whole lot of time before class today, so I've decided to post a highlight video of arguably the best fighter in the world. Anderson "the Spider" Silva
 Here is his only competition. Manny Pacquiao
I'll leave it to you to decide who is better. Here's some facts: Silva fights in the UFC (mma), while Pacquiao is a boxer; they both have 13 fight win streaks; Silva has never been KO'ed or TKO'ed, while Pacquiao has been; Pacquiao holds 8 titles, in 6 different weight classes, while Silva only has the middleweight championship; they are both trained by Freddie Roach.

Thursday, February 10, 2011

Criminal Law and Mens Rea: Explained!

In criminal offenses, generally, the state needs to prove the requisite mens rea (state of mind) to establish guilt. While the common law has a confusing amount of different requirements of mens rea for a crime (e.g., "malice aforethough" or "reckless disregard"), we will not cover those, because we have lives, and don't want to needlessly waste time on useless things like that. In contrast to the common law concepts of mens rea are the Model Penal Code's 5 levels of mens rea. Today, we will be talking about the Model Penal Code (which nearly every state has adopted some form of), and the different levels of mens rea requisite for every crime.

Five levels of mens rea:
1. Purposely:
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

2. Knowingly:
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

3. Recklessly:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

4. Negligently:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

5. Strict Liability:
No mens rea needed. If you commit the crime, you do the time. This means if you go to a 21+ club where they check identification at the door, see a girl buy a drink, and even check the girls identification prior to your night of shenanigans with her, you can still be charged with statutory rape if it turns out she was 15, and used a fake id. Drunk driving is another example of a strict liability offense: if you drive drunk, and get caught, it doesn't matter what you were thinking.
The justification for this is hard to exactly pinpoint, but it seems that there are certain crimes that legislators have deemed highly dangerous, and want to prohibit at whatever cost.
Actually, it matters how young she is.
Prove your lawyering ability, describe the difference between negligently and recklessly!

Wednesday, February 9, 2011

Top 3 Fighters in Each Weight Class

1. Cain Velasquez (9-0): Current UFC Heavyweight Champion
Cain is undefeated, and is coming off of the destruction of Brock Lesnar. Furthermore, his last two fights have ended via devastating punch.
2. Fedor Emelianenko (32-2-1): Former Pride Heavyweight Champion
Before he recently lost to Fabricio Werdum, Fedor was considered to have been undefeated, and had demolished the worlds best fighters in his time at Pride FC. Still a relevant contender on many Pound-For-Pound rankings, Fedor could do much to improve his stock with a win on Feb. 12th.
3. Junior Dos Santos (12-1): #1 Contender for the UFC Heavyweight Championship
Junior has recently knocked out Fabricio Werdum, punished Mirko Cro Cop so badly that he was forced to quit, and gave Roy Nelson the beating of his lifetime. Currently Scheduled to face Brock Lesnar next, Dos Santos is a credible threat to Velasquez's title.
Light Heavyweight:
1. Mauricio "Shogun" Rua (19-4): Current UFC Light Heavyweight Champion
When Shogun beat Lyoto Machida, he became the first man to do so, and he did so in impressive fashion. The knockout of Lyoto Machida was true redemption for Shogun, in a rematch of a fight that many thought he had won.
2. Lyoto Machida (16-2): Former UFC Light Heavyweight Champion
Prior to getting knocked out by Shogun, Lyoto was seen as invincible, and one of the greatest fighters on the planet. After suffering a setback after losing to 'Rampage," Lyoto will need to string some wins together in order to climb back up the rankings.
3. Jon Jones (12-1): Current #1 Contender for UFC Light Heavyweight Championship
Fresh off of the destruction of Ryan Bader, 'Bones' Jones is next set to fight Shogun for the UFC Light Heavyweight title. Jones is largely considered to be undefeated, as his lone defeat was a result of a DQ, after dominating the fight up until that point.
1. Anderson Silva (28-4): Current UFC Middleweight Champion
A man whose record speaks for itself: 13 straight wins, 8 title defenses (both the longest in UFC history), wins in multiple weight classes, and the borderline rape of anyone he has faced. What more can be said about a man who has truly cleared out the division in every sense of the phrase.
2. Dan Henderson (26-8): Former Pride Middleweight Champion
This should speak as to how far behind everyone is from Anderson Silva. While Henderson is a quality fighter, the gap between #1 and #2 is beyond explanation.
3. Vitor Belfort (19-9): Former UFC Light Heavyweight Champion
The most recent victim to Silva's reign of terror, Belfort should still be considered a valid Middleweight contender. Vitor will need to get back into the winning column in order to improve his ranking.
1. Georges St. Pierre (21-2): Current UFC Welterweight Champion
Close to being as dominate as Anderson Silva, Georges St. Pierre has also cleaned out his division, beating multiple fighters twice, and avenging his only UFC loss. If St. Pierre defends his title at UFC 129, a super-fight between GSP and Anderson Silva is on the horizon, which should determine who is the best fighter in the world.
2. Jake Shields (26-4): Former Strikeforce Middleweight Champion
Jake Shields has won his last 15 fights, over the past 6 years, and is the next person to challenge Georges St. Pierre for the Welterweight title. While he may be the underdog in this fight, he poses a credible challenge to GSP, and may spoil the super-fight between GSP and Anderson Silva.
3. Jon Fitch (23-3): Current #1 Contender for UFC Welterweight Championship
Jon Fitch has only lost once in the UFC, and that was to Georges St. Pierre. Other than his lone loss, Jon Fitch has defeated all of his opponents in convincing fashion. Fitch is next slated to face B.J Penn, to determine the #1 contender for the title.
1. Frankie Edgar (13-1-1): Current UFC Lightweight Champion
Frankie Edgar shocked the world when he beat B.J Penn at UFC 112, then shocked the world again when he beat him again at UFC 118. After a controversial draw to Gray Maynard, Frankie Edgar remains the top Lightweight fighter in the world.
2. Gray Maynard (10-0-1): Current #1 Contender for UFC Lightweight Championship
Gray Maynard is undefeated, and after his draw to Frankie Edgar, there is no question that Gray Maynard is the second-best Lightweight in the world. The rematch is set for the near future, which hopefully won't end in another draw.
3. B.J. Penn (16-7): Former UFC Lightweight Champion
Before Frankie Edgar beat B.J Penn, Penn was considered to be the best Lightweight fighter in the world. After being defeated by Edgar again at UFC 118, Penn decided to move up to Welterweight, and after knocking out Matt Hughes, is set to face Jon Fitch at UFC 127.

Monday, February 7, 2011

Criminal Law and Federalism: Explained!

As many of you may or may not know, the United States system of governance is based on a system called "federalism." While I could go on at length about the details of this system ad nauseam, the cliff notes version is that power is split between the state and federal government. This means that there are 51 relevant sources of law (plus city laws!), one from the federal government, and one from each state.

One of the fundamentals of any criminal law discussion is to know what area of law governs the topic, for the results could be much different depending on what state your are in, or if you're being charged with violating a federal statute. For this, and following discussions, for the sake of clarity, assume that we are in "Shepard Jurisdiction," which is independent of any state. Basically, I'll be talking about topics that are applicable to most, if not all of the states.

The first topic in this criminal law adventure is the "felony murder rule." This is a relatively simple concept, so I won't explain it in too much detail. The felony murder rule applies to situations where one or more persons are involved in the commission of a felony (must be co-conspirators, hostages at a bank don't apply). The rule tells us that when one or more persons (A, B, C, and D, for example) are involved in the commission of a felony (Bank Robbery, for example), and a murder is committed by one (A), the rest are equally culpable, without a required showing of mes rea (the bad mind, basically intent to commit the crime). That means that although B, C, and D had no intention of committing the murder, nor did they even know A would fly off the handle and shoot the bank teller in the head when he refused to give him the money, or even if A had brought a gun to the bank, they will all be guilty of first-degree murder.

The felony murder rule can seem harsh, which it is, but it is primarily used to curb the passive assent some have when crimes are being committed. That is to say, deter people from becoming involved in felonies in the first place. While the rule is typically only used for violent felonies, when the murder is committed during the felony or in furtherance of the felony, there have been some unfortunate examples of exactly how harsh it can be.

In Hines v. State: 578 S.E.2d 868 (Ga. 2003), Hines was convicted of first degree murder after he accidentally shot his friend in the back while hunting. If you've been carefully looking at the requirements of felony murder thus far, you'll know something is missing: the underlying violent felony. It turns out Mr. Hines was a convicted felon, and his possession of a hunting rifle was an inherently dangerous activity, and actually a felony.

So, as you can see, the felony murder rule is quite controversial, with some saying it takes away the requirement of mens rea, and others saying that it helps prevent murders from happening. Let me know what you think in the comments below!

As any prudent law student should say, I would be remiss if I didn't inform you that this blog is for information purposes ONLY. Any construction of it to create some sort of legal advice is on the readers own poor judgment, as a 1l is probably the second worst person you could get legal advice from (the first being a non-law student).

Also, due to the overwhelmingly split result, I'll focus primarily on criminal law for my discussions on law, and continue splitting my posts between MMA and law. Thanks for all that gave me advice!

Sunday, February 6, 2011

Poll: MMA or Law

So I'd like to know what you would like to see more of: MMA articles, or law articles. I'm only a 1l, so my legal knowledge isn't that vast, but I can write on the following topics (barely, lol): Criminal Law, Medical Malpractice, Personal Injury, Property, Contracts, and Civil Procedure. On the other hand, I'm a pretty big MMA fan, so I can opinion articles on a wide array of subjects, or just talk about upcoming fights, or maybe show some of my favorite fights from the past.

Let me know what you think in the comments below :)

MMA or law

Anderson Silva Defends Title in Convincing Fashion

So if you haven't already heard, or didn't see, Anderson Silva scored a quick knockout of top-contender Vitor Belfort last night. The knockout came just 3:25 into the very first round of the nights main event, and marked Silva's 13th straight UFC victory, and 8th straight UFC title defense (Lutter, Leben, Griffin, and Irvin were non-title fights).

After a tentative start, as is often the case with Silva, Belfort got caught with a front kick, which landed straight on his jaw. In the blink of an eye, Belfort was knocked out, 2 more punches before the ref stopped the fight, and it was official.

This raises the question: what is next for Silva? UFC President Dana White has stated that if Georges St. Pierre defends his title again, the two will meet, in what surely promises to be one of the greatest MMA fights in recent history. While GSP will certainly be Silva's most skilled and decorated challenger, I believe the size difference, and the striking ability of Silva will be too much for GSP to handle, and Silva will move one step further towards solidifying his legacy as the worlds best fighter.

Saturday, February 5, 2011

Fed. R. Civ. Pro. 11

Rule 11 of the Federal Rules of Civil Procedure is a common method of the courts to curb frivolous litigation. Basically, any 'paper' (motion, pleading, complaint, etc.) filed before the court has to be certified by the attorney of record. This certification is a method to assure that the litigation is not being brought for an improper purpose. If the litigation is found to be brought for an improper purpose, the attorney of record can face disbarment, large punitive damages, or other penalties.
As I am sure most of you have seen, "diddy" has recently been sued by a woman, who claimed that he was responsible for 9/11, seeking $1,000,000,000 in damages. While it is purely speculation at this point, I would argue that this is a likely response by "diddy." After the woman filed the complaint, the first thing "diddy's" lawyer should do is file a Rule 11 motion, which, if granted, would immediately end the litigation, and possibly allow the court to take action against both the woman, and her attorney.

Edit: here is the link

Thursday, February 3, 2011

Why Strikeforce's Heavyweight Division May be the Deepest

With Strikeforce's heavyweight tournament set to kick off in just 9 days, and the fact that current UFC heavyweight Champ, Cain Velasquez, is sidelined until the end of this year, Strikeforce's heavyweight division is a credible challenge to the UFC's. The Strikeforce Heavyweight roster, unlike much of the rest of Strikeforce's divisions, actually contains some big (no pun intended) names, including: Fedor Emelianenko, Alistar Overeem, Fabricio Werdum, Josh Barnett, Antonio Silva, Brett Rogers, and Andrei Arlovski.

The match schedule includes:
Feb 12: Fedor vs. Silva
Arlovski vs. Kharitonov

April, 2011: Overeem vs. Werdum
Barnett vs. Rogers

Whoever emerges champ after the dust settles will have a good case for being considered the best p4p heavyweight in the world. Of course Cain Velasquez can restake his claim to that title after a successful title defense when he recovers. For now, we'll have to wait and see.

The Demise of Promissory Estoppel

There has been a disturbing decline in many contemporary interpretations of the applicability of the Doctrine of Promissory Estoppel to certain cases. The following three situations are most striking: employment law, disclaimers, and knowledge of the doctrine.

First, we must know what the Doctrine of Promissory Estoppel is. Basically, the Doctrine seeks to enforce promises, which would otherwise not be enforceable. Section 90 of the restatement of Contracts is usually the benchmark test for it's application, stating the following requirements: 

1.) A promise which the promisor should reasonably expect to induce action or forebearance on the part of the promise or a third person
2.) which does induce such action or forebearance
3.) Justice can be avoided only by the enforcement of the promise.

Although it would not fit within a single blog post, there is a litany of cases that have found the doctrine to be applicable to nearly any situation where a promise has been relied upon (most notably, gifts, and construction contracts).

Returning to the three areas where the Doctrine has usually not applied, we can see a concern for many lay people, as these situations may be ones in which they will most frequently interact with the Doctrine. 

First, in employment law, which is usually considered "at will" (freely terminable at any time), parol promises, such as ("The job is yours until you retire," or "You will not be fired") have been held not to have satisfied the requirements of promissory estoppel. These reliance-inducing promises have been held unenforceable, and although the plaintiff took actions to their detriment, in reliance of the above promise, they were essentially out of luck.

Second, the court has held that if a promisor expressly disclaims any attempt to be bound by a promise, even after the promise has been made and relied upon, that no valid contract has existed between the two parties. This is espeically concerning, because it gives some promisors an unequal amount of bargaining power when a contract reaches a certain point (when the promisee actually relies upon the promise).

Finally, if the party either knew, or should have known that reliance upon the promise would likely form no contract, the courts have held that no contract existed. This concept directly affects professionals, or "repeat players" in any form of litigation, regardless of their level of knowledge.

Why Nick Diaz is overrated

I'm concerned with the growing hype behind Nick Diaz. Some people are even going as far as to say that he is in the top 10 p4p in the welterweight division. This simply isn't true. Nick Diaz is overrated, because he hasn't fought anyone respectable. Look at his last opponent, Cyborg Stantos, his record was 18-13 going into the Nick Diaz fight. Sure Nick Diaz is on a 9 fight win streak, but look at who he's beaten. K.J. Noons is probably the most formidable of his opponents, and even he hasn't beaten anyone. Until Nick Diaz either moves to the UFC or someone in the top 10 p4p in the ww division moves to strikeforce, Nick will be destined to only be in the top 20.