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This week we review jargon from the sometimes-impenetrable world of law. These terms come from a US friend, and perhaps our UK friends can tell us if usage there differs.

specific performance – the remedy of having a contract enforced in accordance with its terms

A court typically will not order specific performance for a breach of contract; rather, a cash award usually suffices. For example, if I sue for goods which you have sold to me but failed to deliver, my remedy will be cash sufficient to buy those goods elsewhere.

Specific performance is used in exceptional cases where a cash award would not suffice, typically because the goods are unique ones for which no equivalent can be acquired for cash. For example, a painting by Van Gogh is unique, and if you sell it but fail to deliver it, the court may order you to deliver it. Real estate is the principal type of goods considered "unique". Thus, a court may order a defaulting home-seller to convey the home, rather than limiting the buyer to a cash award with which to purchase some other house.
    [P]etitioners argue that they seek "to enjoin respondents' failure to reimburse the Plan." But an injunction to compel specific performance of a past due monetary obligation was not typically available in equity. Those rare cases in which a court of equity would decree specific performance of a contract to transfer funds were suits that sought to prevent future losses that were either incalculable or would be greater than the sum awarded. For example, specific performance might be available to enforce an agreement to lend money "when the unavailability of alternative financing would leave the plaintiff with injuries that are difficult to value." Typically, however, specific performance of a contract to pay money was not available in equity.
    – U.S. Supreme Court, in Great-West Life v. Knudson (2002; Justice Scalia; excerpted)
 
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The law often deals with broad general standards like "reasonableness", but sometimes it replaces or supplements them with simple direct rule telling what is permitted or forbidden. The rule may separate yeah from nay. Alternately, or it may carve out a clear permitted area (a "safe harbor"), leaving action outside that area to be judged by the broader but less clear standards.

bright-line rule – a legal rule of decision that tends to resolve issues, esp. ambiguities, simply and straight-forwardly, sometimes sacrificing equity for certainty

safe harbor – a provision (as in a statute or regulation) that affords protection from liability or penalty
(definitions from Black's Law Dictionary (8th ed.))
    [The proposed statute] gives farmers who burn their fields a legal "safe harbor," saying they can't be sued under nuisance, trespass or other laws if they burn in accordance with state smoke-management rules.
    – Betsy Z. Russell, The (Spokane) Spokesman Review, April, 2003

    Edwards v. Arizona created a bright-line rule that once a suspect invoked the right to counsel, all further interrogation must cease.
    – Douglas E. Wicklander, Practical Aspects of Interview and Interrogation

    Justice Stevens, dissenting, in Thornton v. United States, (U.S Supreme Court, 2004) (excepted):
    . . . .[T]here was a widespread conflict over the question "whether, in a search incident to arrest of the occupants of an automobile, police may search inside the automobile." In answering that question [in New York v. Belton], th[is] Court's basic rationale rested on an overriding desire to hew "to a straightforward rule, easily applied, and predictably enforced." I was persuaded that the important interest in clarity and certainty adequately justified permit[ting] an officer to examine the interior of a car pursuant to an arrest for a traffic violation. But with respect to the search of containers within the car, I thought "it palpably unreasonable to require the driver of a car to open his briefcase or his luggage for inspection by the officer."
    . . . .Whether one agrees or disagrees with that view, however, the interest in certainty that supports Belton’s bright-line rule surely does not justify an expansion of the rule that only blurs those clear lines.
 
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stare decisis [L. "let the decision stand"] – the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation (Black's)

Consistency is a virtue. Justices Brandeis explained,
    Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. (1932)
He noted, "This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [But] stare decisis is not universal inexorable command. Whether it shall be followed or departed from is a question entirely within the discretion of the court."

Moreover, a rule of "consistency" can be difficult to apply. Consider sports. By the 1950s (after the government's Depression-era programs) the court had a broad reading of "interstate commerce". But in 1922 it had construed an statute regulating "interstate commerce", and concluded that that term and statute do not encompass professional baseball. What would the Court to do when sports again come before it?

The justices continued baseball's 1922 status on the ground of stare decisis,¹ but disagreed as to other sports.(following two quotes) Others said (final quote) that consistency required only that baseball, having been adjudicated, retain its prior status.
    The difficult problem derives in relation to the appropriate compulsion of stare decisis. The most conscientious probing fails to disclose that Congress excluded baseball but included football. Conscious as I am of my limited competence in matters athletic, I have yet to hear of any consideration that "the business of providing public baseball was not within the federal antitrust laws," that is not equally applicable to football.

    It would baffle the subtlest ingenuity to find a [relevant] differentiating factor between other sporting exhibitions, whether boxing or football or tennis, and baseball If stare decisis be one aspect of law, to disregard it in identic situations is mere caprice.

    Respondents' contention is that stare decisis compels the same result [for football]. But [we] held the business of baseball outside the scope of the Act. No other business has such an adjudication.

¹"The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. [Any] application to it of the antitrust laws it should be by legislation."

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fiduciary - one who is required to act for the benefit of another (within the scope of their relationship), who owes to the other the duties of good faith, trust, confidence and candor
. . . .Examples: trustee, executor of an estate, corporate officer, lawyer acting for client

The classic statement of the role is by Judge Benjamin Cardozo, New York Court of Appeals (1928).
    Many forms of conduct permissible in a workaday world for those acting at arm's length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of the courts when petitioned to undermine the rule of undivided loyalty. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.

Note: You will find punctilio discussed in the Wordcraft Archives here and here.

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This word always makes me think of The Fidelity Fiduciary Bank in Mary Poppins.


*******
"Happiness is not something ready made. It comes from your own actions.
~Dalai Lama
 
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The concept of an amicus curiae may be seen as an exception to general notions of standing.

standing – a party's right to bring a legal claim or seek enforcement of a duty or right
[Typically, no matter how egregious the challenged conduct, one may not sue unless he himself has been injured by it.]
    Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends? This is the gist of the question of standing." (Justice Brennan, 1962)
amicus curiae (L. friend of the court)– a person who, though not a party to a lawsuit, is permitted to file a brief because of his strong interest in the legal issue
    Amicus curiae participation is a staple of interest group activity in the U.S. Supreme Court.
    – Paul M. Collins Jr., Law & Society Review, Dec., 2004

    From amicus brief filed by Mother Theresa, 1993:
    INTEREST OF AMICUS CURIAE: Mother Teresa is the founder of the Order of the Missionaries of Charity. Much of the work involves providing charitable services to children and to poor families. Mother Teresa and the Missionaries have a special interest in the welfare of all children, born and unborn, and the familial relationship between children and their mothers and fathers.
    SUMMARY OF ARGUMENT: The unborn child possesses an inalienable right to life which must be recognized and safeguarded by any just society.
 
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