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Below you will find six hypothetical cases. Please address the specific questions asked or utilize the IRAC method when appropriate for any FIVE. 20 points each for a total of 100 points.

20 pts

1. As public schools in the south began the process of integrating in the late 1960s under court-ordered integration, private academies began to appear. As they are private, under American law, they are free to discriminate on the basis of race if they wish. And they did. But because they depend on tuition to stay alive, they did not spread rapidly. President Reagan’s second official act after his inauguration in 1981 was to issue an executive order to the IRS ordering a change in IRS regulations so that private academies that discriminate on the basis of race could get tax exempt status from the IRS (making cash contributions to private academies tax-deductible, which increased the cash contributions to the academies which accelerated their growth). As the private academies grew with the white student population (trying to avoid integrated schools), the public schools became, once again, one-race schools for the black community, a process referred to as resegregation.

The Wrights are black parents of 2 school age children in Jackson, Miss. Their children attend a public school that is 98% black/Hispanic. The wrights did not attempt to enroll their children in any private academy because what would be the sense if the private academies are not accepting the applications of black children. They sued the IRS, seeking a court order rescinding the tax-exempt status rule from the IRS. They claim that Brown v. Board of Education created a constitutional right for their children to attend integrated public schools and their children are deprived of that right due to the IRS policy. The IRS moved to dismiss the complaint, arguing that the Wrights have not been injured so they lack standing to sue. The IRS argues that all the Brown decision did was forbid public schools from discriminating on the basis of race; Jackson, Miss. Schools no longer discriminate on the basis of race so the Wrights have not been injured until they apply for admission to a private school and are denied because of race—since the Wrights didn’t do that, they lack standing. Please apply the proper standing test to this set of facts and decide whether the Wrights have standing to sue.

20 pts.

2. On November 15th, the Washburn Speaker's Bureau contacted the agent of former Lt. Colonel and convicted felon, Oliver North about speaking at Washburn on April 1st. North's typical speaking fee is $40,000 but he will speak at universities for half price (he doesn't want to miss an opportunity to pollute the minds of impressionable young people). North's agent knew that North was scheduled for Tulsa on March 31st and was scheduled for Lincoln, Nebraska on April 2nd. Thinking that Washburn would fit nicely into the schedules, the agent sent Washburn a contract that was singed by the appropriate officer of the Speakers Bureau who returned it to North's agent who obtained appropriate signatures. This contract became valid on the day both signatures appeared, December 20th. The contract called for a half hour speech to begin at 8:00 p.m. on April 1st and for North to attend a reception following for Washburn Alumni. Washburn would pay $20,000 plus room and board and travel (from Tulsa).

On January 10th, the Lincoln date fell through and North had an opportunity to pick up $120,000 for speeches in Seattle, Tacoma, and Portland on April 2nd and 3rd. North's agent contacted Washburn on January 20th to notify them that the contract would have to be modified. Washburn would now have to pay for half the cost of a private jet to whisk North off to the West coast immediately following his speech in addition to the agreed upon speaking fee, room, board and travel. North's agent made a point to let Washburn know that if they did not meet the terms for the private jet, Mr. North would breach his contract and not show up. Mr. North's agent further told Washburn that due to the breach, Mr. North would gladly reimburse Washburn for ticket's already sold but not to exceed $5,000 and that Retired General Singlab (also a participant in the Iran/Contra scandal–and also a convicted felon [both North & Singlab were convicted of lying to Congress]) has already agreed to speak in Mr. North's place at Washburn for a fee of $8,000. The Speaker's Bureau did not have either the resources or the disposition to produce funds for the private jet nor did it want to pay to hear a second rate felon, So On Feb 15th Washburn’s attorney notified North that Washburn was rejecting North’s counter-offer and if North failed to abide by the contract, Washburn would sue him. On March 15, North’s agent notified Washburn of his intent to breach the contract. Upon notification from North of his intent to breach the contract the Speaker's Bureau sued Oly North. They ask the court for the following remedies:

1. Specific performance

2. Cost of returning already sold tickets

350 tickets @ $8.00 each = $2,800

3. White Concert hall seats 700 and there would have been a full house so the remaining 350 seats at $8.00 = another $2,800.

4. $60,000 the alumni would have contributed to Washburn had they had their private little reception with North.

5. $50,000 for institutional embarrassment and pain and suffering because its image has been tarnished by North's behavior.

You are the judge and both parties have moved for summary judgment. You must decide as a matter of law on each of the requested remedies. State whether you would grant the remedy and why or why not? Stick to remedies. Don't try to dismiss because you can't tell whether the contract has actually been broken yet. Indeed, you are to assume that the agreement has been broken–Oly's statement of intent to break the contract is legally tantamount to breaking the contract and he did fail to appear for the event.

3) 20 points.

In August the Volz family went on a camping trip with all of their new Colman camping equipment. Five year old Shannon was sitting across the campfire from her dad approximately 15 feet away from him. Her dad started to pump the Coleman stove to cook dinner when gas shot out of a vent hole in the gas cap of the stove. The gas shot out in a stream across the campfire and as the stream of gas crossed the fire, it turned into a miniature flame thrower and burned Shannon w/ 3rd degree burns over 65% of her body. The volz family sued Coleman and at trial, experts testified that the problem was a design flaw in the cap. That there are safer ways to vent a gas cap then to put a “breather hole” in it. The experts and former Coleman employees further testified that Coleman was aware that the design could, under unusual circumstances, turn the Coleman stove into a flame thrower but chose not to redesign the cap. The jury returned a verdict against Coleman and awarded $6.8 million in compensatory damages plus 1.6 million in punitive damages. Coleman’s attorneys appealed the punitive damages, arguing that the award of punitive damages was inappropriate (they are not challenging the amount but rather the fact of punitive damages). You are the appellate court judge who must author the court’s opinion. What will the essence of your opinion be? Don’t mess with the amount of money, it’s either $1.6 million or nothing.

4) Zwiely has auto insurance with Nationwide Insurance Co. As well as liability, zwiely carries collision which means the Ins. Co will pay for damage to zwiely's car after zwiely pays the first $250, (The deductible). Zwiely had an accident with Steigerwalt and Zwiely's car sustained heavy damage plus she was injured. Nation Wide paid Zwiely $10,000 for damage to her auto.

However, Zwiely failed to carry the kind of insurance that pays for personal injuries so she sued Steigerwalt for compensatory damages relating to her injuries as well as for the cost of the deductible. The jury returned a verdict for Steighrwalt, (i.e. Steigerwalt was not negligent). Subsequent to that trial, Nation Wide filed suit against Steigerwalt seeking reimbursement for the $10,000 it paid to zwiely. Given that Insurers and insured have Privity, what do you suppose will be the proper decision when Steigerwalt’s attorney moves to dismiss this suit based on claim preclusion? Use IRAC.

5)William Cunningham was the top college Basketball player in America when he graduated in 1967. He signed a three year contract to play Basketball for the Philadelphia 76ers. While he was under contract to the 76ers, the Carolina Cougars negotiated a contract with him to begin upon the expiration of his contractual obligations to the 76ers. Just before his contract expired with the 76ers, Philadelphia renegotiated another contract that was better for Cunningham than the one he had with the Cougars. Cunningham notified the Cougars of his intent to breach his contract with them and the Cougars went to court. By this time, Cunningham was the leading scorer and rebounder in the NBA. The Cougars seek specific performance or in the alternative a permanent injunction prohibiting Cunningham from playing for any other team but the Cougars. Given that there was nothing illegal or unethical involving the Cougar's negotiations with Cunningham or Philadelphia’s re-negotiations with him, should the Cougar's get either remedy? Why or why not? CAUTION; Neither the 76ers, the Cougars or Mr. Cunningham have “dirty hands”.

6) Mr. Wilshire owns a $2,000,000 thoroughbred racing horse which turned up missing from his pasture. A month later, Wilshire learned that his neighbor, Mrs. Ethel Kennedy, had his horse in her stables. Wilshire is suing Kennedy for the tort of misappropriation (wrongful taking of property). In his complaint, Wilshire alleges that Mrs. Kennedy took the horse knowing it belonged to Wilshire. He asks the court require Ms. Kennedy return the horse(restitution—replevin). In Ms. Kennedy’s answer to the complaint, she admits she took the horse knowing it belonged to Wilshire and admitted to all factual allegations in the complaint but she went on to assert an affirmative defense. Her defense is necessity, she took the horse because it was starving & showed signs of mistreatment and abuse, so she did it for the humanitarian reason to save the horse’s life, (in this jurisdiction, that is a recognized defense against a charge of misappropriation of an animal and if successful it allows the defendant to keep the animal). In an answer to Kennedy’s affirmative defense, Wilshire admits he was withholding food and had beaten the horse because it had done poorly in its last race and he was teaching it a lesson. He reasserted that the horse belongs to him, he paid $2,000,000 for it and he has a legal right to treat it any way he sees fit.

At the end of pretrial discovery, with all potential testimony and evidence supporting the facts as recited above, both attorneys move for summary judgment (S.J.). You are the judge. Will you grant S.J. or put the case on the docket for trial. Please do not attempt to guess at a winner (you’ll be wrong). Your task is simply to decide whether S.J. is appropriate at this time. Explain your decision.

ANSWER SHEET

Scenario #1, the Wright’s

Scenario #2, Oly North

1) specific performance?

2) $2,800 reimbursement for already sold tickets?

3) $2,800 reimbursement for lost revenue from 350 sears that would have been sold?

4) $60,000 in lost alumni contributions?

5)$50,000 in institutional embarrassment, pain and suffering due to Washburn’s tarnished image.

Scenario #3) the Coleman flame thrower

Scenario #4) Zwiely v. Steigerwalt

Scenario #5) William Cunningham

Scenario #6) the case of the missing thoroughbred horse