This page is intended to help you hack through some of the legal
jargon that crops up in our readings. Although our discussions will
be not legal in the narrow sense — we will not be concerned with the
intricate details of easements, for example — it is important to have
a grasp of the jargon below, as you're reading the material. Otherwise,
the illustrations the authors use may pass you by, and with them, the arguments! I
list the references at the end.
Substantive Due Process Passages
Holmes, "Path of the Law"
Pound, "Law in Books and Law in Action"
Radin, "The Theory of Judicial Decision"
Pound, "Liberty of Contract"
"Police power:" The traditional authority of the state to legislate in order to protect public safety and promote the health and welfare of the citizenry.
"Implying a condition in a contract:" To imply a condition in a contract is to find an implied condition in a contract. As for implied conditions,
An implied condition or implied-in-fact condition is an event which is not expressly made a condition by the language of the contract but which the parties necessarily contemplated as part of their agreement. The standard example of such a condition is the implied condition of cooperation which will arise where some participation or cooperation by one party is necessary to permit the other to perform or to enjoy the fruits of the contract.
If X contracts to fumigate a bank vault in exchange for which the bank agrees to pay $300, there is an implied condition that the bank will take the appropriate actions to open its vault and give X access thereto. (Contracts, p. 263)
Common Law, Equity Law: See this Wikipedia article.
The Year Books: annual books that reported events in English common law from 1290-1535. See this article from the Boston Univ. School of Law.
"Easements:" "a right of use over the property of another" (Black, p. 352).
"Adverse user:" one who uses "without license or permission" (Black, p. 35). This notion is related in general and in the passage in Pound to the concept of adverse possession: one comes to possess title to real property, if one uses it adversely, i.e., without the permission of the presumed owner, and if the use is "actual, open, notorious, [and] exclusive ... for the statutorily presecribed period," generally between five and twenty years (Black, pp. 34-5).
A "permissive user," as referred to in the Pound passage, is one who does give permission for use, so that the user of the property is not technically "adverse."
Volstead Act: this was the federal law that implemented Prohibition.
"common law incapacities:" these are the conditions which have been recognized in the common law to disable a person from making contracts, or making certain kinds of contracts, such as being underage, or insane.
"negotiable instruments:" "A written and signed unconditional promise or order to pay a specified sum of money on demand or at a definite time payable to order or bearer. U.C.C. 3-104(1)" (Black, p. 719).
"constructive fraud:" "Exists where conduct, though not actually fraudulent, has all actual consequences and legal effects of actual fraud" (Black, p. 217).
"badges of fraud:" "A circumstance or other fact accompanying a transfer of property that the courts recognize as an especially reliable indicator of the transferor's actual intention to hinder, delay, or defraud creditors in making the transfer. It is defined as a fact tending to throw suspicion upon a transaction, and calling for an explanation" (Black, p. 94).
Black's Law Dictionary. Henry Campbell Black. Abridged 6th ed. St. Paul, Minn.: West Publishing Co, 1991.
Contracts. Gordon D. Schaber and Claude D. Rohwer. St. Paul, Minn: West Publishing Co., 1984.