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Wednesday, November 30, 2011

If you can't trust the people you kidnap . . .

As a contracts prof, I just couldn't resist posting this article: "Kidnapper Sues Former Hostages, Says They Broke Promise."  As the title suggests, an inmate, currently serving an 11 year jail term for kidnapping, is suing the couple he kidnapped for breach of contract.  According the the article, the suit for breach of contract is based on the kidnapper's claim that the couple "broke an oral contract made when he promised them money in exchange for hiding him from police."  The intruder is seeking $235,000 in damages for hospital bills he incurred as a result of - wait for it - being shot by police when they arrested him.  

When I read this (and thanks to all my students who emailed this to me), it had final exam hypo written all over it.  How many contract defenses can you come up with?

Posted by Michael Helfand on November 30, 2011 at 03:02 AM in Current Affairs | Permalink


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Anon and TJ,

Thanks so much for your comments. I probably should have been clear that I'd only really use something like this in a hypo for a multiple choice question with answers being possible defenses (although now that I posted it, I don't think I'd ever use it). But I think your comments hit on some really great points that I'm grateful you passed along.

Posted by: Michael Helfand | Nov 30, 2011 1:47:40 PM

I'm also opposed to using this as an exam, but for entirely different reasons. My reason is that you end up testing only a student's ability to be massively redundant, in "how many other contract defenses can you come up with?" in a fact situation where the real problem is obvious to all. So after the student deals with the illegality defense, the duress defense, and undue influence defense--each of which is completely dispositive as far as I can see--he misses the foreseeability of damages issue and gets a C. The lawyerly impulse for redundancy and CYA is bad enough already and detracts from real analytical skill. I certainly don't think we need to test for it.

Posted by: TJ | Nov 30, 2011 1:10:26 PM

I strongly suggest that you not use this as an exam hypo. Is it fun and funny? Sure. So send it to your students in an email. Do it as an in-class group assignment. But this case is a bizarre outlier in the law; it is not the stuff law is made of. I assume you have not spent the year teaching students in order that they be prepared to deal with obviously meritless cases.

I hated exams based on these kinds of hypos when I was in law school, and now that I am teaching I much prefer to put students in a more realistic scenario for an exam. (I rarely do long issue spotters for the same reason.) By all means make the case interesting and difficult. You can even put some humor in there. But test them with more substantive and realistic materials.

Please understand that I do not mean this as a personal attack. There is a law school exam culture that promotes the use of these weird hypos, so is isn't as though you came up with this. I just think that you'd do better by your students if you found something else as a basis for your exam.

Posted by: Anon | Nov 30, 2011 12:32:52 PM

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