Tag: California Law

Proposition 9, Marsy’s Law: An Ill-Suited Ballot Initiative and the (Predictably) Unsatisfactory Results – Note by Ryan S. Appleby

From Volume 86, Number 2 (January 2013)
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On November 4, 2008, California residents voted on twelve statewide ballot initiatives. Seven initiatives were approved, including Proposition 9: the “Victims’ Bill of Rights Act of 2008: Marsy’s Law.” It received the fourth fewest total votes of the twelve ballot initiatives, and was dwarfed in total spending compared to other bills such as Proposition 8, the “California Marriage Protection Act.” Despite passing without significant publicity, Marsy’s Law instituted broad legal reforms. It altered the California Constitution, added two sections to the California Penal Code, and amended two sections of the California Penal Code. The Proposition added a Victims’ Bill of Rights to the California Constitution; expanded the role of victims at every stage of prosecution, conviction and postconviction; modified the process of parole hearings; sought to increase prison sentences; and altered the procedure for parole revocation.

Marsy’s Law was passed via ballot initiative, a form of direct democracy guaranteed by California’s Constitution. The initiative power has existed since 1911, when the California Constitution was amended to provide that “the people reserve to themselves the powers of initiative and referendum.” It was sparked by a backlash against a corrupt legislature bowing to the demands of monopolistic railroad owners. Direct democracy appealed to the populist movement of the early twentieth century and sought to curb corrupt government, reduce the influence of money in politics, and restore democracy for the people.

 

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The Fraud Exception to the Parol Evidence Rule: Necessary Protection for Fraud Victims or Loophole for Clever Parties? – Note by Alicia W. Macklin

From Volume 82, Number 4 (May 2009)
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Consider the following hypothetical: Two businesses—X, a software company, and Y, a retailer—reach a typical agreement regarding a software license. After extended negotiations, a written, integrated agreement finalizes the deal; it states that X will license software to Y and provide related hosting and technical support services. It does not include, nor did the two parties ever discuss, implementation of the software. Some time after the agreement was made, Y attempts to compel X to implement the software. Y later argues in court that X made fraudulent oral promises that induced Y to sign the written agreement. Y claims that X additionally agreed to provide both a total cost of ownership guarantee, including implementation, and the assistance of its consulting and development personnel to implement the software. Y’s lawyers correctly realize that, in California, the courts have allowed extrinsic evidence of fraudulent promises when those promises are consistent with or independent of the written agreement, notwithstanding the Parol Evidence Rule (“PER”). Thus, while X can present its best argument that the promise to implement the software would directly contradict or vary the terms of the limited licensing contract, the outcome in court is still unpredictable. Unsuspecting X is in danger of being forced to bear a substantial burden for which it never intended to contract.

 

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