Spring 2012: Assignment #1 Points to Remember 1. Case choices y Remember to think about case hierarchy (S. Ct.

-> 8th Cir. -> cases cited by 8th Cir., etc.) y For this assignment, remember that you may use unpublished opinions. y Use mandatory authority, WHENEVER POSSIBLE, for the "core" rule language (the basic rule language). Lead with the core rule from a mandatory authority and then supplement with persuasive authority, if necessary/compelling. y Select cases for your Explanation paragraph based on case hierarchy and the facts/analysis contained in the case. y For this assignment, you should be able to locate core, mandatory rule authority for both of the focused rules (reasonably communicated and fundamentally fair). y You will need to use persuasive cases for your E paragraphs on the first focused issue: reasonably communicated. You may choose to use Shute on the E paragraphs for fundamental fairness, but you will almost certainly want to use additional cases, as well. There are not any 8th circuit appellate court cases that address fundamental fairness, so you will need to use the same case choice principles discussed above when selecting cases. 2. Overall structure of the memo y Follow the structure of the sample student memo. Be sure to follow the formatting set out in the Class Rules. y Roman Numeral I under the argument section should read: "SUMMARY JUDGMENT STANDARD" y For this assignment, you may copy and paste the exact language used in the Summary Judgment Standard paragraph. y Roman Numeral II is your overarching issue: the validity of forum selection clauses in passenger cruise ship tickets. y Be sure to include a general point heading on forum selection clauses. y Be sure to include an umbrella paragraph that includes the rule on forum selection clauses and a funnel sentence.

y A note on funnel sentences: the funnel sentence must persuade the reader that your position is correct. BE DIRECT HERE. Use the point heading as a guide. Reflect the ideas from the point heading using some additional detail in the funnel sentence. y Your first focused issue (A) is Reasonably Communicated. y Be sure to include a general point heading on reasonably communicated. y Be sure to include an umbrella paragraph following the point heading that contains the focused rule on reasonably communicated and a funnel sentence. y Under Reasonably Communicated, you should have two sub-point issues: 1. Physical Characteristics and 2. Extrinsic Circumstances. y Each sub-point issue should have its own sub-point heading. y Each sub-point issue should have its own umbrella paragraph that includes the sub-point rule and a funnel sentence. y Each sub-point should have at least one E and A paragraph. y Each sub-point should have a mini conclusion (which may be included as part of the A paragraph or set apart as its own paragraph). y Be sure to include a separate paragraph conclusion on the focused issue of Reasonably Communicated. y Your second focused issue (B) is on Fundamental Fairness. y Be sure to include a general point heading on fundamental fairness. y Be sure to include an umbrella paragraph following the point heading that contains the focused rule on fundamental fairness and a funnel sentence. y It is up to you how you organize the factors you discuss under fundamental fairness. If you choose to break the analysis down into sub-points, just remember to include sub-point headings, an umbrella paragraph with the rule and a funnel sentence, an E and A paragraph, and a mini conclusion for each sub-point. 3. Explanation/Application paragraphs y REMEMBER TO INCLUDE A THESIS SENTENCE! y Remember all the elements of a good explanation the explanation must still include the holding, background facts, legally relevant facts for your issue and the courts rationale.
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y The explanation must preview the argument in the application for the reader. y Give the reader a strong transition/introduction sentence into the application that mirrors the thesis sentence language. y Weave the rule language and the court's language throughout the Application section to effectively argue your points. y If you found good supplemental rule language, use that language again here for persuasive effect. y Be sure to cite to the record in your A paragraph. You do NOT need to cite to cases in the A paragraph. y The number of E paragraphs should still match the number of A paragraphs y If you choose to combine two cases in an E paragraph, you should be able to draft a thesis sentence that completely addresses the common factual concept from both cases. If you cannot draft a thesis sentence that encompasses a common concept, you will need to draft two E and two A paragraphs if you intend to discuss and analyze both cases. y You DO NOT have to use a distinguishing case. It is your choice. 4. The Focused Issues/Rules y REASONABLY COMMUNICATED y For the "physical characteristics" prong of the test, you may use forum selection or statute of limitation clause cases. The substance of the clause does not matter. What matters is whether the physical characteristics of the ticket/contract reasonably communicated the terms of the clause. y For the "extrinsic circumstances" prong, limit your inquiry to forum selection clause cases. You want to identify a case where the plaintiff's circumstances related to receiving the ticket are similar to the plaintiff in our case. The facts in a statute of limitations case are not as analogous. y Although the cruise ship is responsible for reasonably communicating the terms of the contract to the passenger, do not confuse this with the legal burden of proving that the forum selection clause is invalid. The burden of proving that the forum selection clause is invalid is on the plaintiff. y FUNDAMENTAL FAIRNESS y Since Shute, lower courts have been attempting to define what factors should be considered under fundamental fairness.
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Shute's analysis is a bit confusing because the Court was considering a broader question of whether, in general, nonnegotiated forum selection clauses in passenger tickets are fundamentally fair, and then the narrower question of whether the forum selection clause in that particular case should be enforced. y As to the broader question, the Court discusses a number of public policy considerations that weigh in favor of a finding that forum selection clauses are prima facie valid and enforceable. This includes the discussion on lowering the litigation costs for cruise ships, which in turn lowers the costs for passengers. Shute generally settles the broader question and holds that forum selection clauses are presumed to be valid and enforceable, unless the clause was not reasonably communicated or is somehow fundamentally unfair. y Cases following Shute, including our case, therefore, inquire into whether there is something fundamentally unfair about the selected forum. Courts generally consider some combination of the following factors: 1. Whether the defendant selected the forum to discourage legitimate claims; 2. Whether there is evidence of fraud or overreaching; 3. Whether the forum would so inconvenience the plaintiff as to deprive her of her day in court; and 4. Whether there is the opportunity to reject without impunity. y I do not believe we have any evidence of fraud or overreaching in this case. I don't believe the plaintiff could make that argument in good faith. y I do believe there are arguments that could be made on each of the other points. It is up to you whether you choose to discuss all of them or not, but you should include the factors I have listed above as part of your focused rule.