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Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

ASSIGNMENT Definition & Legal Meaning

Definition & citations:.

In contracts. 1. The act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share, interest, or subsidiary estate therein. Seventh Nat. Bank v. Iron Co. (C. C.) 35 Fed. 440; Haug v. Riley, 101 Ga. 372, 29 S. E. 44, 40 L It A. 244. More particularly, a written transfer of property, as distinguished from a transfer by mere delivery. 2. In a narrower sense, the transfer or making over of the estate, right, or title which one has in lands and tenements; and, in an especially technical sense, the transfer of the unexpired residue of a term or estate for life or years. Assignment does not include testamentary transfers. The idea of an assignment is essentially that of a transfer by one existing party to another existing party of some species of property or valuable interest, except in the case of an executor. Ilight v. Sackett, 34 N. Y. 447. 3. A transfer or making over by a debtor of all his property and effects to one or more assignees in trust for the benefit of his creditors. 2 Story, Eq. Jur.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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Ultimate Checklist for Understanding Contract Assignment Rules

• February 28, 2024
• Moton Legal Group

In contracts, understanding assignment is key. Simply put, an assignment in contract law is when one party (the assignor) transfers their rights and responsibilities under a contract to another party (the assignee). This can include anything from leasing agreements to business operations. But why is this important? It’s because it allows for flexibility in business and personal dealings, a critical component in our world.

Here’s a quick rundown: – Contract Basics: The foundational agreements between parties. – Assignment Importance: Allowing the transfer of obligations and benefits to keep up with life’s changes.

Contracts are a staple in both personal and business worlds, acting as the backbone to many transactions and agreements encountered daily. Understanding the nuances, like assignments, can empower you to navigate these waters with confidence and ease. Whether you’re a business owner in the Southeast looking to expand or an individual managing personal agreements, grasp these basics, and you’re on the right path.

Understanding Contract Assignment

Contract Assignment sounds complicated, right? But, let’s break it down into simple terms. In contracts and legal agreements, knowing about assignment can save you a lot of headaches down the road. Whether you’re a business owner, a landlord, or just someone who deals with contracts, this is for you.

Legal Definition

At its core, contract assignment is about transferring rights or obligations under a contract from one party to another. Think of it as passing a baton in a relay race. The original party (the assignor) hands off their responsibilities or benefits to someone else (the assignee). But, there’s a twist – the race keeps going with the new runner without starting over.

Contract Law

In contract law, assignment comes into play in various ways. For example, if you’re a freelancer and you’ve agreed to complete a project but suddenly find yourself overbooked, you might assign that contract to another freelancer. This way, the job gets done, and your client is happy. However, not all contracts can be freely assigned. Some require the other party’s consent, and others can’t be assigned at all, especially if they involve personal skills or confidential trust.

Property Law

When it comes to property law, assignment often surfaces in landlord-tenant relationships. Say you’re renting a shop for your business, but you decide to move. If your lease allows it, you might assign your lease to another business. This means they take over your lease, stepping into your shoes, with all the rights and obligations that come with it.

The concept might seem straightforward, but there are important legal requirements and potential pitfalls to be aware of. For instance, an assignment could be prohibited by the contract itself, or it may significantly change the original deal’s terms in a way that’s not allowed. Plus, when you’re dealing with something that requires a unique skill set, like an artist or a consultant, those services typically can’t be passed on to someone else without agreement from all parties involved.

To navigate these complexities, understanding the fundamentals of assignment in contract law and property law is crucial. It ensures that when you’re ready to pass that baton, you’re doing it in a way that’s legal, effective, and doesn’t leave you tripping up before you reach the finish line.

The goal here is to make sure everyone involved understands what’s happening and agrees to it. That way, assignments can be a useful tool to manage your contracts and property agreements, keeping things moving smoothly even when changes come up.

For more detailed exploration on this topic, consider checking the comprehensive guide on Assignment (law)). This resource dives deeper into the nuances of contract assignment, offering insights and examples that can help clarify this complex area of law.

By grasping these basics, you’re well on your way to mastering the art of contract assignment. Whether you’re dealing with leases, business deals, or any agreement in between, knowing how to effectively assign a contract can be a game-changer.

Key Differences Between Assignment and Novation

When diving into contracts, two terms that often cause confusion are assignment and novation . While both deal with transferring obligations and rights under a contract, they are fundamentally different in several key aspects. Understanding these differences is crucial for anyone involved in contract management or negotiation.

Rights Transfer

Assignment involves the transfer of benefits or rights from one party (the assignor) to another (the assignee). However, it’s important to note that only the benefits of the contract can be assigned, not the burdens. For instance, if someone has the right to receive payments under a contract, they can assign this right to someone else.

Novation , on the other hand, is more comprehensive. It involves transferring both the rights and obligations under a contract from one party to a new party. With novation, the original party is completely released from the contract, and a new contractual relationship is formed between the remaining and the new party. This is a key distinction because, in novation, all parties must agree to this new arrangement.

Obligations Transfer

Assignment doesn’t transfer the original party’s obligations under the contract. The assignor (the original party who had the rights under the contract) might still be liable if the assignee fails to fulfill the contract terms.

In contrast, novation transfers all obligations to the new party. Once a novation is complete, the new party takes over all rights and obligations, leaving the original party with no further legal liabilities or rights under the contract.

Written Agreement

While assignments can sometimes be informal or even verbal, novation almost always requires a written agreement. This is because novation affects more parties’ rights and obligations and has a more significant impact on the contractual relationship. A written agreement ensures that all parties are clear about the terms of the novation and their respective responsibilities.

In practice, the need for a written agreement in novation serves as a protection for all parties involved. It ensures that the transfer of obligations is clearly documented and legally enforceable.

For example, let’s say Alex agrees to paint Bailey’s house for $1,000. Later, Alex decides they can’t complete the job and wants Chris to take over. If Bailey agrees, they can sign a novation agreement where Chris agrees to paint the house under the same conditions. Alex is then relieved from the original contract, and Chris becomes responsible for completing the painting job.

Understanding the difference between assignment and novation is critical for anyone dealing with contracts. While both processes allow for the transfer of rights or obligations, they do so in different ways and with varying implications for all parties involved. Knowing when and how to use each can help ensure that your contractual relationships are managed effectively and legally sound.

For further in-depth information and real-life case examples on assignment in contract law, you can explore detailed resources such as Assignment (law) on Wikipedia).

Next, we’ll delve into the legal requirements for a valid assignment, touching on express prohibition, material change, future rights, and the rare skill requirement. Understanding these will further equip you to navigate the complexities of contract assignments successfully.

Legal Requirements for a Valid Assignment

When dealing with assignment in contract law , it’s crucial to understand the legal backbone that supports a valid assignment. This ensures that the assignment stands up in a court of law if disputes arise. Let’s break down the must-know legal requirements: express prohibition, material change, future rights, and rare skill requirement.

Express Prohibition

The first stop on our checklist is to look for an express prohibition against assignment in the contract. This is a clause that outright states assignments are not allowed without the other party’s consent. If such language exists and you proceed with an assignment, you could be breaching the contract. Always read the fine print or have a legal expert review the contract for you.

Material Change

Next up is the material change requirement. The law states that an assignment cannot significantly alter the duties, increase the burdens, or impair the chances of the other party receiving due performance under the contract. For instance, if the contract involves personal services tailored to the specific party, assigning it to someone else might change the expected outcome, making such an assignment invalid.

Future Rights

Another important aspect is future rights . The rule here is straightforward: you can’t assign what you don’t have. This means that a promise to assign rights you may acquire in the future is generally not enforceable at present. An effective assignment requires that the rights exist at the time of the assignment.

Rare Skill Requirement

Lastly, let’s talk about the rare skill requirement . Some contracts are so specialized that they cannot be assigned to another party without compromising the contract’s integrity. This is often the case with contracts that rely on an individual’s unique skills or trust. Think of an artist commissioned for a portrait or a lawyer hired for their specialized legal expertise. In these scenarios, assignments are not feasible as they could severely impact the contract’s intended outcome.

Understanding these legal requirements is pivotal for navigating the complexities of assignment in contract law. By ensuring compliance with these principles, you can effectively manage contract assignments, safeguarding your interests and those of the other contracting party.

For anyone looking to delve deeper into the intricacies of contract law, you can explore detailed resources such as Assignment (law) on Wikipedia).

Moving forward, we’ll explore the common types of contract assignments, from landlord-tenant agreements to business contracts and intellectual property transfers. This will give you a clearer picture of how assignments work across different legal landscapes.

Common Types of Contract Assignments

When we dive into assignment in contract law , we find it touches nearly every aspect of our business and personal lives. Let’s simplify this complex topic by looking at some of the most common types of contract assignments you might encounter.

Landlord-Tenant Agreements

Imagine you’re renting a fantastic apartment but have to move because of a new job. Instead of breaking your lease, you can assign your lease to someone else. This means the new tenant takes over your lease, including rent payments and maintenance responsibilities. However, it’s crucial that the landlord agrees to this switch. If done right, it’s a win-win for everyone involved.

Business Contracts

In the business world, contract assignments are a daily occurrence. For example, if a company agrees to provide services but then realizes it’s overbooked, it can assign the contract to another company that can fulfill the obligations. This way, the project is completed on time, and the client remains happy. It’s a common practice that ensures flexibility and efficiency in business operations.

Intellectual Property

Intellectual property (IP) assignments are fascinating and complex. If an inventor creates a new product, they can assign their patent rights to a company in exchange for a lump sum or royalties. This transfer allows the company to produce and sell the invention, while the inventor benefits financially. However, it’s critical to note that with trademarks, the goodwill associated with the mark must also be transferred to maintain its value.

Understanding these types of assignments helps clarify the vast landscape of contract law. Whether it’s a cozy apartment, a crucial business deal, or a groundbreaking invention, assignments play a pivotal role in ensuring these transitions happen smoothly.

As we navigate through the realm of contract assignments, each type has its own set of rules and best practices. The key is to ensure all parties are on the same page and that the assignment is executed properly to avoid any legal pitfalls.

Diving deeper into the subject, next, we will explore how to execute a contract assignment effectively, ensuring all legal requirements are met and the process runs as smoothly as possible.

How to Execute a Contract Assignment Effectively

Executing a contract assignment effectively is crucial to ensure that all legal requirements are met and the process runs smoothly. Here’s a straightforward guide to help you navigate this process without any hiccups.

Written Consent

First and foremost, get written consent . This might seem like a no-brainer, but it’s surprising how often this step is overlooked. If the original contract requires the consent of the other party for an assignment to be valid, make sure you have this in black and white. Not just a handshake or a verbal agreement. This ensures clarity and avoids any ambiguity or disputes down the line.

Notice of Assignment

Next up, provide a notice of assignment to all relevant parties. This is not just common courtesy; it’s often a legal requirement. It informs all parties involved about the change in the assignment of rights or obligations under the contract. Think of it as updating your address with the post office; everyone needs to know where to send the mail now.

Privity of Estate

Understanding privity of estate is key in real estate transactions and leases. It refers to the legal relationship that exists between parties under a contract. When you assign a contract, the assignee steps into your shoes, but the original terms of the contract still apply. This means the assignee needs to be aware of and comply with the original agreement’s requirements.

Secondary Liability

Lastly, let’s talk about secondary liability . Just because you’ve assigned a contract doesn’t always mean you’re off the hook. In some cases, the original party (the assignor) may still hold some liability if the assignee fails to perform under the contract. It’s essential to understand the terms of your assignment agreement and whether it includes a release from liability for the assignor.

Executing a contract assignment effectively is all about dotting the I’s and crossing the T’s . By following these steps—securing written consent, issuing a notice of assignment, understanding privity of estate, and clarifying secondary liability—you’re setting yourself up for a seamless transition.

The goal is to ensure all parties are fully informed and agreeable to the changes being made. This not only helps in maintaining good relationships but also in avoiding potential legal issues down the line.

We’ll dive into some of the frequently asked questions about contract assignment to clear any lingering doubts.

Frequently Asked Questions about Contract Assignment

When navigating contracts, questions often arise, particularly about the concepts of assignment and novation. Let’s break these down into simpler terms.

What does assignment of a contract mean?

In the realm of assignment in contract law , think of assignment as passing the baton in a relay race. It’s where one party (the assignor) transfers their rights and benefits under a contract to another party (the assignee). However, unlike a relay race, the original party might still be on the hook for obligations unless the contract says otherwise. It’s like handing off the baton but still running alongside the new runner just in case.

Is an assignment legally binding?

Absolutely, an assignment is as binding as a pinky promise in the playground – but with legal muscle behind it. Once an assignment meets the necessary legal criteria (like not significantly changing the obligor’s duties or having express consent if required), it’s set in stone. This means both the assignee and the assignor must honor this transfer of rights or face potential legal actions. It’s a serious commitment, not just a casual exchange.

What is the difference between assignment and novation?

Now, this is where it gets a bit more intricate. If assignment is passing the baton, novation is forming a new team mid-race. It involves replacing an old obligation with a new one or adding a new party to take over an old one’s duties. Crucially, novation extinguishes the old contract and requires all original and new parties to agree. It’s a clean slate – the original party walks away, and the new party steps in, no strings attached.

While both assignment and novation change the playing field of a contract, novation requires a unanimous thumbs up from everyone involved, completely freeing the original party from their obligations. On the other hand, an assignment might leave the original party watching from the sidelines, ready to jump back in if needed.

Understanding these facets of assignment in contract law is crucial, whether you’re diving into a new agreement or navigating an existing one. Knowledge is power – especially when it comes to contracts.

As we wrap up these FAQs, the legal world of contracts is vast and sometimes complex, but breaking it down into bite-sized pieces can help demystify the process and empower you in your legal undertakings.

Here’s a helpful resource for further reading on the difference between assignment and cession.

Now, let’s continue on to the conclusion to tie all these insights together.

Navigating assignment in contract law can seem like a daunting task at first glance. However, with the right information and guidance, it becomes an invaluable tool in ensuring that your rights and obligations are protected and effectively managed in any contractual relationship.

At Moton Legal Group, we understand the intricacies of contract law and are dedicated to providing you with the expertise and support you need to navigate these waters. Whether you’re dealing with a straightforward contract assignment or facing more complex legal challenges, our team is here to help. We pride ourselves on our ability to demystify legal processes and make them accessible to everyone.

The key to successfully managing any contract assignment lies in understanding your rights, the obligations involved, and the potential impacts on all parties. It’s about ensuring that the assignment is executed in a way that is legally sound and aligns with your interests.

If you’re in need of assistance with a contract review, looking to understand more about how contract assignments work, or simply seeking legal advice on your contractual rights and responsibilities, Moton Legal Group is here for you. Our team of experienced attorneys is committed to providing the clarity, insight, and support you need to navigate the complexities of contract law with confidence.

For more information on how we can assist you with your contract review and other legal needs, visit our contract review service page .

In the constantly evolving landscape of contract law, having a trusted legal partner can make all the difference. Let Moton Legal Group be your guide, ensuring that your contractual dealings are handled with the utmost care, professionalism, and expertise. Together, we can navigate the complexities of contract law and secure the best possible outcomes for your legal matters.

Thank you for joining us on this journey through the fundamentals of assignment in contract law. We hope you found this information helpful and feel more empowered to handle your contractual affairs with confidence.

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Assignment of Contract

Jump to section, what is an assignment of contract.

An assignment of contract is a legal term that describes the process that occurs when the original party (assignor) transfers their rights and obligations under their contract to a third party (assignee). When an assignment of contract happens, the original party is relieved of their contractual duties, and their role is replaced by the approved incoming party.

How Does Assignment of Contract Work?

An assignment of contract is simpler than you might think.

The process starts with an existing contract party who wishes to transfer their contractual obligations to a new party.

When this occurs, the existing contract party must first confirm that an assignment of contract is permissible under the legally binding agreement . Some contracts prohibit assignments of contract altogether, and some require the other parties of the agreement to agree to the transfer. However, the general rule is that contracts are freely assignable unless there is an explicit provision that says otherwise.

In other cases, some contracts allow an assignment of contract without any formal notification to other contract parties. If this is the case, once the existing contract party decides to reassign his duties, he must create a “Letter of Assignment ” to notify any other contract signers of the change.

The Letter of Assignment must include details about who is to take over the contractual obligations of the exiting party and when the transfer will take place. If the assignment is valid, the assignor is not required to obtain the consent or signature of the other parties to the original contract for the valid assignment to take place.

Check out this article to learn more about how assigning a contract works.

Contract Assignment Examples

Contract assignments are great tools for contract parties to use when they wish to transfer their commitments to a third party. Here are some examples of contract assignments to help you better understand them:

Anna signs a contract with a local trash company that entitles her to have her trash picked up twice a week. A year later, the trash company transferred her contract to a new trash service provider. This contract assignment effectively makes Anna’s contract now with the new service provider.

Hasina enters a contract with a national phone company for cell phone service. The company goes into bankruptcy and needs to close its doors but decides to transfer all current contracts to another provider who agrees to honor the same rates and level of service. The contract assignment is completed, and Hasina now has a contract with the new phone company as a result.

Here is an article where you can find out more about contract assignments.

Assignment of Contract in Real Estate

Assignment of contract is also used in real estate to make money without going the well-known routes of buying and flipping houses. When real estate LLC investors use an assignment of contract, they can make money off properties without ever actually buying them by instead opting to transfer real estate contracts .

This process is called real estate wholesaling.

Real Estate Wholesaling

Real estate wholesaling consists of locating deals on houses that you don’t plan to buy but instead plan to enter a contract to reassign the house to another buyer and pocket the profit.

The process is simple: real estate wholesalers negotiate purchase contracts with sellers. Then, they present these contracts to buyers who pay them an assignment fee for transferring the contract.

This process works because a real estate purchase agreement does not come with the obligation to buy a property. Instead, it sets forth certain purchasing parameters that must be fulfilled by the buyer of the property. In a nutshell, whoever signs the purchase contract has the right to buy the property, but those rights can usually be transferred by means of an assignment of contract.

This means that as long as the buyer who’s involved in the assignment of contract agrees with the purchasing terms, they can legally take over the contract.

But how do real estate wholesalers find these properties?

It is easier than you might think. Here are a few examples of ways that wholesalers find cheap houses to turn a profit on:

• Direct mailers
• Place newspaper ads
• Make posts in online forums
• Social media posts

The key to finding the perfect home for an assignment of contract is to locate sellers that are looking to get rid of their properties quickly. This might be a family who is looking to relocate for a job opportunity or someone who needs to make repairs on a home but can’t afford it. Either way, the quicker the wholesaler can close the deal, the better.

Once a property is located, wholesalers immediately go to work getting the details ironed out about how the sale will work. Transparency is key when it comes to wholesaling. This means that when a wholesaler intends to use an assignment of contract to transfer the rights to another person, they are always upfront about during the preliminary phases of the sale.

In addition to this practice just being good business, it makes sure the process goes as smoothly as possible later down the line. Wholesalers are clear in their intent and make sure buyers know that the contract could be transferred to another buyer before the closing date arrives.

After their offer is accepted and warranties are determined, wholesalers move to complete a title search . Title searches ensure that sellers have the right to enter into a purchase agreement on the property. They do this by searching for any outstanding tax payments, liens , or other roadblocks that could prevent the sale from going through.

Wholesalers also often work with experienced real estate lawyers who ensure that all of the legal paperwork is forthcoming and will stand up in court. Lawyers can also assist in the contract negotiation process if needed but often don’t come in until the final stages.

If the title search comes back clear and the real estate lawyer gives the green light, the wholesaler will immediately move to locate an entity to transfer the rights to buy.

One of the most attractive advantages of real estate wholesaling is that very little money is needed to get started. The process of finding a seller, negotiating a price, and performing a title search is an extremely cheap process that almost anyone can do.

On the other hand, it is not always a positive experience. It can be hard for wholesalers to find sellers who will agree to sell their homes for less than the market value. Even when they do, there is always a chance that the transferred buyer will back out of the sale, which leaves wholesalers obligated to either purchase the property themselves or scramble to find a new person to complete an assignment of contract with.

Learn more about assignment of contract in real estate by checking out this article .

Who Handles Assignment of Contract?

The best person to handle an assignment of contract is an attorney. Since these are detailed legal documents that deal with thousands of dollars, it is never a bad idea to have a professional on your side. If you need help with an assignment of contract or signing a business contract , post a project on ContractsCounsel. There, you can connect with attorneys who know everything there is to know about assignment of contract amendment and can walk you through the whole process.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Assign is the act of transferring rights , property , or other benefits to another party (the assignee ) from the party who holds such benefits under contract (the assignor). This concept is used in both  contract  and property law . 

Contract Law  

Under contract law, when one party assigns a  contract , the assignment represents both: (1) an assignment of rights; and (2) a delegation of  duties . 

• For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C. 
• Here, A has both: (1) assigned A’s rights under the contract to the $50; and (2) delegated A’s  duty  to teach guitar, to C. 
• In this example, A is both the “assignor” and the “delegee” who delegates  the duties to another (C), C is known as the “ obligor ” who must perform the  obligations  to the  assignee , and B is the assignee who is owed duties and is liable to the obligor.

Assigning of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law. 

First, if an individual has not yet secured the contract to perform duties to another, they cannot assign their future right to an assignee. 

• That is, if A has not yet contracted with B to teach B guitar, A cannot assign their rights to C. 

Second, rights cannot be assigned when they  materially change the obligor’s duty and rights. 

Third, the obligor can sue the assignee directly if the assignee does not pay them. 

• Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor. It can only be delegated if the promised  performance  is more commonplace. Further, an obligee can sue if the  assignee  does not perform.  However, the delegee is  secondarily liable  unless there has been an  express   release  of the delegee. 

• Meaning if B does want C to teach guitar but C refuses to, then B can sue C. If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is  novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. Novation requires an original obligee’s  consent . 

Property Law

Under  property law , assignment typically arises in landlord-tenant situations.

• For example, A might be renting from landlord B but wants another party (C) to take over the property. 
• In this scenario, A might choose between  assigning  and  subleasing  the property to C. 
• If  assigning , A would give C the entire balance of the term , with no reversion to anyone; whereas if  subleasing , A would give C the property for a limited period of the remaining term.
• Under assignment, C would have  privity  of  estate  with the landlord while under a sublease, C would not. 

[Last updated in June of 2022 by the Wex Definitions Team ]

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Legal Assignment: Everything You Need to Know

A legal assignment occurs when a party assigns their contractual rights to a third party. 3 min read updated on February 01, 2023

A legal assignment occurs when a party assigns their contractual rights to a third party. The benefit that the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee.

Assignment of Contract

A legal assignment occurs when:

• The rights in personal or real property are transferred from one party to another
• The transfer also gives the new owner the rights to the property that the prior owner held prior to the transfer occurring

In the Purman Estate case, the court stated that a legal assignment is a transfer of property, or of some right or interest, from one person to another. It also stated that it must be the proper transfer of one whole interest in that property.

An assignment of rights occurs when an assignor gives up or transfers their rights of a future benefit to another party. In other words, an assignment is the act of one party transferring, vesting, or causing to vest their interest in a property to another party. A valid legal assignment only occurs when all underlying elements of a lawfully binding contract are included in it, including intent. A trial court can determine if an assignment has occurred. To prevent disputes or miscommunications, it's important that the subject matter is clearly identified in the assignment.

A contract assignment occurs when a party assigns their contractual rights to a third party. The benefit the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee. Essentially, the assignor prefers that the assignee reverses roles and assumes the contractual rights and obligations as stated in the contract. Before this can occur, all parties to the original contract must be notified.

How Assignments Work

The specific language used in the contract will determine how the assignment plays out. For example , one contract may prohibit assignment, while another contract may require that all parties involved agree to it before proceeding. Remember, an assignment of contract does not necessarily alleviate an assignor from all liability. Many contracts include an assurance clause guaranteeing performance. In other words, the initial parties to the contract guarantee that the assignee will achieve the desired goal.

When Assignments Will Not Be Enforced

The following situations indicate when an assignment of a contract is not enforced:

• The contract specifically prohibits assignment
• The assignment drastically changes the expected outcome
• The assignment is against public policy or illegal

Delegation vs. Assignment

Occasionally, one party in a contract will desire to pass on or delegate their responsibility to a third party without creating an assignment contract. Some duties are so specific in nature that they cannot be delegated. Adding a clause in the contract to prevent a party from delegating their responsibilities and duties is highly recommended.

Three Steps to Follow if You Want to Assign a Contract

There are three main steps to take if you're looking to assign a contract:

• Make sure the current contract does not contain an anti-assignment clause
• Officially execute the assignment by transferring the parties' obligations and rights
• Notify the obligor of the changes made

Once the obligor is notified, the assignor will effectively be relieved of liability.

Anti-Assignment Clauses

If you'd prefer not to allow the party you're doing business with to assign a contract, you may be able to prevent this from occurring by clearly stating anti-assignment clauses in the original contract. The three most common anti-assignment clauses are:

• Consent required for assignment
• Consent not needed for new owners or affiliates
• Consent not unreasonably withheld

Based on these three clauses, no party in the contract is allowed to delegate or assign any obligations or rights without prior written consent from the other parties. Any delegation or assignment in violation of this passage shall be deemed void. It is not possible to write an anti-assignment clause that goes against an assignment that is issued or ordered by a court.

If you need help with a legal assignment, you can  post your job  on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb. 

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• Assignment Law
• Assignment Contract Law
• Assignment of Rights and Obligations Under a Contract
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• Assignment Legal Definition
• What Is the Definition of Assigns
• Delegation vs Assignment
• Assignment Of Contracts
• Assignment of Contract Rights

• Practical Law

Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate
• Breach of Lease Covenants
• Security and Quasi Security

How to write a case brief for law school: Excerpt reproduced from Introduction to the Study of Law: Cases and Materials,

Third Edition (LexisNexis 2009) by Michael Makdisi & John Makdisi

C. HOW TO BRIEF

The previous section described the parts of a case in order to make it easier to read and identify the pertinent information that you will use to create your briefs. This section will describe the parts of a brief in order to give you an idea about what a brief is, what is helpful to include in a brief, and what purpose it serves. Case briefs are a necessary study aid in law school that helps to encapsulate and analyze the mountainous mass of material that law students must digest. The case brief represents a final product after reading a case, rereading it, taking it apart, and putting it back together again. In addition to its function as a tool for self-instruction and referencing, the case brief also provides a valuable “cheat sheet” for class participation.

Who will read your brief? Most professors will espouse the value of briefing but will never ask to see that you have, in fact, briefed. As a practicing lawyer, your client doesn’t care if you brief, so long as you win the case. The judges certainly don’t care if you brief, so long as you competently practice the law. You are the person that the brief will serve! Keep this in mind when deciding what elements to include as part of your brief and when deciding what information to include under those elements.

What are the elements of a brief? Different people will tell you to include different things in your brief. Most likely, upon entering law school, this will happen with one or more of your instructors. While opinions may vary, four elements that are essential to any useful brief are the following:

(a) Facts (name of the case and its parties, what happened factually and procedurally, and the judgment)

(b) Issues (what is in dispute)

(c) Holding (the applied rule of law)

(d) Rationale (reasons for the holding)

If you include nothing but these four elements, you should have everything you need in order to recall effectively the information from the case during class or several months later when studying for exams.

Because briefs are made for yourself, you may want to include other elements that expand the four elements listed above. Depending on the case, the inclusion of additional elements may be useful. For example, a case that has a long and important section expounding dicta might call for a separate section in your brief labeled: Dicta. Whatever elements you decide to include, however, remember that the brief is a tool intended for personal use. To the extent that more elements will help with organization and use of the brief, include them. On the other hand, if you find that having more elements makes your brief cumbersome and hard to use, cut back on the number of elements. At a minimum, however, make sure you include the four elements listed above.

Elements that you may want to consider including in addition to the four basic elements are:

(e) Dicta (commentary about the decision that was not the basis for the decision)

(f) Dissent (if a valuable dissenting opinion exits, the dissent’s opinion)

(g) Party’s Arguments (each party’s opposing argument concerning the ultimate issue)

(h) Comments (personal commentary)

Personal comments can be useful if you have a thought that does not fit elsewhere. In the personal experience of one of the authors, this element was used to label cases as specific kinds (e.g., as a case of vicarious liability) or make mental notes about what he found peculiar or puzzling about cases. This element allowed him to release his thoughts (without losing them) so that he could move on to other cases.

In addition to these elements, it may help you to organize your thoughts, as some people do, by dividing Facts into separate elements:

(1) Facts of the case (what actually happened, the controversy)

(2) Procedural History (what events within the court system led to the present case)

(3) Judgment (what the court actually decided)

Procedural History is usually minimal and most of the time irrelevant to the ultimate importance of a case; however, this is not always true. One subject in which Procedure History is virtually always relevant is Civil Procedure.

When describing the Judgment of the case, distinguish it from the Holding. The Judgment is the factual determination by the court, in favor of one party, such as “affirmed,” “reversed,” or “remanded.” In contrast, the Holding is the applied rule of law that serves as the basis for the ultimate judgment.

Remember that the purpose of a brief is to remind you of the important details that make the case significant in terms of the law. It will be a reference tool when you are drilled by a professor and will be a study aid when you prepare for exams. A brief is also like a puzzle piece.

The elements of the brief create the unique shape and colors of the piece, and, when combined with other pieces, the picture of the common law takes form. A well-constructed brief will save you lots of time by removing the need to return to the case to remember the important details and also by making it easier to put together the pieces of the common law puzzle.

D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND HIGHLIGHTING

So now that you know the basic elements of a brief, what information is important to include under each element? The simple answer is: whatever is relevant. But what parts of a case are relevant? When you read your first few cases, you may think that everything that the judge said was relevant to his ultimate conclusion. Even if this were true, what is relevant for the judge to make his decision is not always relevant for you to include in your brief. Remember, the reason to make a brief is not to persuade the world that the ultimate decision in the case is a sound one, but rather to aid in refreshing your memory concerning the most important parts of the case.

What facts are relevant to include in a brief? You should include the facts that are necessary to remind you of the story. If you forget the story, you will not remember how the law in the case was applied. You should also include the facts that are dispositive to the decision in the case. For instance, if the fact that a car is white is a determining factor in the case, the brief should note that the case involves a white car and not simply a car. To the extent that the procedural history either helps you to remember the case or plays an important role in the ultimate outcome, you should include these facts as well.

What issues and conclusions are relevant to include in a brief? There is usually one main issue on which the court rests its decision. This may seem simple, but the court may talk about multiple issues, and may discuss multiple arguments from both sides of the case. Be sure to distinguish the issues from the arguments made by the parties. The relevant issue or issues, and corresponding conclusions, are the ones for which the court made a final decision and which are binding. The court may discuss intermediate conclusions or issues, but stay focused on the main issue and conclusion which binds future courts.

What rationale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the rationale of the decision. The goal is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one side or the other.

A brief should be brief! Overly long or cumbersome briefs are not very helpful because you will not be able to skim them easily when you review your notes or when the professor drills you. On the other hand, a brief that is too short will be equally unhelpful because it lacks sufficient information to refresh your memory. Try to keep your briefs to one page in length. This will make it easy for you to organize and reference them.

Do not get discouraged. Learning to brief and figuring out exactly what to include will take time and practice. The more you brief, the easier it will become to extract the relevant information.

While a brief is an extremely helpful and important study aid, annotating and highlighting are other tools for breaking down the mass of material in your casebook. The remainder of this section will discuss these different techniques and show how they complement and enhance the briefing process.

Annotating Cases

Many of you probably already read with a pencil or pen, but if you do not, now is the time to get in the habit. Cases are so dense and full of information that you will find yourself spending considerable amounts of time rereading cases to find what you need. An effective way to reduce this time is to annotate the margins of the casebook. Your pencil (or pen) will be one of your best friends while reading a case. It will allow you to mark off the different sections (such as facts, procedural history, or conclusions), thus allowing you to clear your mind of thoughts and providing an invaluable resource when briefing and reviewing.

You might be wondering why annotating is important if you make an adequate, well-constructed brief. By their very nature briefs cannot cover everything in a case. Even with a thorough, well-constructed brief you may want to reference the original case in order to reread dicta that might not have seemed important at the time, to review the complete procedural history or set of facts, or to scour the rationale for a better understanding of the case; annotating makes these tasks easier. Whether you return to a case after a few hours or a few months, annotations will swiftly guide you to the pertinent parts of the case by providing a roadmap of the important sections. Your textual markings and margin notes will refresh your memory and restore specific thoughts you might have had about either the case in general or an individual passage.

Annotations will also remind you of forgotten thoughts and random ideas by providing a medium for personal comments.

In addition to making it easier to review an original case, annotating cases during the first review of a case makes the briefing process easier. With adequate annotations, the important details needed for your brief will be much easier to retrieve. Without annotations, you will likely have difficulty locating the information you seek even in the short cases. It might seem strange that it would be hard to reference a short case, but even a short case will likely take you at least fifteen to twenty-five minutes to read, while longer cases may take as much as thirty minutes to an hour to complete. No matter how long it takes, the dense material of all cases makes it difficult to remember all your thoughts, and trying to locate specific sections of the analysis may feel like you are trying to locate a needle in a haystack. An annotation in the margin, however, will not only swiftly guide you to a pertinent section, but will also refresh the thoughts that you had while reading that section.

When you read a case for the first time, read for the story and for a basic understanding of the dispute, the issues, the rationale, and the decision. As you hit these elements (or what you think are these elements) make a mark in the margins. Your markings can be as simple as “facts” (with a bracket that indicates the relevant part of the paragraph). When you spot an issue, you may simply mark “issue” or instead provide a synopsis in your own words. When a case sparks an idea — write that idea in the margin as well — you never know when a seemingly irrelevant idea might turn into something more.

Finally, when you spot a particularly important part of the text, underline it (or highlight it as described below).

With a basic understanding of the case, and with annotations in the margin, the second read-through of the case should be much easier. You can direct your reading to the most important sections and will have an easier time identifying what is and is not important. Continue rereading the case until you have identified all the relevant information that you need to make your brief, including the issue(s), the facts, the holding, and the relevant parts of the analysis.

Pencil or pen — which is better to use when annotating? Our recommendation is a mechanical pencil. Mechanical pencils make finer markings than regular pencils, and also than ballpoint pens. Although you might think a pencil might smear more than a pen, with its sharp point a mechanical pencil uses very little excess lead and will not smear as much as you might imagine. A mechanical pencil will also give you the freedom to make mistakes without consequences. When you first start annotating, you may think that some passages are more important than they really are, and therefore you may resist the urge to make a mark in order to preserve your book and prevent false guideposts. With a pencil, however, the ability to erase and rewrite removes this problem.

Highlighting

Why highlight? Like annotating, highlighting may seem unimportant if you create thorough, well-constructed briefs, but highlighting directly helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract information.

Highlighting takes advantage of colors to provide a uniquely effective method for reviewing and referencing a case. If you prefer a visual approach to learning, you may find highlighting to be a very effective tool.

If annotating and highlighting are so effective, why brief? Because the process of summarizing a case and putting it into your own words within a brief provides an understanding of the law and of the case that you cannot gain through the process of highlighting or annotating.

The process of putting the case into your own words forces you to digest the material, while annotating and highlighting can be accomplished in a much more passive manner.

What should you highlight? Similar to annotating, the best parts of the case to highlight are those that represent the needed information for your brief such as the facts, the issue, the holding and the rationale.

Unlike annotating, highlighting provides an effective way to color code, which makes referring to the case even easier. In addition, Highlighters are particularly useful in marking off entire sections by using brackets. These brackets will allow you to color-code the case without highlighting all the text, leaving the most important phrases untouched for a more detailed highlight marking or underlining.

Highlighting is a personal tool, and therefore should be used to the extent that highlighting helps, but should be modified in a way that makes it personally time efficient and beneficial. For instance, you might combine the use of annotations in the margins with the visual benefit of highlighting the relevant text. You may prefer to underline the relevant text with a pencil, but to use a highlighter to bracket off the different sections of a case. Whatever you choose to do, make sure that it works for you, regardless of what others recommend. The techniques in the remainder of this section will describe ways to make full use of your highlighters.

First, buy yourself a set of multi-colored highlighters, with at least four, or perhaps five or six different colors. Yellow, pink, and orange are usually the brightest. Depending on the brand, purple and green can be dark, but still work well. Although blue is a beautiful color, it tends to darken and hide the text.

Therefore we recommend that you save blue for the elements that you rarely highlight.

For each different section of the case, choose a color, and use that color only when highlighting the section of the case designated for that color. Consider using yellow for the text that you tend to highlight most frequently. Because yellow is the brightest, you may be inclined to use yellow for the Conclusions in order to make them stand out the most. If you do this, however, you will exhaust your other colors much faster than yellow and this will require that you purchase an entire set of new highlighters when a single color runs out because colors such as green are not sold separately. If instead you choose to use yellow on a more frequently highlighted section such as the Analysis, when it comes time to replace your yellow marker, you will need only to replace your yellow highlighter individually. In the personal experience on one of the authors, the sections of cases that seemed to demand the most highlighter attention were the

Facts and the Analysis, while the Issues and Holdings demanded the least. Other Considerations and

Procedural History required lots of highlighting in particular cases although not in every case.

Experiment if you must, but try to choose a color scheme early on in the semester and stick with it. That way, when you come back to the first cases of the semester, you will not be confused with multiple color schemes. The basic sections of a case for which you should consider giving a different color are:

(b) Procedural History

(c) Issue (and questions presented)

(d) Holding (and conclusions)

(e) Analysis (rationale)

(f) Other Considerations (such as dicta)

Not all of these sections demand a separate color. You may find that combining Facts and Procedural History or Issues and Holdings works best. Furthermore, as mentioned above, some sections may not warrant highlighting in every case (e.g., dicta probably do not need to be highlighted unless they are particularly important). If you decide that a single color is all that you need, then stick to one, but if you find yourself highlighting lots of text from many different sections, reconsider the use of at least a few different colors. Highlighters make text stand out, but only when used appropriately. The use of many colors enables you to highlight more text without reducing the highlighter’s effectiveness. Three to four colors provides decent color variation without the cumbersomeness of handling too many markers.

Once you are comfortable with your color scheme, determining exactly what to highlight still may be difficult. Similar to knowing what to annotate, experience will perfect your highlighting skills. Be careful not to highlight everything, thus ruining your highlighters’ effectiveness; at the same time, do not be afraid to make mistakes.

Now that we have covered the basics of reading, annotating, highlighting, and briefing a case, you are ready to start practicing. Keep the tips and techniques mentioned in this chapter in mind when you tackle the four topics in the remainder of this book. If you have difficultly, refer back to this chapter to help guide you as you master the case method of study and the art of using the common law.

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The Successful Law Student: An Insider's Guide to Studying Law (2nd edn)

• Acknowledgements
• Student Voices in The Successful Law Student
• 1. Introducing The Successful Law Student
• 2. Studying Law at University: Opportunities and Considerations
• 3. Preparing for Success
• 4. Learning and Studying Law
• 5. Making the Most of Your Classes in Law
• 6. Developing Legal (and Other) Skills
• 7. Finding and Using Legal Materials and Resources
• 8. Preparing for Assessments and Assignments
• 9. Assessments and Assignments in Law
• 10. Feedback, Reflection, and Looking Forward from Assessment
• 11. Study Abroad
• 12. Expanding Legal Skills— Mooting, Negotiation, and More
• 13. Volunteering, Paid Work, and Other Opportunities
• 14. Preparing to Move On
• 15. Career Pathways
• 16. A Successful Future

p. 249 9. Assessments and Assignments in Law

• Imogen Moore Imogen Moore Professor of Law and Director of Education in the Law School, University of Exeter
•  and  Craig Newbery-Jones Craig Newbery-Jones Associate Professor in Legal Education, University of Leeds
• https://doi.org/10.1093/he/9780198865650.003.0009
• Published in print: 28 February 2022
• Published online: September 2022

This chapter looks at some of the many different forms of assessment a law student may come across, depending on where they are studying and the subjects they choose. These include coursework, exams, multiple-choice tests, advocacy or other oral presentations, posters, and reflective reports. The chapter also considers dissertations and other research projects, and group work for assessment. The chapter gives advice on how to approach different types of assessment to enhance their chances of success. Specific guidance is also provided on responding to problem questions and essays, whether in coursework or exams including consideration of the IRAC and CEEO methods.

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Five Tips for a Great Legal Writing Assignment

September 25, 2012 By Lee Burgess 2 Comments

• Follow the format outlined by your professor. It is likely your legal writing professor has given you instructions for the overall format of your legal writing assignment. In addition, your professor may have given you formatting instructions for the body of your assignment, such as that you need to follow IRAC. Whatever the instructions, follow them . Sure, you may think it is an overly formal or a frustrating way to write—but to be honest, no one cares. You need to write for your professor . It is more important to write in the way your professor has outlined, than as you personally prefer. And it is not going to be the last time your writing will need to conform to someone else’s rules. As a working attorney you often need to write in the format requested by your boss or even by the court. So get used to it!
• Remember, your writing doesn’t need to be full of legalese—the best legal writing is often simple! So many law students make the mistake of thinking that to “sound like a lawyer” they must use every possible legal term out there. This is just not the case. Often the most effective legal writing is very clear and concise and only uses legal terms or “legalese” when appropriate (say, when you are using a term of art). It is also important to work on writing in a clear, concise way because your assignments may have maximum word count. So using extra words to sound “more professional” won’t really help your grade in the end.
• Answer the question asked by your assignment. Often students get so caught up in writing their assignment that they forget to focus on the question that was asked of them. It is important to read and re-read (and even read again) the assignment sheet. You don’t want to make a mistake and write something off topic. Remember, answering the question is key to getting a good grade!
• Plan before you write. A great legal writing assignment is organized. And for most of us this means that you need to plan your paper just as you would plan an essay or any other project. Organization is key and it takes time to sit with the research and develop your answer. Make sure you build this time into your plan of how you are going to get your assignment done.
• Proofread and double-check citations. As an attorney-in-training, it is very important to present yourself in a professional way. That means that you need to proofread your assignments to present yourself in a professional way to your professor as well. If your assignment is riddled with typos, it is distracting for the professor and likely will cause your grade to drop. Also, students often are lax when handling citations. You are typically graded on the accuracy of your citations. Citations are not hard, but you must be detail oriented and look things up! I have seen many a legal writing grade go down because students didn’t spend adequate time or energy on citations. Don’t let this happen to you.

Legal writing, like most things, gets easier the more that you do it. So do every practice assignment assigned and get as much feedback as you can. This will help you become an excellent legal writer, which is a critical skill in our profession.

Check out these other helpful posts:

• Surviving the first weeks of law school .
• Law school exam prep 101 .
• Getting feedback on past exams is critical .
• Pay attention in class, it can save you time !

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About Lee Burgess

Lee Burgess, Esq. is the co-founder of the Law School Toolbox , a resource for law students that demystifies the law school experience and the Bar Exam Toolbox , a resource for students getting ready for the bar exam. Lee has been adjunct faculty at two bay area law schools teaching classes on law school and bar exam preparation. You can find Lee on Twitter at @leefburgess , @lawschooltools , & @barexamtools .

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• Legal Ethics

Professional Ethics In Law

In this blog post, Sreeraj K.V., a student of Government Law College, Ernakulam, Kerala writes about professional ethics in law. This article covers the importance of professional ethics, its impact in the field of law, various duties and responsibilities of legal practitioners and concerned authorities to look into the matter as well as famous judgments regarding the same.

Professional ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law as well as persons engaged in the legal sector.   All members of the legal profession have a paramount duty to the court and towards the administration of justice. This duty prevail over all other duties, especially in the circumstances where there may be a conflict of duties. It is important that legal practitioners conduct themselves with integrity, provide proper assistance to the court, and promote public confidence in the legal system. In carrying out their duties, they are required and expected to deal with other members of the legal profession with courtesy and integrity. [1] Advocates, apart from being professionals, are also officers of the court and play a vital role in the administration of justice.

Accordingly, the set of rules that govern their professional conduct arise out of the duties that they owe to the court, the client, their opponents and other advocates. Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These Rules have been provided under section 49(1)(c) of the Advocates Act, 1961.

Rules on an advocate’s duty towards the Court

Act in a dignified manner

An advocate must behave in a dignified manner during the time of his case as well as while acting before the court. He should conduct himself with self-respect. Whenever there is a ground for complaint against a judicial officer, the advocate has a duty to submit his grievance to the concerned authorities.

Respect the Court

The advocate must show his respect towards the Court. He/she has to keep in mind that the dignity and respect towards the judicial officer are essential for the survival of a free community.

No communication in private

The advocate should not communicate with the judicial officer in private regarding any matter pending before the court. The advocate should not influence the decision of a court in any matter through illegal or improper acts such as coercion, bribe, etc.

Refusal to act in an illegal manner towards the opposition

An advocate should not act in an illegal manner towards the opposing counsel or opposite party. He should use his best effort to restrain his client from acting an illegal, improper manner or perform any unfair practice towards the judiciary, opposing counsel or opposing party.

Refusal to represent clients who insist on any unfair means of practice

An advocate shall refuse to represent the client who insists on using unfair or improper means. He shall be dignified in using his language in correspondence and arguments in the court. He shall not scandalously damage the reputation of the parties on false grounds during the pleadings.

Appear in proper dress code

The advocate should be present at all times in the court only in the proper dress code prescribed by the Bar Council of India Rules, and the dress code must be presentable.

Not represent the establishment of which he is a member

An advocate should not appear in the court, for or against any establishment in which he is a member. But this rule does not apply in the case of appointment as an ‘Amicus Curiae’ or without a fee on behalf of the Bar Council.

Not appear in matters with pecuniary interest

The advocate should not act on behalf of any matter in which he has a financial interest. He should not accept a brief from a company in which he is a Director.

Not stand as surety for the clients

The advocate should not stand as a surety for his client, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.

Advocate’s duties towards his client

• Bound to accept briefs.
• Not withdraw from service.
• Not appear in matters in which he is a witness.
• Full and frank disclosure to the client.
• Uphold interest of the client.
• Not suppress any material of evidence.
• Not disclose any information of his client and himself.
• Not receive any interest in actionable claim.
• Not charge depending on the success of matters..
• Keep proper accounts etc.

Advocate’s duty towards his opponent counsel

Not to negotiate directly with opposing party

The advocate should not in any way directly communicate with the opposing party regarding any matter of the case except through the advocate representing the party.

Carry out legitimate promises made

The advocate should make best of all possible legitimate promises made to his party, even though not reduced to writing under the rules of the Court.

Other duties include

• Not advertise or solicit work.
• Sign board and nameplate must be of reasonable size.
• Not promote an unauthorized practice of law.
• Obtain the consent of the fellow advocates for vakalat in the same case. [2]

Advantages of having codified professional ethics

• Means of social control. It will keep up with the new perspectives brought to the profession according to the social requirements and expectations. The dignity of the profession will be required to be maintained in order to retain the confidence of the public in it.
• Ethical codes prevent interference of government in such matters through its agencies. If a degree of standardization is needed, it will keep Governmental interference outside.
• Ethical codes are important in developing higher standards of conduct. The code also brings about a sense of judgment towards the profession
• The existence of the code will have great educative, corrective and appreciable value for both the lawyers and the common men. [3]

Authority Concerned

State Bar Council and its Disciplinary Committee

Section 35 of the Advocates Act deals with the provisions regarding formulation and functioning of Disciplinary Committee under the State Bar Council. Under this, if any legal practitioner is found guilty of any professional misconduct, after providing an opportunity of being heard may make any of the following orders:

• Dismiss the complaint or where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
• Reprimand the advocate;
• Suspend the advocate for a period as it may deem fit;
• Remove the name of the advocate from the State roll of advocates.

In the case of Nortanmal Chauaisia v. M.R. Murli [4] , the Supreme Court held that the term Misconduct had not been defined under the Advocates Act. But the term envisages a breach of discipline, although it would not be possible to lay down what would lead to misconduct or indiscipline, which is wide enough to include wrongful act or omission, whether done intentionally or unintentionally. It also means improper behaviour, intentional wrongdoing or deliberate violation of a rule of the standard of behaviour.

Professional ethics can also be stated as the duties that have to be followed by an advocate during his profession. These are moral duties and the very basic courtesy which every person in this field should know. An advocate who does not work with sincerity and does not follow the rules of conduct is said to have violated the code of ethics of this profession. The fundamental aim of legal ethics is to maintain honor and dignity of the legal profession to ensure the spirit of friendly co-operation, honorable and fair dealing of the counsel with his clients as well as to secure the responsibilities of the lawyers towards the society.

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[1] Retrieved on: http://www.lsc.sa.gov.au/dsh/ch02s01.php

[2] Retrieved on:  http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/

[3] Retrieved on: http://www.internationalseminar.org/XIII_AIS/TS%201%20(B)/19.%20Ms.%20Naina%20Jain.pdf

[4] Nortanmal Chauaisia v. M.R. Murli 2004 AIR SCW 2894 retrieved on http://www.internationalseminar.org/XIII_AIS/TS%201%20(B)/19.%20Ms.%20Naina%20Jain.pdf

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Prosecutors Got Trump — But They Contorted the Law

The first time I ever took a jury verdict, I almost passed out. I was a brand-new prosecutor, 29 years old, and had just given my first closing argument a few days earlier. Since then, the trial team and I had been whiling away our time, interrupted only by the occasional note from the jury seeking testimony or legal instructions as they deliberated. All of a sudden, we got word from the court clerk: Come on up, we have a verdict.

Let me tell you, there’s little in life that causes a burst of uncut adrenaline quite like the arrival of a verdict. I managed (barely) to hold it together as we performed the arcane, dramatic ritual that concludes every criminal trial. The judge brings the lawyers and the defendant back into the courtroom, the security officers take their places, the jury files in solemnly, and the judge asks: Ladies and gentlemen, have you reached a verdict? (Ummm, yes, Your Honor, that’s why we’re all back out here.) As I stood at the prosecution table while the jury took their places back in the box, I felt dizzy and had to use my arms to brace myself.

Moments before the jury read the verdict, my supervisor — a grizzled trial buzzsaw known for his blistering closing arguments — leaned over and whispered to me: “Whatever they say, no reaction. Don’t move a muscle.” I don’t know what I would’ve done if not for that last-second command. Maybe I would’ve been sensible enough not to react either way, but I’m not sure. As the jury read out its findings — starting with a “not guilty” on count one, to my horror, but then moving along to a string of convictions — I didn’t budge, or breathe, or blink.

The lesson I learned that day and throughout my prosecutorial career, and have come to value even more ever since, is that the jury’s verdict is sacrosanct. If a conviction goes our way, we prosecutors don’t pump our fists and celebrate, even mildly. And when a verdict goes against us, we don’t sulk. When we lose, we stand in and take it. Any emotional reaction, either way, would disrespect the judge, the jury, and, most importantly, the person whose liberty was about to be stripped. Prosecutors get to go to dinner and then sleep at home, no matter what the jury says. The defendant might not.

By any reasonable measure, the jury of Manhattanites who yesterday found former president Donald Trump guilty on all 34 charges did its job, and did it well.

They took on a civic duty from which many others fled; during jury selection, when Judge Juan Merchan allowed potential jurors who did not want to serve essentially to walk out the door, over half the assembled pool headed straight for the exits. The jurors sat through six weeks of testimony, they were by all accounts attentive throughout the trial, and they asked precise, insightful questions of the judge during deliberations. Nobody’s truly in position to say if the jury got it right or wrong; they saw the evidence and we didn’t — most of us, that is, including those like me who followed every line of testimony as it happened; there’s no substitute for seeing it play out live. Reasonable minds could have come out either way, and this jury found that the prosecution carried its burden of proof beyond a reasonable doubt. The jury’s work, and their verdict, deserve respect.

Third Degree With Elie Honig

Former federal and state prosecutor Elie Honig breaks down the headlines at the intersection of law and politics.

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But that doesn’t mean that every structural infirmity around the Manhattan district attorney’s case has evaporated. Both of these things can be true at once: The jury did its job, and this case was an ill-conceived, unjustified mess. Sure, victory is the great deodorant, but a guilty verdict doesn’t make it all pure and right. Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place. “But they won” is no defense to a strained, convoluted reach unless the goal is to “win,” now, by any means necessary and worry about the credibility of the case and the fallout later.

The following are all undeniable facts.

The judge donated money — a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind — to a pro-Biden, anti-Trump political operation, including funds that the judge earmarked for “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald Trump, MAGA forever!”? Absolutely not.

District Attorney Alvin Bragg ran for office in an overwhelmingly Democratic county by touting his Trump-hunting prowess. He bizarrely (and falsely) boasted on the campaign trail, “It is a fact that I have sued Trump over 100 times.” (Disclosure: Both Bragg and Trump’s lead counsel, Todd Blanche, are friends and former colleagues of mine at the Southern District of New York.)

Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process. That’s not on the jury. That’s on the prosecutors who chose to bring the case and the judge who let it play out as it did.

The district attorney’s press office and its flaks often proclaim that falsification of business records charges are “ commonplace ” and, indeed, the office’s “ bread and butter .” That’s true only if you draw definitional lines so broad as to render them meaningless. Of course the DA charges falsification quite frequently; virtually any fraud case involves some sort of fake documentation.

But when you impose meaningful search parameters, the truth emerges: The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.

Standing alone, falsification charges would have been mere misdemeanors under New York law, which posed two problems for the DA. First, nobody cares about a misdemeanor, and it would be laughable to bring the first-ever charge against a former president for a trifling offense that falls within the same technical criminal classification as shoplifting a Snapple and a bag of Cheetos from a bodega. Second, the statute of limitations on a misdemeanor — two years — likely has long expired on Trump’s conduct, which dates to 2016 and 2017.

So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) — and to electroshock them back to life within the longer felony statute of limitations — the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.

The Manhattan DA’s employees reportedly have called this the “Zombie Case” because of various legal infirmities, including its bizarre charging mechanism. But it’s better characterized as the Frankenstein Case, cobbled together with ill-fitting parts into an ugly, awkward, but more-or-less functioning contraption that just might ultimately turn on its creator.

Trump will appeal, as is his right, and he’s certain to contest the inventive charges constructed by the DA. I won’t go so far as to say an appeals court is likely to overturn a conviction — New York law is broad and hazy enough to (potentially) allow such machinations — but he’s going to have a decent shot at a reversal.

“No man is above the law.” It’s become cliché, but it’s an important point, and it’s worth pausing to reflect on the importance of this core principle. But it’s also meaningless pablum if we unquestioningly tolerate (or worse, celebrate) deviations from ordinary process and principle to get there. The jury’s word is indeed sacrosanct, as I learned long ago. But it can’t fix everything that preceded it. Here, prosecutors got their man, for now at least — but they also contorted the law in an unprecedented manner in their quest to snare their prey.

This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com

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Trump found guilty: 5 key aspects of the trial explained by a law professor

Professor of Criminal Law, Immigration, and Race and Law, University of California, Davis

Disclosure statement

Gabriel J. Chin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

University of California, Davis provides funding as a member of The Conversation US.

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After the May 30, 2024, conviction of former President Donald Trump on 34 felony counts of falsifying business records in New York, what comes next?

Trump’s legal team will likely appeal the verdict . “ We will fight for our Constitution,” Trump said following the jury’s announcement. “This is long from over.” A sentencing hearing for Trump is set for July 11.

The Conversation U.S.‘ politics and society editor Amy Lieberman spoke with Gabriel J. Chin , a scholar of criminal law and procedure, to better understand the verdict .

1. Why were there so many different felony counts in this case?

The essence of the offenses Trump was convicted of is falsifying documents or records. Accordingly, each check, invoice or other document that the jury found had been falsified was a separate offense, which can be the basis of a separate count and punished separately. The prosecution wanted to make sure that the jury saw the full scope of the scheme it alleged had occurred – which is that Trump covered up the fact that he paid hush money to porn star Stormy Daniels by disguising the payment as a legal fee to his lawyer, Michael Cohen. Cohen then allegedly used Trump’s money to pay Daniels to stop her from talking about her alleged affair with Trump.

2. What is most important for people to understand about this conviction?

It is historic and groundbreaking for a former or future president to be convicted of felonies in the United States. There will be debate, and people will have to judge whether this prosecution is an example of the principle that no person is above the law, or whether this is an example of political persecution.

As a technical legal matter, this conviction has a significant effect on all of Trump’s other criminal and civil cases . At a minimum, it means that if Trump takes the stand to testify in any case, opposing lawyers will be able to attack his credibility with this conviction. Lawyers can argue that any witness with a felony conviction might well be lying.

Practically speaking, this verdict also means that Trump – who is registered to vote in Florida – cannot vote there until completion of his sentence , although there are many variables that could affect his ability to vote and legal experts appear somewhat divided on the question. Under federal law, he cannot possess a firearm. But he can still run for president and serve in office, because nothing in the Constitution disqualifies people with convictions – or who are in prison – from running for, or serving as, president.

3. What can we know, if anything, about what his sentence might look like?

New York judge Juan Merchan will decide the sentence alone, without a jury.

It is not surprising that sentencing has been set for July, rather than sooner. As in other cases, the probation office will prepare a report that lays out Trump’s background and history, and the facts and circumstances of this case. Trump has no criminal record, which is generally a favorable sentencing factor. On the other hand, he does have negative results from lawsuits, including a civil finding in 2023 that determined he committed sexual assault . One issue to look out for is whether the prosecution or the probation department argues that Trump’s other criminal charges and civil cases should be considered in sentencing.

One sentencing factor which sometimes comes into play is lack of remorse; it is often a reason judges impose a more severe sentence. It certainly does not seem that Trump has in any way acknowledged that he did something regrettable, or committed a crime. Trump’s violation of the gag orders in this case, which the judge has already punished him for, could also be a factor used to argue for or impose a higher sentence.

4. Given this verdict, is it likely that Trump will serve time in prison?

The offense of falsifying business records is deemed a “Class E” felony in New York state – and each felony has a potential sentence of up to four years. Probation is available instead of incarceration, or probation plus a short term of incarceration. Sentences may be imposed concurrently or consecutively, so theoretically Trump could get a sentence of 136 years if maximum sentences on all counts are imposed consecutively. But, while the sentence is up to the judge, based on past practice it is reasonable to speculate that Trump will not be sentenced to a long prison term, and may well receive no incarceration time at all.

A not-guilty verdict would have been final because of the Constitution’s prohibition against double jeopardy – meaning a person cannot be convicted, acquitted or punished more than once for the same offense.

This conviction will undoubtedly be challenged for years, and the appeals process could have at least two chances to get to the U.S. Supreme Court. Whether this case was appropriately tried in state court will also be an issue – federal authority over federal elections and election crimes is likely to be examined on appeal.

In other words, this case is not over by a long shot. It is likely that even were Trump sentenced to incarceration, he would be allowed to remain free, pending appeal. This practice is not uncommon in complex and high-profile cases, at least where there are reasonable legal claims of error.

5. What made the evidence so strong in this case that it persuaded jurors?

It is in part the breadth of the New York law which, unlike the law in many states, criminalizes falsifying internal business records even when they are private and not used to cheat the tax system or defraud anyone. But even in New York, generally falsifying private business records is a misdemeanor. It becomes a felony only if, as the jury found here, the actions are used to cover up or conceal a crime.

In this case, the jury may well have been persuaded by the prosecution’s argument that the crime covered up was essentially a scheme to defraud the American people by concealing information about the character and conduct of a presidential candidate.

Because Trump was alleged to have deceived voters, perhaps the jury was unwilling to simply shrug this off as business as usual. Another factor is the remarkable investigation that went into preparing this case. The prosecution had so many witnesses and documents that it could tell the story in highly specific detail.

This story was updated on May 31, 2024, to include more details about Trump’s ability to vote.

• US Supreme Court
• Donald Trump
• Stormy Daniels
• Michael Cohen
• Election interference
• Election fraud
• Alvin Bragg
• Business fraud
• Donald Trump indictment
• 2024 presidential race
• Trump conviction

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What does the law say about a coalition government in SA?

A s we brace for our first coalition government in South Africa since the end of apartheid, it’s worth noting what the law states, versus the potential backroom negotiations that are already underway. Given that no party received an outright majority, the horse trading is no doubt in full swing.

As President Cyril Ramaphosa so eloquently stated in his address at the IEC results announcement on Sunday 2 June 2024, “ South Africa’s democracy is strong. ” Would you expect anything less from the nation that has twelve official languages and three capital cities?

COALITION GOVERNMENT IN SOUTH AFRICA

Nevertheless, try as they might to form a coalition government in South Africa that favours themselves, the political parties are bound by law. According to  Business Tech ,  Section 51.1 of the Constitution  says that the first sitting of the National Assembly (NA) must take place at a time and date determined by the President of the Constitutional Court.

However, this cannot be more than  14 days  after the election result has been declared. So, that’s  Tuesday 18 June , following the Youth Day public holiday. Negotiations over a coalition government in South Africa will centre around choosing a President, Speaker and Deputy Speaker of the NA. This will be presided over by the Chief Justice.

SOUTH AFRICAN PRESIDENT ELECT

From there, key Cabinet positions and NA committee member appointments are decided by the President. Of course, where this gets tricky is over the raging ideological and political battles between each party. Plus, having just 14 days within which to reach these agreements. Section 86.1 of the Constitution states, “At its first sitting after the election, the NA must elect a member to be President. Only a sworn-in member of parliament (MP) can be elected.”

HOW WILL THIS WORK?

• Firstly, Presidential candidates are nominated. Nominees need at least two signatures from NA members.
• If there is only one nominee, that person is automatically elected as President.
• In the case of multiple nominees (with two signatures), a secret ballot occurs and the candidate with the majority wins.
• If there is no majority, the lowest vote-getter is eliminated, and voting repeats until a majority winner emerges.
• If two candidates tie and there is no majority, a new meeting is held within  seven days  for a revote.
• When the President is finally elected, there is an inauguration within  five days .

Following the President’s election, they will then appoint their Deputy President, Ministers, Deputies and Cabinet. The Deputy President is required to be a Member of Parliament (MP), and two ministers may be selected from outside the NA.

Let’s hope that the politicians put Mzansi first as they are forced to engage with each other across the negotiation table. We’ll see how strong our democracy truly is.

The post What does the law say about a coalition government in SA? appeared first on SAPeople - Worldwide South African News .

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Emerging Portrait of Judge in Trump Documents Case: Prepared, Prickly and Slow

Judge Aileen Cannon’s handling of court hearings offers insights into how the case accusing Donald Trump of illegally retaining classified material has become bogged down in unresolved issues.

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By Alan Feuer

Alan Feuer has regularly attended the proceedings in Judge Aileen M. Cannon’s courtroom in Fort Pierce, Fla.

A few months ago, a top prosecutor on former President Donald J. Trump’s classified documents case stood up in court and told Judge Aileen M. Cannon that he was concerned about the pace of the proceeding, gingerly expressing his desire to keep the matter “moving along.”

Almost instantly, Judge Cannon got defensive.

“I can assure you that in the background there is a great deal of judicial work going on,” she snapped. “So while it may not appear on the surface that anything is happening, there is a ton of work being done.”

In some sense, Judge Cannon had a point. Much of what judges do unfolds out of sight in the sanctity of their chambers.

But at seven public hearings over more than 10 months, Judge Cannon has left an increasingly detailed record of her decision-making skills and judicial temperament.

The portrait that has emerged so far is that of an industrious but inexperienced and often insecure judge whose reluctance to rule decisively even on minor matters has permitted one of the country’s most important criminal cases to become bogged down in a logjam of unresolved issues .

She rarely issues rulings that explain her thinking in a way that might reveal her legal influences or any guiding philosophy. And that has made the hearings, which have taken place in Federal District Court in Fort Pierce, Fla., all the more important in assessing her management of the case.

Regardless of her motives, Judge Cannon has effectively imperiled the future of a criminal prosecution that once seemed the most straightforward of the four Mr. Trump is facing.

She has largely accomplished this by granting a serious hearing to almost every issue — no matter how far-fetched — that Mr. Trump’s lawyers have raised, playing directly into the former president’s strategy of delaying the case from reaching trial.

It appears increasingly likely that the documents case will not go to a jury before Election Day, and that the only trial that Mr. Trump will face this year will be the one now ending in Manhattan, where jurors are expected to begin deliberating on Wednesday over whether he falsified business records in connection with hush money payments to a porn star.

Still, the next few weeks will bring Judge Cannon’s handling of the case in Florida into even sharper focus.

She may soon rule on a request by Jack Smith, the special counsel overseeing the two federal prosecutions of the former president, to bar Mr. Trump from making public statements that could endanger federal agents working on the documents case. That move, which the judge denied this week on procedural grounds , came in response to the former president’s baseless assertion that the F.B.I. was authorized to use deadly force against him during the search two years ago of Mar-a-Lago, his private club and residence in Florida.

After a hearing in June, Judge Cannon will also have to make a significant decision on whether to give Mr. Trump’s lawyers access to communications between Mr. Smith’s team and top national security officials. The lawyers made that request hoping to bolster their contention that the so-called deep state colluded with the Biden administration to bring the charges.

A former federal prosecutor, Judge Cannon graduated from Duke University and the University of Michigan’s law school, where she joined the conservative Federalist Society. She was nominated to the federal bench by Mr. Trump during his final months in office and was confirmed by the Senate just days after he was declared the loser of the 2020 election.

She was already under scrutiny when she got the classified documents case last June because of a decision she made well before the indictment was filed. That ruling , which shut down the investigation into Mr. Trump until an independent arbiter sorted through reams of materials seized from Mar-a-Lago, was so legally dubious that the appeals court sitting over her reversed it in unusually scathing terms.

Since then, Judge Cannon has shown little of her human side in court, taking a businesslike approach to the proceedings, which always begin the same way.

Invariably entering her courtroom on time, she first admonishes those in the gallery not to use electronic devices and reminds them of her rule forbidding getting up while a hearing is in progress. She then lays out the issues at hand and recounts the documents she has received that will inform the conversation.

Even though she has been on the bench for only four years and has limited experience handling criminal cases, it is often clear that Judge Cannon has done her homework.

In mid-March, for instance, she was discussing the key elements of the Espionage Act with Emil Bove, one of Mr. Trump’s lawyers and an expert on classified information cases. At one point, she pushed back at Mr. Bove’s contention that a section of the act requiring “national defense information” to be present in any documents charged in an indictment was so vaguely written that it was essentially unenforceable.

“There has been a fair amount of litigation, I think, on the defense information prong,” Judge Cannon said. “So it would be hard to say, based on the current state of decisional authority, that that prong, in and of itself, is unconstitutionally vague.”

Even though it meant that he had lost the point, Mr. Bove had to agree.

“I can’t fight with the way that Your Honor phrased that,” he said.

That exchange, however, was a far cry from one that occurred last week when Judge Cannon was debating with Jay Bratt, one of the prosecutors, about a common theory of legal liability called the Pinkerton rule. The rule holds that all members of a conspiracy can be held accountable for any crimes committed by their co-conspirators.

Mr. Bratt said the rule would likely apply to Mr. Trump’s dealings with his two co-defendants, Walt Nauta and Carlos De Oliveira, employees of Mar-a-Lago who have been accused of conspiring with the former president to obstruct the government’s repeated efforts to retrieve the classified materials.

Judge Cannon seemed a bit perplexed and asked Mr. Bratt what authority he intended to rely on in applying the Pinkerton rule. Mr. Bratt seemed almost sheepish in having to lay things out for her so simply.

“So the authority is Pinkerton,” he said, and launched into a quick explanation.

One of Judge Cannon’s most enduring habits is her tendency to ask the same question several times. It is never quite clear if she does not understand the answers she is receiving or is trying to push back against them.

At last week’s hearing, she did this to Stanley Woodward Jr., Mr. Nauta’s lawyer, as she considered his request to order prosecutors to provide him with internal communications that could help support his claims that the case against his client had been brought vindictively.

The communications Mr. Woodward was looking for concerned a meeting he attended at the Justice Department nearly two years ago where, he claims, Mr. Bratt threatened to derail a judgeship he had applied for if he did not prevail on Mr. Nauta to cooperate against Mr. Trump.

When Judge Cannon asked Mr. Woodward what he actually wanted from the government, his answer seemed simple enough: any messages exchanged by prosecutors that mentioned his name. The judge then asked a second time, telling Mr. Woodward to give it to her “slowly.”

But even after that, it seemed that she was still a bit confused.

“All right,” she said, this time referring to notes she had taken. “So I understand your request. It’s, quote, ‘All documents, communications concerning Mr. Woodward.’”

Something similar happened moments later when Judge Cannon turned to David Harbach, one of the prosecutors, to discuss Mr. Woodward’s request.

Mr. Harbach had just spent the better part of five minutes telling the judge that Mr. Woodward’s claims of misconduct were a “fantasy” and that, under the law, he was not entitled to rummage around in the government’s private messages.

But Judge Cannon seemed to miss his point, asking Mr. Harbach if he was suggesting that prosecutors did not have any of the messages that Mr. Woodward wanted. No, he told her, explaining again that Mr. Woodward had failed to present any evidence that would even merit turning over what he wanted.

“So I guess what you are saying is you’re not sure?” she asked.

No, Mr. Harbach said for a third time, once more trying to explain that Mr. Woodward’s description of the meeting in August 2022 was entirely false and that the normal legal threshold for handing over private communications had simply not been reached.

“I know you disagree with the factual recitation of the August meeting,” Judge Cannon said. “But would that provide a basis for the discovery request?”

Now clearly frustrated, Mr. Harbach said as plainly as he could that Mr. Woodward’s request had no basis in either fact or law.

“This is what I’m trying to tell you,” he all but shouted at the judge.

That discussion ultimately ended with Judge Cannon telling Mr. Harbach he needed to “calm down.” It was emblematic of the dwindling reserves of patience between Judge Cannon and the prosecutors.

In October, for example, Judge Cannon lashed out at Mr. Harbach at a different hearing about whether Mr. Woodward had a conflict of interest in the case. The question revolved around the fact that Mr. Woodward was representing Mr. Nauta, one of the defendants, and had formerly represented a man likely to testify for the government at trial.

When Mr. Harbach expressed concern that Mr. Woodward might have to cross-examine a former client — a situation that could easily lead to a conflict — Judge Cannon chided him for having failed to mention that possibility in his written filings submitted before the hearing.

Citing Mr. Harbach’s “last-minute introduction of an issue that was not briefed,” she abruptly ended the hearing and assailed the prosecution for “wasting the court’s time.”

But she acted very differently at the hearing last week when Mr. Woodward made several arguments about his claims of vindictive prosecution that had never appeared in any of his filings. Judge Cannon hardly seemed to notice that he had wandered from his script, let alone rebuke him.

There is one subject the defense loves to talk about that always seems to set Judge Cannon on edge: Mr. Trump’s presidential campaign. While she has allowed his lawyers leeway in using their briefings to make political arguments, she has repeatedly shut them down when they have tried to raise the subject of politics in court.

In early March, Mr. Bove began an argument on a highly technical legal issue by complaining that Mr. Trump should not have been in court at all that day, but instead should have been out campaigning.

Apparently annoyed, Judge Cannon cut him off.

“OK, OK,” she said. “Can we talk about the actual legal issues?”

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

Our Coverage of the Trump Documents Case

The justice department has filed federal criminal charges against former president donald trump over his mishandling of classified documents..

The Indictment: Federal prosecutors said that Trump put national security secrets at risk  by mishandling classified documents and schemed to block the government from reclaiming the material. Here’s a look at the evidence .

The Co-Defendants: While Trump plays the leading role in the case, the narrative as laid out by prosecutors relies heavily on supporting characters  like Carlos De Oliveira  and Walt Nauta .

Obstruction: The Mueller report raised questions about whether Trump had obstructed the inquiry into the ties between the former president’s 2016 campaign and Russia. With prosecutors adding new charges  in the documents case, the subject is back .

The Judge: Judge Aileen Cannon , a Trump appointee who showed favor to the former president earlier in the investigation, has scant experience  running criminal trials. Can she prove her critics wrong ?

A Slow Pace: Cannon has allowed unresolved issues to build up on her docket, and that appears to have kept her from making a prompt decision on the timing of the case. It is one of several factors that have stirred concern about her decision-making .

Q&A on Trump’s Criminal Conviction

By Robert Farley , D'Angelo Gore , Lori Robertson and Eugene Kiely

Posted on May 31, 2024

Este artículo estará disponible en español en El Tiempo Latino .

Donald Trump became the first U.S. president, current or former, to be convicted of a criminal offense when a 12-person jury in New York on May 30 found him guilty on 34 felony counts of business fraud as part of an illegal scheme to influence the 2016 election by making payments to suppress a sordid tale of sex with a porn star.

The unprecedented conviction raises questions about what’s next for the 77-year-old man who is in line to become the Republican Party’s nominee for president in 2024.

In remarks at Trump Tower a day after his conviction, Trump called the United States “ a corrupt country ” and declared that he would be “ appealing this scam .”

(Trump also repeated many of the false, misleading and unsupported claims he has made about the judge, the judge’s rulings, the district attorney and other issues related to the trial. For more about Trump’s talking points, see our May 30 article, “ Trump’s Repeated Claims on His New York Hush Money Trial .” He also repeated false and unsubstantiated claims on other issues, such as taxes and migrants .)

Here, we answer some of the questions raised by the former president’s conviction:

What are the next steps in the case? What punishment could Trump face? Will he go to prison? Can Trump vote in the 2024 election? Can a felon run for president, hold office? Can Trump pardon himself on this conviction, if he wins?

What are the next steps in the case?

Sentencing and an appeal are up next in this case.

Sentencing by Justice Juan Merchan is scheduled for July 11. Before that date, a probation officer or someone in that department will interview Trump, and potentially others involved in the case or connected to Trump, and prepare  a pre-sentence report  for the judge. The report includes the personal history and criminal record of the defendant, and it recommends what sentence the defendant should receive, according to the New York State Unified Court System.

“The pre-sentence interview is a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment,” the state court system explains.

Trump’s lawyers have to wait until after the sentencing to appeal the conviction. First, Trump’s lawyers will file motions before the judge “in a couple weeks” saying why they found the trial to be “unfair,” Trump’s defense attorney Todd Blanche  told CNN  hours after the guilty verdict.

Cheryl Bader , a clinical associate professor of law at Fordham University School of Law, said these motions are typical when a defendant is convicted. The defense attorneys will ask the judge to overturn the jury’s conviction. “It’s rarely, rarely granted, and I don’t think there’s a chance that will happen in this case,” she told us in a phone interview.

Blanche told CNN that if the motions aren’t successful, “then as soon as we can appeal, we will. And the process in New York is there’s a sentencing, and then — and then we appeal from there.”

Bader, a former assistant U.S. attorney for the District of New Jersey, walked us through the appeals process. “The case is considered completed at sentencing,” she said. “At that point, his lawyers file a notice of appeal … letting the court know that he intends to appeal.”

At that point, they will also request a “stay” on the sentence, meaning a pause on imposing the sentence while the case is being appealed.

This appeal goes to the  Appellate Division, First Judicial Department  in Manhattan. The appeals court doesn’t retry the case. “They’re not going to substitute their judgment on the facts for the jury’s judgment,” Bader explained. Instead, “they’re looking for where there was error that would have led to an improper prosecution or an unfair trial.”

The appeals process would take several months to a year, she said. After the notice of appeal is given, the record of the case is gathered, including trial transcripts, the indictment, pretrial motions, evidentiary rulings, jury selection and instructions, and more. Trump could also appeal the sentencing. The lawyers need to write their arguments for all of the issues they’re objecting to, and that takes time, Bader said.

And then the appeals court needs to consider the case and write a decision on it.

If Trump ultimately isn’t successful at the appellate level, he can appeal to the highest court in New York state, which is called the  Court of Appeals . But the court decides whether or not it takes the case.

After such an appeal to the highest state court, the case would be over — unless Trump tries to appeal to the U.S. Supreme Court. But there has to be a U.S. constitutional issue for that. “I don’t see one,” Bader said, but perhaps Trump’s lawyers would try to make an argument.

What punishment could Trump face? Will he go to prison?

Whether Trump is sentenced to any time in prison is up to the judge.

Each of the 34 counts of  falsifying business records in the first degree , a class E felony, carries a maximum sentence of up to  four years in prison . The judge could decide to impose the sentences consecutively or simultaneously. However, under New York law,  20 years  is the maximum prison time that Trump could get — not 187 years, as Trump  falsely claimed  in his May 31 remarks.

Norman Eisen , a CNN legal analyst and a senior fellow in governance studies for the Brookings Institution, said that “in the most serious” cases of business records falsification in New York that he studied, “a sentence of imprisonment was routinely imposed.” Trump’s case “is the most serious one in NY history,”  he wrote  on X, predicting that Manhattan District Attorney Alvin “Bragg will likely ask for incarceration & Merchan will consider it.”

While possible, Bader, with Fordham’s School of Law, told us she doesn’t think incarceration will happen.

For a first-time convicted felon, with a low-level, nonviolent felony and a person of advanced age, “under any circumstance like that, there’d be a relatively low chance of incarceration,” she said.

“On the other hand, I could see the prosecutor arguing that here’s a man who has shown disrespect for the court system and the rule of law and has violated the court’s orders on numerous occasions. He is not remorseful. And that in order to promote general deterrence, he needs to be punished,” she said in describing a possible argument from the prosecutor.

Bader said any incarceration sentence “would be only a token amount of time to make the point that Trump is not above the law.” Other sentencing possibilities include probation or a “conditional discharge” with conditions other than incarceration or probation.

The “simplest” option might be for the judge to fine Trump, she said.

Can Trump vote in the 2024 election?

Yes, Trump can vote as long as he is not in jail on Election Day, which this year is on Nov. 5.

Trump owns homes in New York and Florida, but in 2019 he changed his primary residence to Florida. However, Florida law does not apply in Trump’s case because he was convicted in New York. Instead, New York law applies.

“If you were convicted outside Florida, your voting rights are governed by the state where you were convicted,” as the American Civil Liberties Union of Florida explains on its website.

In 2021, New York state enacted a law that “restores the right to vote for a person convicted of a felony upon release from incarceration, regardless of if they are on parole or have a term of post-release supervision,” the New York State Board of Elections says . “If a convicted felon is not incarcerated, they are eligible to register to vote.”

Can a felon run for president, hold office?

Yes. According to Article II, Section 1, Clause 5 of the U.S. Constitution, there are three qualifications to serve as president: He or she must be at least 35 years old upon taking office, a U.S. resident for at least 14 years and a “natural born Citizen, or a Citizen of the United States.”

“These qualifications are understood to be exclusive,” Josh Chafetz , a Georgetown University law professor, told us last year when we were writing about Trump’s federal indictment related to allegations of mishandling sensitive classified documents after he left office. “Anyone can be president so long as they meet the constitutional qualifications and do not trigger any constitutional disqualifications.”

“Someone can run for president while under indictment or even having been convicted and serving prison time,” said Chafetz, who pointed to the example of Eugene V. Debs, the late labor leader, who, in 1920, ran for president from prison on the Socialist Party ticket and got almost 1 million votes.

There is an exception to that rule. The Constitution says in Section 3 of the 14th Amendment that no U.S. officeholder, including the president, can serve if they are convicted of “engag[ing] in insurrection or rebellion” against the U.S. — something Trump has not been charged with either in this case or the three others he faces.

Six Colorado voters successfully sued in state court to prevent Trump from appearing on that state’s ballot, citing the constitutional amendment barring insurrectionists from holding federal office. But the U.S. Supreme Court reversed the state ruling, “[b]ecause the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.”

Can Trump pardon himself on this conviction, if he wins?

The short answer is no.

Trump was convicted in New York for offenses in violation of state law. Article II, Section 2 of the U.S. Constitution states that a president has the “[p]ower to grant reprieves and pardons for offences against the United States.” According to Constitution Annotated , a government-sanctioned record of the interpretations of the Constitution, that means the power extends to “federal crimes but not state or civil wrongs.”

In a case decided in 1925, Ex parte Grossman , the U.S. Supreme Court confirmed that interpretation, writing that the Constitution’s language specifying presidential pardon power for offenses “against the United States” was “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the States.”

The New York governor has the power to pardon Trump for his conviction of crimes under state law. That’s currently Gov. Kathy Hochul, a Democrat. After the verdict, Republican Rep. Nick LaLota called on Hochul “to immediately announce her intention to pardon President Trump and pre-emptively commute any sentence. To not do so is to allow America to become a banana republic.” Hochul released a statement on May 30 saying, “Today’s verdict reaffirms that no one is above the law.”

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