new amendment assignment

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Amending the Constitution

Clp current event: september 11, 2018.

Celebrate Constitution Day with a look at the process of creating and amending the U.S. Constitution using this week’s CLP Current Event. 

I n thinking about the Constitution, the process of creating it and amending it demonstrates that democracy is a creative struggle. Looking at the words of the Preamble as our goals, the “how” becomes important and challenging.

Brought to teachers by Susie Marcus, CLP consultant, with CLP staff.

News Sources

Think the U.S Constitution ‘Subverts Democracy’? Think Again , by Tom Lindsay, Forbes , August 28, 2018 “Ensuring passage of all amendments by nationally distributed majorities was deemed by the Founders to be indispensable to guaranteeing that ‘no amendment could be passed simply with the support of the few states or sections sufficiently numerous to provide a bare majority.’ The Founders hoped and believed that it ‘would be difficult for such a national majority to form or become effective save for the decent purposes that could command national agreement.’”

Proposed amendments to the U.S. Constitution seldom go anywhere , by Drew DeSilver, Pew Research Center , April 12, 2018 “Since 1999, in fact, 134 separate balanced-budget amendments have been formally introduced in either the House or Senate, making it the single most popular subject of amendment proposals over that timespan, according to our analysis of legislative data from the  Library of Congress .”

The U.S. Constitution Is Very Hard to Amend , by Jay Cost, National Review , April 2, 2018 “This means in turn that our system has a very high ‘status quo bias.’ When the people cannot agree on a change, things remain as they are. This is the main reason the Constitution has so rarely been amended, and that many of the amendments were relatively minor procedural tweaks. There were only three moments of big changes: the Bill of Rights, adopted at the behest of the state ratifying conventions; the Civil War amendments; the Progressive Era amendments. All three instances were points of crisis in the body politic that created a sufficiently broad majority to make big changes.”

The U.S. Constitution: Time for an update? , by Brian Dickerson, Detroit Free Press , March 31, 2018 “In “The Crisis of the Middle Class Constitution,” Vanderbuilt University law professor Ganash Sitaraman argues that the constitution was written by and for Americans who assumed they and their fellow citizens ‘would remain relatively equal economically,’ unlike the nobility and commoners they had left behind in the Old World. So the Framers, who were so careful about providing checks and balances to prevent dominance by one region or branch of government, neglected to provide ‘constitutional structures to manage the clash between the wealthy and everyone else.’” CLP: Opinion

Don’s Thoughts: The pros and cons of a constitutional convention , by Donald A. Loucks, Statesman , October 9, 2014 “So, what to do about a constitutional republic like the United States? We hear our country referred to as a ‘Democracy’ all the time in the news media. When was the last time you heard it referred to as a Republic? That’s my point. We no longer know any better.”

The U.S. Constitution Is Impossible to Amend , by Eric Posner, Slate , May 5, 2014 “In the 220-plus years since ratification of the Constitution, more than 11,000 amendments have been proposed, but only 27 have been enacted. The first 10 amendments were added immediately to appease critics of the Constitution during the ratification debates. The three critical post–Civil War amendments (13th, 14th, and 15th), which expanded individual rights, are also a special case because the Southern states were coerced into ratifying them. From 1870 to today, only 12 amendments have been enacted.”

Questions to Consider

• What does the Constitution mean in 2018?
• What does “amend” mean? Which verb would you choose to enhance the meaning of amend?
• Should the amending process be altered to encourage change?
• Is it dangerous to amend the Constitution? Is it necessary to amend the Constitution?
• Do we need to use the amendment process to improve representative democracy in 2018?
• Why did the Framers make immediate changes to the Constitution known as the Bill of Rights?
• Why did the Framers make it difficult to change the Constitution?
• What amendments have been added to the Constitution? Which amendments changed the course of our history?
• Why is the 14th amendment considered a landmark amendment?
• What was the last Amendment to the Constitution (1992)? Do events or issues require us to think about additional amendments ?
• Which amendment would you choose as the most important?
• What new amendment would you propose to add?
• Why is the Oregon Constitution easier to amend than the federal Constitution? Are there concerns that it is too easy to amend? How do multiple amendments affect the body of a Constitution?

Background and More

Amendments 11-27 , Bill of Rights Institute

Think the Constitution Will Save Us? Think Again , by Meagan Day and Bhaskar Sunkara, The New York Times , August 9, 2018 “But it’s a problem worth confronting. As long as we think of our Constitution as a sacred document, instead of an outdated relic, we’ll have to deal with its anti-democratic consequences.” CLP: Opinion

How James Madison Saved the Constitution This Month by Writing the Bill of Rights , by David Azerrad, PhD, The Heritage Foundation , December 28, 2016 “By rechanneling public opposition to the Constitution into acceptance for a Bill of Rights, he staved off the Anti-Federalist attempts to rewrite the Constitution. Madison is therefore rightly viewed as both the father of Constitution and the father of the Bill of Rights.”

Sixteen Good, Bad, and Insane Ideas for a Twenty-Eighth Amendment to the Constitution , by Richard Morgan, The New Republic , August 22, 2013 “Most ideas for new amendments fall into one of two categories: either political amendments, which seek to settle hot-button issues like gay marriage and abortion; or procedural amendments, which seek to change how we practice politics in the United States.” CLP: Interesting historical take on how and need to amend the Constitution

The top 10 amendments that haven’t made it (yet) , by Dr. Steve Frank, Constitution Daily , October 14, 2010

Speech on Amendments to the Constitution , by James Madison, Teaching American History , June 8, 1789 “Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the constitution of the United States.”

Lesson Plans

Create a New Amendment , Education World CLP: Grades 6-8, 9-12

Constitutional Exchanges , The National Constitution Center CLP: New teaching materials and opportunities to have conversations with other classrooms via videoconferencing.

Interactive Constitution , The National Constitution Center CLP: Lesson plans and link to download interactive tool

Constitutional Amendments for Kids , Mr. Donn CLP: Variety of lessons that cover many grade levels

Constitutional and Legal Connections

Text of 14th Amendment , Laws.com

Fourteenth Amendment to the United States Constitution facts , Kiddle

4 Key Questions About Trump’s and Mueller’s Constitutional Powers , by Fred Lucas, The Daily Signal , June 4, 2018

The constitutional questions: Can Congress stop Trump from firing Mueller , by Joan Biskupic, CNN , April 13, 2018 CLP: Examining separation of powers

Oregon Connections

Constitution of Oregon , Wikipedia

Article XVII, Oregon Constitution , Ballotpedia CLP: Amending the Oregon constitution

Oregon State Social Science Standards

8.8 Evaluate information from a variety of sources and perspectives. 8.14 Explain rights and responsibilities of citizens. 8.18 Examine and analyze important United States documents, including (but not limited to) the Constitution, Bill of Rights, 13th-15th Amendments. 8.21 Analyze important political and ethical values such as freedom, democracy, equality, and justice embodied in documents such as the Declaration of Independence, the United States Constitution, and the Bill of Rights. HS.31 Examine and evaluate documents and decisions related to the Constitution and Supreme Court decisions (e.g., Federalist Papers, Constitution, Marbury v. Madison, Bill of Rights, Constitutional amendments, Declaration of Independence) HS.33 Explain the role of government in various current events. HS.59 Demonstrate the skills and dispositions needed to be a critical consumer of information. HS.60. Analyze an event, issue, problem, or phenomenon from varied or opposing perspectives or points of view.

We the People Lesson Connections

Middle School, Level 2

• Unit 5: How does the Constitution protect our basic rights?
• Unit 6, Lesson 29: What are the rights and responsibilities of citizenship?

High School, Level 3

• Unit 3, Lesson 15: How have amendment and judicial review changed the Constitution?
• Unit 5: What does the Bill of Rights protect?
• Unit 6, Lesson 34: What is the importance of civic engagement to American constitutional democracy?

Amendment Mini-Lesson

Lesson plan.

Looking for an easy and fun way to review individual rights protected in the U.S. Constitution? You have come to the right place! This mini-lesson highlights the Constitution’s amendments and new artwork from one of our fondest games, Do I Have a Right?  It includes anticipation and closing activities and your choice of one or more engaging activity options! Teach your students about some of the most critical additions to our Constitution and how those additions guarantee their rights. 

*NEW* E nglish Language Learner Resources Check out our Amendment Guide en español —an excellent reference tool for native Spanish speakers and bilingual classrooms. Download the file below!

iCivics en español! Student and class materials for this lesson are available in Spanish.

Enjoyed this lesson?  Explore more Constitution Day activities .

Pedagogy Tags

Teacher Resources

Get access to lesson plans, teacher guides, student handouts, and other teaching materials.

• Amendment Mini-Lesson Student Docs.pdf
• Amendment Mini-Lesson Teacher Guide.pdf
• Amendment Guide_English.pdf
• Amendment Guide_Spanish.pdf
• Spanish_Amendment Mini-Lesson Student Docs.pdf

I find the materials so engaging, relevant, and easy to understand – I now use iCivics as a central resource, and use the textbook as a supplemental tool. The games are invaluable for applying the concepts we learn in class. My seniors LOVE iCivics.

Lynna Landry , AP US History & Government / Economics Teacher and Department Chair, California

Related Resources

Accused know your rights.

America's Founding Preambles

Anatomy of the Constitution

AP® U.S. Government and Politics Course

Branches of power.

Changing the Constitution (HS)

Citizenship clause, civil rights act of 1964, comparing constitutions (wa), comparing constitutions: ohio (hs), see how it all fits together.

Amending the Constitution (Appendix A)

Directions:

Read the text of Article V of the Constitution below, then answer the questions that follow.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…

CRITICAL THINKING QUESTIONS

• To “propose” amendments to the Constitution means to suggest them. List one way Congress by itself can propose amendments to the Constitution.
• List one way the states can force Congress to consider amendments to the Constitution.
• Which are more valid—amendments proposed by Congress, or amendments proposed in a convention of the states?
• What fraction of the states must ratify (or approve) amendments before they become part of the Constitution?
• Draw a diagram that illustrates the amendment process.

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 1 and answer the questions that follow.

REFLECTION QUESTIONS

• How democratic is the amendment process in Article V of the U.S. Constitution?
• List some pros and cons for democratic participation in the amendment process. Why do you think the Framers made the amendment process somewhat difficult?
• How would you evaluate the importance of the right of suffrage for those living under this Constitution?

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 2 and answer the questions that follow.

• Consider the types of activities carried out by women like Abigail Adams, Hannah Griffitts, Mercy Otis Warren, and Phillis Wheatley.
• Without the vote, to what extent and in what ways were these women able to influence the U.S. Congress?
• Without the vote, to what extent and in what ways were women able to influence their state legislatures?

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 3 and answer the questions that follow.

• George Washington, who presided over the Constitutional Convention, made clear his understanding that the only way to change the Constitution was to use the amendment method the Constitution itself provided: “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” (Farewell Address, 1796) It seems clear in the 21st century that the way to change the Constitution is by the amendment process, and that proposal of amendments by Congress is more expedient than by a convention of the states. But remember that by 1860 the Constitution was only a couple of generations old. What is more, to that time it had only been amended twice (not counting the Bill of Rights, added in 1791). In what ways does this context help you understand whether reformers in the 1800s would have seen amending the U.S. Constitution as the best way for women to gain political rights?
• How do we know when a constitutional amendment is necessary to correct or revise our constitutional order?

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 4 and answer the questions that follow.

• The United States constitutional system is designed to respect the authority of the people in individual states to make laws that are different from state to state. How does the Constitution’s amendment process illustrate the principle of federalism?

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 5 and answer the questions that follow.

Write a brief reflection in response to this scenario: It is 1900 and you and others have worked for decades to secure the right of women to vote. In recent years, movements toward greater equality and democracy have been stirring. Now, more than ever, you think the vote is within your grasp. The only decision now is how to achieve the vote and to have it last.

• Would the U.S. Constitution’s Article V amendment process seem like the best way forward?
• What pros and cons would you identify for using the amendment process? For example, to what extent would the amendment process create stability for your movement?
• Assuming you thought it was wise to seek a constitutional amendment securing votes for women, which of the amendment processes outlined in Article V would you prefer, and why?

Read the text of Article V of the Constitution below, then consider what you have learned in Lesson 6 and answer the questions that follow.

The Constitution has 25 amendments that are in force today (the 18th enshrined Prohibition, and the 21st repealed it).

• Which amendment do you think did the most to fundamentally change the Constitution? Explain your reasoning.
• Was the change for the better, or for the worse?

Read the text of Article V of the Constitution below, then consider what you have learned in all lessons and answer the questions that follow.

Article V Critical Thinking Questions

Lesson 1 critical thinking questions, lesson 2 critical thinking questions, lesson 3 critical thinking questions, lesson 4 critical thinking questions, lesson 5 critical thinking questions, lesson 6 critical thinking questions.

• Congress can propose amendments to the Constitution if two-thirds of both houses agree.
• Congress can be forced to call a convention to propose amendments to the Constitution if two-thirds of the states officially ask them to.
• They are equally valid.
• Three-quarters of the states.

Lessons 1-6 Reflection Questions

Accept reasoned answers for all.

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The first amendment, constitution 101 resources, 15.1 activity guide: the article v amendment process.

This activity is part of  Module 15: Article V and the 27 Amendments from the Constitution 101 Curriculum.  

It isn’t easy to amend the Constitution. This was by design. The Founding generation wanted constitutional change to be possible, but they wanted to force reformers to secure broad support before altering our nation’s charter.  In this activity, you will learn about the process for amending the Constitution, written into Article V.

Read Article V of the Constitution, then create a flowchart that illustrates the amendment processes using the template attached.  

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What constitutional amendment would you propose?

The U.S. Constitution has 27 amendments. The first 10, the Bill of Rights, were ratified in 1791, and the Constitution has been amended 17 additional times in the past 223 years.

What might a 28th Amendment look like? Answering this question was the assignment for eighth-graders in the Apex program at Decatur Township Middle School.

Apex is the school’s small, interdisciplinary project-based learning community, where students learn through completing specific assignments such as designing a 28th Amendment. The teachers, called “facilitators,” come from all departments and work together to guide the students toward clearly defined goals. Apex is a microcosm of the middle school, incorporating about one-quarter of the student body. After ensuring that the pool of potential students mirrors the school’s basic demographic categories — such as race, sex, special needs, and free and reduced lunch — students are selected randomly by lottery.

Apex is an impressive program on the cutting edge of public education. As one of the facilitators, David Caliguiri told me, “We focus on teaching 21st-century skills like communication, collaboration, creativity, and critical thinking.” According to Suzanne Rothenberg, the district’s director of community outreach, the Metropolitan School District of Decatur Township is the only public school system in Indiana that offers project-based learning at every grade level from one through 12.

Last month I assisted with the eighth-grade Apex project. I met with the facilitators, briefed all 112 students on the Constitution and the amendment process, and then served as one of the “community judges” assessing the oral presentations of the top-12 proposed amendments. Other community judges were state Rep. Justin Moed, City-County Councilwoman Marilyn Pfisterer and Jackie Gantzer of Mayor Greg Ballard’s Office of Education Innovation. Two additional judges came from the Decatur school district: Rothenberg, and Melissa Harvey, Apex director.

Like the judges on “American Idol,” we sat at long tables and took notes as each student, often quite nervously, stood before us and an audience of peers. Assessing both the style and substance of the presentations, we gave constructive feedback on their proposed amendments, the quality of their research, and their poise and oratorical skills.

The 13- and 14-year-olds addressed serious and mature subjects: marriage equality, abortion, gun control, disability rights, tobacco regulation, illegal immigration, and the death penalty. There was no particular ideological pattern to the proposals — they were liberal, conservative and libertarian. One boy advocated an amendment mandating the death penalty for all murderers, while another proposed heavy restrictions on firearms; both were inspired by young people’s concerns about violence. Two amendments restricted or banned abortions; one, proposed by a female student, focused on paternal rights and declared that no abortion could be performed without the consent of the father.

Four of the 12 students proposed constitutional amendments guaranteeing a right to same-sex marriage. They offered passionate arguments for treating gays and lesbians as equal before the law. Two students suggested that same-sex marriage would facilitate more adoptions and two-parent families. One girl told the audience, “I’m uncomfortable saying ‘gay’ people. They’re just people.” Using First Amendment phraseology, one young man proposed that “Congress shall make no law prohibiting marriage based on race, religion or sexual preference.” His amendment included a second sentence declaring that no religious institution could be forced to consecrate a marriage it didn’t approve of, thus making a clear distinction between church and state.

The 8th grade project was supervised by Caliguiri, an English teacher from Long Island, N.Y., and Erin Smith, a social studies teacher from Akron, Ohio. Both in their first year of teaching, they are talented and enthusiastic Apex facilitators. Public schools, and public school teachers, are often unappreciated or even denigrated. But my experiences at Decatur Middle School underscored just how important public education is, and how a caring and committed teacher can be an influence on a young person’s life. As for the students, if some of these thoughtful young Hoosiers go on to become our future leaders, then we’re in good shape.

Atlas is associate professor of political science and director of the Richard G. Lugar Franciscan Center for Global Studies at Marian University.

• assignments basic law

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.

Founded in 1939, our law firm combines the ability to represent clients in domestic or international matters with the personal interaction with clients that is traditional to a long established law firm.

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Second Amendment Roundup: ATF redefines "engaged in the business"

Agency pushes the envelope to require gun dealer licenses beyond the statute..

Stephen Halbrook | 4.19.2024 9:52 PM

ATF's Final Rule Definition of "Engaged in the Business" as a Dealer in Firearms amounts to 466 pages of responses to comments and the final rule itself.  Over 252,000 of the 258,000 comments or 98% in favor of the proposed rule were form letters with identical text found online and recommended by (anti-gun) organizations.  Only 5,140 were not form letters.  Of the 99,000 comments opposed to the rule, 80,000 or 81% were form letters.  That means that 18,810 were not form letters.  So more than three times the numbers of opponents filed comments with actual substance as did those in favor.

The final rule is substantially the same as the proposed rule.  See my previous post "'He's at it again!'  Merrick Garland proposes ever-more intrusive ATF regulations."  A number of points that I (and others) made in comments filed in opposition to the proposed rule were taken seriously enough for ATF to reject at length.

One new item stands out.  The Gun Control Act (GCA) excludes occasional sales and purchases of a "personal collection" of firearms from the term "engaged in the business" of dealing in firearms.  The proposed rule defined "personal collection" to include curios and relics and firearms used in recreational activities.  In response to numerous comments criticizing the proposal for not including firearms used for self-defense, the final rule explicitly states that "the term [personal collection] shall not include firearms accumulated primarily for personal protection." Yet nothing in the statute excludes such firearms from being part of a personal collection.

By purporting to exclude the occasional buying and selling of firearms acquired for self-defense from the "personal collection" category, the rule would render the person more likely to be subject to the licensing requirement.  Yet that category was enacted by the Firearm Owners' Protection Act of 1986, which declared that the rights of citizens … to keep and bear arms under the second amendment to the United States Constitution … require additional legislation to correct existing firearms statutes and enforcement policies."  And the Supreme Court stated in D.C. v. Heller that the Second Amendment protects "arms 'in common use at the time' for lawful purposes like self-defense."

In defining "engaged in the business" as a dealer, the rule states that "there is no minimum threshold number of firearms purchased or sold that triggers the licensing requirement," and that "even a single firearm transaction or offer to engage in a transaction, when combined with other evidence … may require a license."  Sounds pretty vague given that engaging in business of dealing in firearms without a license is a serious felony.

The rule purports to create a presumption in civil and administrative proceedings that one is engaged in the business if one "repetitively resells or offers for resale firearms" within 30 days after purchase, or within a year after purchase if the firearms are "new, or like new in their original packaging" or "the same make and model, or variants thereof."  These are activities in which collectors typically engage – sometimes quickly moving the collection up the ladder with more collectible acquisitions and collecting variations of the same make and model.  Nothing in the GCA imposes such time limits.

The rule also purports to create a presumption in civil and administrative proceedings that "a person has intent to predominantly earn a profit" if the person "posts firearms for resale, including through the Internet" or repetitively rents "a table or space at a gun show," and the list of presumptions "are not exhaustive."  Again, these are activities in which collectors typically engage. And the statute excludes from such "predominant intent to earn a profit" occasional sales to enhance a personal collection.

The rule claims that the above rebuttable presumptions do not apply in criminal cases, but says the opposite by stating that "they may be useful to courts in criminal cases, for example, when instructing juries regarding permissible inferences."  Jury instructions are based on statutory text and judicial opinions, not advocacy by the very agency involved in prosecuting alleged violations.

Many comments argued that the rule violates the Second Amendment.  While dictum in Heller did not question the validity of "laws imposing conditions and qualifications on the commercial sale of arms," the new rule – which is not a "law" – redefines "engaged in the business" to include many private, non-commercial sales.

ATF's commentary includes the following fundamental misunderstanding of Supreme Court precedent: "In response to commenters stating that the Department should not use the Heller two-step process, the Department acknowledges that Bruen abrogated the 'two-step' framework of Heller , as 'one step too many,' and rejected the application of means-end scrutiny at the second step."  But it was lower courts that obstructed Heller , not Heller , that invented the two-step framework.  Relying on text and history, Heller rejected means-ends scrutiny (for which Justice Breyer argued in his dissent), and N.Y. State Rifle & Pistol Ass'n v. Bruen reinforced and expanded on that rejection.

In support of its expansion of the licensing requirement, ATF's response seeks to find historical analogues under Bruen in the wrong places.  In 1794, Congress restricted the export of arms and matériel in order to enhance the arming of America at a time when war with Great Britain threatened.  The colonies restricted arms trade with Indians to reduce the threat from hostile tribes.  Massachusetts enacted a gun proving law.  Various laws concerning gunpowder were enacted to ensure a safe, reliable supply.  None of these laws parallels the "how" and the "why" of the rule's radical expansion of the licensing requirement.

ATF's commentary fails to rebut the comments that the agency lacks delegated authority to promulgate the rule.  In enacting the Gun Control Act in 1968, Congress rejected a provision that would have made it a crime to violate a regulation.  Instead, all GCA offenses are defined in terms of violations of "this chapter," i.e., chapter 44 of 18 U.S.C., the criminal code.  The Firearm Owners' Protection Act of 1986 reduced ATF's regulatory authority by changing the original phrase "such rules and regulations as he [the Secretary] deems reasonably necessary" to "only such rules and regulations as are necessary."  Finally, the delegation by Congress to ATF to promulgate explicit, limited regulations negates the power to adopt expansive, general regulations under the rule expressio unius est exclusio alterius .

The commentary also fails to rebut comments citing Supreme Court precedents such as Thompson/Center Arms v. U.S. holding that both criminal and noncriminal applications of a statute must be interpreted consistently and, if ambiguity exists, interpreted against the government in accord with the rule of lenity.

Finally, on some issues ATF is plainly erroneous but sticks to its error nonetheless.  For instance, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts "returning a firearm or replacement firearm of the same kind and type to a person from whom it was received."   18 U.S.C. § 922(a)(2)(A).  ATF adds the limitation that it may be returned only "for the sole purpose of repair or customizing," which it justifies because the phrase "has long been found in the regulations."  Never admit a mistake, especially if it is longstanding.

"As more persons become licensed under this rule, those licensees will conduct more background checks," as the commentary correctly states.  Indeed, that is its purpose.  Since Congress rejected universal background checks, the Biden Administration decided to do the same by regulation.

This rule on "engaged in the business" is the third major set of new regulations set forth by Attorney General Garland, following those on "frames-or-receivers" and "pistol braces."  They were preceded by the Trump Administration's "bump-stock" rule, which is the subject of Cargill v. Garland , which was argued in the Supreme Court this term.  We'll see whether the Court sets limits on what has become a constant pushing of the envelope of regulatory overreach by the executive branch.

As I posted last week, the Commissioner of the Washington Supreme Court scheduled a hearing on April 17 regarding the stay he issued against the injunction against enforcement of the state's magazine ban that was ruled unconstitutional by the Superior Court for Cowlitz County in State of Washington v. Gator's Custom Guns .  At the hearing , the Commissioner responded to criticism for his issuance of the stay without having time to study the court's 55-page ruling and the state's 32-page motion to stay.  He stated that he received the papers on April 8 at 4:14 pm and issued the stay at 4:58 pm.  He didn't need more time to review the papers because he had done "a lot of research" beforehand and made himself into an expert on the issue; he "anticipated all the arguments the Attorney General would make" and had "boiler plate templates" for the stay order.

Most of the "hearing" consisted of the Commissioner's musings.  A 12-gauge shotgun or a revolver would be good enough for self-defense.  A semiautomatic works fine with 5 or 10 rounds.  Judge Benitez's decision in Duncan v. Bonta holding California's magazine ban violative of the Second Amendment was based on experts who were "snake oil" salesmen.  The arms that pioneers had when Washington was settled were "mind-bogglingly" different than now.  The Commissioner anticipates a decision next week on whether the stay will be made permanent.  Don't hold your breath waiting for it to be lifted.

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C.26 Rapid Mission Design Studies for Mars Sample Return solicits industry proposals to carry out rapid studies of mission designs and mission elements capable of delivering samples collected by the Mars Perseverance rover from the surface of Mars to Earth. NASA recognizes that U.S. industry has innovative ideas and substantial capabilities that may be relevant to a Mars Sample Return campaign. This Rapid Mission Design Studies for Mars Sample Return program element seeks to establish whether there are viable mission designs or mission element options, such as a smaller Mars Ascent Vehicle, to return samples from Mars that offer benefits compared to NASA’s reference mission design. Studies may be for complete mission designs, for mission designs that include elements of NASA’s Mars Sample Return Program or NASA’s Artemis Program as Government Furnished Equipment, or for individual mission elements. The results of these studies may inform revisions to NASA’s Mars Sample Return Program and may result in future procurements. The short URL for this opportunity is: https://go.nasa.gov/rasmsr24 .

ROSES-2024 Amendment 9 adds a new program element to ROSES-2024. No Notices of Intent or Step-1 Proposals are requested. Proposals are due May 17, 2024. Only for-profit U.S. organizations are eligible to submit proposals to this program element, but there are no restrictions on the types of organizations that may participate as subawardees. Awards for studies will be firm-fixed-price 90-day contracts. Proposal content is significantly simplified from ROSES standard proposals. An optional Industry Day / Bidders Conference will be held via WebEx on April 22, 2024, at 1 pm EDT. Find information on how to connect in Section 4.9 “Industry Day / Bidders Conference” in the program element file on the NSPIRES page for C.26 Rapid Mission Design Studies for Mars Sample Return at https://go.nasa.gov/rasmsr24 .

Questions concerning C.26 Rapid Mission Design Studies for Mars Sample Return may be directed to Paul Hertz or Lindsay Hays at [email protected] .

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U.S. Lays Out Protections for Assange if He Is Extradited

American officials sought to reassure the U.K. about Julian Assange’s treatment should the former WikiLeaks founder, who has been indicted by the U.S., be sent there.

By Megan Specia

Reporting from London

The possibility that Julian Assange, the WikiLeaks founder, could be extradited to the United States seemed to edge closer on Tuesday, after American officials sent assurances to British authorities that he would not face the death penalty or be persecuted for his nationality, and that he could seek First Amendment protections.

The assurances were the latest turn in a prolonged legal battle over the extradition of Mr. Assange, who has been indicted by the United States for violating the Espionage Act by publishing classified documents. They came after a remark from President Biden last week that the administration was considering a request from Mr. Assange’s home country of Australia that he be allowed to return there, prompting speculation that the U.S. could be rethinking the case.

But the filing of the commitments, requested by a British court last month as part of Mr. Assange’s five-year battle against extradition to the United States, suggested that American authorities may still be pursuing his removal.

Mr. Assange, 52, was the head of WikiLeaks in 2010 when it published tens of thousands of classified military and diplomatic documents leaked by Chelsea Manning, an Army intelligence analyst. He has been held in a high-security British prison since the charges were filed in 2019. Before that, he had taken refuge for years in the Ecuadorean Embassy in London. The charges raised questions about First Amendment issues , and some saw them as a threat to press freedom.

Mr. Assange’s extradition was put on hold by the court earlier this year pending assurances about his treatment if he were sent to the United States, as the judges sought commitments that he would not be penalized for his nationality, that he would be able to seek protections under the First Amendment and that he would not face the death penalty.

In a letter to the British Foreign Office, the U.S. Embassy in London said that Mr. Assange, who is Australian, “will not be prejudiced by reason of his nationality,” promising that, if he were extradited, he would have the ability to seek “the rights and protections given under the First Amendment.” The Embassy also noted that the death penalty would “neither be sought or imposed” in his case.

After the comments from Mr. Biden, Stella Assange, Mr. Assange’s wife, said that she was hopeful, but that his extradition case had reached a critical moment. But she said on Tuesday that the new assurances sent to the court did little to assuage fears about how her husband would be treated.

“The diplomatic note does nothing to relieve our family’s extreme distress about his future — his grim expectation of spending the rest of his life in isolation in U.S. prison for publishing award-winning journalism,” she said in a statement. “The Biden Administration must drop this dangerous prosecution before it is too late.”

In their ruling last month, the British judges said there would be a hearing on May 20, once the assurances were submitted, to decide if they were “satisfactory,” and to make a final decision on Mr. Assange’s ability to appeal his extradition.

Prime Minister Anthony Albanese of Australia has publicly spoken about discussing Mr. Assange’s case with Mr. Biden and urged him to consider Mr. Assange’s release. The U.S. Department of Justice declined to comment on the latest assurances in Mr. Assange’s case.

Charlie Savage contributed reporting from Washington.

Megan Specia reports on Britain, Ireland and the Ukraine war for The Times. She is based in London. More about Megan Specia