"In general, a tenant cannot waive a right given to him or her by state law and a landlord cannot state conditions that are contrary to landlord-tenant state law."
[California] Civil Code Sec.1953 lists the tenant rights that cannot be waived in a rental agreement or lease. These include the right to statutory notice, as well as the right to habitable premises, restrictions on a landlord's right to enter the premises, and a proper and timely accounting of the security deposit." [general reference to Nolo Press publications on landlords and tenants].
In general, general statements of law or principle are supremely important and of limited utility in concrete cases.
In law, and particularly in constitutional law, we are required to be aware of the level of generality at which we think and speak, because the more generally we state a legal principle, the more likely it is that an exception exists, or will be created to suit a circumstance.
In the example above, from the San Francisco Chronicle, 5-28-05, by Project Sentinel, described as a referral and mediation service in Sunnyvale, CA, I noted the statement, "In general, a tenant cannot waive a right given by state law and a landlord cannot state conditions contrary to landlord tenant state law."
What gave me pause was the realization that one can waive constitutional rights. We do that all the time in criminal law practice, where, in order to secure an advantageous plea bargain, the defendant agrees to plead guilty to a lesser charge in return for a moderate sentence by giving up a trial. That means waiving the right to require the prosecutor to prove each and every element of the crime charged beyond a reasonable doubt to a jury of twelve who must unanimously agree; and further the right to confront and cross-examine, testify or not testify, use the process of the court to secure witnesses, etc. At sentencing in certain cases the defendant typically gives up the fourth amendment right to be free from unreasonable searches and seizures in the day or night of his person, place of residence, and automobile.
About the only constitutional right one cannot waive is the jurisdiction of the court. Notice that I said about. There may be some question about this general statement. The more general the statement, the more likely it is that you will (or someone will) find the example that makes you a liar or a dunce.
Tenants can't waive rights? If criminal defendants can waive constitutional rights, why cannot tenants waive statutory rights? It would take a special law to make those unwaivable. Sure enough, the writer noted that California Civil Code 1953 specifically mandates that certain tenant's rights cannot be waived.
When a case is settled the parties enter an agreement to settle all claims. But suppose after the agreement is signed, the money paid, and the case dismissed as a result, a new claim arises out of the old, settled, cause of action. Can the former plaintiff sue again, claiming that he was unaware that the old injury was going to turn into a fatal illness? State law (Cal. Civil Code 1542) provides that settlement agreements do not cover causes of action where the party did not have notice of their existence at the time of settlement:
California Civil Code ยง 1542.
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
But the person sued would not want to settle if the dearly bought settlement didn't really settle the entire claim. So what does he do? He inserts an express written waiver of CC 1542 into the settlement agreement. There's no provision that says that a party may not waive the protection of this provision, as in the case of the tenant, above.
Going back to the idea of general rules, why are they useful if they seem to be traps for the unwary, in that reliance on the general rule can lead to overlooking the exceptions?
We need the general rule to state rule that puts us in the ball park as to what we're speaking about. Have you ever been in a baseball stadium? What do you see there? Sections, rows, and seats. Getting into the ballpark is only the first step. Now you have to find your seat, which means that first you must find your section and row.
General rules are the ballpark. Finding your seat is hard work. That's what lawyers get paid to do, seating you in your proper seat. We're the ushers in the great legal ballpark. If you don't like your seat, your usher is going to have to see the head usher, the judge, and explain why you should be in the box seats instead of the bleachers. Otherwise you may find yourself out in left field in the bullpen.
Our Constitution contains many clauses, many of which are broadly general. It has been the work of lawyers, judges, and legislators to provide meaning to "equal protection," "due process of law," freedom of speech, press, and religion, "unreasonable" search and seizure, etc.
The document is only 6,000 words in length, approximately, yet we use it to run a country that has grown to almost 300 million people. All laws in this country, from the lowest utility district rules to the city council to the county board to the state legislature to the Congress and all the administrative agencies and the courts themselves must act consistently with the Constitution. That's a pretty neat trick, getting 300 million people and all those lawyers to fall in line, isn't it?
That's what general principles can do for you. They can set up the broad outlines of how we want to be. But then we have to get down to cases, according to the old lawyers' expression, brass tacks, the nitty-gritty, meaning the particular case you're interested in discussing, the one that may put you in jail unless you, meaning your lawyer, comes up with something good. Otherwise you might have to punt and take that plea bargain and settle your case.
That's not the end of the story on general vs. specific, either.
When Thomas Jefferson wrote the stirring words into the Declaration of Independence, promulgated July 4, 1776, that "all men are created equal," there was only one problem. No one really believed it, for it didn't seem to mean what it said.
A negro slave might have thought, "Nice words, but what about me, am I not a person? Am I not equal? If I'm equal, why am I a slave?"
A woman might have asked, "What about me? Am I entitled to own property? To vote? To have custody of my children in case of divorce? To work? To equal pay? Women are still seeking equal pay for equal work, two and a quarter centuries later.
It took a civil war to free the slaves, and the post-Civil War amendments (13, 14, 15) to provide theoretical equality among races, and another century before enabling legislation with teeth succeeded in passing, over vehement opposition. Civil Rights Act of 1964, Voting Rights Act of 1965, and state cognate legislation such as California's Unruh Act, Civil Code Secs. 51, 52.
Those post-Civil War amendments incorporated, in effect, the theory behind Jefferson's words in the Declaration (the Declaration is not enacted law, unlike the Constitution).
Let's say that today you claim something as an important liberty, perhaps something that the Founding Fathers, or Framers, as the 55 delegates who met in Philadelphia in the summer of 1787 to draft a constitution are called, didn't think of. Such as a right to privacy while using the Internet. There was no electronic communication in those days. Electric theory was at the level where Ben Franklin was flying kites in lightning storms, if you believe that story (why didn't he get killed, if it were true?).
The word privacy does not appear in the text of the Constitution. But privacy seems to be protected anyway. The 3rd amendment prohibits the government from housing troops in your home without your permission. That's a privacy protection. The 4th amendment protects you and your home from unreasonable searches and seizures without a warrant. That protects privacy. The 5th amendment protects you from unreasonable interrogation (by making inadmissible evidence obtained thereby). That protects you from speaking against yourself by government compulsion. This protects the privacy of your mind and thought and words. The 9th amendment protects other rights not expressly mentioned but considered to exist despite that lack. Justice Douglas pointed this out in a case called Griswold v. Connecticut (1965), one of the most important cases in Constitutional Law history. Why?
Because it protects liberty.
What is liberty?
Liberty is whatever you are free to do in this country. You are free to live, to eat food, breathe air, drink water, and walk around.
That's ridiculous, you say, breathe air, eat food, and drink water.
Really?
Did Teri Schiavo have a right to eat food and drink water? Wasn't that what she was deprived of?
Just because you take a right for granted doesn't mean it isn't a recognized legal right, or isn't capable of being recognized.
How about the right to engage in sexual relations? Is that in the Constitution? Where, exactly?
I'm waiting...
It isn't.
You would have to read into the words of the document the right to engage in an activity as fundamental as procreative activity.
Into which text would you read the right to procreate? Or to have sex?
How about the Liberty clause of the 14th Amendment, you know, the one that reads, "No state shall deprive any person of life, liberty, or property without due process of law," meaning some sort of a legal hearing?
Okay, you say, procreative activity, being fundamental to life, is a liberty recognized by the Constitution, or should have been, had the Framers thought to put it in.
How about the right to anal sex?
Whoops!
What's procreative about that?
It's not procreative. It's the opposite of procreative.
Is there a right to engage in non-procreative sex?
That's what Lawrence v. Texas was all about, or partly about. It might have also have been about equality as well as liberty, as Justice O'Connor pointed out in her concurring opinion. But for Justice Kennedy and a majority of the Court, the right to engage in intimate relations with the person of your choice in the manner of your choice, assuming consent and no harm, is a liberty protected by the Constitution as a matter of privacy. That's why Griswold is so important as a case, because it is a fountain of other rights.
Maybe you don't want to see a lot of new rights spewing forth from Constitutional Fountain that the Framers didn't specifically enact and the citizens didn't choose to have through the amendment process provided in the Constitution itself.
Well, you get the rights anyway, through judicial decision-making. Opponents call this judicial activism, inventing new rights. First they ask where in the text this alleged new right appears, and when you cannot find it, they say you made it up. Good for the judicial activists. The more new rights the merrier. There's a big battle going on right now over judicial activist judges. Good. We need to let everyone in on the secret, that laws are made by people, and if the lawmakers won't, the judges might. That's why it's important who gets to be a judge on the Supreme Court, because s/he is a legislator in effect, making policy for the nation, in the guise of judicial decision-making, deciding a single case. It's an interesting system.
One of the ways of making a right seem ridiculous (ridiculous means laughable, as in "Ridi..Pagliacci," laugh clown, laugh) is to cast it in graphically specific terms.
For example, in the example above, you probably had no difficulty imagining that the Framers, had they thought it necessary, would easily have included a right to procreate in the text of the Constitution. They would, I assume, have had a lot of trouble guaranteeing a right to engage in homosexual relationships. They probably would have easily included a right to associate with whom you please, as long as it was not a person of the same sex.
So when a case called Bowers v. Hardwick (1987) came up challenging Georgia's statute making it a crime to engage in sexual activity with a same-sex partner, the way the socially conservative justice Byron T. White denigrated the claimed right to be free to associate with whomever and however one wished was by characterizing, intentionally, too specifically. He framed the issue as being whether there was a claimed right to engage sexually with a partner of the same sex. Given the popular prejudices of the day, this was an easy sell to a lot of people, perhaps a majority of Americans.
But over the next seventeen years, leading up to Lawrence v. Texas (2003), something had happened in America. Gay bashing was seen for what it was a crime. Gays were seen as what they were, people. Being suddenly people, they had rights, such as the right to choose with whom they would associate and behave intimately. That's what human rights, equal rights are, the right to be let alone by the neighbors, whether acting individually, as a group, or through government. Privacy, as Justice Brandeis said in Olmstead, is the right to be let alone. The Supreme Court, in Lawrence, told government to mind its own business and leave gays alone, as a matter of liberty. Freedom. Privacy.
Justice Kennedy had posed the question differently in Lawrence than Justice White had in Bowers. In Bowers, White asked whether there was a constitutional right to a specific form of intimacy that helped to define a particularly unpopular class of people in an unpopular way, against whom there had been passed many laws. Justice Kennedy asked a more general question: Do people have the right in America to choose their friends and be intimate in private with them they way they decide, not the neighbors acting through government. Justice Kennedy and his court came up with a different answer than Justice White and his court.
By choosing to frame the issue in a general way, you generally protect civil rights. By choosing to frame the issue in more specific, graphic terms, you can make the right seem ridiculous. This is what comedians, and opponents of newly claimed rights, do. They try to make us laugh by pointing out the seeming ridiculousness that may exist by jumping from the general to the specific, or the specific to the general.
We laugh, of course, at the irony existing among rights when we hold them up next to each other. Sometimes this produces new insights and improvements in law.
In the early days of America, the idea that Negroes had any legal rights, much less Constitutional rights to equality were ridiculous, laughable. Today the opposite is the case. Why? Maybe we've learned something along the way.
You could ask an American at any time in our history whether he believed in equality for all men and he would probably tell you, proudly, yes.
Does that include Negroes? you might ask?
Well, no, not Negroes. They're somehow different.
How about women?
Different.
Gays?
Even more different.
Forget equal rights for those categories of people.
We would proclaim loudly and often ringing rights, such as "justice for all" (in the Pledge), but not mean it where the rubber hits the road, in court, or at work, or in the polling booth, or in a restaurant, park, on a bus, or in a hotel. It took huge civil rights battles to make a change in the way we looked at ourselves and our laws. General rules had to be forced to be applied to specific instances of claimed injustice before the right was recognized. This is the history of the nation. It's why it makes no sense to study Constitutional law in the abstract without having some familiarity with the history that forced the law into being. History is the story of our experience. Unless you know about the civil rights battles against certain ideas, you have no understanding of why certain constitutional law exists. Constitutional law is a reaction against the bad deeds of our past. We don't want to see them happen again, so we build walls of law to keep them out. That's what equal protection, liberty, and due process of law are all about, trying to avoid repeating past mistakes.
As a student of Constitutional Law, how do you think the study should be undertaken? You could read a lot of history, but you'd still have to read a lot of law, i.e. the decided cases. You could read outlines of legal doctrine and cases, but there you'd find no history. Law would be divorced from its roots. So you don't want to start there. What you might choose to do to advantage is to study a judicious selection of history and case-law, and then compose your own outline, which you could compare to some law professor's to see where you agree and disagree. This way you'd cover the bases.