BLACK LETTER OUTLINES Contracts
BLAC KL ETTEROUTLINESContractsby John D. CalamariLate Wilkinson Professor of Law,Fordham UniversityJoseph M. PerilloDistinguished Professor, Emeritus,Fordham UniversityFIFTH EDITIONMat #40834090
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1Capsule Summary I.MUTUAL ASSENT—OFFER AND ACCEPTANCEA.MUTUAL ASSENT1.Objective Theory of ContractsMutual assent is ordinarily arrived at by an offer and acceptance. Under theobjective theory, whether there is assent is determined by asking whether areasonable person in the position of one party would believe that the wordsand conduct of the other party constituted assent. This is usually a questionof fact for the trier of fact. However, if reasonable persons can reach only onereasonable conclusion, it is a question of law for the court.2.Intending Legal ConsequenceThe parties needn’t intend to be legally bound, but if the objective evidencemakes it clear that they do not intend to be bound there is no contract.3.Intent to Formalize AgreementIf the parties reach basic agreement on a transaction but agree that they willnot be bound unless and until they sign a formal agreement, they will not be
2CAPSULE SUMMARYbound until that time. If they intend the future writing to be merely aconvenient memorial of their prior agreement, they are bound whether or notsuch a writing is executed. Intent is often a question of fact.B.OFFER1.What Constitutes an Offer?An offer is a promise to do or to refrain from doing some specified thing inthe future if the offeree will do something in exchange. To amount to an offer,the promise must justify the other party, as a reasonable person, to concludethat his or her assent is invited and will conclude the process of offer andacceptance. It is possible, but very unusual, to have a non-promissory offer.2.What Is a Promise?A promise is a manifestation of intent that gives an assurance (commitment)that a thing will or will not be done.3.Offer Distinguished From Preliminary NegotiationsPreliminary negotiations are any communications prior to an operative offer.Expressions of opinion, statements of intention, hope or desire, inquiries orinvitations to make offers, catalogs, circular letters, invitations to make bids,and price quotations are not offers. An advertisement for the sale of goods isordinarily not an offer. In an auction sale, the bidder is deemed to be theofferor. The situation is more complex in an auction without reserve.4.Distinction Between Offers to Unilateral and Bilateral ContractsAn offer to a unilateral contract asks for a performance; an offer looking to abilateral contract invites a promise. The promise may be expressed in wordsor communicated by conduct. An offer to a unilateral contract may not beaccepted by a promise. Conversely, an offer to a bilateral contract may not,except under an unimportant exception, be accepted by performance. Theofferee does not become bound when starting to perform the act requested byan offer looking to a unilateral contract, but the offeror is bound by an optioncontract.
CAPSULE SUMMARYC.ACCEPTANCE1.Relationship to OfferThe offer creates a power of acceptance. The acceptance creates a contract andterminates the power of revocation that the offeror ordinarily has. Theacceptance must be a voluntary act.2.Acceptance by Authorized PartyAn offer may be accepted only by the person or persons to whom it is made.Thus, the offeree may not transfer (assign) the power of acceptance toanother. But an irrevocable offer may be transferred if the transfer isconsistent with the rules governing the assignment of contracts.3.Knowledge of OfferIf an offer is to a unilateral contract, the offeree must know of the offer inorder to accept. If the offer looks to a bilateral contract, the rule that theofferee must know of the offer may come into conflict with the objectivetheory of contracts. If so, the objective theory prevails.4.Intent to AcceptFor a unilateral contract to arise, the traditional rule is that the offeree mustsubjectively intend to accept. The offer need not, however, be the principalinducement for performing the act. The Restatement (Second) has substituteda more objective test; an intent to accept is presumed unless the offereedisclaims an intent to accept. An offeree to a bilateral contract can accept evenif he or she has no subjective intent to accept; all that is required is anoutward manifestation of intent to contract.5.Necessity for Communication of AcceptanceTo create a bilateral contract, the offeree’s promise must be communicated tothe offeror or the offeror’s agent. However, the offeror may dispense with theneed for communication by manifesting such an intent. At times, a reasonable attempt to communicate is sufficient. (See 11 below).6.Necessity of Notice in Unilateral ContractThere are three views on the issue of whether the offeree must give notice ofperformance to the offeror. (1) Notice is not required unless requested by the3
4CAPSULE SUMMARYoffer. (2) If the offeree has reason to know that the offeror has no adequatemeans of learning of performance with reasonable promptness and certitude,failure to exercise reasonable diligence in giving notice discharges the offerorfrom liability, unless the offeror otherwise learns of performance within areasonable time or the offeror expressly or by implication indicates thatnotification is not necessary. (3) The third view is the same as the second viewexcept that no contract is consummated unless and until notice of performance has been sent. The second view is the prevailing view and is the viewof both the first and second restatements.7.Acceptance of an Offer Looking to a Series of ContractsIf an offer looks to a series of contracts, a contract arises each time the offereeaccepts. As to the future, the offer is revocable unless the offer is irrevocable.Whether an offer looks to one or a series of acceptances is a question to bedetermined under the reasonable person test. Care must be taken todistinguish an offer looking to a series of acceptances from an offer lookingto one acceptance with a number of performances.8.Acceptance by SilenceThe general rule is that silence ordinarily does not give rise to an acceptanceof an offer or a counteroffer. This rule does not apply: (1) Where the offerorhas given the offeree reason to believe silence will act as an acceptance andthe offeree intends by silence to accept; (2) Where the parties have mutuallyagreed that silence will operate as consent; (3) Where there is a course ofdealing so that silence has come to mean assent; (4) Where the offeree acceptsservices with reasonable opportunity to reject them, and should reasonablyunderstand that they are offered with expectation of payment. This illustratesa non-promissory offer.9.Acceptance by Act of DominionAt times, an offeree takes possession of offered goods but indicates that theoffered terms are not acceptable. This conduct constitutes the tort ofconversion—the wrongful act of dominion over the personal property ofanother. Because the conduct could have been rightful and referable to theoffered terms, the offeror has the option to treat the conduct as rightful, suingon a contract theory and estopping the offeree from claiming to be awrongdoer. There is some authority, however, to the effect that this option isnot available if the offered terms are manifestly unreasonable.
CAPSULE SUMMARY10. Unsolicited Sending of GoodsAn exception exists to the exercise-of-dominion rule under legislationproviding that a person who receives unsolicited goods may treat them as agift.11. When Is an Acceptance in a Bilateral Contract Effective (Mailbox Rule)?When the parties are at a distance from one another, is an acceptance effectivewhen put out of the possession of the offeree or when it is received? Thisdepends upon whether the method of acceptance is appropriate or not. If themedium of communication is reasonable, the acceptance will be effectivewhen sent and even if it is lost or delayed. It is likely to be reasonable if it is thesame medium used by the offeror (unless the offeror specified otherwise) orit is customary in similar transactions at the time and place the offer isreceived. However a communication will not be effective when sent if propercare has not been taken in transmitting it (e.g. incorrectly addressed). Underthe Restatement (Second), even if an unreasonable means is used or care isnot taken in transmission, the acceptance nonetheless will be effective whensent, provided it is received within the time a seasonably dispatchedacceptance sent in a reasonable manner would normally have arrived.12. Prescribed Method of AcceptanceIf the offer prescribes an exclusive method of acceptance, no contract arises ifthe offeree utilizes another means of acceptance even if the acceptance comesto the attention of the offeror. This is a qualification of the rules stated above.13. Parties in the Presence of One AnotherContrary to the rule for parties at a distance, when the parties are in thepresence of one another, an acceptance is inoperative unless the offeror hearsor is at fault in not hearing. Even if the offeror is at fault in not hearing, thereis no contract if the offeree knows or has reason to know that the offeror hasnot heard.14. Offeror’s Power to Negate Mailbox RuleAn offeror may negate the mailbox rule by providing in the offer that theacceptance will be effective only when and if received.15. Withdrawal of AcceptanceEven if the offeree is able to regain possession of the letter pursuant to postalregulations, the letter of acceptance is effective.5
6CAPSULE SUMMARY16. When Offeree Sends a Rejection First and Then an AcceptanceAn acceptance dispatched after a rejection has been sent is not effective untilreceived and then only if received prior to the rejection.17. When Offeree Sends Acceptance First but Rejection Is Received BeforeAcceptanceThe usual holding is that a contract is formed, but if the offeror relies on therejection before receiving the acceptance, the offeree will be estopped fromenforcing the agreement.18. Risk of Mistake in Transmission by an IntermediaryThe mistake discussed here is not made by a party or an agent, but by anintermediary; e.g. a telegraph company. Lost messages are governed by themailbox rule and the present discussion has nothing to do with them. Thetopic has to do with a message that is received but is garbled or otherwiseincorrectly transmitted. The majority view is that the message as transmittedis operative unless the other party knows or has reason to know of themistake. The minority view is to the effect that there is no contract if the offeror acceptance is not the message authorized by the party.D.TERMINATION OF REVOCABLE OFFERSA revocable offer may be terminated in a variety of ways.1.Lapse of TimeAn offer is terminated after the lapse of time specified in the offer. Usuallythis time is measured from the time the offer is received. If no time isspecified, the offer is open for a reasonable time.a.Face to Face OfferWhere an offer is made in any situation where there are direct negotiations (e.g. face to face, telephone) the offer is deemed, in the absence ofa manifestation of a contrary intention, to be open only while the partiesare conversing.
CAPSULE SUMMARYb.Termination Upon Happening of a Particular EventIf the offeror stipulates that the offer shall terminate upon the happeningof a certain event and the event occurs before acceptance, the power ofacceptance is terminated.c.Effect of a Late AcceptanceThere are three views with respect to a late acceptance. (1) The lateacceptance is an offer which in turn can be accepted only by acommunicated acceptance. (2) The original offeror may treat the lateacceptance as an acceptance by unilaterally waiving the lateness. (3) Ifthe late acceptance is sent in what could plausibly be considered to be areasonable time, the original offeror has a duty to so inform the offereewithin a reasonable time. Failure to do so creates a contract by silence.2.Death of OfferorIf the offeror dies between the making of the offer and the acceptance, theoffer is terminated even if the offeree is unaware of the offeror’s death. Undera minority view, death terminates the offer only if the offeror is aware of it.3.Incapacity of Offerora.Adjudication of IncapacityWhere there is an adjudication of mental incapacity and the property ofthe offeror is placed under guardianship, any unaccepted offer made bythe offeror is terminated. This is so, according to the majority view, eventhough the offeree is unaware of what has occurred.b.Where There Is No AdjudicationIf there is no adjudication of incompetency, the rule is that superveningmental incapacity in fact terminates the offer if the offeree is or should beaware of the incapacity.4.Death or Incapacity of the OffereeThe death or adjudication of incapacity of the offeree terminates the offer.5.Revocationa.Direct RevocationA communicated revocation terminates the offeree’s power of acceptance and is effective when it is received except in a few states where7
8CAPSULE SUMMARYstatutes provide that it is effective on dispatch. At common law, even ifthe offer says it is irrevocable, it is still revocable unless consideration orthe equivalent is given for the promise of irrevocability.b.Equal PublicationWhen an offer is made to a number of persons whose identity isunknown to the offeror (e.g. a reward offer in a newspaper), the offer canbe revoked by giving equal publication of the revocation as was given tothe offer. Even here, if the offeror knows of the identity of a person whois taking action on the offer, the offeror must communicate the revocation to that person.c.Indirect RevocationIndirect revocation occurs when the offeree acquires reliable informationfrom a third party that the offeror has engaged in conduct that wouldindicate to a reasonable person that the offeror no longer wishes to makethe offer. Information is reliable only if it comes from a reliable sourceand is in fact true.d.Special Rules Relating to the Revocation of an Offer Looking to aUnilateral ContractThere are three views with respect to the revocation of an offer lookingto a unilateral contract. (1) The traditional rule is that the offer can berevoked at any time until the moment of complete performance. (2) Abilateral contract is formed upon the beginning of performance. (3) Theprevailing view is that once the offeree starts to perform, the offerbecomes irrevocable. (An irrevocable offer is synonymous with anoption contract). This rule requires the actual beginning or tender ofperformance and not merely preparation. Extensive preparation forperformance might, however, trigger a finding of promissory estoppel.6.Death or DestructionDeath or destruction of a person or thing essential for the performance of theoffered contract terminates the offer.7.Supervening IllegalityIf, between the making of the offer and the acceptance, a change of law orregulations renders the proposed contract illegal, the offer is terminated.
CAPSULE SUMMARY8.Rejection or Counter–Offera.Common LawAn offeree’s power of acceptance is terminated by a rejection or acounter-offer unless the offeror or the offeree manifests a contraryintention.b.Nature of a Rejection or Counter–OfferA rejection is a statement by the offeree that he or she does not wish toaccept the offer. A rejection is effective when it is received. A counteroffer is a response to the offer that adds qualifications or conditions. Acounter-offer acts as a rejection even if the qualification or conditionrelates to a trivial matter (ribbon matching, or mirror-image, rule). Acounter-offer, in turn, can be accepted.c.Counter–Offer Distinguished From Other CommunicationsA counter-offer must be distinguished from a counter-inquiry, a comment upon the terms, a request for a modification of the offer, anacceptance coupled with a request for a modification of the contract, agrumbling assent that falls short of dissent, an acceptance plus a separateoffer, and a future acceptance. If an acceptance contains a term that is notexpressly stated in the offer but is implied therein there is an acceptanceand not a counter-offer.d.UCC § 2–207This section is designed to negate the mirror image rule in casesinvolving the sale of goods. Under the UCC a definite and seasonableexpression of acceptance . . . operates as an acceptance even though itstates terms additional to or different from those offered, . . . unlessacceptance is expressly made conditional on assent to the additional ordifferent terms. Despite the apparent simplicity of this section, it hascreated quicksand-like divisions of authority.e.Additional TermsIf there is an effective acceptance under UCC § 2–207(1), under UCC§ 2–207(2) additional terms in the acceptance are treated as proposals foraddition to the contract. If the parties are both merchants, the additional9
10CAPSULE SUMMARYterms become part of the contract unless (1) the offer expressly limitsacceptance to the terms of the offer; (2) the additional terms wouldmaterially alter the contract; or (3) the offeror notifies the offeree inadvance or within a reasonable time that he or she objects to theadditional terms. If the either party is a non-merchant, the additionalterms are discarded.f.Different TermsThe UCC does not state a specific rule for different terms so it is difficultto know how they should be treated. A different term is one that clasheswith a term of the offer. The emerging trend is to hold that differentterms knock each other out.g.Conduct of PartiesEven though a contract is not formed by the communications of theparties, a contract may arise by the conduct of the parties undersubsection 3 of UCC § 2–207. In such a case, the terms of the contract arethose upon which the parties agree plus terms incorporated under otherUCC provisions.E.IRREVOCABLE OFFERS—OPTION CONTRACTS1.What Makes an Offer Irrevocable?An offer can be made irrevocable (1) by consideration; (2) by statute; (3)under one of the special rules relating to the revocation of a unilateralcontract (see above); (4) under the doctrine of promissory estoppel (seebelow); and (5) by virtue of a sealed instrument.2.StatuteArticle 2 of the CC empowers an offeror to create an irrevocable offer withoutconsideration. The requisites are: (1) a signed writing; (2) language assuringthat the offer will be held open; (3) the offeror must be a merchant; (4) theperiod of irrevocability may not exceed three months; and (5) if the languageof irrevocability appears on the offeree’s form it must be separately signed bythe offeror.3.Terms Are SynonymousFor the most part, the terms irrevocable offer and option contract aresynonymous. An option contract is an offer that is also binds the offer to acontract that the offer cannot be revoked.
CAPSULE SUMMARY4.Termination of Irrevocable OffersIrrevocable offers are terminated by: (1) lapse of time; (2) death or destructionof a person or thing essential for the performance of the offered contract; or(3) supervening legal prohibition. They are not terminated by: (1) revocation,(2) death or supervening incapacity of the offeror or the offeree, or (3)rejection.5.When Is the Acceptance of an Irrevocable Offer Effective?Contrary to the mailbox rule employed for acceptances of revocable offers, anacceptance of an irrevocable offer is effective when received.F.UCC § 2–2061.IntroductionThis section de-emphasizes the common law distinction between a unilateraland a bilateral contract. It also has made changes in the mailbox rule, the rulethat is referred to as the unilateral contract trick and the rules on the effect ofpart performance.2.Distinction Between a Unilateral and Bilateral ContractIn classic contract law, except in unusual cases, the offer looked either to aunilateral or a bilateral contract. If the offer was unclear as to the manner inwhich it should be accepted, it was presumed that the offer invited a promise.UCC § 2–206 has substituted for this common-law presumption the notionthat in the vast majority of cases the offeror is indifferent as to the manner ofacceptance. This approach is illustrated in subsection (1)(b) which states: anorder or other offer to buy goods for prompt or current shipment shall beconstrued as inviting acceptance by a prompt promise to ship or by promptor current shipment of the goods. The offeror, however, still has to power toclearly insist upon a particular manner of acceptance.3.The Mailbox RuleThe mailbox rule used to state that the acceptance of an offer to a bilateralcontract (e.g., by a letter) is effective when it is put out of the possession ofthe offeree provided it is sent in an authorized manner. The UCC substitutesthe words by any manner reasonable in the circumstances for the wordauthorized. The concept of reasonableness is intended to be more flexible11
12CAPSULE SUMMARYthan the concept of an authorized means of transmission. This provision ofthe UCC has become general law, finding its way into the Restatement(Second) and the case law.4.Beginning of PerformanceUnder UCC § 2–206, where the beginning of performance is a reasonablemode of acceptance, the offeree is bound when the offeree starts to perform,provided that the beginning of performance unambiguously expresses theofferee’s intention to engage himself. Even though the offeree is bound, theofferor is not bound to perform unless notice of beginning performance isgiven within a reasonable time. If timely notice is not given, the offeror, eventhough not bound to perform, may waive the lack of notice and hold theofferee to the contract. The basic notion is that the offeror is not bound unlessnotified, but the offeree is bound on beginning performance.5.Restatement (Second)The Restatement (Second), follows the lead of UCC § 2–206 with somevariations. Section 2–206 relates only to contracts for the sale of goods. TheRestatement (Second) relates to all types of contracts.G.INDEFINITENESS1.Common Lawa.IntroductionEven though the parties have gone through a process of offer andacceptance so that there is mutual assent, the agreement is void if thecontent of their agreement is unduly uncertain.b.RuleThe offer must be so definite as to its material terms or require suchdefinite terms in the acceptance that the promises and the performancesto be rendered by each party are reasonably certain.c.What Are Material Terms?Material terms include subject matter, price, payment terms, quantity,quality, duration, and the work to be done. Given the infinite variety of
CAPSULE SUMMARYcontracts, it is obvious that no precise definition can be stated. Indefiniteness as to an immaterial term is not fatal.d.Reasonable CertaintyTo be reasonably certain, a term need not be set forth with optimalspecificity. It is enough that the agreement is sufficiently explicit so thatthe court can perceive the parties’ respective obligations. What isreasonably certain depends on subject matter, the purposes and relationship of the parties, and the circumstances under which the agreementwas made.e.Types of Indefiniteness Problems(1) Where the parties have purported to agree upon a material term buthave left it indefinite (not reasonably certain) there is no room forimplication and the agreement is void.(2) Where the parties are silent as to a material term or discuss it but donot purport to agree upon it, it is possible that the indefiniteness canbe cured through the use of a gap-filler or from external sourcesincluding standard terms, usage, course of dealing and, according tosome cases, by evidence of subjective intention. A gap-filler is a termsupplied by the court because it thinks that the parties would haveagreed upon this term if it had been brought to their attention, orbecause it is a term which comports with community standards offairness.(3) Where the parties agree to agree as to a material term, under thetraditional rule, the agreement is fatally indefinite and the gapfilling mechanism, discussed above, may not be used. Some of themore modern cases (even without relying on the UCC and theRestatement (Second), discussed below), have abandoned this ruleand some have held that there is a duty to negotiate in good faitheven though there is no such provision in the agreement. The UCCand the Restatement (Second) are generally in accord with themodern view on questions of agreement to agree.(4) Indefiniteness may be cured by the subsequent conduct or agreement of the parties.13
14CAPSULE SUMMARY2.3.Uniform Commercial Codea.IntroductionThe provisions of the Uniform Commercial Code relating to indefiniteness are of two types. There is a very important general provision andthere are provisions relating to specific problems which can be generallycategorized under the heading of gap-fillers.b.Specific Gap–FillersThe Code has specific provisions that supply reasonable terms in variouscircumstances. These include price, time for delivery, place of delivery,shipment, payment, duration of contract, and specification of assortment.c.General ProvisionEven if one or more terms are left open, a contract for sale does not failfor indefiniteness if the parties have intended to make a contract andthere is a reasonably certain basis for giving an appropriate remedy.(UCC § 2–204(3)). The test is not certainty as to what the parties were todo nor as to the exact amount of damages due to the plaintiff. Rather,commercial standards on the issue of indefiniteness are to be applied.d.Discussion of General ProvisionThis provision is designed to prevent, where it is at all possible, acontracting party who is dissatisfied with the bargain from taking refugein the doctrine of indefiniteness to wriggle out of a contract. This sectionis designed to change the traditional common law approaches. Thus, agap-filler would be available even though the parties purported to agreeupon a term or made an agreement to agree with respect to it. But thesection goes beyond gap-fillers and permits a court to use any reasonably certain basis for giving an appropriate remedy.e.Questions of Fact and LawWhether the parties intended to contract is a question of fact. Whetherthere is a reasonably certain basis for giving an appropriate remedy is aquestion of law.Restatement (Second)a.Compared to UCCThe Restatement is in general accord with the Uniform CommercialCode, but Article 2 of the UCC applies only to a contract for the sale of
CAPSULE SUMMARYgoods. (Sometimes it is applied to other types of contracts by analogy.)The Restatement (Second) applies to all types of contracts.b. II.TrendThe trend is toward the rules of the UCC and the Restatement (Second).CONSIDERATION AND ITS EQUIVALENTSA.INTRODUCTION1.What Promises Should Be EnforcedGratuitous promises—promises not supported by consideration—are notenforced, but such promises may be enforced under the doctrine of promissory estoppel or under certain statutes. In addition, in certain instances amoral obligation may make a promise enforceable. A delivered sealedinstrument is enforceable without consideration but this rule has beenchanged in most states by statutes including the UCC.B.CONSIDERATION1.In GeneralFor a promise to be supported by consideration (and therefore be enforceable),two elements must concur. (a) The promisee must suffer legal detriment—that is do or promise to do what the promisee is not legally obligated to do,or refrain from doing or promise to refrain from doing what the promisee islegally privileged to do. (b) The detriment must be bargained for.2.Legal Benefit to PromisorThe rule above is stated in terms of legal detriment incurred by the promisee.Often, however, it is phrased in terms of either legal detriment to thepromisee or legal benefit to the promisor. Because the result is invariably thesame, the discussion here will be in terms of legal detriment.15
16CAPSULE SUMMARY3.Must Detriment Be Suffered by Promisee?Although the rule is stated in terms of a legal detriment suffered by thepromisee, it is nonetheless well settled that it does not matter from whom orto whom the detriment moves so long as it is bargained for and given inexchange for the promise.4.Detriment Must Induce PromiseThe promisor must have manifested an offering state of mind rather than agift making state of mind. If the promisor manifests a gift making state ofmind, any detriment has not induced the promise. Therefore, a promise tomake a gift is not enforceable. Note that the promisor need only exchange thepromise in part for the detriment to be suffered.5.Past ConsiderationPast consideration is not consideration because one does not make anexchange for something that has already occurred.6.MotiveA promisor’s motive in making a promise is not related to the question ofdetriment, but the motive of the promisor in making the promise is relevanton the issue of exchange.7.Adequacy of DetrimentAny detriment no matter how small or how economically inadequate willsupport a promise provided that the detriment is in fact bargained for. Buteconomic inadequacy may constitute some circumstantial evidence of fraud,dur
7. Acceptance of an Offer Looking to a Series of Contracts If an offer looks to a series of contracts, a contract arises each time the offeree accepts. As to the future, the offer is revocable unless the offer is irrevocable. Whether an offer looks to one or a series of acceptances is a question to be determined under the reasonable person test.
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Sermon Outlines This material is from Executable Outlines .com, a web site containing sermon outlines and Bible studies by Mark A. Copeland. Visit the web site to browse or download additional material for church or personal use. The outlines were developed in the course of my ministry as a preacher of the gospel.
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FIDIC contracts more popular in recent years due to the influence of international players, multilateral investment agencies and promotion by FIDIC. The Red Book and Silver Book contracts are particularly common. FIDIC contracts common. Same contracts apply as for construction projects.
Petitioner-Appellee Albert Woodfox once again before this Courtis in connection with his federal habeas petition.The district c ourt had originally granted Woodfox federal habeas relief on the basis of ineffective assistance of counsel, but weheld that the district court erred in light of the deferential review affordedto state courts under the Antiterrorism and Effective Death Penalty Act of .
