1L Exam Prep and Motivation Thread

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
thegrayman
Posts: 498
Joined: Thu May 06, 2010 5:56 pm

Re: 1L Exam Prep and Motivation Thread

Postby thegrayman » Sun Nov 27, 2011 4:52 pm

$peppercorn wrote:pretty sure it depends on the jurisdiction on whether to use joint and several liabiltiy or several liability. Not on the rules for negligence that you apply


I was thinking that as well, just trying to decipher my notes, my professor talks at lightspeed, I do what I can to keep up.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 5:08 pm

thegrayman wrote:regarding the summers v tice case and the kingston v chicago RR case

We have the case of A and B being liable (kingston - multiple sufficient causes) and we have cases like Summers where A or B are liable (one cause but you don't know who did it). Do the cases have any impact on how joint and several liability is determined?

let me try to be more clear - my understanding is that there are the following possible scenarios for joint/several liability:

joint and several - each party liable for 100%, plaintiff can choose who to recover from
several - each party only responsible for their assigned share of responsibility

first question - are there more possible j/s scenarios?
second question - do the doctrines applied have any impact on which one is chosen? for example, does applying a Summers framework mean that joint and several will be imposed? or are they completely separate determinations, first figure out framework, then down the road figure out which liability scheme to apply?


There can be J&S liability when the D's acted in concert or when the D's are both independently negligent and caused a single harm. It largely depends on the jurisdiction though. Most Comparative negligence jurisdictions don't allow for J&S liability but some do.

User avatar
Gettingstarted1928
Posts: 407
Joined: Sun Oct 09, 2011 11:45 pm

Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Sun Nov 27, 2011 6:35 pm

Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 6:36 pm

Gettingstarted1928 wrote:Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?


Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.

User avatar
Gettingstarted1928
Posts: 407
Joined: Sun Oct 09, 2011 11:45 pm

Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Sun Nov 27, 2011 6:39 pm

ph14 wrote:
Gettingstarted1928 wrote:Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?


Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 6:41 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?


Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).


Yep. FNC requires a pretty grossly inconvenient forum, and there must be another forum available to hear there claim I think (at least formally, even if practically the case won't be brought there because the law is different and it might not be worth it or something).

Voltaire
Posts: 37
Joined: Sat Sep 25, 2010 11:03 am

Re: 1L Exam Prep and Motivation Thread

Postby Voltaire » Sun Nov 27, 2011 6:43 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?


Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).

Sometimes there's no place to transfer it to, so it gets kicked out. I'm pretty sure that's when you'll run into FNC most often.

User avatar
Gettingstarted1928
Posts: 407
Joined: Sun Oct 09, 2011 11:45 pm

Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Sun Nov 27, 2011 6:45 pm

ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:Anyone want to describe the difference between transfer and forum non conveniens? It seems like both really involve the exact same issue: transfer to another jurisdiction for purposes of convenience. Could you tell me where I'm going wrong?


Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).


Yep. FNC requires a pretty grossly inconvenient forum, and there must be another forum available to hear there claim I think (at least formally, even if practically the case won't be brought there because the law is different and it might not be worth it or something).


Any idea how a court determines which to use? What are the considerations, or do they just flip a coin (heads= dismiss and tails = transfer)?

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 6:49 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).


Yep. FNC requires a pretty grossly inconvenient forum, and there must be another forum available to hear there claim I think (at least formally, even if practically the case won't be brought there because the law is different and it might not be worth it or something).


Any idea how a court determines which to use? What are the considerations, or do they just flip a coin (heads= dismiss and tails = transfer)?


Not sure. The lawyer has to move for it though I think? So depends on what the lawyer does.

User avatar
ilovesf
Posts: 11789
Joined: Wed Oct 20, 2010 5:20 pm

Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sun Nov 27, 2011 6:50 pm

just sayin, i <3 this thread

User avatar
Gettingstarted1928
Posts: 407
Joined: Sun Oct 09, 2011 11:45 pm

Re: 1L Exam Prep and Motivation Thread

Postby Gettingstarted1928 » Sun Nov 27, 2011 6:54 pm

Gettingstarted1928 wrote:
ph14 wrote:
Gettingstarted1928 wrote:
ph14 wrote:
Forum non conviens is basically transfer on steroids, it's really inconvenient. But in FNC, the case is dismissed I think, whereas in transfer it is just transferred.


Thank you. Ok, so a court has two options: it can dismiss (i.e., FNC) or it can transfer (i.e., transfer).


Yep. FNC requires a pretty grossly inconvenient forum, and there must be another forum available to hear there claim I think (at least formally, even if practically the case won't be brought there because the law is different and it might not be worth it or something).


Any idea how a court determines which to use? What are the considerations, or do they just flip a coin (heads= dismiss and tails = transfer)?


Not sure. The lawyer has to move for it though I think? So depends on what the lawyer does.
[/quote]

Wait. I think I figured it out:

FNC = Dismissal on court's discretion.
Transfer = 12(b)(3)

So I think the reasons for using either is the same, but the difference is who's doing it.

thegrayman
Posts: 498
Joined: Thu May 06, 2010 5:56 pm

Re: 1L Exam Prep and Motivation Thread

Postby thegrayman » Sun Nov 27, 2011 7:10 pm

you guys are lifesavers!

another question for ya:

regarding proximate cause, my professor briefly went over foreseeability in regards to proximate cause and where it fits in. Do I understand the below concept correctly?

- Polemis rejected foresight being introduced at the causation stage and wanted foreseeability confined to the duty/breach determination

- Wagon Mound 1 rejected Polemis and thought that foreseeability should be factored into duty/breach as well as causation

:?:

User avatar
theavrock
Posts: 601
Joined: Mon Feb 23, 2009 10:52 pm

Re: 1L Exam Prep and Motivation Thread

Postby theavrock » Sun Nov 27, 2011 8:40 pm

thegrayman wrote:you guys are lifesavers!

another question for ya:

regarding proximate cause, my professor briefly went over foreseeability in regards to proximate cause and where it fits in. Do I understand the below concept correctly?

- Polemis rejected foresight being introduced at the causation stage and wanted foreseeability confined to the duty/breach determination

- Wagon Mound 1 rejected Polemis and thought that foreseeability should be factored into duty/breach as well as causation

:?:


Basically.

Polemis essentially argues that if your conduct caused the injury, foreseeable or not you should be liable.

Wagon Mound said nope foreseeability is where it is at

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 9:15 pm

thegrayman wrote:you guys are lifesavers!

another question for ya:

regarding proximate cause, my professor briefly went over foreseeability in regards to proximate cause and where it fits in. Do I understand the below concept correctly?

- Polemis rejected foresight being introduced at the causation stage and wanted foreseeability confined to the duty/breach determination

- Wagon Mound 1 rejected Polemis and thought that foreseeability should be factored into duty/breach as well as causation

:?:


Polemis - liable for injuries that wouldn't have happend had D not been negligent (direct injury = liability, but draws the line if direct cause was too remote).
Wagon Mound - Liable for injuries that were foreseeable, but not for unforeseeable injuries (forseeable injury - liability).
Cardozo - Liable for injuries caused to a plaintiff that was within a zone of danger, judge decides as a duty question rather than causation question (only owe a duty to foreseeable P)
Andrews - Liable for injuries caused to anyone within a proximate time / space, let jury decide.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 10:51 pm

Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 10:55 pm

Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


It's separate. How would it be under negligence? It specifically doesn't take into account an actor's reasonableness lol. As far as for employees, look up respondeat superior, it's strict liability but I don't think they call it that, since the policy rationales are different.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 10:58 pm

ph14 wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


It's separate. How would it be under negligence? It specifically doesn't take into account an actor's reasonableness lol. As far as for employees, look up respondeat superior, it's strict liability but I don't think they call it that, since the policy rationales are different.


I don't know, we didn't touch on it. Im worried about it because its on our sylabus (we were backed up) so that means it may be fair game? I'm going to brush up on it because it seems like I could drop some knowledge on it if it comes up and it could mean an advantage I would have over my classmates.

User avatar
theavrock
Posts: 601
Joined: Mon Feb 23, 2009 10:52 pm

Re: 1L Exam Prep and Motivation Thread

Postby theavrock » Sun Nov 27, 2011 10:59 pm

Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


The way it was explained to us is there is 3 types of Torts

Negligence Torts (most torts) - liability based on N
Intentional Torts - liability based on intent
Strict Liability - liability irrespective of D's state of mind

SL is liability separate from negligence. Even if the actor was non-negligent we still hold them liable (for a variety of reasons)

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 10:59 pm

Extension_Cord wrote:
ph14 wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


It's separate. How would it be under negligence? It specifically doesn't take into account an actor's reasonableness lol. As far as for employees, look up respondeat superior, it's strict liability but I don't think they call it that, since the policy rationales are different.


I don't know, we didn't touch on it. Im worried about it because its on our sylabus (we were backed up) so that means it may be fair game? I'm going to brush up on it because it seems like I could drop some knowledge on it if it comes up and it could mean an advantage I would have over my classmates.


Ask your professor?

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 11:01 pm

ph14 wrote:
Extension_Cord wrote:
ph14 wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


It's separate. How would it be under negligence? It specifically doesn't take into account an actor's reasonableness lol. As far as for employees, look up respondeat superior, it's strict liability but I don't think they call it that, since the policy rationales are different.


I don't know, we didn't touch on it. Im worried about it because its on our sylabus (we were backed up) so that means it may be fair game? I'm going to brush up on it because it seems like I could drop some knowledge on it if it comes up and it could mean an advantage I would have over my classmates.


Ask your professor?


Im just going to brush up on it. If I get around to covering the most important stuff on the exam I will briefly mention strict liability if it could be possible because from all the hypos Ive looked at, its easy to throw it in.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 11:02 pm

theavrock wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


The way it was explained to us is there is 3 types of Torts

Negligence Torts (most torts) - liability based on N
Intentional Torts - liability based on intent
Strict Liability - liability irrespective of D's state of mind

SL is liability separate from negligence. Even if the actor was non-negligent we still hold them liable (for a variety of reasons)


Awesome, liability without fault. Thanks!

Hmm. Is respondeat superior the same thing as strict liability? (we didnt do that either)

User avatar
$peppercorn
Posts: 142
Joined: Sat Oct 15, 2011 2:49 pm

Re: 1L Exam Prep and Motivation Thread

Postby $peppercorn » Sun Nov 27, 2011 11:07 pm

Extension_Cord wrote:
theavrock wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


The way it was explained to us is there is 3 types of Torts

Negligence Torts (most torts) - liability based on N
Intentional Torts - liability based on intent
Strict Liability - liability irrespective of D's state of mind

SL is liability separate from negligence. Even if the actor was non-negligent we still hold them liable (for a variety of reasons)


Awesome, liability without fault. Thanks!


not to be a dick but pretty sure its still the strictly liable person's fault.

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sun Nov 27, 2011 11:09 pm

$peppercorn wrote:
Extension_Cord wrote:
theavrock wrote:
Extension_Cord wrote:Is strict liability a seperate cause of action or does it fall under negligence. Does it need its own rule?

We didn't cover it in class, just a brief "your strictly liable for animals and employees (if within scope of employment)."


The way it was explained to us is there is 3 types of Torts

Negligence Torts (most torts) - liability based on N
Intentional Torts - liability based on intent
Strict Liability - liability irrespective of D's state of mind

SL is liability separate from negligence. Even if the actor was non-negligent we still hold them liable (for a variety of reasons)


Awesome, liability without fault. Thanks!


not to be a dick but pretty sure its still the strictly liable person's fault.


Sometimes but not always. Respondeat superior we hold the employer liable without fault.

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: 1L Exam Prep and Motivation Thread

Postby kalvano » Sun Nov 27, 2011 11:12 pm

Extension_Cord wrote:Awesome, liability without fault. Thanks!

Hmm. Is respondeat superior the same thing as strict liability? (we didnt do that either)



Strict liability just means if you did it, you're liable. Intent or anything else doesn't matter.

Respondeat superior arises when an employer is responsible for an employee's actions performed within the course of their employment. Also called "vicarious liability".

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: 1L Exam Prep and Motivation Thread

Postby Extension_Cord » Sun Nov 27, 2011 11:13 pm

Oh man, I had no idea we didn't cover so much. Im just now finding out vicarious liability and strict liability are different things! FFffffffffffffuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Google Feedfetcher, LawHammer, TheSpanishMain and 12 guests