1L Substantive Law Questions (Get your BLL on ITT) Forum

[BluePurgatory]

I'm confused about general jurisdiction's "continuous and systematic" rule. How serious do the contacts need to be? Also, does spending a decent amount of money on advertising directly to citizens of a state (putting up billboards, etc.) when you are in another state count? I think I remember a case based on targeting but I can't remember which it was.

[cynthia rose]

I'm confused about general jurisdiction's "continuous and systematic" rule. How serious do the contacts need to be? Also, does spending a decent amount of money on advertising directly to citizens of a state (putting up billboards, etc.) when you are in another state count? I think I remember a case based on targeting but I can't remember which it was.

This probably won't help much, but my prof purposely left it somewhat vague, b/c there are a lot of "continuous and systematic" contacts that are considered too limited to qualify for general pj. Like, in Perkins for example - it was enough there because the vast majority of the business conduct overall was happening in the forum state, but that same behavior probably would not have been the majority of the company's activities (and thus not enough to be 'continuous and systematic' enough for general pj) if it had been conducting business in the Philippines under normal circumstances. Glannon's E&E points out that the Supreme Court has never made it clear what the threshold is but my impression is that the threshold is pretty high - that a defendant needs to conduct a majority of its business in the forum state. fwiw my prof gave us a practice exam where a corporation got 40% of its business from advertising in the forum state, and the answer on this exam was that the advertising was not enough to conclusively establish general p.j. So for her test, a business would probably have to get at least 50% of its business before she considered a general pj argument. (The amount of business gained in a forum doesn't necessarily = the amount of money spent on advertising in that forum but for simplicity assume that they're close enough.) But your professor might feel a bit more generous about it so take that with a grain of salt.

Our ad-targeting case was O'Connor v. Sandy Lane, but that a court of appeals case so it might not be universal. Now that I think about it, O'Connor was concerning a specific pj matter, not a general one, so that probably isn't what you're thinking about.

In semi-related news my professor is a !@#$ and STILL has not answered the email that I sent her on Friday...it's now Wednesday. smh. I might be better off hunting down my academic advisor and asking her instead (she happens to be one of the other civ pro professors).

[Swimp]

This might be too broad of question for anyone to feel like answering, but can anyone explain when notice of acceptance is required in contracts? Does it depend on Restatment/UCC/CL, or is it based on whether acceptance is invited by performance or a promise? My notes are kinda weak on this.

I think the Restatement says that if you're accepting by promise, you have to make reasonable efforts to notify the offeror; and if you're accepting by performance, you don't have to notify UNLESS you know that the offeror isn't going to find out, in which case the offeror is only bound if 1) you make reasonable efforts to notify him, 2) he happens to find out somehow, or 3) he stipulated that you didn't have to notify him.

[North]

Crim question. Is it just for felony murder that accessories can be charged with the same crime as the offender? I think I missed something in class about this.

[BigZuck]

I'm confused about general jurisdiction's "continuous and systematic" rule. How serious do the contacts need to be? Also, does spending a decent amount of money on advertising directly to citizens of a state (putting up billboards, etc.) when you are in another state count? I think I remember a case based on targeting but I can't remember which it was.

This probably won't help much, but my prof purposely left it somewhat vague, b/c there are a lot of "continuous and systematic" contacts that are considered too limited to qualify for general pj. Like, in Perkins for example - it was enough there because the vast majority of the business conduct overall was happening in the forum state, but that same behavior probably would not have been the majority of the company's activities (and thus not enough to be 'continuous and systematic' enough for general pj) if it had been conducting business in the Philippines under normal circumstances. Glannon's E&E points out that the Supreme Court has never made it clear what the threshold is but my impression is that the threshold is pretty high - that a defendant needs to conduct a majority of its business in the forum state. fwiw my prof gave us a practice exam where a corporation got 40% of its business from advertising in the forum state, and the answer on this exam was that the advertising was not enough to conclusively establish general p.j. So for her test, a business would probably have to get at least 50% of its business before she considered a general pj argument. (The amount of business gained in a forum doesn't necessarily = the amount of money spent on advertising in that forum but for simplicity assume that they're close enough.) But your professor might feel a bit more generous about it so take that with a grain of salt.

Our ad-targeting case was O'Connor v. Sandy Lane, but that a court of appeals case so it might not be universal. Now that I think about it, O'Connor was concerning a specific pj matter, not a general one, so that probably isn't what you're thinking about.

In semi-related news my professor is a !@#$ and STILL has not answered the email that I sent her on Friday...it's now Wednesday. smh. I might be better off hunting down my academic advisor and asking her instead (she happens to be one of the other civ pro professors).

Doesn't Goodyear say "essentially at home?" So general jurisdiction would be domicile for individuals and principle place of business and incorporation for corporations. Problem is the Supreme Court has never really clarified so can the "essentially at home" part mean that a corporation can be subject to general jurisdiction in a third state?

Example:
Corporate nerve center in NY
Incorporated in DE
But, basically all business, employees, etc. in CA

Definitely general jurisdiction in NY and DE but what about CA? The Supreme Court hasn't told us definitively. Yay Civ Pro!

[KD35]

Civ Pro like the previous question. Yay Civ Pro!
I'm struggling with the difference between Claim Preclusion and Issue Preclusion.

[Easy-E]

This might be too broad of question for anyone to feel like answering, but can anyone explain when notice of acceptance is required in contracts? Does it depend on Restatment/UCC/CL, or is it based on whether acceptance is invited by performance or a promise? My notes are kinda weak on this.

I think the Restatement says that if you're accepting by promise, you have to make reasonable efforts to notify the offeror; and if you're accepting by performance, you don't have to notify UNLESS you know that the offeror isn't going to find out, in which case the offeror is only bound if 1) you make reasonable efforts to notify him, 2) he happens to find out somehow, or 3) he stipulated that you didn't have to notify him.

Makes sense to me, thanks. My info for this was pretty scattered.



Here's another one, UCC 2-207, what defines a "material change"? The case we read with it labeled an arbitration clause as not being a material change to contract. I'm a little confused by this whole concept, are we assuming here that the offeror doesn't read the acceptance from the offeree, and has assumed all terms are the same?

If A offers to buy 100 widgets for $10,000 from B, and B accepts but changes it to 100 widgets for $15,000, isn't this a counter-offer that A is free to reject?

Does the "material change" thing only apply if performance of the contract has begun, and the parties THEN find a difference in the K?

[Swimp]

Civ Pro like the previous question. Yay Civ Pro!
I'm struggling with the difference between Claim Preclusion and Issue Preclusion.

A claim is a cause of action. Once you bring a claim into court and have it adjudicated, you can't sue again on that claim.

An issue is a fact or issue of law that is decided in the course of adjudicating a claim--either by a judge or a jury. Issues of fact or of law that are essential to the adjudication of the claim are locked in once that claim has been adjudicated for the purposes of future claims.

[cynthia rose]

I'm confused about general jurisdiction's "continuous and systematic" rule. How serious do the contacts need to be? Also, does spending a decent amount of money on advertising directly to citizens of a state (putting up billboards, etc.) when you are in another state count? I think I remember a case based on targeting but I can't remember which it was.

This probably won't help much, but my prof purposely left it somewhat vague, b/c there are a lot of "continuous and systematic" contacts that are considered too limited to qualify for general pj. Like, in Perkins for example - it was enough there because the vast majority of the business conduct overall was happening in the forum state, but that same behavior probably would not have been the majority of the company's activities (and thus not enough to be 'continuous and systematic' enough for general pj) if it had been conducting business in the Philippines under normal circumstances. Glannon's E&E points out that the Supreme Court has never made it clear what the threshold is but my impression is that the threshold is pretty high - that a defendant needs to conduct a majority of its business in the forum state. fwiw my prof gave us a practice exam where a corporation got 40% of its business from advertising in the forum state, and the answer on this exam was that the advertising was not enough to conclusively establish general p.j. So for her test, a business would probably have to get at least 50% of its business before she considered a general pj argument. (The amount of business gained in a forum doesn't necessarily = the amount of money spent on advertising in that forum but for simplicity assume that they're close enough.) But your professor might feel a bit more generous about it so take that with a grain of salt.

Our ad-targeting case was O'Connor v. Sandy Lane, but that a court of appeals case so it might not be universal. Now that I think about it, O'Connor was concerning a specific pj matter, not a general one, so that probably isn't what you're thinking about.

In semi-related news my professor is a !@#$ and STILL has not answered the email that I sent her on Friday...it's now Wednesday. smh. I might be better off hunting down my academic advisor and asking her instead (she happens to be one of the other civ pro professors).

Doesn't Goodyear say "essentially at home?" So general jurisdiction would be domicile for individuals and principle place of business and incorporation for corporations. Problem is the Supreme Court has never really clarified so can the "essentially at home" part mean that a corporation can be subject to general jurisdiction in a third state?

Example:
Corporate nerve center in NY
Incorporated in DE
But, basically all business, employees, etc. in CA

Definitely general jurisdiction in NY and DE but what about CA? The Supreme Court hasn't told us definitively. Yay Civ Pro!

Yeah, that is kind of what I meant by my teacher leaving it vague...she said that we needed to be sure not to mix our general jurisdiction rules and terms with our subject-matter ones. Don't say 'domicile' when you mean 'at home' for individuals, and don't conflate a principal place of business or incorporation with being 'at home' for businesses (and also don't say a business is 'domiciled' somewhere b/c that is a term for humans only). Which I found more befuddling b/c you are right, domicile does result in a person being "at home" most of the time, and a company that is incorporated or has its main offices in its state will generally be considered "at home" because of that. To my brain, it made more sense to look at it as generally one test with a few exceptions of divergence, but she wants us to look at them as two separate tests that just happen to converge a lot. I get why she teaches it that way but it took me a while to wrap my head around it, and I'm still not sure I completely have it.

Weirdly she gave us a hypo with the same states as yours. But the difference was that the company in her hypo had business in multiple states, with a large majority of that business in CA. She said there was general pj for NY/DE but not CA. I think her point was that for a national company it almost goes without saying that CA will be where they have the most sales, just due to the population, so that isn't enough to say the company has made itself 'at home' there when it clearly has roots and operations somewhere else. (Of course if it were a specific pj matter the company could be sued in any state where a claim involving its product happened, b/c purposeful availment) During and after that hypo, she stressed that for general pj businesses will basically only get pinned down to two places at most - where they are incorporated and where the corporate headquarters (nerve center) are. I am not sure what she would say if ALL of the business and employees were in CA though, which is unfortunate b/c for someone who leaves things like this gray she has a pesky habit of thinking all of her questions have definite answers. If you pick the 'wrong' answer then you'll just be wrong no matter how well you analyze and argue for it.

For individuals who were borderline (say, someone who has a vacation home in FL but is only there a few weeks out of the year) she would just say "tag 'em next time they are there so you can avoid this debate altogether." so pretty much my whole section is ready to type the word TAG in all caps at some point, if nothing else. No tag for corporations though.

Yay civ pro! and by yay I mean f*ck off already, I hate you and you make my life miserable.

[MKC]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

[Carlo Von Sexron]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

What exactly is your question?

[BigZuck]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

From my prof:

1.P sees victim being torted
2.Victim must be member of nuclear family
3.No pets

HTH

[kay2016]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

From my prof:

1.P sees victim being torted
2.Victim must be member of nuclear family
3.No pets

HTH

We studied several cases.. this is what was in my outline

1. Direct Victims
Falzone (wife almost hit) type
Allowed if: Physical manifestations of SEVERE emotional distress AND In the zone of danger
Gammon type
Allowed if: Foreseeable AND Severe emotional distress/manifestations
2. Bystanders
Bovsun type
Allowed if: In zone of danger AND Are immediate family of the victim (who dies) for severe and verifiable emotional distress
Portee type
Allowed if : Witness to the incident (even if safe) AND Are Immediate family of the victim (who dies) for severe and verifiable emotional distress
3. Negligent handling of corpses is another type.

[MKC]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

From my prof:

1.P sees victim being torted
2.Victim must be member of nuclear family
3.No pets

HTH

We're going by the third restatement, so:

§ 47 Negligent Conduct Directly Inflicting Emotional Harm on Another

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:
(a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.

Basically, the professor gave us a hypo where a chemical company paid a contractor to haul off a bunch of barrels full of dioxins marked with crossbones, but didn't tell the contractor what was in the barrels. The contractor figured out that the sludge was great at keeping dust down and sprayed it all over the place. Predictably people get cancer/die/have miscarriages. I'm trying to apply NIED claims to the chemical company, and I'm not really sure how to do it.

[sublime]

..

[Carlo Von Sexron]

Basically, the professor gave us a hypo where a chemical company paid a contractor to haul off a bunch of barrels full of dioxins marked with crossbones, but didn't tell the contractor what was in the barrels. The contractor figured out that the sludge was great at keeping dust down and sprayed it all over the place. Predictably people get cancer/die/have miscarriages. I'm trying to apply NIED claims to the chemical company, and I'm not really sure how to do it.

Well, you have actual physical harm there, so everyone who gets cancer/miscarries/dies can recover or their estates can. You can say that third parties (people distressed but not having suffered physically) can recover only if they were within the area that was sprayed, i.e., the zone of danger.

There's probably some other issue you could spot on whether the the contractor had a duty to not spray chemicals in barrels marked with crossbones. And also whether he was an independent K'er and not an agent or employee. But I can't think off the top of my head how this plays into NIED analysis.

[BigZuck]

Anybody want to give me a quick rundown of Negligent Infliction of Emotional Distress? I'm having a little trouble here.

From my prof:

1.P sees victim being torted
2.Victim must be member of nuclear family
3.No pets

HTH

We're going by the third restatement, so:

§ 47 Negligent Conduct Directly Inflicting Emotional Harm on Another

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:
(a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.

Basically, the professor gave us a hypo where a chemical company paid a contractor to haul off a bunch of barrels full of dioxins marked with crossbones, but didn't tell the contractor what was in the barrels. The contractor figured out that the sludge was great at keeping dust down and sprayed it all over the place. Predictably people get cancer/die/have miscarriages. I'm trying to apply NIED claims to the chemical company, and I'm not really sure how to do it.

I might just be (probably am) a shitty law school student but I don't think NIED would apply here. That shit seems pretty narrow and I'm not sure you could twist it into this facts.

Someone smarter will probably correct me.

[sublime]

..

[Zensack]

Here's another one, UCC 2-207, what defines a "material change"? The case we read with it labeled an arbitration clause as not being a material change to contract. I'm a little confused by this whole concept, are we assuming here that the offeror doesn't read the acceptance from the offeree, and has assumed all terms are the same?

If A offers to buy 100 widgets for $10,000 from B, and B accepts but changes it to 100 widgets for $15,000, isn't this a counter-offer that A is free to reject?

Does the "material change" thing only apply if performance of the contract has begun, and the parties THEN find a difference in the K?

Our professor told us there isn't a clear standard for material change, but some changes like price and quantity should qualify. He said courts have split about whether arbitration is material. Things that aren't material might be stipulating that all the widgets must be red, or that a rock star's dressing room be supplied with a bowl of brown M&Ms at every show.

Material change matters if (1) the parties are both merchants (2) the offer does not stipulate acceptance of its exact terms only and (3) the offeror does not object to the changes in a timely manner. If any of the other conditions are not met, the contract is formed under the offeror's terms and the offeree's terms are mere proposals. If all 3 of the above conditions are met, and the court decides the changes are not material, then the contract contains the new terms.

[Carlo Von Sexron]

And yea, if you count cancer risk as a part of NEID, pretty much everybody who had enough harm. To both the compan and the guy who was suppose to dispose of it.

I ended up cutting the company's liability off pretty quickly though bc of the disposers superceding actions. No idea if that was right though.

But the company's liability would be cut off even before you get to superseding (causation) analysis, because it was not reasonably foreseeable risk (duty analysis) that the contractor would remove the substance from its crossbones barrels. Remember, they were paying him to transport the stuff, not take it out and apply it to an open area, which is what I read the hypo as saying.

[sublime]

..

[Carlo Von Sexron]

And yea, if you count cancer risk as a part of NEID, pretty much everybody who had enough harm. To both the compan and the guy who was suppose to dispose of it.

I ended up cutting the company's liability off pretty quickly though bc of the disposers superceding actions. No idea if that was right though.

But the company's liability would be cut off even before you get to superseding (causation) analysis, because it was not reasonably foreseeable risk (duty analysis) that the contractor would remove the substance from its crossbones barrels. Remember, they were paying him to transport the stuff, not take it out and apply it to an open area, which is what I read the hypo as saying.

Yea, that is why I cut it off, there were leakage issues in transporting initially though that they may have been liable for. Issue was that while there were crossbones, it was THE MOST DANGEROUS SUBSTANCE KNOWN TO MAN, and they didn't tell him. I cut it off once he stored it at his place.

I may have not needed to use superceding cause to do that though.

Oh, you're in the same class as the guy who posted the hypo here? I didn't realize that, my bad.

[sublime]

..

[Carlo Von Sexron]

Np, I should have probably been explicit about it, but yea, so I had the full hypo.

My biggest problem in it was trying to organize the damn thing

I
RRR
AAAAA
C.

[cynthia rose]

What I got from my prof on NIED

Direct victims - negligence causes fright which results in substantial bodily injury or sickness, or substantial bodily injury which results in emotional distress (in this hypo's case it's the latter).

Third party victims - direct victim suffered death or serious injury due to negligence; close familial relationship b/t direct victim and third party; third party's observation of injury or death at scene of the accident; resulting severe emotional harm. Close family members can likely claim this.

Sort of a moot point now that we know there's a a superseding cause but you still might want to keep that in mind for discussion since the disposer would then be the one liable for the NIED.