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

[FKASunny]

How do I not go crazy waiting for my grades for a month? I feel really good going into my finals, felt OK afterwards but worried I could have done more analysis/missed an issue, and am now terrified that I bombed it all. Gaaahhhh.

Do what you did last semester?

But there's no travel to distract us, just write-on and waiting around hoping not to fail everything.

[Easy-E]

Can someone please clarify the relationship between 18(a) and 13(g)? Specifically, I'm getting mixed up from a hypothetical the Glannon supp lays out on p258.

A and B are both defendants, A cross-claims against B for something arising out of the same transaction/occurrence as original suit under 13(g). Now, A can also bring unrelated suits against B because 18(a) kicks in? I'm a little confused by this.

Does 18 only apply once you are someones "opponent" (thus A couldn't bring the 2nd claim until it brought the 1st). Both claims don't fall into one trial though do they? And I assume this means B could now cross-claim against A for something not arising out of the facts involved in EITHER of A's cross-claims?

Hope that makes sense.

[Jsa725]

.

[MsAvocadoPit]

Do the Slaughterhouse cases only concern the privileges OR immunities? Does the privileges AND immunities clause come up? My notes are confusing. It's my understanding Slaughterhouse limited the P or I clause.

Just P or I

Here are my notes:

The Slaughter-House Cases 
Louisiana law created slaughterhouse monopoly in New Orleans
Group of Butchers claimed this deprived them of their constitutional right to "exercise their trade" They claimed this violated the Privileges or Immunities Clause of the Fourteenth Amendment because the clause made the Constitution's rights guarantees applicable to states

S.Ct. said no - Only rights protected by the clause are those derived from United States Citizenship, distinctly national in character.

Justice Miller's list of rights protected by the P or IC:
The right to come to seat of government
Right to transact business with the federal government
Right to hold office in the fed. Govt.
Right to seek protection of fed. Govt.
Right to engage in the administration of fed gov. functions
Right of free access of the nation's seaports, sub treasuries, and offices, and fed courts.
Not really a significant list and existed before the 14th amendment

*Effect of Slaughter House Cases: Priv. or Immunities Cl of 14th amendment does not incorporate bill of rights as applicable to the states, essentially rendering it superfluous in the Constitution.

[WokeUpInACar]

How do I not go crazy waiting for my grades for a month? I feel really good going into my finals, felt OK afterwards but worried I could have done more analysis/missed an issue, and am now terrified that I bombed it all. Gaaahhhh.

Do what you did last semester?

But there's no travel to distract us, just write-on and waiting around hoping not to fail everything.

Not to mention our school gives profs an extra couple weeks for the Spring semester grade deadline because there isn't the pressure to get grades in for Summer jobs like there was in January.

[Easy-E]

^^^ Once you get same T or O relationship as it pertains to 13(g) all rule 18(a) says is that you can plead the book at the other party (remember frcp 1)... 2L and don't have the Glannon so feel free to add more details.

No, that makes sense. I also kept reading and saw that the trial thing was explained (court may not actually have the power to hear it).



I think I know this one, but let's say A sues B. It's a case of mistaken identity however, it was an entirely different, unrelated person (C). B can't just implead C under 14(a) because it isn't an issue of C sharing in (some or all) of B liability to A; B is saying he has no liability to A. So B just moves to dismiss the case another way, and washes his hands of the situation then, right?

[Easy-E]

How do I not go crazy waiting for my grades for a month? I feel really good going into my finals, felt OK afterwards but worried I could have done more analysis/missed an issue, and am now terrified that I bombed it all. Gaaahhhh.

Do what you did last semester?

But there's no travel to distract us, just write-on and waiting around hoping not to fail everything.

Not to mention our school gives profs an extra couple weeks for the Spring semester grade deadline because there isn't the pressure to get grades in for Summer jobs like there was in January.

Oh yeah my school really responded to that pressure by having us wait 7 weeks for grades.

[shifty_eyed]

I remember last semester I thought waiting for grades would be easier this semester because I'd have a better idea of what kind of grades to expect from having experience taking law school exams and then seeing how I did on them.

The only thing I know is that I will probably do even worse in LRW. I was searching for the grading policy at UT for LRW and I found this:

LRW matters more than you all realize right now. A random bad grade in property won't sink you. But a bad LRW grade... it pretty much ruins your chances at a good lit firm. And when you finally get to your summer, your writing skills are going to be front and center. Invest time in LRW. Seriously.

I don't do lit, but I do hire, and a bad LRW grade will incinerate your chances at my firm.

FML.

[Easy-E]

What do I need to know about class actions, Glannon has failed me and my casebook is obviously useless. I know that's pretty broad, someone feel free to show off that sexy civ pro knowledge.

[arklaw13]

What do I need to know about class actions, Glannon has failed me and my casebook is obviously useless. I know that's pretty broad, someone feel free to show off that sexy civ pro knowledge.

Depends entirely on how your prof taught it. My prof's scholarly specialty was class actions, so that was a pretty big part of one of the questions on the exams. I'd say know:

-everything about Rule 23 (commonality/typicality requirements, etc.)
-Impact of class actions on SMJ
-policy justifications for class actions (want people to bring low-yield suits to enforce their rights)
-maybe something about the different fee structures for class action attorneys

Also be prepared for creative questions embedded in class actions. My prof had a run of the mill class action problem that you had to analyze under the Rule 23 requirements, as well as a question about the various fee structures the judge could award. There was a state law that said the lodestar method was required (this was a state law claim in federal court) and the question was does judge have to apply it, so it turned out to be an Erie question (the only Erie issue on the exam, so if you missed it you were probably fucked) and you had to decide whether Rule 23(h)'s authorization of federal judges awarding reasonable attorney fees amounted to

-a federal procedural rule that gave judges authority to award whatever they deemed reasonable (FRCP always trumps state law); or
-just a federal practice based on a certain interpretation of the rule (maybe some room for state policies like in Gasperini).

But again, my prof's specialty was class actions so I don't think most exams will have that kind of in-depth question about it.

[Easy-E]

What do I need to know about class actions, Glannon has failed me and my casebook is obviously useless. I know that's pretty broad, someone feel free to show off that sexy civ pro knowledge.

Depends entirely on how your prof taught it. My prof's scholarly specialty was class actions, so that was a pretty big part of one of the questions on the exams. I'd say know:

-everything about Rule 23 (commonality/typicality requirements, etc.)
-Impact of class actions on SMJ
-policy justifications for class actions (want people to bring low-yield suits to enforce their rights)
-maybe something about the different fee structures for class action attorneys

Also be prepared for creative questions embedded in class actions. My prof had a run of the mill class action problem that you had to analyze under the Rule 23 requirements, as well as a question about the various fee structures the judge could award. There was a state law that said the lodestar method was required (this was a state law claim in federal court) and the question was does judge have to apply it, so it turned out to be an Erie question (the only Erie issue on the exam, so if you missed it you were probably fucked) and you had to decide whether Rule 23(h)'s authorization of federal judges awarding reasonable attorney fees amounted to

-a federal procedural rule that gave judges authority to award whatever they deemed reasonable (FRCP always trumps state law); or
-just a federal practice based on a certain interpretation of the rule (maybe some room for state policies like in Gasperini).

But again, my prof's specialty was class actions so I don't think most exams will have that kind of in-depth question about it.

Eh, we spent a pretty good chunk of time on it. We didn't get into fee structures though, but it sounds like I've got the right stuff. Thanks.

[BVest]

What do I need to know about class actions, Glannon has failed me and my casebook is obviously useless. I know that's pretty broad, someone feel free to show off that sexy civ pro knowledge.

Depends entirely on how your prof taught it. My prof's scholarly specialty was class actions, so that was a pretty big part of one of the questions on the exams. I'd say know:

-everything about Rule 23 (commonality/typicality requirements, etc.)
-Impact of class actions on SMJ
-policy justifications for class actions (want people to bring low-yield suits to enforce their rights)
-maybe something about the different fee structures for class action attorneys

Also be prepared for creative questions embedded in class actions. My prof had a run of the mill class action problem that you had to analyze under the Rule 23 requirements, as well as a question about the various fee structures the judge could award. There was a state law that said the lodestar method was required (this was a state law claim in federal court) and the question was does judge have to apply it, so it turned out to be an Erie question (the only Erie issue on the exam, so if you missed it you were probably fucked) and you had to decide whether Rule 23(h)'s authorization of federal judges awarding reasonable attorney fees amounted to

-a federal procedural rule that gave judges authority to award whatever they deemed reasonable (FRCP always trumps state law); or
-just a federal practice based on a certain interpretation of the rule (maybe some room for state policies like in Gasperini).

But again, my prof's specialty was class actions so I don't think most exams will have that kind of in-depth question about it.

This is good. Also be able to articulate differences between CA and MDL, and, if y'all covered it, know §1407 for MDLs. Here's the sum total of my outline for MDL:

Multi-District Litigation
Why?
-Courts less likely to certify classes
-but Individual actions are inefficient
-Test case often guides settlement of subsequent cases

How?
-Any party can request Multi-District panel consolidate cases for pre-trial handling
-Panel can choose any judge/district they want for consolidation.
==Tendency to choose “focus” or earliest filed.
==MDL judge makes significant decisions,
+++e.g. discovery,
+++class certification,
+++MSJ.
==Apt to encourage settlement

Requirements for MDL § 1407
-Common questions of fact
-Convenience of parties and witnesses
-Promote just and efficient conduct of such actions

VIOXX
-Just because a case is tried, if you don’t do anything you lose your chance
-You’re not part of a class so you won’t get a settlement offer

[bsktbll28082]

Any insight on explain how the Supreme Court's approaches toward interpreting the Constitution are similar to or different from the way in which a court construes other kinds of written legal documents? I know statutes are easier to change and all.

[jbagelboy]

Can marriage be a "quintessentially commercial or economic" activity under prong 3 of lopez such that one can perform wickard aggregation? It's a contract and has huge implications for the tax code, creates a joint tenancy, joint real estate ect. But there's dicta in lopez and morrison to suggest it's not (traditional realm of state authority, ect).

Also could the restriction on marriage be construed as a threat or obstruction to instrumentalities of interstate commerce under lopez 2? (Married couples not recognized in another state wouldnt travel there, ect, see Heart of Atlanta)

Thanks

[MsAvocadoPit]

Can marriage be a "quintessentially commercial or economic" activity under prong 3 of lopez such that one can perform wickard aggregation? It's a contract and has huge implications for the tax code, creates a joint tenancy, joint real estate ect. But there's dicta in lopez and morrison to suggest it's not (traditional realm of state authority, ect).

Also could the restriction on marriage be construed as a threat or obstruction to instrumentalities of interstate commerce under lopez 2? (Married couples not recognized in another state wouldnt travel there, ect, see Heart of Atlanta)

Thanks

I don't think so - Category 3 of the Lopez framework is whether "the activity substantially affects interstate commerce"
The most important factor in determining if the activity falls under this category is whether it is "economic or commercial in nature" - the aggregate effect can only be considered when the activity is econ/comm in nature. If it is not - you cannot aggregate it.
Other factors: Is it an area that a state is historically sovereign? are there congressional findings? how attenuated is the connection btwn IC? Is there a Jurisdictional Hook?
Is it necessary to the proper functioning of a comprehensive regulatory scheme (What Raich added)

Think about the activity - marriage is a private relationship between two adults. NO RIGHT TO CONTRACT (in future)- that is Lochner Era - which is separate from the Article 1 Contracts Clause right now - only existing contracts, and only the State cannot infringe this right (nothing about federal government)

In your second paragraph - you are asking about state restrictions on marriage as impeding (Cat 2) instrumentalities or (Cat 1) channels of interstate commerce? Again - the aggregate effect is only for Category 3 of Lopez when the activity is economic or commercial in nature. If it did fall under Cat 3 of Lopez Frame for Commerce Clause - we would have a Dormant Commerce Clause issue with the state law. But since it is probably not within the scope of CC, then no DCC problem.

It really depends on how the activity is being framed, but I think we still need to be realistic in our arguments. Marriage, the actual relationship, is really not economic or commercial in nature. The Court would probably "pause to consider the implications" of such an unlimited federal power...

[Easy-E]

Can someone explain the "marginal utility test" for burden of discovery (McPeek v. Ashcroft). It doesn't seem to actually say anything at all, just that the more likely it is that it contains information that is relevant to claim/defense, the fairer it is to make the producing party pay for it. Okay great, how do I know if its likely to produce any information? Does this test actually have any practical use?

[Easy-E]

I fear this is a pretty basic aspect of summary judgment I haven't understood still don't. Can someone explain "no genuine issue of material fact" to me like I'm five?

[BVest]

If the facts to be found in the case -- even if found to be entirely in favor of the nonmovant -- would not change the outcome of the case, then there are no material facts to be found. That is, the facts that are being disputed don't matter one way or another to the outcome of the case.

Example:

Polly Plaintiff sues Danny Defendant for defamation. Polly's claim includes alleged facts about a statement made by Danny, the publication thereof, and damages, but does not allege that Danny knew or should have known the statement was false (an element of the tort). Danny denies the facts alleged by Polly, but those facts don't matter anyway. Even if a jury (or judge in a bench trial) found in favor of Polly on all the facts, they would not be sufficient for her to win because they would not fulfill the elements.

[Easy-E]

If the facts to be found in the case -- even if found to be entirely in favor of the nonmovant -- would not change the outcome of the case, then there are no material facts to be found. That is, the facts that are being disputed don't matter one way or another to the outcome of the case.

Example:

Polly Plaintiff sues Danny Defendant for defamation. Polly's claim includes alleged facts about a statement made by Danny, the publication thereof, and damages, but does not allege that Danny knew or should have known the statement was false (an element of the tort). Danny denies the facts alleged by Polly, but those facts don't matter anyway. Even if a jury (or judge in a bench trial) found in favor of Polly on all the facts, they would not be sufficient for her to win because they would not fulfill the elements.

So basically the moving party is saying "even if everything my opponent says is true, he doesn't have a case"?

[Swimp]

If the facts to be found in the case -- even if found to be entirely in favor of the nonmovant -- would not change the outcome of the case, then there are no material facts to be found. That is, the facts that are being disputed don't matter one way or another to the outcome of the case.

Example:

Polly Plaintiff sues Danny Defendant for defamation. Polly's claim includes alleged facts about a statement made by Danny, the publication thereof, and damages, but does not allege that Danny knew or should have known the statement was false (an element of the tort). Danny denies the facts alleged by Polly, but those facts don't matter anyway. Even if a jury (or judge in a bench trial) found in favor of Polly on all the facts, they would not be sufficient for her to win because they would not fulfill the elements.

So basically the moving party is saying "even if everything my opponent says is true, he doesn't have a case"?

Yes, I've heard professors use almost those exact words to describe a MSJ.

[Easy-E]

If the facts to be found in the case -- even if found to be entirely in favor of the nonmovant -- would not change the outcome of the case, then there are no material facts to be found. That is, the facts that are being disputed don't matter one way or another to the outcome of the case.

Example:

Polly Plaintiff sues Danny Defendant for defamation. Polly's claim includes alleged facts about a statement made by Danny, the publication thereof, and damages, but does not allege that Danny knew or should have known the statement was false (an element of the tort). Danny denies the facts alleged by Polly, but those facts don't matter anyway. Even if a jury (or judge in a bench trial) found in favor of Polly on all the facts, they would not be sufficient for her to win because they would not fulfill the elements.

So basically the moving party is saying "even if everything my opponent says is true, he doesn't have a case"?

Yes, I've heard professors use almost those exact words to describe a MSJ.

Good to know. I may have actually heard my professor say that in the midst of a civpro stupor.

Got a bunch of civpro questions coming up so stay tuned!

[skri65]

Erie Doctrine Question:

Assuming federal diversity case:

If there is clear State law on point in the fact pattern, and there is no federal law on point at all, is it still an "Erie issue"? As in, is there any merit going through the Byrd balancing test and the outcome-determinative test, etc? It makes sense that you wouldn't because there is no real competing federal law...but could use some confirmation.

In order to be be subject to a REA analysis rather than a Byrd/Hanna/York analysis, does the Federal Rule or Statute have to BOTH be on point AND conflict with State law? Or is it sufficient that the Federal Rule or Statute merely be on point and apply to the fact pattern for it to necessarily apply?

[Nelson]

Erie Doctrine Question:

Assuming federal diversity case:

If there is clear State law on point in the fact pattern, and there is no federal law on point at all, is it still an "Erie issue"? As in, is there any merit going through the Byrd balancing test and the outcome-determinative test, etc? It makes sense that you wouldn't because there is no real competing federal law...but could use some confirmation.

In order to be be subject to a REA analysis rather than a Byrd/Hanna/York analysis, does the Federal Rule or Statute have to BOTH be on point AND conflict with State law? Or is it sufficient that the Federal Rule or Statute merely be on point and apply to the fact pattern for it to necessarily apply?

You've phrased your hypo in a weird way but I'll give this a shot. State substantive law (almost) always controls in a diversity case, but that a federal court may apply federal procedural rules (hence why the FRCP apply to both federal question and diversity cases). Therefore, the issue only comes up if there is a state law rule that conflicts with a federal rule of procedure (either contained in the FRCP or a federal statute). It would be weird for there to be "no federal law on point" because Erie does not apply to the substantive law, but only the procedural rules (i.e. the FRCP).

So the way to do the analysis is to look and see if there is a conflicting provision between the state substantive law and the FRCP. If there is a clear conflict, the federal law controls under the Supremacy Clause unless the federal procedural rule violates the Constitution or the Rules Enabling Act (see below). If there is no clear conflict, but the choice of the federal rule would "materially affect the character/outcome" of the litigation, then you evaluate based on whether the choice of the rule would have an effect under the policy factors from Hanna/Walker.

Any Rules Enabling Act analysis (i.e. whether you are within Sibbach) comes in only when the conflict is between one of the FRCP and a state rule because the FRCP are not directly enacted by statute but instead come into effect through the Act. Because of the laxity of the Sibbach test (a rule is procedural if it governs procedure), you're highly unlikely to invalidate an FRCP for violating the Rules Enabling Act.

If a federal statute (even a "procedural" one) conflicts with state law, the federal statute always controls under the Supremacy Clause. No balancing test necessary.

[skri65]

Erie Doctrine Question:

Assuming federal diversity case:

If there is clear State law on point in the fact pattern, and there is no federal law on point at all, is it still an "Erie issue"? As in, is there any merit going through the Byrd balancing test and the outcome-determinative test, etc? It makes sense that you wouldn't because there is no real competing federal law...but could use some confirmation.

In order to be be subject to a REA analysis rather than a Byrd/Hanna/York analysis, does the Federal Rule or Statute have to BOTH be on point AND conflict with State law? Or is it sufficient that the Federal Rule or Statute merely be on point and apply to the fact pattern for it to necessarily apply?

You've phrased your hypo in a weird way but I'll give this a shot. State substantive law (almost) always controls in a diversity case, but that a federal court may apply federal procedural rules (hence why the FRCP apply to both federal question and diversity cases). Therefore, the issue only comes up if there is a state law rule that conflicts with a federal rule of procedure (either contained in the FRCP or a federal statute). It would be weird for there to be "no federal law on point" because Erie does not apply to the substantive law, but only the procedural rules (i.e. the FRCP).

So the way to do the analysis is to look and see if there is a conflicting provision between the state substantive law and the FRCP. If there is a clear conflict, the federal law controls under the Supremacy Clause unless the federal procedural rule violates the Constitution or the Rules Enabling Act (see below). If there is no clear conflict, but the choice of the federal rule would "materially affect the character/outcome" of the litigation, then you evaluate based on whether the choice of the rule would have an effect under the policy factors from Hanna/Walker.

Any Rules Enabling Act analysis (i.e. whether you are within Sibbach) comes in only when the conflict is between one of the FRCP and a state rule because the FRCP are not directly enacted by statute but instead come into effect through the Act. Because of the laxity of the Sibbach test (a rule is procedural if it governs procedure), you're highly unlikely to invalidate an FRCP for violating the Rules Enabling Act.

If a federal statute (even a "procedural" one) conflicts with state law, the federal statute always controls under the Supremacy Clause. No balancing test necessary.

Ok thank you this is helpful. I think I am struggling with the situation where there is a federal law on point but there is no state law on point, so there is no conflict. From everything I've read, this would call for analysis under Hannah/Byrd. In this analysis, is the debate just whether to apply the federal rule or not? I'm confused in the situation where is just no state law that applies to the situation, so there is no real choice of law.

[Nelson]

Erie Doctrine Question:

Assuming federal diversity case:

If there is clear State law on point in the fact pattern, and there is no federal law on point at all, is it still an "Erie issue"? As in, is there any merit going through the Byrd balancing test and the outcome-determinative test, etc? It makes sense that you wouldn't because there is no real competing federal law...but could use some confirmation.

In order to be be subject to a REA analysis rather than a Byrd/Hanna/York analysis, does the Federal Rule or Statute have to BOTH be on point AND conflict with State law? Or is it sufficient that the Federal Rule or Statute merely be on point and apply to the fact pattern for it to necessarily apply?

You've phrased your hypo in a weird way but I'll give this a shot. State substantive law (almost) always controls in a diversity case, but that a federal court may apply federal procedural rules (hence why the FRCP apply to both federal question and diversity cases). Therefore, the issue only comes up if there is a state law rule that conflicts with a federal rule of procedure (either contained in the FRCP or a federal statute). It would be weird for there to be "no federal law on point" because Erie does not apply to the substantive law, but only the procedural rules (i.e. the FRCP).

So the way to do the analysis is to look and see if there is a conflicting provision between the state substantive law and the FRCP. If there is a clear conflict, the federal law controls under the Supremacy Clause unless the federal procedural rule violates the Constitution or the Rules Enabling Act (see below). If there is no clear conflict, but the choice of the federal rule would "materially affect the character/outcome" of the litigation, then you evaluate based on whether the choice of the rule would have an effect under the policy factors from Hanna/Walker.

Any Rules Enabling Act analysis (i.e. whether you are within Sibbach) comes in only when the conflict is between one of the FRCP and a state rule because the FRCP are not directly enacted by statute but instead come into effect through the Act. Because of the laxity of the Sibbach test (a rule is procedural if it governs procedure), you're highly unlikely to invalidate an FRCP for violating the Rules Enabling Act.

If a federal statute (even a "procedural" one) conflicts with state law, the federal statute always controls under the Supremacy Clause. No balancing test necessary.

Ok thank you this is helpful. I think I am struggling with the situation where there is a federal law on point but there is no state law on point, so there is no conflict. From everything I've read, this would call for analysis under Hannah/Byrd. In this analysis, is the debate just whether to apply the federal rule or not? I'm confused in the situation where is just no state law that applies to the situation, so there is no real choice of law.

How would a federal court sitting in diversity have no state law to apply? It sounds like you're talking about the substantive law?

If there is a federal rule of procedure on point, then it always controls as long as it passes the REA analysis. You only need to do the Hanna factors analysis when there is no federal rule but there are state rules, both procedural, and it's unclear which would apply. Then choose whether to adopt a federal rule or import the state one by analyzing forum shopping.