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

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arklaw13
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby arklaw13 » Sun Dec 08, 2013 12:10 am

emarxnj wrote:Quick hypo that's been bothering me. 17 year old girl's car breaks down in the snow in middle of nowhere, finally finds a motel which seems to be the only thing around for miles. She goes to rent a room, owner sees she is desperate and has nowhere else to turn, and instead of charging the usual 100$ rate, he charges her 200$. I think that's everything relevant.

Do her parents have to pay this (or at least, can they get $100 back)? Shes a minor obviously, but no issue because its for necessity (shelter). Is his raising of the price unconscionable? Hotels raise prices for certain events and holidays all the time, but this is pretty different, especially since the rate for anyone else that night seemed to be $100. Doesn't seem to be a duress issue since he didn't really threaten her unless you can argue a "constructive threat" since she had no other option. Unconscionability due to the lack of meaningful choice seems okay too, but not great. What do you guys think?


I don't think there's a way to split off the extra $100. Courts don't look at the consideration as long as it isn't nominal, and unconscionability will just get the whole contract voided. I don't think it's substantively unconscionable since there's nothing inherently wrong about paying $200 for a hotel room. There might be an argument that it's procedurally unconscionable because of the relative bargaining power in the situation.

Duress has to come from affirmative actions by the defendant and the defendant didn't cause anything that led to her lack of choice.

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Presidentjlh
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Presidentjlh » Sun Dec 08, 2013 12:17 am

I was going to argue there could be duress, but that's true, arklaw, no affirmative actions.

Procedural unconscionability is best here: No meaningful choice and a real bargaining power problem. As it is noted I believe in the Williams case, I could be wrong, it is not necessary for both procedural and substantive unconscionability to exist, if there is a great amount of one or the other the court can simply use that.

However, could you also possibly consider undue influence?

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Easy-E
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Easy-E » Sun Dec 08, 2013 1:15 am

Presidentjlh wrote:I was going to argue there could be duress, but that's true, arklaw, no affirmative actions.

Procedural unconscionability is best here: No meaningful choice and a real bargaining power problem. As it is noted I believe in the Williams case, I could be wrong, it is not necessary for both procedural and substantive unconscionability to exist, if there is a great amount of one or the other the court can simply use that.

However, could you also possibly consider undue influence?


Procedural unconscionability was what I was thinking too, I wasn't 100% clear on what lack of meaningful choice entailed, but I guess considering the only option is sleep in the car and freeze.

Good point on affirmative action by D, my brain is fried on K's right now.

arklaw13
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby arklaw13 » Sun Dec 08, 2013 1:42 am

emarxnj wrote:
Presidentjlh wrote:I was going to argue there could be duress, but that's true, arklaw, no affirmative actions.

Procedural unconscionability is best here: No meaningful choice and a real bargaining power problem. As it is noted I believe in the Williams case, I could be wrong, it is not necessary for both procedural and substantive unconscionability to exist, if there is a great amount of one or the other the court can simply use that.

However, could you also possibly consider undue influence?


Procedural unconscionability was what I was thinking too, I wasn't 100% clear on what lack of meaningful choice entailed, but I guess considering the only option is sleep in the car and freeze.

Good point on affirmative action by D, my brain is fried on K's right now.


To be clear, "affirmative action" isn't anywhere in the BLL, that's just my spin on it. But I think the Restatement definition of duress requires either an improper threat by the defendant or some coercion by a third party. So "affirmative action" or maybe "purposeful action" seems like the bare minimum you would need for duress to even be a possible defense.

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

Postby Swimp » Sun Dec 08, 2013 1:47 am

emarxnj wrote:
Presidentjlh wrote:I was going to argue there could be duress, but that's true, arklaw, no affirmative actions.

Procedural unconscionability is best here: No meaningful choice and a real bargaining power problem. As it is noted I believe in the Williams case, I could be wrong, it is not necessary for both procedural and substantive unconscionability to exist, if there is a great amount of one or the other the court can simply use that.

However, could you also possibly consider undue influence?


Procedural unconscionability was what I was thinking too, I wasn't 100% clear on what lack of meaningful choice entailed, but I guess considering the only option is sleep in the car and freeze.

Good point on affirmative action by D, my brain is fried on K's right now.


A contract has to be both procedurally and substantively unconscionable to be considered unconscionable, though. I agree that the girl has no meaningful choice in the hypo, so procedural unconscionability is a pretty easy sell. Substantive, yeah, is harder. $200 isn't really that much more than $100.

I think duress isn't out of the question though. She has no reasonable alternative given the circumstances than to pay the increased rate, so all you need to show is that her assent was induced by an improper threat. Given the huge bargaining power differential here, I think it would be a slam dunk to say that there was a clear implicit threat that she'd be out on her ass freezing to death if she didn't agree, and that threat was improper based on the catch-all provided by the restatement--the outcome is not on fair terms and it's a use of power for illegitimate reasons. I think general, super discretionary provisions are included for situations just like this where a kid is being pushed around in ways that just skirt what's legal and what isn't.

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feralinfant
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby feralinfant » Sun Dec 08, 2013 1:54 am

So I know this question seems sort of basic but...When you're doing an Erie analysis and you're weighing the twin evils against any countervailing federal interest, what sort of things qualify?

Like in Byrd they're like the 7th amendment love for jury trials qualifies but whats the whole scope of what constitutes a "federal interest" in an erie analysis.

ETA: So for example I'm looking at an old example that's dealing with Forum Non. Is the federal court's interest in controlling its docket and not hearing cases it's not well positioned to hear (in its opinion) a countervailing federal interest?
Last edited by feralinfant on Sun Dec 08, 2013 1:57 am, edited 1 time in total.

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

Postby Swimp » Sun Dec 08, 2013 1:56 am

feralinfant wrote:So I know this question seems sort of basic but...When you're doing an Erie analysis and you're weighing the twin evils against any countervailing federal interest, what sort of things qualify?

Like in Byrd they're like the 7th amendment love for jury trials qualifies but whats the whole scope of what constitutes a "federal interest" in an erie analysis.


The Federal interest is totally case by case. It's just whatever the policy reason is for the Federal norm that's clashing with the state norm.

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

Postby feralinfant » Sun Dec 08, 2013 1:58 am

Swimp wrote:
feralinfant wrote:So I know this question seems sort of basic but...When you're doing an Erie analysis and you're weighing the twin evils against any countervailing federal interest, what sort of things qualify?

Like in Byrd they're like the 7th amendment love for jury trials qualifies but whats the whole scope of what constitutes a "federal interest" in an erie analysis.


The Federal interest is totally case by case. It's just whatever the policy reason is for the Federal norm that's clashing with the state norm.


Thanks, this may not seem like much but actually helps.

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

Postby arklaw13 » Sun Dec 08, 2013 2:01 am

feralinfant wrote:So I know this question seems sort of basic but...When you're doing an Erie analysis and you're weighing the twin evils against any countervailing federal interest, what sort of things qualify?

Like in Byrd they're like the 7th amendment love for jury trials qualifies but whats the whole scope of what constitutes a "federal interest" in an erie analysis.


I don't think there's a hard-and-fast rule as to what a federal interest is. Just try and think of any reason that the federal government would want a particular rule to be followed. Anything having to with foreign plaintiffs or claims based on things that happen abroad could have a federal interest. That's why forum non conviens, which is federal common law, wins out even when the state law would say that it be heard in the state. The federal government has an interest in balancing relations with foreign nations.

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

Postby feralinfant » Sun Dec 08, 2013 2:11 am

arklaw13 wrote:
feralinfant wrote:So I know this question seems sort of basic but...When you're doing an Erie analysis and you're weighing the twin evils against any countervailing federal interest, what sort of things qualify?

Like in Byrd they're like the 7th amendment love for jury trials qualifies but whats the whole scope of what constitutes a "federal interest" in an erie analysis.


I don't think there's a hard-and-fast rule as to what a federal interest is. Just try and think of any reason that the federal government would want a particular rule to be followed. Anything having to with foreign plaintiffs or claims based on things that happen abroad could have a federal interest. That's why forum non conviens, which is federal common law, wins out even when the state law would say that it be heard in the state. The federal government has an interest in balancing relations with foreign nations.


Thanks much.

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bandenjamin
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby bandenjamin » Sun Dec 08, 2013 3:52 am

emarxnj wrote:Quick hypo that's been bothering me. 17 year old girl's car breaks down in the snow in middle of nowhere, finally finds a motel which seems to be the only thing around for miles. She goes to rent a room, owner sees she is desperate and has nowhere else to turn, and instead of charging the usual 100$ rate, he charges her 200$. I think that's everything relevant.

Do her parents have to pay this (or at least, can they get $100 back)? Shes a minor obviously, but no issue because its for necessity (shelter). Is his raising of the price unconscionable? Hotels raise prices for certain events and holidays all the time, but this is pretty different, especially since the rate for anyone else that night seemed to be $100. Doesn't seem to be a duress issue since he didn't really threaten her unless you can argue a "constructive threat" since she had no other option. Unconscionability due to the lack of meaningful choice seems okay too, but not great. What do you guys think?


Assuming she did not in fact pay the $200 but only promised that she would pay, I don't think she (or her parents) would have to pay anything under sec 14 of the restatement. I could be wrong, it's late and I've been trying to fill my head with civ pro all day. If you look to comment c. it also talks about it being a one-way street. If he felt bad and offered her the room for $20 and later found out she was a millionaire, she could still get away with paying the $20. Stupid kids!

If she paid, then she's pretty much out of luck cause the contract wouldn't be in breach, so wouldn't really be voidable any longer.

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

Postby MCFC » Sun Dec 08, 2013 7:46 am

So in thinking about reasonableness for personal jurisdiction and the 5 Asahi factors, anyone have any solid examples of the shared state interest in furthering social policies? In running through hypos I can never really think up anything more than a real cursory discussion of that one.

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

Postby Easy-E » Sun Dec 08, 2013 12:39 pm

bandenjamin wrote:
emarxnj wrote:Quick hypo that's been bothering me. 17 year old girl's car breaks down in the snow in middle of nowhere, finally finds a motel which seems to be the only thing around for miles. She goes to rent a room, owner sees she is desperate and has nowhere else to turn, and instead of charging the usual 100$ rate, he charges her 200$. I think that's everything relevant.

Do her parents have to pay this (or at least, can they get $100 back)? Shes a minor obviously, but no issue because its for necessity (shelter). Is his raising of the price unconscionable? Hotels raise prices for certain events and holidays all the time, but this is pretty different, especially since the rate for anyone else that night seemed to be $100. Doesn't seem to be a duress issue since he didn't really threaten her unless you can argue a "constructive threat" since she had no other option. Unconscionability due to the lack of meaningful choice seems okay too, but not great. What do you guys think?


Assuming she did not in fact pay the $200 but only promised that she would pay, I don't think she (or her parents) would have to pay anything under sec 14 of the restatement. I could be wrong, it's late and I've been trying to fill my head with civ pro all day. If you look to comment c. it also talks about it being a one-way street. If he felt bad and offered her the room for $20 and later found out she was a millionaire, she could still get away with paying the $20. Stupid kids!

If she paid, then she's pretty much out of luck cause the contract wouldn't be in breach, so wouldn't really be voidable any longer.


My understanding was a minor CAN enter a K only for necessities. This doesn't appear to be provided for by the Restatement, but my professor mentioned it explicitly.

Thanks for the help on this one guys. Looks arguments can be made for both duress/unconscionability. Now that I look back, my professor never mentioned anything about an "affirmative action" for duress, but does seem somewhat implicit that the non-aggrieved party needs to "do something". As far as unconscionability, I think there's something to be said concerning price unconscionability, and whether his decision to charge her twice the normal rate can be considered predatory pricing or just normal actions to mimimize business risk. I don't think it helps the motel owners case much, since it's not like he decided to raise this price prior to her arrival (as far as we know), but maybe worth mentioning?

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

Postby arklaw13 » Sun Dec 08, 2013 1:45 pm

MCFC wrote:So in thinking about reasonableness for personal jurisdiction and the 5 Asahi factors, anyone have any solid examples of the shared state interest in furthering social policies? In running through hypos I can never really think up anything more than a real cursory discussion of that one.


Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims. I think the state's interest is going to come up whenever one or more of the parties is actually a citizen of the state, or if there was harm done in the state. Like in tort claims, for instance: a state has an interest in protecting its citizens from harm.

If the plaintiff is trying to sue in a state other than where the activity that gave rise to the lawsuit occurred, perhaps for reasons of getting venue for multiple defendants or because its more convenient for the plaintiff, I don't think you're going to run into a good argument that the state has a particular interest in the matter being litigated there.

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

Postby MCFC » Sun Dec 08, 2013 2:01 pm

arklaw13 wrote:
MCFC wrote:So in thinking about reasonableness for personal jurisdiction and the 5 Asahi factors, anyone have any solid examples of the shared state interest in furthering social policies? In running through hypos I can never really think up anything more than a real cursory discussion of that one.


Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims. I think the state's interest is going to come up whenever one or more of the parties is actually a citizen of the state, or if there was harm done in the state. Like in tort claims, for instance: a state has an interest in protecting its citizens from harm.

If the plaintiff is trying to sue in a state other than where the activity that gave rise to the lawsuit occurred, perhaps for reasons of getting venue for multiple defendants or because its more convenient for the plaintiff, I don't think you're going to run into a good argument that the state has a particular interest in the matter being litigated there.


Right, and thanks for the response. I guess I should have been clearer though. I get what the individual state's interest might be (or might not be). That one is pretty easy to make arguments on both sides of.

The factor I was talking about is the "shared interest of the several States in furthering fundamental substantive social policies". In Asahi, O'Connor talks about how it's an international case, and that plays into things, but beyond those sorts of cases I always have trouble coming up with arguments for this factor.

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

Postby Br3v » Sun Dec 08, 2013 2:10 pm

Contracts.

Can someone explain waivers?
If my K says you can pay on the first, you just start paying in the 15th and I accept it without saying anything. I have waived my right to accept it on the first right? But going forward, I can say "hey you have to pay on the first like the K says" as long as I give reasonable notice?

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

Postby Br3v » Sun Dec 08, 2013 2:11 pm

MCFC wrote:
arklaw13 wrote:
MCFC wrote:So in thinking about reasonableness for personal jurisdiction and the 5 Asahi factors, anyone have any solid examples of the shared state interest in furthering social policies? In running through hypos I can never really think up anything more than a real cursory discussion of that one.


Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims. I think the state's interest is going to come up whenever one or more of the parties is actually a citizen of the state, or if there was harm done in the state. Like in tort claims, for instance: a state has an interest in protecting its citizens from harm.

If the plaintiff is trying to sue in a state other than where the activity that gave rise to the lawsuit occurred, perhaps for reasons of getting venue for multiple defendants or because its more convenient for the plaintiff, I don't think you're going to run into a good argument that the state has a particular interest in the matter being litigated there.


Right, and thanks for the response. I guess I should have been clearer though. I get what the individual state's interest might be (or might not be). That one is pretty easy to make arguments on both sides of.

The factor I was talking about is the "shared interest of the several States in furthering fundamental substantive social policies". In Asahi, O'Connor talks about how it's an international case, and that plays into things, but beyond those sorts of cases I always have trouble coming up with arguments for this factor.


Shared interests = efficiency. Do we want to split this case up all over and have increased litigation costs on the system?

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

Postby arklaw13 » Sun Dec 08, 2013 2:20 pm

MCFC wrote:
arklaw13 wrote:
MCFC wrote:So in thinking about reasonableness for personal jurisdiction and the 5 Asahi factors, anyone have any solid examples of the shared state interest in furthering social policies? In running through hypos I can never really think up anything more than a real cursory discussion of that one.


Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims. I think the state's interest is going to come up whenever one or more of the parties is actually a citizen of the state, or if there was harm done in the state. Like in tort claims, for instance: a state has an interest in protecting its citizens from harm.

If the plaintiff is trying to sue in a state other than where the activity that gave rise to the lawsuit occurred, perhaps for reasons of getting venue for multiple defendants or because its more convenient for the plaintiff, I don't think you're going to run into a good argument that the state has a particular interest in the matter being litigated there.


Right, and thanks for the response. I guess I should have been clearer though. I get what the individual state's interest might be (or might not be). That one is pretty easy to make arguments on both sides of.

The factor I was talking about is the "shared interest of the several States in furthering fundamental substantive social policies". In Asahi, O'Connor talks about how it's an international case, and that plays into things, but beyond those sorts of cases I always have trouble coming up with arguments for this factor.


The shared-state interests thing really goes to the whole dichotomy of whether PJ is based on state sovereignty or individual liberty interests. I think that individual liberty interest has really won the debate, because a defendant can just waive PJ and then state's interests don't matter. My prof takes this position as well. So I don't think you're ever going to have an instance where an individual's liberty interest against being subject to PJ in a state is ever outweighed by the state's interest in the lawsuit being heard there.

Bottom line, I think the only good arguments you can make re: state interests are when the tension is between hearing the case in a particular state or in another country or another state. So it's going to be a very limited number of situations. That's my take.

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

Postby Swimp » Sun Dec 08, 2013 2:33 pm

arklaw13 wrote:Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims.


Except that the accident happened in CA, and CA has an interest in encouraging foreign ∆s to settle tort claims brought in CA courts, which they may be less apt to do if they think they're not going to be able to efficiently implead their indemnitors.

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

Postby Easy-E » Sun Dec 08, 2013 2:37 pm

Br3v wrote:Contracts.

Can someone explain waivers?
If my K says you can pay on the first, you just start paying in the 15th and I accept it without saying anything. I have waived my right to accept it on the first right? But going forward, I can say "hey you have to pay on the first like the K says" as long as I give reasonable notice?


My understanding was that you can revoke the waiver if I give notice (as you said) AND if it was infrequent. If you've been paying me on the 15th of every month for 2 years, I'm not sure you can revoke the waiver of payment on the 1st even then. But if it was just the last two months out of 24 months, I think yes, you can basically reinstate that 1st of the month condition if you notify. Someone correct me if I am wrong, but that's how I understood it.



MOAR K's---> UCC 2-206, can someone try to explain the non-conforming goods/accommodation as acceptance of offer deal? I can ship you goods that don't conform to the K if I let you know that I'm doing it as a favor? The only example I can think of is a situation where the value of goods has increased prior to my acceptance of offer, and I ship SOME of the amount you specify at the old price, because I'm just such a nice guy? Pls advise.

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

Postby Swimp » Sun Dec 08, 2013 2:49 pm

emarxnj wrote:MOAR K's---> UCC 2-206, can someone try to explain the non-conforming goods/accommodation as acceptance of offer deal? I can ship you goods that don't conform to the K if I let you know that I'm doing it as a favor? The only example I can think of is a situation where the value of goods has increased prior to my acceptance of offer, and I ship SOME of the amount you specify at the old price, because I'm just such a nice guy? Pls advise.


I'm not sure if this will answer your question, but I think that part is in there to preserve rights on both sides of the transaction.

On the one hand, if an offeree ships goods that don't conform to the K, the offeror needs to be able to say "Hey, you accepted my offer, but this is a breach."

On the other hand, the offeree needs to be able to make gifts if he feels like it without worrying about being held to the terms of a K he didn't mean to accept.

So, to make sure we can distinguish between the two situations, we require offerees to communicate in advance whether they're accepting or not.

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

Postby dj_roomba » Sun Dec 08, 2013 2:53 pm

Thanks for answering my other questions guys.

Couple K's Q's:
1. Does a term have to be ambiguous for parol evidence to be allowed? (Not talking about the UCC, which I know doesn't require ambiguity)
2. Contract interpretation: when there are two conflicting agreements on a term (ie: what is a chicken), when do the courts void the entire contract (like in Peerless) or instead void the term only and add in an objective meaning (or decide which subjective meaning is better). Basically, when do the courts void the contract or decide to fix it?

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

Postby arklaw13 » Sun Dec 08, 2013 3:00 pm

Swimp wrote:
arklaw13 wrote:Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims.


Except that the accident happened in CA, and CA has an interest in encouraging foreign ∆s to settle tort claims brought in CA courts, which they may be less apt to do if they think they're not going to be able to efficiently implead their indemnitors.


They said the interest of CA in having Asahi there were "slight" because Asahi was a third-party defendant. I don't think any state interest would have outweighed the burden on bringing a foreign company into California when they never did business there. This goes back to my earlier point about state sovereignty vs. individual liberty interest. If there really is a significant burden on the defendant such that it doesn't seem fair to make him come to a state, I don't think any of the state's interest factors are going to outweigh that.

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

Postby Swimp » Sun Dec 08, 2013 3:05 pm

arklaw13 wrote:
Swimp wrote:
arklaw13 wrote:Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims.


Except that the accident happened in CA, and CA has an interest in encouraging foreign ∆s to settle tort claims brought in CA courts, which they may be less apt to do if they think they're not going to be able to efficiently implead their indemnitors.


They said the interest of CA in having Asahi there were "slight" because Asahi was a third-party defendant. I don't think any state interest would have outweighed the burden on bringing a foreign company into California when they never did business there. This goes back to my earlier point about state sovereignty vs. individual liberty interest. If there really is a significant burden on the defendant such that it doesn't seem fair to make him come to a state, I don't think any of the state's interest factors are going to outweigh that.


Yeah, that argument is stronger, I was just pointing out the other side for the heck of it. You never know what you're going to have to argue on the exam.

arklaw13
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby arklaw13 » Sun Dec 08, 2013 3:06 pm

Swimp wrote:
arklaw13 wrote:
Swimp wrote:
arklaw13 wrote:Well in Asahi the companies weren't in California, so California didn't have that much of an interest in litigating their claims.


Except that the accident happened in CA, and CA has an interest in encouraging foreign ∆s to settle tort claims brought in CA courts, which they may be less apt to do if they think they're not going to be able to efficiently implead their indemnitors.


They said the interest of CA in having Asahi there were "slight" because Asahi was a third-party defendant. I don't think any state interest would have outweighed the burden on bringing a foreign company into California when they never did business there. This goes back to my earlier point about state sovereignty vs. individual liberty interest. If there really is a significant burden on the defendant such that it doesn't seem fair to make him come to a state, I don't think any of the state's interest factors are going to outweigh that.


Yeah, that argument is stronger, I was just pointing out the other side for the heck of it. You never know what you're going to have to argue on the exam.


Half my K exam was arguing about risk allocation in organic Kale farming. Hypo was somewhat ridiculous lol




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