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 » Wed Apr 23, 2014 11:00 pm

Br3v wrote:Is chattel the same thing as personal property?


yes

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

Postby FKASunny » Thu Apr 24, 2014 12:39 am

arklaw13 wrote:
Br3v wrote:Is chattel the same thing as personal property?


yes

but slavyer

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

Postby Trout et al » Fri Apr 25, 2014 7:27 pm

For a given statute, if Congress is using the Commerce power, can they also be using the Tax and Spend power? Or is this a one or the other sort of thing?

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

Postby sublime » Fri Apr 25, 2014 7:29 pm

..

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

Postby Trout et al » Fri Apr 25, 2014 7:33 pm

sublime wrote:
Trout et al wrote:For a given statute, if Congress is using the Commerce power, can they also be using the Tax and Spend power? Or is this a one or the other sort of thing?



They can try to justify under both I believe, see the ACA individual mandate for example.


Ah yes! Thanks - I forgot about that case. So its accurate to say that different parts of a piece of legislation might be justified under commerce and others might be justified under T&S, right?

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

Postby sublime » Fri Apr 25, 2014 7:35 pm

..

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

Postby Frothingslosh » Fri Apr 25, 2014 7:45 pm

sublime wrote:
Trout et al wrote:
sublime wrote:
Trout et al wrote:For a given statute, if Congress is using the Commerce power, can they also be using the Tax and Spend power? Or is this a one or the other sort of thing?



They can try to justify under both I believe, see the ACA individual mandate for example.


Ah yes! Thanks - I forgot about that case. So its accurate to say that different parts of a piece of legislation might be justified under commerce and others might be justified under T&S, right?



I believe that is correct, although someone more knowledgable about con may pop in here and elaborate or correct me.


Yea, I'm pretty sure that's right. The ACA case is a great example because, as you said, the individual mandate provision was pushed with both the commerce clause and tax&spend. So different theories wouldn't be limited to different parts of a piece of legislation; a party can try and support a single provision by two theories simultaneously.

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2807
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Fri Apr 25, 2014 8:05 pm

Im trying to quote you ex-post facto-- I don't know how:
so...
"For a given statute, if Congress is using the Commerce power, can they also be using the Tax and Spend power? Or is this a one or the other sort of thing? "

----------------------------

Take caution with your analysis.
You are peppering right with wrong and calling it analysis.

First, just learn the fundamental powers of Congress.
Precisely.

There is no "Tax and Spend" power.
That is your first mistake.

There is the power to tax.
There is the power to spend that tax money.
There is the power to regulate commerce.

Each of these powers has limitations and elements that must be analyzed.

There will not be an overlap the way you are agreeing.

There MUST be proper validation for all of it, individually.


As far as the ACA....
Without getting too political, Obama tried to sell it as a "penalty" for NOT buying insurance.

SCOTUS held that:

This was a WRONG exercise of the Commerce Clause because Congress cannot stretch their power to "regulate" commerce to include a penalty for NOT participating in commerce.

Then, the court gave Obama a lifeline by doing the dirty work for him and telling the public..... "However, as long as Congress calls the "penalty" a TAX (because it really is one all along, they just did not want to use that dirty word in the sales pitch).. Then it is within Congress' TAXING POWER and is legit.

Humorously, Justice Roberts said "I am not saying it is smart, I am just saying it is constitutional."



So, anyway...

Clearly know the powers and LIMITS of Congress, and you will see that these analysis' become easier.

There will be no overlap.....Because they are very different powers.
Last edited by 2807 on Fri Apr 25, 2014 8:24 pm, edited 1 time in total.

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

Postby Dolphine » Fri Apr 25, 2014 8:08 pm

.
Last edited by Dolphine on Fri Jul 18, 2014 7:31 pm, edited 1 time in total.

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

Postby sublime » Fri Apr 25, 2014 8:09 pm

..

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2807
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Fri Apr 25, 2014 8:52 pm

Dolphine wrote:Our crim law professor is really big on statutory interpretation. Does anyone know of a good resource on how to fine tune that skill or whatever?


Can you give an example of a statute and its subsequent interpretation that your professor used as an example ?

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

Postby Trout et al » Fri Apr 25, 2014 9:00 pm

2807 - thanks, that helps a lot.

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

Postby shifty_eyed » Fri Apr 25, 2014 11:03 pm

What I am doing for crim law (my prof is big on stat interpretation too) is going through my notes and old outlines and highlighting everything my prof ever said about interpreting statutes in class. A lot of the time, he gave general hints about statutory interpretation while discussing specific cases and statutes. Like in arson, our prof said that courts generally use the common-law meanings of elements when the statute adopted the traditional definition of a crime. I feel like that could probably be used in another context, although I can't really think of another crime we studied where this could apply to lol.

I also think it's important to address any ambiguities in using different modes of interpretation and how they conflict. One big thing I see in cases is when the MPC and a specific statute differs in one tiny respect. Then, one side argues that the MPC approach should apply because the statute is so similar to the MPC, and the other will argue that the legislature specifically intended for the state statute to differ sharply from the MPC because it chose to reject adopting the exact wording of the MPC.

Also tying in policy arguments about why one interpretation should be favored is probably always credited.

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

Postby Dolphine » Sat Apr 26, 2014 1:33 am

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Last edited by Dolphine on Fri Jul 18, 2014 7:31 pm, edited 1 time in total.

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Br3v
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Br3v » Sat Apr 26, 2014 1:41 am

Does the coecion/encouragement test for tax and spend apply when talking about congress regulating individuals as well as states? Or just states?

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

Postby bdm261 » Sat Apr 26, 2014 11:18 am

What is the difference between a real covenant and an equitable servitude?

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kay2016
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby kay2016 » Sat Apr 26, 2014 11:36 am

bdm261 wrote:What is the difference between a real covenant and an equitable servitude?



Real covenant remedy is damages, must be in writing, requires privity for both burden and benefit


Equitable servitude remedy is an injunction and doesn't require privity, doesn't necessarily have to be in writing


I'm sure someone else probably can explain it better but

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

Postby First Offense » Sat Apr 26, 2014 11:55 am

kay2016 wrote:
bdm261 wrote:What is the difference between a real covenant and an equitable servitude?



Real covenant remedy is damages, must be in writing, requires privity for both burden and benefit


Equitable servitude remedy is an injunction and doesn't require privity, doesn't necessarily have to be in writing


I'm sure someone else probably can explain it better but

I think modern trends have kind of blurred the lines a bit - our prof said you can get damages for ES and injunctions for RCs now, but generally that is the distinction. Also, Equitable Servitudes are a lot easier to both make and get to run.

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2807
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Sat Apr 26, 2014 12:14 pm

bdm261 wrote:What is the difference between a real covenant and an equitable servitude?


You use the exact same facts and party involvement, but you consider an equitable servitude when you lack the required privity to enforce the covenant.

Remember: Covenant = promise. If you were not a party considered in that promise, you cannot enforce that actual promise.

But you may be able to enforce the effects of it = Equitable Servitude.

And yes, the damages are the big difference.
Covenant= $$ (damages)
ES= Action sought/required
Last edited by 2807 on Sat Apr 26, 2014 12:47 pm, edited 1 time in total.

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

Postby 2807 » Sat Apr 26, 2014 12:31 pm

Br3v wrote:Does the coecion/encouragement test for tax and spend apply when talking about congress regulating individuals as well as states? Or just states?


Can you precisely state the "coercion/encouragement test" you are considering?
I suspect the wording of what you are considering will be important.
Congress does not have the power to "regulate individuals" or "regulate states"
So, you are starting from a weird position.
Clarify this for me.....

Remember :
You must be precise when talking about the powers of congress.
They have the power to tax
They have the power to spend
The have the power to regulate "commerce."

As long as they act within their power, then they are ok. Any desired or ancillary regulation of behavior, if a product of valid exercise of (1) tax power, (2) spend power, or (3) regulation of commerce, is therefore ok.

So, first pinpoint the precise power being used, then see if THAT exercise of power is legit.
There are many moving parts, but they are manageable....
But, you must start at the START.

You are referring to "coercion test" for "tax and spend" when "regulating individuals as well as states"
This is way too sloppy.
There is NO "TAX AND SPEND" power.

You are likely trying to analyze the appropriateness of the motivation behind a tax or expenditure ?
Be precise, and use the law, the tests, and the facts.

You can do it. You are just phrasing it wrong and messing yourself up.

I did the same thing in a bar exam prep test. I phrased the definition of murder wrong, and I never found a way to claw my way out of the hole I accidentally dug.

It happens....

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

Postby 2807 » Sat Apr 26, 2014 12:52 pm

Dolphine wrote:
2807 wrote:
Dolphine wrote:Our crim law professor is really big on statutory interpretation. Does anyone know of a good resource on how to fine tune that skill or whatever?


Can you give an example of a statute and its subsequent interpretation that your professor used as an example ?



Last year's final there was 3 question, 2 of them he gave you the statute and asked you find who was liable for violating the statute under the fact pattern. They were real statutes but he deleted part of them (didn't say that on the exam) you had to infer via statutory interpretation the deleted parts and how the mens rea applied etc. (for example, the statute on its face was strict liability, he deleted the mens rea, but the punishment was life in prison so you had to infer that the legislature couldn't have possibly made it strict liability). Third question was he gave us 2 statutes (one a real state statute and the other was an MPC), and wanted to explain the strengths and weaknesses, so you have to deal with over/underbreath, say what parts were good or hard to prove from a prosecutor standpoint, shit like that.



Well, that is thorough.
Unfortunately, I can't think of any succinct help.
But, It feels like you have good grasp of your task.
If I come up with something to help, I'll come back.

Good job.


Ok, I do recall this: In one of my crim classes, the mens rea and interpretation issues was favored by the prof and tested via multiple choice Q's that dealt with appeals. In the appeal, the court would look at jury instructions and decide if the jury was misinformed on the mens rea by accident or sloppy wording. It was tricky....

This may be a way to see explanations and answers of intent/mens rea via statutes and subsequent court holdings....
Maybe you can dig up some crim law MC Q's and find some clarity.

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Br3v
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Br3v » Sat Apr 26, 2014 4:25 pm

So let me clarify. I was referring to the Stewart Machine test which says for a taxing and spending scheme (I know those are separate powers, but the incentive type scheme we are all familiar with) to be unconstitutional it has to be shown to be coercion, not mere encouragement. Thus the pivotal Q is whether the St really had a choice to not take the money and comply. We see Sebelious showing an instance where it was coercion.

We also have the Dole factors (1) Spending has to be for gen welfare (2) Unambiguous (3) Proximity (4) Other Constitutional provisions may bar. This case again dealt with a scheme between the Feds and the States (Hwy funds and drinking age).

My question: What about if Cong is trying to pull something like this with an individual?

I guess here is an analysis. Cong trying to get person to do something Cong could not mandate normally (Do not smoke). Cong says if you do not smoke you will get $100 a year.

Would we apply the formal Dole standard and coercion/ encouragement test to this? (Its for gen self; its unambiguous; proximity; no other const provisions bar this). This is just mere encouragement, an individual could say no if they want.

Or is that test just apply yo Fed/St relationships? (Cong trying to get St to make a law banning smoking under their police power)?

Would we just say (1) Cong cannot force you not to smoke (assume they cannot). (2) Cong does have discretion to spend for the general welfare though, and they are not forced to spend that $100 without the strings if they do not want to.



2807 wrote:
Br3v wrote:Does the coecion/encouragement test for tax and spend apply when talking about congress regulating individuals as well as states? Or just states?


Can you precisely state the "coercion/encouragement test" you are considering?
I suspect the wording of what you are considering will be important.
Congress does not have the power to "regulate individuals" or "regulate states"
So, you are starting from a weird position.
Clarify this for me.....

Remember :
You must be precise when talking about the powers of congress.
They have the power to tax
They have the power to spend
The have the power to regulate "commerce."

As long as they act within their power, then they are ok. Any desired or ancillary regulation of behavior, if a product of valid exercise of (1) tax power, (2) spend power, or (3) regulation of commerce, is therefore ok.

So, first pinpoint the precise power being used, then see if THAT exercise of power is legit.
There are many moving parts, but they are manageable....
But, you must start at the START.

You are referring to "coercion test" for "tax and spend" when "regulating individuals as well as states"
This is way too sloppy.
There is NO "TAX AND SPEND" power.

You are likely trying to analyze the appropriateness of the motivation behind a tax or expenditure ?
Be precise, and use the law, the tests, and the facts.

You can do it. You are just phrasing it wrong and messing yourself up.

I did the same thing in a bar exam prep test. I phrased the definition of murder wrong, and I never found a way to claw my way out of the hole I accidentally dug.

It happens....

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Br3v
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby Br3v » Sat Apr 26, 2014 4:37 pm

Article 1 §8
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;


Also, it seems to me this reads to say:
Cong has the power to tax for the general welfare
Cong has the power to spend for the general welfare



But you say it is just Cong has the power to tax.
Cong has the power to spend for the general welfare

Is there a reason you say that and what is the difference?

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

Postby AlanShore » Sat Apr 26, 2014 4:44 pm

sorry if dumb question.

can someone explain the difference between independent agencies and executive agencies and how they are formed?

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2807
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Re: 1L Substantive Law Questions (Get your BLL on ITT)

Postby 2807 » Sat Apr 26, 2014 7:03 pm

Br3v wrote:Article 1 §8
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;


Also, it seems to me this reads to say:
Cong has the power to tax for the general welfare
Cong has the power to spend for the general welfare



But you say it is just Cong has the power to tax.
Cong has the power to spend for the general welfare

Is there a reason you say that and what is the difference?




This has the potential to get way too deep, so lets try to keep it simple.

Congress can ONLY act within its enumerated powers.
There are many of them. (Tax, spend, etc are just a few...)
Also, congress has the powers associated over time with the "provide... for the general welfare" clause

So..
1. The "power to tax" is a power, with 100s of years of case law and interpretations.
2. The "Power to spend" is a power, with 100s of years case law and interpretations.
3. And... "provide...for the general welfare" is similar.
4. THEN... you have the "necessary and proper" clause which is interpreted to allow virtually anything Congress needs to do to carry into effect all powers vested in the federal government. “Necessary and proper” is interpreted broadly to permit all means appropriate or convenient to carry out enumerated constitutional ends.

This always flows back to some sort of enumerated power. Remember, an old trick is to call the power to spend for the general welfare the "general welfare power." There is NO such power, and you will see this as a sucker choice in MC all the time. trust me :)

So, when you analyze an expenditure for the general welfare, you must connect the dots and show the validity of Congress' motivation.

As far as your initial question about "spending" for an individual and the coercion argument...
The Issue is likely:
I: Whether this individual $100 expenditure is a valid exercise of Congressional power to support the general welfare?
R: Say it ! ....
A: Use your facts. And... add...., the expenditure is not to be individual, it is to be for the "general welfare" but the argument/case law supports the aggregate-of-individuals on the general welfare concept.
C: If the court sees this as an aggregate concept, then it is likely appropriate.

Your question is also considering the Fed/State analysis for "conditional grants" of money and the coercion issue. I think that is not the issue.
The issue would be "is the general welfare being supported appropriately by offering this individual $100"

I just can't seem to wrap my head around this anymore at the moment.
let's let this sink in for a bit.




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