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

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

Postby Nelson » Fri May 02, 2014 11:24 pm

emarxnj wrote:I think this is a just applying to state vs individuals, but when do I use 5A vs 14A (con law)? I hope I'm wording that right. Con law is too intermingled, I miss the common law.

The Fifth Amendment applies against the fed govt and the Fourteenth against state govt.

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

Postby BVest » Fri May 02, 2014 11:36 pm

emarxnj wrote:For the purposes of an essay exam, why do I care about the Lochner era? It's not going to be the approach applied, was it just in the course to show that the Court can do whatever the hell it wants and the class has taught me nothing


For us, the exam had multiple choice that included historical but no longer controlling cases, and then the essays were controlling cases only.

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

Postby 2807 » Fri May 02, 2014 11:37 pm

emarxnj wrote:I think this is a just applying to state vs individuals, but when do I use 5A vs 14A (con law)? I hope I'm wording that right. Con law is too intermingled, I miss the common law.


The concept is this:

The Bill of Rights (including the 5th Amnd) applied only to the Federal Government.
Then, the 14th Amnd came along and basically made the bill of rights now apply to State actions too.

So, when you talk self incrimination, you are showing that the 5th Amnd prohibits it, and the 14th applies those protections of the 5th to State actions.

Ya'follow?

(and, for the record: Not all protections of the Bill of Rights have been incorporated to the States.)

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

Postby Easy-E » Sat May 03, 2014 12:53 am

BVest wrote:
emarxnj wrote:For the purposes of an essay exam, why do I care about the Lochner era? It's not going to be the approach applied, was it just in the course to show that the Court can do whatever the hell it wants and the class has taught me nothing


For us, the exam had multiple choice that included historical but no longer controlling cases, and then the essays were controlling cases only.


Yeah that's what I'm expecting.

2807 wrote:
emarxnj wrote:I think this is a just applying to state vs individuals, but when do I use 5A vs 14A (con law)? I hope I'm wording that right. Con law is too intermingled, I miss the common law.


The concept is this:

The Bill of Rights (including the 5th Amnd) applied only to the Federal Government.
Then, the 14th Amnd came along and basically made the bill of rights now apply to State actions too.

So, when you talk self incrimination, you are showing that the 5th Amnd prohibits it, and the 14th applies those protections of the 5th to State actions.

Ya'follow?

(and, for the record: Not all protections of the Bill of Rights have been incorporated to the States.)


Got it. Not complicated I guess, I just needed to get it straight.

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

Postby Swimp » Sat May 03, 2014 11:49 am

2807 wrote:Not all protections of the Bill of Rights have been incorporated against the States.)


Sort of unintuitive, but that's how they say it ^

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

Postby Easy-E » Sat May 03, 2014 2:50 pm

Hope this one makes sense. Whats the relationship between "justiciability" and "elements of standing"? Basically, here's how I understand them.


Justiciability
1. Jurisdiction of the federal courts is limited by Article III to “cases” or “controversies”
2. Federal courts may not render any advisory opinions
* Can render declaratory judgments --> real controversy, not hypothetical
3. Courts should not decide issues that are not susceptible to judicial resolution

Elements of Standing
1. Injury in fact: “concrete,” “personal and individual” “actual or imminent, not conjectural or hypothetical”
2. Causal connection “fairly traceable” to the conduct complained of.
3. Likely as opposed to speculative that the injury will be redressed by a favorable decision.


I understand what all that means, but I don't understand how/if it ties together, and how it applies to an exam. Am I correct in that they both fall somewhat under the seperation of powers, or more specifically, what the Court can actually do? Sorry if this is nonsense, I'm fried.

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

Postby Pleasye » Sat May 03, 2014 3:08 pm

emarxnj wrote:Hope this one makes sense. Whats the relationship between "justiciability" and "elements of standing"? Basically, here's how I understand them.


Justiciability
1. Jurisdiction of the federal courts is limited by Article III to “cases” or “controversies”
2. Federal courts may not render any advisory opinions
* Can render declaratory judgments --> real controversy, not hypothetical
3. Courts should not decide issues that are not susceptible to judicial resolution

Elements of Standing
1. Injury in fact: “concrete,” “personal and individual” “actual or imminent, not conjectural or hypothetical”
2. Causal connection “fairly traceable” to the conduct complained of.
3. Likely as opposed to speculative that the injury will be redressed by a favorable decision.


I understand what all that means, but I don't understand how/if it ties together, and how it applies to an exam. Am I correct in that they both fall somewhat under the seperation of powers, or more specifically, what the Court can actually do? Sorry if this is nonsense, I'm fried.

The way we learned it is that standing is part of justiciability. Justiciability is about the scope of the judicial power (so yes what you said, what can the court actually do). The court can't just decide ANY issue it wants to, it can only decide issues that are within its power. Within justiciability is standing (injury causation and redressability), the court only has the power to decide an issue if the person/entity bringing the claim has standing. On an exam, you would briefly discuss justiciability/standing if the set up is "this person wants to sue this other person for this thing" and then you would be like, the person bringing the claim has/doesn't have standing because...

So besides standing the other things that the court has to consider are: ripeness, mootness, political question, constitutional avoidance. Obviously only care about those if you discussed them in class, but I'm sure you did. I can copy paste that portion of my outline into here if you want.

Hope this makes sense lol.

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

Postby Easy-E » Sat May 03, 2014 4:30 pm

Pleasye wrote:
emarxnj wrote:Hope this one makes sense. Whats the relationship between "justiciability" and "elements of standing"? Basically, here's how I understand them.


Justiciability
1. Jurisdiction of the federal courts is limited by Article III to “cases” or “controversies”
2. Federal courts may not render any advisory opinions
* Can render declaratory judgments --> real controversy, not hypothetical
3. Courts should not decide issues that are not susceptible to judicial resolution

Elements of Standing
1. Injury in fact: “concrete,” “personal and individual” “actual or imminent, not conjectural or hypothetical”
2. Causal connection “fairly traceable” to the conduct complained of.
3. Likely as opposed to speculative that the injury will be redressed by a favorable decision.


I understand what all that means, but I don't understand how/if it ties together, and how it applies to an exam. Am I correct in that they both fall somewhat under the seperation of powers, or more specifically, what the Court can actually do? Sorry if this is nonsense, I'm fried.

The way we learned it is that standing is part of justiciability. Justiciability is about the scope of the judicial power (so yes what you said, what can the court actually do). The court can't just decide ANY issue it wants to, it can only decide issues that are within its power. Within justiciability is standing (injury causation and redressability), the court only has the power to decide an issue if the person/entity bringing the claim has standing. On an exam, you would briefly discuss justiciability/standing if the set up is "this person wants to sue this other person for this thing" and then you would be like, the person bringing the claim has/doesn't have standing because...

So besides standing the other things that the court has to consider are: ripeness, mootness, political question, constitutional avoidance. Obviously only care about those if you discussed them in class, but I'm sure you did. I can copy paste that portion of my outline into here if you want.

Hope this makes sense lol.


No, this is good. Thanks. I just don't see how it fits into any of the practice exam questions I have, most seem to kind of assume justiciability, but I'll give it another look.

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

Postby Nelson » Sat May 03, 2014 4:32 pm

emarxnj wrote:No, this is good. Thanks. I just don't see how it fits into any of the practice exam questions I have, most seem to kind of assume justiciability, but I'll give it another look.

If this is for 1L con law, your prof probably isn't going to test justiciability much (unless it's a really weird con law curriculum). It's more of a fed cts. or admin thing.

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

Postby Easy-E » Sat May 03, 2014 5:33 pm

Nelson wrote:
emarxnj wrote:No, this is good. Thanks. I just don't see how it fits into any of the practice exam questions I have, most seem to kind of assume justiciability, but I'll give it another look.

If this is for 1L con law, your prof probably isn't going to test justiciability much (unless it's a really weird con law curriculum). It's more of a fed cts. or admin thing.


Yeah it wasn't a big thing, just something we touched on. Not gonna stress on it, but never know with 30 multiple choice I guess.

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Contract defenses

Postby JDanger007 » Sat May 03, 2014 5:36 pm

My study group and I are trying to hash out the differences between categorizing defenses and are a little stuck on terms
First, what is the difference between Complete and formation defenses. ITs becomes a struggle to fit in what applies especially with misrepresentation, I have it under complete, but it seems like a gray area.
Could someone plase way in on the types of defenses in this matter thanks!!!

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

Postby Easy-E » Sun May 04, 2014 11:54 am

Got my self a little mixed up in my commerce clause analysis. I don't know how differently it's taught, but here's how ours looks (I trimmed this down to just the big steps so its clearer):

1. Is this a regulation of:
a. Channels of interstate commerce? If so, Darby applies.
b. Instrumentalities of commerce? If so, Shreveport Rate Cases applies.
c. Neither? Go to step 2

2. Check for possibility of bootstrap argument

3. Does the statute have a jurisdictional requirement? If not, go to step 4

4. Is the regulated activity economic or commercial in nature?
a. Specify the regulated activity using method in Raich
b. Determine whether activity is economic or commercial. DO NOT RELY ON EFFECTS OF ACTIVITY ON COMMERCE.
Instead, rely on factors such as: [four factors]

5. Apply substantial effects test
a. If answer to 4 was YES --> apply Wickard/McClung version (aggregation allowed, rational basis review)
b. If answer to 4 was NO --> apply Lopez version


So where I'm confused a little is the last step. I understand Wickard/McClung basically allow you to aggregate the activity's effect on interstate commerce, and no law has been struck down under that test. I know that under Lopez, everything gets struck down. Is there an actual "test" to state, or do you just need to say "blah blah Lopez controls so blah blah". IIRC those factors for determining whether activity is economic/commercial came from Lopez, right? Maybe that's where I'm getting lost. Is that the substantial effects test, which is really applied in step 4, and then 5 is just how it gets resolved following that determination.

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

Postby Trout et al » Sun May 04, 2014 12:21 pm

Does an adverse possession analysis change if the land was owned by joint tenants or tenants in common? Would the adverse possessor get the whole thing if successful?

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

Postby Easy-E » Sun May 04, 2014 12:31 pm

Here's one more, taxing and spending power question. I'm confused about part of the 4-prong test from Dole for a Taxing and Spending Power issue. The test says that "the condition must relate to the federal interest in the particular national program", such as underage drinking to highway safety in Dole. Does the Court ever establish any standard as far as what is "related to the federal interest"? Does it just need to be rationally related, and the Court is deferential to legislature on the matter?

Also, is there a bright line rule for when persuasion becomes coercion?

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

Postby bsktbll28082 » Sun May 04, 2014 1:48 pm

I get tripped up on this a lot: common law vs restatements. For contracts, which governs? Common law and case law first, right? Then the restatement?

For example, Rst 90 for promissory estoppel. If I had to analyze a promissory estoppel case, where do I start?

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

Postby kay2016 » Sun May 04, 2014 1:55 pm

bsktbll28082 wrote:I get tripped up on this a lot: common law vs restatements. For contracts, which governs? Common law and case law first, right? Then the restatement?

For example, Rst 90 for promissory estoppel. If I had to analyze a promissory estoppel case, where do I start?


The restatement is persuasive but is not binding authority.. It's a treatise.


You can use the restatement but back it up with case law if at all possible.

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

Postby bsktbll28082 » Sun May 04, 2014 1:59 pm

kay2016 wrote:
bsktbll28082 wrote:I get tripped up on this a lot: common law vs restatements. For contracts, which governs? Common law and case law first, right? Then the restatement?

For example, Rst 90 for promissory estoppel. If I had to analyze a promissory estoppel case, where do I start?


The restatement is persuasive but is not binding authority.. It's a treatise.


You can use the restatement but back it up with case law if at all possible.


So I would cite Pfeiffer and East Providence Credit Union first for questions involving promissory estoppel? Then bring in the definition from the Rst perhaps?

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

Postby Swimp » Sun May 04, 2014 4:31 pm

bsktbll28082 wrote:
kay2016 wrote:
bsktbll28082 wrote:I get tripped up on this a lot: common law vs restatements. For contracts, which governs? Common law and case law first, right? Then the restatement?

For example, Rst 90 for promissory estoppel. If I had to analyze a promissory estoppel case, where do I start?


The restatement is persuasive but is not binding authority.. It's a treatise.


You can use the restatement but back it up with case law if at all possible.


So I would cite Pfeiffer and East Providence Credit Union first for questions involving promissory estoppel? Then bring in the definition from the Rst perhaps?


If you were a lawyer, that's probably what you'd do. On an exam you're better off discussing how the case would come out differently under all the different standards you can think of.

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

Postby First Offense » Sun May 04, 2014 4:41 pm

Trout et al wrote:Does an adverse possession analysis change if the land was owned by joint tenants or tenants in common? Would the adverse possessor get the whole thing if successful?

I imagine if there is a joint tenant/TiC that has a disability (age, etc.) that would toll the AP, it may knock out one tenant but keep the other. Don't know how that would play out though.

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

Postby Easy-E » Mon May 05, 2014 7:39 am

Can someone very quickly explain to me what defines congruence and proportionality please please

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

Postby bsktbll28082 » Mon May 05, 2014 7:45 am

emarxnj wrote:Can someone very quickly explain to me what defines congruence and proportionality please please

Wikipedia is always helpful for conlaw:

http://en.wikipedia.org/wiki/City_of_Bo ... rtionality
http://en.wikipedia.org/wiki/Congressio ... nforcement

I don't know more than that though.

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

Postby Easy-E » Mon May 05, 2014 8:01 am

bsktbll28082 wrote:
emarxnj wrote:Can someone very quickly explain to me what defines congruence and proportionality please please

Wikipedia is always helpful for conlaw:

http://en.wikipedia.org/wiki/City_of_Bo ... rtionality
http://en.wikipedia.org/wiki/Congressio ... nforcement

I don't know more than that though.


Yeah it's been tremendously helpful. This idea just still seems ambiguous to me (which might just be the way it is). Thanks


May have just had an aha! moment

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

Postby 2807 » Mon May 05, 2014 10:13 am

emarxnj wrote:Got my self a little mixed up in my commerce clause analysis. I don't know how differently it's taught, but here's how ours looks (I trimmed this down to just the big steps so its clearer):

1. Is this a regulation of:
a. Channels of interstate commerce? If so, Darby applies.
b. Instrumentalities of commerce? If so, Shreveport Rate Cases applies.
c. Neither? Go to step 2

2. Check for possibility of bootstrap argument

3. Does the statute have a jurisdictional requirement? If not, go to step 4

4. Is the regulated activity economic or commercial in nature?
a. Specify the regulated activity using method in Raich
b. Determine whether activity is economic or commercial. DO NOT RELY ON EFFECTS OF ACTIVITY ON COMMERCE.
Instead, rely on factors such as: [four factors]

5. Apply substantial effects test
a. If answer to 4 was YES --> apply Wickard/McClung version (aggregation allowed, rational basis review)
b. If answer to 4 was NO --> apply Lopez version


So where I'm confused a little is the last step. I understand Wickard/McClung basically allow you to aggregate the activity's effect on interstate commerce, and no law has been struck down under that test. I know that under Lopez, everything gets struck down. Is there an actual "test" to state, or do you just need to say "blah blah Lopez controls so blah blah". IIRC those factors for determining whether activity is economic/commercial came from Lopez, right? Maybe that's where I'm getting lost. Is that the substantial effects test, which is really applied in step 4, and then 5 is just how it gets resolved following that determination.


Just state that the Gov can regulate the aggregate if they can show it has the required effect on commerce. (Cite the case).
Then say, that Lopez stands as a limit on that reach of Gov. (cite Lopez)

Then say , "Here, becasue...." and start your A portion of your IRAC.

I think you are too rigid in the reliance on cases.
Try not to look at it as a case "controlling" an outcome.

Instead:
Take the relevant cases, and argue:
"More like this one...and less like this one" <----- do this
(a case will "control" if the facts of your current issue are "more like it" than others..)
But it is the "more like it" that is the authority.
So, show it.

This was how I was taught. I find it makes the concept of "analyzing" more natural.
Also, It is basically what you will do for a living.
So start to conceptualize it like that now...

Hope that helps.

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

Postby bsktbll28082 » Mon May 05, 2014 1:55 pm

Is there a split of authority on UCC 2-207? Someone mentioned it in class the other day and I had no idea what they were talking about. I know 2-207 deals with after arriving terms, but that's it.

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

Postby BVest » Mon May 05, 2014 2:43 pm

bsktbll28082 wrote:Is there a split of authority on UCC 2-207? Someone mentioned it in class the other day and I had no idea what they were talking about. I know 2-207 deals with after arriving terms, but that's it.


I can't say whether either of these is what they're talking about exactly, but first, there is a bit of a split between ProCD and Gateway where under Gateway there has to be some form of affirmative consent to the additional terms.

Second, the knockout rule for when you have different terms (rather than additional, which is all 2-207 addresses) is only a majority rule. Some states, including California, apply 2-207 to different terms as if they were additional terms.




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