July 2015 California Bar Exam Forum

[Tiago Splitter]

Quick last minute question:
Dormant commerce clause vs privileges and immunities of Article 4: is there an easy way to know which one to apply? Are there a lot of essay situations where you can argue both?

P&I says you can't discriminate against out of staters. DCC says a state can't interfere with interstate commerce. So if there is discrimination against out of staters which burdens interstate commerce you would use both. But in that case the test for both is whether it is necessary for an important government purpose. If it does not discriminate then P&I doesn't apply, and it passes DCC muster as long as the benefits outweigh the burdens.

[Zaizei]

So, what time should we *really* arrive? Is 8 really OK?

That's what I plan to do. Be there at 8 a.m.

[SpAcEmAn SpLiFF]

Quick last minute question:
Dormant commerce clause vs privileges and immunities of Article 4: is there an easy way to know which one to apply? Are there a lot of essay situations where you can argue both?

P&I says you can't discriminate against out of staters. DCC says a state can't interfere with interstate commerce. So if there is discrimination against out of staters which burdens interstate commerce you would use both. But in that case the test for both is whether it is necessary for an important government purpose. If it does not discriminate then P&I doesn't apply, and it passes DCC muster as long as the benefits outweigh the burdens.

Thanks dude

[brotherdarkness]

Good luck all!

[BuenAbogado]

Good luck all!

Godspeed my brother.

[BrokenMouse]

lol

[acronyx]

Quick last minute question:
Dormant commerce clause vs privileges and immunities of Article 4: is there an easy way to know which one to apply? Are there a lot of essay situations where you can argue both?

P&I says you can't discriminate against out of staters. DCC says a state can't interfere with interstate commerce. So if there is discrimination against out of staters which burdens interstate commerce you would use both. But in that case the test for both is whether it is necessary for an important government purpose. If it does not discriminate then P&I doesn't apply, and it passes DCC muster as long as the benefits outweigh the burdens.

Don't forget that P&I under the 14th Amd is almost never used (except discrimination involving right to travel etc). It's almost always P&I under 4th Amd. Any discrimination involving civil liberties or economic activity will generally be P&I under 4th. Sorry if this f'd you up.

Minor and likely irrelevant, but:
14A = P OR I
4A = P AND I

[wentmat]

Can someone explain the bare bones of what I need to know about anti-SLAPP / First Amendment issues?

Sure, here is the quick down and dirty:

Basically, if a suit attempts to regulate/seek damages related to speech (i.e. extortion, defamation, etc.), you can file an anti-SLAPP motion that the claim/case attempts to seek damages for otherwise permissible/protected speech.

There are 4 bases: (1) The claim seeks damages for speech made during a legislative, judicial, or executive proceeding; (2) It seeks damages for speech relating to a legislative, judicial, or executive proceeding; (3) (THE MOST COMMON) It seeks damages for speech given in a public forum or related to a public matter; or (4) (CATCH ALL) It seeks damages for speech otherwise protected by the 1st Amendment.

So, basically a Constitution/1st Amendment cross-over.

If you prevail and it is determined the that the action was reckless or malicious, you may file a SLAPP-back action for punitives and damages.

So let's say that P sues D for defamation and IIED or something else.

D responds and says that the cause of action is basically for his protected speech in a public forum or is related to a public matter.

Then what happens? P has to prevail on the defamation cause to defeat the anti-slapp measures? Does he have to prevail on the IIED as well? Or at all?

In other words, how would you do the analysis after the you get to the "So, basically a Constitution/1st Amendment cross-over" portion?

Unless that's our cue to show that the D has protected speech under the 1st Amendment? And if the D can prove his speech was protected, how do you address the rest of the anti-slapp motion?

That's what I'm saying, I think it forces you into a First Amendment analysis. For example, you're being sued for hate speech. Can the gov grant a judgment in favor of party seeking damages for injurious hate speech?

You start with the procedure and discuss the basis to strike the Complaint: Anti-SLAPP.

Then, discuss First Amendment application for the substantive Q.

Then, SLAPP-back--which requires moving party to prove the original action was meritless/malicious.

This is helpful, but one point of detail - does it force you into a 1st amendment analysis, or an analysis of whether the P would succeed in whatever their original action was (likely to be something like defamation or invasion of privacy)?

I had thought that once the D shows that anti-SLAPP is in play (so by showing it related to a public matter etc) the burden shifts to the P, who has to show that they will probably succeed in their claim for, say, defamation (another point of detail - I didn't think you needed to show you will definitely succeed, as this is a motion to strike and not a substantive hearing on the merits?).

Then, if P cannot show they would probably succeed, you can SLAPP-back.

Apologies if this seems pedantic, but I have anti-SLAPP down as an area where we would see a Torts / CA Civ Pro cross over, with a bit of Con, but the emphasis would likely be in showing you know the anti-SLAPP rules plus can do a, say, defamation analysis.

Does this make sense?

[Tiago Splitter]

And we're off

[a male human]

[lawbosscalif]

The 2nd to last July administration that's 3 days long!!! Woo Woo!!! Show those 2017 Chumps who only have to take a 2 day exam.

Good luck all!

[InTheWideLand I Walk]

Wut.. Just.... Happened....

[lawbosscalif]

Can you expand on that a little more?

[ilovetheatre]

That could have ben worse...

[Aureusmons]

that was fucking impossible

[Underoath]

I didn't finish the 2nd essay...eh...spent too much time on 3rd

[Underoath]

well I finished, but it was poorly done haha

[Calicakes]

Wut.. Just.... Happened....

No Shit. Nothing you and I went over. Jaysus. I hope I BS'd enough on 1 and 2. I feel ok with 3.

[Calicakes]

Wut.. Just.... Happened....

No Shit. Nothing you and I went over. Jaysus. I hope I BS'd enough on 1 and 2. I feel ok with 3.

Florida v. Jardines

[a male human]

Are you posting while doing your PT?

[Calicakes]

Are you posting while doing your PT?

Wow, I'd be superhuman if I could do that.

[CALawGirl]

Are you posting while doing your PT?

Wow, I'd be superhuman if I could do that.

I remember reading you had special accomodation and have 5 days to complete the exam? So I guess you are done for the day. I also recall you went to Southwestern Law School. I did too. So much for "top law school" forum. Lol!

Anyway, I also thought I flunked a couple of essays (Contacts & Wills/Trust) when I took it in Feb. but I passed. You just never know.

Good luck!

[Calicakes]

Are you posting while doing your PT?

Wow, I'd be superhuman if I could do that.

I remember reading you had special accomodation and have 5 days to complete the exam? So I guess you are done for the day. I also recall you went to Southwestern Law School. I did too. So much for "top law school" forum. Lol!

Anyway, I also thought I flunked a couple of essays (Contacts & Wills/Trust) when I took it in Feb. but I passed. You just never know.

Good luck!

Hey Now, SW law is in the top 3rd tier!!

[Aureusmons]

anyone else having trouble uploading to softest?

[robinhoodOO]

Day 1 is done!

3 MBE subjects for the essays. Surprised.

I'm guessing PR, CP, and ConLaw for Thursday.

BRING ON THE MBE'S!