1L Substantive Law Questions (c/o 2017) Forum

[CardozoLaw09]

CivPro - Erie

When analyzing with Hanna first.
If the federal directive is on point but doesn't really clash with the state law (same result as it would have been in state court)
could it be said that the Federal court chose to apply the federal statute or the state statute?

I hope my question was understood

State

[drumstickies]

conspiracy: a defendant can be guilty of both the substantive crime and the conspiracy, right?

[03152016]

ya
the conspiracy is a crime in itself
it's not like complicity

tho if crime didn't happen, conspiracy and attempt are merged in most Js
if they're not, whether it's kosher depends on statutory construction
you apply the tinghitella and blockburger tests

[drumstickies]

ya
the conspiracy is a crime in itself
it's not like complicity

tho if crime didn't happen, conspiracy and attempt are merged in most Js
if they're not, whether it's kosher depends on statutory construction
you apply the tinghitella and blockburger tests

thanks, brut. i have no idea what tinghitella or blockburger is. fairly certain we didn't cover those in class?

[sims1]

ya
the conspiracy is a crime in itself
it's not like complicity

tho if crime didn't happen, conspiracy and attempt are merged in most Js
if they're not, whether it's kosher depends on statutory construction
you apply the tinghitella and blockburger tests

thanks, brut. i have no idea what tinghitella or blockburger is. fairly certain we didn't cover those in class?

MPC says conspiracy should merge into attempt.

Blockburger test essentially asks are the elements of conspiracy and attempt identical? If they aren't, you can be charged with both. Pretty harsh though..

[Manteca]

Dumb question regarding res ipsa loquitor:

Say you can prove that a) scenario doesn't happen w/o negigence b) D was in control of the object that caused harm and c) no contributory negligence on part of P.

Since it's inferred that there's negligence on the part of D, you have to include the causation element as well, right? i.e. but for D's negligent act, P would not have been injured?

[CicerBRo]

2L posting on behalf of a 1L friend w/o a TLS account:

"There is an exception for state sovereign immunity of the 11th amendment when it comes to the 14th amendment. What about the 13th and 15th amendments?"

[CardozoLaw09]

Dumb question regarding res ipsa loquitor:

Say you can prove that a) scenario doesn't happen w/o negigence b) D was in control of the object that caused harm and c) no contributory negligence on part of P.

Since it's inferred that there's negligence on the part of D, you have to include the causation element as well, right? i.e. but for D's negligent act, P would not have been injured?

Take with a grain of salt

With res ipsa you don't actually know what caused the harm because you don't have the evidence to know what ultimately led to the harm. If you include the causation element then you are essentially saying, "but-for" D's negligence the harm would not have occurred" but then you get caught in a circular argument since you are assuming what you set out to establish ie) whether it can be shown what caused the negligence. I don't think you can say there was negligence because the negligence caused the negligence. Res Ipsa is all about drawing an inference of negligence based on the nature of the incident ie) something that does not ordinarily occur without some kind of negligence; however what caused the negligence itself is not known (since there can be several causes) so I don't think "but-for" would apply in this case.

[koval]

Dumb question regarding res ipsa loquitor:

Say you can prove that a) scenario doesn't happen w/o negigence b) D was in control of the object that caused harm and c) no contributory negligence on part of P.

Since it's inferred that there's negligence on the part of D, you have to include the causation element as well, right? i.e. but for D's negligent act, P would not have been injured?

Prefacing this answer by saying that I'm a 1L

You could argue direct causation, but if you can prove that the injury wouldn't have occurred without the defendant's negligence that pretty much assumes that there's direct causation. If you really want to make a causation argument, it'd probably be better to argue proximate cause (although causation didn't really get brought into the conversation in my torts class)

Additionally, it might be good to note (if you proved res ipsa loquitur) whether the state if a presumption state or an inference state (unless the jurisdiction is unknown, then just go for both).

[blink]

CON LAW

How?

[okaygo]

Crim:

Under the common law, is a mistake of law an excuse? Does the answer differ if you have relied on an attorney for the information?

[03152016]

Crim:

Under the common law, is a mistake of law an excuse? Does the answer differ if you have relied on an attorney for the information?

ignorance is no excuse ("The criminal law does not require knowledge that an act is illegal, wrong, or blameworthy." US v. Baker)
two exceptions:
passive activity + one wouldn't reasonably know of law (Lambert v. California)
reliance on an official interpretation of law (Commonwealth v. Twitchell)

if, say, the attorney based her opinion on a misstatement made by the state attorney general, you're off the hook
but afaik, the attorney just misremembering and giving you false info won't exculpate

[WestWingWatcher]

Can there be negligence per se without a common law duty?

Perry v. S.N. seems to say no, but other sources seem to go the other way.

----
Also along with negligence per se.

There are three ways jurisdictions approach violation of statutes:
1) Negligence Per Se (Majority)
2) Rebuttable Presumption
3) Mere Evidence


Does this mean that Negligence per say does not allow ANY excuse? That seems to be what differentiates it from Rebuttable Presumption Jurisdictions, but I find it hard to believe that the majority of jurisdictions don't allow any excuse. For example, a person driving on the wrong side of the wrong to avoid kids who darted in front of them unexpectedly.

Could someone please offer some clarity on this?

[CardozoLaw09]

CivPro - Erie

When analyzing with Hanna first.
If the federal directive is on point but doesn't really clash with the state law (same result as it would have been in state court)
could it be said that the Federal court chose to apply the federal statute or the state statute?

I hope my question was understood

State

Did some more reading on Erie today and this particular question was addressed, and the answer apparently is not "State" but rather federal if the statute enacted is constitutional; so when you have a federal statute and state statute, you apply the federal statute based on The Supremacy Clause which says that duly enacted federal law is "the supreme law of the land" -- I guess it's nuances like this that make Erie complicated

Edit: You would, however, apply state law if the law is "outcome-determinative" meaning if applying state law would change the outcome of the case then that's the law you apply regardless of what federal law says

[pancakes3]

... I should just keep quiet...

[Manteca]

Civ Pro

Let's say you're filing a 13b motion (permissive counter claim) in a federal court. When do you need to ensure that §1367 is met?

[LSATobsessed]

Civ Pro

Let's say you're filing a 13b motion (permissive counter claim) in a federal court. When do you need to ensure that §1367 is met?

If I'm not mistaken permissive counter claims are ones that DO NOT arise from the same transaction or occurrence, so it would need an independent basis for subject matter, I don't think it can come in through supplemental.

Can anyone confirm?

[WestWingWatcher]

... I should just keep quiet...

I just got a chance to look at the Telda v. Ellman case you referenced. It seems helpful, is there a reason you deleted your comment?

[koval]

Can there be negligence per se without a common law duty?

Perry v. S.N. seems to say no, but other sources seem to go the other way.

----
Also along with negligence per se.

There are three ways jurisdictions approach violation of statutes:
1) Negligence Per Se (Majority)
2) Rebuttable Presumption
3) Mere Evidence


Does this mean that Negligence per say does not allow ANY excuse? That seems to be what differentiates it from Rebuttable Presumption Jurisdictions, but I find it hard to believe that the majority of jurisdictions don't allow any excuse. For example, a person driving on the wrong side of the wrong to avoid kids who darted in front of them unexpectedly.

Could someone please offer some clarity on this?

Prefacing this with stating that I'm a 1L.

The difference between rebuttable presumption and per se negligence when a court chooses to adopt a statute as its standard of care is that rebuttable presumption is argued to the jury and per se is argued to the judge. You can still argue excuse if the jurisdiction is per se, but you're arguing it to a judge, which is likely a lot harder.

Also, to your first point, in terms of how I learned it, if a statute on point exists, the court can decide to adopt a statute as its standard or care (over, for instance the RPP). We didn't really address it as a common law duty question though. My assumption would be that a duty would be breached if the defendant failed to exercise the standard of care (via a statute) because, at the very least, everyone owes a reasonable duty to protect others from foreseeable risks associated with their actions. If anything it'd be more likely the defendant, failing to exercise the statute's standard of care, would try to argue a lack or proximate cause over some sort of "no duty" assertion.

But, again, 1L, so I could be wrong.

[kkdk]

Civ Pro

Let's say you're filing a 13b motion (permissive counter claim) in a federal court. When do you need to ensure that §1367 is met?

If I'm not mistaken permissive counter claims are ones that DO NOT arise from the same transaction or occurrence, so it would need an independent basis for subject matter, I don't think it can come in through supplemental.

Can anyone confirm?

Disclaimer: 1L
See Heyward-Robinson, Channell v. CitiCorp and Jones v. Ford Motor for details. If permissive counterclaim, you may need to show subject matter jurisdiction. But you might be able to get SuppJ under 1367, although there is no binding decision that talks about this. The basic argument is that 1367(a) codifies the Gibbs test, which, loosely stated as Common Nucleus of Operative Fact, is broader than the T&O test for compulsory 13(b) motions. People who favour SuppJ over permissive counterclaims argue that per Article III Section 2, 1367 would allow for a loose factual connection between claims to get SuppJ. That would seem to cover permissive counterclaims. The 2d Cir and 7th Cir both think that 1367 is good enough for permissive 13(b)s.

[sam91]

CivPro - Erie

When analyzing with Hanna first.
If the federal directive is on point but doesn't really clash with the state law (same result as it would have been in state court)
could it be said that the Federal court chose to apply the federal statute or the state statute?

I hope my question was understood

State

Did some more reading on Erie today and this particular question was addressed, and the answer apparently is not "State" but rather federal if the statute enacted is constitutional; so when you have a federal statute and state statute, you apply the federal statute based on The Supremacy Clause which says that duly enacted federal law is "the supreme law of the land" -- I guess it's nuances like this that make Erie complicated

Edit: You would, however, apply state law if the law is "outcome-determinative" meaning if applying state law would change the outcome of the case then that's the law you apply regardless of what federal law says

Yes. A good way I was able to conceptualize it is: If the federal rule is outcome determinative (ex-ante), and would encourage forum shopping (for example: as in Guaranty Trust statute of limitations is up in state court but not in federal court) you have to follow the state rule. If it isn't outcome determinative and there are "affirmative countervailing federal interests" (seen in Byrd as 7th amendment jury issue), follow FRCP.

[sims1]

How does a court pick the standard for pleading? This outline says that in some cases it's held to Conley (possible entitlement to relief) and other times it's the Twombly/Iqbal (plausible). I get that Conley makes sense for things like discrimination cases, but is there a formal framework, or is it just discretionary?

[foundingfather]

i think Conley was the old rule.
We go by the heightened standards set forth in Twiqbal now

[sims1]

OK, my prof said Conley can still be invoked (I guess it wasn't overruled) in certain cases. He's also a bit nuts and teaches his own course.

[drumstickies]

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