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

[foundingfather]

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.

i know that feel

[Manteca]

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

I was under this impression as well

[sesto elemento]

CivPro

Stream of Commerce, even the courts don't know what it takes to get PJ under it, right?

All we have is McIntyre, Asahi, and Volkswagen as guiding points, right?

[foundingfather]

CivPro

Stream of Commerce, even the courts don't know what it takes to get PJ under it, right?

All we have is McIntyre, Asahi, and Volkswagen as guiding points, right?

General Jurisdiction
Merely placing products into the stream of commerce is not sufficient to establish GJ over a business. Goodyear. However, a high volume of sales with no physical presence may sometimes establish GJ. Helicopteros.

Specific Jurisdiction Analysis
A court may exercise Specific Jurisdiction over a defendant 1) whose minimum contacts 2) give rise to the cause of action 3) so that the court’s assertion of jurisdiction does not offend traditional notions of FP&SJ.

1. Establishing Minimum Contacts

A. Purposeful availment
WWVW
Purposeful availment ensures that defendants will be on notice of where they might be hailed into court. However, merely being able to foresee that one’s actions will cause injury in the forum is not sufficient to establish PJ. A D must deliberately focus on the forum state as a market.

Denckla
Purposeful availment cannot be based off the unilateral actions of the plaintiff; jurisdiction must be based off the actions of the defendant.

Mcgee
A defendant may purposefully avail himself of that forum state through a single action, such as soliciting business. However, an isolated event that is that does not relate to the cause of action does not equate to purposeful availment.

Calder effects test
Nevertheless, a defendant who “expressly aims” intentional tortious act at the forum state so that the “effects” of the harm caused is suffered there, has sufficient contacts so that the forum state has personal jurisdiction over him.

B. Stream of Commerce
In order for a D to establish minimum contacts by placing a product into the stream of commerce, a defendant must have reasonably anticipated being haled into court in that jurisdiction as to comport with the traditional notions of FP&SJ. Asahi and McIntyre provides us with four tests:

Under Brennan’s “pure stream of commerce” test, placing a product or component into the stream of commerce is enough to establish PJ.

However, O’Connor’s “stream of commerce plus” test requires more than that, i.e. some activity directed at the state such as advertising or sending replacement parts for there to be minimum contacts. Merely placing a product into the stream of commerce is not enough to establish PJ.

Stevens believes we should consider the 1) volume, 2) value of sales, and 3) hazardousness of the product when assessing whether PJ is appropriate.

In McIntyre the Court held that placing a product into the stream of commerce is insufficient to establish minimum contacts unless there was purposeful activity in that state’s market.

C. BK Business Test
If a contact is based on a business relationship with an instate company/person, the courts evaluate how substantial that relationship among two businesses is.
The court may consider:
1) who initiated the business relationship
2) negotiations (where)
3) contemplated future consequences/work
4) terms of K (choice of law, provisions, length?)
5) parties actual course of dealing (where you do business)
D. Internet Contacts (Zippo Sliding Scale) – Can use as a shortcut, do Shoe regardless
When a case involves the internet, PJ is PROPER where D “clearly does business over the internet,” but NOT when D has simply posted a “passive website”



2. Does the cause of action arise from the contacts?
Was the contact the proximate cause of the contact? But for the contact, would the cause of action have happened?

3. FP&SJ
Once we have determined that the cause of action arises from the minimum contacts that exist, we must still determine whether the assertion of personal jurisdiction over a defendant would comport with the traditional notions of fair play & substantial justice.

To do so, we must weigh five factors:
1) The burden on the defendant (not mere inconveniences)
2) the forum state’s interest in adjudicating the dispute (state citizen? Action arose?)
3) the plaintiff’s interest in (obtaining convenient & effective relief)
4) the federal system’s interest in the most efficient resolution of controversies (witnesses etc)
5) the shared interests of the state in furthering substantive social policies. (int’l)

PJ may be appropriate even where minimum contacts are slight when balanced with the traditional notions of FP&SJ. BK.

Conclusion

Corrections are welcome

edit: almost outed myself lol

[Mal Reynolds]

That's a very good looking outline. You seem to have the law right and laid out in a useful way. Can't say that about a lot of material in here.

[d cooper]

Under Brennan’s “pure stream of commerce” test, placing a product or component into the stream of commerce is enough to establish PJ.

Brennan's pure stream of commerce test also requires knowledge of final product being marketed in the forum state.

[vicpin5190]

Post removed.

[xmking07]

Under Brennan’s “pure stream of commerce” test, placing a product or component into the stream of commerce is enough to establish PJ.

Brennan's pure stream of commerce test also requires knowledge of final product being marketed in the forum state.

Brennan requires you put the product into the stream of commerce and that you reasonably anticipate that it could get into the forum state. O'connor wanted marketing of the forum state and other "plus factors" on top of the foreseeability requirement.

[swampman]

In McIntyre the Court held that placing a product into the stream of commerce is insufficient to establish minimum contacts unless there was purposeful activity in that state’s market.

That's what the Roberts plurality wrote (4 votes). However Breyer+Alito's concurrence was on narrower grounds that not enough products had entered the state to support a "regular flow" of commerce, but they suggested that with enough sales "stream of commerce" might be enough to establish minimum contacts even without purposeful activity.
So the actual holding is not so clear -- if more machines were regularly entering NJ a majority probably would have allowed the stream of commerce theory.

[foundingfather]

That's a very good looking outline. You seem to have the law right and laid out in a useful way. Can't say that about a lot of material in here.

Thanks Mal!

Brennan's pure stream of commerce test also requires knowledge of final product being marketed in the forum state.

double checked and you're right, added!

Breyer+Alito's concurrence was on narrower grounds that not enough products had entered the state to support a "regular flow" of commerce, but they suggested that with enough sales "stream of commerce" might be enough to establish minimum contacts even without purposeful activity.

added as well!

[swampman]

Would someone be able to clarify the loss of chance doctrine for me in torts? I understand that is the idea that even if a patient comes in with less than a 50% chance of life that we can still find that doctor to be the cause-in-fact of patient dying if there is a death, despite the fact that it would be impossible to prove beyond the preponderance. Does it apply in all situations, even if the doctor acted reasonably? or only when the doctor has provided negligent care? And does it the magnitude of loss of chance matter? Like say you had 10% chance of living, and after the doctors treatment that chance drops to 8%, would that be enough to put causation on the doctor?

It only applies to negligence cases. It's not exactly that we can find the doctor the entire cause of the death, but we can find that the doctor is the cause of a decreased chance of living. If the patient's chance of living dropped from 10% to 8% due to the doctor's negligence the patient can recover 2% of the damages of premature death (eg lost wages). If the chance of living dropped from 10% to 0% because the doctor forgot to put the heart back in, you could recover 10%.

[Marshall2000]

Question about cause in fact from a hypo. Here's a simplified version:
Customer purchases a bunch of groceries, which are bagged by an employee of the grocery store before the customer takes them home. The customer gets home, and it turns out the bag was overpacked--- one of the bag breaks, and a glass jar of pickles falls to the floor and breaks. A housemate of the customer comes downstairs, with headphones on, doesn't see the spilled pickles... and trips on them and falls, with a handful of injuries resulting.


In terms of causation...can anybody elaborate on how to handle this with 3 potential causes? (1) defective design of pickle jar, using glass, (2) defective design of bag...a stretch, but maybe... and (3) negligence in packing so many items in a grocery bag



But-for causation, substantial factor, or summers v tice? I think i'm a little confused in my approach, but I'll explain it after I see some input rather than confuse others before they offer their opinions.

[WestWingWatcher]

Question about cause in fact from a hypo. Here's a simplified version:
Customer purchases a bunch of groceries, which are bagged by an employee of the grocery store before the customer takes them home. The customer gets home, and it turns out the bag was overpacked--- one of the bag breaks, and a glass jar of pickles falls to the floor and breaks. A housemate of the customer comes downstairs, with headphones on, doesn't see the spilled pickles... and trips on them and falls, with a handful of injuries resulting.


In terms of causation...can anybody elaborate on how to handle this with 3 potential causes? (1) defective design of pickle jar, using glass, (2) defective design of bag...a stretch, but maybe... and (3) negligence in packing so many items in a grocery bag



But-for causation, substantial factor, or summers v tice? I think i'm a little confused in my approach, but I'll explain it after I see some input rather than confuse others before they offer their opinions.

I literally just finished my Torts outline, so take that into consideration but from what I understand:

You definitely should not use Summer v. Tice because that is for very special circumstances, where only one tortfeasor actually caused the harm, but both committed the same negligent act.

I don't think you should use substantial factor test either, because it seems like the but-for test works here. Without any one of these negligent acts, the harm would not have occurred (that's what I'm getting from the fact anyway)

[swampman]

Question about cause in fact from a hypo. Here's a simplified version:
Customer purchases a bunch of groceries, which are bagged by an employee of the grocery store before the customer takes them home. The customer gets home, and it turns out the bag was overpacked--- one of the bag breaks, and a glass jar of pickles falls to the floor and breaks. A housemate of the customer comes downstairs, with headphones on, doesn't see the spilled pickles... and trips on them and falls, with a handful of injuries resulting.


In terms of causation...can anybody elaborate on how to handle this with 3 potential causes? (1) defective design of pickle jar, using glass, (2) defective design of bag...a stretch, but maybe... and (3) negligence in packing so many items in a grocery bag



But-for causation, substantial factor, or summers v tice? I think i'm a little confused in my approach, but I'll explain it after I see some input rather than confuse others before they offer their opinions.

I would address the factual cause this way:
The employee's negligence is the factual cause of the injury. The bag being overpacked may be the "but for" cause of the injury. But for the the bag being overpacked, the jar wouldn't have broken. But for the jar breaking, the housemate wouldn't have tripped and been injured. However a court might find that the jar might have fallen even without the bag being overpacked, and so the overpacking isn't the but-for cause. The Plaintiff should still be able to establish factual cause using the Reynolds "greatly multiplies / substantial factor" test. This will likely succeed as negligently overpacking a bag greatly multiplies the chances of something falling out and breaking, and the jar breaking was clearly the but-for cause of the injury.

The other factors you mentioned will probably come into play in the legal/proximate cause analysis, but I don't see how they're relevant to factual cause unless you want to sue the jar and bag makers too. There can be multiple but-for causes of something, so the pickle jar's poor design being a but-for cause doesn't mean Defendant's negligence wasn't also a cause. I agree Summers isn't very relevant here.

[drumstickies]

sorry to post this again, but it got buried and it seems like it's a quick answer--

question about civ pro E and E's. i'm wondering if i misunderstood a concept or if there's a mistake. p.329, problem 2--

Background:
K from MN is arrested by S from MN for disturbing the peace. During the arrest, S forcibly restrains K, and K resists. K claims S used excessive force in making the arrest and sues S under the federal civil rights statute. K also seeks to recover from S on a state law claim for battery based on the scuffle that took place. K sues S in federal court.

Question:
S owed K $500 at the time of arrest as payment for work that K had done on his house. K was upset he had not been paid and tempers flared, leading to the arrest. K therefore asserts a third claim for debt in his action against S. Does the court have power to hear it?

The answer says that the court doesn't have the power to hear it, since the third claim doesn't arise out of the same nucleus of operative facts as the fed claim (whereas assault does). Therefore, there's no supplemental jurisdiction. However, I thought that this claim could go through under FRCP 18 (a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party). So can't the court hear it?

[swampman]

However, I thought that this claim could go through under FRCP 18 (a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party). So can't the court hear it?

FRCP aren't enacted by congress and so they can't and don't grant Subject Matter Jurisdiction over a claim. The claim can be asserted as part of the same suit through that rule BUT the court still needs an independent basis for SMJ - always ask "If the counterclaims had been brought as standalone lawsuit, would they have SMJ?"

[03152016]

ya remember it's there because of a federal question
no diversity, no fedQ, no common nucleus, no dice
and don't forget the amount in controversy, $500 < $75,000.01 (how much are the other claims for?)

[vicpin5190]

Post removed.

[xmking07]

Would someone be able to clarify the loss of chance doctrine for me in torts? I understand that is the idea that even if a patient comes in with less than a 50% chance of life that we can still find that doctor to be the cause-in-fact of patient dying if there is a death, despite the fact that it would be impossible to prove beyond the preponderance. Does it apply in all situations, even if the doctor acted reasonably? or only when the doctor has provided negligent care? And does it the magnitude of loss of chance matter? Like say you had 10% chance of living, and after the doctors treatment that chance drops to 8%, would that be enough to put causation on the doctor?

It only applies to negligence cases. It's not exactly that we can find the doctor the entire cause of the death, but we can find that the doctor is the cause of a decreased chance of living. If the patient's chance of living dropped from 10% to 8% due to the doctor's negligence the patient can recover 2% of the damages of premature death (eg lost wages). If the chance of living dropped from 10% to 0% because the doctor forgot to put the heart back in, you could recover 10%.

So is it just invoked to assess damages based on the decreased chance of life? Can you determine any proximate causation from it? Also, you provide an absolute approach, but if you followed the relative approach, that 10% to 0% would be 100%....does that still factor in like that for damages?

It still has to be a substantial factor. So, you would weigh if the loss of a 10% chance of survival is substantial or not, and in the case of a drop from 10% to 8%, you would weigh if that 2% drop is substantial. I've heard as low as 15 counting as substantial, and the case I read on it was 37.5 % ruled as substantial.

As to your proximate cause question, look through the test and see which ones apply the best.

As to damages, you would recover for the lost of the 10% chance of life.

[drumstickies]

ya remember it's there because of a federal question
no diversity, no fedQ, no common nucleus, no dice
and don't forget the amount in controversy, $500 < $75,000.01 (how much are the other claims for?)

However, I thought that this claim could go through under FRCP 18 (a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party). So can't the court hear it?

FRCP aren't enacted by congress and so they can't and don't grant Subject Matter Jurisdiction over a claim. The claim can be asserted as part of the same suit through that rule BUT the court still needs an independent basis for SMJ - always ask "If the counterclaims had been brought as standalone lawsuit, would they have SMJ?"

okay, thanks. so maybe one of looking at it is that the joinder of this claim would be permissive but the court lacks the power to assert jurisdiction over the claim

[swampman]

It still has to be a substantial factor. So, you would weigh if the loss of a 10% chance of survival is substantial or not, and in the case of a drop from 10% to 8%, you would weigh if that 2% drop is substantial. I've heard as low as 15 counting as substantial, and the case I read on it was 37.5 % ruled as substantial.

As to your proximate cause question, look through the test and see which ones apply the best.

As to damages, you would recover for the lost of the 10% chance of life.

The "substantial factor" point depends on your professor. The lead opinion in Herskovits, a state case in Washington, went with the substantial factor requirement (my prof thinks it's dumb though and told us to ignore it).
The plurality (signed by more justices but not the "lead" opinion) simply redefined the injury to be loss of a chance of survival rather than actual death. So under the plurality's view you would need to show that the doctor's negligence was a cause-in-fact of reducing the chance of death by 2% (which it might be), but you don't have to ask whether that 2% chance is a substantial factor in the death (it certainly isn't). Different jurisdictions probably go different ways. Basically, ask your professor what he thinks the right approach is.

[foundingfather]

does anyone have an attack outline for products liability using both the second and third restatements?

[apples89]

crimlaw:

can anyone explain M’Naghten test for insanity and what it actually meant?

[03152016]

did D know what she was doing? did she know the nature of the act?
if not, she was cognitively incapacitated

did D know that her act was morally wrong?
if not, she was morally incapacitated
it's measured by societal standards of morality
in other words, it doesn't matter if D personally feels it's moral or not
the question is whether she knows that society condemns the act

either cognitive or moral incapacitation excuses

[wsparker]

Does the eggshell/thinskull rule apply in negligent cases or only intentional torts?

My notes conflict on the issue....

Thanks!