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

[drumstickies]

criminal law:

theft is "unlawfully taking or exercising unlawful control." i've consulted dressler's understanding crim law and the internet. i can't seem to find a good definition for "unlawful." it seems circular in reasoning to define what a crime is by putting unlawful in the definition. i'm operating under the notion that it means "unconsented to." or is it a more general state of mind/intent with which i carry the action? what does it mean?

[encore1101]

Torts Question

Jurisdiction has comparative negligence and has retained joint and several liability. How are damages apportioned when there are more than two defendants and one of them settles?

Thanks!

Edit: Bad at grammar

ETA: preface: i'm a grad who hasn't studied torts since 1L and this is all memory from bar review.

Plaintiff suffers $100 of damages. P sues D1 and D2. Prior to trial, D1 settles with P for $50. Jury finds P to be 25% liable, D1 to be 25% liable, and D2 to be 50% liable.

D2, who would have paid $50 if P and D1 did not settle, would be liable for $25, or the remaining amount that he is entitled to from D1 and D2. Although D2 would have paid $50 if D1 did not settle, P does not get more than the amount of damages because D1 settled.

Change the facts. D1 settles with P for $10, or only 10% of his apportioned share. The most that D2 would be liable for is $50, since he was only 50% liable. He is not on the hook for the $15 that P would have been entitled to if he did not settle with D1.


If P had not settled with D1 or D2, P could collect the entire amount he's entitled to from either of them ($75 from either D1 or D2). In turn, the paying party would have to seek contribution from the non-paying party.

[FKASunny]

People should picwhore, it makes you feel better

[whats an updog]

Civpro:

Would McGee come out differently under Walden v. Fiore seeing as how in McGee it was only a single party that was affected without any implications for really anyone else in CA or the state as a whole?

Maybe missing something obvious here.

[ManoftheHour]

Can someone give me an example of a Mary Carter agreement in terms of numbers?

Like say P, D1, and D2 got into an accident. D1 settles with P for $100,000. P and D2 go to court and is awarded $300,000. What happens? Like, does D1 get his $100,000 back and P pockets $200,000?

[03152016]

Civpro:

Would McGee come out differently under Walden v. Fiore seeing as how in McGee it was only a single party that was affected without any implications for really anyone else in CA or the state as a whole?

Maybe missing something obvious here.

but walden was mere contact with someone from the forum
in mcgee the insurance company actually reached out to the forum, they made an offer to reinsure

single contact will suffice
also see burger king

[cannibal ox]

People should picwhore, it makes you feel better

You first.

[FKASunny]

I'm not a 1L, don't need the ego boost

[cannibal ox]

But with picwhoring we run the risk of being called out for being impossibly ugly, having our confidence shot, spiraling out of control during exams, finishing bottom of the class, and eventually having to practice meth law (minus the law).

[FKASunny]

But with picwhoring we run the risk of being called out for being impossibly ugly, having our confidence shot, spiraling out of control during exams, finishing bottom of the class, and eventually having to practice meth law (minus the law).

I think you're mixing up catalyst and cause here

[hailcaesar34]

Can someone explain parent/child tort liability?

[JustHawkin]

Is TCR for approaching my Contracts exam (general issue spotter) to just throw the kitchen sink at any ambiguities? I feel like there's no systematic approach to this class...

[sesto elemento]

Contracts

There's a lack of hypos ITT it seems. Here's one:

1. DF (DF) and Gdane (G) make an agreement. It is written and signed. It states DF will sell his Lamborghini sesto elemento to G for $150,000.

a. If DF decides not to sell, what is G’s remedy?

b. If DF decides not to sell and G had planned on using the very classy car on the day of the sale to pick up his boomer boss at the airport, and because he failed to pick up his boss he lost his job, what might G recover?

c. If the car had once belonged to Ken, and G believed that a bit of Ken's spirit lived in the car, a fact which was his motivation to buy it, could G get Specific Performance if DF decides not to sell?

d. If DF has two Lambos he is selling, and if G decides not to buy one, and the one that G had planned to buy is sold to someone else the next week, does DF have any possible claim?

e. If DF has two Lambos, but in this example (e), unlike the one above (d), one car is in much better condition, and G thought he was buying that one, while DF thought he was selling the less valuable one, can G get the Lambo that he intended?

[BVest]

Is TCR for approaching my Contracts exam (general issue spotter) to just throw the kitchen sink at any ambiguities? I feel like there's no systematic approach to this class...

Do you mean ambiguities RE existence of a K or ambiguities RE content/meaning of K?

If the former analyze it as I mentioned above:

When analyzing any question on your K exam, you probably want to consider it in light of (1) K theory (was there offer/acceptance, was it enforceable, what are the remedies), (2) promissory restitution/unjust enrichment (Rest (2d) §86), and (3) promissory estoppel (Rest (2d) §90).

It would look like this:

Was there a Contract?

One must first consider whether the [facts that might point to a K] constitute a K. While this is a close case, [choose a side and analyze why you think there was or wasn't a K making good use of the facts.] On the other hand [argue the other side].

Promissory Restitution/Unjust Enrichment

If the court finds that there was not a contract, [party seeking to enforce] could still have a claim under the theory of promissory restitution. That would likely be a [winning/losing] claim in this case because [analyze the side you picked from a promissory restitution standpoint.] But [argue the other side].

Promissory Estoppel

Finally, even if [party] fails to get relief under either contract or promissory restitution theory, they have a final alternative theory of promissory estoppel. [Again, pick a side and argue it; then counterargue.]

Conclusion
[2-4 sentence wrap-up]

BTW, do use headers for your exam, and if your exam software allows you to and you have time, go through and bold them; if there's no formatting options, go all caps with your headers. Personally, I outline my answer first, copy and paste a duplicate of it, and then every word in my outline either becomes a header or a part of a sentence. That way, if I run out of time in the exam, there's a complete copy of my outline at the bottom under my partially complete answer. An outline would look something like

Was there a Contract?
Yes
Express Facts in Favor
Fact 1
- Analogous Case/UCC/Restatement
Manifestations in favor
Fact 2
Fact 3
- Analogous Case/UCC/Restatement
However
Ambiguities
Fact 4
- Analogous Case/UCC/Restatement
Contradiction as a possible rejection/counteroffer
Fact 5
- Analogous Case/UCC/Restatement

Promissory Restitution/Unjust Enrichment
etc.

Promissory Estoppel
etc.

Conclusion

In that example, the headers would be the three I show above and everything else would get fleshed out into sentences.

Another trick I like to use with issue spotters is to highlight the actual issues throughout the exam in the body of your answer with either bold or underline (or all caps). This will help ensure that your prof doesn't miss one of your issues.

[JustHawkin]

Thanks, BVest!!!

[pancakes3]

Thanks, BVest!!!

[TheoO]

Say I have a contract for remodeling a kitchen, and within that there is the purchase of a kitchen sink to be installed. Where does that fall? Is it subsumed within the service contract or can you still apply the UCC?

[hailcaesar34]

Say I have a contract for remodeling a kitchen, and within that there is the purchase of a kitchen sink to be installed. Where does that fall? Is it subsumed within the service contract or can you still apply the UCC?

Depends on what your suing for. Either use the Gravamen test (looks at what complaint is based on) or predominant purpose test which looks at the entire transaction to see if its a sale of service.

[BVest]

Say I have a contract for remodeling a kitchen, and within that there is the purchase of a kitchen sink to be installed. Where does that fall? Is it subsumed within the service contract or can you still apply the UCC?

As stated above. Here's the case from my notes on point.

PRINTING CENTER OF TEX. v. SUPERMIND PUBL’G CO.
+Buyer seeks to reject books under perfect tender rule
+COURT
++Printing is mix of goods and services
++Must look to what is the primary purpose / dominant factor
++++Here, the paper and ink is not the purpose of the K; the printing of the book
++++UCC Art. 2 does not apply
++++Therefore look to Good Faith/Bad Faith of rejection
++Sample creates express warranty – product will conform to the Sample
++++Therefore rejection is in good faith
+Court gives example of bad faith:
++Rejecting in falling market situation

[apples89]

who wants to take a shot and explain Carbon County Coal (K's) and how courts will assign risk (that huge leap in logic in the opinion about grain elevators)?

many thanks if you can do this.

[foundingfather]

Property

how am i supposed to remember all of this material (closed book exam)

not a serious question but taking suggestions

[sesto elemento]

Property

how am i supposed to remember all of this material (closed book exam)

not a serious question but taking suggestions

Flashcards? Make an attack outline then just get a blank sheet of paper and rewrite it from memory. Practice till you have it down cold. mnemonics? Whatever way helped you memorize stuff in undergrad?

[cannibal ox]

Outlining, then taking individual subjects and re-outlining them as mini attack outlines really helped me understand the property material and know when I can/should apply one concept or another, rather than having a giant mountain of information that somehow needs to be applied to a fact pattern.

Plus now I've got like 15 mini outlines I can quickly pull out if I get stuck on the exam, or need to quickly find a case or law.

[Br3v]

who wants to take a shot and explain Carbon County Coal (K's) and how courts will assign risk (that huge leap in logic in the opinion about grain elevators)?

many thanks if you can do this.

FM clause doesn't appy to ordinary risks. Economic pressures as a Govt granted monopoly are ordinary risks and thus they took on that risk in the K by not contracting for the contingency and can't use the FM clause to get out of bearing the risk.

[TheoO]

Say I have a contract for remodeling a kitchen, and within that there is the purchase of a kitchen sink to be installed. Where does that fall? Is it subsumed within the service contract or can you still apply the UCC?

Depends on what your suing for. Either use the Gravamen test (looks at what complaint is based on) or predominant purpose test which looks at the entire transaction to see if its a sale of service.

So, I finally found out what a gravamen test was. We never did that in our class, just predominant purpose.