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

[JustaQ]

Can someone outline key differences between the model penal code and common law for Complicity and Conspiracy? (Obviously in terms of actus reuse and mens rea) - when can one be held liable as an accomplice

[Stylistics]

Lol are you going out of your way to be creative? Nothing even remotely resembling your "hypo" will ever come up on an exam.

Same "case or controversy" bro. You have 2 separate and distinct suits going on. 1367 allows YOU to use the federal question claim to bootstrap in additional claims against A. But you can't just commandeer someone else's suit. If a federal court could do what you think it can do, it would seriously impair plaintiffs' ability to have their day in the forum of their choosing.

Also, counterclaims and supplemental jurisdiction exist to promote judicial economy and avoid multiplicity of suits.

But you want to...multiply the number of suits when you could've just counterclaimed, and then reconjoin them to get an upper hand on your opponent?

Even if you could 1367a A, a court would still 1367c you for wasting its time.

civ question

say i get sued by A in NY state court
i choose not to assert a counterclaim, which isn't a problem b/c ny state has no compulsory counterclaim
then i sue A in federal court on a federal claim involving the same common nucleus of operative fact as A's state claim
i want A's claim in fed court to take advantage of a favorable procedural rule
is there any reason i can't argue the fed court should have supplemental jurisdiction over A's claim under §1367?
can pendent jurisdiction be used "offensively"?

[Stylistics]

I'll take questions on civil procedure.

[03152016]

it's not my hypo, it's from a practice exam
there was enough wiggle room to remove under grable, so i just argued that

1367 isn't as one-sided as you're making it out btw, it's used on removed state claims all the time
and that two separate suits have been filed doesn't speak to whether the respective claims are part of the same case or controversy
the question isn't whether multiple suits have been brought, but whether there is a common nucleus of operative fact

i ended up coming to the same conclusion you did tho
can't be done

[yguy]

I'll take questions on civil procedure.

For a policy question, what due process issues would you talk about with regard to class actions, especially b3 classes?

[WestWingWatcher]

I'm having trouble with what should be a really simply topic... Peppercorn Theory.

In my book it says: “nothing can be treated as consideration that is not intended as such by the parties.”
Therefore, that makes me believe that if one person wants to give something to someone, in a legally binding manner, they could be paid with a peppercorn because both parties understand that they are intending to be bound.

On the other hand, if the gift giver wants to give the gift, and the receiver says "let me give you this peppercorn in exchange" w/o it being clear that the giver was also intending to be bound, there is no consideration and thus it is not binding...

Am I right so far?

But then my professor gives the example of:
"I want to give you a house, so just give me a dollar, *wink wink*, and then it’ll be binding." not actually being valid consideration and thus not binding.

Can sometime please clear this up for me?

[esypsylmnsqsy]

Civ Pro Question:

I thought I knew this but a model answer I saw threw me off, and I need clarification.

Does the Rules Enabling Act also cover federal statutes if the statute is procedural (e.g. § 1391)?

In the question a hypo state statute conflicted with the federal venue statute, and the model answer said it triggered a does the rule "apply, reach, cover" the statute--> does the rule "abridge, modify, enlarge" a substantive right analysis. I thought a RDA, York/twin aims of Erie/Stewart v. Ricoh analysis was what was called for.

I know the FRCP can always be read narrowly so as to not conflict and trigger a REA analysis, but I thought the REA would not even apply here. Let me know if I'm trippin'. Thanks.

[pancakes3]

I'm having trouble with what should be a really simply topic... Peppercorn Theory.

In my book it says: “nothing can be treated as consideration that is not intended as such by the parties.”
Therefore, that makes me believe that if one person wants to give something to someone, in a legally binding manner, they could be paid with a peppercorn because both parties understand that they are intending to be bound.

On the other hand, if the gift giver wants to give the gift, and the receiver says "let me give you this peppercorn in exchange" w/o it being clear that the giver was also intending to be bound, there is no consideration and thus it is not binding...

Am I right so far?

But then my professor gives the example of:
"I want to give you a house, so just give me a dollar, *wink wink*, and then it’ll be binding." not actually being valid consideration and thus not binding.

Can sometime please clear this up for me?

We didn't cover the "peppercorn" theory in particular but it sounds like you're talking about nominal consideration which is the thing being bargained for is relatively of such little value, it can't possibly be sincere consideration and edges on it being a gift.

That's... pretty much all we learned about it. Consideration is a bargained for exchange, and there is no justifiable way for anyone to say that they were actively seeking a peppercorn in exchange for a house so it's not consideration. Why is this really... not a matter? As long as the person who is claiming is that he/she is for realsies looking for a peppercorn, this would never be an issue that needs resolving. Call it a gift, call it a contract, what difference does it make if nobody is disputing the assent?

[esypsylmnsqsy]

I'll take questions on civil procedure.

For a policy question, what due process issues would you talk about with regard to class actions, especially b3 classes?

Class actions generally:
- (a)(1) Adequacy of representation. Class members are forgoing their individual right to a personal day in court in favor of a representative day in court. For this reason it's very important that class members interests are adequately represented, both by named/representative parties and by competent counsel (g).
- (b)(1) Class actions prevent adjudications of the interests of one class member that would be dispositive on the interests of other class members, ensuring against the unjust deprivation of property (e.g. making claims on a common fund).

(b)(3) specifically:
- Implications of an increased difficulty in proving that questions of law or fact common to all class members predominate over any individual questions. This standard of predomination seems to have been heightened or at least become less clear since Walmart v. Dukes.
- The high requirements of notice in (b)(3) class actions compared with (b)(1)-(2) due the binding effects that res judicata would have on the interests of absentee class members. Compare the burden of notifying each identifiable class member with the due process concerns of adequate notice in Mullane. Similarly the right for every class member in (b)(3) to be able to opt-out of the class and be notified of how to do so. All this is constitutionalized in Phillips v. Shutts.

You could also talk about the recent trend of the Supreme Court to honor arbitration agreements between large corporations and the average consumer in class action suits (Concepcion v. AT&T), even going so far as to deny consumers the ability to arbitrate as a class (Italian Colors v. AmEx.). What are the implications of adhesion contracts impairing the right to a day in court and a right to a jury trial? Argue the countervailing points that there are cost savings benefits for consumers generally and we should respect the individual right to contract autonomously, paternalism etc.

[Stylistics]

Except in the facts as you described, you didn't remove A's state action against you. You filed a second suit anew. I don't think you could've 1441 removed A's state action if you tried unless A's state action could've been brought in a federal court in the first place. 1441(a).

Removal law is well settled that the plaintiff can craft his complaint so as to prevent his defendant's removal. He can ask for less than 75K, purposefully not bring a fed claim even if he could have, etc. It wouldn't make any sense if a defendant can just get around all of that by manufacturing a federal counterclaim just to get out of state court and into federal court.

So now there's:

1. A vs. Bruh, NY State Ct (Case #1)
2. Bruh vs. A, USDistrictCt SDNY (Case #2)

Even if it's settled that you (actually, the other guy or the judge) would have 1367 SuppJ if you had 1441 removed Case#1, what permits you or the USDJ in Case#2 to commandeer (or basically remove) someone else's case (A's Case#1)?

There has to be a mechanism for that and I don't see how you, a plaintiff in Case#2, can pry Case#1 out of NY state court.

If Rule 13, which is already about claims involving the same T/O (or roughly the equivalent of nucleus of operative facts), says a defendant doesn't have to raise a "compulsory" counterclaim if that claim "was already the subject of another pending action," then what Rule permits you, the plaintiff, to ask the USDJ to compel that a pending state action be removed and fused with your federal case?

it's not my hypo, it's from a practice exam
there was enough wiggle room to remove under grable, so i just argued that

1367 isn't as one-sided as you're making it out btw, it's used on removed state claims all the time
and that two separate suits have been filed doesn't speak to whether the respective claims are part of the same case or controversy
the question isn't whether multiple suits have been brought, but whether there is a common nucleus of operative fact

i ended up coming to the same conclusion you did tho
can't be done

[03152016]

you're mixing up a few different things in my last post

read it again

[buckythebadger]

I'm having trouble with what should be a really simply topic... Peppercorn Theory.

In my book it says: “nothing can be treated as consideration that is not intended as such by the parties.”
Therefore, that makes me believe that if one person wants to give something to someone, in a legally binding manner, they could be paid with a peppercorn because both parties understand that they are intending to be bound.

On the other hand, if the gift giver wants to give the gift, and the receiver says "let me give you this peppercorn in exchange" w/o it being clear that the giver was also intending to be bound, there is no consideration and thus it is not binding...

Am I right so far?

But then my professor gives the example of:
"I want to give you a house, so just give me a dollar, *wink wink*, and then it’ll be binding." not actually being valid consideration and thus not binding.

Can sometime please clear this up for me?

I don't remember covering this in K, but just look at what the theory says exactly. Nothing can be treated as consideration that is not intended as such by the parties. In your first example, the theory is clearly in use. If both parties do not intend it to be consideration, it is not treated as such.

However, the theory would not cover your professor's example. The theory would have to be modified to say "everything intended to be treated as consideration by the parties is in fact consideration." The theory only states that when it is not intended as consideration it will not be legal consideration.

[yguy]

I'll take questions on civil procedure.

For a policy question, what due process issues would you talk about with regard to class actions, especially b3 classes?

Class actions generally:
- (a)(1) Adequacy of representation. Class members are forgoing their individual right to a personal day in court in favor of a representative day in court. For this reason it's very important that class members interests are adequately represented, both by named/representative parties and by competent counsel (g).
- (b)(1) Class actions prevent adjudications of the interests of one class member that would be dispositive on the interests of other class members, ensuring against the unjust deprivation of property (e.g. making claims on a common fund).

(b)(3) specifically:
- Implications of an increased difficulty in proving that questions of law or fact common to all class members predominate over any individual questions. This standard of predomination seems to have been heightened or at least become less clear since Walmart v. Dukes.
- The high requirements of notice in (b)(3) class actions compared with (b)(1)-(2) due the binding effects that res judicata would have on the interests of absentee class members. Compare the burden of notifying each identifiable class member with the due process concerns of adequate notice in Mullane. Similarly the right for every class member in (b)(3) to be able to opt-out of the class and be notified of how to do so. All this is constitutionalized in Phillips v. Shutts.

You could also talk about the recent trend of the Supreme Court to honor arbitration agreements between large corporations and the average consumer in class action suits (Concepcion v. AT&T), even going so far as to deny consumers the ability to arbitrate as a class (Italian Colors v. AmEx.). What are the implications of adhesion contracts impairing the right to a day in court and a right to a jury trial? Argue the countervailing points that there are cost savings benefits for consumers generally and we should respect the individual right to contract autonomously, paternalism etc.

Thanks!

[WestWingWatcher]

I don't remember covering this in K, but just look at what the theory says exactly. Nothing can be treated as consideration that is not intended as such by the parties. In your first example, the theory is clearly in use. If both parties do not intend it to be consideration, it is not treated as such.

However, the theory would not cover your professor's example. The theory would have to be modified to say "everything intended to be treated as consideration by the parties is in fact consideration." The theory only states that when it is not intended as consideration it will not be legal consideration.

Thank you, that is my inclination too. I guess I am such experiencing such dissonance because my professors example doesn't seem to go along with

We didn't cover the "peppercorn" theory in particular but it sounds like you're talking about nominal consideration which is the thing being bargained for is relatively of such little value, it can't possibly be sincere consideration and edges on it being a gift.

That's... pretty much all we learned about it. Consideration is a bargained for exchange, and there is no justifiable way for anyone to say that they were actively seeking a peppercorn in exchange for a house so it's not consideration. Why is this really... not a matter? As long as the person who is claiming is that he/she is for realsies looking for a peppercorn, this would never be an issue that needs resolving. Call it a gift, call it a contract, what difference does it make if nobody is disputing the assent?

You're right, I guess this would only come up in practice if two people intentionally enter a sort of peppercorn agreement, and then the one giving the gift wants to back out, but the other one refuses saying the agreement is binding.

[Stylistics]

you're mixing up a few different things in my last post
read it again

I've read both of your posts.
Your initial Q was

say i get sued by A in NY state court [A vs Bruh in NY StateCt, Case#1]
i choose not to assert a counterclaim, which isn't a problem b/c ny state has no compulsory counterclaim
then i sue A in federal court [i.e., Bruh vs A in USDC SDNY, Case#2] on a federal claim involving the same common nucleus of operative fact as A's state claim

Then the action you want to do is

i want A's claim in fed court

.
Your more recent post said

there was enough wiggle room to remove under grable

Which is probably wrong anyway because in Grable, a defense to a claim hinged on an interpretation of a profound fed issue. But you're talking about a counterclaim, not a defense to a claim--a counterclaim that you didn't raise in state court, in fact. If you thought Grable was what gave you "wiggle room" for a 1441 removal, then why would you go the roundabout way of filing a 2nd suit in federal court only to ask the fed judge to pry A's state case out of state court? Why didn't you just ask for a 1441 removal?

And since the path you want to take is to get the fed judge in your fed case to exercise SuppJ over A's state law claim, it's not a matter of whether the fed court would have 1367 SuppJ to hear A's claim once it's properly in federal court. I'm asking you what Rule would allow you to ask the judge to essentially join A's state law claim in the first place. 1367 just tells you under what circumstances a fed court has SuppJ or doesn't. In order to do what you want to do, you need some mechanism, and I'm saying there is none because:

(1) Grabel/1441 removal doesn't apply because you couldn't have removed A's state claim from state court even if you wanted to because A's claim would have to be one that could've been filed in fed court in the first instance; (2) there's no support for the proposition that you can 1441 remove an otherwise unremovable state law claim simply by manufacturing a federal counterclaim; (3) once you're already in federal court as the plaintiff in Bruh vs A, SDNY, 1441 can't be applied to separate case; so (4) you need some other mechanism to force A's state law claim out of state court; which (5) you don't have because Rule 13 explicitly says he doesn't have to raise a compulsory counterclaim when it's already in another pending action and (6) no rule supports, or even entertains, what you want to do more than Rule 13 militates against it.

What kind of past practice exam would ask you to pry A's state law claim out of state court and into federal court? If the question is would the judge have SuppJ, were A's claim properly joined via Rule 13, then yea probably. But how would you the plaintiff join his claim?

[pancakes3]

I don't remember covering this in K, but just look at what the theory says exactly. Nothing can be treated as consideration that is not intended as such by the parties. In your first example, the theory is clearly in use. If both parties do not intend it to be consideration, it is not treated as such.

However, the theory would not cover your professor's example. The theory would have to be modified to say "everything intended to be treated as consideration by the parties is in fact consideration." The theory only states that when it is not intended as consideration it will not be legal consideration.

Thank you, that is my inclination too. I guess I am such experiencing such dissonance because my professors example doesn't seem to go along with

We didn't cover the "peppercorn" theory in particular but it sounds like you're talking about nominal consideration which is the thing being bargained for is relatively of such little value, it can't possibly be sincere consideration and edges on it being a gift.

That's... pretty much all we learned about it. Consideration is a bargained for exchange, and there is no justifiable way for anyone to say that they were actively seeking a peppercorn in exchange for a house so it's not consideration. Why is this really... not a matter? As long as the person who is claiming is that he/she is for realsies looking for a peppercorn, this would never be an issue that needs resolving. Call it a gift, call it a contract, what difference does it make if nobody is disputing the assent?

You're right, I guess this would only come up in practice if two people intentionally enter a sort of peppercorn agreement, and then the one giving the gift wants to back out, but the other one refuses saying the agreement is binding.

As far as exam-taking goes, I would have just made an argument on behalf of the peppercorn being "nominal" and not being bargained for so no contract, and then the counterargument would be that it was consideration regardless of whatever arbitrary value a 3rd party attaches to it and that it was consideration, thus a contract.

Then make a promissory estoppel argument, and then it's on to the next one.

[03152016]

dude read the very last sentence of my second post

i'm trying to be kind here, but come on man, read

[Stylistics]

dude read the very last sentence of my second post

i'm trying to be kind here, but come on man, read

lol how does ultimately agreeing with my conclusion negate the fact that you fundamentally conflated [whether a fed court has 1367 SuppJ over a properly removed 1441/Grabel] and [can I use 1367, a jurisdictional statute that can't move pieces to places the same way 1441 & Rule 13 can, to commandeer a state suit]?

That's like saying you've reached the right conclusion, e = mc^2, when the "show your work" portion is 2+2=4.

[03152016]

also, you need to give grable another read

Which is probably wrong anyway because in Grable, a defense to a claim hinged on an interpretation of a profound fed issue.

i know you're trying to be helpful, but you can't remove on a federal defense
that would overturn mottley, which simply wasn't what the court did
it was plaintiff's own claim that relied on an irs notice provision

[03152016]

dude read the very last sentence of my second post

i'm trying to be kind here, but come on man, read

lol how does ultimately agreeing with my conclusion negate the fact that you fundamentally conflated [whether a fed court has 1367 SuppJ over a properly removed 1441/Grabel] and [can I use 1367, a jurisdictional statute that can't move pieces to places the same way 1441 & Rule 13 can, to commandeer a state suit]?

That's like saying you've reached the right conclusion, e = mc^2, when the "show your work" portion is 2+2=4.

are you talking about:

1367 isn't as one-sided as you're making it out btw, it's used on removed state claims all the time
and that two separate suits have been filed doesn't speak to whether the respective claims are part of the same case or controversy
the question isn't whether multiple suits have been brought, but whether there is a common nucleus of operative fact

i was correcting your post, since you were mixing things up
not arguing for my initial post

explain?

[BmoreOrLess]

Is the statute of limitations tolled for a compulsory counterclaim? Seems like it would be if it invokes supplemental jx under § 1367(d), but what if the counterclaim involves a federal question and doesn't need §1367? Can the counterclaimant use §1367 instead of §1331, or will §1331 automatically be invoked? Is there another tolling provision then?

[03152016]

it's not my hypo, it's from a practice exam
there was enough wiggle room to remove under grable, so i just argued that

1367 isn't as one-sided as you're making it out btw, it's used on removed state claims all the time
and that two separate suits have been filed doesn't speak to whether the respective claims are part of the same case or controversy
the question isn't whether multiple suits have been brought, but whether there is a common nucleus of operative fact

i ended up coming to the same conclusion you did tho
can't be done

i thought i was being pretty clear, but i'll rearrange my post so we can end this

1) conclusion: it can't be done
2) there was enough wiggle room in p's state claim to remove under grable, which solves my problem of getting it into federal court
3) you're wrong that it wouldn't show up on a practice exam, it was directly from a practice exam
4) you're wrong that having two separate and distinct suits means that they're not part of the same case or controversy
5) 1367 is much broader than you're describing; it's often used to hear removed state claims, which is a pretty clear "commandeering" of someone else's suit

[Stylistics]

also, you need to give grable another read

Which is probably wrong anyway because in Grable, a defense to a claim hinged on an interpretation of a profound fed issue.

i know you're trying to be helpful, but you can't remove on a federal defense
that would overturn mottley, which simply wasn't what the court did
it was plaintiff's own claim that relied on an irs notice provision

No I was saying all along that you can't remove on a federal defense:

(2) there's no support for the proposition that you can 1441 remove an otherwise unremovable state law claim simply by manufacturing a federal counterclaim

You quoted me as saying "Which is probably wrong anyway because in Grable..."
I said that because you said

it's not my hypo, it's from a practice exam
there was enough wiggle room to remove under grable, so i just argued that

So I was saying that "there was enough wiggle room" was probably wrong because [here's what happened in Grable], and Grable doesn't support what you're trying to do.

But if you're saying what you were clearing up was that 1367 is used all the time to exercise SuppJ over claims that have already been properly removed and are now in fed court, then yes I've been saying that too, esp. since 1441c says that if the plaintiff's case has 1 federal question and a bunch of other state claims, then 1441c lets you remove the entire action, and the justification is that you probably would've had 1367 on your side even if you didn't have 1441c.

But where I disagreed was when you asked

then i sue A in federal court [i.e., Bruh vs A in USDC SDNY, Case#2] on a federal claim involving the same common nucleus of operative fact as A's state claim. i want A's claim in fed court

and essentially whether 1367 SuppJ can be used offensively and I was saying no you can't use it to get A's state claim out of state court and into federal court. 1441 lets you do that, then 1367 can justify the court's competent jurisdiction once it's already properly there. But 1367 isn't like Rule 13 or 1441 cus it can't move anything anywhere.

[03152016]

ya, the first and second paragraphs of post 2 weren't in support of my proposition in post 1
i wasn't saying i could remove under grable using a counterclaim as a federal defense
which wouldn't work (a) because of mottley (unless the defense is that the state claim is completely preempted), and (b) because a counterclaim need not operate as a defense at all

[Stylistics]

1) conclusion: it can't be done
2) there was enough wiggle room in p's state claim to remove under grable, which solves my problem of getting it into federal court
3) you're wrong that it wouldn't show up on a practice exam, it was directly from a practice exam
4) you're wrong that having two separate and distinct suits means that they're not part of the same case or controversy
5) 1367 is much broader than you're describing; it's often used to hear removed state claims, which is a pretty clear "commandeering" of someone else's suit

OK I just read this. Yes I agree it can't be done.
2. when I first read your statement "there's enough wiggle room under Grable," I thought you meant Grable had something to do with 1367. But if you mean Grabel provides a method of removal complementary to 1441, then yes I agree that's what Grabel does. I don't know whether I'd agree that Grabel gives you enough wiggle room to get his state claim into federal court because you didn't say what A's state claim was and whether it implicated a profound fed interpretation.
3. Yes I was wrong about that, it sounded completely made up and novel and not simply a variation on something that you might see out in the world.
4. I don't know if I was wrong about that. It was pretty clear there were 2 lawsuits going on: A vs Bruh in state court, and 2. Bruh vs A in fed court. It seemed like 2 cases or controversies. If nucleus of operative facts somehow allows you to argue 2 cases = 1 case or controversy, then there'd be no such thing as permissive joinders (Temple vs Synthes).
5. Yes I agree 1367 isn't just about an Allapattah stacking of claims that otherwise can't get in under 1331 or 1332. It can do a bunch of things relating to counterclaims etc, but where I disagreed was that it can move a case in one sovereign and merge it with another case taking place in a different sovereign the same way 1441 does. Or even like a transfer of venue. I was saying that by itself, 1367 can't move anything anywhere, but it can authorize fed courts to hear stuff that mechanisms other than 1367 properly place before the court (FRCP Joinder, 1441, etc).

I wasn't arguing just to argue. No one has time for that. I'm in the exam taking business too you know, and the reason I offered to answer CivPro questions is so that I can sharpen my own understanding of CivPro. So if you have anything else about CivPro, feel free to ask.