1L Substantive Law Questions (Get your BLL on ITT) Forum

[Br3v]

Thanks, it helps to hear you say it because I am pretty sure I understand it and it helps click when I can track your though process.

[feralinfant]

So let me clarify. I was referring to the Stewart Machine test which says for a taxing and spending scheme (I know those are separate powers, but the incentive type scheme we are all familiar with) to be unconstitutional it has to be shown to be coercion, not mere encouragement. Thus the pivotal Q is whether the St really had a choice to not take the money and comply. We see Sebelious showing an instance where it was coercion.

We also have the Dole factors (1) Spending has to be for gen welfare (2) Unambiguous (3) Proximity (4) Other Constitutional provisions may bar. This case again dealt with a scheme between the Feds and the States (Hwy funds and drinking age).

My question: What about if Cong is trying to pull something like this with an individual?

I guess here is an analysis. Cong trying to get person to do something Cong could not mandate normally (Do not smoke). Cong says if you do not smoke you will get $100 a year.

Would we apply the formal Dole standard and coercion/ encouragement test to this? (Its for gen self; its unambiguous; proximity; no other const provisions bar this). This is just mere encouragement, an individual could say no if they want.

Or is that test just apply yo Fed/St relationships? (Cong trying to get St to make a law banning smoking under their police power)?

Would we just say (1) Cong cannot force you not to smoke (assume they cannot). (2) Cong does have discretion to spend for the general welfare though, and they are not forced to spend that $100 without the strings if they do not want to.

i could be wrong but i feel like Roberts opinion in Sebelius would indicate that this is pretty clearly a tax, though at a certain point (outlier: million dollar fine) it would clearly be a penalty meant to reg. individual behavior in a way thats beyond the enumerated powers. It might also be relevant (based on the language in Sebelius) who was issuing the money etc. So I think if the IRS is lopping it off your tax bill it's fine. If the surgeon general sends you a personal check, the case is less strong for its constitutionality I would think, though I don't know how that analysis would work. And there might not be a clear answer b/c it could just be uncharted territory.

disclaimer

[2807]

Thanks, it helps to hear you say it because I am pretty sure I understand it and it helps click when I can track your though process.

Teamwork !
Good job.

[bdm261]

When a non-breaching buyer is seeking specific performance of a unique item, like a statute, and the buyer breaches and sells to another buyer for a higher amount, what is the non-breaching buyer's remedy?

Can the court order the item replevined from the 2nd buyer, or is the non-breaching buyer entitled to the difference between what she was going to pay and what the 2nd buyer paid?

[arklaw13]

When a non-breaching buyer is seeking specific performance of a unique item, like a statute, and the buyer breaches and sells to another buyer for a higher amount, what is the non-breaching buyer's remedy?

Can the court order the item replevined from the 2nd buyer, or is the non-breaching buyer entitled to the difference between what she was going to pay and what the 2nd buyer paid?

Can't get specific performance if the item has already been sold to someone else. Difference between agreed price and what second buyer paid is once possibility for damages. No good way to calculate it other than that.

[beepboopbeep]

When a non-breaching buyer is seeking specific performance of a unique item, like a statute, and the buyer breaches and sells to another buyer for a higher amount, what is the non-breaching buyer's remedy?

Can the court order the item replevined from the 2nd buyer, or is the non-breaching buyer entitled to the difference between what she was going to pay and what the 2nd buyer paid?

Can't get specific performance if the item has already been sold to someone else. Difference between agreed price and what second buyer paid is once possibility for damages. No good way to calculate it other than that.

The other option would seem to be contract-market price differential, though difference between contract price and second sale price could simply be used as a proxy for that. Buyer might also offer evidence of similar statues sold at a higher price and get more.

Hard to see a reliance possibility here, but perhaps if the buyer planned to resell and could offer evidence of a second sale contract, he could recover that differential. I agree that the former is more likely.

[06102016]

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[sublime]

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[06102016]

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[bsktbll28082]

I think I've been in the material too long: how does one know what level of intent is required for crimlaw offenses? Will it just be explicitly in the statute?

[KD35]

What's the best way to learn Contracts?

Chirlestein. It is short too. Ks was my best grade and that had a ton to do with it imo

Yeah I'm readingn through it rn. Probably going to do that today, then go through a good outline. I'm wondering if I should read this supp and then another supp keyed to the text. Might be overkill.

Chirlestein + Practice Tests = Profit.

Did those two and walked away with a solid A in the class.

[bsktbll28082]

Chirlestein + Practice Tests = Profit.

Did those two and walked away with a solid A in the class.

Recommended practice tests?

[beepboopbeep]

I think I've been in the material too long: how does one know what level of intent is required for crimlaw offenses? Will it just be explicitly in the statute?

Not always, but if you know you're in either a common law or MPC state you can look to the MR required for whatever offense in either system. eg, specific intent for CL burglary, P / K / (E)R for MPC intentional homicide, etc.

If you don't know what type of jurisdiction you're in, run through both sets of requirements. If you have MR in the statute and it's different from the CL/MPC approaches, probably worth noting as well. Also worth noting what MR is required for specific attendant circumstances.

[bsktbll28082]

I think I've been in the material too long: how does one know what level of intent is required for crimlaw offenses? Will it just be explicitly in the statute?

Not always, but if you know you're in either a common law or MPC state you can look to the MR required for whatever offense in either system. eg, specific intent for CL burglary, P / K / (E)R for MPC intentional homicide, etc.

If you don't know what type of jurisdiction you're in, run through both sets of requirements. If you have MR in the statute and it's different from the CL/MPC approaches, probably worth noting as well. Also worth noting what MR is required for specific attendant circumstances.

So if the statute is: 'Person commits manslaughter if he recklessly causes the death of an individual,' then you'd run through the CL/MPC definition of reckless? (assuming it does not say which to follow).

Currently arguing with a classmate about specific/general intent. Turns out our prof does not care for the difference so there's that.

[2807]

I do not believe "reckless" changes its form from MPC/CL.
Does it ?
The difference (if any) from MPC/CL would be: when to apply reckless.


Therefore, if you have "reckless" in the statute, you are set.

And, as you know, reckless is the default required mens rea if none is stated clearly. (MPC)

[bsktbll28082]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

[2807]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

What are you stuck on?
Lay it on me.

[bsktbll28082]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

What are you stuck on?
Lay it on me.

So I've got that statute (see above). Do I first apply the CL/MPC MR definition of reckless? If so, the guy in my hypo didn't qualify (it was an omission, but he wasn't indifferent to life). But then, there are different types of manslaughter- would I then go through the CL/MPC levels of that as well? I was trying to get him on involuntary manslaughter or negligent homicide.

I'm trying to develop a system to attack problems. Our professor frowns on practice exams, didn't post past exams, and only gave three hypos the last day of class.

[vinnnyvincenzo]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

What are you stuck on?
Lay it on me.

So I've got that statute (see above). Do I first apply the CL/MPC MR definition of reckless? If so, the guy in my hypo didn't qualify (it was an omission, but he wasn't indifferent to life). But then, there are different types of manslaughter- would I then go through the CL/MPC levels of that as well? I was trying to get him on involuntary manslaughter or negligent homicide.

I'm trying to develop a system to attack problems. Our professor frowns on practice exams, didn't post past exams, and only gave three hypos the last day of class.

Here's how I am planning to attack them.
For that statute, the mens rea is reckless. Therefore, you plug every fact given into the reckless definition to see if the person was at least reckless. So yea, use the CL definition or the MPC definition, or whatever definition may be provided on your exam of reckless and analyze it. Was there a mistake of fact which would negate the mens rea? Probably not given that it is reckless.
If there are other offenses that could possibly be charged, you look at the mens rea provided in those statutes and do the same. If there is a result, bring in causation. If there is no mens rea, its a strict liability crime, discuss if its constitutional (i.e. is it regulatory, gravely besmirch, high penalty, etc.). If it is strict liability, is it a common law crime where there needs to have mens rea due to an expectation? Can we extrapolate the mens rea from the common law? What defenses might be raised? (duress, choice of evils, etc.?) Look at the in choate offenses as well(attempt, complicity, conspiracy).

[2807]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

What are you stuck on?
Lay it on me.

So I've got that statute (see above). Do I first apply the CL/MPC MR definition of reckless? If so, the guy in my hypo didn't qualify (it was an omission, but he wasn't indifferent to life). But then, there are different types of manslaughter- would I then go through the CL/MPC levels of that as well? I was trying to get him on involuntary manslaughter or negligent homicide.

I'm trying to develop a system to attack problems. Our professor frowns on practice exams, didn't post past exams, and only gave three hypos the last day of class.

First, you would lay out the basics and discuss "Actus Reus and Mens Rea" concepts succinctly.
Then you would start to IRAC, referring to the above when needed.

Without knowing your facts, it is likely you will not have "different" types of manslaughter to address.
There is only:
(1) Voluntary (intentional, but with provocation)
(2) Involuntary (unintentional, but with gross negligence)

Involuntary is likely where you would need to analyze the "omission" as an act of gross negligence.
And this will lead you to an expose' of negligence as compared to "reckless" which requires knowledge.

That is a tricky analysis he gave you... for a reason.
Stay objective and trust IRAC.
Just say "... if the omission is deemed "gross" enough then it would qualify for..."

You can address defenses (to be thorough) if the facts indicate one.
Otherwise the defense is merely "not reckless." Thanks.

Sounds like the focus is on the "grossness" of an omission and will it constitute criminal culpability.
Probably fact specific, and just make the arguments.
Trust IRAC. It will keep you structured.

Law School = Analysis, not answers.
You want the answer, ask a jury....

[2807]

Hm, well. I guess I'll just fail tomorrow. This is what happens when your professor spends all of class showing videos instead of teaching.

What are you stuck on?
Lay it on me.

So I've got that statute (see above). Do I first apply the CL/MPC MR definition of reckless? If so, the guy in my hypo didn't qualify (it was an omission, but he wasn't indifferent to life). But then, there are different types of manslaughter- would I then go through the CL/MPC levels of that as well? I was trying to get him on involuntary manslaughter or negligent homicide.

I'm trying to develop a system to attack problems. Our professor frowns on practice exams, didn't post past exams, and only gave three hypos the last day of class.

Here's how I am planning to attack them.
For that statute, the mens rea is reckless. Therefore, you plug every fact given into the reckless definition to see if the person was at least reckless. So yea, use the CL definition or the MPC definition, or whatever definition may be provided on your exam of reckless and analyze it. Was there a mistake of fact which would negate the mens rea? Probably not given that it is reckless.
If there are other offenses that could possibly be charged, you look at the mens rea provided in those statutes and do the same. If there is a result, bring in causation. If there is no mens rea, its a strict liability crime, discuss if its constitutional (i.e. is it regulatory, gravely besmirch, high penalty, etc.). If it is strict liability, is it a common law crime where there needs to have mens rea due to an expectation? Can we extrapolate the mens rea from the common law? What defenses might be raised? (duress, choice of evils, etc.?) Look at the in choate offenses as well(attempt, complicity, conspiracy).

This is great. You have a good grasp and a comprehensive approach.

[bsktbll28082]

Thanks 2807/vinnnyvincenzo. Those are both helpful. I'll try to do a few more hypos to work out a process.

[First Offense]

I just know there's going to be a question on the President's war powers on this exam... and I feel like my answer is gonna be some gobbleygook and parroting Jackson's Youngstown concurrence. Is there anything else I can bring to the table?

[feralinfant]

alright guys i have a final this week that will include an essay on something about..."constitutional law". That is literally all the direction we've been given. If y'all have some big picture questions you want to toss out there, this is the only way I can think to study for the exam. So take all your deep ruminations and unanswerable questions about the separation of powers and federalism and put them ITT. Seriously, the biggest broadest most ridiculous questions about con law are much appreciated.

I just know there's going to be a question on the President's war powers on this exam... and I feel like my answer is gonna be some gobbleygook and parroting Jackson's Youngstown concurrence. Is there anything else I can bring to the table?

I think the Youngstown concurrence is good. Can probably also talk about Hamdi v Rumsfeld. If you want to get historical you can talk about Milligan and Quirin. Most of this is probably just going to go to support Jackson's idea of contracting and expanding powers. It's not exactly war powers but you might even go all the way back to the Neutrality controversy.

[2807]

***editing my response. I will be back if I can make it clearer