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

[Nekrowizard]

Post removed.

[03152016]

fair enough
those are the words my prof used, they mean the same thing
if your prof didn't say it, probably shouldn't use it

[foundingfather]

Torts

Can anyone explain the difference between primary and secondary assumption of risk?

Wouldn't AOR bar plaintiff's recovery regardless?

[Avian]

You wouldn't have SPECIFIC jurisdiction in every state, but Walmart would be a case where you would have GENERAL jurisdiction in every state. You only need one in order to have personal jurisdiction.

As Brut correctly stated regarding Daimler AG v. Bauman, it would be the "exceptional" case where a corporation's "operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State." I doubt that Walmart or other national chains would fall into this exceptional category. I can't say for certain, but I would think that the Court probably had something in mind where a company has two or more equivalent principal places of business, rather than simply a company that has stores in multiple states.

[BVest]

Fair enough. I should have repeated my previous disclaimer that my coverage of the subject dates to two years ago.

[BVest]

Torts

Can anyone explain the difference between primary and secondary assumption of risk?

Wouldn't AOR bar plaintiff's recovery regardless?

—Primary assumption of the risk:
- NO DUTY owed
- —Failure to prove breach of a duty of care
- —It’s a deficiency in Plaintiff’s prima facie case

Secondary assumption of the risk
- Maybe Plaintiff proceeds despite understanding the risk
- —While this is a complete defense to liability in some jurisdictions, many jurisdictions now say that this has been merged into contributory/comparative negligence and is no longer a separate affirmative defense

Restatement § 496(c)
- Embodies “secondary” or “implied” assumption of the risk
++ Subjective (does INDIVIDUAL fully appreciate risk?)
++ Does not have to be reasonable from objective standpoint
- Rejected in Meistrich; Meistrich is more objective: (WWRPPD?)
- Secondary Assumption not a valid defense if an Express Assumption (i.e. contractual clause) in same situation would not be valid due to public policy

[john_brown]

Does anyone have a structure or outline to apply on personal jurisdiction questions? I think I get the concepts, I'm just not sure how I would go about tackling a question.

[hailcaesar34]

Does anyone have a structure or outline to apply on personal jurisdiction questions? I think I get the concepts, I'm just not sure how I would go about tackling a question.

[foundingfather]

Torts

Can anyone explain the difference between primary and secondary assumption of risk?

Wouldn't AOR bar plaintiff's recovery regardless?

—Primary assumption of the risk:
- NO DUTY owed
- —Failure to prove breach of a duty of care
- —It’s a deficiency in Plaintiff’s prima facie case

Secondary assumption of the risk
- Maybe Plaintiff proceeds despite understanding the risk
- —While this is a complete defense to liability in some jurisdictions, many jurisdictions now say that this has been merged into contributory/comparative negligence and is no longer a separate affirmative defense

Restatement § 496(c)
- Embodies “secondary” or “implied” assumption of the risk
++ Subjective (does INDIVIDUAL fully appreciate risk?)
++ Does not have to be reasonable from objective standpoint
- Rejected in Meistrich; Meistrich is more objective: (WWRPPD?)
- Secondary Assumption not a valid defense if an Express Assumption (i.e. contractual clause) in same situation would not be valid due to public policy

180 ty!

[wsparker]

jk. dumb question

[CardozoLaw09]

Does anyone have a structure or outline to apply on personal jurisdiction questions? I think I get the concepts, I'm just not sure how I would go about tackling a question.

I was under the impression that the inquiry of the long-arm statute takes place after PJxdn can't be established constitutionally. Is that wrong?

[BVest]

I was under the impression that the inquiry of the long-arm statute takes place after PJxdn can't be established constitutionally. Is that wrong?

If PJ can't be established constitutionally, a long-arm statute that then allowed it would be unconstitutional (at least in that particular application). You can do the Constitutional analysis first, but if PJ cannot be established constitutionally, there is no reason to analyze the long-arm statute for its applicability.

[xmking07]

I was under the impression that the inquiry of the long-arm statute takes place after PJxdn can't be established constitutionally. Is that wrong?

If PJ can't be established constitutionally, a long-arm statute that then allowed it would be unconstitutional (at least in that particular application). You can do the Constitutional analysis first, but if PJ cannot be established constitutionally, there is no reason to analyze the long-arm statute for its applicability.

It's typically easier to do the long-arm statute first. In the event the LA confers jurisdiction to the bounds of the constitution, you acknowledge that and then move to the constitutional analysis. Takes 1 sentence. In the event that it is a "laundry list" statute where it only confers jurisdiction in certain circumstances (tortious acts or omissions within the state, etc) you need to see if the facts fit the statute. If they don't, you don't really need to go into the constitutionality of pj. If the facts do meet the statute, then you do continue with the constitutional analysis. As stated above, this can be done after you do the constitutional analysis, but many people (and professors) think the LA is the first step in the analytical process.

[sesto elemento]

Contracts

Parol evidence, how does it work?

[apples89]

Contracts

Parol evidence, how does it work?

currently working on this in K's

it's extrinsic evidence outside the writing used to show that the current K isnt what you think it is:
show a defense to enforcement
show no K formed
show there was a subsequent agreement
show a mistake in integration or a typo
clarify ambiguities - needs to be ambiguous, then go into 3 approaches: 4 corners, extrinsic evidence, and hybrid
prove additional, consistent terms*
prove different, conflicting terms* (mostly excluded unless you can convince a judge the term is ambiguous)

*if its these last two, then you need to ask if the writing is integrated or fully integrated:
An integrated writing (complete and final expression of at least one term of a parties agreement) discharges all prior and contemporaneous oral agreements and all prior written agreements that conflict with the writing
A fully Integrated (complete and final expression all terms of a parties agreement) writing discharges all prior and contemporaneous oral agreements and all prior written agreements within its scope (parol evidence usually not allowed)

hope i'm on the right track, please correct me if I'm off.

oops forgot UCC 2-202:
Course of dealing and performance and usage of trade is allowed BEFORE determining if terms/writings/words are ambiguous, and could be used to help understand what those writings mean.

[wsparker]

Leg/Reg

How do we know when an agency should go through notice and comment or if they can make a guidance document or interpretive rule or ruling letter? Is there anyway to know?

Thanks!

[xmking07]

Leg/Reg

How do we know when an agency should go through notice and comment or if they can make a guidance document or interpretive rule or ruling letter? Is there anyway to know?

Thanks!

Case: Hoctor v. USDA – Rule:
1. Posner -- Interpretation can be used to CLARIFY, to derive a more precise meaning to a fairly precise statute or legislative rule. BUT where a statute is vague and open an interpretive rule cannot be used to make arbitrary rules under the guise of “interpretation”.
a. In Hoctor Posner said it was arbitrary to interpret the Animal Welfare Act & a USDA rule made under that statute regarding “housing” of animals to require 8’ Fences. He said such a “demarcation” should come through notice-and-comment rule making because it was arbitrary

[Br3v]

Contracts

Parol evidence, how does it work?

If it makes you feel better I thought that was the hardest part of contracts.

[BVest]

Contracts

Parol evidence, how does it work?

Here's my outline on it, FWIW. Happy to answer specific questions about it.

[chargers]

CivPro Question:

Can anyone help me out a little with venue? I'm sorry I don't have a more specific question to ask, but I'm not sure I have a basic enough understanding to ask specific questions.

My professor opened up talking about venue with saying that its the easiest thing to test on the final (*wink, wink*), and then proceeded to blast through all the content in 10 minutes and moved on.

[wsparker]

Leg/Reg

How do we know when an agency should go through notice and comment or if they can make a guidance document or interpretive rule or ruling letter? Is there anyway to know?

Thanks!

Case: Hoctor v. USDA – Rule:
1. Posner -- Interpretation can be used to CLARIFY, to derive a more precise meaning to a fairly precise statute or legislative rule. BUT where a statute is vague and open an interpretive rule cannot be used to make arbitrary rules under the guise of “interpretation”.
a. In Hoctor Posner said it was arbitrary to interpret the Animal Welfare Act & a USDA rule made under that statute regarding “housing” of animals to require 8’ Fences. He said such a “demarcation” should come through notice-and-comment rule making because it was arbitrary

Thank you!!

And that parol evidence outline is awesome

[BVest]

CivPro Question:

Can anyone help me out a little with venue? I'm sorry I don't have a more specific question to ask, but I'm not sure I have a basic enough understanding to ask specific questions.

My professor opened up talking about venue with saying that its the easiest thing to test on the final (*wink, wink*), and then proceeded to blast through all the content in 10 minutes and moved on.

Here's what I've got on Venue. And your professors disclaimer makes it sound like there won't be Venue questions (or if they are, they'll basically be a restating of rule without analysis), but you'll certainly need to be prepared for them.

And remember the distinctions between jurisdiction, forum, and venue I discussed above:

Jurisdiction: Power of the court to try the case in that state

Forum: System of which the court is a part has the jurisdiction to try the case, but there's another system that would be better (if you're in Federal Court, a forum motion is claiming another country's courts are more appropriate; if you're in state court, you're claiming that the proper forum is another state or country).

Venue: The court has jurisdiction, and you're in the proper court system, but another location would be more appropriate (e.g. one county over another within a state court system; one state/district over another in federal courts). As I recall, state cases that have been removed to federal court have some special venue issues, but I don't remember them.

[chargers]

CivPro Question:

Can anyone help me out a little with venue? I'm sorry I don't have a more specific question to ask, but I'm not sure I have a basic enough understanding to ask specific questions.

My professor opened up talking about venue with saying that its the easiest thing to test on the final (*wink, wink*), and then proceeded to blast through all the content in 10 minutes and moved on.

Here's what I've got on Venue. And your professors disclaimer makes it sound like there won't be Venue questions (or if they are, they'll basically be a restating of rule without analysis), but you'll certainly need to be prepared for them.

And remember the distinctions between jurisdiction, forum, and venue I discussed above:

Jurisdiction: Power of the court to try the case in that state

Forum: System of which the court is a part has the jurisdiction to try the case, but there's another system that would be better (if you're in Federal Court, a forum motion is claiming another country's courts are more appropriate; if you're in state court, you're claiming that the proper forum is another state or country).

Venue: The court has jurisdiction, and you're in the proper court system, but another location would be more appropriate (e.g. one county over another within a state court system; one state/district over another in federal courts). As I recall, state cases that have been removed to federal court have some special venue issues, but I don't remember them.

Thank you! That outline helped a bunch

[sesto elemento]

Contracts

Parol evidence, how does it work?

Here's my outline on it, FWIW. Happy to answer specific questions about it.

Thank you!

[LSATobsessed]

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