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Messages - Mina

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51
Studying and Exam Taking / Re: tips for memorzing for closed book exam
« on: December 19, 2007, 06:18:56 AM »
Hmph, your analysis seems on point, I would like to only sharpen its razor precision.  On an overview note, PJ is both a personal "right" & a territorial "limit" on the State. (duh!)


Shoe's test is based on the idea of "prescence" (from Pennoyer), & its idea of minumum contacts is free-flowing, I find it to be too unfocused to help.

In my class, we broke it PJ roughly in two: general & specific juris..
(note helicopteros is right smack-dab in the middle, just in case u read that case)

GJ
(1) mega-contacts (usu. Business retailers, for short-hand, ask if State can tax them)
(2) HQ/Inc. reside/domicile
(3) Present in state (Burnham consent) or property in state (In rem/Quasi In rem)

Policy: State sovereingty/territorial limits

SJ
(1) Minimum Contact: (basically a "legal" cause w/ intent)
            INTENTIONAL targetting of forum state, two parts:

            (a) purposeful avail (usu. per contract/retailers), not just placing X in
           stream of commerce w/ knowledge + forseeability it will reach forum state,
           BUT specific: e.g.,I wanna profit from those rude New Yorkers by selling
           them fake cocaine. has to be DIRECT! (This why unilateral acts dun count)
----OR-----(not mutually exclusive)
           (b) Calder's effects test: (usu. for torts) INTENTIONAL tort Expressly
           targetting X forum state, & forseeable dmg will occur there.

Note: GJ mega-contacts assumes this SJ "minimum intent," they apply to both, though for SJ you can have just one contact, though for GJ it needs to be huge (to use a metaphor: has to leave a "footprint" on the society via economics, clothing, social ways etc.)
-->basically: same mens-rea, & mega-contacts = can be sued there all the time for anything, but minimal contacts = can be sued for this specific contact.)

(2) Nexus, Lawsuit wouldn't have happened but-for the SPECIFIC contact
(3) Asahi factors (can only destroy a suit, can never supply you with personal jursidiction--unless the person waived their right; these factors seem identical to forum non-conveniens--don't they?)

Policy: Its "fair" to hale this guy into Ct, cuz waived in personam right by doing (1)+(2)


Special note (may be confusing, just gloss over it):
(a)Chain-disribution (e.g. Mike sells Cigarrettes to Joe even though Joe clearly never smoked, cuz he knows Joe's brother is a nicotine fiend).
(b)there seems to be minimum contact (like Asahi's chain distribution per valves)
(c) Can we distinguish this from stream of commerce in WW Volks? One way to do this, as you suggested, is via Burger King's (see also McGee/Hanson v. denckla) "substantial relation & reach out" test. The Key here is INTENT.
In BK, he signed a forum clause, made mad payments to fla. signed ongoing contract there, so technically waived his in personam juris. "right" not to be haled into Ct. in Fla.  (Also, in BK, "Effects test" used to infer intent, since forseeable dmg will occur in Fla., intent inferred doubly) In Asahi, there was chain-distribution, (selling the valves), however, afterwards it fell into the "stream." So, Asahi had SPECIFIC INTENT to benefit from valve guy, but had only knowledge + forseeability it'd reach Cali.

Why did I write this?
Well, just take care cuz INTENT & Knowldge are very thinly separated, the way I do it, is to remember that one always must INTENT to TARGET SPECIFIC forum state, can't be "random or coicindental" ("benefit of the laws/tax" is a good test, but is rather broad), & Asahi really has it all, intent/knowledge/factors/(forum-non-coneveniens)
Hope this helps!!--M.

p.s. just in case why ur wondering why I know all this nonsense, its cuz I got a civ. pro. final after 2maro!
 
Hey I have a hypo for you:
(1)Diablo has no stores or employees in NY, but sells clothing there though catalogues & website. 6% of national revenue comes from NY., Maximus buys a sweater from diablo that quickly unravels, he wishes to sue them in NY, may he do so? 

(2) Maxine, who used to work for Diablo in Texas, got layed off even though Diablo promised her they wouldn't lay her off. She moves to NY, may she sue them there?

            * * *

(3) Jack was born & owns a house in Chicago; he then defrauds 100 students into thinking he is a professor in NY (takes all their tuition), after, he hides out in FLA, where he owns shop that sells orange juice & bikinis. As he is driving back-north, A Marshall nails him w/ service in North Carolina (a student resides there). Pissed, he starts driving back south, another Marshall nails him wit another Summons in South Carolina. Finally, really angry, he gets on a plane to Cali., while he is over Pennsylvania, he gets another service of process.

Where can he be sued? assuming they are in fed. court for diversity, Where would a motion to transfer to succeed, & where is appropiate venue? 
  



 

52
Studying and Exam Taking / Re: tips for memorzing for closed book exam
« on: December 18, 2007, 03:09:07 PM »
Just a bit of warning; I have found that "memorizing" creates tunnel vision, & usu. leads to failure in issue spotting. I mean Civ. Pro. usu. can be broken into 5 Q.'s
(1) What State you can sue in? (PJ)
(2) What claim you may bring? (SJ-1331/32/67)
(3) What Court house to file in? (Venue, Transfer, removal, forum non conveniens etc,)
(4) What apllicable law? (Eerie/Hanna)
(5) What's the scope of the suit? (Joinder claims/parties: Rule13,14,18,19,20 etc etc.)

So if you do memorize, make sure to always ask those 5 Q.s & look deeper, e.g.  u have 1404 memorized that may lead to just "Removal by D. to fed Ct." for short-hand, may be insufficient, & ur brain will be a little too conlusory about issues (at least this what i have found). This advice isn't golden or pure of course, but thought it could help!! best of luck--M.

53
Studying and Exam Taking / Studying day of exam?
« on: December 17, 2007, 01:35:20 AM »
I'm a 1L evening student, my test 2maro at 6pm, should I study before or will this create stress & cuz tunnel-vision due to exhaustion?

54
I think their is a mix up, since their are three categories, (1) Alibi & Mistake of law/fact, intoxication (in NY) etc. are actually not defenses at all, they simply negate the mens rea with an external fact/law (by creating a reasonable doubt), that usu. means defense attorney has to produce evidence & persuade but the prosecutor need NOT disprove beyond a reasonable doubt (BARD). (2) True defenses NEED introduce an internal element that negates a CRIME element (e.g. self-defense, justification, defense of 3rd p. etc.), prosecutor needs to disprove these BARD, only some evidence required--just production by defense counsel. (3) Affirm. Def. require produce & persuade, (e.g. insanity, most heat of passion, diminished responsibility, duress, EXECUSES,entrapment) prosecutor usu. needs to disprove these BARD, though some states differ & each defense differs. Quick short hand: (1) element negators poke holes in State's case, (2) defenses usu. assert elements of crime present, but conduct justified--no "wrong" crime was committed, & (3) affirm def. assert this person execused cuz of some special fact/law. Hope this helps!

55
Actually Now I know I failed, Because I missed self-defense, & as a result Defense of 3rd-person, Law enforcement defense, public duty defense, duress (common law & MPC), the distinction between common-law robbery & MPC, physical proximity & dangerous prox. for attempt. This is very good, at least now I know I messed up real bad (prolly got a D or an F). Also, the professor said before right before the test when I met him (I was hiding behind the door, & he didn't see me) that he had this "feeling" during the conference with a girl that "either her or the next student would get an A, & the other would fail). under Ny law, it is a misdemeanor to intentionally claim you know someone's future Except only for entertainment purposes. (he claimed to knew the future) I was wondering If I can equittable relief by demanding a court order to retake the test? (the NY trial court is actually down the block from my school, I have a 100 bucks to file.) Do I need a cause of action for equity? (this'd be by only remedy, &  can subpoena the girl; I'm sure I can prove this by preponderance of evidence, unless of course he & she lie) Also, I had nightmares about this etc. etc. 

56
Thank you for trying to make me feel better mr. Thorc, I'm actually laughing about it now, after all that hard work, studying & 60 page outlines, & hypo practice, & conferences,& study groups: I'm going to get a C,-- when you really look at it, its ironic, & retrospectively amusing-- (p.s. I'm a 1L, so this why I ask about issue thingy)

57
Uhm, I've outlined it, paid attention,etc. etc. I was wondering what I got to do over the next five days in order to "pull everything together." Con. law  seems crazy to spot the issues, or apply a clean analysis, How do I prepare for this?

58
Studying and Exam Taking / Re: Done finals, freaking out
« on: December 12, 2007, 12:16:21 AM »
Yeah, now that I'm thinking about it about I muaust've made a ton os mistakes everywhere, just bad exam taking, I must've failed...

59
Damn, are you sure about that C?--cuz it seemed like the clear separator! and now that I think about it, my analysis was sloppy, maybe even a D--amn this sucks real bad, I studied real hard for this test.... :(

60
Studying and Exam Taking / Hey how important is spotting ALL the issues?
« on: December 11, 2007, 10:41:02 PM »
I just finished my crim. law final, only to realize I failed to adress an unsuccesful self-defense issue, it seemed to be minor, & would likely not averse the discussion very much, but it was very well hidden--& the only defense present, the call of the question asked for a defense! Have I just lost all my chances of an A?

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