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Author Topic: Announcing the most BORING LSD thread EVER! Here we ask & answer legal questions  (Read 6344 times)

Miss P

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I think, but I am not sure, that a few jurisdictions retain the legal impossibility defense.  Louisiana comes to mind.  You know, a great state for divining criminal defense resources in the law.  Okay, I'm a little drunk and have no business in this thread.

Indeed, some do.  The MPC was widely but not exclusively adopted on this issue.  My Crim professor, who I otherwise get along with, really lost it with me when this came up.  He thinks the impossibility defense was idiotic and is glad to see it go.  I'm still not convinced that there is a harm done in shooting a dead person, regardless of your mindset at the time.

I agree.  But we obviously seek criminal punishment for things on bases far from simple policing of social harms, eh?
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J D

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Most commentators seem to agree that so-called "legal impossibility" drew a distinction without much of a difference at all.  I think I agree, since I have yet to hear a good explanation of how so-called legal impossibility (which I think is still a defense in many states; the MPC was influential in some things but not others) differs from factual impossibility, which is not a defense.  It seems like the only real differences involved are that it is usually factual impossibility when a malum in se is involved, and legal impossibility when a malum prohibitum (which the judges happen to think is stupid, like shooting deer) is involved.

My crim professor basically argued that the only TRUE legal impossibility could occur when the actor commits an act he believes to be a crime when in fact it is not, even if he is right about all of his basic assumptions regarding what he is doing (e.g., bringing a certain quantity of diamonds into the country, believing it is illegal to do so under importation laws, when in fact it is allowed).

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Beatnik

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I know this would make more sense in the current students side of the board, but since all the smart people seem to have stayed on this side, I'm throwing it here.

So let's have 'em... stuff that's been bothering you in class, but your prof is unable/unwilling to explain it properly....  here's mine: what's the difference between a motion for summary judgment (R. 56) and a motion for judgment as a matter of law (R. 50a)?  Is the only difference the stage in the trial when you can file them?

PS--also, which 1L cases would make the best Halloween costume?  We're having a dress-up party next week  ;)

In answer to your query: basically, yes.  A motion for summary judgment under rule 56 is brought before the trial begins, usually after discovery, but sometimes after the pleadings have been filed, depending on the circumstances (i.e., if the defendant seeks to bring any other facts not included in the complaint to the attention of the court which entitle him to judgment as a matter of law; if there are no disputed issues of fact and the issue is a purely legal one, etc.).  A motion for judgment as a matter of law, however, is brought after the trial has begun (there used to be 2 separate names governing situations where the motion was brought before or after the jury had rendered a verdict - directed verdict vs. j.n.o.v. - but the Federal Rules consolidate both scenarios under the heading "judgment as a matter of law").

Other than this, the only other difference between the two is the basis for the judge's decision.  Though the standard is essentially the same (whether the evidence viewed in the light most favorable to the non-moving party shows the non-existence of any genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law), the judge considering a motion for summary judgment is supposed to look at the pleadings, the admissible evidence unearthed during discovery, together with any affidavits, if any, to see whether a reasonable jury could decide the case only one way.  By contrast, a judge considering a motion for judgment as a matter of law is supposed to consider the evidence presented to the jury thus far AT TRIAL in making his decision, whether a reasonable jury could decide the case in only one way or not.

If any of this is mistaken, or if I've left something really important out, I have no doubt that other current law students will jump in to correct me.  But I think this is right (from what I recall of Civil Procedure) and hope it answers the question.  Next!


Thanks JD

As I understand it, one practical consideration re. the before/after jury verdict distinction on jml is: If you move for a jml before the case goes to the jury, the judge likely will not grant it -- b/c the jury's verdict may make the need for it obsolete.  BUT, in order to get a jml/jnov after the jury verdict you must have first moved for it before the case went to the jury.
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J D

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I know this would make more sense in the current students side of the board, but since all the smart people seem to have stayed on this side, I'm throwing it here.

So let's have 'em... stuff that's been bothering you in class, but your prof is unable/unwilling to explain it properly....  here's mine: what's the difference between a motion for summary judgment (R. 56) and a motion for judgment as a matter of law (R. 50a)?  Is the only difference the stage in the trial when you can file them?

PS--also, which 1L cases would make the best Halloween costume?  We're having a dress-up party next week  ;)

In answer to your query: basically, yes.  A motion for summary judgment under rule 56 is brought before the trial begins, usually after discovery, but sometimes after the pleadings have been filed, depending on the circumstances (i.e., if the defendant seeks to bring any other facts not included in the complaint to the attention of the court which entitle him to judgment as a matter of law; if there are no disputed issues of fact and the issue is a purely legal one, etc.).  A motion for judgment as a matter of law, however, is brought after the trial has begun (there used to be 2 separate names governing situations where the motion was brought before or after the jury had rendered a verdict - directed verdict vs. j.n.o.v. - but the Federal Rules consolidate both scenarios under the heading "judgment as a matter of law").

Other than this, the only other difference between the two is the basis for the judge's decision.  Though the standard is essentially the same (whether the evidence viewed in the light most favorable to the non-moving party shows the non-existence of any genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law), the judge considering a motion for summary judgment is supposed to look at the pleadings, the admissible evidence unearthed during discovery, together with any affidavits, if any, to see whether a reasonable jury could decide the case only one way.  By contrast, a judge considering a motion for judgment as a matter of law is supposed to consider the evidence presented to the jury thus far AT TRIAL in making his decision, whether a reasonable jury could decide the case in only one way or not.

If any of this is mistaken, or if I've left something really important out, I have no doubt that other current law students will jump in to correct me.  But I think this is right (from what I recall of Civil Procedure) and hope it answers the question.  Next!


Thanks JD

As I understand it, one practical consideration re. the before/after jury verdict distinction on jml is: If you move for a jml before the case goes to the jury, the judge likely will not grant it -- b/c the jury's verdict may make the need for it obsolete.  BUT, in order to get a jml/jnov after the jury verdict you must have first moved for it before the case went to the jury.

Correct.  You'll find the controlling language in Rule 50.  Rule 50(a)(2) states that such motions may be made "at any time before submission of the case to the jury."  Rule 50(b) speaks of "renew[ing]" the request for judgment as a matter of law, and covers the scenario that the "court does not grant a motion for judgment as a matter of law made at the close of all the evidence."  The plain meaning of all this is that the j.n.o.v. motion can only be made if counsel moved for judgment as a matter of law prior to the submission of the case to the jury.  Counsel can only renew an earlier motion that was denied after the jury verdict; they can't raise the motion for the first time after the jury has reached a verdict.

As you have said, though, typically a judge will be loath to grant the Rule 50 motion and will let the case go to the jury, and then might grant the renewed motion after the verdict comes back if it is against the moving party.  The rationale here is twofold:  first, the jury might very well agree with the moving party and decide in its favor anyway, in which case there'll be nothing more to complain about.  But even if the jury goes the other way, the thinking is that if the appellate court decides that entering judgment as a matter of law was error, there is still a jury's verdict to reinstate; otherwise (if the judge never let the jury have an opportunity to reach a verdict) the appellate court can only remand for new trial, which wastes a lot of time and money.
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Alamo

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In.

So what do you guys think of "tag" jurisdiction?  In the Burnham case, I don't really find Scalia's majority (it's just tradition) or Brennan's concurring opinion (purposeful availment of a state's resources) that compelling.  Our casebook had an interesting hypo, in which Alex, knowing that Beth has just visited Oregon, sends her a waiver of service by mail, claiming Oregon jurisdiction on the theory that she subjected herself to Oregon jurisdiction by visiting the state.  The best that my class and professor could come up with for dismissing the waiver of service was that the tactic was "too cute."  I don't think this is an adequate explanation, and it's led me to think that tag jurisdiction is a bit outdated, and really contrary to notions of fair play and substantial justice - especially in cases like Burnham where the reason he was in Cali while he was served was to see his kids that his wife had dragged off to Cali (I know he was also there on business, but I don't think the court really factored this into its reasoning, at least not in the excerpted version in my casebook).
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theprocrastinator

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This thread just reminded me that I have to take the bar this summer. Damn you people.

fuwaf

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In.

So what do you guys think of "tag" jurisdiction?  In the Burnham case, I don't really find Scalia's majority (it's just tradition) or Brennan's concurring opinion (purposeful availment of a state's resources) that compelling.  Our casebook had an interesting hypo, in which Alex, knowing that Beth has just visited Oregon, sends her a waiver of service by mail, claiming Oregon jurisdiction on the theory that she subjected herself to Oregon jurisdiction by visiting the state.  The best that my class and professor could come up with for dismissing the waiver of service was that the tactic was "too cute."  I don't think this is an adequate explanation, and it's led me to think that tag jurisdiction is a bit outdated, and really contrary to notions of fair play and substantial justice - especially in cases like Burnham where the reason he was in Cali while he was served was to see his kids that his wife had dragged off to Cali (I know he was also there on business, but I don't think the court really factored this into its reasoning, at least not in the excerpted version in my casebook).

I think it sucks.  Actually, I think subject matter jurisdiction and personal jurisdiction are the most painful topics of study.  But seriously, I think relying on the historical basis of "well, once upon a time it was ok to serve someone if they were in that state" is crap.  Sure, maybe that made sense back with Pennoyer, but it confuses me that there are cases where personal jurisdiction is such a big deal and based on so much more (and there are much more valid reasons for asserting jurisdiction), and then someone can just step over a state line and then personal jurisdiction is ok because they've been served in that state.  I definitely agree that it's completely contrary to fair play and substantial justice.

Mr. Pink

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fuwaf

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Mr. Pink

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