1L legal memos

[Half a Hundred]

are teh suck. Just sayin'.

[Frozen Sooner]

are teh suck. Just sayin'.

You don't say.

I was up until 2am on Friday working on my open memo. I need to spend some time today checking my bluebooking and proofing, but my Torts outline is about two weeks out of date and I've got a take-home midterm I need to get working on.

[Half a Hundred]

You don't say.

I was up until 2am on Friday working on my open memo. I need to spend some time today checking my bluebooking and proofing, but my Torts outline is about two weeks out of date and I've got a take-home midterm I need to get working on.

Heh, what was yours on?

Outlining has been put on the back burner for sure on my part. Still, it shouldn't really be that difficult - I think people get in trouble if they really think that they should be putting 40 hours of material per class on each sheet of paper, rather than the rules plus the bits and pieces that will help jog the memory come exam time, not to mention building a cohesive flow to it. That really shouldn't take more than 12 hours of work, max. So 3 hours a day over a long weekend? Easy.

Sorry about that midterm. Jerks.

[Okla-homey]

Guys,

Just FWIW, I found outlines overrrated. I guess they're okay for memorizing rules and black letter law, but I found home-made flashcards better for that.

IMHO, you're better off writing out answers to those questions in the E&E series of hornbooks as you begin to prepare for finals. See, lots of folks get into trouble thinking that if they know the rules cold, which you must, they'll ace the final. The vital skill they'll lack, and you simply have to work problems in order to master, is application of those rules to specific sets of facts*. You know, the very reason people hire lawyers in the first place.

And its time to begin that preparation, switching into overdrive during Thanksgiving break.

*profs develop fact patterns filled with lots more facts than you need to get max points in your answer. They do that for two reasons; 1) "red herrings," which are usually there in real life and you'll need to be able to avoid getting wrapped around the axle on them, and; 2) it takes time to wade through it all, which, under timed conditions, is just another way to stratify students since some can zip through it, discarding the irrelevant facts as they go, but others get overwhelmed and freeze-up.

[Frozen Sooner]

Heh, what was yours on?

Believe it or not, it's an honor code violation to discuss anything more than "I have to write an open memo" with anyone but your legal writing professor.

[Frozen Sooner]

Thanks Homey. My torts outline I've been a bit obsessive about, since the professor is adamant that you need a good outline to do well on his final. From what I've heard from 2 and 3Ls that have had him, he's correct on that. I'm focusing on the cases that apply the black-letter law in the notes to specific fact patterns.

The E&E book isn't a big help for this one: my professor is a big Law and Econ guy and his philosophy on torts is directly opposed to the E&E book.

"We do not use the F word in my class. Torts is not about fair. Torts is about incentives."

[Half a Hundred]

Believe it or not, it's an honor code violation to discuss anything more than "I have to write an open memo" with anyone but your legal writing professor.

Even after the fact? Damn.

[Half a Hundred]

Thanks Homey. My torts outline I've been a bit obsessive about, since the professor is adamant that you need a good outline to do well on his final. From what I've heard from 2 and 3Ls that have had him, he's correct on that. I'm focusing on the cases that apply the black-letter law in the notes to specific fact patterns.

The E&E book isn't a big help for this one: my professor is a big Law and Econ guy and his philosophy on torts is directly opposed to the E&E book.

"We do not use the F word in my class. Torts is not about fair. Torts is about incentives."

Oh, that makes it easy then. Just read anything Posner or Easterbrook ever wrote on torts. The former will be fun. The latter will make you wonder how such a d-bag walks on this planet without being constantly smacked in the face by people on the street.

No wonder you didn't spend any time on intentional torts. That in its essence isn't about incentivizing behavior whatsoever, since that's what the criminal system is partially for. I don't see how you explain any of those concepts without using a context of equity.

My torts prof is definitely more of a critical theorist than anything, so I'm sure our classes couldn't be any more different.

[Frozen Sooner]

Oh, that makes it easy then. Just read anything Posner or Easterbrook ever wrote on torts. The former will be fun. The latter will make you wonder how such a d-bag walks on this planet without being constantly smacked in the face by people on the street.

No wonder you didn't spend any time on intentional torts. That in its essence isn't about incentivizing behavior whatsoever, since that's what the criminal system is partially for. I don't see how you explain any of those concepts without using a context of equity.

My torts prof is definitely more of a critical theorist than anything, so I'm sure our classes couldn't be any more different.

Heh. It's all Posner all the time. The professor got his JD/PhD at the University of Chicago.

[Half a Hundred]

Heh. It's all Posner all the time. The professor got his JD/PhD at the University of Chicago.

Has anyone pointed out to him that Posner went all Keynesian on us in the last year? :D

[Tailwind]

I am wondering why I read this whole thread. :D

[Frozen Sooner]

Has anyone pointed out to him that Posner went all Keynesian on us in the last year? :D

Believe it or not, we discussed it over beer at the bar on Thursday.

Remember, I'm in Alabama. Monetarists and Keynesians are considered basically the same thing here. The Mises institute has a large influence in these parts.

[Half a Hundred]

Believe it or not, we discussed it over beer at the bar on Thursday.

Remember, I'm in Alabama. Monetarists and Keynesians are considered basically the same thing here. The Mises institute has a large influence in these parts.

How does someone from as scientific a background as yours deal with the idea that a priori assertions are the best place to start from in an economic analysis?

[Frozen Sooner]

How does someone from as scientific a background as yours deal with the idea that a priori assertions are the best place to start from in an economic analysis?

I don't have a scientific background at all, but if you're asking how I deal with the Austrians...I let them play their logic games then point out that empirically their models don't hold up. They then respond that nobody's truly tried their models. Then I say that's what the Communists claim. Then someone usually starts throwing food.

[Okla-homey]

Thanks Homey. My torts outline I've been a bit obsessive about, since the professor is adamant that you need a good outline to do well on his final. From what I've heard from 2 and 3Ls that have had him, he's correct on that. I'm focusing on the cases that apply the black-letter law in the notes to specific fact patterns.

The E&E book isn't a big help for this one: my professor is a big Law and Econ guy and his philosophy on torts is directly opposed to the E&E book.

"We do not use the F word in my class. Torts is not about fair. Torts is about incentives."

I don't get it. I mean, each tort (both the intentional ones and negligence) have elements. After those are established, we consider remedies which serve to make the plaintiff whole and, if appropriate, punish the tortfeasor. The whole she-bang relies on fundamental notions of equity. But, of course, as to the final, the point is to puke back on paper what he wants to see, so, outline away.

[Frozen Sooner]

The Law and Economics view of torts is that the purpose of tort law is not to make people whole but to provide proper incentives for people to not engage in inefficient behavior. The focus is on cost-shifting rather than making people whole. Someone who is injured as the result of someone's wrongdoing is an externality and the law should make the tortfeasor recognize that cost in their decisions.

[Okla-homey]

The Law and Economics view of torts is that the purpose of tort law is not to make people whole but to provide proper incentives for people to not engage in inefficient behavior. The focus is on cost-shifting rather than making people whole. Someone who is injured as the result of someone's wrongdoing is an externality and the law should make the tortfeasor recognize that cost in their decisions.

I understand that. So do companies, and more importantly, their liability carriers certainly understand. That's why corporations do cost-benefit analyses regarding risks. The thing is, in order to assess how much Joe is likely to recover when his Ford explodes, you still have to do that basic duty-breach-cause-harm calculus and factor in all potential defenses. Once we have derived that number, we multiply by all the potential Joes in the world to derive some notion of how much the company, or their liability carrier, could end up paying over the life of the product. If that number is too close to what the company or carrier expects to earn in profits, the product doesn't get marketed.

Heck, IMHO, that's what "tort reform" is all about. Capping Joe's recovery, thus lowering that corporate liability, and thereby making it less risky to foist less safe products on the public.

[Okla-homey]

The Law and Economics view of torts is that the purpose of tort law is not to make people whole but to provide proper incentives for people to not engage in inefficient behavior. The focus is on cost-shifting rather than making people whole. Someone who is injured as the result of someone's wrongdoing is an externality and the law should make the tortfeasor recognize that cost in their decisions.

I understand that. So do companies, and more importantly, their liability carriers certainly understand. That's why corporations do cost-benefit analyses regarding risks. The thing is, in order to assess how much Joe is likely to recover when his Ford explodes, you still have to do that basic duty-breach-cause-harm calculus and factor in all potential defenses. Once we have derived that number, we multiply by all the potential Joes in the world to derive some notion of how much the company, or their liability carrier, could end up paying over the life of the product. If that number is too close to what the company or carrier expects to earn in profits, the product doesn't get marketed.

Heck, IMHO, that's what "tort reform" is all about. Capping Joe's recovery, thus lowering that corporate liability, and thereby making it less risky to foist less safe products on the public.

[Half a Hundred]

The Law and Economics view of torts is that the purpose of tort law is not to make people whole but to provide proper incentives for people to not engage in inefficient behavior. The focus is on cost-shifting rather than making people whole. Someone who is injured as the result of someone's wrongdoing is an externality and the law should make the tortfeasor recognize that cost in their decisions.

There's the biggest problem I have - societal issues are the realm of criminal law, not civil law. The latter exists for the purpose of resolving disputes between individuals. Efficiency is a societal concern, so to provide incentives (of a mostly negative sort) is a criminal (and tax based, by some philosophies) concern.

I understand that L&E wants to take people out of the equation, but this is foolish when the law fundamentally deals with (and is made by) humans.

[Frozen Sooner]

Just finished draft 3 of my first draft. :D

[Frozen Sooner]

I understand that. So do companies, and more importantly, their liability carriers certainly understand. That's why corporations do cost-benefit analyses regarding risks. The thing is, in order to assess how much Joe is likely to recover when his Ford explodes, you still have to do that basic duty-breach-cause-harm calculus and factor in all potential defenses. Once we have derived that number, we multiply by all the potential Joes in the world to derive some notion of how much the company, or their liability carrier, could end up paying over the life of the product. If that number is too close to what the company or carrier expects to earn in profits, the product doesn't get marketed.

Heck, IMHO, that's what "tort reform" is all about. Capping Joe's recovery, thus lowering that corporate liability, and thereby making it less risky to foist less safe products on the public.
You're partially getting it.

The L&E perspective is that the purpose of all of the rules under duty, breach, actual and proximate cause, and damages are to incentivize people to act efficiently.

Lemme give you an example: Summers v. Tice, where the court lays out a rule based on fairness and a couple of other mushy issues to show why alternative liability works better in that case to make the tortfeasors jointly and severally liable. In this case, two hunters shoot into a stand when they think they hear a pheasant which ends up being another person. Since both were using the same shot, they couldn't tell who actually hurt him. The court's three justifications for holding them j&s liable were: Well, they're close to 50+% that substantial factor would require; it's unfair to not compensate the other guy; and the defendants have more ability to determine who was at fault than the plaintiff. Frankly, all of those are silly. The L&E standpoint would be that holding the two j&s liable removes the incentive for the hunters to tamper with the evidence: if we're out hunting and you shoot into a stand and hit a guy, if I know that you can't be held liable if there's no way to prove YOU were the guy who shot him, I can help my buddy out by shooting into the stand myself.

It's just a different way of doing the negligence analysis. You're still using the regular five factors, you're just looking at them from the standpoint of influencing prospective behavior.

[Frozen Sooner]

There's the biggest problem I have - societal issues are the realm of criminal law, not civil law.

42 US § 1983 disagrees.


The latter exists for the purpose of resolving disputes between individuals. Efficiency is a societal concern, so to provide incentives (of a mostly negative sort) is a criminal (and tax based, by some philosophies) concern.

Exact opposite. "Fair" is the province of tax law. Providing proper incentives in non-criminal matters is the province of torts and contracts. Torts comes into play where there are market failures. ;)


I understand that L&E wants to take people out of the equation, but this is foolish when the law fundamentally deals with (and is made by) humans.

Not sure where you're getting this. L&E doesn't want to take people out of the equation at all. It wants to set up rules where people will tend to act in an efficient manner.

[soonerboomer93]

i shall mark this thread as bed time reading

you know, when i need something to put me to sleep


:D

[Half a Hundred]

About to finish draft 1 in about 3 hours. Mind you, I go through about 5 drafts in the writing of one.

Yeah, I don't know how people write without constantly editing in the process.

[Half a Hundred]

Three hours turned into five. Damn, it's been a while since I've had this legit of an all-nighter.

[Half a Hundred]

42 US § 1983 disagrees.

Umm, why? That's affirming individual civil rights. There's not always a hard distinction between criminal = statutory and civil = case law. Otherwise, how the hell would the folks down in Texas have their tort reform?


Exact opposite. "Fair" is the province of tax law. Providing proper incentives in non-criminal matters is the province of torts and contracts. Torts comes into play where there are market failures. ;)

Jesus, I know you're joshin' me, but FFS, you'd have to be a complete sociopath to honestly believe that.

Tax law is about giving the gubbmint money and screwing poor and middle class folks over for the rich's benefit. Duh. Contracts are the only area where L&E halfway makes sense, though I'm more inclined to think of it from a social stability perspective (of course, it doesn't hurt that the underlying theme of our entire semester is The Merchant of Venice). Torts are about one thing, and one thing alone - humans f*** up, a lot. If some people can f*** up with impunity, and others get f***ed over without recompense, people will start thinking this whole society business is a little overrated. At that point, we all lose.

Not sure where you're getting this. L&E doesn't want to take people out of the equation at all. It wants to set up rules where people will tend to act in an efficient manner.[/QUOTE]

[Okla-homey]

Not sure where you're getting this. L&E doesn't want to take people out of the equation at all. It wants to set up rules where people will tend to act in an efficient manner.

I dunno Froze. I guess it's not a waste of time to have some awareness of the issue, particularly in this era of "tort reform"-which is actually a thinly veiled move to lower potential corporate liability. But for my money, it's probably better to make sure 1L tort students have a good handle on all the intentional torts, including misappropriation of publicity, invasion of privacy, and disclosure, abuse of process and malicious prosecution, assault, battery, false imprisonment, intentional infliction of emotional distress, fraud, trespass to land, trespass to chattels, and conversion. Particularly since you'll need to have these down cold for the barzam.

[Frozen Sooner]

Umm, why? That's affirming individual civil rights. There's not always a hard distinction between criminal = statutory and civil = case law. Otherwise, how the hell would the folks down in Texas have their tort reform?

You said social policy is the realm of criminal law. 42 USC §1983 allows for a private tort action to enforce social policy.


Jesus, I know you're joshin' me, but FFS, you'd have to be a complete sociopath to honestly believe that.

Tax law is about giving the gubbmint money and screwing poor and middle class folks over for the rich's benefit. Duh. Contracts are the only area where L&E halfway makes sense, though I'm more inclined to think of it from a social stability perspective (of course, it doesn't hurt that the underlying theme of our entire semester is The Merchant of Venice). Torts are about one thing, and one thing alone - humans f*** up, a lot. If some people can f*** up with impunity, and others get f***ed over without recompense, people will start thinking this whole society business is a little overrated. At that point, we all lose.

Again, it's a method for analysis that helps show where limits of liability should exist and helps define where costs should be shifted. It's not really the end-all and be-all, but it's a better method than "That just looks unfair." If the entire standard for tort is someone got hurt by someone else, activity would cease.

If someone is hurt by someone else's economically efficient behavior-and remember, economic efficiency includes the true cost of the behavior, not just the costs initially realized by the actor-then doesn't it make more sense to just mandate a transfer payment from the actor to the affected? Tax policy, not tort.

[Half a Hundred]

You said social policy is the realm of criminal law. 42 USC §1983 allows for a private tort action to enforce social policy.

Is it really enforcing a thing when all you end up getting for it are nominal damages? I mean, hell, it's a great way to boost the ol' legal resume, but in the end, it's a lot of hue and cry over essentially nothing.

And that's coming from someone who might get into civil law enforcement. Heh


Again, it's a method for analysis that helps show where limits of liability should exist and helps define where costs should be shifted. It's not really the end-all and be-all, but it's a better method than "That just looks unfair." If the entire standard for tort is someone got hurt by someone else, activity would cease.

If someone is hurt by someone else's economically efficient behavior-and remember, economic efficiency includes the true cost of the behavior, not just the costs initially realized by the actor-then doesn't it make more sense to just mandate a transfer payment from the actor to the affected? Tax policy, not tort.

Isn't the idea of economic efficiency just as much of an abstract concept as "fairness"? I mean, efficiency cant be a goal in and of itself, because efficiency is defined by outcomes.

The problem I have with that idea is that you run into diminishing returns really quickly when you try to manipulate social policy through tax policy. I think there's some stat that says that at maximum, the US can manage to pull out 19% of the national income at maximum. Consequently, you are just adjusting the percentages of that 19% among the various classes when you modify tax code. Consequently, things you think are going towards one thing often start to do some really loopy things socially.

[Frozen Sooner]

I think you and I might be using a different definition of efficiency.

[Half a Hundred]

I think you and I might be using a different definition of efficiency.

What definition are you operating under? Pareto-efficiency, I'd imagine?

[Oldnslo]

wait. Midterms? WTF?

We had finals. Period. None of this midterm namby-pamby BS. You get one shot to get it right and that's that.

Midterms. pffft.

[Frozen Sooner]

What definition are you operating under? Pareto-efficiency, I'd imagine?

Nah. Much simpler than that.

If total societal wealth is increased or neutral, the action is efficient. If total societal wealth is diminished, the action is inefficient.

The guy teaches it from an L&E standpoint, but he dumbs it down quite a bit for the non-econ majors.

[SoonerLaw09]

L&E is utilitarian, at its core. Very useful for risk management purposes. Not so useful when it comes to winning a jury trial, tho. If you can stay out of court, it works. But (and just ask the tobacco companies) all you have to do is lose that one big case because you fired the wrong employee and it came back to bite you. Then it's katy bar the door.

[Half a Hundred]

Nah. Much simpler than that.

If total societal wealth is increased or neutral, the action is efficient. If total societal wealth is diminished, the action is inefficient.

The guy teaches it from an L&E standpoint, but he dumbs it down quite a bit for the non-econ majors.

How is wealth defined in this setup?

[Frozen Sooner]

How is wealth defined in this setup?

In the class? Straight money (injury reduced to monetary value.)

[Phil]

wait. Midterms? WTF?

We had finals. Period. None of this midterm namby-pamby BS. You get one shot to get it right and that's that.

Midterms. pffft.

^^^^THIS.^^^^

[Frozen Sooner]

^^^^THIS.^^^^

Yeah, but when you guys went to Law School all you had to remember was Marbury v. Madison and you were cool.

I don't know, it just seems like the trend these days is to give midterms in 1L classes. Since there's still the curve, it's not like it helps us get better grades or anything.

[Frozen Sooner]

So check this out:

Justice Thomas gave a talk to the 1L class at Alabama on Friday. One of my classmates (Posi) asked him if he could explain Iqbal since everyone is struggling with it. Thomas said that if he'd like to stop by his office some time he'd be happy to go over it, but that Posi better read the whole case first.

It just so happens Posi already had a trip to DC scheduled this weekend. Justice Thomas kept his word, had Posi on the "send 'em right up" list, and Posi just got to sit there for a couple of hours and discuss a recent case with a sitting Justice.

As a 1L.

That's pretty cool.

[Oldnslo]

So check this out:

Justice Thomas gave a talk to the 1L class at Alabama on Friday. One of my classmates (Posi) asked him if he could explain Iqbal since everyone is struggling with it. Thomas said that if he'd like to stop by his office some time he'd be happy to go over it, but that Posi better read the whole case first.

It just so happens Posi already had a trip to DC scheduled this weekend. Justice Thomas kept his word, had Posi on the "send 'em right up" list, and Posi just got to sit there for a couple of hours and discuss a recent case with a sitting Justice.

As a 1L.

That's pretty cool.

My stepfather used to work in NYC. Had a buddy at St. Johns U. who worked at the New Yorker magazine. Buddy was assigned a paper analyzing Thurber's work.

Buddy got a C on the paper.

Thurber wrote it.

The end.

[Half a Hundred]

In the class? Straight money (injury reduced to monetary value.)

So what gives an injury a monetary value in the first place?

[SoonerLaw09]

In the class? Straight money (injury reduced to monetary value.)

This is also the philosophy underlying the proposals in the health care reform legislation to establish administrative review panels for med-mal cases. This is also the basis for workers' compensation being a no-fault system. The two may end up similarly handled.

Of course, the Feds have no power to change a state court system's method of case management directly. But they can use the Federal $$ and force the States who opt in to the public healthcare system, to adopt the new med-mal case management system.

[Frozen Sooner]

So what gives an injury a monetary value in the first place?

The fact that you can't return someone's leg to them?