Going To Law School

Eh, same shit then.

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

burt you are going to be fine

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

Products liability is weird because historically there have been approaches from both the contract/warranty side (where the privity came in) and from the negligence side. But today it has more to do with negligence and not much of anything to do with warranty.

Did you guys do RAD and the consumer expectations test and all that? My professor loves RAD. He was one of the reporters on the third products liability restatement, or rather the, ahem, "Restatement Third."

I think I dreamed about the Calder "effects" test and the stream-of-commerce-plus theory and what targeted wrongdoing into a state means for personal jurisdiction. CivPro is a bitch. Today my day consists of outlining the FRCP.

Nah, we only did 2 or 3 absolute liability cases, and we ended at... Posner, and one of his decisions where he states strict liability is OK for x circumstances, and negligence is better for y due to economic interests, etc.. Most of our time was spent on the theoretical underpinnings of negligence, duty, causation, etc. Only now I'm starting to see how it all works together.

Civ Pro is going to be way easier to study for than torts.

ok, Hurting or others who remember torts, is this right ... for each problem you first establish duty, then see if that duty was breached, then run that through the causation to see whether or not it survives the but-for or proximate cause tests or whatever, and then assess the damages.

sounds about right.

ok, good. Now I just need to reread the rest of duty and causation, and then go back to negligence and other stuff. Now that I'm starting to "get it all", it adds a lot to look over the cases again. :[]

well the case books break it down. duty cases. breach cases. causation cases, etc.

Yeah, but nobody tells you how to make it all work together in your own arguments.

Regarding the question we were talking about Hurting, I don't think a general duty of care can apply in that circumstance, hence the trouble working through it ... a general duty of care is owed to others through action, not inaction, which is why I tried to manufacture some kind-of special relationship that imposed affirmative duties. If I said "general duty of care", I'd probably fail that part.

^ structure seems about right xp, I'd stick to it quite closely. The number of shitty answers I've written by trying to do the clever bits first, forgetting about the simple stuff and eventually only scraping a pass. Remember the first 50% or whatever are the easiest marks to get.

yes! I was right. Maybe I won't do as terribly as I think.

"As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim."

In the scenario above I imagined the defendant would file a crossclaim stating that his friend breached a duty of care in not preventing his drunk driving due to their special relationship as close friends and other concerns which state affirmative duties of care when one friend sees another in a foreseeably perilous situation (which is an argument that's worked a few times in a few cases I've read).

It's a weak argument, but hopefully something like that would get a point or two.

Nice, the notes are now confirming my approach. "The most common approach for assigning affirmative duties to control the foreseeably dangerous conduct of another is to create new special relationships." Anyway, back to work.

I still think that wouldn't need to apply here because you're talking about her controlling dangerous conduct toward her own property. But I guess you can argue it either way. Bottom line is go through the steps and do the analysis.

The way my prof basically breaks it down is like this:

- in most cases there's a general duty of care (act reasonably under the circumstances to avoid causing harm)
- in a small minority of cases, you can use "limited duty" rules to do away with duty (e.g. no duty to rescue strangers)
- in some of those small minority of cases, there are exceptions to the limited duty rules (e.g. you DO have a duty to rescue in special situations -- parent-child, spouse, contractual, actions have created or increased the peril, etc.)

We didn't do any cases that I can think of that were specifically about controlling the behavior of others. We did read a bit about social host liability with intoxicated guests. Generally there's limited or no liability, but there were exceptional example cases where the host was in a good and unique position to prevent a guest from driving and it was exceedingly obvious that the person should have been driving. It's a tough hypo I think.

Man, I wish my professor went over that stuff. He only mentioned it the last day of class. "Remember students, what we're looking for is duty, breach, causation, and damages." And we were all like, "wait, this stuff is supposed to go together?"

What I was thinking is that the lady would argue nonfeasance for her conduct in order to collect full damages ... she had no duty of care beacause she took no action in relation to driving + drinking, since due to his spotless driving record, etc., it's not negligent entrustment. General duty of care completely inapplicable here since it only relates to action. But the defendant can argue that the plaintiff owed him a duty of care under a special relationship, and since she failed that, she's partially responsible for the damages to her own car. It's a stretch, but he obviously wants us to consider these nuances, Iguess.

A general duty of care can never, ever be used when there's no action (nonfeasance) unless you can argue for special relationships or statutes.

No, most negligence cases involve general duty of care. If I shoot a gun up in the air, and a bullet comes down and hits you, do I have to have some special duty to you for you to recover?

An action is created out of the breach of the general duty of care. That's how I learned it, anyway. We didn't use the term "nonfeasance." But I guess that's the problem with people from two different torts classes trying to compare notes.

That's misfeasance, or an action taken by you that affects another person. Nonfeasance is someone watching you playing with a gun and it looks dangerous to other people, and he walks away without saying anything. Should he be held responsible if you shoot someone? He can't. Unless it's possible to argue some kind-of special relationship he had with you or a statute regarding the conduct... those are the only ways to apply duty to nonfeasance.

Misfeasance is one half of duty, nonfeasance is the second half.

ILX accepts no liability for the failure of burt_stanton, law student, on any of his 1L exams.

Why, am I totally wrong here? :{

Oh, nevermind. I'm in a "zone" here.

ah ok, nonfeasance = non-action or omission

spent 11:00 am - 9:00 pm in the library. not a bad haul. of course the damn Asian kid was still there when I left. Damn him to hell.

lol!

I'm in medical school and can relate.

Unfortunately my section has 3 kids from China. 3!!!!!!!!

http://tbn0.google.com/hosted/images/c?q=63f0739d4337abad_landing

There's only 3 As to be given in the class. 3 kids from China. Hmmm.

Wow, kids from China. Everyone knows every law school is dominated by kids from China. You might as well quit now.

I'm just being tongue in cheek

Today was not as good as it could have been. 10am-1pm outlining, 1-4pm study group meeting, break, 5-6 meeting with some other dudes to study more crap, pretty much did nothing but make dinner between 6 and 10pm, now at library doing some review questions. If not for Erie I'd be golden though.

Eh, there's plenty of time for Civ Pro. I think I"m finally getting a handle on torts ... duty, breach, causation, damages. Yeah. For creative assignment or creation of duty I've listed the 6-7 common law concerns duty holds plus our little categories we did, with causation I've got the a) actual cause then b) legal cause tests plus all sorts of doctrines, etc. etc. different uses for negligence and strict liability. Yeah. Getting there.

anyway, no more thinking about this until tomorrow...

Am I correct that strict liability only applies in unreasonably dangerous activities and in certain kinds of products liability? I haven't looked at that stuff for a week and I'm already forgetting it. Torts isn't until the 19th.

Lucky bastard, I have torts this Wednesday. I'm revisiting it tomorrow. It's so easy to forget everything ... that's why I'm rereading every. single. case. on. the. syllabus. Screw outlines, I'm going down and dirty.

That's a little crazy if you ask me. Especially since some of the cases we read were badly reasoned and I actually want to forget them so I don't confuse myself.

Anyway, having CivPro on Wednesday is no better.

When preparing for exams I used to study 2 or 3 of the key cases for each proposition in detail, and just skim the others. I think if you try to absorb 150 cases you may be asking for a brain snap.

Nah, the professor told us if we want to do well we have to study "the hard way", which he defined as rebriefing each case over again; my other professor said that my approach was hers, and she graduated first in class at NYU. I mean, each case is a different proposition or amends the previous concept ... we had 150 of them. It's not like we did 3 cases of the same exact thing.

Also each case reiterates common law principles, so the repetition helps, too. Well, we'll see.

and re-reading the cases after finally understanding the 'big picture' so to speak is illuminating. Anyway, what counts are the results, so whatever. I like tough mental work, though. Makes you feel like you're ... alive for once, if only for a moment.

re-reading the cases is an amazing waste of time. kudos!

there's like one sentence (the HOLDING) you would need from any of those cases for an exam. that's what outlines are for.

yep i would have read the cases during the course, but i wouldn't have re-read them during exam prep. my approach was to understand the key cases in depth, so that you can demonstrate your ability to critically analyse a decision and apply it to a set of facts... not demonstrate that you've retained every case that ever had the words 'duty of care' in the catchwords. I graduated with Honours. Good luck with your approach though!

burt are you doing problems like i told you to? cutty is right about re-reading the cases

yep doing practice exam problems is how i used to spend my exam prep time too. there's a limit to how much info you can squeeze into an exam answer. i reckon quality over quantity.

also you have to make sure you know how to spit out the information and organize it quickly--memorizing cases isn't going to help

so true... when you're doing your practice exams, trying to work out a generic framework to apply to each subject is definitely helpful. Broadly, I used to start with: state the issues, state the law (i.e. the key case authorities), apply the law to the facts - then refine it for each topic by testing it on practice examples.