We have reached the end of the course. Recall the introductory blog post from January in which I linked three parody videos. I said ,"I promise that you will understand all three songs by the end of the course."
And so I expect you will, along with a bonus video:
Friday audio--Section B, Section A.
One last point on mandatory disclosure and third-party funding: The Civil Rules Subcommittee voted last week not to proceed with a proposed rule that would have added third-party funding agreements to the list of things to be disclosed under FRCP 26(a). Committee members pointed to privacy concerns with such a rule, although it is unclear whether that was a policy concern or a § 2072(b) concern. Also, following on something that came up in one section: It is not clear that a funding agreement would be discoverable under 26(b)(1) if not subject to mandatory disclosure--not clear why the source of one side's litigation funding would be relevant to any party's claim or defense.
Essays ## 8, 9, and 10 due outside my office at the assigned time Monday. I will lay out folders early Monday morning; please place it in the right class and right folder. I will attempt to have them graded by the end of the week but I do not know if I can, I will post sample answers on Monday for help with studying the subjects.
I will be in my office Monday through Thursday next week to answer questions. I also am available by email. If an email question is of general interest, I will anonymize it and post it to the blog. So it may help to check the blog periodically during the week. I will answer questions by email until 10 p.m. on Sunday evening.
• Q&A Review Sessions on Thursday, April 23 (the Thursday before the exam). Section B at 10 a.m. and Section A at 1 p.m. Both in RDB 2008. Everyone is welcome to attend both sessions.
• Creative projects will be displayed and/or presented at each Section's session. Visual displays will be put up around the room. Audio/Video works will be played on-screen (please send me links or files a couple days prior). Live performances will be performed (reading poems, performing songs, whatever). This will take about the first 30 minutes of the session, followed by Q&A. Please keep recordings and live performances to 3-4 minutes.
• The Q&A is just that--your chance to ask questions. I have no prepared comments. You can stay for as much or as little of the session as you want. You may use computers. I will record it. We will stay for as much or as little time as you all have questions.
• The exam will post at 9 a.m., Monday, April 27. It is due in hard copy at my office by 1 p.m. Tuesday, April 28.
• Everyone will answer 3 questions--two 1000-word essays and one short-answer (less than 40 words). I will assign questions (by Blind ID) by next Friday.
Thank you for an excellent semester.
In so many ways--AI, controlling your client, representing your kid's girlfriend's mother for free. Here is the district court order.
Note the apparent surprise about the severity of the sanctions against the attorney (much more money than other courts have imposed) and the sanction (dismissal) against the client. Courts are reluctant to bring the hammer down with severe sanctions. FRCP 11(c)(4) says the sanction "must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Sanctions are not intended either to compensate the injured party or the punish the offending party. But the combination of an increase in "performative litigation" and the prevalence of AI may push courts to be harsher--whatever they are currently doing is not deterring.
Thursday audio--Section B, Section A. Essays ## 8, 9 and 10 due at 11 a.m. (Section B) and 3 p.m. (Section A) Monday outside my office.
Read Berk, then review and re-prep the remaining Puzzles. Consider:
• Return to # 1: Is there an argument that FRCP 26(a) does not answer the question? Is that the right reading under Berk?
• How can/should a court interpret a rule? What are the competing approaches, as suggested on p.4 of the Berk majority and FN 1 of the concurrence?
• Puzzle # 8: What are the arguments as to whether federal or state law applies? What is the connection between any applicable Act of Congress and the balancing test courts perform? How does that affect your § 1652 analysis?
Wednesday audio--Section B, Section A. Essays ## 8, 9, and 10 due in my office next Monday.
Read Berk v. Choy if you have not already done so; it can help fill some of the language. It should be helpful in answering Puzzle # 4. Please note that the entire Court in Berk agreed that an FRCP answered the question--the majority said FRCP 8 and 12(d) while Justice Jackson said FRCP 3 and 12(d). But that means the case did not offer any guidance for a relatively unguided Erie choice.
We will spend the final two classes on the remaining Erie Puzzles. Please download and use this revised version; I removed one puzzle and added a new # 8.
Once more, the framework (please work this into your notes if you want it for class-I would rather people not take out their phones or computers).
The district court granted the Wall Street Journal's motion to dismiss President Trump's action arising from a WSJ article about the Jeffrey Epstein "birthday book." (This is the action that produced Section B's Essay #5).
This is a great example of how a court handles:
• What it can consider on the 12(b)(6), including whether the underlying article is incorporated into the complaint (it is) and whether the birthday book and Trump's birthday letter are incorporated (they are not).
• Judicial notice of certain congressional documents.
• 12(b)(6) analysis of the allegations in the complaint, including disregarding conclusory allegations and determining whether non-conclusory allegations meet the substantive law.
• The terms of dismissal
• The decision with respect to attorney's fees under Florida's anti-SLAPP law (this is the law in play in several of the Erie puzzles we will work through this week).
Download here. Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section A) next Monday, April 20.
Download here. Typo corrected.
Due outside my office by 11 a.m. (Section B) and 3 p.m. (Section) next Monday, April 20.
Both essays arise from the same case. Make sure you write on the correct essay and the correct assignment within that essay.
Two final things on personal jurisdiction:
• Here is the board with the Shoe algorithm. This gives the basic framework of your RE, but you must fill in with citations and actual language and details from cases. You will not get complete credit if you regurgitate the basics of the outline without the details.
• This is a bit dated (from 2006) given the run of recent cases, but it is amazing:
Friday audio--Section B, Section A. Essays ## 6 and 7 due in class Wednesday. Essays ## 8, 9, and 10 posted on Monday, due at what would have been class time (11 a.m., Section B, 3 p.m., Section A) on Monday, April 20 in my office.
I posted a photo of the board for Erie, below. Work through this in conjunction with the Glannon reading to understand how the non-REA portion works. Read Berk v. Choy, especially the majority; this is the Court's most recent Erie case (from January) and offers a nice explanation of the REA analysis (also the first majority on the issue in quite awhile). Justice Jackson's concurrence agrees with the basic analysis; she believes a different rule controls the issue (and she probably has the better of the issue).
Prep the Erie Puzzles. As you will see, the problems hit on each prong of analysis. Prep them as if you were writing an essay, including fully providing the RE, not just the A we will focus on in class. Be sure to consider and be ready to discuss the procedure in which the issues arise--how will the issue be raised and presented and argued to the court?
Per the grading information:
• Q&A Review Sessions on Thursday, April 23 (the Thursday before the exam). Section B at 10 a.m. and Section A at 1 p.m. Both in RDB 2008. Everyone is welcome to attend both sessions.
• Creative projects will be displayed and/or presented at each Section's session. Visual displays will be put up around the room. Audio/Video works will be played on-screen (please send me links or files a couple days prior). Live performances will be performed (reading poems, performing songs, whatever). This will take about the first 30 minutes of the session, followed by Q&A.
• The Q&A is just that--your chance to ask questions. I have no prepared comments. You can stay for as much or as little of the session as you want. You may use computers. I will not record it.
• The exam will post at 9 a.m., Monday, April 27. It is due in hard copy at my office by 1 p.m. Tuesday, April 28.
• Everyone will answer 3 questions--two 1000-word essays and one short-answer (less than 40 words).
Thursday audio--Section B, Section A.
Section B meets at 11 tomorrow in the Courtroom; the first 3-4 rows will be set aside for you. Admitted students will observe the class, so please be especially prepared and participatory in front of your future colleagues. Section B meets at 2 (instead of 1).
We turn to Erie, which functions as something of a capstone and review of the class. The issue is what law applies. But in working through problems, you necessarily have to think about the entire litigation process--how issues are raised, the rules that apply to those issues, etc.
Prep Intro (focusing on Erie and § 1652) and Procedure (focusing on Hanna and § 2072) and all the associated questions. Work through the process under §§ 2072-2074 and how the FRCP are drafted and passed. For tomorrow, we will introduce and put together the Erie and Hanna framework tomorrow. Next week we will apply that to the puzzles in the Puzzle Document.
