Refresher on Pleading

For those who want to review on motion to dismiss and making a well-pleaded complaint, the Seventh Circuit just reversed a motion to dismiss in Doe v. Smith. The opinion remands the salacious case to the district court to proceed with discovery.

Handout: Practice Questions for 11/22

If you cannot make class, you can download the preclusion question and the policy question here.

Preclusion Tips

In the same way that reading the advisory committee notes can help you understand the federal rules, the restatement sections have notes and illustrations that can give you a lot of good examples and help you discover the contours of the doctrines. You can read them by going on to Lexis and doing this:

Research -> Under the Secondary Legal heading, click Restatements -> Judgments -> Click on the rule sections (second one) ->type in the section number you want, and do not click search. Instead click the button sayikng search Table of Contents only. This will limit the results a little better. Scroll down the list and click on the one you want.

You can print for free in the Lexis lab.

I highly recommend this as a way to augment your studies (especially for issue preclusion, section 27).

Handout: Claim Preclusion Rules and Hypos

If you cannot make it to tomorrow's class, I have posted the handouts here. The goal of the two hypotheticals is to help you refine your ability to spot and decide res judicata issues by providing further illustrations of the doctrine at work. You are of course not responsible for the material in the hypotheticals come finals; they are just there to give your mind some exercise.

Dylan and the Courts

My blog, my artistic preferences. Bob Dylan has arguably been American's greatest songwriter for the last fifty years, reflecting on many aspects of the nations' experience. However, from my purely non-academic studies, he appears to have a deep suspicion of the justice system. However, he does not appear to trust the popular whim of the jury nor the removed elitism of the judge. Inscrutable as ever, that crafty Dylan. I'll leave you with these pieces to reflect on:

"Drifter's Escape," Bob Dylan

"Oh, help me in my weakness,"
I heard the drifter say,
As they carried him from the courtroom
And were taking him away.
"My trip hasn't been a pleasant one
And my time it isn't long,
And I still do not know
What it was that I've done wrong."

Well, the judge, he cast his robe aside,
A tear came to his eye,
"You fail to understand," he said,
"Why must you even try?"
Outside, the crowd was stirring,
You could hear it from the door.
Inside, the judge was stepping down,
While the jury cried for more.

"Oh, stop that cursed jury,"
Cried the attendant and the nurse,
"The trial was bad enough,
But this is ten times worse."
Just then a bolt of lightning
Struck the courthouse out of shape,
And while ev'rybody knelt to pray
The drifter did escape.

Excerpt from "Hurricane," Bob Dylan

All of Rubin's cards were marked in advance
The trial was a pig-circus, he never had a chance.
The judge made Rubin's witnesses drunkards from the slums
To the white folks who watched he was a revolutionary bum
And to the black folks he was just a crazy nigger.
No one doubted that he pulled the trigger.
And though they could not produce the gun,
The D.A. said he was the one who did the deed
And the all-white jury agreed.

Rubin Carter was falsely tried.
The crime was murder "one," guess who testified?
Bello and Bradley and they both baldly lied
And the newspapers, they all went along for the ride.
How can the life of such a man
Be in the palm of some fool's hand?
To see him obviously framed
Couldn't help but make me feel ashamed to live in a land
Where justice is a game.

Excerpt from "The Death of Emmett Till"

And then to stop the United States of yelling for a trial,
Two brothers they confessed that they had killed poor Emmett Till.
But on the jury there were men who helped the brothers commit this awful crime,
And so this trial was a mockery, but nobody seemed to mind.

I saw the morning papers but I could not bear to see
The smiling brothers walkin' down the courthouse stairs.
For the jury found them innocent and the brothers they went free,
While Emmett's body floats the foam of a Jim Crow southern sea.

Excerpt from "The Lonesome Death of Hattie Carroll"

In the courtroom of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level
And that the strings in the books ain't pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught 'em
And that the ladder of law has no top and no bottom,
Stared at the person who killed for no reason
Who just happened to be feelin' that way without warnin'.
And he spoke through his cloak, most deep and distinguished,
And handed out strongly, for penalty and repentance,
William Zanzinger with a six-month sentence.
Oh, but you who philosophize disgrace and criticize all fears,
Bury the rag deep in your face
For now's the time for your tears.

The Jury and the Modern Complex Civil Litigation

The Vioxx cases so far have demonstrated many of the qualities and concerns of the jury in our civil justice system. Consider the following stories. All articles linked to are intended for the educational use of Boalt Hall civil procedure students only (if there are any problems, please contact tfletcher[at]berkeley.edu).

Timeline of Vioxx problems, cases (link)

The New Jersey case:

Jury finds Merck not liable (link)

Juries in New Jersey have the ability to submit questions to the witnesses. This is not normal in American courts (but should it be?) and has had a huge impact on this trial. (link)

The Texas case:

The jury in Texas acted quite differently than the one in New Jersey, and went so far as to tell reporters after the trial that they "sent a message" with their verdict. Pay attention to what happened in voir dire too. (link)

If you didn't get to the talk on Patent Trolls provided by an attorney from Baker Botts this week, the topic of Texas juries again came up. According to the guest speaker, "patent trolls" love filing lawsuits in the Eastern District of Texas. It intimidates international defendants and they feel like they draw a more sympathetic jury in cities like Tyler or Marshall than in San Jose or Boston.


Avoiding federal court:

Federal Vioxx cases were consolidated before a multi-distrcit litigation panel (MDL panel). The federal courts use these to manage enormously complex civil cases to allow one judge to become an expert in one series of facts and handle all the cases arising from them. Obviously, this can ruin a plaintiff's plan to find a friendly forum, and witness the difference between a New Jersey court and a Texas one. (link)

And of course, if you want to know more, go to LexisNexis, go to Research, go to Legal News, choose Legal News (other), and then Legal News, Current. Once there, I rant my searches with variants on vioxx and atleast4(jury) and [other terms I was interested in like texas, questions, etc.]. I'm also excited to chat about these cases [disclosure: I will be working for one of Merck's defense attorneys this coming summer].

Handout: Comments on Outlining and Rule 38, 47, and 48 outlines

All those goodies are available here.

Also, you can download a commented file where I compare sections from the two outlines available for Prof. Swift's Civ Pro on boalt.org. WHile they make a few nice points, I think I point out a few key errors in both which would make reliance on the outlines provided... poor. Download the comparison here. Here are my comments only in .pdf form. Note that these are just a few comments; these outlines also have other problems.

Watch this space for details on a practice test-taking time later this week.

Ace Up Your Sleeve

Not much help to you this semester 1Ls, but this tool is a great way of knowing which limited enrollment classes need to be snapped up in round one, and which can wait until later to add. Sometimes, you just can't turn the game theory off. But you can share!