Let me start by indicating that exam-writing and grading are considered by most faculty I have ever met, the most difficult part of our otherwise fun jobs. Additionally, each person is different, just as we have different personal teaching styles, we have different exam-drafting and grading practices. These materials and my workshop are not intended to be a guide to writing "A" papers. I can make no such promise. This is my personal "take", based on my experience, on the law school exam-taking process, and on how to write an exam answer that fully reflects your knowledge of the material.
This handout is freely available at my website: http://nersp.nerdc.ufl.edu/~malavet. In the "Student Resources" page.
Let me also refer you to Professor
Pouncy's How to write an Essay Examination (For Me!), available on
his home page at http://nersp.nerdc.ufl.edu/~lawinfo/faculty.
This document does not establish an agreement of a contractual nature, nor should it be read as a limitation on the discretion in the creation or evaluation of examinations by any member of the College of Law Faculty. With these comments in mind, you will find that these materials are divided into three sections: (1) general suggestions section; (2) a drill on how to read and follow directions; and (3) series of practice questions, starting with five multiple-choice questions, followed by two essays from two different types of exams.
There are three major guidelines for law-exam taking: (1) don't panic, stay relaxed; (2) study properly; and (3) read the exam and outline your answer carefully before you do anything else.
DO NOT PANIC!
Relax while you study and during the exam. This is particularly important during your first year of law study. It is unfortunate that so many elements of the first-year experience seem geared towards scaring the hell out of the students. Law school is not easy, but it is not impossible either. "You know more than you think you know," said Professor Charles Abernathy to my first year class in 1984, by way of exam-taking advice. Most of us realized that he was right only after the exams. Have confidence in yourself and your learning habits. Every student admitted to this law school has the capacity to excel in his or her studies.
STUDY PROPERLY
Study properly for the examination. This means doing your work during the semester; reviewing your class materials, notes and/or outlines; going through past exams given by your professor; and generally honing your analytical skills.
Study Intelligently. Keep in mind that a law student is trained to find, understand and apply the law. Memorization can be useful, even essential in some cases, but it can never replace a true understanding of the law and the ability to apply it in a factual context. Memorizing everything you have read during the semester will be worthless if you cannot identify what is relevant to answering a question. Every area of the law has a few, often very few, basic principles. You must identify and understand the basic concepts that distinguish the particular field of the law that you are studying from any other. For example, Tort law is based, generally, on the concept that persons deserve compensation for damages caused by the acts of others, with tortious conduct covering various categories of negligent, reckless, intentional or acts of strict liability; Constitutional law is based on the principle of a Supreme Law, a law of laws if you will, that controls relations between the government and its citizens. These concepts are the unifying force defining a particular legal field or law school course. The details then become a series of logical, individual building blocks, within the basic framework of the course.
Study Aids. Study aids, e.g., commercial outlines and hornbooks, are not evil works that lead law students to eternal damnation. They are tools available to the student. However, just like any other tool, they should be used thoughtfully. The time constraints of preparing for finals, particularly during the second semester of your first year, make studying from Hornbooks or from your textbook impractical. You should concentrate on reviewing your notes and an outline. A self-prepared outline is usually best, but many of the commercial outlines are very good. Hornbooks and the textbook should be used exclusively to get a deeper understanding of some major issues. I find that one of the most useful tools to study these major concepts in a short time are the Nutshell series books. They are generally succinct, accurate and easy to read summaries of the law. I recommend that you read them first in one sitting, without taking notes, to get a complete overview of a course, before going on to more detailed review of your course materials, notes and outlines.
Open-book exams. A word of warning about open-book exams. The examination room is not the place for original research. You ought to study the same way for open and closed book exams. The availability of materials should merely obviate the need to memorize the specific wording of particular rules, but the general concepts must be clear before you sit down to take the exam.
Review Old Exams. Please review old exams. Answering practice exams is one of the best ways to finish your preparation for finals. At the very least, you will improve your skills and learn the professor's examination style, while you review the course. At most, you may get lucky and preview the question that will be in the exam law professors are, generally, not very original exam writers. If you have doubts as to answers, discuss the question with fellow students or, if possible, with your professor.
READ AND OUTLINE YOUR ANSWER CAREFULLY
Read the exam and outline your answer carefully before doing anything else. Look over the exam, then formulate a schedule for answering it in its entirety. Your schedule should include time to read the entire exam and time to answer each question individually. Pay particular attention to the weight given to each question when allocating how much time you should spend drafting your answer. Spending 50% of your time on a question that is worth 5% of the grade is not very smart.
For multiple-choice or true-or-false questions, allocate a block of time to cover all of them, allocating an equal amount of time to each individual question. Answer these questions as you finish reading them, although I recommend reading them twice, provided that you have enough time.
Read all essay questions before answering any of them. Initial instincts are usually good because they indicate that a particular term or concept has properly jogged your memory. Underlining and note-taking while going through the first reading will ensure that you do not forget any of your initial reactions to the questions. Essay questions should be read at least twice. Identify and highlight the relevant facts and parties involved in the hypothetical, identify the legal issues pertinent to the facts and outline your response before you start to write your answer.
Never assume any facts when answering an exam question. "Missing facts" may suggest that:
(1) you did not understand the question properly and should read it again;
(2) the professor wishes you to identify the missing facts and to discuss the possible alternative factual/legal scenarios;
(3) the professor made a mistake. This is rare but not unheard of. If you are convinced that a crucial fact is missing, ask the professor supervising the exam to clarify the question. If you remain convinced that something is missing, identify and discuss the alternative factual/legal scenarios.
Answer the Question. I never cease to be amazed by how many students simply refuse to answer the question I pose. Relevance, i.e., "relation to the matter at hand," is the most important factor in identifying the facts and law that must be discussed in your answer. These will be determined by the question. Here is an oversimplified example: "The red dog in Mr. Jones's yard barked all night, waking up the entire neighborhood, including Mr. Jackson. What rights does Mr. Jones have?" Wrong answer: "The dog was a nuisance and Mr. Jackson had action against Jones." Right answer: "Mr. Jones is entitled to the enjoyment of his private property, subject to the neighbors' rights not to be subjected to nuisance. The barking might be considered a nuisance . . .".
"Forking" vs. Regurgitation. Forking is a term generally used to describe the discussion of alternate solutions to the same legal problem. This is a healthy practice in exam answers, always consider the possible alternatives. The correct answer, however, carefully relates the alternate solutions to the question posed and the facts given . Mere transcription of all that youlearned, even when it does not apply to the facts at hand, is counterproductive and will result in a lower grade. Shorter is often better. Forking is good, regurgitation is bad.
A good exam answer is short and to the point. It discusses, in simple English, but using the proper legal terms, the facts relevant to the question posed and the solution(s) suggested by applicable law. Professors do not expect, and certainly do not want, a transcription of their course. They expect the student to show a command of the important concepts of the course and the ability properly to apply them to a factual situation.
One of the most common errors made by students during exams, is failing to read, understand and follow the examination directions. Test your skills by completing this drill.
Directions: Read the entire exercise before doing anything else. Do exactly as instructed. Under no circumstances are you to speak or ask a question. Be sure to keep your eyes on your own papers. When you have finished, sit quietly until everyone has finished this drill.
Name:
1. Read every instruction before you do anything.
2. Proceed carefully and cautiously.
3. Write your name in the designated space provided therefor, below the paragraph that starts with the word "Directions".
4. Circle the word "name" in sentence three.
5. Draw five small squares in the supper left-hand corner of this page.
6. Put an "X" in each square.
7. Put a circle around each square.
8. Sign your name in the lower right-hand corner of this page.
9. After your name, write "yes, yes, yes!"
10. Put a circle around each word in sentence number 8.
11. Put an X in the lower left-hand corner of this page.
12. Draw a triangle around the X you put down.
13. On the reverse side of this page, multiply 703 by 1,850.
14. Draw a rectangle around the word "page" in sentence number 3.
15. Snap the fingers of your left hand.
16. If you think you have followed these directions, write "I have" in the space provided below.
17. On the reverse side of this page, add 8,950 and 9,850.
18. Put a circle around your answer. Put a square around the circle.
19. Shut your eyes for just a few seconds.
20. Please ignore instructions four through nineteen, and follow the instructions in sentence number three, to complete this drill.
Slightly edited from the original supplied by Prof. Howard R. Lurie, Villanova
Law School.
These questions are from my Civil Procedure exam for the Spring of 1996.
Select the best answer to the question presented. In this section, Do not look for perfect answers, just the most correct one among those alternatives available to you, in light of the question presented. No explanations are required. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the letter of your response.
Do not assume any facts not given to you. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere", (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible alternative response.
Long arm statutes. In answering these questions, you should assume that the applicable long-arm statutes have extended personal jurisdiction to the maximum extent allowed by the Due Process Clause of the Fourteenth Amendment.
Residence. Assume that residence and citizenship are treated equally.
1. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $50,000.00 in damages exclusive of costs and interest. He has filed the action in the US District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity of citizenship because he is a citizen of New York, and Cosmo Cramer, for tax purposes, has chosen to retain his citizenship in Texas, where he lived before moving to New York, and where he still owns a home. Mr. Cramer has conceded that he is a citizen of Texas, because he fears that New York might seek over $2,000,000.00 in back taxes from him, therefore, he has sworn affidavits for use in this case, indicating that he is in New York only temporarily and lacks an intention to stay there. However, he has moved the court to compel the joinder of his hair dresser, one George "Scissors" Costanza, a citizen of New York. The court has found that Mr. Costanza must be joined to the action because in his absence complete relief cannot be accorded among those already parties, and that he must be regarded as indispensable to this action, therefore, the court must:
2. A tornado destroyed the home of John M. Lombardi. Nationwide Insurance Company, which had sold Mr. Lombardi's homeowner's policy, sent an agent to assess the damage. The agent prepared a written report of the damages and took a written statement from Mr. Lombardi, in order to evaluate the claim and pay him what was covered by the policy. Mr. Lombardi had never had any problem with Nationwide in the 20 years he had purchased policies from them. However, the company paid Mr. Lombardi, and he was not satisfied, so he sued for breach of contract. He sued in federal court, pursuant to diversity jurisdiction, since he is a citizen of Florida and Nationwide is a Delaware Corporation with its principal place of business in Pennsylvania. During discovery, Mr. Lombardi requested the production of copies of the insurance agent's report and his own statement. Can the insurance company raise the work-product privilege to refuse to produce the documents?
3. Juan González was severely beaten by four Los Angeles Police officers in the course of an illegal arrest. The actions of the police can be argued to have violated Mr. González's rights under the Constitution of the United States. Such a claim would be both reasonable and substantial. The facts giving rise to this claim occurred in Los Angeles. All the officers involved live in Simi Valley, a suburb of Los Angeles, and are citizens of California. After this ugly incident, Mr. González, a lifetime angelino, moves to Arizona, and becomes a citizen of Arizona. He then sues the officers and the City of Los Angeles in U.S. District court for the District of Arizona, he claims federal-question jurisdiction. None of the defendants can be found in Arizona. The defendants have timely moved for dismissal, or any other appropriate relief, for all pertinent Rule 12(b) defenses. Should the court hear the case?
4. Thomas Tank is seriously injured in an automobile accident caused by the negligence of one M.R. Conductor. Mr. Tank is a citizen of Shining, Texas, and Mr. Conductor is a citizen of Station, Massachusetts. The accident occurred on Interstate 75, in Alachua County, Florida. Mr. Conductor is insured by the Zodor Insurance Company, a corporation incorporated in Delaware, with its principal place of business in Florida. Mr. Thomas sues Mr. Conductor and Zodor Insurance Company in the U.S. District Court for the Northern District of Florida. Can the court hear this case?
5. FBI agents conduct illegal wiretaps of members of Ayuda, a group that supports Salvadoran immigrants seeking political asylum in the United States. They also break into their offices in Yuma, Arizona and steal files and plant listening devices. The scheme is uncovered after CNN airs an investigative report in which these acts were disclosed. The illegal activities were carried out by a "special task-force" created in the FBI field office in Dallas, Texas. Ayuda is based in Yuma, their only offices are there and all members are Arizona citizens. All the agents involved are citizens of Texas. Members of Ayuda have a substantial claim against these agents for violation of their federal civil rights. Where can their complaint be filed?
Do not assume any facts not given to you. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere", (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Citizenship and Residence. For purposes of this part, you should assume that citizenship and residence are treated equally.
Citations. Since this is an open-rule exam, citation to the appropriate rule and section of title 28 should be made. Case citations will be judged on a "close-enough" basis.
Louis Renaud, and his wife Marie, both citizens of the state of Wisconsin, in the United States of America, suffered severe injuries when the boat they were riding in blew up. The accident happened within the territorial waters of Jamaica, in a beach area in Negril. The Renauds were spending their Winter vacation at the Casablanca Estates, a tourist community. Casablanca Estates is not incorporated, it is operated directly by the owners, Richard and Ilsa Blaine. The Renauds had rented the boat from Casablanca and were riding in it by themselves. After a day of fun in the beach, they were about to dock when the boat blew up. Louis and Marie are very experienced in the handling of boats, they own one that they use to fish in lake Waekeegan in Wisconsin. When the ice in the lake is thick enough to drive a truck on to it, they go to Jamaica for fun in the sun. They said that the explosion must have been caused by an improper mixture of oil and gasoline in the boat's gas tank. The tank was filled by the Blaines themselves. Louis suffered third-degree burns over 90 percent of his body, lost sight in one eye, and has spent a total of 562 days in the hospital since the accident occurred. Marie suffered second and third-degree burns over 50% of her body. She has spend 222 days in the hospital since the accident. (Don't worry, they still managed to file their claim on time!)
Louis and Marie sue Richard and Ilsa in the United States District Court for the Southern District of Florida. They allege that there is diversity jurisdiction over the case. They make no federal claims. This case does not fall under admiralty jurisdiction.
Ilsa and Richard bought the Casablanca Estates ten years ago and have been operating it as a tourist villa ever since, for five months out of each year, from October to February. They have lived in the Miami area all their lives. They own a home there, their children go to school in Miami, they are both registered to vote in Florida, and have Florida driver's licenses. In a deposition, they testified that they intended to live in Miami permanently, that they just worked in Jamaica.
Ilsa and Richard have defended that the accident was caused by a faulty gasoline distribution valve, produced by Evinrude, a Corporation incorporated in Wisconsin, with its principal place of business in Miami, Florida. Evinrude produces the boats and sells or leases them. The Blaines had leased several boats from Evinrude, including the one involved in this case. The boat was worth $40,000.00 at the time of the accident.
The Blaines moved for dismissal of the Renauds' complaint for lack of subject-matter jurisdiction, personal jurisdiction and venue. The court denied this motion.
The Blaines then impleaded Evinrude. Louis and Marie then file a claim against Evinrude, alleging that their damages were caused by its negligence. Evinrude then files a claim against the Renauds for the destruction of the boat.
Evinrude has moved for dismissal of the Blaines' claim against it, as well as the Renauds' claim, as to both, for lack of subject matter jurisdiction, personal jurisdiction and venue. The Renauds have moved for dismissal of Envinrude's complaint against them for lack of subject-matter jurisdiction. All motions were filed on time.
Florida adheres to the concept of lex loci delicti, and interprets this to mean that the law of Jamaica applies to this case. Under applicable Jamaican law, Evinrude is not a necessary/ indispensable party. Jamaica has joint-and-several tort liability.
Was the court's ruling on the Blaines' motion to dismiss correct? How should the court rule on the other motions to dismiss? When relevant, refer to title 28. As to each claim against and by Evinrude, identify the relevant Rule of Civil Procedure.
The following question was part of my Comparative Law Exam in the Fall of 1995.
You represent a person who was involved in an auto accident in a European country that has a civil code. Your client has asked you, "what is the pertinent law in this area?" Assume that there is no specific auto liability law in effect in this country. Assume further that there is a law that reads: "Whoever causes damages to another through fault or negligence must pay the damages so caused." Where would you expect to find that rule? What sources would you study in order to answer your client's question and how would you explain to her their binding effect or reliability? Can you provide any specific examples we studied during our course to illustrate your conclusions?
1. Answer: B. Once the court has found that the party is necessary, as it has here under Rule 19(a)(1), and found that the party is indispensable, under Rule 19(b), the only choices left to it are to order joinder if feasible, or to order dismissal. Joinder is not possible here, because that would destroy diversity because both Mr. Seinfeld and Mr. Costanza are citizens of New York. No supplemental jurisdiction is available as to plaintiff's claim. Thus, A is incorrect, while the preference is to use discretion to avoid dismissal, as noted in Provident Tradesmen and note 9 at page 242, the court had found that impossible to do when it decided that the party was indispensable, i.e., discretion is used in making the "indispensability" decision. C and D are incorrect because Mr. Cramer is moving for compulsory joinder under Rule 19 and not for impleader under Rule 14. Cramer is trying to get Jerry's case dismissed for failure to join a non-diverse party. Mr. Cramer may choose to file a Rule 19 motion first, even if impleader were possible (recall Janney v. Sheppard at page 228 of the casebook). Moreover, you do not know from the facts what the law of New York is regarding contribution, so you cannot establish if Rule 14 impleader is available to Mr. Cramer. Therefore, the only clear choice available to the court, under the facts given to you, is B, to dismiss. All three elements are met, (1) the party is necessary under 19(a)(1); (2) the joinder is not feasible because it would deprive the court of jurisdiction over the subject matter; and (3) the party is indispensable.
2. Answer: D. The documents are discoverable and not protected by work-product because they were not prepared in anticipation of litigation. C is attractive because even if the privilege (I told you in class that I did not care if you called "privilege" or "doctrine" so long as you knew how it was applied) applied, the statement is not protected by express application of FRCP 26(b)(3) paragraph 2. B is incorrect because Rule 26(b)(3) expressly applies to persons other than lawyers, including insurers. C is incorrect because the work was not prepared in anticipation of litigation. A is just an incorrect legal statement.
This was a Rule 26 question. Some students thought it might be 28 USC § 1332(c)(1) question. If it had been, the answer would have been "D" anyway, however, the question was about rule 26, going to 1332 is looking for an issue that is not there.
3. Answer: A. The court should not hear the case, it should grant dismissal for lack of personal jurisdiction, there are no minimum contacts and certainly no general jurisdiction over any of the defendants in Arizona. Additionally, the court should dismiss for lack of venue, or alternatively transfer the case to California, but it should not hear it. The acts occurred in Los Angeles, all the defendants are from Los Angeles, and none can be found in Arizona. See 28 USC § 1391(b). The proper place to file would be the U.S. District Court for the Central District of California, Western Division, at Los Angeles. 28 USC § 84(c)(2). Lack of personal jurisdiction and venue are reasons for the court not to hear the case, even if it has subject matter jurisdiction, which it would under federal question, thus B is incorrect. Even if the case could be brought under diversity, the red herring of C, the lack or personal jurisdiction and the venue defect would prevent the Arizona court from accepting the case, upon motion, and one has been made. Moreover, jurisdiction must be pleaded, and Mr. González only pleaded federal question. D is inapplicable, since A is the right answer.
Some students thought that venue was provided by 1391(e), based on the residency of the plaintiff. Even if it had applied, the correct answer was still A, the court should not hear the case because it lacked personal jurisdiction over the defendants. However, that provision applies to cases involving employees of the US government, not the state officers involved here. As to them, we still use 1391(b). Since the defendants cannot be found in Arizona, are not citizens of Arizona, and the acts did not occur in Arizona, the court lacks venue as well.
4. Answer: B. A is incorrect because there is personal jurisdiction over the driver under Hess v. Pawlowski, and over Zodor because it is a citizen of Florida and is subject to general jurisdiction here. B is correct because there is subject-matter jurisdiction under diversity, if the damages exceed $50,000.00, there is personal jurisdiction as discussed above, and the facts occurred in Alachua county, see 1391(a)(2). C is wrong for failing to mention jurisdictional amount. D is also incorrect. The insurance company is indeed a citizen of Florida, but so what?, there is still complete diversity!
5. Answer: D. A is incorrect. There is indeed federal question jurisdiction, a substantial claim arising under the constitution and laws of the United States. There would be venue in Arizona under 1391(e)(2), which does apply here because the defendants are federal officers, but the facts of the question would produce the same result under 1391(b) as well. Arizona is where substantial part of the acts from which the claim arose occurred. There is a possible personal jurisdiction problem in Arizona, which is normally solved by the rule that a single tortious act is enough to establish minimum contacts, and you were instructed to assume that states had extended long-arm statutes to their constitutionally allowable extreme. The problem is the word "only". B is incorrect. There is federal question jurisdiction, venue can easily be based on 1391(e)(1) since all defendants are from there, and perhaps on 1391(e)(2), since planning was also done in Dallas; there is also even stronger personal jurisdiction, since all the agents are Texans, but again, "only" makes it incorrect. C is just wrong, because, as I emphasized a lot, you need subject matter jurisdiction, personal jurisdiction and venue. D is correct, there is subject-matter jurisdiction, there is venue and there is personal jurisdiction in both.
ESSAY 1: : "RULES" ESSAY
This is a rules essay. This means that the structure of the answer will be fairly technical. This was not a particularly hard question, given my review and class discussion, but it required the students to address a lot of issues. Initially, it would have been useful to do a diagram of this case, just to keep things straight. One way to diagram it is by following the claims, another by following the motions:
1. Renauds v. Blaines. Motion to Dismiss Denied Correctly. Subject-Matter Jurisdiction: The Renauds are citizens of Wisconsin. The Blaines of Florida, because there is physical presence and general intent to remain there. Temporary work in Jamaica does not create new citizenship. There is diversity jurisdiction under 1332(a)(1) and Strawbridge v. Curtiss complete diversity. Of course, the amount in controversy must exceed $50,000.00 exclusive of interest or cost (1332(a)), but that does not seem difficult given the severity of the damages. Personal Jurisdiction: Since the Blaines are citizens of Florida, as shown by their physical presence there and intent to remain, they are subject to general jurisdiction there and personal jurisdiction is not a problem. Venue: is proper in the Southern District of Florida, which includes Miami, because all the defendants can be found there. 28 USC §§ 89(c), 1391(a)(1). The Motion to dismiss should be denied on all counts. The effect of adding Evinrude will be discussed below.
2. Blaines v. Evinrude. Evinrude's Motion to dismiss denied. Subject-Matter Jurisdiction. Rule 14(a)[1] allows the Blaines to bring Evinrude in, limited to contribution. This would of course destroy complete diversity, Strawbridge v. Curtiss, since under 28 U.S.C. § 1332(c)(1) a corporation is a citizen of both its state of incorporation and the state in which its principal place of business is found. In this case, the corporation is a citizen of Wisconsin and Florida. We must therefore look for supplemental jurisdiction. 28 USC § 1367(a). If the Blaines' claim against Evinrude meets the Rule 14 test, it will also meet the 1367(a) same constitutional case requirement, therefore, even though there is no complete diversity, under supplemental jurisdiction codified in 28 USC § 1367(a), the claim should proceed. Since the claim against someone made a party under Rule 14 is not been made by plaintiff, the action is not prohibited by 1367(b). If the Blaines had other claims beyond contribution, like loss of profits for the lost use of the boat, they could bring it under FRCP 18(a). If such a claim arises out of the same transaction or occurrence, there would be supplemental jurisdiction under 1367(a) as well. Personal Jurisdiction. The corporation would be subject to general personal jurisdiction in its principal place of business. Venue: We did not discuss this in class, but dismissal for lack of venue, is not available to impleaded third-parties. Some students approached the answer this way, and received full credit. Nevertheless, the lack of venue can be considered by the court in exercising its discretion to preclude the Rule 14 impleader, so the analysis is still useful. The corporation has its principal place of business in Miami, Florida, which is in the Southern District, and pursuant to 1391(c) it is deemed to be a resident of that district for venue purposes, therefore, venue would be proper under 1391(a)(1). Students who followed the venue analysis also received full credit.
3. Renauds v. Evinrude. Evinrude's Motion to Dismiss Granted. There is a subject-matter jurisdiction defect here, as discussed above. But the claim fits under Rule 14(a)[7], this being the same "transaction or occurrence", and this would fit under supplemental jurisdiction codified in 1367(a), just like the prior claim. However, plaintiffs would not be allowed to make a state law claim against Evinrude, because of the language of 1367(b), which sought to codify the Supreme Court's holding in Owen Equipment v. Kroger. This language would preclude the claim, because there is a lack of subject-matter jurisdiction and supplemental jurisdiction. Personal Jurisdiction and Venue are not a problem as discussed in 2 above (a simple cross-reference was enough).
4. Evinrude v. Renauds. Renauds' Motion to Dismiss Denied. Here you could take two tacks to anchoring this claim to the Rules. First, you could call it a Rule 14(a)[6] claim by third-party defendant against the original plaintiff, or, second, a compulsory counter-claim under 13(a), as indicated in the last part of 14(a)[7]. The courts have not been very careful about this distinction, so I did not care which one you chose. However, technically speaking, what we have here is a 14(a)[7] claim by the original plaintiff against the third-party defendant. Hence, because of its timing, Evinrude's claim against the Renaud's becomes a Rule 13(a) compulsory counter-claim, which is specifically allowed by the final part of 14(a)[7]. You might also wonder what effect the dismissal of the Renaud's complaint would have on a compulsory counter-claim. If Evinrude's claim against the plaintiffs, the Renauds, arises out of the same transaction or occurrence, to meet the Rule 14(a) or 13(a) test, it will also meet the 1367(a), same case or controversy under Article III, i.e., same constitutional case requirement. There is no diversity between the parties, as discussed above, so there is no independent subject-matter jurisdiction. However, both under Rule 13(a) and Rule 14(a)[6], the defendant is allowed to pursue the claim, now under supplemental jurisdiction codified in 28 USC § 1367(a) (before it was considered ancillary to the original claim; we discussed this in relation to note 3 at page 195 of the casebook). The same boat accident destroyed the boat and caused physical harm. Unlike the claims by the Blaines against Evinrude, this is not precluded by 1367(b), this is a claim by someone made a party under Rule 14 against plaintiff. You might attack as unfair the different results in 3 and 4, or you might point out that courts treat the involuntary defendant better than the plaintiff that chooses the forum. Note that the Renauds did not move to dismiss for lack of personal jurisdiction or venue. That would have been silly, since they picked the court and thereby submitted to personal jurisdiction and venue there.
ESSAY 2: "CREATIVE" ESSAY
GENERAL FEEDBACK
A "creative" essay is one in which I am looking for informed, intelligent and creative answers. The most basic mistakes in answering such a question are: the attempt to provide massive amounts of information without proper thoughtful analysis and simply missing the point of the question. Some students failed to read, or certainly to understand, the warning of the instructions:
In drafting your answers, please keep the following in mind: No one could cover every possible point in every detail in the time allowed. Please strive for succinctness, precision, specificity, and thoughtful analysis in all points you do address. Remember the nature of our course. Try to identify, to paraphrase Professor Merryman's eloquent introduction, the qualities that the institutions, as implemented in different countries, have in common, which set them apart from those of any other system. When specific examples might be pertinent or useful, please feel free to use them. But remember that I am looking for proper understanding of general rules and the lessons to be learned therefrom.
I was struck by how some students chose to ignore the order of the questions I posed. This resulted in much lower grades, because the answers were not well organized and thought-out. I noted with interest that students who typed their exam answers did, on average, much better than the rest of the class. This is not surprising. They took the time to organize their answers before they started typing, this resulted in much better, and usually shorter, essays. The page limitation was meant to encourage you to read the exam carefully and to organize your answer before starting to write it. This is also the reason for my no-pencils rule. Failure to write legibly also hurt a few students. While I will make all reasonable efforts to read an answer, I will not award points if I am unable to read the response to my question. This is an error that cannot be resolved after the fact, i.e., sitting down to transcribe your exam afterwards is a waste of your time, your grade will NOT change. That would be unfair to your colleagues. The answer had to be written legibly in the allotted time.
In general, I looked for identification of some of the most important issues and a correct and thoughtful discussion thereof. Students were not generally penalized for failing to discuss every point, just for discussing them incorrectly, or for failing to provide pertinent answers.
SPECIFIC ANSWER
Preliminarily: This question is about legal sources, their hierarchy and binding authority. All items included in my handout, but, again, not everything in the handout had to be discussed! Particularly, this was not a question about interpretation. The question asks you to identify sources and to explain their binding authority. You are not given enough facts to discuss interpretation methodology, and you were not asked to do so.
Since our class was taught from the point of view of an American lawyer, the logical tack was to assume you were an American lawyer advising an American client. However, if you chose to be a foreign lawyer, the substantive analysis should not change, and the answers were graded equally.
The most common conflicts of law rule in the civil law world is lex loci delicti, i.e., you apply the substantive law of the place of the accident. [2 bonus points]. A point that I repeated throughout the semester. Hence, the question called for substantive law analysis.
1. Civil Code [3 points]. The rule transcribed in the question would almost certainly be found in the civil code of this civil code nation. In the section on extra-contractual civil liability in the Book on obligations.
2. Sources and hierarchy [6 points]. You always start with Primary, i.e., Objective or Positive law in statutory form or its non-judicial equivalent. Absent specific legislation, which you are told to assume, you start with the Civil Code general rule of tort, which you are given. Custom was not at all relevant here because it was not referred to in the statute. The rule obviously requires application to specific fact situations. Such interpretation finds two derivative sources: judicial opinions and the writings of commentators.
3. Doctrine vs. Legal Doctrine [6 points]. Discuss the interplay between judicial opinions and learned commentary. Doctrine in general refers to the work of commentators, scholars. Legal doctrine in the Spanish legal sense, means jurisprudence, in fact, jurisprudence constant, in the French sense. Jurisprudence constant, i.e., a series of concordant decisions; (2) arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions; (3) arrêt d'espece, a case limited to its own facts. Obviously you try to find something in categories one or two.
4. Explaining the binding effect of sources [6 points]. This was an opportunity for you to discuss: (a) the influence of judicial opinions, the general lack of stare decisis and of de jure rules on the binding effect of decisions, and, finally, the de facto effect of appellate decisions, thus a judgment call must be made; and (b) the influence of commentators.
5. Specific Examples [4 points]. The obvious one was the French automobile liability cases, which I told you to emphasize in your exam preparation. One case that went to the Cassation court twice was generally followed by lower courts and one that only went once, was not as generally followed. However, students showed considerable imagination in finding pertinent examples in our casebook, and I awarded points for all of the correct ones.