MBE Question Thread

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foundingfather
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Re: MBE Question Thread

Postby foundingfather » Fri Jun 23, 2017 11:19 am

tag

Anyone using Emanuel's Strategies & Tactics for the MBE to supplement their bar review course?

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cnk1220
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Re: MBE Question Thread

Postby cnk1220 » Fri Jun 23, 2017 12:20 pm

foundingfather wrote:tag

Anyone using Emanuel's Strategies & Tactics for the MBE to supplement their bar review course?



I did- great book I recommend!

ConfusedL1
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Re: MBE Question Thread

Postby ConfusedL1 » Fri Jun 23, 2017 7:44 pm

two more for today:

ONE: Am I understanding the right to cancel a contract (not anticipatory repudiation. Think of it as some one getting sick vs. saying they won't perform) exists in this weird reasonableness standard considering:

1. the degree of uncertainty relating to the nature and duration of the other party's ability to person and
2. the extent to which a delay in making substitute arrangements would have prevented continuing obligations



TWO: Is a retailer strictly liable for a manufacturing defect even if it can be shown that it didn't act negligently? My assumption is that unless it can prove it didn't act negligently.

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TheWalrus
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Re: MBE Question Thread

Postby TheWalrus » Fri Jun 23, 2017 10:04 pm

Does anyone understand the difference between larceny by trick and false pretenses?

Bobby_Axelrod
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Re: MBE Question Thread

Postby Bobby_Axelrod » Fri Jun 23, 2017 10:13 pm

TheWalrus wrote:Does anyone understand the difference between larceny by trick and false pretenses?


Here's my take, fwiw.

In short:

False pretenses you get title by fraud.

Larceny by trick you get possession by fraud.

Hypo:

I intend to permanently deprive Susie of her printer. I have a fake $100 bill.

Scenario A: I say to Susie, "hey, here is $100 (fake) for that printer." Susie gives it to me. ---> False pretenses

Scenario B: I say to Susie, "hey, can I borrow your printer?" Susie says, "Yeah." I take the printer and keep it forever. ---> Larceny by trick

myrtlewinston
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Re: MBE Question Thread

Postby myrtlewinston » Fri Jun 23, 2017 11:32 pm

cnk1220 wrote:
foundingfather wrote:tag

Anyone using Emanuel's Strategies & Tactics for the MBE to supplement their bar review course?



I did- great book I recommend!


Are Emanuel's Civ Pro questions representative of the actual MBE questions? They are looooong.

dlrbfl
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Re: MBE Question Thread

Postby dlrbfl » Sat Jun 24, 2017 10:29 am

Civ Pro Question - JMOL

Themis Outline: "the court may grant JMOL if the court finds that there is insufficient evidence for a jury reasonably to find for that party."
Also Themis: "the court may not evaluate the weight of the evidence"

MBE PQ:
[+] Spoiler
A mayor sued a blogger for defamation in federal district court under diversity jurisdiction. The mayor alleged in her complaint that the blogger had published defamatory statements about her that suggested she was having an adulterous relationship. The mayor’s entire case rested on her own testimony establishing the prima facie elements of her claim and a properly authenticated and admitted copy of the allegedly defamatory publication. At the end of the mayor’s presentation of evidence to the jury, the blogger filed a motion for judgment as a matter of law. Finding that the mayor’s meager evidence was insufficient for a jury reasonably to find that the publication was false, as was required by state law, the judge granted the blogger’s motion and directed a judgment in favor of the blogger. The mayor immediately appealed the judgment, contending that the trial judge applied the wrong legal standard in granting the motion.

On these facts, should the judgment be set aside on appeal?

The answer was Yes, because the district court improperly evaluated the weight of the evidence.


What did the trial court do wrong here? What suggests that the court "evaluated the weight of evidence" instead of finding that "evidence was insufficient"?

Thank you in advance!

Puffman1234
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Re: MBE Question Thread

Postby Puffman1234 » Sat Jun 24, 2017 1:33 pm

dlrbfl wrote:Civ Pro Question - JMOL

Themis Outline: "the court may grant JMOL if the court finds that there is insufficient evidence for a jury reasonably to find for that party."
Also Themis: "the court may not evaluate the weight of the evidence"

MBE PQ:
[+] Spoiler
A mayor sued a blogger for defamation in federal district court under diversity jurisdiction. The mayor alleged in her complaint that the blogger had published defamatory statements about her that suggested she was having an adulterous relationship. The mayor’s entire case rested on her own testimony establishing the prima facie elements of her claim and a properly authenticated and admitted copy of the allegedly defamatory publication. At the end of the mayor’s presentation of evidence to the jury, the blogger filed a motion for judgment as a matter of law. Finding that the mayor’s meager evidence was insufficient for a jury reasonably to find that the publication was false, as was required by state law, the judge granted the blogger’s motion and directed a judgment in favor of the blogger. The mayor immediately appealed the judgment, contending that the trial judge applied the wrong legal standard in granting the motion.

On these facts, should the judgment be set aside on appeal?

The answer was Yes, because the district court improperly evaluated the weight of the evidence.


What did the trial court do wrong here? What suggests that the court "evaluated the weight of evidence" instead of finding that "evidence was insufficient"?

Thank you in advance!


This is my understanding, and someone with more knowledge of civ pro may correct me:

The MSJ/JMOL standard has a shitload of contradictions in it so it seems like it would be hard to test if with multiple choice. I think the rule I would adopt for such questions is that if the evidence being found to be too flimsy to believe involves actual testimony, then a judge can never rule on it (i.e. if it involves credibility). This will be true where the testimony sets out the actual ultimate facts, so that the rule of thumb for MC should be: if there is ANY conflicting evidence on a point--if both parties presented evidence on something--then MSJ or JMOL is inappropriate. Of course, if the parties set out facts from which inferences must be drawn (classic example being my supervisor did X Y Z, the jury can infer he was discriminating against me) then there's more leeway for the court to say no reasonable jury could draw those inferences. But that's probably too nuanced for a MC question.

I wrote out a longer response explaining my understanding of the standard but I've spoilered it because it's way beyond the scope of these MC questions so it might just be a waste of time/muddy the waters
[+] Spoiler
But you ask, what the fuck does the standard even mean then when it says the judge is supposed to ask how a reasonable jury would evaluate the evidence and if they could only find for one party, let that party win? Well, there are countless law review articles out there written about how the MSJ trilogy are full of contradictions and how the lower courts have gone all sorts of different directions.

The only time the courts will consistently "weigh" the evidence where one side has presented SOME evidence but it's super flimsy is when it's supppppppppperrrrr one-sided. The magic word for those scenarios is to say that the loser provided only a "scintilla of evidence." Obviously they're weighing the evidence—they have to be, if both sides provided something. But "insufficiency" is more of a code word for "we don't want to waste time on a trial and we're deciding as a matter of law that no reasonable jury could ever find for the losing party even though we aren't saying the losing party's evidence could not be credited." An example I can remember is some First Circuit case that Breyer wrote pre-SCOTUS, involving some ship captain's involvement in some cruise liner sinking. The employer sued the captain. For some reason that I can't remember, the case turned on the captain's location at sea. The employer provided all this data, satellite charts, GPS locations, all sorts of shit saying the captain was at position X. The captain provided his affidavit and nothing else saying he was at position Y because he knows the sea and has lots of experience on the ocean and whatever, typical affidavit stuff. The First Circuit decided that in this circumstance they could say the captain had only a "scintilla" of evidence and therefore even though both sides had presented evidence, it didn't create a genuine dispute of fact. So you can think of "insufficient" as the court's buzzword for "we're not going to waste time on a trial when it's obvious what the outcome will be, notwithstanding the fact that we're not supposed to weigh the evidence when each party has presented some." In these circumstances the courts abandon the idea that they cannot determine what the jury would choose to credit.

Then, because JMOL has the same standard as MSJ, it gets sloppy. What's the equivalent of ruling on an MSJ that one party presented affidavits containing testimony on a key issue and the other party didn't rebut them for purposes of a JMOL? The equivalent is where the moving party provided witnesses who gave testimony on issue X and the non-moving party did not rebut those witnesses in any way. Of course, in the real world, the jury could have chosen to simply not believe the moving party's witnesses. Yet to maintain this fiction of MSJ = JMOL, the courts on appeal will say they jury was REQUIRED to believe certain unrebutted testimony, just like how on an MSJ unrebutted affidavit evidence that would be testimony on trial must be believed. As soon as there is some form of rebuttal that is admissible (for MSJ) or WAS admitted (for JMOL) THEN the court butts out and says "we can't decide how the jury should have weighed it."
Last edited by Puffman1234 on Sat Jun 24, 2017 2:04 pm, edited 5 times in total.

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pancakes3
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Re: MBE Question Thread

Postby pancakes3 » Sat Jun 24, 2017 1:41 pm

insufficient evidence means there's not enough evidence. weight of the evidence means the quality of the evidence.

in the Themis practice problem, the mayor presented the defamatory article, which could be enough for a jury to review and find it defamatory. the degree to which the article is defamatory goes to the quality of the evidence.

i'm doing Barbri and the JMOL questions pretty much accept all evidence as sufficient to carry the burden of evidence for dismissing JMOL motions except for instances where the moving party has only submitted affidavits. in this case, affidavit PLUS article is sufficient to defeat JMOL.

fwiw, the MSJ problems allow affidavits to defeat MSJs because affidavits alone can make a genuine dispute of material fact.

InterAlia1961
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Re: MBE Question Thread

Postby InterAlia1961 » Sun Jun 25, 2017 7:18 pm

dlrbfl wrote:Civ Pro Question - JMOL

Themis Outline: "the court may grant JMOL if the court finds that there is insufficient evidence for a jury reasonably to find for that party."
Also Themis: "the court may not evaluate the weight of the evidence"

MBE PQ:
[+] Spoiler
A mayor sued a blogger for defamation in federal district court under diversity jurisdiction. The mayor alleged in her complaint that the blogger had published defamatory statements about her that suggested she was having an adulterous relationship. The mayor’s entire case rested on her own testimony establishing the prima facie elements of her claim and a properly authenticated and admitted copy of the allegedly defamatory publication. At the end of the mayor’s presentation of evidence to the jury, the blogger filed a motion for judgment as a matter of law. Finding that the mayor’s meager evidence was insufficient for a jury reasonably to find that the publication was false, as was required by state law, the judge granted the blogger’s motion and directed a judgment in favor of the blogger. The mayor immediately appealed the judgment, contending that the trial judge applied the wrong legal standard in granting the motion.

On these facts, should the judgment be set aside on appeal?

The answer was Yes, because the district court improperly evaluated the weight of the evidence.


What did the trial court do wrong here? What suggests that the court "evaluated the weight of evidence" instead of finding that "evidence was insufficient"?

Thank you in advance!


Here's the standard for SJ: even if everything the non-moving party has said in pleadings and discovery were true, there is not genuine dispute of fact or law. I lost on SJ once on a failure to warn issue. Opposing counsel argued that even if the manufacturer didn't include a warning on their product, it was of no consequence because a reasonable contractor would know how to use the product. My expert was a complete waste.

In contrast, a JMOL happens when after hearing every last shred of evidence that could possible be admitted, the judge feels there is just no way a reasonable jury would find it sufficient to come to a a verdict in favor of the non-moving party. Think: Res ipsa locquitur. Yes, a case of beer fell out of the window and smashed your car. Yes, it was legally parked just outside a frat house. No, you cannot point to Omega Theta Pi House as the payer, because while it is true that Flounder, Bluto or Otter probably tossed it, you can't show that it wasn't Dean Wormer, who was searching the second floor for his daughter. If you're the Plaintiff, and you move for JMOL, you'll lose. If you're Omega Theta Pi House, you win, but you're still on double secret probation.

A party can also move for a judgment on the pleadings, but if there are any exhibits or even an affidavit included, the court will view it as a MSJ, and treat it as such.

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Re: MBE Question Thread

Postby ConfusedL1 » Mon Jun 26, 2017 7:54 am

So if part A knows they can´t sue on a debt but part B thinks they can and says "I'll pay $500 if you don't sue me" is there a contract? I know there's a good faith exception for when a party believes they're settling, but I'm not clear whether it covers both sides.

InterAlia1961
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Re: MBE Question Thread

Postby InterAlia1961 » Mon Jun 26, 2017 8:01 am

ConfusedL1 wrote:So if part A knows they can´t sue on a debt but part B thinks they can and says "I'll pay $500 if you don't sue me" is there a contract? I know there's a good faith exception for when a party believes they're settling, but I'm not clear whether it covers both sides.


Yes. Because B believes there is a bargained-for-detriment. As long as A didn't claim there was an actionable claim to get B to agree to it, there's a contract.

ConfusedL1
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Re: MBE Question Thread

Postby ConfusedL1 » Mon Jun 26, 2017 8:05 am

InterAlia1961 wrote:
ConfusedL1 wrote:So if part A knows they can´t sue on a debt but part B thinks they can and says "I'll pay $500 if you don't sue me" is there a contract? I know there's a good faith exception for when a party believes they're settling, but I'm not clear whether it covers both sides.


Yes. Because B believes there is a bargained-for-detriment. As long as A didn't claim there was an actionable claim to get B to agree to it, there's a contract.


Isn't there a unilateral mistake issue there though? A KNOWS B is wrong about a material part of the decision

InterAlia1961
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Re: MBE Question Thread

Postby InterAlia1961 » Mon Jun 26, 2017 8:31 am

The court won't reform or rescind a contract for a unilateral mistake unless the non-mistaken party had reason to know of the other party's mistake, and it has to be a mistake that is fundamental to the nature of the contract, not the value. Here, even though the value of the contract is less for B than it is for A, because there is no claim, it's still only a mistake as to value. And A could make an argument that even if there isn't a claim, A could still suffer financial harm just from being sued. So, this is about a mistake as to value, and as long as there's no fraud on A's part, there's a contract.

When there's a mistake as to the nature of the thing, then it's almost certainly a mutual mistake. We both thought I was selling you an old dry cow that you were going to have ground into hamburger. It turns out, you got a fertile, top-producing milker for your milking string who was pregnant at the time of the sale. No contract, because we are both mistaken about the nature of the thing, not the value.

FormerChild
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Re: MBE Question Thread

Postby FormerChild » Mon Jun 26, 2017 6:06 pm

Need some reassurance.

Contracts. Mailbox Rule. Rejection sent and then acceptance sent a day after. Mailbox doesn't apply here, rather whichever is received first controls.

My simpleton question--received literally just means you received it, right? I don't have to physically open & read the rejection to receive it, right? As long as I receive it in the simplest meaning of the word, the rejection controls? (and I assume you'd prove first delivery by the postmark?) TIA

Bobby_Axelrod
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Re: MBE Question Thread

Postby Bobby_Axelrod » Mon Jun 26, 2017 6:09 pm

FormerChild wrote:Need some reassurance.

Contracts. Mailbox Rule. Rejection sent and then acceptance sent a day after. Mailbox doesn't apply here, rather whichever is received first controls.

My simpleton question--received literally just means you received it, right? I don't have to physically open & read the rejection to receive it, right? As long as I receive it in the simplest meaning of the word, the rejection controls? (and I assume you'd prove first delivery by the postmark?) TIA


No, do not have to physically open and read the rejection to receive it.

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TheWalrus
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Re: MBE Question Thread

Postby TheWalrus » Mon Jun 26, 2017 10:24 pm

Dumb question, but what is the eleventh amendment?

ConfusedL1
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Re: MBE Question Thread

Postby ConfusedL1 » Tue Jun 27, 2017 8:44 am

When, if ever, is ignorance of a law EVER an excuse to a crime? It doesn't even seem it would help "knowing" offenses.

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BulletTooth
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Re: MBE Question Thread

Postby BulletTooth » Tue Jun 27, 2017 10:17 am

ConfusedL1 wrote:When, if ever, is ignorance of a law EVER an excuse to a crime? It doesn't even seem it would help "knowing" offenses.


MPC § 2.04:

(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

(4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

I would only apply this if the prompt tells you that the jurisdiction has adopted the MPC. Generally, mistake of law is not a defense. The facts that would trigger this should also stick out like a sore thumb.

dlrbfl
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Re: MBE Question Thread

Postby dlrbfl » Tue Jun 27, 2017 11:05 am

I'm so confused about when extrinsic evidence is permitted. My outline and CriticalPass flashcards explain when evidence of specific instances of conduct can be used (on cross-x of witness), but not whether they can be proved by extrinsic evidence if the witness denies it.

As far as I understand, extrinsic evidence (e.g., physical evidence or someone else's testimony) is only permitted in the following two situations:
1. To impeach a witness with prior conviction of crime; and
2. To impeach by showing bias, prejudice, motive, interest

But this MBE question says impeachment by contradiction can also be supported by extrinsic evidence.

[+] Spoiler
A defendant was charged with possession of marijuana with intent to distribute. On direct examination, the defendant testified that he worked with disadvantaged children as a drug counselor, that he hated drugs, that he would "never possess or distribute drugs," and that he had never used drugs and would not touch them. The government offered as a rebuttal witness a police officer who would testify that, three years earlier, he saw the defendant buy cocaine from a street dealer. The defendant objected.

Is the testimony of the police officer about the prior drug transaction admissible to impeach the defendant?

Answer: Yes, because it is a proper contradiction


Does this mean that one can always introduce EE to "impeach contradiction"? Or does it ultimately just turn on whether the issue is collateral or not? For example, any issue this is material to the case can be supported by EE? In that case, things like bias, prejudice, motive, or interest would obviously allow introduction of EE because these are never collateral. If so, is "credibility of witness" always a collateral matter, given that EE is not allowed to impeach for untruthfulness?

Thank you!

Bobby_Axelrod
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Re: MBE Question Thread

Postby Bobby_Axelrod » Tue Jun 27, 2017 11:20 am

dlrbfl wrote:I'm so confused about when extrinsic evidence is permitted. My outline and CriticalPass flashcards explain when evidence of specific instances of conduct can be used (on cross-x of witness), but not whether they can be proved by extrinsic evidence if the witness denies it.

As far as I understand, extrinsic evidence (e.g., physical evidence or someone else's testimony) is only permitted in the following two situations:
1. To impeach a witness with prior conviction of crime; and
2. To impeach by showing bias, prejudice, motive, interest

But this MBE question says impeachment by contradiction can also be supported by extrinsic evidence.

[+] Spoiler
A defendant was charged with possession of marijuana with intent to distribute. On direct examination, the defendant testified that he worked with disadvantaged children as a drug counselor, that he hated drugs, that he would "never possess or distribute drugs," and that he had never used drugs and would not touch them. The government offered as a rebuttal witness a police officer who would testify that, three years earlier, he saw the defendant buy cocaine from a street dealer. The defendant objected.

Is the testimony of the police officer about the prior drug transaction admissible to impeach the defendant?

Answer: Yes, because it is a proper contradiction


Does this mean that one can always introduce EE to "impeach contradiction"? Or does it ultimately just turn on whether the issue is collateral or not? For example, any issue this is material to the case can be supported by EE? In that case, things like bias, prejudice, motive, or interest would obviously allow introduction of EE because these are never collateral. If so, is "credibility of witness" always a collateral matter, given that EE is not allowed to impeach for untruthfulness?

Thank you!


Credibility is not always a collateral matter. Using EE to show prior bad acts could end up taking a really long time and become a trial in itself. Thus, you can't do it. However, using proof of a prior conviction as EE is relatively quick in that it typically only requires showing a document. But, when it comes to contradiction, generally, yes, it turns on whether the issue is collateral.
Last edited by Bobby_Axelrod on Tue Jun 27, 2017 12:01 pm, edited 1 time in total.

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foundingfather
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Re: MBE Question Thread

Postby foundingfather » Tue Jun 27, 2017 11:51 am

TheWalrus wrote:Dumb question, but what is the eleventh amendment?


Don't rely on the text of the amendment itself, but it generally grants states immunity from suit unless they consent to being sued. This was based on the Founders' understanding that you couldn't sue The Crown without it's consent since kings and queens were thought to be divine or whatnot.

Since you generally can't sue the state itself, Ex Parte Young and 28 U.S.C. §1983 claims allow citizens to sue state officials (and federal officials with Bivens claims) that are violating the U.S. constitution under the "legal fiction" that a state official is stripped of their official power when they violate the constitution.

FormerChild
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Re: MBE Question Thread

Postby FormerChild » Tue Jun 27, 2017 8:29 pm

Question: is a statute of limitations issue substantive or procedural? I was under the belief, b/c of Civ. Pro., that it is substantive. But watching the Barbri Conflict of Laws lecture today, the guy said historically it's procedural, and then never clarified that under modern law its substantive or anything

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TheWalrus
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Re: MBE Question Thread

Postby TheWalrus » Tue Jun 27, 2017 9:13 pm

What are special damages for defamation?

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WestWingWatcher
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Re: MBE Question Thread

Postby WestWingWatcher » Tue Jun 27, 2017 10:43 pm

FormerChild wrote:Question: is a statute of limitations issue substantive or procedural? I was under the belief, b/c of Civ. Pro., that it is substantive. But watching the Barbri Conflict of Laws lecture today, the guy said historically it's procedural, and then never clarified that under modern law its substantive or anything


I think it is treated as substantive for civil procedure purposes, but treated as procedural for choice of law purposes? Now that I say it, that doesn't make any sense, but I also slightly remember one of the lecturers caveating their characterization of statute of limitations in a way that made it seem like it was treated differently in other contexts.

ETA: I just did the conflicts assessment and an answer said that the modern trend in conflicts of law was to treat statutes of limitation as substantive... So in an essay, we would just need to say "If this jxd followed the traditional approach to characterizing SOL then _____ but if the ixd followed the modern trend then ____"




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