Kunstsammlungen zu weimar v elicofon

THIS EXAM CONSISTS OF FOUR (4) PAGES (INCLUDING INSTRUCTIONS)

Page 1 of 4

U.S. LAW AND LEGAL INSTITUTIONS Professor Joseph Landau

SPRING 2016 EXAM

INSTRUCTIONS

Please read carefully before starting

1. This is a 6-hour, “take home,” open book exam. All work must be finished and uploaded within 6 hours after the exam is commenced. I recommend that you spend 3 to 4 hours trying to complete the entire exam (or as much as possible). Then, after a short break, review/edit your work, completing any questions that you found more difficult.

2. There are five parts to this exam and you must answer every subpart to every question. Part A is worth 10 points; Part B is worth 15 points; Part C is worth 20 points; Part D is worth 25 points; and Part E is worth 30 points. Make sure to budget your time accordingly.

3. Do not put your name on your exam.

4. This is an open book examination. The questions are designed so they can be answered exclusively based on the assigned materials and in-class lectures and discussions. I strongly recommend that you limit your answers to those materials. You will not receive credit for references to any outside research.

5. You may not discuss the exam with anyone or communicate in any way about the questions and your responses until the expiration of the exam period, Monday, February 22, 2016, at 11:59 p.m.

a. One exception: you may address administrative or computer/technical questions to the Registrar’s office.

6. All answers should be double spaced, with at least 1” margins on all sides. You should use a standard-style font such as 11 or 12 point Calibri or 12 point Times New Roman.

7. At the beginning of each response, type the number of the question you are answering.

8. Your answers will be judged on your accurate identification of the issues, the specificity and thoughtfulness of your analysis, and the organization and the clarity of your written work product.

9. When citing cases or other materials in your answers, you need not include formal citations; shorthand names in the body of your answers are fine. When in doubt, identify the page number you are referring to from Whose Monet? or the handouts.

10. In the case of significant noncompliance with these instructions, I may deduct credit from your overall grade.

11. GOOD LUCK!

[END OF INSTRUCTIONS]

THIS EXAM CONSISTS OF FOUR (4) PAGES (INCLUDING INSTRUCTIONS)

Page 2 of 4

Part A (10 points total)

Please respond to ALL of the following short-answer questions. You must answer EACH numbered question (1 through 5) below in 75 words or less. Be sure to provide a word count at the end of each numbered answer.

1. Identify the law at the source of the dispute in DeWeerth v. Baldinger. 2. Identify the district court’s holding regarding the defendant’s motion to dismiss in

DeWeerth v. Baldinger. (The opinion can be found on pages 74-76 of Whose Monet?)

3. Identify the legal authorities on which the district court relies in ruling on the defendant’s motion to dismiss in DeWeerth v. Baldinger. (The opinion can be found on pages 74-76 of Whose Monet?)

4. Identify the district court’s holding regarding the plaintiff’s motion to vacate the original judgment in DeWeerth v. Baldinger. (The opinion can be found on pages 212-213 of Whose Monet?)

5. Identify the source(s) of law relied on by the district court in ruling on the plaintiff’s motion to vacate the original judgment in DeWeerth v. Baldinger. (The opinion can be found on pages 212-213 of Whose Monet?)

Part B (15 points total)

Please read the following passage (found on page 215 of Whose Monet?) and respond to ALL of the following short-answer questions. Your ENTIRE answer for this Part (including all numbered questions below) must be 400 words or less. Please provide a word count at the end of Part B.

“It turned out that the DeWeerth panel’s prediction was wrong. However, by bringing this suit, DeWeerth exposed herself to the possibility that her adversaries would argue for a change in the applicable rules of law. By filing her state law claim in a federal forum, she knew that any open question of state law would be decided by a federal as opposed to a New York state court. The subsequent outcome of the Guggenheim decision does not impugn the integrity of the DeWeerth decision or the fairness of the process that was accorded DeWeerth.”

1. Which court makes this statement? 2. What has this court been asked to do? 3. Is the court correct to say that the earlier DeWeerth panel was “wrong”? If yes,

explain why. If no, explain why not. If yes and no, explain both why and why not.

THIS EXAM CONSISTS OF FOUR (4) PAGES (INCLUDING INSTRUCTIONS)

Page 3 of 4

4. What does the court mean when it says that DeWeerth, by filing her claim in federal court, “exposed herself to the possibility that her adversaries would argue for a change in the applicable rules of law”? Would this not have been the case if DeWeerth had filed in state court? Why does this court bother saying this?

5. Please comment generally on the last sentence of this passage: “The subsequent outcome of the Guggenheim decision does not impugn the integrity of the DeWeerth decision or the fairness of the process that was accorded DeWeerth.”

Part C (20 points total)

Please read the following passage (found on page 201 of Whose Monet?) and respond to ALL of the following short-answer questions. Your ENTIRE answer for this Part (including all numbered questions below) must be 400 words or less. Please provide a word count at the end of Part C.

“The question of what constitutes unreasonable delay in making a demand that starts the statute of limitations depends upon the circumstances of the case. . . . When the action is for the return of stolen property, one of the key circumstances is the nature and value of the property at issue. . . . It has been recognized that when the property is valuable art, the search efforts that may reasonably be expected of an owner may be more exacting than where the property is of a different kind or of a lesser value.”

1. Why would the court say that a finding of reasonable delay depends “upon the circumstances of the case”? What does the statement that a finding of reasonable delay depends “upon the circumstances of the case” have to do with the concept of “common law” reasoning?

2. Imagine that, a month after this decision, Joe sues Sally in New York two weeks after she refused his demand for the return of a vintage car that was stolen from Joe in New York 15 years ago. Sally paid $80,000 for the automobile last year. Joe made only a few efforts to find the car when it went missing but recently saw it in Sally’s driveway. In litigation, Sally argues that the lawsuit is time-barred under New York’s statute of limitations. What is the strongest argument for Sally? What is the strongest argument for Joe?

3. In the above hypothetical about the automobile, which party—Joe or Sally—will rely on the Second Circuit’s holding in DeWeerth v. Baldinger (the decision from which the quote at the beginning of this section appears)? How will that party invoke the holding? And which party—Joe or Sally—will rely on dicta from that decision? How will that party invoke dicta?

[EXAM CONTINUES ON NEXT PAGE]

THIS EXAM CONSISTS OF FOUR (4) PAGES (INCLUDING INSTRUCTIONS)

Page 4 of 4

Part D (25 points total)

Please respond to BOTH of the following short-answer questions. You must answer EACH numbered question below (1 and 2) in 400 words or less. Be sure to provide a word count at the end of each numbered answer.

1. On page 74 of Whose Monet?, Judge Broderick states the following: “In resolving this issue, I am guided by Kunstsammlungen Zu Weimar v. Elicofon . . . a case upon which both parties rely” (emphasis added). Why do both the plaintiff and defendant in DeWeerth v. Baldinger relied on the Elicofon case? Please be as detailed as possible in answering this question, explaining the aspect(s) of the Elicofon case that supported each side.

2. Please provide three reasons why we have administrative agencies in the United States. Then, identify two advantages, and two disadvantages, of administrative agencies. Finally, provide an assessment of whether, in your view, administrative agencies are a positive good for our legal system.

Part E (30 points total)

Please respond to ALL of the questions below. Your ENTIRE answer for this Part (including all numbered questions 1, 2, and 3 below) must be 750 words or less. Please provide a word count at the end of Part E.

Through this course, we have considered, and discussed, the benefits of both flexibility and stability to the law. While we value both flexibility and stability, the two are in tension.

1. Please provide two examples of decisions or cases we read in this course in which a court ruled in ways that promoted the stability or continuity of law. Identify the relevant cases and provide support for your argument. Make sure that you articulate why and how the cases you are referring to support the idea of legal stability or continuity.

2. Please provide two examples of decisions or cases we read in this course in which a court ruled in ways that promoted the flexibility or malleability of law. Identify the relevant cases and provide support for your argument. Make sure that you articulate why and how the cases you are referring to support the idea of flexibility or malleability.

3. Please provide an assessment of the positives and negatives of both stability and flexibility. Feel free to draw on any of the materials from this course that you like.