Poor Mrs. Palsgraph again. . .

Poor Mrs. Palsgraph was back on the scene again today, this time in torts class. We already looked at this case when we studied causation in criminal and I have a previous post dedicated to my thoughts on the case, but I wanted to revisit this peculiar and classic case. (see http://law-new-view.blogspot.com/2005/10/strait-talk.html) Our torts Proffessor added some additional information outside of the case to aid us in our understanding of the case. We looked at the New York Times article from the day after the accident at the train station, where we learn that the package carried by the "itialian" men trying to jump on the train was quite large as opposed to how it is described by Cardozo in the majority opinion. We also learned from the article that on the day the accident occured the train station was packed with pleasures seekers heading to the beach, many of them celebrating an Italian holidy. It explains that the packages was fireworks and that it was common for people to create personal pyrotechnic displays at the beach during the festivities (thus making it quite forseeable that the package contained explosives)

heading into the steep finish

We have one month to go. I must learn to pace myself, because my head already aches; I am weary and the few breaks I make are to cook dinner and to take George the pug on a walk (http://www.puggerpics.blogspot.com) . I spent friday outlining property and saturday outlining criminal and Sunday writing my legal writing memo. We are heading into the steep finish and this is the time to be able to work effectively and still maintain a bit of perspectived, and so my perspective this week comes from a moment of fun from my studies (this ought to show you what I see as fun). As I was writing my memo, I was in the section where I was making the arguments for the defendant in a case of "improper seizure" where the defendant was hoping to surpress evidence based on a violation of his privacy and the prosecution was arguing that the the seizure was warranted based on police officer safety concerns. The details are not important. What was important was that as I was arguing for the defendant, even though I had initially seen the case as clearly weighing heavily in favor for the prosecution, I began to see the validity of the defendants side, or if not validity, I began to see the possible arguments that could be made. Not only have I heard this is what one is supposed to do, but it added a new debth to the arguments that I really wanted to make because I was anticipating the possible holes and defenses that I would have to make. (these entry really sounds like an "arn't I so smart" entry, but after 12 hours of work on a project, you take whatever pleasure you can get out of this process of learning. This also makes me think that I have been on the computer to much today and I am going to keep this one short, so here is the quote for the week again by Learned Hand:

"To be pulled in many opposite ways at once results negatively, but it is not the same thing as to feel no impulse at all. An ass between two bales of hay is said to have died of starvation, but not from indifference." P. 10, Class-Day Oration, (1893).

final's talk aready

Well, you can feel the ambient stress in the law school beginning to reach a heightened level. During my work study shift at the law library I see which study aids are checked out with the most popularity; this weekends favorites were civil procedure and property. This is easy to explain; we had our first civil procedure review on Friday where we covered the material up through Rule 12 of the Federal Rules. I think I finally found a mental picture for understanding civil procedure. It reminds me of the Chinese game of Go. In Go there are only black stones and white stones and a gridded board. Each player takes turns putting down one stone at a time, and in the process builds walls that trap, attack, or mislead the opponent. In the adversarial system we have the plaintiff, the white stones, and the defendant, the black stones and at its most basic level, there is nothing but these two parties. But neither Go or Law is a simple system. The various permutations that arise from the basic back and forth between white and black are infinite. The rules in Go are much less complicated, but the strategy is so complicated, the Japanese say it takes a whole lifetime to master the Game. Again, the legal system is a life long evolution of learning, but I have to take this metaphor to an end, because the legal system is more than a game. We learn the rules not just to be able to to move through the system efficiently and properly but in order to most help our clients. However, in the process of learning, it is helping me to think of it like a game, and then delving into the Rules is like loosing oneself in a long Game of Go. I don't really care if this is a good metaphor, but it does seem to help me get motivated to get through the next 6 weeks and through finals without loosing sight of reality.
Now the most popular study guides this weekend were definitely was property. The "rule against perpetuities is really making people nuts. This one rule developed in order to prevent vesting property to far into the future, a rule that is not really used any more today because people pass on their property in trusts or because the amount of years in the future that is allowed by law is now extended beyond the common law 21 years, is really driving people mad. Everyone thought property was going to be an easy class back when we were learning adverse possession, but now we have to pay close attention to "O to A for life, then to B but if B has no children at A's death, then to the children of C" Yes I must admit, learning this stuff requires a level of attentiveness to detail than is not normally required of even law students.

Well, that's the wrap up. In a new feature of the blog entries, I will finish each entry with a quote from a figure from the history of the legal profession. This past week it seams like I have been coming across a lot of cases by Judge Learned Hand in several different classes and if the name alone doesn't make you think that this man was born to be a judge, then some of his quotes will

"The mid-day sun is too much for most eyes; one is dazzled even with its reflection. Be careful that too broad and high an aim does not paralyze your effort and clog your springs of action"P.9, Class-Day Oration (1893).

Sunday night

A look back and a look forward. We have come to a cross road in the semester. Adverse possession behind us and the rule against perpituities ahead of us. Each class builds on the previous material and the Professors aren't slowing down. We learn a new theory of obligation in contracts each day of class, the latest being tort duties that can arise from a contractural relationship. Simply put, torts and contracts offer two different legal relationships and two different liabilities, the former created by reasonable standards of human behavior, the breach of which is awarded monotarily to the damaged party in order to make them whole again from the damage caused by the breach. Contracts create legal rights and duties, and when these are breached, the remdy is to either fulfill the terms of the contract had it not been breached or in some cases, such as promissory estoppel, where it is shown that the damaged party relied on a promise that was never fulfilled, the damaged party is compensated to the point they were before a contract was made. Tort duties arising from contractural relationships, on the other hand, and legal obligations that already exist as a tort, but only come in this circumstance, are brought about in the context of a contractural relationship. The most commonly understood of these relatinships is medical malpractice. The reasonable standard that is expected from a professional is higher than for the general public, but this higher standard for the tort responsibility is only activated when a doctor is put into his professional role through a contract. Thus you may have a situation where a doctor is "contracted" to operate on a patient, and in doing so he comes drunk and removes your heart instead of your a mole on your back (but he gets it back in you before you die, but now you can't walk up the stairs without being out of breath and you can't work) Clearly the doctor is in breach of his contract by not performing the surgical work the patient contracted him for, but in addition, he is held liable for a negligence tort which arises from a standard duty of professional professional care. This being so, the patient has available the remedy of punitive damages arising from "pain and suffering," a remedy that is not available through contracts; plus, the possible return from the suite is much greater.

This anecdote is here for no other reason except that I find this material interesting and it is indicitive of the melding of topics which is taking place during this point in the semester. The concepts from one class are not only building on what we learn in that class, but they extend to all of the classes.

That is the wrap up for this week. I will return next Sunday to update you on another small snip-it of life and thoughts from the basement of law school life.

Weekend Vagabond

Here in Seattle we have had a more than pleasant Saturday, with the sun shining, the leaves burning reds and oranges, and the temperatures a perfect balance of warmth and coolness that describes the peace before the harshness of winter starts. This weather has brought all of the vagabonds back out to Capitol Hill for the day. It is not unusual to see vagabonds hanging out in groups in parks and in front of the library on Capitol Hill, but with the cooler weather coming there have been significantly fewer on the sidewalks. Today however, Broadway was like an ungroomed ski run, full of big bumps of patchily-clad change chumps carved into their position by the passing crowds. This makes me wonder if they all just came out because of the nice weather. I mean, where were they all last weekend when it was raining? In their apartments? In another city? Do they come out on nice October Saturdays like the kite flyers and bike riders, the lovers in the park and the Harley Riders? Are they weekend vagabonds?

I took the day off from law studies. I had a bit of a nervous breakdown yesterday, feeling overwhelmed by both school and life. I was feeling shortness of breath, I couldn't sit still, I couldn't concentrate, and I realized that the stress had gotten to me. I could no longer function properly and I had placed to many priorities above sound mental, spiritual, and physical health. In short, I had sacrificed my humanity to intellectuality and mundanities of modern life like worrying obsessively about whether my financial aid funds will last me until the next installment in January.

With my day off, I went with my girlfriend (also a one-L {another story for another day}) another law student and her husband to Snoqualmie Falls. We walked through the park and down to the base of the falls where the mist covered our faces and clothes in a thin layer of moisture, then we ate moderately good Mexican food and drove back. What a good feeling to be in nature, to see a horizen in the way the hills stretched out in peaks and vallys. Just being in the forest did much to put my mind back into place to face the next two months of insanity. I will get back into school tonight, but I will do so with a new sense of calm. Who knows how long this will last? I must remember to do something like this everyweek.

On a final note, I think this kind of blog, while related to law school and relevant to tracking my evolution as a lawyer, is not really what I imagined "Law-new-view" to be used for and should really be the subject of another blog. In addition, I have just come into possession of a digital camera and would like to post some of my pictures from my life on a blog. Thus I will be expanding into another blog to which I will post more personal thoughts and will keep this blog as a medium for discussing the intellectual problems that I am facing in my classes, such as the previous blog "Strait talk" Since no one but me reads this blog--at least not yet--I am saying this mostly for my own benefit, in hopes that in having said it and written it I will actually carry it off. So, keep posted for the link (there may even be some pictures of George--no not him! George the Pug.

Strait Talk

This entry is dedicated to Mrs. Palsgraf, injured on the train station platform by a fallen scale (a giant scale). And how did the scale fall? (I am not talking about the scale of justice which did not fall on Mrs. Palsgraf but the giant train scale used to measure cargo loads) The scale fell as a result of an explosion, from a package that fell from the arms of a known anarchist as he tried, with the help of a train company employee, to jump on the back of a moving train that was departing from the station.

Question 1: But for the action of the anarchist (A) would the bomb have exploded?

In all probability no. And if it did, would it have been an accident and not through this seemingly reckless act? Could A be held responsible for simply being in public with an explosive divise? Can any amount of damages caused by the device be pulled in under his umbrella of responsibility?

Question 2: Was the result, the pain to poor Mrs. Palsgraf reasonably foreseeable? Was there anywhere in A's imagination as he prepared for his day that the scale would fall in such a way? I can't imagine how he could have foreseen exactly such a censuses, but could he have imagined that SOMETHING might have happened as a result of his prior actions?

Question 3: Intervening Cause: how much time or space, or distance must intervene before A is no longer responsible. Without asking about the responsibility of the Train Company personal or the possibility of negligence in the scale falling over, is it simply to remote of a consequense for A to be held responsible. We would have a different answer if he had say thrown the explosive divise onto the platform from moving train with the intent to harm people or property. In this era, we would see this as a terrorist act and would interpret his actions in that light. However here we do not interpret it in that light. This whole train of though has just occured to me (no pun intented)

I quote from the majority opinion:

"Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one's bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some"

At what point to we as people have a protected right to be free of fear from terror? How far does the actual results of a terrorist attack strech so that at the outer layers, the harm is not physical but in the nature of an offense, an offense to our sense of security. If Palsgraf happened today at an airport, would there have been a different result. If so, how much has our thinking about justice been effected by the notion of terrorism? Could it be that it has become a reference bubble, a relational element to our thinking, that permiates the entirety of our culture? Is this its, terrorisms, desired effect as a weapon? To threaten us while at the same time hiding from us?

Interesting vein. I might have to dig further...

coming together: thinking like a lawyer

In doing my contract reading tonight, we are looking at third party beneficiaries and I used the term life estate (meaning one who is given possession for their life of a property) in describing the trustee in a trust relationship, and it struck me that the concepts from one class were merging with the ideas of another. It also so happens that this week in civil procedure we are covering third party claims (not as related as the contract and property class, but having to do with multiple parties). As this connection occurred I realized that I am beginning to think like a lawyer, that oft stated goal of law professors as they try to describe what they are doing (besides torturing us with the Socratic method--which they also claim is helping us think like lawyers) Thinking like a lawyer is not thinking about property, then thinking about contracts, then thinking about civil procedure, but rather it is one system with lots of buckets the pour in and out of each other filling and emptying and refilling in differing combinations. Each of the classes now aid in gaining a picture of the organic whole and cannot be studied on their own, but like lights in theatrical lighting, you create white light by combining a pink, a blue, and possibly a yellow from above shining from different sources but ultimately illuminating the same stage.
A will to convey property is a contract, but in the issue we are looking at today, a piece of the property not conveyed in the will is passed orally to the husband from dying wife as life estate, the worth of which is to be paid to the niece. Because this is not in the will, we have to ask ourselves questions that come from both property and contracts. What rights does the niece have if there was not will? Any? Or from contracts, does she have a claim under Promissory estoppel, or maybe unjust enrichment of the husband at her expense (she couldn't use that money as she might have been able to had he fulfilled promise where he had the assets to his advantage.
I cannot say that these concepts have become clear in my mind, and if there are any lawyers out there who come across this blog they will agree, but the fact that I am beginning to see how they connect and sythasize as a whole way of thinking is exciting to me and the point of this entry.

I will leave the exact clarification of the ideas to my briefs

With the appointment of Harriet Meyer to supreme court, we are again unsure as to what we are going to get. With little writing by her and little known, we have to infer from the information we have. She is supported by conservative groups and she once said that the president one of the most brilliant men she ever met. Could she really have meant that. Either she is as much of an idiot as he is or she is a total kiss-ass, croney, sheep who may be a woman but she has attatched herself to an ideological wave and she is just dragged along with it.
There is little left to do but to keep up with this story and to continue with my studies. After the Roberts nomination process, I have learned that at this point there is little than anyone will do to deny the president from nominating whoever he wants (people don't want to be seen by their constituants as creating resistance in Washington, as being an outsider. If there is any hope of effecting change in the world according to views that I hold as valuable, it must start with my own studies of the system so that I will be best able to move through and understand the system. The depth of my own understanding of the law will be my weapon and my map as we move into a new era of the court, the Roberts court. With this, I am off to civil procedure.

up and down

This week has been one of ups and downs. I felt like an idiot early on, when, while reading my casebook, I was reading the same line over and over without seeming to have comprehended what was going on. Then I would go to class, and although I would see people called on and unable to answer, my own mind felt incapable of comprehending the vastness of legal knowledge. Let me take one area in particular. The difference between nuisance and trespass. At first it is nothing but a blur as I read the various cases that rule one way or the other in relation to nuisance or trespass, and it is these details which I must learn. I have never been much of a detail person, but now I am am required to be so. Trespass is an actual physical invasion of one's land. Nuisance, to the minimum of what I can discover is using one's own land in such a way as to create an interference with how our neighbor enjoys and uses his own land, even when you do not "physically cross the boundary line" Then there are several more "nano" questions you must ask. (1) what is it to cross the boundary. Must we be able to see the object that crosses, a cannonball, or can it be on a molecular level. At what point does the molecular accumulation of objects amass enough substance to create a trespass? (2) lets say you have a nuisance as defined above, is the activity of the defendant, he who is causing the nuisance, of greater social benefit than the damage done to the plaintiff, the one who has been nuisanced.

I don't want to get into to many more "legal" details. I would rather wax existential and pose a different question. What is the relation between the laziness or unwillingness to take the time to pay attention and be considerate to details and the ego? Is not the mind still based in infantile desires focused on generalities and does not focusing on details require a certain sacrificing of the self? This is the opposite of the adage "the devil is in the details" but it seems to me that the devil also easily masks himself in the cloth of generalities which allow yourself to slide through without commitment, without sacrificing the overall view to delve into the specific where one is not sure if one will come to a dead end. This is the opposite of the mountain top. Entering law school means having arrived at the top and instead of staying there going down the mountain in the opposite direction from whence you came, to risk going into the "details" of the forest and learning to live off of the minutia that lies close to the earth, the hidden berries, the bramblebush (the name of this book recommended to our entire class on the first day by a panel of lawyers who spoke to us-what could that metaphor mean, especially since I have arrived at it on my own. I throw out the devil and go to the details and search from my own divinity in mastering the craft of details, legal details. . .

Phew

It really wasn't that bad. No I did not bomb or even come close to embarrassing myself. How could I after I obsessively prepared for class. However, this doesn't mean that I got everything right. As a matter of fact there were several questions that I did not get right, but for the most part I answered clearly and correctly.
This has taught me a few good lessons (1)how to prepare for class. I came so prepared to class that I really did get more out of my reading. If I prepared for class every day as if I would have to speak on the material, I will have no problem in this class or any other (2) it is OK to make a few mistakes so long as you show that you are actively thinking, that if your reasoning is pointed out to be false, you can correct it in the moment (such a correction cannot be found in your notes, in fact your notes will get you in trouble since they are reflections of how far you came with your own reasoning (3) speak up, sit up, pay attention, relax, take it both more and less seriously than you think you should.
I am sure I am not done. He will probably stick with me for another day or two, just to keep the momentum rolling, but it should be easier (not that it really was that hard with the preparations I made.

Mr. Kaman, come on down!

My number is called, its my time to step into the batters box, I am the next contestant in "Federal Rules of Civil Procedure" Whatever metaphors you wish to use, they all describe the nervous excitement I have this morning knowing that it is "my day" in civil procedure, knowing that I will be one of 3 or 4 people who will be called on to answer questions to day, to be led out onto the plank of uncertainty and ambiguity where even attention to detail is not enough without common sense in this archaic exercise developed to teach law students to think like lawyers. I can't say that I am dreading it. I actually can't wait. Already four weeks have passed in anticipation and there were many days where I would have had no problem answering the questions (although there were some days I was glad it wasn't me), but since many of the people who make it to law school are the ones who have thus far in their lives succeeded at school and were those students who always seemed to have something intelligent to say in class, it is hard for us now to just sit by and watch a teacher try to extract an answer out of a student who is walking further out on the plank over the ocean of one-L despair. We want to jump in and show that we have the answer, or at least move the class discussion along, but this is counter-productive to the very purpose of law school: teaching each student how to be good lawyers. This is trade school now. We are not all just getting our general education to the degree to which we put effort into it. We paid a lot of money to receive specific training and each of us stands alone and equal in this desire. So today is my day with Professor R. a day I will probably remember as I look back on my "lawschool years"

Week 4

This is the week where my brain overflowed, where the combined stress of starting law school, moving to a new city, owing a puppy and living with my girlfriend who is also a one-l caused a break down. Don't worry, I wasn't crying in class or snorting coke late at night or beating the puppy, but rather at several points reached such utter frustration that I wanted to walk away and never come back. I lost sight of what I wanted to do here. How could this happen. What follows is a short explanation written in outline form, just like everything else in law:
1. Too much information without the right folders to put it in: I had no previous notions for how I should be organizing the information that I am receiving. All of the cases and subjects blurred together and I didn't know what compartment to put them in in my mind. Mens rea is criminal, but intent is torts, but intent is one of the possible elements of mens rea and all crimes are torts, but not all torts are crimes and when does an assault become a battery anyway?
2. Books, outlines, and citations: Lets just say that the way law books are structured is unlike any other book I have looked at. Cases followed by notes broken down into numbers and letters containing sections of other cases and speak to the same issue or mention the same issue, or refute that issue, and there is nothing in the book to tell you what is more important than the next. I have seen teachers rush through a case with the most cursory discussion and spend the rest of the class discussing a case in the footnotes. I see where learning the law is a combination of many different sources and it makes me wonder why Derrida wasn't a lawyer, but it has the same disorienting effect I spoke about in the previous point.

Time for a funny story, hidden here in the middle of the text. I have been going along in Civil Procedure, more intimidated than I probably will admit, waiting for my turn to be called on and wondering why all of the reading assignments seem to end in the middle of cases. The answer didn't become clear until this week, when, as the teacher became dangerously close to calling my name as he moves alphabetically through the roster, he asks a student to comment on Sorema and discuss the procedural implications. Sorema, I don't remember that case. I read Leatherman last night. Frantically searching through case book. Did I miss something? Did I read the wrong section. Sorema isn't here, wait a second, the students behind me were talking about a case I hadn't heard of this morning in the hall. Wait a second, could it be? I turn around and look at another students book. Fourth Edition. I look at mine. Third Edition. Fuck, Fuck. Wrong Book. I ordered it from Amazon.com before the semester based on the information the law school sent out. I got it for cheap because the cover had been put on upside down. I was proud of that find, but what the fuck, I have to get a new one, another $100 bucks down the drain, as I sweat and hope my name isn't called. And it isn't, and I get the new book, and I calm down, and realize. . .

well, this may not be the smoothest start to my career as a lawyer, but I want to be here. Take a deep breath, get out your highlighting and lets work through this case one more time and see where we can get it to fit in our mind.

mental release

Details

Being in law school requires an attention to detail not required in many other areas of life. When speaking, reading, or writing "legally" each word carries weight and must be understood on its own if communication is to take place. No more lazy language, no more getting by with "that's enough to understand what I mean." Well that is not enough any more, now I must learn to slow down and take each word separately and then together, to make sure I understand each word on its own and in the context it is being used.

This reminds me of learning German which took a long time, a lot of practice, and many mistakes. But the point of the comparison I want to make right now is that when I first moved to Germany, I was limited in what I could express and communicate. My collective knowledge, previously stored in English, could not be expressed, so even if I knew I wanted to buy that sausage at the deli, I couldn't because I didn't have the language to express this desire. So as I learn the language of the law to say what I want to say. Without the proper language I will either sound like a bumbling fool at the deli counter, or say the wrong thing and get some weird geletanized loaf with floating pig parts rather than the sausage I wanted.

A Mexican friend of mine who has lived in the United States for 20 years tells all of the new immigrants that he knows two pieces of advise: learn English as quickly as you can and don't drive. Well I think I will take his advise in learning the law: learn the language of law as quickly as you can and don't do anything that can get you in trouble with the law!

I uploaded an etching of M.C. Esher as an example of focus on detail, and even though the details are mind-boggling when you dive in and try to following them, I find a sense of calm, of wonder, and of mental release

Supreme Court Justices

What an interesting time to be in law school. In the first two weeks, there are two openings on the bench of the supreme court. This is an issue that I feel wholly unqualified to discuss compared to the many other materials available, but how does this seem to effect me and what is the perspective of the beginning law student?

The outcome of these appointments are likely to set the tone of the courts for much of the duration of my career. Are the courts going to change positions on many of the key issues that are highly disputed cultural issues like abortion, prayer in schools, terrorism? How do I maintain my own beliefs while at the same time respect the system of law to which I will become a laborer. How am I connected to John Roberts now? Are we colleges in a sense, but does not the justice system encompass all citizens as an extending of our interrelated society bonds?

thoughts at the end of a long day of studying!

Very First Post

Having survived my first two weeks of law school shouldn't go to my head and make me think I am now an authority on anything. As a matter of fact, it has shown me more than anything that I know almost nothing about law, and probably not much more about life.

And with this said, I would like to share this journey into "thinking like a lawyer" as my prof.s say with this blog and with you, whowever you are. I am as new to blogging as I am to lawyering, but armed with a new computer, a high-speed wireless connection, and the beginnings of a career based largely on the written word, I embark on this journey.

Welcome self. Welcome