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.