Organic Labeling I:
I am going to be making a few posts in the next couple of days on an area of law that is current and that I have been thinking about. If I find enough information, I might turn this research into a short article for the environmental law journal.
During the final months of last year, there was some important litigation relating to organic labeling. Since cooking is a hobby of mine and I like to support local and organic farmers / ranchers / dairies this legislation and related suits caught my attention. The major contention by organic farmers is with the corruption of the organic label by allowing into products labeled “organic” traces of non-organic products that are either not available on the market or are too costly for food manufacturers in the business of producing processed food. This legislation is the result of lobbying on behalf of large agri-business and particularly offends the small organic farmers whose business is based largely on the public’s trust of the authority of the “organic” label. The statute reads in relevant parts as follows:
7 § 205.606 Nonorganically produced agricultural products allowed as ingredients in or on processed products labeled as "organic" or "made with organic (specified ingredients or food group(s))."
The following nonorganically produced agricultural products may be used as ingredients in or on processed products labeled as "organic" or "made with organic (specified ingredients or food group(s))" only in accordance with any restrictions specified in this section.Any nonorganically produced agricultural product may be used in accordance with the restrictions specified in this section and when the product is not commercially available in organic form.(a) Cornstarch (native)(b) Gums--water extracted only (arabic, guar, locust bean, carob bean)(c) Kelp--for use only as a thickener and dietary supplement(d) Lecithin--unbleached(e) Pectin (high-methoxy)
[FN1] Includes matters within the responsibility of the Federal Grain Inspection Service.
SOURCE: 65 FR 80637, Dec. 21, 2000; 66 FR 15619, March 20, 2001, unless otherwise noted.AUTHORITY: 7 U.S.C. 6501-6522.
This statute is taken up in a case by an organic blueberry farmer from Maine in Arthur Harvey, Plaintiff v. Mike Johanns, which traveled up the court of appeals.
Monday, February 27, 2006
no space, no post
Monday morning is the most difficult time to find a seat at the library. I found the last desk on the third floor. Everyone is back at it in full force.
I know I do not have a new post for you today. I guess it is just that time of the semester when things start to get full, or bloated, and since I get to be supreme court on my blog and decide the law, I am going to allow that to be ok. I will keep working on a larger post, but in the mean time I will keep everyone updated with some shorter posts.
I was up in class for civ. pro. today. I got off to a bad start and was not able to answer a question abour multiple plaintiffs in a diversity action and whether their joinder under rule 20 is allowed under 28 U.S.C. 1367 supplemental jurisdiction statute when one of the parties does not satisfy the requisite amount in controversey. Those rules have trickly language and it is hard to think on your toes when the professor is prodding you for the answer and the rest of the class is just glad it isn't them (unless they know the answer, which I know some, like my desk partner :) did). Oh well, you can't win them all. I think I made up for it when I answered with some grace his questions about pendant claims and parties, the answers to which I was mostly able to put together from the diagrams that he had drawn on the board. So see, it is possible to think on your feet, but only after your feet are on the ground
I know I do not have a new post for you today. I guess it is just that time of the semester when things start to get full, or bloated, and since I get to be supreme court on my blog and decide the law, I am going to allow that to be ok. I will keep working on a larger post, but in the mean time I will keep everyone updated with some shorter posts.
I was up in class for civ. pro. today. I got off to a bad start and was not able to answer a question abour multiple plaintiffs in a diversity action and whether their joinder under rule 20 is allowed under 28 U.S.C. 1367 supplemental jurisdiction statute when one of the parties does not satisfy the requisite amount in controversey. Those rules have trickly language and it is hard to think on your toes when the professor is prodding you for the answer and the rest of the class is just glad it isn't them (unless they know the answer, which I know some, like my desk partner :) did). Oh well, you can't win them all. I think I made up for it when I answered with some grace his questions about pendant claims and parties, the answers to which I was mostly able to put together from the diagrams that he had drawn on the board. So see, it is possible to think on your feet, but only after your feet are on the ground
Wednesday, February 22, 2006
where is the hump to get over
I have nothing to really base this finding on besides my own observations (i.e. a well funded study with a control group and a nationwide survey,) but I think this is the hardest time of the year. We all came into the first year with a lot of enthusiasm, which basically carried us through our winter finals. However, now I hear lots of people either talking about how they just are not that into the law right now or they are just excited about their summer jobs or some other goal in the future. In addition to being "mid-winter" and "mid-semester," we have been in the same classes with the same faces for almost six months, and at this point we are all in a bit of a rut. I have not met to many new people lately, and I can really only speak for myself, but the studies feel like a bit of a rut right now. Maybe this is like the day after X-mas, in that last week was so full and exciting and this week is just back to the grind of reading cases and making briefs and doing legal research, but this is the hardest time of the semester for me so far and I am in some major need of inspiration. . .
lost grant and lost restatement
What a touching moment in the middle of Property when our absent minded professor was looking for his copy of the Restatement of Property in order to quote directly from it, and he uttered the following words: "Where are you Restatement? Did I mislay you?"
I don't think the whole class could here him. This was a gem of commentary from inside the scattered recesses of his mind that is only available for those of us in the first two rows.
I don't think the whole class could here him. This was a gem of commentary from inside the scattered recesses of his mind that is only available for those of us in the first two rows.
Monday, February 20, 2006
Moot Court Wrap Up
I have somewhat of a shorter entry this week and it is coming a bit later (it is a three-day weekend). I hope to bring back some deeper analysis next week, but on re-reading this, I think there is some worth in these late at night ramblings.
I. Case of the Week:
As I think back to this week, no case stands out as particularly interesting. I know I said I was going to talk about easements, but for some reason I just can’t get excited about disputes between parties pertaining to who has a right to the underground sewer pipes. In the words of our property Professor, “when you buy a house with plumbing, you believe that the effluent (this was his word and I have not yet figured out if this is the proper legal term or just how he describes the contents of sewers) must be able to go somewhere,” but just like the situation in that case, my Property (reading) is backed up and unknowingly filling the basement of my mind. In case you have not figured it out by reading these ramblings, let this be a reminder that I am full of s*#t. The reason for lack of preparedness (I still at least read all of the cases, unlike some of the students in our section [see last weeks post on passing in class]) was because I was working on our case for the moot court competition. Between getting all dressed up in my suit and standing in front of a panel of “mock judges” and a altogether independent presentation in our legal writing class called “senior partner meetings,” where a group of us associates in training presented legal research to the “senior partner,” I almost felt like a lawyer. My partner in the moot court competition even gave me a yellow legal pad before we had our day in court, but let us not get ahead of ourselves. Before my ego gets completely out of control, I must remember that my legal understanding is still trailing behind the costume, and there is still a lot to learn before anyone should trust me with their legal affairs, but that is what this is all about—this law school experience that still feels so new—and this was certainly a week were I felt first how far I have come along and secondly, how far I still have to go.
First, how far I have come: in preparing for moot court, I wrote an opening statement, I prepared a witness, I wrote questions for direct, I prepared questions for cross, and then I gave my open, directed my witness, crossed the opposing witness and objected to the other sides questions. I had no idea what I was doing. My understanding of litigation is entirely based on David Kelly and Law and Order, but somehow the “thinking like a lawyer” that our professors talked about so much at the beginning of the year has begun to pervade my thoughts, because in the midst of this exercise (completely hypothetical) I really began to believe our arguments. I believed in our case whole heartedly, and I felt what it might be like to make arguments for your client because you believe that they have rights.
Second, how far I must go: this is a summation of the advice given to me from the panel of judges: Look at the judges. It is important to make eye contact. This goes together with not using your notes too much. I used my notes as a crutch and know that I could have directed my client without them, but thus far my law experience has been all on paper, so it was difficult to stand up and intuitively react to a “legal situation.” Next, I told a story in my opening argument, but I also needed to outline the law that we were going to use and ask the judges to apply to the facts we were going to show in our “story.” There was a lot more, but one of the judges gave the advice that we shouldn’t think too much about this stuff. It was our first opportunity to get involved with litigation and we will have a lot of time to build on the experience.
II. At Lawge
Since I have been pretty involved in the moot court this week, I really have not kept up with the legal word outside of law school, but if you really need to see how the law applies to our everyday life, just go to any newspaper website and type in the words law, legal, court, etc. and you will get some story. I hate to disappoint my readers, all 3 of you, but this is going to be a short post this week. Don’t worry though. It is getting cloudy in Seattle again so it will be a lot easier to sit at the computer and write blog posts than it was in the last week of clear skies and sun.
III. Gossip Column
I have to say I was pretty impressed with the attitude of those fellow moot court participants. Everyone took it seriously, but from what I saw no one took it so seriously that they were not cordial with the other competitors. Even though there were six winners from 40, most of us were there just to improve our skills at lawyering. And for those who won, well, there were not real surprises. There are some people whose charisma and seemingly perpetual preparedness seem to just put them one step ahead of the curve and if the rest of use can put our egos aside for a minute, we can enjoy studying with these colleges. There are a few students, not the brightest, who seem unable to do this. They relate to this whole experience as a competition with the rest of the students and not as a collaborative learning experience. I understand that we have an “adversarial system,” but outside of the courtroom we are all trying to become the best lawyers we can be, or at least that is the ideal that I strive for. It is for this reason that I do not tell my grade to anyone, and I do not ask for anyone’s grades. I also try and compliment those students who do well in class, and for those who bomb, well, I will make fun of their ignorance on this blog.
IV. Judicial quote
I think this quote accurately describes how I felt about my mock court experience:
"I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned--as I thought, logical, coherent, complete. Second was the one actually presented--interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night."
-Robert H. Jackson, Advocacy Before the Supreme Court (1951)
I. Case of the Week:
As I think back to this week, no case stands out as particularly interesting. I know I said I was going to talk about easements, but for some reason I just can’t get excited about disputes between parties pertaining to who has a right to the underground sewer pipes. In the words of our property Professor, “when you buy a house with plumbing, you believe that the effluent (this was his word and I have not yet figured out if this is the proper legal term or just how he describes the contents of sewers) must be able to go somewhere,” but just like the situation in that case, my Property (reading) is backed up and unknowingly filling the basement of my mind. In case you have not figured it out by reading these ramblings, let this be a reminder that I am full of s*#t. The reason for lack of preparedness (I still at least read all of the cases, unlike some of the students in our section [see last weeks post on passing in class]) was because I was working on our case for the moot court competition. Between getting all dressed up in my suit and standing in front of a panel of “mock judges” and a altogether independent presentation in our legal writing class called “senior partner meetings,” where a group of us associates in training presented legal research to the “senior partner,” I almost felt like a lawyer. My partner in the moot court competition even gave me a yellow legal pad before we had our day in court, but let us not get ahead of ourselves. Before my ego gets completely out of control, I must remember that my legal understanding is still trailing behind the costume, and there is still a lot to learn before anyone should trust me with their legal affairs, but that is what this is all about—this law school experience that still feels so new—and this was certainly a week were I felt first how far I have come along and secondly, how far I still have to go.
First, how far I have come: in preparing for moot court, I wrote an opening statement, I prepared a witness, I wrote questions for direct, I prepared questions for cross, and then I gave my open, directed my witness, crossed the opposing witness and objected to the other sides questions. I had no idea what I was doing. My understanding of litigation is entirely based on David Kelly and Law and Order, but somehow the “thinking like a lawyer” that our professors talked about so much at the beginning of the year has begun to pervade my thoughts, because in the midst of this exercise (completely hypothetical) I really began to believe our arguments. I believed in our case whole heartedly, and I felt what it might be like to make arguments for your client because you believe that they have rights.
Second, how far I must go: this is a summation of the advice given to me from the panel of judges: Look at the judges. It is important to make eye contact. This goes together with not using your notes too much. I used my notes as a crutch and know that I could have directed my client without them, but thus far my law experience has been all on paper, so it was difficult to stand up and intuitively react to a “legal situation.” Next, I told a story in my opening argument, but I also needed to outline the law that we were going to use and ask the judges to apply to the facts we were going to show in our “story.” There was a lot more, but one of the judges gave the advice that we shouldn’t think too much about this stuff. It was our first opportunity to get involved with litigation and we will have a lot of time to build on the experience.
II. At Lawge
Since I have been pretty involved in the moot court this week, I really have not kept up with the legal word outside of law school, but if you really need to see how the law applies to our everyday life, just go to any newspaper website and type in the words law, legal, court, etc. and you will get some story. I hate to disappoint my readers, all 3 of you, but this is going to be a short post this week. Don’t worry though. It is getting cloudy in Seattle again so it will be a lot easier to sit at the computer and write blog posts than it was in the last week of clear skies and sun.
III. Gossip Column
I have to say I was pretty impressed with the attitude of those fellow moot court participants. Everyone took it seriously, but from what I saw no one took it so seriously that they were not cordial with the other competitors. Even though there were six winners from 40, most of us were there just to improve our skills at lawyering. And for those who won, well, there were not real surprises. There are some people whose charisma and seemingly perpetual preparedness seem to just put them one step ahead of the curve and if the rest of use can put our egos aside for a minute, we can enjoy studying with these colleges. There are a few students, not the brightest, who seem unable to do this. They relate to this whole experience as a competition with the rest of the students and not as a collaborative learning experience. I understand that we have an “adversarial system,” but outside of the courtroom we are all trying to become the best lawyers we can be, or at least that is the ideal that I strive for. It is for this reason that I do not tell my grade to anyone, and I do not ask for anyone’s grades. I also try and compliment those students who do well in class, and for those who bomb, well, I will make fun of their ignorance on this blog.
IV. Judicial quote
I think this quote accurately describes how I felt about my mock court experience:
"I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned--as I thought, logical, coherent, complete. Second was the one actually presented--interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night."
-Robert H. Jackson, Advocacy Before the Supreme Court (1951)
Friday, February 17, 2006
Looking forward to t
Looking forward to the weekend.
I sure am glad it is Friday and look forward to the three day weekend. I think I will be taking at least one full day off, a luxury that I may not be able to afford later in the semester, but you can all look forward to an installment from the land of property law. Since I am officially behind in that class from my preparations for moot court, I will use my other two days to catch up and ease my way into easements. Plus there will be a wrap up from the moot court. Happy Friday.
I sure am glad it is Friday and look forward to the three day weekend. I think I will be taking at least one full day off, a luxury that I may not be able to afford later in the semester, but you can all look forward to an installment from the land of property law. Since I am officially behind in that class from my preparations for moot court, I will use my other two days to catch up and ease my way into easements. Plus there will be a wrap up from the moot court. Happy Friday.
Wednesday, February 15, 2006
Moot Court
I will be participating in the One-L Moot Court competition on Friday night. My partner and are dutifully working out witness statements and cross examination questions while the civil procedure book sits jealously closed in my back-pack. I guess law school is about more than case-books even when our Civ. Pro professor claims that this is the most exciting case we will read in his class all semester: Something about a peeping tom!
Well, look for the weekend wrap up where I will fill in the details of the administrative law moot court competition and maybe some thoughts on peeping toms. I should get the T-shirt I saw in a shop window while walking to school and wear it to class tomorrow. I read: “I fell in love with you the very first time I spied on you through your window.”
Well, look for the weekend wrap up where I will fill in the details of the administrative law moot court competition and maybe some thoughts on peeping toms. I should get the T-shirt I saw in a shop window while walking to school and wear it to class tomorrow. I read: “I fell in love with you the very first time I spied on you through your window.”
Tuesday, February 14, 2006
Mid-week surprise
Since we have been talking about insurance companies so much lately, I though I would add to the monologue this curious ruling from a court in Florida. An insurance company has a duty to warn or cancel a policy when it learns that an individual is planning to kill an insured in order to collect on the life insurance policy.
Look for more tidbits
Look for more tidbits
Sunday, February 12, 2006
Standard K, Beating Tomatoes, Passing Gas and Class
I. Case of the Week
Our case this week takes us out into the flatlands, into the land of corn, farmers, and wrestlers, but we are not talking sports as we were last week. This week I will be discussing the deeply fascinating process of contract formation or, as in the case of C & J Fertilizer Inc v. Allied Mutual Insurance Co., contract ascension. Before we pit the expectations and intentions of the farmer against the big bad golf-club-wielding insurance company, we need to get a picture of the facts that led to the dispute. Fertilizer Company seeks to purchase “burglary” insurance. Fertilizer Company contacts Insurance Company, purchases insurance, and signs a contract agreeing to the terms of the coverage as they are laid out in the standard from by the insurance company. Fertilizer Company admittedly does not read all of the terms of the contract because the plan is “just like the one he has on the farm.” Fertilizer store room is burglarized. Fertilizer company files claim, but Insurance company refuses to cover the loss. Why? Because hidden deep in the pages of terms in small print in a section labeled “definitions,” the terms of contract state that signs of “forced physical entry are required” in order to constitute a burglary.
The court is divided, but the majority find for the plaintiff, C & J Fertilizer, based upon multiple lines of reasoning. The first of these is based on the Doctrine of Reasonable Expectation, which is further broken down into two parts. Primarily, the court finds that it is unreasonable to expect that buyers are going to read all of the terms of such standard contracts. This logic can be checked by most of our experiences. I rarely read all of the terms of the many contracts that I read on a daily basis. Just in the last week I signed a contract for repair service with my high speed internet provider, a licensing agreement for a software update that my computer told me I needed (and I certainly didn’t scroll through the terms before clicking “I agree,” and a medical release form that claimed that there was no warranty that the minor surgical procedure I needed this week would cure the problem, and worse, that there was a risk of permanent disfigurement or death! I signed all of these without hardly a glance, and those who were offering me these terms certainly were not expecting me to read them. (The nurse who was prepping me for surgery looked at me with a tinge of impatience as I read the terms more closely than probably anyone else that day and more closely than I normally would if I hadn’t just been reading all of these cases). It just occurred to me that the person who “offers” these terms (the repair man, my computer, the nurse) is rarely the person who writes the terms (the in-house lawyers) and this is one of the main contentions with such contracts: the bargaining position of the accepting party is essentially zilch. The only option you have is to not accept the terms and not receive the benefits you wish to contract for. Your lack of bargaining power allows the offering party to dictate the terms. In all of these situations there is a monopolizing effect. There is only one provider of cable internet in my neighborhood, without the updating download I couldn’t read “pfd” documents necessary for my studies, and without the surgery, I would remain in a lot of pain, so we are forced to accept their terms, but the court in C & J is trying to create a safely valve for such disproportionate bargaining powers. The second expectation they claim is unreasonable is defining burglary as requiring signs of entry. Maybe there is something valid in what my professors say when they tell us: “don’t check your common sense at the door.” The court makes a common sense decision, essentially finding that it is reasonable that Fertilizer Company, based on common knowledge, would not define burglary as requiring signs of forced entry.
In all fairness, we have to give some weight to the insurance company’s reason for having such provision. They are essentially trying to protect themselves from fraud, whereby a false claim would be filed for an inside job, and both the majority and the dissent agree that the provision on its own is valid. The real question lies in whether or not burying the term deep in the contract in the paragraph of definitions rather than exceptions was done because the insurance company knew that if the buyer knew the term, he would not buy the insurance. There are problems with this argument as well, and even though the court does not discuss this directly (or it was edited out of our case book) Fertilizer probably would have purchased the insurance anyway, even with the term there. It seems to me that we don’t read the terms to standardize contracts not only for the clear reason that they are long, tedious, boring, and in small print, but also because first, we don’t really care what the terms are and secondly we may not be able to find that product without the exact same terms. Try finding unpasturized milk in this country. This may not be a good comparison because pasteurization is governed by a statute, but on the other-hand it has become so standard we don’t even think about our milk in terms of pasteurization any more. I don’t think about my health insurance in terms of its terms, because I know they are there (whatever they are) and I need the insurance and no matter where I buy it, many of the same terms will be present. This topic is must vaster than I have time to go on here, but I find these questions fascinating and relevant and have caused me to pause for a moment before I just “accept.”
II. At Lawge
In further attempts to see both sides of the argument, I wanted to bring up a current topic relating to insurance fraud, especially since I am often disparaging toward insurance companies in my writing and if I ever apply for a job at one, they might find there way to this blog and read it (I am flattering myself here; first that anyone would look at my blog and secondly that I would get a job at an insurance company, but let us suspend reality for a second). In an NPR investigative story NPR : Tomato Farmers Caught Out in Insurance Scam a group of farmers recreated the scene of a hail storm, filed for insurance (which was backed by the U.S. treasury, so the insurance company didn’t put up too close of an investigation: actually, they were getting cut in on the deal) and then walked with a check. (I know I was going to try and be nice to insurance companies, but I just couldn’t help myself). The real hero of this story is the Federal Prosecutor blew the whistle on everyone. It is an interesting article and well worth a read.
III. Gossip Column
There are various forms of passing that take place in our section’s class room. It appears to me that everyone passed last semester finals, and if there is anyone who didn’t, it is because the never made it to class, because from my inexact survey of the room, everyone is still hanging on. Then there is passing notes, which for those of you who have not been in a law school class room in a while is more endemic than in the halls of my junior high. You would think that we are all a bunch of school kids again with assigned seats, lockers, and the incessant note-passing. We have gotten more advanced, or more technologically savvy. As you look around the room again, not looking for those who might have failed, you see everyone hiding behind their laptop screens, and you hear the constant tap on the keys, even when the Professor is going on about a topic that he has already discussed for 20 minutes. We are all passing notes in the form of IMs. I can’t say I am immune to it. There have been days when I have tried to stay off IM. During Civil Procedure for example and when our professor was hounding the same student for the exact language of an answer that he had in mind and the student just doesn’t seem to get it or the professor just likes playing that game, I am drawn to log on and comment about how old the game has become or how bad the girls outfit is who sits across the room. And then there was the rumor that one of our professors was passing gas, but for the sake of anonymity and for the fact that it really was only a rumor (although an out-loud *wink* one at that). Finally, the latest form of passing is passing from answering one of the questions that the professor asks. I don’t know exactly when this began. We all heard at the beginning of the semester that we shouldn’t stress too bad if we don’t know an answer because we can just pass, but lately it is getting out of control. It is like the flood gates have been slid open. Last week in Contracts, three students passed before the professor arrived at a student who was willing to take a risk and answer. I don’t know if people just don’t want to talk in class or they have not done the reading, neither of which I really understand. Talking in class really isn’t all that bad (the teachers guide you through it) and I have a hard time understanding why anyone would not even get the reading done (except in really exceptional circumstances). I mean that is the basic minimum you should be doing! The thing that is really amazing is that the professors seem to just accept it. I have seen undergraduate professors throw a fit and tell students to leave the classroom unless they have read, and I don’t know if the professors here don’t feel like they should be in a position to discipline us or what their reasoning is, but it is weak. Reading for the day should be your ticket into the class room. This is professional school. We are in the day section. None of us has full time jobs. I understand that some days you don’t have time and that passing should be allowed, but it should be a rare day and finding a student to answer a question shouldn’t be like throwing a bowling ball. I am going to mix bowling metaphors here and say that passing is like throwing a gutter ball: it happens to everyone, but you better bowl a strike on your second turn if you want to stay in the game.
IV. Quote of the Week
I know I have been reserving this for quotes from famous members of the judiciary, but I found this line so funny from the NPR article, I thought I would give it some emphasis. There are no rules here anyway; we can go back to the judges next week, or not.
“To complete the scene of devastation, they then picked up wooden tomato stakes and attacked the unsuspecting vegetables." They had one Mexican who did all the beating, he beat every 16,000 of them. He'd just go through there and knock the leaves off of them,"
I especially like how the vegetables have been portrayed as unsuspecting and how a bunch of red-neck farmers made the Mexican beat them to pieces. The language really gives the scene a feel that something criminal is going on and make the whole field of insurance fraud sound exciting. Maybe I should be a federal prosecutor.
Our case this week takes us out into the flatlands, into the land of corn, farmers, and wrestlers, but we are not talking sports as we were last week. This week I will be discussing the deeply fascinating process of contract formation or, as in the case of C & J Fertilizer Inc v. Allied Mutual Insurance Co., contract ascension. Before we pit the expectations and intentions of the farmer against the big bad golf-club-wielding insurance company, we need to get a picture of the facts that led to the dispute. Fertilizer Company seeks to purchase “burglary” insurance. Fertilizer Company contacts Insurance Company, purchases insurance, and signs a contract agreeing to the terms of the coverage as they are laid out in the standard from by the insurance company. Fertilizer Company admittedly does not read all of the terms of the contract because the plan is “just like the one he has on the farm.” Fertilizer store room is burglarized. Fertilizer company files claim, but Insurance company refuses to cover the loss. Why? Because hidden deep in the pages of terms in small print in a section labeled “definitions,” the terms of contract state that signs of “forced physical entry are required” in order to constitute a burglary.
The court is divided, but the majority find for the plaintiff, C & J Fertilizer, based upon multiple lines of reasoning. The first of these is based on the Doctrine of Reasonable Expectation, which is further broken down into two parts. Primarily, the court finds that it is unreasonable to expect that buyers are going to read all of the terms of such standard contracts. This logic can be checked by most of our experiences. I rarely read all of the terms of the many contracts that I read on a daily basis. Just in the last week I signed a contract for repair service with my high speed internet provider, a licensing agreement for a software update that my computer told me I needed (and I certainly didn’t scroll through the terms before clicking “I agree,” and a medical release form that claimed that there was no warranty that the minor surgical procedure I needed this week would cure the problem, and worse, that there was a risk of permanent disfigurement or death! I signed all of these without hardly a glance, and those who were offering me these terms certainly were not expecting me to read them. (The nurse who was prepping me for surgery looked at me with a tinge of impatience as I read the terms more closely than probably anyone else that day and more closely than I normally would if I hadn’t just been reading all of these cases). It just occurred to me that the person who “offers” these terms (the repair man, my computer, the nurse) is rarely the person who writes the terms (the in-house lawyers) and this is one of the main contentions with such contracts: the bargaining position of the accepting party is essentially zilch. The only option you have is to not accept the terms and not receive the benefits you wish to contract for. Your lack of bargaining power allows the offering party to dictate the terms. In all of these situations there is a monopolizing effect. There is only one provider of cable internet in my neighborhood, without the updating download I couldn’t read “pfd” documents necessary for my studies, and without the surgery, I would remain in a lot of pain, so we are forced to accept their terms, but the court in C & J is trying to create a safely valve for such disproportionate bargaining powers. The second expectation they claim is unreasonable is defining burglary as requiring signs of entry. Maybe there is something valid in what my professors say when they tell us: “don’t check your common sense at the door.” The court makes a common sense decision, essentially finding that it is reasonable that Fertilizer Company, based on common knowledge, would not define burglary as requiring signs of forced entry.
In all fairness, we have to give some weight to the insurance company’s reason for having such provision. They are essentially trying to protect themselves from fraud, whereby a false claim would be filed for an inside job, and both the majority and the dissent agree that the provision on its own is valid. The real question lies in whether or not burying the term deep in the contract in the paragraph of definitions rather than exceptions was done because the insurance company knew that if the buyer knew the term, he would not buy the insurance. There are problems with this argument as well, and even though the court does not discuss this directly (or it was edited out of our case book) Fertilizer probably would have purchased the insurance anyway, even with the term there. It seems to me that we don’t read the terms to standardize contracts not only for the clear reason that they are long, tedious, boring, and in small print, but also because first, we don’t really care what the terms are and secondly we may not be able to find that product without the exact same terms. Try finding unpasturized milk in this country. This may not be a good comparison because pasteurization is governed by a statute, but on the other-hand it has become so standard we don’t even think about our milk in terms of pasteurization any more. I don’t think about my health insurance in terms of its terms, because I know they are there (whatever they are) and I need the insurance and no matter where I buy it, many of the same terms will be present. This topic is must vaster than I have time to go on here, but I find these questions fascinating and relevant and have caused me to pause for a moment before I just “accept.”
II. At Lawge
In further attempts to see both sides of the argument, I wanted to bring up a current topic relating to insurance fraud, especially since I am often disparaging toward insurance companies in my writing and if I ever apply for a job at one, they might find there way to this blog and read it (I am flattering myself here; first that anyone would look at my blog and secondly that I would get a job at an insurance company, but let us suspend reality for a second). In an NPR investigative story NPR : Tomato Farmers Caught Out in Insurance Scam a group of farmers recreated the scene of a hail storm, filed for insurance (which was backed by the U.S. treasury, so the insurance company didn’t put up too close of an investigation: actually, they were getting cut in on the deal) and then walked with a check. (I know I was going to try and be nice to insurance companies, but I just couldn’t help myself). The real hero of this story is the Federal Prosecutor blew the whistle on everyone. It is an interesting article and well worth a read.
III. Gossip Column
There are various forms of passing that take place in our section’s class room. It appears to me that everyone passed last semester finals, and if there is anyone who didn’t, it is because the never made it to class, because from my inexact survey of the room, everyone is still hanging on. Then there is passing notes, which for those of you who have not been in a law school class room in a while is more endemic than in the halls of my junior high. You would think that we are all a bunch of school kids again with assigned seats, lockers, and the incessant note-passing. We have gotten more advanced, or more technologically savvy. As you look around the room again, not looking for those who might have failed, you see everyone hiding behind their laptop screens, and you hear the constant tap on the keys, even when the Professor is going on about a topic that he has already discussed for 20 minutes. We are all passing notes in the form of IMs. I can’t say I am immune to it. There have been days when I have tried to stay off IM. During Civil Procedure for example and when our professor was hounding the same student for the exact language of an answer that he had in mind and the student just doesn’t seem to get it or the professor just likes playing that game, I am drawn to log on and comment about how old the game has become or how bad the girls outfit is who sits across the room. And then there was the rumor that one of our professors was passing gas, but for the sake of anonymity and for the fact that it really was only a rumor (although an out-loud *wink* one at that). Finally, the latest form of passing is passing from answering one of the questions that the professor asks. I don’t know exactly when this began. We all heard at the beginning of the semester that we shouldn’t stress too bad if we don’t know an answer because we can just pass, but lately it is getting out of control. It is like the flood gates have been slid open. Last week in Contracts, three students passed before the professor arrived at a student who was willing to take a risk and answer. I don’t know if people just don’t want to talk in class or they have not done the reading, neither of which I really understand. Talking in class really isn’t all that bad (the teachers guide you through it) and I have a hard time understanding why anyone would not even get the reading done (except in really exceptional circumstances). I mean that is the basic minimum you should be doing! The thing that is really amazing is that the professors seem to just accept it. I have seen undergraduate professors throw a fit and tell students to leave the classroom unless they have read, and I don’t know if the professors here don’t feel like they should be in a position to discipline us or what their reasoning is, but it is weak. Reading for the day should be your ticket into the class room. This is professional school. We are in the day section. None of us has full time jobs. I understand that some days you don’t have time and that passing should be allowed, but it should be a rare day and finding a student to answer a question shouldn’t be like throwing a bowling ball. I am going to mix bowling metaphors here and say that passing is like throwing a gutter ball: it happens to everyone, but you better bowl a strike on your second turn if you want to stay in the game.
IV. Quote of the Week
I know I have been reserving this for quotes from famous members of the judiciary, but I found this line so funny from the NPR article, I thought I would give it some emphasis. There are no rules here anyway; we can go back to the judges next week, or not.
“To complete the scene of devastation, they then picked up wooden tomato stakes and attacked the unsuspecting vegetables." They had one Mexican who did all the beating, he beat every 16,000 of them. He'd just go through there and knock the leaves off of them,"
I especially like how the vegetables have been portrayed as unsuspecting and how a bunch of red-neck farmers made the Mexican beat them to pieces. The language really gives the scene a feel that something criminal is going on and make the whole field of insurance fraud sound exciting. Maybe I should be a federal prosecutor.
Sunday, February 05, 2006
Sports and Torts
I. Case of the Week
Sports have been a prevalent theme this week. Although I have always been more enthused to participate in sports than to “spectate” or to discuss them, it is hard to avoid the Superbowl chatter and the sporting paraphernalia that grows like a blue and green mold around the city whose team is playing in the Superbowl for the first time. When I think about Superbowl Sunday as a child, with the exception of those years where my home state team (Go Broncos) was playing (and usually loosing,) we usually thought it was a great day to go skiing: no crowds, often the best conditions of the year, and you feel substantially better after having spent the day with cold mountain air in your face than filling it with potato chips and hot wings. I grew up on the slopes of the Rockies, and by my teenage years, my friends and I were searching out for more steeps, bigger jumps, and more powder tucked away in the heavily forested areas off of the designated slopes. For this reason, I was particularly interested in a series of skiing cases that we looked at in our Torts class this week.
The court in Sunday v. Stratton Corp, 136 Vt. 293 (1978) found that the risk of hitting a bush on a novice run is not an assumed risk of skiing and that the resort has a duty to clear such bushes and has a liability for injuries caused by such an obstruction. As is often the case in other areas, in skiing there a strong delineation between the “novice” at the resort for the spring break holiday with rented skis, a condo full of relatives, and a “package deal” and the “expert” who is crashing on his friends couch, spent a large portion of his savings on new skis, and is thrilled to take those new skis into places where not even the ski patrol has been; the law here is making the same distinction. The case was originally decided on a directed verdict for the defendant (motion granted when after all of the reasonable inferences are made in favor of the non-moving party and facts are seen in a light most favorable to the non-moving party, a judge finds that no reasonable jury could find for plaintiff) based on the theory that a bush is an inherent danger of the sport. My initial reaction to this case, as one who considers himself in that category of skier that searches out for the steep and deep, was to find the trial court decision correct, and to laugh at the Vermont Supreme Court reversal of that decision based on the rational that the resort has a duty to clear bushes from novice trails. This case forced me to put myself in the mind of the plaintiff, now a permanent quadriplegic, and imagine what his reasonable expectations and understanding of skiing were, and what responsibility a resort owes to such a customer. I also understood that a defense attorney’s only change to win this case would be to not have to try it to a jury. As I tried to piece together the facts of the case I imagined a situation where the skier hit the bush. I have hit bushes before myself (luckily to less disastrous outcomes) and I have generally felt that even though I did not see the bush, hitting a bush or a tree or a rock is a risk of skiing, so it was difficult to put myself in the mind of the plaintiff, but the exercised revealed for me what might be at the essence of tort law. At the center of tort law is one question: After all of his pain and suffering and injuries that will affect him for the rest of his life, what is it that will make him whole and who is responsible for making him whole. (I am leaving aside the more existential question as to whether or not money can really compensate for such an injury). If it really was his fault for hitting the bush because he was skiing in the trees on a run that was marked out of bounds, then he is responsible for his own injuries, but a beginner on a novice trail should not be expected to have to avoid hidden obstacles and the ski resort does owe a duty to make a safe area for such customers. (For more information on this area of the law, check out this site: Skilaw.com
Even after this discussion, the holding of this case does not sit well with me. I don’t know if that is because of my many years of skiing in a state with a strict no-liability statute that protects resorts Colorado Ski Safety Act (which is probably in place because the resorts are such big money makers for the state,) or if I am just adverse to the idea of suing people. Does this mean I am going to work for an insurance company?
II. At Lawge
I do not have an answer to the question presented above, but let us just imagine for a moment that I go and work for the enemy and get paid lots and lots of money to defend big ski corporations like Intra-West against paraplegic plaintiffs with million dollar suits. Sticking with the theme of today’s entry, I am really only interested in one ramification of this hypothetical career choice. What kind of sports would I have to play? Well I certainly think golf would be one. Golf seems to be an initiation into the world of lawyerdom. Read this account from another Blog written by a hiring partner at a large law firm about taking summer associates golfing. Anonymous Lawyer My only golf experiences thus far stem back to highscool and early college days where a group of boys would go out and play a round generally causing a ruckus and slowing down the lawyers who were teeing off behind us (to our great pleasure of course). I guess I will learn the attraction of golf as I proceed in my career, as well the reasons why it attracts so many lawyers and has the reputation for beings as important to learn as say how to download a case on Lexis. And even though I am heading into “a career” with mild resistance, I think I can come around to enjoy golf, but I will stop short of chatting about sports scores. I just don’t think I will ever have “my team” and know the names of players and be able to schmooze about great plays and team statistics. It this makes getting a job at State Farm, then I guess that is a consequence I will have to live with.
III. Gossip Column
If my lack of sports statistical schmoozing does not make me an ideal candidate for certain firms or companies, there are plenty of other law students who can gill the gap. The hour of torts class where we looked at numerous sports cases was a heyday of testosterone burdened sports schmoozers who normally hide behind their laptop screens but were all of a sudden fighting for their chance to espouse their opinions about whether or not a brawl between professional basketball players is an intentional tort. In any other context I would have, written their enthusiasm off as a sublimated attempt to compensate for not making the varsity team, but in an attempt to try and see both sides of the story I realized that not everyone can get excited about the Uniform Commercial Code. It was one of the most lively classes we have had in any class this entire year. Probably the most lively moment came when we debated whether getting shot while hunting is a risk one assumes when one hunts. (there was at least on yes answer that was quickly rebutted by the skinny quiet girl who admitted she owns a gun and hunts regularly, to which our Professor asked if she was packing her gun in class (on a sub-parenthetical parenthetical side note, torts class hasn’t been this lively since we discussed spring loaded guns)). All I can say is that I am glad we have moved on to a new topic-liabilities of third parties for intentional torts-because there will be enough Superbowl talk as it is come Monday morning.
IV. Judicial Quote:
Maybe, on the other hand, I should pay attention to what is going on in sports. Not only might it be advantageous to me in eventually making partner or becoming a judge, but it might lend itself to an overall judicial grounding and positive attitude. Just look at this quote from Justice Earl Warren:
I always turn to the sports pages first, which records people's accomplishments. The front page has nothing but man's failures. Earl Warren
Sports have been a prevalent theme this week. Although I have always been more enthused to participate in sports than to “spectate” or to discuss them, it is hard to avoid the Superbowl chatter and the sporting paraphernalia that grows like a blue and green mold around the city whose team is playing in the Superbowl for the first time. When I think about Superbowl Sunday as a child, with the exception of those years where my home state team (Go Broncos) was playing (and usually loosing,) we usually thought it was a great day to go skiing: no crowds, often the best conditions of the year, and you feel substantially better after having spent the day with cold mountain air in your face than filling it with potato chips and hot wings. I grew up on the slopes of the Rockies, and by my teenage years, my friends and I were searching out for more steeps, bigger jumps, and more powder tucked away in the heavily forested areas off of the designated slopes. For this reason, I was particularly interested in a series of skiing cases that we looked at in our Torts class this week.
The court in Sunday v. Stratton Corp, 136 Vt. 293 (1978) found that the risk of hitting a bush on a novice run is not an assumed risk of skiing and that the resort has a duty to clear such bushes and has a liability for injuries caused by such an obstruction. As is often the case in other areas, in skiing there a strong delineation between the “novice” at the resort for the spring break holiday with rented skis, a condo full of relatives, and a “package deal” and the “expert” who is crashing on his friends couch, spent a large portion of his savings on new skis, and is thrilled to take those new skis into places where not even the ski patrol has been; the law here is making the same distinction. The case was originally decided on a directed verdict for the defendant (motion granted when after all of the reasonable inferences are made in favor of the non-moving party and facts are seen in a light most favorable to the non-moving party, a judge finds that no reasonable jury could find for plaintiff) based on the theory that a bush is an inherent danger of the sport. My initial reaction to this case, as one who considers himself in that category of skier that searches out for the steep and deep, was to find the trial court decision correct, and to laugh at the Vermont Supreme Court reversal of that decision based on the rational that the resort has a duty to clear bushes from novice trails. This case forced me to put myself in the mind of the plaintiff, now a permanent quadriplegic, and imagine what his reasonable expectations and understanding of skiing were, and what responsibility a resort owes to such a customer. I also understood that a defense attorney’s only change to win this case would be to not have to try it to a jury. As I tried to piece together the facts of the case I imagined a situation where the skier hit the bush. I have hit bushes before myself (luckily to less disastrous outcomes) and I have generally felt that even though I did not see the bush, hitting a bush or a tree or a rock is a risk of skiing, so it was difficult to put myself in the mind of the plaintiff, but the exercised revealed for me what might be at the essence of tort law. At the center of tort law is one question: After all of his pain and suffering and injuries that will affect him for the rest of his life, what is it that will make him whole and who is responsible for making him whole. (I am leaving aside the more existential question as to whether or not money can really compensate for such an injury). If it really was his fault for hitting the bush because he was skiing in the trees on a run that was marked out of bounds, then he is responsible for his own injuries, but a beginner on a novice trail should not be expected to have to avoid hidden obstacles and the ski resort does owe a duty to make a safe area for such customers. (For more information on this area of the law, check out this site: Skilaw.com
Even after this discussion, the holding of this case does not sit well with me. I don’t know if that is because of my many years of skiing in a state with a strict no-liability statute that protects resorts Colorado Ski Safety Act (which is probably in place because the resorts are such big money makers for the state,) or if I am just adverse to the idea of suing people. Does this mean I am going to work for an insurance company?
II. At Lawge
I do not have an answer to the question presented above, but let us just imagine for a moment that I go and work for the enemy and get paid lots and lots of money to defend big ski corporations like Intra-West against paraplegic plaintiffs with million dollar suits. Sticking with the theme of today’s entry, I am really only interested in one ramification of this hypothetical career choice. What kind of sports would I have to play? Well I certainly think golf would be one. Golf seems to be an initiation into the world of lawyerdom. Read this account from another Blog written by a hiring partner at a large law firm about taking summer associates golfing. Anonymous Lawyer My only golf experiences thus far stem back to highscool and early college days where a group of boys would go out and play a round generally causing a ruckus and slowing down the lawyers who were teeing off behind us (to our great pleasure of course). I guess I will learn the attraction of golf as I proceed in my career, as well the reasons why it attracts so many lawyers and has the reputation for beings as important to learn as say how to download a case on Lexis. And even though I am heading into “a career” with mild resistance, I think I can come around to enjoy golf, but I will stop short of chatting about sports scores. I just don’t think I will ever have “my team” and know the names of players and be able to schmooze about great plays and team statistics. It this makes getting a job at State Farm, then I guess that is a consequence I will have to live with.
III. Gossip Column
If my lack of sports statistical schmoozing does not make me an ideal candidate for certain firms or companies, there are plenty of other law students who can gill the gap. The hour of torts class where we looked at numerous sports cases was a heyday of testosterone burdened sports schmoozers who normally hide behind their laptop screens but were all of a sudden fighting for their chance to espouse their opinions about whether or not a brawl between professional basketball players is an intentional tort. In any other context I would have, written their enthusiasm off as a sublimated attempt to compensate for not making the varsity team, but in an attempt to try and see both sides of the story I realized that not everyone can get excited about the Uniform Commercial Code. It was one of the most lively classes we have had in any class this entire year. Probably the most lively moment came when we debated whether getting shot while hunting is a risk one assumes when one hunts. (there was at least on yes answer that was quickly rebutted by the skinny quiet girl who admitted she owns a gun and hunts regularly, to which our Professor asked if she was packing her gun in class (on a sub-parenthetical parenthetical side note, torts class hasn’t been this lively since we discussed spring loaded guns)). All I can say is that I am glad we have moved on to a new topic-liabilities of third parties for intentional torts-because there will be enough Superbowl talk as it is come Monday morning.
IV. Judicial Quote:
Maybe, on the other hand, I should pay attention to what is going on in sports. Not only might it be advantageous to me in eventually making partner or becoming a judge, but it might lend itself to an overall judicial grounding and positive attitude. Just look at this quote from Justice Earl Warren:
I always turn to the sports pages first, which records people's accomplishments. The front page has nothing but man's failures. Earl Warren
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