Wal-mart Nation at War

It is not unusual that Wal-Mart has become a leit-motif of this blog. The company is the actual and symbolic enemy of anti-corporate, pro-labor, slow food, home-made, community based lifestyles and rhetoric for a while now. There are a lot of good reasons to dislike Wal-Mart, any of which should make you think twice about shopping there, but no one disputes its power and influence. I don’t know the exact figure, but if Wal-mart was a country, I believe that it would have a GDP that would put it in the top ten in the world. Maybe the corporation is the force that will end the boundaries of that modern phenomenon of the nation state. Much of Europe is unified under a single currency, but the difference in Europe is that the breaking down of the boundaries is to spread the wealth, whereas with Wal-mart, the goal is to expand the power of the empire of cheap merchandise. If any one doubts that Wal-mart sees itself as an empire, take a look at this article that appeared in the Times today discussing two job openings for marketing “generals.” In the age of information, war’s are won by who controls this information and there is little difference between Alexander’s march across the subcontinent and Wal-marts attack on culture except the weapons used. Many people are fighting back, but I have a feeling we are in for a show of how Wal-mart takes over the information age as if our own thoughts were cheap commodity.

Law School v. Med School

I recently mentioned to a doctor that I was in law school, and besides insinuating that many lawyers are anal, he had a sense of pity for those of us who choose the “other” career path. He went on to explain that medical schools try to make their students feel taken care of once they make it into med school. The real challenge is getting into med school but once you are there, you can basically coast. Law schools on the other-hand and still trying to weed people out. More than that, the first year of law school seems to be designed to pit students against each other. Not only do you have to be with the same students for all of your classes all year long, you are constantly reminded that each of us is only as good as we are related to everyone else. You are fighting for some number, and every step you make up the curve puts someone else below you, and every slip puts that many others above you. Add to this the pressure that this curve will someday effect which firm you work at, how much money you earn, how easily you can pay off your student loans, and on and on. The feeling is not one of cruising, and some days, the study of torts feels like a litany of what you might do to the person sitting next to you. In addition, classes are taught using the infamous “Socratic Method,” which is basically a student torture devise where a professor who has read and taught the case multiple times extracts out of your brain sometime the reasoning from a case and tries to apply it to a variety of hypothetical situations that extend to absurdity.

This all seems pretty horrible until you realize that there may actually be a reason behind the intellectual gladiatorial event of law school, and it has to do with the practice of the law itself. The nature of legal work is competitive. The courtroom is a battle arena of sorts, where attorneys use the skills developed in law school and practice to out-reason their opponents. And unlike other intellectual pursuits that can be practiced without anyone really minding the consequence, like my previous graduate studies in German literature, a judge is going to make a decision based upon your capacity to argue better or worse than your opposing council. We will continue to be “graded.” It helps to keep this in mind on the days when the battle feels particularly gruesome, as well as the fact that most of us who are in law school would rather be fighting it out against each other than to have our hands dug into a chest cavity or other such activities that med students are training to do. As for me, I’ll ride the curve and enter the ring of Socrates.

legal humor II

The parol evidence rule provides another good example of how the law lacks a sense of humor. The parol evidence rule forbids proof of extrinsic evidence to contradict or vary the terms of a written instrument and, accordingly, one who seeks, in a breach of contract action, to enforce an oral representation or promise relating to the subject matter of the contract cannot succeed. Once an agreement is reduced to writing, a party cannot present evidence that contradicts that writing, such as evidence that the writing was done as a joke. In the case of Eskimo Pie corp. v. Whitelawn Dairies, Inc 284 F.supp. 987 (S.D.N.Y., 1968), the court refused to allow evidence that a "non-exclusive" term in a distribution contract was really just a ruse to throw off potential anti-trust prosecution. In just the same way that such evidence cannot be introduced, neither can evidence that a contract was written as a joke. Rememer Lucy v. Zehmer 196 Va. 493 (1954) where Lucy offers Zehmer $50,000 for his farm an Zehmer wrote out a note stating he promise to sell the house for this price! Turns out Zehmer thought it was a joke between old pals while they were drinking down at the tavern. I guess this was like their regular banter and the topic of the sale of the farm came up repeatedly from time to time. Was Lucy fraudulently getting Zehmer drunk in order to slip his farm out from under him or just taking advantage of his drunken state? The court finds that Lucy thought it was a "serious business transaction" and also notest that "Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed." This was a case we looked at when we were learning about mutual assent and objective theory of contract formation, and the court doesn't discuss parol evidence, but I wonder why not? How could Zehmer even introduce evidence that contradicts the written contract, namely evidence that the written promise to sell was nothing more than a joke? Well, Zehmer, the law does not have a sense of humor, except in the minds of law students who recreate the scene of this "serious business transaction." I was just kidding, even if you can get it in, is not going to work as a reason to rescind a contract. How very different this is from a comedic play, for example, where the whole point of the play is to make the viewer believe the premise so as to allow the mind to suspend reality on all sorts of absurd circumstances. The purpose of the legal text is simply not humorous.

About this Blog

This blog does not contain legal advice and none of the legal discussions are meant to serve as such. Heck, I am not even a lawyer. Are you really going to trust the ramblings of a law student who is blogging instead of studying? This blog will consist of short observations about the highschool-like quality of law school, longer comments about interesting aspects of the law from either my school work or from the world at large, and occasional comments about a topic relating to the rest of life outside of law school, which can feel at times relatively insignificant. Please comment or offer any suggestions for topics you would like to see covered here.

legal humor

I have had some requests from my readers (all three of them) for some more vignettes of law school humor. I guess reading about the law alone lacks the laughable, and I don't mean that in a humorously sarcastic way. Unlike, say, the study of literature, the law lacks a sense of humor. Sure, there are plenty of lawyer jokes and I know there can sometimes be a humorous moment at trials, but the law itself is almost completely lacking in humor. Sure, if you read certain case law, written by certain judges, you will find a humorous line (like the opening line from
Frigaliment: "This issue is, what is chicken?," which is really only funny until you realize that that is the issue the court must decide.) There are also humorous situations that you find in the case law, but this is a pretty dark humor like the case of Webb v. McGowen, where McGowen, seeing that a large plank was about to fall on top of his boss Webb, somehow dives from the upper level in such a way to prevent the plank from falling on Webb but causing serious injury to himself. Outside of humorous lines and humorous situations, however, the law has no room for humor, and this seems to be based on the fact that those who practice/ create/ follow law take it seriously. Laws themselves are not funny. The supreme court does not decide one way or another because they want to amuse the parties and leave the lower courts doubled over in laughter when they read the cases for precedent. When law is made, it is made to be taken seriously, and this is what separates it from other literary disciplines. Philosophy has fully accepted humor, which can be seen in the Derridian sense of play and deconstruction, even Shakespeare's comedies were about some universal truths, and one of my favorite writers, Tom Robbins, regularly employs humor as a means to disarm the mind from its rationalistic mechanisms, opening it up to the potential for new and fresh ways of seeing the world.

The law is a curmudgeony old man and does not like sudden insights, flashes of new ideas, and a sense of play. The law is about battles, about two sides arguing their points with the goal of winning. The law itself, cases and statutes, cares little for the individual parties, for the same reason that it abhors sudden flashes of genius: the law shouldn't just apply to one case (unless we are talking individual contracts) but rather is a system of evolving standards, of a constant against which future parties can adjust their behavior, and other judges can rule on the behavior of these parties. The whole concept of stare decisis is in place to prevent the sudden swinging back and forth of rules that would result if every conflict was tried on a case by case basis, but humor on the other hand thrives on the sudden surprise, the flash of unexpected, and the purposeful throwing oneself of balance for the sake of deep cathartic release.

With this in mind, you must imagine the type of people that are attracted to law school (there are always exceptions that prove the rule.) People take the law very seriously and a lot of young lawyers (and I am assuming this will be the case as I progress through this career) take themselves seriously. The worst part about the end of the semester just around the corner is that I will have to listen to a bunch of people who take themselves too seriously repeat such phrases as "I am going to fail," "I can't forget that I am being compared with everyone else" and "I am sure practice will be nothing like this." This is not funny, and I know as much as everyone else that grades are important, but only so long as you learn to think, and along with learning to think comes the capacity to step back and not take what you think so seriously, to give it some room to breath, and when that is all said and done, then it seems we can accept the seriousness of the law without sacrificing the fluidity and freedom of though upon which the system of common law is based. (but who is really thinking about whether the law has a sense of humor? just me. you won't find this discussion in the cases books, or in a study guide. maybe it is my previous training in literary theory that cases me to want to know how the law fits into the larger scale of human consciousness or the fact that I have always been more of a big picture kind of thinker rather than a detail oriented mind, and I am trying to fit that way of thinking into the world of legal thought, which is so obsessively focused on the details. )

This post is decidedly not very humorous, and maybe that is a sign that law school is slowly eating away at my sense of humor ( you ever notice that it is mostly non-lawyers who tell lawyer jokes). I should go back and read about our friend McGowen and make a sudden and seemingly impossible leap in order to save humor from lawschool.

outlining!

There is this legendary legal study practice called outlining. It basically consists of taking all of your notes from reading cases and from class lectures and compiling them into one document that you can use to study for the final. It is increadably time consuming albeit helpful, and it requires going back and actually learning all those points that you just mentally skimmed over during the semester. It was a gloomy morning for everyone this morning as I begin to outline starting with contracts. I have become fond of saying "contracts are like Oklahoma. It's Oh K!"

spring break

I just got back from an overnight escape in Olympic National Park. For a whole 24 hours I had no wireless networks to connect to and could not get cell coverage. There weren't even any clocks at the resort. It was nice to get out of the city and into nature. We fell asleep to the sound of the Sol Duc River, we soaked in sulfur hot springs, and saw lots of deer and birds. It was the perfect backdrop to do some free reading. And what do I read when I am not reading law books? A non-fiction discussion of environmental, sociological, and historical sources of American dissatisfaction titled Affluenza. The basic summary is that by placing consumption of consumer goods above leisure, health, and family, our environment, minds, and families are getting destroyed. There is a lot of good facts in the book, and it is a good read for anyone interested in why so many Americans seem to be just not quite completely satisfied with their lives despite an abundance of goods and vacations.

When I got back, I took a quick (less than five minute) test that calculated my ecological footprint. http://www.earthday.net/footprint/index.asp This is a pretty rudimentary test, but I learned that scientists believe that it takes 4.5 acres per person for the earth to remain biologically productive, and my footprint requires 18. Now, I guess I can feel good that my footprint is 6 acres lower than the American average of 24, but it hardly felt sufficient considering I hardly eat meat, I don't own a car, and I live in an apartment. I guess just living in America puts us on a certain level where we expect large quantities of food, the freedom to fly around the country several times a year, and credit (how do you think I am paying for law school--I am going to have to participate in our destructive and consumptive economy just to pay back my loans)

Another interesting point in the book is that more and more people are not communicating with family and friends in person, but rather everyone is living in isolation and communicating through computers, cell phones, watching movies, etc., and well, this is true, but until the world is structured in a different way, it seems to me that blogging for example is a way of reconnecting people. Even though the only people who read this are my girlfriend and my parents (hello) before I started blogging, I may not have brought this topics up. Now, there is something to be said about people sitting around the table and sharing their ideas, but as I said, until we all have the free time and live in the same place, this will have to do. Blogging has been in the press a lot lately, and I have to say that the emphasis on privacy and miscommunication seem to be a bit misplaced. I don't ever put anything on here that I wouldn't want someone to read. If people are afraid of too much of their personal life being discussed online, then they shouldn't do it. On the other hand, while blogging seems to be mostly a one-ways street, I don't think this is necessarily so. I read many blogs where the comments section is longer and more interesting than the original post. One of the great aspects about blogging is the variety of perspectives that are brought together in one forum through the process. So, feel free to leave a comment on this or any other post. I read them. I respond to them, and I certainly feel that going to law school is not a process that one undertakes alone, so the recording of it does not have to be a hermenetically sealed monologue.

Madame Bovary

"At last Leon swore he would not see Emma again, and he reproached himself with not having kept his word, considering all the worry and lectures this woman might still draw down upon him, without reckoning the jokes made by his companions as they sat round the stove in the morning. Besides, he was soon to be head clerk; it was time to settle down. So he gave up his flute, exalted sentiments, and poetry; for every bourgeois in the flush of his youth, were it but for a day, a moment, has believed himself capable of immense passions, of lofty enterprises. The most mediocre libertine has dreamed of sultanas; every notary bears within him the debris of a poet."

Is this an accurate description of the necessary sacrifices of a lawyer--to give up the passions and lofty enterprises of youth. Is Flaubert correct that his young lawyer "bears within him the debris of a poet?" Must the poet die or is there a way to integrate the one with the other? It is Friday night at the beginning of spring break, and you would have no problem finding a seat in the library tonight. There are some students here, but you could give them each their own floor. I would probably not be here if I was not at my post at the circulation desk working for my federally backed $6.50 /hour work study position (emphasis on study). The only work involved is checking out study guides and books to students, answering an occasional "where is" question and, everyone's favorite, keeping up on the arcane task of weekly update filing for subscription services. In case you have have no idea what I am talking about, the library, despite most people researching online, receives weekly supplements to volumous texts on a variety of subjects. My job has been consistently to update the United States Tax Reporter, a tedious exercise of removing pages 27,683z-2.13--27,683z-30 and replacing it with the same pages plus one or too. Your mind goes numb from trying to remember numbers in the 10,000's and the filing usually takes about two hours per update. I was once working through the 20 some odd volumes when a practicing lawyer who was using the library came by, laughing, and said. "You guys still do that. That was my job in law school years ago. The United States Tax Reporter is the worst." Well, this is why it is so important for me to find a law job. There must be a better use of my time than as a sorting machine, something that has at least a slight semblance of the poetry of law, or prose, or even a simple aphorism.

Wal-Mart Goes Organic

Well, just a few days ago I was talking about Wal-mart's buying power and what would happen when they get into the organic business. Would their purchasing power cause them to controll aspects of the organic market such as what constitutes as organic? Well it looks like this is not just a speculative exercise but a pending possibility. Wal-mart is looking to take some of the market now held by Whole Foods.

Parol Evidence, Personal Jurisdiction, and Resume

It feels like a long time since I have posted, and I guess that is a good thing. I think it means I have been focusing harder on my work. We are getting into some interesting ideas right now. In civ. pro. we are working through the development of personal jurisdiction reading, what I here, are classic cases: International Shoe, World-Wide Volkswagen, McGee. I don't find it particularyly challenging, but that might also be because my current memo in legal writing is on an issue of personal jurisdiction in the internet context, based on the Zippo sliding scale for determining whether jurisdiction can be based on a defendant's website. I have been seeped in the analysis of "minimum contacts" and "fair play and substantial justice" for weeks, so I am getting more out of the cases we read in class, because I am not coming at them cold.

In Contracts we are starting to learn a series of rules for the rest of the semester, beginning with the Parol Evidence Rule. From what I understand, the basics of the rule are that when a court faces a written contract with unambiguous terms, no oral testimony will be allowed to contradict the written terms. As our contract professor said, it is not about evidence but rather interpretation, it is not parol (oral, unwritten) because it is about the intepretation of written text, and it has so many exceptions it is hardly a rule.

In a final note, I finally got my resume together and am going to meet with career services tomorrow. Got to pay the bills this summer! Look for a long post this weekend. Next week is spring break, and I will have time to catch up.

Here is an interesting thought. What happens when Wal-mart wants an organic section to their supermarket, and because they are such a powerful merchan

It looks like we are going to have nice weather this weekend, which can work to one's advantage or disadvantage to writing a memo on federal court jurisdiction in a case of internet commerce. On the one hand, it is going to be hard to not want to go outside, take the dog to the park, and pretty much do anything but analogous case descriptions. On the otherhand, I generally have more energy when the weather is nice, which means that I can work real hard on the memo and then get outside and do all of the above. In addition to the memo and the regular homework, I have to, have to, have to get my resume up and running so that I can meet with the career services and seriously begin to look for work this summer. I am afraid of being left out in the cold, but I think I fear getting my first "real job,' i.e. something other than a summer blue collar job that I am doing to make money before I go back to school. I am going to start small, with the resume builders; maybe a volunteer opportunity is the best to get my feet under me, but even those require applications and resumes, so I am going to have to hope that the sun gives me energy to get a lot of work done, because the urge to postpone the work to bask in the sun will be strong!

milk, eggs, bananas, bread, and cola

Here is an interesting thought. What happens when Wal-mart wants an organic section to their supermarket, and because they are such a powerful merchant, they begin to contract with agribusiness to fill the growing demand for organic food, but because of Wal-mart's size, they can dictate the price at which they want to buy. What shortcuts will be made in organic food production when profit again takes precedence over quality and sustainability? Look at this article today in the NYT about Wal-mart dictating to coke the type of products they want Coke to produce to sell at Wal-mart and think about this in terms of the debate surrounding organic labeling. http://www.nytimes.com/2006/03/03/business/03walmart.html? ex=1299042000&en=95bc5bd00b01e78c&ei=5090&partner=rssuserland&emc=rss