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)
Thursday, April 20, 2006
Wednesday, April 19, 2006
Legality Limits
First let me say that I am so greatful not to have crim law this semester. Going into finals with one less class is temporary insanity, not full blown crazy. Speaking of crazy, if you follow the Supreme Court, they heard a case today about the use of the insanity defense in Arizona and whether the Arizona statute is unconstitutionaly stringent in its requirements for making out and insanity defense. The defendant in this case was a 17 year old who thought that everyone in his whole town had turned into aliens, including his parents, and he ended up shooting a cop thinking he was one such alien. Sounds pretty crazy, but the catch is that for the defense to work you have to be so insane as to not to intend to do what you do, which is to not intend to kill. This kid knew what he was doing and intended to kill, but what he intended to kill was aliens. Here are the questions the supreme court was considering today:
05-5966 CLARK V. ARIZONA
DECISION BELOW: UNPUBLISHED
LOWER COURT CASE NUMBER: 1 CA-CR 03-0851; 1 CA 03-0985
QUESTIONS PRESENTED FOR REVIEW
(1) Whether Arizona's insanity law, as set forth in A.R.S. § 13-502 (1996)
and applied in this case, violated Petitioner's right to due process
under the United States Constitution, Fourteenth Amendment?
(2) Whether Arizona's blanket exclusion of evidence and refusal to
consider mental disease or defect to rebut the state's evidence on the
element of mens rea violated Petitioner's right to due process under
the United States Constitution, Fourteenth Amendment?
Cert. Granted 12/5/05
The reason this case caught my eye is that this is exactly the kind of stuff we learned about in our Crim law class. Our professor was not well loved, and it is pretty well agreed that we are going to all have to learn crim. law on our own in order to pass the bar. This is evidenced by the fact that although all 1000 pages of the casebook were assigned and supposidly covered during the semester, we spend most of the two-hour long, twice-a-week lectures talking about legality limits or listening to some story or another by our professor about cases he worked on or perps he met along the way. These stories, although not relevant to the exam he wrote, were usually entertaining and informative from a been-around-the-block kind of way, and they will probably stick around a lot longer in my mind than a memorized definition from the Model Penal Code. The same goes for the ideas behind analyzing legality limits. Other sections squacked when we told them what we were learning, but when I hear about a case like this, I realize that he left us with some analytical tools that are not only relevant but are very helpful. These are the kind of cases that get to the very essence of how we percieve punishment in America, and although I will be cursing my crim law prof come bar review time, in the long run, I am appreciative for his emphasis on understanding Due Process and Legality Limits. It is this kind of knowledge that makes one realize what one is learning at law school, that one can understand with greater subtlety a complex legal question that strikes at the heart of an issue relevant to our basic assumptions about governance, justice, humanity, and well, insanity.
05-5966 CLARK V. ARIZONA
DECISION BELOW: UNPUBLISHED
LOWER COURT CASE NUMBER: 1 CA-CR 03-0851; 1 CA 03-0985
QUESTIONS PRESENTED FOR REVIEW
(1) Whether Arizona's insanity law, as set forth in A.R.S. § 13-502 (1996)
and applied in this case, violated Petitioner's right to due process
under the United States Constitution, Fourteenth Amendment?
(2) Whether Arizona's blanket exclusion of evidence and refusal to
consider mental disease or defect to rebut the state's evidence on the
element of mens rea violated Petitioner's right to due process under
the United States Constitution, Fourteenth Amendment?
Cert. Granted 12/5/05
The reason this case caught my eye is that this is exactly the kind of stuff we learned about in our Crim law class. Our professor was not well loved, and it is pretty well agreed that we are going to all have to learn crim. law on our own in order to pass the bar. This is evidenced by the fact that although all 1000 pages of the casebook were assigned and supposidly covered during the semester, we spend most of the two-hour long, twice-a-week lectures talking about legality limits or listening to some story or another by our professor about cases he worked on or perps he met along the way. These stories, although not relevant to the exam he wrote, were usually entertaining and informative from a been-around-the-block kind of way, and they will probably stick around a lot longer in my mind than a memorized definition from the Model Penal Code. The same goes for the ideas behind analyzing legality limits. Other sections squacked when we told them what we were learning, but when I hear about a case like this, I realize that he left us with some analytical tools that are not only relevant but are very helpful. These are the kind of cases that get to the very essence of how we percieve punishment in America, and although I will be cursing my crim law prof come bar review time, in the long run, I am appreciative for his emphasis on understanding Due Process and Legality Limits. It is this kind of knowledge that makes one realize what one is learning at law school, that one can understand with greater subtlety a complex legal question that strikes at the heart of an issue relevant to our basic assumptions about governance, justice, humanity, and well, insanity.
Tuesday, April 18, 2006
Law-new-view's turns 50
I just noticed that this is the 50th post to this blog. I have already discussed the role of blogging at law school and even began to reflect on the One-L year in my last post, but I havn't talked about another event that has run simultaniously with this time in law school: living in Seattle. 50 posts in 8 months is not not really that many, and if I look back, most of those are weighted more heavily toward this end of the school year, but on the other-hand, 8 months is not that much time either, especially when you have to read and actively understand thousands of pages of legal texts. When I started law school, I also started a new life in a new city. Starting both at the same time seems to have made my integration into this new city somewhat slower. I still constantly confused when people talk about places in this city, although, as the weather gets nicer I have been out exploring on my bike. I know my neighborhood relatively well, but I am continually bumping into other law students who live a block or two away, and I had no idea that they even lived in the neighborhood. Outside of lawschool, I know maybe a dozen people in Seattle, and while I have met a lot of people in law school, as I said in my last post, it is healthy to have contact with others who are not struggling to learn the same things you are. This explains another aspect of moving to a new city for law school. It has been hard to make friends at law school. Part of that is that I moved here with my girlfriend and we formed a kind of sociel unit unto ourselves that I am sure affected the process of meeting others, but I also think law school itself is not condusive to making friends. Sure there are people I chat with at school, I chat with online, I occationally chat with on the street, but we are all under the same time constraints, and unless you make the library an opportunity to meet others (i.e. turn studying into a social event, which is pretty common) when you leave school, most people are going home to study or to spend time with people they know outside of law school. In addition, I think law school attracts certain types of individuals that I have previously tried to avoid. If I had thought about it before law school, I probably could have predicted that there would be a lot of frat boys and sorority girls in law school, but I guess I didn't let my mind wander there, so it was kind of a shock to realize that this sub-culture of individuals that I had purposely avoided for years had somehow returned in numbers not seen since living in the dorms as a freshman in college. This is not to say that there arn't people in law school that I find interesting or that I could see spending time with outside of school, but rather that this hasn't really happened yet. (summer is coming, which tends to bring people out of their winter-time hovels,) Otherwise, Seattle is a good place to live. It is easier to study when you don't want to go outside in the rain, but at the same time it can be demoralizing, especially if you come from a place with a lot of sun.
Monday, April 17, 2006
Welcome
Welcome to the second year of lawschool! The beginning of the second year is initiated with the call of little attention. Frankly, the boundary between the first and the second year is a blurry line between finals and searching for a summer job. So for those of you who were there with me for my first year either in person, at the distance, or in my virtual imagination of mysterious readers of my blog, I shall take this moment to thank you for your support, friendship, readership, comments, and patience and I welcome you to my official beginning of the second year of law school.
I have a good feeling about this year. I knew so little about the law or law school last year that I did not have too many expectations to be either disappointed or fulfilled, but now that I have been at this for a year, I have a little better idea of what this law thing is all about. I can say the same thing about blogging. When I first started to blog, I did not really know what I wanted out of the experience or how exactly I would use the medium, but I have grown to really value blogging as a creative outlet, and I hope to use this blog even more efficiently and hopfully more enjoyably than even last year. Probably every law school is filled with individuals like myself who had dreams of some sort of writing career in the past. Lawyering does afterall consist of a lot of reading and writing, but legal writing is, at least at this point, fairly rigid and until you are a judge, no one really wants to hear your opinion. Most legal writing is more like plagerism where you are recapping the applicaple law to a specific set of facts and using the law to make arguments about the way those facts should be be understood. Blogging, on the other-hand, is mostly opinion, and that is one of the reason it is so refreshing. Finally, law school is pretty absorbing, so keeping a journal of my experience of the law is like keeping a journal of much of the activity of my days.
I will be working on the links and such to this blog over the next couple of weeks, but the ball is rolling. Once classes start again, I will continue to post "Classic Lines from Law School Lectures" and I hope to resurect the "Law School Gossip" that was the subject of some posts last year. I will also use this space as a dumping ground for legal articles and sites that I find on the web that caught my interest. And hopefully soon I will be able to comment on work in the legal profession. The second year has the reputation for being the year when you work the hardest at law school, the first year being an intro, and the third being the time when students are just ready to be done. In all this I feel like I will be looking for the answer to one simple question, a kind of leitmotif throughout this blog. That question is goes something like: how does one do meaningful work in the law? What does it mean to be a lawyer or a law student today? what is the place of law in the greater scheme of society? what is my place? basically, how am I going to find meaningful work? and since the law will be a part of my life for probably most of the rest of my time on this planet, how do I make this work my own? How do I go from an uninformed student who sees the law as an interesting intellectual inquiry to one who can feel, live, understand, and make a life out of work in the law?
It might seem like that is more than one question, but they are all getting at the same point. On top of getting a job and learning as much as I can at school, answering that question is an essential next step in my legal education and understanding myself.
I have a good feeling about this year. I knew so little about the law or law school last year that I did not have too many expectations to be either disappointed or fulfilled, but now that I have been at this for a year, I have a little better idea of what this law thing is all about. I can say the same thing about blogging. When I first started to blog, I did not really know what I wanted out of the experience or how exactly I would use the medium, but I have grown to really value blogging as a creative outlet, and I hope to use this blog even more efficiently and hopfully more enjoyably than even last year. Probably every law school is filled with individuals like myself who had dreams of some sort of writing career in the past. Lawyering does afterall consist of a lot of reading and writing, but legal writing is, at least at this point, fairly rigid and until you are a judge, no one really wants to hear your opinion. Most legal writing is more like plagerism where you are recapping the applicaple law to a specific set of facts and using the law to make arguments about the way those facts should be be understood. Blogging, on the other-hand, is mostly opinion, and that is one of the reason it is so refreshing. Finally, law school is pretty absorbing, so keeping a journal of my experience of the law is like keeping a journal of much of the activity of my days.
I will be working on the links and such to this blog over the next couple of weeks, but the ball is rolling. Once classes start again, I will continue to post "Classic Lines from Law School Lectures" and I hope to resurect the "Law School Gossip" that was the subject of some posts last year. I will also use this space as a dumping ground for legal articles and sites that I find on the web that caught my interest. And hopefully soon I will be able to comment on work in the legal profession. The second year has the reputation for being the year when you work the hardest at law school, the first year being an intro, and the third being the time when students are just ready to be done. In all this I feel like I will be looking for the answer to one simple question, a kind of leitmotif throughout this blog. That question is goes something like: how does one do meaningful work in the law? What does it mean to be a lawyer or a law student today? what is the place of law in the greater scheme of society? what is my place? basically, how am I going to find meaningful work? and since the law will be a part of my life for probably most of the rest of my time on this planet, how do I make this work my own? How do I go from an uninformed student who sees the law as an interesting intellectual inquiry to one who can feel, live, understand, and make a life out of work in the law?
It might seem like that is more than one question, but they are all getting at the same point. On top of getting a job and learning as much as I can at school, answering that question is an essential next step in my legal education and understanding myself.
The best. . .
The best thing about going out to dinner with someone who is not in law school is that you realize how much you have learned. While you are in law school, how much you have learned is always compared with how much everyone else has learned, and no matter where you stand on that scale, you professors are always there to make sure you pale against them (not that they rub it in, but they just can't help being able to tick of the 9 elements of fraud as if they were telling you what groceries they need to pick up on the way home.) When you are out with your non- law school friends, even those that know a little bit about the law like my friend who I had dinner with tonight who reads Supreme Court slip opinions for fun, you begin to realize just how much you have absorbed over the year. I also notice this when I listen to NPR in the morning, which has been as essential part of my morning routine along with my cup of coffee for as long as I can remember. I begin to hear and understand concepts that I never picked up on before, like when the court grants certiorari or even things as simple as discussions about phases of a trial, described in Nina Totenburg’s firm but welcoming voice. It is good to get this perspective when you feel like you don't know anything, because if there is any way to describe One-L year, it is that you are constantly feeling like you don't know anything, because you are constantly learning new things. Just when you feel like you got a concept down, you move on to something new, and it doesn't really stop all year. It is good to always be learning, but sometimes it is nice to know that you actually have learned. For that, talking with another One-L just won't do. You got to go to an outside source.
Wednesday, April 12, 2006
Sharing Stress
As the end of the semester approaches, I wonder what is the best way to deal with the impending stress. You hear a lot of people talking about what they are doing to study, how far on their final memo they have progressed, and all they still have to do, and having these discussions can have at least two different effects. On the one hand it can cause you to feel a bond of companionship, a camaraderie with your fellow students as we are all in this together. On the other-hand, it can induce worries that arise only "but for" the conversations. By this time of the year, if you have not figured out for yourself what the best way to work on memos, brief cases, make outlines, or learn the material is, then you have a valid reason to stress. Otherwise, I think it is reasonable to say that we all know what we are doing. Now I have never been one to need to vent my stress to others, and I understand that for certain people discussing how stressed they are actually helps, but for me I would rather talk about something else and stress by myself, which means that if I am going to study at the library, I am going to have to make a b-line for the study carousel.
Besides the school work, this has been a pretty good week. I have been consistently working out this semester, and although this takes some time out of my day, it also helps clear my head and keeps me focused during the time I am studying. I also made croissants for the Environmental Club Bake sale which has been going on all week. I sat at the table yesterday afternoon trying to sell cookies to raise money and had a conversation with the girls at the Rigos Bar Review table, and one was so frustrated with Pres. Bush she wanted violent people's uprising. It is nice to meet some ultra-liberals at the school. I know there are others, but there are more young pro-business conservatives at law school than I have had to be around in the last 10 years combined. I am all for an occasional political debate, but as a friend once wisely said, sometimes you just want to have a conversation with someone who see things the way you do. That is the kind of venting that can relieve stress.
But before I get too caught up with thinking about violent takeovers, back to property
Besides the school work, this has been a pretty good week. I have been consistently working out this semester, and although this takes some time out of my day, it also helps clear my head and keeps me focused during the time I am studying. I also made croissants for the Environmental Club Bake sale which has been going on all week. I sat at the table yesterday afternoon trying to sell cookies to raise money and had a conversation with the girls at the Rigos Bar Review table, and one was so frustrated with Pres. Bush she wanted violent people's uprising. It is nice to meet some ultra-liberals at the school. I know there are others, but there are more young pro-business conservatives at law school than I have had to be around in the last 10 years combined. I am all for an occasional political debate, but as a friend once wisely said, sometimes you just want to have a conversation with someone who see things the way you do. That is the kind of venting that can relieve stress.
But before I get too caught up with thinking about violent takeovers, back to property
Monday, April 10, 2006
Momentum
Things are gaining momentum now. The library is busier than the long island train platform where Mrs. Palsgraph stood and there is a feeling that something is about to explode. Yes, it is that time of the semester again where everyone feels like there is not enough time to do all that we have to do. Our final memos are due in two weeks, classes end in three and finals begin shortly after that. I still have a lot of outlining to do, let alone reading that keeps piling on, but before this post drowns in the weight of pending stress, I want to point out another momentum that is gaining speed, and that is the progress of "thinking like a lawyer." "Thinking like a lawyer" is the ultimate goal of this year, and in studying for exams, we should try not to put the cart before the horse. If you can think like a lawyer, you will do well on the exams, but working to pass the exams does not necessarily mean that you will think like a lawyer. What does this mean exactly? The way I see it most clearly coming into play can be seen in the melding of ideas from different classes. The procedural knowledge from Civ. Pro. is making the understanding of Torts easier and the concepts from property come up in contracts, and on and on with almost daily examples of this kind of circular sharing of ideas.
That's all I wanted to say. Now I have to think like a lawyer and not spend a long time blogging so that I can focus on my real work: understanding express contractual conditions.
That's all I wanted to say. Now I have to think like a lawyer and not spend a long time blogging so that I can focus on my real work: understanding express contractual conditions.
Thursday, April 06, 2006
The Socratic Method
Blogging and questioning the efficacy of the Socratic method is shared by law students all over this country. I cam across this post on a blog called One-L Hell
My contracts professor described the the Socratic method as similar to electroshock, where the student is led further and further to an absurd legal conclusion. At the point where your logic fails, your gut instinct fills in, and hopefully, if the professor has done his job correctly, you will not worry so much about "having the right answer," and can actually be present in the class to hear the question, pause, think about it, and answer from a place of gut understanding. This is an ideal situation. Yesterday in Civ. Pro, our prof spent ten minutes going down the row through about 20 students trying to elicit an answer to a question about removal. To the rest of us who were not in that row, it felt like a complete waist of time, but then again, the answer always seems a lot clearer when you are not hooked up to the electroshock machine. while taking a break from Contracts.
Classic Lines from Law School Lectures
Here for the first time in what should become a regular instalment, Classic Lines from Law School Lectures:
From Torts: "Comparative negligence and res ipse comparisons are like comparing apples and dreams of oranges"
From Property: "Well, there is at least one way to get out of a Joint-Tenancy? Anyone? You could kill your wife (but you might have some other problems)"
From Torts: "Comparative negligence and res ipse comparisons are like comparing apples and dreams of oranges"
From Property: "Well, there is at least one way to get out of a Joint-Tenancy? Anyone? You could kill your wife (but you might have some other problems)"
Wednesday, April 05, 2006
Spring Brings in the New
As you can see, I have been updating the look and feel of this blog recently. As I was thinking about what blogging means and about the phenomenon of social networking websites, I though I should spruce up this blog a bit. I promise that I will return to thoughts about law school and that no amount of cool widgets and profile features can make up for lack of interesting writing (or can they?), but in the mean time there are some cool new parts of law-new-view.
1) My Library: you can scroll down and check out the books that are in my personal library. Besides my bicycle, my books make up probably my biggest asset. When you are twenty-nine and this is the case, it does indicate something about what I have been doing with my time. There is a cool site, Library Thing, that allows you to catalogue all of your books, and in my little spare time I have been slowly building my online catalogue. Right now I have pretty much only made it through my German books, so it will give somewhat of a skewed view of the kind of books I spend most of my time reading, but then again, before studying the law, I did receive a Masters in German Literature and Philosophy.
2) My Profile: For a while I was afraid to put too much personal information on this site, and although I hear that big law firms will Google applicants and search for them on Myspace to find out if that person has a juicy personal life that would conflict with the values of a firm, I don't think I have said or will say anything that I wouldn't feel comfortable with an employer knowing (with one disclaimer, if you right now are a future employer, I don't always write my posts were perfect grammar or impeccable legal logic, but that is not for lack of the capacity to do so). Secondly, I think I was just nervous about having that much public information about myself accessible to anyone who could access it, but after I began to see just how much social interaction actually takes place on the web these days, this did not seem to be such a big deal. Call me old fashion, but I am still part of a generation of individuals that worked on Comador 64's, Apple IIe's and had a non-html "pine" e-mail account all through college. I didn't exactly come-of-age in the internet era, unless we consider my current focus on career, health, and greater personal relationships a coming of age. I did start out on a whole new path when I came to law school last fall, and this does feel like for the first time in my life I have a long term goal, a direction, a focus, and a chance to have a few greater assets than some bookshelves full of books (not that I don't value what I got from the books, but, god, what I wouldn't give to go on a trip to Mexico at the end of this semester. Would I give all my books? All? Couldn't I keep just a couple? OK. Anyone want to trade? I keep a dozen books, you back a week's getaway in Mexico, and you get all the rest of the collection? It could happen. . .check out what this guy traded for one red paper clip!)
3) Finally, I am testing out a new function that allows me to post comments as a MP3 files from any telephone. I can't quite picture a situation where I would use this feature, but you never know until you have it.
So that is what is new around here, as well as law school, which is on the verge of getting very busy. We just were assigned our fourth and final memo, finals are about a month away, I am only about halfway through outlining, and I am sure we will be learning new material right up until the end. I may not have time for all of this fun stuff, but I will try and keep you updated during the last push to the end of the semester.
1) My Library: you can scroll down and check out the books that are in my personal library. Besides my bicycle, my books make up probably my biggest asset. When you are twenty-nine and this is the case, it does indicate something about what I have been doing with my time. There is a cool site, Library Thing, that allows you to catalogue all of your books, and in my little spare time I have been slowly building my online catalogue. Right now I have pretty much only made it through my German books, so it will give somewhat of a skewed view of the kind of books I spend most of my time reading, but then again, before studying the law, I did receive a Masters in German Literature and Philosophy.
2) My Profile: For a while I was afraid to put too much personal information on this site, and although I hear that big law firms will Google applicants and search for them on Myspace to find out if that person has a juicy personal life that would conflict with the values of a firm, I don't think I have said or will say anything that I wouldn't feel comfortable with an employer knowing (with one disclaimer, if you right now are a future employer, I don't always write my posts were perfect grammar or impeccable legal logic, but that is not for lack of the capacity to do so). Secondly, I think I was just nervous about having that much public information about myself accessible to anyone who could access it, but after I began to see just how much social interaction actually takes place on the web these days, this did not seem to be such a big deal. Call me old fashion, but I am still part of a generation of individuals that worked on Comador 64's, Apple IIe's and had a non-html "pine" e-mail account all through college. I didn't exactly come-of-age in the internet era, unless we consider my current focus on career, health, and greater personal relationships a coming of age. I did start out on a whole new path when I came to law school last fall, and this does feel like for the first time in my life I have a long term goal, a direction, a focus, and a chance to have a few greater assets than some bookshelves full of books (not that I don't value what I got from the books, but, god, what I wouldn't give to go on a trip to Mexico at the end of this semester. Would I give all my books? All? Couldn't I keep just a couple? OK. Anyone want to trade? I keep a dozen books, you back a week's getaway in Mexico, and you get all the rest of the collection? It could happen. . .check out what this guy traded for one red paper clip!)
3) Finally, I am testing out a new function that allows me to post comments as a MP3 files from any telephone. I can't quite picture a situation where I would use this feature, but you never know until you have it.
So that is what is new around here, as well as law school, which is on the verge of getting very busy. We just were assigned our fourth and final memo, finals are about a month away, I am only about halfway through outlining, and I am sure we will be learning new material right up until the end. I may not have time for all of this fun stuff, but I will try and keep you updated during the last push to the end of the semester.
Tuesday, April 04, 2006
BBBbbbllllloooog!
There comes a point for many bloggers when the burden to blog 'bout blogging itself bares the benefit of a few moments of the blogger's busy babble. Blogging is a relatively new phenomenon and since blogging is self reflective by its very nature, it makes sense that you often see blogging about the phenomenon itself. Blogs can be many things. There are opinion,blogs where people find a forum for their incessant takes on this or that, because their friends/family/co-workers just don't seem to care as much as the illusion of an audience (or in many cases an actual audience that you never knew existed) that blogging provides. Then there are blogs about all sorts of interests: cooking, hiking, reading, you name it there is a blog for it. Then there are the random observation blogs, much like this one, that seem to collect the detritus of one's web-surfing, external observations, and internal dialogues. This blog probably falls into that category, although I certainly could write about many other aspects of my life but have chosen for mine and everyone else's sake to limit it to the general theme of life in law school. (disclaimer: I am sure there are many other different types of blogs, but I am not going to get into that here)
Beside blogs, there are a whole series of "social network" sites out there such as MySpace and Facebook, which incorporate some of the elements of blogging (usually a personal blog is one part of these sights) along with friends comments, and are a host to a plethora of profile-type information (favorite foods/classes/movies/etc). These sites are especially popular with teenagers and law students, both of which seem to have plenty of time to gossip with their friends, post videos, and take personality quizzes to post to your site. There has been plenty of hype about Myspace lately and again, I do not really wish to get into a discussion of such activities but to say my dabbling with that world left me frightened--either because it disturbed my deep Luddite longings or because I saw the vast potential for "time-sucking" (if that word hasn't been coined yet, I want credit).
For me, I am happy with this blog. Since I am in law school and my time is limited, I think I will keep my focus on this particular vehicle for maintaining my presence on the web. I realize it doesn't have the same social networking capabilities, and comments are left anonymously and not with nifty pictures of my friends, but be it selfishness or just taste, I like this medium. I really never even thought people would read this blog, but as I began to take a greater interest in the quality of my posts, I began to want people to also read them. I have told more people in the last months and I am even thinking of e-mailing all the people in my adress book with a link just in case they want to keep up on these observations. I guess our personality in cyberspace does take on some of the characteristics of who we are in real life. I have a tendency to be, well, slow to let other's in on what is going in on my life (so I hear from my parents) and it has taken more than six months to really think, hey, maybe I should share this little piece of internal dialogue. We'll see.
As far as this blog goes, it has never really been one thing. There was that phase where I was very structured, posting weekly with specific themes for specific sections and as of late my posts have been more ad hoc. I guess I haven't figured out what I like best: maybe a combination of both, but I am sure this will not be the end of the evolution, and the whole point of this was to chronical the first year of law school. You might ask, what does blogging have to do with that? Well, for one, the legal profession, consisting mostly of reading and writing, is full of blogs, blogging, and bloggers, and two, anyone who has been in a law school lately will notice that everyone is on the computer and that a huge percentage of social interaction and connection takes place through IM, blogging, profiles, social networks, e-mail, etc. You can't fight the flood, but you can choose the boat you want to float in.
Beside blogs, there are a whole series of "social network" sites out there such as MySpace and Facebook, which incorporate some of the elements of blogging (usually a personal blog is one part of these sights) along with friends comments, and are a host to a plethora of profile-type information (favorite foods/classes/movies/etc). These sites are especially popular with teenagers and law students, both of which seem to have plenty of time to gossip with their friends, post videos, and take personality quizzes to post to your site. There has been plenty of hype about Myspace lately and again, I do not really wish to get into a discussion of such activities but to say my dabbling with that world left me frightened--either because it disturbed my deep Luddite longings or because I saw the vast potential for "time-sucking" (if that word hasn't been coined yet, I want credit).
For me, I am happy with this blog. Since I am in law school and my time is limited, I think I will keep my focus on this particular vehicle for maintaining my presence on the web. I realize it doesn't have the same social networking capabilities, and comments are left anonymously and not with nifty pictures of my friends, but be it selfishness or just taste, I like this medium. I really never even thought people would read this blog, but as I began to take a greater interest in the quality of my posts, I began to want people to also read them. I have told more people in the last months and I am even thinking of e-mailing all the people in my adress book with a link just in case they want to keep up on these observations. I guess our personality in cyberspace does take on some of the characteristics of who we are in real life. I have a tendency to be, well, slow to let other's in on what is going in on my life (so I hear from my parents) and it has taken more than six months to really think, hey, maybe I should share this little piece of internal dialogue. We'll see.
As far as this blog goes, it has never really been one thing. There was that phase where I was very structured, posting weekly with specific themes for specific sections and as of late my posts have been more ad hoc. I guess I haven't figured out what I like best: maybe a combination of both, but I am sure this will not be the end of the evolution, and the whole point of this was to chronical the first year of law school. You might ask, what does blogging have to do with that? Well, for one, the legal profession, consisting mostly of reading and writing, is full of blogs, blogging, and bloggers, and two, anyone who has been in a law school lately will notice that everyone is on the computer and that a huge percentage of social interaction and connection takes place through IM, blogging, profiles, social networks, e-mail, etc. You can't fight the flood, but you can choose the boat you want to float in.
Monday, April 03, 2006
Law School, Drinking, and Editing
I have had a comment that my last post was somewhat difficult to follow and that maybe it was not written in the most clear and concise language. Before you get suspicios, that was not the result of trying to write while drunk but rather was caused by the fact that I wrote that post while taking a break from editing my legal writing memo. After five hourse of getting all my commas in the right place and making sure everything sounded logical I guess I just wanted to write without that little mental editor getting in the way. So if you are reading this post first, read the following post without trying to make much sense out of it. Stream of conscious writing is not popular in legal writing, but as a break from such writing ,it is wonderfully theraputic.
Sunday, April 02, 2006
Law School and Drinking
In light of recent converastions taking place on this blog concerning drinking (and believe me, I am flattered that people care enough to notice when I update and leave their comments on posts) I thought I would weigh in on the subject. I don't know if suprises non-law students that plenty of drinking goes on at lawschool. From my other life experiences, alchohol doesn't appear to be any less, or greater, of a social lubricant amoung those who aspire toward professional careers of the mind than it was amoung the cooks, stagehands, truck-drivers, and law-mowers I have worked with in the past. Alchohol is a universally appreciated drug. In fact, there have been several books published in the last couple of years that have tried to undersatnd the high level of drug use and alchohol abuse in the legal profession, and the general, overly simplified, explaination seems to be that the pressure, compitition, and discretionary wealth are perfect soil to plant a socially acceptable addiction (and being a lawyer or doctor are for many familys the pinacle of socially acceptable). For me the most shocking realization, and in that matter difference from drinking in other professions I have observed, is that drinking for lawyers is seen as less of an escape from the difficulties of your work and life, but as an acceptable and in many ways encouraged behavior. The most pathetic example of this is when you see the most like professor of our section, who is mostly liked by ladder climbing egotistical emulators of the idea of intellectual sucess and who, despite his genuine concern for helping students, basks in the sunlight of their pathetic praise, when you see him joking around with students about how drunk they got on the Friday night before a review session as if it was a right of passage on one's succesful path toward partner. (if that is the only fun allowed an associate outside of his 80 hour work week, I have some serious doubts about life at a law firm).
Let me say, I have problem no with drinking per se. And I myself have not been immune from binge drinking, although I am making an effort to maintain as many brain cells as I have left in order to learn the law as well as loose the beer belly that was beginning hanging over my belt like a bowling ball in a baseball mit. My major gripe at this moment is that it is difficult to meet other law students for activities besides drinking. I understand we are all busy with studying, g/f's, b/f's, working out, jobs, etc, but there must be social life that is somewhere between a study group and a drinking game. If it is out there, let me know. E-mail your thoughts to hiltops@gmail.com and I will compile them into a later post.
Let me say, I have problem no with drinking per se. And I myself have not been immune from binge drinking, although I am making an effort to maintain as many brain cells as I have left in order to learn the law as well as loose the beer belly that was beginning hanging over my belt like a bowling ball in a baseball mit. My major gripe at this moment is that it is difficult to meet other law students for activities besides drinking. I understand we are all busy with studying, g/f's, b/f's, working out, jobs, etc, but there must be social life that is somewhere between a study group and a drinking game. If it is out there, let me know. E-mail your thoughts to hiltops@gmail.com and I will compile them into a later post.
Wednesday, March 29, 2006
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.
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.
Wednesday, March 22, 2006
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.
Monday, March 20, 2006
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.
Sunday, March 19, 2006
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.
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.
Wednesday, March 15, 2006
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!"
Tuesday, March 14, 2006
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.
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.
Friday, March 10, 2006
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 be head clerk; it was time 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 day, 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 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.
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.
Wednesday, March 08, 2006
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.
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.
Friday, March 03, 2006
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
Monday, February 27, 2006
Interesting area of law
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.
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.
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
Sunday, January 29, 2006
Jury Impeachment, etc.
Jury Impeachment, Senate filibusters, Jury of your Peers, and Sam Alito
I. Case of the Week:
I have decided to talk about an issue of civil procedure because it is the area I feel I need the most work. This week we are looking at the issue of balancing the desire to give a losing party relief from wrongful conduct by the jury against the policy goal of preventing instability of verdicts, fraud, and harassment of jurors. What we are talking about here is a juror who, after the jury has returned a verdict, comes forth to the judge or a litigant or the press and declares that the verdict was not correct for any number of reasons. The examples range from one member of the jury reporting being pressured by the other members of the jury to reports of pressure by the bailiff to hurry up with a verdict. There was also an example of reports of rampant drug use by the jury during the trial and the deliberation. The common law rule, called the “Mansfield Rule” laid out by Lord Mansfield in Vaise v. Delaval (1785) stated that “no man shall be heard to allege his own turpitude” (he said it in Latin, which I have omitted so as to avoid that trend to make doctrines sound more important simply because we do not understand the words) and it basically prevented any party from being able to request a new trial based upon an affidavit from a juror as to some mistake or unjust influence in casting a verdict. I can see the rationale for this. Outside of the protection of a trial, the courtroom, the presence of other jurors, what is going to stop a juror from being either harassed or bribed into claiming injustice in arriving at a verdict? Before reading these cases I had not considered juries from this perspective, and maybe it is because there seems to be a general sense (at least from laymen (which jurors are supposed to be) that jurors are safe in making their verdict and that what happens in the jury deliberations really will stay there, and that people will respect that decision. I am sure if I did some research into it, even on Google, I would find instances, but I still have the feel that we somehow respect the decision of jurors, and I think this is a good. And yet, I agree with the holding in People v. Hutchinson (455 P.2d 132, 1969) that there are instances where it is important to not hold to the Mansfield rule simply because it is stare decisis. (there I go using Latin after what I said above, but this is a pretty common term around here essentially meaning that we should stick with judicial decisions). In Hutchinson, the court makes a difference between the internal processes of a jurors mind and overt conduct, conditions, or events that are observable by other jurors. The former cannot be impeached by disallowing one juror to upset a verdict for reasons that cannot be validated by other members, whereas the latter allows the jurors to be witnesses to prove objective facts as to corruption or mistake. No jurisdiction seems to have a problem with jury impeachment in instances of miscalculations where the verdict runs counter to what the jury collectively though they were doing, but this rule developed in Hutchinson seems to be the best solution for dealing with those cases where the verdict is called into question. It both has a protects against the possible corruption of one juror an potential injustices to the loosing party as well as protects the sanctity of the jury deliberation.
II. At Lawge:
This week, we will most likely see the confirmation of Sam Alito to the Supreme Court, and it is likely to come on the same day of President Bush’s State of the Union Address. I am sure he will be gloating about nominating such an impartial interpreter of the law and how the Senate showed their strong support for this great nomination to the court. Many of us do not feel that way and there is a lot of information to show that Sam Alito is far afield from the American mainstream when it comes to his judicial philosophy. I do not think that a filibuster will work in the Senate, although I admire John Kerry for trying. I find it unfortunate that people interpret his attempt at a filibuster as a waist of time, and that the democrats should fight battles that they should win. That attitude neglects to recognize that even on a symbolic level there are enough people who really find Alito as an inappropriate replacement for O’Conner that they are willing to push the vote off for some time through a filibuster to make a showing of their distaste. I hope Kerry is successful in postponing the up-down vote at least until after the president’s speech. He will say enough as it is to make me want to throw up without having a gloating ,cocky smile on his face about the confirmation of his second, no third, nomination to the Supreme Court.
I also want to plug my source of information on the confirmation hearings, since the topic is almost never breached in law school despite its seeming importance to our future as lawyers. I listen regularly to the Alliance for Justice “Supreme Court Watch” Podcast. This show is informative and entertaining and comes in an audio form so you can listen even when your eyes are about ready to dry up and drop of from staring at a computer screen all day.
III. Gossip Column
I promised you this semester I would speak to the other side of law school, those dark undercurrents of envy, Shadenfreud, and competition that are always lurking beneath the surface of our paced attempts at professionalism. Two women who I study with have told me that they enjoy being the best dressed woman in their class / office / ect. and this sentiment is certainly not limited to those who have expressed it to me, but I will just say that around here, style, like your ability to apply law to facts in a timed exam, is graded on a curve, and not all of you can get A’s. There is defiantly a clear winner in my eyes, a supernovae, but for the rest, let me give you a list of fashion mistakes that keep caused you to fall somewhere on the backside of this curve:
1. You don’t need to wear a business suit to law school. Unless you have an interview or you are in the night section and actually work, there is no reason for you to show up on a daily basis in a suite. I understand that this is professional school and that you might see this as a job and even that you do not want to conform to the standard dress of your other students, but for getting a high grade on the fashion curve, you are going to have to do more than look like you are trying to be first in line at the job fair.
2. Don’t use a roller bag. Get a locker, get a backpack, get a car, get a mule, get a Sherpa, but whatever you have to do, don’t use a roller-bag.
3. Thick glasses are out. They don’t make you look any more intelligent and every other girl on Capitol Hill looks like they rolled out of Woody Alan’s bed this morning fulfilling his fantasy for young girls and accidentally put on his glasses.
4. The matching Juicy Sweat-suit. I shouldn’t have to say anything. Just, no, unlike your common sense, check it at the door.
5. This last note is more personal preference than objective style sense, but what is style if not personal and any teacher who has graded exams knows that perfect objective grading doesn’t exist. White tennis shoes might be alright for a day at the country club, but they are hardly fashionable.
So, for those of you who have violated any of these maxims, these common laws of style, you might make law review but not law-new-view.
IV. Judicial Quotes
It’s what we call in law school the slippery slope and if you start answering the easy questions you are going to be sliding down the ski run into the hard questions, and that’s what I’m not so happy to do.
-Sam Alito
Well, this man is applying for a job on the most powerful court in America, and he is afraid to do what we do every day of the week in hopes of someday getting any job. Was Alito the student in class that could answer all of the questions about the facts of a case, but was afraid to look commit to a hard answer for fear of looking like he might get it wrong. I realize it is probably not a fair comparison to compare a senate judiciary hearing and the Socratic method of a first year law class, but it was his metaphor.
I. Case of the Week:
I have decided to talk about an issue of civil procedure because it is the area I feel I need the most work. This week we are looking at the issue of balancing the desire to give a losing party relief from wrongful conduct by the jury against the policy goal of preventing instability of verdicts, fraud, and harassment of jurors. What we are talking about here is a juror who, after the jury has returned a verdict, comes forth to the judge or a litigant or the press and declares that the verdict was not correct for any number of reasons. The examples range from one member of the jury reporting being pressured by the other members of the jury to reports of pressure by the bailiff to hurry up with a verdict. There was also an example of reports of rampant drug use by the jury during the trial and the deliberation. The common law rule, called the “Mansfield Rule” laid out by Lord Mansfield in Vaise v. Delaval (1785) stated that “no man shall be heard to allege his own turpitude” (he said it in Latin, which I have omitted so as to avoid that trend to make doctrines sound more important simply because we do not understand the words) and it basically prevented any party from being able to request a new trial based upon an affidavit from a juror as to some mistake or unjust influence in casting a verdict. I can see the rationale for this. Outside of the protection of a trial, the courtroom, the presence of other jurors, what is going to stop a juror from being either harassed or bribed into claiming injustice in arriving at a verdict? Before reading these cases I had not considered juries from this perspective, and maybe it is because there seems to be a general sense (at least from laymen (which jurors are supposed to be) that jurors are safe in making their verdict and that what happens in the jury deliberations really will stay there, and that people will respect that decision. I am sure if I did some research into it, even on Google, I would find instances, but I still have the feel that we somehow respect the decision of jurors, and I think this is a good. And yet, I agree with the holding in People v. Hutchinson (455 P.2d 132, 1969) that there are instances where it is important to not hold to the Mansfield rule simply because it is stare decisis. (there I go using Latin after what I said above, but this is a pretty common term around here essentially meaning that we should stick with judicial decisions). In Hutchinson, the court makes a difference between the internal processes of a jurors mind and overt conduct, conditions, or events that are observable by other jurors. The former cannot be impeached by disallowing one juror to upset a verdict for reasons that cannot be validated by other members, whereas the latter allows the jurors to be witnesses to prove objective facts as to corruption or mistake. No jurisdiction seems to have a problem with jury impeachment in instances of miscalculations where the verdict runs counter to what the jury collectively though they were doing, but this rule developed in Hutchinson seems to be the best solution for dealing with those cases where the verdict is called into question. It both has a protects against the possible corruption of one juror an potential injustices to the loosing party as well as protects the sanctity of the jury deliberation.
II. At Lawge:
This week, we will most likely see the confirmation of Sam Alito to the Supreme Court, and it is likely to come on the same day of President Bush’s State of the Union Address. I am sure he will be gloating about nominating such an impartial interpreter of the law and how the Senate showed their strong support for this great nomination to the court. Many of us do not feel that way and there is a lot of information to show that Sam Alito is far afield from the American mainstream when it comes to his judicial philosophy. I do not think that a filibuster will work in the Senate, although I admire John Kerry for trying. I find it unfortunate that people interpret his attempt at a filibuster as a waist of time, and that the democrats should fight battles that they should win. That attitude neglects to recognize that even on a symbolic level there are enough people who really find Alito as an inappropriate replacement for O’Conner that they are willing to push the vote off for some time through a filibuster to make a showing of their distaste. I hope Kerry is successful in postponing the up-down vote at least until after the president’s speech. He will say enough as it is to make me want to throw up without having a gloating ,cocky smile on his face about the confirmation of his second, no third, nomination to the Supreme Court.
I also want to plug my source of information on the confirmation hearings, since the topic is almost never breached in law school despite its seeming importance to our future as lawyers. I listen regularly to the Alliance for Justice “Supreme Court Watch” Podcast. This show is informative and entertaining and comes in an audio form so you can listen even when your eyes are about ready to dry up and drop of from staring at a computer screen all day.
III. Gossip Column
I promised you this semester I would speak to the other side of law school, those dark undercurrents of envy, Shadenfreud, and competition that are always lurking beneath the surface of our paced attempts at professionalism. Two women who I study with have told me that they enjoy being the best dressed woman in their class / office / ect. and this sentiment is certainly not limited to those who have expressed it to me, but I will just say that around here, style, like your ability to apply law to facts in a timed exam, is graded on a curve, and not all of you can get A’s. There is defiantly a clear winner in my eyes, a supernovae, but for the rest, let me give you a list of fashion mistakes that keep caused you to fall somewhere on the backside of this curve:
1. You don’t need to wear a business suit to law school. Unless you have an interview or you are in the night section and actually work, there is no reason for you to show up on a daily basis in a suite. I understand that this is professional school and that you might see this as a job and even that you do not want to conform to the standard dress of your other students, but for getting a high grade on the fashion curve, you are going to have to do more than look like you are trying to be first in line at the job fair.
2. Don’t use a roller bag. Get a locker, get a backpack, get a car, get a mule, get a Sherpa, but whatever you have to do, don’t use a roller-bag.
3. Thick glasses are out. They don’t make you look any more intelligent and every other girl on Capitol Hill looks like they rolled out of Woody Alan’s bed this morning fulfilling his fantasy for young girls and accidentally put on his glasses.
4. The matching Juicy Sweat-suit. I shouldn’t have to say anything. Just, no, unlike your common sense, check it at the door.
5. This last note is more personal preference than objective style sense, but what is style if not personal and any teacher who has graded exams knows that perfect objective grading doesn’t exist. White tennis shoes might be alright for a day at the country club, but they are hardly fashionable.
So, for those of you who have violated any of these maxims, these common laws of style, you might make law review but not law-new-view.
IV. Judicial Quotes
It’s what we call in law school the slippery slope and if you start answering the easy questions you are going to be sliding down the ski run into the hard questions, and that’s what I’m not so happy to do.
-Sam Alito
Well, this man is applying for a job on the most powerful court in America, and he is afraid to do what we do every day of the week in hopes of someday getting any job. Was Alito the student in class that could answer all of the questions about the facts of a case, but was afraid to look commit to a hard answer for fear of looking like he might get it wrong. I realize it is probably not a fair comparison to compare a senate judiciary hearing and the Socratic method of a first year law class, but it was his metaphor.
Friday, January 27, 2006
Welcome back We are
Welcome back. We are already 4 weeks into the semester and I have yet to make a post to law-new-view, but I hope that the rest of the semester will be more productive than these first four weeks have been. I was in a post-holiday hangover for the week, and the second and third weeks were filled with enough personal drama to fill a T.V. sitcom about one’s first year of law school and not a semi-serious attempt at an intellectual evaluation of an educational process that this blog is supposed to be. The fourth week wasn’t much better either due to seasonal depression or the mounting work that is ahead of me, but I feel a bit of a resurgence coming on and as my personal life settles down and my mind wakes up, this should be a good semester.
I hope to make regular weekly postings and to maintain a bit of a structure for my ramblings. I will try and break up the posts into four segments and we will see how this works. First I will talk about the interesting case of the week, which will be a discussion of some case or topic that stood out in my mind as presenting a fascinating topic of law. Secondly, I will talk about the law at large. We could call it, At Lawge, and I will discuss either wider legal themes that I am interested in or hear about, like supreme court nominations, or where I imagine my law school career going: which at the moment feels like no where. Thirdly, will be a segment called the gossip column, where I will talk about those non-academic aspects of the law school experience either from the events of the hallways or of my life away from school. Finally, I will end with a quote from a famous judge, as was a habit that I began last semester.
I hope to make regular weekly postings and to maintain a bit of a structure for my ramblings. I will try and break up the posts into four segments and we will see how this works. First I will talk about the interesting case of the week, which will be a discussion of some case or topic that stood out in my mind as presenting a fascinating topic of law. Secondly, I will talk about the law at large. We could call it, At Lawge, and I will discuss either wider legal themes that I am interested in or hear about, like supreme court nominations, or where I imagine my law school career going: which at the moment feels like no where. Thirdly, will be a segment called the gossip column, where I will talk about those non-academic aspects of the law school experience either from the events of the hallways or of my life away from school. Finally, I will end with a quote from a famous judge, as was a habit that I began last semester.
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