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.

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

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.

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)

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.

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.”

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

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.

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

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.

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.

Poor Mrs. Palsgraph again. . .

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

heading into the steep finish

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

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

final's talk aready

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

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

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

Sunday night

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

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

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

Weekend Vagabond

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

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

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

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

Strait Talk

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

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

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

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

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

I quote from the majority opinion:

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

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

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

coming together: thinking like a lawyer

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

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

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