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Case Reading is Fun!
In a personal injury suit in which Erma Veith's car "veered across the center of the road into the lane in which plaintiff was traveling":
…The evidence established that Mrs. Veith, while returning home after taking her husband to work, saw a white light on the back of a car ahead of her. She followed this light for three or four blocks. Mrs. Veith did not remember anything else except landing in a field, lying in the side of the road and people talking. She recalled awaking in the hospital.
The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed that God was taking ahold of the steering wheel and was directing her car. She saw the truck coming and stepped on the gas in order to become airborne because she knew she could fly because Batman does it. To her surprise she was not airborne before striking the truck but after the impact she was flying…
See Breunig v. American Family Insurance Co., 173 N.W.2d 619 (Wis. 1970). The court did grant that Mrs. Veith's hallucinations might vitiate her negligence if she could show that she'd had no warning that she was going to suffer a hallucinatory episode while driving. However, the jury thought Mrs. Veith should have known of the risk and refrained from driving. Imagine that.
Posted 09:04 PM | Comments (5) | law school
Less than a week
The Matrix: Revolutions arrives next Wednesday, November 5, at 9 a.m. Are you counting the days, hours, minutes, or seconds? I'm just wondering when and how I'll be able to see it. Wednesdays are the worst. If you want a bit of the pre-release coverage, USA Today offers a brief interview w/the major players, and a quick and facile FAQ.
I'm sure there's lots more out there, but I've got to go read CivPro. Yesterday we read American Nurses' Association v. State of Illinois, which suggests that employers are free to discriminate on the basis of gender so long as the majority of other employers are also doing it. Nice. And there's the frustrating thing about CivPro: We often read cases that are interesting because of their subject matter, but since we're only focused on procedural questions, we have to leave all the fascinating legal questions for another day (or another class). It's like walking into a candy store and buying nothing but empty wrappers (or something like that—help me out with a good analogy, would you?)
Posted 07:08 AM | Comments (1) | law school
First Feedback
Caution: This post may contain higher than normal doses of whining.
We got our first memo back the other day and it was a bit humbling. As a former English/writing teacher, I feel a bit of pressure to do well in the legal writing aspect of law school. But more important, I, like so many others, would love to work for a journal, and in my third year I'd like to be a writing TA for the introductory LR&W sections (GW calls them "Dean's Fellows"). Of course, those goals would seem more realistic if I did well in my own legal writing assignments, and the first memo turned out, well, just ok. My writing is fine—no unnecessary passive voice, no filler, my memo is concise and precise. The problem: I didn't follow the right format.
The lesson is that in legal writing (or at least in my LR&W class), form is just as, if not more important than, function. You can communicate all your points clearly and concisely, but if you don't do it in the expected format, you'll do poorly. And that means following the format to the finest detail; virtually no deviation will go unpunished.
My instinctual reaction to that is resentment; I always taught my students that their primary goal should be to communicate clearly, and that form should follow function. However, I also taught them that good writing is all about pleasing the 800-lb gorilla, and if the gorilla wants your writing to take a certain form, you're not going to communicate clearly unless you follow that form. Too bad that lesson is sometimes hard to swallow.
I lost points for big things: My headings did not follow traditional outline format and I organized my discussion by level of authority rather than by legal issue. It made more sense to me to do it that way because several of the cases spoke to multiple issues. Oh well, I learned: Organize by issue.
I also lost points on some little things. My writing adjunct told us that our explanation should consist of paragraphs that begin with topic sentences that do not cite authority, but my writing TA didn't get that message and took points off for topic sentences with no citations. We were also supposed to use double-spaced, 12-pt, Times New Roman. I did, but since I use a Mac and Macs set type differently than does Windoze (and also maybe because there are multiple versions of Times New Roman produced by multiple font houses), my TA thought I'd cheated on font size and spacing to stay w/in the page limit. Strike another black mark on the long list of reasons the Microsoft computing hegemony is so so wrong.
But the font thing gets worse: When I explained the font size difference to my TA so she'd know for the next memo that I really am following the rules, she cautioned me that the judges of next spring's journals competition won't care about any explanations—if you don't set your type in 12-point Times New Roman (double-spaced) on a Windoze box (probably using MS Word), they will severely penalize your writing sample.
Hmph. That's good to know. Perhaps I should contact the people running the competition and ask them to be specific; if they're going to require people set their type on a Windoze machine they should say so, and if they're going to require competitors to use a specific word processor for setting that type, they should be clear about that, also. But that's the trouble with the Microsoft monopoly—the people running the journals competition probably won't feel a need to specify these things because they will assume everyone is going to use Windoze and Word. Yet they will penalize people who don't use Windoze and Word.
So not only does the Windoze monopoly potentially jeopardize national security, but it may also jeopardize my chances of writing onto a legal journal. Yay!
Posted 06:56 AM | Comments (5) | law school
Crazy Time
Last week the rubber began hitting the road and my racecar of law school started zooming down the track. At times, I felt like it was leaving without me. First, there was the midterm I went on and on about, follwed by a visit to DC Superior Court to observe both a civil and a criminal proceeding.
The civil proceeding—a wrongful termination suit against the DC Dept. of Corrections—involved lots of people wearing suits and was mind-numbingly boring. The criminal proceeding—a misdemeanor charge of crack possession—was much more interesting. The defendant basically claimed that the police planted the crack in his pocket, and he had witnesses to corroborate that testimony. The police claimed the defendant was simply lying. Implausible as his story seemed, I was actually believing the defendant until the judge opened his drug test records and they showed he was actually high on cocaine the day he was busted. The defendant's credibility went out the window when the judge asked both him and his attorney if he could swear he hadn't used cocaine yesterday, and he wouldn't do it. But imagine this: The defendant was 43 years old and had no prior record for anything. Why would a person start using crack at 43 years old? Aside from that, I was surprised to see that one of the greatest difficulties about that criminal proceeding was the communication gap between the defendant and witnesses on one side, and between the judge and attorneys on the other. It appeared that neither the defendant nor any of the witnesses had completed high school, while the judge and attorneys obviously had years and years of high-quality formal education. This left meant they almost spoke completely different versions of English. The biggest problem seemed to be that the "uneducated" side used lots of pronouns w/out making clear connections to their referents ("which 'guy' do you mean?"). Meanwhile, it was sometimes unclear whether the "uneducated" side really understood the "educated" side's questions. One thing that would have helped bridge the gap would have been a whiteboard or something to allow both sides to draw the situation they were trying to describe (people on a street corner) in order to increase the likelihood that they were understanding each other. Big takeaway (condensed into a simple point): Our legal system rewards education, but our educational system fails too many people.
Around midweek I attended the final round of GW's Mock Trial comeptition, which was interesting and very well done, but time-consuming. I had to leave before I learned whether the lawyer-defendant was guilty of murder. Mid-week also saw the introduction of En Banc, which I haven't been able to properly follow or post to because of time constraints.
The end of the week featured a mini-meltdown in Torts involving a probably unreasonable amount of anger at ProfTorts for presenting the Coase Theorem as value-neutral. Sure, in the abstract any theory is value neutral, I suppose, but it's disingenuous for a law professor who is obviously very smart and who could probably not avoid being at least somewhat familiar with the critiques of an idea to present that idea without at least giving some consideration to those critiques. Does it matter if 100 more students internalize the idea as "theoretically good" without even considering its possible pitfalls? Perhaps not. But I'm disappointed to be attending a school that creates the possibility in the first place.
Finally, and thankfully unrelated to law school (I just needed a breather), the week was capped by a Friday night trip to the Apple Store in Clarendon, VA, to pick up a copy of Panther, the new version of Mac OS X. Expose is very cool.
I blinked and the weekend was gone: I went to a 1L job search talk Saturday morning (which I hope to say more about later), helped someone move move most of the rest of the day, played a few hands of poker Saturday night, twiddled with a memo about asylum most of yesterday, and bang, here we are on Monday morning and the memo isn't ready and I've hardly done any of the reading for the week. Time; there simply isn't enough of it.
Someone asked me last week how law school compares to grad school in English and the answer is they both seem difficult, but in very different ways. I'll save the explanation of that for another day.
Happy Monday, everyone.
Posted 05:59 AM | Comments (1) | law school
JDARC? No.
I keep getting these messages from something called the JD Academic Research Council (JDARC), which describes itself as:
an Internet research community of law students who agree to the confidential assessment of their Internet usage habits. By aggregating the data that we collect in an anonymous fashion, we are able to help companies understand the needs and interests of law students - while maintaining your privacy.
In exchange for information about "internet usage habits," JDARC promises to pay me $10 for registering, $5 for staying through January, and $5 more for staying through May.
I'm sorry, but, no thanks. First, why would I want to help "companies understand the needs and interests of law students"? Do I really want to provide them with more and better ways to convince me I need and want more stuff or services? No. If there's anything I I'm sure I don't need it's better marketing targeted at me. And second, do they really think my time is worth so little? Sure, I've registered at lots of internet sites for free, but those sites didn't insult my intelligence and imply I'm a money-grubbing dolt by offering me a paltry payment in the first place. Without exploring it very far, it seems clear to me that JDARC offers zero value to law students, so it has to offer the illusion of value by offering tiny cash payments.
No thanks. Jerks.
Adding insult to injury, the JDARC website shuns the Safari browser; it won't even load a home page unless you're using IE or Netscape. (I assume a variant of Mozilla would work, but I'm not inclined to try to find out.) Double no-thanks. Doublejerks.
What I want to know is: Did GW sell JDARC my email address?
Posted 05:24 AM | Comments (5) | law school
Mid-semester Ouch
Ok, so the one mid-term was all great and good and I learned a great deal from the experience and yadda yadda yadda. So what? Today I'm sick of Torts, and sick of reading and briefing cases. Sick and tired. Ugh.
So instead of saying anything intelligent about anything, I'll just suggest you go visit En Banc, a new group blog to which I hope to contribute something just as soon as my head stops spinning from all the other things I'm supposed to be doing now. Thanks to Unlearned Hand for proposing the project, inviting me to join, building the site, and posting like a fiend to get the ball rolling.
Posted 08:37 PM | law general law school
Midterm II
Tow other things I learned from the experience of taking one midterm: First, one midterm is better than three. See Not for Sheep's experience for more on that. (Question: Under what testing conditions would a 50-page outline really be helpful? I'm thinking it could be great for a take-home exam, but otherwise, who has time to flip through it? Index? Brilliant idea!)
Second, I should have read Getting to Maybe last summer like Sue suggested. I've read bits of it, and that's enough to know it's worth reading in full.
To prep us for the exam (or was it to further convince us to give them lots of money?) the BarBri folks sent USC law prof Charles Whitebread to give us some exam-taking tips. Whitebread is the author of The Eight Secrets of Top Exam Performance In Law School, which BarBri gives away for free by the truckload. Whitebread's talk consisted of a 40-minute shorthand version of everything in the book, so if he comes to your school, I'd say go listen to him because then you won't need to read the book. The best tip I think he gave was to take the first 10-15 minutes of your exam period to get thoroughly familiar with the question and to organize (outline) your answer. If you do that, you'll have a good plan to follow and then you can just type out your plan.
Another great tip of Whitebread's was to use "the magic words": "But if there were.... but if he has...." The real magic word seems to be "If" because it allows you to explore more options with the facts and increases the chances you'll hit the issues and rules your prof was looking for when he/she wrote the exam. Of course, I have no idea how I did on the test so it's hard to say if this really works, but I can say that the sample answer my prof gave to a sample test used lots of "ifs" and I found it helpful.
Both Whitebread and Getting to Maybe were helpful in advising me not to waste time citing cases or quoting authority, and both encourage students to get right to the point; i.e., begin with "The first issue is...." But while Whitebread advocates the IRAC method for those issues, Getting to Maybe thinks IRAC might just get in the way of exploring the issues fully and that it might also lead students to be too conclusory. I didn't really use IRAC, exactly, for whatever that's worth. And in the end, I guess it's hard to say what advice was good advice until I know how I did. I'll let you know when they tell me, supposedly sometime before Thanksgiving.
Posted 05:48 AM | Comments (4) | law school
Law School Midterms
Apparently, the law school midterm is a strange duck—not too common. Today I took my first and only midterm for the semester, a one-hour, one-issue-spotter exam over personal jurisdiction and venue, and I have to say, I highly recommend the whole mid-term experience.
That's not to say it was fun. I spent many many hours over the past weekend reducing a horrible mess of a 20-page outline down to about 1.5 pages of essential material, plus another 7-8 pages of statutes and more complete notes on cases so I'd be covered if I blanked. The question was taken straight from "Queer Eye for the Straight Guy," except that the "queer eyes" were called "Fab Five, Inc." and instead of being on tv they were a consulting firm in NYC that offered fashion and etiquette tips to men. The main issue was that Fab Five had given advice to a client who was a resident of New Jersey, and when the advice produced bad results, the client brought a suit in diversity against Fab Five in NJ. He also sued the French manufacturer of a tanning spray Fab Five recommended; a third defendant was Allen, one of the Fab Five consultants (the plaintiff was suing Allen for activities that were not directly related to his work as a Fab Five employee). The question was, of course, if the New Jersey U.S. District Court had jurisdiction over these defendants, and if venue was proper.
I spent about 15 minutes reading the facts and organizing an answer, looking through my notes for relevant bits. Then I spent about 25 minutes furiously typing the answer, which left me with nearly 20 minutes to wonder what I'd missed. I'm thinking that's not a good sign, and that will probably show up on my grade. So what I learned from the experience was this:
- I need to take much better notes. Thus far I've just been doing the standard Facts, Issue, Holding, Reasoning, Disposition, Random Notes categories in my case briefs. The Random Notes section becomes a catch-all where I basically transcribe most of what happens in class. This leaves me with a bunch of miscellaneous garbage, and when it came time to study I had a hard time sifting through it all to what what was most vital. The lesson is, don't just take down everything that happens in class; prioritize and make the priorities of bits of information clear in your notes.
- Another note-taking lesson for me: I need to spend more time with my notes after I take them. I've heard this advice before and now I know it's good: After class each day, spend a few minutes (or more) reducing the notes from that day to a concise outline of the most important bits. This will help you when you study for exams, but it will also force you to make connections between cases you've previously read, and it will highlight those things you still don't understand so you can ask the appropriate questions in the next class or during your prof's office hours.
So in all, the experience was good because it shook me out of my complacency and reminded me that I need to work a lot harder if I'm going to be prepared for and do well on final exams. Yay! I love working harder! I really do!
Posted 07:37 PM | Comments (3) | law school
The Deficit Speaks Volumes
As the U.S. budget deficit hits a record $374.2 billion, sane people have to ask: What the hell does this mean for our future? It means many things, but among the most important for voters to consider next fall is this, as described by Howard Dean:
"I think their principal motivation is to undo the pillars of the New Deal, particularly Medicare and Social Security, by making the budget deficit so big that those programs can't be sustained," he said at a lunch with USA TODAY and the Gannett News Service.
Thank you, Howard Dean! It's about time someone stopped beating around the Bush, so to speak, and honestly confronted this issue. Republicans have been fighting for decades to slash holes in the "social safety net," but now they've finally found a way to get rid of it altogether. Don't believe it? The Bush administration is celebrating this record-setting deficit as great news:
"Today's budget numbers reinforce the indications we have seen for some months now: that the economy is well on the path to recovery," Treasury Secretary John Snow said.
Perhaps this is why "maybe" now prevails in presidential surveys; or perhaps that story is right and those surveys are meaningless. We'll see next November, but check out this innovative way to have some effect on that outcome: End the Stupor Tuesday.
Posted 06:02 PM |
iTMS II
Salon's Farhad Manjoo says iTunes for Windows represents Apple's capitulation to Windows' dominance. Um, yeah, maybe. But he also says:
Not. Sorry, but that's like saying many Cubs fans have long wished all their favorite Cubs players would get traded to the Yankees so they could finally be on a winning team. Those are Cubs fans? I don't think so. So yeah, Apple's making a concession here, but I wouldn't expect to see Mac OS X running on Intel processors anytime soon.
But while Mr. Manjoo seems perhaps a little too eager for Macs to disappear, his story has a great quote from U2's Bono, who was beamed in on video for the iTunes for Windows intro yesterday:
I'm with you Bono. I kiss few corporate asses, but Apple's is the most kissable. To see why, check out the top two things that make the iTunes Music Store rock:
- 5,000 audiobooks, including Snow Crash, unabridged.
- Celebrity playlists from Michael Stipe, Moby, Billy Corgan, and more. Think custom mixtapes from your favorite artists. Way cool.
Plus, if you're an iPod owner, you can now buy some cool new accessories for your dream jukebox, including my favorite, the Belkin Voice Recorder which allows you to record voice notes directly to your iPod. If you want to show me love and buy me a new toy, just let me know. ;-)
Posted 06:23 AM | Comments (1) | mac geek
Stuffy Professors Suck
Note to professors: Please do not begin email to your students with "Attached hereto is...." Sorry, but there's really no need for humans to talk that way, even if they are lawyers or law professors. Thanks.
Posted 06:02 AM | Comments (2) | law school
I saw a pig fly!
No, the Cubs didn't make it to the World Series (sadly, although the Sox still may). Instead, Apple has released iTunes for Windows. Currently Apple's homepage sums up this development pretty succintly. It reads:
Indeed. Still, it's probably going to be good for everyone—consumers, artists, music labels, Apple—to get more people downloading music legally, and right now nobody makes that easier or is more successful at it than Apple.
Who knows, maybe a few Windows users will see how easy iTunes is to use and realize that using a computer doesn't have to be a painful and frustrating experience. Hell has frozen over, right?
Just Wait
To the person who came here looking for "what to do as a law school flunk out ," just wait a couple months and I might have some great ideas for you.
We have a midterm in CivPro on Monday and people are really starting to worry about grades. I've never cared much for grades, and although I know everyone is right when they assure me that grades do matter in law school, I just can't seem to make myself care. I mean, of course I care, but not probably not enough. Put it this way: When it comes down to reading or watching "Survivor," I choose "Survivor." At lunch w/professors a few weeks ago (all four have invited us to lunch in groups, which is nice; one of them even picked up the tab) ProfTorts said the best piece of advice he could give to law students would be to "kill your television." He's right, of course, but that's like telling people to stop shopping at Wal-Mart; it would make the world a much better place, but it ain't gonna happen. ;-)
Now is the time in the first semester when I'm disgruntled. Wait, I'm always disgruntled. Perhaps I should change the name of this blog to "Slanted and Disenchanted" in a blatant Pavement ripoff that would more correctly portray its usual bent. But really I'm too ambivalent about my cynicism and disenchantment to do that much about it.
Instead perhaps I will chuckle at the self-importance of the GW journal write-on competition. It happens next March and already they're warning us to save the date and begin our planning. That's somewhat understandable, given that the competition is the first weekend of spring break and lots of people might be making spring break plans already. What's funny is the precision with which they describe the procedure for competing:
Got that? If you turn your packet in at 8:00:01, your out, buddy. I hope they have a plan for synchronizing our watches, or we could be in trouble.
Posted 08:57 PM | Comments (2) | law school
CEDP:
This week, Oct. 13-1, is Death Penalty Awareness Week, sponsored by the Campaign to End the Death Penalty. Get a quick education by reading Five Reasons to End the Death Penalty.
L. and I went to a CEDP "Live from Death Row" event last night where we listened to a former death row inmate talk about his experiences. He had to phone in via speaker phone because he's still hin prison—his sentence was commuted to life w/out parole. He was preaching to the choir as far as L. and I were concerned, but it was still a powerful experience to hear him talk about how the CEDP saved his life. If you keep an eye out, you might find a similar event near you this week.
Posted 08:27 AM | law general
Driving tanks: Not yet a usual activity
Continuing the torts thread of liability for abnormally dangerous activities, such as blasting or keeping tigers in your apartment, yesterday's reading revealed that in determining what qualifies as an abnormally dangerous activity we should consider, among other things, the extent to which the activity is not a matter of common usage. Restat. 2d Torts, § 520 (1977). Helpfully, my torts textbook informs me that:
Thanks, Professor Epstein. It's good to know driving tanks is not yet a usual activity, but we better hurry up and file our class action against all Hummer drivers before it becomes so.
Posted 06:29 AM | Comments (3) | law school
Media: Big v. Little
The cover story on today's USA Today shouts, "Wesley Clark's fledgling campaign hits its stride."
Funny how different that BigMedia noise sounds from the LittleMedia version of the current state of the Clark campaign (also lots more inside detail here, and of course, there's always the letter from the leader of the Draft Clark movement that begins, "By the time you read these words, the bell will be tolling for Wesley Clark's candidacy."
Has the DNC exercised some influence at USA Today, or are this writer and her editors just not doing a very good job researching? Or are the bloggers just wrong?
Posted 06:13 AM | election 2004
Legal Eye for the Homicidal Guy
Last Thursday was game day in CrimLaw. I guess after a couple weeks of intense discussion about rape,* ProfCrim thought it would be good to lighten the mood with a little game about homicide. Yeah, that's just the kind of class it is.
In a well-planned exercise, ProfCrim handed everyone in the front row a poster describing a different crime. A few of the posters read as follows:
- My boyfriend tried to have sex w/me after I said no and I killed him.
- I drove home after drinking and killed a girl.
- I'm a police officer and I shot a burglary suspect in the back.
- I'm a hit person for the mob and for big bucks I killed one of the Sopranos.
- A guy called me a crossdresser and I killed him.
- I greased my son's steering wheel like I saw on Jackass and he had an accident and died.
- My dear mother asked me to kill her when her Alzheimer's made her a vegetable and I did.
Out of a class of approx. 100, no one agreed w/the way the student ranked the crimes, showing what a difficult task such ranking really is, and what a big job lawyers and judges and legislators have in making distinctions between different types of killing. But speaking of killing, I continue to be surprised at how willing people seem to be to use the death penalty. Some of them seem wholly ignorant of the growing opposition to the death penalty (also here). My peers never cease to amaze me.
In other law school news, this weekend I finally spent the weekend studying like a real student. We turned in our first legal memo last week, and our next assignment has already begun. The issue: Whether our client is eligible and likely to be granted asylum in the U.S. I spent hours researching asylum law, but unfortunately most of that time was spent fighting with the online legal research services I love so much. At first glance, I prefer Westlaw because it's just easier for me to find things there, but for some reason Westlaw crashes Safari like nobody's business. So I had to turn to Lexis, where it's much more cumbersome to search in different databases. Is it even possible to search multiple databases at the same time via Lexis?
On the plus side, I discovered DEVONthink ("Your supplementary brain!") is a great legal research tool. Whenever I find something on Lexis that seems relevant to my topic, I just highlight, hit shift-command-0, and bang! that bit is copied into my DT database and automatically filed in the appropriate category (that's the gee-whiz cool part).
On the whole, I gained a new appreciation for legal research this weekend. There are a lot of cases out there, and it's no small or easy task to decide which are the best ones to apply to your case. Speaking of which, I've got an annotated outline to work on. Happy Monday, everyone!
* L-cubed has a nice little note about whether "no" means "no" (yes, it does), with links to opinions from Greg Easterbrook and Dahlia Lithwick.
Posted 06:45 AM | law school
Quick Campaign Update
The Kerry and Gephardt campaigns are ganging up on Dean.
Wesley Clark's campaign is having growing pains, and that's putting it nicely. Jim Moore has been tracking this well, and he's also got some great thoughts and a link on what the Dean campaign could still do better.
Posted 05:16 AM | election 2004
Lying About War: A Strict Liability Offense
So far in Torts we've covered intentional torts (i.e.: assault and battery), and whether liability for unintentional torts should be decided on the basis of negligence or strict liability. The question is: Should we make people pay for damages they cause to others only if those damages were the result of their negligence, or should we make them pay no matter what (strict liability)?
I thought of this distinction yesterday morning when I caught an interview w/John Kerry on ABC's "This Week" (the one hosted by former Clinton aide George Stephanopoulos). George Will was grilling Kerry on wether he'd agree w/Ted Kennedy that the most recent war against Iraq was a "fraud" "made up in Texas." Will wanted to pin Kerry down on this; he was trying to argue that calling the war a "fraud" goes beyond the question of whether Bush and Co. mislead the world about the need to go to war. I believe the way Will put it was "fraud goes to intention." So Will was essentially asking Kerry to say whether Kerry thought Bush and Co.'s intentions in going to war were fraudulent. Kerry would neither say yes or no, only that he's said clearly that he believes the President mislead the world.
And that's the bottom line: Lying to start a war is (or should be) a strict liability offense. Bush did it, now he should have to pay—by being voted out in Nov. 2004, and by having his legislative and social agenda shut down for lack of support until then.
Our legal system decided long ago that when you do something that's inherently dangerous to others, no amount of care or good intentions on your part will place you beyond accountability for your actions. When you keep an animal known to be "accustomed to biting mankind," it doesn't matter how careful you are in keeping the animal locked up; if it bites someone, you're liable and must pay for damages. When you set off explosions—as when blasting a highway tunnel, for example—it doesn't matter how careful you are in blowing the charges; if someone is injured or someone else's property is damaged by your blasting, you must pay.
Lying to get us into war is an inherently dangerous activity. By definition, it threatens the lives of every American service person, and it inevitably threatens the health of the nation (via loss of standing with the rest of the world, for example, not to mention the budget and other problems it causes). Therefore, Bush and his entire administration must pay for what they've done. We, the American people, should make them pay by withdrawing any faith we formerly had in them, by distrusting every single thing they say, and by demanding that our legislators stop supporting their failed policies.
Sure, it would be nice to understand what Bush and Co. were thinking in starting the war. Did they really think Saddam Hussein was an imminent threat? Had they drunk their own kool-aid? Maybe, the fact that Woflowitz and Pearle had been planning this war for a decade makes that seem pretty far-fetched. Did Bush and Co. really think they could waltz into Iraq, take over the oil production, and start reaping the windfall w/out any trouble? Maybe, but again, that seems pretty unlikely. Did Bush and Co. see a war against Iraq as a brilliant way to funnel what was once the largest budget surplus in history away from the public and into the hands of private corporations like Halliburton? Again, it's hard to say, but this seems the most likely explanation, since this is, in fact, what happened. (And why would Bush and Co. want to push the U.S. government closer to bankruptcy? Well, gee, Bush and Co. have always hated the "social safety net" of so-called government entitlements like social security, medicare, etc. And what better way to get rid of them than to simply say, "oops, sorry, we don't have any money to pay for them"?)
Frontline has a big special report on the possible reasons we went to war and what went wrong. However, Bush and Co's intentions in going to war will be something for history to determine. What matters now is that they lied, and for that they're strictly liable.
Posted 05:05 AM | election 2004 general politics
Blank Check
One year ago today, the House and Senate voted to give President Bush blank check authority to use military force against Iraq. In infamous Harper's Index fashion, the Dean for America campaign gives us the last year by the numbers. It's not a pretty picture, and it's not getting any better. Is Bush PR spinning right out of orbit? Um, yeah, that happened several years ago, but finally people are starting to notice.
In the race to decide who's going to replace Bush, the Kerry campaign is rumored to be having troubles, and the trouble in the Clark campaign is more than a rumor. Those links come from Scripting News, where Dave Winer is trying to get the campaigns to blog. I think it's a great idea.
Posted 06:17 AM | Comments (1) | election 2004 general politics
R.I.P. Neil Postman
Farewell to Neil Postman, author of Amusing Ourselves to Death (among other things). The book has been sitting on my shelf for years; I bought it simply because it had such an incredible title and because I'd seen it mentioned in so many other books. Judging from the Forward, now might be a very good time to dig it out. Comparing Aldus Huxley's Brave New World to Orwell's 1984, Postman wrote:
Postman claimed Amusing Ourselves to Death was "about the possibility that Huxley, not Orwell, was right." It's definitely a thesis worth re-examining in light of, oh, I don't know, the events of the last 50 years or so.
UPDATE: Another Postman tribute.
Posted 05:54 AM | Comments (2) | life generally
The Recall's Silver Lining
So yeah, California now has a governator, or something. And in a lot of ways it seems like this cannot be a good thing. However, the folks at Bush Recall.org are letting the Republican logic for the recall speak for itself. Their statement on the recall results (which I got in email) is terrific:
"We were opposed to the recall process being used for such blatant political ends. We have grave doubts about Schwarzenegger's ability to solve California's problems. And we know that governors all across the nation, Republican and Democrat, are faced with severe budget and economic problems caused by the poor national economy. But the voters have decisively sent a message that they aren't happy with poor results from their elected officials.
"Even though they won this election, Republicans should be very nervous today, because all of the problems voters rebelled against in California have been produced in abundance by President Bush. And the results will be the same in November 2004. Voters will rebel against yawning deficits, a bad economy, and out of control energy and health insurance prices. Voters will kick the chief executive out for his failures in 2004, just like they did yesterday."
Here's hoping they're right. It's looking better all the time. The next Democratic party debate is tonight at 8 p.m. Eastern on CNN. Invite your friends and play the Democratic Debate Drinking Game! (Who says politics is no fun?)
Posted 10:44 AM | election 2004
Illusions of Choice
This might seem totally out of context, but: For the past couple of weeks we've been reading about rape in CrimLaw. I understand it's somewhat unusual for an introductory CrimLaw course to spend so much time on rape, but our prof is doing a great job bringing out the hidden assumptions that underpin our rape laws. So far he's focusing mostly on assumptions about gender and race, but there are plenty of class issues involved, as well. Anyway, we keep reading cases where courts have a hard time deciding whether the sex was consensual, and I keep hearing my classmates say stuff like, "She still had a choice, she should have fought harder, she's responsible for her actions," etc. And all I keep thinking is how often what we call "choice" is but an illusion of choice. Then, while searching for some responses to Katie Roiphe (we're reading "Date Rape's Other Victim," which Roiphe wrote in 1993) I stumbled on this:
It doesn't get much more concise than that. (If anyone can identify the source of this quotation, I'd be, as they say out West, much obliged.)
Part of what Roiphe's arguing for is that we should give up some of our illusions about sex and gender, namely that women are fragile and need protection from the predation of lascivious men. She claims this led to Newsweek calling her "the Clarence Thomas of women," whatever that means. Her arguments carry obvious dangers—they could easily be appropriated by anyone who wants to maintain the status quo which seems to let men off the hook for "behaving badly." See, for example, the story of California's new governor. As a society, we too often seem to give men a free pass to grope and fondle, and I'm convinced too many men go unpunished for doing much worse. Hence the question of when choice becomes mere illusion. It sounds nice to say that women should just stop believing they're fragile and start standing up for themselves instead, but if it were really that simple, the world would be a much simpler place, wouldn't it?
Posted 06:01 AM | Comments (3) | law school
ADR
It appears my partner and I stumbled into a degree of success in the ADR (Alternative Dispute Resolution) contest in which we participated last Sunday. As I mentioned last week, I was a little less than excited by this competition, primarily because it seemed to require "formal business attire," a.k.a. a uniform.
But after ranting against the monkey suit, I gave into the inevitable and, $252 later (thanks to a big sale at Filene's Basement), I had the full uniform (socks and shoes included). And yesterday, we got the call saying, "Congratulations, you made the ADR Board." Yay!
The competition was actually pretty fun. Briefly, it worked like this: Each team of two got a fact pattern describing a dispute between a fictional collegiate athletic association and one of its member schools accused of rule violations. In addition, each team got some "confidential information" about what their client wanted out of the negotiation. The actual contest was a 20-minute negotiation session in which the two teams came together to see if they could reach an agreement. It turned out the confidential info on both sides gave us plenty of room for meeting in the middle, which we quickly did.
Like I said, it was fun, and it's always nice to get positive feedback for the things you do. Still, I feel a little silly about making the board; I mean, after listening to one of its reps lecture me about clothes for 20 minutes, I was convinced ADR was the last thing in law school for me. What's more, I don't really know what role ADR plays in the legal world or what it means to be "on the board." (Can anyone fill me in?) Yet, the idea of ADR seems like a good one; it's supposed to be a friendly thing, as opposed to the adversarial nature of a court proceeding. How can that be bad? I guess we'll see...
Posted 06:16 AM | law school
Academic English Craziness
Yesterday Brian Leiter pointed to "Critical Mass," a blog written by Erin O'Connor, who is apparently a tenured English professor at the University of Pennsylvania. I don't have time to say all I'd like to about O'Connor's blog, but suffice to say it's a very scary thing. And then there's the Erin O'Connor Watch, which I've got to think will only make things worse.
If you're currently in English academia, you might recognize what's going on here from your own experience or from things you've seen or heard about. The bottom line is that making a profession of English at the university level requires very different types of thinking than most people will have experienced elsewhere. That thinking is not necessarily "liberal" or "conservative," it's critical. If you're unwilling to engage in critical thinking, you're likely to be shunned. O'Connor obviously exhibits an ability to think critically; some of the letters she posts from former grad students and undergrads—not so much critical thinking.
I think all academics should have blogs; if "Critical Mass" was but one among many, readers could easily evaluate its claims about academia. As it is, "Critical Mass" is like a squeaky wheel, and academics might want to take care that it doesn't get the grease.
Posted 05:18 AM | life generally
A note on notetaking
Now fully 6 weeks into law school, I've figured out a handy trick to taking notes in Torts. Our torts casebook presents tons of little note-cases, cases mentioned briefly in the notes following the "main" cases that get fuller treatment in the textbook. Since it's often difficult to say whether ProfTorts is going to think any of these note-cases is important, I'm always hesitant to spend much time outlining them. Yet, several times, either the prof or someone in class will throw out the name of a case and I'll vaguely recall reading it, but I'll have to frantically page through the book to find it (sometimes even resorting to the index of cases at the back of the book). The solution I've found to this little problem is this: I simply type the name and page number of every note-case into my notes following my brief of the "main" case. That way, I won't waste time briefing note-cases that don't turn out to be important to the class discussion, but at the same time, if someone mentions "River Wear Commissioners v. Adamson" in class, I can just do a quick find for "River" in my notes and that will point me straight to the page I need.
It's working well so far. YMMV.
Posted 09:16 AM | law school
Procrastination
Instead of revising my first memo, reading, working on my legal research homework, or preparing for the ADR competition tomorrow, I'm being held hostage by the web's goodness. For example, who could tear themselves away from this letter slamming the hypocrisy and anti-competitiveness of Microsoft? And don't you want a MSfreePC? And whoa, Time Magazine's cover story this week is Mission NOT Accomplished. You know things are bad for Bush when you see Time shouting about it. Professor Cooper has the roundup on that, including a breakdown of the poll numbers.
In a more law-schooly vein, but also sticking with the anti-corporate fun, I'm loving the rants against Lexis and Westlaw at Three Years of Hell and MyShingle.com.
For great fun during a study break, you can't beat The Mr. Sanffleburger Corporation Children's Show! (I't a flash animation w/sound, so be careful if you're in a quiet office or library.) Conform. Consume. Obey. [link via TYoH]
Last night we had sangria and tapas at Jaleo, then we saw Lost in Translation, which was an incredibly great movie largely because it walked the line of being a horrible movie but just never really crossed over. In that' way it's a refreshing departure from the Hollywood norm, and it's also refreshing because its pace is human. Instead of relying on quick cuts and lame action scenes to keep viewers engaged, the movie relies on great character development to keep the plot moving. Both Bill Murray and Scarlett Johansson give stellar performances. We were going to see School of Rock, but it was sold out. Lucky us; "Lost in Translation" was just that good. Highly recommended.
Ok. Must. Work. Now.
Posted 08:09 AM | Comments (3) | law school life generally
Second Amendment
The Boondocks today is awesome. Who among the textualists will explain to young Riley what the "framers" intended when they wrote that bit about guns?
Hmph. That's what I thought.
Posted 02:38 PM | Comments (1) | law general
Suits
Calling all cars! Calling all cars! The urgent question has become:
How long can a guy go in law school or a legal career without owning a suit?
Ok, quit laughing, will you? I'm serious. I don't own a suit. I never have. And after making it this far in life w/out owning or wearing the uniform of capital, I don't have any desire to start now. Yeah, that's right, the uniform of capital: Men run around trying as hard as they can to look identical in their black suits with "understated" and "dignified" leashes tied around their necks. They look ridiculous. And why do they do it? Who are they trying to please? The man.
A corollary to today's question: Is it possible to wear a suit and not be a tool?
And but so, maybe I'm joking a little, but I'm serious about the fact that I think suits look ridiculous and I'd really prefer not to ever own or wear one. I feel like Bartleby. I prefer not.
Damn.
Yesterday I listened to a guy lecture a group of 1Ls for 20 minutes on the rules of appearance for successful lawyers. The hair must be slicked like a movie star's, you must be clean-shaven, you must have a certain collar (not button-down; you want the ones w/the plastic in them to make them stand up right), you must not have a colored shirt w/white collar and cuffs (you're not a partner yet, idiot), your shirt must be white or light blue, you must wear a belt, your tie must be at the perfect link, you must remove earrings, you must wear shoes that can be polished and they must be polished (don't forget to polish the sides of the soles!). Speaking of shoes, if you look down and you can see the soles sticking out around the edges, you need new shoes.
The guy just went on and on. And he was serious. It was sickening. And yes, I know he's an extreme case, but I really just want no part of that kind of business.
Mr. Clothes was supposed to be giving us tips on the upcoming ADR competition, which I sort of stumbled into blindly. Apparently you've got to look as much like your colleagues as possible if you're going to negotiation an agreement with them. Who knew?
Posted 06:22 AM | Comments (6) | law school
Real Advice
I forgot to mention in the last post that Liable has some really excellent advice for 1Ls and pre-1Ls on her blog. I especially agree with the first point about briefing the heck out of cases—it helps tremendously. However, I've had to abandon that thorough briefing in the last week or two because there's simply no time for it, plus all the reading, plus the extracurriculars, plus all the legal writing stuff. Our first draft of our first memo was due this week and that took up the majority of last weekend. Thank goodness the memo was closed—we didn't have to do any outside research for it. As for extracurriculars, this week alone features meetings of the law dems, EJF, and NLG, the ADR (alternative dispute resolution) competition, the pro-bono fair, and legal observing at the IWFR rally. It's crazy. I'm learning to write shorter briefs.
Finally, Prof. CivPro gave some helpful advice yesterday about reading cases. Don't just read to find the issue, the holding, the reasoning, etc. Also look for what the case leaves unanswered. For example, if Shaffer v. Heitner says that a court cannot seize virtual property (stock in a corporate entity) to establish jurisdiction, does it say anything about real property? Think about how cases would be different if the facts changed slightly, and if the holding and reasoning would still apply to those changed facts.
Ok, I'm really going to read State v. Alston now. Erg.
Posted 05:20 AM | law school
Baby-stepping through law school
Early morning and I should be working on CrimLaw. And CivPro. And Torts—there's always more Torts ... so many little cases, each one refining the rule just a bit, giving you a twist on what seemed like a straightforward rule or area of law. The work in law school never ends, and it seems, in terms of quantity, to be getting harder. Yet, despite that, it's also getting a little better.
First, I'm starting to understand why I find it so hard to get stressed or really enthused about class. Classes are just too big and impersonal. After having spent three years in grad school for English, I'm used to doing lots of fairly complex reading, but I'm also used to being in small classes of 6-12 students which allow you to actually talk about and engage with the material you read. In grad school, I always knew that if I read closely and took good notes and grappled with the ideas the reading addressed, all that effort would be rewarded in class because I would be able to follow whatever discussion took place, and I would be able to contribute where it was appropriate. In law school, where most classes have 100 students, things are very different. Yes, if you read closely you can follow the discussion better and you'll get much more out of it, but you rarely (like a handful of times per semester) get the satisfaction of actually entering that discussion to test your ideas, put forward your own theories, make the material your own.
My takeaway lesson: Law school classes can be a very passive exercise; however, since you'll get more out of them when you actually participate, you have to actively and consciously fight that passivity. Since it's unlikely you'll be called on to speak, you might get more out of class if you participate in your notes by writing down the hypotheticals, then trying out your own solutions to the problems before your classmates arrive at the "right" answer, which the professor will then confirm he wanted. You have to read closely in advance to be able to do this effectively, so there's some incentive to stay on top of things.
I've also begun to see that there really are a lot of parallels between literature and law. One of those is the way they're taught. As a teacher of introductory literature classes, it took me a while to get used to how slowly and methodically I had to baby-step students through the basic elements of a story or novel: Who are the characters? What is the setting? What's at stake for the characters? (What's the plot?) Why do you think the story does X, when it just as easily could have done Y? How does this story fit in its cultural and historical context? Now, in law school, I see my own professors doing the same thing I did with my students, but instead of baby-stepping us through short stories and novels, my law profs are baby-stepping us through cases: What are the facts? What was the issue? What was the holding? On what reasoning did the court base its holding? How does this case fit into the larger development of its area of the law?
While I often appreciate the slow pace of this method (no, I don't want anymore reading, thanks), I'm also frustrated by the fact that it leaves so little time for any sort of critical reflection or meta-discussion of the material. While Liable says it sounds like my classes focus a lot on policy, I don't think they spend nearly enough time on the big-picture issues and the "invisible" (taken for granted) assumptions on which the law is based. For example, what are the social and political implications of the fact that punishment in our criminal justice system is largely based on utilitarian justifications? What are the alternatives and why have we ended up with this system over others? Or why are economic incentives so vital to the law of torts, and what implications does tort law's emphasis on economics have for culture and society? In contracts, who gains and who loses when courts decide to prefer an "objective theory" of contracts over any other?
My takeaway lesson: I'm sure there are classes in law school that attempt to engage these questions—at least I hope so—but I bet they come later, in the second or third year. Try to be patient and master the fundamentals; then you'll be better prepared for all that meta stuff to come. If you're impatient like me, perhaps recognizing that impatience will make the whole process easier by reminding you that you have to walk before you can run.
Posted 04:16 AM | law school
