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February 11, 2004

Legal Incidents of Marriage

The proposed 'Musgrove Amendment':

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Andrew Sullivan and Eugene Volokh disagree with The New York Times on whether the Musgrove text for a Federal Marriage Amendment would outlaw civil unions. While I'm probably out of my league taking on Prof. Volokh, in this case I think he's letting his natural inclinations towards acceptance of gay marriage get the best of him, and he's neglecting the role of legislative creativity. The amendment does just what it's supposed to: stop judicial activism while leaving legislatures free to do as they will. Why?

Continue reading "Legal Incidents of Marriage" »

January 27, 2004

Wormwood, I Haven't Forgotten You

Dear Wormwood:

Please do not think that I've not heard your plaintive moaning with regards to our correspondence. "Yes, yes, we understand you like the technical aspects of blogging, and RSS is nifty tech. True, true, a postmodernism generator is cute. But you do remember, once upon a time, that you promised to blog about law school, correct? Have you really grown so big-headed that the point of our project has escaped you?" And your complaint has a great deal of merit, for which I have to apologize. My heart really hasn't been in it.

Partially, I think it's just the glumness one gets from attending a law school in a city with a harsh but graceless winter. New York doesn't have the Januarys I've loved in the past: cold, clean snows blanketing the horizon, wind whipping white 'dust' devils over ice-topped lakes.

Winter in the city is summer in the city with the annoyance of cracked lips and muddy boots. Even in a blizzard, it's almost as if snow falls from the sky pre-grey. Walking outside at night is an education in natural selection: oil-black rats are much more visible hopping through drifts of white. Frozen landscapes in the countryside are accompanied by a clean, almost filtered scent to the air, but here winter's only mercy is that large bags of trash left out on the street are too frozen to rot.

As I said, Wormwood, I've been writing about technology largely to spare you in case what I'm suffering is some seasonal depression. No point in inflicting upon you what is probably more vitamin deficiency than rational thought.

With that in mind, what has been happening?

Classes: I think most of my classmates would agree that the classes in the second semester at Columbia are much more theoretical than practical. Of the four major classes, Regulatory State and Perspectives on Legal Thought remind me more of undergraduate lectures in economics and philosophy. Not that this isn't interesting in itself, but it's territory that many of us have covered before. Indeed, my 12th grade government class read Hobbes, Locke, Aquinus, Rawls, Bentham. [1] Even in the face of good lectures or interesting reading, there's a certain 'been there' feeling that keeps me from feeling the same degree of excitement I felt when this was all fresh. (Then again, perhaps I'm temporarily jaded.)

Don't get me wrong: there's a good and solid argument for these courses, and I'm sympathetic to it. Given the role of lawyers in our society, as not only advocates but judges and politicians, it's for the good that we get a broader historical view, and that this is informed by economics. But they're not the 'classic' law school courses: property, evidence, etc. They're more familiar, and they don't inspire the same feeling of terror. (To be fair, that one is a lecture course, and the other rather kind in its Socratic method, goes a long way to explaining this feeling. I imagine that as exams get closer, the trepidation level increases.)

That said, there's still Crim Law and Con Law, with plenty of reading for them, particularly the latter. I'm certain that Con Law will become more engaging as the semester progresses. No matter how important Marbury v. Madison or McCulloch v. Maryland may be, they're difficult to read with any passion. So much seems so settled. [2] Still, these courses remind me more of last term, so that's good.

Grades: Finally all my grades are back. All I can say on this is that overall I'm pleased, and that so far the great law school maxim is true: you do best in the classes you were sure to do worst in, and vice-versa.

Job Search: A task on which I should have spent far more time already, I'm getting a few resumes out the door every day. One thing I'd advise, Wormwood, is that you start the process far more quickly than I did, because otherwise it will become that nagging task that you leave at the bottom of your list, buried under a huge pile of reading. It's just as important, and you should treat it as such. Progress on this front remains hopeful: I've had my share of interviews, and we'll see how it goes.

I hesitate to go further, Wormwood, as already I wonder if the blizzard that is rumoured to be arriving tomorrow and my chronic lack of sleep are combining to make what I'm writing less encouraging than it ought otherwise to be. In any event, I'm glad I did bring myself to mention a few of the things happening here at law school, before this descended into a purely political blog.

Yours,
AR

[1] Admittedly, my high school government teacher was a bit unusual: he taught a 'great books' curriculum and used Socratic method at least as well if not better than many of my professors at Columbia. But then, I'm not criticisizing the Columbia program as much as I'm explaining why I'm not feeling as engaged as in months past.

[2] At this point, I'd like to break with my common habit of not being overly critical of my courses to be scathing in one respect: the textbook Constitutional Law by Kathleen M. Sullivan and Gerald Gunther should never be inflicted upon any student, anywhere, possibly under 8th Amendment restriction. First, it has all the weaknesses common to the University Casebook Series. The book itself is a physically unhelpful size, nearly 8 1/2" x 11", impossible to fit alongside a notebook on a classroom desk. The formatting of the text is diabolical: it's extremely difficult to figure out what is a heading, a sub-heading, or what is not within a hierarchy of headings to begin with. By the time you get to the fourth or fifth levels, there is no way to keep things straight. A simple table of typefaces would go a long way to curing this defect. If a single effort was made in terms of helpfulness to the student, it certainly doesn't show.

While the weaknesses of the series aren't helpful at the best of times, the writing in Constitutional Law makes no effort at all to be accomodating. Even outside the cases (Con Law will never be for those who like plain language), the wording is unnecessarily prolix (two uses of 'exegesis' is sure to please wordhounds like me, but it's sadistic for a casebook), complicated, and in some cases just downright confusing. For anyone who has the casebook at hand, I put forward the second full paragraph of p. 78 of the 14th edition, a paragraph which would be better structured if the order of sentences within it were reversed. I'll concede that Constitutional Law is almost certain to be cryptic in many respects--no one who ever read Gasparini would accuse Supreme Court Justices of silver-tongued clarity, and their task is often more one of precision--but shouldn't a good casebook help, not hinder this?

Perhaps I'm missing something and the book will grow on me, but after 150 page, it's easily my least favorite casebook thus far.

November 29, 2003

Two More Bits of Procrastination

Spent fifteen minutes wandering Lexis in between chapters of contracts outline. The two gems I found?

Entertainment for Hours
A Compendium of Clever and Amusing Law Review Writings: An Idiosyncratic Bibliography of Miscellany with in Kind Annotations Intended as a Humorous Diversion for the Gentle Reader, Baker, 51 Drake L. Rev. 105.

The title says it all. Any six of the articles here should waste away hours of study time.

Enough to Make the Most Diehard Marxist Love Richard Posner
No, really. I'm serious. Whatever you think you thought of Posner, read Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343. OK, he's nakedly partisan for his hometown Chicago manual over that interloper from Harvard, but after your 1L memos, this should be music to your ears:

The time that law students and lawyers spend mastering and applying the manifold rules of the Bluebook is time taken away from other lawyerly activities, mainly from thinking about what they are writing. It is so hard to get the citation forms right that the writer or editor who has done so is apt to feel that he has acquitted himself of a difficult task and should be allowed to rest his brain. Less attention can be given writing and rewriting because so much is devoted to forms most of which don't matter worth a straw to the reader. Instead of learning the Uniform Commercial Code the student learns the Uniform Citation Code, which is almost as long, and far more arbitrary.

Amen, brother.

Update: Using the first article and links therefrom, Will Baude has proven that Judge Easterbrook is a videogame fan. You can probably score some points with the esteemed judge by introducing him or his law clerks to the Multiple Arcade Machine Emulator (MAME).

November 07, 2003

First Exam Passed, It Seems

Just received the message that I passed the first of my law school exams: Legal Methods.

My enthusiasm for this is tempered only by the fact that it was a pass/fail exam. It seems that a few people may not have passed, but I was rooting for them anyway: by my (admittedly limited) understanding of the mathematics involved, a 100% pass rate would have meant we all scored at the top of our class. (It would also mean we all scored at the bottom, but why be negative.)

Anyone wondering why my 'logic' is not up to its usual level today should realize that I'm struggling with the onset of a head cold, and the only three brain cells that aren't screaming, 'Why now?' in an obsessive mantra are busy concentrating on Civ Pro.

October 16, 2003

Morituri te salutamus

...because, after all, law doesn't have enough latin maxims.

No, seriously, the day's study has gone well. I started too late and so finished too late, but I feel as prepared as I can be, and I figure the exam can't be that great of a shock now. And I appreciate Columbia's pedagogical practice of giving us what, for all intents and purposes, is a practice exam.

In many ways, it's been a real wake-up call. It's highlighted the fact that I've not done enough work over the last month, but it's also focused me on what I need to do. There's a lot of very simple things (putting page numbers on my notes, organizing outlines, putting things in binders) that I've done for legal methods which will serve me well in my other classes. It certainly means I'm not going into those exams half so cold.

One thing I'll miss, though, is the lack of formality of Oxford exams. Wearing a suit and gown and pinning a flower to your lapel, is hardly practical if you take exams every term. But it had a certain romance that I'm going to miss, sitting in an exam hall with jeans and a shirt on.

So tomorrow at 10:30 AM, wish me luck. For now, I think I'll get a good night's sleep.

Legal Methods Studying

While the rest of the law school may tell you 'don't spent that much time on legal methods,' when you're a 1L, don't listen to them. Looking back over this stuff, I wish I'd mastered it, instead of merely knowing it. Also, start studying a bit before the exam.

I've got a load of observations from this process, most of them more pedestrial than brilliant (always page number your notes, auto-outline functions that are helpful for review, etc.) but I'll post them after the exam. For now, I want to read over this stuff before I run out of time for sleep.

In the meantime, I'll leave you with a post from E Land, which explains why we lawyers are such rat bastards. It's not a bad post, but I think he's a better engineer than he is a biologist, since I think he's misusing the term 'parasite.'

September 03, 2003

Best line of the day

In a discussion of United Steel Workers of America v. Weber:

I never thought I'd say this, but I agree with Rehnquist.

I'm really worried we're going to get to Gratz v. Bollinger and I'll have to say, "I never thought I'd say this, but I agree with Ginsberg." But at least it won't be in this course.

This was probably the first fraught, or even fairly heated, discussion in class. A taste of things to come? I couldn't say.

August 27, 2003

What a piece of work is law!

I think the sum total of one and a half weeks of legal methods so far has inspired, mostly, a longing to live in the mid-ninteenth century, or at the very least, to live under its jurisprudence. The conception of law after the coming of the realists has been undoubtedly more just, and certainly more realistic, but it is so incredibly unromantic.

The cases we've studied so far focus mostly on the breakdown of the common law 'master-servant' rules, and the formation of modern product liability and workplace liability law. One of the things that has struck me, although since this isn't a philosophy or literature course we've not focused on it, is how the cases change not what is a conception of law, but a conception of man.

Even the servants in Priestly v. Fowler or other earlier, common law liability cases, are imagined to have a responsibility both to themselves and others, and the ability to make real, albeit hard, choices. Priestly, a servant, is considered to be able to make a choice--get on the cart, whether he thinks it's overloaded or not, or leave his master's service. The latter is a hard choice, of course, but it's considered to be within his power to understand the decision and within his ability to assume the risk. He is a man, "how noble in reason! how infinite in faculty!"[1]

Jump forward one country and several centuries, and see what Judge Frank has made of this man, in Ricketts v. Pennsylvania R. Co.. Ricketts, a man who has benefited from a public education unavailable to Priestly (and was, for that matter, much more likely to be simply literate), has signed a release for injury to his railroad company, with advice of counsel. And yet Judge Frank decides:

"I believe that the courts should now say forthrightly that the judiciary regards the ordinary employee as one who needs and will receive the special protection of the courts when, for a small consideration, he has given a release after an injury. As Mr. Justice Holmes often urged, when an important issue of social policy arises, it should be candidly, not evasively, articulated."

I won't argue that the decision is less than just, or even that it's less than realistic. But how miserable the creature that Franks is addressing, one who does not, and it can be presumed cannot, understand the world in which he has entered, the forces by which he's surrounded, and can't make a decision of certainty vs. risk even if it is offered. I think much of my fondness for the Scalia-brand of textualism is that its view of mankind does not encompass that man. Why is this someone that one would want to be?

Whatever its other merits, realism is revolting to a romantic instinct. Can one imagine what a Cardozo or Learned Hand would have done if faced with the contract of Doctor Faustus? [2] Never mind the fact that the Doctor was one of the most educated men of his time, that he can be assumed to have understood the 'deed of gift' in its language, and that (Hell having had many centuries to ammend it) the contract could be considered to be complete: wouldn't Hand have thundered that no signee could possibly (they being with soul and thus mortal) have comprehended what that clause about 'eternity' meant? Can't it be assumed that Cardozo would find some reason that Mephistopheles, as Faust's 'employer,' warranted safe 'working conditions,' and that these could not be found in a firey furnace?

Ah well, time to get back to the next few cases. One good thing about blogs, for any of you up-and-coming 1L's: they give you a place to file irreverant thoughts like these, and they're good for a bit of daily distraction from the stress of briefing.



[1] Hamlet Act II, Scene II
[2] For the picky, assume that Faustus is an immigrant and a professor to the City University of New York, and that Mephistopheles has his office in California for sake of diversity jurisdiction.

August 25, 2003

Because I've got *so* much free time on my hands

I'm sure it's just there's a lot of work that I'm not doing, but I'm finding that I have a few stress-free moments in which to do other things. This weekend, for instance, I managed to see Fritz Lang's M, a fantastic old black and white film with Peter Lorre.

Today I checked a copy of F. W. Maitland's The Forms of Action at Common Law, at the suggestion of one of the 2Ls I've met. The law library here isn't quite as old, musty, and archaic as the Bodelian, but it's getting there, and it definitely has that same feel of thousands of books, most of which languish untouched for ages.

The book itself has a few virtues that recommend it to a starting law student. First, it covers a number of basic concepts from which modern law has evolved, even though they're not directly relevant anymore. Secondly, it's not on a syllabus, so it can be considered to be 'reading for pleasure.' And thirdly, it's quite short, so I can't feel too guilty for taking an hour out to read it.

August 22, 2003

Did you look behind the cushions?

I should know better than to blog while in a bad mood, so I'm not even going to touch on such matters as the Diversity Reception here at Columbia Law School. (No, I don't like diversity, as the term is generally used in such things, but you have probably had your fill of my Grutter posts.). Besides, while I may not like such things as a matter of policy, it's unrelated to anything at which I'm actually annoyed. But as long as I'm venting:

Today in Legal Methods, I found myself defending a very strict interpretation of the Federal Railroad Safety Appliances Act of 1893 (Section 2), which reads:

That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

Now, the Supreme Court, in Johnson v. Southern Pacific, announces what is undeniably true--that the legislators who wrote the bill undoubtedly meant for the text to have a comma after 'uncoupled', which would apply the 'without the necessity of men going between the ends of the cars' language to coupling as well as uncoupling. But as I see it, the intent of a legislature isn't read from what the individual legislators said they meant, but by what the legislature actually passed.

So I ended up making the point that by inserting the comma, the Supreme Court actually changed what the law meant, and I didn't think it was proper for them to do that. [1] True, it's very technical, and most members of Congress undoubtedly meant for it to be read as if the comma were there--but it wasn't.

Back at home, I had to start pondering why I felt such revulsion at a comma. Finally, I settled on the fact of that comma being a simple single step towards one of my real annoyances in constitutional law: the 'penumbras and emanations' that are found by 'realists,' particularly in the Due Process clause.

One day I'm going to write a stage play about the Supreme Court Justices, and it's going to have a section that includes this:

JUSTICE KENNEDY: Hmm... so, is there a right to homosexual intercourse? Let us look in the penumbras of the Constitution. Hmm... not there. In the emanations? In its pencil case? No. Let's see, where else? Have I checked behind the Constitution's couch cushions?... a lot of rights have seemed to fall between the cracks there...

I've been told that textualism is a pretty lonely road, especially in law school. Maybe I should just hope it's some kind of mental infection that will go away...


[1] I didn't get the chance to say that for the sake of that case, I don't think it mattered--while it didn't explicitly say, I somehow doubt that the cars that didn't couple automatically would come apart without need for a man to go between the cars.

August 19, 2003

Freddy v. Jason

You know you've been doing to much work when you look at an advertisement, miss one letter from the text, and immediately think, "That would make a good legal brief." With no further ado:

Freddy v. Jason
Supreme Court of the State of California, 2003

The Parties
Mr. Freddy Kreuger: Damned soul intent on revenge upon the children of Elm Street
'Jason': Deranged man of no fixed address, assumed to be fixated on hockey and farm implements

The Procedure
Verdict was entered in favor of Mr. Krueger. The case came before the Supreme Court when 'Jason' did not so much appeal to the intermediate appelate courts as chop the three judge panel into interchangeable parts.

The Facts of the Case
Mr. Krueger claimed that as a matter of common and traditional law, he was entitled to a monopoly upon maiming, mutilation, and murder of the children of Elm Street, up until the seventh generation or the twenty-third sequel, whichever was to come first. He alleged monetary damages and requested an injunction against 'Jason' to prevent any further encroachments upon his domain.

The Legal Issues

  • As a matter of common law, does an oath of vengeance made just before being burnt to death entitle one to a legally enforceable monopoly on maiming, mutilation, and murder, or is such an oath enforceable only directly by the one so sworn?
  • As a matter of common law, does having a greater number of sequels and a greater body count entitle an 'agent of greater evil' to concurrent claims to territory, even if there is no reason (other than box office necessity in the silly summer season) for a territorial overlap?

The Holding
The court held for the plaintiff, on two grounds:

  • First, that it was in the interests of the state of California (and most particularly in the interests of the three judge panel ever getting a good night's sleep again) that oaths of vengeance be enforced 'up unto the extent practicable under the law.'
  • Second, that any claim of 'concurrent domain' was untenable due to the mask of 'Jason' having been worn by several different actors, each to whom the body or sequel count in question should be attributed.

Any comments from the peanut gallery? (Man, if my law professors read this I'm never going to be able to hold my head up again...)

August 18, 2003

OK, maybe that work estimate was a bit optimistic...

OK, maybe thinking that getting to class early would make it easier for me to quit early was a bit ambitious. It's day one, and it looks like I'll be up until ten or eleven trying to balance the workload.

The class today was quite interesting--obviously a bit softballed since we're all new, but nothing to horrible happened. Just for the record, my first classroom comment was to ponder whether someone who was dead might in fact still be considered entitled to vote (since he was still on the roles), but merely inconvenienced from doing so by dint of being in a box. Probably not the way I wanted to be introduced to my fellows, come to think of it.

But maybe I was inspired by G. K. Chesterton:

Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man's opinion, even if he is our groom; tradition asks us not to neglect a good man's opinion, even if he is our father.

Giving The Devil His Due

Legal Incidents of Marriage (18)
A. Rickey wrote: TtP: Having looked into 'charact... [more]

Wormwood, I Haven't Forgotten You (6)
A. Rickey wrote: Mark: Granted, the paper's nicer... [more]

Two More Bits of Procrastination (4)
PG wrote: Should have mentioned it in your cl... [more]

First Exam Passed, It Seems (2)
Len Cleavelin wrote: Congrats on Legal Methods exam. Hop... [more]

Morituri te salutamus (2)
Fabian Marie wrote: If you would be unloved and forgott... [more]

Legal Methods Studying (2)
A. Rickey wrote: Ah, yes, well I will never be short... [more]

Best line of the day (0)
What a piece of work is law! (0)
Because I've got *so* much free time on my hands (2)
Anthony wrote: No, no. First of all, Legal Method... [more]

Did you look behind the cushions? (5)
Sara wrote: I remember that case. . . as I reca... [more]

Freddy v. Jason (11)
Dementiaman wrote: Freddy even being able to SCARE Jas... [more]

OK, maybe that work estimate was a bit optimistic... (0)

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