Law Exam Advice

Prawfblawg has some exam advice for law students. The comments section contains the meat. It doesn't really say anything new, but is a very good refresher for students, particularly first years, as to what to focus on for written portions of exams.

[lawschool] [exams]

Professorial View

I had lunch with a friend on Thursday between the end of class and waiting for the last Turf Club of the semester. We went up to the patio on the fourth floor of the building where all the faculty offices are located. This is their view.

Bizarre Lease Triangle

We're discussing landlord-tenant relationships today in Property. One of the problems we tackled yesterday (and are tackling today) has the following fact pattern:

L leases to T for a term of three years at a monthly rent of $1,000; in the lease T covenants to pay the rent in advance on the first of each month and also covenants to keep the leased premises in good repair. Six months later T assigns her entire interest to T1, who agrees in the instrument of assignment to "assume all the covenants in the lease" between L and T; three months later T1 assigns his entire interest to T2, and three months after that T2 assigns his entire interest to T3. T3 defaults on rent payments and fails to keep the premises in good repair.

Our class discussion focused on the concepts of privity of contract and privity of estate. We found that there was a privity of contract between L and T1 because T had assigned not only his possessory interest, but also his covenants, to T1 by contract. The sort of privity of contract between L and T1 arise out of L's status as a third party beneficiary of the contract between T and T1. There is also a privity of estate between L and T3. Thus, T1 and T3 are liable to L.

In further discussion, we drew some diagrams of triangular relationships between a landlord, and tenant, and a tenant's assignee. So I decided to get creative, and substituted a few words in the lyrics to New Order's Bizarre Love Triangle:

Every time I think of you
I feel shot right through with a bolt of blue
It's no problem of mine but it's a problem I find
Having a lease that I can't leave behind
There's no sense in telling me
The wisdom of a fool won't set you free
But that's the way that it goes
And it's what nobody knows
While every day my confusion grows
Every time I see you leasing
I get down on my knees and pray
I'm waiting for that final moment
You'll say the words that I can't say

I feel fine and I feel good
I'm feeling like I never should
Whenever I get estate, I just don't know what to say
Why can't we have a contract like we did yesterday
I'm not sure what this could mean
I don't think it's what it seems
I do admit to myself
That if I sue someone else
Then I'll never see this kind of privity
Every time I see you leasing
I get down on my knees and pray
I'm waiting for that final moment
You'll say the words that I can't say

Happy Friday!

[lawschool] [property] [parody] [lyrics]

Turf Club - Part I

Tonight was Turf Club, a tradition here at LLS where the Student Bar Association brings some beer on campus for the hard-working students. For me, it's reminiscent of Beer Garden Wednesdays at IBM's Santa Teresa Labs (now called the Silicon Valley Labs). It was quite timely, too, considering that we got our grades back from the Torts midterm. (I scored right in the middle -- not bad for starting my outline the night before the midterm.)

The turnout was particularly high this time, and Professor Nockleby turned out to chat with some of us for a bit. I had a lot of fun, and actually managed to stay until almost 7pm (the party had started just past 4pm). Heck, even Shirley managed to stay on campus for this. Between Criminal Law and Turf Club, we had about four hours. We watched part of a presentation on Hurricane Katrina relief efforts, then spent the rest of the afternoon reading our case books. Well, I did. Shirley was playing Spider Solitaire, her new hobby, after she did a good deal of reading (about 20 pages) in Criminal Law. (I barely managed to get 33 pages done in Torts.)

Bobby, the Section 2 Representative to the Student Bar Association, was on hand, and hooked Section 2 members up with beer above the ration of 2 cups each. Around 5:30pm or so, the library disgorged about ten Section 2 members or so, who merrily joined in the feast. It was good!

And now that I've had some coffee, the beer buzz is wearing off. Now, to watch Batman Begins!

Volokh on Alito

Professor Volokh has an article out discussing Judge Alito's First Amendment record, a topic that many bloggers left and right care deeply about. Professor Volokh rates Judge Alito at somewhere in between, but it's worth reading the article to see where Judge Alito stands on each of the freedoms enshrined in the First Amendment.

[First Amendment] [Volokh] [Alito] [Supreme Court]

Strict Liability or Negligence?

In Torts, we're currently working on Indiana Harbor Belt Railraod Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:

Essentially, Professor Nockleby's position is as follows:

1. The real issue in the case is, "In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitirle, while in rail transit be cast?"

2. The shipment of acrylonitirle is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)

3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.

[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I'm not sure that's so clear); and
2) In the instant case, isn't the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn't the fact that a government agency can clean up the spill an argument that "the people" have resources which are just as corporate as "big business"? Isn't the government a sunk transaction cost, and what we're doing then is simply doing the indemnification?]

4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.

5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O'Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.

I don't expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you're familiar with this case and its interpretations and arguments. Thank you!

[lawschool] [torts] [strict liability] [negligence] [Posner]

New Links

Added: Raymond Nimmer's IP Blog; and the Becker-Posner Blog.

[blogs]

Busby's

After the midterm, I lounged around at home first. The fridge was kind of empty, but I scrounted up four sausages and Napa cabbage, and added two cloves' worth of chopped garlic, and made a meal out of that. In the evening, I joined Dad and Eddie and Ben in Cerritos to watch Jarhead, which I rather liked.

After the movie, I joined my classmates at Busby's, a place over in Santa Monica. When I got there it must have been almost half past eleven, and there was a line that didn't move for quite some time. I eventually got in, though, and found a bunch of my classmates there. The place was so packed that you're bound to rub up against somebody; and the people were friendly. I was generally pretty happy because I'd gotten a big weight off my mind, I was finally in a place with a nice ambience, and I was surrounded by classmates. The thing about classmates in law school is that, ever more so than college classmates (especially at a big campus like Berkeley), or even high school, these people were like trench buddies, comrades-in-arms. You might not even share that much in common with them outside of school, but having had to go through the same trials (haha) together tends to breed a certain bond.

Anyway, so I had a content if not completely shit-eating grin on my face. And people, whether they knew me or not, smiled back. Put that together with the packed place and I found myself in a situation where gorgeous women would graze me with their breasts as they tried to squeeze by. The fact that the men weren't doing the same with any part of their anatomy other than the usual arms, elbows, and shoulders) meant it wasn't only because it was packed.

I did see a rather pretty Asian girl there. Her face looks ethnic Chinese. I thought she was rather pretty, but she wasn't smiling. Sure, it added to her mystiqute and what not, but I can't help but feel that a smile would have made her face radiate with even more beauty.

Anyway, someone was already hitting on her, and since Derek wasn't there to prod me I wasn't getting any return smiles anyway, I decided to pay attention to my classmates instead.

I even ended up meeting some students from section 3, Eddie's section. One of them turned out to have been one of the guys I was standing in line with. We chatted up about as much of a storm as could be expected given the music.

Now on to Busby's itself:

• Cover: Cover charge was $10. Not bad for Southern California.
  
• Alcohol: I went with hard drinks this time. A red bull and cognac in a rather small glass cost $12. Ouch. A rum and coke in a similarly small glass cost $6. Not a bad price until you realize the size of the drink. Oh, and Armen got me a shot of Jägermeister to start off, and Jose got me a Pellegrino toward the end of the night (a nice alternative to a glass of water!). So the drinks are on the steep side, but it's Westside, so it's sort of expected.
  
• Music: I thought the DJ wasn't great. The choice of music was fine, but I'm generally easy to please; but the transitions left a little something to be desired. It reminded me of the DJ over at Rudy's in Palo Alto. Still, I'd say Busby's is better.

So to wrap up, I had a good time, and look forward to future outings with my classmates!

Torts Midterm

There were 60 multiple-choice questions, and two cases to read for which we had to write an outline. All this in a span of two and a half hours. I won't go into the particulars of the questions or cases (because I effectively had to sign a non-disclosure agreement just to take the test); but I'll discuss other things about it.

It was a very challenging test. I had prepared myself to take about a minute and a half on each multiple-choice question, giving me a good half hour to bubble in the answers on the Scantron sheet and review before going on to the issues. A quarter of the way in, I was already starting to fall behind in pace, and I hadn't even bubbled anything in yet! About halfway through and another quarter past that, I was still ahead, in that even if each of the remaining questions occupied me for the two minutes allotted by the professor, I would still have ten minutes left to bubble in the answers and review before going on to the issues.

But the last fifteen questions killed me, and I found myself with barely enough time to bubble in and review. I ended up with less than half an hour to do the issues. It took me some time to read the first case and write out the issue, so that I had maybe ten minutes left to read the last case and write the issue.

After the test, I hung out with some of my classmates. At least two classmates from my exam room (about a third of the class chose to write their issues by pen rather than by computer and were thus in another room) seemed seriously shaken. One seemed not to have even gotten to the second case.

Finally, a few of the stragglers, including myself, got to talk to the professor, whom I almost didn't recognize because he was unshaven and was wearing normal slacks with a button-up shirt unbuttoned and untucked, and a baseball cap. This is the first year that Loyola Law School students have had to take closed book exams, and also the first year that LLS mandated 5-unit semester classes (as opposed to 4-unit semester classes and year-long classes) to have a midterm, so professor Nockleby wanted to gauge our experience so he could prepare for next year's first-year torts class.

The general consensus among all the students was that it was a very challenging, but generally fair test, and almost everyone now wished that we had taken an essay-based exam instead, as it would have given us a better way to explain ourselves (there's obviously no partial credit in a multiple choice question). However, that would have been too much work for the professor to read 90 exams critically while having to teach and worry about his obligations to committees and publishers and what not, and he wouldn't have been able to get our tests back to us before the final, in effect defeating the purpose of an midterm exam, which is to get some feedback.

Unfortunately, even though we'll be getting our exams back by Thanksgiving, it doesn't seem we'll be able to compare our answers with the actual answers. Still, there was some feedback as we went through the questions as to which areas we needed to work on, as we had to rack our brains for any memory of the rules and argument techniques we had been learning.

Outline? What Outline?

One of the things I've heard most constantly at school is the commandment that thou shalt make thy outline! Several students resort to commercial outlines, in addition to guides and what not. I have not as of yet done so.

Today, I went to the law library to do the sample multiple-choice questions Professor Nockleby distributed. I did not do very well, but I had no trouble, once I compared my answers to the answer key, figuring out why my answers were wrong. As expected, the results proved that I need to bone up and do some reviewing. I commented in passing to Lily and Alisa that I should do my outline.

"No! You don't have time! Just do more questions!"

Where do I find more questions?

"Use the PMBR!"

Huh?

The guy at the reserve desk was very helpful. The PMBR was not. It covered way too many subjects that we hadn't even touched yet, particularly product liability.

Then I remembered something. My definition of "outline" is substantially different from everybody else's. For my method of learning it is not so important to write what would amount to a minor novella to qualify as an "outline" (Shirley's outline runs to more than 30 pages just for intentional torts). The way I learn, it's more important to capture the main points, and note cases that make those points. Since I've already got a compilation of cases anyway (and that compilation for Torts runs to about 68 pages, but that's including a table of contents, and for many cases includes full briefs), it really shouldn't take me more than a good half day to come up with an outline Bruce-style.

Guess what I'll be doing Friday night?

Alito Justice

I hadn't commented on either Roberts or Miers due to the hubbub of starting school, and because there really wasn't much to know. As for Alito, from my very limited knowledge, it seems that he's a pretty reasonable guy. But don't take my word for it. Michael Barone has a nice long article covering Judge Alito, and why Democrats might be ill-advised to pull out the stops in opposing him. Barone correctly notes that several Democrats are caught between a rock and a hard place: The need to be reasonable versus the need to satisfy constituents. Red-state Democrats, then, have the easiest job: They won't face recrimination for being reasonable. What I find interesting is that some blue-state Democrats, like the Senators from Massachusetts, who would be virtually uncontested at election no matter what positions they took, nevertheless feel the need to excoriate a nominee simply because Bush made the nomination. Unsurprisingly, Pennsylvania Democrats are less likely to spit on their native son.

Andrew Sullivan notes that there's a liberal for Alito: Kate Pringle, a liberal Democrat who once clerked for Alito.

Captain Ed adds to that list a certain Jeff Wasserstein, who characterizes himself as "a Democrat who always voted Democratic, except when I vote for a Green candidate" but is neverthless on board. Captain Ed tips his hat to the Los Angeles Times, which surprised me somewhat.

Meanwhile, James Taranto notes that the New York Times is still on the same old saw. The Tuesday column item led to some sleuthing by reader Chris Bartony (which James has posted). The best part is Chris' conclusion:

I think that they have a Screed-O-Matic somewhere at the New York Times. They just insert the name and hit the Republican Judicial Nominee button and the thing churns out the copy. I know that Maureen Dowd and Bob Herbert use it all the time.

That seems about right.

Speaking of which, it is important to remember that there's a difference between a judicial conservative and a social conservative; that Judge Alito, on the face of his published opinions, hardly seems an extremist in either sense; and that maybe getting things done "just about right" is more important than having your party "win". That's the only way American will have Alito Justice (apologies for the punnery).