I hope they serve beer in hell by Tucker Max

One of my best friends gave me this book as a going away present because he thought it fit me to a "T". Basically it a guy with little to no limits in regards to his behavior. Why he was reminded of me escapes me. Part of the reason for the choice is because it chronicles the author's supposed life in law school at Duke University. I was eager to get some ideas of how to get through law school without trying, instead I got an entraining, but disposable, set of drinking tales. While it does cover it, I am sure Mr. Max would agree with something I am oft to say "You have not lived until you get blown by a Thai ladyboy in a alley behind Soi Cowboy for 10 bucks".

Needless to say for those of you who know me well these days, this was like crack cocaine for me. It basically encouraged me to get rid of whatever limits I had left and just be entirely honest. I do not know if doing so would work out as well as outlined in Mr. Max's yarns.

Really the best writing in the book was the short dedication written to me by my friend. Since I am trying to keep things anonymous here, thanks Bro. D I hope you can make it down here sometime.

New City

I am not to positive on this city at the moment. I was expecting a big bustling city, not as big as where I came from for sure, but still something more than this. The city seems almost deserted. Even during rush hour the streets are pretty free of traffic. I do not know if it says something about density, urban decay, or just the meager amount of the city I have seen so far.

The city seems pretty segregated actually, and there have been comments by a few to reinforce this. I found it amusing and a bit disappointing to have one of the real estate agents talk about how a place we were going to see "seems unsafe", but its not. It is on "the border" of the "traditional university housing area". The place just needs somebody to understand its an "urban environment". Then as if I was some idiot she had to hit me over the head with "you just need to be comfortable with being one of the few white people in the area". Revolting

I have narrowed down my housing to two places. One is a small one bedroom almost literally next to campus. The problem is the building is very old, has settled, and the floor has a slight slant to it. It feels like you are on a ship. The other is a roommate situation, with a female roommate, and to make it worse she is red hot. Most men would not think this is a problem, however for me the two times I have done this I have ended up sleeping with my female roommate. I do not think I want that distraction and drama my first year of school. What saves her is she is actually a third year student, so she might be able to help if I have any problems academically, not to mention the traditional asset of knowing a local in a very strange city.

I think I will call her today.

Would you hit it?

Today was a good-bye lunch I was actually glad I was having. This one is my regular Friday lunch with a girl from the office. I guess I am sort of paid to talk to her, so I agreed to a weekly lunch outside of class.

The complication here is she has a crush on me, and has played these lunches for all their worth in her little way. She normally dresses to impress on Fridays, and wears a tad more make-up. She then acts pretty much like a school girl for the hour we have together.

Yeah it sounds ideal to some, until you look at the package: Late 30's or early 40's, built like a telephone pole, and about as tall as a fence post. Never have been tempted to stick my pen in that company ink.

Thank god there are no more lunches with her!

History of American Law pg314-406

Yikes, its been almost a hundred pages since I collected my thoughts

p 314 (con't)

Something struck me with the quotation of the NY legislature setting aside the "Adirondack Park" about "a future timber supply". I wonder why he does not connect this, and other legislation, about the worries in Europe at the time about timber being a strategic resource.

p 320

Odd he does not spend much time on the legalities of sharecropping. Particularly so as in a later chapter about Jim Crow laws, and other southern laws regarding blacks and labor.

p 322

In a case of history repeating itself, the author discusses of the public pressure to supply cheap mortgage money and other government initiated land buying tools. Which then lead to the bubble bursting, and finally pressure for forgiveness or foreclosure delays. All this in the days leading up to the Civil War (not that they are linked necessarily, just a time reference).

p 330

Odd how he switches to using "she" to refer to people in general. I wonder why?

p 331

He talks of the general trend for federal control (initially in welfare law), and implies that it is inevitable as the economy gets bigger. Why? Is not the power-grid more or less privately ran and state regulated? What about water? The national interstate highway system was a government project, but control (not funding) is under state power. Even the educational system is largely local, despite his claim of government control starting in the 1960s (although successive laws have further weakened this). In short, I think this argument, as presented, on the inevitability of federal control is weak.

p 338

Harkening back to an earlier point, he mentions that Railroad were, at least somewhat, in favor of regulation so as to eliminate competition and supply a steady return. Again, when it comes to business regulation (or "conservation" as he talked much earlier), sometimes it does not favor the "little people", despite the wishes or protestations of proponents.

p 356 and p 369

Something here the author does not link, and I wonder if it was part of the argument in court.

In McDonald v. Mass. Gen. Hospital (120 Mass. 432 (1876)) a man sued because an employed Harvard med student for not setting a broken thighbone correctly. The court refused saying the burden of selecting a proper and competent agent for the medical work was placed on the patient.

Later in the book the author discusses that Mass. set up a State Board of Charities 1863, which Mass. Gen. fell under to my understanding. Couldn't McDonald argue that that the states regulation of such facilities made it impossible for him to select an proper and competent agent as all such were certified and overseen by the state, thereby receiving implicit certification of them being proper and competent?

p 397

In a short discussion of Western Union Telegraph Co. v. Pendleton (122 US 347 (1887)), it discusses that a Indiana statute on the prompt delivery of a telegraph was a violation of the commerce clause of the constitution (interstate commerce). Yet, was this not really a simply tort case? The author mentions the idea of statutory liability existing by this time period, why was that implied? How did a matter for Indiana courts make it to the federal docket?

History of American Law pg267-314

Finally I past the half-way point in this beast. Just a few observations:

p269

I wonder if this is another tip to de mode of academia, or something else. The author writes and quotes Edwin Corwin in "The Twilight of the Supreme Court" (1934) p78:

Far more controversial were cases [between cicra 1850-1900] that seemed to have a sinister goal: to "annex the principles of laissez faire capitalism to the Constitution and put them beyond the reach of state legislative power"

I am too jaded with ivory tower spew to comment on the "sinister" snipe. What bothers me is really Corwin's quote and his citation. A "goal" means something strove for, so, according to the argument, they court was trying to "annex" principles that were not already there.

However, was this the case? Most of the Supreme Court decisions in regard to commerce before this period were all about laissez faire capitalism. Gibbons v. Ogden maintained competition in interstate ferry routes. McCulloch v. Maryland encouraging banking competition, and knocking down state laws giving a virtual monopoly to banks chartered in that state. Those are just two cases that immediately spring to mind.

p299

This is just too funny. In regards to the pedantic nature of appeals courts in the latter half of the century:

Harwell, the defendant in a Texas case decided in 1886, had been arrested and convicted for receiving stolen cattle. The Texas court reversed, because, among other things, the jury found the defendant 'guity' instead of 'guilty' . In 1877, the same court reversed a conviction beacuse the jury carelessly wrote "We, the jury, the defendant guilty," leaving out the world 'find'. The same court, however, magnanimously upheld a conviction of 'guily' in 1879, proving that a 't' was less crucial than an 'l' in the law of Texas.

p314

Earlier in the chapter the author briefly discusses the development of the adverse possession doctrine in the US. The doctrine could be colloquially called "squatter's rights" to land. The period of time varied state to state, but essentially if you lived, maintained, and paid taxes on a piece of land for a certain number of years, it was yours.

The author then goes on to argue that the government sold/gave land as soon as possible to grow the economy. Given the former, I am not so sure. Did the government simply short-circuit the doctrine of adverse possession by laws like the Homestead Act of 1962. Or more, conspiratorially, done so as to quickly transfer choice lands to certain groups so as to avoid the doctrine.

p314

Just a passing observation as it contradicts some pop-history as taught to me in High School. Teddy Roosevelt is always lauded as the great land conservationist. Yet Yellowstone was set aside under Ulysses S. Grant. Vast lands were set aside by Benjamin Harrison and Grover Cleveland. Finally between two Cleveland's two terms Chester Arthur signed into law a conservation bill giving the President the right to set-aside lands for conservation. It seems that Roosevelt only continued the 30 year trend, not nobly went against the tide.

History of American Law pg226-267

Only forty pages yesterday, but really beginning to enjoy this book. Largely because of my interest in history in general I suppose. I keep wanting to pick up this book to finish it at the exclusion of all else, even my regular work.

Out of the forty, two observations:

p. 241

It was somewhat fortuitous that I read this just after reading "One L" by Turow. Both this section and Turow discuss the curriculum of Harvard Law School (the former in its infancy, the later more modern times). At its founding it seems the school cared little for politics and policy, based on Turow I surmise Harvard seems to be little concerned with anything but politics and policy.

p. 263

Once again the author makes a bizarre freudian reference to "sexual paranoia" in regard to racial laws. This time in the context of Chinese immigration. The author is about to be come a parody of himself on this matter it seems.

Sinking In

Over the weekend I took a farewell tour to say bye to some friends. At first I was excited to see them, and tell them of my latest project to attend law school. They largely shared my enthusiasm. As the weekend wore on however, it hit me. There is a chance I might never see these friends again. In the past I was comforted by the fact they are only a brief flight away, and a flight that I could take at the drop of a hat. At law school they would be too far and too expensive to see. My one thick tether to them has broken.

I have never been a real social person, which may surprise some of you. Yet the past five years of my life have brought me so many friends. Friends that I feel closer to than many previous friends. Even more bittersweet is the fact that I have friends literally around the globe now, a thought unfathomable to me growing-up. It pains me to flirt with the thought that as I enter this phase of my life they may phase out.

One L by Scott Turow

As part of a "reading list" somebody posted online, I picked up this book and read it on my recent weekend away. This is another "inside" law school expose. What makes it notable is the age of the book, it was published in 1977 and is supposedly to be about the 1L class at Harvard University in 1975.

And "Harvard University in 1975" says it all. As you can guess it is filled with the self-aggrandizing righteousness of the hippy-skippy late 60s, the decade most of the law school class went to undergrad in, plus with the ivy league setting we get a good dollop of that elite smug martyrdom we see so well in the era of "carbon offsets". The author seems to revel in this righteousness, however one wonders if that was a function of him or his youth (the opening gives a slight ray of self-realization into this, but the sun never rises).

In a particular telling incident, the author signs a group letter to the school protesting the teaching style of a particular teacher. Nothing wrong with that in my opinion. Then the letter becomes public, and the author hems-and-haws about how scandalous it would be if the teacher in question just may hold him to his views. He even goes so far as to apologize to the teacher.

What a sickening display of cowardice. He commits to a protest and then weasels away when he realizes that commitment may have a cost, and then even apologizes, betraying the cause he found so holy.

The end somewhat rambles on about how the author would "change" laws school education for the better. One might ask why, but I remind you he is a product of Amherst, taught at Stanford, and studied at Harvard Law. Isn't it clear knows much more than anybody else!?! We also have to factor in his pure heart and righteousness of his cause. Doesn't that proves he is the warm little center of the universe that must be heeded!?! (If it was not for the fact he attended Boston College, I would swear Scott Turow is the nom de plume of Sen. John Kerry)

Somewhere in this ending display of claptrap he discusses the trend of "diversity" from his perspective 30 years ago. While this could prove interesting, like the rest of the book it is wrapped up in that 60's drivel that placed emphasis on the superficial over the substance.

For example, one of his classmates, Susan Sondergard, is constantly referred to as crying. She cries during orientation. She cries when she meets her professors. She cries when a class is difficult for her. She cries as stress gets to her. She cries before she cries and then she cries some more. OK, I made that last one up, but save for literally one mention Susan is referred to as crying about something. The one place where she is not referred to as crying is here:

"Karen Sondergard said she quit one study group because she felt her opinions were ignored solely because she was a woman"

No dummy, your opinions were ignored because you cried at the fucking drop of a hat. How dense can you get? Speaking of dense, in another hilarious account by a female student, named "Gina":

"When I get called on [in class] I really think about rape. It's sudden. You're exposed. You can't move. You can't say no. And there's this man who's in control telling you what to do. Maybe that's melodramatic."

Maybe? MAYBE? Then, predictably, she wonders why she is not taken seriously. (Incidentally, the drama queen may now be teaching law according to Turow)

Despite the execrable cast of characters, there are a few nuggets that might help me. It is the first book to discuss the competitive pressures of law school. Sure it treats them as only negatives (actually the author characterizes them as inhuman), but its nice to get the other end of the spectrum since what I have read previously characterizes law school culture from positive to neutral. It is also the first book to better describe the daily grind and the battering of the Socratic method (of which the author has nothing go to say about). Still, I do not know if that was worth the psychedelic time-warp.

Who's Afraid of the Big Bad Wolf?

I just got my first assignment for law school. Apparently, the laws school operates an introductory clinic in aspects of legal practice. Part of this is a series of exercises, and questions. A few thoughts on what I have gone through so far.

Theoretical situations - These are basically supposed to make us think about ethics and honesty.

The first concerns "a female friend" who confesses over coffee one day that her boyfriend is physcially abusive towards her...yada-yada. What would you do? My first reaction was a half joke, maybe she deserved it. Half-joke because I am given very little information. All I really have here, objectively, is a woman, who I have no context for so cannot conclude anything definitively about, whining about her boyfriend in a coffee shop.

Who knows if its true or impartial? For all I know this could be a canny gambit for me to initiate a break-up she does not have the courage to do herself, a clumsy gambit telling me she wants to get freaky-deaky in the coffee shop's ladies room, or both as she invites her boyfriend to come watch us. In some ways this "friend" without any context seems rather repellant to me.

Of course I cannot really say any of this and expect to graduate (BTW part of the orientation is a morning of "diversity workshops". Oh, joy.).

The second one is classic case for attorney client privilege, you represent a man who has confessed to you privately to a murder that another man is up for trial. Technically speaking you can't do anything about it, but I expect argument and consternation from my classmates, and perhaps faculty, about the "right thing". I do not think "Don't care. He doesn't sign my checks" is going to fly. So I argue that perhaps we can bargain for the confession. He confesses and gets a commuted sentence, or something of the like (of course that is only in special situations).

The Mock trial

The second part is a whole mock trial. We have to read a complaint, a response, and a case supposedly providing precedent. We are then to depose a witness....yada-yada. The case is rather boring, and slam-dunk given the precedent given to us if you ask me. It is basically: a tort committed by an employee, can the employer be liable?

The odd thing is it seems all rather easy. A few questions on the employer's policy and the employee's actions that night to show a disconnect. Bam! done! I fail to see the difficulty in this. I do not know though if it was easy, or there is something I am seriously missing. Am I supposed to agonize over what questions to ask exactly? Loose myself in trivial details? Where is the challenge?

History of American Law pg 203-225

Some observations on today's reading:

pg 205

To recap something for context. The author makes great distinction while talking about the transference of English Law to the colonies and later America as a nation about Courts of Law and Courts of Chancery. The law courts are the source of common law as we know it today, and were largely used by the aristocracy. The Chancery was local adjudication and handled local matters of dispute. (I intentionally want to avoid saying law as the text makes a clear distinction)

This section of the text concerns the development of contract law, what was at that time could be considered "residual" in his words. That is to say the exact law was unclear and not necessarily covered under black letter law or common law. If so, as equally unclear under the law who had jurisdiction in contract matters. Given the contracts are mainly a local concern at this time, why weren't these cases shuttled to the dying institution of courts of Chancery in the United states? It seems like a natural fit.

pg 205

This page later goes on to what one could consider the main thesis so far of the book, American legal development was driven by increasing ownership of land. These new owners were not either tolerant or up to the rigors of land ownership as they were in post-feudal England. So the result was a simplification of the law.

In this return to theme, the author connects that contracts became much simpler and had to be come more specific and legally reliable. This makes me think of Korea's "unique" view of contracts, their application, and enforceability. One could say feudal Korea with its tenant farmers made these contracts a pointless exercise. That is if one excepts the authors thesis.

The author then goes on to something that either supports or counters this conclusion about Korea. He sites as an example of simplification the migration from seals as a manner of conveying consideration (agreement) to the use of signatures to do so. Korea has a very developed use of name "chops", i.e. seals, to sign official documents. On one hand you could argue that during feudal times only land holders used chops for documents, so this is consistent. Yet the chops are still used today, and why then do the modern chops not carry the same conveyance of consideration as those feudal chops did?

p 207

This chapter is about the penal system in post-revolutionary America. I wish he did not gloss over the evolution of flamboyant penalties in the colonial era in pg. 32-33 (stocks, scaring, scarlet letters, etc.) to the more familiar criminal justice we find now.

p 207

Odd how he does not talk about the fact Georgia was started as a penal colony, and its legacy.

p 208

It is unclear to me if he means Kentucky or Virginia immediately after the revolution, but in one of those states women convicted of sodomy were condemned to getting a hole bore through their nose. Sounds like a plot for Japanese porn.

p 209

He tries to compare the statistics of the implementation of the death penalty in Mass. vs. South Carolina. He says SC did it more, but it is unclear if he is comparing absolute numbers or proportional numbers. A relevant detail in this case I think.

p 213

In talk about the development of a dedicated police force, the author talks about initially law enforcement was a civic duty. There was no dedicated police. He mentions slave patrols, local citizens in the south who gathered to collect escaped slaves. Earlier in the book he vilifies slave patrols as oppressive, if not sadistic. This passage makes one think that a slave patrol was a duty of civic minded individuals to maintain law and order, not a vigilante group. Which is it?

p 214

In the 1820's in Alabama there was a vigilante group called the Regulating Horn, which, as I gather, developed into an umbrella group. It also discusses similar groups in South Carolina. The tactics, if not some goals, are reminiscent of what I have read about the Ku Klux Klan. I wonder if there is a spiritual or cultural connection between these groups just 40 years a part.

p 220-221

In a bit of linguistic jujitsu, he discusses the harsh conditions of post-Revolutionary prisons and then back tracks a bit and justifies them. I wonder why he did not do the same in his reference to the treatment of indentured servants pre-revolution. Especially since that institution was a penal measure as well. (Note my previous reference to servants here).

p 224-225

In this case the author supposes what was going through Mass. Justice Lemeul Shaw in a early tort case. Only does so through the general mood of society, or what he presupposes the general mood of society. Seems intellectually sloppy to me.

In Retrospect

I previously discussed why owners were not found liable for the conduct of slaves. This gives a partial answer of sorts, tort law was not developed to the point we recognize it today. As part of his explanation of the rudimentary tort law at this time he references the principle of "fellow-servant" first discussed in writing in Blackstone's "Commentaries on the Law" circa 1750 from England. While this common law precept does exonerate a fellow servant, and extension employee, from liability it does not do so for the owner. Indeed it does the opposite. Again why wasn't this principle applied to slave owners.

History of American Law pg1-202

I have been reading this by Lawrence Friedman for longer than I should have. For some reason work and the complexity of the work are hindering me. So, permit me not to summarize too much but just raise some observations on the work.

While not doubt impressive in its breadth and scope, it does suffer a bit from the usual ivory tower snipes, likely considered popular in this day and age. References to the US "empire" and reading into economic legislation "conservation"/green intentions, for example. Or in another example, he gives a neutral, if not positive, view of the role of "viewers", providing a rudimentary form business regulation, yet portrays the same work when done under the context of regulating slavery as oppressive.

It raises a great irony for me about the left. With the left's willingness to be permissive in comparing morality across groups today, I am always surprised how they are so willing to project modern morality and mores on the past. For example, he supposes indentured servants in colonial America were too scared to say anything about mistreatment, a claim he does not support this assertion other than him evaluating their lives as "hardship and oppression".

In a more hilarious argument with a freudian slip, he states that racial laws in the colonial area were based on "sexual envy", yet does nothing to prove this rather specific assertion. Sure he goes on about interracial dating, marriage, and such, yet that says nothing about envy (far from it if connect the other dots in the book). One would think given the large body of colonial laws he illustrates about sexual misconduct earlier in the book (prostitution, adultery, fornication, etc.) if there was envy involved, these same crime with a racial component would engender a harsher penalty that, no doubt one he would include if it existed. So, odd he mentioned that, something you want to tell us Larry?

(It reminds me of an almost pornographic attack by Mark Shields on McNeil-Lerher against an ad used against Harold Ford when he ran for a Senate seat in Tennessee. I almost needed a shower after hearing the verbal fusillade)

This gets me to my main question from the book so far. While it may be un-PC to say so, why were the laws of Slavery in the US more based on individual rights than property and tort? In a number of laws, slaves are held personally responsible for their actions, to a higher standard, and under harsher penalties. Yet, this should not be the case in common law as I understand it.

For example, slaves violated the law in a number of states if they possessed fire arms. If the slave was indeed property, as evidenced in law, isn't the owner of the slave truly in possession? If I try to sneak a handgun onto a plane, the TSA says *I* am in possession of the gun, not my suitcase. Likewise, slaves were held to harsher penalties under law for certain crimes. Why weren't the owners liable for the conduct of their property under their oversight? If my car's parking break fails due to my disregard for its condition, rolls down a hill, and runs over a child, the police are not going to arrest my car, nor are the parents going to sue my car for killing their child.

Now parts of this could be easily explained, or too easily dismissed, by the racism in the system. If so, what was the legal basis of this? It could also be explained by the state of the law at the time (particularly the tort aspects). Regardless, I find it odd early Americans wanted to treat slaves as property in one way, yet fail to complete the thought out on the other side.