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Sapere aude - dare to be wise
Tuesday, September 30, 2003
Posted 2:49 PM by Kevin
I'm mostly bored by health law, but medical ethics is intensely interesting to me. Professor Anne Donchin, one of my undergrad mentors while I finished my degree at IUPUI, got me hooked on the subject at a time when medical science seemed to deliver fantastic discoveries on a daily basis. What we ought to do with and where we ought to go next with such discoveries supplied puzzles to dance with for hours.

One of the more fun tangles I thought about had to do with genetics. If one could be injected with a retrovirus to reprogram one's DNA, what would it mean for humanity? Chet Raymo wrote this interesting little story for The Boston Globe recently that touches on these issues. Fun fun fun!

Also, I knew that our U.S. Supreme Court justices were a talented lot, but who knew they did opera? It makes me pine for next week.
Posted 1:59 PM by Joshua Claybourn
Dispute between Ashcroft, conservative judges widens. I'd comment more on this but I think the article speaks for itself.
Monday, September 29, 2003
Friday, September 26, 2003
Posted 4:19 PM by Kevin
There's lots of news today, but frankly, I'm pooped, and looking forward to spending some time with that pretty stranger I've been living with. I'm fairly certain that she's my wife. I'll have to ask when I get the chance.

Just random thoughts today, but do any other law students sometimes have flashbacks to high school? Maybe it's the fact that all first years take the same classes together and the fact that, for the first time in years, I have a locker that isn't for storing sweatpants. Then, there are the rumors. My friends here will note that I'm not exactly a social butterfly (gadfly?), but when even I'm hearing rumors and rumors of rumors, the stuff must really be pervasive. This isn't to say it's all calumnies... much of it's just goofball chatter about the professors.

Well, there's a 1L get-together tomorrow, and I think I'll go. Maybe I'll ask that woman who lives with me if she's free.
Thursday, September 25, 2003
Posted 11:55 AM by Joshua Claybourn
How to prime your professor into a good mood: Have the whole class chant his/her name as s/he enters.
LIFE IMITATES TORT FINAL

Doesn't this sound like a hypo for a final? As per The Indychannel, a twelve-year-old boy stole the car that was taking him to a mental hospital. He then led police on a highspeed chase through Noble County, Indiana. The chase ended in a crash without injury. The boy is facing possible felony charges. I won't say what the specific charges are, since that would be part of the final, if this were one. From the report, it looks like the vehicle was an official car. The whereabouts of the official driver are not reported. Apparently the kid left the highway on several occaisions to avoid the puncture sticks put down by the police.

I say, give this story ten years before it hits the casebooks.
Posted 10:54 AM by Joshua Claybourn
Congress moves to defend do not call list. What surprises me about this is issue is that I haven't seen many conservatives cry that this is too much government intervention in the free market. Indeed, some of the "Do not call" list's biggest supporters that I've come across were conservatives.
Posted 8:36 AM by Kevin
In defense of LARC

I understand people having concerns with legal writing classes. I understand the feeling that we're all being fitted with straightjackets and that it's difficult to know whether what we're learning will have any lasting value.

The thing about legal writing, from my limited experience is this: one is right to point out that creativity is being stifled because there is little room for creativity in most of the writing we will undertake--technical writing. Tech writing is dull stuff, but it is not meant to entertain. It is meant to convey complex ideas as clearly as possible and as easily as possible. It is designed for quick consumption, with zero fat.

Now, does this necessarily mean that creativity is driven out in the process? No, but the kind of creativity left is not the sort one will have in an essay, a newspaper article, or even a research paper. It is more akin, in my experience, to the creativity one has writing a sonnet. First one gets the rules, shapes the material for quick uptake and understanding, and then one works with those virtues to make something in which one may embed a personal stamp. Sonnets feel constrictive until one reads those written by Shakespeare.

Now, as I said, it also depends on what sort of legal writing one does. Memos, for example, leave little room for creativity. I've also no doubt that many lawyers will say that what we do in these classes is worthless, but I also think that hindsight is 20/20. Our inclinations toward flowery prose and attenuated paragraphs need to be curtailed sooner rather than later. An attorney who has mastered these skills may have long forgotten the first fitful, clumsy steps that made their current sprinting possible.

That's my two bits, and I'm off. I'm not saying that I love LARC, but I hated Aikido until I mastered the basics so that I could do the fun things the advanced students did. I hated the fact that they seemed to take liberties with the methods while I had to do the same robotic motions over and over. My teacher once told us a story. A new disciple once asked the Buddha why certain monks were allowed to eat foods that he could not and go places he could not go. "Are these practices not important," the new disciple asked?

"Yes," said the Buddha, "but once one crosses to the farther shore, one has little use for one's raft."

Wednesday, September 24, 2003
Posted 9:34 PM by Joshua Claybourn
Why I Hate LARC

When I came to IU-Indy's law school I had some pretty high expectations for the faculty and the courses. Not surprisingly, my experiences thus far have met or even exceeded those high expectations. Indeed, IU-Indy is an amazing school that, despite the high praise it regularly receives, is still vastly underrated. Having said all that, there's one thing thus far that's irked me (well, besides every girl being married and/or in a serious relationship).

LARC, for the majority of our readers who aren't familiar with IU-Indy's curriculum, is the acronym that's been assigned to our legal writing course. So far it's been a miserable experience, and not because I dislike writing or because of any poor grade. In fact our first graded assignment isn't due until Friday. But the professor has made the requirements clear all along - your paper must fit into a rigid, pre-determined equation. Any deviation whatsoever will be grounds for deductions, no matter how sensible or necessary the deviation may be.

Logistically this is about the only way to fairly grade work from a number of different people. But it stifles creative writing and has diminished real world value. I distinctly remember a partner telling a new hire at the firm I worked for saying, "The first thing you need to do is forget everything you ever learned in your legal writing course." Huh? This particular attorney attended a different law school but the instructions would've been given to any graduate.

I don't mean to suggest that LARC has no value. On the contrary it teaches vast amounts of necessary things - research, legal jargon, structure on certain filings and briefs, etc. It is, without a doubt, a very necessary course. But the rigidness with which we're being forced to write memos is another matter entirely. Okay, now off to finish my paper!

Update: Marc hates LARC too.
Posted 4:03 PM by Kevin
You know, if you're going to destabilize a country, why not hit them where it hurts, I guess.

Then again, even members of the interim Iraqi government aren't safe, and the BBC also reports that the condition of Aqila al-Hashimi, the Council member critically wounded in an apparent assassination attempt, has worsened. No one yet knows who carried out the attacks in either case.

I'm disturbed by events such as these not because they occur at all (I suspect the media over-reports some events), but because they are so brazen, so violent, and largely go unpunished. A comparison might be made between these attacks and violence that occurs here in the States, but the analogy would be bankrupt. What is most shocking about the attacks in Iraq is their scale-- we are talking about heavily-armed individuals who attack in broad daylight, lacking even the veneer of covertness. I don't claim to possess the solutions to these problems, but how long can we allow this state of affairs to persist?
Tuesday, September 23, 2003
Posted 1:17 PM by Kelly
Who are the good guys?
I am interested in medical malpractice law. It is not my only area of interest, but I have recently decided that I need to experience practicing in that area to further explore my interest. Because of my background, it is natural that I am drawn to med mal. I have worked for at least 6 years as a registered nurse. After 4 years in nursing school and 6-7 years nursing, I would like to be able to put some of that experience to use in my new career.

This past summer, I worked for a well-respected but small plaintiff's trial lawyers' firm in Indy. The firm does about 1/2 med mal and 1/2 other personal injury. I was excited at the opportunity and I was told by several people that it was an excellent firm at which to gain experience.
I was stopped short by the first person who asked, "So, they're ambulance chasers?" It had never even occurred to me, in my naivete, that these were the type of lawyers referred to by that label. I shrugged and told those who asked this question, and there were quite a few, that the firm in question had a great reputation in town, even among attorneys on the opposite side.

I decided over the summer that I may not be suited to representing plaintiffs in med mal actions. As I reviewed medical records, I found myself noting all the actions performed by the medical professionals that met the standard of care (as I perceive it). It's not that I am reluctant to blame doctors and nurses for bad outcomes - I agreed to work at the firm with open eyes, confident that I would enjoy helping bring the "bad seeds" to justice. But the more cases I reviewed, it became clear to me that the cut-and-dried clearly negligent cases are few and far between. What dominate are shades of gray.

I am now attempting to secure a summer position with a firm that does med mal defense. I think a view from the other side will benefit me and help me determine in what area I might be the best fit. What have stopped me short are the reactions I get when people learn of my new focus. I get wrinkled eyebrows, scrunched-up faces, and general looks of distaste. Apparently, firms that do defense work are not afforded any more respect in the public forum that their opponents.

Why are people so judgmental? I am willing to bet that most med mal cases, or any type of civil case for that matter, are not bright line cases of negligence. There are ambiguities in every situation. All plaintiff's attorneys are not ambulance chasers and all defense attorneys are not cold and unconcerned with the plight of the defenseless plaintiff.

If both of these options I am exploring are so bad, then who are the good guys?
Posted 11:08 AM by Kevin
Attorney General John Ashcroft had a heaping helping of Testoster-O's yesterday morning and decided to limit the ability of D.A.s to engage in plea bargaining with criminal defendants. The order expands upon the plan revealed last month to track federal judges who might have a predilection toward lighter sentences. That plan received a measure of resistance from some prosecutors, but neither story has surfaced much on the public's radar, yet. The ACLU hasn't even sounded the klaxons on this one, much.
Monday, September 22, 2003
Posted 10:08 PM by Joshua Claybourn
Yikes
In Norway, your butt is personal property. Further, "Touching or stroking the breasts without touching the nipple and touching the pelvis near the pubic hairs of the aggrieved party can not be regarded as an act of obscenity." I give America 20 years before this kind of garbage finds it way across the ocean.
Posted 5:27 PM by Joshua Claybourn
I was blessed to live with amazing guys during my undergraduate days. I stress "amazing" because although the letter I'm about to share comes from one of the guys who has yet to fully complete his coursework and is living at home, he's still brilliant, and that's evidenced in the wise advice he offers below. He sent this to me and another housemate who's currently a 1L at Harvard. I think you'll enjoy it.


Adam's Top Ten Tips for Motivation & Overcoming Legal Student Procrastination: To be posted prominently and followed dogmatically:

1. I was a big-time procrastinator. Now I live with my parents. For God's sake, man, don't repeat my mistakes!

2. Remember: However tough and boring some of this legal stuff may seem, you are unquestionably tougher and more boring. You can take it, no problem.

3. Stand on your head naked, and sing the national anthem. This will stimulate your brain and your patriotism (making it particularly appropriate for any constitutional law you may be studying). And airing everything out feels quite refreshing!

4. Send me $10. If that doesn't work, try sending me $20. If that doesn't work, try sending me $100. If that doesn't work, then you'll know the answer must lie elsewhere.

5. Try doing #3 publicly, and call into question the patriotism of anyone who asks what the hell you're doing. Then enjoy a long, sinister chuckle at your argumentative wiliness.

6. Make a work/reward pact with yourself - you'll treat yourself to, say, an ice cream sundae, or a nice cold one, but not until you get that work done, buster!

7. Try #6, and fail miserably. Realize your lack of self discipline and the need to engage in such trite acts of self-manipulation are entirely the fault of your parents for not instilling more work ethic in you. Resolve to sue their sorry asses for twice what they're worth; return to legal study so you can eventually sue them yourself, and save money.

8. Put a poster of Supreme Court Justice hotties Sandra Day O'Connor and Ruth Bader Ginsburg above your desk area. Hubba, hubba! Now, that's motivation!

9. Even if you really want to be an astronaut when you grow up, you should stick with law school - the other day I overheard my dad muttering something about "shooting all the lawyers into deep space!" All right!

10. Remember: Although being a student isn't all kegstands and 'tang, it's a hell of a lot better than being a working stiff.

So study, dammit!

By the way, I think you're onto something here:

> P.S. I'd settle for life as a cowboy or homemaker, as long as I can
> hire a maid.

If we could figure out a way to marry professional women, take on the homemaker role, then make enough money on the sly to hire a maid to do all the actual homemaking, we'd be SET. But how do we do it? Eating stuff neighborhood kids dare us to eat, for a dollar? Running a meth lab? Submitting cartoons freelance to the New Yorker? Donating sperm? To a sperm clinic?
Posted 12:29 PM by Kevin
Do I care much about the Emmy's? Nope, but man, was I ever thrown by Tony Shalhoub winning Best Actor in a comedy last night.

If you aren't watching Monk on USA, you're missing some of the funniest stuff on television. Monk (Shalhoub) is a detective who unofficially works with the police department, where he used to be among their ranks. He also has nearly every neurotic affliction one can name (think Nicholson in As Good As It Gets), and is attended by his nurse, Sharona, who plays Watson to his Holmes.

Admittedly, it's an old and tired formula for a sitcom (a la Murder She Wrote, Matlock, Law & Order: Criminal Intent), but Monk exists on a whole other plane of greatness. I implore you all to catch it if you can.

For those who are fans, my favorite episode is when Monk and Sharona go to Mexico. The golden line of that one (and there are many to choose from): "I don't care, I'm just so damn thirsty."
Posted 10:03 AM by Kelly
Greatest Show on Earth
We went to the circus this past Saturday evening. It was the perfect cap to a day spent with my daughter: early soccer game during which she scored a goal, pedicures for both of us, and some time spent wandering around this year's Fiesta celebration downtown, which had authentic Mexican food and terrific music from various Hispanic/Latino nations.

The circus was entertaining, but I don't remember it being so risque, dare I say sleazy, when I was a child. Perhaps I just didn't notice.
This was one of the first acts. As she dangled in front of the audience to a track of suggestive music, the ringleader described her as sensuous and mesmerizing. Other female circus performers wore Frederick's-type outfits, as well. My friend and I came to the conclusion that these "risque" aspects of the show must be for the benefit of the adults in the audience. I am disheartened by the thought that parents can't sit still for 3 hours with their children without scantily-clad women at which to gaze.

Nevertheless, the show was entertaining. And my favorite act was as thrilling as ever.
Saturday, September 20, 2003
FORTEAN KOKOMO HUM EXPLAINED?

After several years of discomfort, Kokomo might get some relief. Accoustics experts might finally have pinned down the source of the mysterious hum that may or may not be lowering people's enjoyment of life in that city. The hum, whether one hears it or not, has allegedly caused memory loss, nausea, headaches and even diarrhea in those who experience it. The IndyChannel is reporting a source for the sound. It might be caused by ultra low frequency disturbances from an industrial fan at the local Chrysler plant.

Is this the same type of disturbance that a report in the Guardian indicates might be responsible for the shivers down the spine, flickering candlelight, and other phenomena associated with ghosts? That article touched on the implications of creepy ultrasound for weapons systems and goth concerts, not industrial noise pollution. (Is it even noise if you can't hear it?)

But what are the legal ramifications? Would the 126 families who claim to suffer the effects of the phantom hum in Kokomo be able to recover? Do they have a battery claim for all the vibrations hitting them? Or perhaps a trespass claim for all the waves washing over their property and making them sick?

And then I think, this is just one fan we're talking about?

Posted 1:01 PM by Joshua Claybourn
The Big Time
I meant to point this out earlier but I forgot to. Both Howard Bashman and Eugene Volokh had their blog entries cited in a brief filed before the Ninth Circuit. Prof. Volokh writes, "Hope the judges don't figure out just how little authority blog posts ought to have."
Posted 11:28 AM by Kevin
The NY Times this morning reports (login required) that a group of "big name" law schools are suing the DoD. They claim that the Solomon Act of 1995, which threatens universities with decreased funding if they don't allow military recruiters on campus, is unconstitutional because American law schools have adopted policies prohibiting discrimination on the basis of sexual orientation, while the military has not.

The article states that the suit has a lot of support from law schools plus the Society of American Law Teachers (a fairly progressive organization, from what I can tell) is also a plaintiff. I'm not sure what to think about all of this, as I've never heard of the issue, but I'm going to do some digging.

I wish you all a great weekend. I'm going to probably catch up on some supplement reading and maybe see American Splendor at Castleton Arts. I really wish Lost in Translation were out on wide release. After seeing Scarlett Johansson perform an amazing Rebecca in Ghost World, I can't wait to see her in another role. The real draw is, of course, Bill Murray, but you know... he's not as attractive. =}
Friday, September 19, 2003
Posted 7:31 PM by Kelly
Blasted Competition!
I should have paid more attention in contracts. My favorite is paragraph 9. Magnificent.
Posted 11:40 AM by Kevin
I'm tired.

I'm tired, and by that I don't mean "sleepy" or "in a funk" or even (like some of my colleagues today) "really freaking hung over."

I'm just tired. The workload this week hasn't been abusive, but I've been pretty much reading every bit of law stuff I can get my hands on. It's doing wonders for my uptake of class materials, oh yes, but it has begun to take its toll on other things that used to be important to me (my personality, for example).

My wife this morning wistfully pined for our breakfast chats of yore (that's right, "yore") when we'd discuss politics, cuticle hygiene, or the book I'd read that she said she'd read but didn't and then when I asked her about it she lied and just said she thought it was a cruddy book so leave me alone dammit. Those were the days. We're very close, my wife and I. =}

These days, though... not so much. I'm used to her being bored with my pedantic lecturing, but I think I'm getting bored with it, and it shows. That isn't to say I'm bored with my classes. I find them incredibly engaging, and my classmates, too, are a neat collection of talents and personalities. My personality, however, I fear is ebbing away, displaced, perhaps by law stuff.

One of my philosophy professors once told me that one's personality is sort of like a cake that one holds out and offers to others. Over time, we begin to run out of cake, however, and we must bake a new one to replace it. Sometimes the new cake is much different from the old one, and sometimes not. In either case the time we spend making a new cake is difficult, since we are uncomfortable not having much cake to offer others in the interim.

Maybe I'm just busy making new cake, or maybe I need more sleep.
Posted 12:24 AM by Kelly
Poor Baby
For one brief moment today, I found myself feeling sorry for Dick Grasso. I mean, by all accounts he did a superb job running the NYSE and now he has been somewhat publicly humiliated. And then I had to remind myself: $140 million. My compassion is better spent elsewwhere.
Thursday, September 18, 2003
Posted 9:25 PM by Lawren
I just read a passage in People v. Liberta in my Family Law textbook that made me sick to my stomach. The case involves domestic violence and forcible rape of a wife by her husband. In this 1984 New York case, the defendant argued that a husband cannot be charged with rape when the victim is his wife. While the case ultimately comes out with a judgment for the wife (whew), it's scary how much discussion the opinion has. They really had to think about it.

The reasoning traces the foundations of marriage and Penal Law. They start off by quoting Lord Hale, who wrote: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." Wow.

Legal progress is a wonderful thing.
Posted 5:51 PM by Kevin
The UK doesn't need any viagra. Their home equity loans are doing just fine, thanks. And their collective anatomies don't need to be bigger (that they'll admit).

That's right, the UK Parliament has passed a new anti-spam law that, on its face, imposes some pretty stiff penalties on spammers: perhaps £5,000 worth. Will it do any good? I don't know, but would that we could pass a similar law. My 9-year-old sister just isn't in the market for "HOT TEEN ACTION" no matter how much she likes Brittany Spears. =}
Posted 5:26 PM by Kelly
Great suggestion
So Christina, what do you say? I paid nearly the $2,000 just to take my daughter to the recent Justified and Stripped concert. Surely Brianna is worthy of some help here.
Posted 1:39 PM by Kevin
The news abounds with "page 3" stories on drug laws, these days. The Alaskan constitution apparently has strong "right to privacy" provisions, which drove an appellate court there to decriminalize possession of small amounts of marijuana. The Alaskan Attorney General, however, is not pleased.

And for a different kind of anti-drug campaign, it appears that, just because Canadian law allows for medical marijuana, it doesn't mean you'll score top quality goods. What did they expect from the government? Sheesh.

Some of our friendly neighbors to the north are also trying a novel approach to drug treatment: furnish the drug houses. No, not methodone... drug houses for using illegal drugs. It's claimed that more lives will be saved and less diseases spread if addicts have a safe place to get their respective fixes, and there's at least some evidence to suggest the supporters might have a point. In any case, it's scaring the hell out of anti-drug advocates here in the States. To read the whole story from the link, by the way, you can get a free "daypass" for watching a little web-mercial.

Also, if you were still holding on to some shred of goodwill toward North Korea, there might now be one less reason to like them (besides kimchi). President Bush claimed on Tuesday that North Korea has a "direct role" in the production and trafficking of nasty drugs. Then again, the government also lumps China, Pakistan, and Afghanistan in with that lot, and they're our good friends. One would think we ought to call them out more vociferously before we do so with whacko nuclear powers who want to attack us (the last qualification to distinguish it from Pakistan).
Wednesday, September 17, 2003
Posted 10:23 PM by Lawren
Don't mess with Grandmother!

I'm always interested in the legal blunders that celebrities get themselves into. It appears that Eminem has gotten himself into a copyright infringement suit with none other than a 70-year-old California grandmother.

Incidentally, it happens to be exactly what we're discussing in Professor Crews's Copyright Law class. Grandmother inherited Grandfather's rights to the copyright, and ain't no one getting in her way of the royalties--not even the Bad Boy rapper himself.

You go girl. Er, Granny.
Posted 4:28 PM by Kevin
Good day loyal readers! This is just to introduce myself, and to stave off speculation that I'm just a pseudonym of someone else's put here to straw man people from Wisconsin.

I'm a 1L at IU-Indianapolis, 28, married, and am a generally affable cranky-pants who claims to be interested in international law but has little idea what that means, yet. My undergrad was in philosophy, which, I've learned, will impress some of you and send others into fits of girlish giggles.

In either case, I'm also keenly interested in legal news and politics. Save catching the occasional Packer game, I'm not much of a sport-guy... rather, politics and the law are my sport. Not only are they more interesting and pertinent, but they also allow me to indulge in the sound of my own voice (which I love).

That said, one story I'm torn up about that's getting slightly less press than the hurricane is this one regarding the Apple ("computer") company and the Apple (profiting from your nostalgia) company. While I see the latter's point... I doubt the clause in question bars the former from having any association with music in general. Odd.
Posted 10:21 AM by Kelly
Free Advice (& I presume you are aware of its worth)
I recently finished the "first round" of On Campus Interviews (OCI). The program involves submitting your resume online, during the summer after your first year, and placing bids with law firms that intend to conduct on campus interviews when the fall semester starts. You are then notified which firms have "granted" you an interview.

I took the free advice of a person that doesn't know me and I placed a bid with every firm whose minimum standards I met. I had been planning to bid only a handful of firms that I knew had practice areas that interest me. I was discouraged from limiting myself in this way and the reasoning made sense to me: that unless I was positive I would get 2nd interviews and then job offers with these few firms, I should bid as many firms as possible.
Of course, I had no idea who would remain interested in me after the initial screening interview, so I bid many firms. After several interviews, I began to regret my decision. I found myself answering the question "So, what attracted you to our firm?" with not-so-honest answers. I figured, "I bid every firm I could" wouldn't come across very well.
About a week into the process, with more than half the interviews complete and many more to go, I started cancelling interviews. I simply decided I was wasting the time of both myself and the interviewers. I am sure the Office of Professional Development wishes I had been more selective in my bidding, though they graciously cancelled interviews when I requested.

If you don't have a particular area of law that interests you, or if the area or areas in which you are interested are practiced by almost every firm, then bidding many firms may work to your advantage.
While I definitely need exposure to new areas of law, I have areas of interest related to my background that I know I would like to experience. That most of the OCI firms don't practice in these areas made the initial process more difficult for me.

My advice as one person who has gone through this process: bid carefully. Interviews are only 20-30 minutes each, but if you are going to have a busy schedule (classes, law review, moot court, work, etc...) then every moment counts. And it takes time to prepare for interviews. You need copies of your current resume, references, and possibly writing samples. You should also know a bit about the firm before you enter the interview room.

There are, of course, other ways to find summer jobs. The Office of Professional Development is ready and eager to help students with their job searches. I found that OCI was a convenient way to interview with more than one potential employer.

Good luck to all on the job search - and to those who will go through OCI next year.
Tuesday, September 16, 2003
Posted 2:52 PM by Joshua Claybourn
Priorities?
After reading this letter one's left with the impression that the American Bar Association is more interested in protecting the due process rights of suspected terrorists than those of American soldiers.
Monday, September 15, 2003
Posted 8:27 PM by Joshua Claybourn
Today's Random Thought
Tort rules, LARC drools.
But do they watch Judge Judy?

The Indychannel, the website for our local ABC affiliate is running a cyberpole: "A New Jersey mom and dad weren't able to agree on cell phone privileges for their daughter, so they took it to court. Should family disputes be solved in court? "

As of 10:45 AM, with 6024 votes in, 93% of the respondents say "No. This is a waste of taxpayers' money. Parents need to get along."
Sunday, September 14, 2003
Posted 3:39 PM by Joshua Claybourn
Intellectual Property Rights
Prof. Eugene Volokh and Lawrence Solum had an interesting exchange over the nature of intellectual property, with much of it steeped in economic efficiency. During my undergraduate days (you know, way back then) club goods were somewhat of a focus for me, so I like the exchange. Although the two add a few exceptions and distinctions, they both pretty much reach the same conclusion: protecting intellectual property is necessary for incentives. Of course that's a widely held belief, but the Professors offer a top-notch defense.

I think there are some market-based situations, though, where the incentive would be to relinquish some sticks of the property rights bundle. Fame and wealth are the two biggest motivating factors for aspiring musicians, yet if and when they reach stardom, the bulk of their wealth comes not from album sales, but from concerts. The market seems ripe for a talented musician to freely dispense their music online as a fame-building promotional stunt to get more fans to their concerts. The concerts, which are club goods, would continue to serve as an incentive and in many cases the freely distributed songs will actually boost ticket sales.

The primary incentives protected in musical intellectual property rights are those of the record labels. But the ever changing technological landscape means that their skills - putting music onto CDs and promoting it - are no longer needed. People can now transfer music and listen to it anywhere without CDs. Promoting good music through web sites, message boards, and TV shows is becoming increasingly common and, perhaps most importantly, increasingly easy. The record labels are a middle man that technology is cutting out, and intellectual property rights in music are serving their unnecessary existence more than the musician's. I'm looking forward to the first major stars who realize this and finally cut themselves from the bonds of record label slavery.

Update: Here's a musician who agrees with me. Also, Prof. Volokh has responded to Prof. Solum here.
Saturday, September 13, 2003
Posted 6:20 PM by Kelly
Gov. Frank O'Bannon 1930-2003
My prayers are with Gov. O'Bannon and his family.
Thursday, September 11, 2003
Posted 1:31 PM by Kelly
Is this news?
I don't get it. A report from the media on how many of them were present to cover a story. Perhaps this type of information warrants a mention in a related article - but an entire article? What a stretch.
Posted 8:44 AM by Joshua Claybourn
Paul Musgrave explains why calling professors by their first name can be confining, and why sticking to Prof. So-and-so is, arguably, the more liberating option.
Wednesday, September 10, 2003
PROPERTY RIGHTS OF KING KONG AND THE GATES OF HELL

Today in Property we continued our discussion of animals ferae naturae and the extension of the concept to fugitive minerals such as oil and natural gas. Questions arose from movies I have seen.

Son of Kong opens with a man in sorry legal shape. After a long and difficult Broadway debut, Kong owner Carl Denham is holed up in a boarding house trying to avoid all the litigation stemming from the events of the previous movie. They have him for destruction of property, wrongful death, trespassing, &c. I think Denham's lawyers (if he could afford them) might make a case that, since Kong was ferae naturae, he lost his property claim when the air force shot the beast from high atop the Empire State building (Pierson v. Post, Supreme Court of New York, 1805). Of course, since prehistoric apes are not indigenous to Manhattan, Denham has strict liability. I think Denham realized this, and that is why he fled on a boat back to Skull Island where the sequel was taking place.

The discussion of mineral rights brought up an old piece of Latin from Hammonds v. Central Kentucky Natural Gas Co. (255 Ky. 685, 75 S.W. 2d 204 (1934): "To whomever the soil belongs, he owns also to the sky and to the depths." I don't like this concept for a number of reasons. First of all, it dates from a time when people thought that a flat earth was the center of the universe. This might be academic, and I am willing to ignore the sky part. But what about the depths? In theory, your property extends to the center of the earth. Does this give you the right to mine iron from the earth's core? Or, why stop halfway? Why don't your property rights continue on through the center and out the other side? When you buy a house on Maple Street, do you also own the mineral rights on the floor of the ocean on the other side of the globe?

Too many hypotheticals. This discussion does remind me of a movie: Lucio Fulci's L'aldila. It's an Italian horror movie from the early 80's, a classic of its type. Basically, a woman inherits a hotel in New Orleans with about four feet of standing water in the basement (No wonder, it's below sea level.), but that is not the worst of her troubles. Beneath the water is one of the seven gates of Hell! Now, from what I gather in Edwards v. Sims 232 Ky. 791, 24 S.W.2d 619 (1929). The woman would only have a legal claim to that part of Hell directly below her property. Could she control who went there and what activities took place? Or, do the resident devils and demons have a prior adverse property claim dating back from eternity. And then there's the question of jurisdiction, but that is a Civ Pro question.
Posted 9:54 AM by Kelly
What Would Jesus's Lawyer Advise?
My sister is a 24-year-old free spirit with a kind heart. Her '90 Honda has been acting up and so for the past couple of weeks she has been driving my parents' mini-van, as they are out of town. (For those who don't know, the mini-van may not be a sexy car to drive, but it has quite a bit of get-up-and-go!) I recently learned that a few days ago, on her way back from a bowling trip with one of her friends and my daughter, she picked up some hitchhikers from the side of the road.
OK, I made it sound worse than it was. It was a Hispanic woman and her 3 young children. And my sister insists that they were not hitchhiking, they were just walking along Keystone Ave and she offered them a ride. (She has made many friends in Indy's rapidly growing Mexican population - she is nearly fluent in Spanish as a result - and is eager to help members of this community in any way that she can.) She drove them home without incident.

I think this was a wonderful thing to do. However, I think this was a dangerous choice. First of all, I am a bit paranoid and there is the remote possibility that one of these seemingly harmless folks could have hurt my sister or my daughter in some way. That unlikely event aside, I worry about the legal implications. The minivan has only 1 of 2 back benches in it at the moment. This means that 3 of the 4 strangers were sitting on the floor of the van. Can you guess what I picture? Yes - a fatal car collision where the Hispanic woman survives and sues my sister or my parents for wrongful death. None of the kids were in seats, much less seatbelts.

My sister makes her own choices but in this case she is involving other people's lives - and money. I don't know much about auto insurance - couldn't my parents be held responsible in such a situation? Even if not, they would wind up helping my sister out in any way that they could.

Do I worry too much?
Tuesday, September 09, 2003
Posted 8:27 PM by Joshua Claybourn
The Patriot Act
Dahlia Lithwick and Julia Turner offer part 1 and part 2 in a series exploring whether we should be scared of the Patrio Act. They're in-depth fact based pieces that, at least in my opinion, leave you scared. In National Review Online Timothy Lynch offers pointed questions for the Attorney General, while Barbara Comstock responds with some answers.
Posted 3:31 PM by Joshua Claybourn
Here's a legal/moral dilemma y'all can weigh in on. Suppose for a moment that someone - let's call him Bob - just purchased a new Dell laptop. Bob also has a Dell desktop computer. The laptop is needed for academic pursuits that often take him outside of his abode, while the desktop remains on a desk at home. The desktop connects to a broadband connection that costs Bob $35 a month. The laptop has wireless internet capabilities, and to Bob's surprise the laptop receives a wireless signal in his apartment in spite of the fact that he does not subscribe to such a service. Bob suspects that one of his neighbors subscribes and that he's just fortunate to live close enough to receive the signal as well.

Can Bob continue to access the internet through this connection without guilt? Without legal liability? Further, now that Bob knows a wireless connection is available, should he cancel his $35/mo. broadband connection (which is sporadic anyway) and setup his desktop to a wireless connection as well?
Posted 12:14 AM by Lawren
Think this case will make it next year's 1L torts book? Oh how much money I'd pay to sit in on THAT lecture.
Monday, September 08, 2003
Posted 6:47 PM by Joshua Claybourn
You can hear the Supreme Court's oral arguments on the so-called McCain-Feingold campaign finance reform bill here at C-SPAN. They'll replay the audio beginning at 8 p.m. and midnight.
Posted 5:30 PM by Kelly
Class Act
Recently, at my daughter's back-to-school night, I was given a pamphlet regarding this school year's ISTEP+ (Indiana's standardized testing program) testing. One portion read, "This benchmark data serve as the first step in implementing ISTEP+ in grades 3 through 8 . . ." This pamphlet was prepared by the Indiana Department of Education.
Doesn't exactly inspire confidence.
Sunday, September 07, 2003
Posted 3:32 PM by Kelly
The 2L
I love law school. My first year was thought-provoking, confidence-building, and stress-inducing. And I loved it. 2L's and 3L's that I talked with last year warned me that first year classes were boring but that I shouldn't worry because 2nd and 3rd year classes would be more interesting. This advice worried me a bit, however, because I enjoyed my 1st year classes. So while that could conceivably have meant that I would find my upper level classes even more interesting, it could also have meant the opposite: that I would find my upper level classes intolerably dull. Two weeks into my second year, I find my interest level to be on par with last year.

Another worry of mine (you will find that there are many) is the correlation between enjoying law school and enjoying the practice of law. I have heard that most who loved law school don't particularly enjoy practicing law. This is a troubling thought. I can't stay a law student forever - can I? I could perhaps stay in academia forever, but I need to earn money at some point and I don't have the qualifications needed to teach law.
Any predictions on the correlation? Am I destined to hate practicing law?
Posted 12:05 PM by Joshua Claybourn
Campaign Finance Reform
Tomorrow the Supreme Court will hear oral arguments on the McCain-Feingold campaign finance reform bill. Howard Bashman has all the details and information on how you can listen to them.
Posted 11:59 AM by Joshua Claybourn
Blog Controversy
Prof. Eugene Volokh discusses academic freedom and how it relates to IUB economics professor Eric Rasmusen.
Posted 11:55 AM by Joshua Claybourn
Bobby A-G lets you in on all the law school secrets, but I have a feeling most of the readers here already know them.
Saturday, September 06, 2003
Friday, September 05, 2003
Posted 2:51 PM by Joshua Claybourn
Around the Horn
There're lots of good legal articles out on the web today. Here are a couple that I found particularly interesting. First, Prof. Glenn Reynolds ponders whether Ralph Nader should be held liable for faulty policies:
Why aren't those advocates who sell policies to the public held to the standards of people who sell burgers?

McDonald's serves hamburgers. If you eat too many of them, you'll get fat. If you don't know that, you're an idiot. But if McDonald's knew, or should know, that its burgers were fattening, and told you otherwise (remember the Seinfeld episode about the "fat-free" frozen yogurt that wasn't?), it would be liable.

So what about policy entrepreneurs who tell you that a policy will do things that they know, or should know, it won't?
I find the proposition amusing mainly because so many of Ralph Nader's pet issues, such as seatbelts, airbags and restrictive trade, have had a significantly detrimental impact. But in practical terms this sort of liability would cause chaos in a democratic society. In all fairness, though, I don't think Reynolds was totally serious about the idea.

The second piece is a bit more political in nature, but it finds its roots in law. David Keene explores the growing international tastes the Supreme Court is developing in "When in Rome, do as the Romans do." In my humble and inexperienced opinion, this phenomenon will have an enormous impact on American law that isn't getting the attention it deserves. Stuart Buck notes that this devlopment may actually have a more conservative impact on current abortion rulings.
Thursday, September 04, 2003
Posted 1:27 AM by Joshua Claybourn
Buy It!
I'm convinced this t-shirt is destined to become the biggest hit at law schools in decades. It's simple yet elegant: just a white shirt with tortfeasor written across the chest. I can't wait until mine comes in the mail. Perhaps my fearless tort leader, Prof. Magliocca, can get a hold of one too. (thanks to Bobby A-G for pointing it out)
Posted 1:22 AM by Joshua Claybourn
Overturning Death
Marcia Oddi offers a good summary of a recent 9th Circuit decision which overturned "the sentences of more than a hundred death row inmates in three western states yesterday, ruling that the prisoners' constitutional rights were violated when they were sentenced under state laws that permitted judges, rather than juries, to decide between execution and life imprisonment." Considering Indiana's procedure, the state's death row inmates may be affected.
Posted 1:13 AM by Joshua Claybourn
The Yale Daily News is reporting that the person who bombed the law school over the summer is still at large in spite of a string of searches.
Wednesday, September 03, 2003
Greetings from another 1-L. Right now the metaphor that springs to mind for my law school experience is running up the down escalator. I used to do that as a kid, so I have faith that I can do it now (I ate a lot more candy back then, though). I fear the next stage might be me as Lucy at the candy conveyor belt, but instead of confectionary, it will be torts coming down the line, tort after tort after tort after tort.

Ah, but my interest has been piqued by a story from Jeffrey Kaye of KCET Los Angeles on the News Hour this evening. R J Reynolds is filing a federal suit against the State of California to get them to stop airing commercials that portray tobacco companies and their chief executives in an unfavorable light. Probably not as interesting as Fox v. Franken, but we'll see.
Posted 3:28 PM by Joshua Claybourn
Beauty Bias
Economists at UT-Austin, Prof. Daniel Hamermesh and undergrad Amy Parker, found a significant correlation between the attractiveness of professors and their teaching evaluations.
According to the economists' statistical analysis, good-looking professors got significantly higher teaching scores. The average teaching evaluation was 4.2 on a 5-point scale. Those at the bottom end of the attractiveness scale received, on average, a teaching evaluation of about 3.5, while those on the top end received about 4.5.
The sample pool wasn't as large as one might've hoped for, but it does raise some interesting questions. I'll let someone of the opposite sex ponder what this means for Prof. Cooper.
Posted 12:49 PM by Joshua Claybourn
John Derbyshire brings up an interesting dilemma in the so-called "wall of separation" between church and state.
Tuesday, September 02, 2003
Posted 2:10 PM by Joshua Claybourn
Rankings
I'm hesitant to talk about the US News law school rankings for a couple of reasons, but first and foremost among those is that they're biased, unscientific, and not very substantive. In spite of many (most?) others feeling the same, it does generate a fair amount of buzz each year it comes out. Moreover, for better or worse, applicants and employers take notice. Prof. Jeff Cooper spoke quite eloquently on this in the spring, and I think his post on the subject is just as true today as it was then. Paul Musgrave has an equally poignant post worth reading as well.
Monday, September 01, 2003
Posted 10:38 PM by Joshua Claybourn
Howard Bashman holds nothing back as he puts the smack down on the Supreme Court of Missouri for ignoring a binding US Supreme Court decision. I think if one reads Bashman every day they should get course credit.
Posted 3:54 PM by Joshua Claybourn
No soup for you
The U.S. Court of Appeals for the Third Circuit ruled that elementary school students have no First Amendment right to promote an unsolicited religious message during an organized classroom activity. The decision can be found here (hat tip to Howard Bashman).

One of the first cases assigned to our law class (and I think this is pretty standard) was Vosburg v. Putney, a case from 1891 in which a Wisconsin court suggested that tapping a fellow student during class was "unlawful." If such a strict rule was applied to such a simple act in 1891, you can sure bet that an unsolicited religious message would meet the same fate a hundred years later. But the reality of the situation is that few acts, religious or otherwise, that distract from the academic lessons at hand will be permitted during "an organized classroom activity." And why should it? If a teacher is explaining the basics of multiplication, it doesn't take a genius to figure out evangelizing has no place. But in this case the "organized classroom activity" was a party, and the "unsolicited religious message" was a pencil that read "Jesus Loves the Little Children." The second offense was candy canes for a Christmas winter recess party with a note attached explaining the religious history of the canes. It leaves me scratching my head and wondering if I would bring suit in a situation where the tables were reversed.
Posted 2:46 PM by Joshua Claybourn
To be or not to be
In a case that seems to be pretty rare, the fate of a 26-year-old son who lies in a vegetative state will be in the hands of a court-appointed guardian. The divorced parents are in disagreement as to whether or not he should remain on life support.
Posted 12:00 PM by Lawren
Advice from Grandma:

Some of you may be taking this entire day and relaxing--movies, friends, etc. If so, good for you! You deserve it!

If you aren't, and you are doing some homework, I'd like to make a suggestion. Time really gets away from you once law school gets going in full force. Although this would be an excellent day to get a little ahead in your classes, it's also a GREAT day to do some of the things that you will feel that you don't have time for in a month or two. What do I have in mind?

1) Update your resume. 1L's, put your law school info on there. 2-3L's, get that summer job on there, new GPA, activities, etc. THEN, e-mail it to Shannon or Holly in the Office of Professional Development. They always look over mine before I consider it "finished" and they always have great suggestions.

2) Write a cover letter. Once you have a good one, you really only erase the person you are sending it to. Again, get to the Office of Professional Development for a lookover.

3) Start looking at your supplements (if you use them). It always seems like extra reading, but now is the PERFECT time to get a good basis of where you've been your first week, and where you're going next week. Supplements can also help clarify anything you didn't understand.

4) Do something around the house you think you don't have time for--clean out a closet, go to the store and do a major stock-up on food so you don't have to go much later, dust, etc.

5) Go buy yourself a nice suit. By nice, I don't mean expensive--I mean fits well, clean-cut, and a good interview color. My suggestions: navy, black, gray, pinstripe. It's the end of the summer season, so it's a GREAT time to find suits marked down to a more affordable price. You can try a nice store like Ann Taylor, J Crew, Nordstrom's, Parisian, etc.. but I've also found great suits at TJ Maxx and Marshall's.

Have a wonderful day--no matter what you decide to do! (Too bad the weather isn't cooperating).
Posted 10:29 AM by Joshua Claybourn
Labor Day
It's Labor Day, that wonderful day of the year when we get to celebrate laboring by not doing it. That is, unless your a law student, in which case you must still read your Torts and Civil Procedure assignment for Tuesday. Anyway, I thought it'd be worthwhile to note the history behind it.

It's generally agreed that labor day was first celebrated September 5, 1882, in New York City, thanks largely to the Central Labor Union. Through the years it gained increasing importance and individual states were soon passing legislation to make it official. Eventually Congress did the same, in 1894, passing an act making the first Monday in September of each year a legal holiday. (thank to the Dept. of Labor for the info.)
Posted 10:28 AM by Joshua Claybourn
Thanks to TMS for "reciprocating the permalink" (that is fun to say) and for the compliments on our title.

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