Bad Torts Pun
Not entirely funny, given the grim circumstances, but a tort lawyer in Woodbury, New York could brush off his textbook and work with an eggshell plaintiff.
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November 16, 2005
December 28, 2003
The Grinch Stole Sex.com
I commented on the case over at En Banc, but I didn't want to link to the wonderful story of how the Grinch stole Sex.com from someone else's website.
Anyone who was in my torts class will probably enjoy this whimsical not-so-children's tale of sex, violence, and intellectual property conversion...
December 11, 2003
Here we go!
OK, the one-page note sheet that's allowed is finished. You'd never guess what you can manage with a laser printer and small type.
I feel about as prepared for this as I'm likely to get, which is lucky as I've run out of time. The only bummer is lack of sleep: last night it rained like a demon, and the sound of raindrops hitting my air conditioner kept me awake. (Note to self: buy earplugs before the next exam.)
Time to have a good lunch and hope for the wonders of adrenaline. To everyone taking, or about to take, an exam: good luck.
December 10, 2003
Panic Level: Still Yellow
The mock exam, to the extent it was taken, went reasonably well. Apparently, I can spot an issue at 20 paces, and if I'm not contributorily negligent (so no drinking during the exam!), I can hit it more or less.
I'm glad I did the mock, but we only finished half of it. Prof. Torts had told us that taking a mock exam from another professor as an issue spotter wouldn't do us much good, and 90 minutes into the event, we gave up. She was right. Oddly, this was a failure that brought confidence: she'd told us so, and being right in this, it's likely she's right in saying we're prepared for what's to come.
I tell myself that, anyway.
Also, I hope my examiners have a sense of humor, since I seem incapable of writing in a completely dry style, especially when dealing with dogs called "Newt."
Preparation, on the other hand, is an absolute disaster. We're allowed to bring in a one-page 'cheat sheet' with notes on both sides. Mine isn't finished yet, so it's a 24 hour review project. I'm certain this wasn't one of those things I meant to leave until the last minute...
December 9, 2003
Panic Level Yellow
Torts outline still not done. There's a review session tomorrow and I'm doing a practice exam, so we'll see how it goes.
With a little over 48 hours remaining, there's a conversation going on in my skull, roughly like this:
Mr. Nervous: You can't remember the standards for res ipsa loquitur by heart. You've not even started mock-examing. You slept in this morning, and your compatriots didn't. They've probably gotten a whole week's more study done than you have.Mr. Cool: Nope. I haven't done any of those things. Now shut up, or I won't be able to. Isn't there some bad Jim Carey film you should be in just about now?
Mr. Meditative: [chanting over them in the background] It's law school, not life. It's about mastering the facts, not outpacing your fellows. Being a good person comes first; being a good lawyer comes second.
Mr. Nervous: [staring at Mr. Meditative wildly] Oh, shut up, you f---ing hippie!
Tomorrow it all comes to a head: anything I've not learned by then doesn't get learned. Then one more day to review. Then it begins.
November 2, 2003
The Devil and Adam Smith
This week is economic analysis class in Torts, so I will link to this Crooked Timber question regarding utility and rational choice (via Will Baude at Crescat Sententia).
You are in hell and facing an eternity of torment, but the Devil offers you a way out, which you can take once and only once at any time from now on. Today, if you ask him to, the Devil will toss a fair coin once and if it comes up heads you are free (but if tails then you face eternal torment with no possibility of reprieve). You don�t have to play today, though, because tomorrow the Devil will make the deal slightly more favourable to you (and you know this): he�ll toss the coin twice but just one head will free you. The day after, the offer will improve further: 3 tosses with just one head needed. And so on (4 tosses, 5 tosses, �.1000 tosses �) for the rest of time if needed. So, given that the Devil will give you better odds on every day after this one, but that you want to escape from hell some time, when should accept his offer?
There's two answers to this, both of which I'll list in the extended entry, so as not to spoil it. (At least, I have two answers, though they might be wrong.)
October 29, 2003
Disappointed by Epstein
Grrr. Epstein is going to cost me some time.
Today in Torts, we addressed the issue of affirmative duties, which in the Epstein casebook is covered largely by comparing works by four torts scholars: Ames, Epstein himself, Posner, and Bender. The problem lies the Bender article, "A Lawyer's Primer for Feminist Theory and Tort."
Epstein seems to have pulled a few paragraphs from the article which I can't believe are representative of the work as a whole. It's emotive to the point of weepiness, a "we're all in this together, and let's stop pretending that humans are equations" argument. It reminded me (and it seems, Prof. Torts) of John Donne's Meditation 17, and I almost expected the author to advocate banning a party from sending for whom the bell tolls.
Simply put, there has to be more to the argument than that. Even if I'd disagree with it, I feel almost honor-bound to find the article and educate myself on Bender's viewpoint, just to make sure my mind doesn't have this residual impression left. But the article isn't on Lexis or Westlaw, so a trip to the law library will be in order, and I'll burn about an hour trying to figure out what the real story is.
Normally, I like Epstein, both his textbook and his outside works. But that kind of 'dirty trick' in a casebook really left a foul taste in my mouth.
October 11, 2003
Next bit of outside reading
Recommended to me by Prof. Torts, this book has the stories behind some of the classic torts cases, like United States v. Carroll Towing or MacPherson v. Buick Motor Co.. I'm waiting for this one to arrive from Amazon.
September 30, 2003
A Tortuous Peace
Today's reading in Torts was all about medical malpractice. I spent a lot more time than I normally do reading the cases, and feel like I have a better idea of how this whole negligence thing fits together now. At the very least, I understand that there's multiple tests and standards, and I can apply each of them. Now I just have to figure out which ones you apply where, and why.
But at least the feeling of blind hopeless panic from last week is gone. This weekend is all about review and consolidation, and Torts is first on the list.
September 25, 2003
The Joke that Dare Not Speak Its Name
We're doing the 'reasonable man' or 'reasonable woman' standard in Torts today.
I'm waiting for someone to make the obvious joke: "Well, we know why there is no 'reasonable woman' standard." (Or, if the joker is a woman, "I've not yet found a reasonable man. He's certainly not standard.") Unfortunately, I'm not sure the joke won't be made simply because it's an old joke.
The first legal memo is due in our section today. You would not believe how slowly most of the class dragged ourselves in today.
September 21, 2003
Free legal lesson of the day: Coase Theorum
Since my Torts class is going to get to this shortly, I thought I'd post a link to Professor Solum's quick explanation of The Coase Theorum.
September 20, 2003
Chocolate Tort
If you like dessert, you've got to take a look at The 5 Spot's new dessert, "The Bulge."
Not only does it have its own deep-fried, sugar coated banana, ice cream, caramel, whipped cream, macadamia nuts, and tons of chocolate, but it comes with its own waiver of liability, in which you must promise never to sue the restaurant if you get fat.
I'm not kidding. They've posted a copy for other restaurants to use here.
Lifted from the 50 Minute Hour.
September 14, 2003
Ouch. There's no other word for it
Just look at this particular mistake. Whatever you've done today, it can't top this.
September 10, 2003
Torts Question: Volto and the Kissing Cousins
As I've said, I really don't get torts so far. There's some intuitive understanding of contracts that sticks with me, and Civ Pro isn't holding any fears, but I'm having a hard time outlining the boundaries in torts. And for someone with my boundary issues, that's annoying. Here's the kind of question that springs to my mind, and to which I can find no answer.
Battery. Apparently, knowledge of the battery isn't necessary. My textbook quotes Restatement of Torts, Section 18, Comment d, illus. 2: "A kisses B while asleep but does not waken or harm her. A is subject to liability to B."
Now, consider Restatement 18, comment c: battery covers not only direct contact with the person but "anything so closely attached...that it is customarily regarded as a part thereof and which is offensive to a reasonable sense of personal dignity."
So, imagine a situation where A is making a plaster cast of B's face for purposes of making a mask. B is waiting for the mask to dry, and A kisses the mould lightly enough that B doesn't know A has done so. Is A subject to liability to B? (The situation comes from a rather lousy poem I once wrote.) What is the 'customary' idea a to whether the mould (made, after all, by A) is a part of B? And given that B is lying on the floor with a face covered in plaster, what exactly is the 'reasonable dignity' involved in the situation?
Ah well. I assume our exam (the only closed book, 3-hour exam presently on Exam Watch) will be tougher than the above. My readers are welcome to take a crack at a solution.
Bloody Techno Illiterates
And for the latest case to set my blood boiling, there's the Supreme Court of California's ruling in Intel v. Hamidi. Don't get me wrong, the court seems to have gotten it right, but the sheer amount of technological ignorance within it suggests that this was more by luck than judgement.
Briefly, Intel sued Hamidi for sending all of their employees emails about how scuzzy an employer Intel can be. He seems to have followed good-spam practice, in that he'd take you off his mailing list if you asked. But Intel sues on a theory of trespass to chattels, basically saying that he's using their servers to distribute his mail, and imposing 'costs' upon them.
Ignore the actual outcome of the case for a moment. A brief glance at the decision shows a copious disregard for any slight idea of how the internet, TCP/IP, mail hosts, servers, or the web works. The majority, thinking it's clever, states:
Epstein's argument derives, in part, from the familiar metaphor of the Internet as a physical space, reflected in much of the language that has been used to describe it: "cyberspace," "the information superhighway," email "addresses," and the like. Of course, the Internet is also frequently called simply the "Net," a term, Hamidi points out, "evoking a fisherman's chattel." A major component of the Internet is the World Wide "Web," a descriptive term suggesting neither personal nor real property, and "cyberspace" itself has come to be known by the oxymoronic phrase "virtual reality," which would suggest that any real property "located" in "cyberspace" must be "virtually real" property. Metaphor is a two-edged sword.
Where to start with the nonsense. Of course, that virtual reality isn't cyberspace, and cyberspace isn't virtual reality, and while there's an overlap between them (VRML, for starters), it would be like saying that the Internet is a mailbox because a lot of mail goes through it. It's not called 'the Net' because it evokes a fishing net, but merely because it's the kind of evolved parlance that springs up in internet culture.
And besides, the majority didn't even have to start picking holes in the metaphor, especially if it were going to pick them badly. It could have just run with the standard metaphors in a mail system. Mail servers generally have a 'postmaster' or 'mailer daemon,' a servant that puts mail in its proper place when it arrives. Now certainly, if you're considering your server 'virtual land,' then if you have a 'virtual servant' standing at something like a 'gateway' who invites onto your land anything that comes to your door, tells it where to go to, and how much memory to take up... well, how silly is it to sue for trespass something you've invited in?
However bad it is, though, the dissent is worse:
Although Haidi claims he sent only six e-mails, he sent them to between 8,000 and 35,000 employees, thus sending from 48,000 to 210,000 messages. Since it is the effect on Intel that is determinative, it is the number of messages received, not sent, that matters. In any event, Hamidi sent between 48,000 and 210,000 messages; the "six" refers only to the number of distinct texts Hamidi sent.
Now, someone correct me if I'm wrong, but this isn't necessarily the case, is it? For instance, say that Hamidi, instead of sending every letter individually, sends it to an internal mailing list of Intel's, something like businessgrouping@intel.com. That's one mail that might go to 100 people, but until Intel receives it, it's one mail. Furthermore, if they're using a system like Microsoft Exchange, it might remain one mail, just one that has quite a few pointers going to it. If the dissent is going to start worrying about costs employed by mail, is it going to choose the number of messages that go out of Hamidi's server, the number received by Intel, the number stored by Intel, or the number received by its employees? The dissent would seem (but only because it shows no sign of distinguishing the difference) to indicate the latter, but then that makes less sense. Surely Hamidi can't be held responsible for what Intel does with one letter once it hits their server? What if Intel programs their mail server to take any letter marked 'Hamidi' and send it to every employee, even if he's only addressed it to one?
In general, it's just painful to read a decision like this, where you just want to say, "No, no, it's not like that!" Especially when the arguments which are least like the reality of a working internet come from Intel's attorneys. I mean, did they not have access to any of Intel's techs?
September 9, 2003
Torts is Torts
Well, the first 8:30 A.M. Torts class is out of the way. Actually, it's not so bad. It means I have to be awake, functioning, and prepared in the early morning, which means I'm getting a lot accomplished. I'll confess that torts doesn't seem to be my subject. So far, the casebook isn't helping me to synthesize what's going on in the same way that I can understand Contracts or Civ Pro.
Prof. Torts managed to call on me within the first 25 minutes of class, referring to me as 'Mr. Rickey,' just like she uses last names with everyone. Her explanation for this was a saying of her old professor, that, 'You see, I'm Professor Law, and so if I call you Firstname, then you'll call me Charlie, and then the heavens fall.' But no one's really called me that since Japan, where I was 'Rickey-san.'
A complete reversal from my first Japanese teacher, then, who used to say, 'Every time you call me Ms. Nihongo, I turn around to see if my mom's there.'
Giving The Devil His Due
The Grinch Stole Sex.com (2)
joe wrote: no comments... [more]
Panic Level: Still Yellow (3)
Alison wrote: I don't know if it will be useful, ... [more]
Panic Level Yellow (7)
Alison wrote: Fun, fun. The voices in my head don... [more]
The Joke that Dare Not Speak Its Name (1)
Katherine wrote: I would, because we did the same th... [more]
Bloody Techno Illiterates (1)
cory wrote: i jsut herd d devil just the other ... [more]
joe wrote: no comments... [more]
Panic Level: Still Yellow (3)
Alison wrote: I don't know if it will be useful, ... [more]
Panic Level Yellow (7)
Alison wrote: Fun, fun. The voices in my head don... [more]
The Joke that Dare Not Speak Its Name (1)
Katherine wrote: I would, because we did the same th... [more]
Bloody Techno Illiterates (1)
cory wrote: i jsut herd d devil just the other ... [more]
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