Beat up by the Prof, v1.1

also known as: Better him than me.

Fortunately this tale does not involve me, but I found it worthy of a post anyway. A couple notes first. When a student is assailed by a professor, and the student struggles with the answer, two things always happen. first, the other students will never laugh, will always feel sympathy, and generally feel a sense of 'solidarity' with the unfortunate victim. Second, when possible one or more students will come to that person's aid at the earliest opportunity (usually it happens when the prof turns from that student and glances wonderingly around the class). we have all had minor assailments and have all, consequently, come to each other's defense when we could. it's the silent knowledge that we're all in this together, and we only have each other to rely on.

this particular tale is the exception. this unfortunate student (we'll call him Bob) brought this on himself. no, nobody laughed at him, or made disparaging comments after class, or anything else. but when the opportunity presented itself, nobody came to his aid either. he was on his own.

this happened in Torts. my prof for that class is as sharp as they come, and despite being unflinchingly nice, is still very tough and is adept at asking difficult, probing questions. we were discussing self defense. there is a principle we will call 'excessive force', which means that if you're defending yourself against an attacker, you are only "privileged" to use equal (reasonably speaking) force that your assailant is using against you. if someone is about to punch you, for example, you're not allowed to take out a gun and shoot him. that would be excessive. the standard used is that one may use deadly force in self defense if he is threated by deadly force OR the threat of serious bodily injury.

Bob wanted to try and test these boundaries, so he asked a question:

Bob: ok suppose some guy is holding my arm, and he has a big knife and is about to cut my hand off, can I with my free hand take out a gun and shoot him?

[at this point the class is dumbfounded. where did he come up with this crazy scenario? we all are thinking "boy Bob, you watch too many horror flicks"]

Prof: [equally dumbfounded] so where did you come up with this hypothetical?

Bob: well I'm just trying to figure out when it's okay to shoot someone in self defense.

Prof: when you're threatened with deadly force or serious bodily harm. I would think this unlikely scenario would qualify as pretty serious. [she then tries to move on - turning back to the whiteboard and picking up a market]

Bob: but this guy isn't trying to kill me. maybe he's a mobster trying to intimidate me.

Prof: what about this hypothetical do you find "not serious"?

Bob: well he's not using a gun. he's using a knife.

[Prof then looks to the rest of the class, but we're deadly silent, not about to get involved in this one. about 30 seconds pass]

Prof: [clearly trying to save his ass by now] so in your story, you are being intimidated by the mob, and this wiseguy is about to cut off your hand, and you happen to have both a free hand and a gun available, and you're wondering if it's okay for you to shoot this criminal, right?

Bob: yes, I'm wondering if I'd be liable if he were to sue me.

Prof: [clearly tired of this by now, but trying to be nice] Bob, I'd think you would have much bigger problems than a law suit. What is it about this story that confuses you?

Bob: it's the knife vs gun thing.

Prof: are you saying that cutting off your hand wouldn't be a serious bodily injury?

Bob: well it's not deadly [at this point the entire class shifts itself in our seats]

Prof: [decides to end this] it doesn't have to be expressly deadly, it just has to be serious. but one can certainly bleed to death when a major artery is cut. nevertheless that wouldn't matter. No. you would not be liable for battery or anything else in tort. you might go to jail for consorting with the mob, the wiseguy will probably go to jail too, and you two would be free to work out your differences behind bars. now lets move on.

nobody said a word as the prof moved on and lectured for a few more minutes. this was near the end of class and we were soon released. nobody talked to Bob.

the next day, before property (which Bob is not taking this term) I was talking with another student (whom I've become friends with by the way) and asked him what he though about the exchange. he said "hey Bob was on his own. he didn't need to ask that question. you (referring to me of course) are always participating in class, but you never bring wrath upon yourself, you just ask questions or respond when the prof asks questions. Bob does the same thing but he asks outrageous questions and gets what he gets. By the way, we all appreciate you speaking up so much in class, it takes the heat off of us."

I'm sure the latter will come as a big surprise to most of you.

Update

It's been a week since I've posted anything, so I thought I'd post a brief update. I have midterms in 3 of my classes in week 6 (we just finished week 4), so at the moment I'm spending my time doing extra work studying for the exams. they're all the same - 20 multiple choice questions worth 10% of the grade. Nothing too outrageous. I've taken practice exams for two of the classes (my torts prof hasn't provided any practice tests) and have done just fine, so I'm not overly worried, but I am not taking anything for granted. This is also a good time to compile what I've learned thus far in some sort of manageable form so I can study for the final later.

this manageable form is typically an outline. I have about 10 pages for property (no midterm, but the class is pretty tough), about 9 for Crim, 7 for torts and I've barely started my contracts outline. guess what I'll be doing this weekend? hehe. of course I got 9 out of 10 on the contracts practice test (which was apparently harder than the actual midterm), and the one I missed was VERY debatable (even the TA got the same answer I did) so I certainly get the material, I just need to finish my outline so I don't forget all this stuff by the end of the term.

The only other interesting thing going on is that we're having elections in two weeks for our class' student bar association representative. it's basically student government for law school. I haven't decided yet whether or not I'll run, but a few people have told me that I should, so I may. I'll let you know later, nominations have to be in by next Wednesday. It's a pretty small time committment, and for us first term students there's no committment the first term (the meetings are during our contracts class). It is a good networking opportunity, and networking = jobs, so I am considering it.

Nothing much else is happening. I'm spending about 45 hours a week outside of class studying, so this is more than a full time job, but I'm enjoying it so far and keeping up just fine.

That's it for now. I'll try to post something more interesting this weekend.

Felony Murder - what do you think?

I am writing this to solicit opinions from the various and sundry out there in the proverbial peanut gallery. We are currently studying homicide in Criminal Law, and I have been confronted with a quandry, it regards the crime of Felony Murder.

I am sure all of you know (perhaps from watching Law & Order) that homicide is the killing of another. There are many different kinds of homicide, depending on the degree of culpability of the killer, and the most obvious degree imposed is the difference between Murder and Manslaughter. Murder requires intent, at varying degrees, and Manslaughter does not. That there are differing degrees of intent that one can have, we also have different degrees of murder, IE 1st degree, 2nd degree, 3rd degree murder. The higher the degree, the greater the intent required. This is all relatively self evident (and admittedly simplified). the reasons for the distinctions are obvious - it goes to punishment (we punish more severe crimes more severely).

There is one special exception to Murder: Felony murder is when the felon kills someone in the course of committing another, unrelated felony. That means that if you're robbing a bank, your intent is only to rob the bank. but if you kill someone (accidentally, inadvertently, watever) during the commission of the felony, you are guilty of felony murder. The affect of this is to remove the requirement for specific intent (in other words, the commission of the underlying felony, eg robbing the bank, replaces the requirement to otherwise prove intent to kill).

Some states call felony murder "1st degree murder". others call it "2nd degree murder". 3 states have abolished the rule altogether, and a few others have greatly limited it. I'd be happy to give a more detailed history later if you want, but for now, I want to know what you think of the general rule.

a good illustration of this is the following (this is an actual case, much abbreviated of course):

a man commits a burglary. while fleeing from the scene, he causes a car accident killing the driver of the other car. he's convicted of felony murder.

so tell me, is this rule just? is it fair? remember, the guy above could still be convicted of a lesser homicide crime, and certainly of burglary.

Good Lawyer, Bad Lawyer

Many people don't like lawyers. The old joke is "everyone hates lawyers until they need one". One of the many reasons why people don't like lawyers is the fact that sometimes a lawyer must defend a guilty person, and sometimes that person is acquitted for whatever crime they are accused (and presumably guilty) of. I would posit, however, that if a good lawyer defends a guilty person, and that person goes free, it is not the good lawyer's fault, but instead the bad lawyer is to blame (the one charged, presumably, with prosecuting the crime). In other words, the law protects the innocent and prosecutes the guilty, and when justice isn't served it's because some lawyer made a mistake.

consider the following example:

A man assaults a woman with a gun. Assume that there are no problems with search and seizure, that there are no "technicalities" which would lead to an acquittal. The good lawyer is defending the man, the bad lawyer is the prosecutor. The man is charged with criminal assault.

The burden of proof is on the prosecutor to prove that the man is guilty of all elements of the crime. For assault, he must prove that the man was the person who indeed pointed the gun, that he intended to point the gun, and that he intended to cause her to have fear. The prosecutor must prove all of these things in order to prove assault. The defense need only prove one element is missing...

so what do they do?

Bad Lawyer: bad lawyer only has one witness: the victim... he questions her extensively, proving that the man indeed pointed the gun, and that he made threatening remarks proving that he intended to assault her. he finishes.

Good Lawyer: I have no questions your honor, and I move for summary judgement because the State has failed to make a prima facia case [summary judgement is when the judge decides that there is not enough evidence for the jury to decide, so the judge decides for them; a prima facia case is the burden on the prosecution to meet all of the 'elements' of the crime in their proof]

Judge: on what evidence do you make this motion?

Good Lawyer: the prosecution did not prove that the victim was afraid.

Judge: [looks at the transcript of her testimony] you're right. motion granted, case dismissed.

so the man goes free. the good lawyer did his job, the bad lawyer didn't, and the criminal goes free. two days later the man kills the woman. is it the fault of the good lawyer for doing his job and "getting his client off"? no. It's the bad lawyer's fault for not knowing the law and proving his case.

In other news . . .

Taking a break from criminal law, I decided to watch some local news.

[just a bit of background, I have been told by a few people that western Michigan is the bible belt of the midwest, and I've seen no evidence to the contrary. some of the biggest and most impressive churches I've ever seen are around here]

one of the lead stories just killed me tonight. they led off with this crazy graphic of "666" which first made me laugh, then piqued my curiosity. you see, June 6 is coming up, and of course it's 2006, so the date will be 6-6-6. the story was about pregnant women who are due around that date, and the things they're doing to try as hard as possible not to give birth that day. one woman interviewed literally said that she didn't want to give birth to the son of satan, and she was "praying hard" to avoid that.

anyway, that's it. Time to get back to criminal law, I have to brief a case on physician assisted suicide ;)

Vocabulary

One of my profs, on the first day of class, made the following comment (paraphrased, of course): "One good thing about law school is, when you go home for the holidays, you can impress uncle Joe with all of the new big words you've learned". So far we've learned a few big words, most of them in Property or Criminal Law (and no I'm not talking about the words you might hear on Law & Order like "motion"). here are a few:

terra nullius - the land of no-one (or the land of no europeans, at least)
ferae naturae - wild animals. yes this is important.
trover - the value of a thing (personal property)
ratione sole - means 'from the soil' or something close, but it's applied whe something runs across your property. literally.
trespass - aha you say, you know this one! think again. before it meant "walking on someone else's property", it was much broader, and is occasionally used in that meaning. it originally meant "any wrongful act, or any infringement of the rule of right". the definition of larceny, for example, is "trespassory taking and carrying off of another's personal property with the intent to permanently deprive that person of possession." in that sense, tresspass means "wrongful".
mens rea - ok maybe you have heard this on law and order. it means "the criminal mind". but it really sounds cool, right?
actus reus - goes with mens rea, it means "the criminal act". gotta have both to have a crime.
Burglary - at common law (in the olden days), burglary was defined as only at night. what? the term for burglary during the day was "Hamsoken". My crim law prof likes to tell stories.

that's it for now.

Beat up by the prof, v1.0

It happens to every law student. She or he is called upon to recite a case, or answer a hypothetical question, or answer a direct question, and proceeds to stumble through the answer, enduring a barrage of agressively asked follow up questions from the prof as she or he is slowly reduced to rubble. Oh, sure, he (read: me) was prepared, read the material, made notes on the material, thought he understood the material well. He came to class confident, ready, and even eager to answer any question. He had even thought of some controversial notions about the material (or so he thought).

This happened, though in a rather tame way (in retrospect) to me yesterday in Criminal Law. We had an enormous amount of reading to do for this class, about twice as much as my other classes this week. The reading included 11 cases and 2 articles (more background info as this was the first class). It's clear from the syllabus that the prof is really focused on reading cases, so I read the articles quickly, made a few cursory notes, and moved on to the cases.

He called on me to answer questions regarding one of the articles. This particular article was a philosophical discussion about why we punish criminals in our society. There was some discussion of justice, and he had a few clear principles that he laid out. I made some notes on justice, his four principles, and moved on.

So the prof turns to the white board and writes two words: "Utilitarianism" and "Retributivism". Neither term is discussed explicitly in this article. He then turns to me and the following exchange (paraphrased) results:

Prof: Did you read the Richards article?

Me: Yes

Prof: Good. Tell me about utilitarianism.

Me: Um. [at this point I'm frantically scanning my notes looking for utilitarianism, or anything that might mean utilitarianism. My hands are starting to sweat. did I really read this article? Do I even know what I'm talking about? all I can think is "oh shit", and I proceed to mumble:] well the meting out of justice is meant to serve the needs of everyone, the greater good [I then cringe, as I've just stated the 7th grade definition of utilitarianism].

Prof: Well you've just brought up a standard, pedestrian, use of the term, but what does Richards think of utilitarianism?

Me: Well he thinks that punishment needs to serve both the needs of society as a whole, and the needs of the individual being punished, by protecting his rights [there was a whole section of his article talking about equality in punishment, and that everyone deserves their day in court, blah blah blah, I thought I was on to something.]

Prof: Here, let me help you [he then turns to the board and writes the word "deterrence" on the board].

Me: [OK now I get it and give a decent answer regarding general and speific deterrence, I won't bore you with that here, but I seem to get this part right. don't worry, it gets worse.]

Prof: Good. Now, what about Retributivism?

Me: [clearly nobody in the room gets it either, they're all looking at me with that "better you than me" expression, so I say:] Revenge. Retribution. Punishment serves these purposes.

Prof: [laughs] Yes yes, it makes us feel better, right? think Kant.

Me: I Kant [Oh god I just told the oldest philosophy joke in the book. nobody laughs except the prof, who may have actually found it funny]. I suppose I am not sure what you're looking for here. I saw this article balancing the needs of the individual with the needs of the state. What did I miss?

Prof: I see. what does hammurabi say about punishment?

Me: [here is one I know, miraculously] an eye for an eye, a tooth for a tooth.

Prof: Right. is there anything like that in our legal system today?

Me: Kindof. [now I'm starting to think about one of our cases] we believe that our punishment should fit the crime, though not so literal as hammurabi did.

Prof: yes. now. what does retributive suggest?

Me: I, uh, [I really see nothing in this article about this. I'm trying to answer the prof's question as it relates to the article. I'm completely lost.] I suppose I don't know the answer to that question. I didn't see anything in Richards beyond the balancing ideal.

That's enough I suppose. It went on for a few more minutes, he trying to prod me into the right answer, me not getting it, and finally he let me off the hook and proceeded to explain. Now this exchange was quite tame, especially since I did have a few things to say that he wanted said, but that doesn't change the feeling that it left. I was ready to discuss any case, I understood them all, and in the final assessment my notes pretty much matched his notions as the class went on as far as the cases went. I was taken off my guard being asked about an article I didn't care about. During break more than one student came up to me and said something like "boy I'm glad it wasnt me discussing that article." and I even got a "good job" from one student who apparently admired my courage or something.

welcome to law school, eh?

Some First Week Observations

I'm almost finished with my first week (I still have Criminal Law today), and have a few observations about school so far. . . A little background first.

The school I attend has flexible scheduling. they require a minimum of 6 credits (2 classes) and a max of 15 (5 classes). this is intended to allow people to work, have a life, whatever, and still go to law school. I actually find this quite reasonable, though if you want to finish in the normal 3 years, you have to take at least 12 credits a term. I'm taking 12 credits this term, and am considering increasing my load in the future to speed things up. This school also allows students to 'begin' school during any of the 3 terms (semesters) during the year. All of this has the effect of fragmenting the student body a bit, as everyone is on a slightly different schedule, and may have started at a different time. One thing is constant though - everyone takes Torts and Contracts first (and since we all have to take at least two classes, everyone in my Torts and Contracts class necessarily started the same time I did). this brings me to my point, that the "cadre" which I am part of to start this term consists of 14 people. Nice and small. We've actually gotten to know each other a bit in this first week, and they are going to be part of my observations below.... on we go!

ONE: People who work during school
I can certainly understand the need to work, we all have bills to pay, etc. but so far law school has been a full time job for me. I've spent about 8 hours of preparation time for each 3 hour class. lets see, 4 classes, 11 hours per class, that's a minimum of 44 hours. and that doesn't count the work I've done compiling my notes, updating my outline, etc. after class. It's Thursday, and so far I've "worked" about 45 hours this week, and I still have class tonight, outlining tomorrow, and an intro (no credit) class for two hours on Fridays. I also have work to do this weekend for next week, a study group meeting on Sunday, and so on and so forth. One of my co-students is a police officer taking six credits. He ALSO lives over 3 hours away and COMMUTES! sure, he's taking half of my load, but that's still about 30 hours a week, by my math, outside of class AND commuting! again, i understand the need to work, but to me this degree is too important to jeopardize with the lack of time, lack of sleep, lack of "a life", etc that Must plague those who work. I'm not knocking it, I just don't see how it can be effectively done.

NOW most of my fellow students are taking 6 credits and working. Only 5 of us are taking at least 12 credits (2 are taking 15), and I think only one of that group is working, and if I remember correctly he's doing so on a contract (piecemeal) basis. Still, it would be hard for someone taking even 6 credits to do so while working. My hats are off to them.

TWO: the law is arcane
one of the cases we read for Property was from 1707 in England. It involved duck ponds (ask if interested, it's kindof a funny case). All i have to say on that at this point is those guys who wrote opinions back then were obsessed with latin.

THREE: remember the golden rule
he (usually a he) who has the gold, makes the rules. this is most definitely true of law. Now i must say that, for the most part, our laws are passed with the intent of meting out justice. but sometimes justice flies in the face of "what we want to accomplish" and that's when we start to pull law out of our asses, literally. this was made no more plain than when we read, again in Property, the case Johnson v M'Intosh, another arcane case from 1823 written by our venerable-i-was-a-founder-therefore-i-get-to-make-the-law-as-i-see-fit chief justice John Marshall (best known for Marbury v Madison) . In this case, one of the dudes bought a piece of land in the territory of Illinois from an indian tribe. he even produced testimony from the chiefs proving they had sold him the land. the other dude claimed he owned the land by right of title granted by the king of england in 1773 or something, and proved it by providing evidence of this grant. on a side note, these guys were friends who intended to develop the land together, and "created" this discrepancy to make sure there were no issues of title to the land. nevertheless, the conflict arose and it went to the supreme court. to make a long story short, the guy who had title from england won.

you see, there's this principle in Property law that tends to permeate everything. it's called "first in time" and it basically means just what it sounds like - the first to possess a thing owns it. the problem in this case is obvious. the british were not the first ones on the land in Illinois - the Native Americans were. If we were to hold that rule sacred, then the Natives should have been allowed to "sell" the land to whomever they please. but you see, that would call into question all of the land that we had "claimed" for, well, hundreds of years. OOPS. so Marshall made this wacky distinction in this case. He said that the British (and by extension, after the revolution, the US) owned title to the land, but the Indians had "occupancy rights" because they "were there". this also included the exclusive (!!!) right of the US government to expel the indians whenever they decided that they needed the land; and the exclusive right to sell the land. oh, and why didnt the indians have 'first in time' rights to the land? well there are a couple reasons. first, they're savages (they kill us when we invade them!); second, they're heathens (they're not christians!), and third they don't use the land (they just roam, they don't build things or farm the land, or "improve" it). basically, he rationalized why England had first rights (incidentally, he kinda took the US off the hook for this by blaming the colonial powers here... what a wuss!) to title to the property because England was the first European power to discover the land...

don't we just love made up law that suit our purposes? of course, who today would give up title to thier home to the [insert local native tribe name here] Indians because they were first in time? i didn't think so.

WELL that's it for now. I'll update this weekend after (I am sure) an illuminating Crim and Intro class. Hopefully I can work out a decent study group, I think I'll need it.