potpourri

At last,two weeks of respite. It's been a long time coming, and it will go so fast. I laid in bed til 9 this morning, decadence for me. Perhaps all this free time is detrimental-I can't seem to turn my mind off and just be.

Why are we not satisfied for more than a minute at any given time? Happiness, contentment, fleeting at best. When I am alone, I desire the company of others. When I am with them, I long for a retreat to my solitary place.

I wonder at the madness in the world, perpetrated by humans upon each other. Sometimes it's clearly evil, and at others, the perpetrator is a victim too. Where is the sense of it? How do we then plan? It's folly to think we are immune.

And still we try.

of mice and me

Funny what a mouse can do. Or just a hint of its existence. I don't mind ants, spiders, any number of other things. But any sign of a rodent in my house, and I'm reduced to helplessness and wanting rescue, a condition that only makes me feel bereft and, well, helpless. Which condition I cannot tolerate. Shit.

Ok, so I'm going to the store for mouse traps tomorrow, since I can't seem to find any here. And I will be so pissed off when I actually have to deal with a corpse, or god forbid, a not yet dead mouse in a trap. Irrational, childish, absurd. And yet.

time to pay the piper

You may have gathered that I like studying the law, I like law school, and all that goes with it (except paying tuition). Ah, but today is a different day. It's exam day once again. In a couple of hours, my Con Law mid-term will commence. It is hard to explain the gamut of feelings I have on days like this. Just 10 minutes ago, I was calm, sure and at ease, and now I'm nigh unto panic. Back and forth I go. Trying to remember that I've done what I can, time to just do it. It's hard to describe the way these exams loom so large in our minds. They are the sum total of our grades, nothing else matters. Even so, I don't quite know why they have such capacity to club us over the head. If asked, I would normally say I like exams. That was before law school, of course. I'll like this one too in about 5 hours. I know this is essentially self inflicted.

There are a few things I try to do for my law school exams, to reduce the anxiety, or at least manage it. Each of us has our own formula, or routine, sort of like the baseball player that always wears his lucky socks.

First, I go to work. I work from 6 or 7 am until 12 or so, and it helps keep my mind busy, and calms me. Throughout the afternoon, I review my notes, not to try to memorize anything, but to keep it fresh in my mind. I listen to music on my ipod, I check Facebook, read emails, make phone calls, etc.

About an hour before the exam, when the anxiety starts to peak, I set up my laptop, then walk circuits around the halls of the school, listening to music and just trying to keep my core outline in my head.

When I sit down with the exam, I do two things. Before I open the test and start reading, I write that core outline down on the scratch paper at my table. That way, at some point when I either freak out, or can't think of anything else to discuss, I have something to go back to. The other thing I do is remember that I have done hard things before, and I can do this. I just have to do it. There really isn't an alternative if I want to continue on this path, so this thing just needs done.

Nothing magic about my approach, to be sure. Not exactly life skills, but right now it's about surviving this evening. Everything else is in abeyance.

I don't want to know this

Law school has taken me in some surprising directions. At all times it has stretched, challenged and taught me. I had a class this semester in legal research. The idea was to learn how to use legal databases like Lexis Nexis and WestLaw more effectively, and indeed, I did learn those things. But what a surprise to learn so much more.

I just finished my pathfinder for my research class. Ok, I didn't finish, because these things are never done, but I have stopped working on it. The topic ended up being about the homeless and the current state of the law regarding issues that affect homeless persons.

I know the reasons behind poverty, homelessness and related issues are complicated. I see no easy answers, only more questions. I feel the guilt that you might expect at reading and writing about being wretchedly poor, sleeping on the streets, spending one's whole day figuring out how to get fed, warm and safe; all while sitting in my warm house, with a full cupboard and health insurance. Don't get me wrong, I worry on a regular basis about money-how to pay for law school, hoping my car will last until school is done, and how I'm going to survive. But I have some prior experience of being poor, and the sense to understand the difference in what I worry about now as opposed to what the guy who sleeps across the street in the overgrowth worries about. So many people make Hobson's choices every day in order to survive, and the well-off stand in judgment, cloaked in self-righteousness.

Knowledge is painful, it's responsibility, it is a choice all in itself. Tonight it all feels like too much.

We're in the soup together

I've been feeling particularly unprepared given that our first exam is less than a week away, and while I know it's false comfort, I was heartened to hear from fellow students this evening that they too are feeling completely unprepared. That won't be of any use when we sit down to write exams, but for tonight it helped to tamp down the terror rising in the back of my throat.

Tomorrow I am taking a day off work to study, eat pancakes and practice a Con Law exam or two.

I'm here, but so are my troubles

I went running on Thanksgiving morning, and according to my own little tradition, I was supposed to mull over the things for which I am thankful. Instead I found my mind constantly drawn to worry and anxiety. I hate the thought of wasting my years, my moments on this planet with fretting over things. Sometimes I need to stop and thank the universe for its gifts to me, even in the midst of that anxiousness.

The smell of coffee, the feel of my flannel sheets as I slide into bed at the end of the day, blues on the radio, the sun on my skin, the way a face lights up in recognition and pleasure in seeing a friend, these are all things for which I am thankful.

My chickens and the eggs they give, worms, my motorcycle. And learning, about the law, and about ourselves.

Meanwhile, exams loom, and papers need written, and life carries on.

the hierarchy of insects

I pondered today my duty to fellow living beings. This conversation with myself started with two ants who visited me in the shower. I used to share my daily shower with a spider, who scuttled away at the first sign of my presence, and I never minded that. For some reason, I view ants differently. Perhaps I need more to think about, but this prompted consideration of how we determine who, or what, has merit. What can be squashed 'like a bug' with impunity, and when does the act of destruction become worthy of disapprobation? Snails can be crushed, but butterflies should not be.

Taking a pen from work is not stealing, but taking money from a co-worker's purse is larceny. Gossiping about the woman with the short skirt and low cut blouse is permissible, normal, but lying on a job application is not.

There is a continuum of behavior; one end of which is clearly immoral, wrong and despised, the other end of which is morality to the point of absurdity. To further complicate matters, the point of harmony for me varies with the subject matter, sometimes with the facts of the situation. Picture a number of strings laid parallel end to end. Maybe this is how music is made-a guitar chord made up of various points on the strings of the guitar. When done well, the result is melodious and integrated, even beautiful. Poorly played, it becomes a cacophony of noise.

So what happens to the ants?

to whom shall I give?

Charitable vs. benevolent

Who knew that benevolence might not be charitable? Your charitable trust must do more than effect benevolence, it must accomplish a purpose that is beneficial to the public. Purposes that are allowed include relief of poverty, advancement of education, advancement of religion, promotion of health, governmental or municipal purposes, or other purposes for benefit to the community.

Fortunately, I shall never have to worry about whether my charitable trust complies with IRS Code Section 664, 2055 or 2522. I am my own charity, and any remainder, should there be any, will pass to my issue. Meanwhile I have so far been successful in avoiding bothersome accumulation of wealth. Law school is one of the many devices by which I am able to save the cost of setting up a trust that benefits others. Ah... so I shall have to seek out ways to be benevolent instead, as I think that is required of all citizens of the world.

head in the sand or just dressed in camo?

The things we don't acknowledge to even our closest compatriots, are they things of which we are not aware ourselves, or do we withhold them in self defense? Once spoken, they cannot be returned to the vault, and some things are either too precious, or too likely to inspire revulsion or mockery to take the chance.

But who are we kidding anyway? I am like you, and you are like me. The things I carry are not so different from those that you hold in your heart. Still, I cannot.

the how-to manual

For my final in Advanced Legal Research, I am to create a Pathfinder. It is an "organized body of material which identifies key resources and provides guidance in researching a particular question or discipline."

Hmmm...trying to decide between something I can use at work, such as a comparative analysis of the laws regarding priority and mechanics liens in relation to a lender's deed of trust in Washington, Oregon or California; or something that feels more meaningful, such as about the rights of a homeless encampment.

What I really want is a Pathfinder for life. Imagine it, an encyclopedic index of resources, with guidance for how to negotiate any number of life altering decisions. No, that is not what the Bible is, at least not to me. To accept that is, for me, abdication, taking the easy way. Besides, even when I know what the best next step is, I am just as likely to ignore that nudge, and go blithely down the path to destruction and pain.

Perhaps just a Pathfinder for how to treat my fellow humans would do.

these things I declare

Sometimes we as humans, and specifically as Americans, do something so base, so wrong, so inherently productive of evil, that it defies comprehension.

How the hell could the Supreme Court, in Dred Scott v. Sandford, find support in the Constitution, for slavery? I know, I know, there was the Article IV, Section 2[3]. A deal with the devil is a deal with the devil. "Strange fruit" is more than a label, it is a scourge, a scar on the face of our past.

I'm becoming a fan of at least some part of the concept of natural law, perhaps because my understanding of it has changed during the past year or so.

I do have, you do have, certain inalienable rights. Not just as Americans, but as a human being. I declare independence, freedom from enslavement, from denial of the right of suffrage, of the right to choose how I live, if I worship a god, if and whom I marry, the right to pursue an education, a livelihood and a home of my choosing. I am determined that I have a right to be free in my person. My right to due process requires notice and a right to be heard before deprivation of my life, liberty or property. I am entitled to the equal protection of the laws, regardless of my gender, race, marital status or any other artificial or physical trait.

The source of these rights is in my humanity, in the natural order of things.

the time is ripe

I think it's time. Finally. I am going to read Roe v. Wade. You may be asking why it has taken me so long to get to this point, but I did not feel that I would be able to really comprehend the case, both from a historical perspective, and being able to analyze the legal reasoning.

There are a few seminal cases that have had material impact on our society, and on individual lives across a great spectrum. This is one of them.

sacrifice with no pay out

One more gone. Actually two. This late in the game, it's not only surprising but it seems so much more harsh. To have put in over two years of this, giving up so much to be part of this law school experience, and to have it come to naught-that would be difficult to come to terms with. It's not even so much about the money, although that in itself is painful enough. It is more about the self that we have invested. We have to some degree surrendered ourselves up to this process wherein we are molded, stretched, tormented and re-formed. It is not without cost, particularly to relationships outside of the law environment. To find myself unable to complete the journey at this point would, I think, fill me with rage, dismay, feelings of failure, dark, dark things.

Sticks and stones

Some topics just must be borne as we move through law school, but Due Process is not one of those. It is to hearsay as warm, complex persimmon pudding is to dry toast. Ok, I know that's a pretty lame analogy, but it's autumn, and persimmon pudding is just around the corner.

A couple of note cases caught my eye. In Wisconsin v. Constantineau (400 U.S. 433), the Court held that a person's reputation or integrity was a property interest covered by the 14th Amendment's requirement of due process. Therefore a state cannot, as it did here, post a notice in retail liquor outlets forbidding the sale or gift of liquor to a particular person for a year, without notice or the right to be heard.

Then five years later, in Paul v. Davis (424 U.S. 693), the Court found that a flyer circulated by police that a person was an active shoplifter was not an infringement of that same right. The person had not been convicted of shoplifting. The remedy was to be found in a civil case for defamation. While that makes sense, it is difficult to reconcile the two cases.

In Paul, the party's good name was not protected by his right to due process, but in Constantineau, it was. Brennan dissented in Paul, fearing that this meant that official stigmatization would never be subject to due process concerns.

Remember that rhyme we flung at each other as children when at last we could come up with no insults or retorts to match our opponents? "Sticks and stones may break my bones, but words will never hurt me." Oh, so not true, as we all found out in the process of losing our childhood innocence.

What is said about a person when they are not in the room becomes in large part how they are viewed by their society as a whole. Those words not only define who they are for others but make the difference in whether they are invited to participate in social, political, educational and employment opportunities. And each of those either opens the door to, or closes off the option of yet more of these. We, I, am so free with words, sometimes for self-aggrandizing purposes, or even out of nervousness, or to fill a space. Yet those words can have sticking power, with not even notice to the person affected, nor any opportunity to refute or amend their impact.

What matters to you is not what matters to me

My professor likes to pontificate. He also feels free to share political views, satirize and mock various politicians, the behavior of ordinary citizens, and all else. Nothing and no one is sacred, which is not really a problem in and of itself.

Tonight we heard about the lack of street lights in the city, who is running for city council, wind powered bicycles, banks, insurance companies, and more.

Yet the topics tonight include the takings clause, impairment of contracts, bills of attainder and ex post facto laws. Oh, and the Second Amendment. That's all.

I'm grinding my teeth back here in the second to last row.

The Father, Son and the Holy Ghost

I had an interesting conversation with the woman who does my hair today. Often I go to my appointments with her straight from work, and I'm wrung out, and really only want silence. But I've known her for years, we know each other's lives, and silence is not an option.

Going on Saturday morning was a different experience, mostly because I was in a different place in my head. Elsa and I have talked about religion, God, churches and similar things before, but it's not a common conversation topic. So today when we got on that subject, I was telling her about feeling conflicted-does a higher power exist? How can it not, given all the awareness that we have of ourselves as spiritual beings? And for me, most convincing of all, is this innate need to do the right thing-where does this come from if not a spiritual presence? Then again, this idea of the holy trinity (where the fuck are the women??), the list of banned behaviors, heaven and hell, so much of it is just clearly absurd, or at best something that functions as a comfort, much like boundaries for children make them feel secure.

Hard to reconcile logic and belief, reason and intent. I can see why religion calls for faith, I just can't suspend reason to get there.

swimming up from the deep

Well, it's been a while. Where have I been? Lost in the land of disillusionment, just a little?

Habeas corpus, revocable trusts and boolean searches

Lawful enemy combatants and the dormant commerce clause

Where, oh where is my delight?

which privileges are worth protecting?

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (U.S. Constitution, Article IV, Section 2)

The Court has used this clause to find that a state cannot economically disadvantage or discriminate against an out of state individual. This applies only to fundamental rights such as the right to work.

However, the plain meaning of the Clause calls this into question for me. Nowhere in the clause, nor in the context in which it is found, speaks to limiting it to economic protections only.

Why does not this apply to such things as the right to marry? Given the bare terms of this clause, how could DOMA be found constitutional? The right to travel would appear to also be protected.

Adding the Privileges/Immunities clause found in the XIV Amendment, I do not see a limitation only to economic impairment claims.

Looking sideways

I think Emily Dickinson had it right:

"Tell all the truth but tell it slant...

The truth must dazzle gradually
Or every man be blind."

I think we mostly are blind. Seeing clearly is much too painful, or just too much. Who we are, and what we get from our interactions with our fellow humans-hard to sort out the selfish from the honest, the real from the form, unless we slow down, breathe, and find the means to look at it straight on. And what good comes of that?

jumping back in

Another semester looms, and I'm wondering where the magic feeling is hiding. Right now it's hard to think of jumping back in. Perhaps this is why having 3 weeks off is a bad idea.

I got so, so sick at the end of the summer semester, good thing I had no exams. Still, I botched my paper for my LGBT Law class, too sick to finish it properly. I tried, sitting in the law library, typing and feeling oh so bad. Finally I gave up, printed it out, turned it in and went home to bed. Not what I wanted to do with that paper. I learned a lot, about the law and about marriage, strangely enough.

The process of researching that paper made it clear to me that there are a lot of people out there that value marriage highly. I guess I'd thought that all, or almost all, were cynics like me, at least by the time they were 40 years old. Not true, it turns out. Many enjoy the companionship and partnership that marriage is for them, and even if it isn't what they thought it would be, they have come to terms with what it is. I didn't know. Yet again, assumptions that took me off the mark. I wonder what it would be like to learn life lessons a little earlier in terms of years? Why does it take me until middle age to get some things that would have been extremely handy to know when I was 25?

Based on the syllabus, looks like a lot of reading this year for Con Law and Wills/Trusts. Perhaps the trick is that many don't read anymore by the 3rd year.

The avoidance of unpleasant reality

I've been pretending I have time for a life this summer, and now it's time to face the music. Trial practice culminates in a mock trial in less than 2 weeks, and a paper due in 3 weeks or so. Hard to take it all seriously because it's summer! Time enough to get serious when fall semester commences, but I know I have some business to take care of first. And sweetest of all, a week off from work and school in between.

Tonight is melancholy and quiet-tomorrow I shall be serious and work diligently.

On writing and living

The busyness of life gets in the way, and yet all these words march unceasingly through my head. Some are lost forever when I do not write them down. But what vanity is it to feel that it is a loss anyway?

I wonder why I need to write, even without an audience. I know I don't write well, but still I find it fills some well inside me, provides satisfaction.

To travel, to write, and to do the law. These things I do, and take great satisfaction in them. In the end, I guess that is the thing that makes doing them worthwhile.

As much as I like to write, I even more enjoy reading the writing of another if it seems well written. I've been reading Freya Stark's works lately, along with my law books and various other things. I am drawn to strong, unconventional people, women in particular, who unapologetically take life in both hands and squeeze all the juice out of it, and do so without stopping at the appropriate gender behavior line.

Stark traveled and wrote in the middle East in the early 1900's. She went about as a single woman when convention and society said she mustn't. "To awaken quite alone in a strange town is one of the pleasantest sensations in the world. You are surrounded by adventure. You have no idea of what is in store for you, but you will, if you are wise and know the art of travel, let yourself go on the stream of the unknown and accept whatever comes in the spirit in which the gods may offer it." Baghdad Sketches, by Freya Stark

This seems like not just a wise way to travel, but a fine approach to life itself. Go forth, and taste and see and smell and talk and listen.

equal protection

What should equal protection of the law encompass? Until fairly recently, there has not been any cognizable claim for a transgender person, or a gay man or lesbian, to claim any sort of equal rights or protection against discrimination. This has changed somewhat, but for the LGBT community, some of the bundle of rights that most of us assume as our birthright are simply lacking. Under Title VII, employers of 15 or more persons are prohibited from employment discrimination based on race, color, national origin, religion or sex.

Words mean different things to different people. Context, history, education, experience and so many other factors are determinative of how I understand what you are saying. So what does it mean when the law says that discrimination on the basis of sex is prohibited?

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may very greatly in color and content according to the circumstances and the time in which it is used" Justice Holmes

The Court has, over time, further defined what 'sex' meant in Title VII. They have said that it includes sexual harassment (Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)), which can be quid pro quo- explicit or implicit coercion of sexual acts, or a hostile environment-where things are so bad that the 'reasonable person' under the circumstances would quit. Gender stereotyping may be actionable if it has discriminatory impact.

Title VII has largely been held inapplicable to discrimination/sexual harassment suits brought by transgender persons claiming they were treated differently based on their sexual identity.

Based on a close reading of Title VII, and the apparent legislative intent, I too find it hard to locate the basis for a colorable federal claim for a person discriminated against in their employment based on their sexual identity or their sexual orientation. And that is the part that concerns me. I understand that the courts, even if they are activist in their leanings, must apply the law as they find it. Here, Title VII has limited application. I know it was enacted to address a then-current social problem. We humans have been co-existing on this planet for a long time, but we seem to be destined to repeat our mistakes. Today, in a country where equal protection of the law is a basic tenet, a person has no federal claim if they are fired or mistreated because they are gay, or transgendered, or simply do not fit the societal norms for their biological gender (21 states have some statutory protections in place).

How does a person's sexual identity impact their employability?

say 'mother may I' three times

Inspiration comes in many forms. Attending this year's law school graduation is one. I see those graduates, and as I inch closer each year, it still seems unfathomable that I could be there too. I'm not a fatalist, but the thought of actually achieving this goal often seems unlikely. Perhaps it's because so many have fallen away so far. We have lost more than half of those who began with us, many for reasons unrelated to grades. Money, family, unwillingness to give up so much else for years, the list is long. So who am I to think I will be one of the few who stay the course, who can keep her job so the bills can be paid, whose health and other major life events will not trip her up? I cross my fingers, throw salt over my left shoulder, do the hokey-pokey and any other manner of thing. I want this. And that may be tempting fate, if there is such a thing. I'm hedging all bets, and remembering not to get ahead of myself. Better to just think about today, this week, this class.

on going solo

"Though I liked the companionship and it had considerably lessened the anxiety of our wait..., it nevertheless deprived me of the greatest thrill the sense of discovery had given me on previous journeys. I had lost the intense joy, the intoxication, of blazing my own trail and the proud sense of being able to get through it alone..."

Ella Maillart, on traveling with a companion

Life is a tradeoff, it seems. To find that glorious sense of discovery, that intoxication, one must needs be alone. And then there is no one ever to share the intensity of that intoxication. Still, it is the solitary path whose siren song I cannot ignore.

in consideration of marriage

It started as a mental exercise in figuring out if there was some reason why certain people should be proscribed from marrying. If so, why? If not, why the opposition to allowing other than a man and woman to marry?

And that led to a consideration of what marriage really is-not to a cynic like me, but to those who want to be married and who may find satisfaction in such a relationship.

From there the question of whether this is a civil, religious or other kind of relationship, and what is the government's legitimate interest in regulating marriage?

Ah, but the path continues to fork and multiply, and I am hopelessly lost. I have a 12-15 page paper to write for my LGBT class, and I've chosen to write about whether it is a violation of our constitutional equal protection rights to allow some to marry, and not others. And even further down that path, why do we give married couples the privileges they are afforded? Tax benefits, wrongful death actions, property rights and more.

All to be explored, but I don't think I can fit all of this in 12 pages double spaced.

awe and the awesomeness of daily life

Is it sustainable? I doubt it. Like gratitude, it slips away when we take our eyes off it for just the smallest sliver of time. And yet, there is so much to be in awe of.

It's the little things-a nod of recognition, the way the sun hits my skin, a conversation that satisfies. These grease the skids of everyday life in ways that big, momentous events cannot.

I try to fill my cup up every day. Often I overfill it, and messes ensue. Grand, glorious gut-wrenching chaos. But I am alive.

suspension in mid-air

Sometimes I get a sense that we are holding reality in abeyance as we attend law school. Or perhaps attending is not the right verb. It's such an intense, all-consuming endeavor, and attending feels a bit too passive to describe it. Still, I wonder about the loss when we are finally done. This community of people also traveling this path, the sacrifice required that others don't quite get, and the shared trauma of the hard work, then waiting for grades, seeing some that we feel a strong connection to fall away...all tends to create an isolated, insulated experience that naturally incline us toward each other. Some people I might never have associated with absent this shared endeavor, but here we are.

I know we can't stay in this state forever, nor do I desire that. But I doubt the landing will be as good as the ride, and it will ever after be a memory.

time to exhale

Second year has come and gone. While it was in process, it seemed like a long dark tunnel, hard work every step of the way. We've emerged into the light at the end, some of us anyway. More have fallen by the way, impossible as it seems.

My summer classes are LGBT (Sexuality and the Law), Trial Practice and Small Claims Clinic.

The LGBT class looks at areas such as transgender and gay/lesbian issues in the realm of employment law, Title VII, §1938 actions, right to marry, parental and other family law issues, etc. So far the most striking element has been a close look at the legal issues that transgender persons deal with. This is a small class of 10 students, and is almost entirely discussion based. No exam, but some papers to write.

The Trial Practice class is fantastic. Taught by two successful litigators, we are working through various components of a jury trial, class is in the courtroom, and we will complete the class with a mock trial. Engaging, exhilarating and packed with useful information.

The Small Claims clinic will involve assisting people who want to either file a claim or have had one filed against them-with the forms, the process and some discussion of the likelihood that their claim/defense has legal merit. It's supposed to be a churn and burn, 5 minutes or so to a client. Not sure about this one but I need the experience, so here I go.

Meanwhile I even have time to live a little. I've been reading other things, gardening, and spending time with friends. The respite is welcome.

morals and law revisited

response paper written for my LGBT class

Freedom to be who I am, without apology, without being labeled-my defiant claim of right does not make it so.
Llewellyn says that there are two camps on rights: the idealists; and the cynics, or realists. The idealist sees rights as things. Primary rights are something such as my right to have you perform on your contract with me. They are not real in themselves, but are the substance of the law. Enforceability of that right is another, separate thing, and is not the primary thing. The right is, but the inability of the law to fully enforce it is not a problem. Remedies inadequate-these are not a conflict, because you still have your rights. This seems like cold comfort to the person who has been wronged.
The cynic/realist, on the other hand, sees rights as that which is enforceable, for which there is real remedy: if no remedy, no right. As he puts it "defect of remedy is defect of right." The law can really only be seen as it has effect, as it leaves its mark.
The power to be who we are is so fundamental it almost seems redundant to express it. While I would suggest that most of us feel constrained in some way by societal expectations, such core expressions as our gender identity, and our sexual identity are presumed rights for most Americans. These concepts of self have a profound impact on our daily lives, on almost every component of life. When that basic ability is withheld, it is not surprising that the damage includes a high rate of suicide and depression. Loss of control, of the right to choose, strips me of my value as a person, makes me insignificant in the larger whole. Worse, for the transgender person, it often makes them a freak, a deviant in the eyes of society. What then does the law do to ameliorate this situation?
H.L.A. Hart asks the question, "Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?” In the context of sexual identity and expression, when the majority of our society finds certain conduct immoral, does that justify laws proscribing such conduct? Is law the enforcement of morality, or are law and morals distinct and overlapping concepts?
I concur with John Stuart Mill when he said "The only purpose for which power can rightfully be exercised over any member of a civilised (sic) community against his will is to prevent harm to others." (On Liberty) He went on to clarify that one can not be made to do or forbear from doing something just because it is for his/her own physical or moral good.
Society, of course, can find its own ways to exert pressure, but when the law becomes a tool to secure conformity, then society is the loser as well as the individuals who are impacted. Hart says that to use coercion to maintain the moral status quo at any point in a society's history would be to artificially arrest the process that gives social institutions their value. I know so little about the law at this point, but it seems to me that a law such as the Federal Defense of Marriage Act is an example of just that kind of coercion. I don't suggest that a society devoid of morals would be beneficial. I just want the right to flout those morals if they are not mine.
To me these are all variations on the same theme. Freedom to choose,
within the limits of not causing harm to others, is my right. It is also then my responsibility what consequences come of those choices. Law is key to an orderly, fruitful society and essential to quality of life for the members of the community who live under the law. A common sense of morals may be an important part of society (a whole other topic). But let us not mask moral certainty and judgment as law. They are not the same.

what's real and what's imaginary

This has nothing to do with law school, but then I often veer off the path on this blog. In my neighborhood is a local dive bar which I wil call the Zoo. Not because it’s like a zoo, but because that is its name.

Vince owns the place, and he can often be found there behind the bar, entertaining, drinking and yukking it up with the usuals. There is a great sense of neighborliness to be found. Most know each other, and most are regulars.

Last night, Kathy was the bartender. She is 47 years old, but did not look it. She’s trying to quit smoking, been smoking since she was 14, and had had only 5 or so this week. Since she works Thursday and Sunday nights, and Friday and Saturday days, I’m guessing it’s easier to keep from smoking when you aren’t tending bar. When she took a box of empties out, she just vaulted the bar, rather than go the long way around.

Someone had a birthday, and another patron had made a cheesecake for him that melted in my mouth. Everyone at the bar got a piece.

It's the kind of place that should be the setting for a weekly TV series, but that most people wouldn't go to in real life. It's just a little too real, I think. And maybe a bit grimy.

I am attracted to this kind of place specifically because the veneer is either worn off or nearly so. They are not the pretty people, although some still think so after a drink or two.

The drinks are strong, and cheap, and for those who find their solace in a bottle, it's a womb of sorts, and quite possibly the path to something less than good. Still, it's a place where pretence is wasted and you can walk in as you are. It seems that often we have to hit bottom before we no longer feel the need to put on airs and judge our neighbor.

the wheels have come off the wagon

I'm sure there's some rule about not posting when you are feeling low, but I don't know that rule. And besides, it seems like the best time to violate the rule.

Tonight I can't imagine why I've embarked on this law journey at this stage of my life. What the fuck was I thinking? Had our first class of Trial Practice, which promises to be fascinating, intimidating and a real stretch. And I'm ready tonight to give it up. What can I really expect to accomplish in my legal career with such a late start? Vanity, vanity, all is vanity.

the cracks in the sidewalk

The end of a week away from work and school, time to get back on the merry-go-round. I'm not quite ready but of course that doesn't matter.

I saw shifts in some relationships more clearly this week, I wonder if it was because I was free of the usual daily focii, with less to cloud my vision? Some of the changes were a little painful and sad. And I don't know if it's that I can't fix them, or if it is that I'm unwilling to do the hard work involved? Or somewhere in between, perhaps. And what does this say about me? Did I learn to walk away too readily or is it part of who I am? Nature vs nurture.

That writing contest is looking a bit unlikely at this point. So much time would need to be invested, and where will I come up with it? More to the point, what is there that I'd want to give up to make this happen? It might be time to let this one go.

Summer classes start tomorrow, and mostly they will be with students who are not in my class. This may be good, but I will miss the comfortable knowledge of each other, and the ease that goes with that.

Yet another peel of the onion...

ketchup or catsup?

I took this week off between spring finals and the commencement of summer classes as vacation from work. I am so far behind on everything else in life, I decided to stay home and get my life back in order.

It turns out it's veeerrryy hard to cut knee high grass with a lawn mower. But it can be done, I can attest to it. Snail heaven in there! I tried giving the snails to the chickens but they don't seem to know what to do with them, so I'm back to squashing them. I go out of my way not to kill things normally, but for snails I make an exception.

Now that I've earned some fun, I'm going to finish the Paul Theroux book I'm reading, and plan this year's garden. The rest of the chores will wait one more day.

today and tomorrow

Second year is officially a closed chapter. All that remains is to see the results. But it will be about 5 weeks before we get the grades, so moving right along...

I think we were all feeling such a huge sense of accomplishment last night. Each of us has worked hard this year to survive all that school and life has challenged us with, and last night was all about celebration. And a little about tequila. But mostly celebrating with friends who can really understand what this has cost us, because they too have paid the price.

Tomorrow there are chores, bills to pay, reading to do for summer classes. Today is a day of thanksgiving and celebration.

They keep moving the finish line

The last part of the race is the hardest mentally, and I'm feeling that same lethargy now. Only tonight and tomorrow to study, for the final on Thursday. And it's hard tonight.

Doesn't help that I started my day at 4:15 this morning, worked from 6-5, with an hour off to go to the doctor. I know that this is not the time to start whining, just keep putting one foot in front of the other. But of course I'm whining anyway. Still moving though.

good fences make good neighbors

Easements, restrictive covenants and equitable servitudes swim in my brain today. I'm fine with each one independently but there seems to be significant overlap between them all. One could say that an easement is the right of nonpossessory use of the land of another-until you get to negative easements. A negative easement looks an awful lot like a restrictive covenant.

And a restrictive covenant and equitable servitude seem to have only privity and possibly the form of remedy as their distinctions. If I make an agreement to maintain and repair a bridge that provides access to our properties, it is a covenant which burdens my land and benefits yours. We have privity at inception so there is horizontal privity. If I convey my land, but not the same estate, then the subsequent owner is not in vertical privity. So are they not required to maintain the bridge? But if this is an equitable servitude, privity is not required. However, equitable servitudes are generally negative-an agreement not to do something.

What is the difference between an easement implied by plat vs implied reciprocal negative easement (technically an equitable servitude?)

I can promise to cut your grass (covenant). I can agree to let you pick the fruit from my orchard (profit). We may agree together not to allow mobile homes on our properties (equitable servitude). You may give me deeded access to the lake which your property abuts but mine does not (easement). I may say that as long as we are neighbors, I am fine with you using the badminton court when your kids come home (license). You may agree not to plant trees on the side of the property so that I don't lose the morning sun (negative easement or restrictive covenant).

If you own a large parcel of land and subdivide it, but reserve for yourself an easement over the lot you sell to me, that is an express easement by reservation. If instead I have the landlocked parcel and you grant me an easement for access that is an express easement by grant. If you do not grant me an easement but the prior occupant of my lot used a road through your land, and there is no other legal access to my property, I may be able to obtain an easement by necessity. Or if that driveway has been in use, and the other way out is not reasonably usable, I may be able to get an easement by implication by prior use. In that case, the easement is permanent, whereas the easement by necessity would only exist as long as I do not have other access. The difference is between strict necessity and reasonable necessity.

There are many ways to say I will, or I will not. And even if unsaid, your actions may imply such an agreement. Being neighborly may cost you.

the striving

Who is rich, he who is satisfied with his lot.

The Talmud. Taken from a post and comments at: http://www.fastcoexist.com/1679633/the-world-happiness-report-explains-what-makes-people-happy#comments

What does it mean to be happy? And is this a worthy goal? I say I do not seek happiness. I view it as such a fleeting feeling, effectively unattainable more often than not. Am I just kidding myself or playing a semantics game?

Yoda quote: You will find only what you bring in.

What we strive for either does not exist or it is inside us all along.

unmoored

Sitting here high above the river, whiling away the afternoon studying civil procedure, and feeling contemplative and peaceful. One of the benefits of middle age is that I recognize both the beauty of this moment and its fleeting nature. Here this moment, gone very soon. So I'm grateful for this moment.

At times like this I wish I could capture somehow this feeling so that I can bring it back when life presses in hard. But alas, my humanity gets in the way and I forget, or at least forget to remember. Still, right now I can see forever, and all is well. That water rushing over the dam has no thought for from whence it came and where it goes. It just goes. I am incapable of such mindlessness nearly always, save rare occasions.

It's one of the things I find enticing about foreign travel. I am suddenly sitting in a place I've never been, where no one knows me, no one knows where I am, and the noise and language surrounding me are foreign to me. Then, just for a bit, I can slip the skin of self awareness and constant interpretation of the goings on around me. I can float, and let go.

inching forward

Well, you knew that euphoria wasn't going to last, didn't you? Still, managing to hang onto calm, just barely. I'm in the exam room, all set up. Going to go hide out in the place I go to be alone here at school, and listen to some music. Either I know it or I don't, and cramming now will just confuse me. Onward ho!

the world is my oyster

The eve of the first final for second year, and I wake up feeling like a kid on Christmas morning-where in the world does this come from? I have always enjoyed test situations, but in law school they have a different aspect of stress and an overwhelming incapacity to be prepared. So why this now? I am more prepared than I expected to be, but that doesn't quite explain it either. Nevertheless, I'm going to ride this wave of confidence and-amazingly-joy-for as long as it lasts. Off to work for 6 hours or so, hoping to leave around noon, and then I'm spending a short time on some mundane errands. After that, perhaps a short nap and immersion in all things Evidence. Let the games begin. Tomorrow will bring its own ills, today I will wallow in this good thing.

sandpaper

It's a little like a rock in my shoe when I'm running, or underwear that won't stay put. Or maybe the sunlight that glints off the neighbor's hood and reflects right into my eyes. And I know that tomorrow this will seem trivial, and so I'm going to just breathe today. Tomorrow the rock will be gone, or I'll take action to remove it.

second year exams

This week's classes were all spent reviewing and preparing us for the exams, which commence in two days time. I suppose this is typical, but at this point in the year, the professors have spent quite a bit of time with us, and having suffered through law school themselves, seem to take a little pity on us. They don't ease up on the exam, nor the grading. But they do seem to feel an urge to help us prepare for the battle. All urge us to read old exams, each talks about what approach they want to see, and all of them answered questions put to them on various topics from the course. I may be wrong, but I think this is the biggest exam season we'll see until it's time to sit the bar. First year felt big, but had less content that we were expected to have mastered. And everyone tells us that after this year, things change materially. Less substantive law classes for sure, somewhat less work, and perhaps more time to follow the rabbit trails. I look forward to that, but first I must earn my way in-by surviving the next two weeks.

can you see the face of Mary in that rock?

I struggled with the distinction between a Thayer presumption and a Morgan presumption for some time-not actively, mind you. Just when it came up. And now that the Evidence final is a week away, it seemed like a good time to clear up my confusion. It's interesting where these moments of clarity can strike. I was sitting in the taco shop, looking at the different presumptions that California has codified in each category and I decided to work through some from each group to try to see what was different. Well, hells bells, there it was, so simple all along! A Thayer presumption requires that the opposing party offer some evidence that rebuts the presumption. Once rebutted, the presumption disappears, like it never existed, and the jury is never even told of its prior existence. A Morgan presumption, on the other hand, is a bit tougher to get rid of. It requires proof, not just evidence. One must prove, by a preponderance of the evidence, that the presumption is rebutted with countering facts. Even then, it is for the jury to decide which facts are the most likely to be true; they are instructed to find for the party favored by the presumption unless by a POE the rebutting facts are shown. I'd read those same words at least a dozen times. I don't know why I never saw the face in the rock before this time.

it's irrelevant

It's a funny thing, the things that trip you up. For some reason, the concept of relevance gets me hung up. I keep trying to fit it to the non-law use of the word, and that just doesn't fit. What's relevant to my everyday life is not the same question as whether an item of evidence, or testimony, is relevant. Having a tendency to prove or disprove a disputed fact that is of consequence to the matter being tried. It must be probative and material. The questions are close, on the surface. An example may help: when considering proffered testimony on a matter that has been properly stipulated to by the parties, then the testimony, while it may bear directly on the matter at hand, is legally irrelevant, because it is not a disputed fact.

brought low

Some lessons are more painful, more costly than others. This week I learned yet another costly lesson in humility. I fear it has cost me too much-so why was it so hard to learn, I wonder? This law school journey has uncounted, surprising implications in my life. I'd read of such impact in the lives of others who undertook law school. But they were mostly 25, and full time students. Not yet fully formed, susceptible to all manner of suggestion and pressure. Well. It turns out that at 52, some of the same things can happen. And I am not so very proud of how I've handled it. I owe my class in general, and some people specifically, an apology. Unfortunately, I do not think I'll get that soul cleansing opportunity. Rather, I will have to dig my way out, day by day. I don't like who I have become this year.

the deluge

I was about 1 mile into a 5 mile run this morning, when the skies opened up and I got wetter than I've gotten since I was a child, when playing in the rain was a delight. Too stubborn to turn around, and besides, I was already soaked anyway. Sort of like this law school exam route I'm traversing-harder, and more to learn than I knew at the start. But I can't quit, nor do I even want to. I took a couple of vacation days this week to study and it gives me a small glimpse into the life of a full time student. Imagine having time to do more than the minimum, to actually absorb each topic as we move through it! I am envious. And perhaps feeling just a little self pity. Still, there is no one else to pay my mortgage and put gas in my car, so I'll keep bifurcating my life, with the hope of doing both well, or at least good enough.

best and good enough

In The Verdict, the defendant's lawyer uses the best evidence rule to get a photocopy (xerox copy in those days) disallowed, and in fact, the entire testimony of a surprise rebuttal witness is thrown out. The jury is instructed to disregard her damning testimony but instead they bring justice when they return to the courtroom. Even the crusty and somewhat slimy judge is won over in the course of the trial. If only life were like the movies, where good overcomes evil in the end, lives are reclaimed and there is not only due process, but justice too. And now I have to write a one page paper about the best evidence rule, in order to get one extra point on my Evidence grade. The interesting thing is that I think just about the entire class is taking advantage of this one extra point. Each point is priceless, in one way or another. What I really want to write about is Beethoven's Emperor Concerto, and humanity, and how each day someone wins a piece of that which is good for themselves. Sometimes it is lost, in fact whole chunks of it are lost. But there is a day, a time, when one can see the balance, and it is good enough.

heave and yaw

Water bottle, laptop, books and papers strewn about. Rainy day at the law library, to study for exams. I want to mumble to myself, but feel constrained by the presence of others here. There is a walk way on the other side of a row of bookshelves where I can pace back and forth, memorizing, reciting and just moving. Also working on writing out some core concepts so that I have a way to string my thoughts together. And then I need to practice outlining a few exam questions. Tomorrow I switch to Evidence, which is by far my worst subject this year. I alternate between feeling I am making progress and feeling terror at what I still do not have mastered. Sort of like a boat caught in a storm, at one moment in control and the next completely at the mercy of chance.

What you don't know will hurt you

I just keep running into things I don't know, and feel a bit surprised to arrive at this point so unprepared. Chagrined and humbled, and feeling like an idiot. All good ways to start the week.

on the menu

Substantive due process, equal protection and free speech as it relates to zoning, governmental takings and yard signs. Marital communications privilege, character evidence and hearsay. Res judicata, Rule 50 and the Erie Doctrine. Is it a soup or a stew?

what I want

One of the things I have liked the most about law school is the opportunity to discuss concepts and theory, jurisprudence and the impact of the law on the lives of fellow human beings. We are in danger though, of finding no time for such heady endeavors, as each of us puts our efforts into survival. But survival alone is an empty victory. I want more. There will NOT be time later for this. Now is the time to discuss the theory of law. Once graduated, we will of necessity focus on the Bar, and then we'll be headlong into the new adventures occasioned by our J.D. and passing the Bar, with no time to look back and savor the wonders we set aside in an earlier time. We must grasp life today, experience it now. There is no tomorrow.

this land is my land

Kelo v City of New London (545 U.S. 469 2005) Does the U.S. Constitution's Takings Clause prohibit the taking/ condemnation of privately held land for economic development purposes? Specifically, the clause states "...nor shall private property be taken for public use, without just compensation." Keeping in mind that our federal constitution provides for enumerated powers rather than plenary, does this mean that the only way, under a due process evaluation, that property can be taken is for public USE? And does public PURPOSE mean the same thing? This case, and a couple before it, seem to indicate that a majority of the Court finds 'use' and 'purpose' equivalent, or more precisely, that the intent behind the words was 'purpose'. A lot ends up riding on that interpretation. In Berman v Parker ( 348 U.S. 26 1954), the Court found that the blighted condition of a neighborhood in DC justified the public benefit/purpose of razing the entire area and starting afresh. A business owner whose property was not blighted sued, and lost. The Court found that the Legislature has the power to enact legislation that provides for public benefit, and that they do not need to look at specific, individual impact, but at the impact of the action as a whole. In Hawaii Housing Authority v Midkiff (467 U.S. 229 1984), the Supreme Court held constitutional the taking of large amounts of land owned by a very few individuals and selling to the current occupants (some 70+% of Oahu was owned by a very few very wealthy individuals, whose stranglehold had significantly impacted the ability to buy a house), even though the taking was not for public ownership, but for private. So the Court finds that a public purpose is the determinant as to whether a taking is constitutional. There were two dissents captured in our case book, one written by Justice O'Connor, which concurred with the results in Berman and Midkiff, but felt that the use of eminent domain for economic development purposes went too far. She noted that the beneficiaries of such takings are likely to be "those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Thomas' dissent went further and recommended unwinding the holdings in Berman and Midkiff, and returning to his understanding of the founders' intent in the use of the words 'public use.' He characterizes the Takings Clause as a prohibition, not a grant of power. He differentiates the historical 'mills acts' and use of eminent domain by common carriers because while privately owned, they were required to serve all comers. Whether a particular urban redevelopment project is a good idea is not really the issue here, as I see it. It is more a question of how far we are willing to encroach on traditionally held personal property rights for the perceived benefit to the greater society. And following on that, how do we protect small landholders from large corporate or other politically powerful individuals who, like King David, desire what is not theirs?

things I'd like to say

There are many things I do not write about here, because they might be too personal, or might disclose something about someone else. In this past semester and a half, I have learned a lot of new things, about Evidence, Civil Procedure and Property. And about how to be honest without divulging that which I do not care to divulge, and be faithful to apparently conflicting truths. About who I am, and what I really desire in this journey, and what I'm willing to pay for it. About ethics and justice, and about privacy and solitude. If I could, I would tell you the story of how I've learned each thing. It turns out that some things can never be said.

Roll over, Beethoven!

Attempting new things after a certain point in life brings with it some different challenges than when I was 21. I'm learning to ride a motorcycle, no small feat, because I find that my risk tolerance is lower than it used to be. And falling has more ramifications now. But still, the feeling when I'm riding-that is the good thing. And I know with time I will get better at turning, stopping, starting, all of it. Meanwhile, at least no one can see who I am with my helmet on! In a different way, this bike riding is a bit like law school at 50. Stretching, learning new things, putting myself in a place that is at least a little uncomfortable-all of these things I did not do enough of in years gone by. Being able and willing to look foolish-also a new skill. It appears you can teach an old dog a few new things.

the current storm

I'm sitting in Real Property class, where we are discussing law that I find interesting and fascinating. It takes me outside my current troubles for a little time. Short and limited relief, but relief it is. Intellectual and philosophical distractions take root in my soul, and feed me in ways that make no logical sense. Each morning the day may bring resolution, and each evening the mantle descends. I wonder when the weather will break.

I looked up in class tonight and find that I am cordial with these people, but all the ones I bonded with in that first year are gone. Today, I'm unable or unwilling to start over. Tomorrow may be a new day. I know there are some interesting people here but they too did some early bonding, with others. Breaking in is hard, and the urge to isolate further is strong.

what I learned in class tonight

I hereby quitclaim my interest in the overlong grass growing in my yard, the dog shit therein, and the electric trimmer currently residing in my front yard. I've been hoping someone would adopt the trimmer, as they are wont to do whenever I leave anything out front and without a chain and lock on it. My present intent is to transfer, convey, assign, alienate...the trimmer. It works, but I'm conveying it without warranty, because it was cheap and may break down at any time. I can't find the replacement 'string', and I'm done looking. Who needs trimmed edges anyway?

obscurity in my windshield

Dark valleys and long nights. I do not see the end, nor the point in trudging forward. Still I do, but I have lost the reason why. And I am resigning from my friendships-today, all of them. I am sure I will feel differently later. Today I can't see the point.

It's Friday already

A week nearly lost completely, sick, recovering and then sick again. I think my body was saying "STOP", and the only way I was going to listen was to get too miserable to move. And so I did-stop, that is. Back on the merry-go-round, and behind at work and in school to boot. How now to keep from ratcheting it up too much in my effort to catch up? I really want to remember to take time to look around me-learn to use my chopsticks well. And to treasure each little discovery. And of course, not to lose my mind while keeping up at school and conquering the new assignment at work. While doing my old one. And some fun too. chopsticks...

How to be an explorer of the world

borrowed from a Facebook post, not sure who the original author is: How to be an explorer of the World 1. Always be looking (notice the ground beneath your feet). 2. Consider everything alive & animate. 3. Everything is interesting. Look closer. 4. Alter your course often. 5. Observe for long durations (and short ones). 6. Notice the stories going on around you. 7. Notice patterns. Make connections. 8. Document your findings (field notes) in a variety of ways. 9. Incorporate indeterminancy. 10. Observe movement. 11. Create a personal dialogue with your environment. Talk to it. 12. Trace things back to their origins. 13. Use ALL of the senses in your investigations. I am particularly attracted to #9-indeterminancy. Yes, yes, yes

those little numbers at the end of the semester

I may have mentioned that I was expecting to be disappointed by my grades this last semester. I walked out of the exams feeling annoyed with myself and the world, and if I am honest, feeling a bit sorry for myself. Working 50 hours a week, and law school, and it means I can't do as well as I would like. But that's life, isn't it? And each of us in this class has their own baggage or burden to carry, in conjunction or in addition to, law school. So I will have to finally open my envelope, and face the music, and get over myself. Ego properly bashed, and pride limping painfully along, I will return to the fray and hope for better luck and timing in April.

for 2012

Become proficient with chopsticks Run 3 times a week Be honest with those I care about Rule of 3...

Back for another round

Second semester has begun, although we still don't know how we did on mid-terms. A friend, who has reason to know, asked if being in class feels more familiar than being at home in the evening. And he hit it right on the head-it felt a bit like coming home, back where I belong, with people sharing the path. Comfortable, just right, where I want to be of an evening. I wonder what it will be like when law school ends for good. I think perhaps that will be a bigger adjustment than getting used to law school was in the beginning. I'm a part of an elite and private club right now, and it meets at least 3 times a week. We endure intense pressure, go through major life events with our class mates, and forge sometimes long term friendships. And in the end, almost no one else understands the peculiar experience, and so that shared intimacy and endurance test makes a bond that continues to deepen as we move along. We are diverse, some of us young and single, some of us with families and full time jobs, and some having raised families, now embarking on a second or third career. Some love the law, for some this is an endurance test, just a means to an end. But we are in it together, and each one enriches and informs the experience of the others.