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.