Even steven

Restitution.  That which makes up for the wrong done.  But not really.  Legally speaking, it just means that any benefit the wrongdoer has gained must be disgorged.  Unjust enrichment would be...unjust.

It's like the big brother tricking little brother into handing over his allowance-big brother must give it back, even in the face of an agreement between the brothers.  Why?  Because it would be unfair to do otherwise.

Sometimes the court is a lot like a parent.

Five good persons or persons of interest?

The California Bar requires that an applicant for a license to practice law must be of good moral character. All those lawyer jokes aside, they really do put aspiring attorneys through the paces.

Having read of countless attorneys who were disbarred after later having been found to have lied on their application, I am wary of providing incorrect information.  The typical bar applicant is about 24 years old, and listing all their jobs since they were 18 isn't all that much of a mental exercise.  But I've lived in 3 states, and held various jobs in the last 35 years.  Who really knows (or cares) if I left that job in Ohio in June of 1996 or August of 1997?  Who will come visit me in jail, I wonder.

In addition to my employment, I have to provide five personal references, none of which can be relatives or current employers, at least one of whom must be in the legal field, and only one of whom can be one of our law professors.  Not A nor B, but no more than one of C.  After a review of the address book on my phone, I believe I have come up with five names.  You should hope you are not on it.

Merry Christmas

This Christmas Eve I find myself sad and uncertain.  The absurdity of this is not lost on me.

It would be perhaps justified if I were the street person with no warm bed, or food this Christmas night; the child for whom the wonder of Christmas is subsumed by the struggle to survive; the old one forgotten and invisible, who has not felt a kind human touch for years.

I want too much.  Much too much, it seems.

I wonder what the ants see

I rode the bus to work today, something I swear I'm going to do more often every time I do it.  But my car is warm and easy, and a place to retreat at lunch, so I rarely take the bus if I have an option.

Walking to the transit mall, I took note of the neighborhood coming to life, the restaurant open early with a sole patron at the counter, I was tempted to veer off course and sit with a cup of warm coffee and ponder life for a while.  The sidewalk, the darkened windows, the cars and people all seemed to stand out in contrast to the dark, early morning.

Each thing observed with so much more detail than when I drive past it, even slowly.  I'm not sure if it was the reduced speed at which I traveled, or the unburdened mind I carried, but there was more to see today than most days.

Blood types

I have come to the conclusion that there are 3 types of law school professors, and it's likely that these 'types' are strong indicators of other things about these people.

Type 1:  they like to fuck with you.  It is not so much about finding out what you know as showing you how much they know how to mess with you.  This is generally due to either a) they had it done to them in law school so they think it is appropriate for you too, or b) they have an outsized ego and this is a way to get their jollies.

Type 2:  they don't want to fail anyone, and as a result their grades have no meaning. You learn not to ask for their opinion because what you get back is less to be trusted than Type #1's feedback.

Type 3:  reasonable, intelligent folks who a) want to prepare you for the Bar exam and b) have no hidden sadistic intent.

Want to guess which one our professor for tonight's exam falls in?  And yes, I know I'm tired.  I'm not sure I've ever been more prepared for an exam, and I'm not sure it made much difference.  That just feels messed up.

Alas, the semester is over, for better or worse.  Which shall not be determined for about 6 weeks, so let the Christmas season begin.

It's the 16th and I have no shopping done, my house is a mess, I haven't been to the post office for a month, and my car is dangerously in need of an oil change.  And I still have to go to work.  But it's Christmas and all is well anyway.

the mud is deep and the going is slow

Let me start by acknowledging that I'm whining, and that's just silly.  I want to go to a movie, read a book for fun, make plans with friends, do almost anything but be leashed to these books.  I know I chose this, but today I'm just so tired of it.

The Dean talked to the class this week about graduation-the end of school is just a little more than 4 months away.  The imminent midterms, the thought of finals in April and then the Bar prep class, culminating in the Bar exam itself-all just seems like a little much from where I stand.  I know my perspective will change in about a week and a half.  Much of this is the usual exam fatigue.

Midterms will soon be done, Christmas will be imminent, my youngest son will be home, and I'll have a rosier view of things.  Right now I'm hard pressed to slog on, through the business judgment rule, agency principles, expectancy damages and structured injunctions.  I need new boots.

one step forward

Sunday morning, sitting in a corner of the coffee shop with a hot coffee and a cinnamon roll, my Remedies outline and the beginnings of an idea of how to attack an exam question.  There is a lot of grinding between here and finishing the midterm exams, and I worry about lack of discipline.  Nothing like fear of failure to motivate though.  Here we go...

it comes round again

Thanksgiving once again.  I went for my traditional run this morning, but struggled to focus on what I'm thankful for.  This wasn't because I felt ungrateful, but my mind wouldn't settle down on any one thing.  I noted the Christmas tree lot, the closed restaurants, the quiet downtown, and the crowded coffee shop.  But try as I might, I did not locate any quietude inside.

My fourth Thanksgiving as a law student, and my last.  I get the feeling that those around me who are not in law school are tired of hearing about it, and I've discovered that I have little else to say right now.  Just a little while longer, I think, I hope, I fear.

day of reckoning

For those who took the CA bar exam in July, yesterday was the day they got their results.  Each year, as we creep closer to being the ones standing and waiting, the spectre of all that the Bar Exam stands for looms larger and becomes more personal.

This is in part because we know more people now who were waiting for results, and in part because in true narcissistic fashion, we see all through the lens of our own lives.  And we're almost next.  Like lambs to the slaughter, we bleat and moan, but onward we shuffle.

two women and one baby

Tort now, pay later.  Or not.  So the discussion went in tonight's Remedies class.  So when is injunctive relief available?

Is it the danger of irreparable harm so that a legal remedy would be inadequate?  When it comes to real estate, is it that the nearly absolute right to use, or not to use, one's property trumps the neighbor's wishes?

Money doesn't make up for some losses, such as risk of physical harm due to domestic violence, or inability to exercise civil rights, or the loss of something unique, such as Great-grandma's crockery.

Under replevin, specific performance is granted even if there is no irreparable harm- specific property is granted back to plaintiff based on the rule of law.  If damages are too speculative or it is too difficult to prove economic harm, the court may also consider injunctive relief.

Courts must also balance the hardships between the plaintiff's harm if the injunction is not granted, and the cost/harm to the defendant if it is.  Solomon must split the baby in the end.

the original position

As defined by Rawls, the idea of the original position is that a well-ordered society is made of those who accept the same political concept of justice, and that they have arrived at this agreed concept by starting from behind the 'veil of ignorance'.  This veil precludes one from seeing the role that they have or will have in society, including the advantages or disadvantages that tend to issue from differences of wealth, intelligence, gender and race.

Thus each person represents a free and equal person, independent of the social position of the person they represent.  A free and equal person has the capacity for a sense of justice-they can understand and apply the rules; and they have the capacity to be motivated by what is of value in the human life.

It's a lot like deciding on the rules before you deal the cards.  And everyone gets the same number of cards.  Poker, anyone?

You say pareto, I say potato

In Remedies this week we were discussing structured injunctions-injunctions used to address a systemic violation of constitutional rights, such as segregation in schools, or discriminatory hiring practices by the state.

The conversation got away from us a bit, and after class it continued down an alternate path.  The upshot was discovery that at least some seem to espouse the 'bootstrap' mentality.  The disadvantaged, such as minorities or women, need only to pull themselves up by their virtual bootstraps and make something of themselves.  Those who follow this line of thinking are quick to offer examples (sometimes themselves) who have done so, as proof positive of the rightness of this way of thinking.  I came away from the conversation disturbed and disappointed.

But all was not in vain, because after a brief email exchange with my son about something entirely different, I found myself looking at John Rawl's Justice as Fairness essay.  All that I could not articulate properly, the ideas percolating in my brain, my own innate sense of the fair way to approach societal, economic and educational issues-all this finds a friend in Rawls.

Brave hearts

Sitting at the sidewalk table at Pete's with an iced green tea, a cookie and my Bus Orgs textbook.  Warm in shorts and a t-shirt, and listening to life swirl around me.  It's a beautiful October Saturday afternoon, and I wish I could forget that Monday morning cometh.

All these people passing by are going someplace, or so it seems.  Each has their own dragon to slay but it's hard to guess at what that is as they stroll, shuffle, skip and meander by.  I wonder what Don Quixote would say if he sat beside me.

Present value

What is tomorrow worth?  If I can spend the day to my satisfaction, what is it worth to me today?  We middle aged persons know that anticipation is often more enjoyable than reality.

In the world of lawsuits, torts and compensation, the present value of tomorrow's dollar is, while uncertain, an important topic of discussion.

But I want to know what tomorrow's time is worth.  All 24 hours of it.  If I were hungry, or cold, or sick, it might be worth a meal, a blanket, cessation of pain.  Instead I worry about petty things, like what to wear, how to navigate the office politics, and whether to read Remedies or Bus Orgs.  Upon reflection, I'm not sure I've put the right price on tomorrow.

in search of equilibrium

The law without remedies would be a vain thing.  Winning a lawsuit would be an ephemeral victory if it didn't result in money damages, an injunction, or declaration of some sort.

Still, I can't say that Remedies is going to be a favorite law school topic for me.  The professor is good-he knows the material, he artfully facilitates discussion and provokes a deeper or alternative look at the topic under consideration.  But I find the prevalence of insurance interests maddening, with no real solution on the horizon.  Insurance companies are the 'repeat' customers in the world of personal injury, and they have the most at stake.  They in turn do their best to influence legislators, who are not immune to persuasion.

A long term view of things would see the pendulum swings within the law, as in any area of our human experience.  But I have only this life to live, and no opportunity to see the next swing of the pendulum.  And I regret the direction it's going in this particular lifetime.

my side of the elephant

Just saw a discussion of a study that showed that expressing gratitude tends to increase a person's feeling of happiness.  I'm not sure happiness is exactly what I'm reaching for, but my sense is that an attitude of appreciation and gratitude changes how I view the moment.  Which changes the moment in my perception.  And just like the blind men who experienced an elephant in different ways, my experience is all I know.

So, gratitude.  The texture over which my fingers glide is life, full and fascinating.  My elephant is beautiful.

great expectations

Bearding the dragon in its lair leads to the expectation that you can do it again.  Never mind that it was sleight of hand, or luck, or god knows what, that made them think you could.  Just do it again.  Because yesterday is meaningless unless it is the harbinger of today, and tomorrow.

I hear the bell

Weariness.  Bone aching, drained of energy to do the next thing, even it's just going to the bathroom.  Fortunately, the thing, that thing that has knocked me on my ass, eventually loses its power to terrify me.  It either becomes the new reality, or it goes away, most often slipping quietly away when I have my head turned.  Only rarely does it bow out with a crescendo and a sense of completion.  But the fact remains that what I see today is not what I saw last week or last month.

Inexplicably, trudging turns into skipping and twirling, and back again to a zombie like pace.  The finish line keeps morphing into something else, because when are we ever finished?

I don't know why we do it, but my guess is that the moments of pure delight provide the motivation to seek out more of them.  Pavlov's dogs had something after all.

I know which way the oxen go

The best thing in life is to have a grand adventure.  Or maybe 3 or a dozen or hundreds if you can manage it.  I'd like to say I find each day to be such a thrill, but that would be an overstatement at the very least.  Some days are humdrum and just to be borne.  But to go to a place or space I've never been, to see and hear and taste things I've not experienced before, that is a thrill of which I have not yet tired.

Law school is just this kind of thing, most days.  This, the final year, commences tomorrow.  If you read this blog often, you will no doubt tire of my observations about post-law school life.  I fear it will not measure up, at least on its own.

This year is Business Organizations, and Remedies.  And then the Bar.  After that I shall just follow the oxen.

The grass is always greener

Riding on the train in the city night, finding entertainment in the lives of those around me-all this is a vacation from my own life of responsibilities and expectations.  For the moment I am free to be the silent observer, watching the perhaps drunk, certainly mentally ill man in an altercation with another person ready to fight over any imagined slight, then each gradually backing off.  The ill man then beating his head against the window as he mutters to himself.  What demons follow him around?  The white, middle-aged couple who seem out of place, the many young and quite old, each lost in their own drama called life as the city slips by outside.

We all want to live, and yet at the slightest chance of escape from the lives we have mostly constructed for ourselves, we jump.  What fools are we?

drunk in public

This final summer session of law school stumbled to the finish line much like it had too much to drink last night.  Crashing, careening, sometimes messy, but to the end it went.

Life got in the way a bit, with a wedding for my youngest son smack dab in the middle of exams, with the attendant family and friends staying at the house, social events and sweet memories to be made.  Things at work heated up, as it seems they are wont to do at exam time-what karmic returns are these, I wonder?

the shortest distance between two points

Occam's razor might be applied to my current situation, but I'm not sure it's always true where human behavior is concerned.  Or is it?

eppur se muove

Gallileo may not have said these words at his trial, but they still resonate.  Regardless of all the explanations, defenses and excuses, there is at the end of the day-causation.   And maybe some accountability.  Perhaps it won't be found in court, but for those who are able to find the intestinal fortitude to look themselves in the eye, there is truth to be acknowledged.

A universal truth?  Hard to come by from my way of thinking, but here's an attempt at one:  The real reasons we do things, or don't do them, are not anathema if we can find the means to be an observer-no need to pass judgment, no categorization based on religion, upbringing or current or aspired social status.  Just something to note, and pick up and look at it from all angles, taste it, smell it, watch it develop.  And then to acknowledge it out loud.

I'm pretty sure this leads to being misunderstood and even ostracized sometimes.  But how freeing it must be to see without needing to label and box.  Whatever it is really exists, regardless of what we choose to name it.

poker face

After three years of law school and one left to go, I realize that I know nothing about how to be a lawyer.  I am humbled and discouraged, and frankly scared shitless that this was yet another of my frivolous purchases.  Usually buyer's remorse kicks in before I've even left the store though.

I've gone down this road at mid-life-who am I kidding?  Past mid-life, and perhaps I'm one of those people now that others smile at to my face, and then in private wonder why I am trying to act like I'm 25.

I'm not sure who made the rule that people of a certain age are supposed to yield the floor, but I'm unwilling.  This is the only turn I get at this thing we call life, and I want all there is to be had.  I want this, the law, all that it means for me.  The intoxication of new ideas, new ways of attacking the hurdles in front of us, trying good things and having the tools to accomplish some of them.

 I'm not sure what failure after law school looks like but for sure giving up on going all out is failure for me personally.  I want this, and more-I need to know I haven't settled for less for the sake of things like the approbation of others, financial security or ease.  There really isn't a choice for me, I must do this thing.  But still, today I'm kind of sick to my stomach.

In poker parlance, I'm all in.

the fix for the doldrums

The area within roughly five degrees either way of the equator is sometimes called the Doldrums.  The rising warm air at the equator moves north and south but as it moves, it cools, which draws it back toward the equator.  This in turn results in desultory winds that could stall boats powered by wind alone for an indefinite period of time. I don't know the etymology of the term, but the internet says it comes from 'dull'.

Like sailors of old, I find a pattern in our law school semesters.  The beginning of a class is exciting and challenging.  It generally means new professors, new mix of students and new possibilities.  And like the warm air, we rise to the challenge.  But then about now- mid way through the semester, a sense of inertia creeps in.  Why do today what I can put off until 15 minutes before class after all?  And all those plans to stay ahead of the reading, to start projects early?  Let's just say those plans are about as effective as the ways sailors used to try to avoid the doldrums (throwing horses and cattle overboard).

Of course I know that in about 3-4 weeks, the pre-exam terror will set in, and will shock me out of this torpor.  Perhaps it's a necessary rhythm.  In the meantime, I think I'll go cast a cow overboard.

ask me no questions, I'll tell you no lies

What is truth?  To whom do I owe it?  I remember an ethics of communication class in college, and the discussion of Bonhoeffer's writing on truth-telling.  What I got from that long-ago discussion is that not everyone is entitled to the truth from another.  Perhaps it was what I wanted to hear because it gave me a means to protect my privacy, but I adopted it.

Truth is more than words and it is no words at all.  If I don't have the right to ask the question, I have no grounds for complaint when the answer is something less.

betting on the come

Is severance pay separate or community property?  Based on Wright, it is separate property, which makes sense when you consider that it is compensation in lieu of future salary (post-separation).  But given that most severance is based on years of service, it seems a little bit murky, because then the community's efforts are what 'earned' the separated employee the severance.  Earned is in quotes because given that severance is generally discretionary as long as it complies with company policy, there may not be a vested right to it when a reduction in force is implemented.

Our professor explains this by saying that the event that gave rise to the property was post separation (in Wright, for instance).

What I take from this and almost all of my Community Property cases is this:  marriage is a roll of the dice at best, especially from a financial perspective.  People go into marriage with stars in their eyes and warm fuzzy feelings in their guts, and base long term decisions on that euphoria lasting.  But of course it almost never does.  Best case, most couples carve out a state of mutual tolerance and compromise.  Many uncouple as they grow and change, or don't grow, don't change.

What is it that drives the urge to meet at the alter in today's society?

Blessed be those who do not conform, for they make us uncomfortable

"Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules. And they have no respect for the status quo. You can quote them, disagree with them, glorify or vilify them. About the only thing you can’t do is ignore them. Because they change things. They push the human race forward."

This is from an Apple marketing campaign, but it's true enough to be worth restating.  And I would add that the misfits we need to thank for their contribution to the greater good include other marginalized, maligned and misunderstood:  those who live on the street because they cannot live the life that is prescribed for them, those that wear odd ensembles, those that either can't or don't conform to the social niceties.

If they make us think, if we are reminded to stop and think, then they have perhaps moved us, as individuals, toward a more enlightened view of the universe.  And hopefully the individual impact has a collective good, I don't know.  I find it hard to see that evidenced in the world, but maybe.  Regardless, I am benefited when it is me who is made to stop and consider an alternative to my accepted truth.

the sands of time

There it is again, regret at turning away from chances to do things, both simple and grand, because I:  must study, must do things I've had no time to do while studying, have no money because I'm paying for law school...

But really no different than anyone, because our days are a series of choices as to how we invest our hours.

I can feel time slipping away like grains of sand held in my fist.  Time being so much more precious than money, it's hard not to wish I'd spent some of mine differently in times past.  But I can only impose my present sense on today.  Contravening this sense of limited time to live is the pressure to do what I ought-buy thoughtful gifts, spend time with people who need that time, cut the grass before it gets embarrassingly high, put things to right.  How can I do both?

a day not of repose

One son's birthday, meetings all day at work, class in the evening, and still this to do after class:  clean floors in my house, go hear a friend's band, return the borrowed car and pick up my own car.  And sleep sometime!

How will I function when I have less to do?

overcast skies

It's been an overcast and gloomy Sunday, and I have managed to do a lot less with my time than I should have.

My parents are coming to visit this coming weekend, and I have meetings all week at work with out-of-town guests.  Today I should have cleaned the house, gotten groceries and read ahead because I know it will be hard not to fall behind this week.

And still I dither, looking at Community Property, and then going off to do some imagined errand, back again, anxious at the thought of how to organize the information, and then off again.  It's going to be a long week.

procrastination

More cases to brief for Community Property and a demand letter to draft for Advanced Legal Writing.  But tonight my friend had time to help me with my grape arbor, and I had some old episodes of West Wing to watch.  It's 8:30 and time to get to work.

365 days and counting

Graduation today for the class of 2013.  It feels more real now, both because I know most of this year's class and because it is a year away for us now.  I've gone to graduation each year since I started law school.  I know it's ridiculously cheesy, but it inspires me to think that if I persevere, I too can attain this thing, a J.D.  So each year, I dress up and attend, usually with my friend Abigail.  But she is in Italy doing an L.L.M. program this year, so no Abigail.  I did meet up with several classmates, and saw several current and former professors.  Mostly I dreamed of making it up there next year.

you can't unknow things

My grades for Third Year are sitting in my mailbox, have been since sometime yesterday morning at least.  I walked right by the post office on my way home yesterday afternoon, drove by it later, and today I ignored it altogether.

I know why-I expect to be disappointed, and I'd rather delay that letdown, enjoy the self-deception in which I am indulging for just a little longer.  I feel slightly foolish about my behavior but not enough to go to the post office.

opprobrium or approbation

My faith in the ability of humans to do any sustained good thing sinks ever lower.  Perhaps the key is the person who has found peace in living life as they find it, rather than trying to fix things.  To me that looks more like the street person sitting content with a spot of sunshine and their meager belongings than most any person that society approves.  The choices become ever clearer and more limited.

genocide, slavery and Solomon

"Humanity must bewail the course which is pursued, whatever may be the decision of policy."  John Marshall speaking of the Cherokee nation dilemma, approximately 1830.

Once a societal wrong has been committed and sustained, within less than a generation there are so many countervailing interests and good faith reliance on the status quo that unwinding the ball of yarn  becomes a case not dissimilar to Solomon's baby.

disheveled but still standing

Like most worthy endeavors, this law school journey is more of a slog than a Hollywood moment, or even a series of those moments.  At any given time, we're more likely to resemble a person on Saturday morning after a hard Friday night, hair mussed, in sweats that should have been washed a few wearings ago, and bad breath- not to say we lack in the personal hygiene area.  Rather I'm saying we are mentally and socially, and sometimes emotionally in that place.  Somehow we move the ball forward but it's hard to see if you are watching, and sometimes we lose ground.  But with enough time elapsed I can now look over my shoulder and see that where we began is far off in the distance.

I was told that we would learn a new way to think, and it appears we have to some extent.  Certainly we speak a new language and find minute legal questions fascinating enough to carry an evening's conversation.  Which makes us annoying to normal people, of course.

alone with my mind

I'm an excitable sort of person, and sometimes my passion is overpowering and off-putting to others. This remains true in law classes, where I forget that just because I want to argue the finer points of the interrelationship between risk allocation and standard of evidence does not mean my classmates do. I realize more all the time that I sometimes come across like a child in a tantrum, so focused on the thing at hand as to forget that I shall have to live with those around me after this foment has passed. I so enjoy the engagement that it's hard to remember that others do not, in fact they find it unpleasant.

I also think that having had a few years of law school now, I feel more confident in both my right to state my opinion and my right to be as wrong as I care to be.

These make for a dangerous cocktail, one that I would be wise to consider carefully lest I alienate my fellow sojourners. I want to play with this law, to manipulate it with my hands, to look at it this way and that, and to fling mud about in the process. I miss the days when Peter, Jean and Abigail were there to do this thing with me but we have all gone our separate ways.

mirror, mirror on the wall

Albert Memmi’s definition of a racist attitude:
1. Stressing the real or imaginary differences between racist and victim
2. Assigning values to the differences to the advantage of the racist and the detriment of the victim
3. Trying to make the values absolutes by generalizing from them and claiming that they are final
4. Justifying any present or possible aggression or privilege
(Attempt at a Definition in Dominated Man: Notes Toward a Portrait 185-95 (1968))

This semester isn't doing much for my view of humanity, in fact my pollyanna attitude is taking quite a beating. Who among us can say we haven't practiced these steps to justify behavior ranging from disdain all the way to true harm against another?

I think I need an offset, perhaps a feel-good movie to balance the dark reflection from this cesspool of history wherein I see myself.

A rotting foundation

It is challenging to see how humanity can ever rise above a seemingly universal greed that nearly always surmounts any good impulse that may arise. History tells a story of inconsistency and dismal failure.

For my Federal Indian Law class, I am reading about things that perhaps I learned in middle school or high school. But if I did, it long ago fell off the wagon in all the shaking and moving of life. And I am certain that the version I learned then was a little more skewed to show those of European descent in a favorable light.

What follows is an attempt at a synopsis of what I learned this week. Much of it comes from the textbook, Cases and Materials on Federal Indian Law, Getches, Wilkinson, Williams and Fletcher, and from our class discussion on the topic. I claim no original thought on this matter. I find it unsettling to re-think both some of our history, and how the law functions. I had thought, had hoped, that it provided justice for the oppressed, but it is hard to maintain that belief in the face of all of this. Because what we do to or for the least powerful is the real indicator of the rule of law, and the opportunity for justice.

The basis for U.S. Indian law as administered even today reaches far back in history. It perhaps originated in the Catholic European nations' view of the Pope as divinely designated shepherd of the universal flock of Christ. The Pontiff was vested with supreme spiritual authority over the souls of all humankind. The Pope’s universal authority was also political.

This concept was the basis for the Crusades in 11th-13th centuries- there was a righteous authority to conquer the lands and peoples of the infidels for 'Christ' and to spread the gospel.

The Doctrine of Discovery is European in origin- the discovering sovereign had the right to 'discovered' land superior to all other ‘Christian nations’ and superior to current occupiers, so long as the land was not already discovered and possessed by another Christian European nation. Then again, this conquest rule of law was not new with Europe. In Anabasis, Xenophon talks about the law of the conqueror swallowing up the law of the conquered, written around 400 B.C. One can find many traces of the concept throughout history. While it doesn't justify anything done to the Indians of the U.S., it perhaps helps to put it in historical context.

Catholic legal scholars' canon-law writings provided a basis for the Christian sovereign's right to punish and take property of any infidels.

In a bull issued by the Pope for the King of Portugal in 1436, the King was given the right directly from God to colonize Canary Islands and all of Africa, by whatever means was necessary.

Later Spain obtained a series of bulls granting the Americas/‘Indies’ upon discovery by its agent, Columbus. Spain's legal minds had come up with the Requerimiento, which had to be read aloud to any group of Indians before any hostilities could legally be commenced (written in 1513). Only the Indians didn't speak the European languages, and there was no provision for translation. The Requerimiento provided that God had given charge of the whole human race to the Pope, who had donated their lands to the King and Queen of Spain. The Indians were asked to ponder and acknowledge this higher power, and consent to be preached to. If, however, they denied this, or delayed in responding, God and the Church approved of war-making by the Christian nations, enslaving the Indians, taking away their goods, and doing all the harm and damage that the Spaniards could.

Incredibly, the speaking of this writing gave authority then to proceed as desired to take from the Indians their land, their freedom, and their lives, with the blessing of the Most High.

Franciscus de Victoria (1480-1546) would at first reading appear to be a voice standing out against this taking in the name of God. In On the Indians Lately Discovered (1532), he discussed the applicable international law, and provided three arguments later included in the European Law of Nations.

1. The inhabitants of the Americas possessed natural legal rights as free and rational people
2. Any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not affect the inherent rights of the Indian inhabitants
3. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas

It was his assertion that Indians were rational beings and therefore possessed the same natural rights as Christians. He said that the law could not bind those not previously subject to it and any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not effect the inherent rights of the Indian inhabitants.

As to the land, he said the Indians could not be deprived of their property without just cause. While what belongs to nobody belongs to the first occupant/discoverer, the Indians were true owners of this land as present occupiers.

Alas, he did not stop there. While he claimed that the Pope has no temporal power over aborigines or other unbelievers, under argument #3, he found an exception to the universal natural laws in #1 and 2. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas. This then was the just cause, and it undid entirely the precepts in his first two arguments.

Our legal concept that the Federal Government has a guardianship over Indians in the U.S. stems from this theory. Victoria said that since Indians could not be expected to understand fully the rules of the European Law of Nations, they should be placed under guardianship.

But deciding for someone else what is good for them is thin veneer for abuse of power-illegitimate power most often. The concept of guardianship allowed for- no, demanded ‘brotherly correction’ – Indian princes had no legal right to prevent the preaching of the gospel, and to deny this gospel would provide legal justification for seizing of lands and setting up new lords.

Edward Coke wrote in Calvin’s Case about the English King’s right of conquest in Christian vs non-Christian territory:

Infidels are in law perpetual enemies
Law presumes not that they will be converted
There is perpetual hostility between infidel and Christian, no peace
Pagan/infidel cannot therefore maintain an action in King’s courts- no recourse, no justice available to an infidel

If the King takes infidel’s land by conquest
The laws of the infidel are abrogated (and their title to lands)
Because they are not only against law of God but against law of nature

How would the Indians be expected to know European/Christian norms? More to the point, who is to decide what are the universally binding norms? Religion was just the convenient cloak of justification for greed/ land grabs. Frankly, there had to be some mechanism for acknowledging title in order to extinguish it. So the legal fiction that was set up to justify the actions of the European settlors loses even its veneer of being motivated by a sense of fairness. They thought of the need to be able to devise and convey land with clear title, and therefore sought to lay the foundation on the blood and betrayal of those who occupied the land they desired.

When I hear people talk about the U.S. as a Christian nation, it makes me anxious, as I contemplate what has been done in the name of Christianity, or any other religion. I knew of the Crusades, of course, but they are so remote in time, and surely couldn't take place today. But it seems that evil is perpetuated continually, no less the evil for its being cloaked in precedent and guardianship. I can better see now the evil done in the name of the Lord, and given the historical bent of humans to repeat the cycle, I worry at any intrusion on my right to be an infidel.

Justice or the illusion of justice?

this sysiphean task

Clausewitz wrote that war is politics by other means (On War, 1873).
Michel Foucault added this twist: Power is war. And while just saying it doesn't make it true, I would suggest that this is true even if it is benevolent exercise of power. The exertion of my power to effect changes necessarily imposes those changes on another with or without their consent. On some level, one can see that as warfare.

When I use non-violent means to exercise my power, one could call that politics. If politics is the exercise of power, is not politics warfare too? On a continuum of possible acts of war, political negotiations move toward war as they break down. However, as Foucault says, while political power may bring an end to war, the cessation of warfare does not neutralize the disequilibrium revealed in the final battle of war. He argues that the relations of power in our society are established in the moment of decisive battle, and that then sets the stage for the parties' relations for some time after.

Therefore, he says the role of political power is to reinscribe the relation between the once-warring parties, through unspoken warfare: in social institutions, economic inequalities, in language, in the bodies of the parties. (Foucault, Two Lectures in Power/Knowledge 90, 1980)

But this is a dismal point of view, especially if accurate. What meaning then when the rich and powerful speak of doing good? What does this say about the lofty goal of ending poverty, of providing equal opportunities to the disadvantaged, to give means to raise oneself up? Is this just a token effort to assuage a conscience, to keep up appearances, to make oneself a charitable being in the eyes of others? Is it impossible ever for a group of humans to achieve some gestalt for more than the briefest of moments?

I've heard it said that where there are 3 or more people gathered, there are politics. This means there is warfare on some level as well. There is a power balancing, or an out-and-out struggle for it, and this is both politics, and a kind of warfare.

Why then do we try to get it right? It seems a Sysiphean task after all.

this feel-good buzz

The after class buzz that won't let me just go home and go to bed, even though I know I have to get up early for work, it's almost like an electric current running through me. That is a part of law school that I treasure. The intellectual stimulation, the challenge, the debate, the discussion of the case, the underlying law, the logic, or at least the search for it-all of it. Love it. And I'll miss it when it's done, I know. One of the reasons I should have gone to law school when I was a newly minted college graduate, and yet one of the reasons I am getting so much more out of law school now than I would have then.

There is a maturing of the intellect that while it may impede my ability to memorize and recite, it enhances and enriches the understanding, the adoption and assimilation of the new idea.

I will never get over this love of learning, and I am grateful for that.

this baggage that I lug around

"The first thing which I recommend is to burn the wagons we have got, so that we may be free to march wherever the army needs, and not, practically, make our baggage train our general. And, next, we should throw our tents into the bonfire also: for these again are only a trouble to carry, and do not contribute one grain of good either for fighting or getting provisions. Further, let us get rid of all superfluous baggage, save only what we require..." Anabasis by Xenophon, Book III

I need to get rid of some wagons and tents.

guilty pleasure

For my Advanced Legal Writing class we had to read a work of fiction this week. I have at various times in my life read voraciously, and yet I've had to put reading for enjoyment aside almost entirely to keep up with the week to week demands of law school piled on top of everyday life. During breaks from school I find I read almost a book a day for a few days straight, as if it were a drug and I an addict.

So when I had finished my reading for Community Property and for Federal Indian Law, it was a sort of illicit pleasure to pick up a novel and begin reading. More than once I felt a stab of guilt and had to remind myself that this was required reading, that this was allowed, indeed I must. And just like that, the book is finished and I have no more excuse to indulge.

The religion of a law student

Question all things

Measure only by the law, either as it is or as it should be

What it says is not what it means, look further, dig deeper

To understand you must read about this topic from at least four different sources

Use more colons and semicolons, less commas

Immerse yourself in the law to exclusion of other things, not because it is more important but because it is necessary to assimilate what you need to know

And ever more all the time, be who you are, speak regardless of your words’ alignment with traditional values, speak out, speak up

On being the underdog in the real world

I'm trying, and succeeding generally, to generate enthusiasm in myself for my summer classes. Tonight was Federal Indian Law, which promises to raise some difficult and thought provoking issues around sovereignty, reserved rights and not least, the doctrine of discovery-perhaps the most presumptuous and racist doctrine I have run into to date.

The US view of Indians began with a concept of limited sovereignty that gave the Indians the right to deal with us, but no others, and then over the course of the last 200 years has bettered and worsened according to the prevailing political winds of the time. It's not just the taking of their lands and forcing them onto reservations far from their homelands. At once subjected to forced assimilation, then termination, then self-determination-what will be next? But I suspend judgment for now on all of it. Tonight I'm just tired, and the idea of having to perpetually guard, to perpetually be at risk of losing one's rights based on the current political will of the majority, well that just wearies me to the bone. And I don't quite see how anyone who lives under such a shadow can really focus energy enough on something else to succeed at it. Yet another new perspective, for which I am grateful anyway.

jumping back in with both feet

I suppose it's no surprise that marriage keeps cropping up in various ways in the study of law. The importance of this institution is hard to overstate, even while I chafe at its current use by the government, and the meaning attached to it. Not a subject for cocktail hour, to be sure.

I am home from vacation and back to the books right away, because classes start in two days, and I have foolishly signed up for 3 classes this summer. I fear I am biting off more than I can chew but it's hard to say what class I would drop if I were looking to lighten the load. At least both the Federal Indian Law and the Advanced Legal Writing classes are pass/fail and won't affect my GPA. Community Property is a required class taught only in the summer, so there is no option about taking it. This is my last summer of law school, so I can't put it off.

So I have begun my Community Property reading, and of course marriage-or the judicial dissolution of it, is a necessary element of this discussion. The book begins with a very cursory overview of the meaning of marriage. I recognize that it is outside the scope of the text book and this class to consider the validity of marriage itself, at least as it is used to legitimate familial relationships and as a means to deliver benefits and privileges to caregiving units by the government. But the topic reminded me of why I have become so 'anti-marriage' as it exists today.

The government, and case law, have posited that some of the primary purposes of marriage are for societal stability and to provide for responsible child-rearing. (see Maynard v. Hill 125 U.S. 190; Adams v. Palmer 51 Me.481; In re Marriage 43 Cal. 4th 757; Reynolds v. U.S. 98 U.S. 145)

Given that the number of households that are not based on a legal marriage are now outnumbered by other types of structures in the US, societal stability may be a challenging correlation to draw.

The need for caregiving is, however, a valid concern that reaches far beyond childrearing. All of us will at some point in our lives have need for care from others. Babies, the aged, the disabled are all obvious examples, but not nearly a complete picture. The mother giving birth, the child being subjected to abuse, the unemployed worker, the victim of crime, the temporarily ill, accident victims-all have need of care given by others even if for only a short time. The state has a legitimate interest in supporting familial or other units that provide this care both for the benefit of its citizens and to reduce the burden on the state to finance this care. But the majority of this caregiving is done outside of a married family group, and when the government provides certain benefits only to married couples, it misses the mark badly.

The Federal Government Accountability Office has listed 1,138 rights or benefits in which marital status is a determining factor. Some major areas include the impact of income tax laws, inheritance laws, property tax exemptions, childrens' access to social security benefits, standing to bring tort action, health insurance coverage, parentage rights, marital privilege as to testifying in court, operation of a joint business, veterans' discounts on medical care, education and home loans, FMLA leave and wrongful death actions.

In looking at these areas generally, I find it hard to see how being married is a key component at all. Certainly there are more tailored and meaningful ways to establish inheritance, parentage and other such qualifiers.

There are equal protection problems with the current approach at the very least, and I would argue that aside from any legal concerns, we as a society should reconsider our approach to support for caregiving. I know there are strong religious and traditional societal drivers behind the support of marriage as it is today. But regardless of what a particular political or religious group may wish for, the reality is that many of those who function in caregiving units are not protected by a marital union. Our delivery of benefits and privileges needs to be broader based in order to provide more even distribution. There is benefit to society in educating our youth, rehabilitating prisoners, providing humane and respectful care for the elderly and disabled.

We can do better than this.

low battery warning

The end of 3rd year slid quietly into place when I wasn't looking. I have learned by now to just completely let go of each class, each exam, because there is nothing to be done now, and it will be 6 weeks before I know the results. And the results always disappoint.

Instead I'm off on a short adventure, the first of its kind since I started this crazy journey 3 years ago. I'm in Panama for a week, just because it's there, it's close and the flights were reasonable. With exams, and work, and the yard, I didn't plan the trip very well, but I'm delighted to be, well, gone.

Gone from the everyday things that pull and pick and nag. I can be lost in a different universe for a time, and I think, I hope, I shall return recharged and ready to tackle summer classes.

musical chairs and sensory learning

We seem to be playing musical chairs this year. Many formed alliances early first year but some (more than half) have since left, and some partnerships have worn thin, at least at times.

So I studied for the Wills & Trusts exam in December with Daryl and Matt, studied for the Con Law midterm with Ashley and Andrew. But Matt is not at school now, and Daryl prefers to study either alone or with particular people. Ashley and Andrew are barely speaking, and so it goes. Some other groups seem to ebb and flow as the semester passes, always coming back together for exam study, no one willing to forego what has worked so far, almost like a talisman.

In the end, it doesn't matter much who I study with, as long as we talk. The study session becomes a sort of verbal tasting, where we roll a question about in our mouths, partake of its scent, and then observe the aftertaste. In so doing we come to know it on a personal level, and it is ours.

my insides have been turned inside out and dumped on the floor

Con law final tonight, and now I'm sort of emptied out. I studied hard for this exam, perhaps harder than I have for any exams to date. Partly that was due to having no other major exams at the same time, and in part because I really would like to do well in this class and rejuvenate my GPA a little. I don't think I did that but I am pretty sure I didn't hurt it either. Then again, I don't really know at all.

But I know I feel I can rejoin the human race now. I've been so immersed in this study that my grass is embarrassingly long, my house is dirty, my bills need paid, the list is so long it tires me. But I feel a sense of having accomplished a difficult task once again-a now familiar hurdle that is law school.

Tomorrow I will begin. I'll start to catch up, will see friends again, and commence falling behind for the summer.

The truth of the matter

Well. I have nothing to explain myself. Two months of silence, and here I am, hat in hand. I could say that I ran out of words, or at least words that I felt I could offer the universe. That is true and yet not fully the truth.

Reminds me of Emily Dickinson's poem:

TELL ALL THE TRUTH
Tell all the truth but tell it slant,

Success in circuit lies,

Too bright for our infirm delight

The truth's superb surprise; 



As lightning to the children eased

With explanation kind,

The truth must dazzle gradually

Or every man be blind.

It was a dark and long month of March, for no reason that I can discern other than the inexorable march of time, and my sense of the loss of it. I want it back, all of it.

on checking out and leaving

I fear I have lapsed into that thing I did not want to become. Not lazy exactly, but incapable of keeping all the balls in the air, and so resorting to sleight of hand and other means to give the appearance of keeping up. And missing out on the real stuff in the process.

So many things to learn and know, and I am watching time march by. There will not be more years to do this.

I'm tired, so weary that I must find rest, and then the rest just drugs me into stupor. Funny how this is, because this year's school demands are diminished materially from second year. The time I have gained has been filled thrice over, and here I am again, lost in a tornado of life to be lived. I'm not sure this is living anymore. It's not really a material struggle either, it's more about grabbing every opportunity I can, and meeting every challenge, never saying "I can't." Which makes for one tired person with nothing meaningful to contribute.

I cannot even imagine slowing down this merry-go-round, I fear I might come to a stop and never start again.

A post mortem for the day

The more I know, the less I know. And so it goes.

I forgot to pay attention

When I lived in the Midwest, the predominant attitudes about politics, religion, personal liberties and other broad categories were conservative. To say I was in the minority in almost any setting in my rural community would be accurate.

The move to California changed the complexion of my surroundings in many ways. I've been here long enough that I take it for granted, and I often assume that my fellow Californians fall in line with my views. Turns out the guy next to me in class is a fervent Second Amendment supporter.

This serves as a reminder to talk to, and listen to, those who people my world.

Near misses are better than not trying

During the summer between our first and second years, I tried to get a history of law project off the ground. Then second year began, and we were so busy it was hard to see how to survive. Regretfully, I set aside my project in favor of things like sleeping, eating and showering daily. Much went undone that year, and it was all I could do to stay afloat at work and at school. But this year is not so intense, and I finally find myself in a place to pick up the threads again. And I know that once law school is done, making this happen will be so much more challenging. If I want to be a student of the law, it will be up to me to make it happen.

So here are some things I'd like to find out more about:

I had done a little research about Shari'ah law, very little, but I hope to do a little more reading about it now. I'm interested in contract Shari'ah law in particular. The whole concept of riba and gharar, and mudaraba, and much more, particularly how Islamic contract law must co-exist with conventional law, is worth investigation.

Poverty and homelessness law is something I find compelling. I know that it's not something I am going to make a living in-I'm too far down my career path to take such a detour. But conceptually it draws me. So I'd like to continue to learn about the current state of the law in this arena, and perhaps in some small way to contribute something in the future.

Law review seems to have fallen victim to someone's failure to perform on a promise, and so we may take this into our own hands, we class of 2014. In any case, I hope we find ways to stretch our minds and learn better how to write. More to come on this.

And then there is what I was born to do. Contract/transactional law. Yes, I'm one of those - an area of law that is boring to most but invigorating and stimulating to me. And so much more to know, I've barely scratched the surface.

As usual, I'm trying to do too much. And I won't get nearly all this done. But I'll enjoy failing.

Getting ahead of myself

I got the next year's schedule in my in-box a day or so ago, and what a shock! to see that there is law school after I leave. Or more accurately, to think that I will actually finish this. I know it's way too early to be thinking like this, I have more than a year to go. Still, when I started this, 4 years seemed interminable. It was such a long period of time that I felt the only way to survive it and enjoy life in the process was to fully engage in it. So I jumped in feet first, and still love the study of law after some disillusionment and disappointment. And I think perhaps the ending of it all is going to be a letdown.

How to think

It's interesting to look at those entering law school now from my vantage point of more than mid-way through. I'm far enough along to be fully invested in finishing, but far enough from the end to still need to keep my head down and move forward. But those just embarking on this journey are experiencing similar things to what we did, and there is no amount of advice or forewarning that can shortcut the process of indoctrination and adjustment.

They say that the first year of law school in particular is meant to teach us to think like lawyers. I sometimes wonder if I missed some part of that process, and am fatally flawed as an attorney. I'm not sure how to quantify what changes in my mental process have taken place during the last two and a half years. It may be that I am too old, too set in my ways, or perhaps too cynical of being force-fed to be effectively and fully indoctrinated. I don't believe everything I'm told; I test what I hear against what I have already determined to be true.