Thursday, June 23, 2005

Visitors Cheer Me Up

Eve found my blog and left a nice note. Buy the Bar is not very easy to find -- I haven't told anyone at work or in my Bar/Bri class about it -- just my family. Eve has a beautiful web site with all kinds of interesting other work by her -- and a great list of other blogs by people who are also taking the California Bar. Eve is a published poet and writer, and obviously knows what she's doing.

For some reason I have been so stuck in my own head that I never thought to look before at what other people are saying about going through the same Bar study process. This is sadly typical of me -- I start to feel sorry for myself, and totally forget that I am not alone in this -- thousands are going through it, and dozens are telling their stories online. And since I am sort of playing hooky from my day job, its alot less lonely to be part of community of fellow bar takers. Thanks for finding me, Eve!

Tuesday, June 21, 2005

Starting to Click - Too Late?

I feel like I'm starting to click on this law study thing. Read the topic outline; rewrite it, slowly, in my own words, memorizing as I go; do some practice multiple choice questions; do a practice essay; accept mediocrity; move on to the next topic. I have now plowed through some approximation of the above method with: Consitutional Law, Contracts, Sales (UCC Article 2), Torts, Criminal Law, Criminal Procedure, Real Property, and Evidence. These are all eight of the topics covered on the national six-hour multiple choice exam (the MBE).

I don't yet know more than 1 or two of them well enough to pass, not by any means -- but at least I've been over them once through, and nothing besides the Real Property rules is completely unfamiliar. True, I never took criminal procedure or evidence courses in law school either, but I worked for eighteen months in a federal trial court, so I have a good feel for how those rules play out, even if I have not yet memorized all the details that never come up in practice.

I've been at this three weeks so far. At the end of this week we take a practice MBE (to highlight weak areas, or, if its all weak, maybe just to scare us into ratcheting up the effort bigtime). If I could then go back and dig into the national topics for another three weeks, I know I'd feel pretty good about them. But instead, we must go on immediately to the seven "State only" topics: Civil Procedure, Community Property, Corporations, Professional Responsibility, Remedies, Trusts, and Wills. The only two courses I ever took of this whole group in law school were Civil Procedure and Corporations -- and Corporations was taught by a crazyman who made sure to avoid any black letter law for the entire semester.

Somehow I need to review Civ. Pro. and learn seven new topic areas -- and then go back and master the eight national topics -- all in five weeks. This seems impossible. The problem is not that any part of it is inherently hard, because its not -- its just that there is much too much of it to do adequately in the very limited time available. I seem to have an upper bound of about five hours a day for memorizing new things -- beyond that I can continue working, but I just don't absorb anything more. This is not a new infirmity; it was the same when I was a probationary graduate student, cramming German vocabulary in preparation for the Language Proficiency Exam, or, for that matter, when I was in law school. At the rate I'm going I will be properly prepared to take the Bar Exam by early September -- but it will all be over by July 28th.

Thursday, June 16, 2005

"To A, so long as it is not used as a crematoria, in which case to B."

I certainly hope it is obvious to you by now that the above written Land Transfer above is VOID as to B. Why? It blatantly flaunts the Rule Against Perpetuities, that's why! Haven't you been paying attention AT ALL?

B's future interest -- B's shifting executory interest, to be exact -- will be written out of the document by law, giving A a fee simple absolute instead of a fee subject to condition subsequent.

Ok, let me explain it to you AGAIN. Sigh. It violates the Rule Against Perpetuities because B's interest could vest farther into the future than "a life in being plus 21 years." The "measured life" in being here is A, who could be long dead, dead more than 21 years, when his heirs screw up and start burning bodies. What, make B the "measured life" you say? No, that won't work either, because A's heirs could screw up more than 21 years after B is dead also.

A couple little exceptions you should know about. The transfer is ok if B is the grantor himself. True, B may already be dead more than 21 years when A or his heirs get the urge to turn some corpses to ash, but so long as the grantor was alive when the transfer took place, its fine, thr property will go to B's heirs.

Because -- and honestly, I feel like I have explained this 50 times-- future interests to the grantor NEVER violate the Rule Against Perpetuities, and ALL future interests in defeasible fees, including of course the Possibility of Reverter at work here, are alienable, devisable, and descendible.

And if A and B happen to be charities, then its fine also. The great Common Law may be harsh, but its stewards are not mean.

Erica might disagree. Erica, who sits next to me during the Bar/Bri lectures, and appears to be very smart and together, told me today that when she took Property, during her first year of law school, she cried every day for three weeks. Our Bar/Bri Property lecturer published a book for law students called, "Throw Your Fears Out the Window," and her students put together a sequel named "Throw Yourself Out the Window."

Compared to subjects I studied 17 years ago, like Contracts, my knowledge of Property is pristine -- I've never studied it at all before this Summer. Which may be why I am sitting here conducting his internal monologue with myself, and posting it here, instead of actually working.

I may be losing perspective. You may be too. Let me ask you just one last question, and I want you to think about it carefully: Can You Even Imagine a World Without Hypotheticals?

Wednesday, June 15, 2005

Lloyds of London

Last week I flew to London on a Tuesday night, arrived Wednesday morning around 7.a.m., met with Lloyds insurance people all day, had a festive dinner by the Thames, slept a couple hours, did an early-morning meeting Thursday, and flew home. I thought I was doing pretty well, but reading them over now, my class notes from last Friday morning suck. When I get tired, I start drawing little pictures in the margins of my notebook instead of listening to what people are saying.

Hey, its not that I'm not trying. I'm pretty sure that I was the only business executive on the red-eye to London huddled under my reading light practicing MBE multiple choice questions, stuff like, 'Is it the "Privileges and Immunities" Clause or the "Dormant Commerce" Clause that provides a Constitutional basis to invalidate state laws the unduly burden out-of-state companies?' (by the way, if you know the answer please feel free to comment -- I still haven't looked that one up).

Visiting Lloyds was really great -- kind of a vacation from my vacation from my business. As I mentioned before, my company is spending lots more money every month than it is bringing in, but that is completely to be expected for a less-than-two-year old company that is developing and marketing a brand-new, novel product. The product is a new kind of technology insurance that I dreamed up. Because I had no background whatsoever in insurance, I thought starting a new company to develop and market the product would not be too difficult. oops.

This demonstrates Buy-the-Bar's First Law: What people in areas of expertise about which we know nothing do for a living, always appears to be MUCH EASIER than our own job. How hard can it be to re-attach severed fingers anyway? They give you a really good microscope and a very strong thread. . . You see what I mean. . .

Anyway, I did not know that launching a completely new insurance product from a startup is understood by insurance experts to be impossible even for experienced insurance executives who have years of personal capital to draw upon. But I was correct in my knowledge that Lloyds of London is the place where really difficult insurance problems get solved. If you want to insure against someone claiming your $10 million prize for the a successful private venture into space, or insure your Olympic television coverage in Athens against terrorist disruption, the only place that can get it done is Lloyds. They know risk. So I've been wanting to go in person for a long time, but at the same time putting it off until I was sure I knew enough to know what I was talking about.

And it was great. All the people I met with understood the role of the new product, showed genuine enthusiasm for the business opportunity (they could hardly have ALL been just being polite -- we know how hopeless Brits are at faking enthusiasm) and had practical help to offer. The Lloyds headquarters itself is one of the more beautiful modern buildings I've seen -- it somehow captures the tight-knit community guild feeling -- there are still wooden "boxes" where the underwriters sit and can be approached in person just like in the Loyds of two hundred years ago -- and the metallic, gleaming energy of a high-tech factory floor. (I especially liked the transparent escalators where you can see all the inner workings of the mechanism turning). I like Lloyds alot. I like startups because they take me into unfamiliar worlds -- like Lloyds -- as a participant not a tourist. Its one of those "worthwhile aspects" I was talking about.

Tuesday, June 14, 2005

The Adam Gopnik Insight

Adam Gopnik is one of may favorite writers. He primarily writes essays, and some criticism. His collection, "From Paris to the Moon" was a best-seller, but I liked best the first piece by him I ever read, a memoir in the New Yorker magazine of his analysis by a traditional Freudian, a German from the old world, stern, reticent, deep, oracular.

As time went on, and it became clear that their relationship was near its final end, he finally shared with Mr. Gopnik the closest thing to an answer, a conclusion, that Mr. Gopnik could ever hope to extract from the old man. "After all," he said, "life has many worthwhile aspects." That's it? Worthwhile aspects? Many? Mr. Gopnik's inital reaction was indignance, incredulity, a sense of so much labor for such a small prize.

And yet, if you look at the subsequent career of Adam Gopnik the author, it appears he took the old man's advice to heart in the end. Because his work is brilliant, in that it makes no pretense to be more than it is. It is nothing more, or less, than beautifully written descriptions of the friendships he made among waiters in Paris, the books he's read and the art he's enjoyed, the amusing, graceful thoughts that pass through his mind -- in short, some of life's worthwhile aspects.

Why do I mention this now? because learning the law involves hard work and tedium, conformity to absurd instructions ("Be Sheep! Be Sheep!" our Bar/Bri intructors keep exhorting us), and the same lack of closure that plagued Mr. Gopnik's analysis. You can memorize hundreds of rules and thousands of exceptions, but you still don't really know anything. And yet. And yet. . . it has many worthwhile. . . aspects.

Thursday, June 09, 2005

Applying the Law to the Facts of Russell Crowe's Phone-Throwing

Bar Exams consist mostly of "issue spotting" essay questions. Certain facts are described, and you need to figure out which rules of law may apply to those facts, what possible outcomes the applicable rules lead to, and what likely priority will be given to multiple rules that all apply and might appear to lead to conflicting outcomes.

You can think of law as the place where two different universes come together to communicate. One is the world of phenomena, that messy place we all live in, where human beings engage in every possible form of abuse of one another, and each of us recalls the past, if at all, in radically incompatible ways. It is empty of fixed reference -- it is in fact nothing but a mad flux of appearances continually manifesting and vanishing. But that is reality.

The other universe is the world of law, a world of formal rules that are ideally all-inclusive and self-consistent. A world that offers the stability, predictability, and certainty the world of phenomena lacks. But a universe that cannot exist outside of our imaginations.

Reality and imagination cannot communicate directly with one another. Each must undergo a kind of tempering process in order to be understood in terms of the other.

Judges allow certain allusions to phenomena to become part of a record. These allusions are known as evidence. From this evidence Judges infer a collection of relevant facts. Relevant facts are highly formalized characterizations of phenomena that begin to be acceptible to the imagination.

Meanwhile, the rules are each associated with small collections of facts. The association of a certain localized pattern of facts with a certain rule is known as a "holding" -- perhaps because the rule holds the even more imaginary fact-pattern together.

So now we have rules linked to fact-patterns, on the one hand, and collections of relevant facts, on the other. If the judges have done their job elegantly, today's relevant facts closely match yesterday's patterns impling certain rules -- and it is easy to apply the same rules to the new facts. This results in a new "holding," and the process repeats itself across the generations.

This process is called "applying the law to the facts." Skill at it is tested by the Bar exam, because it is in truth the very essence of being a lawyer.

For example, my morning paper repoted that Russell Crowe was arrested last night at 4:12 a.m. in the lobby of the Mercer Hotel in Soho, and charged with assault. According to the newspaper, he had been attempting to reach his wife in Australia, but after a number of attempts still could not get the telephone in his $3,000 per night suite to work. The night clerk from whom Mr. Crowe requested assistance proved unhelpful. Having experienced the smug, smirking, too-cool-for-thou staff at the Mercer Hotel myself, not to mention the incomperensible long-distance dialing instructions at many hotels around the world, I can well imagine how infuriated Mr. Crowe might have been.

Perhaps not too wisely, Mr. Crowe proceeded to the front lobby to continue his dialogue with the night clerk, carrying with him for demonstration purposes the malfunctioning telephone. While attempting to communicate his view of the matter, Mr. Crowe threw the offending telephone, hitting the clerk in the face.

Anyone studying for the Bar exam would instantly apply to the newspaper account of the facts the rules recounting the necessary elements of the intentional torts of "battery" and "assault." Battery requires an intentional "harmful or unpermitted touching" of "the person." Assault requires putting someone "In apprehension" of an "immediate battery."

What did Mr. Crowe's lawyer have to say about this incident? Three simple declaratives:

"Mr. Crowe threw the telephone at the wall";
"Mr. Crowe never intended to assault anyone"; and
"Mr. Crowe never touched anyone. "

And so we see the elements of Mr. Crowe's legal defense already fully-formed: First, there is no battery, because there was no touching of the night clerk. This defense will almosty certainly fail, because touching someone with a weapon is still considered "touching" in almost all common-law jurisdictions. But perhaps more craftily, Mr. Crowe's lawyer is attempting to establish that Mr. Crowe intended to throw the telephone "at the wall": in other words, he lacked the necessary intent ahead of time to touch the night clerk in an unpermitted manner. Because he did not intend, when he threw the telephone, to hit the night clerk, he did not commit an assault, even if he did commit the battery -- because he had no intent to put the night clerk "in apprehension" of the battery that was about to occur.

About which I have only one thing more to say: Movie Star Suite at the Mercer Hotel: $3,000 per night. Excellent criminal defense lawyer kept on 24-hour retainer by Cinderella Man's distributor: $750 per hour. Throwing a telephone at a smarmy Mercer Hotel staffer: Priceless. For everything else, there's Mastercard.

Friday, June 03, 2005

Paying My Dues

Had my first job interview yesterday, with the Managing Partner at a prestigious national law firm. He had seemed like a reasonable person to open an early dialogue with, because a friend of mine, who is also a great lawyer and the world's leading expert -- and not just in my opinion -- on a specialized legal topic that I am very interested in too, is a Partner there. I would very much like to work with her and learn from her, in a non-equity-partner-track position, with a title like "of counsel", where I would have the freedom to follow her around, and we could pitch business together. I told her so, and she said it was possible, and that she would certainly support it. She made the introduction by conference call.

The MP did most of the talking. He stressed that, since I have never practiced corporate law, I should expect to come in as a junior associate, and expect to work hard on boring stuff for current partners -- he mentioned proofreading and staying till midnight -- for a number of years. He thought I might well be able to learn quickly, but that my spending alot of time in the early years on outside business development activities -- ie staying in touch with the many interesting people I've gotten to know over the last 15 years, stressing to them my relevant non-legal expertise, but seeking related legal business from them -- when I hadn't yet demonstrated competence in the nuts and bolts of document drafting etc., could lead to resentment within the firm. And, even if I proved good at bringing in new business, that alone could not lead to Partnership.

In short, the MP seemed most worried that I would not produce work for a long time that would be up to the firm's deserved reputation for technical excellence -- and that I would nevertheless expect special privileges. Because I am twenty years older than most junior associates, have run my own small businesses for many years, and certainly do not come across as detail-oriented, I recognized his fears about me as legitimate. Still, it was all more than a bit depressing - we focused for over an hour on the many problems my presence might cause their firm. I tried to be humble. I promised I was willing to suffer. Eventually, I did feel the need to point out that if I could not manage my own time from the outset sufficiently to maintain substantial business development activities, then the unique strengths I brought with me would be negated, leaving only the gaps. The conversation was clearly just about over. At that point my friend did mention, casually, almost in passing, that her firm had just pitched a potential new corporate client, in an area where I have real-world experience, and that if I had been there they would have won the account. The MP seemed not to hear.

After I got off the call, I appreciated even more my friend's willingness to stick her neck out for me. But I was feeling guilty too. She might well suffer political damage for having raised the obviously - in retrospect - reckless and radical idea that some eccentric middle-aged never-practicing goofball might be a possible "of Counsel" to her hitherto highly respected firm.

But, in her follow-up note to me, she said that the call had actually gone much better than she had expected.

No more job interviews for a while -- it could demotivate one's bar study. Res Ipsa Loquitur.

Thursday, June 02, 2005

Res Ipsa Loquitur

People hurt other people. Sometimes this hurt breaches a duty one person has to another. And sometimes we don't know for sure whether or not whoever hurt us breached any duty to us. We don't really know what happened. All we know is: we got hurt.

Judges usually require a plaintiff to establish the specific facts behind their hurt - to prove the defendant's breach. But sometimes the victim just don't know. And so the case ends before it even begins.

But judges can in certain special circumstances take the forced ignorance of victims into account. For example, consider a man who is simply walking along a street in the warehouse district, when suddenly a barrel of flour comes flying out of an upper storey window and lands on his head. What the hell? He doesn't have any idea what was going on inside the warehouse in the moments before the barrel flew out the window. A rotten rope? Horseplay?

The judge may forgive the victims ignorance by asking : First, is this the sort of accident that does not normally occur in the absence of negligence by someone? Second, if there is negligence, does this sort of accident normally happen because of negligence by someone in the position of the defendant?

If the answer to both questions is "yes" the judge may let the case go forward, and the jury can decide whether or not there is negligence in fact. This exception to the usual rule is a good example of the law's flexibility in pursuit of fairness.

But what lawyers really like about this doctrine is that it has such a cool name: Res Ipsa Loquitur. One moment, we are young and cocky, walking down the street. The next moment, a barrel of flour lands on our head. The Thing Speaks for Itself.

Wednesday, June 01, 2005

Fee Tail, Fee Simple, and the Famous Rule Against Perpetuities

Here's what I learned my first day.

Land was apparently the main thing people fought over and cared about in England for about 800 years. The Norman invaders and their descendants handed out different kinds of perks to people who helped them seize and keep power -- and the biggest and best perk you could get was some form of control over productive land.

You could be given a piece of land to use for the rest of your life. This was called a "life estate." When you died, a life estate went back ("reverted") to the lord who gave it to you, or to the Crown. So no point even mentioning it in your will; it was not "devisable." But during your lifetime you could sell your life estate to someone else, who would then have use of it for a while -- namely until you died. His right could be called "a life estate for the life of another." But lawyers reject that terminology as too easy for non-lawyers to understand. We call it instead "a life estate pur autre vie."

Sometimes lords wanted to give a grant of land that would be hereditable. Hereditable gifts of land were - and still are - called "fees." I could not resist looking up "fee" in the OED last night. "Fee", from the Old High German "Fehu", originally just meant cattle, as with modern German "Viehe" which still means cattle. Over time Fehu came to also mean money or other means of exchange, and then specifically a hereditable form of wealth in land.

A lord could grant you hereditable land either in "fee tail" or in "fee simple." Fee tail meant that it could only be inherited by your direct lineal descendants, and so on. If your bloodline died out, the land reverted to the lord or the Crown, just like a life estate. The reasoning probably went something like this: If there was no one left alive from your family who could help raise an army and fight for the lord in an emergency, why shouldn't he get the land back so he could dole it out again to a new supporter?

So "fee simple" meant that you got the land with no strings attached, and the right to leave it in your will to anyone you wanted, right? No, of course not. Way too simple. That kind of "undefeasible" grant was the exception, not the rule -- if it ever happened it was called a "Fee Simple Absolute."

Most fee simples put additional tricky limitations on the grant. (Maybe a life estate is not looking like such a bad deal after all). These restrictions fall into three categories.

The first category is "fee simple determinable." If the grant was to you and your heirs "SO LONG AS" you or your heirs raise armies for the lord when asked etc., then it might stay in your family forever. BUT if you ever failed to follow the condition precedent -- the land instantly and automatically reverted to the lord again.

The second category is "fee simple subject to condition subsequent." The land was granted to you "BUT IF" you or your heirs ever became slack and offered no help in wartime, the lord reserved the right to "reenter and retake." This right is also known as the "power of termination." The critical difference betweem this and the "determinable" grant above is that the lord might be lenient and let you keep the land even if you didn't meet your obligations. The power of termination is not automatically used; its up to the lord to weight the individual circumstances. So you'd much rather have a fee simple subject to condition precedent than a fee simple determinable. Even if both are admittedly defeasible.

So what if the lord wants to have someone else "waiting in the wings" to help him out if you and your family should flake out on your feudal obligations to fight for him? No problem. He could write into your gift a "BUT IF" clause that specified that if you or your heirs did something bad, his other friend Robert would get the land instead of you or your heirs. This third category has the catchy name of a "fee simple absolute subject to executory limitation."

Why do we care about any of this? Because these categories are still used in modern real estate transactions? No. Because these categories survive in the law of most states as potentially useable vestigial categories? Not really hardly at all. In fact, students coming to real property with prior practical real estate expertise invariably have a much harder time mastering the feudal categories of "posessory interests in land" than other students -- because the actual law in use today -- everywhere -- is completely different.

I suspect we learn all this for one very good reason:it is a prerequisite to mastering the famous "Rule Against Perpetuities." The Rule Against Perpetuities is a recent, and proud, judicial innovation -- it dates back only four or five hundred years -- that definitively reduced the power of feudal grantors to tie up land indefinitely. the Rule Against Perpetuities puts a strict time-limitation on grantor's power to control certain defeasible fees and their reverters and remainders and executory interests -- the lifetime of some specified person living at the time their will as drawn up plus twenty-one years. This progressive judicial innovation allegedly helped make England the freewheeling capitalist dynamo we all know and love today.

Yes, in order to truly understand how the Rule Against Perpetuities limits defeasible fees in practice, you need to understand which feudal categories of hereditable grant are being invoked. Because the Rule Against Perpetuities is still a critical bulwark of American freedoms, right? No. Actually, most states have gotten rid of it. So why is the Rule Against perpetuities so important for future lawyers to master? Because it is ON THE BAR EXAM. It has always been on the bar exam. And it always will be on the bar exam. Any more questions?