Con Law Disillusionment

My Constitutional Law class did a mock impeachment trial this week. One of my classmates served as the “president,” who sent an invading force of 20,000 soldiers to counter a communist threat in Central America – without a declaration of war from Congress. Another classmate was the “Chief Justice,” who moderated the trial and took the vote at the end. A few people served as special prosecutors and special counsel to the president. The rest of us were senators; we questioned the president and debated whether to throw him out of office. It was heated and feisty and we ended up with just enough votes to fire the president and replace him with the VP.

Yes, I was one who voted the president out of office. I based my decision on his flagrant abuse of power and the other cavalier and unsavory actions he took as described in the fact pattern. For example, he secretly asked the Chief Justice to help him avoid the impeachment trial. (I had D&C 121:39 running through my mind.)

During another Con Law class, we had a guest speaker (a professor from California) who addressed whether politics does or should affect the Supreme Court. He and my professor informally debated their ideas and addressed questions from the class.

I came away from both events with my blood pumping and my hands shaking – apparently I’m somewhat passionate and defensive about my understanding of the Constitution.

I’ve heard from several people (outside the Con Law department) that Constitutional Law is all made up. And I agree with them to a point. It’s as if whoever tells the best story wins, or whoever has politics on their side wins, because the Supreme Court will interpret the case using whatever test or ideas give them the result they want. It’s a little disillusioning.

No, I’m not disparaging the Constitution itself. I know it was inspired. But the modern interpretation of it is often tenuous, forced, or even twisted.

Perhaps that is an overly cynical view, merely the result of mortal beings not living up to my ideals. I do think the Justices are generally trying to do what’s right and stick to the Constitution as written. But I also feel they too easily go beyond the plain language of the document, even to the point where an average person wouldn’t understand or expect the outcome. The most frustrating aspect of law is any appearance of disingenuousness, favoritism, or absurd technicality.

So here’s my little soap box interpretation of Con Law: There are enumerated powers in the Constitution and there is a necessary and proper clause. The laws the government makes, enforces, and interprets should fit within both descriptions. There are conceivably laws that would be within the enumerated powers, but not necessary and proper. And there are laws that are necessary and proper, but outside the scope of the federal government’s enumerated powers. I feel the Venn diagram of those categories is much clearer than the actions of the government imply.

I also think, however, that my interpretation is the harder road. It leaves the pressure for solving problems (beyond a very basic safety net) in the hands of the people. More free and less bureaucratic, but far more risky to individuals, groups, and society.

Okay, I’m back off my soap box. A more pleasant turn of events is that the prevalence of blossoming trees has vastly expanded. The white flowers are a nice addition to the landscape. (Sorry, no pictures.)

Counting

The buzz around campus lately is that William & Mary Law School has jumped in the national rankings from 35th to 24th. My immediate reaction to the news was, “no wonder I feel out of my league.”

My contracts professor has gotten a lot of traction out of the announcement. For example, he congratulated us on being smarter than the students in nine more law schools than we were before the rankings were posted. He also brings up the ranking whenever we are discussing a hypothetical case involving “unsophisticated parties” (a law school term for lower intellectual ability or lack of expertise): “Not everyone goes to a top 24 law school.”

This week encompassed final mock oral arguments by the 1Ls. I’m happy to report I went into this one better prepared and had a better experience than I did for the practice oral argument a couple of weeks ago.  This time we argued in the courtroom, which gave a mock officialness to the atmosphere. The judge (my adjunct professor) even wore a judge’s robe.

Our courtroom is one of the most technologically advanced in the nation, so there are indicator lights, a screen, and several other gadgets on the podium. Plenty for my small, 5’4” frame to hide behind. My writing fellow/TA (who was also a judge) told me it was a good thing I held onto the sides of the podium; otherwise they might not have been able to see me.

Also this week, flowers have finally appeared. The daffodils that line South Henry Street have burst into bloom and there are blossoms on a few of the trees. I say “finally” not because it’s taken them a long time to grow, but because I’ve been expecting it for so long. In my mind, spring is associated with a certain temperature range, and Williamsburg has been in that range since mid-January. It’s been very strange to have spring-like warmth concurrent with persistent (relatively) brown foliage.

But spring is finally here. And I’ve started counting down: four weeks of classes, three finals, two legal practice events, and one final memo.

Some of the daffodils on South Henry Street.

Ambiguous Chicken and the Haunted House Rescission

So much for continuity. I’ve had three weeks of not wanting to write a blog post. I started to write one once or twice. I also jotted down some ideas of what to write about. But deep down I was just tired of school and not in the mood to work at typing anything up.

But in the meantime, some interesting things happened that are worth mentioning:

At the #10 redoubt in Yorktown

Ambiguous Chicken

This is another example of something that looks simple anywhere outside of law school (and the courtroom). The basis of this case was two companies arguing over the definition of chicken. If I was asked to come up with an ambiguous term, I would not have considered “chicken” to be a contender.  It’s amusing to read a case discussing the many meanings of a term most of us would be able to define at age 3.

In case you’re wondering, one company claimed chicken meant, well, any chicken. The other company was arguing that chicken meant (within the chicken selling industry) a young and tender bird, not the old and tough ones the other company shipped to them. The Department of Agriculture, by the way, has at least six classes of chicken (broiler, fryer, roaster, capon, stag, hen, cock…). Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960).

Jamestown Fort

The Haunted House Rescission

Speaking of amusing cases, quite possibly the best opinion I’ve read is from Stambovsky v. Ackley, in which the plaintiff sued to cancel a contract to buy a house after learning the house was widely reputed to be possessed by poltergeists. I suspect the judge had fun writing the opinion: “While I agree . . . the plaintiff hasn’t a ghost of a chance [under a certain legal doctrine], I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission.” The judge also quoted the Ghost in Shakespeare’s Hamlet.

But by far my favorite statement from the judge was, “If the language of the contract is to be construed as broadly as defendant urges to encompass the presence of poltergeists in the house, it cannot be said that she has delivered the premises ‘vacant’ in accordance with her obligation.” 572 N.Y.S.2d 672 (1991).

Monticello

Spring Break

I don’t have time to detail all of Spring Break, but I’m grateful that two circumstances combined to take me to more new sights in a week than I had visited in the previous seven months. One circumstance was, of course, time off from school. The second was the presence of a good friend to go exploring with.

Jamestown Glasshouse

My favorite sights were Monticello (the one-time home of Thomas Jefferson) and the Jamestown Glasshouse (with live glass blowing). I could happily spend another day or two at either location. I also enjoyed driving all over Yorktown, as it was late in the day and we had the place to ourselves (not counting the deer). We spent a lot of time in Jamestown and not enough time in Colonial Williamsburg. And we wore coats all week (because it was cold).

Spring break was a treat. It whetted my appetite for more exploring. I doubt I'll get to do that much in the last seven weeks, of this semester, but Summer Break will be longer (and warmer) than Spring Break...

At the Jamestown Settlement

Distinguishing 1L and Grade School

The event of interest for the 1Ls this week was mock oral argument, meaning we each stood up in front of some “judges” (classmates and adjunct professors) to argue for or against a pretend court motion. I was very nervous during mine, a result of not being as prepared as would have been good for me. My mind (and thus my tongue) went completely blank a few times and I was shaking more than what would be considered a normal amount for everyday life, but I got through it.

The topic we argued was a motion to dismiss for lack of federal subject matter jurisdiction. Which was about as exciting as it sounds. Occasionally, local grade school students are invited to the law school to experience a case in the courtroom. The cases involve things like the three bears’ lawsuit against Goldilocks for breaking and entering, or the three pigs’ lawsuit against the big bad wolf for malicious and wanton destruction. I suppose for law students they feel the need to stick to realism, but it would be more exciting to argue on behalf of, say, the superheros' rights in The Incredibles than whether an imaginary person’s citizenship changed when she moved to Wisconsin.

Law is a little dry sometimes. Maybe that’s why some judges are sarcastic or prosy in their opinions – they’re just trying to liven things up.

Still, overall things are going well here in Williamsburg. The weather is warm, the sun is shining, and spring break is only a week away!

Law School Climatology

Williamsburg is rather lazy about its seasons. Fall slumped into winter without much bluster. Winter loafs around, not willing to work itself into any vigorous storms, and yielding to the storms that do come in a resigned sort of way. The first hints of spring (birds, buds, and moss perking up) are so subtle, it feels like the type of afternoon nap that blends so seamlessly with waking up that you aren’t even sure whether you fell asleep. Maybe when spring is really here it will surprise me and explode into a riot of color. But I don’t think so, somehow. It would just feel out of character.

Law school seems to have the same pattern as the climate, rolling from day to day and week to week in a plodding sort of way, nothing too energetic (with the possible exception of the finals/hurricane season).

We did have a (slightly) more lively event at school this week. A light bulb broke or fizzled out somewhere on the second floor and triggered the fire alarm. So we all stood on the front lawn for 30 minutes while firefighters checked the building. All the students from warm climates were freezing. I (and presumably those from cooler climates) felt refreshed to be outside breathing some fresh air.

The fire alarm ate up the first 15 or 20 minutes of my Property class. My professor says he’s beginning to believe there’s a conspiracy against Property. Class has been canceled three times; twice because of snow and once when he was ill. (No, we don’t just skip those classes; we reschedule them.)

Anyway, spring is coming and I’m feeling ready for a little spice in my life.

Onward and Upward

A week or two ago in Sunday School, our teacher brought up an interesting principle that has, since then, been on my mind. We were discussing the Fall of Adam and Eve and the choice that Eve made to partake of the fruit. She was facing two options, both of which could be considered good. One was to remain in the presence of God in the Garden of Eden. The other was to experience mortality and gain knowledge. Between the two, Eve chose to do the one that moved her forward.

I marvel at Eve’s courage. When I’m faced with a choice, I tend to prefer preserving the status quo, because after all, the status quo is generally a good place to be. But I think there is great opportunity and great power in the principle my Sunday School teacher proposed: if you are faced with a choice between two good things, choose the one that moves you forward.

“And Eve . . . was glad, saying: Were it not for our transgression . . . we never should have known good and evil, and the joy of our redemption . . . And Adam and Eve blessed the name of God.” (Moses 5:11-12)

Non-Conforming Apples

We had another snow day this week. It snowed enough that the plows actually came down our street. And it was cold enough that the neighborhood lakes froze over. It was fun to see the seagulls wandering around on the ice almost as if they were stunned by what had happened.

The snow was light and fluffy, the kind that you could blow off the sidewalk with a leaf blower. We didn’t do that, however, we used my emergency trunk shovel (my upstairs neighbor doesn’t have a shovel). After a few minutes a neighbor from across the street let us borrow his normal sized shovel (which my back appreciated). I loved shoveling the snow. It was refreshing to be out in the cold doing some physical work. I felt so good when we were done that I went for a run.

The weather warmed right back up and melted the snow away over the next two days. There were a few straggler piles this morning, but I think they succumbed to today’s sixty degree weather.

I took advantage of the warm weather yesterday and took my Property book for a walk. I’ve long been a fan of reading and walking; it gives me a way to occupy my mind without having to sit still. I went five miles around the neighborhood. That wasn’t enough to get through all of my Property reading, but it was nice to be outside instead of sitting in my apartment.

My classes have been interesting:

Constitutional Law: I seem to be developing a split personality for this class. We are discussing the constitutional right to privacy, which means talking about abortion and homosexual rights. The lawyer side of me understands both sides of the arguments. The personal side of me approaches the reading with a deeply moral perspective. Sometimes those two sides coincide, sometimes not. It gives me a lot to think about.

Contracts: My favorite question from this class has been, “Are oranges non-conforming apples?” In other words, if someone offers to buy some apples from you and you send them oranges instead, have you breached a contract or have you given them a counter-offer?

To illustrate offers, my professor had us draft an offer on his behalf for agreeing with his wife to get a dog. She wants a dog; he does NOT. The exercise yielded some interesting potential contracts as we tried to think of ways to limit his involvement with the dog while still creating an offer she would actually accept.

Property: This is a passage I read as I was walking my five miles yesterday:

Suppose that T, holding of L by knight service, subinfeudated to the church in frankalmoign or to T1, reserving as service one rose at midsummer. Knight service must still be rendered L, but this subinfeudation seriously devalued L’s incidents of wardship, marriage, relief, and escheat. (Property, 7^th Edition; Dukeminier, Krier, Alexander, and Schill; 2010, p. 189.)

As you can see, I get to learn all sorts of jargon in property. This is one area where legalese has a strong hold. My professor told us that for the unit on estates we should set aside logic and just memorize how the law works, because if you think about it too much, it doesn't make sense.

(Side note: my Property book gets a gold star; it has pictures and comics. Not that every law text should have pictures, of course, but there’s certainly room for creativity in that regard.)

So that's what's going on.

Recommended song of the week: I See Fire sung by Peter Hollens (YouTube it). It has a beautiful, almost desperate resolve to it. And it’s fun to listen to. And Peter Hollens has a good voice. (I also like his version of Shenandoah.)