Wednesday, December 31, 2008

Talking Tort, Part 2

In part 1 I introduced the subject of torts and hinted at some potential problems with this area of law. We'll tackle those issues in this post. I'm summarizing information from the wiki on tort reform.

Tort reform deals with revising current tort law with the following ideas in mind.

Compensation Principle
Successful tort lawsuits usually end in monetary rewards. The problem is quantifying how much money the guilty party should pay. How much is a broken leg worth? What is the exact dollar amount needed to offset emotional trauma? If I ruin your reputation, how much would it cost me to fix it?

Punitive Awards and Juries
In addition to compensation for loss, juries sometimes have the right to give punitive awards. Punitive awards are extra punishment for guilty parties that are especially despicable, and the sums can be enormous. This is problematic because victims who engender sympathy (the elderly, kids who are cute, people who can afford nice suits) could potentially receive more "justice".

Compensation Culture
Recession hitting your wallet hard? You should have spent New Years Eve driving around the bar district with your headlights turned off. If you were lucky enough to be hit by a drunk driver with good insurance you'd be rich!

Economic Effects
Frivolous lawsuits and out of control damages have a ripple effect on the economy. Insurance is more expensive. Health care is more expensive. Also, some argue that fear of litigation stagnates innovation. No Dr. House-style mavericks in the real world.

Equality in Treatment
What about injuries where no one is at fault? If I randomly have a tooth knocked out by some natural occurrence, I get my tooth fixed. If you have a tooth knocked out because I can't hit my 5-iron, you get your tooth fixed plus a monetary reward. Is this fair?

Health and Safety
Perhaps the threat of huge penalties will cause the average person to act more responsibly. Does tort law encourage safe behavior?

Tomorrow we'll look at an actual case from the Torts section of Life of a Law Student.

Talking Tort, part 1

What the heck is a tort?

If I understand it correctly, torts are a general set of laws that keep people from screwing each other over. According to this wiki, tort law "addresses, and provides remedies for, civil wrongs not arising out of contractual obligations." Tort law determines whether someone has received a physical, emotional, financial, or other type of injury. If a party has in fact been injured, tort law specifies how to determine who is liable and what penalties are applicable.

The following is a list of the 7 different categories of tort, along with my brief and possibly inaccurate explanations of what each type entail.

Of course you didn't mean to, but you should have known better.

A famous example is the McDonald's hot coffee case. Of course they didn't mean to McBurn that woman, but according to the law they should have warned her that the coffee was hot. Feel free to roll your in eyes in disgust at this silly lawsuit. We'll talk tort reform in part 2.

Private entities have certain responsibilities to the public. For instance, baby formula companies in America make sure their products are actually safe for babies to eat. How do you like that, China?

My memory is hazy, but I think this is why they dragged Mr. Kringle into court in Yes Virginia, There Is a Santa Claus.

Let's say a certain gym provided a helpful web page that compared their facility to others in the area. On this page lots of the information about a particular competitor was inaccurate (in a bad way). The competitor could sue for defamation.

This would be a case of libel. Libel is broadcasted defamation. Slander is spoken.

Just before I left town for the holidays I changed my oil. Being extremely busy those last few days, I forgot to swing by Advance Auto Parts and dump the used oil. When I left town the pan just sat in the back of my truck for a week. Apparently it snowed. When the snow melted all the water mixed with the old oil and turned into this disgusting brown sludge that no one will accept. I've got GALLONS of the stuff. I managed to get most of it into a couple of kitty litter jugs but I still don't know what to do with it. I'm about to just dump it down my kitchen sink. Screw it. There may or may not be a specific law out there prohibiting me from dumping old Castrol GTX down the drain.

But wait! I'm sure 6 quarts of oil would be very bad for the plumbing in my apartment building. Since I'm knowingly damaging something or someone (property, in this case) I would be opening myself up to suit under intentional tort law.

If anyone knows what to do with the sludge send me an email.

Protects businesses from certain kinds of interference.

Laws to promote competition between businesses. The biggie is anti-trust law.

So that covers the basics of tort. Now for a lawyer joke.

Man: How much do you charge for answering three simple questions?
Lawyer: A thousand dollars.
Man: A thousand dollars! Isn't that a little expensive?
Lawyer: Yes it is. Now what's your third question?

If you wanted to figure out why lawyers have such a bad reputation, you could definitely start by looking at torts. Tomorrow we'll get into why torts can be bad, as well as how to remedy them.

Tuesday, December 23, 2008

Excercise 1, Basic

Serrano-Moran v. Grau-Gaztambide, No. 99-1513

Rufino Serrano-Rosado was beaten by four police officers and died in the hospital less than two weeks later. The victim's parents sued the police in federal court. They also sued Dr. Grau-Gaztambide and the hospital for malpractice resulting in death. The malpractice defendants argued that the cases should be tried separately. Plaintiffs argued that they must be tried together because the two defendants would simply blame one another for Serrano-Moran's death.

1. Should these cases be tried separately?

1. Yes

The facts relevant to the two cases are completely separate. Jurisdiction cannot be determined based on possible arguments the defense could make.

McCulloch v. Maryland

I did most of this brief myself. Although I was able to correctly identify the second question in this case, I gave up on figuring out the holding and reasoning for that question. I found a nice brief by someone called CJ at the following URL:, and summarized that material below. You will see a * next to that summary in my attempt to clearly show where my original thoughts begin and end.

On the one hand I'm slightly disappointed I couldn't do this myself. On the other hand, the rest of my brief looks pretty damn good. I wrote almost exactly what CJ wrote for the first half of my brief.

McCulloch v. Maryland, 17 U.S. 316 (1819)

Mr. McCulloch was a cashier at a Baltimore County branch of the Bank of the United States (not just a catchy name, it was a federal bank). He was sued by the state of Maryland because the bank failed to pay state taxes. The law in Maryland required all banks not chartered by the state to pay taxes on each transaction.

1. Is is constitutional for the federal government to incorporate banks?
2. Is it constitutional for state governments to tax federal agencies?

1. Yes
2. *No

1. In order to carry out it's duties the federal government can do anything it wants, as long as it is "necessary and proper". Federally incorporated banks are necessary to generate revenue. As far as I can tell, "proper" just means congruent with the rest of the Constitution.
2. *The federal government is supreme over the state goverment. States do not retain sovereignty over each other. State jurisdiction over the federal government would, in a sense, be the same as jurisdiction over all the other states.

Legal Writing in Plain English

"Some people have a way with words. Other people...uh...oh, uh...not having way."
~Steve Martin, although I'm sort of para-quoting

I'll be working through Legal Writing in Plain English and posting what I learn on The Boom. I have high hopes for this book to really improve my writing. You, gentle reader, should be excited too. In 6 months my posts are going to be so good you'll have an eyegasm every time you read Jay's Legal Boom.

Sunday, December 21, 2008

John Marshall: lucky idiot or evil genius?

Allow me to revisit Marbury v. Madison now that I've had a chance to mull it over.

This decision in this case (Marbury lost) set the precedent for judicial review, which is the idea that the Supreme Court can declare laws to be unconstitutional. We'll debate SCOTUS (Supreme Court of the United States) and it's merits later. For now lets just assume that judicial review is a wonderful and perfect idea, and that it protects the liberties of folks like you and I.

In the Marbury podcast on Life of a Law Student, Neil Wehneman criticizes Chief Justice John Marshall's opinion. Wehneman points out that Marshall incorrectly interprets the Judiciary Act of 1789 before declaring it unconstitutional. According to Wehneman Marshall screwed up, but since we got judicial review out of his error it was actually a good mistake. Hence my "lucky idiot" label.

Lets look at the decision with a little more historical context. Prior to Marbury v. Madison the Federalists were enjoying a nice run. They (mostly) won the battle over ratification of the Constitution, and John Adams later became the 2nd president. However, in the next election the Federalists had their asses handed to them by the Democratic-Republican Party (I know, I thought that was a strange name too). This is why President Adams made so many "midnight appointments". He wanted to stock the judicial system with his people before turning the keys over to the new party of power.

Obviously the Democratic-Republicans, led by new president Thomas Jefferson, didn't want a bunch of Federalists occupying benches across the country. Their solution was to simply not deliver the commissions to people like Mr. Marbury, who in turn sued for a mandamus.

Here is where it gets interesting. Part of the Democratic-Republican movement was a devaluation of the original Constitution. Jefferson felt that subsequent legislation should be seen as overriding the original document. In other words, no judicial review.

In his fight to keep Federalists out of the judicial system, Jefferson inadvertently gave SCOTUS exactly what he was trying to prevent. When Chief Justice Marshall threw out the case, Jefferson won the battle but lost the war.

You know how Lost is great at setting you down one path then throwing you for a huge plot twist in the final flashback scene? Consider this the "Locke was in a wheelchair!" moment of Marbury v. Madison: John Marshall was a big-time Federalist!

I know. Take a moment to catch your breath.

In an alltime-plot twist Marshall was actually Secretary of State under John Adams prior to becoming Chief Justice.

So I'm throwing it out there. Maybe Marshall was in fact an evil genius.

Tuesday, December 16, 2008

Marbury v. Madison

Marbury v. Madison, 5 U.S. 137 (1803)

Towards the end of his term in office President Adams made multiple appointments, including William Marbury to serve as a justice of the peace. The appointments were approved by the Senate, and the commissions were signed and sealed. However, Adams' presidency ended before the appointees were sworn in. The duty fell to new Secretary of State James Madison to actually give the men their appointments. He did not. Marbury and the others sued in hopes of the court serving Madison with a mandamus (court order) forcing him to make the appointments.

1. Does Marbury have a legal right to the commission?
2. If he has such a right, and it has been denied, is there a legal remedy?
3. Is the mandamus Marbury is suing for the correct legal remedy?

1. Yes
2. Yes
3. No

1. The commission was signed by the President and sealed, thus making it a law.
2. There is always a legal remedy for breaking the law.
3. Although a mandamus is the correct legal remedy, issuing a mandamus in this particular case is unconstitutional. The power to issue a mandamus to the Secretary of State would fall under appellate jurisdiction.

The Boom's first buddy-blog

My friend Courtney has a blog called Immune to Caffeine. My first reaction to this news was a weary sigh. Great, yet another "musings of a twenty-something" blog. Just one more thing I have to pretend to care about. Then I remembered that Jay's Legal Boom could be subtitled "musings of a (barely) twenty-something on a (notoriously boring) subject that he doesn't actually understand all that well". I decided her blog was probably not such a bad idea and proceeded to check it out.

And I'm glad I did. It reminded me why I like Courtney so much-her personality is big enough for cyberspace. She makes me laugh. She makes me think. Sometimes she makes me want to punch her in the head. Just kidding. Kind of.

You should check her out:

Monday, December 15, 2008

Do you know what a mandamus is?

Okay, I'll admit it. I was feeling pretty cocky after my first few days studying the law. It just wasn't all that hard. A little light reading and some critical thinking. No problem.

Then I sat down to breeze through Marbury v. Madison.

It sucked. It made absolutely no sense to me. I even downloaded a different copy to make sure I wasn't getting punked. I knew it was going to be bad after the very first paragraph, when I had to ask Amos what the hell a "mandamus" was.

I quit after about 30 minutes. It's going to take me at least a few days to grind this one out.

On the bright side this is exactly why I started learning the law now instead of waiting until I actually got to law school. My gut told me I wasn't ready to read material this dense. Chalk another one up for my gut.

At least I don't have to worry about writing, since I are so good at it.

Sunday, December 14, 2008

Bill of Wrongs?

For the old Sunday Drive we're taking a brief look at the Bill of Rights. A man named Ira Krakow recorded a podcast (available at titled, "Is the Bill of Rights Really Necessary?"

But first a little quiz. How many of the first ten amendments can you name? Don't worry about matching the amendment with the correct number, just name as many basic rights as you can. The wife and I both got three. I'm sure you can beat us. Check the comments for answers.

Krakow ponders the question of the Bill of Rights and cites a Federalist Paper (guess we aren't done with those yet) written by Alexander Hamilton as the main argument against the first ten amendments. Hamilton felt that listing the specific rights of individuals opened the door for the government to take away any and all other rights not specifically listed. In rebuttal Krakow notes that the Soviet Union did not enumerate individual rights in it's constitution, and later legally murdered millions of citizens.

I wonder if the Soviet Union analogy is relevant. Hamilton was no dummy. In fact I've considered referring to him as "The Hammer" because he deserves a nickname befitting his intelligence and testiclitude. The Hammer thought the Constitution alone was enough to reign in the dark side of human nature.

Then again, Ira Krakow sounded pretty damn smart too. This one might be over me head.

Saturday, December 13, 2008

I am Publius, bring it on

Today we look at Federalist Paper No. 51, which was written by either Madison or Alexander Hamilton under the pseudonym "Publius".

No. 51 examines the structure of the federal government, and argues for the importance of balancing power between the divisions. Some of the highlights include the notion that the legislative body is well positioned to trample the executive and judicial. We arrived at a bicameral legislature to limit the power of Congress and encourage parity among the three branches. Publius also concedes that, as a result of all our systems of checks and balances, the federal government might not actually get a whole hell of a lot done.

(You probably want to take a moment to nod in agreement)

Publius goes on to say that gridlock is palatable if it protects us from tyranny. Besides, the really important things that we all agree on should still sail through.

We are now finished with these early documents that supply us with a context for the Constitution. Next up is the Bill of Rights, and then I brief my first case.

Before we move on I have to say that I'm feeling pretty good about being an American. These days it's so easy to be frustrated with the government. It's nice to remember that the founding fathers had a pretty amazing vision for our country, and that America always has the power to change itself.

I want to leave you with a great quote from Federalist No. 51:
"In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself." ~Publius

Christmas CAWC

Friday, December 12, 2008

James Madison was kind of a big deal

I always thought James Madison was just some tiny school in Virginia that showed up in my March Madness bracket every few years-usually next to a number like 14. I also vaguely knew he did something important that may or may not have warranted getting his face on some money.

It turns out James Madison was kind of a big deal, despite the fact that he was only 5'4", 100 pounds. He was the fourth president, considered to be "the father of the constitution", and a big time Federalist.

Following the drafting of the Constitution, the states had to vote on whether or not to ratify it. The Anti-Federalists emerged and wrote a series of essays arguing that the Constitution needed some changes first, especially a bill of rights. They came up with a great name for their papers, the Anti-Federalist papers.

In response the Federalists published their papers to defend the Constitution as currently constructed.

How much these guys actually disagreed I don't know. The Constitution was ratified, but they immediately added a bill of rights. I'm calling it a draw for now.

Why is this important to The Boom? The Constitution comprises the most basic law of the United States. The Federalist Papers give us insight into the intent of the law, which can be just as important as the letter of the law. These writings are still used, albeit controversially, in Supreme Court rulings where intent becomes a major point of debate.

Federalist Paper No. 10 - James Madison

This paper got me fired up about being an American. I even did a fist pump right there in my living room. Madison alludes to our organization of government and explains how it gives us the best chance for true functional liberty.

Madison argues that faction among individuals and groups is actually a wonderful thing. Disagreement and conflict are symptoms of freedom. Therefore we should not try to eliminate faction. However, we can't just let everyone do what they want either. In a direct democracy the minority is very likely to be trampled upon.

The vision of America was that it would find the sweet spot between tyranny and anarchy. The federalist proposal was a strong central government in which power is properly checked and balanced.

And as it turns out Madison did get his face on some money. Sort of. You know how UNC retires way too many jerseys? Ladies and gentlemen, the $5000 bill...

Thursday, December 11, 2008

Angry Farmer's, Whiskey, and America's Big Do-Over

We begin with a little history lesson.

There were three assigned readings for the first episode of Neil Wehnemen's Constitutional Law I podcast. Links to the readings and the mp3 file can be found at

Onto the briefs. I read the Articles of Confederation, and wikis for Shay's Rebellion and The Whiskey Rebellion.

The Articles of Confederation
Do you remember learning about this in 9th grade? I'm ashamed to admit that, although "The Articles of Confederation" did ring a bell, I was unaware that America was actually on it's second constitution. I don't have time to list all the grievances cited in the wikis, but understand that people from all walks of life were irate for most of the 6 or so years under The Articles. In general the central government had very little power compared to the states.

After we whooped the Brits (sorry England, I'm cheeky) in the Revolutinary War, most or all of the states were in debt. This became a major problem when some citizens (notably farmers, who are always angry as hell) either couldn't or wouldn't pay their taxes. A man named Daniel Shay (probably a farmer) is credited with leading a rebellion that exposed just how little power the federal government had, and why that might be a problem. Opponents of The Articles used this opportunity to ratify The Constitution, and give America it's big do-over. Goodbye unicameral legislature, state currency, and general feeling that Canada is just as good as us-and maybe we should even let them join up.

The Whiskey Rebellion was led by a bunch of angry farmers (really, is there any other kind?) who felt they were being unfairly taxed on their whiskey. By this point the federal government had bought up all that war debt and was springing it on the common man in new and exciting ways. The difference is that the new government, which had much more central power, squashed the farmers in a historic beatdown. Ba-da-bing! Over 200 years later The Constituion Part 2 is still a hit. Maybe with the grace of god, and the quick thinking of Nicholas Cage she'll be around for 200 more.

Monday, December 8, 2008

Fire Rainbow, Northern Lights

Thanks Bunny for sending these from Canada to Todd, who sent them to me.