It is not easy to sum up a 9-month period in a single blog post. Nor do I know exactly what I want to say about the experience of a law school student that I will not touch on in my next post (which is sure to be controversial, and as
un-biased as humanly possible). I was considering writing about the top 10 cases we read, and a short description of why each was so great, and then a list of the 10 worst cases (the most painful to read). This might take a very long time. The fact is, I am planning on composing a follow-up to
Think and Grow Poor: Cultivating a Negative Mental Attitude, otherwise known as my only work of creative non-fiction/memoir, about my experience of traveling to and living in California for 10 months. Ironically, this book, which has the present working title of
Loss of Enjoyment of Life, may cover a period just as short and as packed with emotion. My grades will be released June 8 and then I will begin to know for sure whether this will be the end or not. To be sure, I had a better time in California, working dead-end office jobs and going on pointless interviews and waiting in traffic and never dating anyone but pining for my dermatologist. Clearly, it was much better than these past 9 months, which all too frequently involved reading and re-reading sentences and paragraphs of opinions, escaping a day or two or three later with zero to little recollection when called upon in class to recall a pivotal point of reasoning. I do not think I studied as effectively as I could have.
Believe me, I put in the time. I was not a slacker. My social life was almost laughable. I moved here for school (and with the hopes of practicing and living here for the long run) because it was where I had the most friends--but who could have guessed that 90% of them (those not extremely close, but more near acquaintance, perhaps signaled by a wave in the street) would ignore me as I attempted to reconnect.
Were the classes boring? At first, they were
terribly boring! But a funny thing happened when we finished all of our assignments and entered exam period--I sort of began enjoying thinking about the topics we covered. This is a ridiculously dorky thing to write. But by the end of the year, I could think of a positive thing to say about Civil Procedure, Torts, Criminal Law, Contracts, and Constitutional Law. Property was probably my least favorite class, though ironically I think it may carry more than its fair load in the top 10 best list (and probably the top 10 worst list, too). The book we used was interesting, but the class was maddening. I could review all of the books we used too, but that would be boring. Better to focus on individual cases. Still, look at my last post about the ad
coelum doctrine for proof that I am able to say something nice about even my least favorite class.
But yes, I was not a slacker, but my outlining was not where it needed to be. Outline early, outline often. That is my advice. My outlines were all unmanageably long, particularly spring semester (Con Law-74 pages; Contracts-96 pages; Property-98 pages). Fall semester they were all in the 50-60 page range. This led to a lot of insecurity.
I watched a lot of
Netflix, and I will probably watch too much
Netflix forever or until I get a TV with cable or something. I watched almost everything on my computer, and worked on this computer, and it cost about $500 last August, and it has had its share of word processing malfunctions, but never anything truly serious, and so I have been lucky. I also ate in front of it often and there are probably many little crumbs in the keyboard. It should probably be cleaned, but who knows if I ever will get around to this.
I was not very good about making friends with my classmates. But let it be known that if I didn't suffer from a chemical imbalance or manic depression or bipolar disorder on an ultra-ultra rapid cycle or whatever you want to call it, I am sure I could be a happy and healthy and social individual. I also would have been a more productive law student. I did not know any other classmates specifically suffering from depression as intensely as myself (that I could tell...), but believe me it is an impediment to success when every other day you go to bed praying that you will not have to wake up in the morning and endure another charade of the professor's question-and-answer session or unbelievably dull lecture. It is also an impediment to making friends because depression results in a loss of speech. And while people will generally be nice to quiet people, a person has to carve out a personality. And people will not generally want to surround themselves with people who feel uncomfortable, because their lack of comfort spreads, like an infectious disease. One might be able to say this feeling pervades law school classrooms and that few will be totally impervious to a moment or two of weakness by way of osmosis. But those without any "clinical" hang-ups stand a better chance of success.
Really most of what I would want to say will be included in
Loss of Enjoyment of Life. Let us hope that it will be published. How many unemployed law students turn to literature in their darkest hour? Probably too many, like everything else in this world:
10)
Christian v. Mattell (286 F.3d 1118) (9th Cir. 2003) (Civil Procedure)
The first sentence of this opinion gives a sense of the greatness to come: "It is difficult to imagine that the Barbie doll, so perfect in her sculpture and presentation, and so comfortable in every setting, from "California girl" to "Chief Executive Officer Barbie," could spawn such acrimonious litigation and such egregious conduct on the part of her challenger."
This is a case about Rule 11 sanctions, arguably the most interesting topic in Civil Procedure. In 1990, a young woman at USC created a cheerleader doll, and in 1996, Mattel released "Cool Blue" Barbie, which looked very similar to this doll (a cheerleader, with face paint), and Christian sued Mattel for $2.4 billion and injunctive relief. The attorney she hired, Hicks, is the subject of the opinion:
"At a follow-up counsel meeting required by a local rule, Mattel's counsel attempted to convince Hicks that his complaint was frivolous. During the videotaped meeting...Hicks declined Mattel's invitation to inspect the dolls and, later during the meeting, hurled them in disgust from a conference table."
This was a fun case to read, and Civil Procedure was a more interesting course than it appeared at first blush, because it could also be named "Lawyers behaving badly." Plus I sometimes fear (or fantasize?) that I will become a terrible attorney in the future and bring stupid lawsuits and do things like throw Barbies around an office. The image alone is what ranks this case #10.
9) Monge v. Beebe Rubber Co. (114 N.H. 130, 316 A.2d 549) (1974) (Contracts)
This is a rather famous Contracts case that I think most classes will read. I think it would make a very good movie. It would be a very sad story. It is about a young woman who came to New Hampshire from Costa Rica in 1964 and went to night school 5 nights a week from 7-10. At 11, she would go to work for $2.79/hour on a degreasing machine (whatever that is). Her supervisor at work made passes at her, and she rejected his requests for a date. Then, he demoted her to a sewing machine, which paid $1.99/hour. She was later fired, then reinstated, then called in sick, then found unconscious on the bathroom floor, then called in sick again, then deemed a voluntary quit.
The case is famous for stating this rule of contract law: "In all employment contracts, whether at will or for a definite term, the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two."
The dissent noted that there was a different way of looking at the case, and that the supervisor was not quite the monster the majority opinion made him out to be. This is another reason the story behind this case would make an interesting movie. I thought it was fun to read because it was just so messed up. "Oh, you don't want to go out with me? Well, you're fired."
8) Grutter v. Bollinger (539 U.S. 306) (2003) (Constitutional Law)
Along with Bakke and Gratz, these three cases represent the majority of the Court's jurisprudence on the topic of affirmative action in educational settings. The other two cases rule that affirmative action is unconstitutional--because they implement some type of numbers-based acceptance procedure for minority students. Those dealt with the UC-Davis School of Medicine and University of Michigan's undergraduate institution, respectively. This one deals with University of Michigan's law school--and their method of implementing affirmative action is more holistic, less numbers-based, and is therefore valid. My analysis of this case may be a bit simplistic, but I believe it is accurate. The fun of reading this case primarily turns on its being about law school admissions and being a point of study for law students.
It was also probably the only moment all year that I uttered anything close to a controversial comment during one of our classes. I actually volunteered when asked a question about this case, and the professor asked me, "So basically, if you are a minority, and you apply to law school, and your score is above a certain threshold, and your GPA is above a certain threshold as well, the admissions office can basically accept you automatically, does that sound accurate to you?" I said, "I think it's pretty much done that way." He seemed a bit upset that I said this, and said my view was probably not exactly the way these things happened in real life. What I would have liked to have offered was this: I am not a minority. But, I know I called BLS after I got a 158 on the LSAT and asked, "So, if I apply, and I have a 158 and a 3.6, what are my chances?" They said, "Get a 160." I retook the LSAT and got a 163. I got into BLS with a scholarship. I think everyone with my stats automatically got accepted with a scholarship. Maybe I'm wrong. But minority or not, I think this was pretty much the way the admissions office worked. It would have been interesting to comment on the concept of "minority"--just because I am a white male, can't I still be a minority? Aside from the obvious issue of sexual orientation (which apparently works similar to race, but with less aggressive reforms in terms of remedial legislation), am I still stuck with all of the associated past history of favored treatment? Am I rich? Have I always been picked first for the kickball team? I guess the answer is this: I am just one person, and the vast majority of minorities have suffered from real discrimination that does not apply differently from person to person, but is widespread across an entire class of individuals. It is too bad I will not be born in 2028, which is when O'Connor says affirmative action will no longer be necessary to achieve diversity. Of course there is always the possibility of reincarnation.
7) Indiana Harbor Belt R.R. v. American Cyanamid Co. (916 F.2d 1174) (7th Cir. 1990) (Torts)
I am mainly picking this one because I had to include one case written by Posner. I have to include him because I am proud of him for being such an important figurehead over the past 40 years and for staying based in Chicago. I am surprised he was never appointed to the Supreme Court. Perhaps there was talk of it once. But anyways, this is a case about abnormally dangerous activity, an interesting topic in Torts. There is a train carrying liquid acrylonitrile that stops in Blue Island, and one day, workers notice a leak. This is a great case for Chicago culture as well. Posner cites a case about a hot air balloon landing in a rooftop garden in New York City in 1822. It was apparently a "paradigmatic case for strict liability," but its analogous quality appears elusive and was probably cited just because Posner is so awesome. Then near the end of the opinion, he comes to this conclusion:
"It is no more realistic to propose to reroute the shipment of all hazardous materials around Chicago than it is to propose the relocation of homes adjacent to the Blue Island switching yard to more distant suburbs. It may be less realistic. Brutal though it may seem to say it, the inappropriate use to which land is being put in the Blue Island yard and neighborhood may be, not the transportation of hazardous chemicals, but residential living. The analogy is to building your home between the runways of O'Hare."
6) Commonwealth v. Carroll (194 A.2d 911) (Pennsylvania Supreme Court) (1963) (Criminal Law)
This is a case where the defendant gets charged with first-degree murder and probably doesn't deserve it. It is then followed by a case where a defendant gets second-degree and totally deserves first-degree murder. The differences between the cases are egregious. In this one, the defendant is an Army veteran married to a wife with a schizoid personality disorder. She is made out to be a very annoying person. He then shoots her after an argument where she tells him she won't allow him to take a teaching position at night. They were about to fall sleep, in bed, and he was overtaken with a sudden urge--some form of temporary insanity, one might argue. The opinion seems to make clear that he deserves first-degree murder, even though he appears to have enough adequate justification that it might appear a less morally blameworthy crime. It is then followed by People v. Anderson, which was probably the single most brutal case we read all year long. A much less sympathetic defendant, and yet the court comes out with a lesser charge. The casebook argues that these decisions should be opposite. The casebook was written in part by my Criminal Law professor who was my favorite teacher all year, but he also ended up giving me my worst grade (I hope I don't do worse than C+ in any of my spring semester classes--whose grades come out June 8--19 days from now...). I truly believe I have a good understanding of Criminal Law, my grade notwithstanding. I was working with a diminished capacity. I could not sleep the night before. I fell asleep finally at 4 AM, woke up 3 hours later, trudged my way through the 3 hour exam, and wanted to go home and cry. I know depraved heart, malice aforethought, and felony murder like the back of my hand.
5) Hecht v. Superior Court (16 Cal.App.4th 836) (CA, 1993) (Property)
This was a case about the concept of “personhood” as property. “Personhood,” in this case, means sperm. It is about a guy named William E. Kane, who killed himself at age 48 in a Las Vegas hotel on October 30, 1991. Kane was a divorced attorney with two college-aged children, who had been living with a girlfriend, Deborah Hecht. He left her his sperm in a will so that she could impregnate herself with it. The trial court ruled in favor of his children, who wanted to have the sperm destroyed, apparently because they thought the idea of a child that would never know its father was unconscionable on moral grounds. The court of appeals rules that there is a property interest in sperm, and that the trial court abused its discretion in ordering the sperm destroyed.
The chief appeal of reading this case is for all of the personal pathos it involves, including Kane’s suicide note, and a mysterious betrayal. Once again it is another case that would make a great movie. Kane wrote this letter to his children 9 days before he died:
“I address this to my children, because, although I have only two, Everett and Katy, it may be that Deborah will decide—as I hope she will—to have a child by me after my death. I’ve been assiduously generating frozen sperm samples for that eventuality. If she does, then this letter is for my posthumous offspring, as well, with the thought that I have loved you in my dreams, even though I never got to see you born. If you are receiving this letter, it means that I am dead—whether by my own hand or that of another makes very little difference. I feel that my time has come; and I wanted to leave you with something more than a dead enigma that was your father. I am inordinately proud of who I have been—what I made of me. I’m so proud of that that I would rather take my own life now than be ground into a mediocre existence by my enemies—who, because of my mistakes and bravado have gained the power to finish me.”
“After several pages of childhood memories and family history, the letter stated: ‘So why am I checking out now? Basically, betrayal, over and over again, has made me tired. I’ve picked up some heavyweight enemies along the way—ranging from the Kellys of the world, to crazies with guns, to insurance companies, to the lawyers that have sucked me dry…I don’t want to die as a tired, perhaps defeated and bitter old man. I’d rather end it like I have lived it—on my time, when and where I will, and while my life is still an object of self-sculpture—a personal creation with which I am still proud. In truth, death for me is not the opposite of life; it is a form of life’s punctuation.”
(I am sorry but I have to comment on just watching “Wheel of Fortune” now. On tonight’s episode, Vanna White missed a letter. It was left lit up after the next team spun, and when they tried to answer, she moved to touch the box and reveal the letter. At the end of the show, Pat Sajak said, “You know I have made a lot of mistakes over the years, but you almost never make a mistake. It’s good. It shows that you are a human, not that there was any doubt about that.” And it made me think of the Property case White v. Samsung Electronics America, Inc. (9th Cir. 1993) in which Vanna White successfully sued Samsun g for depicting her as a robot in a commercial that said “Wheel of Fortune 2012, the longest running game show in history.” There is a great opinion by Judge Kozinski but I do not want to get side-tracked. I just thought it was extremely ironic and timely, how it made me think of another case from Property (and also Torts), and how the final puzzle answer was “Daily Blog.” I wonder if what Pat Sajak said was a reference to that case, or if he just meant it matter-of-factly, in that she was superhuman, or alien, not necessarily robot, or if he meant it as a seemingly innocent underhanded reference… .Truly the stars align for me to be writing with the TV on and that comment bearing so closely to the very topic I was writing about, at one of the very rare times that I will write a blog post about legal topics.)
I think that is all we need to say about that.
4) Consolidated Edison Co. of New York, Inc. v. Arroll (Civ. Ct. of City of NY, 322 N.Y.S.2d 420, 1971) (Contracts); New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) (Constitutional Law) (tie)
I live in an old building in Brooklyn. There is no A/C, and there is baseboard heat. My school owns this building and has not made improvements upon it. For our particular building, my roommate and I must pay the electric and gas bills. I didn't think it would be too tough. And it wasn't--until we started using the heat. Bills were about $50/month for electric and about $15/month for gas. (This is not about gas--I have no problems with that bill). My roommate and I split them and it added an extra $33/month onto our rent--not bad (but we don't have cable TV, just occassionally reliable wireless internet). In December, our Con Ed (electric) bill shot up to $148. In January, it reached $242. In February, it went up to $245. In March, it hit $299, and the bill said the previous two bills were just estimates, and the extra cost was to make up for that. Assuming $260/month, my roommate and I added $140/month to our rent. That is not an insignificant amount. I e-mailed Campus Services and asked why the bill was so expensive and they said it just was. I called Con Ed and asked why it was so expensive and they said it was comparable to the previous tenant's bills. Finally, when spring semester started, I got a $12 service charge from Con Ed because I had switched my bank account and forgot to update the routing number for direct-pay--but with a negligible delay of a day or two. My temper reached its peak as I argued with a customer service rep for about a half-hour about why she should remove the $12 charge. She said she couldn't without proof of the dates I changed the routing number, necessitating a trip to Citibank, and a fax--too much work for a $12 fee when one is in law school. The next day we had a snow day and I went to the Con Ed headquarters in downtown Brooklyn and made a second attempt--and the customer service rep's supervisor removed the charge in a matter of minutes, almost no questions asked. The lady I talked to the night before was so rude--she hung up at the end of the call, clearly frustrated by my inability to concede defeat of something so trivial as $12. I was so upset and angry that I went outside to smoke a cigarette around 11:00 at night. I remember it being very quiet, and very clean, and I remember watching the snowflakes fall gently, and heavily.
Enter end of March/beginning of April when my bills started to return to pedestrian levels, and I do not feel like I am stuck with a Hobson's choice of either freezing my ass off or accelerating my own financial ruin, and we read this case about a guy who is disputing his electric bills with Con Ed. You can imagine my excitement. Couldn't I sue Con Ed because their rates were unconscionable? No, but couldn't I sue BLS, because the heating bills are a result of failure to properly maintain the building? Undoubtedly not, also.
This case involved bills for the SUMMER months in 1968, 1969, and 1970. Unlike my situation, these bills greatly exceeded past bills for comparable periods. Arroll argued that the meter readings were wrong, and Con Ed argued there was no dispute on the issue--they were accurate. Arroll sent the President of Con Ed and the billing department a letter with a check for $35.00 explaining the situation and saying that he would offer the $35 as payment but would not pay any more than that. Con Ed deposited the check, but then continued to hound him for more payment. (I won't get into the technical details about "accord and satisfaction" and the language of the letter Arroll--an attorney if I remember correctly--used to create the contract). The court ruled in Arroll's favor, saying that if Con Ed took the money, they accepted the contract that Arroll had created, and he was therefore exempt from the extra bill amounts.
This is a case that might be decided differently today--or more likely would not arise, as Con Ed would know how to deal with it (one assumes). This is also a case that caused my professor to remark, "Don't try this at home!" I haven't bought an air conditioner yet, mainly because I am afraid of the higher bills again.
The other case we didn't really read--it just appeared in the book's notes following a case we studied more closely. But basically, the Supreme Court ruled that NYCTA's rule discriminating against methadone users was valid. No methadone users could become employed by NYCTA, because they wanted to ensure job and passenger safety. Do I personally agree? No. I see where they are coming from saying that there is always a risk of relapse of addiction, and it would be awful if you were on a subway train conducted by a junkie. There could be a major disaster. However, NYCTA is a huge employer, and it basically shows no respect for drug treatment programs by setting this rule and basically saying, "Yeah, we know you are trying to quit using, but, you can't work for us until you are free of methadone." There could be some better way to restrict the types of employment available, and more fine-tuned regulations. But the Court granted deference to NYCTA. Note that I am mentioning these two cases in a tie because they both hold personal value to me--obviously the Con Ed situation was relevant. Here, I am not a methadone user, but I do happen to work at the NYCTA's law department right now, and while the cases in our division would not relate to employment discrimination, it is certainly fun to see the place you work represented in a textbook.
3) Gonzales v. Raich, 545 U.S. 1 (2005) (Constitutional Law)
This is a Commerce Clause case, the Court's most recent decision setting out another example of activity that affects interstate commerce and therefore may be regulated by Congress. There are perhaps a dozen or so famous Commerce Clause cases that every Con Law textbook will cover and every Con Law professor will test on. My big mistake on my Con Law exam was just sort of forgetting to write about it--typically, any Act or statute that Congress passes may be subject to analysis under the Commerce Clause. I was always writing about Equal Protection and just sort of assuming that basically any kind of law is valid under the Commerce Clause. The only two that were not recently were Lopez in 1995 (where the Court said that the Gun-Free School Zone Act was invalid because preventing handguns from entering school grounds did not affect interstate commerce--the school found a gun in a 17-year-old student's locker in Texas) and Morrison in 2000 (where the Court said that the Violence Against Women Act was invalid because preventing gender-based violence does not affect interstate commerce). Wickard is a case from the 1940s that is arguably the most famous Commerce Clause case--a farmer sold off his quota of wheat under a plan enacted as part of the New Deal and then harvested another certain amount of wheat for his family's personal use, rather than buying it at market. He was penalized for doing this, and he wanted the act struck down, but the Court ruled that the behavior he had exhibited would have a substantial effect on interstate commerce if every other farmer also did the same thing. This was called the "aggregation principle." And Wickard and Gonzalez are often talked about in the same breath, because they both concern this aggregation principle, and because one is about wheat, and the other is about, um, weed.
This case is a total showdown between California's Compassionate Use Act and the federal Controlled Substances Act. One of them allows marijuana for medicinal purposes (and it is not exactly difficult, one should understand, to make out a case for why one should be entitled to this prescription) and the other is a total ban on all drugs, including marijuana. This case was decided in 2005 and I moved to L.A. in 2007 and, well, all of the dispensaries were alive and well, so California law must have trumped federal law in this case, right? States are allowed to be laboratories where they can carry out their own experiments to see what makes the most sense for the type of people that live there, right?
Federal authorities arrested a couple California residents who were growing their own marijuana, which is allowed under the Compassionate Use Act, but not allowed by the Controlled Substances Act. Raich and Monson brought this challenge against the Controlled Substances Act. The Court ruled that the act was valid. I guess there was no need to talk about federal pre-emption, and I guess that the Court didn't necessarily need to say the Compassionate Use Act was invalid. What does this case mean practically, then? Like most Commerce Clause cases, most types of congressional legislation are valid. And people still grow their own pot in California. This is one of the greatest cases we read because it illustrates a frustrating aspect about law school studies: you learn the principles behind the decision, but it doesn't necessarily allow for a logical real-world explanation. Also, just the fact that one of the U.S. Constitution's most-famous clauses is now intimately connected to weed is one of the reasons Con Law could be the best first year class, in terms of analyzing provocative hypotheticals, and drawing on one's concept of reasonable American values.
2. Allen v. United States of America, Civ. No. C-79-0515J, C.D. UT, (1984) (Torts)
Another opinion whose opening lines bespeak greatness to come: "In a sense this case began in the mind of a thoughtful resident of Greece named Democritus some twenty-five hundred years ago. In response to a question put two centuries earlier by a compatriot, Thales, concerning the fundamental nature of matter. Democritus suggested the idea of atoms. This case is concerned with atoms, with government, with people, with legal relationships, and with social values.
This case is concerned with what reasonable men in positions of decision-making in the United States government between 1951 and 1963 knew or should have known about the fundamental nature of matter.
It is concerned with the duty, if any, that the United States government had to tell its people, particularly those in proximity to the experiment site, what it knew or should have known about the dangers to them from the government's experiments with nuclear fission conducted above ground in the brushlands of Nevada during those critical years....."
I could quote on and on--it uses the "It is concerned with...." phrase over and over in the introductory section of the opinion, effectively conveying a sense of the stakes to the students reading it. There is this semi-poetic introduction, then there is a section explaining the nature of the action--which is brought by 1,192 named plaintiffs, but is not a class action (and note, after the first year of law school, my concept of a class action is no more clear than it was a year ago). It cites several cases that we had studied (including Parklane Hosiery, from Civil Procedure, which I would rate as the #1 worst case to read if I have the patience to do that list), and then makes the point that, yes, radiation causes leukemia, but it is not always easy to tell if a person has leukemia just because they were exposed to radiation--there are other causes too. It states a general rule of law for this sort of case, and then it moves onto its best part, which is a brief review of the situation of certain representative plaintiffs, the conditions they have exhibited, and the probability of their cancers having been caused by the radiation, and whether or not they should recover. Sometimes, it seems almost arbitrary and unfair that some plaintiffs recover and others do not.
Basically, this was a great case because it was well-written, factually interesting, dramatic (another good subject for a movie), and useful. It cites many cases from Torts that students will study, and it covers a topic that is almost guaranteed to be on a Torts exam (depending on the professor, of course): abnormally-dangerous activity/toxic torts/nuclear radiation. To me, these were some of the most difficult, but also most interesting areas of Torts. I knew it could be tricky, so the night before my Torts exam, I read this case (our copy was a print-out, so perhaps removing it from the cumbersome medium of a 1000 page law book made a psychological difference--see also Monge v. Beebe Rubber Co., also a print-out for us). I was able to relax--this case makes sense, for the most part--get a brief review of some other related concepts, and gain a clearer understanding of a tough topic. It worked out well for me. While I didn't exactly ace the exam, I ended up with a B+. This is nothing to write home about, but I had gotten a C on my midterm in Torts--good for the lowest grade in a class of about 40. When that happened, I wanted to drop out straight away, feeling I could never compete with anyone else. That counted for 20% of our grade, so its possible I may have scored an A- on the exam, to end with a B+ in the course. And it's not a great grade, but I considered that one of my top 3 personal achievments in law school. It is hard to find cases as good as Allen to re-read the night before an exam, but I recommend it as a way to manage anxiety.
1) Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (N.Y. 1929) (Torts)
This is an opinion written by Justice Cardozo about a ride at Coney Island called "The Flopper." It being by Cardozo, I could quote the entire thing and not know where to stop. A young man went on the Flopper and fell down. Cardozo mentions that there would be no point to the ride if there was no risk of falling--this is why the walls and floors on the ride are padded. The plaintiff was on notice that he could fall down. "The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others."
The plaintiff fractured his knee cap. He asserted in his complaint that the ride was dangerous, and not properly equipped to prevent injury. He was thrown with a jerk. Cardozo rules that he cannot prevail in this action, because "Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball."
There are several other quotable portions of this opinion, but I will stop things here, and note that the reason "The Flopper" is the #1 case in the first-year of law school studies is because it is about Assumption of Risk, and anyone choosing to go to law school may be taking a certain risk with their lives. It may seem overly dramatic for me to write this, but it is true: one goes into it with fair warning that it will be graded on a curve, that the reading will be heavy, that only the best grades will get the best jobs, that there are less jobs becase certain schools enroll too many students, that lawyers are parasites of society, that some students won't know how to deal with the stress of it all and will drop out in a manner of economic forfeiture, that some students will chug along pleasantly enough and accrue all of the student loan debt in the world and find the inherent difficulty of squaring life and this profession just too overwhelming, that the social life is a weird hybrid of high school and college and is ultimately more embarassing and less comforting than either because we are supposed to be adults now, right, we are supposed to be responsible individuals that make intelligent choices about our life--enough so that we can advise others on whether their choices are intelligent or not, that the whole mess of it all is a big risk, which one can't say quite as clearly about high school or college, which are overwhelmingly par for the course of education, when law school may seem less expensive than college because it is shorter by a year, but also signals a different period of life that has suddenly become both scary and boring.....In a sense, law school is The Flopper, and if one goes to law school near Coney Island, the metaphor stings that much more. When you complain about law school, people will say, "You wanted to do it." People will say, "You knew what you were getting into." But you didn't, and you can't.
Any ride at any amusement park in the country will now have warning signs that tell you not to ride if you are pregnant, or have a heart condition. The Flopper is thus influential. Law schools do not have warning signs. The warning signs come from outside, impersonal sources (i.e. scamblogs, the subject of the next post) that one has dificulty taking seriously, or believing until it becomes the status quo in one's own personal life.
Professors and upperclass students will talk to 1Ls at the beginning of the semester and give them their "tips" for academic success. The experience is different for everyone. While many elements of the experience will be shared by all, the overall personal impression one walks away with cannot be adequately described by any universal phrase. When people ask me what I thought of it, I say, "It was terrible." Sometimes I will lie and say something is interesting but that is only because I do not want to cause any friction. But when people ask me how I really feel I will be honest. But the problem goes deeper than personal unhappiness. I do feel that if I were in a position where I had a job, that paid decently, where I could manage to pay off my loans and manage to pay rent in New York, and manage all of the other dozen or so "duties" that modern existence imposes on the individual, I could learn to be happy and feel that I hadn't made a mistake in what I chose to do. But the uncertainty of it all is enough to make one crack. But we cannot sue our law school for failing to warn us that attending their institution may not be the best idea for us personally, the same way we cannot sue Coney Island because we got hurt on one of their wilder rides: we assumed the risk, and we should know ourselves better than an institution should know us. But I will say this: the institution has more information than the student at their disposal, and only sharing the good news while ignoring the bad news amounts to deception. In person, those affiliated with the school will offer a moment or two of truth. But in promotional materials, and likely on campus tours and information sessions, the good will be inflated so much that it appears the bad does not exist. And I often wonder how much my fellow students think about the bad, how they convince themselves that things will turn out fine, because honestly I am the only one that seems to worry about it. I don't want to be a Debbie Downer--haven't I said that before?--but in this age, in these times, it seems just about impossible to make a "good decision." If I could offer one piece of advice to high schoolers, it would be this: get an engineering degree in college. Or train to become an IT Professional. They may not be interesting topics relating to the humanities and philosophy that you can B-S your way through, but you will still have fun, and you will not be faced with a world that considers you superfluous and unrealistic in your hopes and dreams.
For the rest of us English majors and creative writing majors, what's done is done, and we have no choice but to keep dreaming, "like boats against the current, born ceaselessly into the past."
Top 10 Worst Cases:
10) Harms v. Sprague (Property) - if it involves mortgages and concurrent ownership, have fun.
9) Semtek Intl Inc. v. Lockheed Martin Corp. (Civil Procedure) - who knows what this means.
8) Erie Railroad v. Tompkins; Guaranty Trust Co. v. York; Byrd v. Blue Ridge Rural Electric Cooperative; Hanna v. Plumer (tie) (Civil Procedure) - these cases are important, and painful.
7) Gonzales v. Carhart (Constitutional Law) - for a gruesome description of a partial birth abortion.
6) People v. Anderson (CA Supreme Court, 1968) (Criminal Law) - for a gruesome crime.
5) Rothko v. Reis (Property) - for one page that is ridiculously complex.
4) Allied Steel and Conveyors, Inc. v. Ford Motor Co. (Contracts) - for difficulty of summing up facts. 3) Morrison v. Olson (Constitutional Law) - for appearing 3 times in casebook, and being annoying.
2) Ultramares Corporation v. Touche (Torts) - almost completely incomprehensible.
1) Parklane Hosiery v. Shore (Civil Procedure) - an important case, and painful.
