Fourth Edition of 1L of a Ride

Assigned as required or recommended reading at law schools throughout the country, 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Year of Law School provides a candid, comprehensive roadmap to both academic and emotional success in law school’s crucial first year.

Legal education continues to evolve and so does this classic work, now in its fourth edition.

Told in an accessible first-person voice, covered topics include: pre-planning, top student fears, the first-year curriculum, the Socratic and case methods of teaching, effective class participation, the top habits of successful students, essential study techniques, legal research and writing, exam strategies, maintaining well-being, and much more.

Combines comments from hundreds of law students, empirical research, and authentic samples of signature documents from the 1L experience, including exam questions, Socratic dialogue, and student case-briefs, class notes, and course outlines.

McClurg taught at six different law schools and received numerous awards for both teaching and research.

1L of a Ride Number One Bestseller … in Jurisprudence?

Karl Llewellyn, Roscoe Pound, Ronald Dworkin … McClurg?

And you thought 1L of a Ride was simply a helpful law school prep book, but it’s the number #1 Best Seller on Amazon in “Jurisprudence.”

Yale, Chicago, Harvard, I’ll be waiting for your calls.

The Eminent Domain Power Explained in a Child’s Drawing

“Eminent domain” is the power of federal and state governments to “take” private property for public use. In 1879, the U.S. Supreme Court held that the power “requires no constitutional recognition” because it is an inherent power of sovereign governments. But governments can’t just take your property without paying for it. The Fifth Amendment to the United States Constitution provides that no private property can be taken for “without just compensation.” Here’s a good history of it.

The Fifth Amendment eminent domain clause is often called “the taking clause,” for obvious reasons. While it only applies to federal actions, all states provide for the power of eminent domain in legislation and/or their state constitutions.

Through the years, lawyers and judges have spent untold hours litigating thousands of eminent domain cases. Many legal treatises addressing the doctrine exist, including the definitive Nichols on Eminent Domain.

But leave it a child to unravel this complex doctrine in a single illustration. This comes from the daughter of two former law students of mine, who gave me permission to post it. I love the expressions on the characters’ faces. Even the getaway horse looks slightly nefarious. And the constable’s words capture the doctrine beautifully: “Hold it right there! I have the right to borrow your horse! If I injure it I will pay a fair price for it. Hurry please! Before that escapee gets away!”

Experts Predict the Job Market in 20 Legal Specialties

Law students spend too much time reading cases and too little time thinking or learning about what kind of legal job would be the best fit for them. In the cover story for the Fall 2021 issue of The National Jurist Magazine, I and my co-authors of Law Jobs: The Complete Guide (West Academic Publishing 2019) seek to predict the job market in 20 legal specialties.

Read 20 Hottest Law Jobs for the Next Decade

Worthwhile reading for all law students. But it’s not enough. Your goal in choosing a legal career isn’t just to find a job, but find one that fits your values, personality, and overall goals in life. Is money the most important thing to you? Autonomy? Work-life balance? In more than six hundred pages, Law Jobs covers in detail the pros and cons of every major legal career type. Only by knowing these, will you be in a position to find your dream job. Check it out.

Meanwhile, enjoy reading our predictions for twenty legal specialties for the next decade!

Man Shows Up for Divorce Hearing Bare-Chested and in a Bathing Suit

An important rule for young lawyers to know is that it’s essential to counsel clients to wear appropriate attire to court hearings.

Sometimes clients will come to court, for example, without wearing a suit or tie, but only in Zoom land, and possibly Florida, would a client show up bare-chested and wearing only a bathing suit.

A Florida judge friend received an abject apology from an attorney after her client “showed up” for his final divorce hearing (via Zoom) so attired. The lawyer assured the judge that they always go over with clients the appropriate attire for court hearings.

To her credit, the judge took it all in stride, responding to the attorney with this email (names omitted). The bolded part is pretty funny:

Ms. [deleted]:

I appreciate your emailed note, apologizing that your client was not properly attired for his Zoom dissolution of marriage hearing. Please be assured that I am entirely confident that you advise clients what to wear for their dissolution of marriage hearings. I am aware that some clients, especially those under stress in family law cases, simply do not hear or register the instructions.

Of course, given Mr. [deleted]’s attire (swim trunks, bare chest, and – I can’t remember which – either flip flops or bare feet) and location (beach), I’m not sure I would classify him as terribly stressed….

Have a good weekend!

[Judge ——-]

Hey, it is Florida, after all.

Essential Law School Glossary for 1Ls

One of the steepest early challenges new law students face is having to learn an entire new vocabulary. In the old days, all law students bought the hardcover version of Black’s Law Dictionary, 1759 pages of definitions beginning with “A,” our favorite hypothetical law school actor (as in A sues B), and ending with “zygote intrafallopian transfer.” Today, students are more likely to buy the paperback version or just look up words on the internet.

Below is a glossary focused on the basic legal and law school terminology that all prelaw and first-year students will want to know. No attempt is made to explain the law. If you have insatiable desire for knowledge about doctrines like “adverse possession” or “res ipsa loquitur” before arriving at law school, Google “Support Groups for Crazed Prelaw Students.”

ABA See American Bar Association.

Affirm A disposition or outcome of an appellate court proceeding in which the appellate court agrees with or “affirms” the lower court’s decision in the case. See also Reverse.

American Bar Association (ABA) The national professional organization of lawyers with roughly 400,000 members (membership is voluntary). The ABA is responsible for accrediting law schools pursuant to uniform standards. When people talk about “accredited” or “unaccredited” law schools, they are referring to ABA-accreditation. The organization engages in many other activities, including promulgating the body of ethical rules governing lawyers, rating federal judicial nominees, and sponsoring continuing legal education programs.

ADR See Alternative Dispute Resolution.

Alternative Dispute Resolution (ADR) A broad term referring to means of resolving legal disputes that do not involve traditional trials, such as mediation and arbitration. As more and more court systems and contracts mandate that the parties to disputes participate in mediation or arbitration, ADR courses are becoming more prominent in law schools.

Answer The defendant’s written response to a lawsuit. The answer responds to the allegatios in the plaintiff’s complaint and raises any defenses the defendant might have, as well as any counterclaims that might exist against the plaintiff. See also Complaint.

ALWD Manual A book compiled by the Association of Legal Writing Directors setting forth rules on how to cite to legal authority in written documents. The ALWD Manual competes with the much more widely used Bluebook. See also Bluebook, Citation Style.

Appeal The proceeding initiated by the loser in a lawsuit to have the case reviewed by a higher court. To bring an appeal, the party must identify a particular error or errors alleged to have occurred in the lower court proceedings. Because of the case method, law students spend most of their time studying appeals rather than trials. See also Case Method.

Appellant The party who files an appeal after receiving an adverse decision in a lower court. See also Appellee.

Appellate Brief A document submitted to an appellate court arguing the client’s position on appeal. Most first-year students write an appellate brief in the second semester of their Legal Research and Writing course, and students who participate in moot court will write additional briefs in their 2L and 3L years. The appellate brief-writing assignment is discussed in Chapter 18.

Appellate Court A court that hears appeals of lower court decisions. There are two types of appellate courts: intermediate appellate courts, which are sandwiched between trial courts and the supreme court, and the supreme courts themselves (one for each state and the U.S. Supreme Court for the federal system).

Appellee The party responding to the appellant’s appeal. While the appellant is arguing that an error was made in the lower court, the appellee is usually arguing that the lower court decision was correct and should be affirmed by the appellate court. See also Appellant.

Associate The entry-level position for a law graduate at a private law firm. See also Partner.

Authority A source of law that supports an assertion in a legal argument. Legal authority is divided into two basic categories: primary (principally judicial opinions and statutes) and secondary (treatises, law review articles, etc.). Courts are required to follow primary authority in making decisions. Secondary authority is not binding on courts, although it may be very persuasive.

Bar, The 1 Generally, a state association of lawyers. Each state has a bar to which all licensed attorneys are members. After a person takes and passes the state bar exam, they are admitted to the state’s bar. 2 A term used to refer to the legal profession as a whole, as in all lawyers are members of “the bar,” or portions thereof, such as the “personal injury bar” or “criminal defense bar.” 3 A short-hand way to refer to the state bar examination, as in: “What are you going to do now that you’ve graduated law school?” “Study for the bar, what else?”

Bar Exam The exam that law school graduates must take and pass to become licensed to practice law in a particular state. A rapidly growing majority of states have now adopted the Uniform Bar Exam, which has three components: the Multistate Bar Examination (MBE), a one day exam consisting of the 200 hardest multiple-choice questions ever written covering Civil Procedure, Contracts, Constitutional Law, Criminal Law and Procedure, Evidence, Real Property, and Torts (most of these are first-year subjects); the Multistate Essay Exam (MEE), a half-day exam consisting of six thirty-minute essay questions, each testing a different subject ; and (3) the Multistate Performance Test (MPT), which is designed to test lawyering skills, such as the ability to analyze a legal problem, rather than knowledge of substantive law. Most states also require an exam on ethical rules, taken separately from the main bar exam, called the Multistate Professional Responsibility Exam (MPRE). State bar exams are given in February for December grads and in July for May grads, which includes most students.

Bar Review An expensive course lasting six or seven weeks offered by several competing companies (e.g., BarBri, Kaplan, Themis) that most law school graduates participate in immediately after graduation in preparation to take the state bar examination.

Barristers’ Ball The annual formal or semiformal social event for the student body sponsored by the Student Government Association that usually includes cocktails, dinner, and dancing. Also called “the law school prom.”

Blackacre/Whiteacre The eternal dwelling places of legal actors in first-year Property courses. Blackacre and Whiteacre are fictional parcels of land often used by professors for in-class hypotheticals or on exams.

Black Law Students Association (BLSA) Usually referred to by its acronym, pronounced “Balsa,” the national organization of African-American law students that has chapters at most U.S. law schools. Similar organizations exist for Hispanic, Asian, and other law student groups. See also Student Organizations.

Black-Letter Law The established rules and doctrines in any given subject area of law.

Black’s Law Dictionary The most widely used legal dictionary.

Bluebook 1 The uniform guide to citation style in legal writing taught at most law schools. The Bluebook is described in Chapter 18. See also ALWD Manual, Citation style. 2 Those classic booklets of blank, lined paper with blue covers that students who handwrite exams are required to use in answering essay questions, dwindling in usage as most schools require exams be taken on computers.

Bluebooking The process of checking and correcting legal citations to conform to the Bluebook. See also Bluebook, Citation Style.

Book Brief or Book-Briefing A technique used by law students who choose not to invest the time necessary to prepare independent case briefs to capture the essential components (e.g., facts, holding, reasoning) of a judicial opinion assigned for class reading. Book-briefing involves using the margins of the casebook and various colored highlighters to brief the case in the book rather than creating a separate case brief. Case briefing is covered in Chapter 11.

Burden of Proof Simplified, a plaintiff in a civil action bears the burden of proving each element of her claims by a “preponderance of the evidence” or “more likely than not” standard, while the defendant bears a similar burden as to the elements of any defenses he raises. In criminal cases, the government has the burden of proving the defendant guilty “beyond a reasonable doubt.” Criminal defendants have no burden to prove they are innocent, but do have a burden to prove the elements of certain defenses.

CALI Acronym for “Computer-Assisted Legal Instruction.” CALI is a non-profit consortium of law professors providing free, online practice questions called “CALI exercises” to law students in most law school subjects. Many law students work “CALIs” throughout the semester, and especially before exams, to help master the material they are learning.

CALI Award See Top Paper Award.

Callback Interview The third phase in the application process for a job at a law firm, the first two being sending in a resume and sitting for the first interview, which is often held at the law school. Callback interviews generally are in-depth and lengthy, and can involve meeting all or many of the firm’s attorneys at the law firm’s offices. Receiving a callback interview is a good sign that the student is being seriously considered for the position. See also On-Campus Interview.

Case See Judicial Opinion.

Case Law See Judicial Opinion.

Case Brief A short summary of the key aspects of a judicial opinion, including the facts, procedural history, holding, and reasoning. Case-briefing is covered in Chapter 11.

Case Comment A student-written law review article, also called a Case Note, approximately 10–15 pages in length analyzing a recent noteworthy judicial opinion. Students who compete for membership on the law review will often be required to write a case comment as part of the law review’s write-on competition. See also Law Review, Write-On Competition.

Case Method The law school teaching methodology by which students learn to analyze law from reading appellate judicial opinions collected and organized into casebooks by subject matter, as distinguished from reading textbooks that explain the law in an expository fashion. The origin of the case method is attributed to Christopher Langdell, a former Harvard Law School dean. The case method works hand in hand with the Socratic method. The case method is explained in Chapter 7. See also Casebook, Socratic Method.

Casebook The thick, heavy, and expensive books you will be lugging around and poring over day and night. A casebook is a compilation of appellate judicial opinions in a particular subject matter designed to work with the case and Socratic methods of law school teaching. See also Case Method, Socratic Method.

Cause of Action See Claim.

Cert or Certiorari See Writ of Certiorari.

Circuit Court of Appeal See U.S. Circuit Court of Appeal.

Citation See Citation Style.

Citation Style All written attributions to legal authority (e.g., judicial opinions, statutes, treatises) must adhere to a uniform citation style that is most commonly derived from the Bluebook, but which may also come from the competing ALWD Manual. Citation style is designed to inform readers how to find the source (by giving, for example, the volume, page number, and date) and also to ensure the credibility of the cited source. Most assertions in legal writing require cited authority to back them up. Citation style generally is taught in first-year Legal Research and Writing courses. See also ALWD Manual, Authority, Bluebook.

Civil Law Legal System A type of legal system followed in large portions of the world such as Europe and Latin America, but not in the United States. In civil law systems, the primary source of law comes from “codes,” which are organized books of statutes written by legislatures. In common law systems, such as the United States, the primary source of law is case law or judicial precedent, although that is changing as common law systems continue to place greater emphasis on legislation and regulatory rules. See also Common Law Legal System.

Civ Pro See Civil Procedure.

Civil Procedure Required first-year course covering the rules that govern the conduct of civil (i.e., non-criminal) lawsuits, primarily the Federal Rules of Civil Procedure. The course is commonly referred to by students as “Civ Pro.” Civil Procedure is described in Chapter 5.

Claim Any assertion of law and facts that may entitle a party in a lawsuit to a legal remedy (such as money, property, or an injunction). Examples include claims alleging breach of contract or that the defendant’s negligence caused injury to the plaintiff.

CLE See Continuing Legal Education.

Clerkship See Judicial Law Clerk and Summer Clerkship.

Clinic See Legal Clinic.

Closed or Open Book Exam Law school exams may be either open book or closed book or somewhere in between. Some professors allow students to bring in any materials they wish (e.g., notes, outlines, commercial study aids) to an exam (complete open book). Some professors do not allow any outside materials (closed book). Many professors follow an in-between approach where students are permitted to bring in only certain specified materials, such as the Federal Rules of Civil Procedure for a Civ Pro exam.

Common Law See Common Law Legal System.

Common Law Legal System A legal system in which the primary source of law is judge-made law; that is, law written and developed by judges in judicial opinions. The United States operates under a common law legal system, whereas most countries follow a civil law legal system, in which law comes primarily from books of statutes known as “codes.” Students spend most of their first year studying common law. In upper-level years, students take several courses focusing on statutes, but even in those courses, students usually study judicial opinions interpreting the statutes. See also Civil Law Legal System.

Complaint Document that a plaintiff files with a court to commence a lawsuit. The complaint outlines the plaintiff’s claims and the basic factual allegations supporting the claims. See also Answer, Claim.

Computerized Legal Research Legal research used to be conducted exclusively in thick, musty books, but most modern legal research is done using computer databases. Several of these exist, but two heavyweights dominate the market: LexisNexis and Westlaw. Attorneys must pay considerable sums to use these subscription-based services. Law schools pay institutional bulk rates so that students and professors can use the services without payment. New students immediately become familiar with LexisNexis and Westlaw through their on-campus training and marketing efforts. The latter will result in your consuming a lot of free pizza and acquiring numerous trinkets bearing corporate logos (T-shirts, cups, pens, etc.).

Con Law See Constitutional Law.

Concurrence or Concurring Opinion See Judicial Opinion.

Constitutional Law Known to students as “Con Law,” a course that focuses on judicial interpretations of the U.S. Constitution by the U.S. Supreme Court. Con Law is a required course at most schools, and a required first-year course at approximately two-thirds of law schools.

Continuing Legal Education (CLE) Educational courses usually lasting one day or part of a day that are intended to keep lawyers up-to-date on the law. Most states require lawyers to earn a minimum number of CLE hours each year to maintain their licenses. Many “CLEs,” as they are called, are held at law schools, where students may be permitted to attend without payment.

Contracts Required first-year course that covers the law of contracts, including the elements of a valid contract, remedies for breach of contract, and defenses to contract enforcement. Contracts is described in Chapter 5.

Course Outline Summary in an outline format of the legal rules covered in a specific course. Most first-year students prepare course outlines for each course. Course outlines are covered in Chapter 13.

Criminal Law Required first-year course that covers substantive criminal law, including the elements of criminal offenses and defenses, sentencing, and the policies behind the administration of the criminal justice system. Criminal Law is described in Chapter 5.

Damages The monetary remedy sought by the plaintiff in a civil lawsuit. The most common type of money damages are intended to compensate the plaintiff for harm caused by the defendant. Punitive damages, which are controversial and uncommon in other nations, may be added in cases where the defendant’s conduct was particularly egregious for the purposes of punishing the defendant and deterring similar wrongful conduct.

Dissenting Opinion See Judicial Opinion.

E & E See Examples and Explanations.

Elements The components that comprise a civil claim (e.g., breach of contract) or a criminal offense (e.g., burglary), which the plaintiff or, in a criminal case, the government must prove to establish the validity of the case. First-year students must learn and are tested on the elements of dozens of claims, crimes, and defenses.

Emanuel Law Outlines A long-running brand of commercial study aid that provides concise explanations of the law in an outline format, and which is available for most traditional law school courses. See also Study Aids.

Examples & Explanations Called “E & Es” by students, a brand of commercial study aid that provides succinct descriptions of the law, followed by problem examples and analyses of the examples. E & Es are one of the most popular study aid brands, in large part because they require students to apply the same kinds of problem-solving skills required in law school classes and on exams. See also Study Aids.

Externship A for-credit student placement with a government agency, such as a prosecuting attorney’s office or public defender’s office, or a court for a semester, during which the student learns under the supervision of experienced lawyers.

Fact-Finder See Trial Court.

Flashcards A short-hand title for the “Law in a Flash” series of law student study aids. Available for a variety of law school subjects, flashcards have questions on the front and answers on the back. See also Study Aids.

Gilbert Law Summaries Referred to as “Gilberts,” one of the longest-running brands of commercial study aids, which succinctly explain the law in different subject areas. See also Study Aids.

Grade Normalization See Mandatory Curve.

Holding The primary point of a court’s ruling in a case. For many cases, the “holding of the case” will be synonymous with the “rule of the case.” One of the most common questions professors ask in using the Socratic method is, “What did the court hold?”

Hornbook Distinctive green single-volume treatises on the law of a particular subject, published by West Academic Publishing. In earlier days, hornbooks were commonly relied on as student study aids, but modern students purchase less in-depth, less-expensive study aids. Traditional hornbooks are viewed as much more authoritative than other types of study aids. For example, courts frequently cite hornbooks in their opinions, but would not be caught dead citing other types of law school study aids. See also Study Aids.

Hypo See Hypothetical.

Hypothetical Law professors’ favorite teaching tool, “hypos” consist of a short, usually fictitious set of facts described by a professor in class that requires students to apply the rules they are learning to solve legal problems. Depending on the professor, hypotheticals can be outlandish, entertaining, and thought-provoking. Students often discuss and ponder hypos outside of class with their fellow students and even at home with their loved ones.

IRAC A mnemonic that stands for “Issue, Rule, Analysis, Conclusion,” IRAC is often taught to students as the standard structure for analyzing a legal problem in a written format. A variety of more refined spin-offs exist (such as “CREAC,” which stands for “Conclusion, Rule, Explanation, Analysis, Conclusion”) that are used as formats in legal writing courses for composing the law office memoranda and appellate brief. IRAC is discussed in Chapter 16.

J.D. See Juris Doctor.

Judge Benjamin Cardozo A U.S. Circuit Court of Appeals judge and later U.S. Supreme Court Justice known for his keen intellect and excellent writing skills, Cardozo penned many famous, widely studied judicial opinions, including, in Torts, one of the most famous and memorable cases in American jurisprudential history: Palsgraf v. Long Island Railroad Co.

Judge Hand’s Formula In U.S. v. Carroll Towing Co., a famous case involving a barge that broke free and caused damage, the famous Judge Learned Hand set forth a famous algebraic economic cost-benefit formula for determining whether injury-causing conduct was reasonable or unreasonable. If reasonable, the defendant is off the hook. If unreasonable, the defendant is liable for negligence and must pay damages. The formula is B < P x L. B stands for the burden of avoiding a risk of harm, P is the probability that the risk will actually cause harm, and L stands for the severity of the harm if it occurs. The formula states that if the burden of avoiding the harm is less than the probability of the harm occurring multiplied by the severity of the potential harm, the conduct is unreasonable (i.e., negligent). Conversely, if the burden of avoiding the risk outweighs the probability times the severity of harm, the conduct is reasonable (i.e., non-negligent). See also Learned Hand.

Judicial Law Clerk An assistant to a judge who helps with legal research, order- and opinion-writing, and other matters. “Clerkships,” as they are known, are prestigious, coveted positions that many top law students seek to obtain. Clerkships are available at all levels of the state and federal judicial system, with federal clerkships being considered the most prestigious. Most clerkships last one or two years, although some judges hire permanent law clerks.

Judicial Opinion The integral component of the case method of legal study, judicial opinions issued by appellate courts are the focal point of a law student’s studies. A judicial opinion is a court’s written judgment in a case. It generally contains a review of the facts, the procedural history of the lawsuit (i.e., an explanation of the previous proceedings in the case), a statement of the applicable law, the court’s reasoning applying that law to the facts of the case, and the final outcome. If judges on an appellate court disagree, the resolution of the case may comprise more than one opinion: the “majority opinion” (the legally binding opinion endorsed by a majority of the judges who heard the case); a “concurring opinion” (written by a judge who agrees with the outcome of the case, but not with the reasoning of the majority); and a “dissenting opinion” (written by a judge who disagrees with the majority’s reasoning and result).

Judicial Precedent Previously issued judicial opinions that are relevant to the case at hand. Under the U.S. common law legal system, judicial precedent can be binding in deciding a current case depending on the similarity of the cases and the court which decided the previous case. For example, decisions of the U.S. Supreme Court constitute binding precedent on all other courts of the land. See also Common Law Legal System, Judicial Opinion.

Juris Doctor or J.D. The professional degree a law student receives upon graduating from law school.

Justice, Supreme Court Any judge who serves on a state supreme court or the U.S. Supreme Court. Judges who serve on lower courts are called “judges,” not justices.

Law Clerk See Judicial Law Clerk and Summer Clerkship.

Law Journal See Law Review.

Law Office Memorandum The major assignment in first-semester Legal Research and Writing courses. “The memo,” as it’s called, is a 5–15 page document written to a fictitious law firm partner explaining the law applicable to a client’s or potential client’s legal issues. Most schools divide the memo assignment into two parts: the “closed universe” memo and the “open universe” memo. For the former, the instructor provides students with the necessary research materials (e.g., judicial opinions, statutes), while the latter requires the students to conduct their own research. The memo assignments are described in Chapter 18.

Law Review A student-run journal that publishes scholarly legal articles written by law professors, judges, practitioners, and law students. Membership on the law review is one of law school’s highest honors. Students usually become eligible to participate on law review through a write-on competition held in the summer after their first year. Law review is discussed in Chapter 24. See also Write-on Competition.

Learned Hand An oft-quoted judge with a great name (his full name was Billings Learned Hand) who sat on the U.S. Court of Appeals for the Second Circuit, famous among law students mostly for his algebraic formula for determining when conduct is negligent under tort law. See also Judge Hand’s Formula.

Legal Authority See Authority.

Legal Clinic For-credit, limited-enrollment courses that allow upper-level students to represent real clients, usually low-income individuals or non-profit public-interest organizations, under the direct supervision of experienced attorney instructors. Some clinics are general in nature, handling a variety of different cases, while others are specialized. Depending on the law school, students may find clinics in tax law, elder law, immigration law, family law, and other areas.

Legal Research and Writing Required first-year course, which travels under a variety of names from school to school, in which students are taught legal research and written and oral communication skills. Legal Research and Writing courses are covered in Chapter 18.

Legalese Catch-all word describing all the new legal terminology you will be learning and sharing with your friends and family, much to their boredom or utter confusion.

Legalines A long-running brand of study aid offering condensed case briefs and black-letter legal principles keyed to the most popular casebooks in most core law school courses. See also Study Aids.

LexisNexis See Computerized Legal Research.

LexisNexis Web Courses  Online course sites established by professors and operated by LexisNexis using the Blackboard platform. See also TWEN.

Litigation The process of bringing and carrying on a lawsuit. When a law student or lawyer says they do or want to do “litigation” as a career, they are talking about filing and defending lawsuits. Contrary to popular belief, most lawyers do not practice litigation. Rather, they engage in what is called “transactional law,” which involves handling business transactions. See also Transactional Law.

LSAC Acronym for the “Law School Admission Council,” called “L-SACK,” is the non-profit organization that provides services to law schools and prospective law students pertaining to law school admissions. Your first dealings with legal education will be through the LSAC, which administers the LSAT and processes applications for law schools. See also LSAT.

LSAT Acronym for the “Law School Admission Test,” the challenging standardized test required for law school admission. See also LSAC.

Majority Opinion See Judicial Opinion.

Mandatory Curve Another term for a grade normalization policy. Most law schools have some form of grade normalization policy requiring or recommending to professors that grades fall either into specified ranges on a percentage basis or fit within a specified mean or median.

MBE See Bar Exam.

MEE See Bar Exam

Memo, The See Law Office Memorandum.

Majority Opinion See Judicial Opinion.

Mock Trial A co-curricular activity in which student teams participate in simulated trials, often as part of a competition, either within the school or among several schools. The students act as trial lawyers, making opening statements, examining and cross-examining witnesses, admitting documentary evidence, making objections, and delivering closing arguments.

Moot Court A co-curricular activity in which student teams participate in simulated appellate court proceedings, including analyzing an appellate record, writing an appellate brief, and presenting an oral argument in front of panels of judges. Some schools have a first-year intramural moot court competition as part of their Legal Research and Writing program. Upper-level students who participate in moot court compete in regional or national competitions against other law schools. Moot court is described in Chapter 24.

MPRE See Bar Exam.

MPT See Bar Exam.

Multistate Bar Exam (MBE) See Bar Exam.

Multistate Performance Test (MPT) See Bar Exam.

Multistate Professional Responsibility Exam (MPRE) A two-hour, sixty-question multiple-choice exam, held separately from the regular bar exam, that is required for bar admission in forty-six states. The exam, known by its acronym, tests knowledge of the rules of professional responsibility (also called the “rules of ethics”) governing lawyers. At most law schools, students take a required course in the rules of professional responsibility in their second or third year.

Note, Law Review A scholarly paper that 2L law review members research and compose on a legal topic of their choosing as part of the requirements for law review membership. A typical note runs from 30–50 pages with 200 footnotes. The best notes are selected for publication in the law review. See also Law Review.

Nutshells With titles in more than 160 subjects, the largest law school study aid series. As the name suggests, the books are concise summaries of the law in particular areas. See also Study Aids.

OCI Acronym for on-campus interview. See On-Campus Interview.

Open-Book Exam See Closed- or Open-Book Exam.

On Call Rather than cold-call on random students per the traditional Socratic method, some professors, particularly in upper-level courses, designate a group of students in advance of each class who will be “on call” or “on panel” to answer questions about and analyze the reading assignments in class.

On Panel See On Call.

On-Campus Interview Called OCIs by students, the interviews legal employers hold at law schools for prospective summer clerkships or permanent associate positions. See also Associate, Callback Interview, Summer Clerkship.

Oral Argument An oral presentation to a panel of appellate court judges, usually three in number, in which a lawyer advances the legal arguments supporting the client’s case on appeal, while being required to answer questions from the judges throughout. At most schools, 1L students are required to make an oral argument in their second semester as part of their Legal Research and Writing course. The oral argument assignment is discussed in Chapter 18.

Order of the Coif A law school honor society that exists at select law schools, with membership reserved for students who graduate in the top 10 percent of their class. Graduating “Order of the Coif” is considered to be a high law school honor.

Orientation An introduction to law school typically held the week before classes begin. The length and content of orientations vary by school. Typical events include a session on how to read and brief cases, a panel discussion with upper-level students and/or faculty on how to succeed in law school, and social mixers. Upper-level students often serve as small group orientation leaders, and are a good source of information and tips to incoming students.

Outline or Outlining See Course Outline.

P.A.D. See Phi Alpha Delta.

Partner A senior position in a law firm to which associates aspire. See also Associate.

Phi Alpha Delta (P.A.D.) One of two national legal fraternities that has chapters at most law schools. See also Phi Delta Phi.

Phi Delta Phi One of two national legal fraternities that has chapters at most law schools. See also Phi Alpha Delta.

Pro Bono Meaning “for the public good” in Latin, pro bono work is legal services performed free of charge to people who cannot afford to hire a lawyer. Lawyers are expected to render pro bono services as part of their professional obligation or to contribute money to legal services organizations that provide pro bono representation. Many law schools mandate that students perform a specified number of hours of pro bono service as a graduation requirement.

Precedent See Judicial Precedent.

Property Required first-year course that covers the law governing the ownership and transfer of interests in real and personal property. Real property is land and things attached to land. Personal property is portable goods, such as this book. Property is described in Chapter 5.

Public Interest Law An umbrella term describing legal work geared toward advancing social justice and/or public welfare. Public interest law can involve working at a government agency, a non-profit organization, or representing clients on a pro bono basis. See also Pro Bono.

Quimbee A popular commercial service providing case briefs keyed to particular casebooks and other study materials for law students. Some first-year students make the mistake of relying exclusively on commercially prepared case briefs, rather than creating their own, which misses the main reason to prepare case briefs: learning how to dissect and a judicial opinion and analyze law. (On the other hand, as explained in the C.R.E.D.O. chapter, my mantra for you about case-briefing is: Brief every case, but don’t overbrief any case.).

Reasonable Person The mythical person for whom the law is always searching, particularly in the area of tort law. In the large field of liability for negligently caused harm, actors are expected to behave as a “reasonable person” would have behaved under the same circumstances. The quest for this person will consume a large portion of your Torts course.

Regulation A legally binding rule promulgated by a federal or state administrative agency, such as the Environmental Protection Agency or the Food and Drug Administration. Regulations are to be distinguished from statutes, which are passed by Congress or state legislatures. See also Statute.

Reporter A book containing a chronological collection of appellate judicial opinions from a particular court or jurisdiction, which is part of West Publishing Co.’s National Reporter System. For example, the United States Reports collects all opinions of the U.S. Supreme Court from 1759 through the present in several hundred volumes. Each individual volume is called a “reporter.” Law school libraries contain complete sets of all the relevant reporters, which consume miles of shelf space. In the past, law firm libraries also contained extensive sets of reporters, and many still do, although the availability of computerized legal research has made it easier to cut library maintenance costs and save space in law libraries of all types.

Restatements of the Law A series of influential legal treatises written and published by the American Law Institute, an organization of prominent legal scholars, including lawyers, judges, and law professors. “Restatements,” as they are called, set forth the black-letter rules of law in succinct terms. Restatements are not binding primary authority on courts, but they are a persuasive type of secondary authority. You will be hearing a lot about Restatements in courses such as Torts and Contracts. See also Authority, Black-Letter Law.

Reverse A disposition or outcome of an appellate court proceeding in which the court overturns or “reverses” the lower court, often sending the case back to the lower court for further proceedings such as a new trial. See also Affirm.

SCOTUS Acronym for the Supreme Court of the United States.

SBA Acronym for Student Bar Association. See Student Government Association.

SGA See Student Government Association.

Socratic Method The predominant law school teaching methodology in the first year, wherein professors generally cold-call on students to engage in a dialogue about a judicial opinion assigned for class reading. The Socratic method goes hand in hand with the case method of law school teaching. The Socratic and case methods are described in Chapter 7. See also Case Method.

Statute A law passed by Congress or a state legislature and signed into law by, respectively, the U.S. president or the governor of the state. Statutory law should be distinguished from case law, which is the body of judge-made law that emanates from judicial opinions. Law students spend most of their first year studying case law, but take several courses in their upper-level years that focus on statutory law.

Student Government Association (SGA) Called the Student Bar Association or SBA at many schools, the elected body of student representatives at a law school. All law schools have a SGA. The officers, elected by students, usually include a president, vice-president, treasurer, secretary, and representatives for each class, including separates representatives for each section of the first-year class.

Student Organization A term referring to any law school student-run organization, of which there are many. These include the Student Government Association, law review, moot court board, and numerous “club”-type organizations appealing to different types of students and student interests, such as the Black Law Students Association and Federalist Society. Student organizations are discussed in Chapter 24.

Study Aids Any of the many series of books intended to explain the law to students clearly and succinctly. Study aids are available for most law school courses, and most law students buy at least some study aids to help them understand the material and prepare for exams. Dozens of competing types and formats of study aids are available. A few of the more prominent study aid brands are listed in this Glossary.

Summer Associate See Summer Clerkship.

Summer Clerkship A term for a summer job at a law firm, also referred to as a summer associate position, which is to be distinguished from a “judicial clerkship.” Students sometimes just call them “summers.” Most first-year students begin vying for summer clerkships in their second semester. During summer clerkships, students primarily perform legal research, but they might also be invited to attend depositions, trials, and client interviews. Many summer clerkships lead to offers of permanent associate jobs at the firm.

Supreme Court of the United States (SCOTUS) The highest court in the United States, made up of nine justices nominated by the president and confirmed by the U.S. Senate. Decisions of the U.S. Supreme Court are the “law of the land,” binding on all other courts and under the principle of judicial review established in Marbury v. Madison, the executive and legislative branches of government. First-year students study Supreme Court opinions primarily in Civil Procedure and, if offered in the first year, Constitutional Law.

Torts Required first-year course studying the law of liability for civil wrongs other than breaches of contract. Most of the course involves claims arising from personal injury. Torts is described in Chapter 5.

Top Paper Award Symbolic of the competitive nature of law school, an award is given to the student who earns the top grade in each course. At most law schools, top paper awards (which are usually “top exam” awards) are called “CALI Awards” because they are sponsored by the CALI (Computer-Assisted Legal Instruction) organization. In the old days, top paper awards were called “Book Awards,” because the recipient received a book as a prize and some older professors still use that term, sometimes as a verb, as in: “Sarah is an excellent student. In fact, she booked my course.” Today, the person would say, “She CALI’ed my course.” Receiving the top paper award in a course is a coveted honor and good resume booster.

Transactional Law A broad term describing legal practice that does not involve litigation (i.e., handling lawsuits). Transactional law includes negotiating, structuring, drafting documents for, and otherwise handling business deals of all types. Most lawyers engage in some form of transactional law practice. See also Litigation.

Travel Team The student competition teams that represent law schools in the many moot court, mock trial, and other inter-law school competitions that are held annually throughout the country, usually comprising three upper-level students. Students chosen for the travel teams usually are those who have distinguished themselves in the particular competition genre.

Trial Court The court at the bottom of the hierarchical judicial system, either state and federal, where lawsuits originate and where pretrial and trial proceedings take place (as distinguished from appellate courts, where appeals take place). See also Appellate Court.

TWEN An acronym for “The West Education Network,” TWEN is a widely used system that allows professors to create online course sites. Depending on the professor, TWEN sites may contain course materials, discussion boards, calendars, quizzes, relevant web links, and other features. See also LexisNexis Web Courses.

UBE Acronym for Uniform Bar Exam. See Bar Exam.

UCC See Uniform Commercial Code.

Uniform Commercial Code (UCC) Usually called the “UCC,” a compilation of statutes that regulates a variety of commercial transactions, including sales, banking, and collateralized transactions. Drafted as model legislation by the National Conference of Commissioners on Uniform State Laws, all states have adopted the UCC in whole or in part as part of their state statutes. First-year students study portions of Article 2 (Sales) of the UCC in their Contracts course.

U. S. Circuit Court of Appeal One of thirteen regional appellate courts within the federal court system that hear appeals from the U.S. District Courts (the trial courts in the federal system). U.S. Circuit Courts of Appeal are the most powerful tribunals in the land below the U.S. Supreme Court.

U.S. District Court A trial court within the federal judicial system.

Westlaw See Computerized Legal Research.

Writ of Certiorari The process by which the U.S. Supreme Court decides to review most of the cases it hears. The vast majority of the cases ruled on by the U.S. Supreme Court are heard because the Court discretionarily chooses to hear them, rather than because the parties have a right of appeal to the Court. The Writ of Certiorari is the means by which the Court exercises that discretion. Perhaps because both law students and lawyers struggle to spell and pronounce the term correctly, “certiorari” is usually shortened to “cert,” as in “cert petition” and “denial of cert.” When the Court grants “cert review” and agrees to hear a case, it is an indication that the issues involved are of national significance or causing disagreement among the U.S. Circuit Courts of Appeal. Out of roughly 8,000 cert petitions filed with the Court each year, the Court agrees to review fewer than 100 cases.

Write-on Competition The competition that students participate in during the summer after their first year in an effort to gain an invitation to participate on the law review. The competition usually involves writing a summary and analysis of a recent case and a test of the student’s mastery of Bluebook citation style. Law review is discussed in Chapter 24. See also Law Review.

Writing Sample A sample of a student’s legal writing that is often required as part of a legal job application. First-year students often polish up their Legal Research and Writing law office memorandum or appellate brief to use as a writing sample when applying for their first summer job.

Law Jobs: The Complete Guide

After two years of extensive research that included interviewing more than 150 lawyers, my new book (with coauthors Chris Coughlin and Nancy Levit), Law Jobs: The Complete Guide, has been published by West Academic Publishing.  Here’s a description:

Choosing a legal career that fits a student’s personality, skillset, and aspirations is the most important and difficult decision a law student faces, yet only a small number of law schools incorporate career-planning into their curriculums. Law Jobs: The Complete Guide seeks to help fill the gap.  Law Jobs is a comprehensive, reader-friendly guide to every type of legal career. Packed with authoritative research and featuring comments from more than 150 lawyers who do the jobs, Law Jobs offers for each career general background, pros and cons, day in the life descriptions, and information about job availability, compensation, prospects for advancement, diversity, and how students can best position themselves for opportunities. Covered jobs include:

• Large and Medium-Sized Law Firms
• Small Firms and Solo Practitioners
• In-House and Other Corporate Counsel
• Government Agency Lawyers
• Non-Governmental Public Interest Law
• Prosecutors and Public Defenders
• Private Criminal Defense
• JD Advantage Jobs
• Contract (Freelance) Lawyering
• Judges, Mediators, and Arbitrators
• Judicial Law Clerks
• Legal Academic Jobs

Other chapters address lawyer happiness, the rapidly changing face of the legal profession due to technology and other forces, the division between litigation and transactional law, and the Top 50 legal specialty areas.

Together, the authors have received more than thirty awards for teaching and research, and have written extensively about law students and lawyers in books such as 1L of a Ride (McClurg), A Lawyer Writes (Coughlin), and The Happy Lawyer (Levit).

I got the idea for Law Jobs after reading too much about lawyer unhappiness and making the connection that many lawyers simply have not found their right place in the legal world.  Too many law students do no serious career-planning at all, instead resigning themselves to take whatever job comes along. But it’s far too important a decision to leave to chance.

There is no single right or wrong job for everyone because we’re all different. Students need to know themselves—their skillset, personality types, and true aspirations. Only then can they find the best job fit. We think our book does a good job of providing information to help students identify the careers most likely to lead to their long-term happiness.

New Artifact from Katko v. Briney, the Infamous Spring-Gun Case

The actual wire used to set up the shotgun trap in Katko v. Briney

Lawhaha.com has uncovered new details—and a Torts artifact—regarding the infamous “Iowa spring-gun case”: Katko v. Briney. Most law students read and remember this unusual case, in which plaintiff Marvin Katko broke into Ed and Bertha Briney’s abandoned farmhouse in Eddyville, Iowa, in search of old jars and bottles he considered to be antiques, only to have his leg blown off by a shotgun wired to a bed in one of the bedrooms.

(I once assigned my students to write poems about the case and collected them in an Oregon Law Review article, Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts.)

The court described the shotgun-trap as follows:

“After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs.” (Emphasis added.)

Now stop and take a look at the image. That’s right, it’s purportedly the actual wire used to rig the shotgun to the doorknob. How did I obtain this artifact (actually, only the picture of it)? Read on.

Katko sued the Brineys and—despite the fact that he broke into their farmhouse with an intent to steal—won a substantial jury verdict for both compensatory and punitive damages. Unable to pay it, the Brineys had to sell eighty acres of their farm to three neighbors who agreed to hold it in trust for the Brineys in the expectation that the Iowa Supreme Court would reverse the trial court’s judgment for Katko. But that didn’t happen. The judgment was affirmed on the ground that deadly force cannot be used to protect property only.

Last fall, teaching Katko to a class of 1Ls, a student raised her hand and volunteered that her boyfriend’s parents owned the Iowa property where the legendary farmhouse once stood and were in possession of the actual wire that was used in the shotgun trap.

The student arranged for me to interview “Jim,” her boyfriend’s father. (I’ll leave out last names for privacy reasons). Jim’s parents were one of the neighbors who bought the Briney’s property to hold in trust.

(Caveat: I have no way to confirm the following tidbits Jim shared with me, so take them as one observer’s memory of events that happened several decades ago).

I asked Jim what the Brineys were like.

“Well, they were a little strange,” he said. “They used to leave food in the house because they thought the ghosts of Mrs. Briney’s mother and father lived there. They left the house fully furnished, the table set, et cetera. They left food in the cupboard behind the table.”

If true, this may answer one of the questions students often have about the case. The Brineys set the shotgun trap because the abandoned house had been repeatedly broken into. Students commonly ask, “Why didn’t they just take anything of value out of the house?”

Seeking to establish the provenance of the purported Briney wire, I asked, “How did you know to keep the wire?”

“It was still attached to the bed,” Jim said. “My wife took it off and we kept it.” That was before they intentionally burned down the house, a barn, and a machine shed because they “weren’t worth anything.” (I suggested he consider donating the wire to the American Museum of Tort Law, but he said they wanted to keep it.)

As for Marvin Katko, Jim said he knew him from school. He said they were in the school band together. Marvin played saxophone and even had a local dance band at one point.

“It was after high school that he [Katko] started being known as a delinquent,” Jim said. “He had somewhat of a reputation around town.”

Jim claims Katko was suspected of stealing a marble-top dresser from the Briney’s house prior to the occasion where he was shot. He also asserted, “Ed Briney tried to shoot Katko himself. Many nights he laid on his stomach in the house with his gun waiting for Katko to come.”

After the Iowa Supreme Court affirmed the jury’s verdict, a dispute arose as to the land held in trust by the neighbors. According to the Prosser, Wade & Schwartz Torts casebook, the Brineys and Katko joined together to sue the neighbors and the lawsuit was settled for enough to pay the judgment against the Brineys. Jim says his father bought out the other two neighbors and handed the property down to him.

Jim said there was a great debate in Eddyville at the time of the case and for years after, with some people siding with Marvin Katko and others defending the Brineys. A niece of Marvin Katko once sent me an email affirming that it was very difficult for the Katko family to regain friends after the event.

Sadly, Marvin Katko committed suicide in 1994.

Publish or Perish: “Get Me Off Your F****** Mailing List”

After reading a rundown on the day’s latest depressing news, it was a true joy to come across this Vox article about this real article accepted for publication in an “academic journal.”

In academia, it’s publish or perish.  Good teaching is important, but it won’t get you promoted or tenured without publishing.  To assist academics on their climb up the steps of the ivory tower, professors in all disciplines are constantly bombarded with email from dubiously credentialed sources offering to publish their books and articles.

As the Vox article explains, this classic work, Get Me Off Your Fucking Mailing List, was actually accepted for publication by something called the “International Journal of Advanced Computer Technology.”  The ten-page article is nothing but the sentence, Get me off your fucking mailing list, repeated hundreds of times.

If it’s over your head, as much of the best academic stuff can be, no worries.  The authors included this helpful flow chart explaining the whole thing.

Law Review Humor – Ode to the Bluebook

As faculty advisor to a law review, I deliver opening remarks at the law review’s annual banquet.  Mostly these consist of giving thanks to the graduating law review members for their dedication and hard work.  They devote thousands of hours each year to painstakingly selecting, editing, formatting, proofing and–of course, cite-checking–scholarly articles.

Cite-checking requires mastering The Bluebook: A Uniform System of Citation, a ridiculously-but-addictively complex 560-page manual of rules for referencing legal authorities.  (See The World’s Greatest Law Review Article.)

This year I tried to add levity to my remarks with some words of wisdom incorporating every “introductory signal” from Rule 1.2 of The Bluebook and throwing in a few “short-form” citation rules.  (If you are not a law review or Bluebook geek, this will make no sense at all.)

Corny, but it went over well, maybe because law review students are starved for frivolity.

Distinguishing Good from Bad Law School Advice

When new students arrive at law school, they receive a ton of advice from upper-level students.  2Ls and 3Ls love giving advice to new students.  If they can do it at an event where alcohol is being consumed, a state close to nirvana is achieved.  But how do incoming students distinguish between good advice and bad advice?  Here’s a tip I give in 1L of a Ride.  After mentioning that upper-level students sometimes give really good advice, I say:

But upper-level students also give some really bad advice, much of which involves ways to cut corners, so be wary of what they tell you. Although it will be socially awkward, if an upper-level student starts piling on the shortcut advice, ask the person about his or her GPA or class rank. You could phrase it like this: “Thanks for all the advice. Did it work for you?”

Last week I received an email from an incoming student at another law school.  She complimented the book and added a funny postscript referencing the above passage:

P.S.  Since your interest in humor is apparent, let me tell you a story from the second day of reading your book. I was with my parents before dinner and discussing the tips involved in your book.  My father is a practicing lawyer who went to Ole Miss Law School and graduated in 1961. I haven’t considered him much of a resource due to the changed role of technology in that intervening period.

I mentioned two conversations I’ve had with friends who are already in law programs across the country and clarified that they gave excellent advice. I repeated your recommendation that you ask any student giving bad advice or shortcuts about their GPA to help evaluate its validity.

Some time later my dad started a sentence, “What you need to know about law school is …”  When he finished I said, “Hey dad, that sounds like that really worked for you! May I ask what your GPA was?”

I’ll be listening to his fatherly advice, despite his C+/B- grade point average.  🙂  He’s more convinced than ever that repeating “You’ll go to law school and become a lawyer” beginning at the cradle was a good idea.

Love it.  Seriously, folks, I was just looking at a law school page where an incoming student was asking for advice on a specific topic.  The best answers came from the top students.  Most people will make it through law school.  If your goal is higher than that, carefully sift through all advice, from students, professors and, yes, even dads.

Third Edition of 1L of a Ride Released

Excited to report that after two years of work, the shiny new third edition of 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School was just released by West Publishing Company.

It’s available here on Amazon.  Check out the 148 reviews for 1L of a Ride averaging 5-stars.  1L of a Ride is assigned as required or recommended reading at law schools throughout the country. [Note: Because it just came out, it’s listed temporarily out of stock on Amazon, but that should be fixed quickly.  In the meantime, you can always order it directly from the publisher here.]

Couldn’t have done it without the help my amazing research assistants at the University of Memphis Cecil C. Humphreys School of Law and good friends at West Academic Publishing.  Thank you all!

 

 

Top Five Habits of Successful Law Students — ABA Webinar on YouTube

The American Bar Association Law Student Division posted my webinar, The Top Five Habits of Successful Law Students, on YouTube. Check it out for some good advice.

Here’s the accompanying description:

In this webinar, Professor Andrew McClurg, author of the popular law school prep book, 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School, seeks to inspire new students to “Be Excited!” about their new adventure and get them on the right track from day one by explaining his C.R.E.D.O. for law school success: the top five habits of successful law students (Consistent, Rigorous, Efficient, Diligent, and Organized). Following the C.R.E.D.O. will boost any student’s ability to maximize their potential.

This special webinar includes a Q&A session with Professor McClurg.

1L of a Ride Video Course

1L of a Ride Video Course Marketing Video

The 1L of a Ride Video Course is based on McClurg’s bestselling law school prep book of the same name.  In addition to McClurg, the 13-part series features award-winning law professors Christine Coughlin (Wake Forest), Meredith Duncan (University of Houston), and Nancy Levit (University of Missouri-Kansas City).

Each video is a concise ten minutes, followed by a short self-assessment quiz. The videos include:

1. Introduction to the Video Course
2. Planning Ahead and Biggest Fears
3. Structure and Role of U.S. Courts
4. Socratic and Case Methods
5. Overview of First-Year Curriculum
6. First-Year Sample Course: Torts
7. How to Read and Brief a Case
8. The C.R.E.D.O.—Top Five Habits of Successful Law Students
9. Essential Study Techniques
10. Legal Research Basics
11. Legal Writing Basics
12. Managing Stress and Maintaining Well-Being
13. Professionalism

Research shows students gain not only from reading, but seeing and hearing, in part because video helps accommodate diverse learning styles. Use the videos to enhance comprehension and retention. Studies also show students prefer and benefit from one-on-one facetime with professors, which the videos, while no match for the real thing, can help simulate.

The video course is available as a standalone product or bundled with a print or e-copy of the book (recommended) at the West Academic Publishing Store.

The Second Amendment Right to Be Negligent

Florida Law Review Right to be NegligentAndrew Jay McClurg, The Second Amendment Right to be Negligent, 68 Florida Law Review 1 (2016).

Only two constitutional rights — the First and Second Amendments — have the capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent.

Explaining that it is a microcosm of a much larger issue, the Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised.

On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has — in the name of the Second Amendment — given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.

The Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.

New Guns and the Law Casebook

Gun Book CoverMy new casebook–Guns and the Law: Cases, Problems, and Explanation–composed with Professor Brannon Denning, just came out.  Featuring cases, problems, and explanation, it offers a balanced treatment of gun law and policy in the United States, which is hard to find in this highly charged area.

Here’s the catalog description from Carolina Academic Press:

McClurg (pro-reasonable regulation) and Denning (pro-gun-rights) apply their decades of experience studying firearms policy and gun violence in this balanced, reader-friendly casebook addressing the contentious issues of guns in America. Through cases, problems, and provocative notes and questions, the book explores current federal and state gun laws, major constitutional cases, post-Heller Second Amendment litigation, modern self-defense rules such as Stand Your Ground laws, civil liability, gun laws in other countries, legal solutions to gun violence, and issues of guns and race, alienage, culture, and gender.

We designed the book to be accessible not only to law professors and law students, but to undergraduate and other graduate school professors.  Professors interested in teaching a course in the area can obtain a complimentary copy from the publisher.

“Grit and Grind” Your Way to Law School Success

The Grindfather

The Grindfather

If you’re getting ready to start law school and are worried because you have a below-average LSAT score, you need to read my new ABA blog post.  In it, I explain data about the correlation between LSAT scores and first-year grades, which is weaker than most people realize.

While LSAT scores correlate with success for some students, they do not reliably predict success or lack of it for any individual student because the LSAT does not take into consideration many key ingredients to success, including “grit.”

Look at the Memphis Grizzlies. They’ve made the NBA playoffs for six straight years without any superstars. Their motto, coined by Grindfather Tony Allen, is “grit and grind.” Now, Professor Angela Duckworth has authored a bestselling explaining her research that shows “grit”–perseverance and single-minded determination–is at least as important as native intelligence in predicting success.

Check out over at ABAforLawStudents.com.

Supreme Court Emoji Challenge

Thinky EmojiInsurance law expert and all-around funny, clever guy Randy Maniloff has come up with a fun test for spelling out the names of 10 famous U.S. Supreme Court cases using only emoji.  How did this come about?  He explains in his latest issue of Coverage Opinions:

The other night I was out to dinner with my 9 year old daughter. As we waited for her mac & cheese to arrive I decided to give her a lesson on the Supreme Court. I figured I’d start with the basic operation of the federal judiciary. From there move on to some landmark Supreme Court cases. And by dessert we’d be discussing the Necessary and Proper Clause. But she wanted no part of it – begging me to stop.

So I took a different tack. I’d tell her about a case and then she would use my phone to find emojis to write out the case name. This idea she loved. While it didn’t last long, as dinner arrived, it gave me an idea: The Supreme Court “Emoji Challenge.”

For non-lawyers, the first takeaway from this is how geeky lawyers can be.  My own daughter grew up playing “Spot the Tort.”

I confess I fared poorly on the exam, but maybe it’s a generational issue.  Law students: Be sure to take the test. Rumor has it that several Constitutional Law professors (only at the higher-ranked schools) intend to use it on their upcoming Spring final exams.

The Golden Mean in the Gun Debate

Howard Law Journal (002)Andrew Jay McClurg, In Search of the Golden Mean in the Gun Debate, 58 Howard Law Journal 779-809 (2015).

The American gun debate is stuck and has been for a long time. Both sides remain trapped by their own hyperbolic rhetoric and reasoning fallacies, with the result that partisans are being heard only by those who already agree with them. This essay asserts that there is such a thing as “reasonable middle ground” in the gun debate and seeks to prove it by analyzing five specific measures that have the potential to reduce gun violence without infringing legitimate Second Amendment rights:

(1) bolstering federal support for research into the causes and prevention of gun violence, which Congress has blocked since the 1990s;

(2) extending instant background checks, currently required only for sales by licensed firearms dealers, to all gun sales;

(3) requiring gun purchasers to demonstrate their knowledge of state gun laws and basic gun safety rules and also their ability to safely handle the gun they are purchasing;

(4) mandating security measures by retail gun sellers to prevent theft; and

(5) implementing microstamping technology that would enable law enforcement to trace crime guns and ammunition cartridges found at crime scenes, facilitating the apprehension and prosecution of violent criminals.

While more substantial measures would be more effective in combating gun deaths and injuries, this essay purposely selected limited measures with the hopeful goal of getting people to recognize that there may well be middle-ground or a “golden mean” in the gun debate.

Storm Cloud Law Students, Psychological Distress in Law Students, Part II

A Word Cloud reveals the stress and anxiety of 1Ls.

A Word Cloud reveals the stress and anxiety of 1Ls.

This is Part II of an exploration of psychological distress in law students. Part I explored empirical research showing the extent to which law students suffer from psychological dysfunction such as anxiety and depression. This part highlights a couple of non-scientific indicators of the problem.

Mid-semester, I asked a class of first-year Torts students to list their three top emotions about law school.  Then I dumped all their answers into a Word Cloud program, which depicts entries by size according to how often the words are repeated. The results, as you can see from the picture, are not a pretty sight.

I also asked them to play Ernest Hemingway. You may have heard the legend that Hemingway once made a bet that he could write a complete story in six-words, and proceeded to write on a napkin, “For Sale: Baby shoes, never worn.” I assigned, as some other professors have done, my 1Ls to write a six-word story about law school. The majority of their stories reflected stress and anxiety. Here are some samples:

• I came. I studied. I suffered.

• Orientation. Confusion. Overwhelmed. Anxious. Exhausted. Graduation.

• Accepted application. Law school. Emotional wreck.

• Started school. Constant briefing. Now crying.

• Socrates meets Bentham under Sisyphus’ boulder.

If you’re a law student who is struggling, seek help. Talk to your professors about it. Visit the university counseling center. Do not accept depression or severe anxiety as normal consequences of law school. There is no shame in suffering these conditions. I was a wreck during my first year. You can read about it in my 1L story for the University of Missouri-Kansas City Law Review: Neurotic, Paranoid Wimps—Nothing Has Changed.

I talk to my students about these issues and each time I do, at least a couple of students contact me afterwards to say thanks and share their own experiences.  In many cases, they take me up on my advice to seek help at the counseling center. When they do, invariably, they report back that they are doing much better.

On the Sunny Side.  If you’re considering law school, do not let these posts scare you away. Law school isn’t all gloom and doom. The research just makes it look that way. No one has ever studied the positive aspects of law school, of which there are many. Here’s a happy statistic the might surprise you in light of what you’ve read in these posts: 83 percent of the 33,000 students who responded to the 2011 Law School Survey of Student Engagement reported that they found their law school experience to be either good or excellent.

Sure, law school is a challenge, but it’s supposed to be. It obviously is doable though, or we wouldn’t have 1.1 million lawyers in America. I love this comment from a student in response to a question asking whether her first year was better or worse than expected:

I love law school. I love the material, the professors, my classmates, and especially those few close friends I’ve connected with and grown close to. Law school is definitely more challenging in so many ways than I ever could have anticipated, but that’s what makes it great. If it was easy, I can say in all honesty that I would be disappointed. It’s supposed to be hard because it means something. The challenges are what help us grow and learn and open our minds and I wouldn’t have it any other way.

Hang in there!  First-semester exams will be over before you know it.

Rainy Day Law Students, Psychological Distress in Law Students, Part I

And on the serious side …

Rainy Day Law Students

Rainy Day Law Students

On my way to class recently, I came across this hand-written annotation posted alongside this rainy day painting hanging in our magnificent law school (recently ranked as the nation’s best law school facility).

Click to enlarge the picture and you’ll see it’s a man standing under a raining umbrella.  The sign says: “Every day in law school

As law students everywhere approach fall semester exams, it once again brought home the sad fact that many law students struggle with anxiety, depression and other psychological dysfunction.

I learned the depth of the problem researching 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (West 2d ed., 2013). Here are some of the studies I came across:

  • As far back as 1957, a study found that psychological distress in law students significantly out-paces not only the general population, but other graduate student populations, including medical students. (Eron & Redmount, 1957).
  • A 1980s study of law and medical students at the University of Arizona found that law students scored significantly higher than both the general population and medical students in nearly every category of psychological dysfunction, including anxiety, depression, feelings of inadequacy and inferiority, hostility, and obsessive-compulsiveness. (Shanfield & Benjamin, 1985).
  • With regard to the chicken and egg question of whether law school causes psychological distress or attracts people who are already inclined toward it, one study found that law students begin school with psychopathological symptoms similar to the general population, but that those symptoms become substantially elevated during law school. The same study found that 17-40 percent of the participating law students suffered from depression. (Benjamin, Kaszniak, Sales & Shanfield, 1986). Comparatively, the Centers for Disease Control reports that 9 percent of the U.S. adult population show symptoms of depression, including 4.1 percent who suffer major depression.
  • In another study, researchers administered a battery of tests to entering law students to measure their states of happiness, life satisfaction, physical symptoms, and depression. The scores showed that the students were a mostly contented, normal group on arrival. By the end of the first year, however, they showed large reductions in positive affect, life satisfaction, and overall well-being, and large increases in negative affect, depression, and physical symptoms. (Sheldon & Krieger, 2004).
  • A 2000 study of University of Michigan law students found that half of the students showed symptoms of clinical depression by the end of their first year, and that these high levels remained throughout their law school careers. Comparing the law students’ scores on a standard depression scale to scores for other groups subject to extreme stress yielded startling results. The 50 percent depression rate for law students compared to rates of 40-45 percent for unemployed people, 50 percent for people experiencing the death of a spouse or marital separation in the past year, and 50-60 percent for persons being treated for substance abuse. (Reifman, McIntosh & Ellsworth, 2000). This isn’t to suggest, of course, that being a law student is as bad as those events, but law school can push the brain’s depression buttons.

To the extent law school is responsible for causing emotional distress in law students, one doesn’t have to look far for plausible explanations, including the make-it-or-break-it single-exam format, heavy emphasis on grades and class rank, lack of feedback, competitive environment, high student-teacher ratios, Socratic method, and intense workload. Added to these traditional woes are modern worries about heavy debt-load and finding a job. Intangibly, the adversarial nature of the legal system in which law students are immersed, the emphasis on objective analytical thinking over personal values and emotions, and strains on personal relationships can all add to psychological dissonance.

Law students: Be self-aware. Students are sometimes the last to know, or admit, that they are struggling. I once had a first-year student rush out of class thinking she was having a heart attack. I ran after her and found her sitting on a bench clutching her chest. Her face was flushed and she was sweating and trembling. But it wasn’t a heart attack. It was a panic attack.

Stay on the lookout for anxiety or depressed states that are excessive and prolonged and are impairing your ability to function. If you’re struggling, know you are not alone. Many students suffer silently, hiding their distress even from close loved ones. I felt that way as a student. It’s okay to feel bad.  Take advantage of the university counseling center.  Free and confidential, your fees pay for it.

Part II of this post will offer more insights, but if you have access to a copy of 1L of a Ride, read Chapters 19 (The Bleak Side of Law School) and 20 (Maintaining Well-Being). Also study Chapter 15 (Exam Preparation) for strategies on approaching exams in an organized, reduced-stress way.  In the meantime, remember: this too shall pass.

The “Companion Text” to Law School Named as an Amazon Editors’ Favorite Book of the Year

The "Companion Text" to Law School named one of Amazon's Best Books of 2014.

The “Companion Text” to Law School named an Amazon Editors’ Favorite Book of the Year.

The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student has been named one of the Amazon Editors’ Favorite Books of the Year.  Pretty cool.

1L of a Ride Cited … On a Business Card

1L Business CardI was really touched by this. A first-year student at the University of Denver law school asked if she could use a line from 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School on her business card.

If only law students–and all of us–could always remain idealistic.

Law Review Articles CAN Have An Impact

Preying on the Graying coverOne doesn’t have to look far to find criticism of law professors for spending such a large portion of their time writing long, heavily foonoted, sleep-inducing law review articles.  We even poke fun at ourselves for it, Exhibit A being The World’s Greatest Law Review Article.

But law review articles can and do have an impact.  Have to share the good news that my proposal for a statutory presumption of elder financial exploitation in my recent Hastings Law Journal article, Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation, was signed into law by Florida Governor Rick Scott on June 20.  The proposal passed unanimously through every legislative committee and both the Florida House of Representatives and Florida Senate, showing that at least some bipartisan issues still exist.

Don McClurg, USS JeffersThe article arose from a cruel financial exploitation incident involving our remarkable dad shortly before he passed away last year.  He’s shown here during WWII.

On October 1, 2014, when the law takes effect, prosecutors in Florida will have several more tools at their disposal.  In addition to my presumption statute, the new law (HB 409/Offenses Against Vulnerable Persons) creates the nation’s only elder hearsay exception and eliminates the requirement of proving deception or intimidation in elder exploitation cases.

Elder financial exploitation is a problem of enormous scope and growing rapidly as baby boomers age.  The crimes are notoriously underreported and under-prosecuted, often due to the same factors that make older adults vulnerable to exploitation in the first place.  If you care about this issue and know a legislator in your state, contact them and let them know they can help by supporting legislation similar to Florida’s.

In the meantime, watch after your own elders.  Don’t make the mistake of assuming they are immune to exploitation.  We would have voted our father to be the World’s Most Unlikely Victim.

Buy 1L of a Ride Second Edition

1L of a Ride Second Edition coverThe "Companion Text" to Law SchoolIf you’re contemplating or applying to law school, boost your ability to maximize success with the highest-rated law school prep book, 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law SchoolRead the Amazon Customer Reviews.

And don’t forget the loved ones. They’re in for an adventure too.  The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student is the only book written just for them.  Named one of Amazon Editors’ Favorite Books of 2014.

Flow Chart for the Tort of Nuisance

Nuisance Flow ChartA student from my very first Torts course a million years ago sent me this brilliant flow chart for the tort of nuisance, which comprises substantial and unreasonable interferences with the use and enjoyment of one’s property.   The most interesting thing about it is that it actually summarizes the law pretty well, assuming one has dropped acid before studying it.  Credit on the chart attributes this work of art to one Margaret Hagen.  Well done!

“Torts Illustrated”

Torts IllustratedA 1L sent me this “Torts Illustrated” image, sort of a grown-up version of Garrett v. Daily, a famous case that all law students study in which a five-year-old was sued for pulling a chair out from under an elderly woman.  If anyone knows the original source, please send it along so we can give proper credit.

In the meantime, one can only imagine what the swimsuit issue would look like.

School Daze: National Jurist Interviews McClurg about Starting Law School

The National Jurist interviewed me and a couple of other law school prep book authors in its September 2013 issue regarding happiness tips for new law students.  Here’s the article:

The National Jurist – Sept 2013 McClurg Interview

 

Where Have All the Funny Law School Stories Gone?

… to the tune of Peter, Paul & Mary’s “Where Have All the Flowers Gone?”

Lawhaha.com has collected funny law school stories from seventy-four law schools, but since the site was transformed into a WordPress blog, story submissions have dwindled. Must have something to do with the layout or maybe it’s the annoying CAPTCHA  program on the Contact page, which requires people to type in those hard-to-read words as a spam-filter.

Whatever the reason, we know hilarity continues to unfold in the world’s law schools and want to preserve it here. Please send along your funniest law school moments for the comic and stress relief of lawyers and law students everywhere. See that your school is represented.

Law School Makes Students Overly Analytical

A 1L at St. Thomas University School of Law in Miami wrote to say she enjoyed The “Companion Text” to Law School and especially connected to the chapter on the personality changes that occur in law students, specifically, becoming overly analytical. She gave a funny example:

I find it hard trying to switch gears back and forth from analytical law school mode to normal person mode.

We are trained to “think like lawyers” every waking moment of the day. But that doesn’t always work around our non-law student loved ones. It creates a kind of dissonance, I guess.

A lot of times when I try to explain law school things to friends and family and they just don’t get it, I either don’t have the energy to figure out how to communicate it accurately or the communication gap comes during a particularly stressful period—just before memos are due, for example—and I am afraid to open my mouth because I might erupt with irritable snaps or some other stream of emotion that isn’t really directed toward my loved ones but will likely end up coming out that way.

Here’s a story that could be in The “Companion Text” to Law School about the whole mental rewiring process law students go through as they work their way through law school and the confusion that ensues as family members try to figure out what the heck is going on. I called my grandpa and the conversation went like this:

Me: “What’cha doing?”

Grandpa: “Well, I just walked through the door.”

Me: “Oh. Which door?”

Grandpa: Silence…

Finally, after a long pause, he burst into laughter and said, “I just walked through the door to my house! I thought that was a given!” He laughed about it, but I could tell there was a little shock in his voice, like he thought I had lost my marbles.

I then had to explain to him that law students constantly clarify and ask questions because our brains have been trained think that way! Of course, it’s not that I lacked the common sense to assume he was implying he just got home and “walked through the door” of his house—but it’s like the law student in me had to ask just to be sure.

I have had other people make comments (half-jokingly, half seriously) about the fact that my “common sense” seems to have gone out the window since I became a law student. I’m sure I’m not the only one who experiences this—family members and friends don’t realize that lawyers and law students see factual assumptions as no-nos.

Being well-trained in critical-thinking skills–including knowing that the most accurate answer to most questions in law or life is “It depends on the facts”–is both a blessing and a curse to law students and lawyers. If you want a balanced, well-reasoned answer to a vexing question, ask a lawyer. On the other hand, law students and lawyers can drive people around them nuts by overanalyzing every word spoken.

Speaking of balanced “on the one hand, on the other hand”-thinking, here’s a judge who did it literally.

Career Shoes for Lawyers?

Career shoes for lawyersA first-year law student in Miami isn’t rushing out to buy these “career shoes.” As she explained in an email:

I am a member of a designer overstock/discount (and probably liquidation) club and was just browsing through today’s sales when I saw a heading that said “CAREER SHOES.” I clicked on it thinking I might find a pair of designer shoes suitable for pairing with a suit.

This photo shows their idea of career shoes for the modern woman. I do love a good pair of heels, but when I think of “career shoes,” I definitely don’t picture these styles … What’s the career they had in mind when they wrote the heading for this sale? Hooker?

–Thanks to Amy Holland.

Warning: No Blindfolded Kids Swinging Bats

no pinatasDuring a Torts class last semester, we were discussing various applications of Judge Learned Hand’s formula for negligence, when a student asked, “Why isn’t it negligent to hold pinata parties?” To which I replied, “It probably is!”

Judge Hand’s formula, explained in a famous case called United States v. Carroll Towing Co., is that if the burden of avoiding a risk is less than than probability of the risk resulting in harm multiplied by the potential severity of the harm, it is negligent to engage in the conduct.

As applied to pinata parties, the only burden to avoiding the risk is to choose a different, safer game to entertain kids at a party, compared to the risk that a blindfolded kid swinging a bat could whack some other kid in the head and cause serious injury.

Some students thought I was just being, as usual, overly cautious Tortman, but then I came across this sign at a picnic area while bike-riding in Shelby Farms. Vindicated.

But wait, what is up with that prohibition on metal detecting?

It’s No Tattoo, But A Torts-Lover Nonetheless

torts license plateA former student from Golden Gate law school who lives and practices in Hawaii sent this picture of a true torts-loving person’s car.

We will engage in outrageous speculation that it belongs to a plaintiffs’ personal injury lawyer.  If you think about it, who else would get a “TORTS” license plate? Maybe geeky law professors with nicknames like Tortman or pattisiers who can’t spell, but really no one else. Insurance defense lawyers wouldn’t do it because it would violate the industry position that torts do not actually exist.

The car owner  obviously loves tort law, but any challenger to the “Most Crazy in Love with Torts” still has to contend with the guy who got Judge Learned Hand tattooed on his arm.  On the other hand, that guy may have simply loved Judge Hand or even barges.

–Thanks to Laura Ozak.

Test Your Legal Trivia Knowledge: Top Lawyer Movie Heroes

Reprinted from The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012) with permission of Thomson Reuters.

Top movie hero of all time.

Top movie hero, Atticus Finch.

Question.  In 2003, the American Film Institute (AFI) released its list of the top fifty heroes in movie history.  How many of those top fifty movie heroes were legal professionals (lawyers or lawmakers) or common citizens who used the law to achieve progressive objectives?

A.  1

B.  4

C.  8

D.  12

E.  15
Answer: C.  The eight legally inclined top fifty movie heroes include, in the number one spot, Atticus Finch (Gregory Peck), the Southern lawyer who fought for justice in a racially charged case in the screen adaptation of Harper Lee’s book, To Kill a Mockingbird.  Mahatma Gandhi, who was trained as a lawyer, came in #21 for Gandhi (Ben Kingsley).  Andrew Beckett (Tom Hanks), the AIDS-afflicted corporate lawyer from Philadelphia, made the list at #49.  Jefferson Smith (Jimmy Stewart)—the protagonist in the Frank Capra classic, Mr. Smith Goes to Washington—reached the #11 spot.  Stewart played a character appointed to fill a vacancy as a U.S. Senator, where he confronted and fought political corruption.  Erin Brockovich (Julia Roberts), a down-and-out paralegal whose sleuthing led to a class action against a toxic waste-dumping corporation in the movie of the same name, checked in at #31.  At #28 we have Juror #8 (Henry Fonda) from 12 Angry Men, the lone juror who refused to vote guilty in the trial of a teenager accused of murdering his father.  The final two characters were workers who became labor union activists fighting for fair, safer working conditions: Norma Rae Webster (Sally Field), from Norma Rae, at #15, and Karen Silkwood (Meryl Streep), from Silkwood, at #47.

Test Your Legal Trivia Knowledge: Who Rocked the Law?

Reprinted from The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012) with permission from Thomson Reuters.

The Bobby Fuller Four

Quiz clue.

Question. While some people purport to “hate” lawyers, the public remains fascinated by them, as evidenced by all the attention the legal profession receives in the entertainment world.  Since the 1960s, more than fifty television series about lawyers have been produced.  Well over 100 “lawyer movies” have been brought to the big screen and lawyer novelists such as John Grisham sell hundreds of millions of books.  What about musical entertainment?  Which of the following is not a real song by a popular artist?

A.  I Fought the Law (and the Law Won)

B.  Lawyers in Love

C.  Sue Me, Sue You Blues

D.  My Lawyer Bit My Doctor

E.  Lawyers, Guns & Money

Answer: D.  “My Lawyer Bit My Doctor” is not a real song, although it sounds like it could be a hit.  The Bobby Fuller Four made I Fought the Law (and the Law Won) into a top 10 hit in 1964.  Sadly, Fuller was found dead in his car shortly after he tasted fame.  The death was ruled a suicide/accident, although some suspected Fuller was murdered.  John Mellencamp paid homage to Fuller in his song, R.O.C.K. in the U.S.A. (“There was Frankie Lymon, Bobby Fuller, Mitch Ryder (they were rockin’).”  Jackson Brown’s Lawyers in Love reached the Top 40 in 1983, while his album of the same name made it all the way to #8 in the charts.  The sardonic Sue Me, Sue You Blues appeared on former Beatle George Harrison’s second solo album, Living in the Material World, released in 1973.  Like many rock stars, Harrison had been embroiled in more than his fair share of litigation, including lawsuits over the breakup of the Beatles.  The song contained biting lyrics such as, “Bring your lawyer, and I’ll bring mine; get together and we could have a real bad time.”  Lawyers, Guns & Money was a typically over-the-top, hilarious tune from the late Warren Zevon that appeared on his 1978 album, Excitable Boy.  It includes the classic refrain line, “Send lawyers, guns, and money; the s*** has hit the fan.”

Warning: Canadian Coffee Seller Makes Fun of Hot Coffee Warnings

Liebeck coffee burn.

One of the milder pictures of  Stella Liebeck’s coffee burn injuries.

Any mention of lawsuits and hot coffee invariably invokes the grossly misunderstood “McDonald’s coffee spill” case of Stella Liebeck, a 79-old-woman who suffered third-degree burns after spilling a stryrofoam, takeout cup of McDonald’s coffee on her legs.

I apologize for the gruesome picture, but a large part of the misunderstanding of this case comes from people not appreciating that Ms. Liebeck suffered extremely severe injuries. There are much worse pictures of her injuries available on the internet. There is also a ton of information, and misinformation, out there about the McDonald’s case. Here (scroll down to “Public Perceptions: The McDonald’s Coffee Spill”) and here are a couple accounts of the facts. You might also want to check out the movie, Hot Coffee, which explores the McDonald’s case and, more generally, the tort reform movement.

Canadian coffee cup warning

Sideways on purpose. Click to expand.

At least one Canadian coffee seller found the idea of warning consumers about hot coffee to be amusing:

“If this was another country, we’d have to tell you this coffee may be hot. Good thing this is Canada!”

2012 Spot the Tort Contest

2012 Spot the Tort ContestYou thought “Risk” was a good game? Spotting risk is even more fun, and definitely more educational. As law students learn in Torts, the world is a dangerous place where the worst that can happen often does.

My 1Ls at the University of Memphis have been participating in a “Spot the Tort” Contest. Check out their photo entries. This is just one sample of the “accidents waiting to happen” they’ve documented in and around Memphis.

Dedicated Law Student Gets Judge Hand Tattoo

Judge Learned Hand tattooAre you in law school? Do you consider yourself to be a dedicated law student? Not sure? Measure yourself on McClurg’s simple 0-100 scale, with 0 being “I’m not totally thrilled with Judge Learned Hand” and 100 being “I aspire to be like the guy in this picture.”

Years ago, a student of mine at the University of Arkansas at Little Rock School of Law took a trip, to Philadelphia, I think. He struck up a conversation with a tattoo artist in a bar. When the artist learned he was in law school, she asked, “Have you ever heard of a judge named Learned Hand?”  “Of course!” the student replied.  All law students know and remember Judge Learned Hand.

The artist said the young man above came into her tattoo parlor with the accompanying picture of Judge Hand (the picture is from the famous Prosser, Wade & Schwartz Torts casebook used at 124 law schools) and asked to have Judge Hand, wearing a jester cap, tattooed on his arm. As proof, she followed up and sent this photograph to my student, who entrusted it to me.

For non-legals, Judge Hand was a famous judge who in a famous case–U.S. v. Carroll Towing–set forth a famous algebraic economic cost-benefit formula for determining whether injury-causing conduct was reasonable or unreasonable. If reasonable, the defendant is off the hook. If unreasonable, the defendant is liable for negligence and must pay damages. The formula is B < P x L. B stands for the burden of avoiding a risk of harm, P is the probability that the risk will actually cause harm, and L stands for the severity of the harm if it occurs. The formula states that if the burden of avoiding the harm is less than the probability of the harm occurring multiplied by the severity of the potential harm, the conduct is unreasonable (i.e., negligent). Conversely, if the burden of avoiding the risk outweighs the probability times the severity of harm, the conduct is reasonable (i.e., non-negligent).

The back of the picture is stamped with “Tattoo & Photo by Sherry Sears, Creative Images, Des Moines, IA.” So if you want to impress your professors and university’s counseling department, book a ticket to Des Moines.

New Casebook on Zombie Law

zombie supreme courtGood news for legally inclined zombie lovers.  Joshua Warren has compiled a casebook  on Zombie Law that “include[s] case opinions from  the over 300 U.S. Federal Court opinions with the word “zombie” (and “zombies”, “zombi”, “zombis”, “zombified”, “zombism”, etc..).” These include cases from the zombified Supreme Court (available as postcards, along with zombie law teeshirts and zombie flashdrives).

Warren explains that this is a “serious” project. From his promotional website:

The “zombie” in federal courts are very  interesting.  Aside from the intellectual property cases that provide  some reflection on modern zombie fiction, there are also ample  metaphoric uses of the word in these judicial writings.  Judges have referred to “zombie precedents” and “zombie  litigation”. There  are zombie corporations, zombie  criminals, a significant number are  social security cases in which people describe themselves in zombie  condition and even a recent mentions of cybernetic zombies.

Unlike other works of zombie academia, the zombies in this book are all real.  Most zombie scholarship uses hypothetical zombies as tropes to create  entertaining and extreme fact patterns that can be used to explain  complex subject matters.  This has been used effectively for  neuroscience (Schlozman, Voytek), international policy analysis (Drezner), public health (Center for Disease Control), geography (Kickstarter project: Zombie-Based Learning), survival skills (Brooks) amongst other subjects (See Zombie Research Society) including also academics who focus on the fictional character itself (Mogk, Brooks).

This Zombie Law book is different because it does not use zombies as hypotheticals to teach law. It is not conjecture about what zombies are or might be. This book is a compendium of real usages of the actual word in American jurisprudence.  This book is a collection of real legal cases that literally include “zombies” (or similar word) in US Federal Court opinions..

The basic outline of the  book will separate most cases into issues of corporations, medications, criminals and, of course intellectual property.  Major sections will be  devoted to Social Security (disability) law, corporate fraud and issues of criminal intent. There are noteworthy cases referring to post traumatic stress disorder and many recent Social Security cases regarding of fibromyalgia.  The intellectual property cases are about popular zombie fiction and also so-called “vicious zombi” patents.  In general, the idea of zombies in a mall is public domain for copyright but particular forms of zombie products are protected by trademark.

Frequently there is a sort of double meaning in the word.  In Social Security cases, the word zombie is found as a symptom of pain, depression and anxiety but also the side effect of medications prescribed for those same symptoms.  In criminal law, zombie appear in victim’s description of their assailant’s behavior but also as defense argument against criminal intent. For corporations the ironic question of corporate-personhood begs the question, ‘what is a person?’, which is often the implied question of zombie studies.

For all you law professors and other legal authors who thought there was no niche left to write about, Warren shows you just have to think outside of the box, in this case, the ones buried six feet under.

Cardozo’s Pub

Cardozo's Pub Palsgraf

Two drink minimum; No packages wrapped in newspaper.

A student of mine posted this pic on Facebook of “Cardozo’s Pub” in Chicago. Is “Andrews’ Billiard Hall” next door by any chance?

For non-legals, Judge Benjamin Cardozo is one of the most famous American jurists. He authored several judicial opinions read by law students, including the majority opinion in Palsgraf v. Long Island Railroad. Judge William Andrews wrote a famous dissent in the same case.

Palsgraf, studied by every first-year law student, is the improbable tale of a set of scales allegedly knocked on top of the plaintiff, Mrs. Helen Palsgraf, as a result of an explosion that occurred when a man running to catch a train dropped a package of fireworks while being helped onto the train by railroad employees.

For the completely true fake inside story behind these opinions, check out Palsgraf Uncovered). Other posts related to the famous case are here, here, and here.

No known connection exists between this Chicago pub and the real Judge Cardozo.

Note to Law Students: Don’t Forget the Families

The Companion Text to Law School Flyer

Always read the fine print.

The start of another academic year is closing in quickly. If you’re going to be a new law student, you’re not the only one who needs to get ready for a wild ride.

Dozens of books have been written to prepare students for law school, but The “Companion Text” to Law School is the only book ever written to prepare the families and friends of law students for what to expect and how to deal with it.

Check out some review excerpts on this new flyer.

Supreme Court Shows Why the Answer to Most Legal Questions is “It Depends”

U.S. Supreme Court

Whatever happened to “Appellant wins”?

Back in 2003, in McConnell v. Federal Election Committee, the U.S. Supreme Court cleared up a major legal dispute over campaign financing. Er, well, maybe not completely cleared up.

The basic question was whether the McCain-Feingold Act, a federal statute that imposed restrictions on political contributions, violated the First Amendment free speech rights of potential contributors.  A challenging issue no doubt, but certainly not too tough for the mighty U.S. Supreme Court to resolve, right?

With nine justices voting, the result could have been as simple as 8-1, 7-2, 6-3, or 5-4 in favor of one side or the other.  The nine wise ones chose a slightly more complicated path. Here is the Court’s actual voting lineup straight out of the case:

STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA § 305, and in which THOMAS, J., joined with respect to BCRA §§ 304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§ 311 and 318, concurring in the result with respect to BCRA § 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and § 311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J.,joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA § 323(e) and BCRA § 202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA § 305, in which GINSBURG and BREYER, JJ., joined.

Who won?  I have no idea.

For embodying in a single voting lineup the reason why the most accurate answer to most legal questions is “It depends,” this case gets into the Strange Judicial Opinions Hall of Fame.  If members of the world’s most powerful tribunal are unable to agree on what the law means, how could one expect poor law students to do so?

McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Thanks to Elise Hendricks.

Warning: Go to Walmart for the Perfect Date

Law student and boyfriend holding hands on romantic date night reading product warning labels at Walmart.

Covering products liability in Torts and made a point of explaining what utter fun reading product warning labels can be, saying:

“In fact, if you’re looking for a really great night out, take your date to Walmart.  Hold hands and spend the evening strolling the aisles reading product warning labels.  It’s a guaranteed good time!”

One student and her boyfriend took me up on the idea.  She sent along this great PowerPoint presentation of their romantic Walmart Product Warning Label Date.

McClurg Interviewed on Westlaw Insider Blog

The Westlaw Insider Blog recently interviewed McClurg about his new book, The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student.

The “Companion Text” to Law School, Understanding and Surviving Life with a Law Student

The Companion Text to Law SchoolThe “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012)

Amazon.com listing

Table of Contents

As every lawyer and law student knows, law school is an adventure for the entire family. It’s a life-changing experience that affects everyone involved.

Dozens of books have been written to prepare students for law school, but what about all those other suffering souls–the relatives and friends who support and struggle right alongside the student on their wild and crazy journey toward a Juris Doctor degree? Who’s preparing them?

Named one of Amazon Editors’ Favorite Books of 2014.

Read interview with McClurg about the book on the Westlaw Insider Blog

The “Companion Text” to Law School is designed to equip loved ones of law students—parents, partners, and other friends and relatives—with all the information and tools needed to understand both law school and their stressed out, rapidly transforming student.

Highlights

• Written by an award-winning professor with wide experience teaching thousands of law students at six law schools.

• Explains all the essentials of legal education, including the first-year curriculum, the Socratic Method of teaching, and the dreaded single-exam format.

• Explores the psyches of law students, including what they love to talk about, things you should never say to them, their sources of stress, and how law school can change their personalities.

• Addresses the impact of law school on outside relationships—and vice versa—and gives tips for navigating relationships with law students.

• Includes dozens of comments, anecdotes, and insights from real law students and their loved ones.

• Extras include a chapter on the types of jobs available to new law graduates, fun “legal” questions you can use to stump your student, a sample case, and a glossary.

• Backed up throughout by academic research.

• Written in a lively, reader-friendly voice, bolstered by humor.

Judge Dumps on Law Review Articles in Custody Fight Between a Birth Mother and Biological Mother

A judicial friend from Florida sent along a case of first impression involving a parental rights determination between a birth mother and a biological mother that she calls “a law professor’s dream case.” It does sound a bit like a law school exam question—a very difficult one.

The case involved two women in a committed relationship who wanted to have a child. Ova from one of the women were removed, fertilized by donated sperm, and implanted in the other woman, who then gave birth to the child. Thus, one woman was the biological mother and one was the birth mother, an unusual situation to be sure.

Only the birth mother’s name appeared on the child’s birth certificate. For years, the two women reared their child together but, when the relationship failed, the birth mother, without telling the biological mother, fled to Australia with the child.

The trial court reluctantly ruled that only the birth mother was the legal mother but invited appeal of his decision. The Florida Fifth District Court of Appeal reversed, ruling that both women had parental rights to the child.

My judicial friend pointed out that this is a case begging, and no doubt destined, for scholarly attention by law professors and law students, although Judge Thomas D. Sawaya, writing for the majority, might shiver at the thought.

Judge Sawaya was not impressed that the only authority for the birth mother’s position that only gestational mothers have maternal rights were: law review articles and a Tennessee case that relied solely on a law review article.

Regarding law review articles relied on by the birth mother, the judge commented: “We do not believe that law review articles written by students and professors establish the common law.”

About the Tennessee case, Sawaya said: “The common law does not come from law students and professors who write law review articles, and we hardly think it comes from a decision rendered by a Tennessee court that does nothing more than cite a law review article as the source.”

Hmm, I guess that depends on how one defines “the common law.” The Tennessee case is part of the body of judicial precedent that forms the common law. It might not be persuasive precedent, but isn’t it still part of the common law?  And simply because a judicial opinion relies on a law review article doesn’t remove the opinion from the realm of common law.

Courts cite law review articles frequently, including the U.S. Supreme Court, and there are innumerable instances of law review articles–including some written by students–that have turned the tide of the common law. As just one example, the products liability doctrine of market-share liability, first articulated by the California Supreme Court in Sindell v. Abbott Laboratories, was conceived from a student-written Note in the Fordham Law Review.

As an aside, my judge-friend was troubled that the majority’s analysis seemed to treat the child as a piece of property, giving no consideration to the best interests of the child, an issue the concurring opinion also focused on.

T.M.H. v. D.M.T. , Case No. 5D09-3559 (Fla. 5th DCA, Dec. 23, 2011)

World’s Pithiest Description of Stare Decisis

David Cheifetz, Lawhaha’s friend from the north, sent in this Canadian court opinion about the judicial pecking order. David wrote:

Here is the pithiest and funniest summary of “stare decisis” ever written. Judge Cardozo’s explanation in “The Nature of the Judicial Process” may be the best justification and explanation, but it doesn’t hold a candle to what you’re about to read for wit and succinctness. The below summary comes from a decision by a Master of the Queens Bench of Alberta, Canada. A Master is a judge in all but name whose role is deciding preliminary motions in civil matters. The Master involved, Master Funduk, is noted for his witty judgments. The Queens Bench is the trial division of Alberta’s highest court. In the Canadian system, the highest court of any province is always the province’s Court of Appeal, even if the highest provincial trial court is called the Superior or the Supreme Court of the province. Here’s how Master Funduk summed up his role (some paragraph breaks inserted):

Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada.

Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts’ judicial ladder. I do not overrule decisions of a judge of this Court.

The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

South Side Woodwork (1979) Ltd. v. R.C. Contracting Ltd., [1989] A.J. No. 111, 95 A.R. 161 at 166–67 (Alta. Q.B.). Thanks to David Cheifetz.

Lawyers Against Redundancy Unite

Legalese embraces redundancy. Legalese embraces redundancy. Legalese … sorry, just getting in the spirit. In a convoluted dispute regarding a real estate conveyance, Judge Mark P. Painter, Ohio Court of Appeals, First District, offered his common sense take on the phrase “free and clear title” and other legal redundancies:

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.

The Norman Conquest was in 1066. We can safely eliminate the couplets now.

What’s your favorite legal redundancy?

Kohlbrand v. Ranieri, 823 N.E.2d 76, 78 (Ohio Ct. App. 2005).

Please, Mr. Postman

Originally appeared in the December 1997 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Please, Mr. Postman

BY ANDREW J. McCLURG

The “mailbox rule” is an elementary principle of contract law which holds that a contract acceptance is valid upon dispatch in the United States mail.

Some assert that the conveniences of modern technology may soon render the mailbox rule obsolete. For example, already under the emerging “cell phone rule” a contract may be offered, accepted, breached and the offeror verbally abused without ever having to leave one’s car.

Others argue persuasively that the legal profession will never allow the mailbox rule to die because it is one of the only rules lawyers remember from law school. Thus, familiarity with strategies for avoiding this harsh rule is essential.

Once a contract acceptance is deposited in the mail, the sole means of withdrawing it is to actually physically retrieve the letter. Fortunately, several creative options exist for accomplishing this:

1. The Official Method. The only method approved by the U.S. Postal Service for retrieving a letter once it has made it into the hands of a postal worker is begging. This ancient form of pleading, known in Latin as Si placet, Bone Vir Tabellarius, is believed to have originated in 398 B.C. although it did not gain widespread judicial favor until the Marvelettes made it into a hit single in 1961.

2. The Magic Trick Method. Tell the postal worker you are going to perform a magic trick. Reach into her mailbag and pull out a rabbit. If there’s no rabbit inside, pull out a coupon book, an electric bill, anything you can get your hands on. Whatever comes out, pretend it’s a rabbit. While the postal worker is dialing 911, retrieve the acceptance letter from the mailbag.

3. The Career Change Method. Intercept the letter by rapidly taking the civil service exam and actually becoming a postal worker. The risk of this approach is that, because postal workers earn more than many lawyers and get to drive around in those cool little trucks, you may lose interest in contract law and forget about retrieving the letter.

Best Law Review Article Title

It’s publish or perish in the law professor business, and most of that publishing occurs in law review articles.

Law professors strive mightily to make their law review articles stand out by coming up with clever titles for them. The trick is coming up with a title that is attention-getting, but also descriptive.  This, of course, requires use of the ubiquitous colon, which appears in the vast majority of law review titles. Some law professors look down on colons in law review titles (yes, this is part of the important stuff we actually spend time thinking and talking about) and eschew them, but the result is often a title that doesn’t give a clue what the article is about.

Here’s a top candidate for the best law review article title:

Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990).

Oldsters will recall that “She’s Got Bette Davis Eyes” was a smash hit for Kim Carnes in 1981. Originally written by Jackie DeShannon and Donna Weiss in 1974, Carnes took the song to number one on the Billboard charts where it held the top spot for nine weeks.

— Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990)

Warning: Law Students Are Careful

funny warning labelLaw students learn to avoid risk, in part because of what is known as the “availability heuristic”–a mental shortcut people use to unreliably evaluate the probability of risks based on whether they can remember the event ever happening before.

Law students and lawyers tend to over-estimate risk because they can always imagine a situation (an availability) in every context of life where things went wrong. In all the cases they read, things went wrong, which is why they became cases. Their constant exposure to Murphy’s Law causes them to become very adept at (even obsessive about) spotting and avoiding risks in their own lives.

Here a careful student of mine studying in the law library with her laptop took the extra-prudent precaution of posting a warning sign near to the cord and plug to avoid a tripping injury risk.

Breaking News: Marbury v. Madison Causing Consitutional Crisis

marbury unconstitutional

Chief Justice John Marshall, author of Marbury v. Madison.

In a 2005 opinion, an Alabama Supreme Court justice (that well-known jurisprudential heavyweight “Tom Parker”), without a trace of irony, called the U.S. Supreme Court “presumptuous” while declaring Marbury v. Madison and its progeny to be “unconstitutional.”

For non-legal types, Marbury is the landmark 1803 Supreme Court case authored by the great Chief Justice John Marshall that established the power of “judicial review”; i.e., that the Supreme Court gets the last word in disputes with the legislative and executive branches of government.

The Alabama case involved a challenge to the constitutionality of certain statutes affecting taxation and the funding of the Birmingham, Alabama civic center authority. Justice Parker included this footnote in his concurrence (italics added.):

21. . . . Despite everything in the text of the Constitution, its history, and the expressed intent of the Framers being completely contrary to the notion of judicial supremacy, the United States Supreme Court has presumptuously arrogated such a position for itself simply by declaring it so.

In Cooper v. Aaron . . . the United States Supreme Court stated: “[Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Tellingly, this proclamation of judicial supremacy was made without citation to the Constitution or any other authority. The result of this unconstitutional doctrine of judicial supremacy has been an increasing shift of the balance of powers from the elected executive and legislative branches of the federal government to the unelected judiciary, thereby emboldening federal courts to rule upon constitutional questions based upon foreign law or perceived changes in public opinion instead of the Constitution and its history. . . .

The turning away from our national compact by federal courts now threatens our country with a constitutional crisis.

There’s a constitutional crisis over Marbury?

Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 223 n.21 (Ala. 2005) (Parker, J., concurring). Thanks to Brian Brock.

Neurotic, Paranoid Wimps―Nothing has Changed

1L storiesAndrew Jay McClurg, Neurotic, Paranoid Wimps―Nothing has Changed, 78 University of Missouri-Kansas City Law Review 1049-61 (2010).

In an issue of the UMKC Law Review devoted to “1L Stories” and intended as a tribute to Scott Turow’s classic book, One L, the author recounts his own first-year tales of neurotic, paranoid wimpism (descriptors from Amazon.com reviews of Turow’s book). Turow wrote the foreword for the issue.

The author’s narrative asserts that a dominant theme of One L, the story of Turow’s first year at Harvard Law School, was negative affect. Turow talked of anxiety, fear, stress, panic, vulnerability, self-doubt, shame and grief, wounded self-esteem, unhappiness, paranoia, embarrassment, oppression, and insanity.

The author describes his similar experiences and asserts that, contrary to popular belief, things have not changed that much in legal education since his and Turow’s day.

Law Professor Exposes Phony Tort Cases

Jonathan Turley

Professor Jonathan Turley exposed phony outlandish tort cases.

Although several years old, Professor Jonathan Turley’s USA Today article exposing phony tort cases remains must-reading for anyone concerned about the tort reform movement. Why? Because people are still circulating these tall tales.

You know those crazy tort lawsuits you read about, the ones that make people indignant about the tort sytem, the ones politicians and tort reformers use to build public support for the movement, the ones that get endlessly forwarded to email inboxes?

They’re crazy, to be sure. But, one problem. A lot of the most notorious cases are fabricated, as Turley explored in his article.

The notorious–but apparently fictitious winning-plaintiffs–and their outlandish “cases” include:

• Kathleen Robertson, a woman who–imagine this–received a $780,000 jury award against a furniture store after she tripped over her own son.

• Carl Truman, who won a $74,000 judgment after his hand was run over by a neighbor. The neighbor could not see Truman because he was kneeling down while in the process of stealing the neighbor’s hubcaps.

• Terrence Dickson of Bristol, Pa., a man who received a $500,000 award against a garage-door manufacturer after he almost starved while trapped in the garage of a house he was burglarizing while the family was on vacation.

• And my personal favorite, a Mr. Grazinski, who won more than $1,750,000 against Winnebago when the RV he was driving went off the road after he put it on cruise control at 70 mph to go into the back to fix a cup of coffee.

Turley was unable to track down records showing that any of these, or several other notorious crazy lawsuits, actually existed.

It should be more than a little troubling to people that state legislatures have passed thousands of tort reform statutes throwing out 200 years of carefully considered common law (judge-made law) in part based on sound-bite reporting of cases that never happened.

— Jonathan Turley, Legal Myths: Hardly the Whole Truth, USA Today, Jan. 30, 2005.

Palsgraf Curse?

Palsgraf curse

Cardozo wrote the famous majority opinion in Palsgraf.

Several lawhaha visitors sent in Mark Fass’s article in the New York Law Journal about an alleged curse on the family of Helen Palsgraf, the most famous torts plaintiff in history. Every lawyer remembers Mrs. P from law school. To test this theory, visit an elderly, dying lawyer in a coma and shout “Palsgraf!” Immediately, he will recite: “A man carrying a box wrapped in newspaper boarded a train at the Long Island Railroad Station … cough, cough … ack.”

The box contained fireworks. When it was dislodged by employees of the Long Island Railroad trying to help the man on the train, the fireworks exploded, allegedly knocking a scale onto Mrs. P. Mrs. P’s saga led to the legendary, and incredibly confusing, opinions by Judge Benjamin Cardozo (that’s Cardozo in the picture–handsome fellow he was) and Judge William Andrews studied by students year in and year out at law schools great and small.

Now Fass reports that Mrs. P’s accident began a curse on the Palsgraf family, at least that’s what some of her descendants believe. One descendant fell off a ladder in 1965 and sued the manufacturer, but never made it to trial because the ladder was stolen. Another lost her thumb when a ping-pong table collapsed. A lawsuit led to a small settlement. Another descendent tripped while jogging over a broken curb, but was discouraged by lawyers from filing suit.

The most intriguing Palsfraf mishap reported by Fass involves a descendant who lost control of his truck on an icy hill in 1968. The truck slid towards the edge of cliff. Guess what saved the life of Mrs. P’s closest living relative? The truck’s wheels got caught on a track of … you guessed it, the Long Island Railroad. (Cue Twilight Zone theme.)

— Mark Fass, Palsgraf Railroad Injury Proximate Cause of Family Curse?, New York Law Journal, Dec. 10, 2004.

Mrs. Palsgraf is Alive, in the U.S. Supreme Court

PalsgrafAs a Torts prof, I loved this tidbit sent in by Elise Hendrick. Good old Mrs. Palsgraf. You can try, but you can’t keep her down.

Elise was listening to oral arguments before the U.S. Supreme Court in Exxon Co. USA v. Sofec, 116 S.Ct. 1813 (1996), and came across the following exchange between George Playdon, counsel for Sofec, and Justice Scalia. The two were engaged in a colloquy about the maritime supervening cause doctrine:

Scalia: I’m not sure that you need a “doctrine of supervening cause.” Is a doctrine of supervening cause anything other than Palsgraf? When you say, you know, that the negligence … the causality … had long since terminated. Once you say you’re out of the scope of the risk, what do you need a doctrine of supervening cause for? And isn’t that basically your case?

Playdon (chuckling): I smile—I never envisioned thirty years ago that I’d have the opportunity …

Scalia: Of arguing Palsgraf!

Playdon (stammering, laughing): Obviously, Palsgraf is a foreseeability doctrine, just like Hadley v. Baxendale is a foreseeability problem.

Elise speculates that this may have been the first time the implausible case of Mrs. P has been mentioned in court since Palsgraf was decided in 1928.

— Thanks to Elise Hendrick.

Warning: Do Not Even Think About Using the Stairs

Warning on stairsJust one question: Is it okay to use the stairs?

Not surprisingly, since they are full of law professors and law students, law schools are pretty safe places.  Be hard to overlook these warnings at the University of Memphis law school.

Wait, what is that in the background? Looks like a dead body. Maybe just a tired 1L.


Funny Law School Stories
For all its terror and tedium, law school can be a hilarious place. Everyone has a funny law school story. What’s your story?

Strange Judicial Opinions
Large collection of oddball and off-the-wall judicial opinions and orders.

Product Warning Labels
A variety of warning labels, some good, some silly and some just really odd. If you come encounter a funny or interesting product warning label, please send it along.

Tortland
Tortman! Andrew J McClurg
Tortland collects interesting tort cases, warning labels, and photos of potential torts. Raise risk awareness. Play "Spot the Tort."

Weird Patents
Think it’s really hard to get a patent? Think again.

Legal Oddities
From the simply curious to the downright bizarre, a collection of amusing law-related artifacts.

Spot the Tort
Have fun and make the world a safer place. Send in pictures of dangerous conditions you stumble upon (figuratively only, we hope) out there in Tortland.

Legal Education
Collecting any and all amusing tidbits related to legal education.

Harmless Error
McClurg's twisted legal humor column ran for more than four years in the American Bar Association Journal.