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.
|
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)
Law school is an adventure for the entire family. It profoundly affects not only students, but their loved ones. This book provides all the information and tools necessary to help loved ones of law students survive the wild ride through legal education. Below are the 73 law schools, and number of entries per school, currently represented in Lawhaha.com’s inventory of funny law school stories. The University of Arkansas at Little Rock School of Law currently holds the lead with six stories, followed by the University of Oklahoma School of Law with five. Forget the U.S. News best law school rankings. Advance your school in Lawhaha.com’s funniest law school rankings! Submit your funny law school story using the Contact link at the top of every page. University at Albany (3) The National Jurist, the Magazine for Law Students, interviewed McClurg for an article in the September 2011 issue called The First Year: One Wild Ride, offering tips and insights about that crazy first year of law school. Check it out here. 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.  Whatever happened to "Appellant wins"? Good news! In McConnell v. Federal Election Committee, the U.S. Supreme Court has cleared up the legal disputs 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. 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). 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)
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.  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.  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.  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.
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.
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. |
|
Books  The 'Companion Text' to Law School: Understanding and Surviving Life with a Law Student  1L of a Ride: A Well-Traveled Professor's Roadmap to Success in the First Year of Law School  Practical Global Tort Litigation: United States, Germany and Argentina  Gun Control and Gun Rights  The Law School Trip: The Insider's Guide to Law School  Amicus Humoriae: An Anthology of Legal Humor Selected  Fight Club: Doctors vs. Lawyers - A Peace Plan Grounded in Self Interest  Neurotic, Paranoid Wimps - Nothing has Changed  Kiss and Tell: Protecting Intimate Relationship Privacy Through Implied Contracts of Confidentiality  Dead Sorrow: A Story About Loss and A New Theory of Wrongful Death Damages  A Thousand Words are Worth a Picture: A Privacy Tort Response to Consumer Data Profiling  The Public Health Case for the Safe Storage of Firearms: Adolescent Suicides Add One More 'Smoking Gun'  Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms  Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying  Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts  The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence  Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places  The Rhetoric of Gun Control  It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases  Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping  Logical Fallacies and the Supreme Court: A Critical Analysis of Justice Rehnquist's Decisions In Criminal Procedure Cases  |
|||
|
Home | Privacy, DMCA, and Other Legal Stuff | Site Map
|
|||||
is a scholar and teacher in the areas of tort law, products liability, legal education, privacy law and firearms policy. He currently holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.