Category: Humor

1

Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
1

Some Selected New Year’s Resolutions of the Federal Judiciary

Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit:

Write at least one opinion in which every word is a contraction

United States Supreme Court Chief Justice John Roberts:

On June 29, at precisely 6:30 a.m., move part in hair from left side of head to the right side; change it back moments later

United States Supreme Court Associate Justice Sandra Day O’Connor (retired):

Track down John Riggins; tell him to “loosen up”

Guido Calabresi, Senior Judge, United States Court of Appeals for the Second Circuit:

Climactic showdown with 101-year-old Ron Coase atop the Eiffel Tower

United States Supreme Court Associate Justice Anthony Kennedy:

Finally receive “SWNGVOT” personalized license plate from the Washington, DC, Department of Motor Vehicles

***

If any of you have heard of any other judge’s resolution, please feel free to relate it in the comments below.



2

FTC v. Santa

Jeff Jarvis has this humorous piece about the FTC vs. Santa:

Federal Trade Commission Chairman Jon Leibowitz today announced a record fine against Santa Claus for violations of the Children’s Online Privacy Protection Act.

“Mr. Claus has flagrantly violated children’s privacy, collecting their consumer preferences for toys and also tracking their behavior so as to judge and maintain a data base of naughtiness and niceness,” Leibowitz said. “Worse, he has tied this data to personally identifiable information, including any child’s name, address, and age. He has solicited this information online, in some cases passing data to third parties so they may fulfill children’s wishes. According to unconfirmed reports, he has gone so far as to invade children’s homes in the dead of night. He has done this on a broad scale, unchallenged by government authorities for too long.”

I also heard that DHS has called for the arrest of Santa for flying over restricted airspace.  The FBI is seeking his records about those who are naughty.  The TSA is upset that he bypassed security screening.  Meanwhile, his reindeer are being charged with cyberbullying Rudolf.  And he’s in trouble with the NLRB for his restrictive social media policy forbidding his elves from blogging about their low pay and inability to unionize. . . .

 

1

Trivia Time: (Legal) Person of the Year

As Gerard indicated when he introduced me to this blog, he and I were on the Stanford College Bowl team together way-back-when.  I remain amazed by Gerard’s encyclopedic knowledge of Roman emperors. I was merely the go-to guy for pop culture and sports trivia.

In any event, in honor of Time’s unveiling of “The Protester” as its 2011 Person of the Year, consider the following trivia question:

Who is, or was, the only United States judge to be named Man (or Person) of the Year while he (or she) was sitting on the bench?

(And no, one cannot point to Time’s designation, say, of “American Women” as its People of the Year for 1975, and say that this cohort captured many judges; we’re talking about specific individuals here—even though North Carolina Supreme Court Chief Justice Susie Sharp was among the women on the cover of that issue.)

The answer, after the jump.

Read More

2

The Annals of Article Placement

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 5, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.” As you will see, my scholarship sheds light on this heretofore overlooked, but (as I discuss) extremely important, provision.

I am prepared to give the Impressive Law Review exclusive publication rights for this piece until January 12, 2012.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This message follows upon my earlier note to you, sent via e-mail on January 5, 2012. As indicated in that e-mail, I had originally planned to make my article available to other journals as of today. However, I appreciate that with the New Year, the Winter Break, and the various college football bowl games on television, you may not have been able to turn to the piece quite yet. Or, perhaps, you did not receive my earlier e-mail; I know how sometimes these messages can get lost in the wires. Accordingly, I am pleased to relate that I will continue to hold my “exclusive” window open for another two weeks, through January 26, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I am just about to distribute my article to a variety of other law journals via ExpressO—seriously, my right index finger is hovering above the “submit” button, even as my left hand types this message—but before I do, I want to make absolutely certain that you have (1) received the article; and (2) had an opportunity to review it.

Having not heard from you as yet, I assume the answer to both of these questions is “yes,” but one never knows.  I really think the piece is a good fit for your journal, especially seeing as how your law school is in a coastal state. Accordingly, I am pleased to relate that I will grant one final extension of my “exclusive” window, now holding it open to February 3, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 3, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Just a friendly reminder that this is the expiration date of my “exclusive” offer!

Regards,

Kyle Graham

P.S. Did you get the gift basket I sent?

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 10, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This letter follows upon my earlier communications. As previously related, I have circulated my article to other journals via ExpressO, such that my “exclusive” offer is no longer in effect. However, I remain open to publication with your journal; please contact me if interested.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 21, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I have just received offers to have my article published by several highly reputable journals that I cannot disclose at this time and which I absolutely, positively did not just make up.  Given this turn of events, I ask that you expedite your consideration of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 29, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Thank you very much for your letter of February 24, 2012; it is nice to finally hear from you, and to put an autopen signature to your journal’s face.

I admit that I was both surprised and impressed by your diligence in checking with the editorial board of, apparently, every other law journal in the United States and Canada.  Based on your report, I must acknowledge that I may have misconstrued their prior communications to me.  In my defense, how was I to know that an advisement that my article was “under review” was anything less than a binding commitment to publish?  I’m just a law professor, not a rocket scientist, after all.

In any event, I do hope that this little misunderstanding does not affect your continued consideration of my article. I remain eager to see it published in your journal.

I may be in the neighborhood of your institution for a conference within the next few weeks.  If so, I hope you will not mind if I take the liberty of dropping by your office to discuss the potential publication of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: March 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I write this letter to acknowledge my receipt of a restraining order, apparently taken out by your publication against me.

In response, this letter also serves as a formal withdrawal of my article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” from consideration by your publication.  This is your loss, but I feel that your recent actions leave me no choice in the matter.

Regards,

Kyle Graham

P.S. There was a glaring citation error on page 2340 of your last volume.  Which sucked, by the way.

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: May 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

How are you doing? Well, I hope.  How are classes?  Looking forward to that post-graduation clerkship?

I also hope that you realize by now that I was just joking with my last message. If you don’t remember, don’t worry about it. It was nothing important. I simply wanted to “lighten” what I am certain is a laborious review process for you and your staff.

In any event, I write to offer my article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” for inclusion in your online journal “Supplement.” As you will see, I have modified the introduction and thesis so as to draw a closer connection to the 2013 America’s Cup, such that I believe the piece will be cited frequently in connection with that regatta.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

5

Professor Graham’s Top Nine Failed Attempts to Increase His SSRN Downloads

9. Offering Justin Bieber $2,500 to rave about latest article on Twitter

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts Die” as her Book of the Month

2. “Rick-Rolling” people over from Cass Sunstein’s latest article on SSRN

1. Prominent advertisements that each article is guaranteed to be “100 percent Kardashian-Free”

3

“The Legal Elephant Parade That Is the Ninth Circuit”

In an editorial published yesterday, the Wall Street Journal casually referenced “the legal elephant parade that is the Ninth Circuit.”

Though the Journal gets points for originality, the wittiest critique of the United States Court of Appeals for the Ninth Circuit that I’ve heard remains a comment attributed to a district-court judge within the circuit.  This judge reported thusly on the status of a decision that had been appealed from his court to the judges above: “I’ve just been affirmed by the Ninth Circuit, but I still think I’m right.”

Interestingly, the quote immediately above seems to have originated with (or at least, been popularized by) Stanley Weigel, a rather liberal, now-deceased Kennedy appointee. More likely than not, to the extent that this comment provides some insight into the thoughts of its speaker, Weigel was lamenting the tendencies of the relatively conservative Ninth Circuit panels of a bygone era.

1

Ye Olde Professor’s Guide to Building an Exam Curve

Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, “You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.

***

The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.

6

My Holiday Card to Concurring Opinions Readers

TORTS

Final Examination
Professor Graham
Holiday 2011 Semester

PROFESSOR’S INSTRUCTIONS:

1. You have three hours to complete the exam,
which consists of a single question.

2. This is a closed-book exam.

3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.

4. Good luck!

QUESTION ONE

On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.

As Santa prepared to board his sleigh, he slipped and fell on an icy shingle. Santa tumbled down the roof and crashed into the bushes below, hurting his back. Mr. Adams had seen the ice on his roof earlier that day, but decided not to clear it off; the task seemed like a lot of work, it was cold outside, and there was a good football game on TV. As Santa lay injured in the bushes, a partially unwrapped gift—a Chia Pet—inexplicably fell from (or was disgustedly tossed out of) a window at the Adams residence, and clobbered Santa on the head.

The tumult caused Santa’s reindeer to panic and fly off without him. The out-of-control reindeer and sleigh crashed into and pulverized the chimney at the nearby Batista household. Meanwhile, the Chen and Davis children had been “nice” this year, but received no presents due to Santa’s injury and the runaway sleigh. Believing that Santa considered them “naughty,” the Chen and Davis kids suffered serious emotional distress.

Later that night, one of the gifts that Santa had left for the Adams family, a Sniggie® blanket (like a Snuggie, only cheaper), spontaneously burst into flames. The ensuing fire burnt the Adams house down to the ground.

Finally, the events related above caused some scales to topple onto a woman standing at a train station in Brooklyn.

Identify and evaluate the torts implicated by the foregoing facts, taking care to consider, inter alia:

1) Whether Santa is best classified as an invitee, licensee, or trespasser at the Adams household, assuming that the State of Confusion continues to adhere to these categories;

2) Whether the doctrine of res ipsa loquitur applies to the defenestrated Chia Pet;

3) Whether Santa would be liable for the chimney damage in a “fence out” jurisdiction;

4) Whether any duty existed to protect the Chen and Davis children from the harms that they suffered; and

5) Whether Santa can be held strictly liable as a “distributor” of the defective Sniggie® blanket.

Happy Holidays!

12

A Guide to the Eight Most Suspect Types of Law Review Articles

This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student note. It is my tenure piece.”

6. The Turf Staker

“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”

7. The Half-Hearted Symposium Submission

“We would have tried harder, but hey, we’re talking about a symposium here.”

8. The Torn from the Headlines

“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”