Ghost Story

I lived in Tacoma from October 2000 to April 2001, in a large one-bedroom apartment on the third floor of a historic building at 9th and J, in the Hilltop. The apartment was laid out along a long hallway that ran down one side. There was a bedroom in the back, but I slept in a small room off the living room because the heater in the bedroom didn't work, and because something about the back end of the apartment just creeped me out. All of the floors in the apartment were painted red, and in the dining room there were a couple of large splotches or splashes of something that had prevented the paint from curing right, and it was rough in those areas.

For music in the kitchen, I had a boombox with a CD player, and that fall I felt like listening to a lot of Hank Williams, so I did. But when I would play the first disc of Hank Williams' Greatest Hits, the boombox would just return to "Lost Highway" again and again. It would play a song or two, then go back to "Lost Highway." Then another couple of songs, then "Lost Highway." The CD player wasn't programmable, and for a long time I thought maybe the CD weirdness was just due to the same electrical stuff that caused the heater problem and that made the main burners on the stove function only intermittently.

Eventually, I started feeling like something else was going on, and as fall wore on toward Thanksgiving something in the song, and the lyrics about sin without redemption, and the splotches, and the coldness, and the weird smells in the kitchen, and the big deep chip in the big cast-iron laundry sink began to add up. I began to feel like something was there, and like it was male, and like it was trapped, and like it was trying to tell me about a murder-suicide.

At Thanksgiving, I left a piece of pumpkin pie and a glass of bourbon for the ghost, and I made a little speech to the effect that I knew, and I saw, and I believed forgiveness was possible. And all of the weird shit stopped.

LOST HIGHWAY

I'm a rolling stone, all alone and lost,
For a life of sin, I have paid the cost.
When I pass by, all the people say
"Just another guy on the lost highway."

Just a deck of cards and a jug of wine
And a woman's lies make a life like mine.
Oh, the day we met, I went astray,
I started rollin' down that lost highway.

I was just a lad, nearly twenty-two,
Neither good nor bad, just a kid like you,
And now I'm lost, too late to pray,
Lord, I've paid the cost on the lost highway.

Now, boys, don't start your ramblin' round,
On this road of sin or you're sorrow bound.
Take my advice or you'll curse the day
You started rollin' down that lost highway.

Could my TV be dying??

I'm a little concerned that my TV may be dying. It's the TV that used to be in my parents' basement, so it dates to 1980 or so, making it older than most of my law school classmates. I think it's one of the last era of televisions to feature large amounts of fake woodgrain plastic. I like it because (to me at least) it was free, it's got a pretty clear picture, and it's not all "ooh, look at me, I'm a sleek technological object," which seems to be the current ruling TV aesthetic. Unfortunately, the picture has started rolling a lot, like the vertical hold is permanently screwed up. Sometimes that's a reception problem, but I don't know why the reception would suddenly get so much worse. Hmm. Is there a "vertical hold" adjustment behind that little fake wood door? Nope. Damn.

Law Student Self-Loathing: A Continuing Feature

While planning our study group...

Me: Do they let you reserve those little library rooms?
N: I'm not sure, but I can go check.
K: Groups have priority over individuals for those, right?
Me: Yeah, but the last thing you want to do is get in an argument about that with some goddam wannabe lawyer, you know?
N: That actually happened to me and my moot court partner last week.

(Non-) Tort of the Week: Employment Lawyers are Entertaining

Last week, I took a day off from school and attended the state Bar Association's annual Labor and Employment Law CLE (Continuing Legal Education). I had to make excuses to my Contracts professor (who asked me if I'd been sick and then pronounced the CLE "a good excuse"), but it was worth it.

Mainly, what lawyers do at this kind of CLE is review the year's new case law. At the Labor and Employment Law CLE, this means a lot of time spent making fun of "Neanderthal managers." It was a defense attorney making that joke, a guy who's made his living since 1988 arguing FOR the employers of the Neanderthal managers. Evidently that makes one exhausted and cynical, and you just wish that people would stop being such fucking morons and behave like decent human beings, already.

Other interesting learnings from the CLE:

• In news sure to gladden Mike's heart, the Ninth Circuit found, in Head v. Glacier Northwest Inc. 413 F.3d 1053, that reading is a major life activity under the ADA.
• The Ninth Circuit used a "reasonable Arab" standard to find hostile environment when a supervisor refused to call the Plaintiff by his real name (Mamdouh) and instead insisted on calling him "Manny." When Mamdouh suggested that maybe the supervisor would have an easier time with his last name (Hakem), the supervisor started calling him "Hank." As a defense, the employer asserted that neither "Manny" nor "Hank" was actually a racial slur. In the words of the presenter, "The Ninth Circuit was not impressed by that argument" and found for the plaintiff.
• In Tellis v. Alaska Airlines 414 F.3d 1045, the Ninth Circuit found that Alaska Airlines was justified in firing an employee who took FMLA leave to care for his pregnant wife, but instead took a four-day cross-country trip to pick up a new car, missing the birth entirely. The employee asserted that he did "care for" his wife by calling her on his cell phone during the trip. The court wasn't buying it.
• In Al-Safin v. Circuit City Stores, Inc., the Ninth Circuit cut to the chase and ruled that Circuit City is the weaselliest employer on the West Coast. OK, not really, but the court found YET AGAIN that Circuit City's arbitration agreement was "unconscionable * * * because (1) it required employees to forgo essential substantive and procedural rights, and (2) the clauses regarding coverage of claims, remedies, arbitration fees, cost-splitting, the statute of limitations, class actions, and modifications rendered the agreement excessively one-sided." There are about a billion Ninth Circuit cases invalidating Circuit City's odious employee arbitration clauses, but every time, Circuit City's attorneys turn around and draft another one. You just can't keep those guys down. I'm sure we can expect another Circuit City case sometime in 2007. Writers of future casebooks will refer to this period as "The Circuit City Era."

I think the best thing about the CLE was the extremely terse and witty briefs they gave us for all these cases. I want to find out who wrote the briefs for the Ninth Circuit cases and go worship at his/her feet.

Last roses of the season.

Festival! Of!! Neuroses!!!

(OK, I realize that could be the subject heading for any one of these entries...)

Neurosis #1: I fear my inner surly teenager may be running amok.

Everyone keeps asking me how I'm liking law school. The short answer is: I'm liking the "law" part. I'm not liking the "school" part.

Pretty much from Day 1, law school has made me uneasy. Initially I thought there was just something about being part of a large institution again that icked me out.

A couple of weeks ago I wrote my friend S and said, "I think I've decided that it's not new people who exhaust me, but the way I act around them. Or something like that. There's no story."

Now I think I've put my finger on it: LAW SCHOOL IS JUST LIKE HIGH SCHOOL, and as a result, my tendency is to take up my old adolescent defense of hostile withdrawal into my own superiority. Which is, um, ugly and weird and neurotic and inauthentic and bad. But hard to avoid. There are lockers. There are cliques. There are "extracurricular activities." I'm told that in the spring, there will be a prom. Do you know how much this shit pushes my buttons??

At least I'm not alone. If you Google the phrase "law school is like high school," you'll get about 180 hits. ("Law school is JUST like high school" gets you another 60 or so.)

Neurosis #2: What the fuck is wrong with me that I can't keep my fucking house clean?

I was talking to The Other M this morning about this. I had my house all clean, and felt pretty happy about it, then I slumped into some mild post-head-cold depression last week and just started letting things fall where they would, with the result that by the end of the week my living room was kind of a soup of shoes, papers, subscription cards, and crumpled receipts. The bedroom is carpeted with clothes. Don't ask about the kitchen.

I can't figure this out. I don't know what this is. What it feels like is I'm overwhelmed by herding all these objects around. All these little things that each need to go some specific place, and that enter my life largely unbidden (junk mail is the worst), then run amok. But I also think I feel slightly stressed out and agoraphobic when my house is too clean, like "OK, the house is clean--what are you going to do now?" It feels like maybe the mess is what I procrastinate against--it's the thing that helps me delay and resist other demands. It's comfortable.

It's weird.

Some of you may recall that two winters ago, I went through a whole delving into my psychology of money. This year, it may be my psychology of mess.

Learned Hand was consumed by anxiety and boredom...

This weekend I'm reviewing my class notes as part of starting to outline. Those of you who've gone to school with me before may recall that I'm a freakishly comprehensive notetaker. Little escapes my notes. I offer you the following:
From Contracts

• Learned Hand was consumed by anxiety and boredom at law school, so we can all take heart from that.
• Things that are time-consuming for the court generally don't happen. They just try to figure out a way to make the parties go away. In Copylease, the judge is trying to raise the parties' litigation costs partly to drive them into negotiation.

From Torts (all direct quotes from my wacky Torts professor)

• Law is violence. Law is force. That's why people are attracted to it.
• Tort law is fundamentally socialistic. There's an ethics embedded here. The state enforces social solidarity between people.
• Judicial Opinions generally don't acknowledge the horrible magnitude fo their task. This is a weird blind spot in legal culture.
• Without freedom, what are we? Wage slaves, like you all will be.

Apologies: No Tort of the Week Yet

OK, so no tort of the week yet, and I don't have time to toss one up here now because I've only got 10 minutes before I have to walk the dog, put on some bidness clothes, and head back to school for the goddam Moot Court Mediation Competition, which I am now actively hoping to lose so that I won't have to do this again Wednesday or Thursday night.

But the tort will be good, because it's Medical Malpractice Week. Many to choose from. Hedy Lamar's nose!! (Oh, just Google it.)

And I've got a lot of rants on tap this week, including one about the extremely oversubscribed yoga workshop of last weekend, in which we were all stacked into the studio like cordwood because evidently the studio decided they'd rather sell another 12 spaces than allow us to have enough space to actually practice yoga. There's so much wrong with this I don't even know where to start. The woman running the workshop was also kind of an egocentric dip, which I suppose is an occupational hazard in the yoga workshop business. OK, must turn off the rant-spigot before I accidentally rant the whole rant.

And this morning sucked because my coffeemaker broke, (Some little springy thing came undone from the bottom of the funnel and now the water goes through too fast and there's no pour-while-brewing feature any more. I think I lost a part. I think I may have to fabricate a part...) then Miz Biz went on a disgusting poo-eating jag while on her walk, and I just couldn't take it anymore.

"Getting to Yes"

One of my vague intentions for this afternoon/evening was to re-reread "Getting to Yes" in preparation for next week's mediation competition. I know at one time I owned and read "Getting to Yes." However, at this time, on my shelves, I can only find:

• Getting Past No
• Getting Together, and
• Getting to Maybe.

The first two are "sequels" to "Getting to Yes." The third is a book on writing law school exams.

I think I may have lent out "Getting to Yes." Anyway, all you need to remember from "Yes" is "BATNA" and "don't be a huge asshole." Right?

Student Loan Magic

So, to finance my fabulous law school education, I took out new federal student loans. All of my old student loans live on as a consolidation loan, also done through the Direct Loan program. I need to get that deferred while I'm back in school.

I thought this would involve my filling out and sending in a deferment request, which requires certification by the school, so yesterday I dutifully trudged to the admin building, stood in line at the wrong window for 10 minutes, and was eventually directed to the right window, where the window person printed and stamped and bustled around and handed me back a bunch of papers that I guess I'm supposed to mail in. (I actually *know* I'm supposed to mail it in, but only because I asked, "Am I supposed to mail this in myself, then?" My rant about the customer service values of the university bureaucracy is a matter for another time.)

BUT! Yesterday I arrived home to find a letter from the Direct Loan program stating

Electronic debiting of your Direct Loan payment is being halted temporarily because we granted a deferment...on your Direct Loan(s).

Now, I'm going to call the Direct Loan people just to make sure, but I think this means that my new Direct Loan somehow triggered the deferment on my old Direct Loan automatically.

Amazing, no?

Tort of the Week: The Reasonable Person, Reasonable Child, Reasonable Insane Person...

OK, I combed my torts reading this week for an amusing tort, but...none. This week's reading is about the "reasonably prudent person" standard for negligence. (Nutshell: If you're acting at least as carefully as the "reasonably prudent person" would under the same circumstances, you're not negligent.)

So, while I was in the kitchen baking banana bread, I was feeling all guilty about my lack of a good tort this week, and thinking about the reading, I did come up with this interesting object for discussion:

There are limited exceptions to the "reasonably prudent person" standard. For instance, children are generally not expected to act as the RPP would. (However, when operating dangerous machinery, children may be held to the adult RPP.) There are no exceptions for the exceptionally clumsy or scatterbrained. And generally, there are no RPP exceptions for the mentally ill.

From Section 283B of the 2nd Restatement of Torts (1965):

Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.

The Restatement theorizes that the mentally ill are not exempt from the reasonable person standard in part because of "The belief that their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do no harm."

Now, two things:

1. Wouldn't the above also argue for holding children to the RPP? I suppose the rationale is that since children are "the future and whatever" (as a classmate of mine put it last week), we have a broader social interest in allowing them more freedom to err.
2. Doesn't the idea that someone has "charge of" the mentally ill seem kind of quaint in these days of wholesale deinstitutionalization?

Tort of the week: Williams v. Jordan (1961)

[I anticipate this will be sustainable as a weekly feature, as the casebook, being a casebook, is full of these.]

Prosser p. 134:

"Defendant parks his car on the edge of a city street without a curb, in front of a house where a mother and a 13-month old toddler are sitting on a front porch. He goes across the street to visit a friend there. He comes back in 5 minutes, gets in the car and drives off. There is a bump that he thought was a paving stone, but that turned out to be the toddler who had crawled under the car. Was he negligent? (Williams v. Jordan, 208 Tenn. 456 (1961))"

First guess discussion:

I am anticipating that some of you may want to play along at home, so I'll outline a few concepts here.

Basically, for there to be a cause of action for negligence, there must be:

• A DUTY to use reasonable care.
• A BREACH of that duty.
• A reasonably close CAUSAL connection between the breach and the resulting injury.
• DAMAGE resulting from the breach.

To me, this case fails on duty: Can a person exercising reasonable care be in any way said to have an affirmative duty to check for toddlers under his car? I think NO. Case should have been dismissed before even going to a jury as there is no triable issue of fact.

Let's see what the appeals court said.... [Pause for LexisNexis search]

YEAH!! Suit dismissed!!!

"A driver * * * is under no legal obligation to make a search around and under his car 'lest a child too young for discretion and undirected by parents had tucked herself away in an obscure place, beyond the casual and convenient notice of the driver.'"

However, some of the LexisNexis notes surrounding the opinion note that IF clearly unsupervised toddlers were visibly swarming around your car at the time you were starting to drive away, ordinary care would generally require you to make sure none of them were under there before you took off.

And also, Lexis flags the case as possibly having some adverse history, meaning that some other court somewhere may have decided that you do have an affirmative duty to check for toddlers under there. Or not. I haven't learned enough about Lexis to be able to find the adverse history yet. Maybe next week.

And so ends our Tort of the Week. Let's all be careful out there.