That's not my rap. (Line of the evening.)

After taking two practice exams this evening (Contracts and Torts), I had an awkward personal ad date with a guy whose tag line is "That's not my rap."

I repeat.

"That's not my rap."

At one point he said something completely absurd, which may have been, "Introspection, that's not my rap," and at the time I thought "Aha! It's the line of the evening. I have to remember this!" but now of course I can't quite be sure.

That's not my rap.

I would like to note that if I were really mean, I would link to his ad. And I'm not. Therefore, I'm not really mean. At least not if "linking to someone's personal ad while making fun of their tag line" is the only standard for meanness.

(Insert self-deprecating law student joke here.)

I'm back!

I'm finally back from my incredible San Francisco Thanksgiving, and with me, I bring this wisdom:

• Do not go see the film version of "Rent." To call it bad would be charitable.
  
• Do not go to a multi-winery tasting room, taste something like 25 wines, and then buy way too many of them, especially if you're too tipsy to ask them to ship and you and your friend end up having to schlep a case and a half of wine home on your oversold Southwest flight. (Bonus knowledge: a case of wine WILL fit under the seat in front of you. It will. Especially if you kind of kick it.) (The tasting place is Locals in Geyserville. Aside from all the drunken buying of wine, it was lovely. They have wines from 6 tiny vineyards in the area and you get to taste flights so you can compare and contrast all the Zinfandels or Malbecs or whatever. And you share each flight with your group, so it's extra social.)
  
• If you do happen to be in Geyserville, Santi is an incredible place to eat.
  
• If you only have four people at your Thanksgiving dinner, it is probably not necessary to have 5 pies, 4 vegetable dishes, and two kinds of potatoes in addition to the turkey, stuffing, cranberry sauce, etc.
  
• Euchre is fun, and not that hard to learn.
  
• The brussels sprouts with chestnuts recipe from "The Joy of Cooking" is really good.
  
• They built a new elevated highway extension. The on-ramp is at Octavia and Market. Weird.
  
• Acorn Syrah (Sonoma, but not one of the wines I bought--we had it with dinner in SF) kicks ass, and isn't that expensive. It's one of those well-balanced, grassy-smelling Syrahs like that Isenhower Wild Alfalfa Syrah.
  
• Broadley Pinot Noir (McMinnville) is also really nice. They make several Pinots. Ours was $20 retail, so I think it's the cheap one. We had it Thanksgiving Day.

Pie Recipes

Pecan (my Aunt Myrtle's recipe)

5 eggs - beat until thick
1.5 c sugar - add and stir well
3/4 c white Karo - add
pinch salt - add
1.5 t vanilla - add
5 oz evaporated milk - add
stir all well
Add 1 c pecans (or more. chopped or unchopped. do your thing.)
Pour into two unbaked pie shells
Bake at 350 for 40 minutes

Sweet Potato (my modification on The Stranger's recipe

2 c baked garnet yam
2 c baked sweet potato
(both fresh, not canned)
mashed with 2T butter
add 4 egg yolks, 2 cups evaporated milk, 1 c brown sugar, 1/2 c light Karo, 1/2 c honey, 2t vanilla, 1 t each ginger, cinnamon, nutmeg.
Stir this mixture

Beat the 4 egg whites until soft peaks, fold into rest of mixture gently.

Bake 40-45 min at 375.


In both of these recipes, for crying out loud please use the full fat evaporated milk unless you have a darn good reason not to.

Why is it so hard to make friends as an adult? Or: I am a social retard. See: Law school is just like high school.

(Oh, by the way, for those of you (um, Mike) who are awaiting the Tort of the Week, it's on hold pending my actually doing my Torts reading for the week. I took the weekend off to think my own thoughts and not think about law. I think I'm the saner for it. I didn't do any of my Contracts reading either, yet I talked TWICE in class today. Now that's ballsy. Although we were talking about employment law, and the questions were mainly things that one could answer from arcane experiences I've been privy to, such as having a job.)

So, as Ms. S knows from my calling her and whining, "I'm a social retard! Why am I such a social retard?" I'm feeling like a bit of a social retard lately. (BTW, in law school they teach us that it's OK to use the same term repeatedly as long as it's technically correct. Do you see what a quick learner I am?)

Much of my social retardedness has focused on the question: How can I become friends with Ms. P? P's one of the few folks in Law School who seems to be congenial (as Jane Austen might say), on the same wavelength (as the hippies might say), etc (as I, at a loss to describe that ineffable kind of "yeah, I like the way this person's pieces fit together" thing, might say). But alas, P and I are not in the same section, so I only see her in one class, and pursuing a friendship requires actual social overtures. At which I am rather awkward. And which feel a lot like trying to ask someone out on a date. Which only makes things worse.

A few weeks ago, I ran into P in the library and said, "We should get lunch sometime, because you're irreverent, and that's scarce around here." So the next week, P caught me on the way out of class, and we made arrangements to have lunch, and then we had lunch, which was fun and good. After the lunch, I called Ms S and whined "How do I make friends with Ms. P??" S suggested that I get her a cupcake that says "Be my friend," but on further reflection we realized that stopped working in grade school and seemed kind of desperate even then. So then S suggested that I ask her out to lunch, and I said "We already went out to lunch," and S said "OK, you retard, she already wants to be your friend" (only maybe without the "retard" part).

So anyway, last week I asked Ms. P for her email address, and over the weekend I emailed her to propose a beer break and mention that there were a bunch of David Cronenberg films playing, but I didn't hear back from her, so I was like "Huh. Maybe she shares my belief that I'm a social retard."

But this morning after class, she asked, "Hey, how did your weekend go?" and I said "Good, did you get my mail? I was trying to entice you out for beer," and she said "No. My computer freaked out a couple of weeks ago and now I can't get email at home," so I said, "Oh my god, it's like you live in another decade," and she said "It is! At first I thought that was bad, but now I'm like, 'Hey, it's good to spend my weekend interacting with people who have my phone number,' which by the way I'd be glad to give you." So we exchanged stories of getting ridiculous demanding work emails at home or on vacation, and then I was like "Email me your phone number, and then we will go get some beers," and she said "Cool," and then she emailed me her phone number and some kind of note like "I can't fucking believe I missed this."

Woo hoo! I have her phone number! I have her phone number!!

God, I'm a social retard.

Yet more evidence that dogs are disgusting.

(And that I'm a really lousy housekeeper.)

A few weeks ago, a partially eaten take-out container of Chinese food ended up in my yard, and after eating as much of it as she could before I noticed, Biz licked and ate the dirt in the area for a couple of weeks. She'd come in every day with a little dirt mustache I had to wipe off, and she'd stink like...like...like really funky chicken and sesame oil.

Lately, she's started eating dirt again, only now she smells like...fish? Dead fish? Something else dead, that's been dead for a really long time? Fermented squirrel? Well, today I followed her out into the yard and discovered what she's been eating. Evidently I let my not-quite-closed container of Alaska Fish Fertilizer roll onto its side on the deck, and drip drip drip onto the dirt below, and in the past two weeks Biz has eaten about 1/2 cup of fish-emulsion-soaked dirt.

As far as I can tell from the Internets, it's not toxic.

Lead us not into pathological cheapness.

Although I made my law school budget as humane as possible, it's still a pain in the ass. I generally have enough money each week to care for myself in one of a number of ways:

• Cook nice foods on the weekend and eat them all week, but NO EATING OUT.
• Go out to eat on the weekend and eat beans and rice or scrounged free pizza all week.
• Cook some foods and eat at the many cheap lunch places near campus all week.
• Frozen dinners.
• Trader Joe's.

This week is the first week of attempting Trader Joe's. Unfortunately (but predictably), my trip to TJ's resulted in enough food and spending for two weeks. I suppose it won't go to waste.

One fortunate discovery: Miz Biz, unlike old Miz Bailey, will eat foods that are not laden with delicious meats and fats. She enjoys apples, carrots, banana. Why is this fortunate? Three words: canine garbage disposal. Mealy apple? Cut tiny pieces off of it and create 3 or 4 days' worth of "cookies" for the dog. Buy too many carrots for the stew? Ditto. Pear getting a little weird? The dog doesn't care! And they're all high in fiber and nutrients. Yay. Why pay $2.79/lb for dog cookies when you already paid $1.49/lb for that apple that's going to waste? (OK, maybe if the dog got horrible noxious gas, that might be a "why," but so far that's not a problem.)

Wauwatosa Band Mothers follow-up

In her comment on the Tort of the Week, velvet says:

i'm a fan of the "tenth mother" theory, myself.

i'd want to throw some responsibility on the "reasonable person" devouring the turkey salad, too. is that allowed?

Didn't you also believe in the second gunman?

Anyway, so velvet's kind of saying "what happens when res ipsa loquitur meets caveat emptor?"

That depends on the jurisdiction. Most states follow a doctrine of comparative fault, where if the plaintiff committed negligent acts that contributed to his own demise, the jury is expected to wing some kind of calculation like "Hmm. Seems like the defendant is about twice as much of an asshole as the plaintiff, so we'll knock down the plaintiff's award by about a third and call it a day." Or at least this is how I assume it works. We don't learn this until sometime in early 2006,

(This is why we love juries. Because they do all this judgment-call work, and essentially for free, and after they're done, people can't complain about being victimized by the judge. Although they can complain about how the jury was misled by some slick lawyer and characterize 12 of their fellow citizens as rubes. Discourse about juries is very odd...)

There are a few jurisdictions (and Louisiana may be one of them), which work on a strict contributory negligence doctrine, where if the plaintiff was negligent at all, he can't get bupkis from the defendant. So you could have a situation where if a 18-wheeler with bad brakes owned by a company with a notorious history of maintenance violations and driven by a guy who was drunk at the time hits a little old lady who stepped off the curb to help a kitten, the old lady gets nothing.

But yeah, turkey salad. Would the reasonable person eat turkey salad at the band mothers' buffet? And if so, could that person be understood to be assuming some risk? I think that is how we operate in real life. I know when we were eating that funky crawfish stuff at the St. Joseph's day altar, I was running a cost-benefit thing in my head.

Another important fact of the Wauwatosa case is: the woman who got the food poisoning was sick for like, a year. She was one of those people who just can't shed salmonella very well. And in that case, where the plaintiff has some kind of condition that's not due to an act of the defendant or the plaintiff, but that makes the damage caused by the defendant much worse that it would usually be, it's just tough luck for the defendant. At least I think it is. Again, I don't think we learn that until next quarter.

Who wants an obscenely phallic LexisNexis water bottle?

Evidently Lexis wants to be thought of as the manly search alternative...

No really, WHO WANTS IT?

Here's what I propose: I will GIVE this fine, phallic water bottle to the reader who comes up with the most amusing idea for a "Win the obscene LexisNexis water bottle" contest.

Dawgdaddy

They have wireless everywhere at the law school. This means I can watch the guy who sits in front of me in Torts run two instant message windows at once. The font's not large enough for me to see what he's saying, but I can tell that one of his usernames ends in "Dawg" and the other ends in "daddy."

He also wears a backward baseball cap most days.

I've started having dreams about school, but they're very abstract. It's all just like "There's chaos, and I've got to apply rules to bring order. Where are the rules? Could I classify things this way? Did that thing slip away before I classified it?" I'm sure this is the primal law student dream. But there's no real content to this process, in the dream (and maybe in life). It's slightly like being on acid, where you see the abstract machinery of your thoughts, and can't stop seeing it.

I guess it feels good to be known....

I got this from my sister today.

And that reminds me. I need to pay my bills...

Tort of the Week: Samson v. Reising (1974)

This week in Torts, we encounter our first Latinate doctrine: res ipsa loquitur. (Appx: The thing speaks for itself.) In res cases, the mere fact of the accident is taken as evidence of negligence.

Res ipsa loquitur allows an injured plaintiff to claim a common-sense inference of negligence when direct evidence of negligence is lacking. The res ur-case is Byrne v. Boadle, Court of Exchequer, 1863, in which the plaintiff was NOT required to give affirmative proof of negligence after being hit by a barrel of flour falling out of a flour warehouse. In the verdict, an exasperated Chief Baron Pollock says, "A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse...seems to me preposterous. * * * The present case upon the evidence comes down to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour." (This kind of repetition is common when people start trying to explain res. The thing speaks for itself, so it's hard to say anything else about it. You just keep saying the thing over and over again: "Flour, dammit! Don't you see? Flour! Duh!!")

Res doctrine now requires that the plaintiff introduce evidence to prove four things:

1. That the accident happened.
2. Via an instrumentality in the defendant's "exclusive control."
3. That the accident is something that does not usually happen without negligence by someone.
4. That he himself was not at fault.

In Ybarra v. Spangard (1944), the doctrine was extended to allow a patient in a medical malpractice case to bring a res action against his surgeon, the nurses, the anaesthesiologist, and the hospital after the patient suffered permanent nerve damage to his shoulder during an appendectomy. Although clearly the instrumentality was not under the control of any one defendant, the California Supreme Court reasoned that to prevent the patient from pursuing his case under res would be to deny any relief to patients injured while unconscious. Another important policy reason is that a res case gives the plaintiff some leverage to get the truth out of parties who might otherwise stonewall.

OK, now I think we're set up for the Tort of the Week, as usual, from Prosser.

Nine members of the Wauwatosa High School Band Mothers individually cooked turkeys in their own homes from which turkey salad was made at a church kitchen by some of them. Plaintiff ate the turkey salad and suffered food poisoning.

Does res ipsa loquitur apply?

Let's walk through the factors:

1. Yes, the accident happened.
2. Instrumentality was not under any one defendant's exclusive control, but that was also true in Ybarra.
3. I'd say that food poisoning generally doesn't happen without negligence by someone.
4. We weren't given any evidence pertaining to the plaintiff's fault, so I'm going to assume it's not at issue.

My prediction: The court will find some way to distinguish the case from Ybarra and will not allow the plaintiff to use res ipsa loquitur. This may hinge on the fact that it's not a medical malpractice case, or it may hinge on the fact that the possible negligent act could have been done by so many essentially unrelated parties. I'm thinking the second. Part of the rationale in Ybarra was based on getting the surgeons/nurses/anaesthesiologists to rat out the guilty party, and the parties here aren't in a position to have any knowledge of each other's negligent acts. Directed verdict for the defendant.

[Pause to look it up on LexisNexis (62 Wis.2d 698), still my favorite database despite the obscene water bottle.]

What actually happened:

Trial court: Directed verdict for the defendant.

Wisconsin Supreme Court: Affirms trial court.

Rationale: Too many defendants and no real connection between them.

And from Prosser, we learn that "Courts have applied res ipsa loquitur against multiple defendants outside the medical context in only a handful of cases."