Rouger

One more word about embarrassment; then I'm through.

If you are or were a law student at any law school practicing the beloved Socratic method, then you have been embarrassed. Maybe your embarrassment is of the academic variety (think of the painful, wrenching birth pangs as we all watched Milwaukee struggle with who bears the burden of persuasion at summary judgment), or maybe it's of the social variety (remember when Prof. Property answered property questions that popped up on Swanburg's blog?). The bottom line is, law school = embarrassment. God knows I've been embarrassed too many times since I started law school. Because law school = embarrassment, you don't get sympathy for embarrassment in law school any more than you get sympathy for being a law student. Nobody feels bad for you because your pain is nothing special. In fact, I've noticed that I'll say something stupid in class and mention it later on to my friends, and they weren't even paying attention.* When you get no sympathy for your embarrassment, you get mad. I say: get over it. Milwaukee's still alive. Swanburg's still alive. I'm still alive. You may get some empathy, but there will be no sympathy.



*Ed. Note - All of my friends always pay attention to the professors. They zone out, however, whenever I talk.

Coyote Ugly Gate

I wanted to throw my two cents into the ring of the latest Baylor blogosphere controversy: Coyote-Uglygate. I just want to say this: embarrassment is par for the course in law school. I've talked to lawyers who graduated from Vanderbilt, the University of Texas, Baylor (1970s and 1990s), Mississippi College, South Texas, SMU, and Tech. I've read blogs and a book or two about other lawyers' experiences at law school. Embarrassment is the only discipline professors have. You can't do anything else to smart people: you can only prove (repeatedly) that they are not as smart as they think they are. There will always be somebody smarter than you. If I've learned nothing else in my quarter of law school, I've learned that.

To Mssrs. Ugly: If you want to be coddled and to reminded of your glory days of college (or high school), drop out of law school and become a teacher. There's a shortage of them, they get paid well, and their students revere them as god(desse)s, if only because of their position.*



*Ed. note: This post is not meant to suggest that the whiners in Coyote Ugly should join the noble profession of teaching; nor is it meant to disparage that profession in any way. Unfortunately, it is undeniable that certain teachers (we've all had them and, indeed, some may teach at Baylor Law) joined the profession solely for the purpose of being worshiped. Many teachers are justly revered for their ability, but far too many are revered only for their power.

Logic and Religion

In light of my recent post, I thought I'd drop a quick quote from the Book of Job. Think about it. It might make you think twice about logic and religion:

[God] captures the wise by their own shrewdness, and the advice of the cunning is quickly thwarted.

- Job 5:13

I strapped on one horse and prayed for luck

There's an idea I've been thinking about for a few months and, once again, I've been too slow. Philanthropreneurs are taking over charity work. The idea is that you do good while making a profit. I'm not exactly sure how to go about it, but philanthropreneurs treat charity as an investment. What do you think? I think it's an excellent idea. But then I get sick of the M.D. Anderson Cancer Center calling to ask if I want to buy magazine subscriptions.

Anyway--I thought of it first. Oh well.

I'm standing on the rooftop, ready to fall

There is an article in this week's Newsweek called "The Case Against Faith," by Sam Harris, author of Letter to a Christian Nation and The End of Faith. This is my attempted rebuttal to his reasoning.

I have done a lot of studying, reading, and thinking about the mix of religion and politics, and I will be the first to tell you that, although I don't have an answer, to say that the two should never mix is worse than an ad hoc system. What is religion? Religion is simply a way of explaining things. (Incidentally, science, in its own way, is a form of religion.) Religion defines who we are, and that is very important to what we do. I am an American, a husband, a Baptist, a law student, a reader, a college graduate, a native Wacoan, an accountant's son. Why should any one of these have any less influence on who I am and what I do than the rest? I posit that none of those even can have any less influence than any of the rest and any of the millions of the other identities that make up who I am. To argue that those "with" religious beliefs should keep those beliefs separate from their political duties is frivolous. You cannot separate who you are from what you do from why you do it, even if you don't know exactly any of those. So, any argument that politics and religion should be separate is hopeless.

Mr. Harris, in his article, states

Speaking to a small group of supporters in 1999, Bush reportedly said, 'I believe God wants me to be president.' Believing that God has delivered you unto the presidency really seems to entail the belief that you cannot make any catastrophic mistakes while in office.

This represents a misunderstanding of the Christian idea of calling, but I won't go too deeply into that. It's rather boring to non-Christians who don't care to understand. Basically, I believe God called me to be a lawyer, but I may make "catastrophic mistakes" as a lawyer. The most important thing to remember is that you will not be perfect at what you do but that you will be used for some purpose of God's. Mr. Harris (and many others) don't get that. For a deeper study of the concept, look at the Old Testament books of 1 & 2 Samuel, 1 & 2 Kings, and 1 & 2 Chronicles. Many kings in those books were called of God to be king but made catastrophic mistakes "while in office."

Does that excuse what Bush has done? By no means. But to blame Bush's mistakes on his religion per se and say that anyone who thinks God has called her to be president should be barred from office is to misunderstand the concept of Christian calling.

Finally, Mr. Harris's biggest blunder of all:

[W]e are living in a world in which millions of grown men and women can rationalize the violent sacrifice of their own children by recourse to fairy tales.

Regardless of to which "fairy tales" Mr. Harris is referring, the diction he chooses clearly evinces a disrespect for the beliefs and understandings of those with whom he disagrees. Although I disagree with Mr. Harris's beliefs and do not think them logically tenable (what I know of them), I refuse to belittle his (hopefully) hard-wrought and hard-thought beliefs by calling them "fairy tales" or "mumbo jumbo" or any other mocking term. Mr. Harris has his evidentiary threshold, and I have mine. His are higher in some areas; mine in others. In sum, atheists should not sit too high on their horses; no one knows better how far it is to fall than a Western Christian.

By the way, faithful readers, if any would like to debate the intellectuality of Christianity or religion in general, or even the intersection of faith and reason, I'm ready when you are.

Poor Bialy. What a loser.

Last night, I finished reading Stephen King's 1989 novel, The Dark Half. It's a fascinating book about a writer dealing with his murderous pseudonymous alter ego. Yet that description doesn't really do the novel justice. "Dealing" ought to be "dueling," and "alter ego" might more properly be rendered "ghost of his never-existent twin brother." But that's just confusing. Read it anyway. I wouldn't really call the book scary (at least not like The Dark Thirty, which still gives me chills); I would call it psychological in the most thrilling sense of the word.

You know the difference between classic, good, and crappy books? You finish a crappy book saying "Wha--???", then you put it down and never think about it again. You finish a good book saying "Wha--???" and spend the next few days trying to figure out exactly what happened. (If you're like me, you look for anything on the internet that will tell you what really happened.) Finally, you finish a classic saying "Wha--???" and spend the rest of your life trying to figure out exactly what happened.

We've all read crappy books. I won't embarrass the writers (or risk libel) by naming them. Examples of good books include Scott Turow's Reversible Errors or John Grisham's The King of Torts. The best example of a classic is John Steinbeck's East of Eden. (If you haven't read that, you can hardly say that you know how to read.)

The Dark Half falls squarely into the good book category. Since I took a creative writing class in college, I read books with an eye toward literary innovation and creativity, in addition to the pure enjoyability of a book. The Dark Half is creative and enjoyable, if not innovative (at least not like Carrie). I highly recommend it.

Make a real decision, pansy

Lately, in my spare time, I've been reading a lot of cases from around the country on various topics (torts, criminal law, contracts, and property mostly; I gave up my civ pro habit), and I have come to a startling conclusion. No appellate judge ever really decides anything.

Here's why: almost every time I read a "significant" case, the judge will go on and on about something, and then they'll say that none of it matters. I recently read a case from Oklahoma where the judge said "The State concedes that defendant's act was not an actus reus." Then (guess what) the State lost. Hmm. Crime = actus reus + mens rea. If you take either of those elements out, then there is no crime. "The State concedes that it hasn't proven all its elements." Thus, no real decision that means anything by the Supreme Court of Oklahoma (Court of Criminal Appeals, actually).

I read a case in civil procedure where the Supreme Court (not of Oklahoma, but of the United freakin States) goes on and on and on about how important it is that the losers conceded this point at oral argument. Then in the notes after the case, the textbook reprinted part of the record of the oral arguments, and I tell you what, I'm no Supreme Court justice, but it sure didn't sound like a concession to me. Sounded more like "I don't want to make a real decision, so we'll just pretend that the guy I want to lose conceded the most crucial point. Bwahahaha."

Talk about a decision in search of a rationale.

Cowabunga

From People v. Grant, 46 Ill. App. 3d 125, 360 N.E.2d 809 (1977):

“Suddenly, the defendant burst through the crowd, and, using a parking meter for leverage, he leaped into the air, striking Officer Raymond Vonderahe twice in the face.”

Does that remind anybody else of TMNT 2: The Arcade Game?

One Angry Dwarf

Yesterday, my wife and I were going to eat at Chik-Fil-A in the mall, and I ran into a guy who used to pick on me in junior high . . . working behind the counter. Granted, I was the kid who buttoned his (Texas Rangers) polo shirts up to the neck and who wore glasses thicker than his ears. Granted further that he is now a "team leader." Granted finally that I, too, have worked in fast food and believe that every citizen of the United States of America should work at least six months in fast food. Still, it was sweet justice. At least, the potentiality of sweet justice.

Did I ever tell you about the time that I read about another guy who used to pick on me who got arrested for meth? Q.E.D.

Extra points for anybody who can guess where the post title comes from.

Peeking Out

Hi. This is me poking my head out from my hiding place on the 13th floor of the Alico Building. I'm just making sure that while I've been studying for (and taking) exams, the world has continued turning. Good to see it is.

"As they're doing the atomic bomb, do they know where the dance comes from?"

World Series #0

So I've been reading Justin's countdown of the top World Series and Stepbaker's addition to it, and I noticed that they forgot the most influential World Series of our lifetimes. This particular World Series defined me as a sports fan and continues to impact my views on many, many things.

It all began on August 12, 1994. That night, Baseball Tonight showed a clip saying that John Kruk would be missing out on $13,000+ per game he didn't play. I sat with my fingers crossed over the next six weeks hoping against hope that somehow the players and the owners would get together and figure it out. I watched as people debated the future of Cal's consecutive-game streak. As a Rangers fan, I hoped and hoped and hoped that the season would get pulled together in time for the Rangers to win it all. You may remember that as the year the Rangers topped the AL West at ten games under .500. Then, sometime in mid-September, nobody called anybody's bluff, and the season was over.

The strike lasted until April 2, 1995. The 1995 season lost 18 games.

Baseball--you had me at hello, and then you sold me out because $13,000 per game wasn't enough. Within the next couple of years, all my interest in all sports (football, basketball, hockey, soccer) faded as I realized that nobody was any different. Now, I don't watch sports at all, except to check my alma maters' scores. Occasionally, I'll look up an old classmate of mine who plays for the Pirates, but it's not the same.

The World Series of 1994 - The Rangers declared winners by default.

We'll find bodies you didn't know you hid

Apparently, Professor Osler has powers beyond comprehension. A few days ago, he asked his student readers to whine with purpose on his blog and received, as of this morning, 70 comments. One of the earlier comments was by a 1L who said that s/he was scared to death of Practice Court and that it'd be great if somehow we could keep the fear to a minimum before we actually get there. Here's where Osler's powers (as a former federal prosecutor?) come in: he takes a seemingly solutionless problem and gnaws at it like a squirrel with an acorn. Consider:

Prof. P.C. spent some time slummin yesterday in the student lounge. I talked to him for a few minutes and (not knowing) asked what he taught. As nonchalantly as an elementary school teacher saying "third grade," he said "Practice Court." Like it was nothing. Like it was just another class you take in law school. Like it wasn't the class that separates the Marine Corps of Law Schools from those pretend law schools up and down I-35. We continued to talk about how his kids go to my high school and how he was doing the concession stand at last night's football game. One of the gods of Practice Court stepped down momentarily from Olympus. Maybe to examine what meat will be coming in a couple years? Anyway, my fear of P.C. has now been reduced to its minimum* because of this encounter.


*"Minimum" here should be defined broadly to include any fear shy of the fear of death, e.g., I am scared to a coma by practice court, or I am scared to blindness of practice court.-Ed.

My Third Attempt

Osler's in Alpine.
I once went to Marathon.
Beautiful night skies.

Did you see Marfa?
Crazy unknown lights out there.
I think it's Martians.

Go to Osler's blog for funnier ones.

Lincoln

You may (but don't have to) notice that I have added links over to the right. These are all the Baylor Law blogs that I read regularly. If you think I read yours regularly but haven't posted a link, then let me know, and I'll take it under advisement.

Also--if there are any that I have left out, let me know. We are making a valiant community effort at being a community, and I want to contribute to that. Légalité, société, et liberté.

Viva la democracía!

Women and the Objective Theory of Intent

A friend of mine, whom we will call "Milwaukee" to protect the innocent, read my last post and said "Mr. Masten, I'm glad you have time to read for fun." I believe you have time for what you want to have time for. If anybody ever tells you, "Man, I'd really like to do ______, but I just don't have time." Don't believe them. They are lying through their teeth. They don't want to do it. Ask any pastor, and he will confirm for you.

On the other hand, if you ask a girl out, and she says "I really don't have time for a boyfriend right now," she's not telling you that she doesn't want a boyfriend. She's saying she doesn't want you as her boyfriend. Like on When Harry Met Sally, when Meg Ryan finally dumps her boyfriend because he won't marry her. Two months later, he's married to somebody else. Exactly. Q.E.D.

This is what we call the objective theory of intent. Barnett, Contracts: Cases and Doctrine, 3e, 2003 273ff. You can buy it now for only $10.00. The woman's internal thoughts and feelings (like you could ever figure those out) are completely unimportant; the only important thing is what a reasonable person would think based on her conduct (like you could ever figure that out, either).

Oh and for my fellow KVAs--I have now been sober for one class period.

Not Firestarter

I just finished Stephen King's first novel, Carrie. I was so confused because I had conflated Carrie and King's other book, Firestarter. I don't know why I did, but I did. So when Carrie didn't burn the town down with her mind, I was pretty confused.

OK so my confusion is boring. What did I think about the book? I thought it was excellent for a first novel. Authors tend to get known for one aspect or another of their books, and I thought that King was known for being scary. This book wasn't scary. Not even in the "maybe that used to scare people" kind of way. It just wasn't scary. It's about a reject girl with telekinesis who finally gets picked on too much. The moral? Don't pick on the fundamentalist fat girl or else she might blow your whole dadgum town up. There's a freaky-ish scene where she's walking down the street with a knife sticking out of her shoulder, but that's about it.

But let me say that King did beat out my favorite author in one respect. Tim O'Brien's In the Lake of the Woods is an incredible novel that alternates between telling the story in the present and presenting the story from the future through evidence, interviews, documentaries, etc. King does the same thing in Carrie, but I'm sad to say, he does it better and more interestingly.

In short, if you're looking for a scary book, look elsewhere. If you're looking for a well-written, interesting book about telekinesis, this may be for you. Or if you like stories set in small towns in Maine, this story is for you.

Prof K's Dog

I don't really know the story of Pavlov's dog, but I understand that he trained his dogs to eat food whenever they heard a bell, regardless of whether they were hungry. I, ma'am, am Prof. K's dog.

I discovered it yesterday. I volunteered at least three times this week to discuss cases. (Or was it just twice? It all fades together. Three is more impressive. Maybe I really volunteered seventeen times . . .) My bell is Prof K saying "Any volunteers for ______?" Bam. My arm extends before I can think "Do I even really know anything about this case?" I think I have a problem. Maybe I should start attending CVA (KVA?).*

Didn't Pavlov end up killing his dog?


*Ed. note - As far as I know, there are no contracts volunteers anonymous groups meeting at this time. If anyone knows of any, please advise.

I'm Comin' Out

In light of Osler's Recipe for Blogging Disaster, I have decided to come out of the blogging closet.

Haiku Friday at B(L)S

"I Refuse to Believe for One Second--"

What? Two weeks to go?
I only just started yest--
Oh. Nine weeks ago.

Judicial Poetry

You thought it was limited to Ollie Holmes and Benji Cardozo, but I am here to bring you the worldwide debut of the sardonic poetry of Judge Alex Kozinski of the Ninth Circuit:

While we have our doubts about the wisdom of Pacific Gas, we have no difficulty understanding its meaning, even without extrinsic evidence to guide us.

Bam. Or, in Latin, Q.E.D. If you don't get it, go read Trident Center v. Connecticut General Life Insurance Co., 847 F.2d 564 (C.A.9, 1988).*

* I tried to get a link for Trident Center, but I couldn't find it. Good luck.