Blog Ipsa Loquitur

Repent, all ye slackers! The almighty curve shall smite the wicked! The end is nigh, and that means law students everywhere are doing their best “groundhog that’s seen his shadow” impression.

See you on the other side, world.

Filed on under A Day in the Life

If I were bolder, my reply to the question “why do you want to work in public interest?” would be simply:

Because literally tilting at windmills pays even worse.

Let me explain. One of the (many) things I’ve been writing instead of posts here is a statement of interest on why I want to go into public service. I’m working for another government agency this summer, and before the government starts handing out funding to their interns, they want to know that I’m serious about serving the public interest.

Honestly, though, being forced to talk about myself in glowing terms and describe myself as selfless, kindhearted, and friend to all the animals of the jungle is difficult. I’m not of the shameless self-promotion vein. Heck, I’m not even of the humble self-promotion vein.

I understand where the people in charge of giving free money to poor law students are coming from, because they don’t want to accidentally hand out money to people whose career plans involve building death rays, or world domination. It’s public money, and it ought to go to foster the education of those dedicated to serving the public interest. I get that. Really, I get that.

But when I have children, I plan on making them write essays when they do something wrong, not when they want to do something right. Kids come home after curfew? Write me an essay on why you couldn’t make it home on time. Didn’t take out the garbage? Write me an essay on the biological processes that make the garbage so stinky when it sits around for a week. Borrowed my car, but got into a car accident? Write me an essay on Newtonian physics, and explain why you couldn’t stop in time.

I am the one topic I’ve never been really comfortable writing about. Looking at the above list, my children may avoid the same fate.

Filed on under A Day in the Life

On the federal level, you have a number of big sources of authority. The most dramatic is probably the Executive Order: the President has sat down at his sweet desk, pulled out The First Pen (ink force one?), and made some sort of Decree. He doesn’t get to make up new laws, but he does wield a lot of power. Hell, with an Executive Order, President Truman almost nationalized the steel industry.

There’s also Congress, which is probably the most conventional source of authority: if you want a new law, you write your Senator or Representative a nice big check letter, explaining your concern. You’ve also got federal courts, which interpret law and impose balancing tests and invent factors of elements of crimes that Congress failed to draft, owing to the latter’s overall lack of psychic abilities.

But there are also agencies: created by Congressional Act, these entities incorporate a little of all three branches. While they don’t get to enact legislation, they do get to promulgate regulations. Those two ideas may sound alike, but I assure you that there are no synonyms in law.

Take the agency most of us focus on this time of year: the IRS. Congress passes the actual Internal Revenue Code, but the IRS promulgates regulations to supplement the requirements of the code itself. There’s also something called Revenue Rulings: think of them as IRS newsletters, but instead of birthdays and promotion notifications, they contain guidance about how the IRS plans to enforce its rules and regulations. You can even pay the IRS to examine your situation and tell you what to do. In addition to all these sources of authority, you’ve also got a limited variety of courts that rule on the rules and regulations.

With all this to keep track of, the IRS is aware that certain situations can still be a little tricky to sort out. As such, the IRS has still more miscellaneous publications that address common questions; The Prestigious Internet has located a lovely specimen.

The IRS has addressed the apparently(?) common question of whether you can write off a child as a deduction if they’ve been kidnapped. In the matter-of-fact way that only the federal government can muster, the IRS notes that this tax treatment only applies until there has been a determination that your child is dead, and won’t apply if another family member has kidnapped your child.

I kind of wonder about that last requirement: I’m certain it’s there to close a loophole, but I can’t for the life of me imagine a scenario in which you need your ne’er-do-well brother to kidnap your children. You know, for tax purposes.

Filed on under Legal Theory

The trial process is fairly straightforward in America; we have an adversarial trial system which is founded on the presumption that the ultimate truth is reached through a vigorous debate. The thinking goes that instead of entrusting the finding of facts to a single neutral investigator, we can just embrace the human tendency to make snap judgments or bring biases with them into their courtroom. It’s easier to trust someone to be biased than neutral, I suppose.

So we set up two parties on opposing sides, to seek the truth through competition. Like most competitions in our society, however, we don’t allow the competitors to employ every vicious trick they can think of.  Partly because there are some really effective tricks that lawyers can think of.

As such, this vigorous debate in search of the ultimate truth has to have some kind of rules, and a party that’s neutral enough to apply them. In much older lawsuits, these people were sometimes described as referees, but we usually go with the term “judge” now. (Similarly, the powdered wig look has faded into the ages alongside the term that evokes thoughts of the soccer pitch over the courtroom.)

In this theater of the jurisprudential, we almost have the stage completely set. The last role to be cast is the finders of fact: the people that decide who wins the competition. In an actual sporting event, the referees keep score, but our metaphorical trial (alternately a sporting event and a play in my increasingly tortured prose) relies on the community at large to declare the victor.

In the trial of Socrates, the jury probably numbered about five hundred men. I’m kind of fuzzy on the details, but I think we switched to a smaller jury when it became apparent that you’d need a time machine to find five hundred people who hadn’t heard of OJ Simpson’s double murder escapades.  So we pick a handful of your peers, and let them decide which witnesses are lying, which witnesses are competent, and ultimately, which party has carried their respective burdens of proving which facts.

The jury is a passive entity. The jury asks no questions, and neither does the judge. (The judge enforces the rules, but only in the most egregious breaches of the rules may the judge intervene on her own. For the most part, the judge is a spectator with a hammer and sweet chair.) Like the judge, the jury spends the vast majority of their time sitting and watching the events unfold, and trying to piece together a story of what happened out of the cases that the two parties present to them. The jury is permitted to ask the judge to clarify certain complex legal concepts during their deliberations, but they have no interaction with the two parties or their witnesses.

I mentioned before that the law imposes certain rules on the parties, as a matter of fairness.  There are the “Law & Order” rules, that everyone’s seen on TV: Sam Waterston yelling “Objection, your honor!” There are rules about impeaching the character of a witness, rules about hearsay, rules about bringing up criminal history, and a whole bunch of other rules that determine which evidence is excluded on the basis of being too prejudicial to the jury, and not probative enough. The judge has the final say about what evidence the jury may be exposed to.

But in our wacky modern times, this delicate balancing act of referee, competitors, and spectators is being strained.  John Schwartz of the New York Times has an interesting article about the growing trend of jurors investigating and gathering information of their own accord: with cell phones.  Jurors have long been instructed to avoid contaminating their view of the trial or the parties involved with information that has not been sanitized through the judicial filter. From the article:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence.

I’m not sure why this is happening: are people just ignoring the judge’s instructions to not seek information independently? I found Evidence pretty interesting: maybe we could force jurors to sit through a lecture about the reasons that we don’t let the lawyers say whatever they like.

sidebar: I’ve written about my experience as a juror in the past, and I did so in the past tense; I did not share anything with the world until the experience was over. I also did not do my own damn case research, because I listened to the person with the hammer and sweet chair.

We exclude evidence from the courtroom because our judicial system recognizes that there’s a lot of unfair stuff you can do. For instance, in an murder trial, you could bring up evidence that people with tattoos have a higher tendency to be convicted of violent crimes, and then ask the defendant how many tattoos he has.  You can even play on subconscious elements of the human psyche: the so-called “gory photograph rule” prohibits showing juries horrific photos of a crime scene if they only serve to inflame the passions of the jury and make them more eager to see the defendant hang.

If the jury seeks out evidence on their own, they run the risk of coming across all sorts of prejudicial facts and conjecture that the judge has seen fit to keep out of the courtroom.  In cases like these, where jurors have ignored the judge’s instructions and exposed themselves to information on their own, the judge is forced to remove that juror from the jury.

If there are a lot of jurors (in one case in the article, there were eight!) who have tainted themselves, the only solution may be a mistrial: the legal equivalent of a do-over.  Judges can hold members of the jury in contempt of court, and I think they truly ought to.  Bringing a newspaper into the jury room is impermissible: why should surfing news.google.com on your phone be any different?

Filed on under The News

In what scientists will doubtlessly (and breathlessly) refer to as Dominic’s Icy Precipitate Postulate of ‘09, I postulate the following.

The awesomeness of a snow day is directly proportional to how much you expect it to happen.  For instance, as a wee child, you expect the heavens to issue a salvo of powdery white “Get Out of Doing Homework Free” cards upon command.  I mean, you begged and pleaded for those Teenage Mutant Ninja Turtles action figures, and that worked, right?  It has to work for some snow: snow is free!

As you get older, this phenomenon eventually tapers off, as you’ve realized how badly you want something has little to no bearing on whether it happens: at least with regard to snowman DNA.  Eventually, you get to college in Buffalo, only to find out it doesn’t snow there nearly as much as you’d heard.

But here I am in New York City, which apparently gets about two feet of snow per winter.  I’m way more excited than I thought I would be for a snow day, mostly because I was convinced I’d never get another snow day in my life.  Which is what led me to create Dominic’s Icy Precipitate Postulate of ‘09.  Observe its elegant simplicity in chart form:

oh god how did this get here i am not good with bars

Look upon my works, ye employed, and despair!  I am nerd of nerds!

Filed on under A Day in the Life

While all the morning talk(ing heads’) shows were focusing on last night’s self-congratulatory industry awards for excellence in the field of excellent filmmaking results, I’ve been catching up on Depression Watch 2009. As proof that law school irredeemably changes the way you think, I offer my train of thought.

I keep reading about the people in charge of investing all kinds of money into what the media continues to call “toxic assets” - securities that aren’t worth nearly what investors were betting they’d be worth. This bit from today’s New York Times struck me:

Still, the big banks say they remain relatively healthy and that, with time and support from the government, they will regain their footing. But many economists, Wall Street analysts and even some bank executives contend that some of the banks are already effectively insolvent.

Even though banks have reported billions of dollars of losses from bad loans, these critics say, the major institutions still carry trillions of dollars in additional toxic assets and are too damaged to resume normal lending.

Trillions? With a T? When we the taxpayers floated Citigroup $50 billion, that was less than 2% of the market’s total toxic assets? At this point, incompetence can’t hope to explain this mess. The banks who made these investment decisions inflated short-term profits (and short-term bonuses) so much that the people responsible can retire today in comfort for the rest of their lives.

I’ve had this vague sense of how horrible this situation is; I understand that we haven’t hit bottom just yet; I know that $50 billion is a mind boggling amount of money, and I can’t imagine that there are trillions of dollars of these assets that just aren’t worth trillions of dollars.

At this point, I started thinking about one of the fundamental concepts of my criminal law class from last year: the culpable mental state. While doing something bad (actus reus), you have to have something happening in your brain (mens rea) that makes you responsible in some capacity for your action.

sidebar: Were I still in college, I’d probably diverge into a long and perilously drawn out discussion of how difficult or impossible it can be to discern the subjective mental state of another person. The law makes certain allowances for this. I’ll satisfy my urge to be the Socratic gadfly to my own monologue with a link to the wonderful Stanford Encyclopedia of Philosophy’s entry for philosophical zombies, and pose the question: can we ever see what (if anything) goes on inside someone’s head?

The two relevant mental states with regard to the banks are negligence and recklessness.

Negligence in the criminal sense is characterized in part by the failure to perceive a substantial and unjustifiable risk that a certain result will occur, or a certain circumstance does exist. As always, I’m oversimplifying - the full text of the law is available on Justia here. The part of the definition I want to focus on is the existence of a substantial risk that the actor fails to perceive.

In the case of the bankers, I gave them the benefit of the doubt. When word came out about the toxicity of the banks’ assets, I knew I had heard relatively few details and I assumed that these people are good at what they do. It’s clear that there was a risk that mortgage-backed securities would burst into flames and plunge the country into a second Great Depression, but the bankers were probably ignorant, right? Why would you take a risk that will kill your 150 year old investment firm? It seemed to be an irrational action against self interest that no rational actor would take.

But I’m starting to see the behavior of the banks as less negligent and more reckless. Recklessness is different from negligence in that the actor perceives the substantial risk before he goes ahead with his action anyway. It seems baffling that bankers could think there was no risk in having over 30 times as much debt as assets, with so many of their “assets” in the form of mortgage-backed securities that the government has $4.6 trillion tied up in shoring up the market.

It’s obvious now that there was a risk: perhaps it wasn’t certain that the gross overvaluation of assets like mortgage-backed securities would cripple the economy exactly when it did, but there was clearly an ongoing risk. It’s a multi-trillion liability, and it seems impossible that people who were paid to assess risk didn’t see this possibility.

So where I assumed simple negligence had caused this problem, now it’s hard to believe that this is anything but recklessness.

Similarly, it’s hard to believe that my train of thought wanders into legal definitions. Halfway to getting my J.D., law school has broken my brain.

Filed on under Legal Theory