Bloggin big willy style

2008-04-29T11:55:00.000-07:00

The Belated Reading Week Post

Ah, the joys of being a Third Year law student. I have two serious classes (Remedies and Sales), an externship (five units), and a bar exam primer course (Basic Bar Studies). All of my classes ended yesterday, and the only thing I have left is a paper (18 pages on a topic that I can write a book on) and two finals.

Despite the hard work, confusion, commute, frustration, getting back up to speed on summary judgment procedure, and having to take a significant amount of time out of my week to work the externship, I found it extremely rewarding working at the Court of Appeal.

As for Basic Bar Studies, I felt it was a waste of time despite the fact that the professor is one of the best professors at my school. The class was more of a "here is a basic outline, here is an MBE book, do the reading on your own. When you come to class I'll give you a quiz and a bar exam question and that's it." The other problem was that the class was on a Saturday. This semester I had classes on Monday and Wednesdays, and the extern ship on Tuesday and Thursday. I tried to use Friday to prepare for Saturday, and by Sunday I was cramming for By Monday and Wednesday classes. It was not the best use of my time to say the least. Moreover, my remedies professor, shows about as much emotion in class as a toaster.

I recently came across a post on the Law School Academic Support Blog mentioning the mindset of most third year law students. We're so busy trying to line up jobs in order to pay off our loans, prepare for the bar exam, make plans for graduation, and put our own lives in order to prevent total crash and burn by July. Most of us just want to pass, and have consigned ourselves to just doing the minimum required to get by. Every "One L" I have seen has had their nose buried in flashcards and outlines for the last week. Most of the Third Years I've seen have just buried their noises in canned outlines and briefs. I think I still need to finish my outlines out least. As for after finals, I've already made plans to get out of town the week between my last final and commencement as It will be the only week I'll have off between now and the Bar.

One more thing, if you are a law student and you are reading this post, let me give you a word of advice, live at home with your family or significant other during your first and second year of law school, but move as far away as you can during your last year. Not a day goes by, where I am reminded about commencement, or asked about my plans for the Bar, or whether I've lined a job up for after graduation. Personally, I hate giving answers to questions I have not given a whole lot of thought to. I've been forced to take things one day at a time, and I've buried my calendar a long time ago.

I'll probably have a post later today on Sales and Remedies, just to get it out of my system. W.

2008-02-04T14:12:00.000-08:00

Not even done with Law School and I'm worrying about the Bar Exam?

I'm in my last semester of law school. You know, the semester where 3L's have to be dragged to campus kicking and screaming. Anyway, at my particular law school the bar exam is a big deal, mostly due to the fact that the passage rate is so low, yet the students are quite capable. In the past couple of weeks our "Dean of Bar Passage" has sent numerous e-mails to 3L's about preparing for the bar, not to mention holding meetings with us, in order to "understand the immense importance of the task we are about to undertake." A number of 3L's, including myself, are taking a basic bar studies class, in order to have a warm up and exposure to certain concepts prior to taking Bar/Bri over the summer.

Well, to put things in perspective, I know the bar exam is nothing like storming the Beaches of Normandy, but it is extremely important. But there also is a disconnect between Law School and the Bar Exam. The bar exam tests bar law, whereas law school tests "law school law." Basically what this means is that if one attempted to write their exams in law school like they are writing for the bar exam, they may pass, but the grade may not be that great. A law professor would likely mention the lack of analysis and deficient rule statements.

There have been two bits of wisdom that I have received from practicing lawyers regarding the bar exam. One, "There is the law you learn in law school, the law you learn for the bar, and the law you learn in practice. Never ever get the three mixed up!" and two, "The bar exam is an exercise in diligence not brilliance."

Well the clocks ticking, but I'm not going to look at it until May.......WDR.

2008-01-05T15:01:00.000-08:00

WHY I'M VOTING FOR OBAMA.

A little less than four years ago, I had an opportunity to work the Democratic National Convention in Boston. Being involved in politics, at least at the local level for as long as I can remember, the experience was awesome and inspiring. However, being a veteran of two political conventions, one comes to realize quite quickly that the days of back room dealing and smoke filled rooms to appoint the party's nominee are a relic of the past as most modern conventions are elaborate productions designed to showcase the nominee and his policies.

Throughout the four days of the convention, a number of elected officials and party officials gave speeches; some were televised, and most were not. But there was one speech that I continue to remember to this day. It was from a relatively unknown state senator from Illinois, who decided to run for the U.S. Senate. Now, I was following some of the other senatorial campaigns at the time, particularly the rather contentious South Dakota race between John Thune and Tom Daschle, as I was a Political Science major, and I vaguely remember the interesting turn of events in the Illinois Senate Race, after the GOP nominee, Ryan was forced to drop out of the race after the revelations made by his wife at the time, Jeri Ryan, but I digress. I was working in the bowels of the Fleet Center, when his speech began. At first, I really didn't hear it until one of my co-workers asked me to turn up the volume on one of the monitors that were set up in our office. What I heard however, was a breath of fresh air. It was a speech of hope, a speech that was more than mere platitudes and empty promises; it was a speech that was significantly different then the other politicians who spoke before him.

The speaker was Barrack Obama of Illinois, a native of Hawaii, with a white mother from Kansas and a black father from Kenya. Obama stated that he was "the embodiment of the American dream" as nowhere else would a man of his heritage would be able to do so much so fast. The crowd of delegates, normally ruckus and constantly talking, fell silent and gave their undivided attention to Obama. The cadence of the speech was measured; it lacked the "umms" and "ahs" that so often punctuate the speeches given by President Bush. It was a voice of intelligence and assurance. A voice that has the ability to tell the world “America is ready to lead again."

Barrack continued. He spoke of the need for service. The need to be "my brother's keeper, my sister's keeper," and the need to provide hope and to maintain faith in simple dreams. The crowd was rapt with attention. I had goose bumps. From there on out I realized that change cannot be expected from more of the same, change only genuinely comes from one outside of the beltway.

At the end of the convention, my brother and I stood at the podium where just hours earlier John Kerry had given his acceptance speech. The confetti was still on the floor and balloons were being kicked around by the few convention and campaign staff still hanging around. I stood there wondering if John Kerry would really be able to beat George W. Bush. Of course, we now know the result. Osama Bin Laden is still at large. Justice for the 3,000 who died on 9/11 is just a fleeting memory. The war in Iraq continues to rage on. The national economy is being held together by a thread. While, the rights and guarantees entitled to all under the Constitution are being whittled away by a president who wields his veto pen as a sword to stifle progress and protect his friends.

I like Hillary, but is she electable? Honestly, no. Bill burned too many bridges with the base of the Democratic Party, and she is reviled by the Right. If the Swift Boat attacks were vicious against John Kerry, just wait to see what will be unleashed against Hillary. John Edwards is good too, but I also believe that he will not be able to weather the storm of GOP attacks. Dodd and Biden are good too, but as Biden recently said "electability is more of a popularity contest." Both Biden and Dodd have tremendous sway in their respective roles in the Senate, the presidency is a bit of a stretch.

Watching Obama's speech from Iowa reminded me of that night in Boston. We are not Red States or Blue States, there is not a Latino America or a White America, there is not a Christian America or a Jewish America, we are the United States of America. Obama embodies this message. That is why I will be voting for Obama as the next President of the United States of America.

2007-10-11T20:51:00.000-07:00

Just a minor musing.....

Al Gore + Nobel Peace Prize = Next President of the United States? It would sure beat the current lot of Republican nobodies!

2007-09-11T16:51:00.000-07:00

Never Forget - 9/11/01

2007-07-21T12:21:00.000-07:00

Guten Tag!

Been a little busy the last few weeks. Between classes, Vienna, Beer, Munich, Bertchesgaden, Salt Mines, Salzburg, and then later Berlin, I am somehow finding some time to study my material pertaining to Fundamental Rights in the US and Europe. I'll write a more lengthly post when I return, but here is a picture or two from my trip.

2007-07-01T23:48:00.000-07:00

Wheels Up.

Entering my Third Year of law school, I am finally doing something I've always wanted to do while I was in undergrad, Study Abroad. But the problem is that once you are in law school all the problems of adulthood and a professional education tend to accumulate which means paying the bills, setting the e-mail to "out of the office," tying up loose ends as the distance and time involved in travel makes it difficult to get things taken care of, and packing stuff that I think I need now (but will become a headache while abroad). I've been to Europe before, but this time I really will have an opportunity to enjoy it. My last visit to Munich was a quick visit to the Marienplatz, beers at the Hofbrauhaus, and then back on the bus. This time I'm going without a tour guide (and possibly without a net). Then I'll be in Austria, studying fundamental rights of the US and Europe under Justice Kennedy, for three weeks. A quick trip up to Berlin, and then back down to Munich. Berlin has always been on the "to-do" list for sometime, not only because of the WWII aspects and the Cold War history, but also because of the modern mystique of visiting a city that was once divided into two.

But the magic mystery tour does not stop there my friends. When I get back I'll have about a week to relax and then it's off to San Francisco, to undertake my duties as the ABA Representative for Western State. So much for the slow summer, I can see the rest of it rolling down the runway.

Bon Voyage......WDR

2007-06-06T22:32:00.000-07:00

DUCKS 2007 STANLEY CUP CHAMPIONS (ABOUT FRIGGING TIME!!!). BTW. WHO SAID SOMETHING ABOUT A CURSE? GO DUCKS!!!!

2007-05-16T00:21:00.000-07:00

(Credit: Boingboing.net via medialibel.org)

See Ya Jerry......

After hearing of the passing of Jerry Falwell, I couldn't pass up this opportunity to bring up one of the numerous cases covered in my Con Law class over the past semester. Basically, A public figure cannot claim Intentional Infliction of Emotional Distress for a parody advertisement absent actual malice. It's the price one pays for being a public figure, and quite honestly the cost of doing business.

Besides my appearance with him via satellite on CNN's Crossfire (No, not the Paul Begala, James Carville v. Tucker Carlson and Pat Buchanan slug fest) In which I received a compliment from him. (We'll more of "I have no doubt that these two are fine young men...") during an interview concerning a minor piece of litigation I was involved in the late '90's. (Google's amazing, you should try it some day).

Not to sound like an echo of my brother (which usually happens without even trying), I wonder what Peter is going to say at the Pearly Gates? ("Tinky Winky" no, really? You can't be serious. Wait here, I need to run this by the Big Boss first.)

WDR

P.S. As for Spring Law School Grades, they are slowly trickling in. I might or might not comment on them in the near future.

2007-05-05T16:18:00.000-07:00

Law School Finals Blogging Series
Welcome to the Suck - Spring 2L

Two exams in, and I'll be honest to anyone who is interested in listening, that I really don't feel that great about them. I don't feel horrible like I did after my Civ Pro II exam where My brain went totally blank. And I really mean blank, I couldn't even remember my name for a few seconds and had a splitting headache afterwards. Or, like I did after my Con Law I exam, where I felt really good, and nailed the son of a bit#$. So far with Con Law II and Corporations, I feel like I was disorganized in my Con Law Exam, but most of the stuff was covered. The multiple choice was not too bad either compared to the Mid Term. But for Corporations, the multiple choice threw me for a loop, and I know I missed at least one, the second essay was not too bad. The fact patten was really obvious and the essay was probably intended to give students the opportunity to redeem themselves after the first essay. The first essay however seemed like a doozy, which really pisses me off. First off, I spent the last two weeks reviewing the exams that were made available on the course web page, and guess what, the essay was based off a recent decision of the Del Supreme Court that recently overruled Cal.Corps.Code s.2115 that subjects foreign corporations (in this case DE Corporations) to CA law. (see Vantage Point Venture Partners 1996 v. Examen, 871 A.2d 1108). The exam was off of a single comment that took up no more than 30 seconds of class time! UGH!!!!

Now, before I waste anymore of my precious time this Saturday I just have to put property and Fed Tax, plus the remaining 7 pages of my International Law Paper in the can (with about 24 hours to finish it in between my property exam and the deadline). Talk about cutting it close.

WDR.

2007-04-23T17:11:00.000-07:00

So much for a better week......

After last weeks horrific shootings at Virginia Tech, the NASA domestic dispute at Johnson Space Center, and the Blue Angels Crash this past weekend, you would think Monday would be a fresh start. But alas it was not to be. Today started off with the announcement of the Death of Boris Yeltsin. Love him or hate him, he was the first president of the post soviet Russia. and his announcement on New Years Eve of 1999 that he was stepping down practically eclipsed the coverage of the events around the world. Then later this afternoon it was announced that David Halberstein, a Pulitzer prize winning writer, was killed in a car accident up near San Francisco. To put it bluntly, this just sucks.

So to take my mind off the sucky news, I'm going to bury my head in my books and prep for finals. Exam #1, Con Law II, is in T-9 days and counting.

WDR.

2007-04-21T21:58:00.000-07:00

FINALS BLOGGING SERIES: FIT*

The following is a short practice exam answer that was prepared for my Federal Income Taxation class. I'm awating feedback from my professor, but I think I hit all the highlights.
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Under §61(a), any income derived from any source whatsoever is taxable. Income includes income realized in any form, whether in money, property, or services. §1.61-1(a). More specifically, an undeniable accession to wealth, clearly realized, and subject to the Taxpayer’s (TP) dominion and control, will be deemed income for purposes of §61(a). Glenshaw Glass. The finder of treasure trove, to the extent of its value in United States currency, constitutes gross income for the taxable year in which it is reduced to undisputed possession. §1.61-14(a). Here, Legolas will have income upon finding the ring as he took dominion and control over the ring by placing it around his neck. The ring increases his wealth, and there is no indication that Legolas’s possession of the ring is conditional. Even if Legolas were to argue his possession his conditional, under the claim of right doctrine he would still be required to report the ring as income in the year it was found, even if there is a possibility that another person may clam the ring in a later year. Cesarini. Much the like the found money in the piano in Cesarini, Legolas will be required to report the fair market value - what a willing buyer would pay a willing seller, with neither under a compulsion to buy or sell, and both having reasonable knowledge of relevant facts – as assessed by Gandor concerning the ring, here $20,000. §20.2031-1(b).

As for the transaction with Frodo, the amount realized (AR) in sale of the ring is $40,000, $25,000 in cash and $15,000 for the horse. §1001(b). Income includes income realized in any form, whether in money, property, or services. §1.61-1(a). His adjusted basis (AB) in the ring sold is $20,000. §1012. Legolas gain realized on the sale with Frodo is $20,000. §1001(a). This gain is recognized unless there is some provision in the Code that would postpone recognition. §1001(c).

Unless excepted by another provision in the code, Legolas will be required to report the gain realized from the sale of the ring to Frodo as gross income for the 2002 tax year under §61(a).

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I'll post the post game recap, as soon as I hear back from my professor.

WDR.

*Standard Rules apply (not for legal advice, nor even close to what a polished answer would look like. You mileage may vary.)

2007-04-09T22:51:00.000-07:00

FINALS BLOGGING SERIES: PROPERTY II*

The Recording System or "that check ain't worth the paper its written on..."

Here is a quick outline on The Recording System:

Establishing Chain of Title

Grantor-Grantee

documents affecting parcel of land are recorded in order of the grantor and grantee
Searches are ran until root of title is established (either CL or Statute)
Gap --> Burden falls on seller to clean up chain of title.

Tract index

Documents affecting parcel of land are listed per index for parcel.

Recording acts

Purpose: Establish priority persons have to parcel of land

Types

Race: i.e "First in line saves a dime"

First to record prevails

Race/Notice: i.e "Tag! Who said we were playing tag?"

Subsequent BFP/creditor who first records prevails against person claiming prior unrecorded interest as long as purchaser did not have notice of preceding interest upon acquisition of interest.
Notice established

Constructively: Purchaser deemed to know all matters contained in legally recorded deed records, w/o search.
Actual: Physical search of records, etc...
Inquiry: Purchaser hears or sees something that a normally prudent person would inquire about.

Notice: "At closing time, it's all mine"

Subsequent BFP/creditor prevails over claimants as long as subsequent purchasers acquires title w/out notice of prior claim.

Primary purpose: Protect subsequent bona fide purchasers for value.

* Standard Rules Apply (See below)

2007-04-09T18:32:00.000-07:00

FINALS BLOGGING SERIES: CON LAW II

OK , "we're back in the tree again." It is the wonderful time of the year when caffeinated beverages are a must and sanity is for those who don't know any better.

Today's subject is....First Amendment: Content Based v. Content Neutral Regulations. The "abbreviated" prompt is included below.

Please note: The following is provided for (1) my personal purposes to get the pre-exam writing jitters out of the way, (2) not intended to provide legal advice in any way, shape, or form, and (3) not for any further publication, copying, borrowing, referencing, etc.. without contacting the author, and (4) may have errors. It shouldn't, but last I checked, I'm human and mistakes do happen.

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Chicago adopted an ordinance prohibiting all picketing in residential neighborhoods unless it was labor picketing connected to a place of employment

Discuss the constitutionality of this ordinance under a content-neutral/content-based approach. Do not discuss the "public forum" issue. NOTE: 500 Word Limit.

Is the Chicago City Ordinance allowing labor picketing a permissible speech regulation under the First Amendment?

The Chicago city ordinance will be held unconstitutional under the First Amendment, as applied to the states via the Fourteenth Amendment, since the regulation impermissibly distinguishes between the types of speech allowed based on the viewpoint advocated by the speaker.

Under the First Amendment, as applied to the states via the Fourteenth Amendment, the government is prohibited from distinguishing speech based on the ideology of the message being expressed by the speaker. Laws that prohibit types of speech, or impose differential burdens upon speech because of the viewpoint being expressed are deemed content based and are subject to strict scrutiny. Such regulations are subject to the “most exacting scrutiny” and are presumptively invalid. The regulations must be necessarily related to a compelling state interest, and are so narrowly tailored to serve that end. (Boos) Additionally, the regulations imposed must not “unnecessarily circumscribe protected expression.” (White) Laws that merely regulate speech with no concern to its content are subject to an intermediate scrutiny test. Whenever the government seeks to regulate speech in public places it must be subject matter neutral.

The City of Chicago regulation is prohibiting all other types of picketing in residential neighborhoods, except for labor picketing, essentially distinguishing permissible forms of picketing from impermissible picketing based on the subject matter being expressed. Such a regulation prohibits other forms of constitutionally protected speech. A similar situation was presented in Boos, where the Court held Washington D.C. may not enact an ordinance restricting speech due to the message being conveyed by protesters deemed to bring a foreign government into “public odium.” Whenever the government seeks to regulate speech in public settings it must be subject matter neutral. Here, the ordinance bans picketing in residential areas unless it conforms to the subject matter expressed in the ordinance. This ordinance serves to prohibit other forms of peaceful picketing, such as school board protests, from taking place in residential areas. No content-neutral purpose for the regulation is provided, such as the need to limit secondary effects of speech, which could possibly provide a compelling state interest for the regulation. In essence, the City of Chicago is controlling the opinions, messages, or ideas of picketers in violation of the First Amendment.

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Post Game: Prof mentioned there was a slight confusion between Content Based restrictions and viewpoint based restrictions, but other than that no problem. (4/21/07)

2007-03-18T17:59:00.000-07:00

THIS BLOG POST IS A CONTRACT, PLEASE READ IT AS IT MAY AFFECT YOUR RIGHTS.

Ok, As a law student I am a little bit intrigued that a person can claim that just by visiting a web sight or archiving a copy of a web page that a contract is formed with the one providing the material. If a federal court were to buy this argument, then the Internet it self is in danger.

Here are the terms of a contract posted on the front page of a particular website (addresses have been removed to prevent the person from receiving any credit)

(The following is for fair use and editorial purposes only - So Sue Me :-p)
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EMAIL THE (STUPID SITE OWNER) *** Our client lists are confidential. Please do not ask who disclosed certain information to ****. This information is not available to the public and will be vigorously guarded from disclosure to protect those clients whose children remain at risk of state-sanctioned kidnaping of their children.
Information included on these pages is not legal advice, we are not attorneys. You are advised to consult with an attorney on any legal matters.
Any legal documents on this site were prepared and/or drafted by attorneys or under the supervision of an attorney, or by pro se respondent parents and/or subject children and are published here with their permission. Any phone calls or other oral communications with our staff may be recorded at our discretion. Any person engaging in conversation with any of our staff is presumed to have given express consent to be recorded. ALL MATERIAL ON THESE PAGES IS COPYRIGHT 1996-2007 ************** reproduction without written permission is prohibited.

IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS WEB SITE, YOU ARE ENTERING INTO A CONTRACT. SEE COPYRIGHT NOTICE & SECURITY AGREEMENT (READ BEFORE ACCESSING THIS WEBSITE) - Copyright 1996- 2007, ********** and individual contributors where appropriate. The content if this web site is intended to generate income, it is not free if you intend to archive, copy, print or distribute anything electronically fixed herein.

Reproduction and distribution prohibited without permission. This web site is licensed to be viewed on a computer only.Permission and limited, non-exclusive license to reproduce this web site, by any method including but not limited to magnetically, digitally, electronically or hard copy, may be purchased for $5,000 (five thousand dollars) per printed hard copy page per copy, in advance of printing. We accept Visa, Mastercard, American Express, check, money order or cash. WE DO NOT ACCEPT GOVERNMENT PO’S - this fee schedule specifically applies to any state agency, employee, contractor or CP$ service provider or any person listed on ********** Bad Advocates pages. CP$ agencies and coconspirators have found this site to be extremely valuable, preferring the contents of this site to any other site. Hence, the premium price. Family Rights activists or advocates may obtain reduction or waiver of license fees .

All online purchases are nonrefundable. In the case of a dispute involving a purchase, the purchaser agrees that the record of electronic delivery generated by the online document delivery service shall constitute incontrovertible proof that the item charged was delivered to an authorized user of the credit card or online payment service account. If the card owner contests the charge the document was delivered and we are charged fees for a charge back, cardholder agrees to pay to us the amount of the purchase plus $50 or double the purchase price, whichever is greater, upon demand.

If this intellectual property is stolen, infringed or used to harm any member or associate family of any Family Rights group, the copyright holder will seek appropriate remedies under applicable laws. Anyone visiting this site consents to jurisdiction and venue remaining in El Paso County, Colorado.

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Here are my thoughts on the above listed text. (1) Merely visiting a website is not enough for one to be bound to a contract, while it is true that one may enter into a contract via electronic submission, usually there is some intent to be bound by the transmission, such as the placing of a market order by a automated computer program. (2) The author of the webpage is the one most able to prevent the page from being archived. By inserting a "no follow" link, or certain code in the webpage, archiving can usually be prevented. (3) Other methods exist to prevent "copyrighted" material from being copied, such as providing a password for a secured section of the site in exchange for payment and agreement to terms of service. (4) If a federal court were to recognize her argument as valid, this could have devastating consequences for the Internet as a whole. Plus more than just computers have the capability of accessing the web. And (5) No one can consent to jurisdiction and venue just by visiting a website, it is possible that the webpage itself is hosted on a server outside the jurisdiction. Additionally such contact is insufficient to rise to the level of "minimum contacts."

BTW, "not legal advice? Cases are cited and interpretation is given, I think that is just about enough to be "legal advice."

WDR.

2007-03-08T22:25:00.000-08:00

Law School Frustration - FLP Style

“The only difference between a rut and a grave is their dimensions.”

"Get in the boat, do your job, and come back"

Ok. I need to vent. One of the biggest gripes about the ABA accreditation process is the lopsided focus on Bar Passage rates. A law school can have an outstanding faculty, stable finances, impressive credentials, and still not get the ABA seal of approval just for having low bar passage rates. My current law school, in response to both the recent ABA site visit and dismally low bar passage rates, has imposed new graduation requirements in order to receive a JD degree. Traditionally, when schools make fundamental changes to grading or graduation requirements, polices only go into effect for the matriculating class. But, not at my school. The policy has gone into effect for everybody except graduating 3L's. The policy requires students to earn what is called "foundation law points." A student will earn one point for each listed class in which the student earns a 2.5 or above on a 4.0 scale. Full time 2'L's will need 3 points to graduate, whereas Fall incoming students will need 8 points, and must earn a certain number in the first year.

Now I'm not against the purpose of the policy. Improving bar passage rates has positives for everybody. The reputation of the school goes up, hiring prospects increase, and, to paraphrase my corps professor, there is "more beer for everybody." However, the implementation has been, for lack of a better phrase, an utter disaster. As I understand it, the administration has given the faculty free reign to develop this policy, but it has devolved into a situation where the left hand does not know what the right hand is doing.

As for the student response, well, as expected, it has not been pretty. The forum this afternoon turned into a shouting match. It was a situation were cooler heads needed to prevail. Solutions needed to be presented, and I'll commend one professor for attempting to strike a middle ground. Whatever solutions are going to be proposed are not going to appeal to everybody, and everybody must understand this. I second the need for a joint faculty student committee to address this problem. It would allow the process of refinement to continue and minimize distractions throughout the rest of the semester.

A lot of information is available on the internet about the academic factors involved in Law School. Some of it is disparaging while some informative. But in the end, the ultimate x factor in the whole process is the student. The one best able to steer the ship and control their destiny.

The point of this post is to get my gripes out of my head and to return to my primary focus, which are my studies. Between the ABA site visit and the new policy announcements, academics, which should be first and foremost, has fallen to the wayside. After tonight, this whole debate is purely academic. No one earns a 4.0 for debating grading policies in law school.

2007-02-20T20:17:00.000-08:00

LAW SCHOOL BLOGGING SERIES

Well, here we are six weeks into the semester and I have a midterm in t-1 week in Con Law and another Midterm (online at least) for Corporations. What has been a nice change of pace from last semester is that my Con Law professor is requiring weekly short essay quizzes from his students, unfortunately he is still leaning way too much on the text. We read the material outside of class, we read it again in class, and we then review the material after class. If it doesn't stick, Tough luck.

As for pending projects:
- 1. 25pg Paper for International Law - Topic: Generally, the International Legal Ramifications of the recent ASAT test by China. The growing militarization of space, and the present outer space legal regime has been thoroughly discussed by numerous scholars so it is not like I have to stretch for material. I'm currently in the process of writing the outline for it. I would really like to have a publishable manuscript after I am done with it.
- 2. Federal Income Tax - OK, Not my most exciting class, but it is one of the law classes where one can definitely have a "right" answer - Current topics: The income tax treament of Gifts, Bequests, Devises, and Inheritances and the Sale of a Principal Residence. This class is very statute intensive. Besides, do we really need Sec. 1012 to remind us that basis = Cost, and Glenshaw Glass to tell us that income is an accession to wealth clearly realized subject to the taxpayers complete dominion and control.
-3. Corporations - Ugh, were do I begin. I have a morning class with a professor who is not a morning person. Each class starts on average 10-15 minutes late and we have just started the material for week 3. (About 3 weeks late.)
-4. Property - Class is definitely not the place to learn the material. I enter class thinking I know my stuff and then leave class totally confused. Today, was Common Interest Communities and Associational Standing for the ability to change and impose CC&R's. I think I have figured it out however, the prof does not want the obvious answers, but the stuff that only a psychic could divine from the sacred text, I meant case book. I'm in the process of pouring over his last exams to figure things out.

Oh, and did I mention I'm registered to take law class in Salzburg, Austria this Summer. I'll book the flight eventually. Now back to studying, already in progress. ---WDR.

2007-01-23T18:35:00.000-08:00

Quick SOTU Post -

Hey Shrub! You have lost the right to invoke 9/11 until you actually DO SOMETHING ABOUT IT ? I.E. Where's Osama?

And if I hear the term "up or down vote" one more time........UGH!

WDR

2007-01-23T17:53:00.000-08:00

Welcome Back - WSU Spring Semester 2007

Well, here we go again. It's time to take the red pill and see how far this rabbit hole goes. As of last week, I officially cleared the hump of my law school studies.

A brief comment on Fall grades. If there was something besides obtaining my Juris Doctor Degree and passing the bar that I wanted to do during Law School it was at least to do well in one class (Its law school, one has to be realistic). I know it is bad practice to discuss grades, but I thought that with a 4.0 in Constitutional Law that I would have at least won the Witkin in the class (I don't know if we do AmJurs anymore). Alas, it was not to be. I just reviewed my exam from last semester and did surprisingly well. But, after looking at the breakdown of the grades and to quote Maxwell Smart, I "Missed it by that much." ONE STUPID POINT. No, a better performance on the final would not have saved it, as I had the highest essay score for the class per the grade breakdown. And to make matters worse, there was only two A's earned in the class. The culprit was an online midterm where the answers were close, closer, and closest.

Oh well. Over the next week I'll try to review my other exams.

WDR

2006-12-16T17:44:00.000-08:00

FINALS BLOGGING SERIES – POST GAME RECAP

The old law school adage is that they work you to death the second year. Well, halfway through the second year and I will admit the adage is true. Five classes with five exams at three hours each, by the third one I was feeling pretty punchy, and by the fifth one I probably wrote something about the relationship of the coarse theorem to the introduction of character evidence. In other words, I was baked, flambéed, and fricasseed, and it probably showed up on the exam.

On an aside, I personally believe that the traditional way of grading students in law school is a joke. In undergrad, pop quizzes and multiple examinations were routine. By the end of the course, everyone in the class was at least familiar with the material. In law school however, grades are all dependent on one three-hour exam. Law school professors justify this method of grading two ways. First, they argue that this is how the bar tests the material, and by golly if the state can do it for the bar exam I can do it for my class. Or the second, which is that law schools traditionally test the material this way so why mess with tradition. In my opinion as a student, both of these reasons breed malpractice and discontent. The bar exam is a different beast in itself and should have no bearing on how grades are determined in law school. Grades in law school should be based on three factors. First, it should be based on how well a student has mastered the material. This can be tested in a number of ways, from pop quizzes, the true use of the Socratic Method in presenting the material, or through short fact patterns given weekly to students in which the professor provides feedback.

Second, theory is one thing, practicality is another. A good quote pertaining to law school is this, “the law you learn in law school, is different than the law you learn for the bar, and is different than the law you learn in practice. Never get the three mixed up.” While the ABA sets “academic standards” that cover everything up to and including the number of toilets (not really, but it is that detailed) the standards are silent on providing practical experiences to students. I would require that an externship or internship be completed as part of one’s law school education. A lawyer’s duty to perform pro bono work should be reinforced in law school.

Finally, professors gripe and complain about making copies of past exams available. They are even more appalled by making model answers available. I would require that past exams and model answers be made available to students. First, many are way too detailed for purposes of a three-hour exam but they allow a student to see IRAC in practice. Second, it provides insight on the professor’s phrasing of the rules. Finally, they help to provide focus to a student’s studies, if the student should focus on policy or rules by writing to the preferences of the professor. When professor’s openly gripe about the poor quality of student writing, in many instances they share some of the blame.

I would like to say that I am not a superstitious person, but I was wearing my lucky Oxford University rugby shirt during every exam. I don’t know why, it just made me feel smarter, plus it served as a bit of a mind screw for my fellow classmates. For the record, I did not attend Oxford, but if they were thinking I did, I’ll start wearing a Harvard baseball cap as well. I am not holding my breath for grades, but if I was able to eek it out this semester, I will be a very happy man.

BTW…..The next Law School related post will not appear on this blog until after the New Year. Don’t even ask about grades.

2006-12-08T01:00:00.000-08:00

FINALS BLOGGING SERIES – EXAM WEEK SERIES

(This post is written in the Exam Format that is required for my PR Class)

No use of the word clearly or words of similar context
A preliminary statement setting out the issue to be addressed and the jurisdiction
Strict Adherence to the IRAC Format

In order to properly assess the level of preparedness and capability of Western State Law School Students, final exams are administered on a biannual basis for those students attending Fall and Spring Semesters. Midterm exams may be administered by the professors as warranted, however all classes are required to have one final exam. All references to exam procedures are according to the rules as set forth in the student handbook and other authorized communications as necessary.

I. Is there a duty for law students to type their exams while in law school?

For the ease of administration of exams and the importance of accuracy of grading, students may, but are not required to type their exams while in law school.

Under the academic standards, as set forth in the Student Handbook, a student has the option of either typing or handwriting their exams. While the student handbook does not set out a preference for the use of either procedures, many professors stress the need to type rather then handwrite as it is useful practice for the bar exam. (See Student Handbook, Exam Procedures) From the student’s standpoint, the ability to type one’s exams allows for the student to focus more on outlining and preparing a “stellar analysis” on exams. (See Sheppard, Syllabus to Property I). Furthermore, the ability to type one’s exams allows students to maximize one’s time, by being able to make quick corrections and to move sections of one’s answer on the screen during the course of the exam.

However, the need for students to type exams may also lead to further difficulties. Many students have been able to complete their education via the built-in spell checker and grammar checker of Microsoft Word, and do not have the sufficient language and grammar skills to ensure clear and concise prose. Furthermore, students may feel more inclined to include more material, rather than less, in order to fill up time and address issues that are not relevant to the issues being tested. Students may also have difficulty typing or have difficulty concentrating in nosy room full of keyboards. In addition, those who handwrite exams are more inclined to take the time necessary to outline model answers prior to writing in order to prevent complete rewrites in the middle of exams and to clear up one’s handwriting as well.

In conclusion, while a student is not under a duty to type exams, it is a method that is preferred by the professors and provides important practice for the bar exam. As such, students should type their exams.

a. If the student’s computer encounters technical difficulties, is a replacement computer authorized?

While a replacement computer during the exam is not authorized due to the need to install examsoft software and to complete the necessary registration process. A replacement computer may be procured prior to resuming subsequent exams.

Students who encounter technical difficulties during exams in which their laptop becomes unusable are required to resume the exam through the use of pen and bluebook. (See Student Handbook, Use of Examsoft Procedures). However, students who have adequate time to procure and prepare a replacement computer in the interim may do so. (Conversation with Bonnie)

Difficulties of a technical nature, such as a frayed power cable that is an obvious safety and fire hazard due to sparking, will require a student to obtain a replacement computer. (Yes, this actually happened to me.) While the purchasing of a replacement computer during exam week may take away time necessary to adequately prepare for exams (see II. Infra), a student may be able to procure a replacement laptop through a family member, i.e. a brother who just happens to have a spare lying around. (Why he has a spare is beyond me.)

Under the rules as set forth in the student handbook, a replacement computer is authorized, provided as student is able to install the necessary software prior to commencing subsequent exams.

II. How many hours of study are needed before the material sinks in?

Adequate time to prepare for exams is dependent on the students study habits and focus, Students who are enrolled in five classes and attempting to work a law clerk job may suddenly find that there are more than 24 hours in a day and sleeping less than 6 hours becomes the norm. However, stress has been known to effect people differently, and the student may end up sleeping more and losing focus, by turning to such activities such as blogging.

III. What if the student is starting to feel like crap, is he under an ethical duty to continue with exams without an approved withdrawal?

Cutting to the chase to get back to studying……Under the “Buck Up and Suck Up” theory a student is under an ethical duty to take the exams. Only in such cases in which the student is hospitalized and suitable alternatives to taking the exam cannot be devised, will the student be able to delay the taking of exams. Just because a student starts to feel miserable during finals, does not relive him of his ethical duty to complete exams in the classes he is registered.

One exam down, four to go. JUST GEEEETTT IIITTTTTT DONEEEEE!

2006-11-30T23:19:00.000-08:00

Message from Management ---

Until further notice, the finals blogging series has been suspended.

WDR.

2006-11-21T17:24:00.000-08:00

FINALS BLOGGING SERIES: CON LAW
Below are supposed to be four short questions with four short answers. As you can see, I forgot about the short part on the first two, but covered all the bases. Whereas on the second two, I got the short part down, but took some scalp with it. The model answers are from my professor.
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1. Standing
CQ: Does a 19 year-old denied purchase of 3.2% beer from a state owned store under a law that allows women to purchase the same have standing?

In order for a party to have standing to sue in federal court, there must be an actual case or controversy between two adverse parties, the plaintiff has or imminently will suffer injury, the injury is traceable to the defendants conduct, and the injury caused by the opposing party can be alleviated by a favorable decision in the matter. An injury in fact is defined as a cognizable injury, and not one that is merely speculative in nature (Lujan). A party can also assert the claims of third parties, when the injured third parties are similarly situated to the one bringing the claim and the injured third parties are not likely to assert their own claims.

Here, James will have standing to sue as the state's stores refusal to sell him the beer is a cognizable injury due to the states unequal treatment of men and women of the same age group.

The Court has held in Boren that state laws prohibiting the sale of alcohol to males under 21 is a cognizable injury sufficient for standing purposes. A bartender was able to assert a claim on behalf of patrons who were unable to purchase 3.2% beer in Oklahoma, due to a state law that prohibited the sale of such beer to males under 21. The Court held the economic interests of the bartender allowed it to act as an advocate for those who were denied access to the market, i.e. the ability to purchase beer at his establishment. In addition, the injured third parties were unlikely to sue due to the costs involved.

While the state may likely argue that as a market participant it has the ability to determine whom it may or may not sell beer to, such regulations of the market have been held to be impermissible. It can be inferred from the facts presented that the law is applicable to all liquor stores operating in Calutopia. As such, James may bring such an action here on behalf of himself and others similarly situated. First, as the state has enacted a discriminatory measure due to gender, both James and the state liquor store are adverse to each other, meeting the actual case and controversy requirement. Second, James has suffered both a cognizable injury and injury in fact by the State's active discrimination against males under 21 by denying them the ability to purchase beer when women of the same age are able to do so. Finally, an injunction or invalidation of the state law by a federal court decision has the ability of alleviating the cause of the injury.

Absent some valid compelling reason for delineating based on gender by the state, James will have standing to sue.

2. Federal Power: Commerce Clause

CQ: Can Congress enact legislation banning smoking in all public places?

Under the Commerce Clause of the Constitution, Congress shall have the power to regulate commerce among the several states. While the definition of Commerce has varied throughout the years, the modern Court has defined "commerce" as those "interstate activities that have a substantial economic effect on interstate commerce". This includes the use of the channels of interstate commerce, regulation and protection of persons or things in interstate commerce, and intrastate activities that have a significant effect on interstate commerce. However, the ability to enact such legislation is limited by the Tenth Amendment, which has been defined as enacting an affirmative limit on Congresses ability to control those things that do not have a significant economic effect on interstate commerce. A violation of the Tenth Amendment occurs when the federal government compels the states to enforce federal legislation using local officials.

Arguably, the regulation of cigarette smoking falls under the commerce clause power as the manufacture and sale of cigarettes is an interstate activity with a significant economic effect on the national economy. The Congressional intent for enacting such a statute can be inferred to include the costs of medical care due to smoking and its impact on federal medical programs, providing a rational basis for implementation of the legislation.

However, the states will likely assert that the implementation of such as law constitutes an impermissible encroachment on the states Tenth Amendment rights through inappropriate means. The program enacted by Congress, will have significant effects on the states, as enforcement of the law will likely be through state and local officials, not federal officials. Requiring the use of local officials to carry out a federal mandate has been held to be impermissible by the Court (Printz).

Due to the likely use of local officials to enforce federal legislation, Congress will not be able to enact this legislation.

Model Answer
Under the doctrine of enumerated powers, Congress may only legislate where there is an explicit or implicit enumerated authorization of power in the Constitution. The commerce clause has been the basis for regulations on behalf of the health and safety of the public since the Lottery Ticket Case. The Lopez test for the Commerce Clause power says Congress may regulate (1) channels (2) instrumentalities, or persons or things in interstate commerce and (3) activities with a substantial effect on interstate commerce, including by cumulative effect. "Buses, airplanes and trains" clearly fall within channels and also instrumentalities, persons or things in interstate commerce. Further, tobacco sales and related health costs have a substantial effect upon interstate commerce given the amount of smoking expenditures and the high costs of tobacco related diseases. Under the approach suggested in Morrison v. Olson, this law does not appear to regulate non-economic conduct traditionally subject to state regulation, that may be outside the scope of the commerce clause. Therefore, this legislation is likely within the power of Congress to enact. Alternatively, there is an argument that cigarette smoking is non-economic conduct and therefore not traditionally subject to state regulation. If so, then under Morrison v. Olson, this is not a proper subject for commerce clause regulation. Finally, there is no suggestion that Congress is trying to "commandeer" state officials or the state legislatures so there is no violation of Tenth Amendment principles.

3. Limits on State regulatory power

CQ: Is state legislation violative of the Constitution?

Step 1 - HSW - Police Powers
Step 2 - Preemption, Congressional Approval
Step 3 - Protectionist or Neutral
Step 4 - Under the Dormant Commerce Clause, facially neutral legislation that encompasses interstate commerce will be held valid unless the burden outweighs a legitimate state interest. Here, the state has a legitimate interest in banning indoor smoking due to the significant medical costs that are attributable to smoking. The burden imposed by such a regulation is minimal as it does not prevent operators of public transit from conducting business, and any fiscal impacts occurring because of the loss of business from smokers, would be incidental as to its local benefits. The State legislation will be upheld.

Model Answer
Traditionally, states possess general police powers to regulate on behalf of the health, safety and welfare of the people of a state. The state of Calutopia may legislate on behalf of the health of its residents. If this legislation is designed to prevent smoking related diseases from "second-hand" smoke, this is a proper legislative objective and permissible legislation under a state's police power. There are several constitutional considerations. Such legislation may be pre-empted by federal laws or regulations. In the facts, we are not told of any federal laws so we can assume there is no pre-emption issue. Further, since there are no applicable federal laws, there can be no federal approval of legislation that otherwise would violate the dormant commerce clause. Under dormant commerce clause review, the first consideration is whether the legislation is protectionist or discriminatory against out of state interests. As summarized in Philadelphia v. New Jersey, if the legislation is protectionist, it is per se invalid. Here, since the legislation affects all use of cigarettes in the state and does not appear to favor local smoking interests in favor of out-of-state smoking interests, it does not appear to be discriminatory or protectionist. Next, under the Pike v. Bruce Church balancing test, we must consider whether the burden on interstate commerce is clearly excessive in relation to the putative local benefits and whether there are reasonable nondiscriminatory alternatives. Here, there is a significant health benefit to non-smokers by keeping cigarette smoke away from the general public. While there is a burden upon out of state producers and sellers of cigarettes, when balanced against the health benefits, the health benefits might well out-weigh the minor burden upon interstate commerce in cigarette sales. This legislation is therefore not likely to violate dormant commerce clause principles. Since this does not involve the state in any actual economic activity of buying and selling, this would not involve the market participant exception.

4. Equal protection: Race as admissions factor

CQ: May race be used as a factor in state university admissions?

Under the Fourteenth Amendment Equal protection clause, no state shall deny to any person within its jurisdiction the equal protection of the laws. Any racial classification, either benign or discriminatory, used by the government is subject to strict scrutiny analysis and will be upheld only upon the government showing a compelling purpose for such a classification. (Richmond) Also, The means employed by the university must not be so narrowly tailored so as to further a compelling governmental interest so as to prevent illegitimate racial stereotypes or prejudice as a motive for the classification. (Grantz).

The court has held in Grutter, the use of race as a one factor in a multi-factor holistic analysis for purposes of law school admission is not violative of the 14th amendment, as the methods used by the school did not protect or give an advantage to any one racial group. Also, there is a compelling governmental purpose in higher education to provide for a diverse student body, and the methods used by the school are narrowly tailored for the that purpose. The facts presented here are nearly identical to the facts in Grutter, the use of race as one factor among other factors may be used to promote a compelling state interest in encouraging diversity.

The state university admissions policy will be upheld as not violating the 14th amendment equal protection clause.

Model Answer
Since this is a state university, there is state action and the equal protection clause of the Fourteenth Amendment does apply. The modern approach to equal protection looks to the classifications used by the law or regulation. This law, on its face, allows the use of race in student admissions. Since the use of race is explicit, there is no need to prove discriminatory effect and purpose under the Washington v. Davis intent test. Explicit use of racial classifications is subject to a strict scrutiny standard of judicial review, not the intermediate tier standard, or the deferential rational basis review. Under strict scrutiny, a regulation using race will violate equal protection unless the regulation's use of race is narrowly tailored or necessary to achieve a compelling governmental interest. Under the approach taken in Bakke and affirmed in the recent Grutter case, a college or university's interest in the diversity of its student body is a compelling governmental interest. Thus, the university has a valid compelling interest under strict scrutiny. Next, we must examine whether program is narrowly tailored. We are not given the details of the program, but if race is one factor among many and the program is similar to those in Bakke and Grutter, the program is likely to be found narrowly tailored and upheld. If, however, the admissions program were to consider race as a factor by assigning points to race in a point-based decision making process, then under the Gratz case, the companion to Grutter, the admissions program the point system is not narrowly tailored and would fail strict scrutiny. Similarly, racial quotas - a specified number of slots for a particular race - would not be narrowly tailored under Bakke. Thus, as long as this program does not use a point system and follows Grutter, it is likely to meet the strict scrutiny standard and be upheld.

2006-11-12T23:42:00.000-08:00

FINALS BLOGGING SERIES

I affirm, under penalty of perjury, that I had a very interesting post on the importance of checklists when preparing for law school finals. unfortunately, my computer decided to freeze up. Trust me, now is not the time for computer gremlins.......

Hanging oh so slightly over the edge........WDR.

2006-11-11T18:24:00.000-08:00

FINALS BLOGGING SERIES: EVIDENCE & CON LAW

I didn't blog last night, something about it being Friday, and just having too many things on my mind. After coming home from work, chatting it up with another Law Student on the train, watching my obligatory episode of Battlestar Galactica, and getting sidetracked on Digg, the last thing I wanted to discuss was the levels of scrutiny used by the Supreme Court to determine the validity of statutes perceived to be violations of the Equal Protection clauses of the Fifth and Fourteenth Admendments.

On an aside, they are Strict Scrutiny, Intermediate Scrutiny, and Rational Basis. Strict scrutiny applies when the suspect classification is Race or Ethnicity. In order for acts to be held constitutional there must be a compelling governmental purpose for such a measure. (see Korematsu where the Court held that the placement of persons of Japanese ancestry was valid as the government had a compelling purpose to prevent sabotage during a time of war. Of course, I agree with the strongly worded dissent by Justice Murphy, who states there were other less restrictive methods available to determine loyalty, and the singling out of a specific race was a "sweeping and complete deprivation of constitutional rights in the history of the nation." 323 U.S. 214, Murphy (dissenting). This case is hopefully to remain an exception, rather then the rule.)

Briefly, Intermediate Scrutiny and Rational Basis (RBT) are lesser forms of review in that under Intermediate Scrutiny, where the classification is based on gender or non-marital children, a law will be held constitutional when it is substantially related to an important government purpose. (I.e. Height and weight limits for police officers even though such limits may disproportionaly effect women, etc...). Under the RBT, the law must be rationally related to a legitimate government purpose when the suspect classifications deal with age, alienage, or wealth for example. (i.e. discrimination against a class of persons, such as non-related household residents for purposes of receiving food stamps because part of the class consists of "Hippies," is not a rational relation to a legitimate government purpose, such as preventing fraud. Additionally, the Court held that other measures of the Agricultural Act allowed for the prevention of fraud, thus concluding that the measure passed by congress did not serve a legitimate purpose. See Moreno 413 U.S. 528 (1973). In contrast, a state law requiring residents to see optometrists and not opticians to obtain eyeglass lenses, did serve a legitimate purpose however as (1) The law did not serve a discriminatory purpose, and (2) there was a legitimate public health aspect in making sure persons receive properly fitted lenses.Williamson v. Lee Optical)

The above is in no way intended to be a complete and true representation of the levels of scrutiny applied by the court. Any one using the above does so at their own risk.

EVIDENCE: PAST RECOLLECTION RECORDED

After posting the above, the rest is going to be in an outline format.

I: What may be used to refresh the recollection of a witness?

R: (1) Declarant Testifies (i.e. is witness), (2) Declarant has firsthand knowledge, (3) Declarant lacks sufficient recollection, (4) A memorandum or record is offered, (5) The record or memorandum is made or adopted by the witness, (6)Accurate, and (7) is read into evidence. (See FRE 803(5)

A: Note: PRR must be distinguished from Present Recollection Revived (FRE 612) where the witness is not required to have first hand knowledge of the statement. The document, or other stimulus, is merely used to jog the witness's memory and is not admissible into evidence. PRR (803(5)) however is admissible when the declarant witness has first hand knowledge of the facts at issue, the witness declarant has insufficient recollection, and the record accurately recorded facts known by the declarant witness.

Basically, the process to determine the admission of 803(5) Evidence follows the same procedure as 612 evidence up to the point where the witness/declarant lacks sufficient recollection. From there, the L must authenticate the document, determine the document was made or adopted "at or near the time of the event while he events where still fresh in the declarants memory, and the facts recorded are accurate.

BUSINESS RECORDS: AKA RECORDS OF A REGULARLY CONDUCTED ACTIVITY

I: When may business records be received into evidence?

R: Such records may be received into evidence under a hearsay exception when (1) The person providing the information in the business record has first-hand knowledge and is under a regular business duty to acquire and report the information. (i.e. Nurses conducting bed checks), (2) Record, (3) Regularly conducted business activity, (4)Record made at or near time events occurred, person has duty to record, and it is part of the regular course of business to do so, (4) Business keeps record. (803(6))

A: Lutz basically explains the purpose behind the business records exception, since records prepared in the regular course of business are given credit and weight by others in an industry or trade, it would be impractical for the courts to do otherwise. Additionally, this requires that the preparer of the report have first hand knowledge of the facts supporting the report, and hearsay statements integrated in, a police report for example, are inadmissible as the officer was not the original source of information of the statements. Statements made by an outsider to the business that are recorded on business forms are considered hearsay, as there is no need for the outsider to be truthful in making the statements whereas an employee (or other business agent) regularly conducts the activity and business incentives to keep accurate records act as a "check" on the truthfulness of the statements made. (Vigneau)

ABSENCE OF ENTRY IN BUSINESS RECORDS

The business has a regular procedure to record the occurrence of an event and witness has conducted a diligent search of the relevant records. That's It.

Note: The Court in Palmer held that accident records are not reports, "Routinely prepared in the course of business." If they were, the exception would essentially swallow the rule, as accident reports prepared in anticipation of litigation would fall under the more liberal common law rule of "regular course of conduct which may have some relation to the business. The determination of "scope of the business is to be determined by 1) the inherent nature of the business and 2) Methods systematically used by the business. Today, some commentators consider this one of William O's worst decisions and it's holding is trounced by other aspects of the FRE.

PUBLIC RECORDS

A. Public Agency
Proper Foundation
Any internal or external record prepared by the agency is admissible for evidentiary purposes, as long as it has indicia of trustworthiness.

B. Matters observed and Reported according to duty
FHK of Gov employee/agent
Official Duty to observe or report
Agency has official duty to observe or report.

EX: Attorney seeks to enter into evidence a NTSB Report of a recent plane crash for insurance purposes. Under this rule, L may have the author of the report testify as to observations of the accident scene, but not as to matters of causation, as the author is an agent of a government agency and has an official duty to report on the conditions surrounding aircraft accidents.

C. Factual Findings.

Continuing with the above hypothetical, the L may also submit the NTSB report into evidence in lieu of placing the author on the stand. HOWEVER, a government prosecutor may not use this rule.
- The factual findings of a public record may be challenged through 1) the timeliness of the investigation, 2) Special skill or experience in conducting the investigation, 3) Whether a hearing was held or the level of which a hearing was conducted, 4) Motivational problems (I.e. Litigation)

So that's it for today. Trust me, I'm going to be up to my eyeballs in multiple-choice questions and practice exams for the next few weeks. Going somewhat crazy....WDR