Sunday, December 17, 2006

Four calling birds (of prey?), or
These Are the Days of Our Torts

Remember when I joked I was going to shut off my phone, stop reading email, and just generally refuse to have contact with the outside world during December, sealing myself in my room and giving life over wholly to final exams?

That would have been a good idea.

Unfortunately I did not do that. Who was I kidding? And the result is that on Friday I was once again treated to the pleasure of innocently plunking myself down at a computer in the law library 'round about noon and opening my e-mail only to have a fierce shock of heartbreak blast from the screen into my head. I've just about had it with this method of learning things. Well, such is the modern world, I suppose. I didn't really blog about it here Friday or yesterday, although a very discerning reader may have gleaned from Friday's blog that I was feeling cynical. I'm not one for pouring out my heart here for all the world wide web to see (I come a bit closer on MySpace) but I would like it duly noted that I have my beloved Torts exam tomorrow, and I'm not doing much more than listening to Indigo Girls (and Patty and Sinead and the other Sinead and Mary-Chapin and Cowboy Junkies and and and...)

So what is love then?
Is it dictated, or chosen?
Does it sing like the hymns of a thousand years, or is it just pop emotion?
And if it ever was there and it left does that mean it was never true,
and to exist it must elude?
is that why I think these things of you?
--indigo girls, 'mystery'

Because I like the lesson I've learned this weekend! And it is very Torts-like! In Torts we are all about understanding the rule and the policy. You see, you have to think about how very many cases never go to trial at all (dismissed...settled...). And of those that make it, not all are appealed. And of those that are appealed, whether affirmed or reversed by the higher cours, not all merit a written opinion to be read and analyzed by law students for generations hence. So our casebooks consist of a tiny percentage of a tiny percentage of a tiny percentage of cases. And from them, rules are extracted that will be applied to a larger number of cases, going forward. So it important to make a clear rule, not too broad or too narrow, that promotes good public policy.

And when you are researching legal issues in your classes/career, you hope to find old case law on point, preferably from a high court in your state or circuit and the more recent the better. It's just more persuasive that way. Still, you can glean valuable information from older holdings, especially if it was a signifcant case or a Supreme Court case and has not been overruled or negatively treated.

So I think one can look back at the interpersonal jackass demons of melodrama in her life and remember the lessons learned and make good policy decisions going forward. And sometimes she will find that the person throwing her for a loop today is nearly identical to the jerk she met last year, but sometimes the judge will distinguish the case in certain aspects. Sometimes the older cases will sit on the shelf unnoticed for long periods, the big volumes gathering dust. Occasionally, the person hauled before the court will be eerily familiar and she might peer at him and say haven't we seen you here before, mister?

What are torts, then?
Are they negligent harms, or chosen?
Do they signify historical common law justice and equity, or are they just punitive?
And if it ever was ruled and reversed, does that mean it was never true?
And for policy to exist, it must elude--
is that why we make these judgments about you?

Maybe I have learned something beneficial after all, even if I'm not studying in the traditional sense. I haven't really been a traditional law student all semester; why start now? And Torts is sort of the Indigo Girls of my law school experience (my absolute favorite, mystifyingly so to many around me, etc.) After all, a mere six tracks earlier on Indigo Girls' Swamp Ophelia, we reflect:

Some long ago when we were taught
that for whatever kind of puzzle you got
you just stick the right formula in,
a solution for every fool
I remember the time I came so close with you,
sent me skipping my class and running from school,
and I bought you that ring 'cause I never was cool.
What makes me think I could start clean-slated?
The hardest to learn was the least complicated...

1 comment:

Henry Troup said...

Once at dinner with a lawyer friend, he explained how the whole wine ritual - present the bottle unopened, show the cork, provide a sample - was really a model of contract law. I wish I'd written it down at the time. Enjoyed your post, should I say "get back to studying"?