Seven days...

With just days until the bar exam, I'm going back over some of the really tough subjects, including the Rule Against Perpetuities. The text of the original rule is nearly unintelligible: No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. WTF were the British thinking when they came up with that mess? A more relevant question, perhaps, is why the hell was it later adopted into American jurisprudence?

Application of the RAP has really screwed over some attorneys in the past. The greatest problem with the rule is that the courts don't apply common sense or even reality to RAP cases. One of the more ridiculous examples is the "Fertile Octogenarian" rule, which presumes that anyone, even an octogenarian (that is, a person between 80 and 90 years of age) can parent a child, regardless of health or gender. RAP cases have resulted in many colorful examples including the "unborn widow," the "slothful executor," "the magical gravel pit," "the slaughter of the innocent" and "the war that never ends." Don't ask me what they mean - I don't know, don't care and am willing to miss any related questions on the MBE.

Fortunately, in its 2007 session, the Arkansas Legislature adopted the Uniform Statutory Rule Against Perpetutities which takes an easier wait-and-see approach along with application of the cy pres doctrine to take some pressure off lawyers who aren't blessed with omniscience.

Unfortunately, Arkansas courts can only apply the new RAP prospectively - meaning the crappy old RAP applies to any nonvested interests created before 2007. That means, of course, that the old RAP is fair game for testing on the bar exam this summer. While that doesn't help me out on the bar exam, I can hope that Arkansas will adopt the California approach to malpractice with regard to the old RAP. In Lucas v. Hamm, the California Supreme Court held that it was not malpractice for an attorney to not understand the Rule Against Perpetuities! That's how bad the old rule is!

Anyway, I best be getting back to Property multiple choice questions...only got 7/18 correct in that last practice set and that's not quite going to cut it on the MBE.

8 days...

So after taking some time off I think, maybe, that I'm ready to buckle down and get some quality studying done these few days I have left. I tried to study on Saturday and got a little bit done, but ended up watching Harry Potter and the Order of the Phoenix and several other movies. Which reminds me, by the way that on this day last year Harry Potter and the Deathly Hallows was released. Man am I glad it wasn't released this year. Granted, I read it in about 10 hours (after standing in line waiting for the midnight release!) but that still would have cut into some quality study time I'm sure.

So today, I think I'm going over Arkansas Criminal Law Distinctions. I feel prepared (enough) for the multi-state crim law questions (which test the common law) but there will be an Arkansas-specific crim law essay on Tuesday.

Just a few of the differences between common law and Arkansas statutory criminal law are the mental states. Common law uses specific intent, malice, general intent and strict liability. Arkansas uses purposely, knowingly, recklessly and negligently.

Homicide provisions also differ between the common law and Arkansas law. Under the common law, a defendant could be convicted of murder (the unlawful killing of another with malice aforethought), voluntary manslaughter (the heat of passion/provocation killing) or involuntary manslaughter (gross negligence causing a death or by applying the misdemeanor or non-dangerous felony murder rules). In Arkansas, a defendant can be charged with capital murder, first degree murder, second degree murder, manslaughter or negligent homicide. There are multiple definitions for each and I'm supposed to know each of them.

Another important difference is in the Arkansas rape statute. At common law, rape was "forced intercourse by a man on a woman who is not his spouse." This takes me back to a story I heard about a class some twenty years ago in which our very own Prof. Guzman asked a student whether a person could rape his spouse. The student responded: "Well, Professor, when you say 'I do,' you say 'I do' forever." Well, that was the law before logic took hold in our state and the Arkansas Supreme Court held that spousal rape was a crime.

One of my least favorite Arkansas distinctions is the so-called "Retreat Rule." Generally, before using deadly force in self-defense, a victim is required to retreat if the victim can do so safely. Retreat is not required, however, if you are in your home. Note, as the cat to the right has made plain, you may never use deadly force to protect property alone. Well, time to get back to memorizing all the wonderful definitions of crimes.

"If..." Project - Week 2

Here's Week 2 of the "If..." project, being done by my friend at JD2.0 and his friend Nick. Only 123 more weeks to go from here!

1. If you could have lived through any war in history (without actually fighting in it), which would it be?

As a good Southern boy, I'd definitely have to pick the Civil War. I think the Civil War, along with the Revolutionary War, made the greatest impact on our country. Call it the war against slavery, the war of northern aggression, blah blah blah. In my opinion, it wasn't much different from the colonists fighting the Redcoats.

"But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."

Looking back, I can't say I'm disappointed in the outcome. As economically disadvantaged as the South is now, it would be far worse as an independent Confederacy. But back to the point of the question, it would have been a very interesting time in which to live.


2. If you could eliminate any one type of insect permanently from the earth, what would you get rid of?

Gnats. All the bug spray in the world can't get rid of those little things. When I played a lot of golf back in the day, one of the golf moms had everyone dabbing vanilla extract behind their ears - some old Southern remedy I suppose. That went on for an entire summer, though I couldn't really tell that it worked.


3. If you had to eliminate a single type of animal forevermore, which would you choose?

I can't even think about spiders without shuddering. I know they're supposedly (for my grammatically challenged friends, you would say "supposably") good for pest control, but they make sprays for those pests and I choose chemicals over 8-legged creatures any day.

4. If you could have an elegant dinner alone with anyone presently alive, whether you know them or not, who would you want it to be?

As Nick noted, this question is not about a romantic dinner - an elegant dinner is entirely different. For something that special I'd have to pick Alton Brown, the Mr. Wizard/Bill Nye/Albert Einstein of the culinary world. I'd love to be able to sit with him over a 50 course (ok, I'd go for a few less I suppose) prix fixe dinner. I've heard about them on the Food Network and I'd love to hear what he would have to say about the techniques used in each course, his expert opinion on each course, and definitely the other amazing conversation I could imagine would accompany the dinner. He's by far my favorite person on the Food Network.

10 days...

Not much I can add to that thought...

11 Days...

I'm 11 days from the bar exam, but my attempts at studying haven't been very successful the last couple of days. I decided to just take today off and try again tomorrow. And I have a wedding to go to tonight! Congrats Lea and Todd!

12 Days...

Apparently, I need to spend another day or two on Commercial Paper and Secured Transactions...

I wish everything was as easy as the "first to file" rule. Looking at the picture, I'm glad I remember that sometimes the secured party doesn't have to file the financing statement...damn exceptions! Maybe the secured party has possession or control of the collateral. Maybe it's automatically perfected and no filing is necessary (PMSIs for example). Or maybe the secured party is still within the four month grace period if the debtor or the goods are moved to a different state. Take that, bar exam!

Bar Exam - 13 days out

I'm 13 days from the bar exam, sitting in my favorite coffee shop, Arsaga's, studying Commercial Paper and Secured Transaction. Fascinating stuff, I know.


For the Comm'l Paper/Secured Transactions essay, I'm supposed to memorize the following:

• 2 types of commercial paper
• 5 parties involved in commercial paper
• 9 elements of negotiability
• 4 elements for the Holder in Due Course doctrine
• 10 real defenses
  
• 3 exceptions to drawee liability
• 1 exception to an exception to drawee liability
• 16 types of collateral in secured transactions
• 3 steps to creating a security interest
• 5 methods of perfection
• 1 general rule ("first to file" prevails)
• 10 exceptions to the general rule and a few exceptions to the exceptions

So that can't be too hard, right?

Bar Exam - 14 days and counting

So I've got 14 days until I take the bar exam. I spent most of this morning reviewing Domestic Relations and Equity, which I feel okay about. Dom Rel covers a wide range of topics but most of it isn't that hard. If I can remember the three types of Arkansas divorce, grounds for divorce and all the property division crap I'll be fine. If there are any questions about kids, I can just BS about "best interests of the child." I really hope equity doesn't show up in the question, but just in case I'm trying to memorize the maxims of equity (one of which was asked about last summer).

This afternoon I decided to switch over and do some practice MBE questions. I did two sets of Constitutional Law and one set of Torts questions. Con Law was by far my worst subject in the practice MBE I took a couple of weeks ago so I've spent a lot of time studying that lately. I got 29 out of the 36 questions correct and got 14 of the 18 torts questions correct. Which sounds great, right? Except that, as I was working through the questions, I didn't have a damn clue if I was choosing the right answer most of the time. I see this as a problem. I just keep telling myself I only need to get two-thirds of the MBE questions right to stay on track, assuming I don't completely screw up the essays.

66.67%...sometimes it seems like such a low number and at other times feels completely unattainable.

If... Going Slightly Off the Beaten Path (Week 1)

So I came across a blog posting by my friend Jody, at JD2.0, who has started following Nick's "If Project" at nickynax.com. The book, If...(Questions for the Game of Life), is 125 pages long with 4 questions on each page. I'd like to think I could answer the four questions every week for the next 125 weeks and I'm going to do my damnedest to make sure it happens. Maybe I'll find out something about myself along the way - that's a scary thought. As it evolves, I can see myself getting a little deeper into myself - and hopefully the questions will evolve in the same way.



1. If you were to be granted one wish, what would it be?

Man, that's a tough one. At this point in my life I'm hoping for a good job. After seven years of higher education and three years of law school loans, I find myself $60,000 in debt and needing a new car before my current POS completely falls apart. As much as I want to find a good legal job (and I have been applying for several) I suppose I could fall back on my business undergrad degree and give the business world a go. I suppose I've always thought in the back of my mind that it would be nice to end up running a company one day. It's not terribly rare. 10.8% of the S&P 500 companies have an attorney at the helm. Anyways, back to the crux of the question. I really just want a job that will let me have my own place, find and raise a dog, and have enough left over after paying the bills so I can have fun on the weekends. I'm pretty happy with my life right now - great friends, great family and no desire to be in a relationship, though some nights do get lonely now and again. The one thing that is missing is security for the future - that's something that scares the hell out of me.

2. If you could spend one whole night alone with anyone in the world who is currently alive, who would you select?

This isn't an easy question. I'm not easily impressed by people and the ones I want to spend time with the most are my friends. I suppose coming from a legal background, I would really want to spend time with Sandra Day O'Connor. She was probably the most powerful person on the Supreme Court from the late 1980s until her retirement in 2005. She never seemed to have a judicial philosophy and made her decisions on a case-by-case basis. She was accused over the years of being a conservative hack and a liberal baby killer. In reality she was a great moderate, usually falling on the side of personal liberty. It was a delicate position for her to be in, especially as the first woman to serve on the High Court. Anthony Kennedy might have taken her place in the middle but I don't think he'll ever gain a legacy of deciding the great issues like O'Connor.

3. If you could spend one whole night alone with anyone in history, who would you choose?

This was actually an easier question for me. I'd pick my Papaw over anyone else who has ever lived. He died on May 22 after a long battle with colon cancer that eventually spread to most of his gut. His obituary, written by one of my great aunts is here. He was the patriarch of the Sandage family and unofficial handyman for most of Hot Spring County, especially his hometown of Donaldson. I try not to remember the frail man who lay dying in his bed - that wasn't my Papaw. My Papaw was the storyteller and historian, a reluctant leader and an overall good man. My dad told me he took Papaw around every street in Donaldson and he had a story about every street, every house and nearly every family who had ever lived in that town. I know I didn't always realize the impact he had on his community until the funeral, when nearly 500 people crammed into an entirely too small funeral chapel to pay their respects. When I went to the Sandage Family Reunion last week, there was a piece missing that I think everyone felt. But I'm thankful for the impact he had on us and the way he touched everyone he knew.

4. If you could physically transport yourself to any place in the world at this moment, where would you go?

Too easy. Cinque Terre, Italy is where I could live forever. I visited once while on a study abroad trip. The name, literally "five lands" is a trail between five towns on the west coast of Italy. Hiking, laying on the beach, eating and drinking are some of the best parts of visiting. Each town has its own character - each also produces its own wines and olive oils! There is a trail between the towns that starts in Riomaggiore and winds north. The farther north, the more treacherous the trail. It ends in Monterosso, where a beautiful beach awaits. If I could only make one more trip abroad (God forbid I don't have more opportunities), Cinque Terre would be on the itenerary.

Libertarianism on the Rise

Time Magazine has a great article about the rise of the Libertarian Party (and, in my opinion, the libertarian viewpoint generally). The article gives weight to the very real possibility that Bob Barr could be a spoiler in the presidential race. If he can pull in enough votes from disenchanted Republicans and conservatives, he could very well deliver the White House to Barack Obama.

Depending on your point of view, that could be a long-term disaster or it could be be a wake-up call to the Republican Party. If it serves as a wake-up call, you might see some form of Newt Gingrich's "Contract With America." Even though it's a long shot, I wouldn't be terribly disappointed to see a legitimate third party take some power away from the Dems and Repubs who have shown time and time again that they can't do anything but run things into the ground.

My favorite quote from the article:

Freedom's restoration is the magic moment when the nanny state melts away and you can see the life you were supposed to live before the tax auditors and environmental regulators and drug warriors all came to rope, brand and pen you in for life with their endless rulemaking and intrusions.

That could just be a pipe dream, but the current state of affairs in the American political scene is sad enough to give it a chance.