3L or Bust

Wolverine does Rogers and Hammerstein

blah

sitting in tax, snowing outside, Friday afternoon ... how much do I really want to be here?

funny quote about blogging from some scotish writer: Lord help us, there are even blawgs, lawyers bolgs, or - to use a more appropriate term - achingly dull wastes of cyberspace

hee hee

Sometimes Life Sucks

If you can spare a minute, browse your way over to Paco's site and lend some support. Dude's getting a massively bum rap.

possible career path rearing its ugly head?

about half of the projects that I worked on for the judge involved ERISA of all things. Now, prior to working for the Judge I knew absolutely nothing about ERISA ... well, that's not true, I had heard the word "ERISA" a couple of times thrown around by law professors or by students ahead of me, but I never had a context for understanding what exactly this "ERISA" thing was. I figured it was another one of these federal statutes that were important enough to have its own recognizable acronym, but not important enough to seep through to the consciousness of a hapless 1L. And by the way, is it pronounced "eh-ris-a" or "eh-ree-sa" - does anyone know? is there a definitive pronunciation? can I get a judgment call on this one? I hate mispronouncing something or some famous person's name in casual conversation ... the other day I was telling one of my professors about a case I had read that was authored by Judge Posner, only I was mispronouncing his name as "Paws-ner" ... or is that the correct pronunciation? dang it, now I can't remember. Okay, I need another judgment call - is it "Paws-ner" or "Poh-sner" (long 'o') ??? that's going to bug me ... (I think it's "paws-ner")

But I digress. So I worked on a couple of ERISA issues for the judge, and they turned out to be relatively interesting. I say "relatively" because compared to my jurisprudence class last year ERISA is wildly exciting, but compared to almost anything outside of lawschool it's a little iffy ... let's put it this way, you can start talking about ERISA issues with non-lawyers and their eyes will glaze over in about 45 seconds to a minute ... which isn't too bad for a federal statutory area of the law; it's not as interesting to non-lawyers as torts cases or criminal cases, but probably a little more interesting than tax cases and whatnot.

Sorry, digressing again. So. Turns out that ERISA specialization can be quite lucrative. Combine that with my relative ability to stomach reading ERISA cases (based on a very limited experience mind you) and with my relative lack of a clear area of business law that I want to practice, and we might have the makings of a possible career path here. I duly signed up for the Employee Benefit Plans class next semester. If that goes well, I will see what opportunities are available at the firm next summer and we'll see how we like it.

Does anyone out with any significant experience with ERISA want to share any thoughts or feelings, hopes, desires, premonitions, etc.?

Mixed Feelings

Yesterday was my last day externing for the Federal District Court judge.
(I don't know why my school calls it an externship, I suppose it is to distinguish it from a paid internship or an unpaid internship w/o school credit ... maybe it's some inane desire to be "different", I don't know, I've long since given up trying to fathom the thought processes of our CSO)

I'm going to miss being up there (although it is quite a drive to get there); all else being equal I'd rather have spent 2-3 days a week up there, but with my schedule this semester and the distance to the court I've only been able to get there once a week.
The judge is really nice and I've been able to work on some fairly interesting issues. I had the opportunity to attend parts of a civil trial and all of a 2-day criminal trial.
I've seen good lawyering and not-so-good lawyering before the judge.
memorable exchange between the judge and to fairly young defense attorneys who couldn't be reached during jury deliberations, even though the judge ordered all atty's to be "on-call":
attorney: we're sorry your honor, we were at this restaurant and apparently it was a dead spot for our phones
Judge: That was a rookie mistake and you need to make sure you stay out of dead spots
(ouch)

The extent of my legal opinion writing for him was a ruling on remand back to state court, which normally would not involve a written opinion, but this issue dealt with some complex ERISA interpretation, so it was a good experience.

so I sat down with the judge for about an hour yesterday for a chat. I had asked him to tell me about his involvement with a major Supreme Court crim pro case involving Miranda, which was really interesting. We talked about clerkships after graduation, about clerking for a fed district court v. fed Ct of Appeals (his take: "district court clerks have more fun" ... which I believe to be true). We talked about firm prospects and career paths. We talked about all the great recreation around the state and family camping trips. It was nice to be able to spend some time just talking and getting to know him a little better. I'll definitely use him as a reference in the future.

All in all it was a wonderful experience that I recommend to any law students that can fit it into their schedules.

The Day of the Massachusetts Decision

or: this case will be talked about for a long time

8:21

working on:

Antitrust cases of the professor

it's crunch time because he wants all of the cases briefed by Thanksgiving, so I'm spending a lot of time this next week working on them . . . I am getting paid for it, so (to quote Bill Murray in Caddyshack) "at least I've got that going for me"
The chapter I'm working on now deals with Parker state action doctrine and Noerr-Pennington immunity from antitrust liability - real exciting stuff

listening to:
Tchaikovsky's "Cappriccio Italian"

8:43

just finished reading Mariana v. Fisher, 226 F.Supp.2d 575 (M.D.Pa. 2002) which relies heavily on A.D. Bedell Wholesale Co. v. Philip Morris, Inc., 263 F.3d 239 (3d Cir. 2001)
These cases deal with the 1998 Master Settlement Agreement (MSA) betwen 46 states and the major U.S. tobacco companies

before I'd read these cases I was vaguely aware that this litigation had gone on and that it was supposedly a blow to the tobacco companies, but having read these cases now I realize how wrong I was
While it is true that the states secured a massive payoff from the tobacco companies ($206 billion over the first twenty-five years and $9 billion annually after that), the MSA in reality secures to the tobacco industry not only the means to generate more than enough to cover those payments, the MSA also allows them to "ensure a perpetual shared and unregulated monopoly" in the domestic tobacco industry (which in 2000 was a $45 billion industry!!)
The MSA allows the companies to massively increase profits ("the wholesale price of a carton of cigarettes has risen from approximately $19 per carton to $30 per carton in two and a half years. . . . The price increases have not been monitored or regulated by any state.")

At the same time the MSA effectively cements in place the market shares of the major tobacco companies and punishes any new entrants into the market
yeah, the tobacco companies must have been laughing all the way to the bank following this "crushing defeat" . . .

The kicker is that under the Noerr-Pennington doctrine neither the tobacco companies nor the states can be held liable for any antitrust violations, even though the results of the MSA are so clearly anticompetitive . . .


9:23

Sitting in Wills, and the news breaks that the Massachusetts Supreme Court just ruled that the state of Massachusetts is Constitutionally barred from prohibiting same-sex marriage . . .

someone sent me the opinion, will read it later, but first reaction is, "huh?!" and then (to quote Keanu Reeves) "Whoa" . . .


10:18

read through the opinion

Quote from the majority opinion:

We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.


Quote from the dissent:

Same-sex marriage is not “deeply rooted in this Nation’s history,” and the court does not suggest that it is. Except for the occasional isolated decision in recent years, see, e.g., Baker v. State, 170 Vt. 194 (1999), same-sex marriage is not a right, fundamental or otherwise, recognized in this country.


Listening to:
Rachmaninoff's "Rhapsody on a Theme of Paganini" . . . good times

At the Carrel, Buckling Down

2:05pm

Working on at the moment:
catching up on Tax reading that I should have done over the weekend
Subject - Loss of Human Capital
Allocating Deductions Between Income Production and Personal Consumption
- Moss v. Commissioner . . . apparently the rule from this case is that if you choose to eat with your co-workers at a restaurant that you enjoy eating at, then (to paraphrase the infamous Seinfeld character) "no deduction for you!"
"The case might be different if the location of the courts required the firm's members to eat each day either in a disagreeable restaurant, so that they derived less value from the meal than it cost them to buy it . . . or in a restaurant too expensive for their personal tastes, so that, again, they would have gotten less value than the cash equivalent."

an "organized mess" ? see Sibla v Comm'r, 611 F.2d 1260

Listening to:
Dave Matthews Band
Billy Joel
The Band
Peter Breinholt


3:23 pm

Working on:
Catching up on Wills/Estates reading
some are of the opinion that reading for that class is a waste of time, and sometimes I'm inclined to agree ...
but the sheer inertia of my "must-read-for-class" mentality is still strong enough to prevail
who knows, maybe this time next year I'll have a different opinion

at least Wills reading tends to be sometimes entertaining ...

unfortunately they can also be very, very boring, such as reading about class gifts in the context of an antilapse statute ... especially when the case discussing those issues is an 1899 British case

Listening to:
more of the same,
with some Counting Crows and Paul Simon mixed in for good measure


4:33 pm

Working on:
Intellectual Property reading for tomorrow - we're in Trademark law (did you know that a color can be trademarked?)

Add "Friendly" to the list of cool names for judges, right up there with "Learned Hand"

Listening to:
and still more of the same ... I have a long playlist running on the MusicMatch Jukebox software that came with my birthday present
(The Band's "The Weight" is one of my favorite songs of theirs)

Eating:
Pixy Stix - left over from the girl's Halloween trick-or-treating at the law school
trying to stay awake