A Law Student's Attempt to Understand It All.

Thursday, May 15, 2008

Qwest's Bum

The federal prosecutor in the Joe Nacchio case has requested en banc review by the Tenth Circuit Court of Appeals. Nacchio was the former CEO of Qwest, which is based in Denver, Colorado. He was convicted of nineteen counts of insider trading. A three judge panel at the Tenth Circuit later reversed the conviction and remanded for a new trial because the trial court improperly barred the defense from calling a witness.

This case is not about the insider trading per se. What is really going on is that many of the USWest and Qwest workers lost their retirement investments in the company when the company's stock tanked. The employees blame Nacchio, and there is good evidence that he was focused on his well being rather than the company's well being. I happen to know several top level managers (i.e. those who achieved the highest level possible without kissing butt). They could see Nacchio was no good for the company or the employees.

Like many actions of criminal law against the wealthy and the powerful, the charges Nacchio faced were not what the government really wanted. Following this case, it is clear that the insider trading charges are weak. The prosecution was really trying to apply some retributivist justice. The employees suffered greatly for his mismanagement. The government wanted to make him pay somehow, and the insider trading charges were their best bet.

There is little reason to see why the Tenth Circuit should grant en banc review. (The Wikipedia article on en banc is here, if you need it.). The prosecution is trying everything it can to get the panel's decision overturned. The first trial was extremely expensive, and the second trial will be too. So, the prosecution must try every appeal to avoid the cost of the new trial and to make Nacchio pay for his bad behavior.

This case is about making those who lost their lifetime investments somehow whole by throwing the bum in jail. The problem is that the government is struggling to prove a weak case. Nacchio will probably walk.

Wednesday, May 14, 2008


I have a little less than a week before my jobs start. I am doing what any newly minted 2L would do in this situation: sitting on my butt watching TV.

Among the plethora of vocational school commercials, ads for “male enhancement,” and pitches for new kitchen gadgets, I saw a personal injury attorney’s commercial. The attorney’s commercial featured dramatic music, stock photos of doctors and factories, and a dramatic voice. The voice said, “Have you or your loved one suffered from Mesothelioma?...” Many lawyers place such ads (Colorado features “The Strong Arm” and “The Bulldog”). What was unique about this ad was that its information on Mesothelioma was cited to Wikipedia.

How far have we sunk when Wikipedia serves as a source for a legal commercial? Do not get me wrong, I have used Wikipedia when I need quick information on a non-controversial topic. But I would never cite it for my livelihood. Even if the article was correct and well-written, I would still seek more reliable evidence.

Such legal commercials are often for class action lawsuits (the notice requirement for FRCivP. 23). If a lawyer already has a class representative and is putting a case together, surely he can afford the few extra dollars to get his medical expert to be his citation for his commercial.

Tuesday, May 13, 2008

Good Bye Summer, Hello Resume

What will I do when since I have two prestigious internships available for the summer?

On the one hand, the state supreme court justice has offered me an internship. Among other things, I will be researching long-term issues of law for the justice. More importantly, I will review the certiorari petitions to the court. It will be my job to find the interesting and pressing cases that need review. That is quite a bit of responsibility. It will also be great experience. How can a 1L hope to beat the state supreme court?

The solicitor general will have me researching long term issues that he thinks might come up in the coming term. Since I am looking at getting into appellate advocacy, this will be good experience to work with him.

Therefore, I really want both jobs. I had applied to the state supreme court justice first (in October), but I did not hear anything for months. Whenever I inquired I received the same response, “She has not decided yet.” I had assumed she had not chosen me for the interviewing round. Finally, I had the second opportunity come where I could work with the solicitor general. After I applied and was accepted by him, the justice called up. Now, I am left with a puzzle: who should I work for? I applied first to the justice, but I was accepted first by the solicitor general.

My decision thus far: try to see if I can have my cake and eat it too. I will try to work for both the justice and the solicitor general. I may not have a social life this summer, but I should come out with two awesome references and a great resume.

Hopefully, I can handle the pressures…

Saturday, May 10, 2008

Traffic Ticket Quotas

Finals are now officially over. I am in the post-exam decompression. This includes being a little ill (my body finally has permission to succumb to illness), lots of sleep, and a curious headache.

Of course, my law school had various parties (official and unofficial) involving copious amounts of alcohol. Now, before you think my headache is a hangover: I do not get hangovers and I didn’t have very much to drink.

I needed to be temperate because I had an interview Friday with the state supreme court justice. I believe it went well. I kept them laughing, and it was not about my resume. That’s usually a good sign. I should be hearing about it in a week. I really want this internship, so I am hoping they think I am a “cool guy.”

Then, at a law school party yesterday, I was speaking with a State Patrol trooper. (Yes, law enforcement and lawyers mingle— sometimes). Someone (not me) said, “Yes, but how high is your traffic ticket quota?” The trooper replied with a joke about how she gets a toaster if she could write 100 tickets in a month. Her point, of course, is that there are no quotas for traffic citations.

However, the trooper then went on to betray her defense. She said that the supervisors will question her if she does not write any tickets on a ten hour shift. She framed the situation as, “They ask: what have you been doing for the last ten hours, then?”

The trooper gave an anecdote. One day, she was assigned to the Left Hand Canyon patrol. She drove five hundred miles and had only stopped one car. That is because the Canyon can be a fairly empty place, depending on the time of the year. When she came back to the station, her sergeant noticed she had issued only one citation. The sergeant asked, “What happened? Did you go hiking today instead of patrolling?” The Trooper then needed to explain that the Canyon was particularly empty that day and, as proof that she was on the job, she produced the mileage on her patrol car which had five hundred new miles on it.

This anecdote is precisely one that proves the pressure patrol officers feel in writing tickets. It is true that few police departments are brainless enough to give an exact numerical quota of traffic citations. Yet, if an officer or trooper or deputy faces a likely dress-down every time they have “too few” citations, then that is still pressure to give citations.

What are the chances, now, that this trooper will give you a warning the next time she stops you?

Monday, May 5, 2008

Criminal Law

I was running late. Where is room 206? This place is familiar—it is the law school after all. Yet, something is wrong. Where the hell is room 206? I’m late! The test started 20 minutes ago!
This was my first law school related nightmare. It was not a good a good sign for the day to come.

I just finished my Criminal Law exam. All I can say is that I certainly helped the curve. I am a giving person. I want to help my fellow students because I care. Therefore, I decided to go ahead and screw up the four-credit class’ exam so that I can raise the curve for everyone else.

The exam was that bad. I already knew that I was not cut out to be a prosecutor or a defense attorney. I know criminal law generally and I am pretty good at statutory interpretation. What I could not wrap my head around was the common law of criminal law. What’s worse, we did not spend much time in class discussing the rules but instead looked at focused on theory and international versions of criminal law.

The exam was multiple choice and two issue spotters. I was going to regulate my time, but I arrived at the 75 minute mark (my time limit for the first section) with 10 multiple choice questions left. I therefore faced a dilemma: should I finish the multiple-choice or go on to the essay? I choose to finish the multiple-choice. I calculated that I am a fairly good writer, especially under pressure. Further, the multiple-choice was likely to be the curve-determinate, so it needed to be finished. However, the consequence of that decision was that I was not able to fully cover all the issues in each issue spotter. Finally, the time constraints forced me write, “I see the felony-murder issue here, but I do not have time to fully explore the issue.” And, TIME!

I actually respect and appreciate my crim law professor. He is a great guy and one who really knows what he’s talking about. The problem is entirely on my end. I simply do not think very well in the criminal law framework.

Who knows? Maybe I did better than I thought I did. I can always hope for that…

Friday, May 2, 2008

Halfway Through

I am halfway through finals. I just turned in my Property paper. The Paper topic:

"Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and political discourse in general (i.e., from policy analysis). It is true that there is a distinctive lawyers' body of knowledge of the rules in force. It is true that there are distinctive lawyers' argumentative techniques for spotting gaps, conflicts, and ambiguities in the rules.....But these are only argumentative techniques. There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way."

To what extent is this statement true or untrue? Specifically, use two or more cases we have studied this year (you can use cases from the first semester) to illustrate the extent to which you believe it is or is not true that "the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way."
Here I had a choice. I could stick to my guns and say that his legal nihilism was bunk. Or, I could get a good grade. I choose the latter. I can rationalize it as simply learning to adopt the best interests for my client (here, me) by arguing in such a manner that will appeal to the court (here, Campos).

What was curious was finding what Campos was looking for. He gave us copies of past papers that received top marks. One was written at a fifth grade level. It was a "stream of conscience" of a new associate who was representing one of the clients from one of the cases in the casebook (Nahrstedt v. Lakeside Village Condo Ass. Inc-- the "cat lady" case). The other paper was a discussion of the "decision matrix" (a glorified pro-con list) and did not mention Property Law until the eighth page.

These papers received top marks? Perhaps I should simply turn in a Haiku.
I like hiakus
Sometimes they do not make sense

Instead, I managed to quote Dennis the Peasant and King Artur from Monty Python and the Holy Grail. I also included references to "Reverend" Jeremiah Wright. My crowning achievement, however, was referencing Third Amendment case law.

Yes, I am the master of BS.

Thursday, May 1, 2008

A Sad Day

My beloved Colorado Avalanche have lost their bid for Lord Stanley's Cup this year. The evil Red Wings have swept the Avs with an 8-2 victory. My friend Mount Virtus will certainly not let me hear the end of this defeat.

What can I say? The team has never been the same since Roy left. Roy carried the team far more than most people wanted to admit. This is certainly true since the team has lost its defense focus as soon as Ray Bourque left.

Nonetheless, credit should go the the Red Wings for a solid series and playoff run so far.

Congratulations Detroit. (ick, I threw up a little in my mouth...)

There is always next year....