The Deadman Night Rider

A forum for evening students of the SMU Dedman School of Law and other outlaws..

Tuesday, August 30, 2005

USCG, you have our gratitude...

Sunday, August 28, 2005

This will end badly...

Here's a link to an LA Times article via Yahoo about how the real estate market has changed the way people think about mortgage debt. The rot must have set in pretty good, because they even quote someone holding himself out to be the chief economist of the National Association of Realtors claiming that if you've paid off your mortgage, you just haven't been managing your finances efficiently. The CEO of takes it further, saying if you own your home free and clear, you're a fool.

I'm not so much of a fool that I'm shocked to see CEO's make self-serving, puerile remarks, but this is too much. Advising people to use their homes like credit cards and calling it good sense sounds alot like the "profitless" corporation that was supposed to become the new paradigm during the halcyon days of the boom. To borrow a term from my lefty buddies, this is simply unsustainable.

At this point, we don't even need the housing market to retreat to put alot of people in a world of hurt - just a significant slowdown in the pace of growth will put alot of them upside down. The National Association of Realtors estimates that maybe a quarter, one out of four, houses purchased last year were investment properties - how many of those do you think were interest-only buys? What happens when interest rates finally get high enough that investors stop buying houses? A 25% drop in sales volume? At that point, the useful idiot quoted in the article as saying that real estate is "a liquid asset" in today's market is going to find it setting up like Quik-crete PDQ.

I hate to say it, since I'm sitting on one I shouldn't have bought, but I'm afraid there's going to be an awful lot of cheap real estate on the market sooner rather than later.

Friday, August 26, 2005

Really starting to have fun now -

It took so long to get here that sometimes I have to remind myself that it's real, but it is. Maybe the years of wading through FASB interpretations and Treasury Regs have helped, but I haven't found tackling the cases to be that difficult - I kind of like the he said, she said nature of it. Not that the issues have been of earth-shattering importance - two of our Torts cases (well, one and half) involve children. Not in the sense of custody, mind you, but children doing things that might be tortious (got to use the vocab to make it stick!).

I think the best part is the no-nonsense, determined mindset my colleagues have displayed. Being surrounded by confident people makes anything less stressful. Bankers, paralegals, IT pros, engineers, mothers, fathers - really an impressive group. As one of the guys in my group said last night, when you've had to face the regional manager holding bad sales numbers for the quarter with your job on the line, the prospect of getting called on in class doesn't seem so scary. I imagine, for example, that for the older couple who decided to go to law school together now that their children are grown, there's almost nothing this process can throw at them that they wouldn't be ready for.

First week's impression: worth the money, every cent.

Continue to march!

Wednesday, August 24, 2005

Interesting post on the economics of trial law...

I came across a post this morning written by a Tennessee trial lawyer giving advice on weighing the economic risks in taking on cases. Maybe it's the bean-counter in me, but I've been noticing alot about this in the story of a case we're reading for civil procedure. I guess trial attorneys function as 'gatekeepers' in a way, since they naturally screen for cases with a high likelihood of success and high enough potential damages to generate a return - and as this blawger points out, even if one of the factors is very high, it doesn't compensate for the other being too low. In theory, you would think this would lead to the 'best' cases getting heard: clear, convincing evidence of enough harm to be worth resolving in court. It'll be interesting to see if this bears out in practice or not.

Another thing I hadn't thought of was leverage. A good bit of the story we're using as background in class has to do with how the PI attorneys financed their preparations for trial. If they hadn't had access to capital, they couldn't have tried the case - so it really came down to a bank betting money against the resources of the guys being sued. The trial lawyer writing this post suggests calculating an hourly overhead figure (which is great advice for any business) - but one interesting thing he doesn't mention is that as a case moves toward trial and more and more money goes into it, that hourly cost will keep going up and up as a result of financing costs. It seems like that would mean a trial attorney has an increasing incentive to settle over time.

Tuesday, August 23, 2005

First day down -

Alright - we're one day (or night) in. All systems are go.

Last night were the opening sessions of Civil Procedure and Torts. The first year appears to focus exclusively on the civil system, perhaps because the range of disputes is so broad and offers a wide platform for debate and discussion. On the agenda for tonight are Contracts and Legal Research.

A comment Professor Pryor, who teaches Torts, made last night made me think of something I'd never realized before about the civil justice system. Her point was pretty simple: Tort law is private, not public - you don't need permission from any government authority to file a lawsuit. No big deal.

But then I realized that it is a big deal. What it means is that every single citizen has access to the power of government via the civil system, because you borrow the power of government to enforce a decision when you win a suit. When I thought about different places I've lived, like Uzbekistan, where the reach of authority is absolute and the power of government is completely removed from the people, just how big, how amazing, that idea is really came home to me.

It made me think of something else - the homeless ex-lawyer who started the case about the Ten Commandments monument on the grounds of the State Capitol in Austin. Putting aside any problems with his motives and goals, I saw something there. As a person of no means or any real standing, he filed a handwritten complaint on loose-leaf notebook paper that put in motion a process that eventually reached the Supreme Court in Washington, DC. The sheer access to power that indicates - that a guy at the bottom can shake the system all the way to the top - is what makes the politburo-mullah-ocracy types think that we are all madmen. Isn't that fantastic?

Saturday, August 20, 2005

Premonition coming...

I'm not usually prone to psychic ability, but I have a feeling I'll be hearing something about Vioxx during the next week - call it a hunch...

There are alot of interesting things about this case that I can see from the get-go. The first is that the huge award of approx. $250M should come under the new cap on punitive damages here in Texas, which the TV news claimed last night could lower it to around $26M. The second is this BBC News article that says a similar suit would be difficult or impossible to bring in the UK. The solicitor interviewed here cites two reasons: the UK has 'loser pays' provisions that dramatically increase the risk of bringing personal injury lawsuits, and the attitude of officials in charge of public funding who he says aren't "...happy supporting these kinds of cases."

The first point raises a good question I first saw on the JuryGeek's website: why didn't we see any real push here for loser-pays during the tort reform process? Capping punitive damages helps firms manage risk more effectively, but it doesn't cut to the heart of reform the way making the losing side pay the winner's attorney fees does.

The second raises in interesting dilemma for those who support European-style health care. When health care providers become government functionaries, you wind up going against the government for any failures. It's no real surprise that officials in the UK don't want to hear anything about this case.

Under way...

We are under steam here - sorting out books, scheduling assignments, etc. Monday is zero hour. Here's to the night riders!

Wednesday, August 17, 2005

Halfway orientated...

Last night went well - orientation ran 6 - 10PM, with a second four-hour round tonight. The evening class is actually alot younger than I expected based on the meet&greet dinner a couple of months ago, but still older than what I would expect from a regular law school class.

One thing I noted with a bit of surprise was the number of people offering to comment during a presentation from two professors on basic ethical conflicts. In most courses I've taken over the years, even advanced accounting classes where most of the students were fairly motivated, it was unusual to see more than two or three people actively comment in class unless directly called on - most people just kind of sink in and passively absorb lectures. The opposite was true in this case - there were many times more people trying to get into the discussion than time allowed. I was also struck by how informed and articulate the level of discourse was - really a big change from anything I've been exposed to.

I guess I've come to expect a certain amount of disinterest in the wider world in people (for example, I knew several financial analysts when I worked at Core who honestly couldn't locate the countries they were responsible for on a map or tell you anything at all about them, not even what their native language might be), so this was a welcome surprise.

Tuesday, August 16, 2005


Here is what a professional writer sounds like.

Orientation starts today -

Law school starts tonight - 2 nights of orientation, then full-blown classes next week. I guess you could say it's already started since a small writing assignment was mailed out last week, but that's neither here nor there.

This is also the beginning of the last few years I plan on spending stateside. I was speculating a little on the drive into Dallas this morning where it might take us - back to Russia or Kazakhstan, maybe South America, Africa - maybe all of them. In another 3 years or so, by the time I'm good to travel again, the world is going to look alot different. Oil is almost $70 a barrel now - there's no telling what it will be by then. China and India will be pushing harder into the energy markets. Japan may have a permanent seat on the UN Security Council. Saudi will be a few years into a new government, as will Iraq.

It also means another 3 years of petro-dollars flowing through the Russian economy. Moscow looked almost European when I was there last year - I barely recognized the place. I can only imagine how different it will be in 2009 when they'll be even more flush. Down on the Caspian Sea, the pipelines and refinery on the north shore will be complete - places no one has heard of today like Aktau and Atyrau will be producing more oil than the North Sea. Central Asia will finally be online as a major oil exporter, and have access to revenue that will completely transform the region.

It's going to be one hell of a world out there - and I'm definitely not going to waste it killing time and counting chile peppers.

Monday, August 15, 2005

Deja vu all over again...

The New Republic devotes their current issue cover story to the emerging controversy over Intelligent Design. Here is a link to a long, rather involved article on the subject (pretty hefty at 27 pages) that is mostly a refutation of scientific creationism and the leading ideas of ID couched in a review of a textbook, Of Pandas and People, that has become the centerpiece of a Pennsylvania lawsuit billed as the second coming of Scopes. The lawsuit stems from a school board decision in Dover, Pennsylvania to require all biology courses to be prefaced with a prepared statement that evolution is merely a theory, that alternative theories such as ID exist, and that then exhorts students to keep an open mind while studying the material and points them specifically to Of Pandas and People if they wish to learn more about ID.

What has propelled this issue to the national level is a recent endorsement from President Bush for the teaching of intelligent design under the rationale that education is about being exposed to new and challenging ideas. This has sparked a spate of apprehension over attempts to sneak religion into public school curriculums under the guise of pseudo-science, not all of them completely unfounded. For many conservatives, it has fanned fears that the Republican Party is becoming no more than the political wing of the evangelical movement, again not all of them completely unfounded. The real crux of the problem is that while Intelligent Design may be an interesting idea and great on its own merits, the fact is that it isn’t science and passing it off as such is intellectually dishonest. Nothing against ID – from my (very dim) understanding, string theory suffers from the same flaw of being impossible to test, and generates the same argument among physicists. Politically it’s obvious why the President made the statement he did, but I’m one of those conservatives who wish he wouldn’t have.

All of this has brought to mind a proposal I’ve seen somewhere that might be a better alternative for the religious right than hitching their wagon to Intelligent Design theory. Why not simply introduce the secular study of Christianity and the Bible as a course of study? I grew up repeatedly hearing that the U.S. is a nation founded on Judeo-Christian principles that inform our system of laws and government, but exactly what those principles were was always left a bit hazy. Similarly, I was exposed to much more material about the precepts and history of Islam, Hinduism, and even Confucianism through middle school and high school than Christianity or even Judaism – and I’m guessing my experience is not unique. Knowledge of the Bible as a central document of Western culture used to be considered the norm – in fact, classical studies included Greek and Hebrew precisely because it was assumed students would want to read the texts in their original languages. Fast forward to today, when almost any teenager could tell you who Martin Luther King was, but how many do you think could tell you anything about his namesake? That loss of context (from which I too unfortunately suffer) is surely a bigger detriment than studying evolution.

The best part about this is that it would open up a whole new realm for secular vs. religious fist-fights, but it would remove them to a more appropriate forum – theology/philosophy. As far as evolution goes, nothing says you have to believe everything you’re taught in school – only that you learn it. I learned alot of Marxist economic theory in college, found it interesting and somewhat valuable as a critique of capitalism, but never placed a dime of credence in it. If a kid doesn’t believe in evolution, fine – that doesn’t detract from the educational value of learning the theory, not to mention the rest of the science of biology that rests upon it. Subverting science for politics debases both, and I’m disappointed to see my party and my President taking part in it.

Sunday, August 14, 2005

Adulthood in recession...

The People’s Tax Lawyer has a post up today alerting estate and trust lawyers to the danger they may face from malpractice suits brought by the beneficiaries of instruments they set up, based on the success of suits brought against trial attorneys for not proposing structured settlements as opposed to lump sum payments and failing to arrange for financial experts to advise their clients on awards they receive. The rationale behind these suits is that because the uninformed recipient is unable to manage the sudden influx of wealth wisely, the money is quickly wasted instead of being used for the purpose for which it was rewarded. The PTL points out that beneficiaries of wills and trusts are in a similar position, and may be able to bring suit for similar ‘negligence’.

My experience is a bit limited, but I think the profit motive is probably taking care of this – most estates large enough to generate transfers of wealth large enough to cause this kind of problem have financial advisors actively vying for their attention. Even more extreme, though, is the example the PTL uses of a beneficiary with a history of drug or alcohol abuse suing an attorney for not building safeguards such as sprinkling provisions into the trust essentially to protect the client from himself. That part of the post feeds into a nagging question I’m carrying with me into law school – it sometimes seems like the concept of adulthood is eroding, and that the law is contributing, or at least acceding, to the process.

I encounter the ‘reasonable person’ standard alot in reading about the law – what would a reasonable person do or think, what would a reasonable person expect to happen, etc. That seems like an eminently fair standard to me, except when I see cases like the ones the PTL is describing. Can’t a reasonable person be expected to judge between structured settlements and lump sums? Or be relied upon to use the funds they are awarded for their intended use? When does the attorney-client relationship morph into a parental relationship? Perhaps there is a different standard for these cases, but I can’t believe the law would systematically assume the lack of the most basic abilities – it’s insulting, really.

Following in the footsteps of the tobacco settlement, there’s a determined contingent out there that wants to run the food industry through the same legal wringer on the grounds that the general public can’t defend itself against bad diet choices due to the abundance of cheap, unhealthy food, targeted advertising, etc. In Roper v. Simmons, the Supreme Court based its decision to overturn capital sentences for minors partly on research that the brain doesn’t stop developing until age 25. Everyone has seen or read about hundreds of examples of lawsuits shifting responsibility in what seem like a ridiculous fashion. I’m anxious to find out more about this to determine if this is merely a problem of perception or if there’s really something to it. I’ve heard people say it’s time to take the law back from the lawyers – maybe that’s a good starting point.

Wednesday, August 10, 2005

Absolutely disgraceful II

Man, I must have gotten up on the wrong side of the bed this morning (the two hours in traffic to the office didn't help), but I am really screwed right into the ceiling today. This story is on the front page of the Dallas Morning News.

The kid admits to participating in the armed robbery of six people, but the principal and superintindent of his school district can't see why that should stop him from playing football - he's innocent until proven guilty, after all. (Note to CPS: please release all the children in your custody back to their abusive homes while the cases are pending - the parents are innocent until proven guilty just like Jackson)

The quote that really pushes my launch button is this one, though:

"This may be his only route to a college education. Who are we to take that away, by making him sit out?" (Superintindent) Lewis asked.

His only route to a college education? Really? The article mentions not once but twice that Jackson is carrying a 3.35 GPA - what's stopping him from getting into college like everyone else (aside from possibly the Texas Correctional System)? It's plain we're not worried about a college education here - we're worried about a future pro football career.

Who are you to take that away from him, Superintindent Jackson? You're the steward of the education of all the students in your district, even those that the college scouts aren't particularly interested in. And you've taught them one hell of a lesson.

Absolutely disgraceful -

It is high time for the Office of Personnel Management to be run up the flagpole. This article in the Washington Times shows that a Border Patrol agent arrested for shaking down illegals is in fact a Mexican citizen who used a forged birth certificate to obtain his job with the agency (note, now under the Department of Homeland Security no less). No surprise, his background investigation was performed by OPM. For anyone who doesn't know about my grudge with the particular agency, I had the wonderful experience of waiting 20 months for them to finish my background investigation.

The whole time, the DEA assured me that the delay was due to the fact that I had lived in so many different countries and that OPM had to make inquiries in each one. FALSE. The OPM rep who interviewed me just shook his head when I asked him about that - they had neither the capacity nor the will to do that. The delay was purely due to backlog and inertia. That was when I started having serious doubts about putting my life and career in the hands of the government. It's obvious those doubts were well-founded.

Monday, August 08, 2005

Newsflash! Judge Roberts notes that sun rises in east, generally sets in west...

Activists opine this 'traditionalist, conservative outlook' on celestial mechanics indicates willingness to strip away minority rights...

OK, seriously - in today's Dallas Morning News, Carl Leubsdorf reports activist groups divining ominous warnings from tea leaves such as this:

Judge John Roberts said in a 2000 interview that Supreme Court justices often "tend to go their own way" and "chart a different course" from the intentions of the presidents who appointed them.

The 50-year-old appellate court jurist nominated last month by President Bush also said that the way the court decided key cases in its 1999-2000 term made "a compelling case that we do not have a very conservative Supreme Court," but noted that future appointments could "well make a difference."

It was bad enough when the NYT printed musings about the fact that the Roberts dressed their kid up in saddle shoes and a button down shirt instead of Gap Kids for the nomination announcement, but at least clothes choices can support at least a glimmer of inference. These quotes are just acknowledgement of bald, bare fact.

Speaking of the sun rising in the east:

Nancy Keenan, president of NARAL Pro-Choice America, said Judge Roberts' statements indicate that, "If he is confirmed by the U.S. Senate, you can bet that taking away women's right to choose for ourselves when to bring children into the world will be at the top of his agenda."

This is the same woman whose initial reaction to the nomination was regret that President Bush had chosen such a 'divisive' candidate. Apart from Ann Coulter and Keenan twisting off in opposite directions, we're still waiting for that big batch of divisiveness to materialize.

We've had alot of smoke so far about Roberts' faith, the aforementioned saddle shoes, his wife's social connections, his pro bono work, and on and on, and nothing's caught flame yet. Maybe it's time to elevate the example of Texas to the federal level and just start electing Supreme Court justices outright since what we obviously care about the very least is their legal skill.

Thursday, August 04, 2005

Thank you, Ohio...

We will not forget...

Tuesday, August 02, 2005

For those of you tired of sloshing thru the Deadman...

I have set up a separate blog for Liam - photos are posted by overwhelming popular demand!

Here's the link for Liam - the Deadman appreciates everyone stopping by over the last few days! We're all glad the little dude is finally here and wishing his parents all the best -

Monday, August 01, 2005

Lighten up, Chait...

The Drudge Report has some stats up from President Bush’s last physical, which rates his health as ‘Superior’ for his age group. The report notes that the President exercises 6 days per week, including biking, treadmill and elliptical training, and free weight lifting. The results are that at a weight of 191 lbs. he has a bodyfat percentage of just under 16%, excellent blood pressure (110/64), and a very low resting heart rate (47 bpm).

This ties back to something I wanted to write about before Liam pushed the other headlines off the Deadman: an editorial in the LA Times by Jonathan Chait, an editor of the New Republic. Chait has his nose out of joint over the President’s interview with Supreme Court candidate J. Harvie Wilkinson, in which they chatted about workout regimens and the President chided Wilkinson for ignoring his doctor’s advice about cross-training, telling him he was going to damage his knees.

Chait then gets even more exercised (heh heh) by how much time the President spends working out, and his belief that more people should do the same:

Bush's insistence that the entire populace follow his example, and that his staff join him on a Long March — er, Long Run — carries about it the faint whiff of a cult of personality. It also shows how out of touch he is. It's nice for Bush that he can take an hour or two out of every day to run, bike or pump iron. Unfortunately, most of us have more demanding jobs than he does.

For the editor of a high-brow intellectual magazine, Chait betrays a surprising amount of small-mindedness here. Everyday we find out more about how the sedentary lifestyle of average Americans is expected to impact our health and retirement systems as time goes on, to the point where some commentators and Morgan Spurlock-types are agitating to shake down the food industry to offset the costs. And Chait thinks the President’s attitude shows that he’s out of touch?

He also writes that any “…notion of a connection between physical and mental potency is, of course, silly.” Maybe so, but the notion of a connection between fitness (or rather, lack of) and heart disease, hypertension, diabetes, and a string of other diseases is well documented. Equally silly is the notion that the hours a person spends exercising are a direct trade-off with productive work hours. I think this editorial tells us a lot more about its author than its subject.

The saddest thing about this story, though, is that what the President displays here is a concept so unheard of, so rarely seen in Washington that even a smart guy like Jon Chait doesn’t recognize it when he sees it: leadership by example.