Saturday, November 21, 2009
Thursday, November 19, 2009
If a court has said it, then it does not matter if that court's opinion is controlling jurisdiction. What matters is that the argument is one that a court might find persuasive because a court has found it persuasive in the past. Thus, on an exam, anything a court has said will raise an issue that can be addressed.
Thursday, November 12, 2009
Lazy Reading
This post is place-holder for a forthcoming post about lazy reading. I have come to realize that reading with the intent to find answers to questions is akin to practicing saxophone with poor form, or lifting weights with too much weight or with improper position. Some texts do provide answers to questions, but these texts are reference texts. These are the only texts that should be read lazily. All other texts are mere suggestions, theories about the way a particular problem or situation could be approached. Consequently, correct reading requires thinking. Incorrect reading involves, "wait, I don't understand, what does the author mean?" The proper response to confusing text is, "This author has incorrectly worded this sentence, thereby depriving it of any meaning. If the author means ____, then it should have been worded like this:_______." Otherwise, reading is extremely boring and retention is darn-near impossible.
Friday, November 6, 2009
A Candid Self-Assessment
It's now crunch time. Every hour I spend is now crucial, as an hour of study during the month before the exam is worth 3 hours of study time previously. With this in mind, I must profile my weaknesses and discriminate against them with the scant time and resources I have at my disposal.
Here is the work that must be accomplished by the end of the semester:
Contracts:
a) There are 1 and a half chapters of cases that each need to be briefed in preparation for class.
b) There are 6 chapters that will need to be outlined in a format that can be applied in an exam setting. For each topic covered in class, I must identify the elements and factors that make up each doctrine/rule/principle. The aim here is to separate the weapons/tools of legal analysis from the context of court opinions. In the outline, the court opinion we covered in class will briefly be summarized, with an emphasis on how the court views/uses the principle/rule. The hornbook and black letter outline should be the basis for the outline.
Torts:
a) 150 pages of casebook to read in preparation for class. Since I've been called on twice already, a masterful command of the details is not necessary. Read with an eye for rules and principles.
b) Outline Intentional Torts, Prima facie case for negligence, Defenses. The casebook and syllabus may actually be more useful than the E&E for this purpose. Since none of the principles or concepts are particularly difficult, this is going to be an exam in which meticulous attention to detail will win the day. Include traditional approaches in the outline.
Property:
There is a lot of reading left to do in preparation for class, and unfortunately, this reading is necessary in order to be able to understand all the points in class. This reading is further complicated by the fact that some of the material is relatively simple and straightforward, whereas other material is complex. In addition, some of the material is technical and rule-based, whereas other aspects of the reading is based heavily on policy analysis. Finally, the exam for this course is an 8 hour take home exam. I definitely need to outline the interests in real property, shared ownership, marital property, and the rule against perpetuities. I should probably outline the other material too--just broadly mention all of the conflicts and arguments and cull out as many rules as I can find. This could be a time-consuming process. Understanding Property should be a useful resource in organizing the material.
Legal Practice:
Only one thing to do here: OPEN MEMO. I have to write the most badass memo of all time. This will require further research, extensive outlining, drafting, thinking, and editing.
Legal Research:
EXAM on friday! Top priority for this week. The upside is that there is a finite amount of material. The downside is that the professor was terrible and I don't understand a lot of it. Another downside is that the curve will be brutal, so I have to know the esoteric weird hard stuff in addition to the regular course material.
These are the obstacles that I will need to overcome to successfully complete my tasks:
a) Efficiency. It takes me too long to do my reading for Contracts. I need to read the case summary online, write a paragraph by paragraph summary of the significant reasoning in the opinion, write up a quick brief, and then move on. This should not take more than 30-45 minutes per case. No more inactive reading. Everything I read should be read with the goal of producing a written document containing the important rules and principles that the court applies to the case facts. If there is something I do not understand, just write it down and move on, and I can try to gain insight either in class, in the hornbook, in the E&E, or else it isn't that important. I don't have all day to accomplish all of the assignments that are due the next day. I need to be working ahead so that I have time to review and outline. I don't get to rest until I have accomplished everything written above.
b) Energy/Focus. Lately, I have been having situations where I come home and don't feel like doing work, so I sit at the computer and read the NY Times or spend an hour cooking, or whatever. Other times, I will actually have the book open, but I'll just stare at the words on the page without any understanding of what I'm supposed to be learning and no energy to figure it out. I have several ideas for remedies. First, remember that the law is fascinating. All of the courses I am taking are introductory classes, so if I think I am being exposed to endless detail and boring facts, then I am mistaken. Think of how much fun Introduction to Philosophy was in comparison to Metaphysics or Computational Models of Consciousness. Second, get 8 hours of sleep every single night, no matter what! An hour of study conducted with a well-rested mind is probably twice as productive as two hours of study done on a half-tank of sleep. Plus, its easier to study longer. Third, continue to remain logged off of gchat. I've been a lot more productive since I signed off.
I need to be more self-conscious in my studying, just as I am when practicing saxophone. Be conscious of limitations, and work to improve them, rather than just sticking with the easy stuff so that I can feel smart about myself.
Here is the work that must be accomplished by the end of the semester:
Contracts:
a) There are 1 and a half chapters of cases that each need to be briefed in preparation for class.
b) There are 6 chapters that will need to be outlined in a format that can be applied in an exam setting. For each topic covered in class, I must identify the elements and factors that make up each doctrine/rule/principle. The aim here is to separate the weapons/tools of legal analysis from the context of court opinions. In the outline, the court opinion we covered in class will briefly be summarized, with an emphasis on how the court views/uses the principle/rule. The hornbook and black letter outline should be the basis for the outline.
Torts:
a) 150 pages of casebook to read in preparation for class. Since I've been called on twice already, a masterful command of the details is not necessary. Read with an eye for rules and principles.
b) Outline Intentional Torts, Prima facie case for negligence, Defenses. The casebook and syllabus may actually be more useful than the E&E for this purpose. Since none of the principles or concepts are particularly difficult, this is going to be an exam in which meticulous attention to detail will win the day. Include traditional approaches in the outline.
Property:
There is a lot of reading left to do in preparation for class, and unfortunately, this reading is necessary in order to be able to understand all the points in class. This reading is further complicated by the fact that some of the material is relatively simple and straightforward, whereas other material is complex. In addition, some of the material is technical and rule-based, whereas other aspects of the reading is based heavily on policy analysis. Finally, the exam for this course is an 8 hour take home exam. I definitely need to outline the interests in real property, shared ownership, marital property, and the rule against perpetuities. I should probably outline the other material too--just broadly mention all of the conflicts and arguments and cull out as many rules as I can find. This could be a time-consuming process. Understanding Property should be a useful resource in organizing the material.
Legal Practice:
Only one thing to do here: OPEN MEMO. I have to write the most badass memo of all time. This will require further research, extensive outlining, drafting, thinking, and editing.
Legal Research:
EXAM on friday! Top priority for this week. The upside is that there is a finite amount of material. The downside is that the professor was terrible and I don't understand a lot of it. Another downside is that the curve will be brutal, so I have to know the esoteric weird hard stuff in addition to the regular course material.
These are the obstacles that I will need to overcome to successfully complete my tasks:
a) Efficiency. It takes me too long to do my reading for Contracts. I need to read the case summary online, write a paragraph by paragraph summary of the significant reasoning in the opinion, write up a quick brief, and then move on. This should not take more than 30-45 minutes per case. No more inactive reading. Everything I read should be read with the goal of producing a written document containing the important rules and principles that the court applies to the case facts. If there is something I do not understand, just write it down and move on, and I can try to gain insight either in class, in the hornbook, in the E&E, or else it isn't that important. I don't have all day to accomplish all of the assignments that are due the next day. I need to be working ahead so that I have time to review and outline. I don't get to rest until I have accomplished everything written above.
b) Energy/Focus. Lately, I have been having situations where I come home and don't feel like doing work, so I sit at the computer and read the NY Times or spend an hour cooking, or whatever. Other times, I will actually have the book open, but I'll just stare at the words on the page without any understanding of what I'm supposed to be learning and no energy to figure it out. I have several ideas for remedies. First, remember that the law is fascinating. All of the courses I am taking are introductory classes, so if I think I am being exposed to endless detail and boring facts, then I am mistaken. Think of how much fun Introduction to Philosophy was in comparison to Metaphysics or Computational Models of Consciousness. Second, get 8 hours of sleep every single night, no matter what! An hour of study conducted with a well-rested mind is probably twice as productive as two hours of study done on a half-tank of sleep. Plus, its easier to study longer. Third, continue to remain logged off of gchat. I've been a lot more productive since I signed off.
I need to be more self-conscious in my studying, just as I am when practicing saxophone. Be conscious of limitations, and work to improve them, rather than just sticking with the easy stuff so that I can feel smart about myself.
Wednesday, November 4, 2009
Disclosure and Informed Consent
Our Property professor told us on Tuesday that the reason why we are taught Torts, Contracts, and Property all in the same semester is that these are the substantive law courses, and we are encouraged to see the connections between these legal classifications. Torts and Contracts have just intersected at Informed Consent Street and Non-Disclosure Avenue.
"The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure." Michigan Court of Appeals, 2005
"In a bargaining transaction there is generally no duty to disclose information." Calamari & Perillo, Contracts
Of course, this Contracts text notes that informed consent in medicine is an exception to this general principle. But I believe it may be valuable to examine the different perspectives that Torts and Contracts bring to this disclosure table.
When two parties are negotiating a contract for a business contract, information and beliefs about that information are driving forces. One party to the transaction has knowledge and beliefs about the subject matter of the bargain that induce it to offer something in exchange that that party believes to be of lesser value. The other party either has different knowledge, different beliefs, or both about the same subject matter, or else neither party would agree to a bargain. Put more simply, each party must believe that they are offering something less valuable than what they are receiving, or else neither party would agree to the transaction. Two people who had the exact same knowledge and valuation of the objects in the universe would never be able to bargain with one another.
Thus, it often happens that one party, through superior knowledge and value-analysis, is able to obtain something valuable by offering something that is less valuable. For example, if I have good reason to believe that Apple stock is underpriced, and I offer the market price, then the person who sells me the Apple stock will suffer a loss if my information is accurate. Am I obligated to inform the owner of the Apple stock of whatever superior financial analysis led me to my accurate belief that Apple is underpriced? Of course not! Now, if I had insider information, this transaction would be fraud. Note where the lines are drawn in financial transactions between acceptable and criminal non-disclosure.
In the field of medicine, there is also a line between acceptable and malfeasant non-disclosure. "The extent to which [a doctor] must share . . . information with his patient depends upon what information he should reasonably recognize is material to the plaintiff's decision. 'Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.'" Basically, a doctor must disclose any medical information that might induce a reasonable patient to accept or decline treatment. The doctor does not need to disclose information about what he will be wearing during the operation, or a possible 3 minute hiccup side effect, or the risk that one of the nurses will be rude.
This line is certainly not the line used in contract negotiations. Imagine if an real estate broker was obligated to tell a seller of land in Texas the name and telephone number of a Colombian family that was willing to pay double the asking price to use the land for a supermarket? The broker's hard work in locating the Colombian entrepeneur and seller and arranging the transaction would all be for naught. Is there any chance that there is a similar infringement of the doctor's right to retain the economic benefits of his non-disclosure? After all, if a doctor were allowed to stay silent about unlikely risks of catastrophic side effects, then that doctor might find more patients willing to undergo expensive procedures.
But "NO!" exclaims the concerned consumer. Not so fast. There is a societal benefit to doctors informing their patients of the risks of surgery. Patients have a right to autonomy which is undermined when they are not given the information necessary to make decisions affecting their health.
Fair enough. But consider a second argument: It would be unconscionable for a doctor to become enriched at the cost of his patients' health; the doctor would be unjustly enriched by his non-disclosure. This seems reasonable as well, does it not? But why not extend this reasoning to the case of the real estate broker. Isn't it unjust that the seller in Texas would miss out on double his profits by selling directly to the Colombian? And isn't it unjust that the Colombian should pay twice what the seller is offering for the land in Texas? Both of these parties are hurt economically by the broker's non-disclosure, and the economic detriment has health consequences. What if the sellers in Texas are unable to afford a needed operation because they needlessly sold their land at a lower price?
One solution to this conflict is that the difference between the doctor and the broker is distinguishable by the special relationship between the doctor and the patient that does not exist between the broker and the seller. A doctor has a duty to "do no wrong." The doctor has a conflict of interest, whereas the broker has no conflict of interest. The broker has only one interest: economic selfishness.
We'll see if my future studies shed any new light on this conflict.
"The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure." Michigan Court of Appeals, 2005
"In a bargaining transaction there is generally no duty to disclose information." Calamari & Perillo, Contracts
Of course, this Contracts text notes that informed consent in medicine is an exception to this general principle. But I believe it may be valuable to examine the different perspectives that Torts and Contracts bring to this disclosure table.
When two parties are negotiating a contract for a business contract, information and beliefs about that information are driving forces. One party to the transaction has knowledge and beliefs about the subject matter of the bargain that induce it to offer something in exchange that that party believes to be of lesser value. The other party either has different knowledge, different beliefs, or both about the same subject matter, or else neither party would agree to a bargain. Put more simply, each party must believe that they are offering something less valuable than what they are receiving, or else neither party would agree to the transaction. Two people who had the exact same knowledge and valuation of the objects in the universe would never be able to bargain with one another.
Thus, it often happens that one party, through superior knowledge and value-analysis, is able to obtain something valuable by offering something that is less valuable. For example, if I have good reason to believe that Apple stock is underpriced, and I offer the market price, then the person who sells me the Apple stock will suffer a loss if my information is accurate. Am I obligated to inform the owner of the Apple stock of whatever superior financial analysis led me to my accurate belief that Apple is underpriced? Of course not! Now, if I had insider information, this transaction would be fraud. Note where the lines are drawn in financial transactions between acceptable and criminal non-disclosure.
In the field of medicine, there is also a line between acceptable and malfeasant non-disclosure. "The extent to which [a doctor] must share . . . information with his patient depends upon what information he should reasonably recognize is material to the plaintiff's decision. 'Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient's position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.'" Basically, a doctor must disclose any medical information that might induce a reasonable patient to accept or decline treatment. The doctor does not need to disclose information about what he will be wearing during the operation, or a possible 3 minute hiccup side effect, or the risk that one of the nurses will be rude.
This line is certainly not the line used in contract negotiations. Imagine if an real estate broker was obligated to tell a seller of land in Texas the name and telephone number of a Colombian family that was willing to pay double the asking price to use the land for a supermarket? The broker's hard work in locating the Colombian entrepeneur and seller and arranging the transaction would all be for naught. Is there any chance that there is a similar infringement of the doctor's right to retain the economic benefits of his non-disclosure? After all, if a doctor were allowed to stay silent about unlikely risks of catastrophic side effects, then that doctor might find more patients willing to undergo expensive procedures.
But "NO!" exclaims the concerned consumer. Not so fast. There is a societal benefit to doctors informing their patients of the risks of surgery. Patients have a right to autonomy which is undermined when they are not given the information necessary to make decisions affecting their health.
Fair enough. But consider a second argument: It would be unconscionable for a doctor to become enriched at the cost of his patients' health; the doctor would be unjustly enriched by his non-disclosure. This seems reasonable as well, does it not? But why not extend this reasoning to the case of the real estate broker. Isn't it unjust that the seller in Texas would miss out on double his profits by selling directly to the Colombian? And isn't it unjust that the Colombian should pay twice what the seller is offering for the land in Texas? Both of these parties are hurt economically by the broker's non-disclosure, and the economic detriment has health consequences. What if the sellers in Texas are unable to afford a needed operation because they needlessly sold their land at a lower price?
One solution to this conflict is that the difference between the doctor and the broker is distinguishable by the special relationship between the doctor and the patient that does not exist between the broker and the seller. A doctor has a duty to "do no wrong." The doctor has a conflict of interest, whereas the broker has no conflict of interest. The broker has only one interest: economic selfishness.
We'll see if my future studies shed any new light on this conflict.
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