Molten Boron

March 04, 2008

Overheard in Tax Court

From Niedermeyer v. Commissioner, 62 T.C. 280:

"While we express no opinion on petitioners' apparent belief, we think the words 'immediately after' must be given their ordinary meaning and that consequently December 28 cannot be considered 'immediately after' September 8."

Posted by Zach at 02:21 PM | Comments (0)

February 20, 2008

Peanut Butter Jelly Time

The Administrative Procedures Act provides for both formal and informal rulemaking. Agencies, however, tend to prefer informal rulemaking because of the excesses of procedure provided for and hearing rights granted by the formal rulemaking process. My Administrative Law casebook provides an example:

[A]n FDA formal rulemaking to determine the percentage of peanuts a substance must contain in order to be labeled 'peanut butter' took nine years and twenty weeks of hearings producing 8,000 pages of hearing record, to produce a six-page opinion to justify a decision to require at least 90% peanuts.

Needless to say, the prospect of spending nine-and-a-half years on the Peanut Butter Standards Subcommittee has led FDA officials to prefer somewhat less formal rulemaking processes.

Posted by Zach at 09:57 AM | Comments (0)

October 29, 2007

Interviews Are Not Fun

One of the interesting things I've learned over the course of interviewing with various employers is that there are certain qualities of a job that you, as a job applicant, are not allowed to talk about in a job interview.

For some subjects, this is pretty obvious. If you're interviewing with, for instance, a firm that has a reputation of working its junior associates to death, to the point where 90% of them leave within 2 years, you should probably not mention this fact to the interviewer. Not even in the form of a question about the job at the end of the interview. On wrapping up the interview, the foremost thought in your mind might well be "I have a question. If I take this job, will it significantly increase my chances of killing myself within the next 18 months? Because if so, I'd like to know now so that I can buy more life insurance and maybe take some home repair classes. You know, to make the fire look like an electrical thing." Nonetheless, it is considered impolite to ask, even if phrased very delicately.

It's also, for whatever reason, considered a little gauche to ask firms about money, or to mention money as the reason you want to work for them. This leads to a lot of polite fiction. When the interviewee says something to the effect of "I want to work at Simmian, Clarke, and Feldstein because I love document review. The thought of paying very, very careful attention to the details of boxes upon boxes containing ten thousand corporate documents in search of the few dozen that are responsive to the opposing counsel's document requests fills me with excitement," what she actually means is "I want to work at Simmian, Clarke, and Feldstein becaues I love money, and am willing to put up with tedious, brain-numbing boredom in order that I might spend the few free hours of my life rolling around in it."

Then there are the things that the interviewer is allowed to talk about, but the interviewee is not. This includes all things related to the work-life balance or culture of the law firm. The nut of the problem is that if you say you want to work at a place because of how fun you've heard it is, you are sending a signal to the interviwer that you want to work there because you think it's a fun place to work. It's this whole sort of reverse-Groucho Marx thing, they don't want anyone joining their club who would want to be a member.

Two examples will perhaps prove illustrative. First, a work-life balance discussion that redounds to the interviewee's benefit:

Interviewee: "I want to work at McFarland, Ross, and Miller because I love document review, and can't wait to do a lot of it!"
Interviewer: "Well, one of the great things about McFarland, Ross, and Miller is that we occasionally allow junior associates out of their gilded Document Review Comfort Cages for fifteen-minute water-breaks, an industry record, plus we put free apples in the break room!"
Interviewee: "Well, that sounds very generous of you, though I can't imagine needing more than five minutes for that water break and I certainly wouldn't want to waste time eating apples on the firm's dime."
Interviewer: "I see you'll fit in well around here!"

And here's an example of an interviewee botching the whole thing:

Interviewee: "I want to work at Deering, Gibson, and Fender because I've heard you give free apples during water breaks, and I love apples."
Interviewer: "Oh, so you're just after us for our apples, are you? Well, just so you know, we fired a summer associate last year for taking too many apples. Sometimes as many as three in a day! So don't think we're all apples and sunshine. We work hard and the apples are just a happy bonus. Unless the apple budget gets cut next year."
Interviewee: "Have I mentioned how much I love documents, and the reviewing of same?"
Interviewer: "Looks like our time is up. We'll get back to you in two to six weeks, depending on how long the post office takes with the rejection letter."

Hopefully this will prove helpful in your future legal interviewing endeavors.

Posted by Zach at 01:53 AM | Comments (0)

October 25, 2007

Those Lousy Less Fortunate Get All the Breaks!

I would like to bring some fairness and balance to my practice of pointing and shaking my head at groups of which I'm slightly ashamed to be a member. In that spirit, witness a slew of current-and-future big corporate lawyers whining and moaning about the possibility that they might have to pay an additional 4% of their income above $150,000 ($200,000 for couples filing jointly) as a surtax if a bill introduced by Charlie Rangel (my congressman!) passes. Never mind that the surtax comes in exchange for an elimination of the Alternative Minimum Tax, which means that most of these learned barristers will probably be paying less under the new scheme.

Still, any chance to explain why, as true Ayn Randian Ubermenschen and Uberfrauen, they are being held back from their true, full potential by the socialist redistributive policies of the mediocre minds in government, motivated as they are by misplaced sympathies for the weak, lazy, undeserving underclasses. Truly, if the government were to disappear tomorrow these supermen and superwomen would reach untold heights of accomplishment, no longer constrained in their ability to earn money by arguing over and enforcing . . . the laws of . . . the government that doesn't exist anymore.

Posted by Zach at 03:30 PM | Comments (0)

October 24, 2007

Retributivism

It probably isn't prudent for me to say anything substantive on this point, but I will say that there are an awful lot of very harsh retributivists in the comments to this post on Kotaku. Consider that the crime, as reported earlier here occurred roughly as follows:

At 6 PM in the evening, the manager of a Gamestop franchise and one of his employees were closing up the shop. One of the customers lingered as the others made their purchases and left. Once he was alone with the manager and the employee, the customer took out a gun. He threatened the two and demanded the store's cash and merchandise. At some point, the employee's father entered the store to pick up the employee. The robber tied up all three and gagged them with duct tape. The robber spent about an hour and a half in the store, which may include the time he was there waiting for the store to close. He stole some video games and DVDs. He also stole the manager's car, which he drove off in. Sometime afterwards, and we don't yet know the time of death, the manager of the store died of asphyxiation, likely because of the duct tape.

The suspect has just been apprehended. He has several prior convictions for forgery, obstructing a law enforcement officer, possession of cocaine, and selling cocaine. He has been charged with murder, three counts of kidnapping, three counts of false imprisonment, three counts of armed robbery, and possession of a firearm during the commission of a felony.

By my judgment, the median Kotaku commenter is calling for the perpetrator's death. The most extreme commenters want him to be publicly tortured to death to set an example for others.

Without wishing to offer my opinion on the matter, I don't believe any prosecutor outside the state of Texas, and probably most Texan prosecutors as well, would consider this a death penalty case.

Posted by Zach at 10:03 PM | Comments (0)

July 04, 2007

Sentencing

A couple of days ago, President Bush commuted Scooter Libby's 2 1/2 year jail sentence. The commutation came within hours of the DC Circuit's denial of Libby's emergency appeal of the District Court Judge's decision that Libby should remain in prison while he awaited the results of his broader appeal. In short, the president's commutation of Libby's sentence was timed to ensure that Libby would not have to spend a minute in jail.

In commuting Libby's sentence, the president remarked that he had "concluded that the prison sentence given to Mr. Libby [was] excessive. Therefore, [he] commut[ed] the portion of Mr. Libby’s sentence that required him to spend thirty months in prison." What's troubling about this is that the reasoning contradicts the entire philosophy upon which we sentence criminals in federal courts.

In the federal system we sentence criminals in accordance with the Federal Sentencing Guidelines. The Federal Sentencing Guidelines were created to remedy the seeming injustice of wildly divergent sentences in criminal cases. It used to be that judges had nearly complete discretion in crafting sentences. They could take whatver factors they liked into account and sentence criminals however the wished, subject only to whatever statutory minima or maxima may exist.

Imagine two criminals from similar backgrounds who committed the same crime in the same judicial district, but who have their trials assigned to two different judges. Criminal A gets Maximum Bob while Criminal B gets Probation Pete. Maximum Bob was appointed by a tough-on-crime president, and he believes in giving every criminal the maximum sentence allowed by law, so Criminal A gets 10 years. Probation Pete was appointed by a liberal reformist president. He believes everyone deserves a second chance, so he gives 6 months probation to every first-time non-violent offender, which is exactly what Criminal B gets. The only distinction between A and B is the luck of the draw as to which judge their case was assigned to.

On a systemic basis, this makes people squeamish. If we had some ideal judge, some judicial Hercules, and we could clone her and appoint her to every district court bench in the nation, thereby ensuring that luck-of-the-judicial-draw was not a factor in sentencing outcomes, the problem wouldn't exist. But we can't, so it does.

The solution was the sentencing guidelines. The sentencing guidelines are crafted by the United States Sentencing Commission, a permanent commission of the Federal Judiciary. The USSC has 7 members, each one appointed by the president and confirmed by the Senate to six-year terms. No more than 3 may be federal judges and no more than 4 may belong to the same party. Sentencing under the guidelines is largely a mathematical process. The judge first calculates the offense level. She starts from a baseline level for whatever the crime is. She then adds or subtracts points from the offense level based on other relevant factors. The just must then compute the criminal history level by looking at any prior convictions. Once she has an offense level and a criminal history level, she consults a grid which tells her the range of sentences that she can give.

As an example, suppose you have a single mother convicted of posession of narcotics with intent to distribute. She's 25 years old and the sole support for her children. She has a high school diploma and has worked since graduation cleaning bathtubs at a shop that sells bathroom fixtures. Her employer reports that she is generally good at her job, has been known to miss days periodically when childcare emergencies arose, but has overall been a fine employee. She attends church weekly and is a junior member of the church's governing committee. It's her first offense and she played only a minor role: knowing that a bag contained drugs, she agreed to hold it until the dealer returned to pick it up. The bag contained 5 kilograms of marijuana. She hid the bag in a supply closet in the church's meeting room, which she could access by dint of her membership on the committee. After her arrest she insisted on going to trial, arguing that holding the drugs for a friend shouldn't be considered trafficking, and she maintains the injustice of her conviction through the sentencing.

Based on this we consult the guidelines: Section 2D1.1(c)(13) tells us that the base offense level for possession of 5 kilograms of marijuana is 14. She played only a minor role in the crime, which under section 3B1.2(b) entitles her to a reduction of 2 levels to offense level 12. Because she has not accepted responsibility for her crime, she does not receive a 2 level reduction under section 3E1.1(a). Because her crime involved an abuse of a position of private trust (using her access to the meeting room to aid in the commission of the crime) two levels are added to her offense under Section 3B1.3, bringing her back up to 14. Sections 5H1.1, 5H1.2, 5H1.5, 5H1.6, 5H1.10, and 5H1.11 tell us that her age, education, employment record, family ties and responsibilities, religion and socio-economic status, and charitable or public service are not ordinarily relevant in determining her sentence. She has no prior arrests, so her criminal history level is 0.

Consulting the sentencing table at Chapter 5, Part A for an offense level of 14 and criminal history of 0, we learn that the guidelines range for her sentence is 15 to 21 months in prison. The judge has discretion to sentence her anywhere within that range.

My point is this: in commuting Libby's sentence, Bush argued that the sentence was inappropriate given that Libby was a first-time non-violent offender and in light of Libby's "years of exceptional public service.” But Libby was not a sinner in the hands of an angry judge; the judge's discretion as to the sentencing was minimal. Libby was sentenced according to a mathematical formula. That formula takes into account the type of offense. It takes into account the fact that he was a first-time offender. The formula does not take into account his years of exceptional public service, but only because the Sentencing Commission has considered those factors and explicitly declared that they are irrelevant to sentencing. Libby was not screwed by a partisan judge. He was sentenced in accordance with a mathematical formula that we use to sentence hundreds of offenders every day in America, and his case presents no special circumstances that aren't already either taken into account or rejected as irrelevant by the guidelines. Other than, of course, the circumstance of being friends with someone who has the power to commute your sentence.

If the president is serious about his stated reasons for commuting Libby's sentence, then his disagreement is not with the conduct of one judge but rather with the entire scheme under which we sentence prisoners in the federal system. This should lead him to push for a reconsideration of the entire guidelines scheme, either by tweaking the relevant factors used to determine a guidelines range or by throwing out the whole mathematical sentencing system. The president's statements are not a cry in the dark by a powerless professor or an overworked defense attorney; they are pronouncements by arguably the most powerful man in the country. If he is serious about his criticism, he has the power to change what he perceives to be an unjust system for the better. If he is serious.

Posted by Zach at 11:13 AM | Comments (0)

June 13, 2007

Half a Loaf

There are a number of different strands of interpretation as to what the Due Process clause of the 14th Amendment means when it come to state administration of criminal justice.

But you don't care about that.

The important thing is that one of those strands of interpretation is known as the Rule of Law interpretation, first embodied in Justice Matthew's opinion in Hurtado v. California. The basic idea is that there are certain foundational principals of what constitutes a just criminal proceeding inherent in the Common Law, and the Due Process Clause places a constitutional requirement on the states to adhere to those principals when implementing their criminal justice systems.

This led to the Vagueness Doctrine, which holds that laws that are so vague that they can't possibly guide people's behavior are unconstitutional violations of Due Process.

At last, the point: In 1971, the Supreme Court, in the case of Coates v. Cincinnati, 402 U.S. 611 (1971), struck down a statute that forbade conduct "annoying to persons passing by." They expanded upon this in the case of Papachristou v. Jacksonville, 405 U.S. 156 (1972), which invalidated a statute outlawing "rogues and vagabonds," "habitual loafers," and "persons wandering or strolling around from place to place without lawful purpose or object."

It's a shame that second statute was invalidated, because it seems like it'd be endles fun to play with. First: Is "rogues and vagabonds" a conjunctive or disjunctive phrase? That is, if I am a rogue, but not a vagabond, am I violating the law? Or is it only to be applied against those who are simultaneously roques and vagabonds? And must you be both at once? Perhaps I am a vagabond in the morning and a rogue in the evening.

Also: Habitual Loafers. How much loafing may one do before it becomes a habit? I have to say I'm very guilty of this. On weekends I usually wake up around 11, and it's a rare day that sees me showered and changed out of my sleep clothes before 2 in the afternoon. Perhaps, though, I could get a lighter sentence by going state's witness and turning in other loafers of my acquaintance. For example, there's a pair of old brown leather shoes sitting beside my desk that I rather suspect of being loafers pretty much all of the time. They've turned habitual loafing into an addiction.

Posted by Zach at 12:46 AM | Comments (0)

June 12, 2007

Legally Insane

A new study has determined that law students are significantly more neurotic than medical students, but usually less neurotic than mental patients. Usually.

Posted by Zach at 12:32 AM | Comments (0)

June 07, 2007

Fun Criminal Justice Statistic of the Day

In 2002, criminal cases were concluded in federal court against 80,424 defendants. Of those, 89% were convicted. Of that 89%, 96% were the result of guilty pleas. Discuss.

Posted by Zach at 02:17 PM | Comments (0)

Professional Responsibility Follow-Up

I'm pleased to follow up on my blog post from last January about the substitute teacher in Connecticut who was convicted on charges of corrupting the morals of children. Via Feministe, I have learned that she will receive a new trial.

You will recall that Julie Amero was a substitute teacher who faced up to 40 years in prison (though a sentence of 40 years was highly unlikely under the circumstances) for allegedly showing pornography to students in her class. There was no dispute that pornographic images were on her computer screen while she was in the classroom with students; the question was how they got there. The prosecution argued that she was browsing porn sites, while the defense contended that the images were in pop-ups generated by malware resident on the computer's harddrive since before Amero began working.

The problem at trial was that Amero's lawyer failed to inform the prosecution of his intent to present a malware-related defense in time for the prosecution to prepare counter-arguments; the whole issue essentially didn't get raised until after the trial started. This led the judge to exclude most of the defense's malware-related evidence, which left Amero with essentially no argument for why the porn appeared on her screen that didn't involve her making an affirmative choice to put it there.

At the time, I predicted an ineffective assistance of counsel argument might prevail on appeal. At the time, I was unaware that ineffective assistance of counsel arguments essentially never succeed on appeal. In theory, this is because appellate courts are loathe to second-guess the decisions of lawyers after-the-fact. It's very easy, in hindsight, to look at a case and say that a defense would have been marginally better if the lawyer had done X but not Y, but courts prefer not to therefore label the lawyer's decision ineffective assistance of counsel. In practice, a large part of the reason ineffective assistance claims fail is because the overburdened public defender system can't provide a great defense to most of its clients, so the bar for effective assistance has to be set very low in order to prevent most cases from being overturned on appeal.

Happily for Amero, though, she received a new trial on the basis of new evidence that had come to light. Specifically, the trial judge on a post-trial motion examined mountains of evidence presented by IP professionals to indicate that the computer had been infested with malware and that this malware may have caused the images to appear on her screen against Amero's wishes. While the judge couldn't overturn the jury's verdict and declare Amero innocent (judges determine the law; it is the task of the jury to determine the facts) the judge could determine that the jury had not been exposed to all of the relevant information at the first trial, and that therefore a new trial was necessary.

Interestingly, there likely won't be a new trial. The local prosecutor's office has refused to comment on the grant of a new trial, and if the Courant's reporting is accurate this indicates that the prosecution is likely to drop the charges. Obviously this is great for Amero, though in a sense it deprives her of a moral victory. If there were a second trial, he could get an acquittal and use that as evidence in her future career that she hadn't done what she was accused of. As it stands, there may remain some doubt about her innocence. Still, given the choice between a time (and possibly money) intensive trial with an uncertain outcome and being able to walk free, I think just walking free is the option that makes the most sense, moral victory aside.

Posted by Zach at 07:04 AM | Comments (0)

May 22, 2007

Useless Legal Latin: Arguendo

All professions have specialized pseudo-languages of their own. English is fine for general communication purposes, but when you get a group that has to regularly convey to one another a set of complicated ideas that are difficult to couch in standardized language it becomes useful to have certain words and phrases that mean nothing to the untrained ear.

Sometimes this makes people outside the specialty angry. Lawyers get a lot of crap for all the latin terminology that worms its way into their discourse, as well as for the unusual and specialized meaning given to regular English words. Also, and I don't know if people give them crap for it, lawyers do deserve a certain amount of scowling for their occasional rhetorical excesses in creating standard terminology (my personal favorite in this regard: "You can't admit that evidence! It is the fruit of the poisonous tree!" Another fun one: "We won't be able to get anything out of the CEO unless we can pierce the corporate veil.") Still, a lot of the crap that people give is wholely unwarranted. If moral philosophers had to give a full enunciation of what exactly the categorical imperative was every time they wished to reference it, they wouldn't get a damn thing done.

Some of the criticism, though, is warranted. You will be shocked to learn that there is a lot of latin jargon in the law that serves no useful purpose. It's just there to make people who aren't lawyers feel excluded from legal conversations. Most lawyers do use these useless wods and phrases, though few consciously intend it to be exclusive; it's just a bad habit that they pick up in law school and never think to correct.

So, for the purpose of edification and mockery, I present the first in (perhaps) a series of utterly useless bits of legal latin: Arguendo. Arguendo means "For the sake of the argument." That's it. As used in a sentence: "Assuming, arguendo, that you had not already ruled in our favor on an earlier issue, these relevant facts mean that we would win the present argument even in the counter-factual bizzaro world that exists only in this pointless footnote." Arguendo contributes nothing to the clarity or meaning of legal language, it merely says to people "Look at me! I have a Juris Doctor and believe myself to be quite fancy!"

Do not use arguendo. If you hear somebody using it, tell them, "While we are in the world of counter-factuals, I see that you are assuming, arguendo, that anyone in this room gives two shits about your law degree."

Posted by Zach at 08:53 PM | Comments (2)

May 11, 2007

Yoder! You Seek Yoder!

As a general rule, the First Amendment guaranty of religious freedom only provides protection against government acts purposely designed to inhibit or require the expression of religious faith. If the government mandates school prayer, that's a problem. If the government bans certain religious symbols from being publicly displayed on private property, that's a problem. On the other hand, general laws that happen to inhibit religious practices are usually untouched by the First Amendment. Thus, for example, laws that ban serving alcohol to minors aren't unconstitutional even though they might inhibit Catholic priests from giving communion wine to young parishioners (as a practical matter, most state alcohol laws contain exemptions for priests serving alcohol as part of a religious ceremony, but that's an exception in the law, not in the Constitution). The only time a general law runs afoul of the First Amendment is if it's really a stealth attack on religion. Thus, a law that bans all headwear, then contains a list of exemptions that removes every conceivable piece of headware from the ban except yarmulkes would be unconstitutional despite being couched in religion-neutral language. Other than that, there's no way you can use your religion to get out of obeying a general law.

Unless you're Amish.

This is the legacy of Wisconsin v. Yoder, one of the Supreme Court's most embarrassing bits of caselaw. The case came to the court in 1972 and concerned a small Old-Order Amish community in Wisconsin. Wisconsin had a law requiring children to be educated, whether in public or private schools, until 16 years old. Several members of the Menonite community in question withdrew their children after the 8th Grade, when they were 13 or 14 years old, claiming that their beliefs forbade obtaining education beyond the basics learned in elementary and middle school. The state brought them to court over the issue.

The law hadn't yet developed to the point it has now, but there were still enough decisions on the intersection of religion and education to state that, broadly, you could not use religion as a reason to opt out of the educational system entirely. Wisconsin thought it had an open-and-shut case. And it did. A young prosecutor was given the case and he presented hardly no witnesses and did barely any cross examination. The defense relied upon an expert witness, Professor John Hostetler, an anthropologist who specialized in studyin the Amish communities in the United States.

Hostetler presented an idyllic picture of Amish life. A simple folk, the Amish live isolated lives that forbid the use of even simple technologies that we take for granted. Among their beliefs is that one should not think to highly of oneself or concern oneself with matters beyond one's calling. Thus, the education in science, history, and higher mathematics required by Wisconsin's high school curriculum interfered with the practice of their religion. Even high school education within Amish schoolhouses was too much; Amish children reached the threshold of necessary knowledge at the end of the 8th grade, and beyond that further learning was offensive. Education up until then was fine; children needed to know how to read in order to know their bibles, to write and to do simple arithmetic in order to conduct the business of the farm. Anything more advanced, however, was forbidden.

He also touched, particularly in cross-examination, on another problem with high school education. As students progress in the school system they begin learning value systems that are at variance with the Amish culture. High schools teach love of technology and modern society. They teach the values of competition and individual achievement, while the Amish prioritize the community over the individual. All of these are, perhaps, persuasive arguments for a law-maker. But the Constitution has nothing to say about them. There is no constitutional protection of the integrity of your community, only of your right to individual religious expression. Hostetler tried, as much as he could, to tie the communitarian argument in with the religious one; insofar as Amish religion is heavily focused on the community, preservation of the Amish culture and protection of their religious believs were one and the same.

There's something else in Hostetler's testimony, only briefly hinted at. The Amish community at the time was facing a huge problem with abandonment by its children. Population growth among the Old-Order Amish had become stagnant, because many Amish youths were leaving the community once they were old enough to set out on their own. One of the reasons the Amish community wanted to stop sending their children to high school was to make it harder for them to leave the community by giving them fewer of the skills necessary to survive in modern society.

Not surprisingly, the court ruled against the Amish. The arguments about religion were nice, but didn't really fall within the scope of the First Amendment. Yoder lost again on appeal. But then the Wisconsin Supreme Court, somewhat bafflingly, reversed the lower court and ruled in favor of the Yoders. The state appealed, and the Supreme Court took the case.

The Court ruled for the Yoders. In a decision that constitutional scholars still find embarrassing, the 7-justice majority found that the Amish had a right to withdraw their children from high school for religious reasons. The opinion is a paean to the glories of the simple, rural lives that the Amish lead. The majority offers very little basis for their decision other than "who are we to interfere with their way of life?" If they decide that they want to reject modern society and withdraw from the educational system, who are we to stop them?

The lone dissenter, Justice William O. Douglas, calls into question exactly whose decision the majority is respecting, that of the parents or of the children. Our Constitution has an individual-orientation, not a community-orientation. We preserve individual rights, not community ones. If a law interferes with the right of a community to decide the fate of its children, that interference has precisely nothing to do with the Constitution. In America, we have decided that, to ensure individual ample opportunities throughout thei lives, everyone must be educated through a certain age. Even if that education interferes with certain values that a community may hold, it should not be made optional. We ought not, he argued, sacrifice individual rights to preserve insular communities.

Justice Douglas was not persuasive enough, and to this day First Amendment law contains a dubious exception for the Amish when it comes to education, an exception not granted to any other religious group. Others have tried. They have all failed. Only the Amish receive this exemption from general laws.

Since Yoder, the Amish have universally withdrawn their children from high school. Within a few years, abandonment of the community by Amish youths had dropped to nearly nothing.

What's interesting is how much of the decision in Yoder turned on Hostetler's testimony. Wisconsin figured it had an easy case, so they prepared only a weak case at trial. As such, the only factual basis regarding the Amish community was provided by Hostetler, and his cross-examination by the state was short and perfunctory. The problem is that in the American system finding facts is the function of the trial court, not appellate courts; once the trial ended, Hostetler's testimony was the only testimony the Supreme Court could look at. And, as you might imagine, Hostetler's testimony was glowingly positive for the Amish case.

The problem is that Hostetler had very good reasons for wanting to see the Amish community preserved. He was an anthropologist who had built his career on studying the Amish. The Amish community was stagnant and education was part of what was causing its population problems. Of course he was willing to say what was necessary to preserve his niche, the people he made a career out of studying. Hostetler didn't necessarily lie on the stand, but he did fudge some things and elide certain facts to present a more friendly picture than was reality. When an expert witness's livelihood depends on the court ruling one direction, the Court ought to grant that witness's testimony less credibility than it did in this case.

What's interesting about Yoder is the degree to which the outcome turned on one expert's testimony. Given the realities of the tendency for experts to become entranced by their subjects, the Court would have been well served to treat the anthropologist's testimony a bit more skeptically than it did.

Posted by Zach at 09:55 PM | Comments (0)

April 24, 2007

Administrative Procedural Acts

Via Making Light, we learn that the FDA is considering allowing companies to call things that are not chocolate chocolate.

Specifically: At the request of the Chocolate Manufacturer's Association, the Grocery Manufacturer's Association, and the Snack Food Association the FDA is considering whether products that contain cocoa but no cocoa butter can be labelled Chocolate. As it stands, such products are referred to as "Chocolate Flavored."

If the FDA were to approve this, chocolate makers could use vegetable oil substitutes in place of cocoa butter and still call their product chocolate. This likely won't have any impact on upscale chocolate makers; your Guitards and your Ghirardellis will likely to continue to sell real chocolate made with cocoa butter. The people this will really impact will be the folks who buy mass-market chocolates from the likes of Hershey and Nestle. Given a chance, do you think either of them would hesitate in an instant to switch from cocoa butter to a cheaper, inferior substitute?

Tomorrow is the deadline for public comment on this issue. You can go here to submit your comments directly to the FDA.

Posted by Zach at 09:27 AM | Comments (0)

April 23, 2007

Fun Tax Ruling of the Day

If your home is destroyed as a result of the wood being eaten away by beetles, it is tax deductible.

If your home is destroyed as a result of the wood being eaten away by termites, it is not tax deductible.

This is the result of an elaborate study conducted by the IRS on termite eating habits and destruction patterns for homes infested with termites. They have, in fact, created a regional map to indicate in which regions termite loss is tax deductible and in which it is not.

Posted by Zach at 12:02 PM | Comments (0)

April 18, 2007

Partial Birth Abortion Ban

It suddenly occurs to me that, since the recently-upheld partial birth abortion ban is a federal law, and therefore enforced by the Justice Department, I may have to work on a partial birth abortion prosection during my work at Justice this summer.

I wonder which unit that'll be in? I would guess General Crimes, though I suppose Violent Crimes might also be a possibility.

Fun fact: In the New York State Penal Code, there's one section for "Laws Governing Violent Crimes." The next section is "Laws Governing Abortion and Murder." And, indeed, that section just covers abortion and murder; it gives definitions of terms, then it discusses various degrees of manslaughter, then various degrees of murder, then abortion. The abortion statutes are weird, though, in that they all conclude with a throwaway "...Is illegal and shall be considered a Class A Felony, Unless subsection 2 of the abortion definition section applies." Subsection 2 of the abortion definition section says "If the woman consents, it's not illegal." So, by a weird sort of patchwork, the laws seem to only ban involuntary abortions. It's not altogether unusual to run into a weirdly-constructed penal code, since codes are crafted ad-hoc by legislatures over the years, but it's always interesting to run into one that requires you to read multiple statutes to figure out what the crime is.

Posted by Zach at 11:21 PM | Comments (0)

March 08, 2007

Cesspool

I feel it worth drawing attention to this post at Feministe, occasioned by this article in the Washington Post, detailing Jill's experience with the beings that post at AutoAdmit. I used to read AutoAdmit pretty regularly, though I never posted, during the law school admissions process.

As I've gone through the law school experience I've learned that the ostensible merits of the site are dubious at best. Their protestations aside, a significant majority of the posts are puerile, racist, and sexist. Supposedly, though, amidst all the garbage there are shinning pearls of wisdom about law school. This is nonsense. There's no knowledge to be gained at AutoAdmit that can't be learned better through experience, and every useful piece of advice is counter-balanced by three pieces of advice that will lead you astray and undermine your confidence in your ability as a law student and future lawyer. AutoAdmit is truly cancerous and the world would be a better place without it. Reading it makes you a worse human being.

Posted by Zach at 02:13 AM | Comments (0)

January 21, 2007

The Best Way to Be Professionally Responsible is to Do Your Job Well

There's an interesting article by Lindsay Beyerstein on AlterNet about a Connecticut substitute teacher who faces up to 40 years in prison for exposing children to pornography. The teacher was convicted of four counts of "injury or risk of injury to, or impairing morals of, children."

Here's what isn't in dispute: the teacher was using a school computer. That computer began displaying lots of pop-ups for porn sites. She tried to close the pop-up windows, but more kept appearing. Somehow students saw the pop-ups. It's unclear how the monitor was positioned in relation to the class, whether it was pointed at the class, away from the class, or somewhere in between. She did try to stop one student from looking at it when he was talking to her by pushing his face away from the screen, which would tend to support the idea that it couldn't be seen by the class at large from their seats.

The trial turned around this question: Was the teacher surfing for porn at school? The prosecution maintained that she was. As evidence, they provided a police detective as an expert witness. The detective had used ComputerCOP Pro, a program used by police in forensic analysis of computers. The detective had determined that someone had been clicking on links to open the pop-ups. He testified that there was no way the pop-ups could have been opened without the user willfully clicking on links to cause them to appear. The detective's expertise was derived from a pair of two-week FBI training programs on computer crime issues, along with an orientation program for the use of ComputerCOP Pro. That orientation involved an hour of training followed by a test, generally administered over the phone.

The defense tried to argue that the teacher had not been surfing for porn. Rather, the porn pop-ups had appeared as a result of malware that had wormed its way onto the computer. The defense's case turned around the testimony of their own expert witness, Herb Horner, owner of an IT consulting firm, who had forty years of experience as a software engineer and IT consultant.

Horner had used sophisticated software to examine the computer and had determined that the system had been infected with malware. The school's IT department provided no support or protection for computers infested with malware or obscene content, its firewall license had expired, and the computer used was an antiquated Gateway running Windows 98, a configuration notably vulnerable to infection by spyware, viruses, and other such programs. The sort of malware on the computer was the sort that would open up pop-ups for porn sites regardless of the content of the site visited. Moreover, to a relatively primitive forensic program like ComputerCOP Pro, the manner that the malware used to open pop-ups would be indistinguishable from a user clicking on a link.

Horner determined that the malware had been installed on the computer several days before the incident, when the computer was not under the substitute teacher's control. He further found that the pop-ups began appearing about 45 minutes before class started, when a user (it's uncertain whether this was the substitute or a student) accessed the site hair-styles.com.

The defense's case seems to have been fairly air-tight; it explains how the appearance of the porn was not the substitute's fault and it explains the results that the prosecution's expert came up with in a manner that exonerates the defendant. At trial, however, the defense was forbidden from presenting any evidence relating to malware or similar other programs that might provide an alternative explanation for why the pop-ups appeared. Horner was permitted to testify, but his testimony was extremely limited; he was allowed to present only 2 of his 40 prepared slides, and could not discuss malware at all.

The jury never heard anything about malware and the defense could therefore offer no explanation for why the pop-ups appeared. In the absence of any case by the defense, the jury accepted the prosecution's argument that the substitute was surfing for porn. It found the teacher guilty of four counts of exposing children to pornography, each count of which carries a maximum penalty of 10 years in prison.

So why did the court exclude any arguments and evidence related to malware? Because the defense attorney failed to inform the prosecution of his planned malware defense prior to trial, as required by the rules of procedure. Accordingly, because the defense failed to raise the defense before trial, it was forbidden to raise it during the trial.

This illustrates why the duty of competence is the most fundamental of the professional responsibilities. This teacher is almost certainly innocent, and the defense prepared would probably have cleared her, but the defense attorney failed to meet a deadline, or failed to prepare an adequate brief. Because her attorney screwed up on a seemingly picayune filing requirement, the teacher now faces up to forty years in prison and her professional life has been ruined.

Attorneys have to be familiar with a web of rules governing their relationship with their clients, covering confidentiality, conflicts of interest, duties to the tribunal, and so on. But the most fundamental is the duty to be competent. Making a stupid mistake like this can cost a client dearly.

Posted by Zach at 03:37 PM | Comments (5)

January 10, 2007

Fun Tax Law Fact of the Day

A significant portion of today's tax class was spent on Section 67 of the Tax Code, the 2-Percent Floor on Miscellaneous Itemized Deductions. Pursuant to that discussion, we learned that all deductions applied to Adjusted Gross Income are placed into two categories. These deductions are either classified as "Miscellaneous Itemized Deductions" or else they are classified as "Other Itemized Deductions."

This discussion proved revelatory. I plan to employ this binary classification scheme throughout my life from now on. Everything in the universe shall hereby be classified as either Miscellaneous or Other. For example, my computer mouse is Miscellaneous, as are my earmuffs, but my laptop is Other. My Wii is clearly Other, but my television is Miscellaneous. My left glove is Miscellaneous but, interestingly, my right glove is Other. I could go on like this for days!

Posted by Zach at 12:25 PM | Comments (0)

December 14, 2006

You May Not Care About the Law of Business Organization, but the Law of Business Organization Cares About You!

Oh, wait, no it doesn't.

Posted by Zach at 07:59 PM | Comments (0)

November 01, 2006

Still Not Mature

We're discussing Special Litigation Committees in Corporations. One of the overarching ideas in Corporations law is the Business Judgment Rule. The details of the rule aren't important, what is is that in notes you abbreviate it is BJR. When it comes to Special Litigation Committees, Courts in Delaware have to assess the business judgment of the SLCs and exercise their own independent business judgment. Which led me to write the following in my notes on Joy v. North:

"The court didn't trust the corporation's BJ, so it decided to perform a BJ of its own."

After writing that sentence, I re-read it and burst out giggling. This is not a wise move when professors are discussing important matters of business judgment.

Posted by Zach at 03:27 PM | Comments (2)

October 31, 2006

Rape and Formalism

This opinion by a Maryland appellate court has been making the rounds of the feminist blogosphere. Most of the responsa have expressed outrage at the decision, but sadly few have failed to actually read the case before leaping to very nasty conclusions about the judge who issued it. Of the four posts I linked above, only the last by Happy Feminist actually read the case and responded to its argument.

The brief, take-away point about the case: an appellate court judge in Maryland reversed a rapist's conviction, ostensibly on the grounds that, under Maryland law, once consent to sexual intercourse has been granted it can't be withdrawn. After the victim in this case consented once to sex it didn't matter how forcefully she tried to ger the defendant to stop, anything he did could not legally be considered rape.

Needless to say, this is repugnant. What's interesting is reading the case itself, because I believe the judge has actually done a very clever thing that might not be readily apparent. The ruling is still wrong, but I get the feeling that the judge, feeling himself constrained by certain guiding judicial philosophies, essentially did the best he could under the circumstances.

The procedural posture of the case was a challenge to a jury instruction by the trial judge informing the jury that consent to sexual intercourse could be withdrawn mid-coitus, and that continuing with sex after withdrawal of consent constituted rape. The defense appealed this instruction.

Looking to case law, the appellate court found Maryland's history surprisingly bare when it came to cases on this question. In fact, the only case that directly addressed the issue was Battle v. State, a case decided in 1980, and this question was only discussed in the dicta of that case (Dicta are the speculations and off-the-cuff remarks not strictly relevant to the facts at issue in a given case; dicta in cases are not binding, while the holding is). Nonetheless, Battle was decided by the Maryland Supreme Court, and its decisions are binding on appellate courts.

Judges of a certain persuasion would think little of deciding the question of law presented here de novo, determining what the law should be based on reasoning, social science, law from other jurisdictions, etc. The judge in this case is not a judge of that persuasion. This judge feels that judges ought only to make law when there is absolutely no precedent to work off of. He is, in that sense, a classic formalist jurist. What is important is following the precedents and maintaining fidelity to stare decisis.

However, if you read the case below the surface level, it is plainly apparent that this judge really loathes the decision he is handing down. He devotes several pages to discussion of the reasoning in Battle, which is heavily rooted in ancient Common Law commentators. The Maryland Supreme Court, in Battle, argued that Rape had been a common law crime prior to its incorporation by the state into a statute in 1976. Thus, the court had to look to the Common Law to determine how to define rape.

The court then quoted several 18th and 19th Century legal commentators. These commentators agreed that Rape was a form of property crime; women were properly to be considered chattel, owned by their fathers until passed to their husbands in the marriage ceremony. Rape diminished the value of the woman by deflowering her, making her less valuable in a marriage bargain and thus diminishing her worth to her male owner. Thus, consent was unimportant to whether rape had occured once there was penetration. At that point, the damage had been done and the woman's value could not be restored.

The appellate judge quotes this portion of the battle reasoning at length, throwing in bits about ancient Biblical conceptions of women as property and the role that conception played in the development of rape law. He then moves on to various other state laws, nearly all of which have ruled that consent can be withdrawn mid-coitus. And he wraps up by saying, "But, alas! My hands are tied and I must rule that consent cannot be withdrawn."

My feeling is that this judge felt the law was wrong, but also felt it wasn't his place to change it; the Supreme Court or the legislature had to do it. He therefore ruled according to what he felt to be an unjust law, but wrote an opinion that provides all of the opposition research needed for the Supreme Court to overturn it. He wrote this opinion explicitly so it would be appealed and the law changed throughout Maryland, rather than just in his department. And he did it in a way consistent with his personal judicial philosophy of adherence to precedent.

Of course, this is exactly the sort of case that shows the weakness of formalism as a judicial philosophy. It encourages moral cowardice, as judges choose to avoid making tough decisions by hiding behind precedent. We can only hope, at this point, that the Maryland Supreme Court does not play the same game.

Posted by Zach at 04:39 PM | Comments (0)

October 10, 2006

Cited

Law school takes regular people and turns them into boring people. Well, actually, let's be honest: law school takes boring people and turns them into more boring people. One of the principal means by which this transmogrification is accomplished is The Bluebook.

The Bluebook is jointly created by the editors of the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, and the University of Pennsylvania Law Review (Cornell is the only Ivy League law review not to get a piece of the lucrative citation action, because nobody likes Cornell). It provides style guidelines for citation of sources in law review articles and other legal documents. You would not thing that an explanation of how to cite sources would take too long. You probably got a brief explanation of citations in high school or college, with an explanation that fit on a sheet or two of paper. Naturally, so concise an approach to citation is inadequate in a legal environment. What are you going to do for all the odd and unusual documents that you will never actually encounter in your legal career? What is the proper citation format for a scribbling on a cocktail napkin by a Supreme Court justice? By a district court judge? By a law professor? What if it's a judge on a foreign court, like the Supremo Tribunal Federal (the highest court of appeals on constitutional matters in Brazil)? What if it's a beer mat?

The Bluebook answers all of the questions you could possibly have about citation with a mere 415 pages of rules, all in a compact spiral-bound volume. Here, for instance, is the first page on shortform citation:

More about Id. than you ever wanted to know! Including this useful tidbit:

Which is why I spent a large chunk of last night painfully checking to ensure that the periods after the id.s in a document with 350 footnotes were italicized. And that's before I got to the substantive part of the cite-check.

I offer, in conclusion, the following assertion: Knowing on sight the difference between an italicized and an unitalicized period makes you a boring person.

Posted by Zach at 09:53 PM | Comments (0)

Science and/or Technology

I am up at 4 in the morning reading In Re Cruciferous Sprout Litigation, 301 F.3d 1341 (Fed. Cir. 2002).

Once finished, I will be checking to ensure that it is properly cited in the article I'm editing for the Science and Technology Law Review. This involves, among other things, ensuring that the author properly states the holding, that the quotes are entirely accurate, that the citations point to the right pages, that the freaking periods after the Ids are italicized, etc.

I am not, as they say, a *happy camper*.

Posted by Zach at 04:11 AM | Comments (0)

October 09, 2006

Futility

From a BBC News article entitled EU 'has to slash business rules,' comes the following lead paragraph:

"The Dutch and Danish governments have issued a forceful plea for the European Union to adopt an aggressive policy on cutting red tape."

Further on, we learn that

"Both nations have embarked on schemes to simplify their business legislation."

...

"In a letter published in the Financial Times, the ministers point out that the Dutch and Danish governments plan to reduce administrative burdens on business in their countries by 25% between 2007 and 2010."

"It suggests that 'this systematic approach could also work in Brussels.'"

Thus, the solution to too much red tape is to adopt a firm policy on the reduction of red tape. Moreover, this policy must be embodied by a concrete system. A system controlled by rules, guidelines, and standards, given teeth by enabling legislation, and powered by hundreds of hard-working civil-servants, working tirelessly at the task of cutting the size of the civil service. Indeed, the only effective approach to cutting the size of the bureaucracy is the creation of a bureaucracy-cutting bureaucracy.

Some (and by "Some" I mean "I") might assert that, at this juncture, the EU at large is probably doing a better job of keeping its bureaucracy under control than The Netherlands and Denmark, simply by dint of not pursuing agressive red tape-cutting.

To be less snarky and more substantive, I'll point out that The Netherlands and Denmark are long on plans and goals and short on evidence of success thus far. I think cutting bureaucracy can be incredibly valuable, but it's not an easy thing to accomplish. Growing a bureaucracy is easy, but shrinking it is quite difficult. It's easy, and arguably necessary, to create more bureaucracy that has the goal of shrinking bureaucracy. It's far harder to keep that new bureaucracy under control, to make sure it's offering useful and practical suggestions, and to actually implement the red tape-cutting policies.

This is all a long way of saying: I would be far more impressed with The Netherlands' and Denmark's pleas for more bureaucracy reduction in the EU if they could offer a more tangible example of their own than a planned 25% reduction in business regulation by 2010.

Posted by Zach at 11:59 PM | Comments (0)

September 06, 2006

You be the Lawyer: Disadvantageous Disclosure

School has started again, so that means more law posts. Wheee!

This hypothetical comes from Professional Responsibility. As such, it's a moral/ethical question, rather than a strict "what do you think the law is here?" question.

Assume that you are a lawyer. You represent a young man who was involved in a car accident. You've been retained by his insurance company to handle his defense. Your client is at fault; of that there is no doubt. You're not even trying to go to court with this case, since your client would pretty clearly be found liable. So now you're trying to get the best settlement possible for him.

The plaintiff has been examined by his doctor, who estimates that his injuries amount to about $5,000 worth of damages. As a standard precaution you hire a doctor of your own to examine the plaintiff and make sure this assesment is accurate. Your doctor finds the same injuries as the plaintiff's doctor. Your doctor also finds something else: an aortic aneurysm. This is incredibly rare in a man of the plaintiff's age, and your doctor determines to a near-certainty that the aneurysm was caused by the accident. Fixing the aneurysm will be incredibly expensive; it will require an expert cardiac surgeon and will raise his medical bills to about $500,000. If the aneurysm is discovered by the plaintiff it will, without doubt, raise the cost of settlement commensurately. If the aneurysm goes uncorrected, it is very likely that it will kill the plaintiff within a few months.

Under the rules of evidence, you own the medical report produced by your doctor. Your doctor has not disclosed the aneurysm to the plaintiff, nor would he be expected to. The plaintiff's lawyer is young and inexperienced; he has neglected to request a copy of your doctor's medical report. If he did so, you would have to give it to him. Since he has not, you are under no obligation to disclose your discovery to him.

Your jurisdiction's code of professional responsibility do not require you to disclose in this instance. They do require you to provide the most zealous defense of your client possible. In fact, they specifically provide that disclosing confidential information, particularly if it damages the client's case, would violate your duty to your client.

If you disclose your doctor's medical report to the opposing counsel, you will almost certainly face disciplinary action from your state bar association. Your professional reputation will take a huge hit, it is likely that you will be removed from your firm, and it is possible that you will be disbarred. If you do not disclose, you will get a much better settlement for your client, and the plaintiff will probably be dead in a few months.

What would you, as a lawyer, do?

Posted by Zach at 02:03 PM | Comments (4) | TrackBack

September 03, 2006

Textbook Rolecall!

Because I am a huge dork, I've taken photos of all of my books for this semester. And now you get to look at them!

First, my Professional Responsibility books:

Examples and Explanations: Professional Responsibility

The Law Governing Lawyers, 2006-2007 Edition

Evidence:

Problems, Cases and Materials: Evidence

Federal Rules of Evidence, with Selected Legislative History and Case Supplement

Corporations:

Commentaries and Cases on the Law of Business Organization

Commentaries and Cases on the Law of Business Organization: 2005-2006 Statutory Supplement

Global Issues in Corporate Law

Criminal Investigations:

Comprehensive Criminal Procedure

Comprehensive Criminal Procedure: 2006 Supplement

Anthropology and the Law:

Anthropology and the Law Reader, Volume 1

Anthropology and the Law Reader, Volume 2

I know what you're asking yourself now: This is all very interesting, you are saying to yourself, but how much do all of these books weigh when stacked atop one another? Anticipating your query, I have already found the answer to this question, and will now provide documentary evidence of said answer:

A hair over 20 pounds.

Posted by Zach at 08:09 PM | Comments (6) | TrackBack

August 23, 2006

Exhale

And now I'm finally done with EIP, after 36 interviews. I'm happy to be done, though I'd be happier if I were sitting on a few more callbacks right now. In any case, I finished at 4:30 today. I was invited to two firm receptions this evening, and was theoretically planning to go see Rigoletto performed by the Metropolitan Opera in Central Park. Instead, though, I think I'll just sleep...

Posted by Zach at 06:18 PM | Comments (0) | TrackBack

August 17, 2006

Four Interviews Down...

...Thirty-one to go. Six more tomorrow, including one of the ones that I'm really interested in. Now, back to researching firms so I'll have interesting and insightful questions to ask tomorrow...

Posted by Zach at 10:52 PM | Comments (0) | TrackBack

August 14, 2006

...And While I'm At It

I suppose, while I'm thinking about it, I may as well give my unsolicited advice for incoming law students.

Paradoxically, the only advice I can give is not to listen to people's advice. Everyone's full of ideas on how to succeed, either because they did X and it worked for them, or because they didn't do X, things didn't work out, and they figure that if they had done X things would be better. The thing is, everybody's different, and things that work for some people won't for others. I don't highlight, underline, or otherwise mark my books, because I find it distracting. But I'm way outside the norm on that.

So my general advice, which you're obviously free to ignore if you choose, is to basically do whatever it is that you did that got you into law school, but do it somewhat harder. Don't kill yourself, but realize that this is more difficult than undergrad. Don't waste too much time thinking about how well your classmates are doing, because you can never really tell and you're likely to drive yourself crazy with paranoia. Realize that every class is graded on a curve, which means that, regardless of how difficult the material may be, all of your classes are equally hard. It doesn't matter that Torts is a pretty easy subject; everyone else finds it easy, too, and you're only being graded in relation to them. This isn't to say you should focus on how your classmates are doing; it is to say that you should devote roughly equal amounts of time to all of your classes. It's not unusual to find yourself getting your best grade in the class you thought was the hardest, because you wound up putting all of your energy into studying for that class.

I only have one absolutely 100% solid piece of advice, applicable to everyone at every law school at all times: Buy Glannon's Examples and Explanations in Civil Procedure. Buy it along with your casebooks, and read it from the first week. It will make your life much, much easier. It's not perfect, insofar as it has notable holes and weaknesses in a few areas, but it'll make things fit together for you in a way that you almost certainly won't get from your casebook.

Posted by Zach at 01:48 AM | Comments (6) | TrackBack

Damned Kids!

This afternoon I performed a valuable service AND officially assumed my role as an upper-division law student! I was browsing through the books I might have to buy, depending on how classes shake out, at the student book store. A woman was looking through the various casebooks. She grabbed a Legal Methods book.

"Are you a 1L?"

"Yes."

"Ah. You in Sovern's Legal Methods class?"

"I am."

"Let me give you a free piece of advice: Even though they're listed as Required, The Ages of American Law, Legislation, and Legislation and Statutory Interpretation will never, ever be used in your course. You won't even open them. I mean, you may glance through them, but you'll never discuss them in class, and once things get started you'll be so busy with the required reading you won't bother with them."

"Huh. Alright, thanks! Still, though..."

"I know, you're thinking of buying them anyway, because you're going to try really hard and do all the reading. But this leads to my second piece of advice: don't burn yourself out in Methods. It's a pass/fail course that everyone passes. Essentially all of the useful information comes in the first night's reading, when the book gives a brief overview of the American judicial system. Other than that, you might develop some useful study skills, but otherwise you're just spinning your wheels."

"Yeah, I've heard that a lot."

At that point I decided to leave her alone and give her the privacy to go ahead and buy the three books I warned her not to buy. Every year 2Ls give the 1Ls the same advice ("Don't buy all the books! Don't worry too much about Legal Methods!") and every year the 1Ls ignore it. I know because I did the same thing last year. Oh well. Nobody realizes the 2Ls were right until after it's too late to take their advice.

And yes, I'm completely aware that I was just an obnoxious guy in the book store dispensing unwanted advice. Yet my advice was almost certainly accurate and, if she'd taken it, would have saved her $70. So I feel at least somewhat justified in my kibbitzing.

In other news, Orientation is apparently two days this year, where it was only one last year. What are they going to do with two whole days of orientation? Maybe I should drop in tomorrow and see if I can't catch the re-run of the Dean's Welcoming Speech that I missed in its original run last year...

Posted by Zach at 01:22 AM | Comments (0) | TrackBack

May 24, 2006

Courses of Interest

Well, the pre-registration window has opened, and I've got a month to pick the classes I'll try to sign up for next semester.  From what I understand, picking the courses involves choosing ten courses plus ten alternates (there can be duplication between the alternates and the choices). 

It works something like this: Say you pick Course A as your first choice with Course B as an alternate.  You select Cource C as your second choice.  When your lottery number gets pulled, they check to see if there's room in Course A.  If there isn't, they check Course B.  If there's no room there, they go to Course C, and so on.  On the other hand, if there is room in Course A, you get put in Course A.  When they go to the next round in the lottery, they start with your second choice, Choice C.  Choice B is cut out because it was your alternative to A, and you got A.  This is why they allow duplication; if you really want to get into A and also want to get into B, you can set A as your first choice, B as your alternate first choice, and B as your second choice so that you're still trying for B even if you get A, and so that B is the first thing you try for if you can't get A.

This is all a wordy way of saying: Columbia Law's course selection system is incredibly dumb and poorly handled, and it is to their ever-lasting discredit that they have a course registration system that is inferior in every conceivable way to that implemented at UC Berkeley, a huge state school with about 40,000 students. 

But that's neither here nor there.  I'm browsing through the curriculum guide and will be using the rest of this post as a note to myself about what classes look interesting.  So, classes I might want to take (note that this includes both classes I'm interested in taking and classes I don't want to take, but kind of have to thanks to the Bar/desires of future employers):

Administrative Law

Anthropology and the Law

Antitrust and Trade Regulation

Copyright Law

Corporations

Criminal Investigations

Employment Law

Environmental Law

Evidence

Federal Courts

Federal Income Taxation

Ideas of the First Amendment

International and Comparative Criminal Law

Intensive Professional Responsibility

Jursiprudence of War

Labor Law

Law and Educational Institutions: Issues of Authority

Law and Educational Instituions: Equity Issues

Law and Legal Institutions in China

New Forms of Public Interest Advocacy

Patents

Professional Responsibility

The Connection of Law and Literature

Trusts, Estates, and Estate Planning

State and Local Government Law

Seminar on Biblical Jurisprudence

Seminar on Big Cases: Tactics and Strategy

Seminar: Black Letter Law/White Collar Crime

Seminar on Church and State

Seminar on False Advertising

Seminar on Legislative Drafting

Seminar on Liability and Insurance

Seminar on Mental Health Law

Negotiation Workshop

Seminar on Problems in Legal Philosophy

Seminar on Public Benefit Laws in Changing Times

Seminar on Regulating Sex and Sexuality

Seminar on Reproductive Health and Human Rights

Seminar on Sexuality, Gender, Health and Human Rights

Well, that's all I see so far.  Note: I know this is more classes than I can sign up for, and I know that there's no way I'll get into some of these classes.  This is just the Big List of all the classes I could possibly be interested in. 

Posted by Zach at 04:44 AM | Comments (2) | TrackBack

May 11, 2006

In Soviet Russia, Blackacre Owns You!

(Title stolen from my friend Courtney's away message)

Theoretically, I should be studying today for my Property Law final. Instead, however, I have decided to gamble on the coming of the inevitable Socialist revolution before then. What's the point of learning Property Law when the State owns everything?

In that spirit, I say "Come, Comrades! You've only twenty hours left to seize the means of production and abolish private property before I have to take this final!"

It's a tricky thing, this coming Socialist revolution. You don't want to leave a paper trail indicating any kind of support for the Bourgeois Capitalist property system. More to the point, you don't want a bunch of exams lying around on professors' hard drives discussing schemes of private ownership of property; your very knowledge of the system makes you objectively pro-Capitalist. That isn't the kind of thing you want the prosecutor waiving around at your public show trial, I'll tell you what. No, if you want to avoid the purge, it's best to get the Party Line straight well in advance and make sure you don't write anything deviationary. With that in mind, the only logical course of action (according to the only logic worth using, Revolutionary Socialist Logic) is to anticipate the coming revolution in my Property Law exam, regardless of whether it has occurred yet.

In that spirit, I offer a few model answers to past exam questions given by my Property Law professor. Note that these answers might not have gotten good grades, or even non-failing grades, if graded by my professor. I remain confident, however, that such answers will garner full marks once reviewed by the Committee on The Correction of Bourgeois Historical Falsehoods, and that I will receive my proper A+ distinction for them once the dialectic has progressed to its next stage.

True or False. For False answers, give a brief explanation.

1. A license is inherently and always revocable.

False. The very idea of a license is foreign to the Socialist state. Because there is no such thing as private property, the idea that an individual could control the use of a piece of land or other property through the grant of a license is unfathomable. All may use all property at all times, and they require no license to do soe.

2. O gives $1 million dollars to Columbia Law School, so long as Property is not taught in the first year. Columbia has a fee simple subject to a reversion in O.

False. Columbia has nothing. If O is attempting to influence Columbia's instruction through blackmarket transactions, it is the university's duty to report O as a subversive element to the appropriate Party Committee, or else they risk a purge of their entire institution for Right Deviationism.

I am fairly confident in my mastery of Marxist-Leninist Revolutionary Theory, and should be able to give an ideologically correct answer to any question posed. There is no need to wish me luck; the socialist revolution is a historical certainty proved by the revolutionary logic of the dialectic. I only hope it will come in the next 20 hours.

Posted by Zach at 02:27 PM | Comments (1) | TrackBack

May 05, 2006

Con Law Done!

Gah, Con Law. It was a 24 hour take-home. I picked it up at 2 PM yesterday. I turned it in just before 1 PM today. I spent 22 of the intervening 23 hours working on it. Man, that was a crazy final. But now I'm done. I have ceremonially moved my Consitutional Law folder in OneNote from the Current Classes folder to the Old Classes folder. Whee! Only Rule of Law, Property, and the writing competition stand between me and freedom.

For those interested, here's the gist of my Con Law final questions. Note that there are more details in the final; the actual final was about 7 full typed pages.

1. There's this college, very elite, a state school. They didn't accept women until 1962. Until then, women all went to a women-only sister school. Now they do accept women. Lots of them. So many, that the class make-up this year is 59% women and 41% men. This seems to be a product of fewer men applying to college, or something. Noone really knows. But they're worried because, once a school's sex alignment gets too far out of whack, students get less interested in the school and the applicant pool gets smaller, and thus lower in quality. Anyhow: They decide to implement Affirmative Action for Men. They use a point system for admissions, with different GPAs and SAT scores giving certain points for hard factors, and then up to thirty points for soft factors. They decided to give all male applicants a bonus three points for soft factors. As a result, the new incoming class is 49% men, 51% women.

You're approached by a young, successful woman who applied to the school and was denied admission. Analyze her chances of winning a claim that that the school's admissions program violated her Equal Protection rights.

2. In an attempt to increase the rate of organ donations, your state has just passed a law declaring all internal organs the property of the state upon death. That is, from now on, whenever somebody dies, the body becomes the property of the state until any healthy organs can be extracted. After the state has no more use for your body, it will be returned to your next of kin for burial or disposal. The state Shinto society objects to mandatory organ donation, as it violates a number of their death rituals. They come to you. Assess the various paths you might use to attack the law's constitutionality.

3. This Fall, the Democrats sweep into controll of Congress. They immediately start a constitutional food-fight with the President. In a rider to a mandatory debt-limit raising bill, they attach a rider that 1. abolishes the position of Secretary of Defense and fires the current holder of the office 2. Establishes the new position of Secretary of Peace, which has the exact same duties as Secretary of Defense, and which will have all of the same personnel, but will need a new Secretary to head it. 3. officially repeals the Authorization for Use of Military Force in Iraw. 4. Declares that the Defense department may not spend any money that has been or will be appropriated in the future on offensive operations in Iraq; only spending on immediate, rapid withdrawal of military forces will be tolerated. 5. Anyone, including armed forces members, in any way injured as a result of the violation of the previous provisions has a cause of action, for triple damages, against anyone involved, directly or indirectly, in violating that provision, including the highest civilian supervisor of the armed forces, but not including the President. Any previous immunities to lawsuit are hereby lifted. 6. You can bring this suit in any court, state or federal.

President Bush signs the bill, because they need to raise the debt ceiling. But in doing so he issues a signing statement saying that he refuses to comply by its unconstitutional terms, he considers every part of the relevant section null and void, but that out of respect for Congress the Secretary of Defense will now be known as the Secretary of Peace. Donald Rumsfeld remains defiance and continues offensive operations against insurgents in Iraq.

The day after the signing, a young private is killed in Iraq during a raid on an insurgent hideout. They day after, your parents come to you asking to sue Donald Rumsfeld for triple wrongful death damages in Massachusetts Superior Court. Explain to them all the constitutional problems that bringing such a claim would raise.

Posted by Zach at 08:53 PM | Comments (0) | TrackBack

May 03, 2006

(One of)The Reason(s) that Law Students are Basket Cases

Since it's in the midst of finals and I'm in a very brief inter-final period (Crim's in-class final was yesterday from 10AM to 2PM, tomorrow morning I'm picking up a 24-hour take-home final for Constitutional Law) I thought I'd take a moment to post about grades and their peculiar impact on the mental and emotional state of law students.

Let me start by explaining the material elements that form grades in law school classes. This is actually really easy, particularly for my classes this semester. Final grades are computed by taking into account your individual grades in a number of assignments and tests, as well as your overall in-class performance throughout the semester. Each element is weighted according to how important the professor thinks it is. The following, then, are the possible elements that could go into computing a law school grade:
1. The Final.
2. There is no 2.

This is all a fancy way of saying that, generally, your entire grade in a law school class comes from the final. In most classes, the only feedback on how you're doing that you'll ever receive from your professor is in the form of a single letter, with a plus or minus distinction, on your report card three weeks after the class is over. Most classes have no TAs or discussion sections, most classes have no practice assignments or other ways to get feedback on your understanding of the material. Nobody has any idea of how they're doing until they're already done.

Now, I used some qualifiers above, but they're not significant. Some classes do have discussion sections, always optional, taught by upper-division students with a dubious understanding of the material and an even more questionable prowess for pedagogy. Some classes give written assignments, inevitably graded by the same upper-division TAs who will provide feedback that may or may not be useful. If classes do give written assignments, they either will not count toward your grade at all or they will provide a push-factor in the unlikely event that your final leaves you on the cusp between two grades. Since roughly 3 or 4 students out of 100 will find themselves on said cusp, and since it is unlikely that any of them will have done notably well on their assignments, the chances of your assignment actually altering your grade are virtually nill. Occasionally professors will use class participation as a similar push-factor for borderline grades; if you contributed during the semester in a way that was insightful enough for the professor to take note, you might get pushed to a higher grade level if you're on the edge. The same problems with assignments-as-push-factor applies, except that it's even less likely that a professor will remember your verbal contributions to the class. Finally, some classes assign papers or use class participation as an actual percentage of your grade; in all of these cases the weighting will be 90% Final, 10% participation or 95% final, 5% two written assignments. In other words, the final is so dominant in the weighting that the papers/participation are de facto borderline push-factors. (Also, in the interest of making sure I've left noone out, some crazy Marxist professors who hate America will grade you entirely on the basis of papers. If this occurs in a first year course, the course will be an elective in which the entire organizing theme of the course will be "Everything that's wrong with the law and why all you students are evil for failing to be part of the solution, and therefore are part of the problem." Any advantages gained by not having a final will be more than lost by having to put up with the professor for the entire semester. Moreover, the professor's paper-grading will be just as random and arbitrary as your other professors' final-grading.)

So your whole grade comes from the final and generally you have no idea how well you're doing until courses are done and you've gotten your grades. The other major reason law students are basket cases is how exam performance is translated into final grades. Law School classes are graded on a strict curve. Everyone takes a final and the professor grades it in her own idiosyncratic way, assigning a number score for the total exam. All the students' grades are entered into a spreadsheet, they're sorted from highest grade to lowest, and from there grades are determined. At Columbia, assuming a class of 100 students, the top 8 students will get As. The next 12 students will get A-s. The next 35 students will get B+s. The next 35 students will bet Bs. The remaining 10 students will get B-s. It is possible to get a C, a D, or an F, but they're not built into the curve. You have to have done something notably and outlandishly wrong, or betrayed a fundamental misunderstanding of the material, to get below a B-. (Inevitably, now that I've said this, someone who has gotten less than a B- will read this and get very angry. I apologize in advance. I do not, however, apologize to those who might read this and say "I haven't actually GOTTEN a C, D, or F, but I'm so incredibly behind in studying for _____ Law that I just know that I WILL get a C, D, or F." This is symptomatic of the basket-caseism that is the plague of all first-year law students.)

So you not only have no idea how well you're doing in understanding the material, your entire grade is based, not on some objective measure of how well you know the material, but on a more subjective comparison of how well you know the material to how well all of your fellow students know the material. This leads some (that is, all) law students to eventually make a fairly simple deduction: I can't tell how well I'm doing in understanding the material, but I can maybe get a sense of how I compare to other students in understanding the material. Down this road lies madness. This sort of thinking leads to studying arms-races, where students produce larger and larger outlines and spend 36 hours straight in the library, because if the guy in the study carrol next to me goes home later than I do, he'll have done more studying than I did and will do better on the exam than I do, which will make my grade lower. And of course the guy next door is thinking the exact same thing about me.

There is another factor. It is well known that, at Columbia Law, everyone gets a job when they leave school. Everyone. Not only that, everyone gets a good job, defined as a job that pays six digits as a starting salary, or a job that's notably prestigious (a judicial clerkship that will likely lead to a six-digit salary), or a low-paying job at a non-profit or politically activist organization that is highly competitive and thus hard to get (working at the ACLU, for instance). Everyone gets a good job, regardless of grades. Once you've gotten to Columbia, the difference in life outcome based on your law school grades will be negligible at best. Moreover, you'll note that the curve is designed to give lots and lots of people Bs and higher, and almost noone anything so low as a B-. In theory, everyone should be pretty much indifferent about grades.

But they aren't, and they aren't because of iron-clad laws of mathematics: Only 10% of a given student body can be in the top 10% of the class. This is unfortunate because, at a school like Columbia, 100% of the students are accustomed to being in the top 10% of their class. This leads to a general feeling that if you don't get at least an A-, that is, if you aren't in the top 20% of an exceptionally bright and hard-working group of students, you're an incompetent moron.

And so we have finals, when everyone goes batshit crazy studying in the hopes that their batshit studying is more batshitty than at least four out of five of their fellow students.

And here I am, biding time until my take-home Con Law final tomorrow. I should probably be going batshit studying at this point, but... eh. Maybe posting on blogs is the key to great law school grades. It seems as reasonable a theory as anything else I've heard.

(Lawyerly Disclaimer: In the above, any mention of "law school classes" or discussion of how law school classes work should be taken to apply only to first year law school classes. My understanding is that things generally work much differently in upper division classes.)

Posted by Zach at 06:50 PM | Comments (10) | TrackBack

May 02, 2006

Pre-Exam Giddiness

I am now sitting in my desired seat in the room of my final. I am alone. I was the first to arrive today. I got here 2 hours before my 10 AM final. This just confirms what my mom always told me: I'm the coolest kid in school.

Something I thought was funny as I read through the MPC before bed last night:

Model Penal Code

Part II. Definition of Specific Crimes

Article 210. Criminal Homicide

...

Section 210.4 Negligent Homicide

(1) Criminal homicide constitutes negligent homicide when it is committed negligently.

And for those interested, I'll officially be done with Criminal Law at 2 PM today (11 AM Pacific). Woo!

Posted by Zach at 08:14 AM | Comments (0) | TrackBack

May 01, 2006

Statutes; Apathy

You know what I just realized? I love statutes. I loved the Federal Rules of Civil Procedure when I was memorizing and cross-referencing them for Civ Pro last semester, and I love the Model Penal Code. I get excited every time I look up a provision and carefully parse the words of the relevant subsection. I love saying "According to the MPC, section three-point-oh-four-parens-two-parens-A-parens-two-parens-three, you may justifiably use force to protect yourself against the occupier or possessor of property whom you know to be using force upon a claim of right to protect that property, provided that you believe that the force you deploy is necessary to protect yourself against death or serious bodily harm." Hopefully this will translate to facility interpreting the Model Penal Code on tomorrow's Criminal Law exam. Of course, since a huge part of the joy I get out of citing the Model Penal Code is the way the numbers, letters, and parenses role of my tongue in a melodious fashion, I'm a bit worried that this peculiarly verbal joy won't provide me with directly applicable skills on my exam.

Also, I believe a good sign that I've been doing too much studying is that I've begun altering my MPC citations to be about poking Kelsey in the tummy, e.g. "According to the MPC section two-point-oh-poke-parens-Kels-parens-tum...". Usually I only do this to lyrics of songs I have stuck in my head.

Finally, this is blog post number 333, which means I am officially invoking an intervention by Ralph, Demon Prince of Apathy. Of course, Ralph, being Ralph, doesn't give a fuck.

Posted by Zach at 09:51 PM | Comments (2) | TrackBack

Mistake

One of the more interesting, and confusing, aspects of the criminal law is the way that it deals with mistakes. It's actually reasonably consistent and makes sense, but in order to attain that consistency the law has to be somewhat complex.

Basically, there are two kinds of mistake: Mistakes about the law and mistakes about the facts. And for our purposes, there are two major crime categories to examine with respect to mistakes: Actual crimes and attempted crimes. Whether mistake will be an excuse depends on whether it was a mistake of facts or a mistake of law, and whether the crime succeeded or was merely attempted. Broadly speaking, if a crime actually occured a mistake of facts can get you off; a mistake of law won't. On the other hand, if a crime was merely attempted, a mistake of facts won't save you, but a mistake of law will. This sounds confusing and contradictory, but it makes sense

To start, understand that a crime generally requires two elements: an actus reus and a mens rea. An actus reus is a criminal act, the thing in itself, the real-world action that we have labelled criminal. Mens rea is a guilty mental state. You have to have been thinking culpable thoughts as you commited the actus reus in order to be guilty of a crime. A simple example: I am standing at the airport, and have set my bag down. I'm looking around for my gate, slightly lost. You walk by, casually pick up my bag, and walk off. I turn around and notice it's gone. Taking my bag was an actus reus; it's my property, and you took it without my permission. This is all very objective and easy. You've committed all the action you need to be guilty of a crime. But! The crime of theft isn't simply taking another's property, it's knowingly taking another's property. Suppose that you have a bag just like mine. You set it down somewhere else to go ask a directions to your gate. Thinking my bag was yours, you picked it up and walked off. Even though you committed the act of taking someone else's property, you didn't know you were taking someone else's property. You lacked a culpable mens rea, so you're not guilty of a crime.

And that's a classic example of a mistake of fact. The rule is that you're not guilty if you wouldn't have been guilty if the circumstances had been as you believed them to be at the time. At the time, you believed the bag was yours. If the bag had been yours, you wouldn't have been guilty. Therefore, your mistake of facts exonerates you. To complicate things, suppose you made a mistake of fact, but still had a guilty mens rea. Suppose you know a guy flying out of town named Jim who has a bag just like mine. You came to the airport to steal Jim's bag. I look like Jim from behind, and you thought it was Jim's bag. You stole it, only to discover you got the wrong bag. In this case, your mistake of facts doesn't exonerate you. Again, the court asks "if the world were as the defendant believed it to be, would she have been culpable?" You believed the bag was Jim's. If it had been Jim's and you had taken it, would you have been guilty of a crime? Yes. So a mistake of fact can generally get you off, but not always.

But mistake of law will almost never get you off. Suppose you've just moved to a state where it's illegal to buy alcohol on Sundays. You don't know about this law and somehow manage to buy a six-pack of beer without anyone telling you about the law (leave aside the improbability of finding a place that will sell you alcohol on Sunday without your realizing that it's some sort of black market transaction). You're arrested and plead that you made a mistake. Here, you made a mistake of law, not of facts; you didn't know what you were doing was illegal, but you knew that you were buying beer and that it was Sunday. The courts don't care. Ignorance of the law, as they say, is no excuse. The reasoning behind this rule is that if you could get off by not knowing what the law is, everyone would have an incentive to keep themselves willfully blind to the law. That's no way to run a well-ordered society. Moreover, citizens, the courts have decided, have an affirmative duty to apprise themselves of the law and conduct themselves accordingly.

Nonetheless, it is possible, though unlikely, to get off by arguing mistake of law. If a statute specifically requires a knowing violation of the law, failing to know the law prevents you from having the necessary mens rea. This presents a really tricky question with respect to modern regulatory statutes. A lot of times Congress will punt to administrative agencies to make their rules for them, and they'll pass laws saying, "We give authority to the Department of Such-and-Such to make all rules regulating gobbledygook. Anyone who knowingly violates the Department of Such-and-Such's rules on gobbledygook is guilty of a Class Q Misdemeanor." The crime is "knowingly violating the rule." So if you take an action that violates the rule, and know that you're taking that action, but don't know what the rule is, did you knowingly violate the rule? The Supreme Court's answer is: Maybe. About half the time they've said "Yes, that is a violation," and the other half they've said "No, it isn't." It seems to depend a lot on how obscure the regulation is and how reasonable it is for this particular defendant to know what the law is. Complex regulations of the importation of various metals: the companies are liable whether they know the regulations or not, because they're businesses in that field and can be expected to familiarize themselves with the law. Complex regulations of the use of food stamps: families aren't liable if they don't know the rules, because it's unrealistic to expect an impoverished family to understand a complex set of regulations like that.

You can also generally argue Mistake of Law if it's a very new law that hasn't been promulgated publically, but that's pretty hard to do these days when government printers can publish laws as soon as they're passed. Finally, you may get a mistake of law defense if you've personally inquired of the highest interpreter of a given law, rule, or regulation and they give you a bogus interpretation. So if you write the state Attorney General and ask whether it's alright to buy beer on Sundays, and he writes back and offers the official interpretation, "Sure, why not?" you can use that to argue that your mistake as to the law was fully justified, since you relied upon the official interpretation of the highest enforcer of the state's laws. Note that this has to be the highest interpreter (your local cop's opinion doesn't matter), it has to be an official opinion (something you overheard at a party won't work), and the law can't have changed materially since you got the interpretation (if you got the Attorney General's opinion last week, and the legislature passed the No Alcohol on Sunday Law this week, the Attorney General's opinion is no longer operative).

That covers mistake with respect to actual crimes. What about mistake with respect to attempted crimes? Here the presumptions are reversed: mistakes of fact generally won't save you, but mistakes of law will. Again, buying alcohol on Sunday. You know it's a crime, but you decide to go ahead and do it anyway. You march into a liquor store, grab a six pack, and openly and nefariously present it to the cashier. He makes the sale and you walk out, only to be arrested. The cops take you to the interrogation room, you waive your 5th Amendment rights, and you brag about buying the beer. "Sure, I wanted to buy beer. It's a stupid law and I'm going to violate it every chance I get until they change it!" But it turns out that you screwed up. In the midst of your heroic violation of an unjust law, you accidentally picked up a six-pack of non-alcoholic beer, which is completely legal. So you knew what the law was and you consciously chose to violate it, but you failed because of a mistake of fact. Guilty?

According to the Common Law and the Model Penal Code, yes. Again, we examining the world as you believed it to be. You believed the beer was alcoholic, and that it was Sunday. You bought it anyway. If that had been how things were, you'd have been guilty. Therefore, you're still guilty even though things weren't as you thought.

So what about the requirement of an actus reus? You've got a guilty mental state, but not a criminal act attached to it. That's where the law of attempts comes in. You're not just guilty if you commit a crime, you're also guilty if you attempt to commit a crime (though you'll generally be punished at a lower level). Attempts, though, also require an actus reus; it's not enough to just think about committing a crime, you have to do something about it. What acts are necessary to constitute an attempt is a matter of considerable debate, and different states have different standards, but generally you need to have taken a substantial step towards committing the crime. In this case, you've done everything you need to commit the crime, if the world had been as you believed it to be, and therefore you've committed all the actus reus you need to in order to be guilty of attempted purchasing alcohol on a Sunday.

Finally, mistake of law for attempted crimes. Now suppose that you once lived in the state with the alcohol law, but just moved to another state that is less puritanical. Your new state has no problem with you buying alcohol on Sunday, but you mistakenly believe that the alcohol ban is enforced everywhere. But one Sunday you can't take being without alcohol any longer and decide to go buy some beer. You're surprised at how easy it is, but your guilty conscience gnaws away at you. After drinking the full six-pack, you decid