Rule 1 of your First Year at Law School: Don't Talk About your First Year at Law School

To rip off an all-too often ripped-off phrase, that may be the most important lesson I've learned in my first semester at law school. Of course, one must come to this rule with certain priorities in place. If "academic achievement" comes before life, love, liberty, or the pursuit of happiness, then getting grades and talking law school up as much as possible is the ultimate goal, no other rules needed. But I've discovered that in order to maintain any kind of humane equilibrium (ie--a life, liberty, and the pursuit of happiness) certain rules must be followed at certain parts of your day. This first must be adhered to whenever outside of the law school. No matter what the recently admitted law student thinks, unless what he has learned that day at the law school is easily relatable to Matlock, Law and Order, or (for the older crowd) Perry Mason, no one gives a res judicata what collateral estoppel in its disfavored offensive usage implies in potential tort actions in the 9th Circuit of the United States. Really. No one cares. I think I once tried to explain to my dad the implications of a recent lawsuit regarding reverse-engineering software at Blizzard (makers of the ever-popular Warcraft series), and he followed me through all of the technical jargon, but once we hit the legal side of things, his eyes glazed over and he nodded at me until I stopped talking. Really, I can categorize people into two groups according to how they perceive legalese: the "Blah-blah-blahs," or those who maybe feign interest in the law-talking-guy in front of them, mustering a smile when appropriate and patiently waiting for him to talk about last night's episode of "The Office" or the "Bling-bling-blings" who, while bubbly, talkative, and overtly flirtatious, find comfort in their erroneous assumption that the more "legally" one talks the more "money" one makes, thus making whoever is in front of them the richest person they know. Seriously. Don't talk about law school outside the confines of your little world. Only in law school will battery without assault be funny because it's such a far-fetched hypothetical. Really. I promise

Post Christmas Nostalgia

Wow. Nothing can make you appreciate Holiday Break more than returning to school, realizing you have days where you're in class for upwards of six or seven hours without a break, that you have to start this whole damnable "Socratic Method" thing all over again with such winners as "Contracts" "Constitutional Law" and "Criminal Law," and that, wonder of wonders, Law School is still not "fun." Each day that passes by makes me yearn more and more for my undergrad days, or a year off to write a novel. Don't get me wrong, I've made some tremendous friends while here. The funny thing about Law students is that none of us really enjoy it here, nor would we ever claim to have some sort of affinity to the whole process. Yet, something binds us together, like the sticky residue of 7-Up on a football bleacher or the weird stuff on the back of Post-It notes. I'm still wondering what it could be that holds us together so well, and I think the most apt analogy might just come from HBO. Over the holiday, the History Channel ran a marathon of the series "Band of Brothers," based on the experiences of the "Easy Company" during WWII. At first, this seems to be a hodge-podge collection of rag-tags and army brats, farm boys and street rats. However, after going through the hells of battle during D-Day and well into the German surrender, this group came to love each other. Well, while it may not compare in scope and magnitude, anyone that has had to make sense of the Federal Rules of Civil Procedure and how it applies to Personal Jurisdiction simultaneously with a balancing of the intricacies of Future Interests and application of the Rule Against Perpetuities while trying to grasp the notions of Proximate Causation in Tort law knows what I mean. Thankfully, our adversity has drawn our class together. That's not usually the case (note: everyone I have ever talked to about law school has expressed their utter loathing of the competitive nature of the student body. I simply have not seen that in my class. Whether that remains after grades come out on the 19th is another matter...) My computer died today, and I considered holding a little viewing replete with Black CDs, Bagpipe Fugues and Professional Wailers. Unfortunately, I need my computer alive, so through some stroke of luck, lots of restarting, cursing, desperate prayers, and eventual pounding on the computer corpse, I lucked out and got the thing to work long enough to download the new driver I needed. All in all, a good day. Relatively Speaking, of Course.

Bless the Finals System

Nowhere, in no time, under no circumstances would anyone ever go up to a judge, give him a hypothetical suit involving crazed, drunk bus drivers, enflamed sheep, rock climbers, falsely imprisoned trespassing customers and a balding farmer and ask the judge to, without his books, clerks or any other written material, state the ruling common law, weigh both sides of the case and make the correct judgment according to the ruling law concerning every minute detail of the case within three hours. NO ONE. "That would be stupid" you say. Right you are, friend.

But, you may have guessed this already, that's EXACTLY what they try and do in Law School Finals: surmize whether or not one has learned the law, or at least guessed at what one's professor thinks the law is, and give the professor a close approximation of what the professor wants to hear. All in a frantic race to type more than the other guys sitting around one for the next 180 minutes. Yep. Exactly how it's going to be in the "real" world! Oh, and did I mention that this three-hour exam determines upwards of 95% of one's grade, or approximately the rest of one's professional life? The thought of being pidgeon-holed into a crappy career for the next 40 years because of my first year Torts final gives me the willies. But that very well may happen.

If that is the case, I will be leaving the state of Utah in early February, moving to my cabin in Montana and writing the next great American novel. Or at least a highly addictive children's novel that appeals even more to adults (in the vein of Harry Potter) and rake in the millions from Hebgen Lake. If, in fact, I pass my first semester of law school and end up in a government job, what's 40 years anyway? That's like 1.5 Kurt Cobain lifespans. Flashpan and a little smoke, and I'll be cruising the Mediterranean with the Mrs. with a sweet 401(k) and a handful of Roth IRAs. I aspire to then wear only brightly colored Hawaiian shirts tucked into my mid-thigh Khaki shorts, tied back with my leather braided belt, and my smattering of wavy silver hair kept safe from the breeze underneath my mesh-back baseball cap. To accompany me will be my trusty videocamera and my lovely 5th wife. (I have commitment issues, what can I say?) What a happy day that will be.

On a happier note, had a fun birthday. Weird, but 24 feels a lot like 23 did, as well as 22. Can't wait to get back to the SLC on the 21st.

Apocalypto--With every New Beginning there must be an Old Idea

And with that Old Idea, Credit must be given where Credit is Due An interesting thing happened as I was perusing the internet today. It seems like intellectual property is as fictional as the authors that cling to it in this internet-enfused world. Go ahead, and read this!! Mr. McCarthy, I loved your review of the film "Apocalypto," and just wanted to thank you for consistently producing such quality, in-depth reviews of the movies being produced in Hollywood. But as I was perusing through other reviews on the internet, I became concerned that another reviewer has potentially lifted ideas and even text directly from your own work, claiming it as his own. You can read the review at http://www.emanuellevy.com/article.php?articleID=3896. [For your reading pleasure here is the link to McCarthy's "Apocalypto" review: http://www.variety.com/review/VE1117932232.html?categoryid=31&cs=1] As an English major and current law student, I know how serious an allegation plagiarism can be, but I could not ignore the similarities to your structure, content, and even word choice. To make your life easier, I've set down text from your review and Mr. Levy's. Yours: "Chief among them is Jaguar Paw (Rudy Youngblood), an athletic young man who has long flowing locks, sports tattoos, designed body scars, large ear adornments and a sort of chin plug, and wears nothing but a well-fitted loin cloth." Levy's: "The saga’s hero is Jaguar Paw (Rudy Youngblood), a handsome young man with flowing locks, tattoos, and body scars, who wears a loin cloth." Yours: "These guys are more heavily decorated than the locals, with bones through their noses and elsewhere. Two members of what the press notes identify as Holcane warriors stand out: the leader, Zero Wolf (the supremely imposing Raoul Trujillo), whose left arm and head are festooned with human and animal jaws, and the sadistic Snake Ink (Rodolfo Palacios, fantastically hateful), who, restrained from killing Jaguar Paw by Zero Wolf, instead murders the captive's father in front of him, launching an antagonism that runs through the picture." Levy's: "The village’s tranquil life is abrupted by the attack of brutal marauders, Holcane warriros, who sport bones through their noses. Their leader, Zero Wolf (Raoul Trujillo), is accompanied by the sadistic Snake Ink (Rodolfo Palacios), who instead of killing Jaguar Paw, murders the captive's father in front of him, thus launching the yarn’s chief conflict." Yours: "With his surviving fellow villagers, Jaguar Paw is bound and marched off through the jungle, but not before he's secreted his very pregnant wife Seven (Dalia Hernandez) and little son (Carlos Emilio Baez) in a deep pit, promising, rather against the odds, to return." Levy's: "With his surviving fellow villagers, Jaguar Paw is bound and marched off through the jungle. Just before the attack, Jaguar Paw manages to hide his his pregnant wife Seven (Dalia Hernandez) and their young son (Carlos Emilio Baez) in a deep, dry well. He promises Seven to return before she gives birth, and miraculously he does. " Yours: "the prisoners later pass by a haunted girl with "the sickness" who warns about the coming "blackness of day."" Levy's: "In one of the film’s most bizzarre and haunting scene, while moving through the forest, the prisoners pass by a young girl plagued with "the sickness," who warns about the coming "blackness of day." The exact meaning of her doom propehcy is never explained." (My comment: he obviously didn't pay careful attention to the movie, because that prophecy does make sense with the total eclipse of the sun. Mr. Levy must have been busy reading/lifting your article at the time) Yours: "One notable aspect of the characterizations is the general attitude toward death. The Mayans as portrayed here naturally fear it like anyone, but they accept it, just as they acknowledge physical pain as an everyday aspect of life." Levy's: "Historians will have a field day with this picture, which takes liberty with facts and portrays the Mayans in a naive, idealistic way. They are peace-loving people who accept death and physical pain as integral part of their lives." Yours: "Production is a wonder. Dean Semler's camera moves relentlessly through the densest of foliage and over the roughest of terrain on locations near Veracruz and in the rainforests of Catemaco, with some additional shooting done in Costa Rica and the U.K.; Gibson clearly knew the impact the lenser of the second and third "Mad Max" films could deliver. More remarkable still is that pic was shot on the new high definition Genesis camera system. Without a doubt, "Apocalypto" is the best-looking big-budget film yet shot digitally; one can't tell it wasn't shot on film." Levy's: "The sets, costumes, makeup, body and hair designs are extremely elaborate and detailed. "Apocalypto" is one of the best-looking films to be shot digitally. As he proved in the “Mad Max” films, Dean Semler is an ace lenser, and here his camera moves restlessly and relentlessly through dense forest and other rough terrains. Accoridng to the notes, the picture was shot on locations near Veracruz and in the rainforests of Catemaco, with additional shooting in Costa Rica and the U.K.." (Yes, and apparently those notes were from your article.) Anyway, I'm always sickened by dishonesty of this sort, especially from someone who holds himself out to be on par with professionals such as yourself. It is completely up to you, but should you pursue further action, I'd love to be appraised of it. Again, thank you for your quality work, and best to you and yours in the upcoming holiday season! Eric Vogeler I know, I know, for those of you who have copied and pasted from the internet and tried to pass it on as your own work, I have news for you: That is dishonest and illegal. We just had a highly respected law student at BYU get expelled from the program with a permanent black mark next to his name for this. Plagiarism is bad. Plagiarism is a crime. Plagiarism is ugly, and it is pretty hefty to be throwing around here. I would hesitate to make some kind of frivolous accusation, especially after finding out that Mr. Levy is a professor of film and sociology for Arizona State University, but I just couldn't get over the similarities in these two reviews. It's hard to argue against Mr. Levy's credetians, but Mr. McCarthy is Chief Film Critic for Variety Magazine, and highly respected in his own right. Something fishy is going on... I'll keep you up to date as this all unfolds... Oh, and ps--finals week at the Law School sucks.

BYU Law: We Stay as Far Away From Campus as Possible

In fact, our building’s on the other side of the street, thank you. Provo is strange. I thought I’d let that hang in the air for a minute. In case that sweeping statement sounds somewhat arbitrary, let me remind you that I’ve lived in the Amazon Rainforest (motto: grow it really big, and hope it doesn’t eat you); I’ve worked in the highlands of Guatemala (motto: always carry heavy things on your head and a machete in your hand, just in case); I’ve backpacked through Europe (motto: …it smells like a rat, it looks like a rat…yep. It’s a rat); and I grew up with Timmy and Mikee Vogeler (motto: um…OK, we never had a motto). I know strange. But even with all that to look back on and compare with, Provo (motto: Date to Mate…It’s Not too Late!) makes the jungles seem, well, rather tame. One day at the “Cougareat” (motto: put lots of young Mormons together, shake, and watch them go!) I felt like eating Italian. After ordering a pepperoni calzone, the counter girl asked me if I’d like sauce on top of my calzone. Innocently, I said “I’d like some sauce, but could you put it on the side?” Apparently, a request like that in Provo borders somewhere north of Springville and just south of a marriage proposal. With starry-eyed glee, the sauce girl cooed “Sure, I can put that on the side for you. In fact, I can do lots of things, like give you a phone number….” Now, Grandma Vogeler didn’t raise me to respond to something like that. In fact, were she there, Grandma Vogeler would have muttered something in Norwegian about tact or lutefisk, or both. To be honest, I was tempted to as well. But, with my mind reeling and alarms going off in my head blurting “DANGER! NO WIN SITUATION!” the only thing I could think to say was “That’s fine, I’ll just have the sauce, thanks.” In my defense, I haven’t gone back since. I spend the majority of my days at the law school. Since my arrival, I’ve been treated to such advanced lectures as "Food, Water, and don't forget…Shelter!" and even "Spelling: What you Needed to Know, But Didn't Learn in Kindergarten." Because of these classes, I have learned that the letters J&D mean much more to the world than B&A, presumably because J&D come later in the alphabet. J&D command about a billion dollars per hour, where B&A only command smirks. Unsurprisingly, this monetary differential seems to be a somewhat motivating factor for both law students and female undergrads. One day, while wearing my law school sweatshirt on campus, I experienced the latter when a lovely young lady introduced herself, batted her eyelashes at me, and somewhere in the distance the words “Earning Potential” echoed softly on the breeze. On most days in Provo, though, I’m tempted to gently whisper my response: “Pro-Bono.”

What happened in October? Good Question

I realized this past month that "free time" is a concept that does not exist. While we may claim that we utilize the time unoccupied by other "important" things, even those hours that we use as "free" time may merely constitute discretionary time. This is the time we choose to either sit on a couch and watch football or sit on someone else's couch and watch football. (Or "The Office" or "Heroes," whichever may be more exciting/on at the time our discretionary time begins.) However, like the term "free agency," I would contend that nothing we do with our time is free from the consequences of our actions. For example, last week I took a nap in the early afternoon. While at the time, I felt my activity was free, it was only discretionary as I lay in bed until about 2:00 am trying to get to sleep. Definitely not free. Also, a couple of weeks ago, I tried to put off writing a paper (worth 80% of my grade) until late Sunday night. At about 4:00am Monday morning, I realized that all the discretionary time I had used in the weekend to "party" "meet girls" and "relax" definitely wasn't free. In fact, it came at a great price. With this in mind, I'd like to now comment that nothing may be more distracting, disgusting and irritating than chewing with your mouth open. Thank you, that is all. Eric

Here are my notes from today's Civil Procedure class. It probably makes more sense to anyone outside of law school than it does to me. Service on individuals within the U.S. (4(e)) 1. Pursuant to law of state where court located or service effected 2. By personal service, by service on legal agent, or by leaving copies at dwelling house/ place of abode w/ person of suitable age and discretion residing therein. Service on individuals in foreing country (4(f)) 1. Internationally agreed means: treaty such as Hague Convention 2. If none, or if permitted by treaty: in manner prescribed by foreign law as directed by foreign authority in response to letter rogatory unless prohibited by the country, personal service, or by certified mail Service on Corporations (4(h)) 1. Pursuant to state law, or by personal service on legal agent (w/ mailed copy if required by state law) 2. in foreign country, under 4(f)) Waiver of Service (4(d)) If copy of complaint & summons mailed to ∆, with reasonable time to return waiver (at least 30/60 days), extra copy of notice and request, prepaid means of compliance in writing: Costs of service imposed on ∆ if refuses to waive Not a method of service—just a cost-shifting incentive to waive formal service Due Process Standard for Service Mullane: method of service must be reasonably calculated to apprise ∆ of pendency of action and give reasonable opportunity to respond If Π knows or has reasong to know ∆’s identity and address, publication is insufficient and nothing less than mailing likely deemed reasonable Despite pennoyer, publication OK only if names unknown and not reasonably ascertainable Reasonableness standard balances costs / benefits of service, looks to business practices as “floor.” How great is that?! Makes you want to shrink from the mere possibility of a litigative career, doesn't it? Ahh...life