#essayp

[pappebrisco]

A passive aggressive comment may disguise itself as a joke, but such a joke is liable to fall flat. Worse, it can sting.

[pappebrisco]

My first trial starts next week. I’ll be doing direct examinations on 8 consumer witnesses!

[pappebrisco]

Been toying with the idea of getting a PhD. I believe I am insane enough.

I say so because I really really do like the ideas part of movement building. Now that I have proficiency in law, I have a good sense of the legal challenges (law is fake and judges are ghouls). But really, in short, our legal system is constitutionally incapable of performing the radical changes our society needs.

If political pressure ever gets too hot on an issue, there are plenty of ways to deflate the pressure. There are failsafes; minority vetoes (ie vetoes by the rich and powerful) are available at 1000 turns of the process.

On top of that, there are institutional reactionaries. There's police; there's oligarchs; there's thousands of state and municipal governments; there's the church; there's the media; there's the hegemony of capitalism.

My interest is in articulating a theory of "the association," or "the organization" that makes it legally distinct from, say, civic associations, labor unions, corporations, partnerships, churches, municipal governments, etc. What does it say about the functioning of our political economy that business corporations have license to re-order our lives more powerfully than neighborhood or workplace civic associations?

Anyway, I'm ambivalent about actually practicing law. I'll see what it looks like for a bit, in any event.

[pappebrisco]

This is for me.

Going to take my Labor Law final at the end of the hour.

It'll be my first in-person law school final since 2019. Back then I was fortunate to get A's for all my classes: Crim, Civ Pro, Torts, and Contracts I.

I'm confident I can get an A in Labor Law, too, but there are some confounding factors. The professor seems to be a lenient grader, likely to give out a bunch of baseline points to everyone. Normally, this is a good thing. But with the curve, it means that, assuming a lot of people get the easy points, then the top grades will be determined based on a few stray extra points.

Nonetheless, I'm feeling pretty prepared. I've run through two practice exams and the points I flagged tracked the model answers pretty well.

I'm also feeling pretty good about my Land Use final -- the last of my take-home exams (assuming there are none next semester). The one little thing I have left to take care of is wrapping my head around the Unconstitutional Conditions Doctrine as manifested in Koontz v. St. John's River Water Management District. Since there is little meat left to chew in the latter half of the semester following the mid-term, I'm certain we'll be tested on eminent domain, takings, exactions, and unconstitutional conditions. I'm pretty comfortable with Nollan and Dolan, and even Lucas and Loreto. But Koontz (and Alito) is wacky.

[pappebrisco]

Someone help me develop a theory on the culture of valuing/valorizing the job of issuing orders, or exercising dominion and control, as an executive function that merits compensation above that of those assigned to perform.

I'd argue this value system supports our intellectual property regime and complements the strategy by monopolists of using IP protections as anchors for monopolistic practices.

[pappebrisco]

Contracts

Freedom of contract is freedom to create private-law regimes by the assent of two or more bargaining parties. This is consistent with the classic definition of a contract as an agreement between two or more parties under which each agrees to be bound by the terms of the agreement. The rules of the contract are simply private laws, the breach of which may trigger damages.

The simplest contracts, for the sale of goods, have few contours and rules because they typically don't entail the formation of a long-term relationship.

But the deeper and more protracted the relationship contemplated by the formation of a contract, the greater the need is to address various circumstances that are certain to arise.

Contracts may be, as a rule, premised on unequal relationships. Human power is not equal to institutional power. While in theory, the parties to a contract are in a position to take advantage of opportunity costs, it is rare that anyone nowadays is on equal footing with the bargaining party on the other side. This is most obvious with employee-employer, landlord-tenant, and corporation-consumer relationships. The dominant party often has the aid of lawyers to draft, redraft, and redraft contracts. Firms, being fictional persons, and immortal persons, are at an advantage when bargaining with humans, whose time in expending labor power is never recoupable.

There are ancient doctrines from common law that aim to address what happens when unequal parties enter into contracts and the dominant party holds the subordinate party to unfair terms. There is "unconscionability," there is illegality, and there is harm to public policy (not an exhaustive list at all).

Firms, typically the dominant parties, end up creating private law regimes for the persons with whom they contract. The state of the law has insufficient remedies for when firms bind people to coercive contracts.

Courts have historically swung between prioritizing freedom of contract—and freedom to exploit vulnerable parties—and allowing for freedom of the weaker party to evade coercive agreements. We are now in a time where courts are more likely to prioritize freedom of contract as a cover for freedom of exploitation.

It doesn't have to be this way. We can recognize that there are power imbalances that allow exploitation and abuse. We can identify these abuses as they arise in their most common forms: in forced arbitration agreements, in NDAs, in non-compete agreements, in class action waivers. Freedom of contract for fictional persons like corporations, themselves a form of private government, means allowing private tyranny, to whatever extent our society feels is excusable at the time. But there are many ways that private tyrannies can be disestablished.

[pappebrisco]

Two of four finals done for my spring semester. The remaining are Evidence and Constitutional Law II (all about the first amendment).

I'll have more time in which to do the evidence exam because it's a take-home exam. Once I download the exam file, then a clock starts and I have 24 hours to finish the questions/essays inside. The con law exam is a timed, 3 hour thing on Tuesday. I expect it to be much more straightforward than the Evidence exam. The con law prof has been very forthright about what she expects us to know and what she expects us to say about things. The Evidence prof, on the other hand, has been very clear that he will be a bastard when it comes to his test. I will likely need every hour I can get to read and reason through all the questions, looking for traps with the most pedantic comb.

[pappebrisco]

Feeling Pretty Good

I’ll call it the middle of summer, even though July just started (just past midnight, morning of 7/7/20). I’m a few weeks away from the end of my summer internship. I had an interview go very well with a potential fall employer of much prestige. Fall is looking good and I think, generally, my future is looking good. 

(in contrast to much of the world, yes. I haven’t contracted Covid-19 to my knowledge, nor has the disease taken anyone I know at this time. And today the Trump administration issued a rule that visas will not be extended for students attending all-online schools in the fall: a cruel move guaranteed to cause havoc and pain across the country) (I was fortunate in 2017 when I started an apprenticeship that led me to this path of law school, in contrast with the rest of the world dealing with Trump’s inauguration - will the fascism campaign end?)

Back to me because I’m surviving. At my apartment with my brother, things are going pretty well. Finances are in order at least for the next year; Max has a job, though I am encouraging him to get a job for the city doing contact-tracing (because his current job is part of a network of restaurants subject to a boycott due to a racist dress-code policy). I’m very happy with my girlfriend and I like seeing her a lot through the week. She offered to take me to Ikea tonight. I declined in favor of getting groceries, but the potential trip got me excited.

I’ll round back to the interview. It has me excited because I think I have enough points to build a solid resume, especially by the time spring 2021 rolls around when I can apply for high level clerkships. Clerkships are like squiring for a judge. He/she has you do things for a modest salary, and as an added bonus: you get to learn how the court works, a thousand people trying to curry for the judge’s favor go through you, and big firms will offer you associate positions. So the story goes, anyway. It is  t h e  p a t h . How do I feel about my place on this path? Pretty good - assuming I can appropriately use my place for good. 

I know I can do a lot of good when I have (1) a license to practice and (2) freedom from crushing debt. Number 2 is optional, though - I can do a lot of damage and say “fuck the bills, I need to do what is right now, right now.”