Friday, July 22, 2011

Friday Funday: Bar Review in my Closet

Okay, there are now four study days left until the New York Bar Exam.  I'll be taking the test on Tuesday and Wednesday, so I intend to hole myself up this weekend and cram as much material into my head as humanly possible.

This is me.  
Image from here.  Original creator unknown.  Inspired by this awesome post.

It seems as though studying for the bar exam has made it impossible for me to maintain a train of thought for longer than a few seconds without thinking of a bar exam question.  BF was trying to say something romantic to me last night, and he lost me a few seconds in because I couldn't remember the elements of the Babcock/Neumeier analysis for choice of law when it comes to loss distribution rules.

It's bad, you guys.

So then it's no wonder that, in order to justify spending the amount of time and mental energy required to develop a Friday Funday post (FUN time and FUN energy!  but still!), that it would have to tie in somehow with my studies.

Allow me to present to you...

Jewish Girl's In-Closet Bar Review

Assault:  Anthropologie's Taiga Oxford Boot

Assault is both a civil cause of action and a crime.  The civil and criminal charges both require a showing that the defendant (D) intentionally placed the victim (V) in apprehension/fear of immediate physical injury.  (Note the NY distinction:  in NY criminal law, "assault" is the same as common law battery---intentionally causing physical injury to another person.  The equivalent of a common law assault claim in NY would be called "menacing.")

These shoes, as I explained the last time I wore them on the blog, make me feel like a "crazed female Rambo" with their heavy-duty zippers and laces.  To clarify my point, I posted this little montage:

So tell me, readers, are you placed in immediate apprehension of a battery?  Given that these photos are posted online, you probably are not.  And even if you are, your apprehension has to be objectively reasonable, and a reasonable person with ordinary sensibilities probably would not expect to be immediately battered after seeing generally threatening (but comically so) photos posted on the internet.

You lose!  The boots win!

Attempt (MPC/Majority Standard):  J.Crew Collins Leather Platform Peep Toe ($100 here)

In criminal law, "attempt" is an inchoate (unfinished) crime requiring an overt act towards the commission of a crime beyond mere preparation.  There are two different standards for gauging whether the attempt was serious enough to be a criminal act in itself.  The first, followed in NY, is the common law standard of "dangerous proximity," which requires conduct that comes extremely close (dangerously proximate) to the commission of a crime.  Basically, this means that if you arrive at someone's house intending to burn it down, bring your gas can, and start pouring gas, and have matches in your pocket, then you're guilty of attempt.  If you arrive at the house but forget your gas can---no attempt.

These shoes, however, represent the approach taken in the Model Penal Code (MPC) and in the majority of states, that attempt requires a substantial step [towards the commission of the crime that corroborates the criminal purpose].  These shoes, with their 4" heel, certainly cause me to take substantial steps.

Waka waka waka!

False Imprisonment:  Anthropologie Mirror Image Belt

False imprisonment is both a tort claim and a criminal charge.  Although the elements of the criminal and civil charges are a bit different (and NY has two degrees of false imprisonment), the general idea is that D restrains V in a bounded space.

This huge, corset-esque belt most definitely restrains my midsection in a bounded space.  Of course, this belt would never be charged because it can defend by showing consent---I donned the belt and wore it all day, thus consenting to the belt's confinement.  Since false imprisonment requires that V be restrained without consent (or, in the tort action, without even the victim's knowledge as long as the victim is harmed by the restraint), the belt would surely prevail over me.

Mistake of Fact:  Outfit Triage "Bows Upon Bulk"

Remember this outfit?  Part of the reason it went horribly wrong is that I mistakenly believed that the striped top I'm wearing was blue and white, not black and white.  Fortunately for me, any mistake of fact---even an unreasonable mistake---will negate my criminal mental state if the crime requires a showing of purpose, knowledge, or recklessness.  If the crime requires a showing of negligence, then my mistake would have to be reasonable.  If the crime is a strict liability crime, then no mistake, not even a reasonable one, will excuse my actions.

So, the real question is:  are personal style faux pas a strict liability offense?

Oh yes, there's more behind the cut...

Exception to the General Rule that Contract Acceptance is Effective when Mailed:  "Champion Runner" Tee by Threadless
In order to be effective, a contract must be accepted by the offeree.  Generally, there's something called a "mailbox rule" in contract law, which provides that a contract is validly accepted as soon as the offeree dispatches his acceptance, even if the offeror does not receive the acceptance until later (there are a few catches to this---you have to use a method of communication as fast or faster than the offeror, for example).  So, if you email me an offer to buy a shirt from my blog sale, and I email you an acceptance, we have formed a valid contract and you can't back out.  Don't try me over a $25 shirt.  I will sue.  Don't think I won't.  [note for those wondering whether my blog sale post is an offer and your email the acceptance:  I don't think so.  Courts generally interpret advertisements and circulars not to be offers, unless all the terms of the deal are made explicit, including quantity and delivery terms.  Since my items are all generally open to negotiation and reasonable offers, I don't think the post itself consists of an offer.  Of course, it might, but probably not.]

Anyway, there's an exception to the mailbox rule when the offeree sends a rejection first, but then later decides to accept the offer.  A rejection sent first creates a race between the acceptance and the rejection---whichever arrives first is effective.  So, if you send me a letter offering to buy a shirt for $5 less than the listed price, and I send you a letter back rejecting your offer, and then change my mind and call you up to accept, the acceptance is valid as long as I got to you before you read the rejection.

Res Ipsa Loquitor:  Outfit Triage "Yellow Skirt at Night, Sailor's De-Fright"

To establish a claim for negligence, you must prove that the defendant had a duty to you, that the defendant breached that duty, that the breach caused your injury, and that you suffered damages.  Sometimes, though, a plaintiff will be injured in a weird way that makes it difficult if not impossible to prove exactly who or what had the duty and exactly how that duty was breached.  But just the thing happening itself makes it very clear that someone screwed up somewhere.  The classic example of this would be if you are walking by a barrel factory when all of a sudden a barrel shoots out of a window and crushes you.  How did the barrel get out of that window?  Who did it?  Dunno, but I'm guessing it's the barrel factory's fault somehow.

"Res Ipsa Loquitor," which is latin for "the thing speaks for itself," allows a negligence plaintiff to establish that the happening of an event is sufficient to show duty and breach---even if we don't know exactly why---because the type of happening usually does not occur without negligence on the part of someone in D's position and the plaintiff (P) is free from fault.

This outfit is the perfect example of DRESS Ipsa Loquitor, if you will.  Something is CLEARLY very wrong here.  I can't pinpoint exactly how or why this went wrong, but this type of outfit tragedy usually does not happen without negligence on the part of the dresser.  You as the readers were certainly free from fault as far as this outfit was concerned, so you can probably succeed in showing Res Ipsa Loquitor.

Strict Scrutiny:  Kate Spade Head-in-the-Sand Melinda

In Constitutional Law, government actions infringing on fundamental rights, some individual liberties, and some suspect classifications are analyzed using strict scrutiny.  Under a strict scrutiny analysis, a government action will be held constitutional only if the government can prove that the action was necessary to achieve a compelling governmental purpose.  The government has the burden of proof.

This Kate Spade handbag meets the strict scrutiny standard since it was necessary to achieve the compelling Jewish Girl purpose of dressing awesomely and maintaining a fabulous purse collection to complement my outfits (certainly a suspect priority classification).  I don't have any purses in this color, it's high quality, it isn't trendy so I'll get use out of it for several seasons, and it was one of the last few in stock so if I hadn't bought it right away it would have been gone.

Necessary.  See?  I'm rational.

...okay, back to the books!  I hope you all have INCREDIBLY wonderful weekends to make up for the fact that this will be the worst weekend of my life thus far (and hopefully ever, but I'm not so naive).  Tell me all about your plans so I can live vicariously.  [Vicarious...Vicarious liability...What were the rules for that again...?]

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