Thursday, November 30, 2006

Gilbert Arenas 3 pointer

I like to follow bad rants with little posts and inside jokes. So here is Gilbert Arenas making a last minute shot!

Some sophistry

The third comment back by "anonymous" was my mom saying she loved me, the second back was my dad saying I would have been better named Katie and the last one was calling me meaningless, pedantic, and arrogant. It feels like growing up all over again.

To be fair, the last anonymous called my writing meaningless, pedantic, and arrogant. Meaningless I disagree with, I think it has meaning but its rough and could be shorter and easier to access. However, I have a small history in academic writing or legal writing, so really - I am kind of faking it. To pedantic, I have always consider that word too ironic to really process (the only time I have heard it used was by someone being pedantic there). And to arrogant, I think that is a bit unfair. I think I rightly characterize the post and its comments with me being a 1L law student sort of guessing my way around.

I actually don't care about the response in itself, I believe it was sarcastic (again, anyone who uses "pedantic" is either being sarcastic or is an idiot - and most of my friends, hopefully, fall into the former): but it did get me thinking.

When do I get to start being arrogant with my arguments again? If I have learned one thing in law school: the answer is always maybe. Sure there are questions that don't get answered with maybe, but those questions don't get asked. Not by teachers and not by students. Which leads to professors saying: "Welllllllll" a lot more than they should.

In my "lawyering" class the other day we were asked what we had learned about ourselves over this semester that would make us a good lawyer. The results: nothing short of disastrous. I see it as an issue of timing. Last Tuesday may have been the climax of kids feeling both unprepared for tests and guilty about having not been studying.

Answers were met with a lot of sighs, entirely different from when our semester began. Day 1: we were all told to say something about ourselves. We had fine answers, most were rather impressive and constructed with a delicate layer of modesty over a good core of self pride. Now the class was awkward and fidgety about how they feel they would be a good lawyer.

To be clear: I think every one of my lawyering classmates would (and for the most part, will) be a good lawyer. I got a great class, eerily so. If I listed people I don't like in the class, I think I would put myself in the top three, its just that good.

But it was a rough time to ask.

Tests from this side of the 1L veil of ignorance seem like this vague cloud of threats. We know what they look like. We can practice them. We will study for them. But there are a lot of unknown factors: what if we get a freak test, what if we have a freak day, what if pressure+law=instant death, and what if we are good, but not as good as our peers.

The latter is the most interesting because its weird for NYU law students to fear, who I think by and large are not that competitive. They are shockingly competitive with themselves, but they are not necessarily competitive with their peers. There are exceptions (almost startlingly exceptions really), but most seem competitive with themselves more than anyone else.

But that is not how tests are graded.

A lot of my peers I think have come to the best solution: get Bs. Learn the material, do as well as you can, but don't stress, and don't drown in books, just swim in them.

I think there is a lot too that, because there is a, not to be pedantic, diminishing returns problem here. Doing better does not directly equal success.

But for most law students it seems to me, the 1L is to abstracted for that. A tunnel vision occurs from the nature of the beast unless you have something else going on in your life. Because NYU law has a bunch of very involved, eclectic, and individualistic students, I think a good lot of the population here has something to go back to. But those who don't run the risk of tunnel vision.

I went the tunnel route by choice, I knew I would, and I planned on this. Best reason? What else do I have to do? I guess I could appreciate New York and any number of other things, but I got time for that. I know I will get back to those things, probably after this first semester. I have always been good at balance, and then saving few months for abundance, and I tend to appreciate those experiences.

So now here is my situation (the aforementioned arrogance is how I took this broad diatribe and put it to the only clear point: myself): when do I start being arrogant and, maybe not pedantic, but academic?

I take a pride in "Level II" analysis. I think I can do well given material and asked, what's under this? This is what got me through undergrad with shockingly little studying (minus my thesis). But after that, I am at a loss. I am historically not very good at "creating" theories, or looking for something deeper where someone else hasn't. But I think that is partially lack of confidence. Most times I don't want to say something that I think is "deep" because I think it is something that was said before.

Thats what was going on in that legal diatribe (my comment on which I think was better than the actual post): I recognized that it was not the first time it was said, but I was trying to say it before I read it or heard it. Afterwards, my classes basically covered the same thing: some risks are assumed, some are not, some risks are allocated, some are not. I think meaningful, but the comment is right, my posting such an argument was meaningless.

I hate comments in class sometimes because everyone just says the book notes. In one class, she basically asks "What's the deal with this?" No one puts their hands up, finally a gunner (myself included, sigh) puts up their hand and goes: "I know, I mean, its totally like this?" This being note four in the book first paragraph, another hand goes up, "Yeah, but what are like, totally, forgetting this" which is the second paragraph. And it goes on like that.

Its not that the comments aren't smart, but sometimes I question the source or the genuineness of that system. I mean, I guess it helps us learn the law, right?

Anyway, now that I know that NYU students are actually checking this (its not like I kept it a secret - I posted it on facebook), to those who don't like me: I am not as much of a jerk as this post would indicate. Or even some of the last few. They are just getting a weird outlet for wanting to rant at a source that won't respond by pointing out the obvious vanity involved...wait, well, I guess thats not true anymore...whatever...

Saturday, November 25, 2006

First to speak

One of my favorite legal rules comes from contracts. If someone manifests a revocation of an offer before acceptance, the offer is revoked. If someone manifests an acceptance before revocation is manifested, the offer is accepted.

The Farnsworth casebook writes: "When offeror and offeree meet at a railway station, is it absurd that their legal relations can depend on who speaks first?"

I love that quote because its a great question. I think the rule is so perfect for American society in its own way. It teems with culture. That was have established a system where it is a little race in order to set up or destroy a cooperative unit. I like it because it is petty and although very detached from a natural state (assuming nature as basic tenants of survival) but so fully ingrained into culture.

Our culture detaches us from the only drive we had before: survival for reproduction and attaches us to so many odd games and trivialities. Its not that I dislike them, I play the culture game probably more than most, although I would like to think I am a bit more aware than most of what games are being played and why.

My favorite part about the rule is that it captures some of the funniest tendencies of American relationships. I think that Seinfeld provides limitless explication on some of these, but notably: Can a person someone refuse an offer to break up? Can someone avoid an offer to break up? Is control in a relationship defined by the person most likely to end it? And pertain to the quote above, how some relationships seem to be a race to be the first person to call it off without offending cultural norms.

PS - I am lot.... And its getting way too natural to write in an outlining shorthand, so send k ?s if you want answs.

Thursday, November 16, 2006

I hope I have not gone insane

My contracts class has a discussion board. It often features discussions that get, well, a little weird. To avoid being apart of that, I have basically avoided posting on it. However, I rolled the dice with maybe the most insane contracts thing I have written in a while. I am proud of it in the amount of thought I put in it, embarrassed in something that should have clear fallacies. But, if you want to see what happens if you give me a little less than an hour and a topic in contracts that interests me, you get this....

I have not posted anything on this board for a while, but I, like Ashley was inspired by something on 798 (but we are posting for different reasons so I did not just reply, though I expect an Ashley response to this). However, rather than the distinguishing Farnsworth presents, which I also do not necessarily accept, I was inspired by the Harvard Ballad at the bottom of 798. I figure if Sherwood v. Walker was worth writing a poem given seventy years of history in casebooks, it has to be worth me trying to write something given one-hundred-twenty years in casebooks.

I will put my argument as compactly as possible. I am doing this without outside reviews and class. I think that the case merits a foray into intellectual discourse by the board.

I am tempted to distinguish Wood and Sherman through inherent risk. We have often talked about how risk is beneficial in contracts. As a gambler with a remarkable tendency to lose, I ironically agree with that. I think that it rewards prospecting, taking adventures, living life to its fullest, and cheering for point spreads on otherwise blow-outs.

However, risk is not for all. Certain contracts, presumably, could be without risk (at least ideally). Say I wanted change for a dollar, and you wanted a dollar for change. That trade should ideally be risk free. If it turns out that one of the quarters traded for, even by mutual mistake, was a fake quarter. It seems fair for the short-changed party to ask for a real quarter within a reasonable time. It simply does not look like a contract where "you pays your money, you takes your chances."

But there are contracts where risk is in the deal. Stocks and prospects are the most obvious. As such, I want to say that the difference between Wood and Sherwood is how much risk the parties intended for in the contract.

In Wood, a rock exchange involves risk. It was clear this involved risk that the rock was valuable or not valuable. If the rock was just a rock, Boyton would have wasted his dollar. If the rock was a topaz, Wood would have wasted her rock. Both knew there was a risk involved. The fact that the risk materialized into something beyond exceptions is still captured by the risk that the rock was worthless or it was valuable.

In Sherwood, no one was gambling that Aberlone was pregnant. It was not a reasonable risk to be assumed. In fact, they take it a step further by not just inferring she was not pregnant, but mutually agreeing that she was not pregnant. There was no gamble here, the intent of the party was to sell an infertile cow for a certain amount of money. The fertility of the cow throws out the whole agreement because that was not apart of the risks reasonably assumed.

I normally don't like over-philosophizing, but I am having fun with this:

The trade is (Rock price) = (Price as valuable) * (Probability of that) + (Price as rock) * (Probability of that)

If it was a .0014% chance that this rock was worth $700 this was a fair deal. The probability was probably higher than that (maybe not, maybe this is like those torts cases where the fact that it happened weighs in jury's heads as proof that it was likely to happen), but that could be accountable to the desperation of Wood and the knowledge of Boyton.

However, Sherwood:
Infertile cow = $80

Much simpler math with no algebra and no chances, similar to my change analogy of $1=$1.

I am saying that the parties intended these equations. if the equations are not true, then the contract was not what either party intended. If it was not what either party intended, the contract should not be enforced.

It should be noted that I am not saying that the parties did know of the risk involved, but should have known of the risk involved. If the risk is specifically disavowed, that is clear evidence that the contract is not the intent of the parties. Keeping that in mind, here is how I see the other cases in the chapter:

Both parties agreed there was water in the land. They had every reason to believe this. Sure one party may have looked, but usually this will not come up. The intent of the parties was not to include risk, thus,

Land with plentiful quality water = $100 an acre

When it turned out that this deal was not correct, the whole thing aborts as not intentional and not an enforceable contract.

Lenawee County Bd. of Health:
Perhaps all of this is located in the Lenawee opinion, without the silly math, because the court specifically speaks of "risk of the parties' mistake because the contract contained an las is' clause." Thus I feel unoriginal suddenly (I just read this now, but I have written too much to turn back):

Price paid for building = Building "as is"

As is has built in risk as point out by the court, so really the equation is,

Price paid for building = (Buyer's value in using it for apartment buildings) * (Building's likelihood "as" habitable) + (Whatever that is worth) * (Building likelihood "as" unhabitable).

This trade included a risk calculation for the possibility of the building being habitable, or not. The proposed mistake falls into that risk, thus, it was included in the intent of the parties.

I could do the other others, but the one where I might be stretching the most is Stees:
Here I see the issue in terms that they use in the notes, being distinguished as a "performance specification" and a "design specification." I see the case somewhat iffy in that there were designs specified for the performance, thus it is sort of both at the same time. However, the controlling factor the court looks to is that, "The defendants contracted to 'erect and complete the building.'" As such, I see the court as viewing the contract as:

Price paid for the building = (Price of building the building if conditions are fine) * (Probability of that) + (Price of building the building if conditions are not fine) * (Probability of that)

Here the conditions were harder for me to write, so the likelihood of me messing it up in terminology are greater but I think that this is still correct in concept. The last postulate is a fine deal if I believe that the probability that the conditions are not fine are low. The reason that this risk is put on the builder is because he has agreed to "perform" not agreed to "try and perform." Thus, his side takes the risk, if the buyer took the risk it might look like:

(Price paid for the building) * (Likelihood that plans will work) + (Price paid for the building) * (Likelihood that plans don't work) = Price of building the building

Both of these show the intent of the parties and an a willingness to accept risk into their intent. Both of these would not allow "mutual mistake" to revoke the ruling.

In a contract that requires risk, such as art, it will be a rare case where there is not reasonable risk on one side. In those cases, "mutual mistake" should not be enforced unless both parties agree that there is simply no risk involved.

If you did not read any of the above, and rightfully so, here is my one paragraph summary:

If both parties' mutual mistake is to assume a materialized risk could not exist entirely, that mutual mistake means that neither intended the contract as stated in the four corners, thus the contract is void. If both parties' mutual mistake was that believing a materialized risk was low or nominal, then the contract still reflected their intent, thus the contract is enforceable.

Writing this out, I thought of a lot of tangential arguments against me that I passed up for the goal of trying to write something on this case (again, the poem captured the legal side of my mind), so I am not sure which ones kill my argument. I also don't know if this is all redundant to much better law review works (which I am going to check out now). So I see ample opportunity for response. Lets do Rose justice and post our thoughts on the case, even if they in no way apply to what I wrote here. Direct responses are good, but I just want to see smart NYU contracts people talking about a case worthy of poetry. Also I spell checked this and tried to have it be clear throughout (despite the algebra, that is meant just for people who think like that), bonus points for those who reply in kind.

Sunday, November 12, 2006

Really? That's great...

"Sigh, yeah, that would be good..."

"what do you do..."

"Study law"



"That's great..."

"And you?"

"Oh, you know, looking now, just moved here"

"Oh really?"



"Well, anyway..."


"Pleasure meeting you..."
"Yeah, you too..."

Monday, November 06, 2006

Getting my name

Okay, this has got to be the last blog post for this weekend, but I am actually a bit excited about a new development. My name finally goes to me in Google.

For as awesome as my parents are, they were not necessarily very creative with my name. For instance, Matt Warner on face book pulls up 60 people with my exact name. I would not be entirely surprised if there is another Matthew Kendall Warner out there.

However, now for the first time that I have found, if you google Matthew Warner or Matt Warner, I actually come up on the first set of pages. In fact, I am number two under Matthew Warner, passing all but a writer who actually writes horror novels about China (when I was thinking about becoming a writer, that was a bit discouraging).

I like this overall because I have been developing websites for as long as I can remember but never really developed much of a presence.

This is not exactly a presence per se, but there is a lot of material, and some of it is worth reading (I liked some of my blog posts in China). Although most of this blog is actually trivial (obscenely so, see last post), its cool to get my name on the web.

It might actually hurt for job interviews, I hear that they more and more look for blogs. However I am not especially ashamed of my personality. If I get judged unworthy based on a blog that has at least some thought value from time to time, I probably should not get that job in the first place.

Freestyle Walking

It seems a rather broad band portion of my generation, tucked gently under Generation X, remembers "Freestyle Walking" as a concept. Not as a concept that they engaged in, but rather, one they remember existing.

The only connection I had to the concept was from the show "MTV News Unfiltered" where teens were given the chance to film their own news on little cameras provided by MTV. I only remember the name because of Wikipedia, and I remember the concept of the show only because of "Freestyle walking" (well, remember in the sense of occasionally reminiscing on the show, I think even if there was no freestyle walking episode I might remember the concept).

Seriously, why do so many people remember that program? Of course, its determinant on a number of factors, the biggest being that the person answering watched MTV.

I think there is something deeper going on in this single concept being remember. I think it perhaps speaks to the division of our culture at that time. Skaters as a concept were becoming codified into a very specific group at the time. They shared a jocks hate of nerds, however, they themselves shared the nerds characteristic of social deviancy. There formed a thicker tension in the social groups wherein the hierarchy become more abstracted.

Freestyle walking was so ludicrous, so seemingly sarcastic, and yet seemed so appropriate. If one seriously risked bodily injury and spent similar time and effort into freestyle walking as skateboarding, what really separated the two out? There was clearly something instinctually wrong with the concept, and I can think of only two clear answers.

First, the board itself. The board came to represent the entire social strata that it spawned. This explains much of the tension between skaters, roller bladders, and BMXers. Mind you I am speaking of cultures I am entirely distant to, but this is a blog for friends and I am not going to read up on the latest literature to confirm my facts.

Second, the history of skateboarding made this modification seem truly weird. It pointed out just how abstract our cultural criteria really had become. Going back to the first major change, high schoolers at the time had to suddenly look at a social classification held natural and question whether the only real difference between freestyle walking and skateboarding was a piece of wood.

Clearly there was more of a difference, but that difference all falls into the history of skateboarding culture. The individualism that it had created from other forms of social strata. Skateboarders were feared like hippies by conservatives, and similarly fell out of line from traditional social hierarchy. At the same time, they took on an aggressive posture which assumed illegality, even though what they were doing was less strictly illegal than most deviant groups.

How many of you remember freestyle walking? I am starting to realize how culturally obsessed I am. I buy into every stereotype and I am constantly hunting for deeper meanings in abstracted societies. I do know that I have had conversations with people about freestyle walking more times than one should expect, given that no one actually knows people who really did the "sport," but rather relied on that one irony soaked user created video.

...Is it a bad sign or a good sign that I have way more to write about this but decided I need to draw a line...

Sunday, November 05, 2006


I like it when judges say really rather catty things. As such, I am going to start putting up occasional CJP, catty judge posts.

"At one point Gabriele prophetically observed in relation to the gold deliveries: "Steve [Saccoccia] is going to put us all in jail some day" U.S. v. Gabriele, 63 F.3d 61, 64 (RI Court of Appeals 1995).

I like that because its both condescending and ironically also prophesies the rest of the appeal.

Crossed eyes

I just wanted to share a devastating fact.

I cannot become a NY subway train driver. Not as in, the qualifications would crush me. Not as in, "oh no you can't/didn't," "oh yes I can/did." Rather, I am biologically destined to never being a NY train driver.

I was devastated. So not only does my eye haunt my vanity from a dark corner of my mind, but my job options are closing down left and right (I can't be a rocket ship pilot either!).

The funny part was when they listed things that stereopsis plays a role in, "such as, catching a ball, parking a car, threading a needle, performing surgery, or any other activity that requires accurate depth perception at close distances." Outside of the surgery one (which I won't do for countless reasons), It was like a list of things that I am not especially good at.

I actually catch balls by just putting my hands in front of their path, which is fine with basketball but sucks with footballs (its hard to explain, but a football is harder to catch straight on than a basketball).

One more thing with the article, it says that you will have trouble becoming an NBA point guard without stereopsis. Arguably my favorite player (and starting on my fantasy team), all-start shooting guard Tracy McGrady has an eye that might be even more walled out than my own. The thing that I like best is that he shoots lights out from the wings, which has the least amount of visual cues for "faking it." There was a time, inspired by his shooting, where that was my best shot.

But no subway driving... man, things are looking down.

Saturday, November 04, 2006

This is my view...its good. And we had NYU colors on the empire state building the other night. I love the colors of the ESB, they are alway interesting.

This is the corner in front of my house, the streets were invaded during Halloween.

This is the street directly in front of my room. The building at the top is my law school. The wealth of the people cruising along this strip was intense. Limos, countless Mercedes, etc.

There were multiple break dancing crews just down the street from me.

Taken while coming home far too late after NYU's big fall semester party.

Law school culture

I have typed out a lot of different blogs on how law school kids are freaks. The problem is that it is hard to write that in such a way that conveys what I am trying to convey without cutting into people that can easily access my non-private site through a very direct link. As employers drift over to this site (as I hear that is what they do now, and thanks to, I have to stand by what I say), I am going to have to nuance up this comment, so lets go!

So here is the deal, if you are in NYU law school, you are probably a freak. Really, if you went to any intense law school, the odds are probably pretty good; there is just only one group where I am willing to testify to the freakiness. This is why, you didn't get in here by being normal. You didn't get in here by being passive. Diversity directly counts in admission, and that is not just the color of the student, it's their approach to life. In nicer words, you have to be special to go to this school.

The difference between a nerd, a gunner, a "slacker" (my favorite law school misnomer) and an average student? Paper thin. it's this little red line that dances through linguistics. it's a hand raised. it's an hour extra studied. Even the ones that study all the time and the ones that skim (they are out there, and I love you if you are reading this)? They are just in different directions. Because the same intensity that drives one to books, and the intensity that drives one away from books is what got most of the people here.

I don't want to go into "problems," because that is unfair. I am not accusing anyone of a problem. But the school has this weird element to it adopted from being created by this very specific cross section (highly motivated, individualistic, smart kids) of an entire country.

First weird thing: conversations just get weird. I have never noticed how many social layers American society supports within every conversation. People who say it's all about culture always sounded ones for hyperbola to me, now I take it back. A comment left hanging for just slightly too long, a catty comment that had no reason to be said, an awkward turn from someone, all of these are more pronounced by the fact that such different and specific individuals are doing them.

In most situations, these kids dominate. They dominate by being aggressive. They dominate by being smart. They dominate by being funny. They dominate by being just so themselves, and so put together, that people want to listen. Here, that option is a dangerous one, as you audience is just like you. I have seen two people talking at each other, with no real sense a conversation was occurring. Rather, words were being sent at each other to convey the ideas that they wanted to convey. However, there was surely no give and take. Just two people talking.

Second weird thing: drama, so much drama. I think it gets at the extreme social sensitivity of the people around here. For the legal reader and anyone who has access to Wikipedia, there are a lot of emotional "eggshell skulls" walking around the school.

However, it's worth emphasizing, this is not a bad thing. I am not making a value judgement, but stating this, kids take all of this very seriously. It reminds me of middle school, not in it's immaturity, but it's contrived nature. You have 1,500 ambitious kids or so, you put them in the highest stress environment of their lives, and then you have them indirectly compete twice a year for the one standard of achievement that most of them have excelled at for 16 years of their lives. So what is going to happen? Drama.

So what is drama? it's hard to define, I have tried to do it before on this blog. The safest best for me is added social pretense. As I admitted earlier, culture is thick. I think "drama," as used in this context, is just adding a few layers. it's taking things personally that were meant casually. it's fighting without fists or arguments but in nuanced lobs of catty comments. it's people looking down on others that are only nominally dissimilar to themselves (supra above).

Last one, but definitely not the only way law school is freaky: Reflecting on oneself is constant and harsh. I originally had the word ugly in there but took it out because that is not what I am trying to convey, rather, it's just a reflection in a positivist manner, it's neither good nor bad inherently (the reflection that is, the actual process is probably unquestionably good for reasons of self discovery).

I consider myself highly motivated and fairly individualistic. Where do those things come from? I am still not sure, but I have seen a mighty lot of my peers recently. A lot of it seems to be created by the individual - cut themselves out of whole cloth.

I think it is ultimately an imbalance. An imbalance simply being "lack of proportion between corresponding things" not a statement on whether that is good or not. However, these people are just different. And although the response is cultural, I think the source might be biological. This is spoken from the advantage of having virtually no biological background. As such, I can speak to biology as I imagine philosophers doing in the 16th century. Speaking to the entire body of science as a concept that supports whatever postulate they might hope that it does. However, summarized - I think something is different in the head of these kids.

And now you look at them and wonder, is that the same reason I am the way I am?

I am not trying to escape any of these things in saying that their application does not apply to me. I recognize I am a part of this game too. I just hope that I am more aware of it. However, not in an overblown pretentious way, but rather, a recognition of some of the consequences of what seems to be one clear fact: If you have a bunch of people selected for their excellence in similar societal games played over the course of at least 22 years, and you put them together constantly in a high-stress environment - a whole different culture will pour out.

Wednesday, November 01, 2006


Its bedlam downstairs.

New York goes big for Halloween, and I think the epicenter is one block West of here. I wish Google Earth was live updated...Well, that or I don't....

The racing motorcycle club seems to have chosen my dorm as the place to meet. I just now looked down from my window and saw about fourteen brand new motorcycles, a brand new Infinity, a stretch limo, and two brand new Mercedes.

Where did they get the money?

I like living in the epicenter. I can't appreciate it too much right now in law school, but I will. I am here two more years, and I will see how things are next year.

This is the deal, I am going to work like crazy this semester. If I get good grades, I will keep it up. If I get average grades, I won't. Average grades still get you the world out of here. Bad grades are hard to come by. If my rose colored glasses and dreams of grandeur fail, I will focus on my professional life outside of law school. If I can hang - I will try to stay there and keep building my record.

I have friends who study constantly, and friends far, far less. I am much closer to the constantly right now. And we will see if that matters.

For now, its time to go to bed over bedlam.