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Sunday, December 30, 2012

IRAC FOR AN A

I recently read an answer to a first year law student’s (hereinafter “1L” or ”student”) law school exam. While reading this particular answer, I realized the issue is whether this person had fully applied the IRAC method when formulating the answer.
 
First, IRAC, short for Issue, Rule, Analysis, Conclusion, is a legal writing form that most law school professors prefer to see answers in, because this method dictates the student to spot issues, state rules, and then apply the rules to the facts to formulate a conclusion. Therefore this method first starts with requiring the 1L to state the legal issue(s) or questions. Next, he or she formulates a rule, hopefully mirroring or exacting the rule set forth in case law. The rule should follow the statement of issue because an inapplicable rule will be of no help when the 1L gets to the analysis section.
 
Here, not being confident with their issue or rule does not make or break the method, because the law student may redeem himself with stout legal analysis. Generally, the analysis section is worth the most points. For instance, our legal minds are all different and therefore all people will formulate slightly different issues and interpret case law into different rules. Just consider as an example how Justices Ginsburg and Scalia diverge when defining rules. Thus, in this section, the 1L is charged with using his legal mind by applying the facts to the rules. In other words, he begins to act like the high powered attorney that he plans on becoming one day. A helpful hint and good practice in this section is to start sentences with the words: here; in this instance; in this example; for instance and for example. These types of words help the 1L to ensure he is applying the facts to the rule.
Last, state a conclusion. This may seem easy. However, the law student needs to make sure that his conclusion answers the question presented or issue. Consequently, if the 1L has spotted an issue, states an applicable rule, has adequately applied the stated rule, the conclusion will most likely become the downstream result of the method. Additionally, do not be discouraged when the conclusion has changed from the initial conclusion as most law school questions, like real legal issues, are not black and white, but in the gray area of the law. Meaning they can be answered either way, negative or positive, for the plaintiff or defendant or in favor of or against the client. In conclusion, to eloquently advocate for a position is really about how one applies or distinguishes the facts to the law rather than if they are right or wrong.
Normally, people do not do this every day. So a 1L needs to train their mind to formulate answers in such a manner. It is ridiculous, I know, because you probably enrolled in law school thinking you were going to become a prose writer, but in order to be a good, or even mediocre, law student you need to train your brain to do legal analysis. This is the whole point of law school. Well there are other points too, like learning to think on one’s feet, or that the Constitution exists and what a tort is, but those issues aside, this is a pretty important piece of legal training.
Please note that IRAC is not the only method, and therefore, if a particular school or professor requires something different, be assured to follow that method. For example, CREAC (Conclusion, Rule, Explanation, Application, Conclusion), which really just requires the test taker to paste their conclusion above the issue in order to help them really consider if the conclusion answers the issue or issues. I will not go into these additional forms, because I cannot teach you everything.

Saturday, December 22, 2012

WASHING MACHINE WARS: STAND UP FOR YOUR RIGHTS

Who ever knew that a Laundromat could be a breeding ground for legal issues? Ever drag or carry your clothes all the way to the corner laundry only to find out that all the washers and dryers are taken. I bet that frustrated you. Moreover, think about how much more it ticks you off that many of the cycles are complete and the clothes are just sitting there. First, you probably looked around and then ask everyone you saw if those are there clothes. Further irritated by their incessant denials and idea comes to mind. You decide to take their laundry out of the washer or dryer you need. Simple! You most likely have floated this idea a few times before and decided not to move forward with such a devious plan. Nonetheless, today, you have had it up to here with those oblivious freeloading parasites (unless the reader is one of these vermin, then exchange oblivious freeloading parasites, with slightly absent minded souls) who have used all the time they are allotted for a couple pence. So you shrewdly reach for the door of the machine and in comes some man or woman screaming at you to get away from their stuff. An argument soon ensues. Which one of you has the law on their side?

Table 1. Prima Facie Cases, Bar Elements (Torts), p. 64, © 2011. All Rights Reserved.


Generally, you cannot intentionally interfere with someone’s right of possession in their personal property (a “chattel” or “chattels”). [1] This is the law of conversion. [2] There is a lesser possession offense of trespass to chattels. [3]The difference in the two torts is the level of interference with the possession right. In other words, more substantial interference or damage to the property results in a conversion. Whilst less damage will be a trespass the chattels. If you have no idea what I am talking about, a good example is destroying one’s car is a conversion, while keying the car would most likely be only a trespass.

In this instance, you clearly had the intent to interfere with their property. I mean you did want to remove the clothes from the washer or dryer. Interestingly, did the owner even have possession of the clothes for you to interfere with? I would argue, and may be wrong,[4] that the clothes have become lost or mislaid property at the time you removed them. Yes, the owner, who is probably still screaming at you, did purchase the articles. However, the washer or dryer is a rented space available to the owner for only a limited time period. Once their purchased time lapses and the clothes sit there wrinkling the owner no longer has dominion and control over the property. Therefore, like any upstanding reasonable citizen, you must try to reasonably locate the true owner of the lost or mislaid property. Here, you inquired throughout the Laundromat before removing the clothing. That sounds pretty reasonable to me. Given the community space where the property is mislaid, you did what any reasonable person would do and took the clothes out in order to place them in plain sight for the true owner to claim the mislaid chattels. It seems like your obstinate adversary should be thanking you.

If this argument does not work for you, it may behoove you to argue that there was no intention to permanently deprive them of any value of the property. Similar to a joy ride in larceny (this is criminal, not civil law), moving the clothes from the washer to a table or top of the machine does not permanent deprive the owner of anything. Which is fairly good argument to save you from any more substantial claim of conversion of their personal property.

Please remember that I am not counseling you to go ahead and wear the person's underwear or anything out of spite. I am just arguing that your position is not as weak as you may think. Additionally, if the argument gets heated, try first to avoid a fight, but if problem escalates, make sure the irate owner of the clothes throws a punch first. Now that is assault!


[1] Please remember to review your particular country, federal, national or state law, rule or guidance before relying on the information stated. Laws and rules change from location to location based on legislative, executive or judicial decision making or precedents. The information stated heretofore should not be relied on by any party, individual, society, person or thing. The rule stated may or may not be incorrect. It is for the reader to determine with their own legal analysis.
[2] See generally, John R. Faust, Distinction Between Conversion and Trespass to Chattel, 37 Or. L. Rev. 256 (1957), available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/orglr37&div=20&id=&page=
[3] Id.

Tuesday, December 11, 2012

Video Games Added to the Art World, Even for the Non-Gamer

Are video games art? Apparently they are now included in both the social and legal definition. Recently, The Modern Museum of Art (“MoMA”) announced it is expanding its collection to include this form of expression. [1] Although video games only recently entered into high society’s definition of art, these games have been considered copyrightable for some time. Legally, this art form is protected as an audiovisual work because a video game combines visual images with sounds.
The fact of the matter is that most video games, even older titles, are protected by copyright because of their strong selection, arrangement, and expression. [2] But, in order to satisfy the Copyright Act’s rules of the game, audiovisual works must be “fixed” in a tangible medium of expression, an arduous task to overcome, much like Link trying to obtain the recorder in Zelda, because the work must be fixed for more than just a transitory duration. [3]
In most cases, the actual game play is different each time the user enters the game levels’ ever expanding landscapes and chooses to go up, up, down, down, left, right, left, right, pushes b or a button, or even, select, start. [4] Nevertheless, as long as there are constants or repetitive sequences in the images of our games, such as video sequences, landscapes or arenas, the differences in character actions fall by the wayside and the game is still an original audio visual work fixed in a tangible medium of expression. [5]
However, do not fret that copyright law’s coverage for video games will continuously include expansion packs of protection because we are now in the era of Machinima, an infringing practice that places a ceiling on copyright’s expansion, similar to level 99 in Bubble Bobble ®.
So next time when you breathe a sigh of relief that you made it to a save point before you died, you should also thank Justice O’Connor for giving you this protectable art form. Then, as your eyes begin to dry up and burn a little too, just remember the reason why that game costs $69.99 is not because the developer is pricing it with other comparable art, but rather due to the copyright protection that has been put in the game.


[1] Allan Kozinn, MoMA Adds Video Games to Its Collection, NY Times, Nov. 29, 2012, available at http://artsbeat.blogs.nytimes.com/2012/11/29/moma-adds-video-games-to-its-collection/?ref=todayspaper
[2] The author purposefully stayed away from discussing Tetris, in order to keep the reader from falling asleep. For a beginning to the intense legal battles over this soviet mind game, the author recommends you start your search at: http://en.wikipedia.org/wiki/Tetris.
[3] 17 U.S.C. § 101.
[4] Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982); See also The Konami ® Code.
[5] Stern, 669 F.2d at 857; See also, Williams Elecs. Inc. v. Artic Int’l, Inc., 685 F.2d 870 (3d Cir. 1982).