December 30, 2006


It's the day before the day before the new year. Yesterday a new layer of snow fell on the old, crusty snow and deep mesas of compacted ice from "The Blizzard of 06." Last night, the grumbling of a million cabin-fevered Denverites zapped the weatherman's dire predictions of yet more snow into an echo of wispy nothingness. The sun rose this morning into a blue sky. I jumped out of bed, finished a legal memo, rode with Scott to Boulder (dodging fender-benders and tow trucks every few miles along Highway 36) , and met Brad, Elizabeth, and the wee and adorable Scarlett for brunch at the Dushanbe Teahouse. Now reclining in the study station at Scott's after perusing photo albums from his year in Australia in the 1980's.

Two goals for the evening:
(1) Start a legal memo on the effect of silence in a contract. (I assume expressio unius est exclusio alterius is a valid rule of contract interpretation except as to essential terms.)*
(2) Study for the Bar Exam.

* - Answer: expressio unius est exclusio alterius is a valid aid to contract interpretation but it is often superseded by other maxims, such as "intent of the parties" or "interpret me against the drafter's interest."

December 24, 2006

Equilibrium for Christmas.

The Federal Rules of Appellate Procedure have received a beauteous facelift! (See Federal Courts may no longer forbid citations to cases "designated as unpublished, not for publication, non-precedential, not precedent, or the like," beginning with cases "issued on or after January 1, 2007." 2007 Federal Rules of Appellate Procedure, Rule 32.1(a)(ii), available at

This is important to me for two reasons:
(1) My teeth grow weary of being gnashed when the only cases I can find on point are unpublished. Granted, the 10th Circuit has heretofore been kind in allowing citations to unpublished opinions when necessary, but sometimes one simply needs an unnecessary, gratuitous citation to an unpublished opinion to prove that at least sometimes the courts are on your side and when they are the sky does not fall.
(2) The Supreme Court of the United States is no longer able to appoint the President and then turn and say "but you can't use this decision as binding precedent. Do as we say, not as we do." Et voila - at least for now the Judicial Branch is once again its own branch of government. Its stint as a mere department of the Executive is over. God save the King.

December 20, 2006

Snow Day

Woke at 5:30. Then again to Scott's quiet exclamation "oh! No school today" in the darkness, at his desk. Crawled to my house at 10 to feed birds and collect laptop for a prolonged blizzard sleepover chez Scott. Found my car just two hours later enrobed in a snowdrift near a jack-knifed Ford and hapless Toyota. Escaped from downtown and crawled slowly back towards Himself. Now lazily meandering on line. Downloaded BitTorrent. Read some blogs. Did some research. Contemplating how best to get a library card to use the Sturm Law Library. $10 per day, plus parking. Undemocratic. CU Law Library is free, but . . . it's in Boulder. Issue(s): must audiotapes of secretly recorded conversations be disclosed in a civil case, if used only for impeachment purposes? If so, can the party who failed to disclose them be sanctioned, and how?

Scott took this picture, btw. :)

December 14, 2006

An Academic Exercise

I'm happy today because I finished a response. Issue: must expert witnesses be licensed in any particular field of expertise in order to testify? Answer: no. (But note testimony must be relevant, helpful to the jury's understanding, and not more prejudicial than probative.) See Huntoon v. TCI Cablevision of Colorado, 969 P.2d 681, 689 (Colo. 1998).

Which introduces this question: why would opposing counsel, who seems well-educated and experienced in the law, assert otherwise?

December 13, 2006

I want X, but Y.

In a class last weekend we discussed how "Y" and "X" in the above statement are, perhaps, unrelated to one another. For example, "I want to go to Paris, but I don't have any money" has the same meaning and usefulness as "I want to go to the beach, but I don't like artichokes." Hmmm . . .