Pavel Melika

Oh the shame!

So long since I have made a post to this blog! Huge apologies. I am going to go with the excuse that I have been nose deep into the books studying contract, tort and trusts. Believe it or not, up to you. Do have some small news to report and that is that I am off to the British Council this week to register for exams. Another couple hundred quid flying out of my pocket later this month when I pay the school. However the interesting and fun thing is that "I graduate next year". Haha what a great thing to be able to say. Would that it were 2013 already but to be fair let's try and squeeze as much out of 2012 as we can.

To the breaking point

I've written previously about how pressure brought to bear on defendants often is too much for them to deal with and they wind up confessing to crimes that they did not commmitt while under pressure. http://llbblogging.blogspot.com/2010/09/under-pressure.html

An interesting article in the New York Times http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html?_r=2&hp the other week helps to shed light on why someone might do such a thing.

Yeah baby!

Back from Oktoberfest and found a lovely present sitting on my desk upon my return...no not the buxom blonde I was hoping for but rather the box from the university with my materials for this year. Now I can begin to study in earnest. The only piece of the puzzle which is missing is access to the course pages on the university's website. Hopefully this will come in a few days. As I wrote previously, enrollment this year was a fiasco so getting these materials so quickly helps to make up for it a bit. Oddly enough in the box was a book about land law, given that I am not taking land law this year I can only imagine that this is compensation for my pain and suffering. In any event, quite happy to have it and get rolling.

Denning stikes again...

Another good one from Denning which made me laugh, this time from Thornton v Shoe Lane Parking Ltd [1971]:

"None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved."

Arrrrrgh!

Pure frustration! After waiting months to be able to reenroll and send money to my university, finally today they have access on their internet portal. The problem is that the system is so very poorly designed that I was unable to register for the courses which I need. To add insult to injury there is no way to go back and start again. Now I am at their not so tender mercy to try and enroll. I cannot imagine that a school which has been doing this for over 150 years with thousands of students every year could have such poor admin support.

More results

Yesterday those students who are not located in Europe got their results. Of those I know, I saw a couple happy campers with 71's and the rest a mixed bag. Happily not many failures at all but a few disappointments. Hard to put rhyme or reason to the grades as you don't really know how people wrote or how they were graded. I would say that is perhaps the worst part of the school - lack of material feedback on your work. To be sure you get a grade, I honestly believe it is probably one you merit, but you lack a rationale behind it. It is a tradeoff to be sure but given the cost of getting feedback, I think I would prefer to go without...

Legal Bite: Why Should You Join one of The Inns of Court?

Legal Bite: Why Should You Join one of The Inns of Court?: Last week I posed a question on  TraineeSolicitor.co.uk which was used as inspiration for Legal Bite's post. It gives an overview of the different Inns of Court which any aspiring barrister would need to join. I thought it would be worth it to share the link with you.

The twisted path

According to an interesting book I've been reading, the word ‘tort’ is derived from the Latin tortus, meaning ‘twisted'. Somehow I seem to remember that a battle formation for the legions was called the tortus due to the shape formed when they interlocked their shield above and around the group. More important for this blog, is that tortus came to mean ‘wrong’ and it is still so used in French when one says ‘J’ai tort’ for ‘I am wrong’. However I have to say that there is nothing wrong so far with my study of the subject of tort even if the path is a bit twisted at times. I really do enjoy it, especially the bits on negligence which have been the main focus so far. The cases are really quite interesting to read (albeit a bit tragic) and the logic behind the reasoning is exciting to see develop over time. I have to confess that would find myself hard pressed to find some logical limitations on negligence although I think the judges involved have given it a fairly good shake. For example when I first heard of the judgment in Alcock v Chief Constable of South Yorkshire Police I thought that it was unjust. However after reading more about it I tend to agree with the decision. Particularly the claim that if family members were to have suffered nervous shock watching the events unfold via television a claim of action would be better brought against the broadcaster rather than the police. Also the notion of dividing people into primary and secondary victims seems to be of benefit. Still it is hard to find the right place to draw a line when one is liable under the tort of negligence - I guess that is why the requirement of "fair, just or reasonable’ is so subjective.

Dive in, the water's fine.

So, I've sorted it. This year shall be contract law, tort and trusts. I suppose that I am a creature of habit but there was just not enough to swing me to swap trusts for land law. Supposedly trusts is quite a difficult subject but so far after only a couple chapters in the study guide I find it really enjoyable. This contrasts remarkably with the land law study guide which I thought was very poorly written. In any event, now that I've decided on my three subjects I've got to plough my way through them.

This year I am going to change my study plan a bit. I think that I need to do more constant revision during the course of the year instead of leaving it to the end. Therefore I am going to try and save the weekends to go through the exercises in the study guides and textbooks in detail. Weekdays will be reading and note taking. I hope that this will be a good balance. The upside remains that starting this early in the year I can remain ahead of the game. The goal is to finish off the study guides by the end of December if I can to leave plenty of time for revision and further review. Fingers crossed.

Crikey!

Well I have to confess that it does not happen very often but when it does it can be rather humbling. I am wrestling with whether to study trusts or land law this year. I have canvassed opinion on which would be the better choice and opinion seems to be spilt about 50/50. My natural inclination would be to do trusts, however a study mate of mine is pushing hard for land law. So to be fair I have spent yesterday and today having a good look at land law to see what it would be like. Sadly I have to say that I am a bit shaken. It all seems very unfamiliar territory to me and I feel like I have been knocked on my backside to be honest. I've no doubt that with the time and effort it will pull together in some cohesive form but at the start I really feel in the deep end. Perhaps because I am an American I have not been exposed much to the property market in the UK but all these different types of estates and titles and registration and whatnot are extremely foreign to me and it will take me a bit of time to orient myself. Pray for Questor.

A tortious event

I can see that tort is going to be interesting if it is anything like the case of Cole v German Savings Bank. Obviously the key point of this is that a party's liability is limited due to the acts of a third party towards the defendant. In this case, an elevator shaft was empty and under construction. A young boy about 13 years old impersonated the usual elevator boy by dressing up in his costume. He then led a woman to the shaft, opened the door, and invited the patron to pass into the shaft and let her fall down the hole. Shocking I know. The court found that there was no evidence that the woman's injuries resulted from acts or omissions of the building owner. Rather, there was positive and convincing testimony that the woman's injuries were caused by the wrongful act of the young man, who was a trespasser. The building owner could not foresee or reasonably anticipate the young man's violation of the law and trespass upon its property. The young man's voluntary act broke the chain of causation between any prior negligence of the owner and the patron's injury. The owner's acts were not a proximate cause of the accident.

The results are in

After developing a blister on my finger yesterday from hitting the refresh button about a million times, I am pleased to report that I have my first year law school results. The good news is that I managed to score a 2.1 overall. Quite 'chuffed' about the result as my English friends would say. Surprisingly however I was disappointed to see that my lowest mark was in criminal which I had expected to be my highest grade. Most of my peers who got grades yesterday did comparatively well so I am happy for them. They also were surprised by lower than expected criminal law exams so I imagine that as the professor says there must be some elusive 'technique' for writing answers to that exam. I'm most pleased that I can now close the book officially on year one, that I do not have anything to 'correct' going forward, and that I can now jump on my second year subjects. Onwards and upwards.

One Week Away

Notice out from the university recently that LLB grades for European students will be out next Monday. Very excited and curious about seeing my results. Really don't have any idea how I did. I am expecting that I did the best in criminal law, ok in common law and so so in public law. However how this will rank in terms of actual grades I have no idea. Keep fingers crossed and I will let you know soon.

A warrantless presumption

Good news out today, a U.S. District Court Judge upheld a former colleague's ruling on California's Prop 8. The federal judge ruled that there was no evidence the previous judge was prejudiced in the case. Those in favor of Prop 8 had raised questions about the judge's ability to impartially decide the controversial question of same-sex marriage due to his homosexuality.

To be fair, the exact argument was that should the judge 'ever might' want to marry his partner he had an 'interest that could be substantially affected by the outcome of the proceeding'. Of course it is another standard of independence that no one may be a judge in their own case or have a stake in the proceedings against before him.

I think that the main point of the ruling today is well summed up as follows: "The presumption that [the judge], by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief... On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits."

Sexual Bias?

Interesting short article recently in The Atlantic.

The essence of the article is that California voters passed a referendum which limits marriage to heterosexual partners. This law (called Prop 8 as it was posed to voters in a mix of referendum items as Proposition 8) was been struck down by the judiciary as violating the due process and equal protection clauses under the constitution. Now those who support Prop 8 are challenging the judge's ruling on the grounds of bias - the judge in question is gay.

It has long been a standing principle that justice must not only be done but must be mainfestly seen to be done. Thus any hint or apperance of bias should be avoided. Yet in this case is one's sexuality enough to determine bias? Is it a given that if I am a homosexual, I would naturally be in favor of marriage rights for gays and lesbians? If one agrees with that statement and believes that the judge in this case should have excused himself for bias, I can not imagine how the counter claim can not be made with the same logic. A heterosexual judge would then by the same token found biased as well. According to this logic he would naturally be in favor of Prop 8 and want to keep a ban on homosexual marriage.

Perhaps we should call for a bisexual judge who can see both sides of the issue? Or a transsexual judge who is able to rise above it? I could go on but I think you get the point...

Guilty as charged

Finally a statement out from the University of London.

As suspected, this New College of the Humanities will be an independent teaching institution. They will have their students enroll in the University of London International Programmes. In addition to the yearly 1.5k quid that they must pay to the University of London, they will whack on an additional 16.5k for their value added services. It looks all above board and legitimate. A smart and easy way to start a school and piggy-back along on the University of London. A brilliant chance to access some of the best academics in the world. Indeed, there will be extra courses and the caliber of students is bound to be high. However over the course of three years I can imagine better ways to spend fifty thousand pounds...

Money maker

Interesting news out today in the form of the New College of the Humanities, an academically star-studded institution based in London due to open its doors to students in October 2012. Reports are that some of the world's most celebrated academics will join this institution focusing on undergraduate studies in the humanities. Apparently no longer able to resist the steady decline in the humanities, this band of brothers (and one sister) has come together in an attempt to save its place in the academic world. They have become so alarmed by funding cuts to education that they feel compelled to act to ensure access to the intellectual fires that forge truly exceptional individuals.

Impressed? So was I.

Oh and did I mention that fees are set to be 18,000 quid a year, double the maximum for other universities?

Less than impressed? Yeah, I felt that way also.

Oh and the degrees will be awarded via the University of London.

Yes, the same school that is charging its students such as myself on its International Programme just a wee bit over 1,000 pounds a year.

Even less impressed then you were before? Me too.

To be sure, one welcomes any attempt to improve education. Those academics who are involved in setting up the college have a huge amount to offer others. However given the price they plan to charge in order to pass their students through onto a degree which is already very open and accessible, it is as a disappointment. Even if it might be a money maker...

Oh the irony of it all

Just read Jones v Padavatton [1969] 2 All ER 616. Could anything be more ironic than the mother who pays for her daughter to leave America and study to become a barrister only to have to take her daughter to court several years later when she desired to go back on her promise? This is too much...

Bargain vs Will

While still a novice in my contract studies, I have to say that I already have a basic principled objection to the central bargain theory of contracts. As far as I can tell, one of the basic concepts of contracts is that it is mean to be a exchange. In its most basic form a contract reflects an agreement or a bargain between two parties. Party A promises to do something for Party B in return for Party B's promise to do something for Party A. In other words two parties come together to exchange something of value, it need not be equal value but judges have consistently found the need to find some value or consideration in the exchange. In the absence of such consideration, courts will not honor the contract. I find this hard to fathom. Certainly there is reason to reject a contract when one party is brought to it under duress, however is it reasonable for the courts to hold that there must be an accounting of value in every instance? Is not the fact that the two parties who enter into a contract deem it worthy of value to do so? Does this not imply that the two parties find some value in the exchange?

Of course you have to assume that many of the other elements to a contract continue to exist. There must be an offer and an acceptance. The wording of the agreement must demonstrate certainty. One should have an intent to create legal relations, there must be a binding understanding between the two parties. Most certainly it would be necessary to show that there is the requisite 'meeting of the minds'.

How then would a will theory of contracts operate? Certainly we would no longer need to worry about the Foakes v Beer decision. Williams v Roffey Bros & Nicholls no longer becomes controversial. But what dangers would it open? Check in for the next post...