David Crump - University of Houston Law Center Faculty Blog

BP response

David Crump — Thu, 01 Jul 2010 12:47:14 -0600

In criminal law, some jurisdictions provide the defense of mistake of law. It is a carefully hedged defense, for obvious reasons (it's easy for someone to say, "I got this cryptic information that suggested to me that my actions were perfectly legal"). In Texas, for instance, the defense exists, but to use it, you must have relied on advice given by a government official charged with interpreting the law (a court, for instance, or an attorney general's opinion), and the advice has to be in writing.

I recall only one case that involved this mistake of law concept (and none with mistake of fact): I prosecuted a pollution case against Brown & Root, and its defense was a phone call to the EPA, which allegedly said, "Go ahead and burn all that waste rubber and you won't violate any environmental laws." The judge fined B & R $ 50: a major victory. The criminal defense doesn't merit the heavy treatment that is given to it in casebooks; reading the statute and applying it to a couple of hypothetical problems is actually better for both discussion and retention.

In civil cases, again it depends on the jurisdiction, but the defense is contributory negligence by a third person. Jurisdictions vary about whether a person who cannot be negligent (a child, or the government) can be a contributor, but in Texas, yes. Then, the question is how the causation is apportioned. We have six or seven different apportionment schemes, including one that involves equal proportions to each tortfeasor without regard to percentage causality, but in most cases today, it's probably proportional responsibility (of which there are multiple varieties). So if a jury were to find BP or a contractor 45% causally negligent and the government 45% causally negligent and someone else 10% negligent, liability would be apportioned according to these percentages (probably).

But it's much more complicated, and there are various caps (e.g., a person with less than a certain percentage isn't jointly and severally liable, just liable for that person's proportion).

Response to Prof. Duncan's editorial

David Crump — Tue, 09 Mar 2010 11:22:20 -0600

Meredith Duncan's piece really is a fine editorial. On the one hand, I can understand the reluctance of the media to make a point of the race of a skier. That instinct comes from the idea that race should be irrelevant to achievement. It’s actually a good instinct—in some contexts. But not all.

]]>Meredith is right: race should be mentioned whenever it is a legitimate object of interest. When I was directing the CLE program at the Law Center, we made every effort to ensure that all races were represented. At first I was reluctant to mention explicitly what I was doing because I didn’t want people to think I was focusing unduly on race. That's the same instinct that I infer the media had about the skier. Later I found that it was a good idea to be upfront about it. I simply said to people, I want you to participate because you’re a fine speaker, but I’ll tell you the truth: I haven’t been able to get anyone who’s Latino/Hispanic, African-American, etc. (depending on the need) on this program, and I’d appreciate your doing it if you possibly can. I never had a black or Hispanic speaker say anything negative in response. I think most of them appreciated both the goal and the candor. Maybe I was lucky, and frankly, I felt awkward in raising the issue at first. We would have never gotten the diversity we did, however, without being frank about what we were doing.

This was only part of Meredith’s message. (And I don’t know whether she would approve of my CLE methodology — and I have no authority from her to say!) The other part of the message, the main part, is that we should remember where we came from. And that’s impossible to do without recognizing the role of race. That's something that people tend to forget (or be reluctant to do), as Meredith says, in post-racial America, where bad events still sometimes occur. The bottom line: memory is important.

'Innovation' redux

David Crump — Tue, 04 Aug 2009 17:09:47 -0600

Here is the “innovative curriculum” at the new UC Irvine Law School. It’s not really very innovative, even though it has different names for the courses, but it does scrap the traditional curriculum and try something different. One thing that looks interesting about this curriculum is that it seems to repeat the what-do-you-think-and-how-do-you-feel-about-this-court-opinion method a little less.

]]>

Here's the outline:

FALL SEMESTER 2009

Law 507A - Legal Profession I (2 units)
This course, which will be part of both semesters, will teach students legal ethics and professional responsibility. It also will provide instruction in the economics, psychology and sociology of the profession. In this way, it will provide interdisciplinary instruction, which is often so important for the practice of law. This course will include a speaker series in which lawyers from many areas of practice will describe what they do so that students can gain a sense of the different kinds of work the profession offers.

Law 506A - Lawyering Skills I (3 units)
This course, which will be part of both semesters, will focus on teaching skills that all lawyers use, such as fact investigation, interviewing, legal writing and analysis, legal research, negotiation and oral advocacy.

Law 500 - Common Law Analysis: Private Ordering (4 units)
This course will focus primarily on the common law of contracts to teach this method of analysis, in which the law is derived from judicial decisions rather than statutes or the Constitution.

Law 504 - Procedural Analysis (4 units)
This course will use civil procedure as the foundation for teaching students about areas of law in which there are procedural rules, and how analysis and arguments are made in such contexts.

Law 503 - Statutory Analysis (3 units)
This course will use criminal law as a basis for teaching students the methods employed in all areas of law for analyzing statutes.

SPRING SEMESTER 2010

Law 507B - Legal Profession II (2 units)
Continuation of fall semester course.

Law 506B - Lawyering Skills II (3 units)
In the spring semester of this two-semester course, all students will have gained experience in a legal clinic setting, where they will conduct intake interviews of actual clients for the Legal Aid Society of Orange County.

Law 501 - Common Law Analysis: Government Regulation (4 units)
This course will use torts as a way of further examining the common law, and how lawyers reason and develop arguments in this area.

Law 502 - Constitutional Analysis (4 units)
This course will teach students basic areas of constitutional law such as separation of powers, federalism, and individual liberties. It will focus on how constitutional arguments are made, and how courts and lawyers analyze constitutional issues.

Law 505 - International Legal Analysis (3 units)
This course will introduce students to international law and the ways that analyses in this area are similar to and different from analysis in other areas of law.

Abolish the Act of State doctrine?

David Crump — Wed, 09 Jul 2008 10:16:55 -0600

Imagine what would happen if an American President were to persuade Congress to abolish the Act of State doctrine. Presumably, the President would follow this step by “tough negotiations” conducted with the Saudis, which would be convened either “with or without preconditions.” .

]]>And then, when the Saudis politely declined to end their membership in OPEC, the President would say to the Royal Family, “Aw, gee, fellows, do you mean you’re not going to go along? And you’re going to pass your own laws that are different from ours? Fooey on you.”

Such a President might then turn to other projects with about the same likelihood of meaning, such as making water flow uphill, bringing out the sun so we can see at midnight, and maybe, repealing the law of gravity.

This comment is not intended to disagree with the statement that Congress has the theoretical power to repeal the Act of State doctrine—I think it could, but it won’t, because that would be too transparently futile, even for those who want a so-called windfall profits tax. And I certainly don’t disagree with the statement that cartels are harmful, or at least they are almost always harmful. Unless we want to invade all the OPEC countries militarily, though, the United States can’t eradicate this evil in a practical way—it can’t use the methods that have been used with mixed success in cases involving expropriation, for example—and lawsuits about the subject are quixotic

Hole vs. Donut: A response to Darren Bush

David Crump — Thu, 08 Feb 2007 10:42:09 -0600

Darren, the Stracher piece is a mild call for a corrective to a skewed educational system. Yes, there are occasions for intellectual debate in the law. But they are rare, compared to other things.]]>They are possible in larger doses for people in the Justice Department or academia because they are in a rarified atmosphere; they don’t have clients and can afford “wasted meetings” that other lawyers could not. Yes, law school should prepare people for those relatively rare moments of intellectual debate, because they are important. But you have focused on the hole in Stracher’s piece rather than the doughnut. Most of the law is not intellectual debate. Instead, it is about fact development, transactional planning, and such matters—which require a lot of intellect, but are not developed very well by law school. They determine whether lawyers serve their clients well or poorly. You know this to be true. That is the point, and it’s one that is important enough to take seriously. And that’s why Peter Hoffman sent this article around.

Further, the concept that “articling” can supply what is missing was, indeed, daze of youth!