Justice David Souter to Retire

Appointed by H.W. Bush in 1990, Souter is considered a part of the liberal wing of the Supreme Court (the liberal wing being Stevens, Souter, Ginsburg and Breyer). During the presidential election it was speculated that Stevens or Ginsburg would be replaced during next presidential term. The oldest member of the court and the member to have recent cancer surgery, respectively. So, Souter's announcement is a bit of a surprise.

President Obama will likely look for a relatively young justice with a similar ideology as his own -- obviously, that's what happens. However, I doubt there will be much change in the direction of the Roberts Court.

Roberts has been careful about maintaining the independence of The Court. He speaks well John Marshall's leadership of his court, and seems to model his court similarly. (Marshall, also known as "The Great Chief Justice," was Chief Justice from 1801 to 1835.) Marshall's contributions include issuing single opinions, which sometimes meant narrowing the opinion to a very specific holding; and his earning the court the power of judicial review with Marbury v. Madison. Actions promoting the independence of The Court.

With Roberts's leadership, and because the similar ideology between Souter and any possible Obama nominee, it is unlikely there will be much change in the highest court because of Souter's decision to leave at the end of the term. It will be interesting to see how the president handles the nomination process, and who he chooses. I have very little doubt, given the current composition of Congress, he will get his wish (if the nominee makes it out of Judiciary Committee -- thanks to Arlen Specter), but quite a bit of doubt that we will see Change.

Texas Law School Bar Passage Rates

The Texas Board of Legal Examiners posted the statistics from February's Bar Exam. St. Mary's did pretty well this exam -- better than UT even. Baylor is always at the top. Congratulations to these guys: February 2009 pass list.

      1. Baylor        97.06%
      2. U. of Houston 89.19%
      3. Texas Tech    88.57%
      4. St. Mary’s    87.50%
      5. S.M.U.        83.61%
      6. U. of Texas   83.33%
      7. South Texas   80.67%
      8. T.W.U.        77.36%
      9. Tex. So.      40.74%

Exam Tips

The Lawyerist is giving tips on preparing for open book and closed book exams. I think the best advice for the open book is to not learn during the exam -- having access to your notes is a sometimes more of a distraction then it is worth.

Ben Stein's Answer to Recession

Get a dog. I've always liked his droning, flat delivery, it almost sounds like he's being forced to do a public service announcement. (And no, I'm not running out to take his advice.)

On Studying

I've been spending every chance I get going over all I learned this semester... exhausted from repetition, which is, by the way, the mother of retention... what a mother it is.

Found this link, cartoons are somewhat humorous.

Finals

I picked up my first final for this semester today. Trusts. It is a take home, we have about a week to get it done, and it is 1 of 6.

Learned a ton of cool stuff this week, that I plan on sharing soon. They are mostly money things, like avoiding estate taxes, and am almost to the point where I understand most of the sub-prime mortgage situation (really).

Oil and Gas and the Rule Against Perpetuities (RaP)

Back to considering the doing away with the Rule Against Perpetuities...

If the Rule Against Perpetuities were abolished you wouldn't have to be concerned about it invalidating a top lease. (A top lease is an oil and gas lease that becomes effective when an existing oil and gas lease terminates.) The problem comes up when if the top lease violates the rule against perpetuities -- and is therefore void. This happens because of the two term structure of the oil and gas lease. The primary term of the lease is the time given for the lessee to decided to and find a place to drill a well on the leased property, and is usually for a number of years. Once the primary term is expired the lease will expire unless there is production (something coming out of the ground). Secondary terms will continue forever if there is production forever -- and there is part one of the problem.

Say you have a piece of land somewhere with tons of oil under it. You aren't an oil company so you lease (sell the mineral rights to) your property to one for some money and a percent royalty in the oil they pump out of the ground. This oil company hems and haws and doesn't seem like they are going to do anything about getting the oil up and paying you royalties. Being the anxious land owner you are you are ready to find a replacement oil company, and you do. They offer you some money for the rights to the minerals once the first lease terminates (and the mineral rights revert back to you) and execute the top lease. Enter the problem: they have the rights once the current lease terminates, but if the first lessee drills a well and starts taking oil the lease may never terminate.

Because of this possibility, even if the first lease terminated, the top lease is void -- thanks RaP!

There are solutions to prevent this from happening though. One of which is to put a term of years on the top lease. For example, if the current lease does not terminate in 20 years this top lease terminates. The other involves conveying the interest you hold in the minerals: the reverter. When the mineral interest is conveyed with the limitation "for as long as there is production," a reverter is created. The holder of the reverter is the person who gets the property when the lease terminates, and most importantly it is a presently vested interest.

It's all about the drafting. Since people are so much easier to locate maybe abolishing the RaP makes sense -- it would eliminate this problem.

Secured Credit

The author of the text for my Secured Transactions course was on The Daily Show talking bailout stuff last week:

Part 2:

Last Week of Classes

This is the last week of classes for this semester -- my last class is on Wednesday. Finals start next week on Monday -- I have six this time. Ugh.

Happy Tax Day

Dear IRS, et al:

You suck. Thank you for ripping me off more this year then you have ever before. It's real neat how you get to tax businesses through their noses, especially when someone who does a little work and gets paid on a 1099-MISC automatically becomes a business. Appreciate it -- JERKS!

Lots of Love,

R H

And, to all you who think raising taxes is a good idea: may your chains be heavier than mine.

The Rule Against Perpituities

I heard recently that there was a possibility the rule against perpetuities may be abolished in Texas. The rule against perpetuities (RaP) is the rule that tells us that in "interest is not good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest" -- simple, right?

Being tortured with it in 1L Property is the customary introduction to the RaP. Then it is usually tested on the bar, to which some say:  "I will tell you everything you need to know about the RaP. There will be two questions about it on the bar exam. You will get those both wrong."

In Texas the rule is a part of the Constitution which says that "[p]erpetuities . . . are contrary to the genius of a free government, and shall never be allowed." So in order to repeal the rule we would need to pass an amendment to the Texas Constitution -- which has, by the way, been amended 456 times now. Many other jurisdictions have either done away with the rule or modified it in some way to make it easier to determine who is affected by it.

I looked to see what talk of it I could find on the internet and the closest I came was Texas House Bill 990, which appears to only affect trusts. It's a start, I guess. Without the RaP the movie Body Heat would be missing a great twist.

Happy Easter!

Legal easter humor with peeps:

The Supeep Court
Peepsonal Injury
Twelve Angry Peeps