Law on Rachel Joi

Rational Rebellion: Morality and the Rule of Law in Harry Potter

Sat, 22 Oct 2016 12:43:00 +0000

I’m at LeakyCon in Burbank, CA right now, and yesterday I presented a talk about law, morality, and rebellion in Harry Potter. It went better than I expected, and though I wish I had been better prepared (and had practiced it enough to not have to read it), it was fine, and I received positive feedback. Since most of you weren’t able to be there, I thought I’d post my talk and slides (with “(slide)” written into the script if you want to follow along). The slides are mostly pictures and quotes to complement the talk, but I did work on them, so I wanted to put that out there. Without further ado:

Things I Miss

Mon, 04 Jun 2012 16:53:00 +0000

A friend asked me today if I miss being at my former firm. I thought about it for a minute. There are some things I miss:

being busy all the time (or at least a lot of the time)
someone else shouldering responsibility for my work
someone else being responsible for bringing in new work
having a steady paycheck

However, I know that these are things I miss now. I know business will come in the door in waves, and I won’t always be busy (or always slow). I know I can build a network of people I trust to respond honestly to my work product or my questions, which is something I’m already building. I know I’m getting better all the time at bringing in new business. And I know that the paycheck will come, and it will vary, but it will hopefully pay off in the end. In short, I miss having a safety net. But the freedom that comes with being my own boss is amazing. And that’s something I would miss tremendously at a firm.

choosing a name

Tue, 17 Apr 2012 08:52:00 +0000

I’m sure at least some of you are wondering why I chose the name “Vesta Legal” for my firm. First, a lot of lawyers use their names as their firm names, something which I believe is rooted in ethical rules. The rules have changed though, and a law firm can choose different names. I thought my name was too complex and hard to remember to be effective as a branding technique. And it would just be clumsy: “The Law Offices of Rachel Kibler-Melby” - ugh. I like my name generally, but as a brand, it’s not so great. So the next step was finding a phrase or name that I liked. I have always had an interest in mythology, so I thought that would be a good place to start. I searched for gods or goddesses with connections to wills, and I had a hard time finding anything. Then I thought having the goddess of the home would be a good bridge to estate planning, my primary area of practice. I’m more familiar with Greek mythology, so I first tossed around “Hestia,” protector of the hearth. But I didn’t like the sound of it. I went to Roman mythology, where “Vesta” is the goddess of hearth and home. I liked the sound of her name, and to my delight, I discovered that the Romans actually deposited their wills with the priestesses of Vesta, the Vestal Virgins. It seemed perfect. I searched the name and “law,” and a Swiss law firm came up, so “Vesta Law” was out. There also appears to be a town in West Virginia called “Vesta,” though strangely, no one had used it in their law firm name. So then it was just a matter of figuring out what I liked, and “Vesta Legal” won out among the various “law firm,” “law office,” “legal services,” and other variations. If you’re thinking about a name for a law firm, I would encourage you to not use your own name. Having a brand name is frequently easier to remember, and a bonus is that it allows room for growth. If I take on a partner or hire an associate or whatever, I don’t have to worry about changing the name. It also gives no indication as to the size of my firm (thus breaking no ethical rules by stating it is bigger than it is), which can sometimes give more credibility. So that’s how I came to name my firm what I did. I’m happy with it - I think it sounds elegant, and I like the background of it.

new firm!

Sun, 15 Apr 2012 18:10:00 +0000

As my dear husband pointed out, I haven’t updated this since I was studying for the Missouri bar. In the past three years, I have taken (and passed) three bar exams - Missouri, Illinois, and Kansas - worked for two different firms - one doing civil defense litigation (asbestos) and one doing data privacy and records management consulting - and have recently started my own firm! I’m doing estate planning, and I hope to do asylum work on a pro bono basis. I’ll write a few posts on what I did to start my own firm, but I wanted to get a post out. Hooray for a new firm!

another long absence

Sun, 15 Apr 2012 17:47:00 +0000

I’m sure you’ve all been dying to know what I’ve been doing for the last six months, so here’s the update. I left my job and started my own firm, so that’s cool. I’m doing estate planning, though right now, I’m doing pretty much anything. In February, I started a bunch of seeds, and this year, I decided to do better than last year, where all my seedlings either died or ended up really leggy. I got a grow light and some heating pads, and we set up a table in the basement as my grow station. I know what it sounds like, but I promise it’s legit. I’ve planted 5 types of lettuce, spinach (which didn’t germinate, oddly), 5 types of carrots, kohlrabi, arugula, lots of different pepper, dill, parsley, cilantro, basil (a bunch of different kinds), mustard, chives, eggplant (including an African variety - yum), lots of tomatoes, thyme, little strawberries, cucumber, a few different squashes, and other things. I’m SO excited. Some of them have made it into the garden, but a lot of things are still waiting downstairs. I’ve been surprised at how much water they need, but considering the light and the heating pads, I guess I shouldn’t be. Outside, everything seems to be doing really well. Our grapes and (female) kiwi came back (we got a new male kiwi yesterday), the agastache is really happy, we’ve had asparagus, coming up, the raspberries and blueberries are turning into something recognizable, my herb boxes are doing well, and the strawberry patch is blooming. We built another raised bed and planted a bunch of flowers in it. I think Carl is going to build me a basil box to add on to the raised bed. That will be exciting. I’ve been baking quite a bit as well. I made eggplant parmesan a few weeks ago, which was delicious. And I still make my sourdough bread about once every other week. I’ve progressed to adding rosemary and olive oil or cheese to it. I want to try adding lemon thyme to it as well. I think I’m going to make a double chocolate crumb cake this week, so I’ll keep you all updated. I have the best husband ever, the dogs are great, and I have independence in my career. Things are going well!

work-life balance

Mon, 18 Jan 2010 22:29:00 +0000

This will be a short post, as I have to be at work in seven hours, meaning that I have five hours to sleep, but I wanted to say a quick word about balancing work and life. In the legal profession, or at least in private practice, balance seems to be actively discouraged. All through law school and while looking for jobs, I told myself that being balanced was very important. And it is. However, it seems to be a struggle to maintain it, and my job sometimes feels like it is a little kid on a teeter-totter who keeps moving closer and closer to the fulcrum. I’ve joined an orchestra and a gym, and I have taken over the music director position (“position” being a very loose word) at LCM as well as looking for a new church home in Overland Park. Also planning a wedding and starting to look at moving to KC (well, Johnson County really). And making time for friends. I should be able to do all this, right? It seems like these things are essential to my well-being as a person as well as a lawyer. And yet there is never ever enough time. As I write this, it seems more like I took too much on rather than work is demanding more of my time than it should reasonably have, so maybe I’m just whining. Today was just a hard day, and I’m starting to think that this struggle for balance, and this ideal of working at the office and not working outside the office is just that, an ideal.

studying for the Bar Exam

Mon, 06 Jul 2009 18:42:00 +0000

I’ve been working on Wills and Trusts today. I won’t have much time to read tomorrow, so I actually read ahead… And I had a thought. Trusts for animals (pets) are exempt from the Rule Against Perpetuities, at least in Missouri, and they last for the life of the animal, or the last surviving animal if the trust is for more than one animal. When I took Estates and Trusts (one class) in law school, my friend and I had talked about ways to get into the casebook, whether by naming our children C1, C2, C3, and so forth, or by creating an exceptionally complicated will with all sorts of procedural problems. What I want to do is adopt some animal with a long lifespan, like a turtle or a lake sturgeon, then put a massive amount of money into a trust for said animal, and then watch from my cloud while the litigation ensues after I die. I figure someone will make the Rule Against Perpetuities argument, especially since it’s for such a long time, and there will be an issue of what a pet actually is, and the trustee will be completely greedy and breach fiduciary duties. It will be fun. Is it bad that when I study, I think about ways to get around the law? Don’t worry, I won’t be breaking any laws knowingly or willingly.

studying for the Bar Exam

Wed, 10 Jun 2009 20:00:00 +0000

I like organization. I like having plans. I have created a plan that is supposed to motivate me to study for the Missouri Bar Exam, which I will take July 28th and 29th. I’ve devised a point system. Three colors of points, though they are all worth the same amount. I get a blue point for every set (17 problems) of multiple choice questions I do. I’ve thought about having a quality threshold, but that (and I) would be pointless. Then, I get a green point for every essay I write. Finally, I get a purple point for 1) every 20 pages I read in the large outlines, 2) every 20 notecards I create for studying, and 3) every half hour I spend (productively) studying otherwise, though if I study for 50 minutes all in one go, I get two points. Basically, every point is roughly 30 minutes of work. So that’s my system. Sounds great, right? I have decided that I need to amass 30 points before I can watch any Harry Potter movie, and if I want to watch all five before July 15th, I need to get some serious points going. I have not earned many points so far. I’m working on it. Also, I moved into Carl’s house a week and a half ago. Stuff is EVERYWHERE. I feel torn between studying and cleaning, and so I end up reading a magazine instead, naturally. It’s probably a good thing Carl won’t move back to the States until December. It gives me plenty of time to reorganize. I told him how I’ve been organizing our books and DVDs and things. He has a strange aversion to organization, and he has repeatedly cautioned me that his books will not stay the way I’ve put them. It will be a fun marriage, I think. Speaking of which, we’re doing things backwards, and we’re going to basically take our honeymoon this August while I’m over there. We’ll spend a 7-10 days in Great Britain at the beginning, a week in Italy at the end, and we’re hoping to spend a weekend in Switzerland (Zurich maybe?) and a weekend in Vienna. I’m really looking forward to it. I love hanging out with Carl, and we have such a great time together. We have not done much traveling together, and I think it will be a lot of fun. We have similar ideas of what constitutes “fun,” which will be a great thing. I can’t wait to be there. Then, after we’re married, we’ll take a weekend or something and go somewhere close. It may sound corny, but the thing I’m looking forward to most is just getting to be with my best friend. I should study.

cert

Wed, 22 Oct 2008 22:21:00 +0000

SCOTUS granted cert on my issue. No word on when arguments will be. Darn. I knew the risk, but I wanted to be cool and have something published before they looked at the issue, because then I would have been the only article out there on it. Yeah.

dishonesty

Mon, 29 Sep 2008 13:30:00 +0000

Sometimes reading cases just makes me feel dirty when I see the academic dishonesty that goes on. Courts will take things out of context (much like law students, ha), manipulate language, and pick and choose “binding cases.” The best example of this is United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008). The court basically says that, because a district court in another circuit (a lower court that is not bound by this court’s precedent) decided one thing, and this court cited that case for a sort of related proposition in another case, the district court case became very persuasive, if not binding, law. It just leaves a bad taste in my mouth.

searching for a job

Mon, 22 Sep 2008 18:12:00 +0000

We’ve entered the job-search phase, which is an immensely terrifying thing. I alternate between a sense of optimism and hopelessness. Legal areas that interest me include intellectual property, criminal law, immigration law (refugee/asylum), public international law, and litigation generally. A clerkship would also be lovely. If anyone actually reads this, and anyone has any sort of job opening, let me know. I’m writing three papers this semester (yay!). My topics are: enforcing immigration law using criminal law, specifically aggravated identity theft, where the mens rea requirement is disputed and conveniently massaged to include more immigrants in its scope; whether children with disabilities can sue under sec. 1983 when their rights are violated under the IDEA; and international copyrights (using international treaties and individual national laws) protecting composers and performers of folk songs and contemporarily composed music. Fun, no?

Heller

Fri, 27 Jun 2008 14:38:00 +0000

This isn’t my own creative work, but it amused me. It was posted on the Lawrence Journal-World website. Here’s a haiku in response to the Heller decision.

Hand me my shotgun. I need to go kill a bear, then I’ll have bear arms.

the bar application in Kansas

Fri, 20 Jun 2008 12:24:00 +0000

I’ve been looking at the Kansas bar application (not necessarily meaning that I will take the Kansas bar, but I need to start pulling my information together), and when it comes to references, both general ones and character fitness ones, I need to have known all of them for four or more years. They also can’t be employers, relatives, “fellow” law students (I need to find out if this disqualifies law students from other schools), and only one out of the eight can be an attorney or a judge. This essentially disqualifies all the people I talk to currently. Rather, it disqualifies all the people who know me well and can attest to my ability and fitness. It disqualifies all my pastors, as I worked for Luther College Ministries and my mom has been my pastor the rest of the time (ooh, wait, there might be one!). I could ask the bishop, but he really only knows me through my mom. I just think it’s an arbitrary requirement that doesn’t actually mean that someone knows you well now, but rather, that they’ve known you in the past.

ICE

Wed, 28 May 2008 20:30:00 +0000

We all know ICE has done terrible things to people, even US citizens and LPRs. And so I think the rallying cry should be: “Ice ICE, baby.” I came up with this while I was sort of listening to a conference call in my boss’s office. I started to giggle and then had to stop myself. More on my job later. Suffice it to say, I’m loving being in DC and working for LIRS and using all sorts of acronyms. The learning curve is amazingly steep. That’s all for now. If anyone should go hang out with my cats, tell them hi from me and tell them I miss them. :)

Chief Justice Roberts visited KU

Thu, 01 May 2008 21:44:00 +0000

Last night, CJ Roberts gave a lecture through the business school. It was fairly disappointing, honestly. He read his talk, and he talked about the Louisiana Purchase. He also spent a long time on the mechanics of the Supreme Court. I understand that the audience was made up of many lay people and that he couldn’t actually talk about many of the things we really wanted to hear about (e.g., Heller), but I guess I expected a little more. Today, however, he had a Q&A session for law students. I got there 1 1/2 hours early, so I was first in line. He actually walked in while I was in line, and he said hi. It was quite the moment. I got to sit in the front row, and the session was just great. People asked all sorts of things, from what he considers when deciding a case to his view on the Constitution (although that question was also asked last night by Adam Davis and received by the audience with resounding applause) to advice for aspiring advocates. I asked the second question. I asked him about the Medellin case. In that one, which came out just over a month ago, he wrote the opinion for five justices (the conservative ones), in which the Court held that an ICJ decision (that a certain treaty required the government to notify the Mexican government of the charging of Mexican nationals) was not binding on the individual states, and so the habeas petitions filed by 51 Mexican nationals were rightfully denied. In the analysis, the majority looked to the text of the treaty, and the Vienna Convention on the Law of Treaties, and the US Constitution, and found that ICJ decisions were not self-executing treaties and could not be binding unless the Senate ratified them. My question was whether he would advise countries developing independent judiciaries to include something in their constitutions that would make ICJ decisions binding on the individual parts of the country. He didn’t directly answer this, saying that it was up to the country and he couldn’t advise them one way or the other, but he also said that if the country decides it wants to be bound by a bunch of judges far away, it’s that country’s own perogative. That seems clear enough to me. So then he taught the constitutional law class, which I unfortunately could not attend. I heard it was great. But then, in the afternoon, he and four judges who sit in Kansas (two 10th Circuit judges, a District of Kansas judge, and a Kansas Supreme Court justice) judged the final round of our in-house moot court competition. There were probably 100 students there, a number of professors, a handful of local judges, and lawyers from the firm (Foulston Siefkin) that sponsors the prizes for the in-house competition. The student advocates were excellent. The bench was really hot. The justices usually didn’t let the advocates speak for more than 15 or 20 seconds without interrupting them. The few times they didn’t interrupt, the advocates were kind of thrown off. But everyone did a really great job of advocating, especially under such intimidating circumstances. All of the judges/justices-for-the-moment gushed about how wonderful the advocates were, and Judge Tacha even said they did as well if not better than the final round in the national competition, whose problem we used. I was thrilled for the team that won - Dani and I were rooting for them from the beginning - but I was still a little bummed that it wasn’t the two of us up there. After the competition, there was a reception in the informal commons. Lots of men in suits (and not just federal marshalls) were trying to get close to Roberts, but I managed to get pretty close to him. And then he turned towards me! And he shook my hand and thanked me for my question! It was a very proud moment for me, even if it was just what the situation required. I know CJ Roberts is a conservative judge, and I don’t necessarily agree with his opinions (including the opinion he wrote for Medellin), but he’s brilliant, his credentials are absolutely outstanding, and he’s kind of dreamy. I’ve been joking about swooning. Ah, men with power. That is probably slightly inappropriate for a legal blog, but oh well. It’s been an exciting day and a half. (And today was the last day of classes, which made it even better.)

in response to the McCain controversy

Thu, 28 Feb 2008 21:03:00 +0000

A friend asked me what I thought, so I responded. This was on Facebook, so it is a little informal: Whether McCain is a natural-born citizen has been getting press (well, minor press) for years, but it makes sense that the politicos would bring it up now. I think the US Constitution was created to define rights between the federal government, the states, and the people, and giving people rights is one of the big things, so it would make sense that “natural-born” would be interpreted broadly. Also, I just spent a few minutes perusing the INA, and sec. 303(a) says “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.” It seems to me that the distinction between “citizen” and “natural-born citizen” is just citizenship at birth. The courts should (at least I think they should) find that the use of “citizen” in the statute means “natural-born citizen.” There.

universal jurisdiction

Fri, 15 Feb 2008 21:05:00 +0000

No citations this time, just ruminations. I read a story about how some nations are using universal jurisdiction to prosecute war crimes . Universal jurisdiction is an awkward concept to me. It allows a nation with absolutely no connection to a crime to prosecute the perpetrator of that crime. The nation has no interest in it except a moral one. While morality does have a place in law, and especially in criminal law, it cannot be the sole reason for bringing someone to justice. There should be some other connection. While universal jurisdiction might be used to prosecute only the most egregious of war crimes, it sets an alarming precedent. If a homosexual were to travel to a nation where sodomy was criminalized and the law was enforced, even if the person did not engage in sex while there, the government could theoretically prosecute by using universal jurisdiction. The point of international law is to create treaties between nations. Nations have to agree to be bound (however, if a law is so fundamental as to be jus cogens, then every nation is bound regardless of whether or not the nation agrees). Hence, for individuals to be prosecuted by the International Criminal Court, that individual’s nation must be a party to the Rome Treaty. Beyond that, there are the tribunals set up by the UN to prosecute individuals for crimes committed during conflicts in certain areas, like Yugoslavia and Sierra Leone. Granted, universal jurisdiction only comes into play if the individual cannot be brought to justice under the Rome Treaty or under one of the special tribunals, but if the UN is unwilling to create a tribunal, why should individual nations be able to prosecute those people? This may be rather incoherent. I apologize.

protecting the innocent... corporations?

Sat, 02 Feb 2008 15:14:00 +0000

I didn’t realize the significance of this case until I read a blurb about it in the Economist this week. The US Supreme Court came down recently with the decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., — S. Ct. —, 2008 WL 123801 (2008). Kennedy wrote the opinion, joined by all the conservatives, and Stevens wrote a dissenting opinion, joined by Souter and Ginsburg. Breyer recused himself from the beginning because of stock he owns. Roberts initially did, but I guess he sold his stock so he could be part of the opinion. On to the opinion itself: Investors (led by Stoneridge Investment Partners) sued a cable company (Charter Communications, Inc.), its executives, its independent auditor (Arthur Andersen, poor souls), and the company’s vendors and customers. The investors said the company made sham transactions that inflated its reported revenues and cash flow. The investors wanted the customers and suppliers to be liable for the sham transactions they agreed to. Scientific-Atlanta and Motorola were suppliers and then customers of Charter. The Court assumed that Arthur Andersen had been misled, though it made no controlling decision on that point. Id. at *3. That’s good for Arthur Andersen, at least. Charter entered into a deal with both Scientific-Atlanta and Motorola to pay more for digital cable converters that it purchased from them, and they would then buy advertising (at higher prices) from Charter. Id. Charter drafted documents to mislead Arthur Andersen in its transactions with Motorola and Scientific-Atlanta and make it appear that the transactions were unrelated by backdating the purchase agreements to a month before the advertising agreements. Id. Charter showed an increase in revenue and cash flow of $17 million, which it reported to the SEC and the public. Id. The investors said Scientific-Atlanta and Motorola had a duty to disclose the transactions. Id. at *4. The Court had previously held that, when suing for deceptive practices in the selling of securities, liability does not extend to aiders and abettors. Id. at *5 (citing Central Bank v. First Interstate Bank, 511 U.S. 164, 177 (1994)). The idea was that a company had to make statements or actions that the plaintiff directly relied upon before there could be any liability. Id. The Court decided in this case that, because “[n]o member of the investing public had knowledge, either actual or presumed, of [Scientific-Atlanta’s or Motorola’s] deceptive acts during the relevant times,” the investors “cannot show reliance upon any of [those] actions except in an indirect chain . . . too remote for liability.” Id. at *6. The Court did point out that secondary actors (including aiders and abettors) can be subject to criminal penalties and civil enforcement by the SEC, but that there is not always a private right of action against those secondary actors. Id. at *11. In the dissent, the liberals were rather vehement about the majority being incorrect. Stevens wrote that the actions of Scientific-Atlanta and Motorola “had the foreseeable effect of causing [the investors] to engage in the relevant securities transactions.” Id. at *13. The majority, in stark contrast to this, requires an action that makes it “necessary or inevitable” for the issuer to deceive as it did. Id. at *7. This is the really interesting point of contention to me. Should we hold people and companies to a high standard of morality in business practices? Every action has a foreseeable effect, usually many foreseeable effects, but being foreseeable does not make an effect inevitable. I’ve been analogizing a lot of situations to raising children lately, although I have no experience with that, so here’s another one: If your child asked for $10 to buy a birthday present for a friend, and you knew that what your child wanted to buy really cost $5, and you suspected your child wanted the $10 to spend the extra money on something you disapproved of, would you be at fault by giving your child $10? Giving a child more money than you suspect is necessary may have the foreseeable effect of your child spending it on something you disapprove of, but it’s not an inevitable effect. If children can choose what to do with their money, shouldn’t corporations be able to choose as well? We cannot be responsible for the bad things other people do unless we are directly involved. That may not apply to criminal law very well, but I do think that in this time where independence is valued more than most other things, we cannot treat people, or companies, as a community that is collectively responsible for the faults of one when it is convenient.

participating in persecution

Mon, 21 Jan 2008 15:38:00 +0000

A recent case – Chen v. U.S. Atty. Gen., — F.3d —, 2008 WL 150205 (11th Cir. 2008) – discussed a woman’s application for asylum status. Chen lived in China and worked at a governmental family planning office. Her job was to watch over the pregnant women who had violated the country’s family planning policies until they were forced to abort the fetuses. After about a month of working there, she released a woman who was eight months pregnant and was subsequently fired. She feared worse, and so she fled to Thailand and then the US two years later (in 2005).