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Volume 25, Nos. 3 & $ (2001) reprinted by permission Legal Studies Forum GAME DAY JEREMY GILMAN* A brisk New England morning in late October. Autumn in all its rainbow glory. Sweaters, light jackets, a cap and scarf here and there, leaves crunching underfoot. The same for heads. College football Saturday. And today was the big one: The Georgetown Pursuants versus the Boston College Third-Party Beneficiaries, before a packed house in Newton, Mass. An amazing matchup. Pound-for-pound and person-for-person, easily the two best squads in the Eastern Law School League. Last year’s game went down to the wire, with Georgetown squeaking out a 24-23 win in a feverish showdown broadcast live by Court TV. With most starters returning this year and a few exciting first years in each team’s lineup, today’s game promises to be a bellringer. The referee blows the whistle. With senior faculty surrounding them, the schools’ deans shake hands on the fifty-yard line and, in a ceremony dating back to their first meeting in 1947, exchange current issues of their law reviews, which the other pretends to read while the senior faculty members join hands and slowly walk around them in a circle. After five minutes of pretend reading, the deans close the law reviews, nod to each other, lock arms and break into an Irish jig, then bow to the crowd and walk off the field to wild applause and more than a few tears. Opening ceremonies complete, it is time for the team captains to determine which team will receive first. Traditionally, the matter is resolved by moot court argument, although last year they did so by name-calling. Several class actions ensued, and the schools decided to return to the traditional approach pending resolution of the lawsuits. This year’s topic: Was the Third Circuit’s decision in Forrester v. Gangel Industries coherent, or are all those judges sick in the head? The current crop of moot court judges was culled from the Supreme Judicial Court of Maine, who unanimously determined that the court’s decision in Forrester resulted from psychotic delusions of grandeur exacerbated by acute alcohol toxicosis, meaning that the Third-Party Beneficiaries would receive the ball. The kickoff is low and wobbly, and the ball goes dead not far from the kicker while players from each team run in the opposite direction. One player, a second year tailback from Boston College with an interest in zoning and/or family law, slips on a copy of Byse on Administrative Law that a Georgetown grad had planted on the 35 yard line. Seeing her down, several hundred alumni from each school rush the field with business cards, flower arrangements and hickory-flavored beef sticks in tow hoping to sign up her case. But the Supreme Judicial Court of Maine commences immediate disbarment proceedings against them–her father included–and their law schools rescind their law degrees nunc pro tunc, meaning that they have to escheat their season tickets to the state. One of the ex-lawyers, a solo practitioner from Lodi, New Jersey, pulls a laptop computer from his trial bag while being escorted off the field and tries to dash off a quick civil rights complaint for anticipated filing later that day in federal court. Unfortunately the judges from Maine enter an immediate injunction against him and declare him in criminal contempt for planning to file suit in a district in which he isn’t admitted, then enter a companion judgment foreclosing on his home, declaring him criminally insane, and placing him in Chapter 7 for life. The United States Supreme Court affirms that judgment later that day in a conference call sponsored by Tostitos® brand tortilla chips, with Justice Thomas declaring in his concurring opinion that “[i]ndeed, Tostitos® are crunchier and more flavor packed than similarly situated salty snacks.” Play then resumes. BC center Matt Aberhoff snaps the ball to second-year quarterback Lisa Hausman, who fades back looking for a receiver but falls on the ball in a panic when she realizes that she’d left her criminal procedure outline untended in a library carrel. Several Georgetown players descend on her trying to pry the ball loose, but an assistant professor from Georgetown who’s been trying to make a name for herself in feminist legal theory circles runs onto the field in a camouflage suit and Groucho glasses. She then assaults the Georgetown defenders with a police taser she’d stolen earlier that day from a nearby day care center. The Supreme Judicial Court of Maine goes into emergency session but adjourns when they realize that they, too, are suffering from psychotic delusions of grandeur exacerbated by acute alcohol toxicosis, not to mention a bad case of hemorrhoids, resulting in a stampede of reinstatement petitions from the lawyers they’d just disbarred. Unfortunately for the petitioners, a traffic judge from New Mexico is in the stands and denies their petitions sua sponte. An emergency appeal to the New Mexico Supreme Court is summarily denied because the judges are busy crushing maize in big bowls to make chimichangas for a late afternoon snack, and a last ditch appeal to the Navajo Nation Tribal Court is rejected on the grounds of revenge. The New Mexico traffic judge—by now largely acknowledged to be America’s foremost jurist—is immediately appointed to the United States Supreme Court where he hastily forges an alliance with Justice Thomas in the evolving field of nacho jurisprudence. The feminist professor finally leaves the field after being promised tenure, but within minutes she is recruited by NYU Law School, prompting her to leave the stadium with her fist raised; but not before tasering her former dean on his rump. The disbarred lawyers again rush the field with floral arrangements and pimento loaves, but the editor-in-chief of the Boston College Law Review declares martial law and orders them dismembered. Again, play resumes. Aberhoff snaps to Hausman. Hausman veers back, fakes right, fakes left, then fakes right again, but is declared in default by the referee for violating the two dismissal rule, so possession shifts to BC. BC is notorious for its attractive nuisance offense. Center Alicia Kopnick snaps the ball to quarterback Josh Loomis, who steps into the pocket, fakes a handoff to running back Stu Seligson, then flips the ball to fullback Les Hopkins who is riding shotgun in an armored personnel carrier on loan from ROTC. First down, BC. A study break follows. Torts for first years, Early American torts for second years, and Contemporary French torts for third years, followed by a group session on the influence of alcohol toxicosis on the development of tort jurisprudence taught by the Supreme Judicial Court of Maine, followed by a beer blast. Then back to the game. Kopnick snaps to Loomis. Loomis looks right, then left, then down at his shoes, then fumbles under pressure by the Pursuants’ offensive line. A scramble for the ball ensues. Piles of humanity dot the field, each one a clue to the location of the football. Finally, beneath the biggest pile, a thin voice cries out, “You’re pulling my hair, asshole!” The football’s been found. Tamar Trotsky, a second year at Georgetown, had it, although she didn’t know it until she stands up. Her teammates are ecstatic, hugging and kissing her and promising never again to deface her casebooks at finals time, but Trotsky isn’t moved: she storms over to the Third-Party Beneficiary who’d been lying on top of her, shoves him backwards, and appears to be screaming viciously while a crowd encircles them. Let’s listen in: “You used unreasonably excessive force on me!” “That’s a question of fact for the jury. Besides, I didn’t intend to.” “So what? Intent is not an essential element of a negligence claim.” “But I owed you no duty of care.” “You’re wrong as a matter of law, cretin.” “Well, in that case, let’s assume arguendo that I did use unreasonably excessive force on you, which I expressly and explicitly deny, but anyway, just for the sake of this hypothetical, let’s assume that I did, bearing in mind my foregoing denial . . . what was I saying?” “You wanted me to assume that you used unreasonably excessive force on me.” “Right. That’s it. Will you stipulate that it’s only arguendo?” “I will.” “So ordered,” said the Supreme Judicial Court of Maine, pausing from their Absolut and tonics. The Beneficiary continued. “Even if I did use unreasonably excessive force on you, you suffered no injuries as a direct or proximate result of my alleged conduct, which means that your damages claim against me fails as a matter of law. See, e.g., Cornwell v. Anderson Motor Freight, 134 P.2d 326, 329 (Idaho 1972).” “Well, in that case, up yours.” “Up yours.” They then exchanged phone numbers and mood rings and promised to apply to the same law firms after graduation. With a minute to go in the fourth quarter, the score is Boston College 34, Georgetown 30, and Georgetown has the ball on its own 40 yard line. BC lines up for its storied nickel defense. Georgetown deploys its heralded no-huddle wishbone offense. New quarterback Alana Goldblatt takes the snap from center Kendall “Ken” Fukiyaki. Play action fake to running back Miriam Schnur, who breaks a fingernail on the play. Goldblatt drifts back, circles right, hops sideways, jumps twice, sneezes violently, stomps her foot and sobs, then watches in horror as all players from both teams dash off the field and into the stands. When she sees what’s happening, she follows them, screaming “Wait for me!” while touching up her mascara. A balcony in the stands has collapsed. Total chaos erupts. Students, teachers, alumni, librarians and beer vendors rush to the scene with retainers, bouquets, crullers and concert tickets in hand, hoping to sign up victims. Others focus on the victims’ spouses. Still others, mostly first year students, work on the victims’ friends, betraying a complete misunderstanding of the concept of loss of consortium. No one stops them. In fact, one tort professor from BC actually encourages them, mouthing off some drivel about “a logical extension of existing legal principles” and “a case of first impression.” A small group of students stop what they’re doing to take notes, and a few raise their hands because they’ve heard that class participation counts toward the final grade. Pandemonium takes over. Fights break out. Debates rage. Lecterns pop up from out of nowhere to accommodate the surge of impromptu mock trials that sweep through the stands. Jury consultants fly in from San Diego. Others hang glide from Minneapolis. Platoons of personal injury lawyers from points as far as Anchorage and Honolulu airdrop onto the field, a few plummeting to their deaths when their parachutes fail to open. The crowd cheers those who don’t make it, and disembowel those who do. Torn Federal Supplement pages litter the air like somber confetti. A few militant miscreants urinate on their class-mates’ study outlines. Others vomit. Someone sets fire to a cat. Several students mate. One sets himself on fire while reading Justice Hunt’s dissent in Pennoyer v. Neff. The editors-in-chief push their way to the center of the mayhem declaring themselves in control, while their acolytes surround them shouting out important rules of proper cite form. They sift through the rubble, wave through the dust, pluck through the debris and pocket stray valuables, and beneath it all—beneath the splintered planks and twisted metal and concrete chunks, beneath all the carnage and wreckage and shattered legal dreams—lay the members of the Supreme Judicial Court of Maine, deliriously drunk. They had caused the balcony to collapse. Caught in the throes of a gargantuan delusion of grandeur exacerbated by Stage 18 alcohol toxicosis coupled with cocaine-induced oppositional defiant disorder and a touch of irritable bowel syndrome, the judges had started singing Scottish rugby anthems while swaying to the beat of the game, arm around shoulder, robe against robe, slowly at first but with gradually increasing torque, building up to a gravitational pull so fierce that the entire balcony starting shifting, then shaking, then wobbling, and then separating from its foundation, until it descended with a boom to the seats below. Miraculously, they’d all survived. The editors dust them off and try to revive them with shots of Jim Beam. A lawyer-priest from South Bend offers to administer last rites if the judges will sign his retainer. The judges reject his offer but gratefully accept his beef satay and Jeno’s pizza rolls. They then thank the editors for saving their lives and summarily disbar them for their ex parte contacts with the court. Justice Thomas affirms. * Litigation Partner, Cleveland, Ohio law firm |
