Thursday, February 28, 2013

Real Assault on Our Rights

For all the palaver about assaults on our Constitutional rights with regard to the Second Amendment, let's take a moment to consider a recent decision affecting our Fourth Amendment rights. During his administration, President Bush appointed two justices to the Supreme Court. One of those appointees, Justice Samuel Alito, joined by the other four Conservative appointees, just issued the ruling in Clapper v. Amnesty International. For those who claim to be concerned about threats to our Constitutional rights, this is a real and actual matter of concern.

In a nutshell, Justice Alito, joined by C.J. Roberts and Justices Scalia, Kennedy, and Thomas, has placed warrentless wiretapping in a nifty (for the Government) Catch-22 - in order to bring a suit for damages arising from an unconstitutional search and seizure with respect to a warrentless wiretap of your communications, you have to prove first that you are in fact one of the individuals the government has wiretapped and are in their database. The rub is that the government holds no requirement to disclose the individuals who are the targets of the wiretapping.

As Glenn Greenwald notes, "a law without a remedy is worthless," as he quoted Alexander Hamilton in Federalist 15 - "It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation." This shameful tactic of removing standing to shield the law from Judicial review is one that President Bush used with FISA; it's doubly shameful that President Obama has continued the tack.

Tuesday, February 12, 2013

Advice for Spring 2013 Texas State Bar Exam takers

Reposted from June, 2008, but still pertinent.

It's almost July; the exam is coming up in about a month. Some of y'all may be getting stressed, particularly about practice exam/simulated MBE scores. First off - the simulated MBE is to give you an idea of what the exam is like and to kind of remind you that this is coming up. Keep studying your rules of law, and you will be fine.

Remember, the exam is there to test how well you can spot issues, state the rule and apply it (this is your IRAC in action). You have to be able to keep your thoughts organized - take your time and let the answer come out. Don't panic. So long as you've studied, you should be fine. The exam is designed to be difficult, but passable. The idea is that you need to put in the effort to prepare for it. Remember that, and remember that you already learned most of this in law school and you're just refreshing your mind while studying for the bar, and you should be fine. You still need to actually study, though. That part is tough to pass by...

I can't tell anyone "how" to study for the bar exam. Everybody learns their own way. I can tell you what worked for me, if that gives you a launching point for your own preparation after BarBri ends.

Photog and I studied together. We went to BarBri together, then went to the school and studied together. One thing that helped us was that we were able to find a room where we could speak to each other without worrying about disturbing others. This way, we could go over practice questions and exams and discuss the answers to reinforce what we were learning. We actually chose the International Law Society office at STCL because we knew we would be able to study and still have things to take the focus off our stress.

We would start the day by doing about 30-50 multiple choice questions, either from the Barbri software or questions from other exam sources. We would read 10 questions, we would both come up with answers individually, then we'd share our answer. If the answers did not match, then we would "sell" our answer to the other before we checked the answer (on the software we usually did this one question at a time). After we checked our answer, we made sure we understood the reasoning for the answer, particularly if we got it wrong, or if we got it right but only because we guessed the correct letter. Attention to detail counts here. Read each word in the question and answer. Then we'd take lunch.

After the MC questions, we would start on the essays (should be the yellow book). Again, we'd read a question, come up with an answer, explain the rule of law, and support our position. For these, we usually were pretty close with our answers, but our reasoning might differ slightly, except in the situations where we simply had no idea about the topic of the question (this will happen - make sure you make note of it and keep going - don't get bogged down). We would do this for 3-5 hours, usually getting through 3-6 essays (don't worry about speed, which will come, worry about getting the rules down). Then it was time for coffee and coca-cola breaks.

Then, depending on our energy level, we would consider going over the Procedure and Evidence questions - you want to do these a couple times, just to make sure you're comfortable with the questions - there's a limited number of questions that they can ask, so you should have little trouble getting these in your head.

One of the things that we had to do was keep something around to occupy ourselves - we had toy swords and a Nerf ball that we would bat around, and a yardstick we would balance from time to time. I find that I need to keep active while I'm studying, it helps me focus. This is certainly not for everyone and if you are studying with anyone, make sure that your study partner is of similar activity requirement.

Finally, keep your sense of humor, don't get discouraged.  Should you find yourself flailing or feeling like you don't know anything, just recite the common law standard for burglary (the unlawful breaking and entering of a dwelling house of another at night with the intent to commit a felony therein).  This helps you refocus and get the ball rolling again - it can galvanize you.  You know the information, you just need to practice getting it out. Like I said before - the exam is there to challenge you, not to try to fail you. If you ever need any bad jokes to ease the stress, I may know one or two.

Lightweight Blogging

Just wanted to take a moment to share the fact that we're going on a cruise in a few weeks.  You are not.  Be jealous!

Sunday, February 03, 2013

Super Bowl

A couple things... first of all, I thought the commercials this year were by and large listless.  Nothing terribly water-cooler quality to speak of.  I did not care for the hot girl and nerd guy making out commercial, which I thought was wrong-headed, but it's not a surprise given the company it was made for.

I thought the game turned out to be quite good.  I'm not suggesting that it would have changed the outcome, but I did think the officiating was markedly one-sided, to the point that I right now cannot recall one penalty Baltimore got called for during the game.  Moreover, I do recall seeing at least 3 very blatant non-calls in the 4th quarter, one of which did have some impact on the outcome of the game (not saying it changed it, but it limited the potential for the game to end differently). 

I'm happy for the Ravens, though I found myself pulling for San Francisco in the game. 

Now for bed, then back to work.

Friday, January 25, 2013

WOMBAT

I'm taking a brief break from Oil and Gas writing today.  Instead, I went and watched Movie 43, which was quite possibly the worst movie with the most talent I've ever seen.  I don't understand how Kate Winslett, Hugh Jackman, Emma Stone, Halle Berry, Patrick Warburton, and so many others could let themselves end up in a movie that bad.  I don't think I could quantify just how bad this movie was, and this is after going in knowing it was a January release. 

One other thing I noticed, was that before the 20 minutes of movie previews (!), was something I've never imagined would be possible.  It was a preview for a commercial.  There was a commercial preview at the movie theater before the movie previews, complete with a reference to go look up the product for the complete Super Commercial (I'm guessing the "premiere" of the commercial will be at the Super Bowl). 

We are screwed as a nation. 

(WOMBAT is an acronym that means "Waste of Money, Brains and Talent")

Wednesday, January 23, 2013

On Gas Storage

Continuing my studies from Texas Law of Oil and Gas, Second Edition, I am currently on the authors' section on Rights in Natural Gas Injected into Underground Reservoirs (This begins on Page 1-21 for those following at home). 

With regard to ownership over escaped oil, the authors note that disputed are more likely to be in the form of disclaimers as opposed to outright title assertions. 

They then note that there is a distinction between oil and natural gas in the matter.  When natural gas is injected underground for storage or other purposes, there can be legal title questions raised.  They then note that there are several relevant factors to consider when title to natural gas is disputed, including among others the reason for injecting, the structure of the underground reservoir, the contents, the ownership of rights to production from the reservoir and the applicability of the Underground Gas Storage and Conservation Act.

It makes sense that natural gas is used more in cold weather for heating, or during severe weather as opposed to fair weather.  In order to ensure a steady supply during periods of peak use, it makes sense that Natural Gas would be stored, and with gas, it also makes sense to make use of natural storage spaces, such as underground, such as from a previously depleted gas unit, or from leaching salt from a salt dome formation.  With regard to the former, there is one challenge - the depleted formation will invariably still have some gas from the original source, which the authors dub "native" gas. 

If we remember from our previous discussions, oil and gas that has been produced becomes Personal Property, as opposed to Real Property.  Being personal property, ownership of natural gas that is stored underground can be abandoned like other property.  If the storage company is unable or unwilling to assert control, such as through negligence, however, the Court in Lone Star Gas Co. v. Murchison, the authors note, held that the company that injected the gas that migrated to a part of the reservoir not subject to the company's storage rights had NOT abandoned the property because the primary tenet in the doctrine of abandonment is the intent to abandon, and the injecting company "unquestionably" planned to withdraw the gas during peak consumption.

Another concept of abandonment comes through the concept of commingling, where personal property which is fungible that belongs to two or more people becomes mixed in such a way that it's impossible to determine whose property belongs to whom.  The Texas Supreme Court has held that commingling is not grounds for abandonment based on commingling in Humble Oil  & Refining Co. v. West, where a reservoir that was still capable of producing (the book does not state whether it was producing, rather that it had not yet ended its productive life), was the target of injection.  The injecting company in that case had to pay royalty on the native-gas portion of the withdrawals, and had the burden of establishing with reasonable certainty the property of injected gas to native gas. 

That's plenty to read for now.  Next time, I'll try to touch on Pressure Maintenance and Cycling Operations.

Thursday, January 17, 2013

Ownership of Production

The other day, we touched briefly on the Ownership in Place Doctrine.  This was extremely brief based on the amount of free time I had at the moment, and, as always, encourage you to review Texas Law of Oil and Gas, Second Edition for a thorough review of this and any other topics discussed herein with regard to oil and gas law in Texas.

Today, we're going to go over the concept of Ownership of Production.  We know from previous study that Oil and Gas underground are part of the realty - in other words, they can be conveyed like and other interest in land, and they can be severed, as well.

This changes, however, once the Oil and Gas resources are produced.  As a matter of law in Texas, once produced, oil and gas becomes personal property, and therefore out of the purview of the Rule of Capture.  This means that once you get minerals to the mouth of the well, if (as the book gives for example), a pipe breaks and the oil flows across the surface of the operator's land onto adjacent property, then the owner of that property's mineral estate does not automatically gain control of the oil.  With respect to gas, the authors cite Lone Star Gas Co. v. Murchison (353 S.W.2d 870 (Tex.Civ App. - Dallas 1962, writ ref'd n.r.e.)), where natural gas that is pumped into an underground reservoir for storage purposes by an injecting company, said natural gas retains its character as personal property. 

This seems to be the logical position - once you've take steps to retain the minerals, such as injecting the gas into a depleted reservoir, you are not "unproducing" the minerals, and as long as you retain control, then you aren't abandoning it.  As it stands, the authors note that the Underground Gas Storage and Conservation Act (Tex. Nat. Res. Code Ann. Sec. 91.171 - 91.184) actually outright states that natural gas is the personal property of the injector and not subject to the rule of capture.

This concept of classifying produced oil and gas as personal property does contain legal consequences, such as disposition on death, as well as what controls the sale - e.g. from the statute of frauds doctrine to the USS, as well as the type of security interest that can be acquired.

I will try to discuss the authors' section on Gas Storage in the next day or so.

Tuesday, January 15, 2013

Ownership in Place

The State of Texas adopted the Ownership-in-place theory in 1915.  The premise is that because oil and gas resources lie in the ground, by necessity, they are part of the realty.  The authors of Texas Law of Oil and Gas (see Previous Post) cite Texas Co. v. Daugherty (107 Tex. 226, 176 S.W. 717 (1915), which I won't re-state here. 

The same case addressed the issue of what the authors dub the "fugitive" nature of oil and gas by noting that the materials are as likely to flow from the ground just as one who purchases solid minerals (e.g. coal) runs the risk that the minerals are not there.  If the minerals are present, then they can be exploited. 

Texas uses the Correlative Rights doctrine and the fact that claims of injury from drainage from adjacent property is based on conjecture to address the drainage issues.

More later.

Monday, January 14, 2013

Mineral Ownership Principals

This post is probably going to be boring for anyone reading it, because I'm basically re-stating the Texas Law of Oil and Gas, Second Edition, by Ernest E. Smitha nd Jacqueline Lang Weaver (I'm reviewing my work right now, and hope that this will help the study sink in that much deeper).  Nothing I am writing is new, and while I am trying to re-state it, the ideas come from their research and writing.  If I'm misstating what they've said, then I welcome corrections, however, I will not be posting any other citations for their work beyond this paragraph. 

In Oil and Gas law, particularly here in Texas (which I single out due to the fact that my study materials are for Texas Oil and Gas Law), perhaps the first issue one encounters when dealing with Oil and Gas after locating it is the question, "Who owns it?"  over the years, the concept that has controlled has been the Rule of Capture. 

As the authors note, "the probable reason for the urle of capture was not so much the legal analogies but practical necessity."  The concept apparently was adopted earliest in Appalachia and here in Texas beginning in 1910. 

The basic notion of the Rule of Capture is, essentially, that a person owns all of the oil and gas produced by a well on his land, even if the well is draining oil and gas from underneath other properties.  Note that this applies to wells that are bottomed on their land, not a well that has begun on their property and angled into another person's property - that would be a trespass.

There are remedies for the owner whose minerals are being drained, such as an offset wel.  The landowners, in Texas, has this ability, as recognized by the Texas Supreme Court. 

There is a lot to go through in this book, and I'm going to be doing it relatively piecemeal, so bear with me.

Again, this is the "lite" version of the material - please read Texas Law of Oil and Gas, Second Edition for a thorough working of the law.

Saturday, January 12, 2013

Playoffs

I must say, I was kind of hoping that Peyton would fare a bit better than he did. While I think that pass was quite the mistake, I also think it's unfair to place the blame for the loss on his shoulders. He wasn't the one who gave up a 70 yard touchdown pass in the last two minutes of regulation to put the game in overtime. On another note - I am not necessarily a fan of how Alex Smith got jobbed in San Francisco, but I'm happy to see the 49ers win and bid good evening to Green Bay's playoff season.

Thursday, January 10, 2013

Ouch

I'm watching 2 and a half men, and they just finished a musical number called "You're a douche." I don't think I've ever heard the word douche used so much in any one day, let alone 5 minutes. Now, I know the sow was never exactly high brow, but man, this is painful to watch anymore. I do hope this is it for the show.

Tuesday, January 08, 2013

Another New Year

I'm not convinced anybody is still reading this, and I'm definitely not convinced that I'll be posting any more regularly than I have the past couple of years, but to those who are still out there - Happy New Year!

Friday, October 26, 2012

More Taekwondo

No pictures this time, but I wanted to let you know that we had a tournament recently, in Brenham again - the 2012 Fall Unified Taekwondo Invitational Championship.

This was the second tournament for myself and the Apple.  Additionally, last weekend was the Princess's first tournament.  All things considered, the Binjo Ditch clan fared pretty well.  The Apple finished first in patterns, which is outstanding, and just off the podium for sparring (Apple's dad is convinced the Judges missed a point that would have put him at third).  The Princess finished second in both patterns and sparring, which is outstanding for someone new to tournament life.  I had to watch the second match she fought as I was assigned to spar at the same table as soon as her group was finished.  Speaking of which, my sparring went pretty well.  I am now a Blue Belt, which in ITF equates to about half-way to a black belt.  In my group, I was paired up against a yellow stripe (first belt acquired after white belt) and a yellow belt (second belt acquired).  I ended up fighting both individuals in sequence, winning both matches and thus taking first in my group.  Us old guys really are an interesting group to watch sparring.  Fortunately, I've been doing some cardio at the gym for the past few weeks, so I wasn't as dead out of breath after fighting as I was last tournament. 

I don't particularly care for the tournaments.  I don't like to fight, and really only do the taekwondo for the physical exercise.  However, the tournaments are a requirement for black belt (another issue I have with organized martial arts is the mandated tournaments).  At any rate, I'll be sticking with Taekwondo until I either get my black belt or the kids decide they're done, or I just run out of spare time to do it.  At any rate, it's definitely fun.  I encourage it for all who are interested.

At another point I'll discuss my understanding of the differences between the different styles of Taekwondo... because I know y'all are itching to hear!

Monday, October 15, 2012

October

Hard to believe it's been so long since I posted.  I remember when I did this multiple times a day.  Amazing what having kids and work will do to your free time.

Monday, June 11, 2012

Still alive and kicking

We picked up a new car yesterday.  It's a big improvement over the previous car, however, it's not quite the uber-vehicle I'd dreamed of (which I knew going in, so it's not a disappointment).

In other news, apparently Bristol Palin will be on a reality show that will show that she is a normal mom. Don't interpret what I'm going to say as a dig on Bristol Palin individually, however, it seems to me that anyone who is talking about what their reality show is going to demonstrate is not someone that qualifies among the ranks of "normal."  In my experience, normal people don't put their lives in front of a cam-... actually... Maury, People's Court, Divorce Court, etc... perhaps reality show folks are normal...

Other than that - how are y'all?

Monday, April 23, 2012

Deep Thoughts

Okay, maybe not too deep, but something that popped into my head...

How many people, if they were truly honest with themselves, would say that an accurate answer to "what did you want to be when you grew up?" is "envied?"

Monday, April 16, 2012

What a Week

It was a rough week last week. I just got through what could be the most difficult Opinion I've ever worked on, and frankly, I'm exhausted.

Of course, I don't get to take a break because there are other Opinions that need working on.

Not that I'm complaining about having work. It beats the alternative.

Still, I could use a day off. Not that I'd know what to do with it.

Sorry, just a little rant. Trying to get it out of my system before getting back to the grind.

Monday, April 09, 2012

Time Time Time, See What's Become of Me

I miss blogging. I really do. Of course, most of the folks who I usually read/posted with no longer blog, which detracts some from the enjoyment of blogging, but I do like getting a few moments to put some random gibberish up on the screen.

I've unfortunately not been able to find a whole lot of spare time, recently, given the activity in which I find myself mired. Work has been very busy, and the children are involved in their extracurriculars, band, gymnastics, martial arts, etc.

I've also been active recently in Taekwondo. Learning the patterns, challenging myself to become at least a little healthier (or less unhealthy, perhaps?) has been really beneficial.

Unfortunately, all of these other things, plus housekeeping, cooking, caring for the dog, etc. means that I have less time to get in here and post random thoughts. I suppose the only real harm there is that they get bottled up in my head, but that really doesn't do much damage...

At any rate. I miss blogging, and I hope to be able to find a few moments every couple of days to throw something up here.

Thursday, March 29, 2012

Wine

I started drinking wine about 2.5 years ago, after my wife and I enjoyed our trip to Italy. Great time. I never spent too much time on wine prior to this... my previous experiences with wine were that they were too sweet (white wines that I'd had), or they made the area at the back of my jaw hurt (red wines).

I have since learned that there really is a difference between the grapes, and the region where the grape is grown. I won't go into details, because I'd fudge it all up, but in a nutshell, I find that I really like a good red wine with lots of fruits and low on the tannins. My current red of choice is Inferi. It's a Montepulciano d'Abruzzo, from Italy. The flavors are full and have some oakiness to them, which helps make it a really smooth drink. In addition, there are a couple Spanish wines that I find I really enjoy, as well. Real de Aragon is a nice bargain with good flavors and low tannins (that's what made my jaw hurt, I've learned), that pairs well with lots of food. I love this as a table wine. I've also found that I enjoy Marquez de la Concordia Crianza, which is also a very nice to drink wine. Lately, I've picked up a couple bottles of Cubo, which is a tempranillo from Spain that also works really well...

I don't drink often, but I do drink about once a week. I find that enjoying a movie and a nice glass of wine is a good combination as I get older.

Tuesday, March 27, 2012

Long Weekend

Technically, not for me, as I'll be working Friday and Monday, but for the family. The wife will be taking a girls' trip to Vegas with her best friend and a couple other ladies, leaving me alone with three kids.

Now the question for me is, how does one spend a long weekend alone with the kids? There aren't exactly any family-friendly movies out that we haven't already seen, and I don't know how excited I am to spend the weekend at home trying to keep them satiated.

I suppose I could take them to the Zoo, or the Aquarium, but I'm not a big fan of either of those. Maybe I should take the kids to Sea World. They'd probably enjoy that, but I don't know if I could handle 3 kids alone at the park.

Taxes are paid, so we are no longer swimming in wealth, but we've still got a bit packed away, which is nice. I guess we'll just make sure we get out to eat once or twice and try to make the most of it. Perhaps a trip to the national forest is called for.