July 18, 2019

Archives for July 23, 2015

The Culture of Law (Part 3): We Wuz Brainwashed

rhodesThis is from Wikipedia, on cultural neuroscience:

Similar to other interdisciplinary fields such as social neuroscience, cognitive neuroscience, affective neuroscience, and neuroanthropology, cultural neuroscience aims to explain a given mental phenomenon in terms of a synergistic product of mental, neural and genetic events.

Heady stuff — quite literally. In this series, we’ll look at all those factors — mental, neural, and genetics. I know… but stay with me here… this is good stuff.

In his landmark book, Brain and Culture: Neurobiology, Ideology, and Social Change, professor of psychiatry at Yale Medical School Bruce E. Wexler declared that “concordance between internal structure and external reality is a fundamental human neurobiological imperative.”

That “concordance” he speaks of is the peace of mind we’ve been talking about. It’s a brain necessity: our brains work on culture all the time. They do this mostly undisturbed most of the time, but not always. There are particularly intense formative periods of our lives when our brains are particular alive to shifting their cultural points of view.

Dr. Wexler speaks of “the importance of a close fit between internal neuropsychological structures created to conform with an individual’s sensory and interpersonal environment at the time of development, and the environment in which the adult individual later finds him or herself.” (My emphasis.) Those “times of development” are the key to cultural creation.

Not surprisingly, one of those times is adolescence, which from a brain point of view lasts until age 25-27. New cultural possibilities abound when we come of age, and we make choices from the cultural contexts we are exposed to during that time, literally activating and de-activating genes as we do so. (Which explains why our kids aren’t like us.) Then, during our adult lives, our brains and our external lives settle into creating concordance with our adolescent cultural choices.

That’s exactly what happens to our brains when we enter the legal profession. Think about it: many law students are under 25-27; nothing personal, but their brains aren’t all there yet. What’s especially missing are the portions that govern learning and sound judgment. (This explains why older law students experience law school differently than students right out of college — something you probably noticed if you were an older student yourself, but probably didn’t if you weren’t.) Add the stress of law school to normal adolescent brain development, and you’ve got culture formation on steroids.

Although older law students have organically mature brains, stress pulls them into a comparable state of adolescent-like brain patterning, in a process comparable to what happens during boot camp. A former Marine Corps drill sergeant told me how they “greeted” new recruits, stomping into their barracks at 3:00 a.m., shouting and cracking whips. “We had to do that,” he said, “Otherwise they weren’t going to survive boot camp, let alone the kind of combat we send them into.” Once they’d been torn down, the newly malleable recruits were built back up — thoroughly enculturated into the Marine way.

Like them, law students younger and older enter law practice (the equivalent of Wexler’s “environment in which the adult individual later finds him or herself”) with brains primed to reinforce the cultural choices we made in that stressful context.

We wuz brainwashed, all of us. No kidding.

For a user-friendly analysis of adolescent brain development, see Change Your Brain Change Your Life Before 25, by Jesse Payne. Jesse is the son-in-law of celebrity psychiatrist Dr. Daniel Amen. His courtship of Dr. Amen’s daughter required a brain scan conducted by his famous future father-in-law.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Colorado Court of Appeals: Secured Creditor With Disallowed Claim Against Estate Can Enforce Underlying Security

The Colorado Court of Appeals issued its opinion in Oldham v. Pedrie on Thursday, July 16, 2015.

Real Property—Promissory Note—Deed of Trust—Probate—Notice of Claim—Disallowance—Foreclosure—Novation.

This appeal involves a parcel of land in Teller County first purchased by Lorna Oldham in 1976 from Donald Pedrie in exchange for a promissory note. In 2005, Lorna Oldham signed a second promissory note to replace the first promissory note. In 2007, she died, and Pedrie filed a notice of claim against the Estate of Lorna Oldham for the amount owing on the promissory note. The personal representative disallowed a portion of Pedrie’s claim, Pedrie threatened foreclosure of the property, and the trial court allowed him to proceed with his foreclosure proceedings.

On appeal, the Oldhams and the Estate contended that the 1976 Deed of Trust was extinguished when Pedrie declined to contest the disallowance in the Michigan court. Under the Colorado and Michigan probate codes, the requirement to file a notice of claim in an estate proceeding does not affect or prevent the right of a secured creditor to enforce a mortgage or other liens on estate property. Further, a secured creditor is not required to pursue an unconditional claim that is disallowed. Therefore, a secured creditor’s lien on real property is not extinguished when the creditor presents an unconditional claim against a decedent’s estate but does not pursue a disallowed claim within sixty-three days. The secured creditor may still pursue a foreclosure action to enforce the lien. Therefore, the district court did not err when it found that Pedrie held a valid deed of trust on the Teller County property.

The Oldhams also contended that Pedrie’s 1976 lien on the Teller County property was extinguished under CRS § 38-39-207, either because Pedrie accepted a new promissory note in 2005 that was not secured by a deed of trust or because there was a novation. The record contains unrebutted testimony that the principal plus interest due on the first note was greater than the amount due on the 2005 promissory note. Under these circumstances, the 2005 promissory note did not constitute a novation and did not extinguish the 1976 Deed of Trust.

Finally, the Oldhams contended that the district court erred by not making a finding on the total amount owed on the debt secured by the deed of trust. Pursuant to CRCP 120, the district court was not required to determine the amount remaining on secured debt. The Trial Management Order (TMO), however, required the court to determine the payoff amount. Therefore, the district court erred in not complying with the TMO in this regard. The judgment was affirmed in part and reversed in part, and the case was remanded to the district court to determine the amount owed by the Oldhams on the 1976 Deed of Trust.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Special District May Regulate Use of Property It Owns

The Colorado Court of Appeals issued its opinion in Aspen Springs Metropolitan District v. Keno on Thursday, July 16, 2015.

Metropolitan District—Real Property—Trespass—Willful—Fence Law—Contempt—Remedial Sanctions—Purge Clause.

Keno maintained a flock of sheep and grazed it on a parcel of land known as the “Greenbelt.” The Greenbelt was owned by Aspen Springs Metropolitan District (Aspen Springs). In 2011, the Aspen Springs Board passed a resolution prohibiting the grazing or tethering of livestock on the Greenbelt without the Board’s prior written permission. Keno continued to graze his sheep on the Greenbelt, and Aspen Springs sought an injunction preventing the grazing. Keno nonetheless continued to pasture his sheep on the Greenbelt and had twice been found in contempt by the time the court issued its final judgment permanently enjoining Keno from allowing his animals to graze on the Greenbelt.

On appeal, Keno contended that, as a special district and creature of statute, Aspen Springs lacks authority to regulate the use of property it owns. Among the express powers granted to special districts are the powers “[t]o acquire, dispose of, and encumber real and personal property including, without limitation, rights and interests in property, leases, and easements necessary to the functions or the operation of the special district.” The right to own property is necessary to these express powers. Property ownership generally includes the power to exclude others. Therefore, a special or metropolitan district may regulate the use of and access to property it owns. Accordingly, the district court did not err in holding that Aspen Springs has the power to prohibit and limit grazing activities on the Greenbelt.

Keno also contended that the district court erred in concluding that the Fence Law protects Aspen Springs from a willful trespass onto the Greenbelt, despite the fact the Greenbelt is unenclosed by a lawful fence. The Fence Law does not protect livestock owners who deliberately pasture their livestock on unenclosed lands of another, particularly when done against the owner’s will. Accordingly, the district court did not err in concluding that the Fence Law protects Aspen Springs from willful trespass onto its property.

Keno further asserted that the court erred in awarding attorney fees and costs as a remedial sanction after finding him in contempt a second time for violating the preliminary injunction. A remedial sanction must include a purge clause. Because the sheep grazing activities that resulted in Keno’s contempt citation were not ongoing at the time of the contempt hearing, Keno could not purge his contempt because he could not undo what he had done. Therefore, remedial sanctions, such as the assessment of costs and attorney fees, could not be imposed against Keno under these circumstances, and the trial court erred in awarding them. Instead, the court could impose only punitive sanctions. The judgment was affirmed in part and the order was vacated in part.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/22/2015

On Wednesday, July 22, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Brooks v. Archuleta

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.