Gas on the Bar Exam
I’m the father of two young boys. Today is also National Pass Gas Day. Yes, you can bet I’m tying the two together in today’s blog post.
If you have young children—or have nephews or nieces or are around friends and neighbors with young kids—then you probably know one absolute truth: most young boys and girls are obsessed with fart and poop jokes.
And there are psychological reasons behind their inclination for potty talk. First, poop jokes give a rise out of adults and, second, off-color toilet humor allows children to gain control of their fears and anxieties, according to Laura Markham, Ph.D., in a 2020 New York Times article. Dr. Markham is author of the book “Peaceful Parent, Happy Kids: How to Stop Yelling and Start Connecting,
My youngest son is obsessed with toilet humor. For one of his recent birthdays, he wanted only one thing—a Minions Fart 'n Fire Super-Size Blaster. Last weekend, we had lunch at Schmidt's Sausage Haus in Columbus, OH, and he yelled out “THAT’S A BIG WIENER!” in the crowded restaurant as his food came to the table. And yesterday afternoon, as I walked home with him from his bus stop, he told me about an elaborate plan to make a “fart bomb” that he and one of his classmates were devising.
I’m not sure if that says a lot about me as a father. But I’m not above making fart references either—even in my teaching. I once had a PowerPoint slide with Bart Simpson farting, with a dust cloud behind him, to illustrate the exception to the general rule that children are required to conform to the standard of care of other children of like age, education, intelligence, and experience in negligence actions. (Imagine me telling students that there’s this general rule … but(t) … )
Of course, that exception is the following: children engaged in potentially dangerous adult activities will be held to the same standard of care as an adult doing that same activity. Usually, potentially dangerous adult activities are things like driving an automobile or a motorboat or flying an airplane. Farting isn’t a potentially dangerous activity (though farts have been known to cause fires), so the amount of time I needed to discuss the child standard of care in class through this Bart Simpson illustration outweighed the pedagogical reason for keeping the use of this slide in subsequent semesters.
But let’s talk more about gas today, since today is National Pass Gas Day. How might you see gas on the bar exam? No, not that kind of gas.
Constitutional Law:
The Commerce Clause gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Supreme Court has consistently regarded transportation or traffic as commerce—even if commercial activity isn’t involved. “Transportation” isn’t limited to vehicular transportation. Any transmission across state lines—like gas, electricity, and other intangible transmissions (e.g., television and radio transmissions)—constitutes interstate commerce.
Criminal Law:
Most theft crimes require that the defendant take tangible personal property of another. For example, common law larceny consists of a taking and carrying away of tangible personal property of another by trespass, with the intent to permanently deprive the person of his interest in the property. Therefore, intangibles cannot give rise to larceny. However, gas and electricity—though they aren’t “tangible”—are considered to be personal property that may be stolen.
Real Property:
One MEE Real Property question on the February 2010 exam included a fact pattern about a gas-line easement. Basically, the call of the question asked whether a subsequent buyer of land could take the land free of the gas-line easement even though the buyer had notice of the easement. This part of the question tested examinees’ knowledge of the “shelter rule,” which states that a person who takes from a bona fide purchaser will prevail against any interest that the transferor-bona fide purchaser would have prevailed against. This is true even where the transferee has actual knowledge of the prior unrecorded interest.
Contracts and Sales:
A July 2008 Contracts and Sales MEE question included facts about exploration of gasreserves. In this question, the owner of land entered into an agreement with a gas company in which the gas company was given the right to explore for gas reserves on the land and agreed to restore the land to its pre-exploration condition, which the landowner planned to use for cattle roping clinics. This part of the question tested examinees’ understanding of expectation damages, restoration, and economic waste.
Expectation damages are intended to put the injured party in the same position as if the contract had been performed. In this question, the gas company didn’t restore the land to its pre-exploration condition, as it had agreed to do under the contract. The cost of restoration was $500,000. However, where the cost to restore is many times greater than the difference in value of the property in its unrestored condition, damages are measured by the difference in value. Courts are split on which measure to use because the value measure encourages breach. In a case of willful breach, where only the completion of the contract will enable the nonbreaching party to use the land for its intended purposes, the cost of completion may be considered the appropriate damage award.
Under the facts of this question, the cost to restore ($500,000) was many times greater than the difference in value of the land in its unrestored state (which was $20,000). Because the gas company’s breach in failing to restore the land to its pre-exploration condition was willful, only restoration will allow Rancher to use the land as intended (for cattle roping clinics).
Happy National Pass Gas Day!
