I Admit It: “I May Be a Swiftie”
I was recently called out as a “secret Swiftie” on a podcast.
Here’s the backstory: A couple of weeks ago, I filled in to help co-host an episode of the “Peloton People” podcast. During that episode, I discussed my Peloton “Class of the Week,” which happened to be a full-body stretch featuring the 10-minute version of “All Too Well (Taylor’s Version).” I explained that, while I’m not a Swiftie, I found this particular stretching class featuring Swift’s rerecorded version of her original song such a great and relaxing cooldown class on which to end a strenuous ride or run. Then, I managed somehow to remark that I really liked Swift’s “Anti-Hero” song, too.
Fast-forward a week later, when all three of the regular hosts of the podcast returned for Episode 82 and had this exchange about me:
Host 1: Y’all didn’t listen to last week’s Dean Tommy episode, did ya?
Host 2: Not yet. I have it downloaded. I was going to listen to it when we were out traveling.
Host 1: He might be a secret Swiftie. I mean, yeah, he might be.
Host 2. Oh wow.
Host 3. That’s awesome.
Host 1: He sort of called himself out on it. He said he wasn’t a Swiftie, but in all his talk you could tell that maybe he is a Swiftie.
If you’re not familiar with what a Swiftie is, a Swiftie is a hardcore, almost obsessive fan of pop/country super-mega star Taylor Swift. Being a Swiftie means extreme dedication—you have to know everything about her, her music, and her life.
Never in my “Wildest Dreams” would I have thought about filling some “Blank Space” in a blog for law students and bar examinees to talk about Taylor Swift. But “Look At What You Made Me Do,” Peloton People podcast!
Here are “Fifteen” (see what I did there!) of T’s songs and how I’ve tied them back to an important legal concept or study tip that can help you on the bar exam.
(By the way, am I Swiftie? “Call it What You Want,” but it appears I probably am—and I’m proud of it!)
1. “no body, no crime”
In this song, off the “evermore” album, Swift teams up with Haim to tell the story of friends who attempt to avenge their friend’s death after a cheating husband murdered her.
When it comes to the bar exam, the title, “no body, no crime,” is just legally inaccurate. A body isn’t necessary for a homicide crime to exist. With murder, a corpse is usually the most important piece of the evidence. In the absence of a body, though, prosecutors need to make sure all their other evidence is overwhelming. In other words, prosecutors have to prove every element of a crime beyond a reasonable doubt—with or without a body. It’s certainly possible to do so. And it happens often. That there can be “no crime” if there is “no body,” as the song’s lyrics suggest, is simply a legal falsehood.
2. “Vigilante Shit”
This song, off the recent “Midnights” album, continues the theme of “no body, no crime.” “Vigilante Shit” is about getting revenge on an enemy instead of getting sad:
I don’t start shit, but I can tell you how it ends
Don’t get sad, get even
So on the weekends, I don’t dress for friends
Lately I’ve been dressing for revenge.
The song continues with the lines:
While he was doin' lines and crossin' all of mine
Someone told his white-collar crimes to the FBI.
When it comes to the bar exam, let’s talk about informants—someone who might provide tips to law enforcement officials about illegal activity. It’s important to know that law enforcement officials have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, though, they must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. The suspicion can be based on an informant’s tip as long as the tip is accompanied by some indicia of reliability that would make the officer’s suspicion reasonable. So, make sure you examine all the information surrounding the informant’s tip in the test question.
3. “Message in a Bottle”
A message in a bottle is a form of communication in which a message, written on a scrap of paper, is rolled-up and put in an empty bottle and set adrift on the ocean. Traditionally, a message in a bottle is used by someone stranded on an island to advertise one’s distress to the outside world. You can imagine that this method of communication isn’t very effective since it’s very possible that no one will come across the message in a bottle in a timely fashion.
When it comes to the bar exam, “Message in a Bottle” makes me immediately think of offers and advertisements. Offers can be communicated in a variety of ways. However, the broader the communication method, the more likely it is that courts will view the communication as an invitation of an offer rather than an actual offer. Advertisements, catalogs, circular letters, general mailings, etc. containing price quotations are usually invitations for offers because they usually are indefinite as to quantity and other terms and addressed to the general public. However, if the advertisements, catalogs, circular letters, general mailings, etc. are sufficiently certain and definite as to what the terms are and to whom it is directed, then they may be treated as offers. For example, courts have held that advertisements containing special discounts on a “first come, first served” basis are sufficiently certain and definite to be characterized as valid offers that are capable of being accepted, i.e., by being the first to accept the special discount.
This is my favorite remix of all of T’s remixes. The drops in the remix just give you that fantastic rush that just makes you feel energized. As far as the lyrics go, there’s so much to impact here, particularly when it comes to insecurities and imposter syndrome. But I want to take another angle and focus on the following lyrics:
I have this dream my daughter-in-law kills me for the money
She thinks I left them in the will
The family gathers 'round and reads it
And then someone screams out
“She's laughing up at us from hell!”
When it comes to the bar exam, these lyrics remind of slayer statutes. Slayer statutes, which most states have adopted in some form, specifically prohibits a person from inheriting assets from the decedent if they feloniously and intentionally caused the death of that decedent. The property passes as though the killer predeceased the victim.
5. “Bad Blood”
This song is widely known for being about Swift’s public feud with Katy Perry. Whenever I think of Katy Perry, I think of her “Firework” song. It’s become the new Fourth of July anthem. Show me a fireworks display that doesn’t sync the flares to this Katy Perry song, and I’ll show you a fireworks display not worth attending.
When it comes to the bar exam, one probably wouldn’t think of publicly regulated fireworks displays as being equivalently dangerous as blasting and manufacturing explosives as to justify application of the rules for strict liability.However, a July 2017 MEE question included lots of facts for examinees to assess in determining whether the public fireworks display is an abnormally dangerous activity subject to strict liability. The facts provided in the test question gave examinees an opportunity to make arguments on both sides of the question. Ultimately, the NCBE in its Analysis indicated that responses could conclude either way, noting that “An examinee’s conclusion is less important than his or her reasoning on whether a public fireworks display is an abnormally dangerous activity.”
See my prior post, “Fireworks: Abnormally Dangerous Activity?,” for more information on the modern doctrine of strict liability for abnormally dangerous activities.
6. “Shake It Off”
Arguably Taylor’s biggest hit, “Shake It Off” is a message for her critics and those who try to put her down. Apart from the song’s meaning, the term “shake it off” can mean successfully dealing with a negative feeling.
When it comes to the bar exam, remember to just “shake it off” whenever you answer a question incorrectly. Don’t knock yourself down (or out) when you answer a question incorrectly. Rather, use that missed question as an opportunity to learn and improve your performance. I often direct examinees to Scientific American’s "Getting It Wrong: Surprising Tips on How to Learn." Here's an excerpt:
People remember things better, longer, if they are given very challenging tests on the material, tests at which they are bound to fail. In a series of experiments, they showed that if students make an unsuccessful attempt to retrieve information before receiving an answer, they remember the information better than in a control condition in which they simply study the information. Trying and failing to retrieve the answer is actually helpful to learning.
The article ends with a quick summary:
And remember, even if you get the questions wrong as your self-test yourself during study, the process is still useful, indeed much more useful than just studying. Getting the answer wrong is a great way to learn.
See my prior post, “When Getting It Wrong Is Good,” for more information on why it’s actually beneficial and productive to miss questions during your bar preparation.
7. “Fifteen”
“Fifteen” was inspired by Swift’s freshman year when she was 15 years old, a time when you begin to date and experience the drama of high school.
When it comes to the bar exam, remember that the Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.
8. “All Too Well”
As I mentioned above, I love this song. The 10-minute version is so much better than the original. This extended version follows Taylor as she dives deeper into the love story that left her feeling like a “crumpled up piece of paper lying here / ‘cause I remember it all, all, all.” It's no secret that Taylor wrote “All Too Well” about her brief relationship with Jake Gyllenhaal. Generally speaking, “all too well” is a common phrase used to describe something that you know so well that you cannot forget or unsee it.
When it comes to the bar exam, this song reminds me of a prior statement of identification, which is a hearsay exclusion. Under Federal Rules of Evidence 801(d)(1)(C), a witness’ prior statement identifying a person as someone he perceived earlier isn’t considered a hearsay statement and is, therefore, admissible. This is true even if the witness currently lacks memory and cannot testify as to the basis of the prior identification. Note that the prior identification doesn’t have to be made at a formal proceeding or under oath.
This is another song said to be about Swift’s relationship with Jake Gyllenhaal. The chorus is an affirmation of her irrevocable and total rejection of the former lover: no matter how much the former lover wants to rekindle their romance and restart their relationship, Taylor’s repetition of the word “ever” after “never” confirms the relationship is over.
When it comes to the bar exam, let’s focus on grounds for divorce. Most states permit a “no-fault” divorce, meaning that they have adopted statutes providing for divorce without regard to marital fault. This usually requires, at a minimum, that both spouses agree that the marriage is irretrievably broken (i.e., there are irreconcilable differences). In other words, both spouses agreed that “we are never ever getting back together.”
10. “Getaway Car”
This song uses a Bonnie and Clyde-esqe image of two criminals attempting to flee cops in a getaway car to illustrate escaping a doomed relationship.
When it comes to the bar exam, the metaphors in “Getaway Car” clearly bring to mind the inchoate crime of conspiracy. At common law, a conspiracy requires: (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) and an intent to achieve the objective of the agreement. At common law, the conspiracy was complete when the agreement with the requisite intent was reached. This is still the law in some states. Most states, however, require that an act in furtherance of the conspiracy be performed. If an overt act is required, any act in pursuit of the conspiracy will suffice, even an act of mere preparation. The act may be performed by any one of the conspirators. For example, let’s say three people—let’s call them TS, TH, and CH—agree to steal money from a bank. CH, unbeknownst to both TS and TH, rents a getaway car to be used in the escape after the bank heist. If an overt act is required, the renting of the getaway care is sufficient.
11. “Snow on the Beach”
According to Seventeen magazine, something that every good Swiftie is required to read, “Snow on the Beach” is about falling in love with someone at the same time as they’re falling in love with you. In the article, Swift described that event as that “cataclysmic, fated moment where you realize someone feels exactly the same way that you feel.”
When it comes to the bar exam, an examination of concurrent events is important in several areas. But here’s just two:
In Contracts and Sales, a condition is a provision, the fulfillment of which creates or extinguishes a duty to perform under a contract. Conditions may be precedent, subsequent, or concurrent. Conditions concurrent are those that are capable of occurring together, and that the parties are bound to perform at the same time. Thus, in effect, each is a condition “precedent” to the other. Absent excuse, each party must first tender his own performance if he wishes to put the other under a duty of immediate performance resulting in breach if he fails to perform.
In Criminal Law, a defendant must have the requisite actus reus (physical act) and requisite mens rea (mental state) at the same time. In other words, there must be a concurrence of the mental state with the physical act. The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime.
12. “I Knew You Were Trouble”
This song is about falling for someone you know you're not right for—i.e., you know that person is dangerous or has a reputation—so you should know better than to start dating that person.
When it comes to the bar exam, let’s focus on reputation and examine the requirements for tort defamation. Tort definition requires defamatory language on the part of the defendant that must be “of or concerning” the plaintiff; publication of the defamatory language to a third party; and damage to the plaintiff’s reputation. Language is defamatory when it tends to adversely affect one’s reputation. This may result from impeaching the individual’s honesty, integrity, virtue, sanity, etc.
13. “Karma”
“Karma” probably has my favorite Swift lyrics of all time: “Karma is a cat / Purring in my lap ’cause it loves me.”
The article, “Grading Taylor Swift’s ‘Karma’ With a Buddhist-Studies Professor,” is a wonderful discussion of this song. In the article, the religious studies professor at Northwestern University (but non-Swiftie) examines various lyrics throughout the song:
I like the expression “It’s coming back around.” The idea that what you do has a consequence that affects you in the future, that’s an accurate portrayal of karma. And there are different ways she says that.
When it comes to the bar exam, the consequences discussed in “Karma” makes me think of proximate causation. Problems of proximate causation arise when the victim’s death occurs because of the defendant’s acts, but in a manner not intended or anticipated by the defendant. The question in these situations is whether the difference in the way death was intended or anticipated and the way in which it actually occurred breaks the causal chain. Generally, a defendant is responsible for all results that occur as a “natural and probable” consequence of his conduct—even if he didn’t anticipate the precise manner in which they would occur. This chain of proximate causation is broken only by an intervening superseding factor.
14. “Mastermind”
Seventeen magazine—again, required reading materials for all good Swifties—does a solid breakdown of each verse and lyrics to “Mastermind.” Verse 2 of “Mastermind” begins with:
You see, all the wisеst women
Had to do it this way
'Cause we were born to be the pawn
In every lover's game
The article described these lyrics as Taylor’s attempt to challenge the societal norms and the way women are often perceived.
When it comes to the bar exam, these lyrics to “Mastermind” make me think of gender classifications and the Equal Protection Clause. When analyzing government action based on such general classifications, courts will apply the intermediate scrutiny standard. Under intermediate scrutiny, the government has the burden to show that the potentially discriminatory law or conduct is substantially related to an important government interest. Classifications benefiting women that are designed to remedy past discrimination against women will generally be upheld.
15. “Maroon”
In the first verse of “Maroon,” Swift blames an inexpensive bottle of wine for a seemingly eventful night:
“How’d we end up on the floor, anyway?” you say
“Your roommate’s cheap-ass screw-top rosé, that’s how”
“Cheap-ass screw top rosé.” Yeah, we’ve all probably been there. But does cheap alcohol—the Two Buck Chucks at Trader Joe’s, for example—get you drunk faster or make you have worse hangovers? Not necessarily. While cheaper alcohol does contain other things generally removed during the distilling process that more expensive alcohol goes through, that’s not the full answer. According to an expert at Imperial College of London, “People will drink more cheap alcohol as it’s cheap. People rarely get drunk on a $200 bottle of Claret.”
When it comes to the bar exam, this song reminds me of intoxication.
When it comes to Contracts and Sales, a person who is so intoxicated that he doesn’t understand the nature and significance of his promise may be held to have made only a voidable promise if the other party had reason to know of the intoxication. The intoxicated person may affirm the contract upon recovery.
When it comes to Criminal Law, evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime. The law generally distinguishes between voluntary and involuntary intoxication.
Voluntary Intoxication—or self-induced intoxication—is the result of intentionally taking a substance without duress. The person need not have intended to become intoxicated when taking the substance. Voluntary intoxication is a valid defense to specific intent crimes but not to general intent crimes. But there’s a huge exception. The defense of voluntary intoxication isn’t available if the defendant becomes intoxicated for the purpose of committing the crime—i.e., the defendant uses a substance to have the “liquid courage” to commit the specific intent crime.
Now, you might be asking, what are the specific intent crimes? I use the mnemonic device “FIAT” to help me memorize the specific intent crimes.
F: first-degree murder
I: inchoate crimes (conspiracy, attempt, and solicitation)
A: assault
T: theft crimes (burglary, embezzlement, false pretenses, forgery, larceny, larceny by trick, robbery, etc.)
Involuntary intoxication results from the taking of a substance (1) without knowledge of its nature, (2) under direct duress imposed by another, or (3) pursuant to medical advice while unaware of the substance’s intoxicating effect. Involuntary intoxication may be treated as mental illness, in which case a defendant is entitled to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted for insanity.
