Laughing at BigLawyers
If you'd like a daily bit of humor from the BigLaw trenches, head over to The Disassociate, a relatively new blog whose author describes it as:
one associate's attempt to see the humor, to focus on the lighter side, to find the fun. Somewhere along the way...repaying student loans, billing hours, monitoring salaries, many of us lost the sense of enjoyment, not about the law, but within the profession. Every day is funny, we just need to stop and think about it. I'll try to do that, but feel free to help. And just to be clear, I like working at my firm - I am just trying to get the fun back. Thanks for coming by.
Posts at “The Disassociate” are generally very short (usually one sentence) and generally worth at least a chuckle. One of my favorites is entitled “Crying out of the law” and reads:
See? I told you it was funny. And in view of the upcoming graduation season, check out “Pomp & Circumstance”:
Ah yes. The golden future that awaits so many of us.... I hope to never concern myself with billing hours, but otherwise....
Anyway, if you're ever looking for a bit of law-related laughter, The Disassociate might be a good place to start.
Employment law question: Are you scary?
Is it legal for an employer, during a phone interview, to ask an applicant: “We work with the public. Is there anything about your physical appearance that might make people uncomfortable?”
I have never been asked this in an interview, but people I know have. I vaguely recall something from my employment law class about employers having the right to set reasonable rules for the appearance of employees who work w/the public, but this seems pretty close to the line. Any thoughts?
Posted 12:43 PM | Comments (8) | TrackBack
Habeas Schmaebeas?
I just heard the 3/10/06 episode of This American Life and I urge you to find some way to hear this program. It's episode 310, it's called “Habeas Schmabeas,” and it provides a horrifying summary of what the Bush administration has done by creating “enemy combatants,” declaring them outside the reach of the Geneva Conventions, and locking them away indefinitely in Guantanamo where they can be tortured at will. The show is great because it puts these acts in their appropriate context and reminds us, as U.S. citizens and voters, that we are responsible for this.
It's sickening, really. The other day Dave! praised Molly Ivins for articulating his utter frustration with the Democratic party. I'm with both of them, and agree wholeheartedly with Ivins that “it is time for a candidate who takes clear stands and kicks ass.” One of those stands must be against the whole idea of “enemy combatants” and the train of evils that has followed in its wake. I want a candidate for President in 2008 who will, immediately after taking office, grant full habeas proceedings to all prisoners in Guantanamo, who will forbid the U.S. military from declaring anyone an “enemy combatant,” and who will make clear the the Geneva Conventions apply to all prisoners of war (including those formerly known as “enemy combatants”).
What point have we reached that we can allow these things to go on in our names?
MeFi's Advice to the Unhappy Young Attorney (and a note on Blawg Wisdom)
The question goes on to give more background and context, then concludes with:
Hmm. Lots of responses, although no silver bullets. I just thought some of you might find it interesting. Or not.
This would be perfect for Blawg Wisdom, but if you haven't noticed, I haven't really been keeping up with that. I apologize to the handful of you who have submitted Requests for Wisdom in the past couple of months. I'm not ignoring you, but, well... I guess the thrill has kind of gone out of the project. It hasn't become as useful or as active as I'd hoped, which might be because there's really not much of a need for the service it provides.
So what do you think? Should we put Blawg Wisdom out of its misery, just leave it as is for the sake of posterity, or attempt to hand over site management to some young whippersnapper with the time, energy, and inclination to keep it up?
Posted 10:13 PM | Comments (7) | TrackBack
The Rule Of Law?
In his first day of confirmation hearings for a lifetime appointment to the U.S. Supreme Court, Judge Samuel Alito said :
Hm. No agenda, huh? The rule of law? What the heck does that mean? Take President's domestic spying, for example; is it legal? To answer the question, we have to figure out what law applies and what that law means. So is this the law that applies to Bush's domestic spying? If so, it's illegal. Or is this the law that applies? If so, it might be legal. In other words, with this and many many other issues, saying that a judge's only obligation is to the rule of law is the same as saying that a judge's only obligation is to his own values, experience, and preferences of interpretation.
A judge can't have any agenda? Poppycock. Judges are human, humans have agendas, and Alito—like Roberts before him—is more dangerous for the fact that he either doesn't recognize this or has chosen to lie about it.
Posted 08:40 AM | Comments (3) | TrackBack
Welcome (and Welcome To) Wex
Have you seen the new Wikipedia-like legal resource? It's called Wex and it's part of the awesome LII.
Sounds terrific. They're seeking qualified contributors to help build the resource, so if you'd like to help and you're qualified, go to it!
Political Theater At Its Worst
While trying to move as little as possible as I recover from the marathon, I've been listening to almost non-stop radio coverage of the nomination of Samuel A. Alito to replace Sandra Day O'Connor on the Supreme Court. I don't know if I've ever heard such a farce. On the left pundits are saying “There's going to be a huge fight; he's a right wing wacko.” On the right, pundits are saying “I don't think there's going to be much opposition; once people get to know him they'll see he's a great guy and they will support him.” I don't believe either side is saying what they think is true. Instead, both sides are taking extreme positions in an effort to shape public opinion. I guess this is how politics works these days: You never hear real opinions and rarely hear many facts; instead, you hear spin. This isn't new; it's just rare that you see it so clearly.
That said, the spin is revealing in itself. The left is arguing from the facts of Alito's long record that he's an extreme Right nominee, while the Right is arguing from nothing more than “he's a really good guy” that he should be unobjectionable. If you had the choice, would you pick a judge based on a concrete record, or would you pick based on whether you thought he was a good guy?
Oh, the Right is also arguing that Alito is “just like Roberts” because Roberts supposedly set such a high standard and everyone loved him. Of course, Alito might turn out to be just like Roberts in terms of how the two would rule in any given case, but we can't know that because we still don't really know how Roberts is going to rule. Roberts turned out to be unobjectionable because he had such a thin record; that's not the case with Alito.
What is certain is that Alito will add nothing to the diversity of the court in terms of background, gender, race, ethnicity, philosophy, experience, etc.
Happy Halloween, everybody. Are you scared enough yet?
Posted 04:08 PM | Comments (2) | TrackBack
Miers Withdraws Herself
NPR is reporting that Harriet Miers withdrew herself from the nomination process for the Supreme Court. I can't find anything online yet, but it should be up in a few minutes.
UPDATE 9:11 a.m.: Ok, the news is confirmed here.
UPDATE 10:45 a.m.: “Harriet Miers” has blackened “her” blog in morning over “her” withdrawal.
More important, check out the posts over at TG's Political Wire on this today. Check out this progression of stories:
- Reports that the White House was planning to deflect attention away from the indictments that are almost certainly coming from Plamegate.
- Reports that the Miers nomination is seriously going to decrease contributions to the Republican party.
- A quote arguing that the Christian right has taken over the Republican party. (Note that Christian conservatives were leading the fight against Miers.)
- And finally, Miers withdraws.
Note that even Miers' letter of withdrawal shows how inappropriate she was for the Supreme Court:
Even as a nominee for the Supreme Court she still speaks of the White House as something she's a part of. And they were trying to tell us she'd be able to separate herself from that on the bench. Right.
I heard someone argue recently that the Yubbledewers never intended Miers to be confirmed; rather, they nominated her knowing she'd fail but knowing also that no one could live up to the standard set by John Roberts. Therefore, the strategy was to put up someone really bad, so that whoever they put up next will seem that much better and people will care less that the next nominee just isn't up to the Roberts level. I disagree that Roberts set such a high bar, although it's funny how much better Roberts looks compared to Miers. Perhaps that was the strategy: Nominate someone totally not qualified just to etch more deeply the impression that Roberts really is qualified.
Ok, I'll stop w/the baseless speculation. This news speaks for itself in enough ways you won't need my rants to put it into context. Although I will say one more cynical thing: Brace yourself because if you thought Miers was bad I'm betting you ain't seen nuthin' yet.
Posted 09:02 AM | Comments (2) | TrackBack
Breyer's Active Liberty
NPR today features an interview w/Supreme Court Justice Stephen Breyer about his new book, Active Liberty : Interpreting Our Democratic Constitution. The bits played on Morning Edition suggest that, although conservatives have been the ones to most vehemently denounce “judicial activism” and the evils of “legislating from the bench,” the conservative justices (primarily Thomas) have been the ones most likely to invalidate laws passed by Congress, while Breyer is the justice least likely to do so. (ACS Blog has the details of that study.) So I guess those who condemn judicial activists are really condemning Scalia and Thomas, huh? Yeah, right.
The full, hour-long interview w/Breyer is available for streaming, but the following are some highlights from my listen:
Breyer defines “active liberty” as a distinction between freedom guaranteed by law from the government (freedom of speech is freedom from gov't action to restrict speech), and another, more ancient concept, that citizens of a community will share legitimate authority in that community. He traces this latter idea back to the Greeks. The notion today is that each individual shares the power of authority—it's called democracy. He wants to stress “active liberty” because that democracy only works if the average citizen participates.
The judiciary's role is to recognize the importance of active liberty and to understand that the Constitution wants to create a set of institutions to enable people to decide things democratically. When deciding conflicts between majority and minority interests he says we should return to fundamental principles of democracy. So in the Michigan affirmative action case, Breyer argues that all the amici briefs from the business community, the military, educational institutions, etc., showed that the people wanted the diversity that affirmative action provides, so upholding the constitution was consistent with democratic principles. In other words, he's a big believer in majoritarian rule.
On campaign finance laws, he argues that there are speech interests on both sides of spending restrictions, but the laws have the objective of leveling the playing field to make more equal exchange possible. The first amendment exists in order to allow people to elect the kind of government they want, and certain forms of regulation are necessary to promote that kind of conversation.
Speaking of campaign finance laws, I recently and somewhat foolishly entered the debate on this issue over at Althouse and basically got schooled by Stealth Law Prof who, like Althouse, disagrees w/Breyer on this point. I still maintain that conflating dollars and political contributions with speech is dangerous and antithetical to the democratic process b/c it inherently privileges those w/the most money and we should do what we can to prevent that. But I'm not prepared to defend that position against conlaw profs so I'll have to leave it there.
Anyhoo, the Breyer interview is interesting, but disappointing b/c his explanation of his philosophy does not seem as rigorous or clear as I was hoping. Perhaps the book makes it more clear, or perhaps he is really just as deluded about what he's doing as Scalia is w/the difference being that I tend to agree more w/the outcomes of his delusions than I do w/the outcomes of Scalia's delusions.
That said, how cool is it that we can all listen to this complete interview whenever we want? Before the internet, all we could have had was the 5-minute radio version and we would have had to listen when the radio station chose to broadcast it. Now, we can listen to that 5-minute bit whenever we want, and we can listen to the full interview whenever we want, and that is just very cool.
Posted 10:13 AM | Comments (2) | TrackBack
Blawg Review #25
Welcome to Blawg Review #25, the Protest Edition! Since “the largest show of antiwar sentiment in the nation's capital since the conflict in Iraq began” was just last Saturday, I've been thinking a bit about “protest” as both a way of life and a mode of expression. I realized that, whether they're protesting for themselves or on behalf of others, lawyers are almost always protesting something—that's their job. Isn't every lawsuit a form of protest against something or someone? Today's Review will highlight a wide variety of such protests that appeared in the blawgosphere in the last week and will feature a selection of images from the Sept. 24th peace march in D.C. But before diving into all the protests I want to invite you to check out some great new blawgs—they're popping up all over the place! Give a hearty welcome and read to:
- bk!: The blog of Brandy Karl, f.k.a. “alice” of A Mad Tea-Party. Thanks to Bag and Baggage for the tip! I'm sure anyone who used to read and enjoy the Tea-Party on a regular basis will agree that it's great to see Brandy/Alice blogging again. Unfortunately, just as we discover Brandy's new identity and home—as well as the fact that she's a happy lawyer!—we must also extend our sympathies as she copes with a death in the family.
- Blackprof.com, a new blawg by nine prominent black law professors. I've had the good fortune to be able to work with Professors Spencer Overton and Paul Butler in setting up and designing this new blawg and it's been great to see it take off and start generating hits and great discussions. Check it out for lots of insight into critical right-to-vote issues, law school diversity, the difficulty Americans seem to have in talking about the racial implications of hurricane Katrina, and much more.
- The Clerkship Notification Blog, a group site whose goal is to distribute information about the clerkship notification processs. This will only be a useful resource if lots of law students participate so the blawg's author has asked for help to get the word out about the site. And if you're a law student who has applied for a clerkship, be sure to visit and leave any information you know.
- Law Spouses, a new “blog community for those who love a law student.” This blog's author aims to create a resources for spouses, boyfriends, girlfriends, friends, etc., of law students to help them deal w/the challenges that arise when their loved ones give their lives to law school. If you're a spouse or partner or other loved one of a law student and you'd like to become a contributor at Law Spouses, get thee to the comments and let the author know!
Protest This!
Starting us off, Timothy Sandefur at Positive Liberty is protesting the hypocrisy of U.S. drug laws via this Slate article discussing William Rehnquist's alleged addiction to sedatives. Sandefur writes:
Speaking of white collar crime (and can you get much more white collar than the Chief Justice?), last week Professor Bainbridge invited protests both for and against white-collar crime sentencing policy when he asked, “As a matter of sound sentencing policy, should first offender white collar criminals serve their sentences in a maximum security prison?” The question prompted a lively discussion, both on the professor's blawg and on Crime and Federalism, where Mike asked, “Why are white collar sentences so long?” He says it's because otherwise these crooks would go unpunished:
The Stopped Clock riffs on a similar theme, protesting that problems in criminal justice go unresolved because we figure criminal defendants are “probably guilty of something anyway.” And we call this justice?
Our discussion of white collar crime would hardly be complete without input from the White Collar Crime Prof Blog, so check out that blog's analysis of the “CSI effect” on white collar prosecutions.
Moving from theory about white collar crime to its real practice in the wild, Professor Bainbridge also notes that Bill Frist is being accused of insider trading (followup here). And in the news we see that the Jack Abramoff lobbying scandal is has reached the White House. Lock up the crooks!
Over at Wordlab, Abnu protests that a couple of lawyers have filed a trademark application for the word “Katrina”:
PHOSITA also reports on other Katrina-related trademark applications and provides the first connection I've seen between that storm and a certain 1980s pop-band.
In other Katrina-related news, J. Craig Williams of May it Please the Court® fame wonders whether insurers are going to get a pass on paying storm-related claims. The answer is all tort-o-rific and depends on proximate, concurrent, and principal cause. But hey, if you don't want to read about it, you can just sit back and listen because Williams kindly records most of his posts as podcasts. Where does he find the time?
Colin Samuels at Infamy or Praise protests a law suit by the Mississippi attorney general against five insurers “to force those insurers to pay flood damages suffered by their Mississippi policy holders despite clear exclusions in those policies and the ready availability of flood coverage from federal programs.” Samuels calls this a brazen and irrational encroachment on freedom of contract. And he's not alone; as Jonathan B. Wilson notes, Walter Olson doesn't like this lawsuit either. Be sure to read Wilson's post to see “what really chaps Olson's briefcase.”
Katrina has also prompted Evan Schaeffer and Dennis Kennedy to ponder how such a devastating storm might affect e-discovery. Schaeffer also notes that trial lawyers cause hurricanes. Gee whiz; all this time I thought money was the root of all evil...
But Katrina played second fiddle last week to its little sister, Rita. Before Rita hit, Ernie the Attorney—who lived through Katrina in New Orleans—offered tips for evacuees. One recommendation was to have plenty of “calming agents like wine” on hand; better yet, you could just evacuate to a vineyard. Tom Kirkendall at Houston's Clear Thinkers expected that the economic effects of Rita would be huge. However, when the storm wasn't as devastating as predicted, he revised those expectations. Check out the posts in between for more on the storm, including some interesting thoughts on the chaotic evacuation of Houston. Beldar Blog also updated frequently on Rita's progress, including great posts on the evacuation gridlock, a nearly hour-by-hour update of living through the storm, and observations on the aftermath.
Back to political protests, the gentlemen at the Power Line blog are protesting the fact that Yubbledew President Bush recently appointed someone who was foolish enough to admit she doesn't know everything to a position in the DHS. The post wins this week's award for best title with: “Stuck on Stupid, and Not Too Brite.” Are they talking about their president, or....?
Continuing the “stuck on stupid” theme, Retired Army JAG Officer suggests that Democrats are exactly that. Al Nye The Lawyer Guy doesn't use the exact phrase, but it seems applicable to some of these crazy quotes from consumers and creditors.
But not everyone was stuck on stupid last week. 
Professor Tung Yin used the mid-season cliffhanger of Battlestar Gallactica (BSG to those of us who are addicted to this, the best show on tv possibly evar!) to protest torture as a tool of interrogation.
Norm Pattis at Crime and Federalism protested some of the stupid questions senators asked John Roberts last week.
Monica Bay at The Common Scold managed to get quoted and pictured in the NY Times for her protest against spotty cell phone reception in rural areas.
Professor Althouse protested the cancellation of The Comeback, the Lisa Kudrow show on HBO. The good professor has also begun podcasting, joining Professor Gordon Smith of the Office Hour Podcast on the Wisconsin Law Prof podcast team. Come on you other law profs, it's time to step up to the mic!
At Between Lawyers, Dennis Kennedy responds to a critique of the “non-commercial use only” Creative Commons licenses. Kennedy asks: “What do you really intend 'non-commercial use' to mean?” Personally I intend it to mean something like “quit being a greedy capitalist pig!” but I welcome Kennedy's call for the Creative Commons to “take a stronger leadership role in providing interpretations of the license provisions.”
Reporting Protests
When lawyers aren't protesting anything themselves, they frequently excel at reporting on and analyzing the protests of others. For example, Andrew Raff is in this reporting mode at the IPTAblog where he presents an exhaustive roundup of the Author's Guild's lawsuit to prohibit Google from scanning copyrighted books without obtaining permissions from the copyright owners. The gist seems to be that a majority of commentators think Google's “fair use” claim will win the day, but read the full post for much more.
Also in the reporting mode, Paul L. Caron at Tax Prawf Blog notes that Harvard has changed course and is allowing military recruiters on campus in order to make sure the school maintains access to federal funds. However, Harvard is continuing its protest in a different form:
Todd Zywicki comments on this at the Volokh Conspiracy, as well. Hey, maybe if Congress didn't support sending U.S. troops to die in unjustified wars of aggression it wouldn't see so much opposition to the military's recruitment efforts. Of course, there's also that completely discriminatory and irrational “don't ask, don't tell” policy the military maintains, so there's quite a bit for Harvard and other schools to protest, actually.
But speaking of the Volokh Conspiracy, Orin Kerr reports that the new war on porn is “a running joke” at the FBI. Protest at the FBI by agents? That's a good one.
They already gave at home, indeed.
Robert Ambrogi reports on the boatloads of cash NY lawyers take home, and since he's not really protesting, let me fill that gap: Judge Judy makes $30 million/year!? She's awful! Am I the only one that finds that not only shockingly ridiculous, but morally offensive, as well? Oh, and while we're at it, why do public defenders make less than prosecutors?
From money to sports (a pretty natural jump, don't you think?) Mark at the SportsBiz blog reports that several college football players have sued the NCAA “alleging that the NCAA's scholarship limitations are an illegal restraint of trade adopted in the name of cost containment by an organization that illegally monopolizes 'big time' college football.”
And in one other sports-related post, Richard Radcliffe of the Law Religion Culture Review notes that O.J. Simpson continues to have a talent for generating lawsuits. It's good to be good at something, you know?
Implicit Protests
Lots of blawg posts fall into the category of implicit protests against something or other (or, perhaps I should say that a determined blawg reviewer can force them inside that box). David Swanner of the South Carolina Trial Law Blog files such an implicit protest against poor law office management with his keys to a smoothly running law office. It's all about having a plan for cases, finances, marketing, business, and life. So what's your plan, man?
Jim Calloway's Law Practice Tips Blog joins Swanner by offering tips for using desktop search tools. Calloway also covers the interesting bits from the ABA's Legal Technology Survey. Only 19% of responding lawyers have used a wireless internet connection? If my own school is any indication, that number is going to skyrocket when the class of 2006 enters practice; just about every law student at GW uses wifi every day!
And speaking of law school, in an implicit protest against unhappiness in the legal profession, Jeremy Blachman recently called for feedback from law students about their perspectives on working in the legal profession. He writes:
Since he doesn't have comments on his blawg, Jeremy has been publishing some of the emails he's received. In chronological order, here's what he's got so far: post one, post two, post three, post four, post five, post six, post seven, post eight, post nine. There's a treasure trove of interesting perspectives there, so dig in.
One theme of those posts is the varying level of satisfaction with working as a legal professional, but there is more than one way to find happiness in the field. Just ask Dave Johnston, who left law school a few years ago and is now the chief blogger (or “Internet Content Manager”) at the Cato Institute in D.C. And if you decide you do want to be a lawyer rather than just working in a law-related position, yet you don't really dig law school, fear not! Who says a lawyer needs law school? Not me, that's fersure! As those of you who read the imbroglio regularly already know, getting rid of or generally improving law school is one of my favorite topics. Therefore, it was with relish that I noted several recent discussions about whether the third year of law school is really necessary, including this great summary post from Andrew Raff.
Oh, and if you're moving on from law school and looking for a job with a firm, rethink(ip) reminds you to be sure and ask your potential employer two important questions: “Who are your clients? Who are your best clients?”
- - - - -
Well, that's it for this little protest review. Blawg Review has information about next week's host, and instructions for getting your blawg posts included in upcoming issues.
From time to time, the Editor of Blawg Review also posts reviews of law blogs, sometimes republishing a review. Last week, there was a lengthy review of Crime & Federalism originally published by Mark Draughn. If you've seen a good review of a law blog, or would like to write one
for Blawg Review, please contact the Editor.
Posted 07:46 AM | Comments (3) | TrackBack
The Rehnquist Conspiracy
Since the end of the Supreme Court term I've been trying to figure out why Chief Justice Rehnquist has not stepped down from the Court. His health is poor and if I were him, I'd really want to spend a few years of my life doing something other than sitting on the bench. Then, when O'Connor retired, I figured, well, Rehnquist can't be far behind. Yet there he sits, unmoved.
Why could that be? What could he be thinking? Here's a theory: Rehnquist knows he should step down and may even wish he could. However, he also knew long before the rest of us that O'Connor was ready to go so he decided to hold on for at least one more term (if he can). He knew that if he stepped down and Bush appointed someone like him (which Bush would have done), the balance on the Court would not have changed. However, now that O'Connor is gone and Bush has nominated someone much more likely to agree with Rehnquist than O'Connor ever was, Rehnquist can stay in the hope that if he gets at least one full term with a solid right wing majority behind him he can really get U.S. law headed in the, um, right direction again.
And whether Rehnquist has thought any of these things is irrelevant. It looks like that's what's going to happen, regardless. Listening to NPR recently (Justice Talking—the show is available for download ) I heard Nadine Strossen of the ACLU say that O'Connor's replacement will effectively have the power to amend the constitution. I guess I hadn't thought of it that way, but yeah, that's how important this nomination is. Heaven help us.
Posted 06:51 AM | Comments (5) | TrackBack
Crap, Sandra D, Crap!
- Look at me!
I'm Sandra D!
And I can retire!
Hee hee hee! - I'm Sandra Day O'Connor.
You can call me “Your Honor.”
From the Court I'm a goner.
Neener neener nonner!
Lost Liberty Hotel
You've probably heard about this, but just in case you haven't, you better hurry if you want to be among the first to reserve a spot at the Lost Liberty Hotel.
Very smart. As I said before, I also disagree with the holding in Kelo, but I suspect I also disagree with most of the goals and values of its most outspoken critics. Do most of the people mocking the decision really care that it allows the government to take from the poor to give to the rich, or do they only care that it allows the government to take?
Caveman review of Kelo: Taking good. Taking to give to rich bad. Grrr.
Death Not Worth Discussion?
Amidst all the hullaballoo about Grokster and the ten commandments cases and Kelo v. New London, no one seems to be talking about Bell v. Thompson. You can see from this brief discussion that it was an insanely complicated case, procedurally speaking, but let me see if I can simplify it: Thompson was sentenced to death, he lost his state-level appeal, he filed a habeas petition in federal court and it was dismissed and the Sixth Circuit affirmed the dismissal. Thompson then filed for cert. with the Supreme Court and was denied, and finally he filed another habeas petition. Sometime after the Sixth Circuit dismissed the first habeas, it found new evidence that convinced the court it had made a mistake, so the Sixth Circuit tried to change its previous decision to correct its mistake. The Supreme Court said no, you can't do that. Kill him!
To put it even more simply: The Supreme Court said in America we don't care if we screw up and kill people by mistake.
Awesome, huh?
This decision is outrageous, but no more so than the fact that intellectual property or ten commandments issues seem to be more important to Americans than their own complicity in state-sponsored killing. Priorities? Not so much. Oh, and you know those people who care so much about the ten commandments? I'm pretty sure one of them says something about not killing.
Funny, for some strange reason the chorus of this song just popped into my head.
All Eyes on SCOTUS (Blog) for 10 Cs and Grokster
Today is the big final day of this term for the Supreme Court of the United States (SCOTUS), and with such huge decisions coming down today there's no better page to refresh in your browser than the SCOTUS Blog. To get ready, here's a preview of the decisions coming down today.
The first note on one of the Ten Commandments cases is up:
Splitting 5-4 in the first of two rulings on government displays of the Ten Commandments, the Supreme Court on Monday upheld a federal court order against a display of the religious document on the wall of a courthouse in Kentucky.
Grokster will come soon, I'm sure...
UPDATE: Grokster loses big:
Crap.
UPDATE II: Now that the term is over, Half-Cocked is handicapping the retirements.
Also, from the ongoing discussion it looks like maybe this wasn't necessarily a huge defeat for Grokster. The Court merely remanded for reconsideration of what was previously summary judgment in Grokster/Streamcast's favor.
Lawyers, Knowledge Management, and OPML
If you've ever worked in a law office, you might be familiar with a common problem: Lawyers often do similar things over and over again, but they don't always have a very good way to keep track of what they've done before so they can efficiently reuse that work the next time they need it. For example, if you're a criminal lawyer, you're going to write a lot of motions to suppress evidence. How do you keep track of the work you've done on those motions to suppress so that you don't have to do it all over again the next time you have a related issue?
Another problem in law offices is collaboration. If you're working a case with other attorneys, paralegals, interns, etc., how do you keep everyone updated on what you've done, and how do you follow what others have done?
I believe this is what some people call “knowledge management”—how do you “manage” the knowledge in your firm? And I understand that there are lots of commercial packages available that attempt to help lawyers with these tasks. Many are built around an hourly billing model and are very complicated. For example, the GW clinics use Amicus “practice management software.” I found it to be slow, inflexible (you work the program's way or no way at all), hard for users to use and understand, and really too complex for what we wanted to do.
So what if you want something simpler—something without all the billing and client tracking features, something that just helps you keep track of your research and your collaboration with others? Enter OPML and Instant Outlining.
If you don't read Scripting News I'm not sure why you would know or care about this, but Dave Winer has been building a new OPML editor, a sort of outliner on steroids that allows you to create what he's calling “instant outlines,” or outlines that people can subscribe to—almost in the same way that you can subscribe to RSS feeds.* I can't describe it much better than that because I haven't seen or used it, but from what I've read, it sounds like it could be a really awesome way for people in a law office to communicate about the cases they're working on.
To see what I'm talking about, read this thread describing how the outliner can work into a collaborative workflow. And here's another description of the outliner at work and some thoughts about how it compares to email, instant messaging, and other means of communication. With those descriptions in mind, imagine that you're an attorney in the lead on a murder trial. You've got two attorneys helping you out, and all three of you have interns doing research and investigation for you. Plus you have an investigator and a paralegal helping out with the case. How do you keep all of them informed about what's going on? Why not use an outliner to keep your notes and let them all subscribe? They can keep their own outlines so you can follow what they're all doing. This would mean you wouldn't have to repeat new news six times, and you could probably have fewer long meetings where everyone reports on what they're doing. I've only worked on a couple of cases like this, but in those cases, I really think instant outlining could have been a big help. Another big advantage is that it keeps time-stamped records of the case as it develops so it would be easy to go back through and see what you learned when and all of that should make it less likely that you'll lose or overlook any little aspect of the case.
In addition to its collaboration possibilities via instant outlining, this new outliner promises to be a great way to track legal research within a firm or legal office. Take those motions to suppress, for example. Every lawyer in your office could have a “motions to suppress” outline; when you needed to write such a motion, you could check in on those outlines and gather all the relevant research that people in your office have already done. In addition or in the alternative, the office could maintain one “motions to suppress” outline to which everyone could add. It could live on the office server so that everyone could access and update it. The top level nodes of these outlines could state a sub-issue related to suppressing evidence, and the subnodes could collect the relevant cites and points of law to deal with that issue. Then, the next time you have to do a motion to suppress, you scan through the outline for related issues and jump right to the research. If you find anything new about that issue, you add it to the outline.
Finally, this mythical outliner (which is still just in beta testing, apparently) can also be a blogging tool. I've long been jealous of the way Scripting News can combine little one-line posts w/longer, multi-paragraph posts -- each with its own permalink. Now the tool used to create that sort of blog is going to be available for everyone (or at least to all Windows users; maybe Mac users soon). This won't necessarily be great for lawyers or knowledge management or whatever, but it's certainly interesting.
* OPML is the format most feed aggregators use to keep track of your RSS subscriptions, and it's also the format used by outliners like Omni Outliner or Aquaminds NoteTaker. Its great virtue as far as I can tell is the ability to expand and collapse different levels of your outline, and to move those levels around easily so you can organize and navigate through a lot of information quickly and easily. I've found it to be a great format for taking notes in law school.
Posted 12:51 PM | Comments (2) | TrackBack
Kelo v. New London
Because I can't resist throwing in my two cents: When I first learned yesterday that the Supreme Court said it's ok for the government to take private property from small, individual owners and give it to large, conglomerate owners so that those big owners can make tons of money from it, I was honestly a little conflicted.
On one hand, I'm happy to see the government exercise its takings powers for the public good. We take private property to an insane extreme in the U.S., and I like the government's takings powers because, theoretically, they put the public good over private profit in a very blunt and inescapable way.
That said, this decision is deeply offensive because it appears to turn that spirit of the takings clause and turn it against itself in a very perverse way. In short, Kelo basically builds trickle-down economics into the law of takings, and if you grew up in the 1980s under Reagan's “voodoo economics” (which is what George H.W. Bush called it) you'll know what that means: They're pissing on us! Or if you prefer another metaphor, the Supreme Court has said (once again) it's ok for government to give all the cake to those who already have the largest portions and we'll just hope that everyone else can survive on the crumbs that fall.
Awesome.
Ahem. If you'd like more erudite and measured discussion of the decision. don't miss the SCOTUSblog's metablog on Kelo. The decision itself is here from the LII.
And speaking of the LII, it is currently seeking donations. As far as I know, the LII was the first to have the Kelo decision available online, and that's just one of the invaluable services the LII provides. In the let-them-eat-cake economy of legal research, the LII is one way to make sure we get more than just crumbs, so please do your part to keep it healthy.
Posted 07:00 AM | Comments (3) | TrackBack
Wexis and the Sheeps
Reader “Charlie” recently left a lengthy comment on a post from nearly two years ago in which I complained about how Lexis and Westlaw get special opportunities at law schools to get law students hooked on their services from the beginning of their legal careers. Charlie says I'm stupid and lack business experience and just plain wrong—and more! He suggests I do some research before posting “stupid statements about something you know little or nothing about.”
I guess Charlie doesn't know that I actually have done quite a bit of research into this topic. He and others like him might be interested in some of that research, such as this 1994 article from Wired magazine explaining how West essentially stole a public database and took it private—with the implicit cooperation and approval of the DOJ, of course. Some might say West has earned its preeminent position in the online legal research market; others might say West just took it.
This page links to the 2nd Circuit cases in which West attempted—unsuccessfully—to claim it owned (and could control via copyright) the page numbers on which cases and other legal materials are printed. What you don't see there are the 8th Circuit cases that said West could copyright its page numbers. See e.g. Oasis Publishing Co. v. West Publishing Co., 924 F. Supp. 918, 39 U.S.P.Q. 2D (BNA) 1271 (D. Minn., 1996). According to my research, this split between the 2nd and 8th Circuits has not really been decided because the dispute was ended by a consent decree before it could be resolved by the Supreme Court; that decree ordered West to allow competitors to license its page numbers for a stipulated fee. U.S. v. Thomson, 1997 U.S. Dist. LEXIS 2790; 1997-1 Trade Cas. (CCH) P71,75.
But while I have done some research into this issue, that doesn't mean I know it all and I'm always interested in learning more or to be corrected where I've made a mistake. To that end, I figured readers like Charlie might enjoy more of my stupidity about Wexis, so here are more posts in which I mention Wexis and its antisocial effects on society and the legal profession:
- The ABA Is Broken (8/12/03)
- Procrastination (links to discussions of the topic elsewhere; 10/04/03)
- Week In Review #1 (5/24/04)
- Five Things (6/24/04)
- Wexis Data, Anyone? (2/26/05)
- Wexis the Pusher (2/28/05)
(And, of course, I say that knowing full well that I'm a sheep too and it's only my illusion that I could be otherwise since, as L. is fond of saying, power is everywhere intentional and nonsubjective. Also, as I am often reminded, there is no Zion outside the matrix.)
Posted 06:13 AM | Comments (4) | TrackBack
Scalia Is Politicizing the Judiciary
Listening to NPR I just heard a clip from an interview with Justices Breyer, O'Connor, and Scalia yesterday at the National Archives. One of the things the Justices discussed was the way courts and judges have been criticized recently (especially from the political Right) and Breyer said, more or less: “It's always been this way. Judges make tough choices and some people are always going to be unhappy with those choices, but that's all fine so long as everyone follows the rule of law.” That's the standard answer.
However, Scalia couldn't pass up the opportunity to “play politics” (as Republicans are fond of saying) with the question. I haven't found the full text of what he said anywhere online, but in the clip NPR played Scalia said something like this: “If you take the position that the Constitution is a living document that the Court will interpret anew for each generation you make the Court a very political body and people will rise up against that.” (You've got to see his actual words; they're much better than that.)
Again I say: Whatever, Nino. Of course, he is clearly correct that people some people do not like the idea of, um, change. But it's disingenuous for Scalia to imply that his “originalist” perspective would generate less animosity toward the Court than would any other perspective. Originalist arguments about Constitutional interpretation are exactly that—arguments about how to interpret words that some white guys wrote a couple of centuries ago. Those words have no immanent meaning that we can “discover” through historical research or any other means (although, obviously, historical research contributes much to our understanding).
Originalists may like to argue otherwise, but again, originalism is just an argument, and therefore it's controversial, and therefore a Court run by originalists would generate just as much animosity as the current Court generates—possibly more. Scalia knows this, which is why it was a dishonest political ploy for him to imply that an originalist Court would resolve current debates about the judiciary. I give him props for being media-savvy enough to promote his agenda at an opportune moment, but it's ironic and a bit hypocritical for him to use a politically loaded claim to criticize the Court for being overly politicized.
Oh, and on the subject of our overly politicized courts, it seems some evangelical Christians want to remove funding from the courts to stop them from making decisions evangelicals don't like. Brilliant, don't you think?
Posted 09:26 AM
Say Hello to Blawg Review!
Blawg Review, the new “carnival of the blawgs,” has just published its very first edition, hosted by Notes from the (Legal) Underground. This inaugural installment features dozens of great posts from lawyers, law students, and law professors, and covers a vast range of topics from cybersquatting to cookie monster to breastfeeding to billable hours—and more. Definitely some great reads there. If you haven't yet heard, Blawg Review is sort of a peer-edited collection of the self-nominated “best” that the blawg world has to offer each week. Or, as George's Employment Blawg put it, Blawg Review is about “making the best of the blawgosphere more accessible and enjoyable to read.” Blawgers nominate their own posts for inclusion (although I suppose you could always nominate someone else's posts, couldn't you?), then the “host” editor decides what to include in each week's review and organizes and presents those posts in whatever way he/she sees fit. The host changes each week, which means the style and emphasis of the review will probably change a little each week, as well. It's a neat idea, and will most definitely be worth checking in on each Monday (especially, ahem, on September 5th for the back-to-school edition, and September 29th for the I-don't-know-what edition). And, as the editors have frequently emphasized, the review will only be as good as the material that gets submitted, so keep that in mind as you post in the future and be sure to forward your best or favorite stuff (or, I suppose, stuff you'd just like to get before a wider audience) to Blawg Review, following the simple submission guidelines. Congratulations to Blawg Review on a great start!Posted 09:17 AM
Washington Lawyer: Do You Blog?
The Washington Lawyer's April cover story is entitled “Do You Blog?” Well, do you? The article was written by Sarah Kellogg and covers everything from the birth of blogs and RSS to the benefits and perils of professionals publishing online. It's a great article, but it would have been even better if it would have provided links to to all of the many blogs it mentions.* In case you'd like to check out the blogs mentioned in the article, they include:- Bag and Baggage by Denise Howell
- CrimLaw by Ken Lammers
- Fourth Amendment by John Wesley Hall, Jr.
- May It Please the Court by J. Craig Williams
- The Blawg Review by Stephanie Tai (not to be confused with, um, Blawg Review
- My Shingle by Carolyn Elefant
- Dennis Kennedy's blog (Kennedy calls Kellogg's article the best article he's read on blawging)
- The Trademark Blog by Martin Schwimmer
- SCOTUSBlog from Goldstein Howe
- Ernie the Attorney by Ernest Svenson
- The Statutory Construction Zone by Gary O’Connor
- Environmental Law Net (which seems to stretch the definition of “blog” a bit, it seems)
- Underneath Their Robes by Article III Groupie
- Blawg Wisdom, which links to content from many law students and legal practitioners
- Reid My Blawg! by Reid Trautz
- And several others that are linked at the end of the piece...
Posted 07:51 AM | Comments (2)
BigLaw Review, Or Why I Stopped Worrying and Learned to Love LittleLaw
Now that the GW journal competition is over (it officially ended at 8 p.m. Monday night), I send my congratulations to those who competed. You probably now know more than most people about sex offender registries and you've produced a small piece of what's probably some very good legal writing. Regardless of what you learn in July about being on a journal, you should feel good about what you've done just by completing the thing. In that spirit, I also wanted to comment on the comments generated by this post from late last week. To summarize, a GW 1L had written asking for advice on the journal competition. I offered my two cents, including a few words about how someone might choose which journals to rank highest in their “preferences” list. Self-described BigLaw senior associate and GW alum David Kaufman wrote in to say:He later clarified a bit and Professor Yin and Energy Spatula added some helpful perspective. What I wanted to add is that this is a perfect example of why BigLaw is so not for me. My experience has been that Duncan Kennedy was absolutely correct when he described legal education as training for hierarchy (in an essay by that name), and this discussion about law review v. other journals v. no journal at all is a perfect example of how that training works. Law school is very good at teaching students to think in high stakes, either/or terms about their career choices. It begins with taking the LSAT and applying for schools, where the conventional wisdom is that you must have the highest scores you can possibly get and you must attend the highest-ranked school to which you can gain admission—otherwise, you might as well not go at all. The training continues in the first year with the myriad competitions where you either win and receive congratulations and accolades, or lose and retreat to your outlines to ponder whether you're really good enough or smart enough or whatever to make it in this racket. And, of course, the training goes on throughout school, with still more competitions, ruthless grading curves, and the constant cycle of interviews and job-seeking that sorts people into the best—and everyone else. Isn't that what the “law review or nothing” mantra means? These lessons of all or nothing hierarchy are drilled into most 0Ls to such an extent that they often make foolish choices and end up in programs that don't fit them as individuals and which do not serve their career goals. But quickly they learn that, whatever goals they may have had when they started applying to law school, the only legitimate goal of any self-respecting law student—nay, the only possible goal if they do not want to live a life of shame and poverty, or worse—is to scrap and scrape for every little “distinction” that will earn them a coveted spot w/in the miserable and too often morally questionable corridors of “BigLaw” where they can help perpetuate the dispiriting cycle for the generations to follow. As I've said before, Kennedy's essay is well worth reading in its entirety, but his comments on the firm hiring process are especially relevant to this point. He writes:
As Energy Spatula pointed out well, it's not only students who are poorly served by the myopic mentality of this legal hierarchy, but the profession itself suffers because BigLaw employers too often hire based merely on the “numbers” and credentials, without looking at the individual characteristics that might make a prospective associate a real asset to the firm. She writes:
This, in turn, damages society because it produces a cadre of professionals who have never learned what it means to be a “counsellor at law” or a guardian of liberty because they've been too busy gunning for the illusory golden ring and making sure everyone who follows in their footsteps has to pay the same exorbitant price they paid for the privilege. It's sad, really, and I want as little to do with it as possible. Of course, I'm absolutely certain that there are happy, well-adjusted, kind and humane people working in BigLaw (I know a few of them); it's not satan's own playground, by any means, and I applaud those who recognize that the system is badly in need of change and are trying to do something about it. Still, evidence abounds that the BigLaw hierarchical model is still going strong at all levels of the legal profession. See, for example, the recent discussion on many blawgs about whether it's necessary to attend a top-10 law school to become a law professor. E.g. Preaching to the Perverted here and here (including links to other voices in that discussion). Again, the brutal hierarchy perpetuates itself. Is there some hope in the news that “Gen Y” lawyers are balking at the hierarchy's demands? Perhaps. At the very least, it's sparked some terrific discussion, including this giant comment thread at the Volokh Conspiracy. (See also: Thoughts from Anthony Rickey.) However, reading around that discussion only adds to my cynicism about BigLaw. First, I agree with this comment that much of this could just be normal generational squabbling; in about 1993 I wrote an article for my college magazine about those slacker Gen-Xers, and now it appears I could write the same thing about Generation Y. Another commenter puts it this way:
That's a great comment because it captures the bitterness and resentment of those who have spent their lives trying to rise in the hierarchy. That bitterness and resentment destroys any empathy these battered practitioners may have once had for those following in their footsteps, leaving them, again, with the pyrrhic satisfaction of being able to make sure their successors pay the same high price they paid for their misery. As Kennedy puts it, “[n]othing could be more natural and, if you've served your time, nothing more fair than to do as you have been done to.” If that's not enough, this discussion also offers little hope that anything is changing because it simply reinforces the fact that the legal “profession” has become nothing more than the pursuit of profit for a large and unfortunately influential swath of practitioners. (See, e.g., this complaint that $120k/year really isn't a very big salary.) Perhaps this is the logical endpoint of the hierarchy—like the proverbial snake it begins to eat its own tail. As Kennedy writes, “[t]raining for subservience is learning for domination as well.” Or perhaps not; perhaps what's at work with these “gen-Y” associates is not that they are becoming “rational actors” in the self-serving sense of pursuing their own profit at any cost, but that they are realizing that there's more to life than billable hours and climbing a ladder that may very well lead only to more rungs. For their sakes, and for the sake of society, I hope so.
Posted 08:05 AM | Comments (5)
Goodbye Juvenile Death Penalty!
The SCOTUS struck down the death penalty for juveniles today in its decision in Roper v. Simmons. A good number of current death row inmates may be affected, plus, this decision may be a great step in the public conversation about the death penalty. More from DPIC. This has got to be great for the National Juvenile Defender Center, too. I haven't read the decision yet, but I can't imagine how this could be a bad thing.Posted 04:18 PM | Comments (3)
Wexis the Pusher
Still working on the “Wexis is Evil” paper and I ran across this great bit from this recent story in the DC Bar magazine:How are those Wexis points treating you today? How snazzy is that new insulated coffee mug? Hey look, did you know you can look up criminal records for people you know? Have another hit, kids, it's all part of the massive inflation of costs in the legal profession, starting with law school and permeating every little inch of the field. Addictive schmaddictive! That's why you're going to take that BigLaw job and sell your soul to the highest bidder, remember?
Posted 02:05 PM | Comments (9)
Wexis Data, Anyone?
Since I know you're all full of knowledge on all kinds of crazy topics, I have another question for you: I'm writing a journal article (due very very soon) that basically argues that Westlaw/Lexis should be freely available to all, both as a matter of copyright law and public policy. (I recognize that this is quixotic, but I think it's worth making the argument, anyway.) Do you know of any anecdotal or statistical evidence that the cost of online legal research is a burden on solo practitioners, legal aid attorneys, or public defenders? I'm especially interested in any evidence that the cost of legal research can actually affect legal outcomes (e.g., cases where a solo or public defender lost a case b/c he/she was outgunned in the research dept.). If you have stories about this kind of thing yourself, or if you know where I could find this kind of information, please let me know. Um, ASAP. ;-) Thanks! p.s.: Also, if you have any thoughts on the topic generally, I'd certainly be interested in hearing those, as well. Do you see any legal or public policy arguments for/against the current scheme of for-profit legal research?Posted 02:44 PM | Comments (6)
Lynn Stewart II
Following up on last week's post about Lynn Stewart: The Legal Ethics Forum has a couple of great posts on the subject. First, Lynn Stewart's Betrayal argues that:Author John Steele goes on to explain what he means, providing great insight into what was at stake in the Stewart trial and what might be its possible ramifications for criminal defense lawyers involved in terrorism/security-related trials. He also offers pointers to some of the key parts of the Stewart trial transcript. Now I only wish I had time to go read them. See also: A first reaction from Alaskablawg in which he says “it appears that this case is not so clear cut and there is reasonable grounds for disagreement about what this means.” For a more pointed perspective, see David Cole's article in The Nation, in which he argues that the Stewart case “case illustrates how out of hand things have gotten in the 'war on terrorism.'” The piece follows what to me looks like the obvious line—what Stewart did violated an agreement, but at worst that's a matter for professional discipline rather than criminal charges carrying possibly decades of prison time. Cole argues that proving otherwise was no easy task, but Ashcroft's DOJ was up to the task:
Cole's conclusion is the best part:
Posted 08:32 AM
“Blawg” & Blawg Republic
I learned yesterday that Denise Howell of Bag and Baggage coined the word “blawg” in the sense of “legal-related blog.” Since I use the word all the time now and made such a big (sort of) deal about it in this article, I wanted to give credit where it's due. I know some people do not find the word helpful, and it becomes less useful if you're speaking rather than writing, but I obviously think it's a great contraction in a web-writing context, so thank you, Denise. And speaking of blawg, have you seen Blawg Republic? Is your blawg listed there? This one isn't, but I'm wondering why Blawg Wisdom is listed under “Law Professors”. I mean, it would be nice if I were a law professor, or if professors wanted to contribute more to the advice on the site, but....Posted 06:24 AM | Comments (3)
Death In Connecticut: Paused
Following up on yesterday's post about Michael Ross: he was not executed last night. His attorney asked for a stay to investigate Ross's competency and whether he is exhibiting “death row syndrome”—whether “years of harsh conditions on death row have coerced Ross to drop his appeals.” More about that in this article:Whatever the merits of “death row syndrome,” this means the first execution in New England in 45 years has been postponed for at least a month (probably much longer), and I'm certainly not sad about that.
Posted 07:23 AM | Comments (8)
Legal Advice and ULP laws
What's the difference between providing information and giving legal advice? If you ask my clinic manual, this is what it will tell you:At first I thought this was a nice thumbnail definition of legal advice—if your answer would change if you knew the facts of the case, then you're giving legal advice. Fine. But the purpose of the rule against law students giving legal advice in the first place is to prevent them from practicing law without a license. Law students (and everyone else who has not passed the bar exam and been admitted to the bar) must be careful not to ever “practice law” because it's illegal to practice law without a license. Why? Ask Anthony Rickey (after he's gotten this note monkey off his back)—he's probably thought and read more about laws against the “unauthorized practice of law” (ULP) than I have. I would say these laws exist to protect the monopoly lawyers have over providing legal services. Anthony might say the same, but he might note other reasons, as well. I don't have time to go into a full-blown rant about why ULP laws are ridiculous, except to say that generally they're vague and broad and allow lawyers to bully non-lawyers w/charges of practicing w/out a license. This often happens when non-attorneys start doing simple things for very low cost that lawyers once did for a very high cost. For example, in the 1970s, lawyers viciously harassed a man named Norman F. Dacey for popularizing the idea that people could avoid probate court (and its attendant fees) by establishing living trusts. Lawyers didn't like this because it threatened a nice little source of profit for them. See also the more recent attempt by Texas lawyers to shut down certain publications by Nolo Press, the largest self-help legal publisher in the U.S. And see also here and here for the story of Della Tarpinian, who was harassed by Kentucky lawyers for helping consumers complete basic legal forms. All of these are good examples of lawyers trying to protect their monopoly over “legal services”—at the expense of the social good. In that light, this little line between “legal advice” and providing mere “information” becomes much more dubious. Of course, I'll respect this line until I'm admitted to the bar, but I'll continue to disagree with it long after that.
Posted 06:11 AM
Death in Connecticut
The ongoing saga of convicted serial killer Michael Ross may end tonight with Ross's execution, even as the Connecticut legislature begins discussions of a bill to ban the death penalty. However, another report says Ross is going to delay the execution to prove his competence. The executions has already been delayed once after a U.S. District Attorney accused Ross's lawyer of failing to fully investigate evidence that Ross was incompetent. The Ross case is a complicated one b/c, as I understand it, Ross claims he wants to die, but his defense attorneys have been arguing against those wishes, saying his expressed desire to die is a clear sign of incompetence. It would also be the first execution in Connecticut in 44 years. Will Ross's execution basically become a state-assisted suicide? And if so, will that become another argument against the death penalty? Ross says one of the reasons he wants to die is that he can't stand the thought of spending the rest of his life in prison; therefore, the death penalty is actually a lesser punishment for Ross than life in prison would be. This gives the lie to death penalty proponents who claim it is the “ultimate” punishment (as in the most punishment society can give), and thus becomes potentially another argument against the death penalty. What would become of the death penalty if large numbers of death row inmates voluntarily gave up all appeals and asked to die swiftly? Would death penalty proponents give up their support for this barbarous practice? More specifically, what the heck should a defense attorney do when his/her client gets the death penalty and says “I want to die”? Attorneys don't really take a Hipporatic Oath to do no harm; should they? See also this fascinating story about David Kaczynski (brother of Ted, convicted Unabomber). David basically turned his brother in, then fought hard to make sure he didn't get the death penalty, and now has become an anti-death advocate.Posted 07:23 AM | Comments (3)
Kill the Billable Hour
Apropos of this post the other day about taking the money out of law, Bruce at Adam Smith, Esq. offers some great comments from an economist's perspective on why the billable hour has stuck around, and why it should go away. Bruce's comments are a response to a recent cover story in The Washington Lawyer on The Tyranny of the Billable Hour. That article basically concludes that there's little we can do about the problems of the billable hour, but Bruce protests:Listen to Bruce, brothers and sisters. The truth will set you free UPDATE: More on the billable hour from Yale Law School. [Link via The Prejudicial Effect via Notes from the (Legal) Underground]
Posted 08:07 AM | Comments (1)
Courtroom Voyeuring
If you are fascinated by real life courtroom drama and don't get enough already from Court TV, Judge James Kembler of the Medina, Ohio, County Court of Common Pleas wants you to know what's going on in his courtroom. In fact, you can watch recent cases tried in Judge Kembler's court online! You can also subscribe to receive email updates from Judge Kembler. Before you do, you might want to see what you'd be getting, but unfortunately the archive of messages for that list doesn't seem to be working at the moment. I like the idea of making the machinery of justice more accessible to the public, but are there any potential drawbacks to making video of cases accessible worldwide? [Note: I first heard about this story on NPR sometime last week.]Posted 10:02 AM
Question: Small Firm Private Blog?
Below is a question I received from a friend, and since I don't really know the answer, I thought I'd see if anyone else does. My friend writes:Does anyone know the best way to accomplish what my friend seeks? I know that WordPress allows you to password-protect posts, but I'm not sure if that would be secure enough for a private, small firm blog. I'm thinking they need some sort of intranet or otherwise secure network. If they ran their blog off of their own server and required a password to access the server, then a blog would work fine, wouldn't it? But then, that could be a little costly to buy and run a server, couldn't it? Or could you do this with a virtual server (shared hosting) with htaccess or some more secure password-protection for the directory in which the blog resides? Obviously, this question is a bit over my head. For those of you with more knowledge than I, please leave any suggestions in the comments or send them via email so I can pass them on to my friend. Thanks!
Posted 12:01 PM | Comments (5)
Public Defender in Traffic Court
Blonde Justice posted a story a couple of weeks ago about a public defender in traffic court. It's an awesome story if you haven't seen it. She offers more insight into traffic court here and here. Public defenders rawk.Posted 08:40 AM
CounterInaugural Constitutional Issue
A.N.S.W.E.R. (Act Now to Stop War & End Racism), one of the big anti-war organizers, applied for a permit to occupy space along the route of the presidential inaugural parade on January 20th, but apparently the National Park Service is stalling on that permit. According to A.N.S.W.E.R., the Park Service is giving permits to Bush supporters first, and if there's anything left over at the end, maybe protesters will get it. Hmm. Sounds like a bit of a problem with “constitutionalizing the gatekeeper,” meaning making sure that the permit process is fair, equitable, and consistent with the demands of the First Amendment. According to “Constitutional Law in a Nutshell (Nutshell Series)” by Jerome A. Barron, C. Thomas Dienes, “[b]road delegations of authority, even when cast as content-neutral, indirect controls, invite censorship of unpopular views” (427). I wonder if A.N.S.W.E.R. will be able to argue that the National Park Service has an overly broad authority in the protest permit process, and that by denying protesters permits while granting permits to supporters, the Park Service is censoring “unpopular” views. (Putting aside for the moment that some 49% of the country voted against Bush, which hardly makes expression of protest against Bush “unpopular.”) In City of Lakewood v. Plain Dealer Publishing Co. (1988), the Supreme Court said that “a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” (Barron 428). Here, it appears (from the little I know) that A.N.S.W.E.R. could bring an “as applied” challenge to whatever permitting statutes or procedures the Park Service is supposed to follow, arguing that, regardless of how those rules are worded, they give the Park Service substantial power to discriminate, as applied. Of course, by the time such a legal claim came before a court, the inauguration might be long over, so this strategy may be pointless. And I'm sure A.NS.W.E.R.'s lawyers know all of this much better than I do, and I'm sure they know even better strategies for challenging the permit process. I'm just saying, maybe I learned something this semester after all. Maybe.Posted 08:26 AM | Comments (5)
Public Interest Law: It's Not About You
In a rough draft of an article about why he's not going to work at a firm, Jeremy Blachman recently wrote:I actually haven't heard that argument before—that public and private interest law are really the same except that one pays better. Is that really an argument people make to justify working at a firm? While Jeremy is right that there are lots of other things to do besides public interest legal jobs or working in a firm, there are also many more (and more important) differences between public and private interest law besides the money. First, I know lots of public interest lawyers and most of them do not work anything like the same brutal hours that firms are notorious for. They get paid less, sure, but their “benefits package” often includes good health care, a casual dress code (so they don't have to waste money they don't have on clothes for work and can wear what they find comfortable rather than what the partners or clients expect or demand), more flexible vacation time, and shorter hours. And, of course, one big benefit of working in the public interest is that you're more likely to be able to go home at night feeling proud of how you spent your day because you did something good for society. And that's just it: The most important difference between public and private interest law has nothing to do with what it does for you, the attorney. No, the real difference between these two career paths is what they do for other people. Simply put, if you work in the private interest, your clients will be mostly people with money trying to keep that money or get more of it, and the purpose of their litigation will often be their own private gain. Another term for private interest law (not all of it, but too much) could be: Greedy Law. On the other hand, if you work in the public interest, your clients will mostly be people without money trying to get justice or protect themselves from people with money, and the purpose of their litigation will often be the maintenance and protection of their own basic civil and human rights. Another term of public interest law could be: Public Protection Law. (I would include the dread “trial lawyer” or “plaintiff's attorney” in this category, as well.) So when someone suggests that private and public interest law are really the same except that one pays more, that's just not true. One attempts to make the world a better place for whoever can pay the most, while the other attempts to make the world a better place for all of us. And a good way to see the difference is to stop asking what a particular job can do for you, and ask instead what a job could allow you to do for other people. That makes the differences more clear for me, anyway. Disclaimer: I know there are thousands of terrific people working in firms and other “private interest” legal jobs who are doing great work that both pays well and also makes things a little better for all of us. Not all private interest jobs are “bad,” nor are all public interest jobs “good.” The above differences are generalizations made for the sole purpose of helping to clarify what appears to be some confusion about the differences between the two career paths.
Posted 11:20 AM | Comments (12)
Conference: Public Service and the Law
FYI for public interest law geeks: The U of VA School of Law is hosting a conference on Public Service and the Law on February 11-12, 2005, featuring a keynote by Nadine Strossen, president of the ACLU.Posted 02:46 PM
Humble Pie: ABA Not Awful
As you can see from the comments in the post below, I wasn't being very accurate when I made a leap from passing the bar exam to a critique of the ABA. II apologize for the misfire. To a large extent, I don't know what I'm talking about, but let's see if I can clarify it a little. My understanding is that one of the functions of the ABA is to act as an accrediting body, just as Princeton Review says here:So there's a connection between the ABA and the high cost of law school, which was really the complaint at the heart of yesterday's rant. Exactly what the connection is, I'm still not sure. What are those accreditation requirements? How much do they add to the cost of law school? Do they stipulate the three-year requirement, or is that just something all schools have decided to do on their own? Also, according to the Princeton Review again, “[m]ost states won't let you take the bar exam if you haven't attended an ABA-accredited school,” so while joining the ABA is purely voluntary, the organization can have a pretty sizable impact on anyone who wants to practice law, regardless of whether that person decides to become a member of the ABA. Beyond that, state bar associations are largely responsible for the vague UPL statutes in many states, as well as the selective enforcement of them. So it's not the ABA's fault if these statutes don't serve the public interest, but is the ABA blameless here? Doesn't it have some influence over the state bars, which in turn have a lot of influence over the state legislatures that make these laws? But whatever. I'm sure the ABA does many very good things, and for that I am thankful. Consider all this a bit of constructive criticism from someone who really doesn't know enough about the details involved. If you can fill in the gaps a little, please do. UPDATE: A bit more on accreditation, including a link to the ABA standards for approval of law schools. Also, it appears Barry University School of Law recently sued the ABA over its accreditation standards, calling them monopolistic and racist. Sounds fascinating, but I don't have time right now for deeper digging...
Posted 10:12 AM | Comments (7)
Damn you, ABA!
Thinking about passing the bar (since Mr. Poon just did that and all) forces me to face the fact that I, too, am striving to become a member of one of the nation's most antisocial cartels. This is not a source of joy; the ABA is not a friend of the good and the just, as far as I can tell. For one thing, it forces its members to pay tens of thousands of dollars for the privilege of joining, then appears to exist for no other reason than to ensure the majority of those members can charge their clients enough money to pay back the debt required to get that coveted membership in the first place. Yeah, the ABA sure is a great thing. The ABA calls itself “the largest voluntary professional association in the world.” What a joke! Sure, it's “voluntary” in the sense that no one is forced to join . . . unless you want to practice law. IIn fact, every state has an “unlawful practice of law” (UPL) statute that makes it a crime for unaccredited individuals to do the things that lawyers do. These UPL statutes are notoriously vague and broad and allow the Bar in each state to harass and criminalize people such as paralegals who may be so audacious as to try to help people accomplish simple tasks like getting a divorce or writing a will. Why would Bar Associations do this? To protect their monopoly and the unconscionable fees it allows them to charge. Oh yeah, membership is voluntary, all right. What else does the ABA do? It claims to provide “law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.” And there you have it. The ABA's law school accreditation helps police law schools to make sure they have nice buildings and overpaid faculty so that they can justify their extortionate tuition. It also requires that law school be three years, rather than the one or two that could easily be adequate. This forces many law students to start their career with so much debt they don't have time to think about anything other than making money, which is just fine w/the ABA because that's what it cares about too. I can't speak to the ABA's continuing legal education (CLE) requirements, but they sound incredibly hokey and rather than ensuring that lawyers remain qualified to practice it sounds like they ensure that hotels and conference planners will have plenty of customers. And I'm sure the ABA gets some nice fees every time someone wants to offer CLE credit for one its conference talks or whatever. Money, baby, that's the name of the ABA game. As for the ABA's other self-professed activities, I know that another word for most of the mail I get from the ABA and its affiliate is “junk,” not “information about the law.” And while I'm sure that the ABA offers some great programs to assist lawyers and judges in their work, I'm also sure that we don't need the ABA for that; independent non-profits and local governments could probably take the best of those programs over and do a better job with them. Finally, the ABA's “initiatives to improve the legal system for the public” seem like a hypocritical joke. The ABA is responsible for legal services costing so much that huge swaths of the public can't afford them, and then it claims to be improving the legal system for the public? Yeah, right. Ok, so some sort of organization of law practitioners might be a good thing, but the ABA has gotten way, way, way out of control; if it ever served the public interest, I really can't see how it does now.Posted 09:22 AM | Comments (4)
Congratulations Mr. Poon!
Mr. Poon has officially passed the bar, and for that, we salute him.Posted 06:19 PM | Comments (1)
Congratulations Mr. Poon!
Mr. Poon has officially passed the bar, and for that, we salute him.Posted 06:13 PM
A Horse Is A Vehicle Of Course
You've probably seen this story about Pennsylvania Supreme Court Justice Michael Eakin's rhyming dissent in a recent case deciding whether the state's drunk driving law could be applied to a man on a horse. The majority said a horse was not a vehicle, but Justice Eakin disagreed to the tune of the theme song of “Mr. Ed”:We need more judges like Justice Eakin. Then again, maybe one is enough.
Posted 09:02 AM | Comments (2)
Behind the Curtain in Bush v. Gore
The ACSBlog links to an article at the SCOTUS Blog about:Vanity Fair generously allowed SCOTUS Blog to post a PDF version of the article online. Get it while you can.
Posted 07:45 PM
She's A PD
I just discovered I'm a PD, the blawg of a public defender in "Big City, California." Where has she been all my life? A bit of inside info from the most recent post:
By "the great ones" she means the cases that you could slam dunk, and those almost never go to trial. So true.
But, um, what's "infracted"?
I have to run to school five minutes ago. Yeah, school. Today it's just meetings, but the summer is, for almost all intents and purposes, over. Gulp.
Posted 09:52 AM | Comments (1)
ACS Blog via Lexblog
A few weeks ago the ACS was seeking applications from law students to act as volunteer editors for a new ACS blog. Well, the ACS blog is now online, staffed by a crew of six law student editors. So far all posts come courtesy of the editor in chief, but I assume that will be changing soon. The site looks good, and considering the amount of support for the ACS nationwide, this blawg is well-positioned to become very popular and influential. I'll be visiting often to see how it grows.
But since it's still just getting started, what's most interesting about the ACS blog at this point is a little logo in the bottom left-hand corner for something called LexBlog. LexBlog apparently "builds blogs for lawyers."
Yeah, that's right. Someone is now in the business of building blogs for lawyers.
LexBlog offers several packages, the most extensive of which take care of every possible detail of building and maintaining a blog, including the writing of content. LexBlog even claims its "lexPremium" plan comes with a "customized plan to establish lawyer or firm as 'go to' resource on topic." And it's all powered by Movable Type.
So law blogging has now taken the next step toward commercialization. On one hand I'm thinking, "why didn't I think of that?" Who needs a J.D. to build and maintain blogs for lawyers? Also, if the culture of law school teaches you anything, it's that you have to pay people to get stuff done. This makes lawyers a rich market of suckers who are pre-programmed to pay exorbitant fees for people to do things for them that they could do for themselves if they gave it half an effort (e.g. BarBri). Mr. LexBlog Kevin O-Keefe might make a mint this way. Nevermind the fact that thus far blogs have been almost completely noncommercial, an anomalous little pocket of the web and the world where there's virtually no profit to be gained or lost, where value is driven and measured by links rather than money. Nevermind how wonderful that is, and how fresh the air is in the blogosphere when it's unpolluted by profit motives. Nevermind that the foundation of the blog as a form is that it allows individuals or small groups to express themselves to a wide audience for free or virtually free, and that it offers very little incentive for manipulation or dishonesty, that the blog as a form has become a phenomenon precisely because of its honesty and freshness and originality and candor. Nevermind all that. I'm sure there's lots of money to be made here.
Don't you look forward to the day when you can pay a fee to become the "go to" resource on a topic? Forget about building credibility and earning the respect of your readers by dint of effort and intelligence and the love of what you do. In the brave new world of for-profit blogging, you'll be able to work as hard as you like to build a popular and reliable online resource, but there will always be someone (i.e. a big corporate law firm) with enough money to pay an army of bloggers-for-hire to make sure its own "blog" is the "go to" resource on your favorite topic. Hooray.
I anticipate comments reminding me that people have been making money from blogging for years now. For example, Radio Userland started charging for its blogging software years ago, and Movable Type recently started charging for its software, and you have to pay for hosting, etc. People have also been running ads on their blogs, trying to make money from them. And I'm sure LexBlog isn't the first blogger-for-hire. I know all that. It's ok. I understand that the complete commercialization of blogging is almost inevitable. I wish LexBlog a bright and prosperous future. Like I said, part of me wishes I'd thought of it first. Still, just because I understand how our world works, that doesn't mean I have to like it.
Ambivalence rules.
Posted 08:20 AM | Comments (6)
Huge Day at the SCOTUS
The opinions from the High Court are coming fast and furious, with some good, some bad, and probably some ugly. I can't keep up, but if I'd could, I'd start with this overview of the decisions in the Hamdi and Padilla cases. Then I'd probably be pretty interested in these Miranda cases, too. Then I'd read about there being no presidential monopoly on war powers.
Nevermind. What I'm saying is, if I had time I'd just read everything on SCOTUSBlog. And there's more to come tomorrow.
It's kind of mind-boggling to realize how much American law can change in a few days thanks to a flurry of Supreme Court decisions. And these people are appointed for life. A little scary sometimes...
Posted 09:53 PM
Five Things
Following up on the [non]Billable Hour's Five by Five, second edition, Scheherazade asks: What are the five things you would change about the practice of law?
1. Close down Lexis and Westlaw and bring an immediate and permanent end to for-profit legal research. The law belongs to the people, not Westlaw. The services now provided by these companies should be done by public employees paid by tax dollars, then the cost of legal research and representation would drop for everyone. See also Carolyn Elefant's suggestion #1. Same idea, mine just goes further; instead of having one free Lexis/Westlaw account per library or school, every computer w/internet access should have free, unlimited access to the publicly-funded, non-profit replacement of Lexis and Westlaw. This new database should also be searchable by Google and any other search engine.
2. Dissolve the ABA's cartel-like stranglehold on law schools and legal education. This would involve eliminating current requirements in most states that you have three years of law school before you can even take the Bar. Perhaps we should eliminate the Bar exam, as well. See Scheherazade's suggestion #1 . But even if some sort of qualifying credential is required to practice law, it should not require any sort of formal training. If there's a Bar exam or something like it, and you can pass it without a day of formal education, you should be able to practice law.
3. Reduce firm salaries and billable hours requirements by half, across the board, while at the same time doubling salaries for public defenders, legal aid attorneys, non-profit attorneys and all other "public interest" practitioners. That wouldn't even the playing field, but it would go a long way. See also Scheherazade's suggestion #4.
4. Make lawyers accountable for the work they do. I really don't know how to do this, but perhaps a google-able database of lawyers and the cases they've worked on would go some way to making attorneys accountable for the work they've done to protect big tobacco, to help Enron rip off its shareholders and the American public, and convince the Bush administration that it doesn't have to follow the Geneva Convention.
5. Require law schools do more than pay lip service to public interest law. Again, I'm not sure how to do this, but law schools need not be factories for producing BigLaw drones. For a start, professors who make jokes to their classes about how rich attorneys can get by screwing their clients should be fired. Becoming a lawyer should not be about making money.
Combined, my suggestions should go a long way to taking the money incentive out of the practice of law. Making the best available legal research free to all will reduce the overall demand for attorneys—more people will be able to do their own research and represent themselves. Freeing law schools from the dictates of the ABA will allow new schools to spring up, and eliminating the law school requirement altogether will allow the number of lawyers to skyrocket. All that great competition (lawyers love competition, right?) will mean no one will get much money. And, since legal research will be free, lawyers will be able to charge much less there, as well. Reduced firm salaries will become a necessity; therefore, law students will be much less motivated to go to BigLaw anyway. Plus, since they won't be paying such high tuition (because there are more law schools and because some people won't go to school at all to become lawyers), students will graduate with much less (or no) debt, removing another reason many people now go to BigLaw. Finally, if lawyers are forced to make a public accounting of the work they do, we'll have fewer people writing terror memos and defending companies that destroy the environment and public health and all those other bad things. The world will be a better place, and all because of these five things.
What was it Aerosmith said? Was it, "dream on"?
Aside: The Five by Five idea is brilliant. A very valuable and innovative use of the blog form, IMHO. Thanks to the [non] Billable Hour for bringing it to us. One way I think the feature could be even better is if its main archive page featured a table of contents in outline form that listed the edition number and question, followed by a bulleted list of links directly to the responses of each of the five contributors to that edition. Just an idea.
Posted 05:37 AM | Comments (7)
The Rule of Law: Breyer's ACS Keynote
The highlight of this year's ACS Convention was Justice Breyer's keynote, which he framed as a message to today's law students. What follows is a summary of his speech which attempts to faithfully convey what he said. My own editorial comments are clearly marked as such.
Breyer asked future lawyers to remember that what's important in life is family, work, and community, and that "women are a force for good." He joked that he's "the oldest youngest" Justice, and despite having been on the Court for a decade, he still sometimes has to hold the door open if someone knocks during a judicial meeting. He told a short anecdote about recently bringing Scalia his coffee. "I've been doing this for 10 years," Breyer told Scalia. "I think I've gotten pretty good."
"No, you haven't," Scalia replied.
Breyer then magically summarized the Constitution in one minute, but I unfortunately couldn't write that fast. He praised "the rule of law" in the U.S., and said he strives to remember that "there's no view so crazy that someone in the U.S. doesn't hold it," adn that all those people show up in the Supreme Court to iron out their views.
He cited three cases that demonstrate what he means by "the rule of law" in the U.S. The first was Worcester vs. Georgia, the 1832 case in which the Cherokee tribe sued the state of Georgia after Georgia tried to steal the gold the Cherokee had found on Cherokee land. The Court found for the Cherokee, but President Andrew Jackson said something along the lines of: Marshall has made his decision, now let him enforce it. Then Jackson sent federal troops to Georgia, not to enforce the Court's decision, but to evict the Cherokee, hence the Trail of Tears.
The second case Breyer cited to illustrate "the rule of law" was the "second" Cooper v. Aaron, a desegregation case in which the Court told the Governor of Arkansas he had to desegregate the schools. (I'm not familiar with this case and I couldn't find it anywhere, so I must not have heard the name correctly. Anyone know which case this is?) The Governor refused, so President Eisenhower sent federal troops in to enforce the requirements of Brown v. Board of Education. "I like that case," Breyer said.
Finally, the last case Breyer suggested that illustrates "the rule of law" is any case you can think of. "Take your pick," Breyer said, and proceeded to list controversial cases such as "Bush v. Gore, school prayer, the abortion cases," and others. Take the most controversial case you want, Breyer suggested. "People feel strongly about these cases," he said. But, using Bush v. Gore as his example, Breyer said "what's remarkable is that, regardless of the decision, people follow it as a matter of course." In fact, that Americans will follow the decisions of the Supreme Court is "so obviously true, we don't even think it's interesting," Breyer said.
Mini editorial: It ma just be me, but it sounds like Breyer was saying that the great thing about the rule of law is that "we," meaning the Supreme Court, can do whatever the hell we want, and people will obey like sheep. Yeah, I guess there's some beauty about that. It's great to be king, isn't it? /Mini editorial.
Breyer went on to say that the most important part of the Constitution is what that document is basically about: democracy. He said the Constitution is great because it's a document that doesn't make decisions, but one that creates a structure that lets people make decisions for themselves.
To the common complaint that the democratic process isn't working, Breyer recommended we pull our noses out of the daily news (which he admitted is rather discouraging) and look at the big picture. For example, he asked: How will we reconcile the rights of privacy and free speech in a world where cameras and recording devices are everywhere capturing everything we do and say? He doesn't have an answer, but he's encouraged that "we're trying to find the answer with conversation" in law review articles, discussions, and through ABA committees. ("I love the ABA, with its 4,000 members and 8,000 committees," Breyer said. Everyone laughed.)
Breyer thinks that when tough issues like this arise, the Supreme Court generally waits until others have made up their minds about them, then the Court merely checks to see if those decisions are ok. He described this as "a process where law bubbles up from the bottom, it's not imposed from the top."
Editorial: What a quaint and happy little fantasy! /Editorial.
Breyer recommended we think about this process and we won't be as discouraged as he gets when he just reads the newspaper everyday.
Breyer also discussed what he considers the most important case he's sat on since he's been on the Court: Grutter v. Bollinger, the affirmative action case from the summer of 2003. He said that case involves an interpretation of the equal protection clause. According to Breyer, there are two ways to interpret that clause. One, you can interpret it strictly, or purposively, as a clause designed to prevent invidious discrimination only. Or two, you can take the "color-blind" approach that says that race is out, it shouldn't be considered either positively or negatively, and that any other view is too dangerous. Breyer suggested there are three bases for choosing between these two views of equal protection: There's a lot of discrimination to make up for, and we should do that. This affirmative action program (at the University of Michigan in the Gruder case) involves universities, and they have a 1st amendment right to choose who to admit to their school. The court's approach: Let us have affirmative action. Breyer said the Court was told by people everywhere—in business, the military, education, etc.—that America needs affirmative action, and that it needs to be managed carefully, "but if you tell us to be color blind, we will not be able to function." Breyer said the Court heard from people everywhere that "the race-blind approach is divisive, and the other approach is inclusive."
Is that a legal or a moral or a practical argument, Breyer asked. Breyer argued that it's a legal argument, because it's an argument that further's the Constitution's purpose, whihc is to create a workable democracy. Democracy won't work if large groups of people think democracy is theirs, while others think they're excluded. Breyer suggested that if we could ask the people who wrote the Constitution if they'd like a Constitution that works, or one that doesn't, their answer would be unequivocal: "Work! Work!" Breyer said the Gruder decision ensures that people can work together.
In conclusion, Breyer said, "Out of 10 years, the one clear conviction I have is that the Constitution is a document that must work, and it can't work unless people participate." The Constitution allows us to make our own decisions, but it still won't work unless we (as attorneys, presumably) get out of our law firms from time-to-time and participate. ("And thank you law firm people for being here," Breyer joked.)
Breyer's last statement was a call to action: He called on attorneys to participate in their local school board, or even a bowling league—there are millions of ways to participate; just do something. "That's what this document tells me."
Posted 09:14 PM | Comments (1)
ACS Conventionism
The weekend's encounter with the ACS Convention was pleasant and enlightening. Highlights included the keynote speech by Justice Breyer, 2nd Circuit Judge Guido Calabresi's comments comparing George W. Bush to Hitler and Mussolini, and the free meals and drinks just about made the convention worth the price of admission. I admit to being a bad convention attendee. I don't like dressing up and making small talk with people I don't know, and that seems to be a big part of a convention like this. Anyway, that's why you might take what I say with a grain of salt.
The first session I attended Friday was entitled "Globalization: The Next Frontier for Labor Rights and Democracy." I had hoped it would talk about organizing workers around the world to demand that human rights (and environmental protections) take their proper place at the forefront of so-called "trade negotiations." Instead, the speakers talked about how non-democratic the WTO and similar bodies are, how trade policy protects business interests, etc. It was all high level; workers were hardly mentioned. Sure, "the people" were the focus, but the panelists are all focused on the top, rather than the bottom. Perhaps they'll accomplish something great from that end, but I'm skeptical. The panel standout was Jonathan Hiatt, General Counsel for the AFLCIO, who focused on trade provisions similar to those in NAFTA Chapter 11 that almost guarantee that My impression of this panel is somewhat limited, however, because I had to curl myself into the smallest possible package just to sit in the room.
Note to convention organizers: Do not pack chairs into rooms so tightly that people cannot even sit in them! The room for this session had us packed in like sardines!
My second session was entitled, "Reframing Democracy: Texas, Georgia, Pennsylvania and the Redistricting Battles." This was much better and more lively, with Paul Smith arguing on the left that the gerrymandering of congressional voting districts is anti-democratic, and Michael Carvin arguing on the right that the Democrats are just being whiny babies. Carvin was really a sight to see, admitting that he'd go anywhere and argue anything the Republican party asked him to argue, before taking up the unbelievable and indefensible proposition that computer generated and manipulated voting districts are virtually problem-free in terms of democracy and constitutionality. He might be right on the strict constitutional argument, but that's the refuge of cowards in this fight, if you ask me (which you didn't, I know).
Not surprisingly, the best part of the convention was Justice Breyer's keynote. Detailed notes on that will follow in the next post.
Another highlight was Saturday morning's double-session on the 14th Amendment, followed by a lively lunch discussion on what's at stake in this fall's presidential election. Among the notable points were C. Boyden Gray arguments that turning public schools over to private enterprise will cure all of society's ills. Sure is working for health care, don't you think? (Don't even get me started on how cynical and plain anti-democratic Gray's arguments are—it won't be pretty.) Also, it was during this lunch session that Judge Calabresi noted that Bush "came to power" in the same way as Hitler and Mussolini. Calabresi stated that he wanted to make clear that he wasn't trying to equate Bush with Hitler, he was just trying to make the point that it's unusual for leaders to come to power in the way that Bush and these other figures did, and in light of that, Calabresi thinks Bush should check his use of presidential power, rather than attempting to expand it beyond all reasonable proportions. (See, for example, the torture memos.)
So in all, the sparks were flying, the food was ok, and a good time was had by all.
Briefly, I thought the conference needed a blog, and it needed to have wireless access in the conference rooms. I won't go into why, but I do think the ACS would be more successful in reaching a wider audience if it would get bloggy. Apparently there is an ACS Blog, but it appears unofficial and therefore not exactly what I had in mind.
Meanwhile, Professor Bainbridge says the ACS is "the least necessary organization in legal education," and leaves it to Professor Gordon Smith to explain why. Three Years of Hell and his readers offer some commentary.
UPDATE: See also:
Discussion and comments with links to news and blog coverage of Judge Calabresi's remarks about Bush from Matt and Scott at L-Cubed (here and here), from Professor Yin, and from Professor Althouse.
Now also, see Calabresi's apology.
Posted 08:57 PM
ACS Convention
The American Constitution Society begins its 2004 Convention today. I'll be taking the day off to attend a few of the sessions. It's funny: I was excited enough about this to pay the exorbitant registration fee six weeks or more ago (during finals, I think it was, or right after), but now that it's here, excitement is hard to come by. It's not exactly that I'm not interested in the topics on offer — I am; it's more that, after working for a while in the public defender's office I'm not crazy about sitting and listening to a bunch of lawyers talk about theoretical practice. On top of that, I'm kind of suspicious of the ACS. Is it the "new Democrats" of the legal field? Is it all about half measures and tiny tweaks to broken systems? Is its main selling point, "hey, at least we're not as bad as the Federalist Society"? (Much like Kerry's best selling point is "hey, at least I'm not as bad as Bush!") I don't know. That's what it seemed like from the limited contact I had with the GW chapter last year. Perhaps I'll get a better idea from this convention. Better run...
Posted 07:54 AM | Comments (2)
Newdow Disinformation
Yesterday the Supreme Court decided Newdow —the case where Michael Newdow, a parent, attempted to challenge whether is constitutional for a school district to include the words "under God" in a daily recitation of the Pledge of Allegiance. Newdow's challenge was unacceptable—the court jumped on a technicality and decided not to decide the case. So why have I seen so many headlines that say things like, "Supreme Court Preserves 'God' in Pledge"? Technically, this is true; the Court did not say it was unconstitutional to keep the "under God" in the pledge. However—and this is what the headline elides—the court also did not say that the "under God" was constitutional. The court simply decided not to decide the case. And as the SCOTUSBlog points out, their inaction only begs the question:
As the Court stands now, Scalia, Rhenquist, O'Connor, and Thomas have clearly stated they think "that it is constitutional for a school district to include the words "under God" in a daily recitation of the Pledge of Allegiance." Are there any court-watchers out there who know where the other Justices might stand? I added a request to the analysis over at L-Cubed for some feedback from those who know much more than me, but other thoughts are welcome.
An aside: How awesome is the SCOTUSBlog, anyway? Wouldn't it be great if Lexis, Westlaw, Findlaw, and other legal research tools started providing easy links to this sort of concise analysis of every Court decision?
See also: Yahoo full coverage of the decision.
Posted 05:35 AM | Comments (3)
Beginning/Ending Congratulations
Congratulations to Scoplaw, who has chosen to attend law school at Georgetown. The decision of where to go to school can be a tough one, and Scoplaw has been refreshingly candid about his decision-making process. Here's hoping he finds what he's looking for there!
On the other side of the congrats coin, congratulations to Scheherazade who gave notice at her law firm last week. Coincidentally, I spent part of last weekend at a 24-hour poker marathon held in celebration of two people who recently quit the same Washington law firm. One of them quit to take a clerkship, the other isn't sure what he's going to do next; both were sure that their firm wasn't where they wanted to be any longer, and both seemed thrilled to be finished with it. Still, I doubt any of these former associates sent a scathing farewell email like this:
Gee, I sure wish I was on the firm track; it sounds like so much fun!
Posted 08:55 AM | Comments (1)
BlawgCoop.com
Ed note: This entry was written a few weeks ago but never posted b/c of other pressing events (a.k.a. final exams). It discusses an project that will either be abandoned or postponed because of recent changes to Movable Type. Please see the next post.
A week or two ago Buffalo Wings & Vodka migrated from Blogspot to Typepad, which was a welcome change for his readers for several reasons: now we no longer have to see ads on his page, we can subscribe to an RSS feed, the comments work smoothly and are built in to the content management system, and generally the page will probably load faster and more reliably. Plus, the site just looks a lot better, so it's more of a pleasure to read. This seems true across the board for TypePad sites—they look nice.
TypePad also appears to offer additional advantages, I think, although I'm not sure what they are. But the main thing is the reliability. Blogspot blogs are just interminably slow most of the time, and that's if they will even load at all. Was it just me, or have many Blogspot blogs been unreachable recently?
Movable Type shares most of TypePad's many advantages over Blogspot, with one crucial additional advantage: It's free. Ok, it's not free, because you need a host and a domain and all that. Plus you have to set it up and maintain it. But wouldn't it be great if novice bloggers (especially law students, law professors, and practitioners) could get all the advantages of a MT blog without the hassles?
As a reader of blogs, I think it would be really great. So here's the idea: Let's start a "Blawg" Co-Op—a server to host law student and other law-related blogs running on Movable Type.
First, we chip in to register a domain to host the blawgs. Blawgs.com is taken, as is blawg.org, so let's call it "blawgcoop.com" ("blawg co-op," see?). We'll install MT, then open it up to any law student, professor or practitioner (for starters) who would like to run an MT blawg there. Users will get their own password and an account and we'll assist where we can w/setup and basic design issues. Some or all users could have subdomains (myblog.blawgcoop.com), or they could just get their own directory w/in the main domain (blawgcoop.com/myblog). The only thing we'll ask in return is that users contribute equally to maintenance costs (hosting and annual domain registration at an annual cost of around $150/year to start). So if there were ten users, each one would pay $10/year. That's it. If we had 20 users, each one would pay $5/year. And what users would get in return would be far superior to BlogSpot (or Blog City, for that matter) in terms of quality of blogging environment and dependability, and it would also be far cheaper than TypePad.
People in my blogroll who use BlogSpot who I'd love to see on a better platform include:
Mixtape Marathon
L-cubed
Half-Cocked
So Sue Me
Musclehead
a mi parecer
Jeremy Blachman
Naked Furniture
Althouse
Tbagged
Undeniable Dilemma
Screaming Bean
Veritable Cornucopia
See, there's over a dozen candidates right there, plus all the new "blawgs" coming online all the time—if they started up at BlawgCoop, they'd automatically connected to the community of existing law bloggers. So what do you think? Is anyone interested in such a "service"? Would anyone like to set up an MT-powered blog and pay something like $10/year or less?
Of course, a new option I just learned about for people wanting to switch to a more stable and reliable system and have their own domain is bloghosts. Their plans start at $3/month, plus annual domain registration fees ($20-$30), so again it begins to add up, but you would get your own custom domain, which is certainly worth a bit more.
Possible drawbacks to the whole "blawgcoop" plan include scalability—if the "service" attracted a lot of users, costs would go up as bandwidth and disk space increased. But then, if everyone's sharing those costs, they wouldn't be too high for anyone. Theoretically the cost per user could vary depending on bandwidth/disk space, but that would only come into play if one user started using dramatically more than everyone else. Also, support would have to be limited so it didn't become a huge time drag on anyone, but perhaps support responsibilities could be shared as well among users w/varying levels of expertise. I'm sure there are other drawbacks, like security weaknesses I'm not aware of perhaps.
On the plus side, another potentially fun thing we could start with the "service" is an optional group blog to which all users would be invited to post. Welcome to the BlawgCoop. You will be assimilated. ;-)
Posted 07:46 AM | Comments (2)
Libel La Law
Here's a fun lawsuit/study break: A website called ProBush.com has a big "traitor list" featuring names and photos of prominent people who are supposedly "traitors" because they've been critical of President Bush. According to the site:
Obviously a lot of deep thought went into that. In fact, so much deep thought went into it that now the site is being sued for libel by former U.S. Sen. James Abourezk whose name and photo were added to the "traitor list" last year. Abourezk is suing for $2 million in damages. Nice. ProBush.com has been kind enough to post its own brief in support of its 12b6 motion to dismiss (PDF), as well as Abourezk's response. The motion was denied.
Speaking of slightly bizarre links having something to do with libel, check out these short "movies" from some law students at UVA. My personal favorite is the first one: We salute you, 1L's long-distance boyfriend who is going to lose your girlfriend to a 3L! According to the website, these movies are connected with something called the "Libel Show,":
At GW, we have something similar called the "Law Revue" which is really very well done and always very funny (I'm told; I'm a loser and I missed it this year), but it appears they're going to have to step it up a few notches if they're going to compete w/UVA—technologically, anyway.
Finally, no post about libel would be complete w/out a nod to elle who also started exams yestertoday. Instead of posting to her blog, she's probably studying for her next exam. Hmm, maybe I'll try that...
Posted 07:21 AM
ConLaw Practice Exam
Since I'm supposed to be learning all about Constitutional Law for a final, um, in a week or so, I'm a little concerned that I don't have more complete responses to the Constitutional quandaries in the headlines. Therefore, as a public service to any law student studying for ConLaw, I present two real-life ConLaw practice exam questions:
Question One:
Health and Human Services (HHS), an agency under the executive branch, is refusing to release information to Congress (and the press, but that's a different story). What arguments can HHS make to support its claim that it doesn't have to comply with a Congressional request for information?
Question Two:
The U.S. is currently holding more than 600 foreign nationals at a military base in Cuba as suspected terrorists. The Supreme Court recently considered whether these prisoners should be accorded any due process rights, or if they should be denied those rights because the executive says they are "enemy combatants." What arguments can the executive make to support its position that U.S. courts have no jurisdiction over these prisoners, that these prisoners have no due process rights, and that the executive has complete discretion to decide these matters?
In a related question, Yaser Hamdi, one of the Guantanamo prisoners, turned out to be a U.S. citizen. Does that change the executive's power to detain Hamdi? Does the executive have unreviewable authority to deprive a U.S. citizen of his Constitutional rights? What arguments can the executive make in its favor? What are the flaws in those arguments? (A bit more on these questions here.)
__________
How would you answer these questions on a ConLaw final? They say practice exams are a great way to study. Feel free to practice in the comments! ;-) Click "more" for my very superficial/general thoughts on these questions.
General Thoughts on Question 1:
Can HHS withhold information from Congress under executive privilege? If so, does the executive's need for confidentiality outweigh the public's need to know this information? The answer to that probably depends on whether you'd like to see a second Bush term. If you'd like to see Bush reelected, then the public doesn't really need to know how duplicitous the executive was here. If you'd prefer to see Bush leave office, then the public's need to know this information is quite urgent.
This issue might also raise other, more difficult Constitutional law questions, such as: What happens if an executive agency lies to Congress about the cost of a program, then Congress appropriates money for that program, and then the executive says, oops, we need more money? I mean, I guess there are no Rule 11 sanctions to impose on the executive branch, but really, there should be. I'm guessing the only "sanctions" are accountability to the public—if people are angry enough about the executive's duplicity, they'll indicate their anger at the ballot box. Let's hope. Of course, if voters can't get the information, or if the information remains clouded in enough controversy that voters can convince themselves the executive may not, in fact, have lied here, then that ballot box accountability becomes a bit dubious, doesn't it?
General thoughts on question 2:
At a basic level the enemy combatant cases present questions about the extent of the executive's powers under the "commander in chief" (Art. II, § 2) and possibly "vestiture" (Art. II, § 1) clauses. But then, these seem to conflict a bit with the executive's responsibilities to "take care that the laws be faithfully executed" (Art. II, § 4). I mean, especially in Hamdi's case, since he's a U.S. citizen, we do have laws about due process that the executive has an obligation to uphold, right?
Posted 09:31 AM | Comments (4)
Totenberg Reports
On Tuesday the SCOTUS heard arguments "about the constitutionality of detaining so-called "enemy combatants" at the U.S. Naval Base in Guantanamo Bay, Cuba." For some of the best concise coverage of the case, listen to NPR's Nina Totenberg set up the case the morning before arguments, provide first reactions of the arguments themselves, then wrap up and look ahead to likely outcomes the next day.
Nina Totenberg rocks my world.
Posted 06:49 AM | Comments (4)
Attack of Plan
Ok. 1L classes are now officially over. Hooray?
Now is when the rubber meets the road. Did anything sink into my head this semester? Better question: How much can I cram into my head for near-instant recall in the next six days? I've got good outlines for every class. No, I didn't make a single one. Yes, I know that's not how you're supposed to do it. If you're a law student, I'm telling you this to boost your confidence. Think of this as my gift to you: You are more prepared than I am, so rest easy. This is especially true if you're in my section at GW. I'm here to make sure you'll land at least a bit higher on the curve. Please just throw money.
The plan:
- Today: Conlaw. Must get an overview in head.
- Tomorrow and Friday: CivPro. Reviewing outline and Glannon, taking practice exams.
- Saturday and Sunday: Contracts. Same gig w/the outlines and the practice exams.
- Monday (4/26): Contracts in the Morning, one more CivPro practice test in the afternoon.
- Tuesday (4/27): CivPro all day. CivPro final at 2 p.m.
- Wednesday (4/28): All Contracts, all the time. Practice exams!
- Thursday (4/29): All contracts still. Contracts final at 2 p.m.
- Friday (4/30): Property practice exam in the morning, property review w/ProfProperty at 1 p.m.
- Saturday: Happy May 1st! If I were in Finland I'd celebrate Vappu. But since I'm not, I'll be drowning myself in Property and Conlaw.
- Sunday and Monday (May 2&3): Conlaw conlaw conlaw.
- Tuesday (5/4): Conlaw final at 2 p.m.
- Wednesday (5/5): Property! Practice exams yeah yeah yeah!
- Thursday (5/6): P-p-property! Property final at 2 p.m. Collapse at 5 p.m. Gradually become human again. Remember that life outside of law school is a wonderful thing.
Hail Mary: If you have any tips, any at all, for remembering/understanding tricky or big-picture points of any of these subjects—CivPro, Contracts (Sales and UCC Art. 2), Conlaw, Property—please please please share. You will be loved and thanked and placed high in the upper levels of the ai pantheon of wonderful peoples. Your children and/or future children will respect you more for your generous spirit and wisdom, and the next time you have Chinese food you'll get a really stellar fortune. I promise. Thanks!
Posted 07:04 AM | Comments (12)
Ernie Says So
What's the best computer for an attorney? Why, a Mac, of course. Ernie the Attorney says so:
So, ok, he concludes by saying that you'll still need a Windoze machine because they're so pervasive that he "probably can't live without one." That's debatable. I have a Windoze machine because GW stupidly requires it if you want to take your exams via computer. Other than that, I've found zero reason to have a Windoze machine—at GW, anyway.
Whatever. Whether you need a Windoze box for some reason is not the point. For day-to-day use, Macs are just better. Listen to Ernie. He's a very smart man. [link via the Unofficial Apple Weblog]
Posted 06:23 AM | Comments (2)
Fireworks
Follow the action: Heidi of Letters of Marque is pissed off because of some of the comments people have made about this post in which Heidi pointed to Professor Brian Leiter's scathing review of a student note in the Harvard Law Review about so-called "intelligent design" theory.
As you can see from the links in the Heidi's comments the conversation on Letters of Marque is just a small taste of what Leiter's review has stirred up. Leiter has an update here, including a link to a National Review Online story in defense of the student (or his note, I'm not sure which), and many links to sources that support Leiter's view that intelligent design is a bunch of hooey. I don't have time to actually read all the back and forth, but it's certainly fascinating.
Oh, and another bit of potentially great reading comes in the form of De Novo, a new group blog by most of the former contributers to the now-defunct En Banc.
Posted 06:13 AM
The Law Blog Book
Thinking about the law student blogs I read regularly and all the other law blogs out there gives me an idea: The history of blogging does not stretch back too far, and specifically, blogs by law students seem to be a relatively new phenomenon. Wouldn't now be a good time for a book about law school blogs and maybe law blogs more generally? I mean, as a sort of document of their development, a snapshot of this phenomenon before it goes nuclear and everyone has a law blog?
Some content ideas:
History and General Scope: Who was the first law blogger? The first law student blogger? Is there any sort of evolution that can be traced from the first law school blogs to those of today? What are the most popular law school blogs and why? Are there any common denominators among law school bloggers (other than the fact they have blogs)?
Blogs in School: What role do law school blogs play at different schools? This could be a main focus: Some law school bloggers report that their profs read their blogs -- is this a good thing? Does blog content come up in class or office hours? Do any schools take an "official" position on blogging (as in, do they try to control who has blogs and what they say)? There was a mini-brouhaha at Michigan about the "White Lancer" who apparently crossed a line by "bashing" a professor and a fellow student. Are there more examples of this? More important, are there good examples of law student blogs actually having a positive effect on the classroom environment or the quality of legal education in general?
Faculty and Blogs: This may be a subset of the above, or its own "chapter," but there are lots of fascinating law professor blogs. What role are they playing? Do students commonly read their professors' blogs? Are professors finding this channel of communication to be helfpul? (Presumably yes, otherwise they wouldn't blog, but we could try to learn more about this.)
The Future of Blogs in School: Blogs could be a dynamic teaching tool. Are any profs using blogs specifically as requirements for class (i.e., requiring each student to post once or more in a semester)? In what ways could blogs be used to improve the impersonal (and deeply flawed) assembly-line/mass production nature of legal education? In what ways might blogs only make that "teaching" model worse (i.e., will blogs encourage moves toward online education rather than classroom-based education)?
And why stop there? Why not a chapter on Practitioners' Blogs? Judicial blogs? Paralegal blogs? The future and different legal questions raised by blogs in different legal contexts (ethics, conflicts of interest, privacy, etc.) It need never end! The general point would be a populist/academic look at blogging the law. The target audience would include (in something like this order): future and current law students, current law faculty, all legal practitioners, the blogging community in general, anyone else w/an interest in blogging and/or developments in the law.
This could either be a solo project or an edited collection of essays, or it could take some other collaborative form. Could a book like this be written online? On blogs? (I'd say yes.)
So who wants to do what? Come on, you've got nothing better to do this summer, do you?
______
Posted while listening to: The Amendment Song from the album "A Song For All Seasons" by The Viper and His Famous Orchestra
Posted 06:44 AM | Comments (6)
Conference Madness
If you're in New York today, get yourself on down to the Cooper Union for the Socialist Scholars Conference. The program sounds terrific.
Next month, April 15-17, the National Legal Aid & Defender Association will hold its Equal Justice Conference at the Hilton Atlanta Hotel in Atlanta, Georgia. Lots of good workshops and networking, and it only costs $100 for law students.
More "mainstream" and much closer to me: The American Constitution Society's 2004 Convention at the Marriott Wardman Park Hotel, right here in D.C., featuring a keynote from SCOTUS Justice Breyer. That's June 18-20th. I'm there.
Posted 06:02 AM | Comments (1)
Asylum for Domestic Violence
The best thing about Legal Writing class as a 1L for me is that it's teaching me a lot about a few small segments of the law. One of those segments has been asylum law, which was the subject of our first memo last semester. I hardly knew what asylum was before that memo, but now I understand the basics, which means I know enough to understand the asylum process can be seriously random and unjust.
Asylum law is in the headlines today because of a big case about whether women who have been victims of domestic violence in their home country should be granted asylum in the U.S. NPR covered the story Friday, as did the print press. UC Hastings also has a site with more information on the case. Here's the gist:
The request will determine whether battered women are eligible to receive sanctuary in the United States. The case could have great impact on women in countries where domestic violence goes unpunished.
Ashcroft has the authority to allow Rodi Alvarado, 36, to stay in the country and set a precedent for other abused women seeking refuge. The recommendation was made in a legal brief filed late Thursday. It couldn't be determined when Ashcroft would act on it.
Asylum experts said Homeland Security's endorsement of Alvarado's asylum claim would make it far harder for Ashcroft to reject the plea.
It's incredibly depressing to have to rely on Ashcroft to make a potentially huge decision like this, but here's hoping he chooses correctly and grants Alvarado asylum.
In related news, tonight at 10 p.m. on Court TV: Chasing Freedom, an original movie about an Afghan woman trying to get asylum in the U.S. after being persecuted by the Taliban. Juliette Lewis stars as the young New York lawyer who takes the case pro bono. (Does anyone do asylum cases full time?) This could be just another opportunity for a movie to say, "Hey, the Taliban was really bad; isn't it great the U.S. took over Afghanistan?" But it's on court tv, so instead, maybe it will focus on the broken backwater that is U.S. immigration and asylum law. Although some of you may be too broken up after the series finale of Sex and the City to watch anything else, "Chasing Freedom" might be worth taping to watch some other day.
Posted 08:32 AM
Rule of BadLaw
There's a fascinating discussion going on over at Letters of Marque in response to Anthony's complaint: The "pious guardians of the rule of law" (Anthony targets the NY Times as an example) complained about former Judge Roy Moore's fight to keep the Ten Commandments monument in his courtroom; however, those same "pious guardians" are not now complaining as San Francisco Mayor Newsom allows gay couples to marry. (Incidentally, Anthony's complaint seems to be a right wing meme, although it looks like Anthony posted before Rush did.)
My favorite comment thus far (scroll down) comes from the arbitrary aardvark:
Brilliant.
In random "blawg" news, enbanc, a group blog with which I was very very briefly associated, has met a mysterious and unilateral end.
Ripping straight from the headlines at JD2B, don't miss the six kinds of law students (Survivors rule!), a rhymed rendition of Marbury v. Madison (also brilliant!), and appellate blawger extraordinaire Howard Bashman's thoughts on how to become an appellate lawyer. Somehow I fear Survivors do not often become appellate lawyers, you think?
Finally, the National Coalition for Students with Disabilities has a new blog and is looking for submissions. They're also looking for interns and volunteer help, so scoot over there if you've got some time to spare or are looking for a good public interest gig for the summer.
Posted 07:32 AM
What Better Profession?
In response to Transmogriflaw's post about brief-writing, and Legal Undeground's post about Richard Ford, Stay of Execution once again offers a tantalizing gem of insight into what it's like to practice law, and why it can sometimes, well, suck.
Sherry's whole post is certainly worth reading (and it's not long), but here's the heart of it for me: After explaining that the key to a good brief is to separate your own feelings from your client's interests, Sherry writes:
That may be the best argument I've yet heard for doing everything you possibly can to find a legal job that fits you, rather than one that just pays well or gives you prestige or credentials or whatever. Does job satisfaction directly correspond with the degree to which your client's values and interests match your own?
Beyond that, I find this description of lawyers as split selves -- one self that advocates zealously for the clients' interests, one that lives the rest of the lawyer's life -- just a little disturbing at the moment, making me wonder yet again: Is this really the life I want to live?
Perhaps I'm just scared of something -- the debt, the pressure, the stress of practice. But the context of Evan's question (the question to which Sherry was responding) raises two other possibilities. Evan wrote:
So maybe I don't really want to pay the money and serve the time to get the degree. Or maybe I'm just unimaginative.
Oooorrrr..... maybe I should quit thinking about things like this and do my reading, brief-writing, and mock trial preparation. Yeah, maybe.
Posted 06:47 AM | Comments (1)
SCOTUS Humpty Dumpty
After overdosing on Democratic primary news recently, we now return to our regularly scheduled programming, which, at the moment, is a memo in support of a post-trial motion to acquit on charges of using a firearm in furtherance of a drug trafficking crime.
In U.S. v. Sumler, 294 F.3d 579, 583 (3d Cir. 2002), the court is discussing what it means to "use" a firearm in connection with 18 U.S.C.S. § 924(c)(1)(A)(i). Specifically, can a person "use" a firearm when that person receives the firearm as payment for drugs? (The SCOTUS has settled the question of whether giving a gun in exchange for drugs is "use," but the circuits are split on the question of receiving.) Eventually, this court says "yes, receiving a gun as payment for drugs is 'use' for purposes of this statute," but along the way it has to respond to the counter-argument that "there is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment." United States v. Westmoreland, 122 F.3d (7th Cir. 1997). To this the Sumler court says:
The Third Circuit just compared the Supreme Court to Humpty Dumpty! I'm loving that.
Posted 07:05 AM
Organized Resistance
If you're in D.C., check out the National Conference on Organized Resistance (NCOR) happening this weekend at American University. NCOR's brief description of the conference:
It would be interesting to poll attendees. Who is the presidential candidate of this social justice crowd?
Posted 06:47 AM | Comments (1)
You Deserve a Break Today
Today's Quote: "People are getting smarter nowadays. They are letting lawyers, instead of their consciences, be their guides." —Will Rogers
That would be funny if it weren't true. Somehow I've developed this idea that there has been a shift in the U.S. from a culture in which people tended to refrain from doing Act X because they thought Act X was wrong, to a culture where people only refrain from doing Act X if there's a law against it (and they think they'll get caught). In hugely general terms, it seems plausible to argue that such is shift is visible in the switch from some idea of "natural law" (say, in the 18th and perhaps early 19th centuries) to the more secular view we have today of the law as a social creation. But I think there's more to it than that, something having to do with a late 20th century shift in society and its laws from some sense of community responsibility to a near obsession with individual rights and liberties at the expense of all other values. Maybe. It's Monday, I'm just thinking out loud here.
And really what I'm thinking about is how great it would have been to have an extra week of holiday break, pace Three Years of Hell (which has undergone a nice redesign over the break), DG, and Musclehead (which has also been redesigned, but which may not be back to regularly scheduled programming yet). I suppose the bright side of starting earlier is that GW should also finish up a little earlier in the spring, something for which I'm sure I'll be grateful when the time comes. Next year the effect could be even more pronounced: GW is currently considering switching 2Ls and 3Ls from a 14-week semester to a 13-week semester. I haven't been following the issue too closely, but it sounds like the change would require us to switch from 50-minute classes to hour-long classes or something. Sounds fine with me.
If my holiday break had been longer, the main thing I would have done with the extra time would have been applying for summer work. I spent the bulk of yesterday sharpening the resume and crafting 15 cover letters for the upcoming Georgetown/GW Public Interest/Government Interview Program. I also investigated the Peggy Browning Fund Fellowships, applications for which are due (meaning must be received by) Jan. 15th. Looks like I'll be sending some overnight mailings in the next day or two.
What is that they say about rest for the wicked? Oops! My cauldron's smoking—gotta run.
Posted 05:38 AM | Comments (1)
Professorial Quotes
Studying for finals means going through my notes, which are excessively detailed. The excess makes it hard to sift through for what's important, so in the future I won't be taking notes like this, but the benefit of so much detail is that I captured a few choice comments from my professors. The best two are from Prof Torts, who, for the sake of context, is a graduate of the U of Chicago law school (bastion of the law and economics school of thought), a former Scalia clerk, and a dedicated proponent of Judge Learned Hand's "BPL" cost-benefit analysis—Prof Torts seems to think we should apply the BPL to every situation possible. He even went so far as to spend an entire class period arguing that HMOs should be allowed to dictate (a.k.a., "withhold") medical treatment on the basis of the BPL, and to introduce cost/benefit evidence as a defense when patients die and the HMO doctors get sued for malpractice. Doesn't that sound like a great idea?
So anyway, here's what Prof Torts says about tort law generally:
Ah yes, government is mischief. Is it true that the more money you have, the more you loathe the government?
Now here's ProfTorts on government today and how politicians feel about the BPL:
I'd like to make an argument that this goes beyond "bare non-disclosure" of information to the contrary and borders on fraudelent misrepresentation, but I'm done with contracts for the semester and we've both got better things to do. Oh, but speaking of contracts, ProfContracts was a bit lighter, if not more encouraging:
This is a great example of the kinds of jokes 4 out of 5 of my professors made all semester—jokes about the shortcomings in the law or the practice of law, with punchlines about how those shortcomings don't matter because, well, what matters is money! Ha ha ha! That's so funny! Not.
<mini-rant>
Approx. 500 new recruits begin studying law at GW each fall. A certain percentage are almost certainly going to law school because they'd like to make the world a better place somehow, not just for themselves, but for other people, as well. These 500 students then spend the next three years sitting in lectures punctuated by jokes suggesting the legal world sucks and the one thing that makes it palatable is cash. Many of these jokes also involve admissions that the law is patently unfair in some way; the punchline? "You don't have to worry about that because you'll still get paid!" So, after three years, how many of those 500 law students do you think will have given up on making a positive contribution to society? Why should they care about anything other than making money when their profs keep telling them that money is what really matters? Yay!
</mini-rant>
But one of my professors did not make jokes about scrupulous lawyers making money from injustice, and that was Prof CrimLaw. Instead, he told us to look for those places where the law seems unjust, or where society doesn't seem to be working as well as it could, and to ask questions and to try to come up with answers. On the last day of class, Prof CrimLaw made some self-deprecating comments about how law professors like to hear the sounds of their own voices, then he gave us some "wise words" to think about, including this semi-joke:
Gee, why would that be? And if it's not actually true (it probably isn't), why would it even sound plausible? See mini-rant, above.
ProfCrim went on to advise and encourage us to take CrimPro, since it's important and will teach us the kinds of things people expect you to know when they hear you're a lawyer. And he finished with a call for us to take seriously what we learned this semester. A rough paraphrase (at the time we were discussing the insanity defense and had just finished readings about the case of John Hinckley shooting Ronald Reagan):
My transcription doesn't adequately capture what he said, but you get the idea. ProfCrim was joking when he said he had some "wise words" for us, but those don't sound like so much of a joke to me. The main point is how starkly these sentiments contrast with those of ProfTorts and ProfContracts. I'll certainly be taking a closer look at a career in CrimLaw, but first I guess I better try to pass the final exam...
Posted 07:19 AM | Comments (5)
Disgusting Durst
Life is may often be stranger than fiction, but in this case, it's also much more sad and disgusting:
What the hell? You can admit to killing someone, sawing up the body, dumping the body parts in the bay, and be acquitted? And all this was after Durst's first wife mysteriously disappeared, his "confidant" was murdered without explanation, and he'd been running from the cops and displaying all kinds of off-his-rocker behavior. Yet a jury said, "Oh, yeah, all that's a little odd, but it's ok. We don't think you should be punished for any of that."
Apparently, the experts are scratching their heads, trying to understand this obscene verdict:
But they're never going to figure it out because they're not even seeing the most gross and obvious factor here: Class. Durst is a rich white man, and rich white men can simply get away with murder in our society. Does anyone think that if Durst had been poor he would have been acquitted? Or if he'd been black or Hispanic or, god forbid, "Arab," would he have been acquitted? Somehow I think not. But our society gives rich white men a pass. In fact, we encourage them to get rich by lying, stealing and cheating, so when they're successful at that, and they actually outright murder someone and chop up the body, we say, "So?"
Call me crazy, but I think we should reverse our twisted assumptions. Think about it: One of the best ways to get rich in our society is to lie, cheat and steal, and very often the people who do this are white and male. See Enron, Worldcom, etc., not to mention the countless manufacturers who have moved production overseas to exploit cheap labor and the lack of environmental regulations and worker protections. Therefore, we should begin from the assumption that wealthy white men are more suspect, more morally culpable, more liable to do bad (and criminal) things, than are poor or working class people, and/or people of color.
But nevermind. For a second I forgot: We live in a classless and colorblind society. The Durst verdict proves that, doesn't it?
Posted 05:34 AM | Comments (2)
Law and Economics (Chicago School)
What is the value of Chicago School style Law and Economics?
Exhibit 1: A scene from "Fight Club" in which the Narrator (played by Ed Norton) is on a plane describing his job to a fellow passenger:
Business woman on plane: "Are there a lot of these kinds of accidents?"
Narrator: "You wouldn't believe."
Business woman on plane: "Which car company do you work for?"
Narrator: "A major one."
Exhibit 2: Judge Learned Hand's decision in U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) in which Hand describes how to determine a barge owner's duty to provide against injuries caused by barge acccidents. Hand says the duty is a function of three variables:
Discuss.
Posted 07:53 AM | Comments (2)
Mid-semester Ouch
Ok, so the one mid-term was all great and good and I learned a great deal from the experience and yadda yadda yadda. So what? Today I'm sick of Torts, and sick of reading and briefing cases. Sick and tired. Ugh.
So instead of saying anything intelligent about anything, I'll just suggest you go visit En Banc, a new group blog to which I hope to contribute something just as soon as my head stops spinning from all the other things I'm supposed to be doing now. Thanks to Unlearned Hand for proposing the project, inviting me to join, building the site, and posting like a fiend to get the ball rolling.
Posted 08:37 PM
CEDP:
This week, Oct. 13-1, is Death Penalty Awareness Week, sponsored by the Campaign to End the Death Penalty. Get a quick education by reading Five Reasons to End the Death Penalty.
L. and I went to a CEDP "Live from Death Row" event last night where we listened to a former death row inmate talk about his experiences. He had to phone in via speaker phone because he's still hin prison—his sentence was commuted to life w/out parole. He was preaching to the choir as far as L. and I were concerned, but it was still a powerful experience to hear him talk about how the CEDP saved his life. If you keep an eye out, you might find a similar event near you this week.
Posted 08:27 AM
Second Amendment
The Boondocks today is awesome. Who among the textualists will explain to young Riley what the "framers" intended when they wrote that bit about guns?
Hmph. That's what I thought.
Posted 02:38 PM | Comments (1)
New Find
Brian Leiter, of "Educational Quality Ranking of U.S. Law Schools" (aka, the Leiter rankings) fame, has a blog. This may be old news to you, but it's new to me, and very welcome. See, for example, his discussion of legal realism, about which I hope to say more shortly.
Unfortunately, he's not linking to any other blogs, so we can't follow his brain around to see what he's reading (although he may not read blogs much, anyway). He also isn't opening his posts to comments as far as I can tell, which is too bad. Still, it should be a great resource. Welcome to blogging, Professor Leiter!
Posted 05:15 PM | Comments (1)
Fair and Balanced Friday:
Whoops! Friday was Fair and Balanced day in response to response to Fox v. Franken. See also "Freedom of Expression."
Posted 07:42 AM
ABA Defends Civil Rights
Despite my criticism yesterday, the ABA isn't all bad:
Posted 07:06 AM | Comments (1)
The ABA is Broken
According to a recent study by the ABA's Commission on Loan Repayment and Forgiveness, law school costs too much and it's hurting the legal profession [link may require subscription]:
No kidding? Here's what the ABA recommends to change the situation:
More law schools should create their own loan-forgiveness programs, along with scholarships and fellowships for students who choose public-service jobs.
State and local bar associations should create or expand loan-forgiveness programs.
Here's a better idea: Make law school 2 years instead of three and put a cap on tuition. I'm sorry, but when most law school classes hold 150 or more students, I can't see how the costs of professors' salaries and infrastructure could require each of those students to be paying $30k/year for the privilege of being in class. You could also eliminate the costs of doing legal research by creating a public domain research service that will put Lexis-Nexis out of business, which would cut costs dramatically for both law schools and practicing lawyers. I'm sure there are other ways the system could be reformed, but judging by this report, the ABA doesn't seem too serious about it. Tell me again why the ABA exists?
Oh yeah. The legal world and I are going to be best friends, aren't we?
Posted 09:52 AM | Comments (1)
Tuesday Law Links
Just when I learn for sure I didn't get into a top-10 school, Sua Sponte warns future law students to apply to and attend the highest-ranked school to which they can possibly gain admission. A lively discussion has ensued in the comments section about the value of rankings and how important they should be to your choice of law schools, and the most recent comment links to this alternative ranking that, while a bit heavy on the frat-boy pick-up scene mentality, manages to make the point that there's a lot more to life than rank. Specifically, I agree that the availability of Fat Tire Amber Ale, hiking, mountain biking, and skiing should all be somehow figured into the next U.S. News rankings. Since all of those things are most readily available in the Rockies, my advice would be to apply to any school in Colorado or Montana. Idaho would work pretty well, too.
(Aside: Sua Sponte has been making noises about moving to MT; I hope she can transfer her archives and comments, because she's built up a great repository of opinions and information for 1-Ls and pre-1-Ls.)
But a bit more seriously, i hate stupid people (ihsp) and effinchamp have both offered some wise thoughts on how to choose a law school. ihsp's advice is eminently quotable; first:
The U.S. News Rankings may end up giving you some pretty empty stars. But ihsp continues:
Like I said: Great stuff. Now where was ihsp with this advice four months ago?!?
On a completely different topic, Professor Cooper links to Dwight Meredith (also here) and Kevin Drum on "tort reform." Together, the posts form a convincing antidote to the periodic media droning about multi-million dollar jury awards for "frivolous lawsuits" that are driving doctors out of practice and raising prices and insurance rates for all of us, etc. I just started reading Shrub: The Short But Happy Political Life of George W. Bush, which is at once fascinating, entertaining, and horrifying in its prescience. I mention it because its authors, Molly Ivins and Lou Dubose, have some choice things to say about Bush's "almost amusing loathing for trial lawyers" (xxiv), which leads to his obsession with "tort reform." The gist seems to be fairly obvious: As someone "perfectly comfortable, perfectly at home, doing the bidding of big bidness" (xvii), Bush hates trial lawyers because they do, occasionally, end up forcing "big bidness" to pay for its mistakes and abuses of public trust and resources. The brilliance of the Bush administration's campaign for tort reform is that they're selling it as a way to help the average American, when really this "reform" will almost certainly benefit corporate America more than anyone else. But then, as far as Yubbledew and Co. are concerned, what's good for corporate America is good for the world. Strike that: For Yubbledew and Co., corporate America is the world.
Posted 12:37 PM
GW's Computing Regime
So when GW says it requires students to have a laptop that runs Windows XP Professional, what do you suppose that means? As I mentioned the other day, I don't want to buy a Windoze pc, and in fact this is one of the more glaring issues I have with attending GW in the first place. I wonder how many other schools are getting so authoritarian in their computing policies.
For the record, GW says you must have a certain Cisco wireless networking card for your computer because GW's network uses Cisco's LEAP encryption. However, it appears Apple's Airport wireless networking cards work fine with LEAP, so long as you follow these directions for using Cisco's LEAP authentication via Airport.
GW uses Extegrity for its exams, so that's definitely Windoze-only and emulators like Virtual PC almost certainly won't work. It also uses SynchronEyes computer lab instruction software for its legal writing and research course. This is another program that appears to take control of your desktop, so it might not work in emulation either.
It may be that buying a windoze laptop is a compromise I have to make to go to law school, but what may be most disturbing about this is the slippery slope fear it creates. What other compromises lay ahead? And are they really worth making? As the clock ticks down to just slightly more than a month until school starts, these questions are no longer academic, and my level of dismay over what should otherwise be a fairly trivial issue suggests that I'm not really ready for this reality.
*sigh*
Posted 12:43 PM | Comments (2)
Future Think
What am I going to use a JD for? Well, are all lobbyists evil? Say what you want about Ralph Nader's run for president in 2000 (I've said plenty myself), Public Citizen rocks my world.
Posted 02:10 PM
Law: First Person
Today I had lunch with a current law student. She started the English program with me, but left for law school last year after she got her M.A. We were never close, but we were always friendly with each other. She was going into English renaissance stuff, so we were never on very similar paths. She did, however, use an old powerbook, and as Martha Stewart was wont to say, "That's a good thing."
All that helps put some perspective on what she told me, which was basically: Law school is like the Borg: If you go to law school, you will be assimilated.
She said the first year is about learning a new language, steep learning curve, adjusting to being one of the oldest in your class, having to put up with the go-go-go aggressive attitudes of the early-20-somethings who think they know everything, etc. She likes the class time (as I think I wouldthe whole Socratic method thing), but reading case law is a drag (no surprise). In short, the first year sucks, but she's hoping and nearly certain it will get better.
The important thing is this: She said she entered law school with the idea that she wanted to do public interest law, but after just one year she's now headed toward corporate BigLaw. Why the switch? She said she's tired of never getting paid well (she taught H.S. before coming to grad school), and it's awful to see all your peers making five times more than you (which is what will happen if you go into public interest law while all your schoolmates go to big firms). She tried fighting the system when she started, becoming indignant at all the hoops they made her jump through, resisting the awful writing they make you do (run-on sentences and other poor writing styles are mandatory, apparently), being appalled by the basic greed that motivated her fellow students. But then she realized that she'd just fail and/or be miserable if she kept fighting these things, and she asked herself, "What's best for me?" and she came up with the fact that she doesn't want to be in debt her whole life and she'd like to be able to help out her poor parents and it's not so bad to do 3-5 years of BigLaw in order to make enough money to do something she might prefer more. Oh, and it's ok with her to have to work 60-80 hour weeks in order to do all this.
*sigh*
Another story: She's heard stories about people interviewing for internships and law jobs. The interviewer asks: "Why do you want this job?" If you respond with some high-minded, idealistic answer about how you'd like to help people and/or make the world a better place, they'll look at you funny and say, "What else?" On the other hand, they'll nod approvingly and move on if you respond simply and directly, "I wanted to make money and this was the best and fastest way I found to do that." In other words, law sounds like it rewards a culture of greed and self-interest, which really explains a lot about how our world works. (Lawyers affect just about every facet of society in some way, and if they're all trained that greed and self-interest are good, then that's inevitably going to play a role in society as a whole.) And, if you stop to think about it, of course law rewards those who are willing to put their own interests ahead of all others: this is basically what you have to do when you work for a client. If your client wins, that's good for you, so whatever your client's argument is, you need to be able to make it your own and not get caught up in your own value hangups. But it seems that law would work best when your client's interests coincide with yours. What if lawyers refused to work on cases they disagreed with? Would the world be a better or worse place? (In light of the above fact that lawyers have learned that greedy self-interest is good, I imagine the world might be a much worse place. Sobering thought.)
According to my friend, only about 2% of law graduates go into public interest law. This is not surprising, but it seems to suggest that it would be easier to get a job in that field. On that note, however, she said the law career services office is basically designed to get people big-firm jobs in Chicago and if you want a public interest job you're really on your own. Great. And this is at a school that supposedly has a great, "top-10" public interest program. (She didn't seem to be aware of her own school's high ranking in this regard.)
One semi-bright spot: She said there are some law schools that will pay off your student loans if you go into public interest law. Apparently it works like this: If you take a public interest job that pays less than $30-35k/year, you'll get your loans reduced by 25% in your first year on that job, a little more in your second year, and so on until the loans are completely forgiven which could take 5-7 years. Sounds great. Sign me up! The problem: Those programs aren't exactly common.
What's funny about all of this (in a not funny at all way) is that none if it is the least bit surprising, and yet it makes me very depressed and sad. I mean, my friend only confirmed what I've read elsewhere and heard from others. So why did it bum me out so much? Why am I so determined to find some tiny flicker of good in law to hold onto? Is this some martyr thing where I want to go into a field where I will be constantly surrounded by people who disagree with me and who exert continuous pressure for me to become like them, to be assimilated? Why? I tried that with EnglishI heard all the bad stuff and I knew I wouldn't "fit in" with all that I'd heard, but I believed I could make a place for myself, I could hold my own and be the one who did it his way. That didn't work. I just became miserable. What would keep that from happening if I went into law? (Scary thought: The difference might be that in law I might actually be able to get a job and make a living. What would I think of English right now if I knew that I'd probably get a pretty good-paying job by "giving in" and becoming like everyone else and jumping through all the hoops? Would I want to do it? At bottom, is my frustration with English simply that there's no money in it? Ugh.)
Perhaps the question I need to answer is this: Is it possible to be an idealistic lawyer? Or is "idealistic" the wrong term? Why must it be "practical" to accept greed and self-interest above all other values? In fact, greed and self-interest are ideals in that it would be great ifin an ideal worldwe could all be as greedy and self-interested as we want and not cause or suffer serious negative consequences. However, that's not the world we live in. Our greed and self-interest always comes at the expense of someone else, so we must, as a practical matter, consider others when making our choices in life. I know this is true. I know it. And if becoming a lawyer would force me to ignore this truth, then I would certainly be the most miserable lawyer ever.
So a question for you if you are a lawyer or law student: Is it possible for someone on the political left to become a lawyer without sacrificing his/her values? Can you be a lawyer with leftist principals (supporting the interests of workers over capitalists/managers, supporting environmental protections, civil liberties over "national security," in favor of universal health care, etc.)?
Posted 08:44 PM | Comments (1)
What Law Is Like
Reading around the web, trying to get some idea of what kind of a law career might suit me, I came upon the Greedy Associates and their Greedy Law Students Board. Interesting stuff there, but especially this post asking about alternatives to practicing law (once you've already got the degree), and the response that points to the Alternative Careers column at New York Lawyer. The column is a Q & A style written by Doug Richardson, a career counselor and former lawyer. What follows are large chunks from two columns that seemed especially helpful.
First, there is the advice to someone who wonders what he/she can do other than practice law after spending three years slogging through law school, which offers some good insights into what law school and the practice of law are all about:
This much is true: law is more the province of the individual contributor (I do it myself) than the collaborative/affiliative type, law is fundamentally repetitive, law emphasizes spotting risk more than opportunity, and those who love to draw outside the lines frequently find law frustrating.
So in your case what was not to like? Or, put more positively, what kinds of satisfactions or incentives entice your more than whatever rewards law might hold? Those who enter law because they wanted membership in a profession they think is secure, stable, collegial and respectable are getting a rude surprise these days. The practice of law is moving away from stability and headlong towards being competitive, specialized and adversarial often even with ones own colleagues. The risk/reward equation is shifting: big paydays also mean big risks. Those who somehow got the idea that law is either intellectually stimulating or creative are disappointed more often than not. Law does have opportunities for intellectuals but not all that many. Ergo, you are not alone in questioning whether you should engineer an immediate change of venue.
This speaks to my concern that I won't be a good fit for law because I do like to "draw outside the lines." Yet, I believe I'm generally more of an individual contributor than a "collaborative/affiliative" type, so in that regard law might suit me fine. I take what he's saying about the cutthroat nature of law with a bit of skepticism because I wonder if he's considering public interest law, or just speaking primarily of big-firm, big-money law.
The second helpful column talks about the different reasons people generally have for going to law school:
Another large group say the want to learn to do something with their legal education, whether to right wrongs, make a lot of money, or be recognized as the world's greatest expert on electromagnetic torts. This "instrumental" motivation sees law as a tool one uses for a particular purpose, not as a ticket for inclusion into an exclusive club.
A third, much smaller group, studies law because they want to know stuff. It is the intellectual substance and challenge of law that captivates them. They see law in terms of norms, values, systems and history. They see the big picture. They generally are miserably unhappy in the mundane practice of law, but they make great law professors or appellate judges.
The final category contains all the "default" reasons: "My dad is a lawyer." "The LSATs said I might be good at law" [note that they never promised that you would enjoy law]. "It seemed like the thing to do at the time." "My folks said they would pay for it." These reasons can be very powerful, but fundamentally they are insubstantial: they are reactive rather than proactive, and therefore carry a high risk of later career dissatisfaction.
If one has thought through all these practical and motivation questions and is prepared to be cross-examined on one's motives, directions and sanity, effective spin control is not all that difficult. But be prepared to address this point: the majority of people who self-select into law are temperamentally suited to be specialists -- to be known for their knowledge in a certain discipline. In this regard they are much like accountants, plumbers, IT experts and human resources professionals. Their underlying drive often is to be an "individual contributor:" someone who "does it him(her)self."
I see a little of all of the above reasons in my own desire to go to law school. I primarily think of it as a tool (reason #2) that would help me contribute more to the public interest causes that I find so important. But the security and stability of the "profession" (reason #1) also figure in, as does the desire for the intellectual challenge (reason #3). The default reasons that might be motivating me include:
- The security: maybe I'm just looking for something that seems kind of safe? And yet, how "safe" is law when there's an excess of lawyers and the economy's in recession and lawyers are being layed off? Also, how "safe" is it to want to go into public interest law, where I'll likely make only $30-40k/year? (Funny thing is that "safety" is relative: If I stuck w/academia I'd likely eventually make more like $20-30k/year.) Also, law doesn't seem all that safe and secure if you stop to think of the cost: It could easily cost $30-90k for three years of law school, which would take a lot of time to repay on $30-40k/year. But I've already decided that I won't go if I have to pay more than $30k for it, so that's a little easier. (The best option would obviously be that I wouldn't have to pay at all, which would make law school an easy decision, but...)
- Another "default" reason I might choose to go to law school is the promise of the career path of law (this is related to safety). Right now I could either enter some other graduate program (law or library school, probably), or strike out into the big wide world of work (as a writer/journalist or in some capacity with a non-profit like Vote Smart or Public Citizen). Compared to the unpredictability that immediate entry into the workforce would involve, there's a certain amount of safety and predictability about pursuing another degree -- especially one like law or library school, either of which would send me down a more definite and bounded career path.
- Finally, I'm not sure this qualifies as a "default" reason for going to law school, but it is one I'm suspicious of and which is closely related to the other two: Law school (or library school) could be kind of simple right now. "Simple?" you ask? "Is he on crack?" What I mean is that I'm pretty sure I have a good chance of getting into the law school at my current university which would make law school simple because I wouldn't have to move, I wouldn't have to pay out-of-state tuition, and it's also a top-ten public interest school. (Library school here would be the same -- I could probably get in, tuition's reasonable, and it's a top-five program). I'm not crazy about the idea of moving and rearranging my whole life at the moment, so in that regard transitioning to another grad program here would be very simple. Easy. Entering another degree program just because it's easy doesn't seem like the best idea.
Richardson concludes both columns with similar advice, one version of which is :
Self-awareness is the goal here; I'm a little tired of kissing frogs.
Posted 10:08 AM
