Pork?

For the past several weeks, Washington D.C.'s busses and bus stops have been plastered with large posters that simply say, "Ain't Pork Grand?" In smaller type at the bottom, almost as an afterthought, the posters add, "Pork, the other white meat." At first I thought these ads were funny, as in, ha ha, pork! In Washington D.C.! Where all the pork is legislative! Funny! But now these ads just bug me. Thanks for the joke, pork people, but can you take them down now, please?

Posted 12:07 PM | Comments (4) | general politics

Initiated

Although school started over a month ago, yesterday marked my real initiation into the thrill of law school.

No, the thrill wasn't my introduction to Lexis, rather, it was CrimLaw, where I was cross-examined for the first time. As I mentioned before, PCrim is the most "socratic" of my professors, and some say he's the most socratic of the entire GW faculty. Not only does PCrim spend each class relentlessly questioning only one or two people but he does so in what I find to be a highly unusual way: Instead of looking at or speaking directly to the student he's questioning, he wanders around the room, looking out the window, at other students, and even at the blank wall or the corner of the room, all the while carrying on his socratic conversation with his chosen respondent. If the chosen student doesn't know the material well, PCrim's method can make the class painfully slow and frustrating; if the student is able to answer in a reasonably lively manner, the class can also be lively, and even somewhat exciting. So far, every student PCrim has called on has at least been able to muddle through, and PCrim is actually very nice and helpful in his questioning—if you stumble or ask for a bit of time, he gladly gives it; if you give the wrong answer or are on the wrong track, he bluntly says so, then kindly rephrases the question. And not only does he rephrase the question, but he will often start using language directly from the case your reading, and he'll review the case to the point where he wants you to be. That way, if you've read the case, the way he asks you the question will often trigger your memory of it and lead you to just the right point to find the answer he's looking for.

So far, PCrim's patience and all the help he offers has guided more than one student through cases that they clearly hadn't read very closely, so PCrim has never had to give up on a student—at least not until yesterday. No, it wasn't me (thank goodness!). I was actually the third person PCrim decided to call on yesterday, partly because the first person… well, let's just say he clearly hadn't read the case. It was a bit painful to watch him fumble through complex "I don't knows," and I have to admire the way he tried to redirect and qualify questions to buy time, but the bottom line was: He hadn't done the reading. The class slowed to a crawl as PCrim spent 10 minutes with this student, patiently giving the student plenty of time to find the answers, and even pointing him to the correct page and paragraph. No dice.*

So PCrim moved on to respondent 2, who did a much better job and the pace of class picked up. We were discussing proportionality of punishment, trying to follow the Supreme Court's decisions about whether the Eight Amendment (which forbids cruel and unusual punishment) contains any sort of guarantee that punishment will be somehow commensurate with the offense. So the material was Harmelin v. Michigan (1991) and Locker v. Andrade, which was just decided in March 2003. PCrim's relief was almost visible as Respondent 2 moved us quickly through Harmelin (which contains a good review of Solem and Rummel, the two other most recent SCOTUS cases in this thread), but he also seemed perhaps a bit more impatient than usual, more quick to cut off wrong answers and press more directly for what he wanted. It was clear to everyone that the time PCrim had spent with the first student meant that we'd have to move briskly to cover both of these complex cases in the time remaining. I was just relieved the class was moving again and—thinking how unusual it was for PCrim to call on more than two people per class—I was just beginning to gaze out the window and think about lunch when PCrim moved to Andrade and said, "Ambimb, please give us the facts of the case."

I'm glad (and relieved) to say that the next 15 minutes flew by, and from where I was sitting (in the hot seat), the time flew because I was able to respond quickly and correctly to 95% of PCrim's questions about Andrade. In addition to the facts of the case, PCrim always asks about what the defendant was charged with, what the issue of the case was, what the holding was, and what reasoning was most crucial to that holding. Andrade, which said two consecutive 25-year sentences were Constitutionally acceptable punishment for the offense of stealing 9 videotapes worth about $150,** also contains a dissenting opinion. Last night, by the time I'd finished all the other reading, I'd only read that dissent once and I hadn't taken the time to absorb the details about it, so I began to stumble a little when PCrim asked about it. Aside from that, my time in the hot seat was actually fairly cool.

The experience taught me at least a couple of things. The first lesson was that law school would be orders of magnitude better if classes were small enough to allow much more of this kind of one-on-one interaction between faculty and students. We spend so much time reading and preparing to discuss cases, and for the most part we never get to discuss them. This makes all that preparation start to seem like a waste, and that encourages law students to slack, skim, and just cram for exams. That makes huge law school classes pedagogically poor.

I also learned that I'm not as cool under pressure as I'd hoped. For the most part, I fielded PCrim's questions w/aplomb because I knew the material; however, a couple of times when he strayed into more difficult questions or questions for which I didn't have a ready answer, I was too impatient with myself and instead of giving the question enough thought to answer intelligently, I just blurted an "I'm not sure" or I just guessed at an answer. From a distance I can see it would always be better to take your time and come up with the best answer you can, rather than just giving up or guessing, but what surprised me is how much pressure I felt when I was on the spot. It's not just that a stern professor is expecting an answer, it's that the whole class is expecting an answer. In the second or two you may pause to consider an answer, the silence of the room can be deafening as the staccato whoosh of fingers tapping on keyboards hangs literally on your words. The takeaway is that you just have to shut that pressure out and have confidence that if you give yourself the chance, you will come up with a better answer than if you just blurt the first thing that comes to your head.

Finally, I learned that it's great to know the material. It's thrilling to have the answers, and to be able to engage the issues of a case with the confidence that comes from knowing you've got a good grip on its facts and those issues. Conversely, not knowing the material can be damned painful and probably comes close to negating the value of attending class at all. That lesson's obvious, but it's good to be reminded of it.

* To be fair, this first student might have read, but might simply have seized up under the pressure of questioning. The fact that he responded w/redirections and evasions makes me think he just hadn't read, but it's hard to tell.

** The defendant, Andrade, was an admitted heroin addict who admitted he stole to support his habit. He had a fairly long history of nonviolent crime—mostly burglary and petty theft—however some of his thefts had been categorized as "violent or serious" at the discretion of the judge and prosecutor. His harsh sentence was the result of California's "three-strikes" law, which says that after you've been convicted of two violent felonies, any other conviction (violent or no) can trigger a 25-year sentence.

Posted 07:28 AM | Comments (2) | law school

Legal Research Crack

Yesterday began w/a Lexis Nexis "training session," provided by a Lexis representative during out LegResWri class. You can't be a law student if you don't know Lexis, can you? For half an hour everyone oohed and ahhed over the magic of Lexis, and the whole time the Lexis rep just kept encouraging us to "use it, abuse it, really get to know and love Lexis—when you get to your law firm, you'll be glad you did." What she didn't say is that Lexis will also be glad we became addicted to its services—completely reliant on them, in fact, because by then we will have forgotten how to use their book equivalents—because that means more money for Lexis. So, basically, GW forced every one of its first year students to let Lexis spend 30 minutes helping them take their first dose of legal research crack.

Why does Lexis get this captive audience to shill its goods? I think other corporations should get in on this, don't you? I mean, I think, to be fair, Starbucks should get at least 10 minutes to encourage us to "drink lots of coffee in law school—when you get to your firm you'll be glad you did because then you'll be ready to stay awake and productive from the early morning to the late late night." Perhaps in the spring some boring black business suit makers could come to our contracts classes to model their boring black business suits and encourage us to wear them to interviews because "when you get to your law firm, you'll be glad you did!"

For the record: Electronic, online legal research rocks. The fact that Lexis makes a profit from it is just plain wrong. Of course I will use Lexis, and of course I will resent Lexis. I will also advocate for a publicly-funded, not-for-profit legal research database that will put Lexis (and West) out of business. We need online legal research; we don't need people making money from it.

So the next time the Lexis or Westlaw rep comes around offering you points or goodies or training, remember that the only reason they're trying to buy your love is so that they can make a fortune off of you over the course of your legal career. If you're a solo practitioner or part of a small firm, be prepared to spend $300/day, $455/week, or $715/month for the full Lexis access you enjoy in law school. Or you can plan to pay-as-you-go at $9 per document/case you access. What a bargain!

Posted 07:23 AM | Comments (4) | law school

More Hope for 2004?

Almost lost in the hoo-haw about Clark leading Bush in the most recent poll was the fact that the same poll also said Bush's overall approval rating is at its lowest point since he became President. This means there's more hope than ever that whoever ends up as the democratic nominee will actually beat Bush. And according to Richard Goldstein, increasing numbers of liberals and progressives agree: We'll do whatever it takes to get Bush out of office:

For the first time since the '60s, radicals are willing to break bread with the Democratic mainstream. What accounts for this change? In a word, experience. The coalescing of free marketeers and fundamentalists into a potent right-wing political force has driven the left to reconsider its usual strategy of divide and be conquered. "Too often, progressives were unwilling to act together on anything until they agreed on everything," says Katrina vanden Heuvel, editor of The Nation . "That is gone. We can hold two visions in our mind. There's the long-term building of a movement, but in the short term this is the worst government the country has ever had. Imagine what Bush would do with even a tiny mandate. We've seen what he can do with no mandate. We've got to move on that basis."

Clark, Dean, even Kerry—all fine with me, I guess. None are perfect, but all are better than the Dismal Failure. Ridgeway's article gives a good overview of the campaign field at this point, including some insight into how the Democratic "party establishment" figures in the whole circus. (Lame ending, though.)

On the darker side, it could be argued that the 9th U.S. Circuit Court of Appeals just gave the finger to equal protection by saying that it's just fine for less wealthy voting districts to lose more votes than more wealthy districts. Worse, some have been arguing for some time that the end of exit polling and the rise of electronic voting machines spells the end of democracy because these developments leave us with no way to assess the validity or accuracy of election results. Now, Salon's Farhad Manjoo is calling optical scanning and touch screen voting systems "an open election to fraud." For one thing, it seems the CEO of Diebold (one of the leading manufacturers of these voting machines) is a staunch Bush supporter and fundraiser. For another, researchers have found "that Diebold's voting software is so flawed that anyone with access to the system's computer can change the votes without leaving any record." And apparently gaining access to the system's computer is fairly easy—not just for elections officials, Diebold employees, or "the janitor," but also for anyone with an internet connection and some mad hacker skilz. According to the researcher, the Diebold system is basically swiss cheese:

I got a call from one of our more brilliant computer programmers -- he's got quite a few advanced degrees -- and he called me on a weekend and he said, "I want you to go to your computer." And he walked me through it just like a support tech does -- open this panel, click this, do this, do that. And as I'm doing this it was appalling how easy it was. Once you know the steps, a 10-year-old can rig an election. In fact it's so easy that one of our activists, Jim March in California, put together a "rig-a-vote" CD. He's been going around showing it to elections officials, and now this CD has been making its way to Congress members.

It's shocking. All you do is double-click the icon. You go backwards through the Internet to that county computer, and if you have Microsoft Access on your machine you can walk right into that election database while it's open. It's configured for multiple access at the same time. You can be in there changing things and you can change anything you want.

Does democracy have any meaning when a 10-year-old could rig an election? I mean, Diebold is one of the largest providers of touch-screen voting systems, and their systems have so little security it almost sounds like they were designed to be easy to hack.

So we know punch cards lose a far higher percentage of votes than these other systems, yet we also know that Diebold's systems are completely insecure and provide no paper trail or any other check on their accuracy. So tell me again, what's the point of voting?

Posted 06:07 AM | election 2004

Election Flim-Flam

Yahoo says Wesley Clark is tied with Bush in a recent poll. Why? Why do people prefer a warrior mystery man over other candidates who have been in the race longer and have laid out clear positions on many major issues? Is it because he's new and different, or is it because of his military experience, or both? And what's so appealing about a President with a military background, anyway? Are military solutions really what we need to fix the nation's problems? Is "national security" really such an important issue to most voters, or are people just saying that because the media tells them to? How much difference does it make that Clark appears to be the DNC's new golden boy?

And on the other end of the polls, Carol Moseley Braun officially announced her candidacy for President yesterday. Wouldn't it be cool if these poll numbers were reversed? I mean, why can't the first black woman to run for president shoot to the top of the polls, while another white military-man sinks to the bottom? I do hope that day will come—sooner, rather than later—but unfortunately that's like hoping to see the day when our public schools will have all the money they need and the military will have to hold a bake sale to buy a bomber.

Meanwhile, the "dismal failure" (Gephardt's mantra in the last Democratic debate) will go speak at the U.N. tonight, but to no one's surprise, his audience is going to be a little less than welcoming. It's amazing to think about the support U.N. nations gave the U.S. just two years ago. It's also been exactly a year since the Dismal Failure's last speech to the U.N. during which he told a bunch of lies and took more giant leaps toward erasing the last 50 years of U.S. foreign policy. Gee, tonight's speech will have to be a doozie to even come close to all that.

But don't despair: The next debate to help voters decide who should replace the Dismal Failure is Thursday, probably around 8 p.m., on CNBC and MSNBC. And for a sobering and insightful look inside the way today's media machine destroys the substance of presidential politics, see Dean-a-Palooza by Matt Taibbi. Lots to think about while you're watching the debate, I guess...

Posted 06:51 AM | Comments (3) |

The Thrill of Defeat!

Today I presented my first oral argument before the GW Court of Appeals, and what do you know—I lost. Ah yes, what a rush.

Ok, so that makes it sound like it was serious, but it wasn't really. My adjunct LegResWri professor (a local practicing lawyer) just thought it would be fun to make us give 5-minute arguments on fictional cases as if we were arguing before an appeals court. And it was kind of fun, but I learned that you can only say "the bar is very high for the level of outrageousness necessary to sustain an intentional infliction of emotional distress claim" so many times before those pretend judges start to see right through the fact that you don't really have much of an argument. Oh well, the class agreed afterward that I had the harder side of the case to argue, so cest la vie.

My crash and burn was followed by a bit of a "save" in Torts when I was able to give the prof the precedent (Griffin v. Clark) for which he was searching in order to illustrate why his crackbrained hypo (which I believe involved a threat to fail anyone who left the classroom in the next five minutes) was different from his previous crackbrained hypo (involving a colorful character named "Disastro" (or something like that) with a gun in his pocket). It was thrilling, let me tell you.

Finally, I ended the day in Contracts by telling the professor that the fact pattern the court found so eminently "reasonable" also described exactly what I'd do if I planned to "screw" someone out of his property. An unfortunate choice of words maybe, but I couldn't help it; the "reasonable person" standard—and the faith the legal world places in it—is so ridiculous it just makes me want to spit. Does anyone really think the "reasonable person" standard is anything more than a scapegoat onto which the jury loads its personal impressions of the litigants' subjective claims? I've said it before, and I'll say it again: Back, ye scurvy dogs!

In tastes great, less filling news, don't miss The Law Revue Review. I hereby promise to be lampooned by the Revue Review at least three times in the next year. (But that's a gentleman's promise and I have no intention of assenting to being bound by it. So there.)

And for more perspective on this law school endeavor, don't miss the "journal of a confident 1L" at One Maven, the adventures of Miscellaureous (who seems to be lovin' the law school life and working diligently at it), Transmogriflaw's ongoing accounts of the stress bunnies, Effinchamp's law porn (take that, Bill O'Reilly), and Jeremy's little essay on the merits of thinking of law school as a "credentializing system." Damn, aren't blogs cool!?

p.s.: Who is Gregg Easterbrook?

Posted 08:03 PM | law school

Marx Haunts Contracts Text

School's back in session, bright and early in the morning. Yay.

My Contracts text tells me there are two different theories of contract, the "objective" and "subjective." These would seem to correspond nicely to the schools of "legal formalism" and "legal realism," which I only know enough about to be intrigued by. The footnotes tell me that Judge Jerome New Frank, the representative of the "subjective" theory of contract, was a proponent of legal realism, while the great Judge Learned Hand was a proponent of the "objective" theory of contract (which would seem to correspond with legal formalism, although the book doesn't say that).

But all that's just introduction to the next footnote, which provides additional background on Frank's critique of the "so-called 'objective' theory." The footnote says (emphasis added):

The 'actual intent' theory, said the objectivists, being 'subjective' and putting too much stress on unique individual motivations, would destroy that legal certainty and stability which a modern commercial society demands. They depicted the 'objective' standard as a necessary adjunct of a 'free enterprise' economic system. In passing, it should be noted that they arrived at a sort of paradox. For a 'free enterprise' system is, theoretically, founded on 'individualism'; but, in the name of economic individualism, the objectivists refused to consider those reactions of actual, specific individuals which sponsors of the 'meeting-of-the-minds' test [the subjective theory of contracts] purported to cherish. 'Economic individualism' thus shows up as hostile to real individualism. This is nothing new: The 'economic man' is of course an abstraction, a 'fiction.'

So there you have it: You couldn't possibly construct a better example (a "textbook example," no less!) of the way the status quo (in this case the status quo of legal education) actively works to smooth over the contradictions of capitalism to obscure the fact that "free enterprise" is anything but. This is like saying, "Oh, and by the way, your entire life is built around lies." It's so clever how the authors (Farnsworth, Young, and Sanger) stuck this little tidbit in a footnote, and then to marginalize it still further, they wrap it all up with a nice little "but of course we all knew this already, didn't we?"

My professor claims legal realism is "sort of falling out of favor." Shock! You mean the legal establishment is moving away from treating people as human beings rather than as economic tools to be governed by abstract principles? I never would have guessed that by the current state of "globalization"!

Here's what we need: A class called "Marx and the law." Then we'd really be learning something. But instead we'll continue to live in our fictional "free enterprise" system governed by fictional "objective" standards, and we'll continue to wonder why the world seems so screwed up.

Back, ye scurvy dogs!

Posted 06:46 PM | law school

Legal Fat Heads

New-to-me blog Civil Procedure led me to this little article, Bemused About Blogging. As CivPro says, lawyers can be the worst sort of snobs.

Another case in point: I was just reading about how to write a statement of facts and my legal writing text just told me that:

writing this key part of the brief is more challenging than writing a short story or novel. It is harder because you cannot make up desirable facts or imagine away undesirable facts, and because you must appear to persuade without appearing to do so.

Exqueeze me? Writing a statement of facts is harder than writing a novel!? Gee, I guess that's why novelists are a dime a dozen, eh? I mean, anybody can make stuff up, right? I submit that it's damned hard to write a novel, even a really crap one. If it was so easy to make stuff up and write a novel, we wouldn't value good novels so highly, would we? But just like those lawyers who think they're above blogging or pro wrestling, the writers of this textbook think they're above novelists. Whatever.

The good part about this approach to legal writing is that emphasizes that legal contests are really story-writing contests where the "facts" are largely what you make them. I'm sure not all lawyers and legal writing text writers are that ready to take the linguistic turn, but they're already halfway there.

Oh yeah: We survived the hurricane w/nary a scratch. Our power didn't even flicker once and the rain never seemed that heavy. Sure, there are trees down all over the place and thousands of people are still without power, but in this little bubble that is our neighborhood, it was just a little storm. We're the lucky ones, I guess.

Posted 11:49 AM | Comments (3) | law school