Date based archive De Novo: March 2004 Archives

March 31, 2004

Responsible Blawging

I've considered anonymity throughout my blogging history, but I've ultimately decided against it because writing in my own name forces me to take due responsibility for my public remarks. Plus, in the unlikely event that I some day produce a truly original thought, credit would be nice. Anonymous or not, it's long been my view that blogging about matters (involving other peope) that are not explicitly public is a very bad idea. I'm always baffled by bloggers who underestimate the potential publicity of their online writing, and end up with some explaining to do to the unwitting subjects of their writing, like friends or coworkers. From Anonymous Lawyer, it looks like this may become an issue for associates and future lawyers who blog non-anonymously:

    Uh oh. One of the recruiting coordinators knocked on my door this morning. Apparently she had lunch over the weekend with one of her colleagues, and heard a story about an associate at another firm who had "some sort of online journal -- something apparently called a weblog," and was writing stuff about the firm, and her colleagues, and when they discovered this it became a big deal, because of what was up there, and they ended up reprimanding the associate and having her make the blog vanish immediately. So having heard this story, first thing this morning the recruiter starting googling all of our summer hires to see if anything would turn up. And, sure enough, we've got one with a weblog of his own. It's actually not a bad read at all, and doesn't say anything about us... but recruiting is concerned. I'm certainly in no position to make a big deal about it, since I've got this little side project of my own... but now I feel like since this summer hire is someone I really championed, and now I know about the weblog, if anything bad comes of it, it's on my shoulders. Almost tempted to shoot him an e-mail just to let him know someone's watching. I mean, I have no problem at all with it if it doesn't mention the firm, or say anything damaging about anyone here or anything we do. But I'm not sure everyone else is as "enlightened." Words for all to see make lawyers uneasy. We're used to privileged communications....

(Link from Tech Law Adviser.) In law student and lawyer circles, blogging appears to be relatively common. Unless and until law firms come up with express policies about their employees' blogging, bloggers would be wise to write nothing about their coworkers or their firm's clients without permission. To avoid unpleasant surprises, it might even be wise to make their firms aware that they blog--which I intend to do--just in case.

As to whether law-bloggers should take general legal positions that may be inconsistent with the interests of their employer's clients, I'm not sure what the protocol should be. Any thoughts?

Posted by Nick Morgan at 09:16 PM | Comments (25) | TrackBack

The Real World, Lawyer-Style

Variety reports that Fox has a new reality show in the works -- all about lawyers!

[Fox] has given a eight-to-10-episode production commitment to the tentatively titled "The Partner," an hourlong skein in which a group of newly minted lawyers will battle each other to win a job as a partner in a major law firm...

Contestants will be divided into two teams -- one made up of Ivy League grads, the other consisting of players who attended less prestigious schools. Each week, teams will compete by serving as prosecutors or defenders in mock trials inspired by actual cases. A jury of real people -- selected by the lawyers/contestants -- will determine the winner of each trial...

Fox and Rocket Science are in talks with several well-known lawyers about coming on board to serve in the Trump-like role as judge. Talks are also under way with several law firms about serving as the sponsoring firm for the show. Lawyers from the chosen firm will act as advisers to the two teams...

"Lawyers are so verbose, so opinionated and want to be on camera," [exec producer] Darnell said.

1. Lawyers, quick! Get your resumes into Fox before Johnnie Cochran gets there first!

2. The winner gets to become a partner?? Right away?? Is there any reputable law firm that would agree to that? How much partner-level work can this recent grad do, no matter how talented he or she is? No experience, no connections... and imagine the terrible press within the legal industry. "Yeah, they have that partner... from the reality show." That makes you sound really classy.

3. I can tell from that last quote that this show plans to go a long way to correct stereotypes about lawyers... right....

Posted by Jeremy Blachman at 07:10 PM | Comments (13) | TrackBack

I Must Be Feeling Cranky Today

I never do this, but some things just bother me irrationally. I just sent the following e-mail to an executive at the Discovery Times television channel:

I feel silly taking the time to find your e-mail address on the Internet and write to you, but I just watched the hour-long program on Ronald Reagan's letters on your channel and enjoyed it very much -- but in the middle of the program there was an advertisement regarding "campaign essentials" that referred to John Tyler becoming President after *Benjamin* Harrison died in office. It wasn't Benjamin Harrison -- it was William Henry Harrison. Benjamin Harrison wasn't President until almost 50 years later. Thought you might appreciate knowing that slipped through the cracks.

The New York Times ought to know better -- or at least the people making the house ads for the upcoming programs on a cable channel part-owned by the Times. Not a big deal, but come on, this is 4th grade stuff. I just had to tell someone...! First Jayson Blair, now this...??

Posted by Jeremy Blachman at 01:27 PM | Comments (2) | TrackBack

Can't All Be Poets

Since it appears to be the season to quote caselaw for its own sake (very funny, go read), I thought I'd point out what I consider to be a failure of inspired judicial discourse. Don't get me wrong--I love a good passage full of colorful musings and lyrical contemplations of justice and liberty, but this had me grimacing:

    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics [etc.]

From Justice Jackson, in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). I've been in law school nearly two years now--but no one bothered to tell me we have a constitutional constellation. And that some of the stars apparently swirl about, or something.

Posted by Nick Morgan at 01:16 PM | Comments (9) | TrackBack

March 30, 2004

It's Looking Worse and Worse

Clarke is not alone:

    In reporting for our book, "The Age of Sacred Terror," Steven Simon and I found that Clarke was not alone. Several top U.S. government officials agreed in interviews that the new administration had been unwilling to revise its understanding of America's security position and too slow to recognize the danger of Al Qaeda.

    Brian Sheridan, President Clinton's outgoing assistant secretary of Defense for special operations and low intensity conflict, was astonished when his offers during the transition to bring the new Pentagon leadership up to speed on terrorism were brushed aside. "I offered to brief anyone, any time on any topic. Never took it up."

    Even if one dismisses Sheridan's remarks as those of a political appointee, the same cannot be done for Don Kerrick. A three-star general, Kerrick had served at the end of the Clinton administration as deputy national security advisor, and he spent the final four months of his military career in the Bush White House. He sent a memo to the NSC's new leadership on "things you need to pay attention to." He wrote about Al Qaeda: "We are going to be struck again."

    But he never heard back. "I don't think it was above the waterline. They were gambling nothing would happen," he said.

Go read the whole editorial.

Posted by Nick Morgan at 05:51 PM | Comments (1) | TrackBack

March 29, 2004

Judicial Poetry

I'm realizing that some of the most persuasive passages of judicial writing I've ever read tend to be the more commonly ridiculed and dismissed.

Yeah, I know, we've got rules to follow and precedents to heed and expectations to respect and social order to maintain. But the truth is, I feel like writers--including judges--are most in touch with justice when they sound like poets. If the law is our most serious literature, then my favorite authors are the lyricists.

Or maybe it's just that nearly two years of reading case law has left me incapable of really responding to anything less than florid. Shrug.

Posted by Nick Morgan at 09:28 PM | Comments (0) | TrackBack

The Human Dimension of Same-Sex Love

Andrew Sullivan is exactly right:

    [i]nter-racial marriages are often sexualized to a degree others are not. All the complexities, banalities, duties and responsibilities that marriage entails are reduced to a sex fantasy between a black woman and a white man (and often even more so when it's a black man and a white woman). Reducing people's relationships to mere sex is a subtle way of dehumanizing them. And that's one analogy between the deep animus toward inter-racial love and that toward same-sex love that rings as true today as ever.

I made a similar point a while back at Ichiblog:

    Kevin Drum had a question about gay marriage:

      I know we won't convince everyone, but what's the best way of convincing fence-sitters that gay marriage just isn't that threatening? "Live and let live" is the idea I have in mind, but how best to say it? I'm not sure.

    I don't think live and let live will get the job done. It doesn't overcome the basic thrust against gay marriage: the deeply engrained assumption that it's not really marriage if it's same sex. Presenting gay marriage as harmless cannot challenge an impetus that itself has virtually no consequentialist origin. What fence-sitters should hear more of are accounts that emphasize the love and livelihood of the bond, regardless of its gender composition, so they might see that everything beautful and valuable in traditional marriage can exist equally in same sex unions.

Sexuality has always been circumscribed by peculiar cultural prohibitions and cultural blessings of all sorts. I assume that what is left of the American reaction against same-sex sexuality is gradually on its way out, but to be sure, the message can't be about sex. It should be about the more basic and treasured values that have persuaded me, and many gay rights activists: acceptance and love. Isn't that what it's actually about, in the end?

Posted by Nick Morgan at 08:49 PM | Comments (2) | TrackBack

Solum's Blogospheric Bookclub

Although I'm woefully behind in class reading, I'll make an effort to keep up with Professor Solum's Bookclub reading of Free Culture by Lawrence Lessig (download it here for free). Maybe others will join the blogospheric discussion.

Lessig writes (as Solum quotes):

    [W]e come from a tradition of “free culture”—not“free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” ... [t]he free culture that I defend in this book is a balance between anarchy and control.

Solum responds:

    If you are a frequent reader of Legal Theory Blog, you know that I have a certain intellectual style. I have a strong affinity for intellectually rigorous, carefully formulated arguments. Lessig is a brilliant guy. I am a great admirer of his work on the relationship between Code and law--but Lessign's style is much looser, more free flowing, and less linear than I usually admire. As I start to read to Free Culture, I begin to get must a bit antsy. I can see where Lessig is going, but I am worried about precision. "Free will" and "free markets" aren't really free in the same sense. "A balance between anarchy and control"--that's a nice phrase, but what does it really mean? Of course, we are very early in the book and patience is a virtue. So I press on.

I myself was a bit uneasy with these sweeping contrasts between "anarchy" and "control," but I find myself more tolerant of the ambiguity than Solum. The notions of freedom Lessig contrasts are certainly not (yet) rigorous, but I think they adequately pinpoint the basic concerns of the anti-IP movement. The freedom so far articulated is the freedom that makes progress possible--open and flowing speech, expression, self-determination, and invention. There's no need to bring down the barrier that makes this beer mine, and not yours, but Lessig is setting us up to be critical of barriers that we don't, in fact, generally want, and that haven't, in fact, been part of our cultural traditions of creativity. Barriers that his book has so far suggested arise from big money and corrupt politics are apparently barriers that interfere with freedom as we like it. We just don't yet understand the change that's in progress, but

    If we understood this change, I believe we would resist it. Not “we” on the Left or “you” on the Right, but we who have no stake in the particular industries of culture that defined the twentieth century. Whether you are on the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental.

So unlike Solum, my hope is not so much that Lessig's writing will prove formally rigorous, but that the story he tells will indeed make the case that intellectual property, today, betrays widely shared values of freedom and progress. We shall see.

Posted by Nick Morgan at 05:44 PM | Comments (2) | TrackBack

March 28, 2004

Silly Headlines

While doing some "research" for something else I was writing, I noticed that the AP newswire has an awful lot of silly headlines. Actually, only one I thought I was actually silly, and the rest I'm stretching to make a longer post. But anyway... just briefly, here's a few of their headlines / my invented stories. And, no, this has no real purpose.

Nurse Loses License in Hepatitis Outbreak
LINCOLN, Neb. (AP) -- The head nurse at a local hospital where the nation's largest hepatitis C outbreak began has lost her license in the commotion. As the outbreak spread throughout the hospital, the nurse was knocked to the ground, her wallet falling from her pocket and the contents getting strewn across the floor. When the activity died down, she could not find her license. She called the local licensing board and should have a new one by Wednesday.

Fire Ant Attacks Up In Nursing Homes
NEW ORLEANS (AP) -- South American ants are becoming an increasing danger for nursing home residents, as the aggressive non-native pests spread throughout the country -- excuse me, we mean South American aunts are becoming an increasing danger for nursing home residents, as the aggressive pests make their nieces and nephews eat more vegetables, do their homework, and give their aunt a nice big kiss on the lips.

Obesity Threatening Child Health Gains
WASHINGTON (AP) -- An obesity epidemic threatens to wipe out gains in children's health and safety over the past three decades. Except for weight gains, which it actually helps quite a bit.

Study: Drinking May Help Heart Patients
CHICAGO (AP) -- Drinking in moderation may help heart patients... forget all their problems and go enjoy life instead of worrying about their heart conditions.

Posted by Jeremy Blachman at 10:28 PM | Comments (0) | TrackBack

Are Video Games Art?

This article investigates the question: Are video games art?

As the article points out, it's certainty true that video games often feature impressive feats of graphic design, and they usually adapt the story-telling form into an interactive medium (even if the stories are less than literary). But these observations are incomplete, and they place video games beside pop fiction and japanese animation, in the lesser light of comparison.

The best way to critique video games as cultural artifacts is to begin with their basic purpose: interactively engaging players. It's not very interesting to point out the visual beauty of graphics or the game-plot's similarities to narrative literature, but it is interesting to ask how those features are used to engage players. One might, for instance, note how many successful video games devote most their energy to creating ambience, suspending disbelief. Or how the host of online multiplayer games draws on the experience of actual social interaction--competition, alliance formation--to keep players coming back.

Making a fun game is really, really hard. Try picking up a deck of cards and coming up with something original and fun to do with it. Game design often deserves to be compared, in merit, to film and literature, but not merely because it does things that are similar to those other forms. Game design (especially video game design) is the art of engaging behavior and doling out just enough satisfaction to keep players hungry.

Posted by Nick Morgan at 02:43 PM | Comments (7) | TrackBack

March 27, 2004

Burgers, Fries, and Lawyers

The Policy Review has an article titled "Burgers, Fries, and Lawyers" that serves as a nice primer for the "why we shouldn't be suing fast food companies camp, giving away its point of view early in the piece with the line, "Nor is it clear that the average fast food meal is significantly less nutritious than the average restaurant meal, or even the average home meal." Uh oh, I know what's coming next.

And in the paragraphs that follow, the author pretty much throws out every possible defense of the fast food companies, sensible and ridiculous, apparently just to see what sticks. If you throw out enough reasons... well, surely eventually you'll hit on one that everyone can agree on. No matter what you think about suing fast food companies, I think this article is one of the best examples of how to write a one-sided unbalanced advocacy piece that puts your credibility in doubt, even if everything you're saying is absolutely right. (Just to get my own prejudices out of the way, I don't actually know what I think about suing fast food companies -- my Torts professor thought it was a great idea, and our entire final exam was to write a paper saying why we agreed with him, and so I know the arguments... and I don't think it's ridiculous to say we should think about whether society is better or worse off with fast-food chains... but I'm not convinced there's a case to be made... in any event, on with my gentle mockery of this article...)

The author's first argument: lawyers say that poor and poorly-educated people are being seduced by fast food marketing, but in fact rich people are getting fatter faster. And the culprit, he says "data shows," is that people aren't eating more fast food than they used to; they're eating more snacks. Leading to this head-scratcher:

And in a fairly recent development, supermarket shoppers are pulling goodies off of store shelves and ripping into them at the stores before they even drive home. Consumers eat two to three times more goodies inside stores than at fast food restaurants.

Um... this sounds a little like conjecture to me. It may be true -- but is there really data showing that Americans are so desperate for food that they're ransacking supermarkets like never before -- and this is the cause (not the effect) of the nation's weight gain? It just sounds fishy to me (...perhaps Pepperidge Farm Goldfish-y...).

He then goes on to blame sedentary jobs, telecommuting (because then workers "may be sitting even closer to the refrigerator or cupboard"), and the decline in smoking ("has driven up cigarette prices and led smokers to switch from nicotine to calories").

Next defense: fast food is actually healthier than it used to be, and more customizable to people's tastes ("no mayo," etc). And fancy restaurants are serving unhealthy food too (expensive burgers made with rendered duck fat). And you want to blame portion sizes?

have these critics been to a movie theater lately, where popcorn containers look like bushel baskets? Or to fancy restaurants featuring all-you-can-eat Sunday buffets?

As we continue our journey through the catalog of defenses, fast food is good for America, because it's cheap. The price/protein gram is cheaper in a fast-food hamburger than if you made a burger yourself with supermarket meat, he says. And, no evidence that it's addictive like tobacco: no withdrawal symptoms if you stop eating at Burger King. And how can these companies be evil when "within 20 seconds of inquiring, each of the fast food chains mentioned in this paper produced nutritional content charts." They're unfairly maligned, I tell you! Unfair!

Finally, these lawsuits are bad for society because if fast food companies lose, we'll get:

1) lower wages for fast food employees; 2) lower stock prices for shareholders; 3) higher prices for consumers.

Are we done yet? Phew! How about a snappy conclusion:

Fast food restaurants hire and train hundreds of thousands of workers, attract investments from millions of middle-class citizens, and quench the hunger and thirst of tens of millions of satisfied patrons.

So stop these lawsuits! Because!!

Posted by Jeremy Blachman at 11:44 PM | Comments (7) | TrackBack

March 26, 2004

More on Journalism

Here's an article that says David Brooks ("Bobos in Paradise," NYT op-ed columnist, more) makes stuff up. Gross generalizations that aren't true, stuff like that. One brief clip from the long (but worth the read) article:

As I made my journey, it became increasingly hard to believe that Brooks ever left his home. "On my journeys to Franklin County, I set a goal: I was going to spend $20 on a restaurant meal. But although I ordered the most expensive thing on the menu -- steak au jus, slippery beef pot pie,' or whatever -- I always failed. I began asking people to direct me to the most expensive places in town. They would send me to Red Lobster or Applebee's," ... The easiest way to spend more than $20 on a meal in Franklin County is to visit the Mercersburg Inn, which boasts "turn-of-the-century elegance." I had a $50 prix-fixe dinner, with an entree of veal medallions, served with a lump-crab and artichoke tower, wild-rice pilaf and a sage-caper-cream sauce. Afterward, I asked the inn's proprietors, Walt and Sandy Filkowski, if they had seen Brooks's article. They laughed. After it was published in the Atlantic, the nearby Mercersburg Academy boarding school invited Brooks as part of its speaker series. He spent the night at the inn. "For breakfast I made a goat-cheese-and-sun-dried-tomato tart," Sandy said. "He said he just wanted scrambled eggs."

I absolutely agree that what Jayson Blair and Stephen Glass was wrong, but given everything we're hearing in the aftermath -- Jack Kelley, Rick Bragg, etc -- maybe we don't really need to know what's happening in the underbelly of American journalism. Maybe the stories are more fun to read even if they're made up.

Posted by Jeremy Blachman at 04:29 PM | Comments (2) | TrackBack

It's Bunk

Let it be declared that the Book Quiz is bunk. Such questions as "Odds or Evens?" landed me in the rather depressing diagnosis below. I know, bunkness is relative, and all Internet quizes are bunk to some degree or another. But I use "bunk" here to describe the special stripe of bunkness that really brings out the wrath of an otherwise tame blogger. Disclosure: this is all little more than my jealousy of PinkDreamPoppies, who gets to be my favorite novel, The Sound and the Fury, while I found Mrs. Dalloway to be just as opaque, but hardly as wonderful as To the Lighthouse, also by Virginia Woolf.

You're Mrs. Dalloway!
by Virginia Woolf
Your life seems utterly bland and normal to the casual observer, but inside you are churning with a million tensions and worries. The company you surround yourself with may be shallow, but their effects upon your reality are tremendously deep. To stay above water, you must try to act like nothing's wrong, but you know that the truth is catching up with you. You're not crazy, you're just a little unwell. But no doctor can help you now.
Take the Book Quiz at the Blue Pyramid.

Posted by Nick Morgan at 03:47 PM | Comments (7) | TrackBack


There is no shortage of people offended by internet porn, but would relegating porn sites to .xxx domains offend the First Amendment? Mr. Ichiban thinks not.

Posted by Nick Morgan at 10:06 AM | Comments (3) | TrackBack

March 25, 2004

A Useless Rant Against The Consumer Culture

Book Review
Trading Up: The New American Luxury, by Michael J. Silverstein and Neil Fiske

The authors of "Trading Up" should be forced to "Trade Down" and go live in a housing project for a couple of years. The book is a well-researched, well-written, nauseating celebration of the wasteful and overindulgent consumer culture in America. Victoria's Secret. Panera Bread. Williams-Sonoma. Belvedere Vodka. What these companies (and more) have in common is that they're of marginally higher quality than their competitors, but through manipulative branding that takes advantage of people's emotional needs and desires, they're able to raise their price points and "rocket" to huge profits off the demand curve. I don't dispute the book -- I think the authors have done a fantastic job identifying what it is companies like The Cheesecake Factory and Callaway Golf and Samuel Adams beer are doing: making high-quality products, and pitching them as lifestyle choices, as more than just "things you buy" but as part of what gives you an identity and what makes you feel good about your consumption -- but the tone of the book is kind of sickening; it's a celebration of consumer manipulation and of shrewd branding that makes people feel like consumer products can change their lives. "They are my little mechanical buddies;" "They are part of my family" -- these are people talking about their $2,000 Whirlpool washer and dryer. It's disturbing and sad -- but the book uses these quotes to illustrate a success story. Okay -- it is a success story. But not for society, and not for these people who, because of broader societal issues, are left to rely on their appliances for emotional support. Buying a $50 pair of tongs at Williams-Sonoma does not make me happy, and I think if it does make people happy, then we have things to worry about and shouldn't just be applauding Williams-Sonoma on making consumers believe that their neighbors will think less of them if they buy their tongs at K-Mart. I give the book credit for being awfully thought-provoking -- for getting me to think about these issues, and realize that there are certainly products I buy that I could just as easily buy the generic version of and it wouldn't make a difference. Shampoo comes to mind, actually, although it's an awfully negligible expense in the scheme of things -- not that what I buy is such a luxury brand, but still, I could save $2.00 if I bought the CVS bottle next to it, and I'm sure there's a negligible difference if any. But reading this book makes me want to never buy a brand name anything again, and scold people for reaching for the finely milled pet food when Walmart's Ol' Red will do just fine, and actually makes me angry that we live in a world where the thought of consumer products filling emotional needs is lauded and not shamefully disturbing.

Posted by Jeremy Blachman at 10:59 PM | Comments (11) | TrackBack

School Drug Testing

I share Talkleft's concern about the suspicionless drug testing of students in Arkansas, and although I'd like the testing scheme to be blocked by the 4th Amendment, it looks like the Supreme Court has already pretty squarely decided the issue the other way in Veronia School District 47J v. Acton, 515 U.S. 646 (1995).

Apparently the Arkansas school's policy is "to randomly drug test students in grades 7-12 in extracurricular activities," which is pretty much the same testing scheme upheld in Veronia. The Veronia Court, however, seemed particularly impressed by the factually established drug problem at the school, and by supported contentions that school athletes were leaders of the drug culture. It's unclear whether the Arkansas school can make a similar showing.

The suit challenging this testing scheme looks to be playing up the fact that "[t]here are no scientific studies that show suspicionless testing of students in extracurricular activities works" and Talkleft points to an article suggesting that studies actually show that drug-testing is useless. Such factual demonstrations could be quite powerful in persuading the Court to rethink its inclusion of drug-testing in the "special needs" class of cases that get special leniency under the 4th Amendment.

Posted by Nick Morgan at 08:56 PM | Comments (7) | TrackBack

Download of the Year?

Perhaps Professor Solum agrees with me that Professor Lessig's new book, Free Culture, available online for free (how else?) deserves an even more laudatory announcement than "Download of the Week." For anyone following the free culture movement, Lessig's book appears to be a must read. 20 pages into the digital manuscript, I'm already hooked. Download the pdf for free here.

Posted by Nick Morgan at 06:42 PM | Comments (0) | TrackBack

Devil Made Him Do It

Also in local religion-crime news, an East Texas man claimed in his confession to investigators that demonic possession caused him to molest his step-daughters.

The possession had occurred after Upshaw had prayed over and laid hands on a sexual deviant who was possessed, he said. Because he was not "prayed up" at the time, the demons transferred into his body, causing him to lust after his wife's elementary- and middle school-aged daughters.

Posted by PG at 05:17 PM | TrackBack

Redeeming Social Value

Various reviews of Mel Gibson's movie The Passion made me decide that it wasn't for me. But now I have to be glad that it's out there; the Houston Chronicle reports:

Detectives say the death of a 19-year-old woman originally ruled a suicide has turned into a murder case after a repentant man who'd watched The Passion of the Christ confessed to killing her because she was carrying his child.
Dan R. Leach supposedly wished to seek redemption. However, having committed pre-meditated homicide -- Murder One -- and admitted it (leaving himself without the negotiating tool of pleading guilty to avoid trial), Leach is likely to find himself on death row.

Posted by PG at 05:04 PM | Comments (0) | TrackBack

New Enemy, New (Old) Pledge

De Novo darling Dahlia Lithwick concludes her report on the Newdow oral arguments with,

The case is a mess because, whatever you may think about God or the pledge, if you really apply the case law and really think "God" means "God," then Newdow is right. But Newdow can't be right. Can he?

Why can't he? Indeed, there may even be a reason apart from the First Amendment to remove "under God" from the Pledge of Allegiance.

The phrase "under God" was added by Congress in 1954 as part of the Cold War campaign to distinguish America from the Soviet Union and China, at a time when the Iron Curtain already had fallen across Europe and the U.S. was striving to keep Communism out of Latin America, Africa, Asia and the Middle East. Catholicism was a strong force in Latin America, and Islam in the Middle East, so one aspect of Communism that American propaganda often emphasized was its compulsory atheism. Accept Communism, and you'd lose God.

Whether putting "In God We Trust" on our money, or replacing our national motto E Pluribus Unum with the same, actually aided the fight against leftist totalitarianism is debatable. At the time, President Eisenhower's pastor, Rev. George M. Docherty, sermonized that the pledge "could be the pledge of any country [...] I could hear little Moscovites repeat a similar pledge to their hammer-and-sickle flag with equal solemnity." Apparently American religiosity was what made us special.

But not anymore. Today the war on terrorism centers on fighting the Islamic world's slide into theocracy and religious war, not on fighting atheistic Communists. The murderers of 9/11 and the Bali and Madrid bombings give up their lives in the belief that they are serving God and that their sacrifice somehow will lead to a return of religious purity and an ideal world run on principles of Islamic fundamentalism.

It is precisely the forcing of religious doctrine -- the supposed Koranic commandment of women's second-class citizenship, the press toward "holy war" -- that the United States and other democracies must stand against. We are not trying to be holier than Taliban-run Afghanistan, or the current regimes of Saudi Arabia and Kuwait. With a few lamentable exceptions, we are not trying to argue that "our God is stronger than their God."

Instead, we are trying to show that the freedom to be veiled or unveiled, prayerful or atheistic, is as superior to coerced religion now as it was to coerced non-religion 50 years ago. We are not promoting Christianity or any other religion. We are promoting secular American values, the "liberty and justice" that are as absent from theocratic Iran as they are from communist North Korea. I disagree with the Bush Administration's way of doing it, but at least they have taken up the right cause.

So where do the hastily-injected invocations of God from the Cold War era fit into this new paradigm? People who want God to be a mandated aspect of public life can find much more of Him/Her/It in the oppressive regimes of the Middle East than they can in even the most religious parts of the U.S.

Perhaps we should take the opposite course. We can distinguish ourselves from the opposition, this time, not by declaring "in God we trust" (you certainly have to trust God a lot to fly into a building for Him), but "from many" -- races, religions, nationalities, languages, even sexual orientations and gender identifications -- "one" nation. Those who see this nation as not being "under God" should not be excluded from affirming their secular belief in "one nation, indivisible, with liberty and justice for all."

Posted by PG at 01:37 PM | Comments (6) | TrackBack


Link via Howard, like he needs our traffic: The Washington Post reports, "Georgia House Bans Genital Piercings." I'm sure that's not the first house to ban them.

Amendment sponsor Rep. Bill Heath, R-Bremen, was slack-jawed when told after the vote that some adults seek the piercings.

"What? I've never seen such a thing," Heath said. "I, uh, I wouldn't approve of anyone doing it. I don't think that's an appropriate thing to be doing."

The ban applies only to women, not to men. When asked to comment on the gender inequity, Heath said, "Oh, no, for men it's cool. I got mine pierced just last week," and then pulled down his pants. It is expected that if the case ends up at the Supreme Court, there will be at least three dissenters. Unnamed sources have informed us that Justice Ginsburg, Justice Scalia's wife, and Justice Rehnquist's illegitimate love child with Cher all have their genitals pierced.

I find that when speaking in public, a good way to make yourself less nervous is to imagine that everyone in the audience has his or her genitals pierced. It's also a good way to make yourself vomit.

Posted by Jeremy Blachman at 12:14 AM | Comments (5) | TrackBack

March 24, 2004

Newdow's Standing, Take 1

I'm reading over the Newdow (pledge case) briefs now to get a feel for the standing arguments asserted--and once I review the ugly doctrine of standing covered a few weeks ago in Federal Courts, I'll probably post my thoughts on the justiciability of Newdow's claim. Until then, I thought it was interesting that Justice Rehnquist was quoted saying that the issues of the case:

    certainly have nothing to do with domestic relations.

Justice Souter seems to agree; the Washington Post writes "Justice David H. Souter said that Newdow could argue that his interest in his child 'is enough to give him personal standing.'"

I don't know the context of Rehnquist's statement (anyone find a trascript or audio file yet?) but if the Court accepts this view in the standing context, it looks like Newdow will have his case decided on the merits. Briefly, standing is an Article III requirement that focuses on the party's entitlement to have his case heard in a federal court. Newdow's basic challenge is to establish a "personal injury" that is "distinct and palpable," as opposed to merely abstract or conjectural. Newdow's lack of custody over his daughter is the basis of the defendants' arguments that he has no redressible right to be adjudicated, but if the Court thinks custody is irrelevant to his "personal injury" then it will be much easier for Newdow to establish an injury that is at least individual to him, as opposed to the host of atheists around the country who have no children in public schools where the pledge must be recited.

Posted by Nick Morgan at 05:22 PM | Comments (3) | TrackBack

Unhanding the States

Unlearned Hand posted a lengthy meditation on "The Framers' Views of Restraining State Sovereignty" yesterday. While I haven't done enough originalist reading to speak authoritatively about WWMD (What Would Madison Do), I can add a historical reminder to the discussion.

The reminder is of the motivation for colonization. The Puritans left England in part to escape religious persecution by the state-supported Anglican Church. These English Calvinists in turn established a theocratic society in the Massachusetts Bay colony and expelled dissenters such as Anne Hutchinson and Roger Williams. The latter founded his own colony in Rhode Island, where he championed the cause of religious freedom and church-state separation. Other colonies, such as Quaker Pennsylvania, were founded as refuges for religious minorities.

In considering the arguments and compromises of the Constitutional Convention, one must remember that colonial history included fear of a national church such as the Church of England, but also colonies that were themselves sectarian, such as Massachusetts. (In fairness, the compulsory tendencies of the Bay colony enabled it to thrive in a hostile environment as well as fostering education; every colonist helped to support Harvard College, and a 1647 Act required "that every town of one hundred families or more should provide free common and grammar school instruction.")

So imagine the Convention. Nearly all delegates would have been united in the conviction that a central government, such as that of England, must not have the power to impose a single, unitary religion on all Americans, and this gave us "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, inhabitants of Massachusetts would have disagreed with those of Rhode Island as to whether state governments should be able to force their citizens

to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.
Article III of the Massachussetts Constitution.

As the Constitution generally did when it could not split the difference on a controversy, it ignored the issue, which allowed the constitutions of the several states to decide it individually. The states came up with different results, depending on the temperament of the people and their leaders. Massachusetts had the above-quoted provision; Virginia, led by accused atheist Thomas Jefferson, had the Statute for Religious Freedom even before the national Constitution existed.

My best answers to the questions Unlearned Hand raises:

[W]hat was going to protect the people against the states?

The people had to decide for themselves how much protection they wanted against the state. Some opted for more protection than others. In general, the Framers seem to have thought that belief in and attendance at a particular church could not be made compulsory, but public behavior (such as Sunday laws) and monetary support for religious institutions could be regulated in accordance with religious precepts. This was the compromise between individual liberty and the demands of a democracy.

If the Framers really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does?

Except insofar as the Framers were leaders within their own states and thus many had a hand in their state constitutions, I don't see how the state constitutions reflect trust or a lack thereof by the Framers in state legislatures. As I said, people wrote their state constitutions based on how much protection from their state legislatures they felt was necessary.

For those who are wondering how Virginia manages to prohibit capital punishment while leading the country in per capita execution: Unlearned Hand appears to be referring to the 1776 draft constitution of Virginia, which says,

The General assembly shall have no power to pass any law inflicting death for any crime, excepting murder, & *such* those offences in the military service for which they shall think punishment by death absolutely necessary: and all capital punishments in other cases are hereby abolished.
This provision is not in the present-day constitution of the Commonwealth.

Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?

I agree that the latter reading, of both Constitutions as protections of individuals against federal and state governments respectively, is the sensible one.

Were the Framers as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today?

All the Framers were concerned about protecting individual rights from infringements by a powerful central government that they feared would tend to grow unaccountable to the people; otherwise they would not have broken from the Crown to begin with.

At the same time, they recognized that people in different states might have different views about the extent to which those rights needed to be protected from the theoretically closer and more accountable state governments. If it was important to the people of Massachusetts to have taxpayer support for religious instruction, the Framers were not going to get in their way.

And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?

I don't think the Framers were misguided about state self-restraint, or naive, or compromising factionally in the sense that that word was used in that era. Rather, they recognized that the states were very different from one another -- hence the need for separation of power and a federalist government -- and that those differences had to be respected by the national Constitution, by not applying its protections to the state governments. The Framers knew that if the people of a state wanted a particular protection from their state government, they could write that into the state constitution, as many did.

After all, the express mission and purpose of the Constitutional Convention was to draw up a document to replace the Articles of Confederation, which had created too weak a central government. This new document had to be approved by all thirteen colonies, and the Bill of Rights was not added to it until some of the colonies, such as Rhode Island, protested that they wanted to see these protections in writing before signing on. Therefore I would consider the Bill of Rights to be even less of an "ideal" statement than the rest of the Constitution.

Posted by PG at 01:27 PM | Comments (1) | TrackBack

March 23, 2004

It's All Relative...

The New York Times has an article about a new Abercrombie & Fitch t-shirt for sale on the store's website (for $24.50, if you're interested) that features an outline of West Virginia and the slogan, "It's all relative in West Virginia." The Governor is mad because, according to the New York Times, "the shirt is a not-so-subtle play on the stereotype of West Virginia as a haven for incest." Ten bucks says the Governor ain't so thrilled about the wording of that line in the article either. Abercrombie & Fitch, just months after killing its quarterly full-color catalog amid protests it was actually a porn magazine, must be desperate for some new press. "It really hinders our ability to market the state," says the governor's director for strategic communications, who's probably thrilled to finally get his name in the paper. I'm not sure whether the shirt really hinders West Virginia as much as the fact it doesn't have any tourist attractions.

Next in the series for A&F, t-shirts with these slogans: "It smells like a toxic waste dump in New Jersey"; "Everyone's close to death in Florida"; and "Bill Clinton showed me his genitals in Arkansas." Yeah, yeah, you can probably do better.

Posted by Jeremy Blachman at 06:42 PM | Comments (22) | TrackBack

The Blogger's True Browser

Mozilla, Mozilla, Mozilla Firefox. That's the answer to Brad Delong's and Henry Farrell's [UPDATE: and Kevin Drum's] concerns about Internet Explorer's market dominance and consequent failure to improve at rates one would expect of a more competitive browser market.

Mozilla's Firefox has its problems (sometimes things are displayed funny, has some other funky bugs), but on the whole, I find it absolutely superior. Here's why:

    1. Way faster. I use a fast computer with broadband, and Firefox seems to have cut page-loading time in half (and better sometimes).

    2. Tabbed browsing. Perfect for keeping multiple URLs open without multiple windows.

    3. Plugins and extensions. They come in all sorts, and new ones emerge continuously.

    4. Customization. You can edit preferences with greater freedom, include bookmark folders in a toolbar, surf with different design themes.

    5. The transition is effortless. Firefox will automatically import all your IE favorites.

To download, go here and click "Download Now" in the upper left corner. Totallly free of charge. (No, I do not work for them.)

Posted by Nick Morgan at 05:07 PM | Comments (10) | TrackBack

Repatriating History

"[Y]et these rupees haunted his mind, because he had been tricked about them, and allowed them to escape overseas, like so much of the wealth of India." -- A Passage to India

Those in and around St. Louis later this week might stop in at the Washington University School of Law, which is hosting the Imperialism, Art & Restitution Conference on March 25-26. I favor the colonized in preference to the imperialists, although the issue of Native American sacred sites is more complicated.

If the Elgin/ Parthenon marbles could be removed from Greece, then they can be returned, and ought to be; surely no one will argue that Greece, a fellow member with Britain in the European Union, host of the 2004 Olympics and my planned vacation spot, is unable to care for its own cultural legacy. Land, on the other hand, is not a movable good, and to tear down what has been built upon it is far more difficult than transferring stone and metal from one museum to another.

Posted by PG at 03:12 PM | Comments (3) | TrackBack

Philosophers Wanted

Julia Annas, the professor I had for an undergrad class on Plato, wrote and spoke a lot about happiness, and how Plato's vision of virtue could get you some. She always cited the self-help sections of bookstores as evidence that lots of people weren't living the good life, and then proceeded to take all comers who challenged pretty much anything Socrates said. As I like to remember it, she thwacked us with a Eudaimonia stick.

Now I see, via Matt Yglesias, that philosophy has made its way to something very like the self-help genre:

    A controversial new talk therapy, philosophical counseling takes the premise that many of our problems stem from uncertainties about the meaning of life and from faulty logic.... [Proponent Marinoff said:] ''Even sane, functional people need principles to live by ... so we are offering what Socrates called the examined life, the chance to sit with a philosopher and ask what you really believe and make sure it's working for you."

Having been a philosophy major, my first reaction is skepticism: philosophers get jobs? My second reaction, though, is skepticism: people use philosophy? The rest of my reactions, however, are a little hopeful.

I'd at least like to think that broadening one's self- and world-understanding at the abstract, lower conceptual level of philosophy is healthy. In my experience, however, people who learn philosophy don't typically start a fresh, happy life. They go to law school. See day three of our last symposium for a taste of what that means. (Admittedly, going to law school was, for me, starting a fresh, happy life.)

I'll confidently say, though, that studying philosophy has vastly enriched my appreciation for every kind of thinking and learning--especially when it's about the really important stuff, like what I ought to be doing. And I often think I ought to be reading more philosophy.

Posted by Nick Morgan at 01:29 PM | Comments (5) | TrackBack

She Was an Itsy Bitsy Teeny Weeny Playgirl

The Associated Press reports that Playboy Enterprises, Inc. will be in court today to press criminal charges against a French women's magazine that reproduced images from Playboy photo shoots. France's strict intellectual property law allows plaintiffs to choose between the civil and criminal courts, and those convicted theoretically can be imprisoned for up to two years.

Voici defends itself on several grounds: that the pictures were free publicity for Playboy, and may help rather than hurt its sales; that Voici's 70 percent female readership does not overlap greatly with Playboy's; that Playboy itself has used images from other publications; and that the images reproduced in Voici are too small to be a substitute for Playboy's full-page spreads.

In other international sex-industry news, prostitutes in Greece (which licenses the trade) successfully lobbied to cut the 200 meter distance from churches, schools and charities required by law to 100 meters, thus enabling them to get closer to the areas frequented by tourists.

Posted by PG at 11:25 AM | TrackBack

A Curry Worry

Via Drudge, "Food colourings linked to hyperactivity, asthma, and even cancer, have been detected in chicken tikka massala, one of the UK’s favourite dishes..."

Trading standards officers launched an investigation, limited to chicken tikka massala...

[One of the dyes used] can cause blurred vision and purple skin patches and is particularly hazardous for asthmatics and anyone allergic to aspirin...

[Another can cause] chromosome damage and kidney tumours as well as abdominal pain, hives, nausea and vomiting...

[Said the national curry chef of the year:] Colouring does not enhance the flavour of the food but a lot of people eat with their eyes.

Mostly just posted for my clever post title. I just don't know what to say, besides "an investigation, limited to chicken tikka massala" is not a line I ever thought I'd see in a news article anywhere. Imagine what the tandoori red color is doing to your insides. Post your favorite completely unnaturally colored foods in the comments. :)

Posted by Jeremy Blachman at 12:31 AM | Comments (9) | TrackBack


Okay, anyone who cares, give me an up or down vote here, either in the comments or by e-mail re: the scramble each day in the upper right. I don't know if anyone likes them or not; I want to keep doing 'em if people like them, but if no one's paying them much attention I'll come up with something else.

Posted by Jeremy Blachman at 12:19 AM | Comments (8) | TrackBack

March 22, 2004

Law Professors Respond to Scalia's Memo


    The [New York] Times invited six law professors specializing in legal ethics to evaluate Justice Scalia's legal arguments: Stephen Gillers of New York University, Monroe H. Freedman of Hofstra, Steven Lubet of Northwestern, James E. Moliterno of William & Mary, Ronald D. Rotunda of George Mason and G. Edward White of the University of Virginia. The professors largely passed over Justice Scalia's analogies to past socializing between high-ranking Washington officials and Supreme Court justices; they said the resignation of Justice Abe Fortas in an ethics scandal in 1969, Watergate and amendments to the federal judicial disqualification law in 1974 had altered the legal terrain. But there was plenty more to chew over.

    Following are excerpts from Justice Scalia's memorandum, followed by comment from the professors.

The article doesn't say whether any of these professors ultimately think Scalia made the right, or wrong decision [edit: Alan in comments points out what I overlooked: "Here's White of UVA: 'On balance, I think that it was appropriate for Scalia to decide not to recuse himself' "], but many of the comments are quite critical, so I'm guessing some of them do, in fact, question Scalia's impartiality. Read the whole thing if you've been following the issue.

(Link via Houston's Clear Thinkers via Professor Yin.)

Posted by Nick Morgan at 06:50 PM | Comments (8) | TrackBack

Prozac Kills?

As you may have heard, suspicions are surfacing that certain anti-depressants could actually cause suicide, or suicide related bahavior.

    The FDA said it was not clear whether antidepressants contributed to the emergence of suicidal thoughts and behavior, but, at the urging of the advisory panel, the agency decided to issue the warnings before it completed a thorough review of the drugs.

Apparently various studies have been done, but what I'd like to know is whether suicide or "suicide-related behavior" is detected mostly during the first few weeks of taking the medication, when patients' brains are adjusting to the drug. And it's certainly worth knowing how "suicidal" patients were before starting on medication. A hypothesis worth testing would be: "Seriously depressed persons, before taking medication, are too fatigued and hopeless to take any action in response to their condition; but during the early medication adjustment stage, some depressed people may find their energy restored, but not their suicidal feelings, thus increasing the chance that action will be taken."

I'm no psychiatrist, but it sounds like a worthwhile question to answer.

Posted by Nick Morgan at 03:09 PM | Comments (13) | TrackBack

Explaining the Post Title Below

It took me a little while, but I just realized why the post title below ("Staying In and Dropping Out and Worth a Post? and Maybe Not") made sense to me, but probably just looks odd to anyone not living inside my head.

Anyway, last week was the law school parody show here, a musical that pokes fun at law school life and professors and students that I helped write but, as one of eight writers, am probably not to blame for all that much. But I did contribute the lyrics to a parody song off of The Vapors' "Turning Japanese" (called "Learning Legalese" -- I can't take credit for the idea/title, but the lyrics are mostly my doing), and that post title is awfully similar to one of the lines of the parody song, and falls completely in rhythm. I posted this on my solo blog last week, but if I've piqued your interest, keep reading:

"Learning Legalese," to the tune of The Vapors' "Turning Japanese"

My eyes are bleeding, from all this reading
I wish the casebooks were not twelve inches thick
All this dissenting, is unrelenting
I need a study guide -- and I need it quick!
It's got me throwing up and laying down and staying in; I'm failing out.

I'm learning legalese, I think I'm learning legalese, I really hope so
(learning legalese, I think I'm learning legalese, I really hope so)
Meeting of the minds, retainer, eminent domain, right of assumpsit
Lawyer-client priv’lege, discharge, automatic stay, habeas corpus
Affidavit, deposition, amicus curiae, jurisidiction!

I'm a beginner, books should be thinner
I kicked the tax code and I fractured my toe
Although I'm gifted, this can't be lifted
I need an outline for this outline -- I know!
Must get these books to class, I need my Mom, to help me haul them all around (big fat woman walks on stage -- which never happened in the show... maybe this alone is why the song failed to inspire!?!?!)

I'm learning legalese, I think I'm learning legalese, I really hope so
(learning legalese, I think I'm learning legalese, I really hope so)
Arbitration, breach of contract, fraudulent conveyance, prima facie
Prosecution, statutory, stay of execution, sui juris
12-b-6 dismissal, joint and several, three-pronged test, fee simple transfer

No words with less than fourteen letters
No teachers speak a language I understand
No one told me Latin would be necessary
No one told me law school would be quite this scary ...
No one... That’s why

I'm learning legalese, I think I'm learning legalese, I really think so, think so, think so
(learning legalese, I think I'm learning legalese, I really think so)
Learning legalese, I think I'm learning legalese, I really think so
(learning legalese, I think I'm learning legalese, I really think so)

Posted by Jeremy Blachman at 01:32 PM | Comments (1) | TrackBack

Staying In and Dropping Out and Worth a Post? and Maybe Not

Scheherazade Fowler, who contributed to the symposium last week, links to us in a post where she responds to a search engine inquiry asking, "Why should I stay in law school" that found her website.

She credits the symposium with pointing out that there's a difference between being in law school and being a lawyer. I think that's fair. At minimum, it showed that lawyers do different stuff -- teach, practice, write, and (from one commenter) judge -- and that law school doesn't necessarily prepare people all that completely for being a lawyer, if they go into practice.

If I was contemplating dropping out of law school (which I'm not), I suppose what would talk me out of it would be seeing that light at the end of the tunnel (not that one): someone who's doing something I wish I could end up doing, who happens to have a law degree. But, if I really wanted to drop out, I suppose I'd look for someone who's doing something I wish I could end up doing, who doesn't have a law degree. Or, even better, who dropped out of law school.

Actually, that's made me curious. A quick Google search finds me nothing comprehensive, but these interesting results:

Al Gore dropped out of law school.

Paul Simon dropped out of law school.

The writer/director of "Two Weeks Notice" and "Miss Congeniality" dropped out of law school.

"Adam dropped out of law school to follow his heart. He landed at the Teva Learning Center, a program in Western Connecticut that teaches the integration of Judaism, Ecology and Environmental Activism."

and, finally:

"Anne dropped out of law school, renounced all of her material goods and went to live with her parents at the nudist colony."

That last one -- I kid you not -- is from a law school exam hypothetical. I don't know if that makes it funnier or less funny.

Anyway, for anyone thinking about it: you probably shouldn't drop out of law school unless you've really got something better to do. All that money and time down the drain -- at least if you stick it out you get a degree that has some value. Just my two cents. I dunno.

Posted by Jeremy Blachman at 12:22 PM | Comments (52) | TrackBack

March 20, 2004

His Boy Cheney

Commenting on Nick's post regarding Scalia's recusal refusal, Brian says,

I think Scalia's incredulity is focused at the Sierra Club's relative lack of legal citation to case law in fleshing out the range of the statute. Rather, as he points out, the main thrust seems to revolve around newspaper articles.

I'm not saying the statute has some mystical extra-textual meaning, however, it's fair to say that the ethical governance of the judiciary is more complex and intricate than what the average Joe's opinion is on Scalia's impartiality. In other words, there's a context to the statute that most laymen don't consider -- a context that is provided by legal precedent. It looks like the Sierra Club, realizing it didn't have legal precedent on its side, tried to dump the interpretation of the statute into the court of public opinion.
Yes, the Sierra Club was citing more to popular opinion than to case law (though as Lithwick notes, "A bit unfair, perhaps, to blame the Sierra Club for the dearth of Supreme Court case law in an area that has been reserved for secret, individual Supreme Court decision"). But isn't that part of what "reasonable" means even in a legal context? The "reasonable man" is really just what the average sane person is like, not the person well-versed in legal precedents and the ways of Washington.

As for whether Justice Antonin Scalia can decide the case impartially, the best point he made was that he also is friends with a lawyer for the Sierra Club. If his friendships with people in high places are problematic, then that one ought to be as well.

Except -- that lawyer's reputation isn't really on the line. The point at which I disagree with Scalia is that I do think Vice President Richard Cheney's rep is on the line to a much greater extent, and thus this is less of a bloodless X v. Y case than Scalia would like to think.

The best example of X v. Y would be if Scalia were friends with Ashcroft, and the ACLU tried to challenge Scalia's sitting on the latest round of U.S. Attorney General Upholding Congressional Legislation v. ACLU. Of course, the ACLU wouldn't bother with that challenge, because they know Ashcroft's job requires him to defend the law, just as Janet Reno's did. The Attorney General, whether Republican or Democrat, continues to do that work even if he or she privately thinks the law is wrong.

That's not the Cheney scenario, however. This is the "Cheney Energy Task Force," not a committee that a vice president traditionally oversees as part of his job as vice president. There was no "Gore Energy Task Force."

On page six of the memo, Justice Scalia implies that the lawsuit would continue even with a different person in the vice president's office, just as the ACLU lawsuit continues with Ashcroft replacing Reno. I find that an implausible suggestion. Does anyone really believe that if Bush leaves office, his Democratic replacement's VP will maintain the secrecy of the task force's records? Without the maintenance of secrecy, the lawsuit disappears.

Moreover, a substantial part of the concern about the place of energy industry executives on the task force is due to Cheney's history as one such executive, having been the CEO of Halliburton. Unlike theoretical Republican replacements in the Bush VP slot such as Colin Powell, Cheney is already distrusted by some environmentalists because of his own private-sector resume, without even counting his actions in public service. A possible implication of his having relied on energy exectives in determining national policy is that he has let his pre-existing bias toward that industry outweigh other considerations.

In the end, however, I go back to agreeing with Scalia that when truly uncertain, a SCOTUS justice should prefer staying on the Court, to ensure that there is no 4-4 decision. I suppose he could have invited Ginsburg on the duck hunt to avoid that possibility, thus making a split decision 4-3, but this trip sounded like one for the boys -- Scalia took his son and son-in-law, without their wives.

Posted by PG at 10:30 PM | Comments (13) | TrackBack

Trouble with Terminology

By way of the Head Heeb, an article on Senator John Kerry's wife as "An 'African' First Lady for the US?" Jonathan draws the conclusion,"Mozambique-born Teresa Heinz Kerry can never be the United States' first African-American first lady," but I'm not sure the case is so open-and-shut.

A similar difficulty with labels comes up when considering other famous white Americans of African origin, like Dave Matthews and Charlize Theron, both born and raised in South Africa. Although Mrs. Kerry's lack of interest in maintain a connection to Mozambique lessens her claim to be African, Matthews at least returns frequently to his native country and uses it as a source for his music and business. What description other than "South African-American" would be appropriate?

Though I'm reluctant to admit it, this may be an argument in favor of using "black" to describe Americans whose slave ancestors were taken from unknown nations. On the other hand, perhaps the distinction can be maintained if those who were born in Africa specified the country of birth, while American-born people of African descent continue to use the all-encompassing "African-American." So Teresa Heinz Kerry can be our first "Mozambique-American first lady."

Posted by PG at 09:09 PM | Comments (3) | TrackBack

Censorship As Riot-Prevention

While the Constitution of India, like that of many post-colonial nations, borrows several aspects of the U.S. Constitution, it contains peculiar twists of its own that permit New Delhi to take actions that would be much more challenged in Washington, D.C. One such action is the Indian government's routine book-banning.

Salman Rushdie lived in hiding for years after the 1988 publication of The Satanic Verses because his apostasy brought an Iranian fatwa, or death sentence, down on his head. The fatwa has been revoked officially, and The Satanic Verses is being quietly released in several countries that previously had no publisher willing to associate with the book.

At the time, India had -- and has -- one of the largest Muslim populations in the world, and thus was a non-Islamic nation that still had to contend with the ire of many citizens at what they perceived as blasphemy against the prophet Muhammad. Rioting over the book preceded even the fatwa, and the national government banned it before its Indian publication.

Rushdie was permitted to visit India in 2000, but The Satanic Verses cannot be sold legally, although black-market (and probably non-royalty-paying) copies abound. Nor is it an exception; the latest controversy is over a work of nonfiction.

Maharashtra's home minister and state NCP president R. R. Patil has warned that a serious law and order situation could develop in the state vis-a-vis American scholar James Laine’s controversial book Shivaji: Hindu king in Islamic India.
After an initial reluctance to back this censorship, Prime Minister Atal Bihari Vajpayee reversed and declared the federal government's support for the state's decision.

Even as various Hindu leaders puff themselves in indignation at any slights to a historical hero, the main concern in most acts of censorship is not the offense to a particular official's sense of propriety, but the chances that it will lead to "a serious law and order situation," i.e. violence. At least sixty people were injured and one killed during The Satanic Verses riots, and the radicals have not gotten more peaceful in the succeeding years.

An editorial by a retired policeman, published in 2000 as India debated allowing a controversial filmmaker to make a movie that portrays a custom of Indian society negatively, effectively explains why a nominally secular and free-speech-protecting nation has so much censorship:

The vast majority of literary journals have during the previous quarter century repeatedly criticised the administration for not respecting the fundamental rights of freedom of speech and expression, guaranteed under Article 19(a) of the Constitution. It appears that very few have bothered to read the proviso in Article 19(2), which reads as follows:

"Nothing in sub-clause (a) of clause (1) shall affect the operation of any law, or prevent the state from enacting any law, in so far as any such law imposes reasonable restrictions on the exercise of the right, conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign powers, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

Scholars of comparative law might note that India directly amended its constitution in 1951 and 1963 to include these demurrals. The U.S. Constitution has no such exceptions in its text; their existence in the doctrines of "fighting words" and libel law have been built by jurisprudence.

Despite Supreme Court rulings that say the rights to free speech and press are not absolute, legal bans on books and movies face a major hurdle in the First Amendment. The prima facie assumption is that there is serious literary, artistic, political or scientific value in these works, and the more challenging they are to the established conventions of religion and history, the more value they are likely to have.

In volatile countries, however -- where a disputed election like Bush v. Gore would have led to rioting, not just grumbling -- the importance of free speech has to contend with the importance of maintaining stability. Although I am inclined to oppose all censorship, I also would not want to underestimate the probability of a work that would be protected in America being a lighted match in India.

Posted by PG at 06:06 PM | Comments (0) | TrackBack

Recusal and Reasonable Questions

This NY Times editorial is a little scathing, and a little unfair to Scalia's memorandum refusing to recuse himself in Cheney v. U.S. District Court. Language in the editorial like "angry 21-page memorandum fired off on Thursday" and "[Scalia] also points out, rather sarcastically, that he and the vice president neither shared a room nor a hunting blind" do not, in my view, approximate the tone of the opinion.

Will Baude, Dahlia Lithwick, and other commentators are probably right that Scalia's choice was more or less prudent, and justifiable from the common-sense and pragmatic viewpoint of judicial house-keeping. But the legal standard set forth in 28 U.S.C. 455(a) does not seem to permit that kind of de novo decision making:

    Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Scalia's opinion convinces me that his impartiality could reasonably be trusted, but does he really mean to suggest that every person who thinks this looks bad is unreasonable to think so? The truth is, Scalia's impartiality has been questioned. And even though Scalia is right that

    [a] rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling

it's unclear why the inconvenience of recusal should be relevant to the question whether doubts of partiality are "reasonable." This kind of argument is especially surprising from Scalia, whose textualism would normally keep him afield of such policy arguments, and instead find that statutes mandating inconvenient results should be fixed by Congress, not the courts.

I'm not suggesting that the statue clearly mandates a particular result, but I think Scalia was a bit disengenuous, as the NY Times editorial suggests, in "refusing to acknowledge the reasonableness of questions about his impartiality."

Thanks to Volokh and Mr. Ichiban for the pointers.

Posted by Nick Morgan at 06:03 PM | Comments (3) | TrackBack

Shelter Me

In Tax Law yesterday, we discussed tax shelters, and how law firms have been coming up with complicated schemes to help their clients avoid paying income tax by engaging in sham transactions that move money around on paper and take advantage of ambiguities in the tax code. We watched a 60 Minutes piece and part of a Frontline special, and the professor pointed us to the transcript of Senator Grassley's October 2003 hearings on tax shelters if we wanted more. I pulled the transcript up on Lexis; this does not help give tax lawyers a very good name. Interesting stuff I just thought I'd share. From a lawyer and tax specialist at KPMG:

Any purported business purpose or economic substance is just a facade. It's economic substance that's engineered in by the tax shelter promoters, not the financial advisers...

The tax shelter promoters were pretty brazen about this stuff. Some of the quotes that I included in my statement: "It's like stealing candy from a baby," "You'll never pay tax again," "Our clients do not pay federal income tax," "Paying federal income tax is optional" -- these were comments that promoters made.

Posted by Jeremy Blachman at 04:01 PM | Comments (3) | TrackBack

Arrid Total Justice

Howard Bashman links to this AP article reporting that Sandra Day O'Connor has been chosen as one of 10 "Arrid Total Women of Today" and is pictured on her very own Arrid trading card, which "features a large logo that includes the brand name 'Arrid Total,' described on a fact sheet sent to reporters as an 'all-in-one anti-perspirant and deodorant.' It's available in 'powder' or 'passion flowers' scents." How odd.

In other Supreme Court Justice news, John Paul Stevens will reportedly be appearing as a guest judge on American Idol next week, Clarence Thomas is featured in an upcoming Playgirl spread, Ruth Bader Ginsburg is the host of Saturday Night Live tonight, David Souter has signed a sponsorship deal with Hooters restaurants (they will all be renamed "Souter's Hooters"), Antonin Scalia plays bass on the new Outkast album, Anthony Kennedy is in a new line of commercials for Crest Whitestrips, Stephen Breyer is starring with Jim Carrey in the sequel to his hit movie "Liar, Liar!" (tentatively titled, "Breyer, Liar!"), and Ben & Jerry's Ice Cream is naming a new flavor after Chief Justice William Rehnquist, ImPEACHment Hearings, peach flavored ice cream with a blueberry ribbon (symbolic of the blue dress).

Posted by Jeremy Blachman at 01:13 PM | Comments (4) | TrackBack

Review: Eternal Sunshine of the Spotless Mind

Screenwriter Charlie Kaufmann gave us the oh-so-clever gimmick of Being John Malkovich, and the inventive, if embarrassing, meditation on writer’s block, Adaptation—two accomplishments that proved he could be funny and smart outside the mainstream, all the while keeping within the big-fame limelight of box office competition. Pretty impressive stuff these days, when originality and success intersect so seldom in the film industry.

But now I’m compelled to offer more than kudos to Kaufmann, while I sit here and write, still very much moved and almost hurt by the surprising vitality of Eternal Sunshine of the Spotless Mind. At it’s most basic, the story is about a procedure designed to erase all the protagonist’s memories of his latest failed relationship. At times, Kaufmann overplays the options presented by this plot design, but on the whole he uses it to explore the powerful and irrational drives of romance, and the relationship between memory and the self. The story advances like a tour through these memories, piece by piece developing a love-relationship that, while wrinkled with the occasional cliché, is on the whole convincing and expertly rendered by Jim Carrey and Kate Winslet.

There is perhaps no more daunting task for a writer than to give love a serious literary treatment. It’s been done a million times, and it’s been done frighteningly well. Shakespearean scholar Harold Bloom wrote:

    Chaucer’s human nature is essentially Shakespeare’s: the deepest link between the two greatest English poets was temperamental rather than intellectual or sociopolitical. Love dies or else lovers die: those are the pragmatic possibilities for the two poets, each of them experientially wise beyond wisdom. (Shakespeare: The Invention of the Human 87-88.)

[the rest could spoil it for you]

Any lover who has hoped to approximate the “happily ever after” of children’s stories either succeeds by self-manipulation or fails as a realist. Kaufmann knows that love without tragedy is unsettling, or worse, uninteresting. There is hardly an alternative for us, who stand in the overwhelming influence of Chaucer and Shakespeare. But Kaufmann’s ultimate vision of love in Eternal Sunshine strikes a peculiar compromise often urged in advice to disappointed lovers: “Yes, it hurts, but we must.” Kaufmann’s protagonist reaffirms a love he knows will fail. We are left with the ironic optimism of bravery and affirmation--overlaid by a rejection of love’s ideal to satisfy our wiser natures.

Posted by Nick Morgan at 03:52 AM | Comments (2) | TrackBack

What's Your Name?

The New York Times Magazine has an article about domain disputes -- should the premier Indian business empire run by Ratan Tata (Tata Steel, Tata Engineering, Tata Power, Tata Chemicals, Tata Finance, Tata Telecom, Tata Tea and more) have a right to Find out by reading the article. If only each of us had had the foresight to buy up all sorts of domains that companies might now pay us lots of money for. Too bad.

Posted by Jeremy Blachman at 12:26 AM | Comments (2) | TrackBack

March 19, 2004

Homophobia Watch

From Rhea county, Tennessee:

    The measure, which the commission had passed unanimously Tuesday night, would have banned gays and lesbians from living in Rhea County. The proposal would have allowed the county to prosecute gays and lesbians for "crimes against nature."

The measure was unanimously rescinded two days later. This would make a great bar review hypothetical: how many federal constitutional violations can you spot?

Posted by Nick Morgan at 04:47 PM | Comments (6) | TrackBack


Just wanted to take a quick moment to extend some much earned gratitude to the very tech-smart Tony Rickey and the master of thematic blog design, Unlearned Hand, for their generous contributions to the making of De Novo. I may as well, and just as accurately, have said "the very tech-smart Unlearned Hand and the master of thematic design, Tony Rickey," but I'm afraid my policy of "one epithet per person per post" makes that impossible.

Thanks guys!

Posted by Nick Morgan at 04:12 PM | Comments (3) | TrackBack

April 12 Symposium: Internet, Law, & Culture

The De Novo Symposium on Internet, Law, and Culture is scheduled for the week of April 5, and we are currently accepting submissions via e-mail. We intend this topic to be broad, ranging from pornography to the PATRIOT Act to private companies' collection and sale of data.

Please send your thoughts or proposed submission to submit-at-blogdenovo-dot-org, and please spread the word so people who want to contribute don't miss the chance.

Thanks for the excellent response to our first four days!

Posted by Announcement at 12:37 AM | Comments (2) | TrackBack

March 18, 2004

Symposium Responses

And -- with PG's take on the week, "Wait, I Have to Practice?" and Jeremy's scan of the blogosphere -- so concludes the previously-scheduled portion of this week's symposium, Perspectives on Legal Education.

We hope that our readers have enjoyed the contributions of our guests and of our regular De Novo crew. Today we returned to a more typical blog format, with new entries coming in during the day, so we hope you enjoy!

This post also is intended to be an open thread for your comments on the symposium as a whole.

Posted by Announcement at 08:28 PM | Comments (3) | TrackBack

Allusions on Accident

Will Baude, as usual, is full of interesting questions. (Sticklers, I hope, will put aside the fact that while one can be full of many things, questions are not such things ;) .) The question in question:

    I'm just wondering whether Shafer's allusion to The Fountainhead is intentional or accidental. [Query: If it's accidental, is it still an allusion?]

(Brackets his.) Generally, yes, I think accidental allusions are still allusions, but it will depend on the nature of the accident. If, in a poem about rusty nails, the first letters of each line coincidentally spell "William Blake," there's no allusion. But if the author is addressing the stuff of past literature (subjects addressed in past literature), and the author has read such literature, then any instance of channelling literary themes in such a way that can reasonably be considered unique to a certain author is an allusion to that author, intentional or not. This is so because the heart of an allusion is not what it tells us about the author's intentions, but what new thematic channels it allows to flow into the work, what other literature it brings to the fore as a compliment and counterpoint to the alluding work. And, I assume that writers are so steeped in their cultural and literary heritage that allusions are bound to spring from authors who gave no explicit thought to that heritage.

Of course, whether an allusion is accidental still matters. Use of the phrase "a modest proposal" may indicate that a work is meant to be satirical, but not if we know that the author intended no such reference to Swift.

Posted by Nick Morgan at 07:05 PM | Comments (1) | TrackBack

Wait, I Have to Practice?

Not wanting to be disowned, I've crossed "plaintiff's attorney in medical malpractice" off my list of future career possibilities. But that still leaves a dizzyingly infinite range of options. I applied to the University of Houston law school because they had the top-ranked health law program in the country, but I'm not sure that I want to go that route. My Penn essay mentioned my enthusiasm for bioethics, but I don't know how to incorporate that into a career, other than by getting appointed to a presidential commission.

As law school draws closer and more people ask, "So what kind of law do you want to practice," I'm forced to confront the likelihood that I am going to law school not because I want to be a lawyer, but simply because I find law really interesting.

This realization didn't bother anyone when it applied to my choice of major -- indeed, my parents were doubtlessly comforted by the thought that I wasn't going to try to make a living on studying literature. Law school, on the other hand, is supposed to be a fancy kind of vocational training. I will exit with a JD, shortly thereafter pass the bar and be set in a comfortable profession. Right?

Right. Except for that nagging feeling that I'm just going to law school to have fun. Not so much of the softball-playing, alcoholic-becoming variety, but of the class-enjoying, discussion-having, idea-forming sort. It seems like a more factual, analytic version of classes in the English department.

Will Baude talked about the law as history and song, and I see it primarily as story. Protagonist, antagonist, conflict, succeeding peaks of action until the highest court makes its ruling (climax), and the epilogues of the main characters' subsequent lives. James Dale gives speeches. Jane Roe lobbies to make abortion illegal (that's not just a second act, that's a sequel).

In studying the cases, we generally know only as much about the characters as is necessary to this particular plot; these are stories on the principle of the iceberg. We begin in media res, and look for the essential principles of conflict. Does Dale's right under New Jersey law not to be discriminated against on the basis of sexual orientation trump the Boy Scouts' free association right to exclude homosexuals? Does Roe's right to control her reproduction trump Texas's interest in protecting fetuses from abortion?

Although the fashion in understanding a literary text through studying the author's life hasn't become widespread as applied to court decisions and the judges who write them, Dahlia Lithwick's project of demystifying and humanizing the Supreme Court justices seems like a step in that direction.

Speaking of Lithwick, I met her at a conference on public interest law at the University of Virginia last month. She spoke at the "Non-Traditional Legal Careers" workshop, with the same message as her symposium post: don't let yourself forget why you're going to law school.

Sound and useful advice, except for this problem: I don't know why I'm going to law school, other than because I'll enjoy it. Not being a member of the idle rich (more a member of the sedentary upper middle class), I suspect that spending $100,000 on entertainment -- even entertainment that is more poetry than pushpin -- may turn out to be a poor utilization of resources.

Just don't mention it to the family.

Posted by PG at 01:13 PM | Comments (2) | TrackBack

United Airlines' Bankruptcy in Trouble

Yahoo! News reports that "After running smoothly for 15 months, the bankruptcy proceedings of United Airlines parent UAL Corp. have encountered turbulence that is setting back the company's schedule for emerging from court protection by June 30."

The company is awaiting a decision from the federal government on its application for $1.6 billion in loan guarantees, and for legislation pending in Congress that would ease the burden of future pension obligations on many companies. The airline also must contend with a lawsuit brought by one of its unions, at a time when the aviation industry is facing fresh setbacks from renewed terrorism fears and higher fuel costs.

Bankruptcy has probably been my favorite class in law school so far (perhaps more because of the professor than the subject, but, still, I thought the material was pretty interesting), and I suppose this article is a nice demonstration that bankruptcy is complicated. I bet United's lawyers are having some long nights.

Posted by Jeremy Blachman at 11:11 AM | Comments (3) | TrackBack

Symposium Follow-Up: A Quick Tour of the Blogosphere

Waddling Thunder has posted some thoughts on his blog reacting to Nate Oman's thoughts linked in a post below. I'll give you the beginning and the end of his post and you can click over there if you want to read what's in between:

Nate's point, I think, is an interesting one - law schools should focus on teaching theory because 1) they're better at it and 2) no one else will teach it, whereas firms will teach us how to practice. I don't think there's anything objectionable about that argument - in fact, I agree that understanding theory lets you understand the blackletter much better. I still remember the rule against perpetuities, and the only reason I do so is because I learned it as a historical matter rather than as some sort of arbitrary rule...

I don't think it matters what you teach, so long as you provide enough choices to get enough of your students excited about some part of the law, and so long as you get them the basics of a professional and theoretical vocabulary so that they don't sound entirely ridiculous when they make their way into the world.

Greg Goelzhauser (one of our former co-bloggers over at En Banc) had this to say:

That most law schools continue to adhere predominantly to a black letter approach boggles the mind. The usual response to this argument is something along the lines of, "Students need to know the law." Of course! No one could argue with a straight face that law schools should abandon the practice of teaching "the law" to students at least in some form. But this should simply be a starting point. People learn and quickly forget the doctrinal structure of most courses, but it has been my experience that solid theoretical foundations remain past the final exam.

Feel free to post more links in the comments.

Posted by Jeremy Blachman at 11:05 AM | Comments (1) | TrackBack

Legal Puzzler

I just posted a "Legal Puzzler of the Day" up there where the This Date In Legal History post had been. I think that space could be pretty fun to play with; if anyone has any cool ideas, let me know or post a comment. Please don't post the answer though. That'll spoil the fun. Do tell me if you think it's either too easy or too hard. The first case I picked was Schechter Poultry Corp. v. United States and that just seemed way too long to be fair. But this one seems more reasonable -- but who knows. Like anyone cares. I dunno. Work in progress. Glad you're reading.

Posted by Jeremy Blachman at 12:26 AM | Comments (6) | TrackBack

March 17, 2004

Day Three: Being and Becoming a Student

Welcome back to our third day of "Perspectives on Legal Education," the first in De Novo’s continuing series of symposia. We plan to reserve tomorrow for any symposium follow-ups and responses, and then begin normal blogging. If today is your first visit, be sure to check out Day One (with contributions from Bashman, Berman, Solum, and Volokh) and Day Two (with contributions from Fowler, Jensen, Morgan, Schaeffer, and TPB).

Today, we offer the following entries on "being and becoming a student":

Will Baude, "On the Asylum's Doorstep"

Chris Geidner, "Value, Objectivity, & Hierarchy? Try Time, Honesty, & Ideas Instead"

Dahlia Lithwick, "I Went to Law School for This?"

Jeremy Blachman, "Riding the Train"

Timothy Sandefur, "Overdue Gripes About the Case Method"

[UPDATE: The Fool writes "Lessons Learned (Or Not) In School".]

Once again, please feel encouraged to comment or respond to any entries by email. Notice, also, that any subsequent entries and responses we publish will appear below this floating "table of contents" post.


Posted by Announcement at 03:00 PM | Comments (0) | TrackBack

Fool: Lessons Learned (Or Not) In School

The Fool has been a consistently great commenter at the former En Banc blog and now it appears at De Novo, as well as maintaining the Fool's Blog. -Ed.

If I may: Having now been out of law school long enough to have garnered a true flavor for the actual practice of law (I have worked as an independent contractor, a law firm attorney and in-house counsel), but not so long that I have forgotten my law school experience, I take the liberty of offering some thoughts on what law school does well, not so well and the differences between law school and the practice of law.

With regard to law school, I believe that it provides an excellent historical perspective of the law. However, that historical perspective is not particularly helpful in the “real” world. While interesting (if you will not be tested on it), it contributes little to one’s abilities and effectiveness as a practicing attorney. I assure you that the matters you will handle you will likely never have to cite Pierson v. Post. International Shoe is another story – especially with the proliferation of the Internet and online business!

While I certainly am not advocating the wholesale striking of history from law school classes, I believe that much more practical “real” world courses would prove infinitely more useful to those who will ultimately practice law. I believe it would make for more competent and effective attorneys. I compare it to medical school whereby every student must satisfactorily complete a qualified residency program before becoming a licensed physician.

Even if not in the form of a residency, in my opinion, the legal profession would benefit immensely from such practical, “hands on” type of classes. Thus, moot court-style classes should be required, contract negotiation classes should be required, etc. A moot court exercise for each required course would give students a flavor for how torts/contracts/trusts & estates, intellectual property law plays out in actual practice. Moreover, it would expose all students to this type of experience, not just those fortunate enough to make the moot court team.

This learning format also ties into Chris’s comments about objectivity. It would force students to take one side of the dispute. And, by doing so, you are forced to consider your opponent’s position and likely arguments. That being said, a certain effort at objectivity remains vital in the practice of law. When clients seek your advice, you cannot simply give them the “best case” scenario (like summary judgment, reviewing all facts in the light most favorable to your client). You must make every effort at analyzing the facts objectively in order to properly advise your clients. This is frequently done in associate-to-partner style academic writing assignments. This remains important for a couple reasons. As indicated above, you must be able to give your client appropriate advice taking into account all of the weakness of his position. This helps you devise an appropriate and effective subjective strategy on your client’s behalf. Also, as a practicing lawyer, you will find yourself in the position of representing a client with whose case (or position) you may not personally agree. In order to represent that client appropriately, you must put aside subjective judgments [about the client] to analyze the matter for your client – for whose benefit you are working. Again, thereafter, you argue subjectively, putting forward your best case, distinguishing weaknesses in your case, and discounting your opponent’s stronger points. In short, a valiant attempt at objectivity is required to make subjective, winning arguments.

Objectivity, in some ways, is an illusion; however, it is a necessary illusion. If the law were cut-and-dry objective, our court rooms would not currently be jam-packed with litigants and cases – each party believing she is subjectively (or objectively) right. Thus, in the practice of law, both objectivity and subjectivity remain vitally important to being a good attorney. Objectively cannot be discarded.

Briefly, I agree with Chris that the more you put into law school, the more you will get from it. This point need not be belabored.

And, finally, on a more practical level, the thing that can be most disappointing practicing law is being constrained by clients’ and employers’ budgets. Often clients and companies are not willing to spend the money pursuing the “interesting” cases. The practice of law is governed by money – whether it is your billable hours, your corporate productivity, or the client’s purse strings. Thus, if there is one naïve expectation that I carried with me through and beyond law school, it was that the “close call” interesting cases and fact patterns encountered in law school would forever continue in the “real” world. Oftentimes, they do not. They exist, but you are not always able to pursue them for a number of valid reasons. However, when you do get to pursue such a case, it is rewarding.

Thus, one of the things I enjoy about the blogosphere is the ability to read about, think about and comment on many of the cases and national and global events with which I am not directly involved. It affords me – and, I think, other practitioners – the ability to exercise those theoretical, academic mental muscles.

Having read this, I am not sure it is on point. However, I hope someone finds it interesting.

Posted by Guest Contributor at 02:47 PM | TrackBack

Law Schools Not Teach Lawyering?

Nate Oman chimes in with this response to Professor Solum's, "What Do Law Schools Teach":

    The problem is that legal educators sometimes -- and legal practioners almost universally -- take it as an ideal that law schools ought to turn out lawyers. I think that this is a mistake.

    Legal practioners have a vast comparative advantage over law schools in teaching practical lawyering skills. Example, I had a semester of trial advocacy and a semester of legal writing in law school, yet I learned more about brief writing in the first three weeks of my clerkship than I did in all of law school. It is simply very very difficult to explain in a classroom what makes for a good brief and what does not.

    On the other hand, law schools have a huge comparative advantage over practice in teaching theory. The problem is that most law schools teach it in a really ad hoc and disorganized way. However, I think that lawyers who understand that various sorts of frameworks that can lie beneath doctrinal structures are likely to be better lawyers.

I'm not exactly sure why Oman thinks a theoretical background makes for a better lawyer, but I've always assumed that understanding the basic theoretical and political principles of legal doctrine would be helpful in spotting the jurisprudential leanings of a certain judge, and shaping one's strategy accordingly. (This advantage, I presume, is much weaker in transactional practice.) Nevertheless, I think the choice properly lies with students whether they prefer to round off their training academically or with practical experience, as Tony Jensen suggested.

Posted by Nick Morgan at 01:06 PM | Comments (4) | TrackBack

Baude: On the Asylum's Doorstep

Will Baude is 4th-year undergraduate at the University of Chicago and blogs (too much) at Crescat Sententia. -Ed.

"Why," the astute reader will already be asking, "did they ask Will to throw in his thoughts on this one? After all, he’s never actually received a legal education. He hasn’t been to Law School." Fair point. I’m not a law student, even if I do sometimes play one on the internet. But the advantage of this is that I can write about the asylum without ever having been an inmate.

I’ve now taken a law school class, worked for some law school professors, and generally spent more time than is healthy in a law school. One of my 3-L friends tells me to leave whenever he sees me there, warning against the dangers of "burning out." And I’ve been friends with miserable law students and euphoric ones. So the question I’m asking myself is whether one actually derives anything from law school other than the credential and the right to be a lawyer. And as I’ve already said, I don't know, though I guess I’m soon to find out.

During finals week, fall quarter, my third year, I was staying up late cramming for an exam in Complex Variables. But at about midnight I found myself procrastinating learning about moebius transformations and reading the oral arguments in Virginia v. Black instead. And then then it was on to Scheidler v. NOW, and so on. I realized I was hooked. So I’m lucky enough to go into law school with a combination of low expectations and eager naivete. So long as this stuff continues to be fascinating, you won’t find me complaining about the value of legal education.

In his book The Captive Mind, Czeslaw Milosz writes:

    In Central and Eastern Europe, the word "poet" has a somewhat different meaning from that which it has in the West. There a poet does not merely arrange words in beautiful order. Tradition demands that he be a "bard," that his songs linger on many lips, that he speak in his poems of subjects of interest to all the citizens.

We have our political poets in America too, of course (Amiri Baraka being only one example), and our political song-writers. But lawyers do that job too. We record much of our history through legal cases – Brown v. Board, Plessy v. Ferguson, Rodney King – or through legal or semi-legal documents – The Constitution, The Emancipation Proclamation, The Declaration of Independence. Even though most people know little about the Supreme Court (etc.), many of us are fascinated by law. Lawyers, to some extent, write our history books.

Fundamentally, that is why I am going to law school. That is the value I hope to derive from a legal education. I hope not just to be steeped in the technicalities of bankruptcy statutes and implied easements (though for that, too), not just to learn formalistic arguments which (Judge Posner assures the class) will be utterly useless in actual courtrooms, let alone the real world – but rather to learn about what came before, to learn to sing the legal songs.

And perhaps if I’m very lucky and very persistent, to nudge the world a little bit, or arrange a few sentences that people will speak for me when I’m dead.

Posted by Guest Contributor at 12:00 AM | Comments (10) | TrackBack

Value, Objectivity, & Hierarchy? Try Time, Honesty, & Ideas Instead

When we decided that our first De Novo symposium would be a discussion on legal education, I wondered how I could best contribute to a discussion about law school. As a current student, I don’t know the value of my legal education yet. (Or do I?) As a participant in the process, I certainly have no objectivity in evaluating what it does well—and not so well. (Or do I?) As a consumer who is beholden to the employees, I have little say about those whose salaries I help pay. (Or do I?)

Law school, it would seem from much I have been reading (not just here), is about the helplessness and victimhood of young lawyers and lawyers-to-be. Fortunately, this is just one part of the story. Law school, if you treat it well, is about empowering yourself and others not to be afraid of this boogeyman: The Law. Like all great tools, the law can be misused. That’s no reason to burn down the toolshed. It is, however, the reason to do more than classes in law school. So, to start off my time here at De Novo, some stories of what law school has done for (and to) me.

* * *

To this end, the most important part of law school, for me—what I can already see as the value of my legal education—is all that I have taken from and all the time I have given to the school and the law outside the classroom.

When I arrived in Columbus, I immediately went to work learning about the Student Bar Association and other student activities at the law school. I became involved with the public interest group, and later, the LGBT law students’ group. These were great opportunities to see the law outside of a casebook—to let me explore the parts of the law that brought me to law school. In the spring, I organized a panel exploring Lawrence v. Texas, which led to my helping our Law Journal organize and put on a tremendous symposium in November on the case and its ramifications for equality, privacy, and lesbian and gay rights.

Over the summer, I worked with three professors, researching in various areas and learning a tremendous amount about the law. This was a valuable time for me that allowed me to think about the law outside the rapid-moving, structured confines of a classroom. I moved with the professors through their research, sometimes taking little side-trips down paths that caught my interest—including one that led me to what became the topic of my just-finished student Note.

Having been willing to put much time and work into all the law school has to offer, I feel that I truly have gotten much more out of law school.

* * *

“There’s no such thing as objectivity. The best you can do is know that you’re not objective.”

Although he said it in terms of journalism, what my undergraduate journalism professor taught me is one of the more profound lessons I’ve taken from all my schooling. Objectivity is no good because it only involves hiding your eyes (or the eyes of those around you) from what you truly think.

This past Friday, the Ohio State chapter of the Christian Legal Society sued OSU because they believe they have a right—as a state-university-sponsored group—to exclude from membership and leadership positions those who engage in “homosexual conduct.” For the time being, the university has allowed the group to receive its funding like all other groups despite the group’s admitted noncompliance with the school’s nondiscrimination policy. The group, however, has claimed to have “reasonable apprehension” that they might lose their recognition in the future, so they want a federal judge to tell the university that there policy is unconstitutional.

Do I think they’re right? Hell no.

Those students, however, as well as those like me who oppose what they do, have learned what I see as an important lesson of law school: Objectivity, like in journalism, is an illusion in the law. As an advocate, the best thing to do is to be up-front about your position and to be willing to discuss the issue—regardless of the contentiousness of it—with those on all sides. Criticize all you’d like, but take your opponents’ words home with you and think about them. For those whose positions ask for and demand impartiality, it is essential that you have examined your own biases so that you can account for them in providing as objective a viewpoint or decision as is possible.

Despite complete disagreement on this important issue, I know that some of those with whom I most disagree are also among those who have most fully thought out the issue. I’d take honest bias over faux-objectivity almost any day.

* * *

I’ve never really been all that good with hierarchy. It’s silly. This makes the whole professor-student dynamic work “not so well” with me. One professor and I went back and forth at least once a week in class (and out of it) about every issue under the sun. From as early as high school, I can recall teachers who professed slight irritation at my “independence.” One particularly colorful story involved a high-school English teacher throwing a file cabinet drawer at my feet in the middle of class.

What’s my problem with this hierarchy (beyond the ignorance of youth, you mutter condescendingly)? Two things: ideas and accountability.

Ideas are what matter, and the best should rise to the top—no matter the source. A strict understanding of the professor-student dynamic inherently undervalues the students' contributions and overvalues the professor’s mastery. This is why I appreciate debating and discussing things with professors much more in the blogosphere, where links and other methods do appear to help raise the good ideas to the top in a way that I’ve not seen anywhere else.

Equally important, however, is accountability. In many ways, the antithesis of accountability is tenure. Now, don’t get me wrong, I am not saying I necessarily oppose tenure. Without it, academic freedom would be a thing of the past and all the law would suffer. With it, however, the importance of students is, once again, undervalued in relation to the importance of the professors’ ability to explore the law. Reputation among academics certainly provides some accountability for professors. That is not, however, any sort of accountability of professors for their teaching. Yet again, the importance of doing what's best for professors supercedes that which might be best for students.

The blogosphere—with the notable exception (to some extent) of anonymous blogs (by which I mean the truly anonymous, not just the “my-name’s-not-on-here-but-you-all-can-figure-it-out,” blogs)—again does this better than the law schools. Accountability is instantaneous—if anything a bit too much so. A post goes up, and (a link or two later) all of a sudden Professor Leiter’s got the National Review up in arms about intelligent design. (See also about a million other examples of the “accountability en masse” of the blogosphere.)

I've been lucky, however, to have found several professors who have been willing to let me push those boundaries and ignore those hierarchies (for the most part). And because of that, I have been challenged more. And thus, I have learned more.

* * *

What’s all this mean? I don’t really know. All I know is the lessons I’m taking with me. And, with one year and six weeks of law school remaining, the best test I can come up with is: Has it been worth it?

For me, the answer is simple: Without a doubt.

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Lithwick: I Went to Law School for This?

Dahlia Lithwick is a senior editor at Slate, where she writes regularly for "Jurisprudence: the law, lawyers and the court." - Ed.

I went to law school because I didn't have the stomach for med school. I went because virtually everyone I had known from the Yale debate team had gone to law school. I went because I loved the TV shows about the people's cross-examining slippery witnesses into a confused confession. And I went to law school because I had unformed, inchoate hopes of making the world a better place at a policy level.

These are all good reasons to go to law school. But they are also bad ones. If more people went to law school knowing that centrifugal forces being what they are, they would someday end up at a law firm doing work they don't much care for, many fewer people would go to law school.

The mistake many (possibly most) make is treating law school like a second BA -- a second opportunity to put off making a concrete career decision, a general "broadening degree" that will make us employable in any field. Don't get me wrong; one can treat a law degree as a great all-purpose second degree, a chance to learn to "think like a lawyer." But somehow, something happens to that thinking almost before we tear the shrink-wrap off our first contracts book: We start to let fear drive us instead.

The article here includes the best advice I can offer about fighting fear in law school -- and about understanding the ways in which our fears funnel us into summer jobs, clerkships, journal positions, law review competitions, and ultimately into law firms. But it is perhaps too cynical. It doesn't mention how magical law school can be if you bite your cheek and ignore the fear.

I went to law school, hated virtually every minute of it, dropped out, dropped back in, and bitched and moaned like a toddler. But law school ultimately allowed me to do precisely the job I always most wanted to do: be a writer. I could not do what I do today -- cover the courts and the law -- unless I had gone to law school.

The huge irony is that if I had known back in law school how happy I would be 8 years later, I'd have had the time of my life! I would have loved my classes, taken more interesting ones, never gone to an event I hated, done even more clinical work, learned to salsa dance, and made better friends. It would have been like undergrad, but in better shoes. The reason I got stuck was because I let myself feel stuck, thinking that unless I treated law school the way everyone else treated it -- as a dark tunnel to the world of corporate law -- I was doomed.

The best thing about law school is that it really will blow open a thousand career doors for you. But you need to see them. You need to tap your way along the dark tunnel -- feeling for soft spots, and listening for folks on the other side to tap back. You need to be true to your heart; true to why you went in the first place. And you need to do whatever it takes to fight the fear and the sucking noise that will otherwise pull you into a life you may not want. That means being proactive: find mentors who are doing weird things with the law. Work for a professor who isn't doing ordinary research. Volunteer someplace that needs lawyers. Cold-call lawyers you read about and find out how they got their jobs. Keep doing the stuff you found interesting before law school.

I am completely glad for my JD. It gives me exactly what I once hoped it would: a bit of knowledge, some credibility, an all-purpose ability to read cases and statutes. But the best thing about it is that it was a means to an end, and that end was becoming more myself, not less. Go to law school for the right reasons, or the wrong ones. But be certain you are more yourself, not less so, when you come out the other end.

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Riding The Train

Dahlia Lithwick’s advice is right on the money in spirit, but it’s hard to live up to once you take that very first assigned seat, hear the professor call your name, and stumble through an explanation of a case you barely skimmed the night before. She’s right that grades don’t really matter, but let’s face it: nobody is sending his grades home and not looking at them until graduation. Not only would it be an unrealistic exertion of willpower, but in a lot of ways it would be silly. Grades don’t matter much, but they matter a little – and, all else being equal, good grades are better than bad grades. And, sure, it’s great to write yourself a letter before you start law school and then hold yourself to it when you graduate – but even the biggest cynic should be willing to concede that law school can open your eyes to new options, can help you find new passions, and can help you grow as person such that your plans legitimately and justifiably change. They might not. But to close the door before you even start seems silly. And, no, missing one night of reading won’t inexorably change your life (at least I hope not), but if you’re going to go to law school, you probably owe it to yourself to at least try.

A classmate recently shared a conversation he had with one of his professors. “Think about the biggest risk-takers you knew from college. Are they in law school?” Of course not. Law school is the next step for the risk-averse when a college degree isn’t enough. Ever since we started school we’ve been on the express train; we’ve been building our resumes since seventh grade: take the hardest classes you can find in high school; join as many extracurriculars as you can; start practicing for the SAT; fill out those college applications; choose the right major; keep up your grades; join as many extracurriculars as you can; get the right summer internships; start thinking about grad school… do you want to be a doctor, a lawyer, or a rabbi? Well, the first two at least. A friend of mine actually had his parents present those three choices to him: he’s now in his fifth year of rabbinical school.

The hardest thing to realize is that the train won’t stop until we get off. We can keep going: we’re at law school; now try to make law review; get the right summer job; second year on-campus interviewing; third year apply for clerkships; take a job with the most prestigious firm that’ll hire us; get on the partnership track; make partner; retire wealthy; move to the most expensive retirement community in Florida; buy the fanciest headstone. That’s where the train is heading. We can choose that path, if we want to. It’s the path of least resistance. The firms come calling. They make it easy. The salary is high. They have to make it easy, and they have to pay a high salary – otherwise no one will work for them. In one of my classes just this week we talked about how default rules matter – if the transaction costs are high, people have more incentive to find other options. The transaction costs of taking a law firm job are very low: the system is designed that way.

But we can get off the train. Or at least switch cars. At some point, even for the most risk-averse among us, our resumes are impressive enough. We’ve done as much as we can to ensure we don’t end up starving and homeless (although the quality of many law school dorms and cafeterias may indicate otherwise), and the game shifts. Once we’re in law school, I think the battle isn’t so much to grab your seat on the train and hold on for dear life, but to figure out what the right stop is.

It feels strange to realize this, but, personally, law school has opened my eyes to legal careers on both sides of the tracks (I realize I’m carrying this metaphor beyond its reasonable limits), despite the institutional inertia channeling us all toward the big firm life. They make us feel like our only choice is the corporate firm, but they forget that each day we interact with brilliant professors, read opinions by judges, discuss public policy shaped by politicians and their staffers, many of whom have law degrees, read articles by people at think tanks, hear speeches from lawyers at non-profits, surf the web and find writers like Dahlia Lithwick… the law degree really does feel versatile, despite the effort to hide that from us.

I’ve wandered from the point I started out wanting to make: how can law students put Dahlia’s advice into practice – to get the most out of law school, to have a life, to learn but also enjoy the experience, to take advantage of all that law school has to offer but not lose yourself on a path that leads to somewhere you don’t want to be? The best advice I’ve got, a little more than halfway through, is to not be afraid to care – about classes, about extracurriculars, and about people. Too many of my classmates have checked out – sure, 1L year they tried, but once they got through recruiting season this fall, that was it, they’re done. An event on campus draws ten people and it’s a success. Two-thirds of my tax class shows up on Friday and it’s a miracle. I’m in extracurricular activities where no one wants to be President. (Of the organization, that is. They all want to be President of the United States. Someday. Soon.) The best thing about being a student is being part of a community – making lifelong friends, finding fulfilling pursuits, getting involved in things you can care about. And classes have been surprisingly interesting. So go to class. Get involved in stuff that sparks an interest – and give some other stuff a chance too. Talk to people. Engage. Care. Even if the law isn’t your passion, the intramural basketball team might be. Even if you don’t want to work for a firm, working for a professor might be pretty cool. Even if you find Civil Procedure dreadful, some of your litigator-to-be classmates might not be. Give it a chance. I can’t finish without bringing back the metaphor. We may be on the train, but we’re also the conductors – we can change the path. And, hard as it is to remember sometimes, there’s nothing wrong with enjoying the ride.

Posted by Jeremy Blachman at 12:00 AM | Comments (15) | TrackBack

Sandefur: Overdue Gripes About the Case Method

Timothy Sandefur is a Fellow in the Center for Public Interest Law at the Pacific Legal Foundation. He writes regularly at the blog, Freespace. –Ed.

What I disliked most about legal education was the “case method.” Obviously my experience is revealing only about myself, and different people learn in different ways, but I suspect that I am not the only one who finds a lecture method far more effective. I think the case method has outlived its usefulness—if it ever was useful—and I think it leads to confusion and frustration not only for students but for professors as well. My most effective professors either did not use the case method at all, or else mixed it so thoroughly with organized lectures that we would sometimes spend two or three class sessions in a row not discussing cases at all. I think the essential weakness of the case method as a teaching system is most effectively shown by the fact that when it comes down to something that really counts—passing the bar exam—students and teachers put the case method away and get down to real learning, through the lecture method.

The father of the case method was Christopher Langdell, who introduced it at Harvard in the late nineteenth century on the grounds that (in Lawrence Friedman’s words) “law was a ‘science’; it had to be studied scientifically, that is, inductively through primary sources. These sources were the printed cases; they expressed, in manifold dress, the few, ever-present, and ever evolving and fructifying principles, which constituted the genius of the common law.” Lawrence Friedman, A History of American Law 531 (1973). That’s all well and good, but the fact is that legal education is not the same thing as legal research, just as teaching students physics is not the same as a theoretical physicist doing an experiment in an atom-smasher. In fact, taking a freshman college student to an atom-smasher and just letting him figure things out for himself is the surest way to fill his mind with bewildering details and, eventually, to kill whatever interest he may have had in physics.

The same is true of the law. Yes, cases are immensely instructive, and any lawyer must know how to sift through a case for the gems of common law. But emphasizing cases to over the structure in which the cases ought to fall is to provide the materials without the blueprint, and that is why no law teacher of whom I know follows the case method completely. Eventually, if they want students to understand how the law works, they revert to a lecture. You wouldn’t give a court a pile of cases—you’d give the court a brief that lays out things with a clear and easily-followed line of logic. That’s how it should work in law school, too. It’s not that teachers should never talk about cases; it’s that the cases should illustrate the structured lectures, not the other way around.

The better teachers already do this. But they often feel that they shouldn’t, and torts professors especially tend to talk so much about the cases that the overall structure of a field of law is lost, which leads to confusion and frustration for students.

Another problem with the case method is that it teaches students that all of legal education is to be derived from the decisions of appellate courts. There are many other sources of law, but students raised on the case method tend to look at the cases first, the law reviews second, and the statutes only when everything else has failed. In Prof. Hewitt’s Con. Law class, the students moaned and complained about having to read Madison or Locke, because they thought it was irrelevant. The case method “severed the cords...that tied the study of law to the main body of American scholarship and American life...[and] equated law absolutely with judges’ law.” Id. at 535. See also G. Edward White, Tort Law In America: An Intellectual History 37 (1985) (“The rigid reliance on the case method presupposed the exclusivity of judicial opinions as source materials and suggested an indifference to the role of jury determinations as expressions of societally recognized legal principles….”). This has three insidious consequences. First, it teaches students that Locke, or Madison, or other sources of the American legal tradition, are of historical or trivial interest only, and discourages students from studying the broader fields of moral and ethical theory which ought to inform all legal thought. Second, it teaches students that if they don’t have a case to back up an assertion, they ought not to make it—which means that students think of law as stringing together phrases culled from cases, rather than a structured, organized, common sense way of thinking. Note the surprise that students express when they read a great John Marshall decision, like McCulloch v. Maryland, and discover that Marshall cites no cases in the whole opinion. It’s a great monument of legal reasoning, and yet students can’t help but feel that Marshall’s cheating somehow. There was a time when lawyers had to make do without books at all—lawyers on the Western frontier, for instance—and who had to go by their knowledge of the principles and their memory of Blackstone. But surely it’s the rare modern student who would have the courage to make a legal argument based on logic and theory alone. Third, it teaches students to think that later cases are always better. Because they are looking for authority rather than principles, the student learns to shy away from even well-reasoned cases because they’re “too old.”

This leads me to another complaint: the case method flatters the prejudices of a politically charged view of the law—that is, Progressivism, or “realism.” The fact that this is (as they say) the “dominant paradigm” in American law doesn’t change the fact that the case method reinforces a notion in students’ minds that the law is whatever judges say it is. Those of us who think this is perverse would prefer an instructive method which focuses on principles, which might not only be more effective, but more consistent with right reason. Lord Coke said that reason is the life of the law. Holmes countered that the law is not reason, but experience. The case method is deeply rooted in the prejudices of the latter view, and its consequences are the same: to undermine principled jurisprudence and to tend toward seeing the law as an instrument for enlightened judges to mold society, rather than the discovery of principles through logical, orderly, legal analysis. This is an extreme view, I admit, but notice how those raised on the case method dismiss as antique superstition any notion that the law is found rather than made by judges.

I suspect that the current controversy over unpublished decisions is really a consequence of generations of lawyers being raised on the case method. When Lord Coke started sifting through musty old documents to find cases to back up his arguments, he was not looking for an authority with which to confront the court and thereby somehow command the court to do what he wanted. He was looking for evidence that someone had considered these issues before and come to a conclusion about it, which might be persuasive. His emphasis was on reasoning, not on creating a legal dogma. But law students are now so thoroughly indoctrinated with the idea that all law is case law that they see cases in a different way—as analogous to regulations by which the court is required to abide. As Howard Bashman has put it, “the precedential effect of an opinion should be determined by its contents, and not by a label attached to it at its time of issuance.” But I think courts are dealing with a generation or two of lawyers who think of cases not as examples of legal reasoning, but as stones they can put into the scales of justice to tip them in their favor—and I blame (in part!) the case method for that.

I would replace the case method with lectures, using the cases only to illustrate the lectures, and reading of legal textbooks or monographs organized around subjects, rather than “Cases and Materials” books. Most students revert to these methods already when they find themselves confused by their classes, by buying taped lectures or commercial outlines.

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March 16, 2004

Day Two: Entering The Profession

Thanks to everyone for a banner day yesterday, with over 1500 visitors and a host of mentions across the blogosphere. A special thanks to the readers who left comments or e-mailed their thoughts -- we're excited by the initial response and hope to earn your loyal readership with consistently great content. To that end, today we're excited to present four essays on "entering the legal profession":

Scheherazade Fowler, "What I Didn't Learn In Law School"

Tony Jensen, "To L With 3L"

Nick Morgan, "The Grading of Young Lawyers"

Evan Schaeffer, "Complications Mar the Law School Birthing Process"

UPDATE: TPB chimes in with "On Thinking Like A Client: My Views on the Knowledge and Understanding Necessary to be an Attorney."

Yesterday's post introducing ourselves, this blog, and our "opening day" posts by Howard Bashman, Douglas Berman, Lawrence Solum, and Eugene Volokh can be found here. Stay tuned tomorrow for a set of perspectives on "being a student."

We hope to post some replies throughout the day, so check this floating intro post for updates. Enjoy!

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TPB: On Thinking Like A Client: My Views on the Knowledge and Understanding Necessary to be an Attorney.

TPB practices matrimonial law in New Jersey, and blogs at Unbillable Hours-Ed.

Howard Bashman wrote well on the skills required to be a lawyer in his contribution to De Novo’s symposium. See Howard Bashman, To Think Like A Lawyer, De Novo (March 15, 2004). It is a noble-minded piece. It is reminiscent of Lincoln's Notes on a Law Lecture. (1850). When I was invited to participate in De Novo's symposium, I was initially, and vainly, pleased to be part of such thoughtful company. I can shed some light on what it means to be a lawyer. I can tell them what it means to be in the trenches, unlike a lot of these never-been-in-a-courtroom law professors, I thought.

I then broke out into a cold sweat. I re-read Bashman's To Think Like A Lawyer and Professor Lawrence Solum s What Do Law Schools Teach?, and I realized that there is little that I could discuss about the law or legal education that these two esteemed attorneys have not yet covered, and covered better than I could. I am a third-year litigator. My experience with legal practice is not as vast as Mr. Bashman's, and my academic performance is not as stellar as Pr. Solum's.

As a matrimonial attorney, a practice area that is not well-received in the legal community or the community at large, and for obvious reasons, I have the benefit of dealing with a diverse group of clients on a daily basis and in a fashion that is remarkably intimate and sensitive. What I discuss with clients is often matters of a personal level that they do not feel comfortable discussing with friends, family members, or spiritual advisors (rabbis, priests, ministers, and the like). Sexuality. Parenting. Crime. Personal finances. I discuss issues of a very real, very personal, and very human nature.
So, to those law students who read these contributions, I would like to discuss not so much what they should learn about the law or legal practice, but what they should learn about humanity before entering the practice.

In What Do Law Schools Teach?, Solum wrote:

Historians are trained to immerse themselves in the original materials--the archives, records, pamphlets, and diaries. Sociologists are trained to do both survey and experimental research. Economists are trained to use a set of mathematical techniques. But what do academic lawyers know how to do? What do law schools teach?
Lawrence Solum, What Do Law Schools Teach?, De Novo (March 15, 2004).

I wish to modify that question slightly. What should practicing attorneys know? How should they--we--learn it?

Our goal as attorneys is to zealously represent our clients. Even though the Model Rules of Professional Conduct now state that as attorneys our duty is to "act with reasonable diligence and promptness" in our representation of clients, our actual goal must be the zealous representation of clients. See MRPC 1.3 (2001). We must want our clients to win. We must want that their interests are satisfied. For those engaged in adversarial practices, such as myself, this generally means that the goal is sometimes to zealously fight against the interests of adverse clients. To zealously represent a spouse in a divorce, I must, on occasion, know how to (and zealously attempt to) thwart the interests of the other spouse. To zealously represent a criminal defendant, a defense attorney must know how to (and work to) thwart the interests adopted by the prosecutor (who embodies the interests of the people). So, just as an initial matter, my duty of zealotry, so to speak, requires the courage to stand up and oppose others. We--you, the law students, and I, the still-developing, young attorney--need to learn how to obtain that courage.

More fundamentally, though, we need to understand our clients and their interests (and to understand the adverse parties and their interests). Before I can act in my client's interest, I need to know what it is that he or she is seeking. This is where knowledge of humanity comes in, and where my advice comes in.

It is, quite simply, that you must not be made incapable of understanding the goals of your client by virtue of the fact that you only have knowledge and understanding of law. Clients are human. They have very human goals, rooted in their psyches. Even if you only represent corporate clients, you are dealing with a corporate client s flesh-and-blood representatives or officers.

Thus, getting back to the question of what should practicing lawyers know, the answer seems to be that which allows them an entryway into the minds of their clients. They must know more than the law. Getting into the mind of your client, on some level, is essential to articulating and striving for that client's goal or to preserve that client's interest. You cannot seek a goal that you cannot identify.

To some extent, the knowledge required to understand a client's interest or goal is purely experiential. As you develop your personal lives, your legal practice will benefit from the experiences that you have that mirror the experiences of your clients. You may understand how important and personal it is to own a home--not just any home, but the home you rebuilt. You may understand how important it is for a client to live a certain lifestyle because you are also accustomed to living that lifestyle, and therefore you are able to express the loss of that ability to a jury and serve a client who has been, say, injured and made incapable of earning an income. However, there will be times where you and your client are the products of different worldviews and have thoroughly divergent experiences. You may be a traditional, devout Catholic, married at age twenty-two, and have three children, and therefore not understand how mortifying and demeaning it is to be told that you cannot be married because your sexuality does not fit in with how conventional society understands marriage. You may not understand how important it is to an individual accused of a crime that he or she be allowed to speak on his or her behalf because you have never been arrested and never felt the stigma of society's image of the accused.

Solum questioned, as I quoted above, what it is that lawyers and law students should study in order to fit within a cohesive "legal" field of study. Perhaps he is right that there should be a methodology that should be fitted upon the study of law for purely academic reasons. However, when we represent clients, the nice people that pay our bills and look to us for justice, we need to go beyond being doctrinal. We need to know humanity. We need to find a way to bridge the gap between our own experiences and the experiences of others so that we may better serve them.

So, that is my advice to you: find a way to know your fellow man and woman, even if you have never had to endure the same experiences to which they have been subjected. This is not a simple or trite "walks a mile in their shoes" matter. This requires real study. In learning how to represent clients, I have spent a great deal of time re-learning social psychology. I continue to review monographs on, say, what people are actually saying given certain non-verbal cues, on behavior patterns that indicate false statements (rapid eye blinking seems to be the big one), or on how language can be structured to encourage cooperation and agreement. I read police manuals on interrogation in order to understand how to conduct depositions so to elicit as much accurate information from adverse parties as possible. I read literary journals on how narratives can be constructed in order to re-think how I write briefs and present oral argument because I need to be more convincing to a judge or jury. My mentor, who deals with clients who tend to have strong material interests at stake, focuses a great deal of study on accounting/valuation methods and financial planning.

Not all of it is formal science. I know attorneys that learn about how to serve their clients interests by moonlighting as bartenders, so that they understand how people can be encouraged to divulge information. Others learn to better understand their clients by working on Harleys with bikers, in order to get out of the largely homogenous social world of the law.

You will need to serve a client well, if you intend to spend much time practicing as an attorney (whether as a litigator, a personal counselor, a corporate attorney, or a trustee). In order to serve a client well, you need to understand how that client thinks. Law school is not the place to learn that. It is there to teach you how the law works and how judges, lawyers, and other decision-makers think. Outside study, whether of psychology, economics, criminal science, sociology, or simply of how drunk bar patrons act, is necessary to understand your clients and to serve their interests zealously. As law students, you need to discover what method works for you to so understand a client and to serve his or her interest. Besides, if I may step from behind the curtain of "the legal practice," it's good for you to learn about these things. It makes you a more competent person (and, as for psychology, it helps a lot with your relationships and how you deal with stress).

One postscript: In learning how to serve human interests and how to understand "how we tick," there is the potential to use that knowledge in a manner that is, to an individual, unethical. For example, knowing that, according to social psychology, children are susceptible to "false memories" and can be coached in to recalling abuse that never occurred, and that such an allegation would better serve your client in a custody battle, you have the opportunity to produce ethically tragic results by way of your actions as an attorney. I am no one to speak of what you should know to avoid doing this, but you need to develop your moral backbone in order to establish, for yourself, how to address these difficult dilemmas.

Posted by Guest Contributor at 02:51 PM | TrackBack

A Non-Symposium Post... or: "At The Risk of Offending All These Lovely Readers..."

The Really Unofficial Guide to LLM Life

While we're excited about this symposia idea we've launched with, we had a quick e-mail exchange last night expressing concern that people wouldn't know there's also going to be other content here, about whatever it is we feel like writing about. To illustrate, here's a post that has something to do with our broad symposium topic (legal education) but not really. I just posted it on my solo site, but I figured since it did fit the topic, and the comments function might enable people to more quickly communicate to me how unintentionally offensive this attempt at humor really is, I thought I'd post it here too.

I stumbled across a website devoted to assisting Harvard LLM students* in their transition to law school here. There's a similar site for JD students, but this one was apparently an experimental spinoff a few years ago that never quite took off. Anyway, there's a "Unofficial Guide to LLM Life" on the site that I thought would provide me with all sorts of material for a funny little piece. But it was actually pretty straightforward on its own, so I thought I'd try and parody it and turn it into something worthwhile.

*An LLM is someone who comes to law school for a year to get another degree on top of their law degree, often foreign students who need or want an American credential.

Hence: The Really Unofficial Guide to LLM Life

Welcome to law school, and, in some cases, to the Northern hemisphere, where you will be startled to find that water runs down the drain in the opposite direction. Here are some things to know as you begin your time here in the United States.

1.1 The Academic Year

The academic calendar is divided into three semesters: Fall semester, which runs from September to December (although you probably call this "Spring" if you are from somewhere below the equator); Winter semester, which is a three-week period in January (you probably call this "Vacation" if you are from any school but this one); and Spring semester, which runs from February to May, but feels like Winter because this is Massachusetts, which is the Indian word for "Cold and Windy, Ten Months Out of the Year." Your classmates will also be impressed if you know the translation for the Indian word "Boston," which is "Place of Intolerable Accents." Or the translation for "Harvard," which is "Land of the Brilliant but Modest." No, actually that last translation is absurd in how incorrect it is. But you will endear yourselves to the natives if you tell them that's what you think it means. They might even stop spitting on you when they pass.

1.2 Courses

You are only here for a year, which means there's a chance, although small, that you may actually find enough interesting classes to fill your schedule, as opposed to the JD students, who end up cross-registering for Portuguese or Modern Yoga in their third year, just to fill out schedules already padded with classes that have no hope of being interesting but at least the professor does not take attendance. Your course guides will include many classes not offered in this, or any, academic year, only listed because once, in 1892, a professor thought he might offer it one day, but never did. Note that any class that sounds truly compelling will have filled up long before you get a chance to register, and the ones you are left with, although you may blame the professor's incoherence on your non-native English skills, there'll actually be no one in the room who knows what the heck he's saying. So don't worry -- even if you failed the TOEFL, you'll still be on equal footing.

1.3 How Much Do Things Cost?

Too much! Your textbooks will cost approximately $1/page, your classes will cost $1/second, and your breakfast cereal will cost $1/flake. No, it's not really that bad. But if you're from a country where things are relatively cheap, plan to spend as much in a day here as you would in a month there, plus tax and gratuity. Housing will set you back about $2/square foot/month, which is why the law school dorms are just $4/month. Cafeteria food will seem reasonably priced until you just vomit it all up every afternoon and realize you're not getting good value. Library fines are exorbitant -- your best bet is probably just to avoid the library at all costs.

1.4 Where Will I Be Living?

Many students live in Harvard Square, under park benches. This would be more reasonable if it wasn't winter all year long ("Winter All Year Long" is also the name of the school's theme song, which can be found on the upcoming CD, "A Cappella Music For The Hearing Impaired," available from a retailer near you). Apartments vary in cost from "Are you kidding me?" to "Can I please file for bankrupcty?" The farther away you live from campus, the cheaper your rent. Some students choose, therefore, to live in Vermont (where the new theme song, incidentally, is "Thought We'd Finally Get Some National Press By Sending A Man To The White House, But Guess Not," which can be found on the upcoming CD, "Campaign Songs for Campaigns That Never Took Off," also featuring Gary Hart's hit, "The Press Can Keep An Eye On Me -- Oh Wait, No, Oops").

1.5 What Will I Be Eating?

Food as interpreted by Cambridge restaurants will be largely unfamiliar to you, regardless of your country of origin. Burrito = Egg Roll = Blintz = Cardboard Toilet Paper Roll. Indistinguishable. For real ethnic cuisine, you'll have to cook it yourself in the well-appointed dormitory kitchens, which contain a dirty pot, a broken stove, and a wooden mallet. Just like home! Don't expect to find anything delicious anywhere; you'll have to subsist on greasy pizza and fragrant potpourri.

1.6 How Will I Get Around?

Rickshaw. No, not really. You'll wander the beautiful streets of Cambridge, and get lost among the CVS pharmacies and Fleet Banks, which appear on every corner. If you bring a car, you're just being silly. There's nowhere to park, and no one is Boston observes traffic laws. In addition, the corrupt local government means that no one who runs you over will ever be punished, unless you're Irish. Sorry.

1.7 What Things Will I Have To Buy?

Prostitutes. Have you seen your fellow students?? No. I'm kidding. That was a cheap joke, and not true at all. Jokes are the only thing cheap here in Cambridge. You'll need to buy soap and deodorant, unless you're French. You'll need to buy a gun, because this is America, and all Americans carry firearms on them at all times. And you'll need to buy earplugs, unless you enjoy the sound of trucks rolling by outside your window.

1.8 What Is It Like Finding A Job After Graduation?

About the same as it was like before you got here. Did you really think a year at Harvard was going to open doors for you? Come on. Law firms want fresh, young American meat, not someone who comes to this country with well-developed notions of justice and fairness, and a sense that people shouldn't work 100 hours a week to support their greedy, hedonistic lifestyles. Silly LLMs!

Enjoy your time at law school!

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Fowler: What I Didn't Learn In Law School

Scheherazade Fowler is a third-year lawyer practicing in Portland, Maine. She writes about law (and life) at Stay of Execution.-Ed.

There's a lot I didn't learn in law school. I didn't learn much about property or anything at all about domestic relations or trusts or land transactions. Nor anything about international law or trial practice. Administrative law, nope, jurisprudence, nope, antitrust, environmental law, not those either, nor any number of potentially useful subjects. But most of that stuff I never particularly wanted to know, and although I may have an occasional curiosity now and then I don't really stay up late cursing my law professors for the knowledge they failed to shove down my uninterested throat when I was a student.

But, you know, when I started out at my law firm, all newly-admitted and shiny-smart with my summa cum laude diploma, I don't think I realized how very stupid I would feel, daily, for the next three years (and counting). Because, at least for me, the hard part isn't the book learning identification: issue-rule-analogous cases-analysis-conclusion. Or the writing or the research. The hard part is the miscellaneous administrivia that I came out of law school totally unaware I needed to manage, and the daily people and time management skills I needed to develop to get things done. I'm working on it but boy oh boy, it's not anything my success in school gave me any particular insight into, and if there was a Gilbert’s or a Nutshell on “Acting Like You Have Your Act Together Like Real Lawyers Do” I missed it in the library.

Like, when I got to my law firm I got my desk and my stapler and computer and all my passwords and then was introduced to my assistant. Assistant. Right. What the heck does my assistant do? Everyone expects you to sort of know this stuff. Worse, your assistant expects you to know this stuff and to know answers to questions like, "How do you like your litigation files handled?" or "How do you like to do your billing slips?" or even "When do you like to look at your mail?" And, if you're me, you are still trying to pretend that you are smart and prepared to do this job they've hired you to do and you don't want to say, "I don't understand a word you are saying to me right now." And you fumble through that situation and feel like a fraud and then you know your assistant is on to you as a fraud (or, potentially worse, is NOT on to you and will continue to ask you mysterious questions like these and expect you to answer sensibly), and you've got to figure out how to make her your ally without completely losing any respect and authority you think you might be entitled to. Which is, well, you're not sure how much authority or respect you are really to be accorded. Like, can you ask your assistant to send a fax for you or will she bite your head off if you do? Who's the person who puts toner in the printer if you print something and you're in a hurry and it's out of toner and you can't figure the damn thing out and should you be billing the client for the time you're spending poking at the damn printer and looking desperately around the hallway wondering whose job this is anyway and if you can't bill the client for this time (and how can you, in good faith?) will you look like a chump and a slacker for this .4 of an hour of unbilled time or however long it is taking you to deal with this thing that isn't really your job, or is it? Geez. This is hard. Even if you graduated summa cum laude. Especially if you're trying to impress people and act all suave about this whole practicing law gig and not show just how completely clueless you really are. Can't someone just put me in the law library and ask me complicated hypotheticals like they did on the exams?

And there will inevitably come a day when you've prepared something, some brilliant legal argument or at least competently prepared routine pleading, and you've checked it six times and it's been edited to death by all the mucky-mucks above you on the totem pole and you are all set with it and your assistant walks into your office and says, "Aren't you going to file a certificate of service?" or something equally unintelligible, that everyone knows gets prepared as a matter of course with this thing you just did, it's so obvious nobody bothered to tell you, and you think how the heck are you ever going to learn all this stuff?

Feel free send me the Nutshell if you’ve got it.

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Jensen: To L With 3L

Tony Jensen's practice emphasizes employment and related business litigation and counseling for executives and employers. Tony practices law at Gallo & Associates, a Los Angeles firm specializing in executive employment negotiation, employment rights enforcement, and commercial litigation. Tony is also admitted in New York, where he was formerly associated with the firm of Fried, Frank, Harris, Shriver & Jacobsen.-Ed.

While the ever-pragmatic B-schools mint MBA's in just two short years--and sometimes less--American law schools and the powers that accredit them cling to a third year requirement that does not serve the majority of students or the profession.

Now that many U.S. law schools have introduced innovation and reform in their first year curricula by emphasizing writing, smaller class-sizes, and "legal methods" type courses, isn't it time that law schools re-examined and revamped the 3L experience?

Alan Dershowitz once suggested (to no one in particular in the hallway on the way into an ethics class he gave a few years ago) that students who complete the second year should be given a choice: (1) Remain at law school for a third year to engage in serious master' thesis or dissertation level research and writing under the supervision of faculty or (2) Leave the academy and commence a full-time practical legal apprenticeship.

I was a 3L at the time and Professor Dershowitz' suggestion made sense to me. I, like many of my 3L classmates, had sensed a steep drop-off in the learning curve during the third year. And 3L's were, in large number, no longer interested in turning up the academic volume. For many, the recruiting and job search process had been addressed and the pressure to make the best grades possible was gone. Low pressure led to low preparation and that led to low quality classes--this, in turn, encouraged low attendance. Much--though certainly not all--of my 3L academic experience was marked by this ebb in academic energy.

Certainly, there were "third year" writing requirements that, on the surface, would seem to have required focus and attention. But the requirement seemed to have been worked into the curriculum as a pesky afterthought. The writing requirement made a show of the school's concern with its students' writing, but was not something the school actually mounted any organized effort to administer. Consequently, I observed, many of my classmates devised and carried off plans for meeting the writing requirement that, shall we say, cannot be described as "serious." Many of the more serious writers (or those who had the diligence and/or good fortune to hit upon a topic of interest to some faculty member early on) had completed their third year writing requirement in the second year anyway.

One suspects at times that the 3L year is merely a shameless "fundraising" year for the law schools. Students must pony up another full year's tuition and living expenses and, indeed, many must simply borrow it all. When I graduated from law school in 1996, that meant about $35,000--today, the annual budget for students at competitive (and some not so competitive) law schools is significantly higher. For their money, these same third year students are retained in an academically lack-luster setting, while simultaneously accomplishing little in the way of professional growth. Students who avail themselves of clinical experiences to a meaningful extent, I acknowledge, do counteract this trend.

Law schools should look hard at creating two 3L routes: a "dissertation/research" track that would keep interested third years around to pursue scholarly angles on the law and a "practicum" track that would either graduate students early or free them to begin paid apprenticeships, in any geographic location, that would satisfy any remaining degree requirements. Or maybe 3L's should simply be given the added option of an early departure from law school coupled with a practical internship that culminates in the bar exam. Too many 3L's are just marking time-serving no clients, serving no law firm, making no money, and making no knowledge. We can't blame 3L's for their torpor-they need the degree. But three years of the law classroom is a long time. Law is an applied humanity.

Our current 3L system too often warehouses talented third years and shelters them from the practical realities of law practice. Why, for instance, aren't 3L's at most "better" law schools given access to courses on the nuts and bolts of state procedure in the jurisdictions in which they plan to practice?

To 'ell with 3L? Maybe not. But the current 3L format should now command the attention and creativity of talented faculty and administrators at our top law schools.

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The Grading of Young Lawyers

Every 1-L quickly learns that when you first enter law school, there’s absolutely no escaping a great deluge of advice. In my first year I quickly noticed two recurring themes in the advice: (1) welcome to the place where grades mean everything—not “everything” to your overachieving undergrad ego, but “everything” as in your career, stature, intrinsic worth; and (2) don’t worry about grades; everyone gets a B, except that one guy who’s adversely possessed his own table in the library and that other guy who drinks beer in class. This is all to suggest that shared wisdom about grades appears to be ambivalent. And it turns out that a similar ambivalence can be found in the administration of grades.

Should it be obvious which of the two themes is the more sensible advice? Isn’t it true that, besides the LSAT, the GPA accounts for more filing of law students into the various strata of the legal profession than any other factor? For starters, it’s fairly obvious that the legal industry is largely a prestige-mongering culture. Consider clerkships and jobs at big, reputable firms—employers don’t even feign indifference to grades. Even graduates of the most prestigious law schools have plenty left to compete for because their targets are correspondingly elite. The U.S. Supreme Court, for instance, typically recruits clerks who graduate at or near the very top of their classes from a handful of the best law schools.

So if grades generally determine who sits where in the great legal meritocracy, they must actually mean something, right? At the extremes, they probably mean a lot. I, for one, don’t doubt that the person with the single highest GPA at my law school exceeds the rest of us in some combination of (a) astuteness of legal thinking, (b) willingness to put up with long hours of work, and (c) sleeping with his / her professors. The reverse is probably true for the student with the single lowest GPA. I am not, however, confident that such factors (well, the first two at least) reliably account for grade differences at the center of the curve. Somewhere between the curve’s center and its extremes, legitimate reasons for earning good grades become factors weak enough to raise concern. I suspect that law school grades—while certainly informative—do not adequately reflect the student qualities that drive employment decisions—qualities like work ethic, intelligence, and a generalized ability to succeed.

Although I’m amused to hear students claim that professors simply throw a pile of exams down a stairwell and give As to the ones that fall farthest, the myth of arbitrariness is surely exaggerated. A measure of arbitrariness will inevitably inform most judgments of merit to the extent that achievement requires no mastery of mathematics. Legal education, however, presents a special problem beyond the inevitably arbitrary, for reasons Professor Solum mentioned in this symposium:

    [L]egal academics do not share a core set of disciplinary assumptions and research methods. Historians are trained to immerse themselves in the original materials—the archives, records, pamphlets, and diaries. Sociologists are trained to do both survey and experimental research. Economists are trained to use a set of mathematical techniques. But what do academic lawyers know how to do? What do law schools teach? … The answer to this question is up for grabs, in this post-formalist, post-realist, interdisciplinary era.

The obvious counterpart is that what students are expected to learn—and how they are expected to demonstrate learning—is up for grabs too. And that’s what makes being a law student wonderful, at times. I wouldn’t dare suggest that law schools normalize their pedagogy. Instead, law professors should more carefully examine the considerable challenges facing students who must not only learn the law, but learn each professor’s peculiar vision of the law, each professor’s unique and often unshared theoretical assumptions. Misunderstanding these assumptions could easily be the difference between an “A” and a “C”—a misunderstanding that may reflect a student’s mind-reading prowess, but little of the student’s legal potential.

Some, but not enough, law professors explicitly define their vision of the law to the classroom, and use substantial class time to address the nature of that vision itself, not only its application to case materials. The best law professor I have had took the extra step and explained what, according to his vision of the law, constituted meritorious legal thinking. I suspect that such an explanation is often lacking from classrooms where “there’s no right answer” is so commonly intoned.

There is no way to fix the inherent malleability of the law, or to eliminate the element of unavoidable arbitrariness in grading. But there is at least a partial solution, which requires putting students on explicit notice. While class time is a great opportunity for that, the exam should be the principle focus of efforts to explicitly communicate standards of merit. A question on my exam for torts—a class almost exclusively devoted to “policy arguments,”—asked us to “explain the justice” of spreading liability among the twelve negligent cartoons who blew each other up. The professor wants to hear “policy arguments,” I guessed, because “justice” is a concept of legal and moral theory. The grading key guessed otherwise: the professor was looking for ordinary, formal application of the Restatement.

Although I have no way of knowing how often exams are ambiguously drafted, anecdotes seem to abound. I doubt much good would come of advancing a new set of standards for writing exams, and I’m not sure that such would be pedagogically wise. What I’d like to see is a system—or at least a culture—of peer review over exam drafting. According to this proposal, professors would draft their exams, then hand them over to a couple of colleagues with similar specializations. The colleagues would take the exams as if they were students, and then have the drafting professor grade them. Discussion and revision would ensue, hopefully producing clearer, more correct, and fairer tests for students to take. It’s likely that some professors already put their exams through a similar process, but only widespread practice could hope to restore student confidence in the “justice” of grading.

A cursory review of any law school’s penal sanctions for cheating should convince you that the school’s administration takes grades very seriously. So do students, so do employers, and so, by proxy, do clients. Professors and administrators need to more carefully investigate failures of communication that cause avoidable unfairness in grading. They owe it to students, to employers, and to the integrity of the profession.

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Schaeffer: Complications Mar The Law School Birthing Process

Evan Schaeffer, a lawyer and writer from Illinois, devotes most of his blogging energies to Notes from the (Legal) Underground.-Ed.

Consider the newly created law school graduate, entering the legal marketplace for the first time. He’s fragile, sensitive, easily startled; he’s as naked as a newborn baby. Sitting down in his new office for the first time, he looks around and sees nothing but “one great blooming, buzzing confusion.” Despite a three year birthing process, he has only the foggiest notion of how to function as a real-life lawyer. He’d like to try to crawl, but he doesn’t know how. He’d like to wave his arms, to sit, to stand. He’d like to communicate. Yet each time he opens his mouth, he emits nothing but the legal equivalent of tiny little burps. Each of these utterances is greeted by his new nurturers with knowing smiles; every so often, his utterances are greeted with great peals of laughter.

It doesn’t seem fair, does it? Here we have someone who has just spent three tremendously difficult years to obtain a law degree. He enters the legal marketplace nearly broke, or even worse than broke; his head is filled with rules he doesn’t need; he’s unable to turn his law degree into money, except by joining a law firm. The failure of his law school to give him real-life, practical know-how has resulted in a complete dependence on others to help him grow into a lawyer. Wasn’t that what he was paying to learn?

I submit that something has gone horribly wrong with the delivery. But let’s abandon the metaphor. Assuming there is at least a little truth in these paragraphs, consider how outrageous it is. A failure on the part of law schools to impart practical legal knowledge to law students has created an over-dependence on law firms, the bigger the better. It’s nothing more than an economic reality: law school debt must be repaid; the larger the firm, the larger the salary. Besides, there aren’t a lot of options to law firms, since any option requiring real knowledge of the ins and outs of practical lawyering is off the table. (By practical lawyering, I mean knowing how to put an arm around a client and get him from Point A to Point B. Or to put it more crassly, knowing how to take a law license and turn it into cash.)

Law schools are justifiably renowned for teaching students to “spot issues” and “find the applicable legal rule.” But very rarely do law schools teach much about practical lawyering. Often the professors themselves don’t have the knowledge. Examples: How often do law students learn how issue-spotting and legal-rule-identifying might actually be used to help a living human being solve a legal problem? Or learn how to market one’s knowledge to get clients? Or how to identify and fill a niche? Or how to employ others to assist in the venture? Due to a failure to teach practical lawyering, a number of options are off the table at graduation. Few are brave enough these days to start a new firm from scratch—what used to be called “hanging out a shingle.” Many would like to work in-house at a corporation or join a small law firm that boasts greater freedom and flexibility than a large one, but these potential employers rightly balk at the thought of hiring “lawyers” whose education is not yet complete.

So that’s where we’re at: the law schools leave a huge chunk of a new lawyer’s education to the large law firms, which are economically structured to recoup the costs of completing the educational process for new law graduates. Is this such a bad thing? For many, yes. Some don’t have personalities suited to the regimented nature of law firm life. Others may not be strong enough to reject the “golden handcuffs” that the large firms invariably offer; knowing this in advance, a new graduate may desire to skip the big firm experience altogether to avoid the temptation. And what about the law school graduates who can’t land a job at all? For these unlucky citizens, law school is even a greater tragedy: they’ve obtained a law degree at great expense, but have nothing to do with it and no access to the second phase of their training.

Are there solutions to these problems? They begin with more practical, hands-on, real-life training for law students during law school. Not elective-type “fun” classes, but classes involving hard work and real practical experience with real clients and real lawyer mentors. A more radical solution would be to change the nature of the third year of law school altogether. Don’t many already consider it wasted? Turn the third year into an opportunity for a yearlong apprenticeship with actual lawyers under the umbrella of the law schools; the law schools would function in the role of ombudsman, facilitating the communication between the law students and their firms. (A few states offer avenues to legal practice through apprenticeships, but not always under the tutelage of law schools.)

Would practicing lawyers want to assist in training students who will possibly be competing with them in a year? In short, yes: they do it already every time they hire a new graduate. I think many lawyers would welcome a return to an apprenticeship-type system, either out of respect for the traditions of the profession or because having a law school apprentice would serve an important need at their firms. If this sort of thing works, it might even be possible to cut out the middleman altogether: law school for two years, plus a year-long apprenticeship, then the bar exam.

I’m aware that many law schools already recognize the value of hands-on legal experience. But more is needed, sooner rather than later.

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March 15, 2004

Today / March 16

This Date In Legal History: March 16, 1994 -- Tonya Harding pleads guilty to conspiracy to hinder prosecution for trying to cover-up an attack on figure skating rival Nancy Kerrigan. Also, James Madison turns 253 today!

Posted by Jeremy Blachman at 11:44 PM | Comments (0) | TrackBack

Day One: Thinking Like A Lawyer

Welcome to De Novo!

After the end of our former group blog, En Banc, the four of us were eager to start something new, but we wanted to take advantage of the chance to start fresh by thinking about what the legal blogosphere was missing and what we might be able to offer that would excite us—and excite our readers. This new venture will in some ways be very much like the old one—the thoughts and perspectives of three law students and one law student-to-be on politics, law, and whatever else catches our fancy. In addition, however, we've come up with the idea of a continuing series of symposia—a chance for guest contributors, as well as for us, to write about and discuss some relevant legal issues on people's minds. We hope each symposium will bring together the thoughts of professors, practitioners, students, and readers in a way that nothing else we've seen has done, and provide a reason for you to link and visit often. Assuming all goes well, we plan on doing this regularly, perhaps twice a month.

We're launching with an inaugural De Novo symposium, "Perspectives on Legal Education." This event will bring together the perspectives of professors, practitioners (and other law school graduates, including those in the judiciary —Ed.), law students, and pre-law students on "thinking like a lawyer" (today), "entering the profession" (tomorrow), and "being a student" (Wednesday). Be sure to return and check them out! We owe a deep debt of gratitude to our guest contributors, whose essays we think you'll really enjoy.

Today we bring you the following four essays on the topic of "Thinking Like A Lawyer":

Howard Bashman, "To Think Like A Lawyer"

Prof. Douglas Berman, "It Depends"

Prof. Lawrence Solum, "What Do Law Schools Teach?"

Prof. Eugene Volokh, "Writing to Think Like a Lawyer"

Read and enjoy, but most importantly, discuss! We're excited at the prospect of using the symposium idea to really start a dialogue among all of us. We encourage readers to respond in the comments section (Concur/Dissent—aren't we clever?), but we also welcome more lengthy responses submitted via e-mail to be considered for posting. Also, if there's something important about legal education that no one here has said, feel free and encouraged to write something up and send it our way.

Some future symposium topics we're considering include Law & the Internet, Free Speech & Obscenity, and Civil Disobedience. We're eager for more ideas, so please comment or e-mail us with additional topics suitable for a future symposium, suggestions about the concept, or any other feedback you may have.

Again, welcome to De Novo. We hope you enjoy.

Chris, Jeremy, Nick, & PG

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Bashman: To Think Like A Lawyer

Howard J. Bashman is an appellate attorney living in the Philadelphia area. He maintains How Appealing, “the Web’s first blog devoted to appellate litigation.” – Ed.

Once upon a time, to become a lawyer in the United States one would “read law.” I’m not precisely sure what that entailed, but it probably involved working as an assistant to a practicing lawyer and learning first-hand how the practice of law is conducted. Long ago, the process of internship and “reading law” that once sufficed to confer admission into the practice of law was abolished in favor of attending law school.

The Nation’s first law school was founded more than 200 years ago. Certainly much has changed since then in the way the law is taught. But as time has passed, one criticism of formal legal education in this country has grown louder -- law schools fail to teach students the skills they need to engage in the practice law. Instead, law schools tend to focus on teaching students “how to think like a lawyer.”

What does it mean “to think like a lawyer”? Are you thinking like a lawyer if, upon entering into a McDonald’s restaurant, you note many high-fat menu offerings, observe several obese customers, and then an endless parade of dollar signs begins to flow through your mind? Perhaps. But thinking like a lawyer, most law professors would say, involves spotting legal issues from a complicated fact setting. Spotting issues remains important in the practice of law, but much more important is understanding how best to help clients solve the problems they present and how best to achieve the goals that they desire.

Because most law schools do nothing to ensure that graduates are equipped with the skills necessary to engage in the practice of law, in one respect little has changed from the apprentice system of yesteryear. As in the past, today lawyers fresh out of law school typically must work for more experienced lawyers to learn the skills necessary to engage in the actual practice of law.

My criticism of law schools extends beyond their failure to teach law students how to be lawyers. As recent news coverage reminds us, too many lawyers cannot draft an intelligible sentence. In theory, law schools should not be where students finally learn to write, but in practice it is often the last hope in that regard.

Beyond ensuring that new lawyers possess the nuts and bolts necessary to serve clients, it would be wonderful if law schools could impart to graduates healthy doses of common sense and good judgment. Some lawyers bring lawsuits (visit here for some examples) that justifiably cause the general public to view the legal profession with contempt. And it is difficult to defend the state-sponsored monopoly that is the legal profession when lawyers are able to line their pockets with millions and billions of dollars in fees by unfairly capitalizing on the injuries and suffering of their clients. Am I suggesting that many lawyers are paid far too much? Indeed I am.

Nevertheless, the documents on which this Nation was founded entrust lawyers and the legal system with the power to take away a person’s property, liberty, and even life. And that same legal system allows lawyers to recover compensation for clients who have been injured or wronged, to gain the freedom of wrongfully imprisoned individuals, and to achieve release from death row for convicted criminals who do not lawfully belong there. Also, people ought not overlook the significant contributions to a better Nation that the legal profession has delivered, including most notably the ruling fifty years ago in Brown v. Board of Education abolishing the practice of legalized racial segregation in the United States.

As with so much in life, what one gets out of law school depends directly on what one brings into it. I was one of those rare people who really enjoyed law school and who also happened to do quite well academically while there. Also, appellate litigation, which has always been the central focus of my practice, is one of the very few practice areas for which law school actually provides nearly adequate training.

Law schools should continue to focus on teaching students how to think like lawyers, but law schools should disavow disdain for teaching students the skills that they will need to possess after graduation in order to engage in the actual practice of law. No one holds medical schools in disdain for teaching doctors how to care for their clients. Indeed, we wouldn’t settle for anything less. The same can and should be true of law schools.

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Berman: It Depends

Douglas Berman is an Associate Professor of Law at the Ohio State University Moritz College of Law, where his areas of concentration are criminal law and criminal sentencing, as well as intellectual property. – Ed.

Sometime during the first week of classes, a one-L will raise her hand in my Criminal Law course and ask a particularly thoughtful question, which allows me to explain that all good law school questions have one particularly thoughtful answer: "It depends." More good questions inevitably follow, and I inevitably start my answers, "Well, it depends on . . . ." Before too long, students will start prefacing questions with "I know the answer is 'it depends,' but . . . ." At this point, I've earned my paycheck. Though I like to believe I have a lot to teach my students, I feel my most important job is to help students appreciate that "it depends" is not just my mantra, but a credo for being an effective lawyer.

I fully ascribe to the (now cliche) view that a law school's goal is to teach students to "think like a lawyer." But for me this means not just teaching students to recognize, understand and respond effectively to legal issues and problems. Even more critical is helping smart and capable people appreciate all the complexities (and thus all the possibilities) that attend even seemingly simple legal concepts and questions.

Many law students often believe and perhaps hope that the law provides clear-cut, black-or-white answers. But astute and sophisticated lawyers understand that all serious legal issues have many dimensions and inevitably involve many shades of gray. (As I like to tell my students, Bill Gates would have long ago developed a computer program to put lawyers out of business if the law was just a technical trade in which formal rules always governed outcomes.) By helping students discover that there are rarely easy or certain answers to difficult legal questions, and then pushing students to think hard and dynamically about what good answers depend upon, I hope to broaden intellectual horizons and enable students to gain a sophisticated understanding and appreciation of all the forces at work and the interests at stake in important legal and social issues.

My fields of specialty -- criminal law in general, criminal sentencing in particular -- especially drive my philosophy. Sophisticated, responsible and balanced dialogue is often lacking in the social discourse about matters of crime and punishment; we see all too often from politicians and pundits an apparent ignorance of, or an unwillingness to struggle with, the many nuanced philosophical and practical issues that are inherent to the field of criminal justice. My hope is that, by helping students astutely look through (the often opaque) legal doctrines and policies to perceive all the factors on which hard questions depend, I better enable them to contribute effectively to public and private legal dialogues in ways that are clear, cogent, honest, and full of real meaning. And I particularly try to make sure that students appreciate, no matter what specific field they pursue, that this is one of their main obligations as lawyers.

Does law school in general, and my teaching in particular, achieve these goals? It depends.

Posted by Guest Contributor at 12:07 AM | Comments (6) | TrackBack

Solum: What do law schools teach?

Lawrence Solum is a Professor of Law at the University of San Diego, where his areas of concentration are procedure, technology law and policy, and philosophy of law. He maintains the Legal Theory Blog, as well as the associated Legal Theory Lexicon. –Ed.

Last week I had dinner with a very prominent lawyer. He graduated from a top-ten law school, argues cases before the California Supreme Court, and has served as the President of an important bar association. The conversation turned to legal education. I offered the opinion that his law school had been known for a lawyer-focused legal education. He expressed surprise, “Not when I was there,” a period that is now a good many years in the past. As the conversation progressed, we discovered that the curriculum that I thought was lawyer-focused—an emphasis on legal doctrine and traditional courses from torts to federal jurisdiction—was the very same curriculum that he thought was highly theoretical. He looked at the traditional curriculum and noted the absence of skills courses and clinical offerings. I looked at the same curriculum and noted the absence of interdisciplinary and theory offerings.

A few weeks before I was at another dinner, this one with a very prominent legal academic. She has held tenured positions at more than one top-ten school and currently holds one of the most prestigious (and well-supported) chairs in all of legal academics. The conversation turned to the state of the legal academy, and she made the point that her colleagues from other disciplines in the Law and Society movement frequently make the arguments that legal academics “have no discipline.” What she meant was the legal academics do not share a core set of disciplinary assumptions and research methods. Historians are trained to immerse themselves in the original materials—the archives, records, pamphlets, and diaries. Sociologists are trained to do both survey and experimental research. Economists are trained to use a set of mathematical techniques. But what do academic lawyers know how to do? What do law schools teach?

Once upon a time, there was a standard answer to these questions. Law schools were said to teach students “how to think like a lawyer” and legal academics were those who could think like a very smart, very knowledgeable, and somewhat theoretical lawyer. The standard answer has come under increasing pressure, both inside and outside of the legal academy. From inside the academy, the pressure comes from those who claim to be heir to legal realism. On the left, the critical legal studies movement advanced the indeterminacy thesis, arguing that thinking like a lawyer was a sham. And if all the law schools do is teach lawyers to put a thin veneer of legal mumbo-jumbo over arguments that are essentially political, then it is hardly clear that law students need three years of drilling to become sufficiently accomplished legal rhetoricians. From both the right and increasingly the left, the law and economics movement has argued that legal problems are economic problems. Because the law school curriculum rarely provides a systematic and rigorous introduction to economic methods, legal education fails for most students, especially for those who enter the legal academy without an advanced degree in economics. Legal philosophers, sociologists, and historians might offer similar critiques—although these perspectives speak more to preparation for the academy than to the training of practicing lawyers.

But as the legal academy has become more theoretical and more interdisciplinary, the bar has become increasingly worried about the relevance of a legal education at an elite law school to the practice of law. Although the vast majority of American law schools have curricula focused on doctrinal courses supplemented by skills and clinical offerings, it is now possible to graduate with high honors from a top law school without a deep knowledge and understanding of legal doctrine. At the extreme, some students graduate from a very prestigious law school with one semester of somewhat traditional doctrinal courses followed by five semesters dominated by seminars the titles of which read like a bibliography of the recent books and articles of the law school’s faculty.

What do law schools teach? The answer to this question is up for grabs, in this post-formalist, post-realist, interdisciplinary era. And the answer to the questions of what law schools should teach is intimately connected to a much bigger question, “What should the law become?” Some believe that the courts have been and should continue to be the battleground on which the great political issues of the day are resolved. Ultimately, the aim of legal education then would be to produce lawyers who will plan the litigation strategies that will transform society and produce the rhetoric that will empower sympathetic judges and confuse those who are not. And what about judges and academics? They too are warriors, who wage the war with the opinion or the article, rather than the brief or the motion. This is a frightening future—because law that is a battleground is unlikely to achieve the rule of law—the very great goods of predictability, certainty, and protection from arbitrary power that only formally constrained legal decision making can provide.

What should law schools teach? One of our possible futures is a neo-realist, neo-formalist world. In that world, law schools would continue to reach future lawyers, judges, and legal academics to “think like a lawyer,” but they would teach more than that. Legal formalism about rule application does not entail legal formalism about rule making. Quite the contrary. Law schools should teach doctrine and skills, but in a context that is deeply informed by legal theory, economics, political science, sociology, and philosophy. Lawyers have a discipline—the formal methods of legal reasoning and the legal hermeneutic. But because that discipline is not hermetically sealed, a legal education needs to develop a critical faculty and ability to learn that can cross disciplinary boundaries. Learning to think like a lawyer, in this neo-realist, neo-formalist age, means learning to think outside the rigid assumptions of particular disciplines. Learning to think like a lawyer is learning to think.

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Volokh: Writing to Think Like a Lawyer

Eugene Volokh is a professor of law at UCLA. He has recently published a guide for student writing, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers, an excerpt of which follows. Professor Volokh blogs regularly at The Volokh Conspiracy. –Ed.

For many students, writing a student article or seminar paper is one of the most challenging parts of their legal education. It's great training; first, writing is probably the most important skill that a lawyer must have, and, second, writing a student article also teaches one how to make and defend original legal proposals, something that lawyers sometimes have to do even in practice. But writing a serious scholarly work is also very hard to do, and law schools don't really spend much time preparing students to do it. This piece offers some advice about how to make sure that your legal proposals are as well thought through as possible.

Test Suites: A Tool for Making Your Student Article Sounder and More Persuasive

(from Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers)

When you’re making a prescriptive proposal (whether it’s a new statute, an interpretation of a statute, a constitutional rule, a common-law rule, a regulation, or an enforcement guideline), it’s often easy to get tunnel vision: You focus on the one situation that prompted you to write the piece—usually a situation about which you feel deeply—and ignore other scenarios to which your proposal might apply. And this can lead you to make proposals that, on closer examination, prove to be unsound.

For instance, say you’re outraged by the government’s funding childbirths but not abortions. You might therefore propose a new rule that “if the government funds the nonexercise of a constitutional right, then the government must also fund the exercise of the right”; or you might simply propose that “if the government funds childbirth, it must fund abortions,” and give the more general claim as a justification. But you might not think about the consequences of this general claim—when the government funds public school education, it would also have to fund private school education (since that’s also a constitutional right), and when it funds anti-drug speech, it might also have to fund pro-drug speech.

Your argument, at least at its initial level of generality, is thus probably wrong or at least incomplete. But the focus on your one core case keeps you from seeing the error.

One way to fight these errors is a device borrowed from computer programming: the test suite. A test suite is a set of cases that programmers enter into their programs to see whether the results look right. A test suite for a calculator program might contain the following test cases, among many others:

1. Check that 2+2 yields 4.
2. Check that 3-1 yields 2.
3. Check that 1-3 yields -2 (because the program might work differently with positive numbers than with nega­tive ones).
4. Check that 1/0 yields an error message.

If all the test cases yield the correct result, then the programmer can have some confidence that the program works. If one test yields the wrong result, then the programmer sees the need to fix the program—not throw it out, but improve it. Such test suites are a fundamental part of sound software design. Before going into law, for instance, I wrote a computer program that had 140,000 lines of code, and 50,000 lines of test suites.

You can use a similar approach for testing legal proposals. Before you commit yourself to a particular proposal, you should design a test suite containing various cases to which your proposal might apply.

Assume, for instance, that you are upset by peyote bans that interfere with some American Indian religions. The government has no business, you want to argue, imposing such paternalistic laws on religious observers. You should design a set of test cases involving requests for religious exemptions from many different kinds of paternalistic laws, for instance:

1. requests for religious exemptions from assisted suicide bans, sought by a doctor who wants to help a dying patient die, or by the patient who wants a doctor’s help;
2. requests for religious exemptions from assisted suicide bans, sought by someone who wants to help physically healthy fellow cult members commit suicide;
3. requests for religious exemptions from bans on the drinking of strychnine (an example of extremely dangerous behavior);
4. requests for religious exemptions from bans on the handling of poisonous snakes (an example of less dangerous behavior);
5. requests for religious exemptions from bans on riding motorcycles without a helmet (an example of less dangerous behavior, but one that—unlike in examples 3 and 4—many nonreligious people want to engage in).

Then, once you design a proposed rule, you should test it by applying it to all these cases and seeing what results the proposal reaches.

What you might find by testing your proposals

What information can this testing provide?

1. Error: You might find that the proposal reaches results that even you yourself think are wrong. For instance, suppose that the proposal is that religious objectors should always get exemptions from paternalistic laws. Thinking about test case 2 might lead you to conclude that religious objectors should not be allowed to help physically healthy people commit suicide. The proposed rule, then, would be unsound. What can you do about this?

a. You might think that the proposal yielded the wrong result because it didn’t take into account countervailing concerns that may be present in some cases—for instance, the special need to prevent a voluntarily assumed near-certainty of death or extremely grave injury, rather than just a remote risk of harm. If this is so, you could modify the proposed test, for instance by limiting its scope (for example, by adding an exception for harms that are likely to be immediate, grave, and irreversible).
b. Another possibility is that the insight which led you to suggest the proposal—in our example, the belief that there should be a religious exemption from peyote laws—is better explained by a different rule. For instance, as you think through the test cases, you might conclude that your real objection to the peyote ban is that it’s factually unjustified (because peyote isn’t that harmful), and not that it’s paternalistic. You might then substitute a new rule: courts should allow religious exemptions from a law when they find that the religious practice doesn’t cause any harm, whether or not the law is paternalistic.

2. Vagueness: You might find that the proposal is unacceptably vague. Say that the proposal was that religious objectors should be exempted from paternalistic laws when “the objectors’ interest in practicing their religion outweighs the government’s interest in protecting people against themselves.” In the peyote case, this proposal might have satisfied you, because it was clear to you that the government’s interest in protecting people against peyote abuse was so weak. But as you apply the proposal to the other cases, you might find that the proposal provides far too little guidance to courts—and might therefore lead to results you dislike. This could be a signal for you to clarify the proposal.

3. Surprise: You might find that the proposal reaches a result that you at first think is wrong, but then realize is right. For instance, before applying the proposal to the test suite, you might have assumed that religious objectors shouldn’t get exemptions from assisted suicide bans. But after you think more about this test case in light of your proposal, you might conclude that your intuition about assisted suicide was mistaken.
You should keep this finding in mind, and discuss it in the article: It may help you show the value of your claim, because it shows that the proposal yields counterintuitive but sound results.

4. Confirmation: You might find that the proposal precisely fits the results that you think are proper. This should make you more confident of the proposal’s soundness; and it would also provide some examples that you can use in the article to illustrate the proposal’s soundness.

Developing the test suite

How can you identify good items for your test suites? Here are a few suggestions:

1. Identify what needs to be tested. The test suite is supposed to test the proposed legal principle on which the claim is based. Sometimes, the claim is itself the principle: For instance, if the proposal is that “the proper rule for evaluating requests for religious exemptions from paternalistic laws is [such-and-such],” you would need a set of several cases to which this rule can be applied.
But sometimes the claim is just an application of the principle; for instance, the claim that “religious exemption requests from peyote laws should be granted” probably rests on a broader implicit principle that describes which exemption requests should be granted. If that’s so, then you should come up with a set of cases that test this underlying principle. One case should involve peyote bans but the others shouldn’t.
2. Each test case should be plausible: It should be the sort of situation that might actually happen. It’s good to base it on a real incident, whether one drawn from a reported court decision or a newspaper article. You need not precisely follow the real incident, and you may assume slightly different facts if necessary—the goal is to have the reader acknowledge that the case could happen the way it’s described, not that it necessarily has happened. But you should make sure that any alterations still leave the test case as realistic as possible.
3. The test suite should include the famous precedents in this field. This can help confirm for you and the readers that the proposal is consistent with those cases—or can help explain which famous cases would have to be reversed under the proposal.
4. At least some of the cases should be challenging for the proposal. You should identify cases where the proposal might lead to possibly unappealing results, and include them in the test suite. Skeptical readers, including your adviser, will think of these cases eventually. Identifying the hard cases early—and, if necessary, revising the proposal in light of them—is better than having to confront them later, when changing the paper will require much more work.
5. The test cases should differ from each other in relevant ways, since their role is to provide as broad a test for the claim as possible. If you are testing a claim about paternalistic laws, for instance, you shouldn’t just focus on various drug laws, or just on paternalistic laws aimed at protecting children. You should think of many different sorts of paternalistic laws, and choose one or two of each variety.
6. The cases should yield different results. For instance, if your proposed rule judges the constitutionality of a certain type of law, you should find some laws that you think should be found unconstitutional, some that you think should be found constitutional, and some whose constitutionality is a close question.
7. The cases should involve incidents or laws that appeal to as many different political perspectives as possible. Say that you are a liberal who wants to argue that the Free Speech Clause prohibits the government from funding viewpoint-based advocacy programs. You might have developed this view because you think the government shouldn’t be allowed to fund anti-abortion advocacy, and your proposal will indeed reach the result you prefer in that case.

But what about advocacy programs that liberals might favor, such as pro-recycling advocacy, or advertising campaigns promoting tolerance of homosexuals? It would help if the test suite included such cases, plus generally popular programs such as anti-drug advertising, or programs that even small-government libertarians might like, such as advocacy of respect for property rights (for instance, anti-graffiti advocacy). This wide variety of test cases will help show you whether the proposal is indeed sound across the board, or whether even you yourself would, on reflection, oppose it.

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March 14, 2004

Today / March 15

This Date In Legal History: March 15, 1991 -- Four Los Angeles, California police officers are indicted for the videotaped March 3rd beating of Rodney King. Also, it's Fabio's birthday!

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Today 3.14.04

This day in Legal History: "On March 14, 1964, nightclub owner Jack Ruby was convicted of the murder of Lee Harvey Oswald, who had presumably assassinated President John F. Kennedy on November 22, 1963."

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March 13, 2004

Today / March 13

This Date In Legal History: March 13, 1991 -- The United States Justice Department annouces that Exxon has agreed to pay $1 billion for the clean-up of the Exxon Valdez oil spill in Alaska.

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