Frequent Citations

The Obligatory Whither Now? Post

Lots of law school bloggers find themselves wondering, whither now? Do we keep blogging when we can no longer complain about professors? Is there much point to blogging when we can't say one word about work, which will consume 110% of our waking hours?

I started this blog to keep my family apprised of my continued existence while buried in the non-stop fun and games that is law school. I don't see my life becoming less hectic, even if it becomes less share-able.

One of the main benefits of the blog for me has been the way it forced me to look up from my mound of work sometimes and find something else to say about life. Whether it was noticing that the trees were, in fact, blooming again, or ranting about some current event, I would occasionally break out of the law school mind set and that was good for me.

So for the moment I think I'll continue. I'll regale you with the thrills of my Bar preparation adventures, agonize over the unsold status of our flat, keep you up to speed on our progress to the new and improved location.

Bonus picture: GirlChild's wall pocket with a flower.

Knowledge Is Power

So keep an eye on Congress. I stumbled upon this site while doing research for my paper on doing research. Oy. But it's a great little site, much more user-friendly than the government's own sites. Plus, it has pictures! Seriously, when you look up a floor debate it puts pictures by the Senators' speeches--how cool is that?

Who are you calling a dork?

Curious Queue

After a mandatory period of brainless post-exam mucking about I sat down to work on a piece for a professor. He had sent it to me some time ago and I had started it, but not finished it. So I did that (it was quite good and fun to comment on) and then, being constitutionally (heh) unable to turn off my computer without checking headlines and maybe a blog or two, I clicked over to the Volokh Conspiracy.

It often has interesting posts. It's on the libertarian/law & econ-y side of things, mostly, where hotshot young professor types often write. For some reason I glanced over to the side where it listed contributors. And then I looked again. There were almost no women.

See, it's the little things. Here's an article that just came through, saying the same thing in a different context.

I'm not big on despising or disparaging housewives. Some of my favorite people are housewives. I was one, a veritable Suzy Homemaker (on my good days).

But the pervasiveness of the second-tier status is maddening. Most of the time I can ignore it because in my day to day life I don't feel much affected by it--but I am. We all are. I know the school is struggling to hire more women professors, and BIGLAW is struggling to hold onto women lawyers. But are they also struggling to promote them? To make sure that the slings and arrows we feel are only those of outrageous fortune, and not those of entrenched and thoughtless snubbing?

Let us take arms against a sea of troubles, and by opposing end them. Or at least toss a few snubs back.

The Great Writ At Guantanamo

Yesterday the Supreme Court heard a case tailor-made for a Con Law class. It is just bursting at the seams with all sorts of constitutional questions, ranging from what level of deference should be shown to the President (Is he acting with Congressional authority? Do we have Youngstown here? But what if Congress's authorization is, itself, unconstitutional? Ah, so puzzling!) to the grand-daddy question of them all: can anyone issue a writ of habeas corpus for the prisoners in Guantanamo?*

In other words: can the government throw you in a cell, not tell you why, and never give you a chance to say that you're the wrong person?

In Con Law speak: can the President and Congress between them strip the Supreme Court of its authority to hear common law habeas claims?

Because, you see, the habeas petition--the plea to a judge that you're the wrong person or innocent or whatever--is not just another legal phrase. It is The Central Element of our judicial system.  It is what keeps the government from throwing people (well, citizens anyway--according to Hamdi) into cells and leaving them there until they rot, without having to go through that tiring rigamarole of rounding up evidence, and letting people speak in their own defense, and so on.

So, will the Supreme Court give that up? It remains to be seen. Slate has an appropriately snarky essay on yesterday's arguments.

*Because Cuba not only won't, it can't. Cuba has no jurisdiction over Guantanamo, its courts cannot do a darn thing with any prisoner petitions. The only courts with jurisdiction are US courts. What I find particularly funny about the whole situation, because I have a sick sense of humor, is that the whole gimmick of trying to keep prisoners where the courts can't get at them has been tried before. Lord Clarendon tried it during the reign of Charles II. The English were not amused.

Chilling Young Speech

"I may not agree with what you say but I'll defend to the death your right to say it." Whatever my political leanings may be, I'm squarely behind this statement. So when the Bong Hits 4 Jesus case came out, I wasn't thrilled with the opinion.

First, the banner was pretty funny, and I'm against limiting humor of which we're already in short supply.

Second, while it makes sense to limit speech that actually, directly causes harm, what was being hurt by the banner besides people's sensibilities? I'm not buying the argument that the banner actively encouraged illegal drug use, sorry.* If someone thinks that sign is what makes a 15 year old turn to a life of drugs and crime, I suggest they look a little further for the causes.

Third, the decision chills speech at a most vulnerable time--not political parades, but the high school years. And now courts are taking the Bong Hits case and extending it. Extending limits on speech is just another way to say restricting speech, is it not? But my point here is not the extent of the restriction, but the damage it can do to our society by specifically targeting young people.

"Chilling speech" is a nifty little First Amendment term I've picked up, even though I won't take Con Law II (First Amendment) until next quarter. I love it because it so aptly describes what happens when certain types of speech aren't per se illegal--yet--but are mighty similar to types of speech that have been prohibited. When students are making banners to hold up at political parades or rallies (and we should be jumping up and down with glee that they might be so interested in civic matters that they would want to go to a political event) they're going to wonder now just how much trouble their anti-establishment slogan is going to bring them.

I am all about encouraging people to think. Please, give it a shot! But I want kids making banners to think about what they want to say, not what the party line is. I want them to push boundaries, so they figure out where they are and why they are there. I want them to challenge and provoke the rest of us because a society with no questions or controversy is a dead society. I want them to be free to say one thing one day and another thing another day until they figure out what the reactions are to their statements, the counterarguments to their positions, and develop their own core beliefs. I want them free to discuss, and make silly banners, because if you cannot do that when you are young, when can you?

Get them while they're young. It's a well-known and effective technique for training in anything. Start with young and malleable minds. We get them while they're young, due to compulsory schooling. Do we want to train them to speak only pre-approved messages, or do we want to train them to spell "for" correctly?  Do we chill all drug-related speech and inhibit debates about what is or isn't proper for Congress to regulate or what society should do about one of our largest industries? Do we chill violent speech and start arresting people for what they write in their diaries? (The answer to that in the 5th Circuit at least is yes.) Do we chill religious speech and make it harder for children to explore and understand their spiritual side? What will the cost of that chilling be to our future? If people don't learn to debate these issues when they are young and have no shortage of time or interest, why would they debate them when they are older and jaded and more worried about buying groceries than doing bong hits?

Let the young have their youth. Let them say silly or disturbing or even slanderous things, and let us argue back with superior reasoning, not with commands to shut up and sit down. Their freedom and willingness to speak is important to us all.

*And actually, I'm not sure that speech encouraging illegal activity should always be discouraged, because otherwise how would you ever get laws changed? See, for instance, laws against interracial marriage. And while I am taking no stance on the issue, there is a significant movement both within and without official government circles to legalize at least some drugs, as California already has. So... it's just not as simple as you'd think, is it?

Perilous Delusion

This opinion has one of the best dissents I have ever read, starting around page 38.

You might not expect high legal theory or biting sarcasm in a tax case, but oh boy would you be wrong.

Oh, and--the dissent is right on all counts, economic and otherwise.

Ambition, Anyone?

Are there any women out there in law school land who want to climb to the top? Who want to be Editor in Chief not for the fancy title, but because it will get her a superb clerkship and unlimited job opportunities? Who understand that any position on Law Review will open a whole lot of doors? Who want to parlay a JD into a political career? Who want to become professors of tax or corporations or antitrust? Who want to win?

Do women in law school land understand that not getting to know professors means the professors won't know them when it's time to make calls for clerkships? Do they know that professors can and will make those calls? And not just for clerkships, but for jobs?

They know there's a game, but do the women want to play it? Do they think they can play a different one? Do they think they'll win the same prizes by playing a different one?

I am extremely interested in the answers to these questions.  

Trial By Fire

My good friend and fellow blogger is going through the most horrendous nightmare. As a parent, it's hard to imagine a worse scenario. As a friend, it's terrible to see her and her husband suffer this way.

When I endured major and minor agonies, my mother would tell me they "build character." I think LL & JP have all the character they need. They are showing the most amazing courage and honor, all while worried out of their minds about their son. Although I wish I could do so much more, all I can do is stand by with comfort and my cell phone and, yes, call lawyers.

It is interesting, and not in a good way, but lawyers can be stymied by these delicate situations as much as anyone. We're 3Ls and we know we don't have a clue, but even experienced lawyers don't either unless they work in this particular field. The ones who do work in this field are amazing and I am full of respect for them.

The good news is that we had a conversation with one lawyer who was able to give us lots of information about how the process works, who can do what, and what good next moves might be. And we got the name of a lawyer who makes the agency and the hospital tremble. Now at least some of the uncertainty is gone,  and the phone number of the cavalry is at hand.

I Am the Rules and the Rules Are Me

Everyone's doing it:

YOU ARE RULE 11! You were designed to make sure that attorneys in
federal cases make reasonable inquiries into
fact and law before submitting pleadings,
motions, or other papers.  You were a real
hardass in 1983, when you snuffed out all legal
creativity from federal proceedings and
embarassed well-meaning but overzealous
attorneys.  You loosened up a bit in 1993, when
you began allowing plaintiffs to make
allegations in their complaints that are likely
to have evidenciary support after discovery,
and when you allowed a 21 day period for the
erring attorney to withdraw the errant motion.
Sure, you certainly won't get any brownie
points for being outgoing, but you keep things
on the up and up.  It's pretty clear that the
whole operation would fall apart without you
around.

Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

I may be Rule 15 instead, though. Although the part about the operation falling apart without me? Totally true.

Dancing with Interpretation

Warning: hideously long and dull post. I'd move along, if I were you. Go back and watch Men in Coats again.

All right, don't say I didn't warn you.

Elements of the Law: this is a survey course of various legal theories and opposing viewpoints. We look at Formalism and Realism, freedom of contract, rules and discretion, and, of course, statutory interpretation. It is this last section that is most driving me around the bend.

Naturally, in this bastion of Scalia fans, there are plenty of proponents of strict textual analysis. Looking at legislative history is verboten! Wrong! Useless! Worse than useless – misleading and full of false starts and red herrings! Uh huh.