Frequent Citations

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.

Thinking About Summer

Because Someone decided that 1L's do not have enough stress in their lives, the summer job hunting season opens at exactly the same time exam panic concern begins. Do I try to wrap my brain around Rule 12, or do I look up judges for an externship? Do I figure out what the arguments are for and against freedom of contract, or do I research firms in the area? Do I outline or do I talk to professors about research jobs?

Huh. I have a big glass of vodka and go to bed.

A few random observations:

The school's architecture is growing on me. I've been informed by a person who has good reason to know that when it was built, they cheapened it on the back end. Now they're gradually upgrading it to what it was meant to be, and I begin to see some of its charm. I still say it doesn't at all fit its surroundings, but it does have a certain appeal.

Collateral negligence is a big ball of fun.

I've given up on getting anything out of Civil Procedure class. I either can't hear what the professor is saying, or what is said doesn't make any sense. So, forget it. I'll go with the books and practice exams and hope for the best, but I'm not going to stress over class time any more. We have a different professor for the second half of it in Spring quarter.

I must find a way to see Harry Potter this weekend.

Depending on which professor you're talking to, Cardozo rocks and Holmes was brilliant but disturbed, or Holmes was disturbed but brilliant and Cardozo was a sophist. In case you were wondering about that. In my opinion, anyone who survives getting injured -- several times -- during the Civil War gets a pass on being disturbed.

GirlChild comes home next week! She will cook! Yay!

Erm. I have 2 different party invitations tonight. Plus Bar Review. The only solution may be to ditch them all.

And how are you? Everything good? I do still think about you, from time to time, in those fleeting moments when my mind drifts away from expectation damages and consideration.

Property Rights Gone Wild

This is why I can't wait to take Property. So much controversy! Exclusions, inclusions, occlusions.

Incidentally, thinking about the Esteemed Founder of Ave Maria Law School somehow irresistibly brings to my mind the word "megalomaniac." It has such a nice ring to it. Not that I wouldn't want to start a town where I got to set all the rules. Oh yeah.

Anybody want to join a pool on when the first porno mag is discovered? I pick 3 days. That's when it's discovered, not when it arrives. That happens immediately.

One other thing -- my completely uninformed guess as to why we all try to keep tabs on sex offenders (see the post I linked to above)  more than other felons comes down to two words: creepy recidivists.  We can all understand natural impulses such as murder and burglary -- or maybe we can't, but somehow they seem a sorry inevitability. But sex offenders, especially pedophiles, behave in a way that is completely beyond the comprehension of most of us. This is not a crime motivated by passion or greed, but by some sick twisted ick. (Ick is now a noun.) It's also a crime with an extraordinarily high rate of recidivism, last I checked. So we like to keep these people far away from us and our children.

We've heard rumors that our property professor  has a lot in common with Kingsfield.

Grisham Could Not Have Written Better

I went down to watch one of our little local trials this afternoon. One of the government witnesses was being cross-examined. The lawyer doing the cross is one of the best defense lawyers in the country. He's very high energy, and was pretty aggressive with the guy. Polite, but he kept hammering away at tiny little details.

A lot of times the prosecutor would object (a youngish guy and deceptively low-key -- he wouldn't even stand to object. He'd just very quietly say "objection" and sometimes why he was objecting, but never got excited about it) and W. (the defense lawyer) would rephrase the question a couple of times, and then move on.

Eventually there was a break for the jury while the lawyers argued about a few things in front of the judge, and then the jury came in for a little bit longer while the prosecutor talked to his witness again, clarifying some stuff that had come up in the cross.

Most of what they were talking about didn't make much sense to me, because I've only caught little bits of the trial.

Like if you read every 25th page of a long novel.

Anyway.

Around 4:30 the jury was dismissed for the day and most people had left the courtroom when...

One of the other lawyers for the government (who looks like a movie star, a tall and slender blond) walked up to the stand in front of the judge and started talking to her, and suddenly everyone left in the room whipped their heads around, because he was talking about W.!

What followed was like a scene from the movies or a Grisham novel.

The  attorney said W. was going Too Far, and running roughshod over the justice system and the judge, and blowing smoke at the jury (his exact words) and all sorts of exciting things like that.

The attorneys who wandered in to see how the trial was going suddenly sat down to watch, or moved to get better seats.

All the attorneys involved in the case were watching the two in the dispute.

W. came up and started demanding to know What, Exactly, He Had Done.

He talks in capitals a lot!! With lots of exclamation marks!!!!!!!!!!!

So he went on for quite a while, all excited and riled up, and demanding to see motions in writing so he could Answer Specific Allegations, Because He Would NEVER!! and so on.

Somebody should have been selling popcorn.

Then I think perhaps the lead prosecutor said a few words, still totally mild-mannered seeming (he's the one who remained seated when he objected to questions).

By the way, the whole mild-mannered thing?

IS A COMPLETE FRAUD.

That man is very, very, very Eliot Ness.

The judge was about to start saying something, after W. had another go, when a voice piped up from the other side of the courtroom.

"Your Honor?"

We all looked over and it's this old guy who's the lawyer for the co-defendant.

And I say old, because he promptly said, "I have more experience than anyone else in this room..."

And then he started lecturing the room about how lawyers should never attack each other personally, et cetera, et cetera, and so forth. All  true, of course.

The blond attorney (really, QUITE good looking, and I’m afraid I completely missed his name) went back to the podium and quietly insisted that he was not making a personal attack, he respected Webb quite a lot and thought he was the best lawyer in the room -- I thought that was laying it on a bit TOO thick, but what have you -- but he really thought there was a problem with how he was asking questions and would the judge please do something.

To which her honor said, file your motions. Thank you and goodnight.

As we left those of us in the audience sort of looked at each other as though to ask,

"Have you ever?"

It was AMAZING.

 

Nonsense and High Ideals

Howard Bashman of How Appealing showed up at the law school Monday. He might have been there for the pizza, but he also debated Kent Greenfield about the Solomon Amendment and the fuss between the government and the law schools over this little gem of a law.

What's at stake? A few hundred million government dollars, mostly for health-related research. That's a few hundred million per school. It always comes down to money, doesn't it? (See, I'm learning something at this law school.)

The law schools don't want to allow the Department of Defense to recruit on campus. The Don't Ask Don't Tell policy of the armed forces doesn't follow the schools' non-discrimination policy. The Department of Defense wants to be allowed to play with all the other recruiters (from firms, mainly). It wants the same jelly donuts and the same access to students. And if it doesn't get this access, it will take all the government's money and go home.

So the University of Michigan, for instance, would lose a gazillion dollars that the NIH currently hands the school for research into all sorts of health issues.

The debaters were skilled and the topic was interesting. I am unconvinced by the law schools' rhetoric, yet uncomfortable with the government's arrogance. Also vice versa, the law schools' arrogance and the government's rhetoric. I'm not going to cover all the arguments here, but I'll tell you about a few things that occur to me.

One, the government always attaches heavy ropes to any money it gives. It doesn't surprise me that it would try to leverage something out of the law schools this way. However, what would the government do if all the schools said, fine -- take your money? Who would do the government's research? Is it counting on the price being too high for the principle?

Two, why do the schools see it as so onerous to allow JAG recruiting when it is perfectly free to alert students to the DoD's politically incorrect hiring policies? Another mass email to the students is one too many?

Three, many law schools are at public universities. I don't have much of a problem with a private university shunning the DoD. Many private universities have religious roots and this can lead to conflict with government policies -- fair enough. But for a public university to bar the government from its doors seems inconsistent. Not that schools shouldn't voice their dissent to government policies and whatnot -- please do. Loudly and often. But to not allow JAG to recruit from the school the government writes large checks to seems disingenuous at best.

The main issues I have are that I don't believe this rises to the level of a First Amendment violation, and I don't appreciate the stigma law schools have now placed on serving with the armed forces.

When the request is reasonable, and the burden of meeting it is so low, I don't see that the schools are being harmed in any significant way. As a taxpayer I have to allow the Nazi B***ds to march down my street if they choose. Yet the law schools object to giving a military recruiter a card table and a jelly donut once a year? No, I am not equating the military with Nazis.

You don't have to agree with all military policies to be interested in serving as a military lawyer. As Bashman pointed out, the military needs good lawyers to defend soldiers accused of crimes, to counsel the military on policies, to guide the system from within. The system is in need of some decent guidance. This is a form of public service, to be done for the public good. Is it wise for the law schools to tell their students, in so many words, that this is an inappropriate place to look for work?

Neither side is being reasonable. The government is on one side, academia on the other, with lots of nonsense and high ideals in between. I suppose reasonableness is too much to ask.

Analysis of Alito

If you want to read some thoughtful analysis of Alito's judicial opinions, go here. Because there's so little discussion of Alito and his opinions, right? This one I found worth the time it took to read.*

I must say, I agree with (Warning! Loaded with obscenities of all kinds, and also occasionally rather brilliant insights. Usually into alcohol.Click link at your own risk!) Legally Intoxicated about this: why couldn't Bush have nominated Posner? Think of the wonderful Supreme Court opinions future generations of law students would get to read! All economics, all the time.

Well, the man is a certifiable/certified (depending on your point of view) genius. Posner, I mean. Not Alito. Or Legally Intoxicated.

*By the way, Sunstein looks almost exactly like my second-oldest brother. The resemblance goes even beyond the fact that they both always have their nose buried in whatever they're reading. Walking, eating, driving?, they're reading.

November Job Hunting

I had my interview with OCS (Office of Career Services) yesterday, just as Kristine was whining in a minor way about job hunting already. It is surreal to be looking now for a law job for next summer -- now, when I haven't received a single grade (not even a shadow grade for Legal Research and Writing). Now, when I have barely a clue about my options. Now, when I don't know how deep in the hole we'll be by June.

Side note: one of the 3Ls told me her husband set up a spreadsheet to cover all 3 years of law school. It shows their income and cash flow month by month with a running total, so they know how much cash they'll have left at the end of any given month. They figure they'll have about $200 when she graduates. I love the notion of the spreadsheet, and I can't fathom ever doing that.

Back to the job hunt. One of the possibilities being bandied about is a judicial externship. Why externship? Why not internship? Who knows? There are huge benefits to a stint with a judge: you gain tons of practical knowledge about the law, and meet lots of people from firms all over the place, and get the judge's thoughts on how various firms perform. All very valuable. The major drawback is that it is not only unpaid, it doesn't qualify for the public interest loans.

Any thoughts? Has anyone done this? Should I cave and try for the well-paid boredom of a 1L firm job?

All of this is assuming I pass my first set of exams, of course. Which is assuming a lot.

I Beg To Differ

I've been reading Republic.com by Cass Sunstein. He makes a point that I've thought about for a long time.

For democracy to work, people need to be exposed to opinions different from their own.

I have often noticed that people who lean strongly one way or another tend to be reluctant to listen to the arguments from the other side. They listen to the news outlet that carries stories they want to hear, they avoid commentators they disagree with, they talk to like-minded people. I know some people who only listen to Fox News because it's the only news organization that they feel gives Bush a fair shake, and they refuse to listen to NPR because they think it's a bunch of commie liberals. I know others who feel exactly the opposite: Fox is a propaganda outlet for the Bush administration and NPR is completely fair and balanced.

We alter and form our view of the world by the choices we make, and today we have so many choices: where we get our news, what news we get, what we do with our discretionary income, who we support with donations. Every time we eliminate opposition or discomfort, we narrow our view. Where there is only agreement, there is no discussion. Where there is no discussion, there is little thought. Thoughtless government is bad government.

In the spirit of encouraging democracy, I have put a new blogroll in my sidebar: Divergent Views. It has Left, Right, and Left and Right. Go ahead, be daring, and see what the other side has to say.

Rest in Peace, Your Honor

Chief Justice Rehnquist died last night. He served his country long and well.

Requiescat in pace.