Things I Didn't Expect to Read Today

Indulgences return to the mainstream in the Church.  On a related note, expect McDonald's to peg its Filet-O-Fish price to a mark slightly below the recommended donation level for an indulgence during Lent--though in past years, they've been selling them 2/$2 on Fridays, so they should be in the clear.  

I'm envisioning a price war between indulgences and Mickey D's. Sacrilege, I know, but isn't this the policy outcome of putting a price tag on bad behavior? It's Holmes' bad man formulation, only with the Afterlife, instead of the law, as the forum.  If it's easier to continue living a sort-of sinful, yet enjoyable life while making charitable donations that shave some time off of a stay in Purgatory than it is to live a slightly more virtuous, yet less enjoyable and more arduous life and require fewer indulgences, then the incentive is for Catholics to choose Option A.  The here and now will be more pleasant, and there will be negligible, if any, impact on the Afterlife.  

And this line cracks me up: "You cannot buy one — the church outlawed the sale of indulgences in 1857 — but charitable contributions, combined with other acts, can help you earn one. There is a limit of one plenary indulgence per sinner per day."  Talk about a distinction without a difference. 

Man, I'm so hype right now

One semester down!  

Roll: Slowed

As the decreased posting rate demonstrates, it is Finals Season.  Speaking of finals, I could go for this introduction playing as we started our test:

Anyway, outlines and practice exams increasingly dominate my world, but I will do my best to stay plugged in, probably with quick-hit posts of songs, clips, and stories that are keeping me going during the busy season.  Feel free to post your own favorite motivational material in comments.

First "Exam" Tomorrow

1:30-2:30 pm, Room TBD, completely open note, 20 questions, multiple choice for Practice (Research and Writing).  Took a bunch of practice exams--they aren't too bad, but who knows?

No Property tomorrow either, so I think I'm going to pull a Barack Obama and shoot some hoops before game time.  Worked okay for him...

To Fulfill These Rights

This week's topic in Legal Justice Seminar is Critical Race Theory, a fascinating field that I feel like I brushed up against during my work at Georgetown, but never quite got there.

Anyway, during my reflection and discussion of the readings, I thought of Lyndon Johnson's quote about affirmative action: 

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair.

Then, I remembered that it was part of a larger speech about equal opportunity and racial equality given at the Howard University Class of 1965's commencement.  Check out Taylor Branch's At Canaan's Edge for a great treatment of the machinations that led to the speech, but definitely check out the full text of the LBJ speech, titled "To Fulfill These Rights," here.

Always an important topic to consider, but particularly timely, given the premature talk of "post-racialism" after Obama's election.  Just how far have we come since 1965? Looking at some of the statistics LBJ cites, it appears that progress has been uneven.

By no means is that meant to diminish Obama's accomplishments; rather, understanding the continued struggle for equal opportunity and equal access among people of color today gives it a much more meaningful context than the initial, utopian treatment many media outlets have tended toward.

The work continues.

Outlining

It's about that time for law students, partcularly 1Ls, to synthesize everything they've read, heard in lecture, and discussed in class into the Grand Unifying Document™, also known as an outline.  There's a lot of advice on how to outline, what an outline should look like, even how many outlines to make for each class, but the one advice that isn't emphasized enough is to trust in one's own study habits.  

In many ways, this makes a lot of sense.  1L, everyone says, is about teaching a method of thinking as much as it is about teaching black-letter law.  And I've certainly noticed that; whether reflecting on my day "on call" for one of my classes last week or reviewing my notes, I can see my mind working at once more efficiently to highlight the pertinent details of a case or an article and also more expansively, trying (to varying degrees of success) to test hypothetical situations where a rule, or a theory, may apply.  

But exams are exams are exams.  Law school exams may be a really long exercise in problem-solving, but it's not like the answers can be pulled out of thin air--they have to reference the topics covered in the class.  I may take more practice exams or highlight my notes more than I have in past years, but I don't have to re-invent the wheel when it comes to preparation.  Moreover, I imagine most law students are the same way, but at some point during the first year, they question, or lose, their confidence in themselves and their ability to take a test.  I guess the cottage industry of how-to books, commercial outlines, and sundry other study aids would suffer if law schools reminded students of their basic test-taking abilities,  but I imagine that students' stress levels would improve dramatically.

Spontaneous Applause

Recent episodes of Spontaneous Applause in Section 3:

-November 5, for the Section 3 coordinator of Hoya Law for Change.

-November 10, for the mention of the election of Barack Obama by our Legal Justice professor.

Prof. Obama

Maybe he can moonlight when he's President and teach at the Law Center.  This is one of many stories on Obama the Law Professor, but it's a great read.  

Footnote of the Moment

"Mandatory training seminars are conducted at Burger King University in Miami and at Whopper College Regional Training Centers around the country."

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)

Muhammad Ali: A Holmesian Bad Man

We're in the midst of discussing legal realism in Section 3, so Oliver Wendell Holmes has been coming up a lot.  Here's a slightly edited version of a post that I wrote for a discussion board of my Legal Justice Seminar linking Ali with Holmes's ideas, among other things.

***

Every time I read the term “bad man,” my thoughts turn to Muhammad Ali (then Cassius Clay) declaring himself a “bad man” after defeating Sonny Liston in their 1964 fight.  In the past, I have agreed with Ali’s self-characterization when considering his career and history: “bad” as a slang term for “incredibly talented,” “bad” as a moral descriptor for the intensely personal and hurtful trash talk he directed at his opponents, “bad” in the context in which he used the term in 1964.  However, it took until today, after having read Holmes’s “The Path of the Law” and having reflected further, that I can now view Ali as a “bad man” in the Holmesian sense.

 

“What does (legal duty) mean to a bad man?” Holmes asks.  “Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money” (62). To borrow from Legal Practice, the elements of Holmes’ primary definition of the bad man are present in Ali’s refusal to enter the military during the war in Vietnam.  By refusing to report after being drafted (doing a certain thing), Ali was subjected to disagreeable consequences by way of a five-year prison sentence, the revocation of his boxing licenses, and the deprivation of his primary source of income (a tax, of sorts).  Yet from Ali’s point of view, theses were merely the legal consequences of fulfilling his moral duty to resist joining the Army; through his story emerges a clear example of the challenges of separating legal and moral duties (62).

 

 

Now, I do not wish to credit Holmes with the prophetic powers required to create a generic foil for his lecture around the emergence, in 60 years time, of a boxer from Louisville, KY who resisted military service, but like Prof. Luban, I noted with interest Holmes’s prediction regarding the future importance of statistics and economics to the study and application of the law (67).  Indeed, reading this intimation about the importance of statistics brings his fact-oriented dissent in Lochner into greater context; he seems to have a proclivity for a statistical approach to deciding cases. 

 

Focusing on the “statistical” element of this claim, the intellectual context in which Holmes is writing—the era of pragmatism—makes this line of thought even clearer.  As described in Louis Menand’s The Metaphysical Club, the late 19^th and early 20^th century gave rise not only to the Progressive Era of politics, whose ends the Realists aim to further through their critique of classical legal thought, but also philosophical pragmatists such as Holmes and William James.  I’d have to re-read the chapters on Holmes to check to see what direct connection there was between Legal Realists and pragmatists, but it stands to reason that there would be a theoretical kinship of sorts between the two groups.

 

This pragmatic influence finds its way, as best as I can tell, into “The Path of the Law”—in particular in a line that seems to at once critique the hegemony of classical legal thought and to safeguard against future adoptions of overarching legal theories.  “We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind,” writes Holmes.  Quite true—after all, as Holmesian Bad Man Ali can attest to, his conviction was overturned years later, after public opinion on the war in Vietnam had turned.

 

 

Background on Ali:

http://www.thenation.com/doc/20070129/southpaw

http://www.time.com/time/time100/heroes/profile/ali01.html

http://www.ali.com/legend_boxer_controversy.aspx (the official website of Muhammad Ali Enterprises®)

Banal Articles about Lunch and Oliver Wendell Holmes

Example: this article about lunch in the Washington Post.

Bemoaning his lunchtime doldrums, the author writes: 

Far too often, the most uninspired meal of the day is the one I eat sitting at my desk, juggling a Cosi sandwich, napkin and computer mouse as I try to eat while writing or editing.

 I'll tell you what's uninspiring: the quality of this article.  I'm pretty sure he wrote it while juggling a Cosi sandwich, napkin, and computer mouse.I sincerely doubt that this has been edited, what with its four rhetorical questions, disjointed topics, and lack of description regarding the taste of the recipes.   

I understand that different sections of the newspaper employ different voices to tell their stories. Yes, the article speaks to a daily question that many of us face: "What's for lunch?"Who knows, maybe the author is tyring to be a New Journalist, putting himself at the center of the story, helping us understand our own quiet culinary desperation through his own stream-of-consciousness search to answer that existential noontime question.

But clear communication skills don't become less important when talking about lunchtime or when they're on page F01.  In class today, my property professor read a passage from Oliver Wendell Holmes's concurring opinion in International New Service v. Associated Press, where Holmes's language is impenetrable.  After letting the fog of the passage envelop us, my prof yelled, "Holmes! A verb!"  

After reading this, I wanted to yell, "Post! Some structure!"  In that sense, the author here is keeping good company; I doubt he intended this article to draw him a comparison to Oliver Wendell Holmes, but here it is, out there on the intertubes, ready for someone to do a "Google" and repeat it.  

But the point is this: it doesn't matter if you're writing a Supreme Court decision or a food column: the ways in which, and the ability with which, we communicate with one another dictates how we fare, both individually, and as a society.  Write a mediocre, mid-week column on homemade lunches, you'll get by well enough, but don't expect to become the next Anton Ego.  Write poorly in a judicial opinion, and expect attorneys, state agencies, law students and faculty for the next century to be debating your meaning.  Tell the nation that "the fundamentals of our economy are strong" the day that two Wall Street giants bite the dust, and you'll lose your campaign for the presidency.*

* I hope.

Idiosyncrasy, Continued

Perhaps "idiosyncratic" is such a popular word here at law school because it rhymes with law profs' favorite Method, the "Socratic."

Idiosyncrasy is the new plethora

For the first 2+ weeks, idiosyncrasy seems to be in the lead for most popular word at law school (putting aside technical terms such as "memo," "fact pattern," and "issue spotting").   Professors seem fond of the term, which makes sense when considering the peculiarities  of decisions, theories, etc., but is somewhat ironic on an individual level, given the relative uniformity of the 1L experience.

The First "Memo"

Just submitted My First Memo (sounds like a children's toy or something) for Legal Practice (Research and Writing, in the non-§ 3 world).  It was actually a re-write of a sample, bad memo, so it's technically not completely mine, but given how much needed to be re-written, it feels a lot more like mine than the sample.

What is a memo, in law school/law world terms? Keeping in mind that I've never had a job that required me to write them (funding proposals, yes, but not true memos), an office memo, as far as I can tell from the first two weeks, is basically a document that tries to predict what the probable legal outcome of a given set of facts is.  The memo is divided into two main sections: restatement of the facts, and discussion of the likely outcomes.  Office memos are supposed to be predictive, so the tone of them is not argumentative, but neutral.  That said, you are supposed to predict something, so implicit in that requirement is a certain amount of persuasiveness, right?  I'll probably get dinged on the tone part, but that's just part of the transition to Lawyerland from undergrad, I imagine.  

The writing that we've learned to do is also incredibly formulaic--sort of a "write-by-numbers" approach.  Each memo's discussion of the likely outcomes has a conclusion at the beginning, then an explanation of the rules in question, then an application of those rules to the facts of the case, then (if needed) a restatement of the conclusion.  CREAC, as we learned it (not to be confused with IRAC, which is apparently how exam responses are structured).  In many ways, it's a step back to 5-paragraph-essays of yore, at least in the spirit of the rigid structure of the writing.  

Again, I imagine that there will be copious suggestions and comments for how to improve this effort, but I'm setting my expectations very low.  After all, the only way to learn how to do this is to make some mistakes when the stakes are practically non-existent.

Also, this isn't for a grade, which I guess is only fair, seeing how we've only been in class for just over 2 weeks.

You Know You're in Law School When...

...you start comparing the instant replay/review controversy of the Broncos-Chargers game to civil procedure.  

Nerd alert.

Wild game, though-- Denver definitely had its lucky stars aligned to, um, sidestep the instant replay issues, but when it comes down to it, San Diego had two chances to stop Denver from scoring from the 10 yard line and another from converting the 2-point conversion.  Oh yeah, and they gave up 39 points in the game.  Norv Turner's indignation would be a lot more meaningful if their defense hadn't resembled a flag football team's.

It would have also been more meaningful if he had actively screamed at the referees during the game, rather than afterward.  However, given that yesterday's ref was Ed Hochuli, I can't blame him too much for waiting until after the game.

2-0! Go Broncos!

The Culture

Q: What are the people like?

A: I can't tell.  Everyone's got their hand in the air and their head in a book.

I kid.  There are plenty of Talkers, Gunners, Questioners, and Rodins (you know, the people who have a very pensive look, but are operating on a whole different level), but people are generally friendly towards each other, even 2 weeks in.  I think the big key here is that in college, everyone is more or less a blank slate (unless you come from the same high school, but even then, things change), and socialization and community building are essential parts of the experience, perhaps even the most important parts.  As I mentioned above, my approach to my own interactions with the community here are more measured and more tailored to my own interests and existing support system, and my guess is that's true for most people.  But people are friendly--they smile on the elevator, they chat pleasantly about profs and class, etc.  

That's not to say that I haven't stepped out to get a feel for what's going on: I signed up for some different listservs at the SAC Fair (not what they call it, but it's what it was), went to a discussion about attending a Jesuit law school, and went to a great Obama rally on Thursday for the law school's Obama group held at the bar across the street, the Billy Goat.  Rep. Patrick Murphy from (coincidentally) Ted's congressional district in PA spoke, then Prof. James Forman spoke to fire up the charges.  Both were fantastic, and I'm really looking forward to having Prof. Forman in the spring.  There were a ton of people there from my section (which, along with having it advertised before my Civ Pro class, tends to skew to the left), and generally lifted the fog of the cable news bubble of the week from our heads and got energized.  

The Adjustment

The adjustment to 1L life is a two-pronged adjustment: adapting from a do-nothing summer, and adjusting from Georgetown (this is only somewhat Georgetown--more later).  First, from 3 months of relaxation and very few, if any responsibilities:  obviously, there's a bit a system shock.  While over the summer, I was able to kick the collegiate habits of staying up until 3 am, eating complete garbage, and Guitar Hero, I developed new ones.  A renewed appreciation for television? Check.  Google Reader? Probably the best, worst thing to happen to me.  An obsessive focus on the 2008 campaign? Inevitable.  Now, spending hours on end reading, with easy access to both television and internet, has been a bit of a challenge, but my desire to be learning about something a bit more important than how the team looks at Kenner League has been able to subordinate those other things.  

The adjustment from Georgetown life has been helped by a number of factors:

-The amount of work I have.  It's just... more.  Or, more accurately, it's more work, more consistently.   Think of it as having a 5 pager due each day in terms of how much time you put into it.  Then repeat each day, Sunday-Thursday/Friday.  You simply don't have as much time to screw around as much.  Doesn't mean I don't get out to socialize, it just means that I have to really sock away the work a bit more.

-The summer off in between school and college.  Huge benefit.  People often ask, "what did you do before you came here?" I tell them that I came straight from undergrad, which is true, but I really want to tell them that I took 3 months sabbatical, because that's what has been just as helpful.  In that time off, I was able to recharge my batteries spiritually, economically (somewhat), and infrastructure-wise.  It also helped give me distance between My Georgetown Experience™, filled with extracurriculars, late nights, and tons of people, and 1L.  Instead of trying to relive Georgetown on a new campus, I've made my peace with my time on the Hilltop, drew lessons from it, and then focused my goals for the next 3 years.  As a result, I've resisted the temptation to join every club, I don't go out for the sake of going out, and I've prioritized getting the most out of my classes and trying (the next 2 years) to position myself for a job/field that I'm interested in, through class and through clubs/activities/internships.  Obviously, I was massively lucky to have had the opportunity to take 3 months for myself, but it was also essential.

I'm also much cleaner and more organized than I used to be, as an added plus.

Q: What Do You Do in Law School?

People have asked me, "What's law school like?" "What do you do?" "Is it a lot of reading?" To answer those questions, the following is a brief checklist that gets some of the fundamentals down on paper: 

-Do you enjoy reading?

-Are you interested in the "American system" of law and government?

-Do you enjoy reading?

-Do you like seeing where theories of behavior, morality, governance, and policy find their ways into concrete, practical writings?

-Do you like asking "What?" to find out specific answers, and "Why?" to find out how to get those answers?

-Do you like learning from professors who are actually interested in teaching, and respect your time enough to give you clear guidelines?

-Do you enjoy reading?

If you answered yes to these questions, then I think that you'll enjoy law school.  There's more than enough reading, to be sure, but as I've been saying, it is thankfully in English.  From the first two weeks, this is the basic template for law school, at least in Section 3: reading cases (and, sometimes, background information), understanding the rules that come from those cases, and seeing why those rules were applied as they were, when they were.  At least for me, it seems to be a very fitting (and interesting) confluence of my academic interests, which, conveniently, will hopefully prepare me for my professional interests.  In short: so far, so good.  

Now, I'm sure when I'm making outlines and preparing for finals, or when I'm trying to memorize some byzantine part of the Federal Code of Civil Procedure, I'll be grousing about the work, but law school ain't beanbag, and I knew that coming in.  Then again, it's not medical school either, so things could be much worse.