Once I got a footing on the type of law student I would be, that is, the “bad boy of law,” I began to experience how important it is to face my law professors and colleagues with some dignity. But does being proud about being a bad boy also make me a bad guy?
What on earth am I talking about? Trust me, I’m using law school terminology that cost me hundreds of thousands of dollars to master.
After also learning Latin and verbose legal theories, law students today are still asked to refer to either the convicted criminal or even the loser in a civil suit as a “bad guy.” How I hated this lesson! Justice compensates for wrongs done by members of society, but is not an affirmation of bigotry. Who (let alone conniving lawyers) can stand above the sphere of morality and judge any person (or guy) as good or bad?
The clarity of logic gives us moments when, as if turning a light switch on or off, we can evaluate whether or not someone is a burglar just by reading a clock on the wall and determining what time the breaking and entering occurred (under common law burglary, that is—you’ll have to look that up if you don’t get it). But does this determine who is a bad guy?
We’ve also all seen the Lethal Weapon movies, where Riggs tells his partner that it’s OK to break into that warehouse without a search warrant, because “we’re the good guys”; same with Rambo; same with Dirty Harry. How can defenders of due process of law really quibble with the popular Riggs-Rambo-Callahan element of our culture?
I admit that I can’t really be so pure as to say that I live in a perfect world of not judging people. Look at this blog! I am calling the people who run law schools bad guys. People who call themselves good guys run a big risk of being the real bad guys—me included.
Let’s say that being a naughty boy in school is not really OK, but if you are a good guy dealing with bad guys for teachers…well, you fill in the blanks of this contradictory argument. Let’s also say that once you get out of law school, you’re not a boy anymore and hurling spit wads at people who annoy you can even be a public nuisance.
So am I a good guy or a bad guy? After all, if a bad guy tells you law schools must be debunked, you really should not listen. Who cares what bad guys think?
If you disagree with me and think law schools are the outstanding, upright institutions of education that they purport to be, you can just ignore my arguments as the useless rants of a bad guy. My motives might be all wrong: sour grapes; poor loser; lazy whiner; hoaxing paranoid conspiracy theorist; even evil narcissist trying to destroy the good guys just because they are good. All of these motives would make me a bad guy that you should ignore.
Or I could be an honest scholar looking for defects in our society caused by the overzealous greed that the legal profession breeds. I could be a true-to-life do-gooder, fending off corruption. I could be a farseeing social reformer who detests hazing rituals and reinforces worthwhile weaklings (Gandhi, Christ, Buddha—you get the picture).
After my experience of law school, I tend to ruminate a lot about it and such thoughts that I produce are written down here. Perhaps I don’t know what I am or what makes me ruminate about law school, but I want to know and writing about it helps me focus in on what exactly bothers me about the whole experience.
Still, I hope that my observations during the past years will continue to help me and others understand why law schools may be run by bad guys and being at the bottom of your law school class does not automatically make you a bad guy. Don’t give up on law if its training system treats you poorly.
The law needs everyone to participate, overachievers and ruminators alike, to be fair. Winners and losers.
Just because the irony is so thick you can cut it with a knife, don’t ignore the silly good-guys-versus-bad-guys bac-and-forth. Bad guys may call good guys bad guys. Good guys may retaliate and call the putative good guys bad guys. Good guys ignore bad guys, and bad guys ruin the reputations of good guys.
Which one are you? Do yourself a favor and find the answer outside of law school.
Thursday, October 29, 2015
Saturday, August 8, 2015
How Law Schools “Study” the Alton Logan Case
I admit, I only know the Alton Logan case by how my law school taught it. Based on the way I now know lawyers, I assume the lesson is crucial, instilling a code that all lawyers live and breathe by.
In 1982, Logan was tried and convicted of murdering a security guard working at a McDonalds in Chicago. Logan served 26 years in prison before the courts acknowledged he was wrongly convicted and freed him.
Dale Coventry and Jamie Kunz are two lawyers indirectly related to the Logan case. Now they consistently receive standing ovations at lawyer gatherings where they give presentations about how they knew all along Logan was an innocent man.
Coventry and Kunz represented a man named Andrew Wilson who when confronted about the security guard murder, privately confessed to his lawyers that he did it. As Wilson’s lawyers, Coventry and Kunz had a duty of confidentiality, according to the sacred lawyer rules known under the rubric “Professional Responsibility.”
Although Coventry and Kunz had correctly solved the crime police wrongly pinned on Logan, they couldn’t tell police about it. Duty called, and the lawyers could have been reprimanded or disbarred had they breached this duty of confidentiality to their client, even if it meant righting a profound wrong and setting an innocent man free.
The lawyers obviously felt the moral weight of what they were doing by upholding their sworn duties. This led them to get Wilson to sign a release so that if Wilson died, the lawyers would be free to release to the courts Wilson’s posthumous confession and clear Logan.
Without Wilson’s written consent to do this, Logan would probably have died in prison. It was a long wait before Wilson died, leading to Logan's 26-year stretch in the pokey.
I can’t blame Coventry and Kunz for what they did, but am puzzled about why lawyers would give them standing ovations. Is the Logan case, after all, not an extraordinarily tragic instance that illustrates that indeed the American legal system can be profoundly flawed?
My professor stated these facts to us in a fairly neutral way. So did a story on 60 Minutes, emphasizing the tragedy, but presenting the final result to the viewer as an issue for discussion.
Because I was older than most students in my class (made obvious by my widow’s peak and greying sideburns), my professor turned to me and asked me what I thought of the Logan case, carefully nuancing the question (as law professors like to do) so that I should have figured out that the “correct” answer was to praise the lawyers and show steely indifference to what happened to Logan. Instead, I expressed only remorse for Logan and suggested that certainly the legal profession as a whole should be smart or clever enough to invent some mechanism that could prevent such things from happening in the future.
As I recall that moment today, it probably represented my most important moment in law school. All law schools demand of their students a killing off the old child inside of them to become “adults.”
Every ounce of intimidation, innuendo, and even veiled threats came to me by this professor that day, and in essence, I hit him back with a cold fish. I paid for my insolence by getting a “D” in Professional Responsibility—the lowest grade I have ever received; the lowest grade this professor gave out that semester; and something that left me wondering how I could have screwed up such an otherwise easy course.
The official lesson that day in Professional Responsibility was why it is important for lawyers to be ice-coldly indifferent about the fate of innocent people whose lives are destroyed by the American legal system. Meanwhile, I can only see such lessons as a form of brainwashing.
If the goal of law professors is to teach young adults how to be cowardly super-citizens whose livelihoods depend on a type of human carnage that they never have to roll up their sleeves and be bothered about, then the legal profession is a parasitical and immoral institution. To quote Dickens, “then the law is an ass.”
I go one step further and imagine the monster in the movie Alien that has no emotion whatsoever and uses gutted human carcasses to feed its young. There is a profound human evil here that has nothing to do with how and why lawyers should follow their own rules of confidentiality, but has everything to do with creating a caste system in which the lives of non-lawyers are expendable in an effort to keep lawyers driving their BMWs to work every day in nice suits.
In light of such goals and attitudes, today I wear that “D” in Professional Responsibility with honor. Let anyone presently going through law school find their own definition for “adulthood,” but please, make it at least a multiple-choice question, not the true/false proposition that so many law professors and practicing lawyers are making it.
In 1982, Logan was tried and convicted of murdering a security guard working at a McDonalds in Chicago. Logan served 26 years in prison before the courts acknowledged he was wrongly convicted and freed him.
Dale Coventry and Jamie Kunz are two lawyers indirectly related to the Logan case. Now they consistently receive standing ovations at lawyer gatherings where they give presentations about how they knew all along Logan was an innocent man.
Coventry and Kunz represented a man named Andrew Wilson who when confronted about the security guard murder, privately confessed to his lawyers that he did it. As Wilson’s lawyers, Coventry and Kunz had a duty of confidentiality, according to the sacred lawyer rules known under the rubric “Professional Responsibility.”
Although Coventry and Kunz had correctly solved the crime police wrongly pinned on Logan, they couldn’t tell police about it. Duty called, and the lawyers could have been reprimanded or disbarred had they breached this duty of confidentiality to their client, even if it meant righting a profound wrong and setting an innocent man free.
The lawyers obviously felt the moral weight of what they were doing by upholding their sworn duties. This led them to get Wilson to sign a release so that if Wilson died, the lawyers would be free to release to the courts Wilson’s posthumous confession and clear Logan.
Without Wilson’s written consent to do this, Logan would probably have died in prison. It was a long wait before Wilson died, leading to Logan's 26-year stretch in the pokey.
I can’t blame Coventry and Kunz for what they did, but am puzzled about why lawyers would give them standing ovations. Is the Logan case, after all, not an extraordinarily tragic instance that illustrates that indeed the American legal system can be profoundly flawed?
My professor stated these facts to us in a fairly neutral way. So did a story on 60 Minutes, emphasizing the tragedy, but presenting the final result to the viewer as an issue for discussion.
Because I was older than most students in my class (made obvious by my widow’s peak and greying sideburns), my professor turned to me and asked me what I thought of the Logan case, carefully nuancing the question (as law professors like to do) so that I should have figured out that the “correct” answer was to praise the lawyers and show steely indifference to what happened to Logan. Instead, I expressed only remorse for Logan and suggested that certainly the legal profession as a whole should be smart or clever enough to invent some mechanism that could prevent such things from happening in the future.
As I recall that moment today, it probably represented my most important moment in law school. All law schools demand of their students a killing off the old child inside of them to become “adults.”
Every ounce of intimidation, innuendo, and even veiled threats came to me by this professor that day, and in essence, I hit him back with a cold fish. I paid for my insolence by getting a “D” in Professional Responsibility—the lowest grade I have ever received; the lowest grade this professor gave out that semester; and something that left me wondering how I could have screwed up such an otherwise easy course.
The official lesson that day in Professional Responsibility was why it is important for lawyers to be ice-coldly indifferent about the fate of innocent people whose lives are destroyed by the American legal system. Meanwhile, I can only see such lessons as a form of brainwashing.
If the goal of law professors is to teach young adults how to be cowardly super-citizens whose livelihoods depend on a type of human carnage that they never have to roll up their sleeves and be bothered about, then the legal profession is a parasitical and immoral institution. To quote Dickens, “then the law is an ass.”
I go one step further and imagine the monster in the movie Alien that has no emotion whatsoever and uses gutted human carcasses to feed its young. There is a profound human evil here that has nothing to do with how and why lawyers should follow their own rules of confidentiality, but has everything to do with creating a caste system in which the lives of non-lawyers are expendable in an effort to keep lawyers driving their BMWs to work every day in nice suits.
In light of such goals and attitudes, today I wear that “D” in Professional Responsibility with honor. Let anyone presently going through law school find their own definition for “adulthood,” but please, make it at least a multiple-choice question, not the true/false proposition that so many law professors and practicing lawyers are making it.
Monday, June 15, 2015
How Law Schools “Study” the Peltier Case
Of mainstay domestic liberal causes over the past decades, few loom as high, long, or loud as the grassroots campaign for a Presidential Pardon for Leonard Peltier. Convicted of killing two FBI agents on the Pine Ridge Indian Reservation, Peltier has always declared his innocence and has claimed that FBI misconduct played a significant role before and during his trial.
The bizarre shootout in question unfolded on June 26, 1975, when no one really knew who was shooting whom, or why. Leaders of the American Indian Movement (AIM) claim the FBI had been spying on a camp of their members in the area and had had big plans for taking them down, one way or the other. An AIM teenager named Joe Stunz was also shot and killed that day.
The FBI originally claimed the agents were simply trying to serve a warrant on a petty criminal (who wasn’t even in that area); someone fired a first shot; and the situation escalated. Transcripts of the agents’ radio chatter now indicate they were chasing a red vehicle into the area; three men were in the vehicle; and when the vehicle came to a stop in a grassy area near the AIM camp, the shooting commenced.
Peltier admits he participated in the shootout, along with others including two AIM members who in a separate trial were acquitted based on self-defense—Dino Butler and Rob Robideau. This acquittal aggravated already high emotions inside the FBI. Not only was the shootout tragic and pointless, but after the Indians got the best of the situation, Agents Ronald Williams and Jack Coler were executed point blank—not self-defense at all (although adequate provocation or "heat of passion" could have made this voluntary manslaughter).
On the other hand, during the first trial of Butler and Robideau, the jury heard evidence of a Tribal President named Dickie Wilson who had all but declared martial law on the Reservation with brutalities and hundreds of unsolved murders, presumably at the hands of Wilson’s aggressive police force—all with the latent blessings of the FBI, which did not intervene. As part of a slight-of-hand political maneuver during the aftermath of the shootout, Wilson also nonchalantly turned over a large piece of Reservation land known as the “Stronghold” or “South Unit” to the Federal Government (it was returned in 2012).
The burning unanswered question relative to Peltier’s case is who delivered those close range shots that finished off the agents. Journalist Peter Matthiessen very guardedly relates a story (included in a 60 Minutes report) that a red pickup truck full of explosives with three AIM supporters in it was the vehicle the agents pursued into the area, and that its driver delivered the mortal wounds in self-defense and panic when a delirious Agent Williams raised his gun at him. Robideau also relates this story in the documentary film, Incident at Oglala (1992), directed by Michael Apted, claiming he saw the red truck and occupants.
The problem is that Butler now claims Robideau’s story of a red pickup truck is a fake perpetuated by Robideau. He also insists that Peltier was not the one who delivered the fatal shots to the agents. Butler also claims he was asked by Robideau to go along with the red-pickup story, but refused.
That leaves much suspicion on Robideau as the one who might have ultimately killed the agents, but, in a case where a rigid justice system prevails, he was acquitted of those crimes on a self-defense theory. Robideau admits in Incident at Oglala that he was the one who fired a round that ricocheted oddly into Coler’s arm in such a way, that the arm was shredded, so that Coler was in the process of completely bleeding out, minutes from death, when he was executed. If Robideau was close enough to see his round hit Coler’s arm and claimed all along he was close enough to see who killed the agents, he would be a prime suspect, if the red pickup story is truly debunked. He also could not have been tried twice for the same crime, had he lived (he died in 2009).
Butler and Peltier both claim they had been at the AIM camp all morning. When they heard gunshots and noticed bullets landing close to them, they grabbed their rifles and headed off to the origin of the shots, returning fire.
Peltier’s lawyers claim that the FBI was so desperate to pin the murder of its agents on any convenient AIM suspect that false evidence was created, most notably in the form of a spent bullet casing from Peltier’s rifle that they claim was found in the trunk of one of the agents’ cars. Since the verdict against Peltier was handed down, new eyewitnesses have been produced by investigators claiming that Peltier even bragged about killing the agents.
As for all my law school experiences, the Peltier case came up only once. In my Evidence class, there were a couple of problems in the casebook (Fisher 3d, 167ff.) based on the “facts” of the shootout and an encounter Peltier and his entourage of AIM members had in Oregon with the local law while fleeing. In one of the problems, the editors inserted in square brackets that Peltier had been one of the three men in the red vehicle the agents pulled over (which Peltier denies).
Most importantly, the questions were worded in such a way that left out all reference to the controversies, depicting Peltier as a born killer on the lam. The two questions, which my class’s Witkins Award winner (i.e., the student with the highest grade in the class) answered “correctly,” involved the prejudicial effect of an outstanding warrant Peltier had at the time and the fact that the Winnebago he was riding in was filled with weapons, including bombs. These might be probative of the “fact” that after killing the agents, Peltier was ready to make one last suicidal stand against police—so said the Witkins Award winner.
I went around to members of my Evidence class afterwards and asked them if they knew further details of the Peltier case. None did.
An especially interesting fact not mentioned in the problems is that actor Marlon Brando owned the Winnebago the AIM members were riding in and loaned it to them to show his support. A fact like that would spoil the fantasy that the casebook was trying to create—our favorite movie stars do not mingle with homicidal maniacs, after all.
Not only was my law school attempting to depict Peltier as one of the most homicidal outlaws since John Dillinger, but the casebook had cherry-picked details so that the overall impression was distorted. At any time, the professor could have mentioned what the real controversies were, but never did.
Why would my law school take such a stand against a famous liberal cause and use a deceptive if not outright dishonest way of portraying it? My only answer is that law schools are not about depicting important legal controversies in the neutral light they claim to be painstakingly instilling into students. Instead, law schools brainwash students into believing among other things that liberal causes are silly, and that even when the legal system gets it wrong, some deserving reprobate gets locked up anyway.
Whether you agree with the AIM movement or not, Peltier is a victim of a legal system gone awry. A thorough study of Peltier’s case should be the first thing that all American law schools should be teaching young would-be lawyers today—thoroughly. Let them make up their own minds after all the facts are in, because it is a complicated case, but at least use all the material facts.
Meanwhile, there is no excuse for what this Evidence casebook did, and if there was a valid legal lesson to be learned that day in Evidence class about relevance and prejudicing juries, those practice questions could have been rewritten to leave Peltier’s name out of it. I’m left with the burning feeling that our American legal system is built upon a pack of lies, and that the first order of business for American law schools is to whitewash this so it can recruit people with the best of calculating brains, but the most indifferent of moral consciences.
The bizarre shootout in question unfolded on June 26, 1975, when no one really knew who was shooting whom, or why. Leaders of the American Indian Movement (AIM) claim the FBI had been spying on a camp of their members in the area and had had big plans for taking them down, one way or the other. An AIM teenager named Joe Stunz was also shot and killed that day.
The FBI originally claimed the agents were simply trying to serve a warrant on a petty criminal (who wasn’t even in that area); someone fired a first shot; and the situation escalated. Transcripts of the agents’ radio chatter now indicate they were chasing a red vehicle into the area; three men were in the vehicle; and when the vehicle came to a stop in a grassy area near the AIM camp, the shooting commenced.
Peltier admits he participated in the shootout, along with others including two AIM members who in a separate trial were acquitted based on self-defense—Dino Butler and Rob Robideau. This acquittal aggravated already high emotions inside the FBI. Not only was the shootout tragic and pointless, but after the Indians got the best of the situation, Agents Ronald Williams and Jack Coler were executed point blank—not self-defense at all (although adequate provocation or "heat of passion" could have made this voluntary manslaughter).
On the other hand, during the first trial of Butler and Robideau, the jury heard evidence of a Tribal President named Dickie Wilson who had all but declared martial law on the Reservation with brutalities and hundreds of unsolved murders, presumably at the hands of Wilson’s aggressive police force—all with the latent blessings of the FBI, which did not intervene. As part of a slight-of-hand political maneuver during the aftermath of the shootout, Wilson also nonchalantly turned over a large piece of Reservation land known as the “Stronghold” or “South Unit” to the Federal Government (it was returned in 2012).
The burning unanswered question relative to Peltier’s case is who delivered those close range shots that finished off the agents. Journalist Peter Matthiessen very guardedly relates a story (included in a 60 Minutes report) that a red pickup truck full of explosives with three AIM supporters in it was the vehicle the agents pursued into the area, and that its driver delivered the mortal wounds in self-defense and panic when a delirious Agent Williams raised his gun at him. Robideau also relates this story in the documentary film, Incident at Oglala (1992), directed by Michael Apted, claiming he saw the red truck and occupants.
The problem is that Butler now claims Robideau’s story of a red pickup truck is a fake perpetuated by Robideau. He also insists that Peltier was not the one who delivered the fatal shots to the agents. Butler also claims he was asked by Robideau to go along with the red-pickup story, but refused.
That leaves much suspicion on Robideau as the one who might have ultimately killed the agents, but, in a case where a rigid justice system prevails, he was acquitted of those crimes on a self-defense theory. Robideau admits in Incident at Oglala that he was the one who fired a round that ricocheted oddly into Coler’s arm in such a way, that the arm was shredded, so that Coler was in the process of completely bleeding out, minutes from death, when he was executed. If Robideau was close enough to see his round hit Coler’s arm and claimed all along he was close enough to see who killed the agents, he would be a prime suspect, if the red pickup story is truly debunked. He also could not have been tried twice for the same crime, had he lived (he died in 2009).
Butler and Peltier both claim they had been at the AIM camp all morning. When they heard gunshots and noticed bullets landing close to them, they grabbed their rifles and headed off to the origin of the shots, returning fire.
Peltier’s lawyers claim that the FBI was so desperate to pin the murder of its agents on any convenient AIM suspect that false evidence was created, most notably in the form of a spent bullet casing from Peltier’s rifle that they claim was found in the trunk of one of the agents’ cars. Since the verdict against Peltier was handed down, new eyewitnesses have been produced by investigators claiming that Peltier even bragged about killing the agents.
As for all my law school experiences, the Peltier case came up only once. In my Evidence class, there were a couple of problems in the casebook (Fisher 3d, 167ff.) based on the “facts” of the shootout and an encounter Peltier and his entourage of AIM members had in Oregon with the local law while fleeing. In one of the problems, the editors inserted in square brackets that Peltier had been one of the three men in the red vehicle the agents pulled over (which Peltier denies).
Most importantly, the questions were worded in such a way that left out all reference to the controversies, depicting Peltier as a born killer on the lam. The two questions, which my class’s Witkins Award winner (i.e., the student with the highest grade in the class) answered “correctly,” involved the prejudicial effect of an outstanding warrant Peltier had at the time and the fact that the Winnebago he was riding in was filled with weapons, including bombs. These might be probative of the “fact” that after killing the agents, Peltier was ready to make one last suicidal stand against police—so said the Witkins Award winner.
I went around to members of my Evidence class afterwards and asked them if they knew further details of the Peltier case. None did.
An especially interesting fact not mentioned in the problems is that actor Marlon Brando owned the Winnebago the AIM members were riding in and loaned it to them to show his support. A fact like that would spoil the fantasy that the casebook was trying to create—our favorite movie stars do not mingle with homicidal maniacs, after all.
Not only was my law school attempting to depict Peltier as one of the most homicidal outlaws since John Dillinger, but the casebook had cherry-picked details so that the overall impression was distorted. At any time, the professor could have mentioned what the real controversies were, but never did.
Why would my law school take such a stand against a famous liberal cause and use a deceptive if not outright dishonest way of portraying it? My only answer is that law schools are not about depicting important legal controversies in the neutral light they claim to be painstakingly instilling into students. Instead, law schools brainwash students into believing among other things that liberal causes are silly, and that even when the legal system gets it wrong, some deserving reprobate gets locked up anyway.
Whether you agree with the AIM movement or not, Peltier is a victim of a legal system gone awry. A thorough study of Peltier’s case should be the first thing that all American law schools should be teaching young would-be lawyers today—thoroughly. Let them make up their own minds after all the facts are in, because it is a complicated case, but at least use all the material facts.
Meanwhile, there is no excuse for what this Evidence casebook did, and if there was a valid legal lesson to be learned that day in Evidence class about relevance and prejudicing juries, those practice questions could have been rewritten to leave Peltier’s name out of it. I’m left with the burning feeling that our American legal system is built upon a pack of lies, and that the first order of business for American law schools is to whitewash this so it can recruit people with the best of calculating brains, but the most indifferent of moral consciences.
Wednesday, June 3, 2015
RFK’s Ghost Still Haunting California
While I was in law school with nose glued inside dry case books, a sadly ironic drama unfolded. It was a California drama rife with injustice—the type of injustice law professors typically instruct students to ignore as delusions of the hoi polloi.
Early in 2012, the Attorney General of the State of California, Kamala Harris, found herself squished between a rabid pack of conspiracy theorists and those invisible forces (i.e., “them”) that run things in the world based on secret policies and undemocratic decision-making. Harris had submitted a court document on behalf of the respondents named in a Federal writ of habeas corpus filed by Sirhan Bishara Sirhan (b. 1944) back in the year 2000.
I took a seminar in habeas corpus, which the professor running it insisted is currently the most difficult area of law. So difficult, in fact, that such writs are routinely punted to roving magistrate judges, who presumably have more time than other Federal judges to bone up on and master all the intricacies.
The crux of the habeas corpus complexity lies in a 1996 law called the Antiterrorism and Effective Death Penalty Act (AEDPA). Even the most conservative students in my seminar had to admit that AEDPA has had the effect of suspending the writ, something the Constitution expressly prohibits, unless public safety requires it in times of insurrection or invasion.
Still, AEDPA does not apply to Sirhan’s writ, because his conviction became final in the 1970s, long before its enactment. On the other hand, this law provides that writs for older judgments like Sirhan’s should be filed by April 1997 (in essence, like the one-year statute of limitations that is normally invoked). Of course, filing Sirhan’s writ in 2000 clearly has made it barred by AEDPA’s explicit statute of limitations.
To overcome this bar, Sirhan’s lawyers have found a loophole around AEDPA, quoting a 1995 Supreme Court case, Schlup v. Delo. If Sirhan can prove he is actually innocent, the bar of the statute of limitations can be lifted.
As much as this may continue to be a glimmer of hope for Sirhan, he must still overcome the extremely high standard set in the Schlup test, which is to present new evidence showing that it is more likely than not that no reasonable juror could have found him guilty.
Sirhan’s ardent defense lawyers have always valiantly attempted to connect the dots of a half-century of conspiracy theorists. But to satisfy Schlup, they can only rely on “new” evidence, that is, evidence not presented at his trial during the early 1970s.
Most notably as “new” evidence, an audio recording by a Canadian journalist (Stanislaw Pruszynski) has been analyzed by now state-of-the-art technology showing that at least 13 shots were fired in the pantry at the Ambassador Hotel where RFK was assassinated. Sirhan’s gun only carried eight bullets.
Also “new,” another journalist and eyewitness (Nina Rhodes-Hughes) claims that a transcript of her “original statement” to the FBI of hearing only eight shots was falsified. She now claims that she initially heard a few of Sirhan’s shots to the left of her followed by a rapid fire of different shots to the right of her—12 to 14 shots in all.
Sirhan’s lawyers have also included a declaration by a psychology professor (Daniel Brown) and law professor (Alan Scheflin) stating the history of mind control experiments by the CIA and others, which included techniques involving hallucinogenic drugs and hypnosis, to “program” potential agents to follow orders once they were “activated” by a code word or gesture—the rich stuff that conspiracy theorists have been generously coloring their hypotheses with all along. The fact that Sirhan has always claimed to not remember the actual shooting, basing his guilty plea on his own admission that he nevertheless must have been the shooter, feeds this notion that he actually was “programed” to stand in front of the victim and start shooting while someone from behind actually fired the deadly shot. The coroner who performed RFK’s autopsy (Thomas Noguchi) in 1968 confirmed the fatal bullet entered the right mastoid only inches from the victim’s ear, uniquely tattooing it with powder burns.
In response, Harris’s document specifically debunks the actual innocence claim with these and several other points: 1) the Pruszynski tape has been analyzed by other sound experts differently; 2) Rhodes-Hughes new testimony is inconclusive; 3) Noguchi’s autopsy conclusions were available at trial, but simply not used; 4) even if further allegations that ballistic evidence was tampered with are true, they only offer “speculative inferences” about Sirhan’s actual innocence; and 5) the theories of Brown and Scheflin are “unreliable and speculative,” if not altogether “fantastic.” I even recall watching television news coverage of the filing of Harris’s document, including a young woman presumably from Harris’s office even suggesting that the crime is so old now, nobody really cares about it anymore.
In August 2013, a habeas corpus expert (Magistrate Judge Andrew J. Wistrich) wrote a 60-page opinion recommending that a motion by the respondent to dismiss Sirhan’s writ be granted. Earlier this year, in January, District Judge Beverly Reid O’Connell did just that.
At the end of the day, Harris nonchalantly steered her canoe through roaring white water, poising herself as a viable candidate in 2016 for U.S. Senator. Had she not buried the Sirhan matter as tidily as she did, she risked a barrage of bad press and political shenanigans, much as Jim Garrison did in the late 1960s as depicted in Oliver Stone’s movie JFK.
Moreover, Harris had to tow an official line dismissing conspiracy theorists as kooks that the law cannot bother with and affirming a bright and shiny reality that the well-groomed people running America’s government are privileged as they are because they see the truth of reality clearer. Going through law school should help you unravel the sophisticated ideas behind AEDPA and today’s habeas corpus law, but if you can't hack it, we cannot wait for you. Meanwhile, the bloody, awful event that was the public assassination of a man who probably would have been elected President in 1968 remains nothing more than an act of random and senseless violence by a disturbed individual.
Harris admittedly played good soldier, hardly working up a sweat, and creating the cosmetic appearance that all’s well in California, as long as nutcases like Sirhan remain behind bars and the so-called mysteries surrounding cases like his remain ignored. Why then do I feel that law as practiced today is no different than it has been for thousands of years: a hocus pocus and tap dance to get the hoi polloi looking the other way so that the king (or "them") can do the dirty work required to stay in power?
And isn’t this precisely what law school is teaching us? Hocus pocus and tap dancing?
And endurance. Almost 50 years later, the magic act continues as does the dancing.
I remember career day at my law school, when a representative from Harris’s office was sitting at a desk, available to students for light conversation about possible careers. In the most calm and unassuming tone I could muster, I told her I was very interested in the Sirhan case. She acted with alarm and said she didn’t understand what I was talking about and that there were no positions available at Harris’s office.
In fact, she was the only person at career day who was not cordial and pleasant to me. Is it then really so “fantastic” to believe that one code word can set someone off into a predetermined and choreographed behavior?
Alakazam and clickety clack.
Early in 2012, the Attorney General of the State of California, Kamala Harris, found herself squished between a rabid pack of conspiracy theorists and those invisible forces (i.e., “them”) that run things in the world based on secret policies and undemocratic decision-making. Harris had submitted a court document on behalf of the respondents named in a Federal writ of habeas corpus filed by Sirhan Bishara Sirhan (b. 1944) back in the year 2000.
I took a seminar in habeas corpus, which the professor running it insisted is currently the most difficult area of law. So difficult, in fact, that such writs are routinely punted to roving magistrate judges, who presumably have more time than other Federal judges to bone up on and master all the intricacies.
The crux of the habeas corpus complexity lies in a 1996 law called the Antiterrorism and Effective Death Penalty Act (AEDPA). Even the most conservative students in my seminar had to admit that AEDPA has had the effect of suspending the writ, something the Constitution expressly prohibits, unless public safety requires it in times of insurrection or invasion.
Still, AEDPA does not apply to Sirhan’s writ, because his conviction became final in the 1970s, long before its enactment. On the other hand, this law provides that writs for older judgments like Sirhan’s should be filed by April 1997 (in essence, like the one-year statute of limitations that is normally invoked). Of course, filing Sirhan’s writ in 2000 clearly has made it barred by AEDPA’s explicit statute of limitations.
To overcome this bar, Sirhan’s lawyers have found a loophole around AEDPA, quoting a 1995 Supreme Court case, Schlup v. Delo. If Sirhan can prove he is actually innocent, the bar of the statute of limitations can be lifted.
As much as this may continue to be a glimmer of hope for Sirhan, he must still overcome the extremely high standard set in the Schlup test, which is to present new evidence showing that it is more likely than not that no reasonable juror could have found him guilty.
Sirhan’s ardent defense lawyers have always valiantly attempted to connect the dots of a half-century of conspiracy theorists. But to satisfy Schlup, they can only rely on “new” evidence, that is, evidence not presented at his trial during the early 1970s.
Most notably as “new” evidence, an audio recording by a Canadian journalist (Stanislaw Pruszynski) has been analyzed by now state-of-the-art technology showing that at least 13 shots were fired in the pantry at the Ambassador Hotel where RFK was assassinated. Sirhan’s gun only carried eight bullets.
Also “new,” another journalist and eyewitness (Nina Rhodes-Hughes) claims that a transcript of her “original statement” to the FBI of hearing only eight shots was falsified. She now claims that she initially heard a few of Sirhan’s shots to the left of her followed by a rapid fire of different shots to the right of her—12 to 14 shots in all.
Sirhan’s lawyers have also included a declaration by a psychology professor (Daniel Brown) and law professor (Alan Scheflin) stating the history of mind control experiments by the CIA and others, which included techniques involving hallucinogenic drugs and hypnosis, to “program” potential agents to follow orders once they were “activated” by a code word or gesture—the rich stuff that conspiracy theorists have been generously coloring their hypotheses with all along. The fact that Sirhan has always claimed to not remember the actual shooting, basing his guilty plea on his own admission that he nevertheless must have been the shooter, feeds this notion that he actually was “programed” to stand in front of the victim and start shooting while someone from behind actually fired the deadly shot. The coroner who performed RFK’s autopsy (Thomas Noguchi) in 1968 confirmed the fatal bullet entered the right mastoid only inches from the victim’s ear, uniquely tattooing it with powder burns.
In response, Harris’s document specifically debunks the actual innocence claim with these and several other points: 1) the Pruszynski tape has been analyzed by other sound experts differently; 2) Rhodes-Hughes new testimony is inconclusive; 3) Noguchi’s autopsy conclusions were available at trial, but simply not used; 4) even if further allegations that ballistic evidence was tampered with are true, they only offer “speculative inferences” about Sirhan’s actual innocence; and 5) the theories of Brown and Scheflin are “unreliable and speculative,” if not altogether “fantastic.” I even recall watching television news coverage of the filing of Harris’s document, including a young woman presumably from Harris’s office even suggesting that the crime is so old now, nobody really cares about it anymore.
In August 2013, a habeas corpus expert (Magistrate Judge Andrew J. Wistrich) wrote a 60-page opinion recommending that a motion by the respondent to dismiss Sirhan’s writ be granted. Earlier this year, in January, District Judge Beverly Reid O’Connell did just that.
At the end of the day, Harris nonchalantly steered her canoe through roaring white water, poising herself as a viable candidate in 2016 for U.S. Senator. Had she not buried the Sirhan matter as tidily as she did, she risked a barrage of bad press and political shenanigans, much as Jim Garrison did in the late 1960s as depicted in Oliver Stone’s movie JFK.
Moreover, Harris had to tow an official line dismissing conspiracy theorists as kooks that the law cannot bother with and affirming a bright and shiny reality that the well-groomed people running America’s government are privileged as they are because they see the truth of reality clearer. Going through law school should help you unravel the sophisticated ideas behind AEDPA and today’s habeas corpus law, but if you can't hack it, we cannot wait for you. Meanwhile, the bloody, awful event that was the public assassination of a man who probably would have been elected President in 1968 remains nothing more than an act of random and senseless violence by a disturbed individual.
Harris admittedly played good soldier, hardly working up a sweat, and creating the cosmetic appearance that all’s well in California, as long as nutcases like Sirhan remain behind bars and the so-called mysteries surrounding cases like his remain ignored. Why then do I feel that law as practiced today is no different than it has been for thousands of years: a hocus pocus and tap dance to get the hoi polloi looking the other way so that the king (or "them") can do the dirty work required to stay in power?
And isn’t this precisely what law school is teaching us? Hocus pocus and tap dancing?
And endurance. Almost 50 years later, the magic act continues as does the dancing.
I remember career day at my law school, when a representative from Harris’s office was sitting at a desk, available to students for light conversation about possible careers. In the most calm and unassuming tone I could muster, I told her I was very interested in the Sirhan case. She acted with alarm and said she didn’t understand what I was talking about and that there were no positions available at Harris’s office.
In fact, she was the only person at career day who was not cordial and pleasant to me. Is it then really so “fantastic” to believe that one code word can set someone off into a predetermined and choreographed behavior?
Alakazam and clickety clack.
Tuesday, May 19, 2015
Law School Must Be Debunked
Anecdotes about law school swim through my head. It’s hard to know where to begin, now that I declare this blog up and running again.
For some reason (and maybe I’ll even try to ascertain that reason by writing this), I’d rather cut to the chase. Let’s put forth the burning question here: why did I call this blog what I did, and what exactly needs to be debunked?
That’s a much more specific question than asking if America has crossed over some line in the sand called “Fascism,” even though I would not be honest if I did not share the first word that popped into my head when posing the question above. After all, I’m old enough to remember America during my youth impliedly promising me it would never cross that line.
Sour grapes? I’ll go as far as to say that’s a valid question. Just remember what the parable is. I ate my grapes by going to and finally finishing law school.
Has the bold experiment in Democracy finally come to a halt, exemplified by the way honest, decent young adults sign up for law school by the droves; make a financial aid pact that essentially turns them into indentured servants; and get genuinely swindled by nothing more than an elaborate bunco operation not designed to teach, but only to skim the top 10% of the class as “winners” of the law school “games”? Are such “games” really determinative of who will function best in the elite society as lawyers? Or are they even designed (like in the Hunger Games) for the amusement of those overseeing it?
And that’s all only the procedural side of things. Then there’s a substantive side that touches upon morality and theories of justice—both topics at best mere jokes in the law school atmosphere I encountered.
When beginning my journey into law back in 2007 (when I started preparing for the LSAT exam), I truly wanted to enter law school with a blank slate, even though that was most likely impossible to do at my age. I very deliberately turned off the lever in my brain that used to unleash my hypersensitivity to injustice and lies.
Sure enough, as the challenge overtook me and my attending lectures demanded that I speak freely and with an opinion, I rediscovered my hypersensitive moral compass and found it remarkably out of whack with the majority of other students (although a few, and only a few, were even more sensitive than I am). That’s not to say that I was not impressed with my not-so-sensitive colleagues, because I was and still am. On the other hand I must express some concern, since not all of those crowned as "winners" of the “games” had what I would consider a stable emotional state of mind ready to run the quirky business of interpreting and enforcing the laws of this country.
I’m still not sure what to make of my own relationship to the law. My mediocrity from the onset as reflected by my performance in the “games” surely would have discouraged someone younger than me who doesn’t know that things can turn around so keep trying. Somehow it also reminded me of those times on my high school golf team when I truly could not hit the ball or putt, despite hours upon hours of practicing.
Moreover, I always sensed with every assignment I undertook that I did fit into the legal world, and I even did pretty well in some classes. My hypersensitivity to a sense of justice should therefore not disqualify me from being a lawyer, as some professors suggested to me along the way, but should fit in like all the other human elements that law has traditionally encompassed.
Why then do I still get the funny feeling that law schools are driven by a pseudo-moral landscape based on strong people ruling over the weak through competition, even if that competition allows a few improper bolo punches. In my prep course to the Bar Exam, one of the professors put it nicely albeit with irony: “if you aren’t cheating, you aren’t trying hard enough.” Isn’t this mentality a conqueror’s mentality and against the idea of rights and Democracy as stated in the U.S. Constitution?
When I was young, I took an IQ test administered by a psychologist. I didn’t prepare for it; I didn’t try hard to do my best; and based on the way the test was administered, I certainly didn’t have any opportunity to cheat. IQs, after all, are supposed to measure simply how smart people are—not how much they might want the success that comes from officially having a high IQ. This test by a psychologist is designed by psychologists in such a way that you really can’t improve the results through trying harder than the next person.
Unlike IQs, LSAT scores and law school GPAs are supposed to test how people apply what intelligence they have and how hard their resolve might be. They are designed that way. On the other hand, isn’t the liability of a party and the culpability of a potential criminal also something that is simply supposed to be (like an IQ)? Or do people really have to earn a dismissal of their case? What is our justice system at all if a judgment can be earned instead of determined?
I must indeed express my concern for the “winners.” The overseers have now seeded them into the elite realm of American society.
Even worse, the “losers.” A few of them had what I would consider genuine character and decency, but were, like me, spastics when it comes to playing the “games.”
What needs to be debunked? Why do I care?
I care, because I don’t like to get hurt or see people being hurt by brats empowered by self-appointed gatekeepers.
Behind the ideals of law schools in America are thousands of years of scholarship, but also a bunch of high school dropouts who nonetheless got rich in America and are now setting naïve standards as to the type of super-people they want to join into their corporations.
Law is a serious business and not a reality TV show. We become lawyers to fulfill our own individual sense of justice. We are therefore by definition all welcome into the legal profession, because it must welcome anyone who wants to serve their particular American demographic.
Anyone assuming they can turn you away or tell you there isn’t room for you is corrupted. That’s what must be debunked.
For some reason (and maybe I’ll even try to ascertain that reason by writing this), I’d rather cut to the chase. Let’s put forth the burning question here: why did I call this blog what I did, and what exactly needs to be debunked?
That’s a much more specific question than asking if America has crossed over some line in the sand called “Fascism,” even though I would not be honest if I did not share the first word that popped into my head when posing the question above. After all, I’m old enough to remember America during my youth impliedly promising me it would never cross that line.
Sour grapes? I’ll go as far as to say that’s a valid question. Just remember what the parable is. I ate my grapes by going to and finally finishing law school.
Has the bold experiment in Democracy finally come to a halt, exemplified by the way honest, decent young adults sign up for law school by the droves; make a financial aid pact that essentially turns them into indentured servants; and get genuinely swindled by nothing more than an elaborate bunco operation not designed to teach, but only to skim the top 10% of the class as “winners” of the law school “games”? Are such “games” really determinative of who will function best in the elite society as lawyers? Or are they even designed (like in the Hunger Games) for the amusement of those overseeing it?
And that’s all only the procedural side of things. Then there’s a substantive side that touches upon morality and theories of justice—both topics at best mere jokes in the law school atmosphere I encountered.
When beginning my journey into law back in 2007 (when I started preparing for the LSAT exam), I truly wanted to enter law school with a blank slate, even though that was most likely impossible to do at my age. I very deliberately turned off the lever in my brain that used to unleash my hypersensitivity to injustice and lies.
Sure enough, as the challenge overtook me and my attending lectures demanded that I speak freely and with an opinion, I rediscovered my hypersensitive moral compass and found it remarkably out of whack with the majority of other students (although a few, and only a few, were even more sensitive than I am). That’s not to say that I was not impressed with my not-so-sensitive colleagues, because I was and still am. On the other hand I must express some concern, since not all of those crowned as "winners" of the “games” had what I would consider a stable emotional state of mind ready to run the quirky business of interpreting and enforcing the laws of this country.
I’m still not sure what to make of my own relationship to the law. My mediocrity from the onset as reflected by my performance in the “games” surely would have discouraged someone younger than me who doesn’t know that things can turn around so keep trying. Somehow it also reminded me of those times on my high school golf team when I truly could not hit the ball or putt, despite hours upon hours of practicing.
Moreover, I always sensed with every assignment I undertook that I did fit into the legal world, and I even did pretty well in some classes. My hypersensitivity to a sense of justice should therefore not disqualify me from being a lawyer, as some professors suggested to me along the way, but should fit in like all the other human elements that law has traditionally encompassed.
Why then do I still get the funny feeling that law schools are driven by a pseudo-moral landscape based on strong people ruling over the weak through competition, even if that competition allows a few improper bolo punches. In my prep course to the Bar Exam, one of the professors put it nicely albeit with irony: “if you aren’t cheating, you aren’t trying hard enough.” Isn’t this mentality a conqueror’s mentality and against the idea of rights and Democracy as stated in the U.S. Constitution?
When I was young, I took an IQ test administered by a psychologist. I didn’t prepare for it; I didn’t try hard to do my best; and based on the way the test was administered, I certainly didn’t have any opportunity to cheat. IQs, after all, are supposed to measure simply how smart people are—not how much they might want the success that comes from officially having a high IQ. This test by a psychologist is designed by psychologists in such a way that you really can’t improve the results through trying harder than the next person.
Unlike IQs, LSAT scores and law school GPAs are supposed to test how people apply what intelligence they have and how hard their resolve might be. They are designed that way. On the other hand, isn’t the liability of a party and the culpability of a potential criminal also something that is simply supposed to be (like an IQ)? Or do people really have to earn a dismissal of their case? What is our justice system at all if a judgment can be earned instead of determined?
I must indeed express my concern for the “winners.” The overseers have now seeded them into the elite realm of American society.
Even worse, the “losers.” A few of them had what I would consider genuine character and decency, but were, like me, spastics when it comes to playing the “games.”
What needs to be debunked? Why do I care?
I care, because I don’t like to get hurt or see people being hurt by brats empowered by self-appointed gatekeepers.
Behind the ideals of law schools in America are thousands of years of scholarship, but also a bunch of high school dropouts who nonetheless got rich in America and are now setting naïve standards as to the type of super-people they want to join into their corporations.
Law is a serious business and not a reality TV show. We become lawyers to fulfill our own individual sense of justice. We are therefore by definition all welcome into the legal profession, because it must welcome anyone who wants to serve their particular American demographic.
Anyone assuming they can turn you away or tell you there isn’t room for you is corrupted. That’s what must be debunked.
Monday, April 20, 2015
Five Years Later
A recent google search about another matter allowed me to arrive at this blog after nearly five years of neglect. I was so happy to see recent comments were made by readers who liked what they read. I’m glad others chimed in as well.
I’ll be happy to update my saga, especially since people are asking. More importantly, I hope that this can continue to be a helpful source to those, like me, who encounter law school as anything but a routine process.
I’ve never thought of myself as someone who wants to steal thunder away from those who do well in law school, but attending law school has made me believe steadfastly that some of the best future legal talent lies in those people who struggle through it. We live in an era where law schools and business schools are attempting to prove themselves as the only real useful training that higher education has to offer, outside of perhaps med school and engineering school.
I have lots more stories about my experiences as a law student over the past five years. For now, I believe I left off with my attempts to pass the Baby Bar (FYLSE).
Based on your comments, I do need to clear up some of the rules about this. Like the California Bar, you can take the Baby Bar as many times as you want. The only restriction is you can’t get your studies at a correspondence school or at an unaccredited brick-and-mortar school to count, unless you pass the Baby Bar by the third time it is held after the successful conclusion of your first year. In other words, if you conclude your first year in the month of June, you can take the Baby Bar the following October as the first attempt, the following June as the second attempt, and the October after that as the third attempt, but skipping any of these “attempts” does not buy you more time. They count as an “attempt” whether you sit for it or not.
I was in a different category, as someone who had been culled or academically disqualified from an ABA-accredited law school. I did not sit for my “first attempt” of the Baby Bar, because my school was offering one more semester to disqualified students as a “retesting” period: you were given one more chance to pass the exams with a C+ or better, which I did not accomplish. My “second attempt” was therefore actually my first (June 2010), which I did not pass.
The following September, I enrolled in an unaccredited law school that today no longer exists. That meant, I had only one more chance to pass the Baby Bar (my “third attempt,” which was actually my second) if those courses were to count. I did not pass the October 2010 Baby Bar either, leaving me once again knocked down in the dirt.
Nonetheless, I did enroll for the June 2011 Baby Bar, even though it didn’t count for anything. I passed it with lots of room to spare.
As far as the statistics went, 24.6% of all test-takers passed the June 2010 Baby Bar; 19.5% passed the October 2010; and 18.7% passed the June 2011. That means that of my three attempts, I passed the hardest one.
I can say that I benefited because the June 2011 Baby Bar had two criminal law questions on it, and I was strongest in criminal law. There was a rare nuisance question that I did not do well on. As far the multiple choice questions, I got a surprising 85% correct.
But as I said, my finally passing the Baby Bar amounted to nothing, except as a bargaining chip to get into another school, which might agree to allow me credit for some of those first-year courses.
What happened instead was that at the beginning of 2011, I started courting other ABA-accredited schools with the intention of starting completely over with my law studies. This is consistent with another rule here in California that if you are disqualified after your first year, you can become eligible to enroll again at a law school after three years. Because I was disqualified after my first year in 2008-2009, I could enroll again for law school beginning in the fall of 2011.
One of the ongoing influences here were the student loans I had taken out in 2008-2009, which I continued to dodge with forbearances and unemployment deferments, but these were running out. Even though my original school rejected my application for re-admittance (probably with some good cause, although I did feel betrayed), I got accepted into another ABA-accredited school’s fulltime day program.
So there you have it: a law school experience that stretched out into six years instead of three; a Baby Bar that I finally passed on my third attempt, but not the required “third attempt” to make any courses in my past count; a second year commenced at an unaccredited school that amounted to nothing; but finally, a rebirth of sorts at a new ABA-accredited school. I graduated with a J.D. last May. I am awaiting results from the California Bar Exam which I took last February.
There is no moral to this tale yet. It keeps going. I do not know how I will be accepted into the lawyer community, but suffice it to say that I have my doubts after these experiences that it will be an easy transition.
In Hesse’s Demian, the hero is asked to look upon the mark on Cain’s forehead not as a curse, but as a badge of courage. Somehow, that’s how I am trying to interpret all this. If anyone else reading this relates to any of my missteps here and feel you have a mark on your forehead, I encourage you to try feeling the same way. Be bad.
I’ll be happy to update my saga, especially since people are asking. More importantly, I hope that this can continue to be a helpful source to those, like me, who encounter law school as anything but a routine process.
I’ve never thought of myself as someone who wants to steal thunder away from those who do well in law school, but attending law school has made me believe steadfastly that some of the best future legal talent lies in those people who struggle through it. We live in an era where law schools and business schools are attempting to prove themselves as the only real useful training that higher education has to offer, outside of perhaps med school and engineering school.
I have lots more stories about my experiences as a law student over the past five years. For now, I believe I left off with my attempts to pass the Baby Bar (FYLSE).
Based on your comments, I do need to clear up some of the rules about this. Like the California Bar, you can take the Baby Bar as many times as you want. The only restriction is you can’t get your studies at a correspondence school or at an unaccredited brick-and-mortar school to count, unless you pass the Baby Bar by the third time it is held after the successful conclusion of your first year. In other words, if you conclude your first year in the month of June, you can take the Baby Bar the following October as the first attempt, the following June as the second attempt, and the October after that as the third attempt, but skipping any of these “attempts” does not buy you more time. They count as an “attempt” whether you sit for it or not.
I was in a different category, as someone who had been culled or academically disqualified from an ABA-accredited law school. I did not sit for my “first attempt” of the Baby Bar, because my school was offering one more semester to disqualified students as a “retesting” period: you were given one more chance to pass the exams with a C+ or better, which I did not accomplish. My “second attempt” was therefore actually my first (June 2010), which I did not pass.
The following September, I enrolled in an unaccredited law school that today no longer exists. That meant, I had only one more chance to pass the Baby Bar (my “third attempt,” which was actually my second) if those courses were to count. I did not pass the October 2010 Baby Bar either, leaving me once again knocked down in the dirt.
Nonetheless, I did enroll for the June 2011 Baby Bar, even though it didn’t count for anything. I passed it with lots of room to spare.
As far as the statistics went, 24.6% of all test-takers passed the June 2010 Baby Bar; 19.5% passed the October 2010; and 18.7% passed the June 2011. That means that of my three attempts, I passed the hardest one.
I can say that I benefited because the June 2011 Baby Bar had two criminal law questions on it, and I was strongest in criminal law. There was a rare nuisance question that I did not do well on. As far the multiple choice questions, I got a surprising 85% correct.
But as I said, my finally passing the Baby Bar amounted to nothing, except as a bargaining chip to get into another school, which might agree to allow me credit for some of those first-year courses.
What happened instead was that at the beginning of 2011, I started courting other ABA-accredited schools with the intention of starting completely over with my law studies. This is consistent with another rule here in California that if you are disqualified after your first year, you can become eligible to enroll again at a law school after three years. Because I was disqualified after my first year in 2008-2009, I could enroll again for law school beginning in the fall of 2011.
One of the ongoing influences here were the student loans I had taken out in 2008-2009, which I continued to dodge with forbearances and unemployment deferments, but these were running out. Even though my original school rejected my application for re-admittance (probably with some good cause, although I did feel betrayed), I got accepted into another ABA-accredited school’s fulltime day program.
So there you have it: a law school experience that stretched out into six years instead of three; a Baby Bar that I finally passed on my third attempt, but not the required “third attempt” to make any courses in my past count; a second year commenced at an unaccredited school that amounted to nothing; but finally, a rebirth of sorts at a new ABA-accredited school. I graduated with a J.D. last May. I am awaiting results from the California Bar Exam which I took last February.
There is no moral to this tale yet. It keeps going. I do not know how I will be accepted into the lawyer community, but suffice it to say that I have my doubts after these experiences that it will be an easy transition.
In Hesse’s Demian, the hero is asked to look upon the mark on Cain’s forehead not as a curse, but as a badge of courage. Somehow, that’s how I am trying to interpret all this. If anyone else reading this relates to any of my missteps here and feel you have a mark on your forehead, I encourage you to try feeling the same way. Be bad.
Tuesday, August 10, 2010
The Transubstantiation of Lawyer Reality
Do you believe? I mean do you have faith, that when a court decides someone is guilty, that person actually is guilty? What about the opposite: if innocent in a court of law that person is innocent?
I’ve been mildly but genuinely criticized in my blog for taking on the whole legal profession as it is practiced here in America, instead of concentrating on the smaller reality that law schools are dishonest and greedy. Concerning the history of law, we all know that sometimes the good guy gets executed: just read the Gospels of the Bible or about poor Socrates drinking the hemlock.
I’ve always been interested in the traditional differences between Catholics and Protestants, and one of these has been the Catholic belief that during the ritual of Communion, they actually believe that the wine and bread are transubstantiated into the blood and body of Christ. Catholics don’t talk about this or try to explain how this could be, they use their faith to believe it: not to satiate their scientific curiosity, but to make them more righteous in the eyes of the Lord.
Without trying to get into the nitty gritty of how religion functions or dysfunctions, I see a comparison to the function/dysfunction of law school. When we 1Ls were being introduced to moot court, about 20 upper classmates walked into our lecture hall, single file, all dressed the same in their natty legal outfits, sat down in a perfectly sequential choreography, never cracked a smile, never waved at acquaintances in the audience, or changed the thin-lipped expressions on their faces. The packed room of students all went silent, as if the air had just been sucked out of the room. “My God,” I whispered to the person next to me, “is this a law school or a cult?”
It’s a good question and pertains to what these youngsters apparently want to do for the rest of their lives, even if they appeared to me to be painfully naïve. Keep in mind, all you fresh young lawyers looking for jobs at law firms or business! Sometimes these places want your obedient, suited selves not because they are nurturing a work environment where people above all are not allowed to giggle or fart, but because they need young gullible minds to do their dirty work. In fact, some of these young gullible minds might even be coaxed into doing something that will get them disbarred or even imprisoned.
But at the end of the day, what do they really believe? What is their faith? Do they borrow from Catholicism and believe that they are actually the cream of a meritocracy crop that is smarter than anyone else in society? Are lawyers officers of the courts or special privileged members of society? Are they an esoteric cult whose brain functions rise way, way above the norm, so they can protect an otherwise hoi polloi society from themselves? What do the lawyers themselves believe?
I have been reading Vincent Bugliosi’s Reclaiming History, and have even started up a new blog about it. Bugliosi is a Los Angeles prosecutor famous for trying and convicting Charles Manson in the late 1960s. It’s one thing when the lawyer theater that goes on inside a court is so cocksure of itself that it sends a man to the lethal injection, but Bugliosi is of a breed that believes this theater is the only reality to the point where he thinks others who don’t think like him are in a fantasy world. Can lawyers, by dint of their skills and bag of tricks inside a courtroom, actually bring these methods outside of the court and actually transubstantiate lawyer theater into reality? Bugliosi believes so, as he now declares himself an historian, advanced logician, and scientist.
What about you: do you believe? Sometimes I have to thank God for apostasy.
I’ve been mildly but genuinely criticized in my blog for taking on the whole legal profession as it is practiced here in America, instead of concentrating on the smaller reality that law schools are dishonest and greedy. Concerning the history of law, we all know that sometimes the good guy gets executed: just read the Gospels of the Bible or about poor Socrates drinking the hemlock.
I’ve always been interested in the traditional differences between Catholics and Protestants, and one of these has been the Catholic belief that during the ritual of Communion, they actually believe that the wine and bread are transubstantiated into the blood and body of Christ. Catholics don’t talk about this or try to explain how this could be, they use their faith to believe it: not to satiate their scientific curiosity, but to make them more righteous in the eyes of the Lord.
Without trying to get into the nitty gritty of how religion functions or dysfunctions, I see a comparison to the function/dysfunction of law school. When we 1Ls were being introduced to moot court, about 20 upper classmates walked into our lecture hall, single file, all dressed the same in their natty legal outfits, sat down in a perfectly sequential choreography, never cracked a smile, never waved at acquaintances in the audience, or changed the thin-lipped expressions on their faces. The packed room of students all went silent, as if the air had just been sucked out of the room. “My God,” I whispered to the person next to me, “is this a law school or a cult?”
It’s a good question and pertains to what these youngsters apparently want to do for the rest of their lives, even if they appeared to me to be painfully naïve. Keep in mind, all you fresh young lawyers looking for jobs at law firms or business! Sometimes these places want your obedient, suited selves not because they are nurturing a work environment where people above all are not allowed to giggle or fart, but because they need young gullible minds to do their dirty work. In fact, some of these young gullible minds might even be coaxed into doing something that will get them disbarred or even imprisoned.
But at the end of the day, what do they really believe? What is their faith? Do they borrow from Catholicism and believe that they are actually the cream of a meritocracy crop that is smarter than anyone else in society? Are lawyers officers of the courts or special privileged members of society? Are they an esoteric cult whose brain functions rise way, way above the norm, so they can protect an otherwise hoi polloi society from themselves? What do the lawyers themselves believe?
I have been reading Vincent Bugliosi’s Reclaiming History, and have even started up a new blog about it. Bugliosi is a Los Angeles prosecutor famous for trying and convicting Charles Manson in the late 1960s. It’s one thing when the lawyer theater that goes on inside a court is so cocksure of itself that it sends a man to the lethal injection, but Bugliosi is of a breed that believes this theater is the only reality to the point where he thinks others who don’t think like him are in a fantasy world. Can lawyers, by dint of their skills and bag of tricks inside a courtroom, actually bring these methods outside of the court and actually transubstantiate lawyer theater into reality? Bugliosi believes so, as he now declares himself an historian, advanced logician, and scientist.
What about you: do you believe? Sometimes I have to thank God for apostasy.
Friday, July 23, 2010
The Baby Bar
Chances are, if you went to an ABA accredited law school and graduated in good standing, you have never heard of the “Baby Bar” in California. My blog has been dedicated to complaining about law schools today, and because I have spent a lot of time preparing for California’s Baby Bar these past months, I have been taking some time off. My apologies to the cause!
The Baby Bar is a nickname for the First-Year Law Students Examination. You only have to take it if you did not go to an ABA accredited law school or were academically disqualified after the first year at an ABA accredited law school. It covers only torts, contracts, and criminal law/procedure.
I spent months preparing for it and finally took it at the end of last June.
It costs over $600 and, like any other law exam, you can see that much of the money you have expended is spent for rather outmoded security precautions. They’re always trying to catch people taking the exam for someone else, but you get the impression they also just use the stodgy security precautions as a sort of intimidating ritual. How many people do they actually catch each year trying to take the exam for someone else?
My most shocking revelation with the California Baby Bar is that so many non-Californians were taking it. I first met a guy from Utah who was a student of a correspondence school based in California. Then I met a guy from Missouri, who was retired and had no intention of ever practicing law in California. The woman I sat next to during the test was from Wisconsin.
I am told only 20% of the testers will actually pass the Baby Bar, but that isn’t because it is so difficult. The low passage rate is attributed to the fact that these are mostly self-taught legal minds—the people who are just itching to practice law, but whose grades and LSAT scores aren’t good enough to get into an ABA accredited law school.
The most vicious rumor I heard about it is that California considered long ago discontinuing this exam, but they keep it going because it generates a lot of revenue. That’s a cynical assessment, although I can only imagine that it’s true.
I have used this blog to hash out the theory that the only reason I ended up in the bottom 10% of my law school is that I failed to learn how to write the essays. I think I might have even missed an important Saturday lecture when this was explained to the other students.
For the Baby Bar, I picked up a Fleming’s legal writing workbook that clearer than any other source shows how legal essays should be written, using IRAC, but using the legal term for the “I” (or “Issue”) all in capital letters and underlined. The “R” (or “Rule”) should have specific elements to it, if possible. Otherwise, the multiple-choice section of the Baby Bar was much easier than the Multi-State multiple choice questions that I used to prepare with.
I’m almost willing to say that this is my last hurrah with law, and if I don’t pass this Baby Bar, there really is something beyond my reach to law and I should take back all my complaints and let the world be run by the youngsters that are outdoing me. Then again, I do have three chances to pass this thing.
Meanwhile, I find myself believing that I really do respect the law more than most of the colleagues that I have talked with. I really can’t bring myself to say “I want to be a lawyer,” but find it easier than others to say that justice is important and corruption is bad. When there is no justice in the legal system and corruption is rampant, we have every right to complain about law schools and all the other legal institutions beyond law school. That’s a different breed than many successful lawyers.
In the meantime, for my own purposes and desires, I am probably preparing for my legal career where I’m going to be at my best—among all the other Baby Bar slackers. Calling the legal education system dysfunctional and even corrupt is not the task of a law school brat whose feet never touch the ground.
Working for justice and against corruption takes some real work and sacrifice. To that end, I am proud to be the bad boy of law.
The Baby Bar is a nickname for the First-Year Law Students Examination. You only have to take it if you did not go to an ABA accredited law school or were academically disqualified after the first year at an ABA accredited law school. It covers only torts, contracts, and criminal law/procedure.
I spent months preparing for it and finally took it at the end of last June.
It costs over $600 and, like any other law exam, you can see that much of the money you have expended is spent for rather outmoded security precautions. They’re always trying to catch people taking the exam for someone else, but you get the impression they also just use the stodgy security precautions as a sort of intimidating ritual. How many people do they actually catch each year trying to take the exam for someone else?
My most shocking revelation with the California Baby Bar is that so many non-Californians were taking it. I first met a guy from Utah who was a student of a correspondence school based in California. Then I met a guy from Missouri, who was retired and had no intention of ever practicing law in California. The woman I sat next to during the test was from Wisconsin.
I am told only 20% of the testers will actually pass the Baby Bar, but that isn’t because it is so difficult. The low passage rate is attributed to the fact that these are mostly self-taught legal minds—the people who are just itching to practice law, but whose grades and LSAT scores aren’t good enough to get into an ABA accredited law school.
The most vicious rumor I heard about it is that California considered long ago discontinuing this exam, but they keep it going because it generates a lot of revenue. That’s a cynical assessment, although I can only imagine that it’s true.
I have used this blog to hash out the theory that the only reason I ended up in the bottom 10% of my law school is that I failed to learn how to write the essays. I think I might have even missed an important Saturday lecture when this was explained to the other students.
For the Baby Bar, I picked up a Fleming’s legal writing workbook that clearer than any other source shows how legal essays should be written, using IRAC, but using the legal term for the “I” (or “Issue”) all in capital letters and underlined. The “R” (or “Rule”) should have specific elements to it, if possible. Otherwise, the multiple-choice section of the Baby Bar was much easier than the Multi-State multiple choice questions that I used to prepare with.
I’m almost willing to say that this is my last hurrah with law, and if I don’t pass this Baby Bar, there really is something beyond my reach to law and I should take back all my complaints and let the world be run by the youngsters that are outdoing me. Then again, I do have three chances to pass this thing.
Meanwhile, I find myself believing that I really do respect the law more than most of the colleagues that I have talked with. I really can’t bring myself to say “I want to be a lawyer,” but find it easier than others to say that justice is important and corruption is bad. When there is no justice in the legal system and corruption is rampant, we have every right to complain about law schools and all the other legal institutions beyond law school. That’s a different breed than many successful lawyers.
In the meantime, for my own purposes and desires, I am probably preparing for my legal career where I’m going to be at my best—among all the other Baby Bar slackers. Calling the legal education system dysfunctional and even corrupt is not the task of a law school brat whose feet never touch the ground.
Working for justice and against corruption takes some real work and sacrifice. To that end, I am proud to be the bad boy of law.
Friday, June 25, 2010
The Great American Number Crunch
A few months ago, I went to the orientation for prospective students at McGeorge School of Law in Sacramento. My interest was piqued right off the bat, when Assistant Dean Adam Barrett claimed during his welcome that McGeorge had a “95.1% placement rate.” I wrote that number down in the folder they handed out to us. I still have that folder.
Not more than 20 minutes later, when a student was giving about 15 of us a campus tour, I heard her say that McGeorge had an 85% placement rate (she thought, at least). I opened my folder and wrote that number down too. A few hours after that, I was at yet another lecture about careers in law, and the lecturer said that McGeorge had a placement rate of 92.8% in 2007, 90% in 2008, and "they" (whoever that may be) didn’t yet have the numbers for 2009.
Well, as you can possibly imagine, I kept singing that Stephen Stills song that goes “… nobody’s right, if everbody’s wrong…”
But still I have to say it: isn’t it more than just ironic that the professors in these law schools are going to be teaching us all about the torts of misrepresentation and negligent misrepresentation, all the while undoubtedly aware that the little tykes they are teaching are being misrepresented right and left by their own law schools?
A young New York Times reporter named Catherine Rampell (who, based on her photos, is also very attractive, young and charismatic) reported in an article a few days ago that some law schools are implementing policies of deliberate grade inflation, to make their JDs more attractive on the job market. Rampell also runs a blog for the New York Times called “Economix.”
It’s refreshing to see a new face tackling these issues, although Rampell probably doesn’t yet realize the nature and how big this tiger she has by the tail is. Our American business culture has gotten so used to lying and false public statements that sometimes I wonder what journalists are even for anymore.
We don’t need to be uncivil about this, but a façade of civility certainly keeps us from confronting the lies coming out of law schools, not to mention the forces that gave us our present financial disaster. Then again, isn’t there some sort of place where we can make hard legal analysis of this? What are the essential elements of a lie? Let’s IRAC this and determine if Barrett is lying about his numbers, or is number crunching an acceptable form of advertisement puffing?
I wish there was a forum where we could challenge people like Dean Barrett and catch him red-handed playing the number crunch game. I can only imagine a follow up by Ms. Rampell involving some serious telephone grilling of Dean Barrett to cough up the sources of his numbers.
Meanwhile, maybe chiming in on Rampell’s blog might start a miniscule ball rolling. Let’s give her story some legs and get it walking on its own inside the pages of the New York Times where it belongs.
Not more than 20 minutes later, when a student was giving about 15 of us a campus tour, I heard her say that McGeorge had an 85% placement rate (she thought, at least). I opened my folder and wrote that number down too. A few hours after that, I was at yet another lecture about careers in law, and the lecturer said that McGeorge had a placement rate of 92.8% in 2007, 90% in 2008, and "they" (whoever that may be) didn’t yet have the numbers for 2009.
Well, as you can possibly imagine, I kept singing that Stephen Stills song that goes “… nobody’s right, if everbody’s wrong…”
But still I have to say it: isn’t it more than just ironic that the professors in these law schools are going to be teaching us all about the torts of misrepresentation and negligent misrepresentation, all the while undoubtedly aware that the little tykes they are teaching are being misrepresented right and left by their own law schools?
A young New York Times reporter named Catherine Rampell (who, based on her photos, is also very attractive, young and charismatic) reported in an article a few days ago that some law schools are implementing policies of deliberate grade inflation, to make their JDs more attractive on the job market. Rampell also runs a blog for the New York Times called “Economix.”
It’s refreshing to see a new face tackling these issues, although Rampell probably doesn’t yet realize the nature and how big this tiger she has by the tail is. Our American business culture has gotten so used to lying and false public statements that sometimes I wonder what journalists are even for anymore.
We don’t need to be uncivil about this, but a façade of civility certainly keeps us from confronting the lies coming out of law schools, not to mention the forces that gave us our present financial disaster. Then again, isn’t there some sort of place where we can make hard legal analysis of this? What are the essential elements of a lie? Let’s IRAC this and determine if Barrett is lying about his numbers, or is number crunching an acceptable form of advertisement puffing?
I wish there was a forum where we could challenge people like Dean Barrett and catch him red-handed playing the number crunch game. I can only imagine a follow up by Ms. Rampell involving some serious telephone grilling of Dean Barrett to cough up the sources of his numbers.
Meanwhile, maybe chiming in on Rampell’s blog might start a miniscule ball rolling. Let’s give her story some legs and get it walking on its own inside the pages of the New York Times where it belongs.
Wednesday, June 2, 2010
Learning the Secret Handshake of Legal Writing
As I get deeper into my studies and wonder why I’m not excelling as quickly as the other 1Ls, I’m constantly getting advice from those 1Ls that have moved on. I probably just need to learn how to write the exams, they say. Not learn to write them better, mind you, but learn to write them, period.
Oddly enough, I am beginning to see the logic to this criticism. There is definitely a trick, or perhaps more a knack than a trick, to writing law exams.
If your writing style tries to go off on its own narcissistic footing as something worthy of attention on its literary merits, expect your law professor to be intimidated and insulted. After all, you can read and enjoy everything from Hemmingway to Pynchon, but please don’t try to impress anyone with your writing style if you are about to send someone to the lethal injection.
But we’ve all read enough cases by now to know that judges go off on their own narcissistic binges of bloated and self-indulging writing styles. So just what is it about writing in an individual style that genuinely pisses off law professors?
Anyone who has taken the time, and perhaps even the pains, to read anything on my blog, probably sees that I like to write and with lots of density, wringing out thoughts with as much grueling effort as wringing out a giant, sopping wet beach towel. I normally avoid brevity and clarity, since it’s artificial compared to one’s actual thought process. Then again, if it is effectively forceful—like a Karate chop—those short quips can be useful.
With my questionable but individual style, I have spent several decades trying to keep a freelance writing career going. I’m familiar with every Perry White wannabe editor who keeps carping about consistency, diction, and writing so the readers can understand. I’m a writer who late in his career also understands that sometimes those rejections can be the best of compliments. It’s not sour grapes at all to know that you are not part of an elite group of writers whose stuff you don’t like to read anyway. Any writer who doesn’t write the way he or she wants to write isn’t writing at all. Even if you will lose sympathy with the majority of readers reading your stuff, someone out there is going to pick up what you’re trying to say by the way you are trying to say it.
When I began studying law, one of the first lessons I undertook was a humorous seven-CD set on torts by a crusty New York lawyer who absolutely doted on the writing style of Benjamin Cardozo. I took that to heart at the time, but years later and reading more Cardozo opinions than I care to think about, I have even come to despise his writing style. It is a pretentious effort at elegance and flows off the tongue like syrup that is both too sweet and too thick.
Another approach to legal writing that I have heard another lawyer espouse is that it should not be stylish at all. He compared proper legal writing to the radio transcripts of Sully Sullenberger’s transmissions with air traffic controllers during his crash landing into the Hudson River. Lawyers should only say things like “can’t land there” or “must try a different spot.” “Avoid needless words,” said Strunk and White several generations ago, although probably scoring more points for being cleverly self-referential, I think, than for stating a maxim that should be worshiped like the Holy Grail.
Up to this point, these are all nitpicking observations about writing and style. What do law professors actually look for these days when they are grading an exam? A possible answer does raise valid reasons for concern. For example, one thing I’m told they look for is spaces between each element of your analysis (IRAC) and bigger spaces between each analysis itself. Is this really a reason to fail a 1L? Of course, you’ll never actually hear a law professor tell you to your face that the content of your legal analysis was OK, but he actually didn’t read it because it was a bit harsh on the eyes. In other words, he won’t actually take the trouble of distinguishing this rule from that analysis or that conclusion, if it means squinting, or taking the time to read it over if he didn’t get it the first time. Alas, there are no manuals of style that state rules for making your exams easy on the eyes of the law professor.
In fact, what law professors want to see on exams but won’t admit is a dumbed-down style. There is a shorthand to legal writing that they insist upon, but can’t actually describe. If they actually have to read something in the form of a well-structured sentence or a complete thought, they will be irritated. Even if you had the ability to memorize codes and rules verbatim, that won’t help you. Law students must write fragments of sentences that bluntly mention the words and phrases the professor wants to read to score points. Any complete thoughts will obfuscate this process and waste the professor’s precious time.
Even worse. If you write with any style whatsoever or with the idea of fleshing out an idea so that it actually makes sense to you, your professor will think you are faking it. Even worse. Your professor will think you are not trying to be a lawyer at all. Your professor will think you’re making fun of him and the entire legal profession. Lawyers have to make decisions quickly, and don’t want anyone to dwell on the fact that if you actually spend some time thinking about what they have written, it sometimes doesn’t make any sense.
I recently saw a video of famous lawyer Lawrence Lessig giving a lecture with the assistance of a Power Point presentation. Like Tom Hanks at the beginning of the Da Vinci Code, Lessig talks while basic words he uses appear on the screen. It creates a stylish sort of reverie, almost hypnotic in its power to force you to look past the meaning of what’s being said into a form of pure persuasion. It is lawyer theater.
It is also rock ‘n’ roll, with a rock star on stage. We should be learning to understand their theater much more. This is hermeneutics at its most tricky form: pure prestidigitation as a method of persuasion.
I can almost get the knack of today’s approach to legal writing if I think of it as a secret handshake. The professor won’t show you what it is, but until you learn it and then respect the secret with your life, you won’t pass your 1L exams, let alone a State Bar Exam.
My hat’s off to my colleagues who picked up on this handshake right away without thinking about it. I just hope they do think about it at some point.
Oddly enough, I am beginning to see the logic to this criticism. There is definitely a trick, or perhaps more a knack than a trick, to writing law exams.
If your writing style tries to go off on its own narcissistic footing as something worthy of attention on its literary merits, expect your law professor to be intimidated and insulted. After all, you can read and enjoy everything from Hemmingway to Pynchon, but please don’t try to impress anyone with your writing style if you are about to send someone to the lethal injection.
But we’ve all read enough cases by now to know that judges go off on their own narcissistic binges of bloated and self-indulging writing styles. So just what is it about writing in an individual style that genuinely pisses off law professors?
Anyone who has taken the time, and perhaps even the pains, to read anything on my blog, probably sees that I like to write and with lots of density, wringing out thoughts with as much grueling effort as wringing out a giant, sopping wet beach towel. I normally avoid brevity and clarity, since it’s artificial compared to one’s actual thought process. Then again, if it is effectively forceful—like a Karate chop—those short quips can be useful.
With my questionable but individual style, I have spent several decades trying to keep a freelance writing career going. I’m familiar with every Perry White wannabe editor who keeps carping about consistency, diction, and writing so the readers can understand. I’m a writer who late in his career also understands that sometimes those rejections can be the best of compliments. It’s not sour grapes at all to know that you are not part of an elite group of writers whose stuff you don’t like to read anyway. Any writer who doesn’t write the way he or she wants to write isn’t writing at all. Even if you will lose sympathy with the majority of readers reading your stuff, someone out there is going to pick up what you’re trying to say by the way you are trying to say it.
When I began studying law, one of the first lessons I undertook was a humorous seven-CD set on torts by a crusty New York lawyer who absolutely doted on the writing style of Benjamin Cardozo. I took that to heart at the time, but years later and reading more Cardozo opinions than I care to think about, I have even come to despise his writing style. It is a pretentious effort at elegance and flows off the tongue like syrup that is both too sweet and too thick.
Another approach to legal writing that I have heard another lawyer espouse is that it should not be stylish at all. He compared proper legal writing to the radio transcripts of Sully Sullenberger’s transmissions with air traffic controllers during his crash landing into the Hudson River. Lawyers should only say things like “can’t land there” or “must try a different spot.” “Avoid needless words,” said Strunk and White several generations ago, although probably scoring more points for being cleverly self-referential, I think, than for stating a maxim that should be worshiped like the Holy Grail.
Up to this point, these are all nitpicking observations about writing and style. What do law professors actually look for these days when they are grading an exam? A possible answer does raise valid reasons for concern. For example, one thing I’m told they look for is spaces between each element of your analysis (IRAC) and bigger spaces between each analysis itself. Is this really a reason to fail a 1L? Of course, you’ll never actually hear a law professor tell you to your face that the content of your legal analysis was OK, but he actually didn’t read it because it was a bit harsh on the eyes. In other words, he won’t actually take the trouble of distinguishing this rule from that analysis or that conclusion, if it means squinting, or taking the time to read it over if he didn’t get it the first time. Alas, there are no manuals of style that state rules for making your exams easy on the eyes of the law professor.
In fact, what law professors want to see on exams but won’t admit is a dumbed-down style. There is a shorthand to legal writing that they insist upon, but can’t actually describe. If they actually have to read something in the form of a well-structured sentence or a complete thought, they will be irritated. Even if you had the ability to memorize codes and rules verbatim, that won’t help you. Law students must write fragments of sentences that bluntly mention the words and phrases the professor wants to read to score points. Any complete thoughts will obfuscate this process and waste the professor’s precious time.
Even worse. If you write with any style whatsoever or with the idea of fleshing out an idea so that it actually makes sense to you, your professor will think you are faking it. Even worse. Your professor will think you are not trying to be a lawyer at all. Your professor will think you’re making fun of him and the entire legal profession. Lawyers have to make decisions quickly, and don’t want anyone to dwell on the fact that if you actually spend some time thinking about what they have written, it sometimes doesn’t make any sense.
I recently saw a video of famous lawyer Lawrence Lessig giving a lecture with the assistance of a Power Point presentation. Like Tom Hanks at the beginning of the Da Vinci Code, Lessig talks while basic words he uses appear on the screen. It creates a stylish sort of reverie, almost hypnotic in its power to force you to look past the meaning of what’s being said into a form of pure persuasion. It is lawyer theater.
It is also rock ‘n’ roll, with a rock star on stage. We should be learning to understand their theater much more. This is hermeneutics at its most tricky form: pure prestidigitation as a method of persuasion.
I can almost get the knack of today’s approach to legal writing if I think of it as a secret handshake. The professor won’t show you what it is, but until you learn it and then respect the secret with your life, you won’t pass your 1L exams, let alone a State Bar Exam.
My hat’s off to my colleagues who picked up on this handshake right away without thinking about it. I just hope they do think about it at some point.
Monday, April 19, 2010
Spook Law for the Invisibile Government
Here’s a tidbit with plenty of room for cynical spin to share with all those out there with a skeptical eye towards law school. I just found out that McGeorge Law School in Sacramento is run by a powerful woman with one leg firmly planted into the world of spooks.
McGeorge’s Dean Elizabeth Rindskopf Parker used to be “the General Counsel” of the NSA under the Reagan Administration, and “the General Counsel" of the CIA under the George Herbert Walker Bush Administration. These are powerful positions that are nominated directly by the President and must get approval from the Senate. Finding this out sure made me wonder how these conservative Presidents would have had enough knowledge and wherewithal to nominate such a lawyer. During the Reagan/Bush Sr. Era, the U.S. Intelligence community was challenging the status quo of legality for paramilitary operations around the world, from bombing Libya to occupying Panama to arrest Manuel Noriega.
Elizabeth Rindskopf Parker probably first entered the U.S. intelligence community in the first half of the 1980s, working for the powerful Washington law firm Surrey & Morse (this law firm was absorbed into Jones Day). One of its co-founders, Walter Sterling Surrey (1915-1989), has been described by at least one U.S. intelligence community researcher, John Cummings, as “a charter member of the old boy network of U.S. intelligence.” (see Pete Brewton, The Mafia, CIA and Bush (1992)). In 1971, Surrey was one of the original founders of the infamous World Finance Corporation (WFC), which under the dubious leadership of its founder, Cuban Guillermo Hernández-Cartaya (b. 1932?), ran amuck into illegal activities, including money laundering for Colombian cocaine and international arms dealers. There were even connections to the banking scandals of Italy’s Propaganda Due (“P2”) and the Vatican Bank, as depicted in the movie Godfather Part III. Surrey resigned shortly before the collapse of the WFC, denying any knowledge of wrongdoing or criminality.
Although perhaps an obscure fact, it was by no means a State secret that Surrey apparently used his law firm to vet lawyers for future positions in the U.S. Intelligence community. Apparently he did this for at least Rindskopf Parker for the NSA General Counsel, as well as her successor (apparently his own son, Richard Sterling Surrey, although I can’t verify exactly who this and many others on these lists are). Here’s as complete a list of past NSA General Counsels as I can muster for this blog:
Sidney Smith 1953-1959
Roy R. Banner 1959-1978
Daniel B. Silver 1978-1979
Daniel C. Schwartz 1979-1981 Bryan Cave LLP
Jon T. Anderson 1981-1984
Elizabeth Rindskopf Parker 1984-1989 Dean, McGeorge Law School
Richard Sterling Surrey 1990-1992
Stewart A. Baker 1992-1994
Ronald D. Lee 1994-1998 Arnold & Porter LLP
Robert L. Deitz 1998-2006 currently George Mason University
Vito T. Potenza (acting general counsel)
These general counsels were supposed to know about and completely analyze every NSA operation to determine the legality of it. Rindskopf Parker took over at the NSA less than a month after the La Penca bombing in May 1984, and the Iran-Contra Affair was in full gear. Much of Lt. Col. Oliver North’s operations (including the infamous diversion of funds to the “Contras” in Nicaragua) ought to have come across her desk, but she never emerged as a prominent figure in this scandal or any other scandals for that matter.
She then was nominated to be the General Counsel of the CIA (head of the Office of General Counsel or OGC) and took over that post in 1990. The following is an incomplete list of people holding this position (please help me complete it):
Lawrence R. Houston 1947-1973 (died 1995)
John Warner 1975?
Anthony A. Lapham 1976-1979 (died 2006)
Daniel B. Silver 1981-1982 (see above)
Stanley Sporkin ????-1986 Gavel Consulting Group
David P. Doherty 1988 retired, NYSE Euronext, Inc.
Elizabeth Rindskopf Parker 1990-1992 (see above)
Jeffrey H. Smith 1995-1996 Arnold & Porter LLP
Robert M. McNamara, Jr. 1997-2000 OmniTrust Security Systems(?)
Scott W. Muller 2002-2004 Davis, Polk & Wardwell LLP
John A. Rizzo (acting) 2002-2005 currently in the news about destroying tapes
Stephen Preston 2009-
This would have been an interesting transitional period for the CIA, since the major reason for the Agency’s existence, the Soviet Union, had just collapsed. Still, her extracurricular activities in the U.S. Intelligence community include being a member of the Council on Foreign Relations and being a member of the American Bar Association’s Standing Committee on Law and National Security. When she makes public appearances as a pundit, her views strangely lean towards the liberal side.
I think Rindskopf Parker and other lawyers on these lists demonstrate that there is a deep connection to be drawn between the American Bar Association and the U.S. Intelligence Community. It’s no secret that the legal world has become one of the most important forces in the world of politics, but this means that setting public policy is not always a matter for the Courts or any other official procedure within the confines of our visible Government.
Talk of the “Shadow Government” reveals its implements in the U.S. Intelligence community. I lived through the 1980s watching Reagan and Papa Bush break one law after the other, using spin and control over the media to make it all seem like they were doing nothing wrong. In the 1990s, we then watched the exact opposite: every scandal possible stuck to the Clintons, including one of the most farcical sex scandals in political history, leading to only the second impeachment of a President in U.S. history. Then came Baby Bush, and pure lawlessness returned.
Make it through law school and into your cushy job and you’ll get to be one of the brats. For the rest of us, we need to stand up to the spooks, the ABA, and whatever other shadow entity tells us that we have been “eliminated,” for little other reason than “the tribe has spoken.”
Learn the law. Keep Government visible.
McGeorge’s Dean Elizabeth Rindskopf Parker used to be “the General Counsel” of the NSA under the Reagan Administration, and “the General Counsel" of the CIA under the George Herbert Walker Bush Administration. These are powerful positions that are nominated directly by the President and must get approval from the Senate. Finding this out sure made me wonder how these conservative Presidents would have had enough knowledge and wherewithal to nominate such a lawyer. During the Reagan/Bush Sr. Era, the U.S. Intelligence community was challenging the status quo of legality for paramilitary operations around the world, from bombing Libya to occupying Panama to arrest Manuel Noriega.
Elizabeth Rindskopf Parker probably first entered the U.S. intelligence community in the first half of the 1980s, working for the powerful Washington law firm Surrey & Morse (this law firm was absorbed into Jones Day). One of its co-founders, Walter Sterling Surrey (1915-1989), has been described by at least one U.S. intelligence community researcher, John Cummings, as “a charter member of the old boy network of U.S. intelligence.” (see Pete Brewton, The Mafia, CIA and Bush (1992)). In 1971, Surrey was one of the original founders of the infamous World Finance Corporation (WFC), which under the dubious leadership of its founder, Cuban Guillermo Hernández-Cartaya (b. 1932?), ran amuck into illegal activities, including money laundering for Colombian cocaine and international arms dealers. There were even connections to the banking scandals of Italy’s Propaganda Due (“P2”) and the Vatican Bank, as depicted in the movie Godfather Part III. Surrey resigned shortly before the collapse of the WFC, denying any knowledge of wrongdoing or criminality.
Although perhaps an obscure fact, it was by no means a State secret that Surrey apparently used his law firm to vet lawyers for future positions in the U.S. Intelligence community. Apparently he did this for at least Rindskopf Parker for the NSA General Counsel, as well as her successor (apparently his own son, Richard Sterling Surrey, although I can’t verify exactly who this and many others on these lists are). Here’s as complete a list of past NSA General Counsels as I can muster for this blog:
Sidney Smith 1953-1959
Roy R. Banner 1959-1978
Daniel B. Silver 1978-1979
Daniel C. Schwartz 1979-1981 Bryan Cave LLP
Jon T. Anderson 1981-1984
Elizabeth Rindskopf Parker 1984-1989 Dean, McGeorge Law School
Richard Sterling Surrey 1990-1992
Stewart A. Baker 1992-1994
Ronald D. Lee 1994-1998 Arnold & Porter LLP
Robert L. Deitz 1998-2006 currently George Mason University
Vito T. Potenza (acting general counsel)
These general counsels were supposed to know about and completely analyze every NSA operation to determine the legality of it. Rindskopf Parker took over at the NSA less than a month after the La Penca bombing in May 1984, and the Iran-Contra Affair was in full gear. Much of Lt. Col. Oliver North’s operations (including the infamous diversion of funds to the “Contras” in Nicaragua) ought to have come across her desk, but she never emerged as a prominent figure in this scandal or any other scandals for that matter.
She then was nominated to be the General Counsel of the CIA (head of the Office of General Counsel or OGC) and took over that post in 1990. The following is an incomplete list of people holding this position (please help me complete it):
Lawrence R. Houston 1947-1973 (died 1995)
John Warner 1975?
Anthony A. Lapham 1976-1979 (died 2006)
Daniel B. Silver 1981-1982 (see above)
Stanley Sporkin ????-1986 Gavel Consulting Group
David P. Doherty 1988 retired, NYSE Euronext, Inc.
Elizabeth Rindskopf Parker 1990-1992 (see above)
Jeffrey H. Smith 1995-1996 Arnold & Porter LLP
Robert M. McNamara, Jr. 1997-2000 OmniTrust Security Systems(?)
Scott W. Muller 2002-2004 Davis, Polk & Wardwell LLP
John A. Rizzo (acting) 2002-2005 currently in the news about destroying tapes
Stephen Preston 2009-
This would have been an interesting transitional period for the CIA, since the major reason for the Agency’s existence, the Soviet Union, had just collapsed. Still, her extracurricular activities in the U.S. Intelligence community include being a member of the Council on Foreign Relations and being a member of the American Bar Association’s Standing Committee on Law and National Security. When she makes public appearances as a pundit, her views strangely lean towards the liberal side.
I think Rindskopf Parker and other lawyers on these lists demonstrate that there is a deep connection to be drawn between the American Bar Association and the U.S. Intelligence Community. It’s no secret that the legal world has become one of the most important forces in the world of politics, but this means that setting public policy is not always a matter for the Courts or any other official procedure within the confines of our visible Government.
Talk of the “Shadow Government” reveals its implements in the U.S. Intelligence community. I lived through the 1980s watching Reagan and Papa Bush break one law after the other, using spin and control over the media to make it all seem like they were doing nothing wrong. In the 1990s, we then watched the exact opposite: every scandal possible stuck to the Clintons, including one of the most farcical sex scandals in political history, leading to only the second impeachment of a President in U.S. history. Then came Baby Bush, and pure lawlessness returned.
Make it through law school and into your cushy job and you’ll get to be one of the brats. For the rest of us, we need to stand up to the spooks, the ABA, and whatever other shadow entity tells us that we have been “eliminated,” for little other reason than “the tribe has spoken.”
Learn the law. Keep Government visible.
Thursday, March 11, 2010
Default On Your Student Loan? A Big Decision, But Make It!
First, do the math. Can you possibly afford to make the payment? I hate this process, I hate the Department of Education, I hate the banks, I hate Sallie Mae, and I especially hate all those collection agencies, but still, if you can make the payments without too much hardship, make them. I do not advocate complete anarchy here.
If you have one of these law school debts of over $100K, you’ll probably be making monthly payments up to $1K per month. So, again, do the math. Can you afford this, plus your rent ($1,500-$2,000), plus any car payment ($300 per month) plus living expenses (which includes credit card debt: another $1000 per month)? Let’s round up to $5,000 per month, which is $60K per annum. If you make $60K per annum, read no further and pay off your student loans.
If not, listen to these words: you cannot afford this. Change your mindset and prepare yourself for a life you probably didn’t expect, but it isn’t the end of the world.
It’s funny how some people go through college and don’t understand that if you default on your student loan (that is, if you miss enough payments—usually around six) the FBI does not show up at your door and arrest you. You don’t have to move out of the country if you stiff the Department of Education!
Here’s some things you should learn about the employment world as it stands today in America. The current minimum wage is $7.25 an hour, and it appears that it will stay that way for a while. That means an 8-hour day will earn you $58; a 40-hour week (8 hours x 5 days) will earn you $290; a full time job at minimum wage will earn you ($290 x 4 weeks) $1,160 per month, which is $13,920 per year. The official poverty level for a family of two is $14,000 per year, so this minimum wage job puts you just under it.
Now look at what you have to make to afford your student loans, or $60K per annum. That’s $5,000 per month, $1,250 per week, $250 per day, or $31.25 an hour. There might be some adjusting to do with vacations, February, which has only 28 days, and other facts of our Western calendar. Round up to $32 per hour. If you are not making $32 per hour, you should not be attempting to pay back your student loans.
So what happens if you simply don’t pay? Again, I’m not a complete anarchist, so if you can pay something, anything, say $100 per month, do it. You’ll default and be making those payments to a collection agency, but so what. In fact, the collection agency will tell you not to send them a payment if it isn’t for the full amount. Send it anyway. They’ll take it. If you stiff them cold, they will remember that. Don't stiff them cold if you can avoid it.
Oh yes, and their hardship plans are usually bogus. They'll try to sell you those. Listen to them. But usually don't sign up for them. If the collection company treats you like a rogue because you won't sign up for their hardship plan, tell them tough titties. If they start to come down on you hard, hang up the phone.
Even if you are unemployed and have no money whatsoever coming in, a $100 payment to them now and then (say once or twice a year) will keep you out of the worst of their categories. It all goes under the general category of how to handle bill collectors.
This advice goes for stiffing credit cards as well. Do it only if you don’t have the money coming in, but don’t be afraid to do it. When the collection companies start calling, it is important NOT TO TELL THEM ANYTHING. They will say they have the force of the law on their side, but that is a bluff. Collection companies will use every trick in the book to make sure you don’t have enough money for food that month. They are despicable. Treat them like criminals, because that’s what they are.
If collection agencies start harassing you (and they most certainly will), you must demand that they stop all collection calls. You have to do this in writing. Write your demand to stop all collection calls to them in crayon. They must. Oddly, this is one of the laws they honor.
Make your priorities: stiff student loans and credit cards first; don’t stiff auto insurance if you don’t want to be fined (depending on the state you live in); don’t stiff the auto payment if you don’t want your car repossessed; and don’t ever, ever, ever stiff the IRS. With all the conservative propaganda horror stories out there about the IRS, as long as you don’t owe them mega-bucks, they are the puppy dogs of collection outfits. If you owe back taxes, set up a monthly payment with them. If you can’t afford what you owe at the end of the year, make sure you at least file on time. Send them what you can. Their collection letters are intimidating, but they are nothing like the lawless collection agencies that the Department of Education or credit card companies will sic on you.
There are a few other laws to know about. The Fair Labor Standards Act (FLSA), which goes back to the New Deal during the Great Depression, is what you need to invoke if your employer works you overtime without paying you “time and a half.” If you receive an hourly wage and your employer works you more than eight hours, you can sue and usually collect twice the amount of your damages. The problem is, of course, you are going to piss off your employer if you sue them, so you have to decide if this is really worth it. Still, it is more than interesting when you work for a company and lo and behold they simply show what they are made of by completely dishonoring this law. This is one of the laws that I’m sure young JDs will be encountering when they get these temporary positions with law firms. Other employers will try to grant you “exempt” status, by making you a vice-president or something. McDonalds once thought it could successfully skirt around FLSA by making all of its burger-flippers vice-presidents, so they could work overtime. Once you thoroughly know this law, you’ll see just what your employers are made of and why you should be very suspicious of them at all times.
ERISA, which dates from 1974, is another important law, which deals with pension plans. Employers are aggressively trying to make a buck by getting you to sign up for their pension plans, and sometimes you don’t even know you have signed up for one. If you stop working for a company, make sure that they haven’t signed you up for a pension plan and if they have, make sure that they return the money they took out of your paychecks, if you are not yet vested. I don’t care how fancy the office building is where you work, these companies are ruthless. Make Xerox copies of all of your paychecks, because they will often skimp on the information provided to you on your pay stubs.
Also watch for the part-time/full-time shuffle. I worked for a company once that had me employed 7.75 hours a day, and considered that part-time employment. No, it was also not some fly-by-night organization either.
If you are a young lawyer, you have no doubt entered into the legal field at a time when downsizing is going to cream you if you let it. Don’t let Judge Judy intimidate you when she says you are a bum if you don’t have a job. Many of these places are simply not worth working for. Sometimes it is better to simply stop paying your bills than to put up with the nonsense that an employer is going to try and pull on you. It will waste your time and it is not worth the money.
Above all, make sure you get enough to eat and have a roof over your head. You are not a bum if you don’t pay back your student loans, no matter what that television tells you.
And if you get in a jam, go see a lawyer! Their first consulation is usually free.
If you have one of these law school debts of over $100K, you’ll probably be making monthly payments up to $1K per month. So, again, do the math. Can you afford this, plus your rent ($1,500-$2,000), plus any car payment ($300 per month) plus living expenses (which includes credit card debt: another $1000 per month)? Let’s round up to $5,000 per month, which is $60K per annum. If you make $60K per annum, read no further and pay off your student loans.
If not, listen to these words: you cannot afford this. Change your mindset and prepare yourself for a life you probably didn’t expect, but it isn’t the end of the world.
It’s funny how some people go through college and don’t understand that if you default on your student loan (that is, if you miss enough payments—usually around six) the FBI does not show up at your door and arrest you. You don’t have to move out of the country if you stiff the Department of Education!
Here’s some things you should learn about the employment world as it stands today in America. The current minimum wage is $7.25 an hour, and it appears that it will stay that way for a while. That means an 8-hour day will earn you $58; a 40-hour week (8 hours x 5 days) will earn you $290; a full time job at minimum wage will earn you ($290 x 4 weeks) $1,160 per month, which is $13,920 per year. The official poverty level for a family of two is $14,000 per year, so this minimum wage job puts you just under it.
Now look at what you have to make to afford your student loans, or $60K per annum. That’s $5,000 per month, $1,250 per week, $250 per day, or $31.25 an hour. There might be some adjusting to do with vacations, February, which has only 28 days, and other facts of our Western calendar. Round up to $32 per hour. If you are not making $32 per hour, you should not be attempting to pay back your student loans.
So what happens if you simply don’t pay? Again, I’m not a complete anarchist, so if you can pay something, anything, say $100 per month, do it. You’ll default and be making those payments to a collection agency, but so what. In fact, the collection agency will tell you not to send them a payment if it isn’t for the full amount. Send it anyway. They’ll take it. If you stiff them cold, they will remember that. Don't stiff them cold if you can avoid it.
Oh yes, and their hardship plans are usually bogus. They'll try to sell you those. Listen to them. But usually don't sign up for them. If the collection company treats you like a rogue because you won't sign up for their hardship plan, tell them tough titties. If they start to come down on you hard, hang up the phone.
Even if you are unemployed and have no money whatsoever coming in, a $100 payment to them now and then (say once or twice a year) will keep you out of the worst of their categories. It all goes under the general category of how to handle bill collectors.
This advice goes for stiffing credit cards as well. Do it only if you don’t have the money coming in, but don’t be afraid to do it. When the collection companies start calling, it is important NOT TO TELL THEM ANYTHING. They will say they have the force of the law on their side, but that is a bluff. Collection companies will use every trick in the book to make sure you don’t have enough money for food that month. They are despicable. Treat them like criminals, because that’s what they are.
If collection agencies start harassing you (and they most certainly will), you must demand that they stop all collection calls. You have to do this in writing. Write your demand to stop all collection calls to them in crayon. They must. Oddly, this is one of the laws they honor.
Make your priorities: stiff student loans and credit cards first; don’t stiff auto insurance if you don’t want to be fined (depending on the state you live in); don’t stiff the auto payment if you don’t want your car repossessed; and don’t ever, ever, ever stiff the IRS. With all the conservative propaganda horror stories out there about the IRS, as long as you don’t owe them mega-bucks, they are the puppy dogs of collection outfits. If you owe back taxes, set up a monthly payment with them. If you can’t afford what you owe at the end of the year, make sure you at least file on time. Send them what you can. Their collection letters are intimidating, but they are nothing like the lawless collection agencies that the Department of Education or credit card companies will sic on you.
There are a few other laws to know about. The Fair Labor Standards Act (FLSA), which goes back to the New Deal during the Great Depression, is what you need to invoke if your employer works you overtime without paying you “time and a half.” If you receive an hourly wage and your employer works you more than eight hours, you can sue and usually collect twice the amount of your damages. The problem is, of course, you are going to piss off your employer if you sue them, so you have to decide if this is really worth it. Still, it is more than interesting when you work for a company and lo and behold they simply show what they are made of by completely dishonoring this law. This is one of the laws that I’m sure young JDs will be encountering when they get these temporary positions with law firms. Other employers will try to grant you “exempt” status, by making you a vice-president or something. McDonalds once thought it could successfully skirt around FLSA by making all of its burger-flippers vice-presidents, so they could work overtime. Once you thoroughly know this law, you’ll see just what your employers are made of and why you should be very suspicious of them at all times.
ERISA, which dates from 1974, is another important law, which deals with pension plans. Employers are aggressively trying to make a buck by getting you to sign up for their pension plans, and sometimes you don’t even know you have signed up for one. If you stop working for a company, make sure that they haven’t signed you up for a pension plan and if they have, make sure that they return the money they took out of your paychecks, if you are not yet vested. I don’t care how fancy the office building is where you work, these companies are ruthless. Make Xerox copies of all of your paychecks, because they will often skimp on the information provided to you on your pay stubs.
Also watch for the part-time/full-time shuffle. I worked for a company once that had me employed 7.75 hours a day, and considered that part-time employment. No, it was also not some fly-by-night organization either.
If you are a young lawyer, you have no doubt entered into the legal field at a time when downsizing is going to cream you if you let it. Don’t let Judge Judy intimidate you when she says you are a bum if you don’t have a job. Many of these places are simply not worth working for. Sometimes it is better to simply stop paying your bills than to put up with the nonsense that an employer is going to try and pull on you. It will waste your time and it is not worth the money.
Above all, make sure you get enough to eat and have a roof over your head. You are not a bum if you don’t pay back your student loans, no matter what that television tells you.
And if you get in a jam, go see a lawyer! Their first consulation is usually free.
Monday, March 8, 2010
En garde! Taking on the Trolls
Even if you are of strong character and sound mind, trolls have the ability to knock the wind out of you. We bloggers know there are trolls out there, they get into our blogs and stubbornly fire away at everything we might stand for.
Why should we be so surprised? In a way, we pick the fight with them by taking a stand against the status quo. If we know what the law school crisis is, we try to fix it by informing others and making sure that the snake-oil salesmen out there don’t fool you with their claims.
I recently read an extraordinary feature by a writer for the Sacramento News & Review, R.V. Scheide. It’s about the current public education crisis in California:
http://www.newsreview.com/sacramento/content?oid=1380297
Scheide got the progression of what you have to go against if you are going to fight against the status quo these days: 1) Ronald Reagan; 2) Howard Jarvis; 3) Ayn Rand; and 4) Milton Friedman. The trolls have their way of thinking, and they will never give in. They are fiercely loyal and will essentially fight to the death.
They will tell you “never give a sucker an even break.” And if you are a recent JD graduate who can’t get a job, to them you are a sucker. There will be no civil effort to fix the problem as far as they are concerned. It doesn’t matter how much you argue or how much you isolate a substantial, destructive problem and identify it. Their creed is to make sure you stay at the bottom.
I mention Ronald Reagan because he was the one who originally led a political campaign against education, not when he was President, but when he was Governor of California (1967-1975). He believed that universities were harboring Marxism and should therefore be starved out of money, and maybe even eradicated altogether. His biggest enemy was UC Berkeley, where protesting against the Vietnam War had heated up to boiling point. If you want to know why tuition in law school (or any school) has continuously gone up over the years, Reagan’s attempt to crack down on universities and public funding for them was a powerful cause for the conservatives who have shaped this country for the past 30 years, since Reagan became President.
Howard Jarvis appeared on the California scene shortly after Reagan served out his term as Governor, but his tax revolt (which was the essence of his famous Proposition 13, which the voters affirmed) cut property taxes in California which were funding the public education system. The spirit of this tax revolt appears the same today as it did then: it presents itself as a grassroots movement, but in essence, it gulls the grassroots into supporting the interests of the wealthy.
And please don’t buy into the stuff you read about Ayn Rand, for example, that her Atlas Shrugged is the most important book since the Bible. Rand is a warped, pernicious thinker, angry at the world, believing through a twisted logic that religious, spiritual people are leading the planet towards death. She is the heart and soul of the conservative movement, even though she is a staunch atheist. She practically condones criminal behavior if you are among the elite of the world. She espouses a circular, tautological philosophy attracting young people by the droves because of its angry tone.
And Milton Friedman, who stood by Governor Arnold Schwarzenegger’s side at the beginning of his first term, is one of the chief voices of the Libertarian Party and the Chicago School of Economics. He would just as soon auction off the departments of the Federal Government to the highest bidder: I often wonder what would happen if the Mafia bought the Department of Justice. He tells you there is no such thing as fat cats, and that the free market is the only way to structure a society. He has successfully taken the 19th-century version of anarchy and wrapped it in sheep’s clothing. The wolf that jumps out to eat you will be those wealthy “fat cats” that will make sure you remain jobless, unless you get down on all fours and service their needs (to put it mildly).
I realize this is California stuff, but it is apropos of the issue at hand. If we are trying to preserve the American experiment in Democracy, every voice shall be heard, even if the trolls are going to yell at the same time. Trying to solve problems with logic will make you vulnerable to their guile, but stand firm and right with the truth. Expect a fight, but it needs to be fought.
Why should we be so surprised? In a way, we pick the fight with them by taking a stand against the status quo. If we know what the law school crisis is, we try to fix it by informing others and making sure that the snake-oil salesmen out there don’t fool you with their claims.
I recently read an extraordinary feature by a writer for the Sacramento News & Review, R.V. Scheide. It’s about the current public education crisis in California:
http://www.newsreview.com/sacramento/content?oid=1380297
Scheide got the progression of what you have to go against if you are going to fight against the status quo these days: 1) Ronald Reagan; 2) Howard Jarvis; 3) Ayn Rand; and 4) Milton Friedman. The trolls have their way of thinking, and they will never give in. They are fiercely loyal and will essentially fight to the death.
They will tell you “never give a sucker an even break.” And if you are a recent JD graduate who can’t get a job, to them you are a sucker. There will be no civil effort to fix the problem as far as they are concerned. It doesn’t matter how much you argue or how much you isolate a substantial, destructive problem and identify it. Their creed is to make sure you stay at the bottom.
I mention Ronald Reagan because he was the one who originally led a political campaign against education, not when he was President, but when he was Governor of California (1967-1975). He believed that universities were harboring Marxism and should therefore be starved out of money, and maybe even eradicated altogether. His biggest enemy was UC Berkeley, where protesting against the Vietnam War had heated up to boiling point. If you want to know why tuition in law school (or any school) has continuously gone up over the years, Reagan’s attempt to crack down on universities and public funding for them was a powerful cause for the conservatives who have shaped this country for the past 30 years, since Reagan became President.
Howard Jarvis appeared on the California scene shortly after Reagan served out his term as Governor, but his tax revolt (which was the essence of his famous Proposition 13, which the voters affirmed) cut property taxes in California which were funding the public education system. The spirit of this tax revolt appears the same today as it did then: it presents itself as a grassroots movement, but in essence, it gulls the grassroots into supporting the interests of the wealthy.
And please don’t buy into the stuff you read about Ayn Rand, for example, that her Atlas Shrugged is the most important book since the Bible. Rand is a warped, pernicious thinker, angry at the world, believing through a twisted logic that religious, spiritual people are leading the planet towards death. She is the heart and soul of the conservative movement, even though she is a staunch atheist. She practically condones criminal behavior if you are among the elite of the world. She espouses a circular, tautological philosophy attracting young people by the droves because of its angry tone.
And Milton Friedman, who stood by Governor Arnold Schwarzenegger’s side at the beginning of his first term, is one of the chief voices of the Libertarian Party and the Chicago School of Economics. He would just as soon auction off the departments of the Federal Government to the highest bidder: I often wonder what would happen if the Mafia bought the Department of Justice. He tells you there is no such thing as fat cats, and that the free market is the only way to structure a society. He has successfully taken the 19th-century version of anarchy and wrapped it in sheep’s clothing. The wolf that jumps out to eat you will be those wealthy “fat cats” that will make sure you remain jobless, unless you get down on all fours and service their needs (to put it mildly).
I realize this is California stuff, but it is apropos of the issue at hand. If we are trying to preserve the American experiment in Democracy, every voice shall be heard, even if the trolls are going to yell at the same time. Trying to solve problems with logic will make you vulnerable to their guile, but stand firm and right with the truth. Expect a fight, but it needs to be fought.
Thursday, February 25, 2010
Law $chool Books: Let the $cams Begin
I know, I know. This is an easy one. Why don’t I pick on someone my own size, or something like that? Bear with me, please, Blogosphere. I just need to get this out of my system. Thank you.
So-called “casebooks” designed for use in law schools are nothing but reprinted public record. Of course, the compiler/editor of these books is a law scholar who takes credit for using his or her perspicacity to know which cases are important and which are not. The same scholar, or team of scholars, throws in marvelous little paragraphs here and there, along with other quips (gadzooks, but sometimes these other quips are even witty) to punctuate a higher legal point.
And voilà! The resulting 1,000-page tome puts you the diligent law student back about 160 smackers. But don’t worry: the financial aid office has already put a hefty item on your projected expenses for law books, so there should be a tidy sum waiting to be spent on these books once your student loan check comes through.
If you’re really lucky, there might even be a humorous cartoon or two inserted into the pages of your casebook. My Torts casebook even has a photograph of the Long Island train station where the intrepid Helen Palsgraf was hit by a flying scale, ever changing the legal world and its often impenetrable jargon forever.
I have a friend who passed the bar exam and kept telling me, “aces don’t read cases.” In other words, a successful lawyer not only doesn’t waste time reading cases; a successful lawyer knows that the act of reading and learning cases makes a younger lawyer too cocky and filled with information that is, at the end of the day, useless. That being said, it doesn’t take a Clarence Darrow to know that if you want to look good in front of your scowling law professor and scared-shitless colleagues, you’ll buy the books and read the cases. If you want to do well on the exams, on the other hand, you’ll listen to my friend. This is after all where you’ll be graded. Reading every word of these cases is going to waste your time something silly.
But what is it about the law book that reflects the smarmy corruption of the legal world in general? One such book I had to buy was a bunch of Xeroxed pages bound together with a spiral binding. It cost $70. When I asked the clerk at the bookstore if this was actually correct (shouldn’t $7 be the more likely price), she responded that it had copyrighted material in it so yes, of course, it should cost $70. Perhaps if I were smarter, this clerk intimated, I would know that too.
My Criminal Law professor actually published his own case book: a handsome hardback published by LexisNexis. That cost $80, some of which goes into his pocket. This price does not include the distinguished pipe you should smoke while reading it.
Some cases get reprinted twice. Tennessee v. Garner is in both my Criminal Procedure and Criminal Law books. Moore v. Regents of the University of California is in both my Property and Torts books. Perhaps that should be a clue to something: aren’t we wasting space by buying two books and buying the same case twice?
How about printing one big case book for all the courses, get rid of the commentary paragraphs, quips, and cartoons, and let the professors put their own spin on why one case is more important than the other? Better yet, since students all have access to Lexis and Westlaw, why not forget the casebooks altogether and just read the cases directly off our laptops?
Of course, most of the cases are edited so only the “important parts” have to be read. Again, it takes the perspicacity of a legal scholar to know how to edit the cases down. Still, the abridged versions of cases could be made available on the Internet somehow. There is a way to cut back on this waste of paper and money.
The only law book I had to buy that looked useful was the ALWD Manual. Unlike my other law books, this was a professionally edited reference book that was a guide to all legal abbreviations, citation style, and other useful information.
The ALWD Manual is used for legal writing classes, and it takes practice to master all the important stylistic details given in it. As someone who spent seven long years of his life dedicated to writing and editing for a major newspaper, I have learned the usefulness of a manual of style. Any graduate program has a course that introduces the student to the resources of a library and scholarly writing. In my day, the MLA Handbook was the guide for writing any research paper. This has been replaced by the American Psychological Association Manual of Style in most areas, although there are new styles being used, reflecting the rise of the Internet and the fact that any research paper might have literally thousands of sources--too numerous to list.
So I get to my legal writing course, and the teacher hands out a standard exercise, consisting of a poorly written legal memo that we are supposed to spruce up using the ALWD Manual. Was it fate, divine intervention, or just plain luck that I, the only professional writer in the course, was assigned the final segment of this exercise--the hardest part, the grand finale?
Here was the incorrect paragraph as stated in the exercise:
“Under proposed rules to the IRC published in the Federal Register/Vol 68. No. 131 pages 1107-1108 (Wed. July 9, 2003), even conversations between a client and the IRS auditor are protected. The proposed rules seek to amend the Code of Federal Regulations, 26 CFR Part 301, § 301.6104(b) (1999). 68 Fed. Reg. at 1112.”
And after searching through the ALWD manual, knowing that there was something tricky about this segment, I found the rule that was the key to the problem, which I’ll cite as “ALWD 19.3(e)” making the solution to the exercise look as follows:
“Under proposed rules to the I.R.C., even conversations between a client and the IRS auditor are protected. 68 Fed. Reg. 1107, 1112 (proposed July 9, 2003) (to be codified at 26 C.F.R. § 301.6104(b)).”
Mind you, this is what the author of this exercise intended. Right? OK, don’t spend a lot of time working it out or referring to your own ALWD Manual. Just take my word for it.
Alas, the poor teacher, a 30-something Vietnamese-American, using that sarcastic lawyer tone that I have never mastered, whether dishing it out or receiving, did what she could to tear apart my work. I was the only person in the class to come up with this solution. I also got the lowest grade in the class.
This same 30-something Vietnamese-American lawyer scolded me handsomely in class one day because I had used the word “charlatan” in an assignment. It was another of those situations (like the ALWD assignment) where I felt I was the only one in the class who was correct--everyone else was wrong. The teacher didn’t know what the word “charlatan” meant, and, although I can’t believe no one else in the class knew what the word meant either, the smartest girl in the class was the only one who chimed in at that moment, believing the word meant “a magician.”
20 minutes later, I was reading a case for contracts, Sullivan v. O’Connor, and there it was in the middle of the case: the word “charlatan.” But remember what my friend said, “aces don’t read cases.” I’ll say. They don’t read at all.
So why all the casebooks in law school? I know. Get yourself a dictionary and look up the word “charlatan.” Welcome to law school, young tykes!
So-called “casebooks” designed for use in law schools are nothing but reprinted public record. Of course, the compiler/editor of these books is a law scholar who takes credit for using his or her perspicacity to know which cases are important and which are not. The same scholar, or team of scholars, throws in marvelous little paragraphs here and there, along with other quips (gadzooks, but sometimes these other quips are even witty) to punctuate a higher legal point.
And voilà! The resulting 1,000-page tome puts you the diligent law student back about 160 smackers. But don’t worry: the financial aid office has already put a hefty item on your projected expenses for law books, so there should be a tidy sum waiting to be spent on these books once your student loan check comes through.
If you’re really lucky, there might even be a humorous cartoon or two inserted into the pages of your casebook. My Torts casebook even has a photograph of the Long Island train station where the intrepid Helen Palsgraf was hit by a flying scale, ever changing the legal world and its often impenetrable jargon forever.
I have a friend who passed the bar exam and kept telling me, “aces don’t read cases.” In other words, a successful lawyer not only doesn’t waste time reading cases; a successful lawyer knows that the act of reading and learning cases makes a younger lawyer too cocky and filled with information that is, at the end of the day, useless. That being said, it doesn’t take a Clarence Darrow to know that if you want to look good in front of your scowling law professor and scared-shitless colleagues, you’ll buy the books and read the cases. If you want to do well on the exams, on the other hand, you’ll listen to my friend. This is after all where you’ll be graded. Reading every word of these cases is going to waste your time something silly.
But what is it about the law book that reflects the smarmy corruption of the legal world in general? One such book I had to buy was a bunch of Xeroxed pages bound together with a spiral binding. It cost $70. When I asked the clerk at the bookstore if this was actually correct (shouldn’t $7 be the more likely price), she responded that it had copyrighted material in it so yes, of course, it should cost $70. Perhaps if I were smarter, this clerk intimated, I would know that too.
My Criminal Law professor actually published his own case book: a handsome hardback published by LexisNexis. That cost $80, some of which goes into his pocket. This price does not include the distinguished pipe you should smoke while reading it.
Some cases get reprinted twice. Tennessee v. Garner is in both my Criminal Procedure and Criminal Law books. Moore v. Regents of the University of California is in both my Property and Torts books. Perhaps that should be a clue to something: aren’t we wasting space by buying two books and buying the same case twice?
How about printing one big case book for all the courses, get rid of the commentary paragraphs, quips, and cartoons, and let the professors put their own spin on why one case is more important than the other? Better yet, since students all have access to Lexis and Westlaw, why not forget the casebooks altogether and just read the cases directly off our laptops?
Of course, most of the cases are edited so only the “important parts” have to be read. Again, it takes the perspicacity of a legal scholar to know how to edit the cases down. Still, the abridged versions of cases could be made available on the Internet somehow. There is a way to cut back on this waste of paper and money.
The only law book I had to buy that looked useful was the ALWD Manual. Unlike my other law books, this was a professionally edited reference book that was a guide to all legal abbreviations, citation style, and other useful information.
The ALWD Manual is used for legal writing classes, and it takes practice to master all the important stylistic details given in it. As someone who spent seven long years of his life dedicated to writing and editing for a major newspaper, I have learned the usefulness of a manual of style. Any graduate program has a course that introduces the student to the resources of a library and scholarly writing. In my day, the MLA Handbook was the guide for writing any research paper. This has been replaced by the American Psychological Association Manual of Style in most areas, although there are new styles being used, reflecting the rise of the Internet and the fact that any research paper might have literally thousands of sources--too numerous to list.
So I get to my legal writing course, and the teacher hands out a standard exercise, consisting of a poorly written legal memo that we are supposed to spruce up using the ALWD Manual. Was it fate, divine intervention, or just plain luck that I, the only professional writer in the course, was assigned the final segment of this exercise--the hardest part, the grand finale?
Here was the incorrect paragraph as stated in the exercise:
“Under proposed rules to the IRC published in the Federal Register/Vol 68. No. 131 pages 1107-1108 (Wed. July 9, 2003), even conversations between a client and the IRS auditor are protected. The proposed rules seek to amend the Code of Federal Regulations, 26 CFR Part 301, § 301.6104(b) (1999). 68 Fed. Reg. at 1112.”
And after searching through the ALWD manual, knowing that there was something tricky about this segment, I found the rule that was the key to the problem, which I’ll cite as “ALWD 19.3(e)” making the solution to the exercise look as follows:
“Under proposed rules to the I.R.C., even conversations between a client and the IRS auditor are protected. 68 Fed. Reg. 1107, 1112 (proposed July 9, 2003) (to be codified at 26 C.F.R. § 301.6104(b)).”
Mind you, this is what the author of this exercise intended. Right? OK, don’t spend a lot of time working it out or referring to your own ALWD Manual. Just take my word for it.
Alas, the poor teacher, a 30-something Vietnamese-American, using that sarcastic lawyer tone that I have never mastered, whether dishing it out or receiving, did what she could to tear apart my work. I was the only person in the class to come up with this solution. I also got the lowest grade in the class.
This same 30-something Vietnamese-American lawyer scolded me handsomely in class one day because I had used the word “charlatan” in an assignment. It was another of those situations (like the ALWD assignment) where I felt I was the only one in the class who was correct--everyone else was wrong. The teacher didn’t know what the word “charlatan” meant, and, although I can’t believe no one else in the class knew what the word meant either, the smartest girl in the class was the only one who chimed in at that moment, believing the word meant “a magician.”
20 minutes later, I was reading a case for contracts, Sullivan v. O’Connor, and there it was in the middle of the case: the word “charlatan.” But remember what my friend said, “aces don’t read cases.” I’ll say. They don’t read at all.
So why all the casebooks in law school? I know. Get yourself a dictionary and look up the word “charlatan.” Welcome to law school, young tykes!
Sunday, February 21, 2010
Juricide: Businessmen Killing a Profession
Book Review: Douglas Litowitz, The Destruction of Young Lawyers: Beyond One L. Akron, Ohio: U of Akron P, 2006.
Read the comments to my blog and you’ll see that one commentator recommends this book by Dr. Douglas Litowitz. I bought it and, seven chapters and 144 pages later, I’m ready to discuss it in the form of a book review, even though I hope this is not too pretentious and following too closely my old profession of writing for newspapers.
As a lawyer, Litowitz is more discontented than disgruntled. Law was a lucrative career for him for five years of his life and, even though he suddenly quit his job in a huff at a large Chicago law firm to earn a PhD in philosophy, law appears to be the thing that most defines him as a thinker and, dare I say, even as a human being. He once taught at Ohio Northern University College of Law, but apparently not any more.
What then does his book, The Destruction of Young Lawyers, mean? Let’s be very careful here, splitting hairs if we have to: Litowitz’s point of view stems not from the dysfunction of trying to enter into the legal profession, although chapters two and three do touch upon law school and the bar exam, but the dystopia of what happens once you enter it. For those of us more concerned with getting through law school or getting a job, this book offers a sort of trickle-down theory, if not a vivid description of our own sour grapes.
As such, it’s also fair to first suspect a kiss-and-tell book. After all, what on earth is he complaining about if he made it through an elite law school and into a job in the legal profession? But as the story unfolds, we see someone trying to reach for more than what he has, realizing that once his goals have been achieved, they didn’t turn out to be what he wanted in the first place. Taken from this point of view, we might even see him as a 21st-century Henry David Thoreau, if not a much more articulate and voluminous version of Melville’s Bartleby, the Scrivener.
Granted, he is isolating himself from the impersonal professional environment he once belonged to and waxing philosophic about it. But to give Litowitz a fair shake, the reader needs to delve even deeper than this. There is a central, more timely issue to his thesis: the lawyer profession used to be noble, but now it has evolved into something sinister and immoral. To swallow this, we have to accept his own parody of Dickens: “It was the worst of times, it was the worst of times.”
He most admirably tries to put his finger on the problem by blaming money and the trend in America over the past few decades of putting wealth into the hands of only a few. Some of his statistics are very dramatic, pointing out that law firms of over 1,000 lawyers never even existed until only recently. The tricky tactic of law firms designating some lawyers as “associates” versus others as “junior partners” or something else, creates a money flow that goes only to the tippy top of an elaborate money pyramid. In light of our recent financial meltdown in America, this ought to be nothing new, but I suppose it unfortunately probably is.
Nonetheless, some of Litowitz’s examples do hit the mark. For example, his law firm defended an insurance company that insisted that a properly insured motorcycle victim couldn’t collect. The law firm was called upon to wholeheartedly and without reservation defend this insurance company’s despicably sneaky tactic of policy restructuring involving keeping clients informed of changes in their policies via junk mail with clauses embedded in it too tiny and verbose to notice.
Litowitz even supports these depictions by citing the very abstract legal theories by some influential scholars. He blames them for numbing the consciences of lawyers. For example, he reminds us of Duncan Kennedy, who has no qualms about dividing cases into categories of “cold” (i.e., a routine decision that states rules) and “hot” (i.e., a decision with a clear injustice that might distract law students from more important legal rules--like bait for a trap).
He even includes a penultimate chapter about the irony of technology: what is supposed to make life easier has made it far more complex. This seems like a bonus chapter that is slightly off topic, since technology certainly can’t really be part of a larger decay of the legal profession due to a lack of conscience. Then again, it shows that the decay does make lawyers unable to adapt to the new technology with common sense--instead of allowing computers to make brief-writing an easier task, lawyers simply use computers to over-edit.
As “morosely unhappy” as Litowitz depicts lawyers, I personally wanted him to go further. It’s interesting that he brings up the late Arthur Liman as his pick for a lawyer who led an ideal, productive career. He doesn’t mention that Liman was the lawyer who stared down Lt. Col. Oliver North in what turned out to be the most crucial legal moment of questioning in the Iran-Contra Affair--a moment that the far right in America would hold up as a shining example of the triumph of good (North) over evil (Liman, representing the liberal Senate). Please correct me if I’m wrong, but I believe the Rev. Jerry Falwell even sold video tapes of this exchange as an “inspirational” message to his followers.
Litowitz’s book came out before the financial meltdown of 2008 and before the reinvention of the American liberal movement that elected Barack Obama. It is not entirely in synch with these events, but does march tentatively to their rather slow but steady drum beat. (In contrast, I’m more the type that would rather hear the drum solo to “In-A-Gadda-Da-Vida” at this point in history.) I figure I’m about five years older than Litowitz, which gives me a slightly more mature outlook on the Reagan years, although it does leave me wondering how he can miss what I think is the biggest piece to his puzzle.
Litowitz even quotes Karl Marx extensively, as perhaps any good philosophy scholar should, but boy oh boy does that beg a big question here. He even mentions “socialism and libertarianism” at one point as extreme postures that law schools somehow filter out of their faculties’ political postures. I would take the biggest issue with Litowitz here, reminding him that there was a perceived victory in 1989 of America in the Cold War. America, with its pop culture quips and simplifications, went on to declare the victory of Capitalism over Communism--not just on some terrestrial battlefield, but in the universal battle of abstract ideas.
This version of events has declared Marx a quack once and for all, even though you’ll find Marx’s picture pinned up in classrooms throughout the vast expanse we call China. Come on. Isn’t it a bit too chic for Litowitz to now unapologetically turn to Marx? Maybe it is not.
An analysis of what has happened to our legal system, its decadence and even moral depravity, cannot be completely examined without linking it to the end of the Cold War and the subtle but distinct message that Capitalism is now the wave of the future. Perhaps Marx is Litowitz’s ultimately cryptic way of linking the decadence of the American legal system to the decadence of this Capitalism. But if so, he should never have mentioned Libertarianism as an extreme posture left out of law school--Libertarianism has been the formulaic voice of this new version of brutal Capitalism. Meanwhile, Socialism is still a bogeyman, not only in law school, but in just about every nook and cranny of the American media--currently trying to underscore a defeat of Obama’s health care reform movement.
Our legal system stems from English law, an often discombobulated collection of ritual, esoteric rules, and very flexible concepts and theories. Nonetheless, the English were also the first to implement laws for the poor and other victims of industrialization, long before Marx ever penned his Communist Manifesto. Somehow English law, even more than the Bible’s rigid laws and morality parables, has kept Western civilization from imploding upon itself. That’s what we should be learning in law school and implementing as lawyers.
Litowitz has stated a problem and briefly attempted to articulate a solution. He promised to do that at the beginning of The Destruction of Young Lawyers, and he delivers. What he doesn’t address and needs to address is the ongoing Reagan chimera. It was Reagan that swung the Supreme Court radically to the right in the late 1980s and turned the American legal system into the back-stabbing business that has become the prototype for all American businesses in this new “Capitalism.” He doesn't need to include Marx in his solution, but he does need to state the problem with a bigger scope and, yes, even a bigger urgency.
Read the comments to my blog and you’ll see that one commentator recommends this book by Dr. Douglas Litowitz. I bought it and, seven chapters and 144 pages later, I’m ready to discuss it in the form of a book review, even though I hope this is not too pretentious and following too closely my old profession of writing for newspapers.
As a lawyer, Litowitz is more discontented than disgruntled. Law was a lucrative career for him for five years of his life and, even though he suddenly quit his job in a huff at a large Chicago law firm to earn a PhD in philosophy, law appears to be the thing that most defines him as a thinker and, dare I say, even as a human being. He once taught at Ohio Northern University College of Law, but apparently not any more.
What then does his book, The Destruction of Young Lawyers, mean? Let’s be very careful here, splitting hairs if we have to: Litowitz’s point of view stems not from the dysfunction of trying to enter into the legal profession, although chapters two and three do touch upon law school and the bar exam, but the dystopia of what happens once you enter it. For those of us more concerned with getting through law school or getting a job, this book offers a sort of trickle-down theory, if not a vivid description of our own sour grapes.
As such, it’s also fair to first suspect a kiss-and-tell book. After all, what on earth is he complaining about if he made it through an elite law school and into a job in the legal profession? But as the story unfolds, we see someone trying to reach for more than what he has, realizing that once his goals have been achieved, they didn’t turn out to be what he wanted in the first place. Taken from this point of view, we might even see him as a 21st-century Henry David Thoreau, if not a much more articulate and voluminous version of Melville’s Bartleby, the Scrivener.
Granted, he is isolating himself from the impersonal professional environment he once belonged to and waxing philosophic about it. But to give Litowitz a fair shake, the reader needs to delve even deeper than this. There is a central, more timely issue to his thesis: the lawyer profession used to be noble, but now it has evolved into something sinister and immoral. To swallow this, we have to accept his own parody of Dickens: “It was the worst of times, it was the worst of times.”
He most admirably tries to put his finger on the problem by blaming money and the trend in America over the past few decades of putting wealth into the hands of only a few. Some of his statistics are very dramatic, pointing out that law firms of over 1,000 lawyers never even existed until only recently. The tricky tactic of law firms designating some lawyers as “associates” versus others as “junior partners” or something else, creates a money flow that goes only to the tippy top of an elaborate money pyramid. In light of our recent financial meltdown in America, this ought to be nothing new, but I suppose it unfortunately probably is.
Nonetheless, some of Litowitz’s examples do hit the mark. For example, his law firm defended an insurance company that insisted that a properly insured motorcycle victim couldn’t collect. The law firm was called upon to wholeheartedly and without reservation defend this insurance company’s despicably sneaky tactic of policy restructuring involving keeping clients informed of changes in their policies via junk mail with clauses embedded in it too tiny and verbose to notice.
Litowitz even supports these depictions by citing the very abstract legal theories by some influential scholars. He blames them for numbing the consciences of lawyers. For example, he reminds us of Duncan Kennedy, who has no qualms about dividing cases into categories of “cold” (i.e., a routine decision that states rules) and “hot” (i.e., a decision with a clear injustice that might distract law students from more important legal rules--like bait for a trap).
He even includes a penultimate chapter about the irony of technology: what is supposed to make life easier has made it far more complex. This seems like a bonus chapter that is slightly off topic, since technology certainly can’t really be part of a larger decay of the legal profession due to a lack of conscience. Then again, it shows that the decay does make lawyers unable to adapt to the new technology with common sense--instead of allowing computers to make brief-writing an easier task, lawyers simply use computers to over-edit.
As “morosely unhappy” as Litowitz depicts lawyers, I personally wanted him to go further. It’s interesting that he brings up the late Arthur Liman as his pick for a lawyer who led an ideal, productive career. He doesn’t mention that Liman was the lawyer who stared down Lt. Col. Oliver North in what turned out to be the most crucial legal moment of questioning in the Iran-Contra Affair--a moment that the far right in America would hold up as a shining example of the triumph of good (North) over evil (Liman, representing the liberal Senate). Please correct me if I’m wrong, but I believe the Rev. Jerry Falwell even sold video tapes of this exchange as an “inspirational” message to his followers.
Litowitz’s book came out before the financial meltdown of 2008 and before the reinvention of the American liberal movement that elected Barack Obama. It is not entirely in synch with these events, but does march tentatively to their rather slow but steady drum beat. (In contrast, I’m more the type that would rather hear the drum solo to “In-A-Gadda-Da-Vida” at this point in history.) I figure I’m about five years older than Litowitz, which gives me a slightly more mature outlook on the Reagan years, although it does leave me wondering how he can miss what I think is the biggest piece to his puzzle.
Litowitz even quotes Karl Marx extensively, as perhaps any good philosophy scholar should, but boy oh boy does that beg a big question here. He even mentions “socialism and libertarianism” at one point as extreme postures that law schools somehow filter out of their faculties’ political postures. I would take the biggest issue with Litowitz here, reminding him that there was a perceived victory in 1989 of America in the Cold War. America, with its pop culture quips and simplifications, went on to declare the victory of Capitalism over Communism--not just on some terrestrial battlefield, but in the universal battle of abstract ideas.
This version of events has declared Marx a quack once and for all, even though you’ll find Marx’s picture pinned up in classrooms throughout the vast expanse we call China. Come on. Isn’t it a bit too chic for Litowitz to now unapologetically turn to Marx? Maybe it is not.
An analysis of what has happened to our legal system, its decadence and even moral depravity, cannot be completely examined without linking it to the end of the Cold War and the subtle but distinct message that Capitalism is now the wave of the future. Perhaps Marx is Litowitz’s ultimately cryptic way of linking the decadence of the American legal system to the decadence of this Capitalism. But if so, he should never have mentioned Libertarianism as an extreme posture left out of law school--Libertarianism has been the formulaic voice of this new version of brutal Capitalism. Meanwhile, Socialism is still a bogeyman, not only in law school, but in just about every nook and cranny of the American media--currently trying to underscore a defeat of Obama’s health care reform movement.
Our legal system stems from English law, an often discombobulated collection of ritual, esoteric rules, and very flexible concepts and theories. Nonetheless, the English were also the first to implement laws for the poor and other victims of industrialization, long before Marx ever penned his Communist Manifesto. Somehow English law, even more than the Bible’s rigid laws and morality parables, has kept Western civilization from imploding upon itself. That’s what we should be learning in law school and implementing as lawyers.
Litowitz has stated a problem and briefly attempted to articulate a solution. He promised to do that at the beginning of The Destruction of Young Lawyers, and he delivers. What he doesn’t address and needs to address is the ongoing Reagan chimera. It was Reagan that swung the Supreme Court radically to the right in the late 1980s and turned the American legal system into the back-stabbing business that has become the prototype for all American businesses in this new “Capitalism.” He doesn't need to include Marx in his solution, but he does need to state the problem with a bigger scope and, yes, even a bigger urgency.
Friday, February 19, 2010
Heck, Go For Broke: Sue The Department of Education!
Law students should feel betrayed by a system that seemed to promise them so much and then pulled the rug out from under when jobs never materialized. The fact is, this is the American education system now catching up with law students.
Go back a couple of decades and you’ll find all sorts of dismayed young people fresh out of graduate school working at Xerox shops, tearing tickets at multiplexes, or driving delivery trucks. These were the kids that didn’t go into a “reliable” course of study such as law, business, engineering, or medicine. These were the history majors, philosophy majors, art majors, and anything else left over in what suddenly became the big bad pedagogical wasteland called the humanities.
Our American education system did not start out to be a trap for the young and idealistic, stripping them of their dreams and dignity. Ever since the 1980s, the effect has been a gradual metamorphosis, tempered by a new era of hardball business practices and the tail end of the Cold War--it wasn’t a victory for America, after all, it was a victory for Capitalism!
Along the way there were signs that this runaway Capitalism wasn’t quite the ticket to utopia the new age economists were predicting: the Savings and Loan debacle at the end of the 1980s, the dot.com bubble bursting in the 1990s, and now the meltdown of practically the entire financial system, thanks to a few bold speculators trying out Ponzi schemes and writing bogus mortgages.
Take it from one of these grumbling grads of yester-decade: you haven’t even seen the best of it yet. When I started law school in 2008 at the age of 50, the first order of business was to pay off a defaulted student loan before I could start borrowing the bigger student loans law school required. The student loan I had to pay off was from my masters degree in 1982, for which I had borrowed up to $12,000. The balance I had defaulted on was about $5,000. I defaulted on this $5,000 back in 1996 when I finished my PhD and couldn’t get any more deferments.
For 15 years of my life, I kept the Department of Education’s collection agencies on the run. If you ever default on your student loans, you’ll find quickly that the worst thing you can do is talk to them, try to reason with them. By the way, these agencies believe they are staying within the laws of debt collection but they are not: they will use abusive language, profanity, and deception to try to get you to hand over anything you might have lying around the house to make a payment. They will tell you that the Department of Education should not be “messed with” (sounds like a threat to me, however weird). When I somehow let slip that I did have a position as an adjunct professor, they found out where and tried to garnish wages. Because the school that had hired me was laundering my status improperly, with the unions by the way doing absolutely nothing on my behalf to correct the impropriety, I lost that “position.” It seemed the debt collection agency would rather I have no money coming in than enough money to pay them.
There is plenty of blame to go around for the state of affairs we live in today. The more you complain about it, the more you’ll get average Americans stepping forward to tell you that you should blame yourself. And guess what? You will start blaming yourself. The last thing you ever thought you’d be when you picked up that masters degree diploma was some sort of Horatio Alger story. Don’t the rags-to-riches stories always start out with the rags being worn by children (i.e., who were born into poverty)? Now we have well-fed, even bratty educated young adults who got straight As in graduate school slipping into poverty. But guess what, there are no riches at the end of the rainbow. They slip into poverty and stay there.
And do I really have to illustrate this for all those new-age economists who believe I’m unfairly engaging in some sort of class warfare? In 2001, I got a “job” at Barnes & Noble as a clerk. It was a minimum wage job, which meant that an 8-hour day earned you $40. Even if you could put in a 40-hour week, which they won’t let you do because then you’ll be full-time and eligible for benefits, you’d make $160 per week, $640 per month, $7,680 per year. The average rent in the area of this Barnes & Noble on Manhattan was $1800 per month. I also found out the hard way that this Barnes & Noble was engaging in a Wal Mart technique of changing your work schedule every week so you were supposed to keep your private, personal schedule free--they were trying to keep you from getting a second job. Most of the fellow workers at Barnes & Noble, a few of them with graduate degrees, couldn’t even get bank accounts: they would line up at the cash register to cash their paychecks every week. Better get used to this situation, young JDs, because this is what the powers that be in America have in store for you.
I take that back. Don’t get used to it. Above all, don’t blame yourself.
Let’s sue the Department of Education in a big class action suit. Above all, there is no reason why these student loan debts should be different than any other debts: if you can’t pay them back in seven years, they should be taken off the books. Here’s another interesting piece of information: in Germany and other European nations, there is no tuition. Money is actually seen as a corruption to the system. I'll drink to that!
The American education system is set up so that a young adult with no debt to his or her name, signs a piece of paper, and a seven-figure amount immediately goes from the Government into the coffers of a law school--a shiny building filled with air-conditioned offices. Remember the pages of material your financial aid office had you read before you signed the promissory note? They made you also sign a statement that if you are not satisfied with the education you get, you can’t claim your money back. What kind of legal issue does that raise?
The truth is, the Department of Education knows that the student loan system is improper and unethical. Why else would they have you sign all those documents and create a special class of loan that can never be written off the books? This is a special class of consumerism where in order to go to school, you have to sign away your rights. I can also speak from the experiences of a close member of my family that even though the Department of Education promises that the loans will be forgiven if you become disabled and unable to work, forget about them keeping this promise. It doesn’t matter how carefully you gather your doctors’ notes and put all your ducks in a row, the matter goes before an entirely anonymous “panel” of sorts that rejects your claim and sends it back to you on an unsigned form letter.
Used car dealers and snake oil salesmen have nothing on the Department of Education. Young idealistic students fresh out of undergraduate programs are not just keeping the buildings at law school shiny and the air-conditioning running. Their life blood is being tapped to pay for the families and comfortable life styles of their law professors. If this isn’t class warfare, what is?
Go back a couple of decades and you’ll find all sorts of dismayed young people fresh out of graduate school working at Xerox shops, tearing tickets at multiplexes, or driving delivery trucks. These were the kids that didn’t go into a “reliable” course of study such as law, business, engineering, or medicine. These were the history majors, philosophy majors, art majors, and anything else left over in what suddenly became the big bad pedagogical wasteland called the humanities.
Our American education system did not start out to be a trap for the young and idealistic, stripping them of their dreams and dignity. Ever since the 1980s, the effect has been a gradual metamorphosis, tempered by a new era of hardball business practices and the tail end of the Cold War--it wasn’t a victory for America, after all, it was a victory for Capitalism!
Along the way there were signs that this runaway Capitalism wasn’t quite the ticket to utopia the new age economists were predicting: the Savings and Loan debacle at the end of the 1980s, the dot.com bubble bursting in the 1990s, and now the meltdown of practically the entire financial system, thanks to a few bold speculators trying out Ponzi schemes and writing bogus mortgages.
Take it from one of these grumbling grads of yester-decade: you haven’t even seen the best of it yet. When I started law school in 2008 at the age of 50, the first order of business was to pay off a defaulted student loan before I could start borrowing the bigger student loans law school required. The student loan I had to pay off was from my masters degree in 1982, for which I had borrowed up to $12,000. The balance I had defaulted on was about $5,000. I defaulted on this $5,000 back in 1996 when I finished my PhD and couldn’t get any more deferments.
For 15 years of my life, I kept the Department of Education’s collection agencies on the run. If you ever default on your student loans, you’ll find quickly that the worst thing you can do is talk to them, try to reason with them. By the way, these agencies believe they are staying within the laws of debt collection but they are not: they will use abusive language, profanity, and deception to try to get you to hand over anything you might have lying around the house to make a payment. They will tell you that the Department of Education should not be “messed with” (sounds like a threat to me, however weird). When I somehow let slip that I did have a position as an adjunct professor, they found out where and tried to garnish wages. Because the school that had hired me was laundering my status improperly, with the unions by the way doing absolutely nothing on my behalf to correct the impropriety, I lost that “position.” It seemed the debt collection agency would rather I have no money coming in than enough money to pay them.
There is plenty of blame to go around for the state of affairs we live in today. The more you complain about it, the more you’ll get average Americans stepping forward to tell you that you should blame yourself. And guess what? You will start blaming yourself. The last thing you ever thought you’d be when you picked up that masters degree diploma was some sort of Horatio Alger story. Don’t the rags-to-riches stories always start out with the rags being worn by children (i.e., who were born into poverty)? Now we have well-fed, even bratty educated young adults who got straight As in graduate school slipping into poverty. But guess what, there are no riches at the end of the rainbow. They slip into poverty and stay there.
And do I really have to illustrate this for all those new-age economists who believe I’m unfairly engaging in some sort of class warfare? In 2001, I got a “job” at Barnes & Noble as a clerk. It was a minimum wage job, which meant that an 8-hour day earned you $40. Even if you could put in a 40-hour week, which they won’t let you do because then you’ll be full-time and eligible for benefits, you’d make $160 per week, $640 per month, $7,680 per year. The average rent in the area of this Barnes & Noble on Manhattan was $1800 per month. I also found out the hard way that this Barnes & Noble was engaging in a Wal Mart technique of changing your work schedule every week so you were supposed to keep your private, personal schedule free--they were trying to keep you from getting a second job. Most of the fellow workers at Barnes & Noble, a few of them with graduate degrees, couldn’t even get bank accounts: they would line up at the cash register to cash their paychecks every week. Better get used to this situation, young JDs, because this is what the powers that be in America have in store for you.
I take that back. Don’t get used to it. Above all, don’t blame yourself.
Let’s sue the Department of Education in a big class action suit. Above all, there is no reason why these student loan debts should be different than any other debts: if you can’t pay them back in seven years, they should be taken off the books. Here’s another interesting piece of information: in Germany and other European nations, there is no tuition. Money is actually seen as a corruption to the system. I'll drink to that!
The American education system is set up so that a young adult with no debt to his or her name, signs a piece of paper, and a seven-figure amount immediately goes from the Government into the coffers of a law school--a shiny building filled with air-conditioned offices. Remember the pages of material your financial aid office had you read before you signed the promissory note? They made you also sign a statement that if you are not satisfied with the education you get, you can’t claim your money back. What kind of legal issue does that raise?
The truth is, the Department of Education knows that the student loan system is improper and unethical. Why else would they have you sign all those documents and create a special class of loan that can never be written off the books? This is a special class of consumerism where in order to go to school, you have to sign away your rights. I can also speak from the experiences of a close member of my family that even though the Department of Education promises that the loans will be forgiven if you become disabled and unable to work, forget about them keeping this promise. It doesn’t matter how carefully you gather your doctors’ notes and put all your ducks in a row, the matter goes before an entirely anonymous “panel” of sorts that rejects your claim and sends it back to you on an unsigned form letter.
Used car dealers and snake oil salesmen have nothing on the Department of Education. Young idealistic students fresh out of undergraduate programs are not just keeping the buildings at law school shiny and the air-conditioning running. Their life blood is being tapped to pay for the families and comfortable life styles of their law professors. If this isn’t class warfare, what is?
Saturday, February 13, 2010
More LSAT Horrors: Composer John Cage
Yes, I’ve heard it many times before: when answering LSAT questions, forget, forget, forget what you know. The LSAT tests your “speed logic,” not your knowledge.
I tried hard to do this when practicing for the LSAT. Then came a question on a practice exam about the 20th-century composer John Cage (1912-1992).
I won’t call John Cage a friend of mine, since I only met him a couple of times, exchanged letters with him, and interviewed him once over the telephone for several hours for a newspaper story. I’ve also attended numerous performances of his music, sometimes performances he even attended or participated in. I’ve read several books he has published: Silence, A Year From Monday, M, and Empty Words. I even gave a lecture about another of his books/lectures, I-VI, at the University of Frankfurt in 1991.
So I’ll call John Cage a colleague of mine. I won’t call myself an expert in his music either, even though I’ve published articles about it and wrote about it prominently in my doctoral dissertation.
So guess what happens one day while taking an LSAT practice exam? In the reading comprehension section, I come across a text about John Cage. If you’ve taken the LSAT, you know the drill: read the text and answer eight or nine multiple-choice questions about it.
The clock was ticking and I had to forget, forget, forget what I knew about John Cage and read the text. I did my best. Then I graded the practice exam, and all of the questions I had answered about John Cage were wrong.
I was furious. Livid. What was this test supposed to determine, anyway? How well we misunderstand the arts so we can successfully become boring, humorless, tone-deaf lawyers?
I fired off an angry email to the publisher of the practice exam. They wrote me back, assuring me they were concerned, but wanted me to explain in detail what I thought the problem with the questions were.
So I sat down and took one question at a time, picking it all apart, trying to explain why the author of the questions had, of course, misunderstood John Cage’s philosophy, but, more importantly, misunderstood the gist of the text itself. Mostly, the text was a general description for the layperson of John Cage’s use of the word “indeterminacy.” Suffice it to say, this is a loaded word that Cage used satirically, tongue-in-cheek.
Here’s what the layperson doesn’t know. Cage was ribbing his arch-rival composer Milton Babbitt, a Princeton music and mathematics scholar who applied Arnold Schoenberg’s 12-tone system to his own music. Schoenberg, who was actually Cage’s teacher and called Cage a “genius,” approached his 12-tone technique methodically, not to mention mystically, but never with the mathematical rigor of Babbitt. In fact, I have always held that Babbitt made a mistake when he used the term “determinacy” to describe his method: one of his mathematician friends must have commented that Schoenberg’s 12-tone row was a “determinant,” which according to the dictionary means something that determines something else (Babbitt’s usage); but, most scientists can tell you that the mathematical definition of “determinant” is a set of elements in which each element is used once without repeating (a concise definition of Schoenberg’s 12-tone row).
The world of musicology may never acknowledge my observation, since I have been blacklisted and squeezed out of that world’s journals and academies many times over. Nonetheless, I must remember the LSAT mantra: forget, forget, forget.
So I did my best to forget, forget, forget. And sure, Cage wasn’t just making a joke, there was a genuine meaning attached to the word “indeterminacy” that applied to his music: he sometimes wrote music using “chance procedures,” such as rolling dice, as if he wasn’t “determining” the outcome--although it has often been said that both Cage and Babbitt were trying to do the same thing: maximize what the listener did not expect. The word “indeterminacy” could also apply to some of Cage’s written scores that either could be changed for every performance (“open form” pieces) or in which the performer had some freedom of interpretation as to what a symbol in the score might mean, if there is no explanation as to how to interpret it.
So the LSAT text was probably by an informed critic simply giving general descriptions of what Cage’s music was and a general idea of what the word “indeterminacy” might mean. The text was nothing unusual, something you might find in a newspaper or magazine. Suffice it to say that what the LSAT people did in making up questions about this text was sacrilegious.
For some reason, the LSAT people thought that Cage was talking about improvisation and jazz when he used the word “indeterminacy.” It is not necessarily egregious to say that Cage’s music involved some improvisation, although that is an issue that could be debated. Cage also influenced many jazz and rock musicians who improvised. What is egregious is trying to claim that Cage’s use of the word “indeterminacy” had anything to do with jazz or jazz improvisation.
This is not splitting hairs. The LSAT people simply misunderstood this text and based almost every question on this misinterpretation. I know I’m supposed to forget, forget, forget, but what on earth is going on here? Perhaps I should have changed my LSAT mantra to stupid, stupid, stupid.
I believe that legal education is on a veritable warpath to take over every other discipline in the scholarly world and reinterpret it their own way. That’s a leap in my logic from this incident involving John Cage, but I’m taking it. Together with other “competitive” degrees outside of science or engineering that are stepping stones into lucrative positions, like the MBA, the JD mill would like to be the king of the academic hill. They set up their law schools like Mensa societies and use their own “speed logic” to weed out the dummies. Unfortunately, in the end, it is cynical politics at its worst.
I tried as hard as I could to explain to the publisher of the LSAT practice exam why it was wrong to conceive that Cage had any interest in jazz, even based on the most liberal interpretation of the text at hand, but I never received an answer back. Meanwhile, onward LSAT soldiers, marching as to war! Perhaps lawyers will some day completely annex the topic of John Cage, distorting it into their own pointless characature, leaving us useless musicologists stewing in our own sour grapes. Obviously, they aren’t even interested in John Cage, but because it is “out there," lawyers must divide it and conquer it.
Then, some sunny day in their future, they can easily (without contention, dissent, or challenge) tell me the answers to my LSAT questions were wrong. They can even make me feel shame for getting those questions wrong. Until then, I proudly declare myself the bad boy of law.
I tried hard to do this when practicing for the LSAT. Then came a question on a practice exam about the 20th-century composer John Cage (1912-1992).
I won’t call John Cage a friend of mine, since I only met him a couple of times, exchanged letters with him, and interviewed him once over the telephone for several hours for a newspaper story. I’ve also attended numerous performances of his music, sometimes performances he even attended or participated in. I’ve read several books he has published: Silence, A Year From Monday, M, and Empty Words. I even gave a lecture about another of his books/lectures, I-VI, at the University of Frankfurt in 1991.
So I’ll call John Cage a colleague of mine. I won’t call myself an expert in his music either, even though I’ve published articles about it and wrote about it prominently in my doctoral dissertation.
So guess what happens one day while taking an LSAT practice exam? In the reading comprehension section, I come across a text about John Cage. If you’ve taken the LSAT, you know the drill: read the text and answer eight or nine multiple-choice questions about it.
The clock was ticking and I had to forget, forget, forget what I knew about John Cage and read the text. I did my best. Then I graded the practice exam, and all of the questions I had answered about John Cage were wrong.
I was furious. Livid. What was this test supposed to determine, anyway? How well we misunderstand the arts so we can successfully become boring, humorless, tone-deaf lawyers?
I fired off an angry email to the publisher of the practice exam. They wrote me back, assuring me they were concerned, but wanted me to explain in detail what I thought the problem with the questions were.
So I sat down and took one question at a time, picking it all apart, trying to explain why the author of the questions had, of course, misunderstood John Cage’s philosophy, but, more importantly, misunderstood the gist of the text itself. Mostly, the text was a general description for the layperson of John Cage’s use of the word “indeterminacy.” Suffice it to say, this is a loaded word that Cage used satirically, tongue-in-cheek.
Here’s what the layperson doesn’t know. Cage was ribbing his arch-rival composer Milton Babbitt, a Princeton music and mathematics scholar who applied Arnold Schoenberg’s 12-tone system to his own music. Schoenberg, who was actually Cage’s teacher and called Cage a “genius,” approached his 12-tone technique methodically, not to mention mystically, but never with the mathematical rigor of Babbitt. In fact, I have always held that Babbitt made a mistake when he used the term “determinacy” to describe his method: one of his mathematician friends must have commented that Schoenberg’s 12-tone row was a “determinant,” which according to the dictionary means something that determines something else (Babbitt’s usage); but, most scientists can tell you that the mathematical definition of “determinant” is a set of elements in which each element is used once without repeating (a concise definition of Schoenberg’s 12-tone row).
The world of musicology may never acknowledge my observation, since I have been blacklisted and squeezed out of that world’s journals and academies many times over. Nonetheless, I must remember the LSAT mantra: forget, forget, forget.
So I did my best to forget, forget, forget. And sure, Cage wasn’t just making a joke, there was a genuine meaning attached to the word “indeterminacy” that applied to his music: he sometimes wrote music using “chance procedures,” such as rolling dice, as if he wasn’t “determining” the outcome--although it has often been said that both Cage and Babbitt were trying to do the same thing: maximize what the listener did not expect. The word “indeterminacy” could also apply to some of Cage’s written scores that either could be changed for every performance (“open form” pieces) or in which the performer had some freedom of interpretation as to what a symbol in the score might mean, if there is no explanation as to how to interpret it.
So the LSAT text was probably by an informed critic simply giving general descriptions of what Cage’s music was and a general idea of what the word “indeterminacy” might mean. The text was nothing unusual, something you might find in a newspaper or magazine. Suffice it to say that what the LSAT people did in making up questions about this text was sacrilegious.
For some reason, the LSAT people thought that Cage was talking about improvisation and jazz when he used the word “indeterminacy.” It is not necessarily egregious to say that Cage’s music involved some improvisation, although that is an issue that could be debated. Cage also influenced many jazz and rock musicians who improvised. What is egregious is trying to claim that Cage’s use of the word “indeterminacy” had anything to do with jazz or jazz improvisation.
This is not splitting hairs. The LSAT people simply misunderstood this text and based almost every question on this misinterpretation. I know I’m supposed to forget, forget, forget, but what on earth is going on here? Perhaps I should have changed my LSAT mantra to stupid, stupid, stupid.
I believe that legal education is on a veritable warpath to take over every other discipline in the scholarly world and reinterpret it their own way. That’s a leap in my logic from this incident involving John Cage, but I’m taking it. Together with other “competitive” degrees outside of science or engineering that are stepping stones into lucrative positions, like the MBA, the JD mill would like to be the king of the academic hill. They set up their law schools like Mensa societies and use their own “speed logic” to weed out the dummies. Unfortunately, in the end, it is cynical politics at its worst.
I tried as hard as I could to explain to the publisher of the LSAT practice exam why it was wrong to conceive that Cage had any interest in jazz, even based on the most liberal interpretation of the text at hand, but I never received an answer back. Meanwhile, onward LSAT soldiers, marching as to war! Perhaps lawyers will some day completely annex the topic of John Cage, distorting it into their own pointless characature, leaving us useless musicologists stewing in our own sour grapes. Obviously, they aren’t even interested in John Cage, but because it is “out there," lawyers must divide it and conquer it.
Then, some sunny day in their future, they can easily (without contention, dissent, or challenge) tell me the answers to my LSAT questions were wrong. They can even make me feel shame for getting those questions wrong. Until then, I proudly declare myself the bad boy of law.
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