There are only two posts up so far, it appears. I’ll be keeping an eye out for new posts (and who am I kidding, I am absolutely going to submit. What rhymes with judicata?)
Check out the Law Poetry blog here.
June 14, 2013
There are only two posts up so far, it appears. I’ll be keeping an eye out for new posts (and who am I kidding, I am absolutely going to submit. What rhymes with judicata?)
Check out the Law Poetry blog here.
June 12, 2013
I’ve been playing hooky with the blog, admittedly. This is partly because I have been working hard on a writing project in the hopes I’ll have a decent first draft completed by next NaNoWriMo. I’m writing an article for a bar association journal (the text of which I’ll upload here when I’m done). Also, I’ve been reading and re-reading the fabulous Scalia footnote from City of Arlington v. FCC because it may hold the key to the secrets of the universe. If only I were just a little smarter.
So I’ve only got time for a quick post. Let’s talk about books, or more specifically, summer books. Depending on who you ask, a good summer book is either 1) interesting and challenging (like Judge John M. Woolsey, who read Ulysses on his vacation in preparation for drafting the opinion ruling it not obscene); or 2) pulpy and so formulaic that spilling one’s margarita over two-thirds of it makes little difference (like seventy-five percent of what’s sold in bookstores today). I prefer the former. This summer I think I am finally going to suck it up and read Middlemarch, and possibly finish the Henry James I started a couple of summers ago before I drank too many margaritas. But if Georgian realism is not to your taste, I humbly offer up the following suggestions:
1) The Third Coast: When Chicago Built the American Dream, Thomas Dyja
City of Scoundrels: The Twelve Days of Disaster That Gave Birth to Modern Chicago, Gary Krist
I’ve been on a Chicago kick ever since I read Devil in the White City. Both of these are eminently readable, although you may learn to fear fire.
2) The Swerve: How the World Became Modern, Stephen Greenblatt
This has been out for a while. If you haven’t yet read it, you should; it will change the way you understand history.
3) Embroidered Ground: Revisiting the Garden, Paige Dickey
The Writer in the Garden, Jane Garmey (ed.)
My backyard runs, roughly, at about a seventy degree angle to my house. The whole neighborhood is hilly. When we moved in I had to re-engineer everything I knew about landscaping. Dickey is a celebrated gardener who writes lovingly about her relationship with her garden, how it has developed and changed with time and with her advancing age. The Writer in the Garden is an anthology of essays by writers including the likes of W.S. Merwin, Andrew Marvell, Katherine Mansfield, Vita Sackville-West and Jamaica Kincaid.
4) The Stockholm Octavo, Karen Engelmann
A smart, dense historical whodunit.
5) The War of Art, Steven Pressfield
Make Good Art, Neil Gaiman
Both books are food for creatives, or for people who would like to be more creative. Also, if you don’t know who Neil Gaiman is we probably can’t be friends.
6) The Virtues of Poetry, James Longenbach
I know you won’t read it, but I wish you would. I wish everyone would.
7) Gilead, Marilynne Robinson
An aging man’s love letter to his young son, and to life. Robinson’s writing is the literary equivalent of cool, clear blue water and a fragrant breeze. I go back and forth about what book is my absolute favorite, but Gilead is always in my top three.
8) The Night Train, Clyde Edgerton
Train Dreams, Dennis Johnson
Two very different books united, but a train runs through them (apologies to Norman Maclean). Night Train is a coming of age story set in the deep south, as television brings “race music” to a small town. Train Dreams ranks up there with Gilead in my mind. I won’t tell you more than that. You will love it.
9) The Barbarian Nurseries, Hector Tomar
These Dreams of You, Steve Erikson
Both are novels about disintegrating families, the recession, and the ways that immigrants experience America. Both are ultimately hopeful.
10) The Devil’s Tickets, Gary M. Pomerantz
For the lawyers who can’t leave the office behind. Pomerantz relates the true story of Myrtle Bennett, who shot her husband to death in 1929 for calling her a “bum bridge player,” and her lawyer, James A. Reed. A little knowledge of how bridge is played is helpful but not necessary. The real story concerns nascent feminism in a nation on the cusp of the Great Depression.
Let me know if you have your own suggestions or if you like (or hate) any of mine. Happy summer!
May 2, 2013
“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”
Confederate Veteran Rev. Randolph Harrison McKim
Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire). And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]
However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.
In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.
Candice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined. Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980′s. Significant racial tensions remain. The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.” Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”
I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague. The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel. Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school. (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.) Therefore, the Court held, the school district was justified in banning its display. Many other circuits have so held. See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).
I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.
Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.
But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.
According to the Court in Tinker:
The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).
The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.
Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.
Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.
April 30, 2013
[. . .] I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt. Not that these things matter 20 years after the fact, but I had a 3.6 GPA and a 178 LSAT. I worked for [politician] between college and law school. I graduated from [top ten law school] in 2000. My GPA was a 3.5, which was well above the mean but not good enough for law review. I clerked for a federal district court judge from 2000-2002, during which time my law school loans were in forbearance. My point is that, although my resume wasn’t printed with gold ink when I began my legal career, my credentials were good.
[. . .]
I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.
[. . .] Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” [. . .]
If you’ve been online at all within the past couple of years you are probably familiar with posts like the one above, from Professor Paul Campos’ Inside the Law School Scam blog. The problem of lawyer and law graduate unemployment have been covered recently in the Wall Street Journal, The Huffington Post, US News and World Report and the New York Times, and the bloggers at Above The Law have been discussing it for years. It’s a complicated issue having to do with, among other things, the cost of going to law school, the fact that student loans are not generally dischargeable in bankruptcy, and the ongoing effects of the Great Recession.
Now here come the books, although the doom and gloom is not limited to recent graduates’ prospects. First to hit the shelves was Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future (Oxford Univ. 2013). In fairness to Susskind, who is a British IT consultant, he wrote about many of these issues in his earlier book, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford Univ. 2008). The relative newcomer to this genre is Steven J. Harper, a former partner at Kirkland & Ellis and now author of The Lawyer Bubble: A Profession in Crisis (Basic Books 2013). (Both men share, apparently, a fondness for subtitles.)
Harper’s book is more autopsy than prescription, so we begin with it. The Lawyer Bubble limits itself to discussion of law schools and the largest law firms (so-called BigLaw), but what it has to say about the state of the profession is pretty scathing. Harper points to Christopher Columbus Langdell, Harvard Law School dean and founder of the case method of law school instruction, as the “essential foundation” of the problem – and the problem is that there are too many lawyers. He says that the case method permitted law schools to abandon the time-intensive lecture-and-internship model that held sway before 1890 and turn to “mass production of attorneys.” In turn, law schools became profit centers for their universities, all the while having little incentive to turn away applicants because student loans became essentially non-dischargeable in bankruptcy in the 1970’s.
Both the American Bar Association and the US News & World Report law school rankings have a share in the blame, according to Harper. The rankings have become hugely influential and law school deans, although initially reticent, have embraced them. According to Phillip J. Closius, former dean of the University of Baltimore School of Law, “[m]illions of dollars [are] riding on students’ decisions about where to go to law school, and that creates real institutional pressures.” Yet Harper argues that the rankings are deeply flawed. He cites incredible examples, including one in which a dean circulated a law school ranking survey similar to the one used by US News, and respondents rated the law school at Penn State as a mid-level school despite the fact that Penn State at the time did not have a law school. He describes efforts at the University of Illinois College of Law to bolster its incoming GPA and LSAT numbers, which count for twenty-five percent of a school’s rating, which resulted in the blatant falsification of the numbers. (The employee responsible for submission of the information was blamed, and although the law school dean was absolved of wrongdoing, the ABA censured the school, imposed a $250,000 fine, and required that the school submit to compliance monitoring for two years.)
And then there is the employment data. Before 2012, the ABA applied an extremely broad definition of “employed,” so that when law schools provided graduate employment data, they made no distinction between working in a law firm as an associate and working in a coffee shop. Many schools reported employment figures as high as ninety-three percent even during the recession. Yet in 2012, according to Harper, only sixty-six percent of the class of 2011 worked in jobs requiring bar membership, and many of those were part-time or temporary positions such as clerkships. Schools made a practice of offering paid temporary positions to graduates that conveniently started before and ended just after the window of time set for employment data gathering. When, in 2012, the ABA began to require that schools disclose such arrangements, several low-ranked schools revealed that they employed more than fifteen percent of their own graduates. All of these factors led to a flood of incoming law students and the creation of a “lawyer bubble” not unlike the real estate bubble of the mid-2000’s.
Harper heaps his wrath upon BigLaw firms as well, arguing that they have increasingly abandoned the traditional “true partnership” model for a pure business model that values profit over anything else. When income determines all, he argues, individual lawyers adopt a “what’s in it for me?” attitude and move freely between law firms, taking their lucrative books of business with them. In order to hold on to their most valuable business-getters, firms offer higher salaries (or, as in the case of Dewey & LeBoeuf, salary guarantees); to make the numbers work, they cut support staff and attorneys considered less valuable to the firm. The result, Harper says, is that BigLaw firms have become oligarchies where a small number of attorneys achieve exceptionally high earnings and the lawyers who find themselves shut out become demoralized. Harper devotes more than a few paragraphs to lawyer suicides, such as the suicide of Mark Levy in 2009. He also details several case studies, including Dewey & LeBoeuf as well as Finley Kumble, whose failure in the late 1980’s mirrored Dewey’s.
Harper advocates for several changes: abandonment of the billable hour and “eat what you kill” systems; implementation of true “partnership” schemes within law firms to encourage loyalty and real mentorship; and implementation of mandatory retirement policies so that younger attorneys have an opportunity to move up the ladder. He also suggests that businesses such as Axiom and other out-sourcing vendors should encourage firms to streamline their processes and learn to better utilize technology.
Technology, and the way it will change the practice of law, is squarely within Richard Susskind’s bailiwick. Tomorrow’s Lawyers is less an indictment of the way things have been done than a prediction of how they will be, and if Susskind is correct the future looks very different. (However, it’s worth pointing out that Susskind is most familiar with the British legal system, and that system differs from the United States’ system in significant ways, including in permitting non-lawyer investment in law firms.)
Like Harper, Susskind argues that the billable hour has had its day and should be retired. But this would only represent the first of a number of transformations he proposes. More traditional “legal” work should be performed by non-lawyers, in much the same way that certified nurse practitioners have taken on many traditional physician functions. Susskind would include within this category document review in litigation, due diligence work, basic contract drafting and basic legal research. This is work that involves more “process than judgement” and should, in time, be further commoditized so that it is performed entirely by computers. Another proposal would permit clients with similar interests to “collaborate,” and set up a shared fully-owned “law firm” to serve their mutual needs. He uses banks as an example, and claims that they could own a shared “service centre” to undertake compliance activities at reduced costs. (He does not address here, I note, any conflicts issues that might come up, although presumably those could be dealt with in the firm’s operating documents.)
Much attention is devoted to the idea of commoditizing legal services. Susskind breaks down (or “decomposes”) litigation into specific tasks, such as document review; research; strategy; tactics; negotiation; and advocacy. He claims that although strategy, tactics and advocacy, at the least, have traditionally been the province of lawyers, he is “increasingly hearing from General Counsel that alternative providers can now take on the remaining tasks at lower cost and to a higher quality than traditional law firms.” In some cases this involves outsourcing work to a third-party. In others, work may be subcontracted from one law firm to another. Susskind raises the possibility that, in the future, many legal problems will be crowd-sourced before they are ever presented to a lawyer for consideration.
Most of Susskind’s predictions involve the elimination rather than the creation of legal jobs. He closes the book, however, with several positions he believes will be created in the future: the “legal knowledge engineer,” who will program the software necessary to perform commoditized legal work; the “legal technologist,” who will “build the foundations upon which legal service is built and the channels through which non-lawyers can access the law,” and as for what that means, your guess is as good as mine; the “legal hybrid,” who will be both family lawyer and marriage counselor or commercial lawyer and strategy consultant; and the “legal project manager,” who will oversee a project once it has been “decomposed” and outsourced to ensure that its various components are completed on time and within certain quality parameters. (There are more, but I am finding this exhausting.) Susskind rather grudgingly concedes that there will be “Expert Trusted Advisers” and “Enhanced Practitioners” in the future, but there will not be many of them. He closes with advice to young lawyers, or those considering law school, to follow the example of Wayne Gretzky and “[s]kate where the puck’s going, not where it’s been.”
April 29, 2013
Before Gardens: The Golden Age Then sprang up first the golden age, which of itself maintained The truth and right of everything, unforced and unconstrained. There was no fear of punishment, there was no threatening law In brazen tables nailed up to keep the folk in awe. There was no man would crouch or creep to Judge, with cap in hand: They lived safe without a Judge in every realm and land. The lofty pine tree was not hewn from mountains where it stood, In seeking strange and foreign lands, to rove upon the flood. Men knew no other countries yet where themselves did keep; There was no town enclosed yet, with walls and ditches deep. No horn or trumpet was in use, no sword or helmet worn: The world was such that soldiers’ help might easily be forborn. The fertile earth as yet was free, untouched of spade or plough, And yet it yielded of itself of every thing enough. And men themselves, contented well with plain and simple food, That on the earth of nature’s gift, without their travail stood, Did live by raspis, hips and haws, by cornels, plums and cherries, By sloes and apples, nuts and pears, and loathsome bramble berries, And by the acorns dropped on ground from Jove’s broad tree in field. The springtime lasted all the year, and Zephyr with his mild And gentle blast did cherish things that grew of own accord, The ground untilled, all kinds of fruit did plenteously afford. No muck nor tillage was disposed on lean and barren land, To make the crops of better head, and ranker for to stand. Then streams ran milk, then streams ran wine, and yellow honey flowed From each green tree whereon the rays of fiery Phoebus glowed.
Ovid (trans. Arthur Golding)
April 15, 2013
Just a poem today, one I really love from the April 2013 issue of Poetry.
Order For once, her was just my father. We drove to the Computing Center in a Monte Carlo Landau not technically ours. Lexington, 1977. That fall. The color had settled, too, undone orange-brown and dull yellow, crimson. And it was something, yet not, the pile of leaves just a pile of leaves. Sorry to think what thinking has done to landscape: He loved punched cards, program decks and subroutines, assembly languages and key punch machines. Even my father looked small next to a mainframe. The sound of order; the space between us. We almost laughed, but not for years - we almost laughed. But not. For years, the space between us, the sound of order next to a mainframe. Even my father looked small. And keypunch machines, assembly languages, program decks and subroutines. He loved punched cards, what thinking has done to landscape - just a pile of leaves. Sorry to think, yet not, the pile of leaves crimson. And it was. Something orange-brown and dull yellow had settled, too, undone 1977, that fall, the color not technically ours, Lexington in a Monte Carlo Landau. We drove to the Computing Center, For once he was just, my father. Randall Mann, from Poetry (April, 2013)
Something about April always makes me think of sestinas, don’t ask me why. I love that this poem, which is neither a formal sestina nor a pantoum, but a cross between them perhaps, moves from the large (the relationship between fathers and sons) to the small (father standing next to the mainframe, punch cards) and then back again. Both sestinas and pantoums rely on words or phrases repeated in strict, orderly fashion; they process words, you might say, the way a computer processes the data fed in. Our relationships might work much the same way.
I also love the way that the phrase “the sound of order” echoes Wallace Stevens’ “The Idea of Order at Key West.”
I’m about 10,000 words behind where I should be to reach my Camp NaNoWriMo goal for this month. Wish me luck, fellow campers.