Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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I didn't say "I got a gun!" I said "Omanomnom!"

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Surely you remember the 7 year old who got suspended from school earlier this month for trying to shape his pop-tart into a mountain, but then his teacher thought it was a gun and then he got suspended for two days because stupidity. I mean, zero tolerance. Actually, I mean both.

And if you haven’t heard of that story, then who knows how you found us here. But, go ahead and google any combination of the words “pastry,” “gun,” and “kid,” and enjoy the 2.5 million results you’ll get.

Zero tolerance is like a dumbed down version of strict liability, which is already pretty dumb to begin with. But at least with strict liability offenses concepts like prosecutorial discretion, mitigation, leniency, and exercising thought and common sense still have their place.

Zero tolerance is supposed to be a school’s way of showing how tough it is, but in reality it’s abdication of responsibility. Making judgment calls can be tough, sometimes you make the wrong choice, and when you do make the wrong choice you get angry parents yelling at you. So, rather than having a tough job with consequences, zero tolerance policies allow schools to preemptively tie their hands and punish everything without discretion. There will still be angry phone calls from parents, but the administrators can just say “Sorry, nothing we can do, zero tolerance, blah blah, Dr. Strangelove, blah blah, stop worrying and learn to love sequestration.”

Fortunately, Maryland State Senator J.B. Jennings decided to make a judgment call.  Jennings has introduced a bill to the Maryland Senate that would ban school leaders from suspending students who make the shape of a gun with their fingers or food, or students who draw a gun on paper.  Jennings says if the gun making is done in a violent manner, then things can be taken to the next level. He hopes the bill will introduce some common sense to the state education system. The bill is headed to the Education Committee, and if it passes there, it will go to the full Senate for a vote.

None of us here at ConDaily being parents (that we know of), we aren’t especially familiar with the real life ramifications of having your seven year old get a two day suspension. But according to Jennings, parents have called his office about this issue repeatedly, with concerns about their child’s permanent and academic records. Which seems pretty valid, given that the current education system in Maryland is one that views poorly expressed food art as a weapon.

The idiocy of the whole situation has been covered ad nauseam, so we won’t beat a dead toaster pastry. But, the fact that the idiocy of the whole situation has escalated so much as to prompt a bill to stop this kind of idiocy is pretty absurd.

But, we support Jennings in his fight for the rights of kids who play with their food, and to acknowledge that no amount of strategic bite placement can turn a Pop Tart into a Pop a Cap in Yo Ass Tart.

Women: Find your voice, then use it to say "make it a double"

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Being overworked and underpaid are stressing people out at work, reveals a shocking survey from the American Psychological Association.  One-third of employees experience chronic work-related stress, and it’s worse for women than men.

27% of men feel underpaid, compared with 38% of women; while 30% of men and 32% of women say they don’t have enough opportunities for internal advancement. And in case you don’t like numbers, here’s a handy little companion graphic.

So what? Who hasn’t felt overworked, underappreciated, underpaid, stressed at work? Well, part of the problem is that chronic stress harms productivity, mental clarity, short term memory, decision making, and moods. And it seemingly affects women more so than men, though there is of course a question of whether men and women differ in how they report stress. Either way though, whether women have more stress or just report it more often, you’re going to have to deal with more bitching from your girlfriend. And if she’s less productive at work because she’s stressed, she’s just going to get more stressed. Lucky you.

According to the study, women’s stress is on the rise because more families are relying on women’s earnings. But, the article tells us that employed wives’ contributions to family earnings have hovered at around 47% for the last 4 years. So, that doesn’t really explain the recent rise in stress. Also problematic: only keeping track of “employed wives.” There are plenty of employed women whose families depend on their income that aren’t wives, past or present. The study also suggests that work-life balance is a particular struggle for these women. Guess all the “employed wives” aren’t splitting the chores with their “employed husbands.”

Presuming chronic stress at work is unavoidable, what can be done about it? The article has 0 solutions for men (whatever, dudes are less stressed anyway) and two for women. First are the clichés encouraging women to be more assertive, “give yourself a voice,” “speak up for yourself,” “stand up for behavior you see as unfair.” Well, that’s better than saying women can fix stress at work by talking to other women who are stressed at work, or by encouraging each other to be less stressed. Then again, pretty much anything is better than those. Except maybe a solution that could directly lead to more stress, such as, oh, I don’t know …speaking up, standing up for yourself more often, and engaging in other proactive ways of getting into more confrontations. Not that you shouldn’t stand up for yourself, but let’s not pretend doing so isn’t stressful.

The second solution comes implied, by way of several “success story” anecdotes of women who fixed their chronic work stress. They quit their jobs. Women who reduced their work stress through suicide were not interviewed for the story, though it’s presumable that they had the same level of work stress reduction.

So, if you’re a woman and you’re stressed at work, either “find your voice” or quit your job. And then hope stress doesn’t show up at your next job. Or just perpetually hunt for new jobs, so you can always quit when things get stressful. And if you can’t quit, well, uh, sorry bout ya.

This study is like every “problem with women in the law” piece that I’ve come to loathe so much. It identifies a problem, discusses it enough to have the appearance of depth with no real analytical insights, and then does little or nothing to suggest how to deal with the problem. Or, maybe I’m just one of those stressed women whose mental clarity has been compromised and I’m too moody to notice.

And since we don’t like to complain about something too much without providing a better solution than the non-solutions we’re complaining about, how about not trying to reinvent the wheel? Women are facing more stress at work largely because they’re at work more than they used to be and are finding work in increasingly stressful fields. They’re less likely to be stay-at-home moms, and there’s a better chance they’ll be the lawyer than the secretary than there used to be. So why not take a page from the playbook of the team that’s been dealing with work stress for a lot longer: men.

They don’t “find their voice,” and they don’t often quit. They have happy hours. Sometimes at noon.

But David Yellen Says They Must

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David Yellen is the Dean of Loyola Chicago.

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

In an op-ed written for Above the Law, David Yellen said, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."

 

Law School Transparency conducted a survey of law school websites more than 4 months after the ABA revised Standard 509.

In a report covering the findings of its investigation, Law School Transparency said, "Of the 199 ABA-approved law schools, 78.4% (156/199) did not meet the expectations set forth by Standard 509."

Standard 509 is among the ABA Standards and Rules of Procedures for Approval of Law Schools.

In an op-ed written for Above the Law, David Yellen said, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

David Yellen is the Dean of Loyola Chicago.

 

David Yellen says, "Law schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools to receive or retain accreditation."

Law School Transparency says, "Of the 199 ABA-approved law schools, 78.4% (156/199) did not meet the expectations set forth by Standard 509."

David Yellen is the Dean of Loyola Chicago.

David Yellen is a member of the ABA's Task Force on the Future of Legal Education.

Frank Wu: Most Misguided Person in Legal Education

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Frank Wu was recently deemed by his peers to be the most influential person in legal academia. Too bad when it comes to improving legal academia he's got his head up his ass. Here he is writing at the Huffington Post about the tension between transparency reform and cost reform:

Everyone wants us to be transparent, while lowering our costs. Those goals, as is true of many human desires we feel simultaneously, are not highly compatible. Like elegant product design, transparency turns out to be pricey. Specifically it requires that we build an apparatus to find the information, organize it, verify it, submit it, and then track the trends that are revealed.

The other day, I spent the lunch hour in our cafe to chat with students. A nice fellow, a first-year student, came by to meet me. The only subject he wished to bring up was ice cream. He wanted to know if the cafe could install a machine as he recalled from his undergraduate days elsewhere, so he could enjoy soft-serve ice cream.

As I explained to him, I have nothing against ice cream. If we can make a profit as the vendor, then we would be delighted to offer ice cream. But if we cannot do so, then our strategic plan does not call for ice cream.

First, your attitude of "we'll be transparent if it turns a profit" is ridiculous. Transparency is an ethical obligation (and increasingly a regulatory requirement), and deserves more than a simple cost/benefit analysis.

Second, your school already has a NALP report. It's in your possession right now. You can publish it on your website FOR FREE. YOU CAN PUBLISH YOUR NALP REPORT FOR FREE. YOU CAN PUBLISH YOUR NALP REPORT FOR FREE RIGHT THIS VERY FREAKING MINUTE YOU INSINCERE ASSHAT.

Now that we know Wu's head is so far up his ass that the lump in his throat is his nose, let's look at Wu's explanation for why law school is so damned expensive these days:

The greatest change has been the embrace of clinical legal education. By "greatest," I mean the most sizable and the most worthwhile. Similar to the model of clinical medical education, clinical legal education is the best means by which we prepare students for practice. It has been so successful we as a profession might well be on the cusp of requiring it for every graduate. No med student graduates without examining a few actual patients.

The expense of clinical legal education can be calculated in straightforward terms. A professor in a doctrinal class, such as the first-year required curriculum of civil procedure, criminal law, property, contracts, and torts, can lecture to a hundred students at once. That is not ideal, but it is not uncommon. A professor in a clinical class, supervising student attorneys who are representing real people in real cases, cannot train more than ten students at once. That's if she cares about her responsibilities both as a teacher and a lawyer.

It happens that the "podium" professor as they are called likely makes more money than her clinical counterpart, though not by much. Thus the difference is more than an order of magnitude. Once you count the overhead required for an actual legal office, the clinical course requires ten times as much money. There are new technological advances that will alleviate some of that.

Pause for a moment on this math. If we want clinical legal education, we will need to spend much more to provide it. As curmudgeons tell the young, this is called a choice.

If only law schools were actually making a choice. They're not. When law schools expand their course offerings, well, that's just it. They expand course offerings. They never engage in choice. They don't say "X course would be great, in fact, better than Y, which is virtually useless, so let's replace Y with X." No, they say "X would be great, let's add that, and replace $$ with $$$."

Yes, clinical education is expensive. A whole lot more expensive than externships, but let's put that issue off for another time. A class with 10 students is more expensive than a class with 100. No debate there. And reformers do often ask for more of those 10 person classes. So let's look at what other expensive seminar courses UC Hastings is offering:

Accountability in International Human Rights Law - It's often joked that the bulk of law students enroll hoping to practice international human rights law, but that this of course is a practice area which is virtually non-existent. Apparently Hastings didn't get the joke.

Asian Pacific Americans and the Law - Truth is America doesn't have a great track record with Asian immigrants, what with the railroads and internment camps and all that. But, these aren't really contemporary legal issues, and the class would be better placed in a history department. There are immigration issues for Asian Americans, but that topic isn't in the course description.

China and the International Legal Order - This is a class that discusses China's role in the UN, WTO, and how it views trade and sovereignty issues. Perfect for the exactly 0 students who go on to become ambassador to China. Useless for the rest.

Critical Race Theory - Almost every school offers some version of this. And they pay a very expensive law professor for it instead of a much cheaper French postmodern literary theorist, and if at any point you discuss Foucault, Derrida, Lacan, or Baudrillard, that's really who should be teaching this class because you're using "critical" to mean "obfuscated beyond comprehension" and "theory" to mean "fashionable nonsense."

Film and the Law - It's not a class on the publication of private facts in documentaries. It's exactly what you think it is.

Law of the Human Body - Whether we should be allowed to enter into a kidney exchange is a really interesting issue. You can cancel the class and buy everyone interested in it a copy of Leo Katz's Why the Law is So Perverse instead.

 

UC Hastings does offer a number of practice-oriented seminars and simulation courses. And that's great. But remember, the operative word here was choice. Hastings isn't making a choice, it's just piling on every class a professor has an interest in and passing the increased costs along to the students. And that's basically the attitude every other school takes. "Oh my gorsh! How can you say that a wills drafting seminar is more important than a legal issue that isn't handled in the courts but rather by top-level political officials who are more beholden to voters than legal principles? Better offer both!"

Learn to make the hard choices, Dean Wu. Take the soft-serve ice cream off your course catalog until you can afford it. And for the love of God, publish your damn NALP report or shut the hell up about how expensive it is to become transparent.

 

Just for good measure, we saved the most ridiculous Hastings class for last:

Research Seminar on Career of Roger Traynor - "The student work will contribute to a biography that Professor Hazard is exploring in cooperation with Michael Traynor, the Justice's son and himself a prominent lawyer, and with Professor Emeritus James McCall of Hastings." You get to pay for the privilege of helping your professor write a book that will carry his name, and not yours, and where he'll collect royalties, and not you. Not only is this worthless as a law school class, it is incredibly exploitative and if law schools had serious ethical guidelines the professor would be sacked, along with whoever approved this class.

Guess it takes the most influential person in legal academia to pull off a system where students pay to be research assistants.

Brian Leiter is pretty much wrong about everything when it comes to rankings

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Imagine University of Chicago philosophy professor of law and self-styled member of the American peerage Brian Leiter reposted on his blog his criticism of the US News and World Report Law School rankings, the most easily criticized ranking system our nation has had since the President and Vice President were elected separately, and that he got the criticism nearly entirely wrong. Imagine no more! Here comes the breakdown:

1.  Contrary to what one sometimes hears, it is clear to me, and I imagine any other informed observer of school evaluations, that the reputational surveys are the one component of the U.S. News ranking that actually keeps the results tethered to reality.  Unfortunately, as Professor Stake of Indiana has shown, the superficial survey method U.S. News employs is increasingly producing an echo chamber effect, with the reputation of a school essentially tracking the overall rankings from prior years by U.S. News.  In order to minimize that effect, I suggest you switch to an on-line survey system with academics (your response rate from academics is already quite high, and I imagine that for an on-line survey it will be even higher), in which evaluators are presented with concrete information about each school, rather than simply a school name:  e.g., a current faculty roster, numerical credentials of the student body, a list of distinguished alumni (let the school provide a list, limited to 50 names, say), and so on.   Ask academics to evaluate the scholarly and professional excellence of the school, not simply the "reputation" they associate with a name.

It's clear to anyone who actually talks to prospective students, the intended audience of the US News rankings, despite how much Leiter thinks they exist for his own personal glorification, that the survey of reputation among other law professors is the most absurd, least grounded in reality part of the whole ranking. (That is if you use a weighted measure. Spending per capita is more absurd, but only a small part of the ranking. Peer reputation is 25% of the whole damn thing.)

50 names of professors and distinguished alumni? Outside of a few super-elite schools that horde brand-name professors and produce Senators and Supreme Court Justices, the median number of names you'd (or a tenured professor) would recognize from the list is 0. And even if you do recognize someone's name, unless they're writing in the same field as you, you're going to have no idea what they've done with their career in the last 5 or 10 years. Arthur Miller at NYU, incredibly famous (not as famous as the other Arthur Miller, but still, famous among law profs) -- any idea what he's written lately? Probably not. NYU gets some reputation points for having him, despite the fact that he hasn't published a law review article since 2006, and only has 2 published in the last 15 years.

So on top of not having a clue what these people are even doing, when you do know what they're doing what they're doing is the wrong thing to evaluate them on because it's based on scholarship, and prospective students really don't care about that. They want professors who know how to teach, and it's highly unlikely that any professor filling out the USN survey has spent the 10,000 hours it would take to sample each of the 200 schools' 50 top professors.

2.  To the extent you continue to employ data self-reported by the schools, you really must undertake more aggressive audits of the data.  This year--to take the most notorious example that has already attracted widespread attention--the University of California at Berkeley claimed an astounding 99% of its students employed at graduation, a fact to which Professor Lindgren of Northwestern has already called attention.   In prior years, Berkeley has reported (going backwards by year) 97.2% employed at graduation, 74.4%, 89.8%, 88.7%, 96.8%,  and 93.2% .  Berkeley is a state school, subject to open record requirements.  Have you assigned a reporter for your magazine to investigate anomalous data reporting by schools?  The integrity of the enterprise surely demands an occasional follow-up investigation.

It did seem that Berkeley was fudging the numbers, and some sort of auditing it necessary to ensure the integrity of the data. Where Leiter goes off the rails is that when Law School Transparency filed a complaint with the ABA about a school publishing false employment data Leiter called the complaint "frivolous." And how did LST discover the fraud? They analyzed some publicly available data that contradicted Rutgers-Camden's marketing claims and then ...filed an open records request.

So why the change of heart about the importance of following up on employment claims? Two likely explanations.

First, professors love the rankings because it gives them a sense of pride. They need to protect the rankings to keep their egos puffed up. Employment stats that are presented to prospective graduates don't affect the rankings, and complaining about them hurts the profession as a whole. Can't have that.

Second, Leiter is allowed to criticize his peers. But middle-class members of the professions engaging in the same criticism? Insolence.

3.  Since what can only be facetiously called the "objective" data that schools self-report is the source of most of the egregious trickery and deceit that renders the results dubious, why not take steps to reduce your reliance on this data?  (That was a primary consideration in the Canadian law school rankings I designed for MacLean's.)  Eliminate expenditures altogether:  that alone would put a halt to the worst offenses.  What schools spend on utilities and secretaries and landscaping has nothing to do with anything.  Per capita expenditures systematically penalize larger schools for their economies of scale and reward inefficiency:  there is simply no denying this.  Even expenditures on faculty salaries is a very poor proxy for faculty quality, and would be, in any case, redundant upon well-done reputational surveys or citation studies, which would provide a direct measure.

The expenditure ranking is pretty ridiculous. What's stupid here is that Leiter doesn't know what the word "objective" means. Being fraudulent is not the same as not being objective. Also, there's not any evidence that schools mis-report their expenditures. Leiter could have filed an open records request to see what the actual numbers are, though he didn't. But, we've never heard of such a complaint. Instead, the complaint is that schools actually are spending more money to boost their rank. Students would love it if they just lied instead of increasing tuition.

And again, reputational surveys would not provide a direct measure of faculty quality. By definition a reputation is an indirect measure. And reputational surveys of faculty quality are, as previously said, not even really surveys of quality at all.

You should also eliminate the self-reported employment data, which is, as you well know, a work of fiction:  it bears some resemblance to reality, but it is mainly a work of the imagination.  Substitute data in the public domain, like the representation of school graduates as associates at leading law firms nationwide, or in federal clerkships.  Eliminating expenditures data, and substituting public data on employment success for self-reported employment statistics, would immediately increase the credibility of the results, and would get U.S. News out of the business of rewarding trickery and deceit.

The problems with the USN employment data isn't that it's a work of fiction, it's that it's a poorly crafted work of non-fiction. USN simply lumps all jobs together, part-time, short-term, non-professional. Doesn't matter, a job is a job. Using something like the LST Employment Score methodology would be a vast improvement, counting only full-time, long-term jobs requiring bar passage, and not counting solo practices. Are some schools lying on the data they send to the ABA? Maybe, and there should be audits, but narrowing what counts as a real job means you at least have to really commit fraud to game the system. Right now schools can just hire someone part-time for a couple weeks in February and count them the same as a BigLaw associate. No fiction, just a bad metric.

Leiter's alternative though is perhaps even worse than the current system. Only 45 schools send 10% or more of their class to firms with 101 or more attorneys (and that's a very liberal definition of BigLaw). Only 16 send 30% or more. 51 schools send 3% of more of their class to federal clerkships, and only 8 send 10% or more.

The BigLaw+Federal Clerkship number is important for figuring out how good a school is, but it's hardly the only important metric. It's basically only important for figuring out which of the elite schools is the most elite, which is of course the only thing that Leiter really cares about. But if you want to know whether to go to Alabama or Samford, the scores are 18.3% vs. 12.2%. They're just not the most relevant numbers for people working in Alabama, and the same is going to be true for most states that aren't dominated by a major legal market. If you compare Alabama and Samford's Employment Score, you get 71.3% vs. 59.5%, and the  Under-Employment Score comparison is 7.9% vs. 19.6%. Those are the numbers (along with salary data) that matter to people making that choice.

So there you have it. If you actually want to fix the US News rankings, you need to approach it with the eye of someone applying to law school. That generally means a focus on employment outcomes, and ditching the national scale because no one needs to know if how Arizona compares to Fordham. Or, you can take Leiter's approach, which is basically to make US News a more reliable gauge for professors to compare their relative prestige.

What's Eating Brian Leiter?

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Over the weekend, Chicago Law professor Brian Leiter posted what we think can best be described as a rather mild piece of hate mail. First, a wee bit of back story. Paul Campos wrote on Inside the Law School Scam that the phrase "thinking like a lawyer" is pretty empty. Brian Leiter then wrote on his blog a short post titled "Paul Campos admits he doesn't "even [know] what it means" to think like a lawyer." Then the e-mail came:

You’re a “Law and ______” Professor, not a lawyer. How would you know how to ‘think like a lawyer’?

This is hardly a unique criticism of legal academics, and it's especially fair when it comes to Leiter. He does teach Evidence, but his area of scholarship is purely philosophy. Here's his list of book titles from his CV: Oxford Studies in the Philosophy of Law, The Oxford Handbook of Continental Philosophy, Nietzsche and Morality, The Future for Philosophy, Nietzsche, Objectivity in Law and Morals, Friedrich Nietzsche, Daybreak: Thoughts on the Prejudices of Morality. Seven books, not to mention all of his book sections and journal articles. Leiter is quite prolific, which likely explains why he's a a professor at a top law school rather than making a third of the same amount teaching at the University of Chicago's philosophy department, since at the end of the day he's not a law professor. He's a philosophy professor who teaches Evidence on the side.

Here is Leiter's response to the e-mail:

Dear Mr. [-----],

Are you actually an attorney at the firm in question? If so, why do you not appear on the website? Do your supervisors know that you are using the firm’s e-mail to send impertinent and juvenile messages to other professionals?

“Thinking like a lawyer” refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions; I assume you must be familiar with both genres. It encompasses, for example, the use of analogical reasoning to distinguish precedents or propose extensions or developments of existing doctrine, but also involves techniques of statutory and constitutional construction, the use of arguments from authority, facility with the law/fact distinctions, and so on. Again, merely looking at the chapter headings of Schauer’s book Thinking Like a Lawyer would illuminate this apparently opaque topic for you. Alternatively, you might read Edward Levi’s classic book An Introduction to Legal Reasoning; Mr. Levi was the former Dean of my Law School, as well as former Attorney General of the United States.

Of course, there are more skills involved in being a lawyer than thinking like a lawyer. There is industry-specific knowledge, know-how with respect to how local courts or regulatory agencies approach statutory language, rhetorical talent, as well as a range of psychological and interpersonal skills that are important. For example, most good lawyers I know, among my family and friends, exhibit maturity and professional judgment, that would prevent them from sending insolent e-mails from their’s firm account to other professionals. I will be sure to send a copy of this entire correspondence to the name partners of your firm.

In other words, "I think you're wrong, and now I'm going to complain to your boss about you." Brave action, from someone with the bullet-proof protection of tenure. David Bernstein at Volokh Conspiracy picked up the story, criticizing Leiter for his lack of civility and basic human dignity. Here's the choicest bit from that response:

I have a challenge for Prof. Leiter.  Let’s take the adjectives with which he has described the correspondence that prompted this round: juvenile, impertinent, and insolent.  Let’s get a panel of three neutral arbitrators, perhaps chosen from ABA ethics committees.  And let’s take some of Leiter’s choicer blog posts, and let the arbitrators decide whether his posts meet the accepted definition of juvenile, impertinent, and insolent.  (We can start with the one quoted above, though that’s a relatively tame one by his standards).  And since he obviously thinks there should be professional consequences for juvenile, impertinent, and insolent writings, if the arbitrators agree that his posts meet the definition for which he chose to try to humiliate and punish his hapless correspondent, he’ll take unpaid leave from Chicago for a year.

Of course, Leiter will never take him up on it. Why submit to any sort of authority when tenure means never having to say you're sorry?

Just for fun, let's look at a few of the best comments from Volokh:

David Neiporent says, "[Leiter is a smart guy] About some things. That nobody cares about. But if he were a tenth as smart as he thought he was, he'd have won the Nobel Prize. That is, all the Nobel Prizes."

Lashon Foster says, "Leiter reminds me of the character Jacob Ben Israel from Glee, who runs the school newspaper. He is wildly annoying and no one likes him, but because he controls the flow of the high school gossip, everyone must pay attention to him. Leiter's entire reputation in legal academia, at least, seems to be based on running a TMZ-esque blog. Perhaps he is more substantive in the philosophy community."

More to the substance of Leiter's response, John G. says, "Leiter: "'Thinking like a lawyer' refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions"

"That overly-narrow view of "thinking like a lawyer" exposes Leiter's ignorance of the profession and business of practicing law. Leiter is oblivious to the fact that 99% of thinking required of lawyers has nothing to do with the type of reasoning that goes into the law section of appellate briefs. In the real world, the "facts" do not magically appear as irrefutable knowledge from on high presented as a hypothetical question on a law exam. In the real world, there is no limited record upon which the arguments must be based. Litigation is about creating the record. Most litigation centers around developing the facts. A lawyer that doesn't understand that the job of "thinking like a lawyer" is focused on these tasks, not on legal argument, is not competent to handle litigation of any type without the assistance of other lawyers that do."

 

Now that we're all done having our chuckles about what a giant idiotic douche Brian Leiter is, let's ask the question this post started with. What's eating Brian Leiter? Why would he get so irrationally upset over a little one line e-mail? We think it's a combination of three factors:

1. Brian Leiter is a giant egomaniac. Not that we have anything against giant egomaniacs and aren't giant egomaniacs ourselves. But, it is a character trait that is quite unstable and can act as a sort of break-down catalyst.

2. Until recently, Brian Leiter was likely challenged rarely or never.

3. Brian Leiter's position of defending Law and Nietzsche is impossibly weak.

Law schools are coming under fire for needlessly raising tuition in order to support the wasteful fancies of tenured professors who write scholarship that is relevant to no one. If one were building a law school from scratch today, there is absolutely no argument that can be made for hiring Leiter over an expert in Evidence, or over borrowing a professor from the philosophy department at a fraction of the cost. The only defense Leiter can muster is that he is high profile among other professors and this helps boost a school's peer ranking for purposes of raising the US News ranking. Leiter's entire value to legal academia is as a trophy that other professors irrationally value.

Weak positions can sometimes be successfully defended, but only be someone with experience mounting a real defense. Leiter has tenure and his typical intellectual jousting partner is a law student. He doesn't write for peer-reviewed journals, and he writes in such an obscure niche that even if his writing were incoherent nonsense (and it may well be) there would be no other professors with enough knowledge of Law and Nietzsche to challenge him. With no one to fight, Leiter's capacity for serious intellectual engagement has atrophied.

His big-ass ego won't let that go. Lacking a defensible position or the ability to defend it, he resorts to name calling and threats for those who dare question their betters. The most telling part of Leiter's response is not, as many have pointed to, his e-mailing the firm's partners. It is his use of the word "insolent," which means being not merely contemptuous, but contemptuous of one's superiors. That's how Brian Leiter sees the world. His academic pedigree and publication history don't just make him a higher profile professor. In his eyes, it makes him a better human being than the masses who instead of "thinking like a lawyer" merely think as a lawyer.

Boone County Adopts Long Claw Rule

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At the end of last week, the ABA picked up a story about an Indiana courthouse using cats to control their pigeon problem.

Boone County, Indiana is about a half hour northwest of Indianapolis. The Boone County Courthouse (photo here) is in Lebanon, population just under 16,000. And evidently has a problem with pigeons. Since at least 2010, local news has reported on the issue and county officials have attempted several pigeon deterrents, including a plastic owl, to little avail. They’ve used a cat at least once before, which was apparently successful enough to merit a second attempt.

While the birds aren’t actually in the courthouse, the cats are. The cats, Boone, a male, and Panda, a female, have a litter box in the dome of the courthouse and a kitty door allowing them to leave whenever they wish. Guess no one is worried about them having a kitty house party, Tidy Cats litter commercial style. Or about this door letting in other animals. Like pigeons.

Cat owners might be wondering how this deterrent effect works, since cats are more or less the only creatures lazier than law students on winter break, and not much bigger than your typical well-fed courthouse pigeon. The deterrent plan plays to that strength: the cats essentially function as scarecrows, or, TRIGGER WARNING – bad pun ahead, “scaredycats”. They don’t chase or hunt or eat pigeons; they merely sit in the windows of the courthouse, and that’s frightening enough to keep the pigeons away. Guess there’s a reason it’s called “bird brained.” (Okay, we’ll stop with the puns.)

According to the courthouse maintenance staff, the cats have scared the pigeons away from the courthouse and most of downtown Lebanon. The city must’ve been a popular avian destination, as the courthouse maintenance director claims the cats have saved the county thousands of dollars in cleanup costs and man hours, spent mostly cleaning up bird crap.

Maintenance says cleaning out a litter box is highly preferable to cleaning up the pigeon droppings that fell in front of the entrance door on a daily basis, and no we are not making any of this up.

No word on whether there are any issues with litigants or litigators with cat allergies; or what, if anything the cats are sharpening their claws on; or what Boone County will do if the pigeons return (add more cats?). We do know, however, that Panda is spayed, so she and Boone won’t be having any pigeon-repelling kittens, at least not together. The article doesn’t say anything about Boone’s reproductive status, but we do know that this is just another instance of the judicial system trampling all over a woman’s right to choose. KIDDING.

We wish the best of luck to Boone County in keeping the shit off their courthouse, but we want to warn anyone who might try to play with the kitties. They’re not de-clawed, and unlike most government workers, it doesn’t take much to get them to go on strike.

A JD PreVuvuzela Would Produce Less Useless Noise

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If you’re wondering if law school is right for you and have $4,500 to spend and 2 weeks to spare, Vanderbilt Law wants you! Vanderbilt Law is pleased to announce its “JD PreVU” program, aimed at undergraduates or recent graduates who aren’t sure if law school is right for them. In this two week full time course, Vanderbilt Law faculty, staff, alumni, and students will have candid conversations with you about the legal market and the law school admissions process. If you’re interested, stop reading and apply now – space is limited.

For those of you who are interested in attending but also cost conscious, you can save $500 by not “lodging” with Vanderbilt for the duration of the course, but you’re still stuck with a bill for $400 a day. If you’re an undergrad in Tennessee working part time (20 hours per week) at minimum wage ($7.25, or $6.70 after payroll taxes), then you only need to work for *click*click*click* …3 weeks to afford 1 day of JD PreVU. The whole program will only take you 30 weeks, a period of time better known as: an entire academic year.

Just to put that cost into perspective, you could take a 6 day mediation CLE for $225 a day. Or if you count each 4-hour day of BarBri’s 6 week program as a half day, they only charge $200 a day.

Vanderbilt should be able to provide a cheaper program than BarBri or a CLE. They don’t need to rent space since they already own the school and they don’t need to pay most of their presenters because they’re already on salary (maybe tack this on as a requirement for getting a summer research stipend?). Odds are the lights are going to be on anyways, the AC will be running, and someone will already be paid to mop up the floors, so the only real expense for this program ought to be some snacks and a few glossy pamphlets. That leaves a lot of room for profit margin, but when you only charge just a little more than $46,000 a year in tuition, you needs the money.

We don’t know what they’re going to teach you at this thing, but we do know one thing: JD PreVU is the probably the best introduction to the law school racket money can buy. And if you put it on your credit card, law schools won’t even have to report it as additional debt incurred as a law student.

Or if you’ve got $4,500 to burn and 2 weeks to spend on deciding whether or not law school is right for you, skip JD PreVU, and instead, contact our staff. In about 2 hours we can tell you everything you need to know, and you can spend the remaining 13.75 days exploring our nation’s capital. Your $4,500 gets you lodging (you can have BL1Y’s bed; he’ll sleep on the couch in the living room), airfare to DC, metro card costs, 3 meals a day, and a happy hour each day, and a fourth meal each day. And a bottle of Johnnie Blue every …what? four days sound good?

Let’s say $6 per breakfast, $15 per lunch, $25 per dinner, $25 per happy hour, and another $6 for a fourth meal, and that’s $77 for food each day, doubled because BL1Y is chowing down also, and that’s $2,156. Plus another $1000 for five bottles of Johnnie Blue, let’s say $500 for airfare and travel (tossing in a few cab rides), and we’ve still got $800 to burn.

We’ll pay you minimum wage, 7 hours a day to work as a consultant, in return for which you’ll be in charge of figuring out where to eat and drink each day. That leaves BL1Y with a little under $100 as profits, and at the end of the two weeks, BL1Y will advise you on whether law school is right for you.

And no, he’s not just going to give a jaded “don’t go” answer no matter what your situation or career goals are. Instead, he’ll spend the two weeks studying you, and create a refined, personalized piece of advice based on what he thinks you want to hear, because screw it, you’ve probably already made up your mind anyways, and nothing BL1Y or Vandy Law has to say is going to change anything, so let’s just gorge on food and booze.

Does Anyone Put the Man in Manti Te'o?

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After Manti Te'o's fake girlfriend fiasco/unceremonious smackdown in the BCS title game, Katie Couric asked him point blank if he was gay:

Te'o: No, far from it, far from it.

Couric: You are not, yourself, a homosexual?

Te'o: I said no. I ain't no fairy. I've had some experiences ...but I'm out of it now.

Couric: Out of it?

Te'o: Yes, ma'am.

Couric: Would you explain to the viewers at home what you mean by that?

Te'o: It's wrong. The Bible says so.

Couric: The Bible also says it's wrong to lie. How long have you been out of it?

Te'o: Almost 2 weeks.

Couric: Good for you, Manti. Good for you.

 

So... maybe part of that interview came from Midnight in the Garden of Good and Evil... Anyways, now NFL teams are allegedly interested in Te'o's sexual orientation, though there are not yet any reports that a team has directly asked him the question. And they're not likely to ask him the question because we have laws in this country protecting homosexuals from employment discrimination, not to mention there would be all sorts of PR fallout for that team. Despite the people directly involved in the sport not being particularly progressive, the sport is still beholden to the mainstream political correctness machine. Just look at all that pink they have to wear for an entire month.

Te'o's situation presents an interesting legal conundrum though. While it's illegal to discriminate against someone on the basis of his sexuality, would it be illegal to discriminate against someone for being the first openly gay man in the NFL? Probably. Almost certainly, yes.

Yet, if what the team is only concerned with is the media hype surrounding Te'o's sexuality and how that might disrupt the team, and that concern is not a pretext being used as a cover for actual homophobia, and if we put evidence issues aside, would it really be wrong for a team to say that didn't want to deal with that?

Someone more familiar with discrimination law could probably clear this up (and we know about 95% of you went to law school wanting to do this kind of thing, and only like 2 people in the world actually do it, so here's your chance). Is it legal to discriminate against someone not for their sexual orientation, but because of the way other people respond to their sexual orientation?

In other words, would it be legal for a team to fire Wilt Chamberlain because his media presence was a detriment to the team?

Do you live near a meth lab?

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One time I watched 4 seasons of Breaking Bad in 4 days. That time was about 2 weeks ago. I guess CNN wanted to keep meth on my mind, because they came out with this handy interactive map asking, “Do you live near a meth lab?” Turns out I don’t. But thanks for the inquiry.

The map shows the total number of meth labs found in every county in every state, from 2004-2012. When they say “found,” they mean, “discovered in some capacity by local law enforcement and then reported to the DEA.” So, while Jesse’s mom found the lab in the basement of his aunt’s house, the police never did, so it wouldn’t be included on this map. And technically, CNN should be asking "Did you used to live near a meth lab?" It's not like they're listing operational facilities.

CNN’s map also has a complementary DEA map titled “National Clandestine Laboratory Register” that lists the address for every single one of those labs since 2004. You have to pick your state first, and the results are sorted by county, but you can see the exact address and date of bust for each lab ever found.

“Clandestine” seems sort of redundant at first. Who wants their meth lab discovered by law enforcement? But, Desoxyn is the prescription form of meth, used to treat ADHD and obesity, although rarely.  So, because some pharmaceutical company somewhere can legally make meth, everyone else has to call their lab clandestine. “Illegal” would be too harsh. After all, these are just drug manufacturers, not immigrants.

“Clandestine laboratories” are not to be confused with “laboratory incidents.” There are other DEA maps, this time broken down by year, providing the total number of meth lab incidents for each state. “Incidents” include labs, "dumpsites" or "chemical and glassware" seizure. The other two maps only include labs. Who knew the DEA had such an active graphics department?

Looking at the lab incidents for the last year, it appears that D.C. and Hawaii had 0; Alaska, Maryland, and Rhode Island each had only one; Utah, New Jersey, and Connecticut only had 2; and Idaho, Wyoming, Nevada, Massachusetts only had 3. Either these states have virtually no meth labs or meth users, or their labs aren’t getting busted by law enforcement.

I’m inclined to believe the latter. The states with the highest population density are, in this order: D.C., New Jersey, Rhode Island, Massachusetts, Connecticut, and Maryland.  So, 0, 2, 1, 3, 1. Given the national prevalence of methamphetamine, it seems a little unlikely that there are so few people invested in it in such a high population.

So what explains the states with a very high population and a very low meth lab incident record? Do they have smarter meth makers? More discreet meth makers? Are they importing meth from other places? Is there less meth demand? Less reporting? Maybe urban police feel like they have bigger issues to worry about. Certainly there’s more access to “better” and less visually-scarring drugs. Although it seems unlikely that the answer is that they simply don’t have any meth labs. No matter how many cocaine snorting businessmen you cram into a city, there’s still going to be a sizable number of meth smoking hicks, and meth snorting hicks, and meth booty bumping hicks.

Seriously, if you’re on meth, you’re a hick, and the lab map seems to support that. Discovered labs seem to be primarily located in the Midwest, with a sliver of the West Coast and the Gulf trying to catch up.

For the most part, large numbers of meth labs don’t seem to be concentrated around big cities, with St. Louis and Tulsa being the notable exceptions. This coincides with the primarily Midwest thing and the rural white trash thing. Additionally, making meth is a smelly process, something that probably gets noticed more in high density populations with more people with olfactory senses (doesn’t explain the lack in NYC though, where people smoke just to kill their sense of smell).

Maybe rural police, comparatively, are more zealous in the pursuit of meth lab discovery (see: police mistakenly bust homemade maple syrup operation thinking it’s a meth lab). Maybe rural police just have fuckall else to do. Maybe rural police are smoking their evidence. Or maybe, just maybe, rural police have figured out the ultimate way to track down meth cooks: looking out for an inexplicable fondness for green beans with slivered almonds:

It's not just pot that can give you the munchies.

Page 7 of 135

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