This Way to the Bar Exam

Google Maps driving directions to the bar exam from my father-in-law's house.

"The bar exam is a complete waste of time and resources," a fellow student said to me while we both were studying for last week's terminal law exam. "It's a drag on the economy." A law graduate's time was better spent, he said, on something – anything – other than a test that required each graduate to review the basic framework of so many areas of the law. (In California, an applicant can be tested on 17 subjects. In New York, it's 21.)

Critics of the bar exam see it as little more than a protectionist measure. By forcing new lawyers to jump through a challenging set of hoops, the state bar accomplishes two goals. First, it limits the number of new lawyers, thereby hampering competition and raising prices. Second, the bar uses the exam (and other legal entrance requirements) to deflect criticism without actually improving the profession. Want to make lawyers more ethical? Well, one way to try to do so is to raise the lowest acceptable score on the MPRE (the Multistate Professional Responsibility Exam, a pre-bar exam test for law students), as California did this January. Because, of course, unethical students couldn't learn legal ethics for the purposes of a multiple choice exam. Of course they couldn't.

I've taken a lot of standardized tests in my day: LSATs, SATs, ACTs, an AP exam or two. The bar exam was the first such test I've taken where the body giving the test makes it abundantly clear that they are NOT on your side. The bar exam is inflicted on would-be lawyers by current lawyers, with all the care of a fraternity paddling.

You hear stories of the guy who forgot to turn off his cell phone and was bounced out of the test. The chief proctor remains you again and again that various minor misdeeds – for example, getting up to go to the bathroom during the last 5 minutes of any of the six 3-hour sessions – will result in the administration an Orwellian sounding Rule 12 Violation. The test is capricious, spiteful, and arbitrary, and it's a damn shame that it has such a profound negative economic effect on so many people who graduate law school only to struggle to pass the bar.

Yet, the bar is a necessary evil on two fronts.

1) It's good to force every lawyer to look deeply into a varied set of subjects. Out of the subjects that could have been tested last week, I knew practically nothing about criminal procedure, wills, trusts, community property, or partnerships prior to studying for the exam. Beyond these unknown areas, most of the other subject areas were topics that I'd studied during the first year of law school, only to never think about again.

I'm joining a law firm this fall that has a narrow and specialized practice, focusing exclusively on securities work and other corporate matters for start-up companies and venture capitalists. Of the 17 areas I studied like mad for the bar exam, only three (contracts, corporate law, and partnerships) will be applicable in the job that I'm about to begin.

Yet who knows what the future holds for my (or any one else's) legal career? Much as I think I'll enjoy this new job, I may someday find myself doing divorces, handling real estate transactions, helping someone plan their estate, or arguing a constitutional claim. Who knows?

What's for sure is that my friends will know that I'm a lawyer and, in a pinch, they're not going to care what kind of law I practice. They'll want me to provide them 30 seconds of counsel regarding their divorce, their home purchase, their arrest. And even though the best advice I could give them would be to usher them toward someone who is experienced in their particular problem area, it'll be helpful for me to have at least a baseline understanding of what they're facing.

Does the bar need to make the exam so onerous to accomplish the goal of making sure each lawyer has a sufficiently broad understanding of the law? No — they could make the second year curriculum as rigid as the first year, insuring that each student took the bar exam courses, even at the cost of studying areas of the law they find interesting. But a softer test with more required courses is not going to happen because of the next point.

2) Law schools – at least my law school – are rather lax about quality control. I went to law school with some of the most intelligent, hard-working people I've ever met. I also went to law school with some of the most unrepentant slackers I'll ever hope to meet.

As I noted a few months back, if you make it to the final semester of 3L at my school, you're practically guaranteed to graduate. Even prior to passing this graduation event horizon, the degree to which people skate by, er... customize law school to their own needs is really amazing.

To pick one area where people are permitted to graduate while phoning it in, let's look at lecture attendance. Sure, the ABA paternalistically requires perfect attendance from law school students. Yet, (in my experience) such a rule is only enforced by hollow threats and mock professorial scorn. The Socratic method means calling on students each class, and there were a set of names that I got used to hearing in law school that just weren't connected to people. Listening to the optimistic and naive professor calling their names reminds me of the words of the great philosopher Mitch Hedberg:

When you go to a restaurant on the weekends and it's busy, they start a waiting list. They start calling out names, they say "Dufrane, party of two. Dufrane, party of two." And if no one answers they'll say their name again. "Dufrane, party of two, Dufrane, party of two." But then if no one answers they'll just go right on to the next name. "Bush, party of three."

Yeah, but what happened to the Dufranes? No one seems to give a shit. Who can eat at a time like this — people are missing. You fuckers are selfish... the Dufranes are in someone's trunk right now, with duct tape over their mouths. And they're hungry! That's a double whammy.

We need help. Bush, search party of three! You can eat when you find the Dufranes.

Granted, having attended almost all the assigned classes during law school, I can see why people don't come. On occasion, class took on the feel of oral argument before the Supreme Court: It was an exercise that is just for show, because the result is determined on the basis of other factors. Just as the justices make up their minds on the briefs, if you've already made you mind up regarding a case's holding after reading it, class just might confuse you.

Naturally, the basic problem with the I-don't-need-to-go-to-class attitude is that you are never the problem, it's always the other guy. They might need to go to class to really master the material, but you're past that. You get it. It's not your problem.

It's the reliance on donations – donations that come from graduates, not drop-outs – that provides the systematic impetus for pushing people through law school who are incapable or uninterested in pulling themselves through. Yet, the bar exam doesn't have any such conflict. It's not going to cut you any slack, applicant.

The bar exam is a train wreck, and the test could be administered far more equitably. If the goal of the exam is to insure lawyers have at least a basic level of knowledge in the tested areas, I'd prefer that they test ALL the areas every year, instead of only rotating through essay topics, thereby testing a fraction of what you've studied and forcing you into the dangerous game of guessing the content of this year's test.

I disagree with my fellow classmate who saw the exam as little more than a waste of time. Despite the frailties of the test itself , the sixty day frantic review that precedes it produces social value by creating more generalists and offering law school slackers a chance at redemption.

"The bar exam only tests one thing," a future co-worker of mine said earlier this summer. "It tests whether you can set aside your regular life in the service of a big project." That's about right.

Some Heroic Moments for this Independence Day

At some point, our society began holding lawyers in low regard. This cultural contempt goes beyond despising the relatively more affluent or detesting ambulance chasers.

As I navigated my way through law school, it occurred to me that one of the primary sources of frustration against lawyers is our frustration with society itself. Our society – like any developed society – can be a morass of regulations and requirements, limitations that are (at least in theory) designed to protect us from ourselves and others. Since we can't lash out against this faceless system, we choose to vent our frustration at those who seem to guard the gates to this machine.

Although going to law school means choosing to become one of these social pariahs, most (many?) would say it was worth it. On this Independence Day, I want to celebrate a hidden benefit of law school. Although law school's tour of legal history reveals more than a few legal villains, it also uncovers a number of legal heroes.

Here are a couple lawyerly actions that I first learned about in law school and which make me proud to be an American today. The first is heroic for its effect, if not its intent. The latter, for both.

1. President Dwight D. Eisenhower on September 8, 1953: Chief Justice Fred Vinson died on September 8, 1953, after the rehearing of Brown v. Board of Education had been reordered but not heard.
   
   Had Vinson survived to rule on Brown's rehearing, Justice Felix Frankfurter believed there would have been 4 dissenters. According to legal legend, Frankfurter remarked that Vinson's death was "the only evidence I have ever had for the existence of God," for it permitted the nomination of Earl Warren to replace him on the bench.
   
   At Vinson's death, Eisenhower kept a promise to then California governor Earl Warren to nominate him to the first available seat on the Supreme Court. With Warren at the helm, the Supreme Court unanimously ruled in Brown's rehearing that separate but equal facilities were unconstitutional.
   
   Though Eisenhower would go on to consider his nomination of Warren to be a mistake, Eisenhower's promise to Warren led to the creation of the Warren Court and the dramatic expansion of civil rights in the decades that followed.


2. Senator Clair Engle on June 10, 1964: The Civil Rights Act of 1964 was filibustered in the Senate for 57 days and its passage looked uncertain.
   
   California Senator Engle, who had been struggling with brain cancer since 1963, returned to the Senate floor on June 10, 1964, to participate in the vote to end debate. Unable to speak due to his advanced cancer, Senator Engle pointed to his eye to indicate "aye" as his name was called in the roll-call vote. Engle's vote ultimately was one of the deciding votes, as cloture was met, ending the filibuster and permitting the Civil Rights Act of 1964 to become law.
   
   Clair Engle died one month later.

Don't Let the Door Hit You On the Way Out

Law school is hard. Anyone who has been a 1L (a first year law student) will tell you that the initial attempt at grappling with legal jargon and legal nuances made them feel like a complete dullard during the first year of law school.

But – for most – law school gets progressively easier as time goes on. 2L year brings a better understanding of how this social machine works, and 3L's (frequently with a post-graduation job in hand) are old hands at this game.

At my school, graduating 3L's benefit not only from their experience, but from student rules that are designed to make failure all but impossible. A friend alerts me to the following passage from the Columbia Law School Academic Rules (.pdf link):

3.2.4.2.1 If the student receives only one grade of Fail in any term, he or she shall have the following options:

. . .

3.2.4.2.1.3 only with the consent of the instructor, to undertake remedial instruction and submit to re-examination out-of-course, in which case if the student performs satisfactorily on the reexamination, the grade of Fail will be changed to C.

. . .

3.2.4.2.2.2 it is the faculty's understanding that 3.2.4.2.1.3 will be the usual device where impending graduation or delay in grading fifth term students, together with a want of other credits toward graduation, foreclose the use of others within the usual period of the student's law school career.

O lackluster 3L, please leave the building, take your diploma, and begin donating posthaste!

A Toast to the Constitution: Temperance, A Benevolent Creator/Brewmaster, Happiness & Avoiding the Gout

(Crossposted from the American Constitution Society :: Columbia Law School)

Here's the toast from the 222^nd Annual Constitutional Law Mixer, held at Columbia Law School on February 4, 2008. As in years past, the event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

First, I want to thank ACS & FedSoc for inviting me to give a toast at the 222nd Annual Constitutional Law Mixer. It's an honor to be a part of a tradition that predates both interchangeable parts and modern plumbing.

As Chancellor Kent was known to say: "Our annual Con Law Mixer? Yeah, that's kind of a big deal."

---

Back in May of last year, I stumbled across Robert Harris's review of the Barbara Holland book The Joy of Drinking. In Harris's review, he noted Holland's research into the role alcohol played in the creation of the United States Constitution. Harris writes that:

[I]n 1787, two days before their work was done, the 55 delegates to the Constitutional Convention “adjourned to a tavern for some rest, and according to the bill they drank 54 bottles of Madeira, 60 bottles of claret, 8 of whiskey, 22 of port, 8 of hard cider and 7 bowls of punch so large that, it was said, ducks could swim around in them. Then they went back to work and finished founding the new Republic.” Note the 55 delegates and 54 bottles of Madeira. Which founder was slacking?

PG, a recent CLS graduate and the only person I know whose Constitutional leanings led her to be an active member of both ACS and the Federalist Society, speculated that Thomas Mifflin – at the time the sitting President of Pennsylvania and a Quaker prior to his expulsion for serving in the Continental Army – was the teetotaler; however, given the amount of drink involved, it's unsurprising that the identity of the true abstainer would be lost to history.
Perhaps it was the drink, but there's so much about the Constitution that's been lost to history, so much that the Founders forgot to tell us about the meaning and the crafting of this founding document:

• Dear Founders, is that a comma, a semi-colon, or a fleck of dirt?


• O Breech-pants-wearing Founders, is the office of the Vice President firmly seated within the executive branch, or is it an extra-constitutional floater, like the extra outfielder in a game of slow-pitch softball?


• O Founders, did you really believe that human nature would permit the loser of the Presidential election to serve as a good Vice-President to the winner?


• Founders, why-oh-why did you decide to capitalize nearly every noun in the Constitution? ...and what's the deal with the handful you didn't capitalize? (...and 1L's: That's a gangbuster note topic, by the way.)


• O Founders, are there secret messages in your tortured and inconsistent spellings?

Ultimately, we just don't know the answers to any of these vital questions, so we're left to make like the founders and drink a little Madeira, claret, whiskey, port and hard cider — maybe that will bring some clarity. (Incidentally, I was told that this event would have a bowl of punch so large that ducks could swim in it. Maybe that's coming later.)

In finishing my toast and finally raising a glass, I want to end with a meditation.

Let's meditate upon how the Constitution would have looked if Ben Franklin had had more creative control over the text. After all, historians report that when Thomas Jefferson sent Franklin a draft of the Declaration of Independence containing the line "We hold these truths to be sacred and undeniable," Franklin returned it to him with the last three words crossed out and replaced by "self-evident." Surely the person responsible for this memorable and meaningful term into the Declaration of Independence could have helped us more with the Constitution. (By the way, for those of you who are measuring the productivity of your lives against the lives of the Founders or choosing your political candidates on the basis of age, please note that Thomas Jefferson was all of 33 years old when he helped draft the Declaration of Independence.)

Now, I happen to know what Franklin would have done if he'd had his way with our overly short & oft-confusing Constitution. He would have included two final clauses.

In fact, I know which clauses Franklin would have inserted.

Truth be told, I find the tension between these two clauses to be roughly analogous to the on-going dialogue that occurs between the Federalist Society & ACS.

The first clause is a quote of Franklin's, taken from Poor Richard's Almanack, 1734. To me, this is the Federalist Society clause: "Be temperate in wine, in eating, girls, and sloth, or the gout will seize you and plague you both."

The second clause does not appear in any published writing of Franklin's, but has been broadly attributed to him. Naturally, the lack of textual basis for this quote (and its feel-good character) makes it more appropriate for ACS. The clause is: "Beer is proof that God loves us and wants us to be happy."

So please join me in raising a glass: Here's to Franklin, to the other Founders, to their strange and wondrous Constitution, to ACS, to the Federalist Society, to being happy, and – above all – to trying our best to avoid the gout.

CHEERS!

Law School Tabloids: Principles and Policies of a Scandal

This past week, the law school world got its own, far more clothed, version of tabloid scandal as the as-yet-to-exist UC-Irvine School of Law hired Erwin Chemerinsky , reknowned constitutional scholar, to be its founding dean, then fired him for being too controversial, then said that it wasn't because he was too controversial, then hired him again, because the decision to fire him had turned out to be too controversial. Blawgers everywhere have hashed and rehashed the ins and outs of this embarrassingly public situation (see here, here, and here).

However, I fear that not all these sharp legal minds pay enough attention to the population most commonly affected by these sorts of break up-make up cycles to accurately analyze the situation. Therefore, we need to provide them with some assistance. What do you predict is in store for Chancellor Drake and Professor Chemerinsky?

1. Chancellor Drake, previously unknown, will squeeze the publicity for all the endowments he can get, while Professor Chemerinsky falls down the law school tiers, last spotted drunkenly trying to read from Constitutional Law: Principles and Policies at Regent University School of Law.
2. Professor Chemerinsky will attract large crowds to UCI, but they will leave largely disappointed with the overall result, while Chancellor Drake will make increasingly pointless public appearances which only serve to draw attention his waning relevance.
3. Despite putting the ring on Professor Chemerinsky's finger, Chancellor Drake will back out yet again, unable to play second-fiddle. Professor Chemerinsky will go back to his roots at USC and focus on the treatise work that made his star shine so brightly in the first place.
4. Against all odds, they will make it work, produce a beautiful baby law school, and watch their careers fall off a cliff.

The legal world needs your expertise!

Art Projects for Law Students: Rejections → Grocery Shopping Lists

I finally completed a small art project that I've been planning for a little over a year.

During the late fall of their first year in law school, most students at my law school tend to send out about 100 letters to New York law firms, seeking summer employment.

Out of the 100 letters, they'll receive somewhere between 90-100 rejections. It's not that they're all summarily unqualified, it's that law firms are loathe to spend lavish summer associate sums on first-year law students — these students know very little law and are unlikely to return to this first summer firm for employment after school.

I saved my half-ream of rejections and converted them into something useful. These rejections have become fodder for my grocery lists.

My Teacher, Richard Rorty (1931 - 2007)

One of my friends has a strange job. He works for a broadcast television network, crafting obituaries for people who are still alive. Now, as I try to cobble together a few words on Richard Rorty, the person who changed the way I see the world more than anyone else (outside my family), I realize why they write these things ahead of time.

I'm going to write about the second time Richard Rorty changed my life.

The first time, it was 1998 and I was a college senior taking a year-long course from Rorty during his first year at Stanford. The course listing indicated that by taking the class I'd get the chance to reacquaint myself with the Western canon. Instead, what I learned was that I wasn't the only person who cherished religion without living a life of belief, that a school of thought called pragmatism echoed many of the ideas I'd stumbled across in philosophical Taoism & Buddhism, and that Theodore Roosevelt more or less captured the meaning of life when he said "Do what you can, with what you have, where you are." (In class, I once asked Rorty what he felt the meaning of life was. I distinctly recall his answer: "To envisage new modes of being." Let's stick with Roosevelt.)

That was the first time. This is the second time:

The last time I had a long talk with Richard Rorty was October 2001. I was a struggling entrepreneur, back at Stanford half-time to finish my masters degree while the company I helped found was itself foundering (It would miraculously recover). I was taking a graduate course with Rorty – I think it was called Kant, Nietzsche, & Heidegger – and I paid him a visit in his office. I remember the conversation like it was yesterday.

As it was early October 2001, we started the conversation the way all conversations began in early October 2001. We talked about 9/11.

I asked Rorty if he'd written anything about 9/11. He said that he had not, but that he suspected American culture would react to this shock the same way it had reacted to similar shocks before — with xenophobia and a temporary loss of civil liberties. I was still in my post-9/11 complacency. Rorty was not.

Rorty was unflaggingly patriotic but despised chauvinism, recognizing that it's the latter that passes for patriotism today. In his brief 1994 essay The Unpatriotic Academy, Rorty (a lifelong leftie) criticized his fellow academic lefties, expounding a view that others would later condense into the t-shirt/bumper sticker slogan Dissent is Patriotic:

There is no contradiction between such identification and shame at the greed, the intolerance and the indifference to suffering that is widespread in the United States. On the contrary, you can feel shame over your country's behavior only to the extent to which you feel it is your country. If we fail in such identification, we fail in national hope. If we fail in national hope, we shall no longer even try to change our ways.

The obligatory 9/11 discussion out of the way, we moved on to other matters.

Mainly me.
...and my life.
...and me not knowing what to do with it.

It was 2001 and I was completing my second degree in Religious Studies. I knew enough to know that I didn't have the desire or the talent to get my PhD. Having been pulled into 1999's online tulip mania, I had about 2 years of experience with technology startups, but did I want to be the guy with the Religious Studies degree, pretending to know Thing One about how to build The Next Big Thing? Here I was, about to ask Richard Rorty – the most subtle, inspiring mind I'd ever met – what to do with my life.

(I know I said I remembered this conversation like yesterday, but things get a little hazy here. Rather than bore you with "and then I said" followed by "and then he said," I'll just fast-forward to way I felt at the end of the conversation.)

Leaving his office, I knew I had just lived through a Eureka moment. I felt physically changed. I'd felt great before, I've felt great since — but I'd never felt quite like this. As I bid Rorty adieu and descended the interior steps of Building 260, I reflected on these ideas that had hit me like such a freight train.

Long before this conversation, Rorty convinced me that it is pointless to pretend that there is some unique thing called philosophy — I recall him characterizing it as little more than "boring poetry." Although statements like this earned Rorty more than his share of academic enemies, few would dispute the assertion that the best painters, the best writers, the best thinkers, the best musicians do little more than introduce us to new modes of being. Their fields are more similar than they are different. They all show us a glimpse of what is possible.

I'll never forget what I thought as I walked down those steps: The Law is simply the social laboratory in which ideas do battle. To become a lawyer is to become someone who is a tiny part of a gigantic idea project. A lawyer's job is to sculpt ideas as people change and sculpt people as ideas change.

I went home and told my surprised girlfriend – not yet my fiancée – that I had an epiphany and was going to law school. The following summer, I took the LSAT exam. That fall, I applied to a few law schools. I deferred law school for two years until that girlfriend – by then, my wife – finished her own law schooling. In 2005, that girlfriend/fiancée/wife and I moved to New York, and I started law school.

Now, almost six years after talking to Richard Rorty, I believe more firmly than ever that the lawyer's role is to shepherd ideas through society and society through ideas. I'm working at a law firm that guides startups, startups like the one that I worked at when I talked to Richard Rorty in October 2001.

Richard Rorty died on Friday at age 75. A few years ago, he changed my life. Thank you, Rorty. Thank you for changing my life.

Gone Are the Brethren

(Crossposted from the American Constitution Society :: Columbia Law School)

In my 3½ semesters in law school, I’ve noticed a funny expression in old Supreme Court opinions. Justices would often use the phrase “my brethren” to refer to their fellow justices.

As one might expect, the appointment of a woman to the Supreme Court marked the end of this practice. A Westlaw search of the phrase “my brethren” in Supreme Court opinions yielded some 284 Supreme Court cases, from 1795 to 1981, in which the phrase appeared. The last time “my brethren” was used to refer to fellow justices was in Justice Rehnquist’s dissent from a denial of certiorari in Jeffries v. Barksdale, 453 U.S. 914 (1981). The Jeffries dissent was handed down on June 29, 1981; President Reagan nominated Sandra Day O’Connor on July 7, 1981.

A Little Young for Law School

After four weeks, hundreds of diaper changes, and me attempting to soothe her by singing every single song to which I know the words, Katie and I are finally studying together.

Law School in South Africa

Law school is an embarrassingly domestic exercise, where students sample broad areas of U.S. law but know almost nothing about international or comparative law. No international course is required at Columbia, even though international law is one of the historic strengths of this school.

Despite this omphaloskeptic focus on U.S. law, even students who avoid international law courses occasionally stumble across foreign sources in standard law courses. Obviously, all former British colonies – as fellow common law countries – make regular appearances in the casebooks. With the exception of current communist states, pretty much every other nation is a civil law jurisdiction, founding its law in the Roman tradition, instead of medieval British custom, and these countries are typically discussed as if they were a single unit — with laws uniform across borders.

One civil law jurisdiction that occasionally gets independent treatment is South Africa. Well, independent treatment is really an exaggeration — South Africa gets mentioned for two things:

1. South Africa's Modern Constitution: Whereas our government flails about, attempting to extract modern guidance out of a document written more than 200 years ago, South Africa's post-apartheid constitution was adopted in 1996. U.S. legal historians attempting to unearth the Framers' constitutional intent employ methods that resemble necromancy. In South Africa, you can determine the writers' intent by asking them.
   
   Although the fall of the Iron Curtain led to the creation of many constitutions, South Africa's is distinguished by the scope of the rights granted to South African citizens in the constitution's Bill of Rights. Rights-oriented parties in the United States are forced to read between the lines of our antique Bill of Rights to find rights like privacy or free association. In the South African constitution, the right to privacy (section 14) and the right to freely associate (section 18) are merely two of dozens of rights explicitly granted to individuals in South Africa.
   


2. South Africa's High Crime Rate: From the outside looking in, South Africa appears to be a society nearly paralyzed by crime. A 1996-2000 UN study found that South Africa had the most assaults, rapes, and murders with firearms of the 60 nations surveyed. Critics of the study point out that the sample included the most developed nations of the world, and that South Africa's crime rate is not anomalous for a developing country. Still, there's no denying that South Africa is still a place where women can buy rape insurance — using the proceeds to purchase anti-HIV drugs, where the affluent classes live in garrison suburbs, and where the residual effects of nearly sixty years of formal apartheid are impossible to ignore.

I mention the above because my friends Roger & Todd have gone to South Africa, where they'll spend a semester studying South African law. They're keeping the rest of us up-to-speed by blogging about the experience.

Classes have just started, but they're already experiencing a South Africa I can only imagine. Read Todd's take on their most recent challenge — dealing with a VW Golf that was broken into under the less-than-watchful eye of their security guard.

After the Gavel: Anna Nicole Smith & Other Star-Crossed Litigants

(Crossposted from the American Constitution Society :: Columbia Law School)

In law school, no case receives more than an hour's attention – Marbury v. Madison? Brown v. Board? Roe v. Wade? The Steel Seizure Case? Each gets an hour, tops. As law students hop from case to case, they generally leave each case with a sense of permanence: The matter between the parties is resolved. The issue is put to rest. Next case.

Anna Nicole Smith's sudden and tragic passing today highlights, the lives of the litigants go on after their famous day in court concludes. As we skip around the law, we generally do so unaware that the parties to a well-known case might not have lived happily ever once they left the courthouse.

As Adam notes elsewhere in this blog, it is with sadness that we learn of Ms. Smith's fate; however, she is not the first litigant to die soon after a major court victory or defeat. It's sad but unsurprising when a gravely injured litigant dies soon after their day in court. It's altogether different when a seemingly healthy party dies shortly after the final gavel.

Anna Nicole Smith: An icon of popular culture, Ms. Smith was one of the most immediately recognized and well-known Americans; however, she only gained the professional attention of the legal community through the protracted legal battle over her late husband's estate — a battle ultimately leading to her SCOTUS victory in Marshall v. Marshall, 126 S.Ct. 1735 (2006).

In something of an ironic twist of fate, Ms. Smith is predeceased by E. Pierce Marshall, the named defendant in Marshall v. Marshall and son of Smith's husband J. Howard Marshall II. Mr. Marshall died of an infection on June 20, 2006, less than two months after losing at the Supreme Court.


Tyrone Garner: Although Mr. Garner's name is not immediately recognizable to most law students, his legacy as co-plaintiff in Lawrence v. Texas, 539 U.S. 558 (2003), represents a monumental leap forward for gay rights in the United States. Unfortunately, Mr. Garner's chance to relish this powerful victory was short lived, and he died of meningitis on September 12, 2006.


Richard Loving: Although Richard and Mildred Loving's successful battle against Virginia's ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967), would have a profound effect on marriage in America, their own marriage would be tragically cut short. On June 29, 1975, Richard, Mildred, and Mildred's sister Garnet were traveling by car when they were hit by a drunk driver, killing Richard. Richard Loving was 41.


Dred Scott: In the infamous Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Supreme Court determined that slaves could not be citizens of the United States: a decision that helped provoke a civil war, led directly to the Civil Rights Act of 1866, and ultimately to the Fourteenth Amendment to the U.S. Constitution.

For better or worse, Dred Scott experienced none of these subsequent developments. Having been granted his freedom by his eventual owners in early 1858, Scott died of tuberculosis on September 17, 1858.

A Toast to the American Constitution Society, the Federalist Society, and the Agreed-upon Constitution

(Crossposted from the American Constitution Society :: Columbia Law School)

By popular demand, here's the toast from the Columbia Law School's ConLaw Mixer, held on January 23, 2007. The event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

When ACS President Jon Sherman asked me to say a few words for this event, I initially thought I’d focus on the differences in how the American Constitution Society and the Federalist Society approach the Constitution.

I mean, every ACS member knows that the members of the Federalist Society look longingly at the days before pasteurization — that they fancy themselves as yeoman farmers on the New Jersey frontier where they dream of a world in which interchangeable parts will someday be a reality.

Similarly, every FedSoc member knows that when the members of the American Constitution Society hear someone talking about "penumbras formed by emanations," they promptly instruct the bartender that they’ll have what that guy’s having.

. . . but these differences are minor. Today, let’s celebrate the similarities — of which there are many. I’ve spent the past couple days pouring over this document, locating areas of significant agreement. I’ve found three areas of broad agreement about the Constitution. Interpretations upon which we can all agree, areas that we can all toast.


AREA #1: We agree on many of the powers assigned either to the states or the various branches of our federal government.

What does this mean?

For the States, we shall not rest until states stop granting Letters of Marque and Reprisal and until they stop granting Titles of Nobility. We insist they settle their past debts using gold or silver.

For the Congress, we demand that it not shirk its duty to establish post Roads, to erect needful Buildings in D.C., and — as stated in Article 1, Section 5, clause 2 and reiterated the 20^th Amendment — that it meet at least once every year.

For the Judiciary, we insist it remain vigilant to the needs of justice, that it insure no Attainder of Treason work Corruption of Blood, and that no one shall not be convicted of Treason without a rigorous trial consisting of at least 2 witness presenting evidence against her.

Most importantly, we ask that the judiciary fully enforce the 11^th Amendment, whether that amendment actually means what it says . . . or whether actually every word of that amendment means the exact opposite of what it appears to mean.

Finally, concerning scope and appropriate exercise of Executive power, we… you know what, let’s just move on to Area #2.


AREA #2: I know I speak for everyone in this room when I say we supports the passage of the original 1^st Amendment — the Congressional Apportionment Amendment.

As many of you know, on September 25, 1789 the 1^st Congress introduced 12 — not 10 — amendments to the states as the Bill of Rights.

The original 2nd Amendment — barring Congress from granting itself immediately effective pay raises — became the 27^th Amendment on May 20, 1992. However, the original 1^st Amendment was only ratified by 11 states — 2 shy of passage at the time. Since Coleman v. Miller makes clear that all amendments are considered pending before the state indefinitely unless Congress establishes a deadline within which the states must act, only 27 states are now needed to ratify this amendment for its passage. Hey 27 states, pass the original 1^st Amendment.

If passed, the Congressional Apportionment Amendment would establish guidelines for the size of the House of Representatives. The Amendment’s math is a little hazy, but it ends with this important instruction: "there shall not be . . . more than one Representative for every 50,000 persons."

With a present US population of more than 300 million people, this introduces the possibility of a 6,000-member House of Representatives. I know I speak for everyone here when I say that if there’s one thing that the august body of the House needs to be truly effective, it’s to have 5,565 members added to its ranks.


In closing, Area #3 is really a pledge:

AREA #3: We pledge from this day forth that we shall write like the authors of our Constitution.

Not only shall we employ capitalization seemingly at random and use either British, tortured, or inconsistent spelling whenever possible, but — like the Constitution’s signatories — we shall sign our name to documents using absurd abbreviations.

I mean, why grace the document with your full name — it’s only a Constitution? These people, these founders, signed the Constitution with all the formality of someone signing a traffic ticket. William Blount went with the predictable "Wm." but William Livingston chose the path of a hipster, abbreviating "Wil:" Jonathan Dayton became "Jona:" Robert Morris became "Robt." . . . and anyone who has studied with Professor Hamburger will know who I’m talking about when I tell you that one of them merely signed "Gouv."

5 of the signatories determined that their signatures constituted little micro-sentences, worthy of ending with a period. We, too, shall end our signatures with periods. From this day forward, if you see a document signed "And: Brad:." know that it is me.


As you can see folks, our points of agreement are broad and substantial. So here’s to our agreements and our differences, here’s to our faculty and our constitutional societies, and here’s to the wig-and-tight-pants-wearing founders who made it all possible. Cheers!

The Last Will Be First, The First Will Be Last, and This Supersedes Any Prior Agreement or Understanding

In some traditions, the law and religion are cut from the same cloth. Although few may agree with me when I say that law has become its own type of religion – in the all-is-religion view that similarly permits baseball, politics, and Star Trek to also serve as religion to their followers/adherents – the kinship of law and religion is most amusing when it rears its head in unlikely places.

This, from a model acquisition agreement in the back of Gilson & Black's The Law and Finance of Corporate Acquisitions:

XVII. Miscellaneous
. . .
B. The singular shall include the plural and the plural shall include the singular; any gender shall include all other genders—all as the meaning and context of this Agreement shall require.

It's the Website Lurking in the Shadows, Stalking Every 2L

Law may not be the most lucrative career, or the most glamorous, but it's the most arduous, and that's something to be proud of.

Patrick L. Forrester, Partner, Anonymous Law Firm LLP

On a Personal Note...

After a brief rainstorm, the sun is beautifully setting over the Hudson on this, my last night of work during my first year at law school.

I am really tired, really glad I decided to pursue this career, and really ready for a summer break from classes.

U.S. News Law School Rankings: The Harriet Miers Effect

(Crossposted from the American Constitution Society :: Columbia Law School)

Although it did not surge forward as much as University of Denver's Sturm School of Law (from #95 to #70) or Seton Hall (from #83 to #70), Harriet Miers's JD alma mater, the Southern Methodist University, tied for 3rd largest positive gain in the rankings, moving up 9 slots from #52 to #43.

2007 U.S. News Rankings
2006 U.S. News Rankings

Click here to view older rankings.

While in Law School, I am Habitually Living Upon the Earnings of My Wife

In the 1972 case of Papachristou v. City of Jacksonville, 405 U.S. 156, the US Supreme Court held Jacksonville's Ordinance Code § 26-57 was unconstitutionally vague. I posit that SCOTUS was in error, and that the ordinance is supra-constitutionally dope for its use of quaint troublemaker synonyms:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses [punishable by 90 days' imprisonment, $500 fine, or both].

I'll also add that the logic of fining homeless people is just airtight. Yeah... we'll fine 'em. That'll show them homelessness doesn't pay!

Cumbersome German Legal Term of the Day

Waffenungleichheit: Literally, inequality of weapons. Used to describe a fight/confrontation that is not well-matched.

In German law, used to describe a situation were the prowess of one side's counsel far exceeds the skill of the opposing side.

Book Title Seen in Columbia Law School Library

Military Justice is to Justice as Military Music is to Music by Robert Sherrill

Home Run Baseballs and Wrecked Spanish Galleons: Both Intentionally Abandoned Property

Great quote from Popov v. Hayashi (.pdf link), the lawsuit that determined ownership of Barry Bonds's 73^rd home run ball:

The parties have agreed to a starting point for the legal analysis. Prior to the time the ball was hit, it was possessed and owned by Major League Baseball. At the time it was hit it became intentionally abandoned property.¹⁵

¹⁵ See generally, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?; Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).